Charging Official Cannot Preside: Recusal Required for Agency Head Who Signed Revocation; Certiorari Is the Proper Review Path

Introduction

In Petition of Dean, 2025 N.H 44, the New Hampshire Supreme Court vacated a decision of the New Hampshire Fish and Game Department revoking the volunteer instructor certification of Penny S. Dean, a Hunter Education volunteer instructor. The Court held that the Department’s Executive Director—who both signed the revocation notice and served as the presiding officer at the subsequent adjudicatory hearing—was required to recuse himself under the Department’s own recusal rule because his prior role objectively demonstrated prejudgment of the facts. The Court also clarified that, because no statute authorizes an appeal from a revocation of a volunteer hunter education instructor certification, review lies in the Supreme Court’s discretionary certiorari jurisdiction rather than under RSA chapter 541.

The decision reinforces core administrative law values: the separation of prosecutorial (or charging) functions from adjudicative functions, and the need for an impartial tribunal. It also provides practical guidance on the appropriate vehicle for judicial review where no appeal is expressly authorized by statute.

Case Overview and Background

The matter arose from a Hunter Education Field Day on September 18, 2022, at which a conservation officer discussed RSA 644:13, the prohibition on discharging a firearm within 300 feet of a building. According to the Department, Dean openly disagreed with the officer’s interpretation in front of the class. The Department concluded this conduct violated the Hunter Education “Instructors’ Code of Conduct,” which discourages open criticism and heated disagreements between instructors in the presence of students, and asserted that the episode caused confusion concerning public safety laws and negatively impacted the program.

On January 5, 2023, the Department’s Executive Director signed a letter informing Dean that her volunteer instructor certification was revoked and her authorization to teach was suspended. Dean requested a hearing and objected to the Executive Director acting as the presiding officer on the ground that he had already participated as a decision-maker in revoking her certification. The Executive Director denied the recusal request, asserting he could be fair and would decide based on the record.

After a merits hearing on May 24, 2023, the Executive Director, as presiding officer, issued a final order finding that Dean violated the Code of Conduct and that her conduct negatively impacted the Hunter Education Program. Dean moved for rehearing and again sought a different hearing officer. The Department consented to a rehearing with an assistant attorney general as hearing officer, which Dean declined. The Executive Director denied rehearing. Dean sought review in the Supreme Court.

Summary of the Opinion

The Court first addressed jurisdiction. It held that RSA 214:23-c, the statute governing hunter education instructor authorization, contains no provision authorizing appellate review under RSA chapter 541. Therefore, the Court lacked RSA chapter 541 jurisdiction. Consistent with prior practice, the Court treated Dean’s filing as a petition for certiorari under Supreme Court Rule 11.

Turning to the merits, the Court held that the Executive Director was required to recuse himself from serving as presiding officer under N.H. Admin. R., Fis 203.02(b)(2), which mandates withdrawal when the officer “has made statements or engaged in behavior which objectively demonstrates that he or she has prejudged the facts of a case.” Because the Executive Director both made the decision to terminate Dean’s volunteer certification and signed the January 5, 2023 revocation letter—“essentially the charging document”—his conduct objectively demonstrated prejudgment. The Court vacated the final order and remanded for further proceedings before a new hearing officer, leaving Dean’s additional arguments to be addressed in the first instance on remand.

Analysis

Precedents and Authorities Cited

• Appeal of Rye School District, 173 N.H. 753 (2020): The Court reiterated the principle that appeals under RSA chapter 541 are available only when expressly authorized by statute. The opinion underscores that RSA 541:2 does not confer universal appellate jurisdiction over all administrative agency determinations; the enabling statute must reference RSA chapter 541.
• Petition of Chase Home for Children, 155 N.H. 528 (2007): When no statutory appeal exists, certiorari provides a discretionary, extraordinary remedy to review agency actions. The Court again relied on Chase Home to set the standard of certiorari review and to justify treating the mislabeled appeal as a certiorari petition.
• Petition of N.H. Division of State Police, 174 N.H. 176 (2021): Certiorari is discretionary, reserved for cases where failure to grant review would result in substantial injustice; the Court examines whether the agency acted illegally, exceeded its authority, failed to observe the law, or acted arbitrarily, unreasonably, or capriciously.
• Statutes and rules: RSA 214:23-c (2018) (authorizing hunter education instructors but silent on appeals); RSA 644:13 (2016) (firearm discharge within 300 feet of a building, mentioned in the underlying facts); RSA 541:2 and :6 (chapter 541 appeals); Supreme Court Rules 10 and 11 (appeals and certiorari); N.H. Admin. R., Fis 203.02(b)(2) (recusal standard for presiding officers).

