Appeal of New Hampshire Right to Life

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Board of Pharmacy
No. 2012-828
APPEAL OF NEW HAMPSHIRE RIGHT TO LIFE
(New Hampshire Board of Pharmacy)
Argued: January 16, 2014
Opinion Issued: May 22, 2014
Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney on
the brief and orally), for the petitioner.
Joseph A. Foster, attorney general (Lynmarie C. Cusack, assistant
attorney general, on the brief and orally), for the State.
LYNN, J. The petitioner, New Hampshire Right to Life (NHRTL), appeals
the New Hampshire Board of Pharmacy’s decision that NHRTL did not have
standing to participate in administrative actions involving the renewal of
Planned Parenthood of Northern New England’s (PPNNE) limited retail drug
distributor license. We affirm.
NHRTL is a New Hampshire non-profit organization opposed to
government support, by taxpayer subsidies, of medical clinics that provide
abortion services. As such, the petitioner wants to ensure that all state
agencies, including the Board of Pharmacy (Board), properly regulate these
clinics in the state. PPNNE has operated in New Hampshire for a number of
years as a licensed limited retail drug distributor pursuant to a contract with
the New Hampshire Department of Health and Human Services (DHHS). See
RSA 318:42, VII (Supp. 2013); RSA 318:51-b (Supp. 2013). As a limited retail
drug distributor, PPNNE must reapply annually to the Board to renew its
licenses, the terms of which run from July 1 to June 30 of each year. See RSA
318:51-b; N.H. Admin. Rules, Ph. 601.06.
On April 17, 2012, NHRTL sent a written complaint to the Board, alleging
that PPNNE did not have a state contract in place with DHHS and was
therefore illegally dispensing prescription drugs at its clinics. In its letter,
NHRTL claimed that PPNNE’s contract with DHHS had expired on June 30,
2011, and had not been renewed. On June 18, 2012, PPNNE sent renewal
applications for its six clinics to the Board, and on July 2, 2012, the Board
sent letters to each clinic acknowledging receipt of the application. Each letter
stated that the Board would not review the renewal application until August
15, 2012, but notified the clinics that it had “ministerially” renewed its licenses
through September 1, 2012.
On August 7, 2012, NHRTL sent a second letter to the Board, opposing
renewal of PPNNE’s licenses for a variety of reasons. At the Board’s monthly
meeting on August 15, 2012, it voted to table consideration of PPNNE’s license
renewal applications until its September meeting, pending receipt of additional
information from PPNNE. On September 17, 2012, NHRTL sent a third letter to
the Board, restating its opposition to the renewal of PPNNE’s licenses. Two
days later, at its meeting on September 19, the Board approved PPNNE’s
applications to renew the licenses for its six clinics.
In response to the Board’s approval of PPNNE’s licenses, NHRTL filed a
motion for a rehearing. In its motion, NHRTL asked the Board to reconsider
the renewals of PPNNE’s licenses, again restating the various reasons for its
opposition to the renewals. On October 25, 2012, in a letter to NHRTL, the
Board’s executive secretary/director denied the request for a rehearing on the
grounds that NHRTL “is neither a party nor an aggrieved person in the license
renewal proceeding.” The letter also stated that NHRTL could not intervene in
the license renewal proceedings, as it had not complied with the applicable
statutory provisions necessary to be granted intervenor status. On December
12, 2012, the Board ratified the position taken in the October 25 letter, stating
that NHRTL lacked standing to appeal the licensing decisions. This appeal
followed.
NHRTL argues that the Board erred in denying its motion for rehearing
with respect to PPNNE’s license renewals. It contends that the Board erred in
finding that it did not have standing to challenge the renewals because RSA
318:29, I(b) (Supp. 2013) grants standing to intervene in licensing proceedings
to “any person” who files a written complaint alleging misconduct by a licensee.
We disagree.
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In this case, “[t]he material facts are not in dispute; only their legal effect
is in dispute.” ACG Credit Co. v. Gill, 152 N.H. 260, 261 (2005). “The issue of
standing is, therefore, a question of law, which we review de novo.” Id. In
order to address the petitioner’s standing argument, we must engage in
statutory interpretation. “In matters of statutory interpretation, we are the
final arbiters of the legislature’s intent as expressed in the words of the statute
considered as a whole.” Petition of Mooney, 160 N.H. 607, 609 (2010). “We
interpret statutes not in isolation, but in the context of the overall statutory
scheme.” Id. “Our analysis must start with consideration of the plain meaning
of the relevant statutes, construing them, where reasonably possible, to
effectuate their underlying policies.” Id. at 609-10. “Insofar as reasonably
possible, we will construe the various statutory provisions harmoniously.” Id.
at 610. “Courts can neither ignore the plain language of the legislation nor add
words which the lawmakers did not see fit to include.” Id.
