Appeal of Franklin Lodge of Elks 1280 BPOE

864 A.2d 325, 151 N.H. 565, 2004 N.H. LEXIS 196
CourtSupreme Court of New Hampshire
DecidedDecember 28, 2004
DocketNo. 2004-094
StatusPublished
Cited by3 cases

This text of 864 A.2d 325 (Appeal of Franklin Lodge of Elks 1280 BPOE) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Franklin Lodge of Elks 1280 BPOE, 864 A.2d 325, 151 N.H. 565, 2004 N.H. LEXIS 196 (N.H. 2004).

Opinion

Dalianis, J.

The petitioner, the Franklin Lodge of Elks #1280 BPOE (Lodge), appéals from a decision of the New Hampshire Sweepstakes Commission (commission) declaring it ineligible to apply for a “lucky 7” license pursuant to RSA 287-E:5, V(c) (Supp. 2004) and RSA 287-E:7, VI (Supp. 2004). We affirm.

On September 25, 2000, the Lodge pled guilty to three class A misdemeanor counts of illegal gambling activity. See RSA 647:2 (1996); RSA 625:9, IV(a)(2) (1996). The Superior Court (McGuire, J.) imposed a suspended fine and ordered thé Lodge to do community service. At the time of the conviction, the Lodge was licensed to operate “bingo” games and sell lucky 7 tickets, which licenses were applied for and reissued on a monthly basis. See RSA 287-E:5, TV (1999). However, as a result of the conviction, the Lodge lost its permission to conduct bingo games because both former RSA 287-E:5, V(c) (1999) (amended 2003) and former RSA 287-E:7, VI (1999) (amended 2003), then in effect, prohibited persons who had been convicted of any criminal offense from applying for a license to operate a bingo game or from participating in the operation of a bingo game.

RSA 287-E:5, V(c) and RSA 287-E:7, VI were amended in 2003. The statutes now prohibit persons who have been convicted of a felony or class A misdemeanor within thé previous ten years from applying for a license to operate a bingo game or a license to sell lucky 7 tickets and from participating in the operation of a bingo game or the sale of lucky 7 tickets. RSA 287-E:5, V(e); RSA 287:E:7, VI. In light of the amendment, on December 11, 2003, the commission held a hearing on the Lodge’s eligibility to sell lucky 7 tickets. On December 19, 2003, the commission ordered that the Lodge was “ineligible for licensing effective at the time the current [lucky 7] license expires on December 31, 2003,” and thus its lucky 7 license would not be renewed.

The Lodge appeals from thé ruling of the commission, see RSA 541:6 (1997), arguing that the Use of its convictions for illegal gambling, where the acts constituting the convictions occurred prior to the effective date of the aménded versions of RSA 287-E:5, V(c) and RSA 287-E:7, VI, violates [567]*567the New Hampshire Constitution’s prohibition against the retrospective application of laws, see N.H. Const. pt. I, art. 23, because it imposes a new disability by augmenting the civil sanction attached to a past transaction. Though the commission based its decision upon both RSA 287-E:5, V(c) and RSA 287-E:7, VI, the Lodge appealed only the application of RSA 287-E:7, VI. Nonetheless, we will analyze both statutes because they are inextricably intertwined, the State addresses both in its brief, and analyzing them together will not affect the substance or outcome of this opinion.

We will not disturb the commission’s decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable. RSA 541:13 (1997); see also Appeal of Fay, 150 N.H. 321, 324 (2003). Our only concern in this case is whether the commission committed an error of law. We review the commission’s interpretation of statutes and the constitution de novo. Linehan v. Rockingham County Comm’rs, 151 N.H. 276, 278 (2004).

The Lodge argues that our ruling in State v. Vashaw, 113 N.H. 636 (1973), is dispositive of this case because the Lodge interprets that decision as “requiring] the commission of an offense after [the] effective date” of the challenged statute. We disagree.

In Vashaw we interpreted a statute that required the license of a motor vehicle operator to be revoked for a period of four years if that operator was convicted of three listed offenses within a ten-year period. Vashaw, 113 N.H. at 637. The defendant in Vashaw had been convicted of driving under the influence two times prior to the effective date of the statute. The defendant was then convicted of driving without a license three years after the effective date of the statute. All three offenses were listed offenses and occurred within a ten-year period. Id. In upholding the trial court’s decision, we relied upon the principle that the underlying policy of Part I, Article 23 is to prevent the legislature from interfering with the expectations of persons as to the legal significance of their actions taken prior to the enactment of a law, and found dispositive the fact that the statute specifically required a motor vehicle violation after the effective date in order to activate its provisions, putting the defendant on notice as to the legal effect of a third conviction. Id. at 637-38,

Although the commission’s application of RSA 287-E:5, V(c) and RSA 287-E:7, VI was not, as in Vashaw, triggered by the occurrence of an offense after the effective date of the statutes, its application does not violate Part I, Article 23 because the statutes at issue are remedial in nature. “It was early held that ‘every statute, which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, [568]*568imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective----’ ” Pepin v. Beaulieu, 102 N.H. 84, 89 (1959) (quoting Woart v. Winnick, 3 N.H. 473, 479 (1826)). However, a retrospective statute does not contravene Part I, Article 23 of the State Constitution if it affects the remedy only and is not oppressive or unjust. Pepin, 102 N.H. at 89-90; see also Wallace v. Stearns, 96 N.H. 367, 369 (1950). “In general terms, decisional law long has recognized the authority of a governmental licensing entity to examine and determine, from the past conduct of a party, his or her fitness to undertake or continue a business or profession.” Hughes v. Board of Architectural Examiners, 952 P.2d 641, 656 (Cal. 1998).

We examine whether the statutes at issue are remedial or punitive in nature. “The purpose of remedial legislation is to promote justice and advance the public welfare and important and beneficial public objects.” 73 Am. JUR. 2d Statutes § 8, at 234 (2001). In deciding whether or not a law is penal in nature, the United States Supreme Court has stated:

[T]his Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment — that is, to reprimand the wrongdoer, to deter others, etc. — it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote. If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise.

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864 A.2d 325, 151 N.H. 565, 2004 N.H. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-franklin-lodge-of-elks-1280-bpoe-nh-2004.