Together, these authorities frame both the route to judicial review and the standard governing the impartiality of agency adjudicators, with the Department’s own rule supplying the dispositive recusal requirement.

Legal Reasoning

1) Jurisdiction: No RSA chapter 541 appeal; certiorari is proper

The Court applied settled doctrine: appellate review of agency decisions under RSA chapter 541 exists only if specifically authorized by statute. RSA 214:23-c, which addresses authorization of hunter education instructors, contains no appeal provision and makes no reference to chapter 541. Consequently, the Court lacked statutory appellate jurisdiction. Instead, consistent with Chase Home and its own Rule 11, the Court treated Dean’s filing as a petition for certiorari—a flexible, discretionary mechanism to review agency action for legal error or arbitrary decision-making. This approach avoids dismissing meritorious claims for want of a precise caption, particularly where substantial justice would otherwise be compromised.

2) Preservation: The recusal issue was properly preserved

The Department argued waiver, but the record showed that Dean objected to the Executive Director’s role at multiple junctures: before the hearing, at the prehearing conference, and again via a rehearing motion. The Court deemed the issue preserved, allowing it to reach the merits of the recusal claim.

3) Recusal: Objective prejudgment under Fis 203.02(b)(2)

The central holding rests on the Department’s own rule requiring recusal when a presiding officer’s behavior “objectively demonstrates” prejudgment of the facts. The Executive Director acknowledged that he made the decision to terminate Dean’s volunteer certification and signed the January 5 revocation letter. The Court characterized that letter as “essentially the charging document.” By assuming the roles of both initial decision-maker (or “charging” official) and adjudicator, the Executive Director crossed the rule’s line: his prior acts objectively evidenced prejudgment. The rule’s objective standard focuses on what the officer did and how it would appear to a reasonable observer, not on subjective assertions of fairness. Thus, his assurances that he had not prejudged the evidence could not overcome the objective indicia of bias arising from his dual role.

Because the recusal error went to the structural integrity of the adjudication, the appropriate remedy was vacatur of the final order and remand for a new hearing before a different presiding officer. The Court left all other issues Dean raised to be addressed anew by the replacement hearing officer.

Impact and Implications

A. Separation of functions in New Hampshire administrative proceedings

This decision has immediate, practical consequences for New Hampshire agencies, especially smaller departments where personnel may wear multiple hats:

• An agency head or senior official who initiates or approves a revocation, suspension, or analogous enforcement action should not preside over the contested case arising from that action. Signing the initiating or revocation letter can itself be enough to require recusal.
• Agencies should design internal processes that separate investigatory/charging functions from adjudicatory functions. Where staffing is limited, agencies may appoint independent hearing officers, use inter-agency hearing examiners, or secure neutral adjudicators (e.g., contracted hearing officers) to preserve impartiality.
• Written recusal rules—such as Fis 203.02(b)(2)—are enforceable standards. Agencies must train presiding officers to recognize when objective indicators of prejudgment require withdrawal.

B. Route to judicial review: Certiorari absent statutory appeal

For Fish & Game volunteer instructor matters (and comparably situated programs lacking explicit appeal provisions), parties must proceed by petition for certiorari to the Supreme Court, not by an RSA chapter 541 appeal. Certiorari:

• Is discretionary and granted sparingly.
• Examines whether the agency acted illegally, exceeded its authority, failed to observe the law, or acted arbitrarily, unreasonably, or capriciously.
• Is not a de novo reweighing of the evidence; it is focused on legal error and the rationality of the agency’s decision-making.

Practically, litigants should consult Supreme Court Rule 11 for filing requirements and timelines, recognizing that certiorari review is narrower than a statutory appeal and not guaranteed as of right.

