Petition of New Hampshire Division for Children, Youth and Families

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2021-0563

PETITION OF NEW HAMPSHIRE DIVISION FOR CHILDREN, YOUTH AND
FAMILIES

Argued: September 15, 2022
Opinion Issued: February 8, 2023

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Anthony J. Galdieri, Samuel Garland, assistant attorney general, and
Lawrence P. Gagnon, attorney, on the brief, and Anthony J. Galdieri, orally), for
the New Hampshire Division for Children, Youth and Families.

McLane Middleton, Professional Association, of Manchester (Scott H.
Harris on the brief and orally), and Tenn and Tenn, Professional Association, of
Manchester (Mary E. Tenn on the brief), for the respondent.

HANTZ MARCONI, J. The petitioner, the New Hampshire Division for
Children, Youth and Families (DCYF), filed a petition for original jurisdiction
under Supreme Court Rule 11, seeking review of an order of the Superior Court
(Kissinger, J.) denying DCYF’s motion to dismiss a complaint brought against
it. DCYF asserts that the trial court erred in concluding that DCYF was not
entitled to sovereign immunity under RSA chapter 541-B (2021). We accepted
the petition, and we now affirm and remand.
 I

On October 10, 2019, the respondent filed a complaint in superior court
as parent and next friend of his children, M.M. and J.M., asserting various
claims against both DCYF and the Court Appointed Special Advocates of New
Hampshire (CASA). DCYF and CASA moved to dismiss the complaint, with
DCYF arguing, inter alia, that the claims were time-barred by RSA 541-B:14,
IV. The respondent objected, asserting that RSA 508:8 (2010) tolled the period
of limitations in RSA 541-B:14, IV. After a hearing on the motion, the trial
court dismissed the claims against CASA as precluded by quasi-judicial
immunity, but denied the motion to dismiss the claims against DCYF. In its
order, the trial court reasoned that RSA 508:8 operates as a tolling provision
and that failing to read the tolling provision into the statute of limitations in
RSA 541-B:14, IV would lead to “an absurd, unfair, and unjust result.” This
petition followed. In its petition, DCYF asks us to determine that RSA 508:8
does not apply to claims brought under RSA chapter 541-B.

II

DCYF, as a state agency, enjoys the State’s sovereign immunity and is
immune from suit in New Hampshire courts unless a statute waives that
immunity. Petition of N.H. Div. for Children, Youth & Families, 173 N.H. 613,
616 (2020) (DCYF). One such statute is RSA chapter 541-B, which waives
sovereign immunity for tort claims against state agencies in certain
circumstances. Id.; see also RSA 541-B:1, II-a. The statute requires that
“[a]ny claim submitted under this chapter . . . be brought within 3 years of the
date of the alleged bodily injury, personal injury or property damage or the
wrongful death resulting from bodily injury.” RSA 541-B:14, IV.

DCYF argues that it is entitled to sovereign immunity under RSA chapter
541-B because the respondent filed the complaint outside of the three-year
limitations period contained in RSA 541-B:14, IV. The respondent asserts that
RSA 508:8, which states that “[a]n infant or mentally incompetent person may
bring a personal action within 2 years after such disability is removed,” must
be read into RSA 541-B:14, IV in order for the statute to comport with Part I,
Articles 2, 12, and 14 of the New Hampshire Constitution. It is the
respondent’s position that when the State waives sovereign immunity, it places
itself “on an equal footing with private parties sued for the same or similar
errors and omissions,” and, thus, “[a]bsent the incorporation of RSA 508:8 into
the application of [RSA 541-B:14], . . . there would be a class of children who
will be barred from recourse.” DCYF contends that RSA chapter 541-B “creates
a statutory private remedy against the State where a remedy does not
otherwise exist” and, therefore, the equal protection clause “poses no
constitutional obstacle.” We agree with the respondent and hold that RSA

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508:8 must be read into RSA 541-B:14, IV in order to comport with the equal
protection guarantees afforded to the citizenry under Part I, Articles 2 and 12 of
the New Hampshire Constitution.

