THE STATE OF NEW HAMPSHIRE SUPREME COURT STATE OF NEW HAMPSHIRE

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT NO '534 STATE OF NEW HAMPSHIRE EMPIRE AUTOMOTIVE GROUP, INC. INTERLOCUTORY APPEAL PURSUANT TO RULE 8 FROM A JUDGMENT OF THE ROCKINGHAM COUNTY SUPERIOR COURT REPLY BRIEF OF EMPIRE AUTOMOTIVE GROUP. INC. RESPECTFULLY SUBMITTED EMPIRE AUTOMOTIVE GROUP, INC. By Its Attorneys, W. Michael Dunn (NH Bar # 701) SHEEHAN PHINNEY BASS + GREEN, PROFESSIONAL ASSOCIATION 1000 Elm Street, P.O. Box 3701 Manchester, N.H (603) ORAL ARGUMENT REQUESTED TO BE ARGUED BY W. MICHAEL DUNN

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ARGUMENT... CONCLUSION... CERTlFICA TE OF SERVICE...,... TABLE OF AUTHORITIES State v. Farrow, 140 N.H. 473, 474 (1995)... Snow v. American Morgan Horse Assoc., 141 N.H. 467, 471 (1996)... Appeal of Parkland Med. Ctr., 158 N.H (2008)..., 3 Petition of Walker 138 N.H. 471, 474 (1994)... Alaska Dep t of Envtl. Conservation v. EP A, 540 U. S. 461, 489 n. 13 (2004)... Collden Corvo v. Town ofwolfeboro 159 N.H. 747, 750 (2010)...

3 ARGUMENT The State argues that the Consumer Protection Bureau, a division of the New Hampshire Attorney General's Office has jurisdiction to charge and prosecute Empire Automotive Group, Inc. ("Empire ) for alleged violations of the Consumer Protection Act (the "CPA") absent a referral from the bank commissioner. The State s argument contradicts the clear language of RSA 383:1O-, which states that the (banking) commissioner shall have exclusive authority and jurisdiction to investigate conduct that is or may be an unfair or deceptive act or practice under RSA 358.A and exempt under 358-A:3." (emphasis added). It is the duty of the Supreme Court to settle matters of statutory interpretation; the Court is the "final arbiter of the intent ofthe legislature. State v. Farrow 140 N.H. 473, 474 (1995). Statutory analysis must begin by examining the plain meaning of the statute s text. Snow v. American Morgan Horse Assoc., 141 N.H. 467, 471 (1996). When the language ofa statute is plain and unambiguous " as it is here, the Court need not look beyond it for indications of the legislature s intent and it should not consider "what the legislature might have said or add words that the legislature did not include. Appeal of Parkland Med. Ctr., 158 N.H. 67, 72 (2008); Petition of Walker, 138 N. H. 471, 474 (1994). To maneuver around the seemingly clear language of RSA 383: 10-d and RSA 358-A:3 of the CPA itself (which exempts trade or commerce subject to regulation by the bank commission relative to retail installment contracts), the State contends that the Attorney General properly assumed jurisdiction because "any unfair or deceptive trade practice that is not addressed under the provisions of this chapter (RSA 361- A J shall be referred" to the Consumer Protection and Antitrust Bureau for enforcement. RSA 361-A:6, II. (emphasis added). The State s position ignores the plain language of the statute. Specifically, if this is an allegedly unfair or deceptive

4 trade practice that is not addressed under the provisions ofrsa 361-A in order for the Attorney General to properly obtain jurisdiction over the matter, it must be referred to the Consumer Protection and Antitrust Bureau. See id. The Attorney General cannot usurp the power ofthe bank commission and assume jurisdiction on its own initiative. It is a "cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous void, or insignificant." Alaska Dep t of Envtl. Conservation v. EPA, 540 U.S. 461, 489 n. (2004). To ignore the word "referred" in RSA 361-A:6, II and the exclusive grant of jurisdiction to the bank commissioner to investigate conduct that may be a violation of the CPA contained in RSA 383:1O-d and permit the Attorney General to assume jurisdiction would be a flagrant violation of the codified legislation. Even if the Court were to look beyond the plain text of the relevant statutes, when interpreting a statute, the Court must not "consider words and phrases in isolation, but within the context of the statute as a whole, so that (itj may better discern the legislature s intent and... interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Collden Corp. v. Town ofwolfeboro, 159 N.H. 747, 750 (2010) (internal quotations omitted). Here, a look at the entire statutory scheme relating to businesses regulated by the bank department makes clear the legislature s intent that businesses not be subject to potentially conflicting and confusing regulations by multiple agencies. As such, the plain text of RSA 383:10-d and RSA 361-A:6, II make clear that the bank commissioner has exclusive initial jurisdiction over Empire with respect to this matter. The State s reading of the statute would have the Court add words that are not present or consider what the legislature might have said or meant. Where, as here, the statutory language is

5 plain and unambiguous, the Court need look no further to determine legislative intent. Appeal of Parkland Med. Ctr. 158 N.H. at 72. While jurisdiction may be conferred on the Consumer Protection Bureau when an investigation is referred to it pursuant to RSA 383:1O-d or RSA 361- A:6, II, the Bureau cannot independently assume jurisdiction without a referral from the bank commissioner. Here, no such initial referral occurred. The Bureau improperly assumed authority and jurisdiction in blatant violation of statutory requirements. CONCLUSION For the foregoing reasons, the court must find that the Bureau did not properly obtain authority over the case from the bank commissioner; therefore, the Court should reverse the trial court' s ruling on Empire s Motion to Dismiss for Lack of Jurisdiction. Respectfully submitted EMPIRE AUTOMOTIVE GROUP, INC. By Its Attorneys SHEEHAN PHINNEY BASS + GREEN Professional Association Dated: July 7, 2011 By: W. ichael Dunn (NH Bar 1000 Elm Street O. Box 3701 Manchester, NH (603)

6 CERTIFICATE OF SERVICE I hereby certify that the foregoing Brief has this day been forwarded by first-class mail postage prepaid to: Constance Stratton, Esq. Office of the Attorney General 33 CajJitol Street Concord, NH Dated: July 7, 2011 W.