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                  THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


U.S. District Court
No. 2013-184


                                DENNIS G. HUCKINS

                                            v.

                              MARK MCSWEENEY & a.

                            Argued: February 12, 2014
                           Opinion Issued: April 11, 2014

      Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on
the brief and orally), for the plaintiff.

      Gallagher, Callahan & Gartrell, of Concord (Charles P. Bauer and
Samantha D. Elliott on the brief, and Mr. Bauer orally), for the defendants.

       CONBOY, J. Pursuant to Supreme Court Rule 34, the United States
District Court for the District of New Hampshire (DiClerico, J.) certified the
following question for our consideration:

      Whether RSA 507-B:2 and RSA 507-B:5 are constitutional under
      Part I, Article 14 of the New Hampshire Constitution, to the extent
      they prevent recovery for Plaintiff’s claim for civil battery and
      damages against the Town of Sanbornton under a theory of
      respondeat superior.
We respond in the affirmative.

      The federal district court’s order provides the following facts. See Eng
Khabbaz v. Comm’r, Social Sec. Admin., 155 N.H. 798, 799 (2007). This case
arises from a municipal police officer’s use of a stun gun during a field sobriety
test. The plaintiff, Dennis G. Huckins, alleges that the police officer, defendant
Mark McSweeney, used his stun gun on him “multiple times.” McSweeney
asserts that he used it only once when the plaintiff began to run away before
completing the field sobriety test.

       The plaintiff sued McSweeney and his employer, defendant Town of
Sanbornton (Town), for damages, alleging, among other claims, a battery claim
against McSweeney for his use of the stun gun and a claim that the Town is
liable for that battery under the doctrine of respondeat superior. The
defendants sought summary judgment on both claims. The court denied
McSweeney’s motion because the evidence, viewed in the light most favorable
to the plaintiff, did not establish that McSweeney fired only once, and because
“[n]o reasonable police officer could have believed that the encounter . . .
justified firing the [stun gun] a second time.” The court denied the Town’s
motion for summary judgment without prejudice pending certification to this
court of the question of whether RSA 507-B:2 (2010) and RSA 507-B:5 (2010)
violate Part I, Article 14 of the State Constitution.

       “In reviewing a legislative act, we presume it to be constitutional and will
not declare it invalid except upon inescapable grounds.” State Employees’
Assoc. of N.H. v. State of N.H., 161 N.H. 730, 735 (2011) (quotation omitted).
“In other words, we will not hold a statute to be unconstitutional unless a clear
and substantial conflict exists between it and the constitution.” Id. (quotation
omitted). “As such, a statute will not be construed to be unconstitutional when
it is susceptible to a construction rendering it constitutional.” Id. “When
doubts exist as to the constitutionality of a statute, those doubts must be
resolved in favor of its constitutionality.” Id. (quotation omitted). In order to
answer the certified question, it is necessary to engage in statutory
construction. “We are the final arbiters of the legislature’s intent as expressed
in the words of a statute considered as a whole.” Roberts v. Town of Windham,
165 N.H. 186, 190 (2013).

      RSA 507-B:5 provides: “No governmental unit shall be held liable in any
action to recover for bodily injury, personal injury or property damage, except
as provided by this chapter or as is provided or may be provided by other
statute.” It is undisputed that the Town is a “governmental unit” within the
meaning of RSA chapter 507-B and that the plaintiff’s action is an action to
recover for bodily injury. See RSA 507-B:1, I, II (2010). Under RSA 507-B:2, a
“governmental unit may be held liable” in a bodily injury action “caused by its



                                        2
fault or the fault attributable to it, arising out of the ownership, occupation,
maintenance or operation of all motor vehicles, and all premises.”

       We note first the scope of the plaintiff’s constitutional challenge. See
State v. Hollenbeck, 164 N.H. 154, 158 (2012). A party “may challenge the
constitutionality of a statute by asserting a facial challenge, an as-applied
challenge, or both.” Id. (quotation omitted). “A facial challenge is a head-on
attack of a legislative judgment, an assertion that the challenged statute
violates the Constitution in all, or virtually all, of its applications.” Id.
(quotation omitted). “To prevail on a facial challenge to a statute, the
challenger must establish that no set of circumstances exists under which the
Act would be valid.” Id. (quotation omitted). “[A]n as-applied challenge, on the
other hand, concedes that the statute may be constitutional in many of its
applications, but contends that it is not so under the particular circumstances
of the case.” Id. (quotation omitted).

