Petition of State of New Hampshire

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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


10th Circuit Court-Derry Family Division
No. 2022-0124


                PETITION OF THE STATE OF NEW HAMPSHIRE

                           Argued: October 4, 2022
                      Opinion Issued: December 16, 2022



      John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, attorney, on the brief and orally), for the State.

      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the respondent.

       DONOVAN, J. The State filed a petition for original jurisdiction
challenging an order of the Circuit Court (Zaino, J.) granting the respondent’s
motion to dismiss a juvenile delinquency petition. The trial court ruled that
the State failed to comply with RSA 169-B:6, IV(b) (2022) because no
“manifestation review” had occurred prior to the filing of the delinquency
petition. As we explain in greater detail in this opinion, the term
“manifestation review,” RSA 169-B:6, IV(b), in the context of a juvenile
delinquency petition resulting from conduct in a school setting by a student
with a disability, refers to a process whereby a school, the student’s parents,
and other parties review the student’s individualized education plan (IEP) and
other relevant information to determine whether the alleged misconduct
stemmed from the student’s disability or the school’s failure to implement the
student’s IEP. See 

(k)(1)(E).

      In support of its petition, the State argues that RSA 169-B:6, IV(b)
incorporates 

(k)(1)(E) in its entirety, including the provision
exempting a manifestation review in circumstances described in 

(k)(1)(B). We conclude that the trial court correctly determined that RSA
169-B:6, IV(b) is ambiguous, but the broader purpose of RSA chapter 169-B
supports the interpretation that RSA 169-B:6, IV(b) requires a manifestation
review in all instances prior to the filing of a delinquency petition. We therefore
hold that the phrase “a manifestation review pursuant to 

(k)(1)(E),” RSA 169-B:6, IV(b), incorporates only the procedural
requirements set forth in 

(k)(1)(E) regarding what constitutes a
manifestation review and not the exemption provision. Accordingly, we affirm.

                                      I. Facts

      The following facts are agreed upon by the parties or are otherwise
supported by the record. In October 2021, the respondent, at the time a
student at a New Hampshire school, allegedly struck a fellow student on the
back of the head during the school day. Consequently, the school suspended
the respondent for no more than ten days.

       Approximately two weeks later, the State filed a delinquency petition
charging the respondent with simple assault. RSA 169-B:6, IV requires the
State to obtain assurance from the school district that, prior to the filing of the
petition, if the child has a disability, “a manifestation review pursuant to 

(k)(1)(E) occurred.” The school confirmed that it had
suspended the respondent after the incident and identified the respondent “as
a child with a disability according to RSA 186-C:2, I,” but stated that “[a]
manifestation review [had] not been warranted.”

       In January 2022, the court held an adjudicatory hearing on the
delinquency petition. At that hearing, the respondent moved to dismiss the
petition based upon the school’s failure to hold a manifestation review, as
required under RSA 169-B:6. The State countered that a manifestation review
was unnecessary because RSA 169-B:6, IV(b) only requires a manifestation
review when 

(k)(1)(E) requires one, and the federal statute
exempts such reviews when a student is suspended for ten days or fewer as
described in 

(k)(1)(B).

      Thereafter, the trial court granted the motion without prejudice. It ruled
that “RSA 169-B:6, IV(b) require[s] a manifestation review as procedurally
described in 20 U.S.C. 1415(k)(1)(E) regardless of the duration of the
suspension or other exclusions potentially available under 20 U.S.C.


                                         2
1415(k)(1)(B).” In reaching this conclusion, the court first determined that the
term “pursuant to” as it appears in RSA 169-B:6, IV(b) is ambiguous. Next, the
court considered the purpose of the statute as stated in RSA 169-B:1 and our
decision in In re Russell C., 

 (1980), and ruled that the
statute’s purpose supported the respondent’s interpretation that RSA 169-B:6,
IV(b) requires a manifestation review in all circumstances. Subsequently, the
State moved for reconsideration, which the court denied. This petition seeking
review followed.

