HB 362-FN - AS INTRODUCED

2023 SESSION

23-0218

04/08

HOUSE BILL 362-FN

AN ACT relative to complaint procedures in cases before the commission for human rights.

SPONSORS: Rep. McLean, Hills. 15; Rep. M. Smith, Straf. 10; Rep. DiLorenzo, Rock. 10

COMMITTEE: Judiciary

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ANALYSIS

This bill provides that only the complainant can remove a case from the state commission for human rights to court.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

23-0218

04/08

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Three

AN ACT relative to complaint procedures in cases before the commission for human rights.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1  State Commission for Human Rights; Complaint Procedures; Choice of Forum.  Amend RSA 354-A:21-a, I-II to read as follows:

I.  [Any party] A complainant alleging to be aggrieved by any practice made unlawful under this chapter may, at the expiration of 180 days after the timely filing of a complaint with the commission, or sooner if the commission assents in writing, but not later than 3 years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both, in the superior court for the county in which the alleged unlawful practice occurred or in the county of residence of [the] either party.  [Any party alleged to have committed any practice made unlawful under this chapter may, in any case in which a determination of probable cause has been made by the investigating commissioner, remove said complaint to superior court for trial.]  A court in cases so removed may award all damages and relief which could have been awarded by the commission, except that in lieu of an administrative fine, enhanced compensatory damages may be awarded when the court finds the respondent's discriminatory conduct to have been taken with willful or reckless disregard of the [charging party's] complainant's rights under this chapter.  A superior court trial shall not be available to [any party] the complainant if a hearing before the commission has begun or has concluded pursuant to RSA 354-A:21, II(b), or to a complainant whose charge has been dismissed as lacking in probable cause who has not prevailed on an appeal to superior court pursuant to RSA 354-A:21, II(a).  In superior court, either party is entitled to a trial by jury on any issue of fact in an action for damages regardless of whether the [complaining party] complainant seeks affirmative relief.

II.  The [charging party] complainant shall notify the commission of the filing of any superior court action[, and the respondent shall notify the commission of the removal to superior court after a finding of probable cause].  After such notice, the commission shall dismiss the complaint without prejudice.  A [party] complainant electing to file a civil action with the superior court under paragraph I shall be barred from bringing any subsequent complaint before the commission based upon the same alleged unlawful discriminatory practice.

2  State Commission for Human Rights; Complaint Procedures.  Amend RSA 354-A:21, II(a) to read as follows:

II.(a)  After the filing of any complaint, one of the commissioners designated by the chair shall make, with the assistance of the commission's staff, prompt investigation in connection therewith; during the course of the investigation, the commission shall encourage the parties to resolve their differences through settlement negotiations; and if such commissioner shall determine after such investigation that probable cause exists for crediting the allegations of the complaint, the commissioner shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion.  The members of the commission and its staff shall not disclose what has occurred in the course of such endeavors, provided that the commission may publish the facts in the case of any complaint which has been dismissed, and the terms of conciliation when the complaint has been so disposed of.  When the investigating commissioner finds no probable cause to credit the allegations in the complaint, the complaint shall be dismissed, subject to a right of appeal to superior court.  To prevail on appeal, the moving party shall establish that the commission decision is unlawful or unreasonable by a clear preponderance of the evidence.  The findings of the investigating commissioner upon questions of fact shall be upheld as long as the record contains credible evidence to support them.  If it reverses the finding of the investigating commissioner, the superior court shall remand the case for further proceedings in accordance with RSA 354-A:21, II, unless the complainant [or respondent] elects to proceed with a hearing in superior court pursuant to RSA 354-A:21-a.

3  Judicial Review and Enforcement; Complainant.  Amend RSA 354-A:22, II to read as follows:

II.  Such proceeding shall be initiated by the filing of a petition in such court, together with a written transcript of the record upon the hearing before the commission in the case of a petition for judicial review, and issuance and service of a summons as in proceedings in equity.  The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript an order or decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the commission, with full power to issue injunctions against any respondent and to punish for contempt of court.  No objection that has not been urged before the commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.  In petitions to enforce commission orders, the court may, in its discretion, award the [complaining party] complainant reasonable attorney's fees and costs.

4  Effective Date.  This act shall take effect 60 days after its passage.

LBA

23-0218

1/4/23

HB 362-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to complaint procedures in cases before the commission for human rights.

FISCAL IMPACT:      [ X ] State              [    ] County               [    ] Local              [    ] None

METHODOLOGY:

This bill provides that only the complainant can remove a case from the state Human Rights Commission to court.  The New Hampshire Human Rights Commission indicates this bill seeks to change current law to retain respondents at the Commission through the adjudication of a public hearing.  The Commission states the fiscal impact is indeterminable at this time because it is unknown how many cases will move forward to a public hearing or elect to settle as a result of the legislation.  The Commission has no information at present to determine if additional resources or staff will be needed.

The Judicial Branch does not expect this bill would have a fiscal impact on the Branch.  The bill would provide that only the complainant can remove a case from the state Human Rights Commission to the Superior Court.  Current law allows any party to remove the case. In 2022, there were 22 cases filed in Superior Court, and 15 cases in 2021.  The Branch assumes the bill would result in a small change in the number of cases removed from the Human Rights Commission to Superior Court, but the Branch does not believe it would have either a positive or negative fiscal impact.

AGENCIES CONTACTED:

New Hampshire Human Rights Commission and Judicial Branch