Ordinarily, we decline to reach constitutional issues in a case that can be
decided on a non-constitutional ground. Chapman v. Douglas, 146 N.H. 209,
211 (2001). However, in Opinion of the Justices, we observed that the statute
of limitations contained in RSA 541-B:14, IV could potentially violate the equal
protection clauses, and, in fact, would violate the equal protection clauses
absent the inclusion of the “discovery rule.” Opinion of the Justices, 126 N.H.
554, 566 (1985); see RSA 508:4 (2010). Here, failure to read RSA 508:8 into
RSA 541-B:14, IV would similarly violate the equal protection clauses.
Accordingly, we elect to forgo our general policy of constitutional avoidance and
address the parties’ fully briefed equal protection arguments. See N.H.
Democratic Party v. Secretary of State, 174 N.H. 312, 321 (2021) (“We presume
a statute to be constitutional and will not declare it invalid except upon
inescapable grounds.”).

We begin our analysis with a review of the history and purpose of our
State’s sovereign immunity. The doctrine of sovereign immunity is deeply
entrenched in this jurisdiction. Opinion of the Justices, 126 N.H. at 557.
Indeed, the State’s immunity from suit is traced back to the immunity of the
British Crown carried over to the States by the courts. Sousa v. State, 115
N.H. 340, 342 (1975) (citing Bow v. Plummer, 79 N.H. 23 (1918)). Despite its
long history in this state, this court has also been skeptical of the merits of the
doctrine of sovereign immunity. See State v. Brosseau, 124 N.H. 184, 192
(1983) (“If and when we do reach the constitutionality of sovereign immunity,
we would be disposed to reconsider the validity of the doctrine as it exists
today.”); see also Opinion of the Justices, 126 N.H. at 558 (“Despite the firmly
established position of the sovereign immunity doctrine, this court increasingly
has criticized and expressed doubts as to the validity of its various aspects.”).
We have also recognized that it is the legislature’s prerogative to adequately
address sovereign immunity in our laws. See, e.g., Tilton v. Dougherty, 126
N.H. 294, 300 (1985) (“Sovereign immunity itself has been rejected by some
members of this court, and whatever future the doctrine may have depends on
the merits of the legislative response to the widespread dissatisfaction with it.”);
see also Brosseau, 124 N.H. at 192 (opining that the legislature must “correct
the present procedural and financial inadequacies of statutes relating to
sovereign immunity”).

In 1985, the legislature enacted House Bill 440, which responded in part
to judicial concerns about the doctrine of sovereign immunity by amending
RSA chapter 541-B. See Opinion of the Justices, 126 N.H. at 556. The New
Hampshire House of Representatives sought an advisory opinion from this
court on whether the proposed legislation was constitutional. Id. at 555-57.
We viewed the certified questions in the context of Part I, Article 14 of the New

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Hampshire Constitution and the equal protection clauses of Part I, Articles 2
and 12. See id. We reasoned that the “continued existence of any application
of the doctrine of sovereign immunity depends upon whether the restrictions it
places on an injured person’s right to recovery be not so serious that they
outweigh the benefits sought to be conferred upon the general public.” Opinion
of the Justices, 126 N.H. at 559 (quotation and brackets omitted) (citing
Brosseau, 124 N.H. at 197 (Douglas and Batchelder, JJ., concurring)). We
weighed several policy considerations supporting continuation of the sovereign
immunity doctrine against “the constitutional principle that all citizens have a
right to the redress of their actionable injuries.” Id. at 560; see N.H. CONST. pt
I, art. 14. Although the court was divided on the relative weight of the interests
of the government and the injured person, it was unanimous in its application
of the equal protection clauses to HB 440. See Opinion of the Justices, 126
N.H. at 561-62.

Relevant to the case before us, the court determined that RSA 541-B:14,
IV’s statute of limitations, as then proposed in HB 440, would run afoul of this
State’s equal protection clauses because it did not account for the discovery
rule. Id. at 566. We based our conclusion on the long-standing legal principle
that “it is manifestly unfair to foreclose an injured person’s cause of action
before he has had a reasonable chance to discover its existence.” Id. (quotation
and brackets omitted). We stated that we did not see how foreclosing a claim
by individuals who could not reasonably have brought suit within the period of
limitations created by the statute could be “justifiable” under an equal
protection analysis. Id. Since the limitations period contained in the amended
version of RSA 541-B:14, IV was otherwise equivalent to the period accorded
personal injury actions against private tortfeasors, see RSA 508:4, we
determined that the limitations period raised “no other constitutional” issues.
Id. In other words, by construing RSA 541-B:14, IV to incorporate the
discovery rule, the proposed period of limitations for filing personal actions
against the State would place an aggrieved individual in the same position as
an individual who brought suit for a personal action against a non-
governmental entity, thereby comporting with the equal protection guarantees
of the State Constitution. See id.