RSA 318:29, I(b) states: “The board may undertake disciplinary action
against any licensee . . . [u]pon written complaint of any person which alleges
that a licensee . . . has committed misconduct . . . .” Nothing in RSA 318:29,
I(b) pertains to licensing requirements or license renewal.1 Rather, it focuses
upon when the Board may take disciplinary action, the type of misconduct
sufficient to support disciplinary action, and appropriate actions the Board
may take in response to licensee misconduct. An entirely separate statutory
section deals with the licensing of limited retail drug distributors like PPNNE.
See RSA 318:51-b. That section describes, among other things, the proof that
an applicant must provide to the Board in order to be granted that type of
license. See RSA 318:51-b, (II)(a)-(d); see also N.H. Admin. Rules, Ph 601.03
(listing requirements for application for licensure); 601.06 (renewal applications
for limited retail drug distributors).
The only overlap between these two distinct statutory sections is in part
IV of the limited retail drug distributor licensing section, which states: “Any
person licensed pursuant to this section is subject to the provisions of RSA
318:29.” RSA 318:51-b, IV. NHRTL’s argument that the “any person” language
applies not only to complaints regarding an incumbent licensee’s misconduct,
but also to challenges to an applicant’s request for an initial or renewal license,
is strained. Based upon its plain language, RSA 318:51-b, IV cannot be read
as importing the phrase “upon written complaint of any person” from the
disciplinary provision of RSA 318:29, I(b) into the licensing section. Rather,
this provision means merely that those who become licensed are subject to
1 In contrast to RSA 318:29, which deals with the Board’s powers to take disciplinary action and
provides that such action may be taken against “any licensee, permittee, registrant, or certificate
holder,” RSA 318:30 (Supp. 2013), which addresses the Board’s investigatory powers, states that
“[t]he [B]oard may investigate possible misconduct by licensees, permittees, registrants, certificate
holders, applicants, and any other matters governed by the provisions of this chapter and RSA
318-B.” (Emphasis added.)
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disciplinary action, and thus can be the subject of “any person’s” written
complaint to the Board. NHRTL’s argument to the contrary is untenable, as it
would require that we interpret RSA 318:51-b, IV as if it stated: “Any person
licensed or seeking licensure pursuant to this section is subject to the
provisions of RSA 318:29.” We are not at liberty to rewrite the statutory text in
this fashion. See Petition of Mooney, 160 N.H. at 609-10.
However, even if we were to assume that NHRTL’s interpretation of RSA
318:29, I(b) is correct, and that “any person” who submits a complaint to the
Board could be eligible to intervene in either disciplinary or licensing
proceedings, NHRTL’s argument that such a construction leads to an
automatic right to intervene in licensing proceedings is mistaken. Under the
plain language of RSA 318:29, I(b) a complaint by “any person” does not
necessarily lead to Board action. Instead, the provision states that the Board
may undertake disciplinary action based upon such a complaint. RSA 318:29,
I(b); see City of Rochester v. Corpening, 153 N.H. 571, 574 (2006) (“The general
rule of statutory construction is that the word ‘may’ makes enforcement of a
statute permissive . . . .”). Thus, the act of lodging a complaint does not
deprive the Board of discretion to conclude that the complaint warrants no
further action, nor does it give the complainant the right to challenge such a
decision.2
Only when the Board determines that a complaint (and any resulting
investigation) warrants an adjudicatory hearing does RSA chapter 318 grant
the complainant a right to receive notice and “a reasonable opportunity to
intervene.” RSA 318:31, II (2005).3 Consistent with this statute, the Board has
issued a regulation stating that “[a] person filing a complaint which becomes
the subject of a disciplinary hearing shall be served with the hearing notice and
notified that he/she may petition to intervene in the proceeding.” N.H. Admin.
Rules, Ph 204.07 (emphasis added). These provisions clearly show that the
2 The only circumstance under which the statute appears to limit the Board’s discretion to dispose
of complaints that do not progress to an adjudicatory hearing, over the objection of the
complainant, is where the Board’s investigation of the complaint results in an offer of settlement
by the licensee. Even in such situations, RSA 318:30, VII (Supp. 2013) allows the Board to settle
the matter without the consent of the complainant, “provided the material facts are not in dispute
and the complainant is given an opportunity to comment upon the terms of the proposed
settlement.”
3 NHRTL’s argument here – which confuses the concepts of standing to make a complaint with
that of standing to participate in administrative proceedings or to appeal administrative decision-
making – is analogous to that of the appellant in Ruel v. N.H. Real Estate Appraiser Bd., 163 N.H.
