THE STATE OF NEW HAMPSHIRE
SUPERIOR COURT
CHESHIRE, SS 213-2011-CV-00337
LORETTA SIMONDS
v.
MARLBOROUGH BOARD OF SELECTMEN
ORDER ON PETITIONER'S MOTION FOR CONTEMPT
AND ON RESPONDENT'S COUNTERCLAIM
The petitioner, Loretta Simonds, has brought a motion for contempt against the Town of Marlborough Board of Selectmen (also "Board" or "Respondent").1 Simonds asserts that the Board of Selectmen has violated this Court's January 31, 2012 order which had found that the Board had acted in violation of the Right-to-Know Law, RSA chapter 91-A, and which had enjoined the Board from further violations of the Right-to-Know Law. The Board denies that it has violated the order. The Board has also filed a counterclaim seeking [2] the return of non-public meeting minutes that were released to Simonds and seeking to enjoin Simonds from discussing those minutes.
A hearing on these matters was held on December 7, 2012 and February 22, 2013. Subsequently, a number of post-hearing pleadings were filed. Simonds' motion for contempt and the Board's counterclaim will be addressed in turn.2
I. Petitioner's Motion for Contempt
Petitioner Simonds asserts that the Board has done or failed to do the following in violation the Court's January 31, 2012 order: improperly held nonpublic meetings, communicated outside of public meetings, made decisions outside of public meetings, held indiscernible and inaudible meetings, made false statements at meetings, kept inaccurate minutes, failed to make documents immediately available, failed to timely respond to requests for documents, and breached confidentiality by releasing non-public meeting minutes to her.
As a preliminary matter, the Court notes that Simonds' claims of contempt are civil in nature. "The two classes of contempt, civil and criminal, are distinguishable by the character and purpose of the punishment imposed." Mortgage Specialists, Inc. v. Davey, 153 N.H. 764, 787 (2006). "In civil contempt, the purpose of the punishment is remedial, coercive, and for the benefit of the plaintiff." Id. "The purpose of criminal contempt, however, is [3] punitive and to vindicate the 'authority and dignity' of the court." Id. (quoting Bonser v. Courtney, 124 N.H. 796, 808 (1984)). Furthermore, because all of the claims allege instances that occurred outside of the presence of the Court, they would allege indirect contempt. See id. ("An indirect contempt is committed outside the presence of the court and without the judge having full personal knowledge of every element of the contempt.").
In considering contempt issues, the Court would need to determine whether or not a party has failed to comply with the Court's orders. Additionally, the Court may also consider whether or not the non-compliance may have been contumacious. Nottingham v. Bonser, 131 N.H. 120, 132 (1988).
Petitioner has submitted an article from the Keene Sentinel in support of her assertion that the Board of Selectmen may not be sufficiently accepting of the Board's obligations under the Right-to-Know Law. Respondents submit that the article is not relevant to the present proceedings.
While the document appears to constitute hearsay, it may be admitted for consideration as an admission of a party opponent. N.H. Rule Ev. 801(d)(2). Additionally, the document itself would be considered as self-authenticating. N.H. Rule Ev. 902(6).
The Court concludes that the article is relevant to the extent that the compliance intent of the parties may be in issue. However, whether or not a party may be enthusiastic about a Court order is not particularly relevant, so long as the order is being followed.
[4] A. Scope of Order
Before turning to the merits of Simonds' contempt claims, the Court will address the Board's argument that several of the claims are not properly before the Court. The Board submits that certain of Simonds' claims fall outside the scope of the Right-to-Know Law, and, therefore, are not property before the Court. Specifically, the Board points to Simonds' claim that the Board had violated RSA 32 (Municipal Budget Law) and RSA 42:1-a (Breach of Confidentiality). Simonds' acknowledges that some of her claims "might not be Right-to-Know violations in themselves," but argues that "the failure to adhere to the law shows the casual approach the board takes towards legal requirements of their positions as public officials." (Motion for Contempt 3, hereinafter "Mot.")
