Petition of Dean

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Fish and Game Department
Case No. 2024-0283
Citation: Petition of Dean, 2025 N.H 44

PETITION OF PENNY S. DEAN
(New Hampshire Fish and Game Department)

Submitted: May 20, 2025
Opinion Issued: September 19, 2025

Penny S. Dean, self-represented party, on the brief.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Mark L. Lucas, assistant attorney general, on the brief), for the
respondent.

MACDONALD, C.J.

¶1 The petitioner, Penny S. Dean, challenges a decision of the
respondent, the New Hampshire Fish and Game Department (department),
revoking her hunter education volunteer instructor certification. Because we
conclude that the presiding officer in the adjudicatory proceeding erred by
declining to recuse himself, we vacate and remand.
 I. Background

¶2 The record supports the following facts. On January 5, 2023, the
department notified the petitioner by letter signed by its executive director that
based on events that occurred during the Hunter Education Field Day at the
Winnipesaukee Sportsmen’s Club on September 18, 2022, “it has been
determined . . . that [the petitioner’s] actions violated the NH Fish and Game
Hunter Education Policy and Procedures.” As grounds, the letter stated that
during a conservation officer’s presentation to a class of students regarding the
prohibition contained in RSA 644:13 (2016) against discharging a firearm
within 300 feet of a building, the petitioner “openly disagreed with” the officer’s
explanation. (Italics omitted.) The letter stated that the manner by which the
petitioner challenged the officer’s interpretation of the law violated the
“Instructors’ Code of Conduct,” which provides that “[o]pen criticism of others
or heated disagreements between instructors in front of a class are
unproductive and detrimental and leave the wrong impression” and “[a]
classroom is no place for an argument.” (Quotation and bolding omitted.)

¶3 In addition, the letter stated that “the students were confused about
the interpretation of the law, which is very important in regards to public
safety,” and “[a] Hunter Education Instructor causing confusion by
contradicting a Law Enforcement officer in regards to public safety laws is
causing a negative impact on the hunter education program.” (Italics omitted.)
The letter notified the petitioner that her “Hunter Education volunteer
instructor certification is revoked,” her “certification to teach, plan, or take part
in any Hunter Education courses as a volunteer Hunter Education instructor is
suspended,” and she had the right, under the then effective department rules,
to request a hearing “before a Presiding Officer of the Department.”

¶4 The petitioner requested a hearing. Subsequently, she filed a motion
objecting to the executive director serving as the hearing officer. She argued
that “[a] hearing officer is constitutionally required to be a neutral and
detached hearing officer” and that, by participating in the decision to revoke
her license, the executive director had prejudged this matter and must,
therefore, recuse himself from acting as the presiding officer. A pre-hearing
conference was held on April 11, 2023. At the outset, the petitioner reiterated
her objection to the executive director “conducting this hearing given the fact
that, according to the record, [he was] one of the . . . decision-makers in this
matter.” The executive director denied the petitioner’s motion, stating that he
could be fair and impartial, had not prejudged the evidence, and would “make
a decision based on the evidence presented on the record and the applicable
legal standards.” A merits hearing was scheduled for May 24.

¶5 Following the merits hearing, the executive director, acting as the
presiding officer, found that the department sustained its burden of proof that
(1) the petitioner violated the Instructors’ Code of Conduct and (2) her conduct

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had a negative impact on the Hunter Education Program. The petitioner moved
for rehearing requesting, among other things, “a different hearing officer.” The
department consented to a rehearing with “an assistant Attorney General
sitting as the Hearing Officer.” The petitioner did not accept the department’s
offer, arguing that “a hearing officer from the Attorney General’s office . . .
would be highly inappropriate given that the Attorney General’s office would be
presumed to be handling this matter on appeal.” Thereafter, the executive
director denied the petitioner’s motion for rehearing, and the petitioner sought
review by this court.