      The plaintiff argues that RSA 507-B:2 and RSA 507-B:5 are
unconstitutional both facially and as applied to the circumstances of this case.
We begin by addressing his as-applied challenge because, if the statutes are
constitutional as applied to the plaintiff, then, by necessity, both of his
challenges must fail. See id.

      Part I, Article 14 of the State Constitution provides:

            Every subject of this state is entitled to a certain remedy, by
      having recourse to the laws, for all injuries he may receive in his
      person, property, or character; to obtain right and justice freely,
      without being obliged to purchase it; completely, and without any
      denial; promptly, and without delay; conformably to the laws.

The purpose of this provision is to make civil remedies available and to guard
against arbitrary and discriminatory infringements upon access to courts.
Ocasio v. Fed. Express Corp., 162 N.H. 436, 448 (2011). “The right to a
remedy is not a fundamental right, but is relative and does not prohibit all
impairments of the right of access.” Petition of Goffstown Educ. Support Staff,
150 N.H. 795, 803 (2004). However, Part I, Article 14 “does not guarantee that
all injured persons will receive full compensation for their injuries.” Ocasio,
162 N.H. at 448 (quotation omitted).

       The plaintiff contends that RSA 507-B:2 and RSA 507-B:5 violate Part I,
Article 14 because, although he may maintain a personal injury action against
McSweeney, that remedy is “constitutionally inadequate” and “is a hollow
recovery.” We squarely rejected a similar argument in Ocasio. In that case, the
plaintiff argued that the trial court erred by allowing the jury to apportion fault
to his employer even though the employer was immune from liability pursuant



                                         3
to a federal law. Id. at 439, 440-41. In affirming the trial court’s decision, we
held that the plaintiff’s inability to recover from his employer did not deprive
him of his constitutional right to a remedy. Id. at 448-49. We explained that
the statute under which fault had been apportioned, as applied, did not deprive
the plaintiff of his right to seek other relief for his injuries, including bringing
“suit against a third party defendant who bears responsibility for his injuries.”
Id. at 449; see Petition of Goffstown Educ. Support Staff, 150 N.H. at 801, 803
(school support staff were not deprived of their right to a remedy merely
because they could not rely upon a specific statute to “buy-back” credits for
certain services when the staff potentially had equitable remedies against the
school district and could purchase prior service credits under a different
statutory provision); State v. City of Dover, 153 N.H. 181, 183, 192-93 (2006)
(assuming that municipalities have a constitutional right to a remedy, court
ruled that their right to a remedy was not denied because, although they could
not bring their suits concerning methyl tertiary butyl ether contamination, they
could obtain relief through the State’s lawsuit). Similarly, in the instant
matter, RSA 507-B:2 and RSA 507-B:5 do not infringe upon the plaintiff’s
statutory or common law rights to bring a direct claim against the alleged
tortfeasor in this case, McSweeney. Accordingly, like the plaintiff in Ocasio, the
plaintiff in this case has not been deprived of his right to a remedy under the
New Hampshire Constitution. Like the plaintiff in Ocasio, the plaintiff here has
legal recourse to recover damages for his injuries from the party allegedly
responsible for them – here, McSweeney.

      The plaintiff also contends that RSA 507-B:2 and RSA 507-B:5 violate his
constitutional right to equal protection because they result in different
treatment of plaintiffs injured by municipal employees and those injured by
State employees. The defendants argue that this question is not properly
before us. Although the certified question cites only Part I, Article 14 of the
State Constitution, we have previously held that Part I, Article 14 “is basically
an equal protection clause in that it implies that all litigants similarly situated
may appeal to the courts both for relief and for defense under like conditions
and with like protection and without discrimination.” Appeal of Silverstein,
163 N.H. 192, 201 (2012) (quotation omitted). Moreover, we have addressed
alleged violations of a litigant’s rights to a remedy and to equal protection by
engaging in a single analysis. See, e.g., City of Dover v. Imperial Cas. &
Indemn. Co., 133 N.H. 109, 116-20 (1990). Accordingly, for the purposes of
answering the certified question, we agree with the plaintiff that his equal
protection argument is properly before us.