C. The role of the Attorney General’s Office as potential hearing officer

The Department offered, at rehearing, to use an assistant attorney general (AAG) as the hearing officer; Dean objected. The Court did not decide whether using an AAG would be appropriate. On remand, any selection of a new presiding officer must ensure actual and apparent neutrality. If an AAG is considered, the agency should implement strict separation between advocacy and adjudicative roles, with robust screening to avoid conflicts or the appearance of partiality. While New Hampshire law may permit such arrangements with safeguards, the safest course is a neutral decision-maker with no prior involvement in investigation, charging, or representation in the matter.

D. Due process considerations (context)

Although the Court grounded its holding in the Department’s own rule rather than constitutional due process, the decision aligns with longstanding due process principles requiring a neutral and detached decision-maker. The combination of functions is not per se unconstitutional, but when the same official serves as both charging authority and presiding adjudicator in a specific case, the risk of actual or apparent bias is acute. The opinion prudently resolves the case on non-constitutional grounds, exemplifying judicial restraint and ensuring agencies adhere to their own procedural protections.

E. What remains for resolution on remand

Because the Court did not reach the merits, the following questions are open for the new presiding officer:

• Whether Dean’s conduct at the Field Day violated the Instructors’ Code of Conduct under the Department’s rules and policies.
• Whether any proven violation caused a “negative impact” on the Hunter Education Program, and what that standard requires.
• The appropriate sanction, if any, proportionate to the conduct and consistent with program objectives and precedent.
• Any procedural or evidentiary issues Dean raised below but which were not decided by the Supreme Court.

The Supreme Court did not order reinstatement or address interim status; those matters may be clarified on remand or through agency practice. Parties should consider seeking clarification from the new presiding officer regarding the status of credentials pending the new hearing.

Complex Concepts Simplified

• Presiding officer: The official who conducts the administrative hearing—ruling on evidence, overseeing procedure, and issuing findings and a decision.
• Recusal for prejudgment: Withdrawal by a presiding officer when objective facts (not merely subjective views) show the officer has already made up his or her mind on disputed facts in the case. Here, signing the revocation letter and deciding to terminate the certification were objective indicators of prejudgment.
• “Charging document”: In administrative proceedings, the initial notice or letter informing a party of the alleged violation and proposed sanction. It functions like a charging instrument and is adversarial in nature.
• RSA chapter 541 appeal vs. certiorari: An RSA chapter 541 appeal is a statutory right of appeal from certain agency decisions; it exists only if the enabling statute authorizes it. Certiorari is a discretionary court review for legal errors when no statutory appeal exists, with a narrower scope of review.
• Certiorari standard: The Court examines whether the agency acted illegally, exceeded its authority, failed to follow the law, or acted arbitrarily, unreasonably, or capriciously, or unsustainably exercised its discretion.
• Preservation: To raise an issue on review, a party must raise it timely before the agency. Dean preserved her recusal objection by objecting before and after the hearing.

Conclusion

Petition of Dean establishes a clear rule for New Hampshire administrative adjudications: the same official who signs a revocation letter and makes the initial decision to terminate a credential cannot then sit in judgment as the presiding officer in the contested case that follows. Under N.H. Admin. R., Fis 203.02(b)(2), such dual roles constitute an objective demonstration of prejudgment and require recusal. The Court’s remedy—vacatur and remand for a new hearing before a different presiding officer—reaffirms the bedrock requirement of impartial decision-makers in agency proceedings.

The decision also clarifies that, in the absence of a statutory appeal provision (as with RSA 214:23-c), parties must seek review by petition for certiorari under Supreme Court Rule 11. Agencies should take heed: to preserve the integrity of their adjudicative processes, they must separate charging and adjudicative functions and honor their recusal rules. Practitioners should note the narrower, discretionary nature of certiorari and the importance of timely preservation of objections.

Key takeaways:

• Recusal is mandatory when the presiding officer’s prior role objectively shows prejudgment—signing the charging document suffices.
• No statutory appeal exists from Fish & Game volunteer instructor revocations; certiorari is the correct vehicle for review.
• Agencies should implement structural separation and clear procedures to ensure neutral adjudication.
• The merits of Dean’s alleged Code of Conduct violation remain to be resolved by a new, neutral hearing officer on remand.

In short, the Court’s opinion strengthens procedural fairness in New Hampshire administrative law and provides a practical roadmap for both agencies and litigants confronting similar disputes.