                                   II. Analysis

      This case raises a question of statutory interpretation. At issue is the
extent to which RSA 169-B:6, IV(b) incorporates 

(k)(1)(E). The
State contends that RSA 169-B:6, IV(b) incorporates subparagraph (E) of the
federal statute in its entirety, including the exemption provision in the first
clause of the statute. In contrast, the respondent contends that the reference
to subparagraph (E) in RSA 169-B:6, IV(b) is limited to the definition of what
constitutes a manifestation review and excludes the exemption provision.

      The interpretation of a statute presents a question of law that we review
de novo. See State v. Pinault, 

 (2015). In matters of statutory
interpretation, the intent of the legislature is expressed in the words of the
statute considered as a whole. See 

 We first look to the language of the
statute itself, and, if possible, construe that language according to its plain and
ordinary meaning. 

 We interpret legislative intent from the statute as
written and will not consider what the legislature might have said or add
language the legislature did not see fit to include. 

 We interpret statutes in
the context of the overall statutory scheme and not in isolation. 

 Moreover,
we construe all parts of a statute together to effectuate its overall purpose and
to avoid an absurd or unjust result. Petition of Carrier, 

(2013). This review enables us to interpret statutory language in light of the
policy or purpose sought to be advanced by the statutory scheme. 

 If a
statute is ambiguous, however, we consider legislative history to aid our
analysis. 

       We begin our analysis by setting forth the relevant statutory framework.
RSA 169-B:6, IV describes the information that a school district must provide
to a court prior to the juvenile’s initial appearance in cases of delinquency
petitions. It provides:

      When a school official, including a school resource officer assigned to a
      school district pursuant to a contract agreement with the local police
      department, or a local police department as a result of a report made by
      a school official or school resource officer, files a petition involving a
      minor with a disability pursuant to RSA 186-C, upon submission of a



                                        3
      juvenile petition, but prior to the child’s initial appearance, the legally
      liable school district shall provide assurance that prior to its filing:
               ...

              (b) If the school district has determined that the child is a child
                  with a disability, a manifestation review pursuant to 

(k)(1)(E) occurred.

RSA 169-B:6, IV(b) (emphases added).

       

(k)(1)(E), titled “Manifestation determination,” provides
the federal requirements for when and how to conduct a manifestation review.
This federal statute provides, in relevant part:

      Except as provided in subparagraph (B), within 10 school days of any
      decision to change the placement of a child with a disability because of a
      violation of a code of student conduct, the local educational agency, the
      parent, and relevant members of the IEP Team (as determined by the
      parent and the local educational agency) shall review all relevant
      information in the student’s file, including the child’s IEP, any teacher
      observations, and any relevant information provided by the parents to
      determine—

       (I) if the conduct in question was caused by, or had a direct and
      substantial relationship to, the child’s disability; or
       (II) if the conduct in question was the direct result of the local
      educational agency’s failure to implement the IEP.

(k)(1)(E)(i) (emphasis added). In turn, 

(k)(1)(B) authorizes a school to “remove a child with a disability who
violates a code of student conduct from their current placement to an
appropriate interim alternative educational setting, another setting, or
suspension, for not more than 10 school days.” As a result, when
subparagraph (E) is read in tandem with subparagraph (B), the federal statute
does not require a manifestation review for situations described in
subparagraph (B), including suspensions for ten days or fewer.

      RSA 169-B:6, IV requires the “legally liable school district” to assure the
court that prior to the filing of a delinquency petition, “a manifestation review
pursuant to 

(k)(1)(E) occurred.” As set forth in 

(k)(1)(E), a manifestation review determines whether a student’s
misconduct stemmed from the student’s disability. The review process engages
the school, parents, and members of the student’s IEP team to review the
student’s IEP and other relevant information and determine whether the
student’s disability or the school’s failure to implement the student’s IEP
caused the student’s misconduct. 