II. Analysis

¶6 We first address our jurisdiction over this matter. The petitioner
filed an appeal here under RSA 541:6 and Supreme Court Rule 10. The
department asserts, however, that “because there is no statute authorizing an
appeal from a decision of the Department to revoke a volunteer hunter safety
instructor’s credentials,” a petition for a writ of certiorari is the proper avenue
for review.

¶7 Appeals from administrative proceedings may be taken under RSA
chapter 541 only when so authorized by law. Appeal of Rye Sch. Dist., 173
N.H. 753, 757 (2020); see RSA 541:2 (2021). We have interpreted RSA 541:2 to
mean that the provisions of RSA chapter 541 do not provide an appeal from the
determination of every administrative agency in the state. Rye Sch. Dist., 173
N.H. at 757. Unless some reference is made to RSA chapter 541 in a given
statute, an appeal under the provisions of RSA chapter 541 is not authorized
by law. Id.

¶8 RSA 214:23-c (2018), the provision at issue here, provides no
mechanism for judicial review. As the department correctly notes, “RSA
214:23-c simply provides for hunter safety education instructors to be
authorized to conduct hunter safety classes, and does not provide for any
appeal from a decision of the [department’s executive director] to either grant or
to revoke any such authorization.” Because there is no statutory provision for
appellate review of the executive director’s decision in this case, we do not have
RSA chapter 541 jurisdiction, and a petition for a writ of certiorari is the proper
vehicle for obtaining review. See Petition of Chase Home for Children, 155 N.H.
528, 532 (2007). Therefore, we treat the petition as one for certiorari review
pursuant to Supreme Court Rule 11.

¶9 Certiorari is an extraordinary remedy that is not granted as a matter
of right, but rather at the court’s discretion. Petition of N.H. Div. of State
Police, 174 N.H. 176, 180 (2021). Our review of an administrative agency’s
decision on a petition for certiorari entails examining whether the agency has
acted illegally with respect to jurisdiction, authority or observance of the law or
has unsustainably exercised its discretion or acted arbitrarily, unreasonably or

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capriciously. Chase Home for Children, 155 N.H. at 532. We exercise our
power to grant such writs sparingly and only where to do otherwise would
result in substantial injustice. Id.

¶10 The petitioner argues that the department erred by allowing the
executive director to act as the presiding officer given that he was the
“purported author of the January 5, 2023 letter and decision maker of [her]
punishment.” The department asserts that (1) the petitioner’s argument is not
preserved for appellate review and (2) the executive director was not required to
recuse himself as presiding officer. As set forth above, the record supports that
the petitioner objected several times to the executive director’s participation in
the adjudicative hearing as the presiding officer because of his role in the
decision to revoke her instructor certification. Accordingly, the argument is
preserved.

¶11 The department’s rules provide that good cause exists for the
withdrawal of the presiding officer if, among other things, the officer “[h]as
made statements or engaged in behavior which objectively demonstrates that
he or she has prejudged the facts of a case.” N.H. Admin. R., Fis 203.02(b)(2).
As the presiding officer acknowledged, he, as the executive director of the
department, “made the decision to terminate [the petitioner’s] hunter education
volunteer instructor certification,” and signed the January 5, 2023 letter
revoking the petitioner’s certification. By signing what was essentially the
charging document, the executive director’s behavior “objectively demonstrates”
that he “prejudged the facts” of the case, thereby providing good cause for his
withdrawal as the presiding officer in the adjudicatory proceeding. Id.

¶12 We conclude that the executive director erred by declining to recuse
himself as the presiding officer in the adjudicatory proceeding of this matter
and we therefore vacate his August 7, 2023 final order. The additional issues
raised by the petitioner in this court should be resolved by a new hearing
officer in the first instance. Accordingly, we grant the petition, vacate the
presiding officer’s decision, and remand for further proceedings consistent with
this opinion.

Vacated and remanded.

DONOVAN and COUNTWAY, JJ., concurred.

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