Thus, under the analysis employed in Opinion of the Justices, when the
State waives its sovereign immunity, a statute restricting the ability of a party
to bring suit against the State must comport with the principles of equal
protection guaranteed by the New Hampshire Constitution. See id. at 561-62.
We agree with that analysis and apply it in the case before us.

When considering an equal protection challenge under our State
Constitution, we must first determine the appropriate standard of review by
examining the purpose and scope of the State-created classification and the
individual rights affected. Cmty. Res. for Justice v. City of Manchester, 154
N.H. 748, 758 (2007). Because the right to tort recovery is an important

4
substantive right, see Opinion of the Justices, 126 N.H. at 559, we employ the
intermediate scrutiny test. See Cmty. Res. for Justice, 154 N.H. at 758. Under
this test, the challenged legislation must be substantially related to an
important governmental objective. Id. at 762. The burden to demonstrate that
the challenged legislation meets this test rests with the government. Id.

DCYF puts forth two arguments in support of its position that RSA 541-
B:14, IV is constitutional as applied to child plaintiffs. First, it argues that the
statute “does not treat similarly situated persons differently.” Second, it argues
that RSA 541-B:14, IV “creates a statutory private remedy against the State
where a remedy does not otherwise exist.” We disagree with these arguments.

Failing to read RSA 508:8 into the statute of limitations in RSA 541-
B:14, IV would create two classes of similarly situated child plaintiffs: child
plaintiffs who have been injured by the State and child plaintiffs who have been
injured by a private tortfeasor. Under RSA 541-B:14, IV as written, a child
plaintiff could bring a lawsuit against the State through a parent or next friend
only within three years of the alleged harm, whereas a child plaintiff could
bring a lawsuit against a private tortfeasor within two years after the date the
child reaches the age of majority. Compare RSA 541-B:14, IV, with RSA 508:8.
Thus, we conclude that reading RSA 541-B:14, IV as DCYF suggests has the
effect of creating two similarly situated classes of plaintiffs implicating the
equal protection guarantees of the New Hampshire Constitution. See Opinion
of the Justices, 126 N.H. at 561-62.

In addition, RSA chapter 541-B does not create a statutory remedy that
does not otherwise exist. Rather, the purpose of RSA chapter 541-B is to waive
sovereign immunity so that citizens may recover in tort for claims arising
against the State in certain circumstances. See DCYF, 173 N.H. at 616. We
have previously concluded that failing to apply the discovery rule contained in
RSA 508:4 to claims against the State when it has waived sovereign immunity
would violate the equal protection mandates of the State Constitution. Opinion
of the Justices, 126 N.H. at 566. In so concluding, we noted our long-standing
principle that “it is manifestly unfair to foreclose an injured person’s cause of
action before he has had a reasonable chance to discover its existence.” Id.
(brackets omitted).

The rationale in preventing this type of injustice extends equally to a
class of plaintiffs that must rely on a parent or next friend to bring suit on their
behalf before they reach the age of majority. If we were to apply the rule that
DCYF suggests, then children injured by the State who do not have such a
parent or next friend willing to bring suit on their behalf, like many in DCYF
custody, would have their rights extinguished prior to their first opportunity to
act in their own interests. In contrast, children who have claims against a
private tortfeasor would face no such barrier to recovery as they would be able
to bring a claim within two years after they reach the age of majority. See RSA

5
508:8. DCYF has failed to articulate any reason — let alone an important
governmental one — for foreclosing lawsuits against the State for some child
plaintiffs, while allowing lawsuits for children in the same position with claims
against private tortfeasors. Nor has it articulated how such an extinguishment
of rights is substantially related to an interest of the government. RSA 508:8 is
designed to prevent just such an arbitrary extinguishment of rights from
occurring. Thus, as with the discovery rule, “[w]e see no reason justifiable,
under an equal protection analysis, for denying persons injured by the State”
the protections of RSA 508:8. Opinion of the Justices, 126 N.H. at 566.

For these reasons, we affirm the decision of the trial court and remand
for further proceedings consistent with this opinion. See State v. Dion, 164
N.H. 544, 552 (2013) (“Where the trial court reaches the correct result on
mistaken grounds, we will affirm if valid alternative grounds support the
decision.” (quotation and brackets omitted)). Because our decision on this
issue is dispositive as to all of DCYF’s arguments, we need not address DCYF’s
remaining arguments.

Affirmed and remanded.

HICKS, BASSETT, and DONOVAN, JJ., concurred.

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