       However, the plaintiff’s argument erroneously presumes a difference in
the treatment of plaintiffs injured by a municipal employee’s intentional tort
and those injured by a State employee’s intentional tort. Given our prior
jurisprudence and our obligation to construe statutes to be constitutional if at




                                         4
all possible, see State Employees’ Assoc. of N.H., 161 N.H. at 735, we conclude
that no such difference exists.

       Our prior cases establish that neither Part I, Article 14 nor the equal
protection guarantee is violated when the State immunizes itself and its
municipalities from liability for intentional torts by governmental employees
acting under a reasonable belief that the offending conduct was authorized by
law. See City of Dover, 133 N.H. at 115 (addressing municipal immunity);
Opinion of the Justices, 126 N.H. 554, 564-65 (1985) (addressing immunity of
State). It is constitutional to circumscribe the liability of the State and
municipalities in this way “because unbridled liability exposure . . . would
discourage diligent service on the part of [government] personnel and thus
would impair [government] functioning.” Opinion of the Justices, 126 N.H. at
564. “Given the societal importance of maintaining vigilant government
personnel,” neither the State nor its municipalities are “constitutionally
compelled to expose [themselves] to liability for intentional torts committed by
government officials or employees who act under a reasonable belief in the
lawfulness of their conduct.” Id.

      On the other hand, under our prior cases, it is unconstitutional for the
State to immunize itself or its municipalities from liability for intentional torts
committed by government employees when those torts are not grounded on a
reasonable belief in the lawfulness of the disputed act. Id. at 564-65. “[I]n
such instances, the citizen’s constitutional right to the redress of injuries
prevails.” Id. at 565. Consistent with our jurisprudence, the legislature
enacted RSA 541-B:19 (2007), under which the State has sovereign immunity
for

      [a]ny claim arising out of an intentional tort, including . . . battery
      . . . provided that the employee whose conduct gives rise to the
      claim reasonably believes, at the time of the acts or omissions
      complained of, that his conduct was lawful, and provided further
      that the acts complained of were within the scope of official duties
      of the employee for the state.

RSA 541-B:19, I(d).

      In light of our obligation to construe RSA 507-B:2 and RSA 507-B:5 so
that they comply with the State Constitution, see State Employees’ Assoc. of
N.H., 161 N.H. at 735, we conclude that they provide immunity to
municipalities for any intentional tort committed by a municipal employee
under the same terms and conditions as RSA 541-B:19 provides sovereign
immunity to the State for any intentional tort committed by a State employee.
Thus, so construed, RSA 507-B:2 and RSA 507-B:5 do not result in different




                                         5
treatment of plaintiffs injured by municipal employee intentional torts and of
plaintiffs injured by State employee intentional torts.

       At oral argument, the plaintiff challenged our interpretation of RSA 507-
B:2 and RSA 507-B:5 in Dichiara v. Sanborn Regional School District, 165 N.H.
___, ___, 82 A.3d 225, 228 (2013). In that case, we held that RSA 507-B:2
provides an exception to municipal immunity for negligence claims “only when
there is a nexus between the claim and the governmental unit’s ownership,
occupation, maintenance, or operation of a motor vehicle or premises.”
Dichiara, 165 N.H. at ___, 82 A.3d at 228. The plaintiff argues that our
statutory construction in Dichiara results in different treatment of individuals
injured by municipal employee negligence and those injured by State employee
negligence. We have no occasion to reach this question in the instant matter
because the plaintiff has alleged no negligence claim against either McSweeney
or the Town. Moreover, the plaintiff’s only vicarious liability claim against the
Town concerns McSweeney’s alleged battery, which is an intentional tort.

       Because the statutes are constitutional as applied to the plaintiff, they
necessarily are also facially constitutional. See Hollenbeck, 164 N.H. at 158;
United States v. Tooley, 468 Fed. Appx. 357, 359 (4th Cir. 2012) (per curiam)
(“Tooley also made a facial challenge to [the statute] in his motion to dismiss
the indictment and continues the argument on appeal. However, to prevail on
a facial challenge, Tooley ‘must establish that no set of circumstances exists
under which the Act would be valid. By finding the statute valid as applied to
th[is] plaintiff[ ], the facial challenge fails as well.’”). Accordingly, for the
foregoing reasons, we answer the certified question in the affirmative.

                                                  Remanded.

      DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.




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