In its January 31, 2012 order, the Court had declined to address Simonds' argument that the Board had violated the municipal budget law. See Order at 19 ("A challenge under the Right-to-Know Law is not the proper vehicle with which to contest appropriations[.]"). The Court noted the different purposes of the two statutes and pointed out that the municipal budget law provided a separate private right of action. See id. Similarly, the Court finds that allegations of a violation of RSA chapter 42, Oaths of Town Officers, fall outside the scope of the Right-to-Know Law. The Court notes that RSA chapter 42 provides for a separate remedy by petition to the Superior Court. See RSA 42:1-a ("The manner of dismissing a town officer who violates the oath as set forth in RSA 42:1 shall be by petition to the superior court for the county in which the town is located.)
[5] In as much as these claims were not addressed by the Court in its January 31, 2012 order, they are not properly the subject of Simonds' contempt motion. The Court will address claims that were within the scope of its January 31, 2012 order; that is, claims that involve asserted violations of the Right-to-Know Law.
The Board also asserts that Simonds lacks standing to bring claims on behalf of Robert Cameron ("Cameron"). To determine whether a party has standing, the Court must determine "whether the party suffered a legal injury against which the law was designed to protect." Libertarian Party of N.H. v. Sec'y of State, 158 N.H. 194, 195 (2008). "The requirement that a party demonstrate harm to maintain a legal challenge rests upon the constitutional principle that the judicial power ordinarily does not include the power to issue advisory opinions." Id. at 195-96. RSA 91-A:7 provides for a private right of action by "[a]ny person aggrieved by a violation of this chapter." Simonds has not demonstrated sufficient grounds for bringing these claims on Cameron's behalf, nor has she alleged or established that she has been personally aggrieved by the Board in regard to Cameron-related claims.
As the Court finds that Simonds does not have standing to bring these claims on Cameron's behalf, the Court will not address the claims Simonds makes on behalf of Cameron. Simonds' remaining claims fall into several distinct categories, which will be discussed below.
1. Improper meetings
[6] Simonds submits that on several occasions the Board held meetings that were improper or unlawful under the Right-to-Know Law. A meeting under Right-to-Know law "means the convening of a quorum of the membership of a public body ... for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power." RSA 91-A:2, I. The Right-to-Know Law exempts from the definition of a meeting "[a] chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters." Id.
Simonds asserts that the Board had improperly met with a Mr. Foxtree following a February 9, 2012 Board meeting. (Mot. 4) Selectmen Northcott and Paight testified that they did not specifically remember meeting with anyone by that name; however, they acknowledged that it is common for members from the community to approach individual Board members after a meeting to ask quick questions or to make comments. The Court is not persuaded that limited and casual interactions between individual Board members and the public that may occur after Board meetings are unlawful. Simonds has not shown that a quorum of the Board had met with Mr. Foxtree nor has she shown that at the asserted interchange any matter within the Board's control was discussed or acted upon. See RSA 91-A:2, I. Accordingly, the Court does not conclude that the Board had held a meeting with Mr. Foxtree in violation of the Right-to-Know Law.
Next, Simonds alleges that the Board had improperly met to discuss certain petitioned Town Meeting warrant articles.3 (Mot. 5) Simonds believes [7] that the Board must have met to discuss the petitioned warrant articles because notations following the warrant articles in the Town Report state whether a warrant article was recommended by the Board. (Mot. 6)
The Court does not find that these notations establish that the Board had held an improper meeting. LaPlante testified that she prepares the warrant articles for the public to view and that the proposed warrant articles are signed off individually by the Selectmen without a meeting. Simonds has not presented evidence that the Board met to discuss these articles. See RSA 91-A:2, I. The Court does not conclude that the Board had improperly held a meeting to discuss the warrant articles under the Right-to-Know Law.
Next, Simonds alleges that the Board met outside of a public meeting to write her a letter concerning an inquiry she had made about the number of members that should be on the Town of Marlborough Planning Board. The letter was signed by Paight, who had then been serving as the Board of Selectmen's Chair. Paight testified that she had written the letter to Simonds on her own, without discussing the issue with the rest of the Board. Because the evidence presented on this issue does not indicate that the Board had met on this issue, the Court does not find that a meeting had been held. See RSA 91-A:2, I.