34 (2011). In Ruel, we rejected the appellant’s argument that the appraiser who filed a complaint
that led to the Real Estate Appraiser Board’s action lacked “standing” to do so because he would
not qualify as a person “directly affected” for purposes of having standing to appeal the Board’s
decision. See id. at 40-41. Similarly, here the mere fact that NHRTL may have “standing” to file a
complaint with the Board of Pharmacy does not mean that it enjoys a right to participate in the
Board’s licensing or disciplinary proceedings, or to appeal its decisions.
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mere filing of a written complaint does not, as NHRTL urges, grant it a right to
intervene in the investigatory or licensing processes of the Board.
Also unavailing is NHRTL’s argument that under the Administrative
Procedure Act (APA), RSA chapter 541-A (2007 & Supp. 2013), filing a
complaint automatically grants it intervenor status. Even if we assume that
the intervention section of the APA could be interpreted to allow a third party to
intervene in licensing proceedings, it states that “the presiding officer shall
grant one or more petitions for intervention” if certain requirements are met.
RSA 541-A:32, I (2007). This statute does not grant a person intervenor status
merely because he or she files a complaint or letter expressing concerns as to
some action or decision an administrative agency has under consideration.
Rather, a person seeking intervention must petition to intervene. Specifically,
the APA requires a person seeking intervenor status to submit a petition that
specifically asserts that its rights and interests may be affected by the
proceeding. RSA 541-A:32, I(b). Here, NHRTL did not seek to intervene in the
licensing proceeding, as it did nothing more than write letters opposing renewal
by the Board of PPNNE’s licenses. Thus, it did not attain the status of an
intervenor.
Finally, we also reject NHRTL’s argument that it had standing under RSA
541:3 (2007) to seek rehearing of the Board’s renewal of PPNNE’s licenses. The
Board found that NHRTL lacked standing to seek rehearing, as it was “neither
a party nor an aggrieved person in the license renewal proceeding.” We agree
with the Board.
RSA 541:3 states that “[w]ithin 30 days after any order or decision has
been made by the [Board], any party to the action or proceeding before the
[Board], or any person directly affected thereby, may apply for a rehearing in
respect to any matter determined in the action or proceeding.” RSA 541:3; see
RSA 318:31, VI (2005). The filing of such a motion is a prerequisite to seeking
judicial review of the Board’s decision. See RSA 541:4 (2007). To establish
standing under section 541:3, NHRTL must show that it “has suffered or will
suffer an injury in fact.” Appeal of Stonyfield Farm, 159 N.H. 227, 231 (2009);
see also Appeal of Richards, 134 N.H. 148, 154 (1991). To show an injury in
fact, the alleged harm cannot be speculative. See Hannaford Bros. v. Town of
Bedford, 164 N.H. 764, 769 (2013) (stating that the alleged injury was, at most,
speculative and did not give rise to a definite interest in the outcome of an
appeal). Nor can the injury be a mere potential harm. See Stonyfield Farm,
159 N.H. at 231-32 (stating that potential or future harm is insufficient, as a
matter of law, to convey standing upon the petitioners to appeal the Public
Utility Commission’s decision). Another way of formulating the “injury in fact”
requirement is that “[n]o individual or group of individuals has standing to
appeal when the alleged injury caused by an administrative agency’s action
affects the public in general.” Richards, 134 N.H. at 156. “Similarly, an
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association has no standing to challenge an administrative agency’s action
based upon a mere interest in a problem.” Id. (quotation omitted).
In appealing the Board’s denial of its motion for a rehearing, NHRTL does
not allege a specific injury in fact. Instead, it asserts a generalized interest in
helping the public by ensuring that the Board properly regulate clinics that
provide abortion services. NHRTL states that it is “concerned” that the Board
has continued to license PPNNE, that the Board is not inspecting PPNNE’s six
clinics, and that untrained staff members at the clinics are dispensing
medication. NHRTL also claims that failure to regulate such clinics “has
recently been cited as the cause of deaths in several states.” None of these
generalized claims alleges that NHRTL has suffered an injury in fact, or that its
own rights have been, or will be, specifically or directly affected. NHRTL does
not claim that any of its individual members has suffered, or will suffer, harm
— it refers to deaths caused by the alleged failure to regulate that did not affect
NHRTL’s membership. Instead, these concerns merely represent NHRTL’s
interest in what it believes to be a public problem. Accordingly, the Board did
not err in concluding that NHRTL lacked standing under RSA 541:3.4
Affirmed.
CONBOY and BASSETT, JJ., concurred.
4 NHRTL also argues that it should be granted standing before the Board so that it need not be
“required to bring a Declaratory Judgment action before the Superior Court” pursuant to RSA
491:22 (Supp. 2013). We decline to opine as to whether NHRTL may have an alternative avenue
to obtain the relief it seeks since, even if true, that does not affect our decision herein.
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