Certified Final Objection No. 73 of the
Joint Legislative Committee on Administrative Rules
At its meeting on April 21, 1995, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to object to Final Proposal 95-005 containing proposed rules of the Department of Safety (Department) relative to hearings. The Department responded in writing on June 2, 1995.
At its special meeting on July 14, 1995, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 95-005. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:
After a final objection by the committee to a provision in the rules is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.
The following summarizes the basis for the Committee's final objection:
Saf-C 203.03(h)(1)-(4)
The Committee objected that Saf-C 203.03(h)(1)-(4) violate Committee rule 402.02 by being contrary to legislative intent by conflicting with RSA 541-A:30, II, as discussed below.
Saf-C 203.03(h)(1)-(4) govern the suspension procedure for holders of probationary driver's licenses who were driving with a blood alcohol content of 0.03 percent or higher. Under the cited rules, it is possible that a requested hearing would not be held until after the date on which the suspension is scheduled to go into effect. In fact, Saf-C 203.03(h)(3) specifically states that a request for a hearing "shall not delay postpone or otherwise interrupt the suspension."
It is the Committee's determination that, in the absence of any applicable statutory exception, the provisions of RSA 541-A:30, II control whether a license can be suspended prior to the conclusion of a requested hearing. Under RSA 541-A:30, II, an agency shall not suspend a license "unless the agency first gives notice to the licensee of the facts or conduct upon which the agency intends to base its action, and gives the licensee an opportunity, through an adjudicative proceeding, to show compliance with all lawful requirements for the retention of the license." [emphasis added] It is the Committee's determination that notice and an opportunity for a hearing under RSA 541-A:30, II, means: (1) that a reasonable period of time must be given to request an adjudicative proceeding (hearing) before a license is suspended, and, (2) that if a hearing has been requested in that period, the hearing must be held before the license is suspended.
Because Saf-C 203.03(h)(1)-(4) allow a suspension to become effective prior to the conclusion of a requested hearing, the Committee concluded that the cited rules are contrary to legislative intent by violating RSA 541-A:30, II.