(k)(1)(E). If either one of


                                         4
these determinations is made, then the student’s conduct is considered to be a
manifestation of his or her disability. 

 If the conduct is a manifestation of
the student’s disability, then, depending on the student and the conduct at
issue, the school may conduct a behavioral assessment, utilize a behavioral
intervention plan, and return the student to his or her original educational
setting. 

(k)(1)(F); see RSA 169-B:6, IV(c) (providing that
schools should follow the process articulated in 

(k)(1)(F) if the
conduct was a manifestation of the child’s disability).

      Turning to the merits, both parties assert that the language of RSA 169-
B:6, IV is unambiguous and that a plain and ordinary reading of the statute
supports their respective interpretations. The parties disagree, however, as to
the extent that the state statute incorporates the federal law. Thus, the only
issue before us is whether RSA 169-B:6, IV incorporates 

(k)(1)(E) in its entirety, including the exemption set forth in
subparagraph (B), or whether the statute incorporates just the manifestation
review procedures set forth in subparagraph (E).

       The State observes that, as we ruled in Contoocook Valley School District
v. State of New Hampshire, 

, 164 (2021), “[t]he legislature’s intent
to incorporate by reference must be clear.” It then posits that “if the legislature
intends to incorporate a provision by reference to a limited extent only, it must
[also] make the extent to which it intends to limit the incorporation clear.”
Because the legislature unambiguously chose to incorporate the federal
statute, without limitation, the State maintains that the legislature intended to
incorporate 

(k)(1)(E) in its entirety, including its reference to
the exemption in subparagraph (B), into RSA 169-B:6, IV(b).

       The respondent counters that the plain language of RSA 169-B:6, IV
requires assurances that a manifestation review occurred whenever a school
official or school resource officer files or initiates the filing of a juvenile
delinquency petition alleging misconduct by a minor student with a disability.
With respect to the statute’s reference to the federal law, the respondent
maintains that this reference is limited to 

(k)(1)(E)’s
description of a manifestation review and the consequences of a manifestation
determination. The respondent observes that the question before us is not
whether the federal law requires assurances that a manifestation review
occurred, but whether RSA 169-B:6, IV required such assurances.

       Furthermore, the respondent argues that had the legislature intended to
require school districts to merely assure a court that schools had complied
with any federal obligation to conduct a manifestation review, then RSA 169-
B:6, IV(b) would have been phrased differently — to require that the school
districts comply with the process set forth in the federal law. In support of this
argument, the respondent observes that the language set forth in the very next
provision of RSA 169-B:6, IV includes language requiring assurance that, “[i]f


                                        5
the child’s conduct was determined to be a manifestation of the child’s
disability, the school district followed the process set forth in 

(k)(1)(F).” RSA 169-B:6, IV(c).

      We conclude that both parties’ respective constructions of RSA 169-B:6,
IV are reasonable and consistent with the statutory language. Similarly,
reasonable minds may disagree with our colleagues’ conclusion that the statute
unambiguously incorporates the federal exemption to the manifestation review
requirement. Accordingly, we rule that the statute is ambiguous as to the
extent that it incorporates the federal statute. See State v. Folds, 

, 524 (2019).

       We agree with the trial court that, when considered in light of the
purpose of RSA chapter 169-B as articulated in RSA 169-B:1, RSA 169-B:6,
IV(b) requires the legally liable school district to conduct a manifestation review
prior to the filing of the delinquency petition, regardless of the length of time
that the school suspended the student. Accordingly, we conclude that the
incorporation of 

(k)(1)(E) into RSA 169-B:6, IV(b) is limited to
the definition of what constitutes a manifestation review and does not include
the provision exempting situations described in 

(k)(1)(B).

       RSA 169-B:1 articulates the purpose of RSA chapter 169-B, which
governs delinquent children. It provides that RSA chapter 169-B “shall be
liberally interpreted” to effectuate the articulated purposes and policies. RSA
169-B:1. These purposes and policies include, inter alia: (1) encouraging the
minor’s “moral, mental, emotional, and physical development” by providing the
minor with necessary “protection, care, treatment, counselling, supervision,
and rehabilitative resources”; (2) “[c]onsistent with the protection of public
interest,” promoting the minor’s acceptance of personal responsibility and
appreciation of the consequences of the minor’s delinquent actions; (3) keeping
the minor, when possible, “in contact with the home community and in a
family environment” and only separating the minor and parents when “clearly
necessary for the minor’s welfare or the interests of public safety”; and (4)
providing “effective judicial procedures” and ensuring parties have a fair
hearing. RSA 169-B:1, I-IV.

       RSA chapter 169-B is part of a comprehensive juvenile justice system
that has as its primary concern the welfare of the child. In re Trevor G., 

 (2014). It guarantees children their constitutional rights, and
encourages the use of rehabilitative and treatment resources whenever
possible. Id.; see also In re Russell C., 

. We have stated that
the legislative purpose of the juvenile laws is not penal, but protective; that the
child shall not be punished for breach of law or regulation, but to provide the
child with an opportunity to become a worthy citizen. State v. Smagula, 

 (1977). The primary goal of the law is to treat and not to
punish. In re Russell C., 

.


                                         6
       Consistent with the legislative mandate, we construe the statute liberally
and interpret RSA 169-B:6, IV(b) to require a manifestation review in all
instances, which effectuates the statute’s purpose in several ways. See RSA
169-B:1; see also, e.g., Petition of State of N.H. (Disclosure of Juvenile
Records), 

, 499 (2019) (construing RSA chapter 169-B “liberally to
effect its purpose of rehabilitating delinquent minors”); State v. Smith, 

 (1984) (considering the purposes and policies in RSA 169-B:1 as
well as the mandate to liberally interpret RSA chapter 169-B). The
manifestation review prioritizes resolving a disabled student’s misconduct
within the educational setting by engaging parents, teachers, and the school
and utilizing alternative behavioral strategies, thus providing “treatment,
counselling, supervision, and rehabilitative resources” to encourage the
student’s “wholesome” development. See RSA 169-B:1, I; see also 

(k)(1)(E)-(F). If the manifestation review determines that the student’s
conduct was a manifestation of the student’s disability, the student, absent
special circumstances, is returned to his or her original educational setting,
thus “keeping a minor in contact with the home community and in a family
environment.” See RSA 169-B:1, III; see also 

(k)(1)(F)(iii).

       Moreover, requiring a manifestation review in all instances under RSA
169-B:6, IV(b) achieves another principal goal of the juvenile delinquency
statute: “to create procedural safeguards sufficient to protect individual rights
against the vicissitudes of unlimited discretion.” In re Trevor G., 

; see also RSA 169-B:1, IV; In re Russell C., 

 (interpreting
the juvenile delinquency statute to impose a mandatory time limit that favors
the juvenile based on the legislature’s concern for procedural due process).
Because the school unilaterally decides the duration of the student’s
suspension, to interpret the statute otherwise would essentially allow a school
unlimited discretion to determine the amount of process that a student with a
disability receives in those cases in which a delinquency petition is filed. If the
school removes the student from the student’s educational setting for ten days
or fewer, then the student would not receive a manifestation review, but if the
school removes the student for more than ten days, then the student would
receive one. See 

(k)(1)(B), (E). We conclude that the
legislature did not intend to grant school districts that degree of discretion.

       Our interpretation is further supported by the fact that, as both parties
agree, the legislature enacted RSA 169-B:6, IV at a time when school districts
frequently referred disabled students to the juvenile justice system for
discipline rather than internally addressing the student’s misconduct. Denying
a student with a disability a manifestation review if he or she is removed from
his or her education setting for ten days or fewer would encourage school
districts to limit the duration of suspensions rather than address the problem
that the legislature sought to remedy in enacting RSA 169-B:6, IV.



                                         7
                                 III. Conclusion

       For the foregoing reasons, we affirm and hold that whenever a
delinquency petition is to be filed pursuant to RSA 169-B:6, IV(b) and the
legally liable school district has determined that the child is a child with a
disability according to RSA 186-C:2, I, then a manifestation review must be
performed prior to the filing of the delinquency petition. Of course, if the
legislature disagrees with our construction of RSA 169-B:6, IV, it is free, within
constitutional limits, to amend the statute accordingly.

                                                   Affirmed.

    HICKS and BASSETT, JJ., concurred; MACDONALD, C.J., and HANTZ
MARCONI, J., dissented.


      MACDONALD, C.J., and HANTZ MARCONI, J., dissenting. Because we
disagree with the majority that RSA 169-B:6, IV(b) (2022) is ambiguous, we
respectfully dissent.

       RSA 169-B:6, IV sets forth the information that a school district is
required to provide to the trial court before a juvenile’s initial appearance in a
case involving a delinquency petition. Under the statute, “the legally liable
school district shall provide assurance that prior to its filing” of the
delinquency petition, “[i]f the school district has determined that the child is a
child with a disability, a manifestation review pursuant to 

(k)(1)(E) occurred.” RSA 169-B:6, IV(b) (emphasis added). The ordinary
meaning of “pursuant to” is “[f]ollowing upon, consequent and in conformance
to; in accordance with.” Oxford English Dictionary,
https://www.oed.com/view/Entry/155073?redirectedFrom=pursuant#eid (last
visited Nov. 18, 2022).

       In accordance with section 1415(k)(1)(E) of the federal law, “[e]xcept as
provided in subparagraph (B),” a manifestation review is required to take place
“within 10 school days of any decision to change the placement of a child with
a disability because of a violation of a code of student conduct.” 

(k)(1)(E). Subparagraph (B) creates an exception to the manifestation
review requirement when a school has removed “a child with a disability who
violates a code of student conduct from their current placement to an
appropriate interim alternative educational setting, another setting, or
suspension, for not more than 10 school days.” 

(k)(1)(B).
Accordingly, under RSA 169-B:6, IV(b), “a manifestation review pursuant to 

(k)(1)(E)” need not occur if a child with a disability is
suspended for “not more than 10 school days.” RSA 169-B:6, IV(b); 

(k)(1)(B), (E).


                                        8
       The majority’s determination that “the phrase ‘a manifestation review
pursuant to 

(k)(1)(E)’” in RSA 169-B:6, IV(b)
“incorporates only the procedural requirements set forth in 

(k)(1)(E) regarding what constitutes a manifestation review and not the
exemption provision” misapplies our rules of statutory construction. Under
such rules, we “give effect to every word of a statute whenever possible . . . and
will not consider what the legislature might have said or add language that the
legislature did not see fit to include.” In re J.P., 

, 460 (2020)
(citations omitted). In RSA 169-B:6, IV(b), the legislature plainly directed
without limitation that a manifestation review occur in accordance with federal
law. Nonetheless, the majority reads out of the federal statute the phrase
“[e]xcept as provided in subparagraph (B).” Although the legislature could have
said that only the procedural requirements set forth in the federal statute
apply, it did not do so. As the majority suggests, there may be worthy policy
rationales for so limiting the application of section 1415(k)(1)(E). But, we are
constrained to apply the words the legislature actually used.

       Given that the language of RSA 169-B:6, IV(b) unambiguously expresses
the legislature’s directive to incorporate the federal exemption to the
manifestation review requirement and that the respondent in this case was
suspended for not more than ten school days, we would reverse the trial court’s
order granting the respondent’s motion to dismiss. Accordingly, we
respectfully dissent.




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