Simonds also asserts that the Board appears to have met outside of a public meeting to discuss peddler permits. Simonds bases this concern on a statement made by Harris at a May 21, 2012 meeting. Harris had said in regard to a peddler permit: "That's the only one I remember you [Northcott] telling us about." Simonds asserts that this statement indicates that the Board had met [8] outside of a public meeting to discuss the permits. Harris testified that she had been referring to a comment Northcott made earlier at the same meeting. Simonds acknowledged that she may have arrived late to the meeting, and the minutes reflect that she came in late. The Court concludes that Simonds has not established that the Board met in violation of the Right-to-Know Law to discuss peddler permits.
2. Inaudible meetings and inaccurate minutes
Petitioner Simonds submits that aspects of the Board's meetings are inaudible and indiscernible in violation of RSA 91-A:2, III(c). That statute provides, in relevant part: "Each part of a meeting required to be open to the public shall be audible or otherwise discernable to the public at the location specified in the meeting notice as the location of the meeting."
Simonds alleges that the purpose behind the Right-to-Know Law has been contravened by the Board because "[i]t is difficult to hear whispering, soft speaking conversations or to understand incomplete communication and unexplained non-verbal communication during the meetings." (Mot. 10) She writes that "[i]n effect, this manner of conducting meetings allows the board to hold secret meetings in public view." (Mot. 12) At hearing, Simonds showed the Court several video-recordings of meetings, which she asserts demonstrate these issues.
The purpose of the Right-to-Know Law "is to ensure both the greatest possible public access to the actions, discussions and records of all public [9] bodies, and their accountability to the people." RSA 91-A:1. Although the Court is sympathetic to Simonds' complaint that she might not be able to discern everything that is taking place the meetings, Simonds acknowledges that the Board does inform her of their actions whenever she inquires. The Court does not conclude that Simonds has established that the Board has engaged in a violation of the Right-to-Know Law by the manner in which the Board conducts its meetings.
Next, Simonds' asserts that the meeting minutes are not accurate. (Mot. 10-12). Simonds submits that certain details were left out of the minutes, and other details were not accurately recorded in the minutes, concerning meetings held on April 2, 2012; April 30, 2012; and May 21, 2012. (Id.) The Court considered evidence relating to the alleged omissions and inaccuracies. The Court concludes that the minutes comport with standards required by the Right-to-Know Law.
The Right-to-Know Law requires that minutes be taken at public meetings. See RSA 91-A:2, II ("Minutes of all such meetings, including names of members, persons appearing before the public bodies, and a brief description of the subject matter discussed and final decisions, shall be promptly recorded and open to public inspection not more than 5 business days after the meeting[.]") The meeting minutes must include:
(1) The names of the members present;
(2) The names of people appearing before the body;
(3) A brief description of each subject discussed; and
(4) A description of all final decisions made, including all decisions to meet in non-public session. "Final decisions" include actions on all motions made, even [10] if the motion fails. A clear description of the motion, the person making the motion, and the person seconding the motion should also be included.
Attorney General's Memorandum on New Hampshire's Right-to-Know Law, RSA Chapter 91-A, at 17 (July 15, 2009); see also RSA 91-A:2, II. As the Court had noted in its January 31, 2012 order, "[t]he minutes do not need to be a stenographic or verbatim record of the meeting...." Order at 44 (citing id.).
Simonds submits as an example that the May 21, 2012 minutes make it appear as if a Mr. Iselin and a Mrs. Shepardson had been present at a Board of Selectmen's meeting when they were not. This could be construed as a claim that the minutes did not accurately record the names of those persons appearing before the body. See RSA 91-A:2, II.
At trial, LaPlante testified about her process for recording who had been present at a meeting. LaPlante records the names of those present in two ways: she lists the names of the persons present at the meeting at the beginning of the minutes, and, in addition, indicates the names of those addressing the Board in bold typeface and the approximate time they spoke. The May 21, 2012 minutes indicate: "6:40PM - Mrs. Butler - Mrs. Butler, Mrs. Shepardson and Mr. Iselin would like to put a garden plot for the school children at the lower ball field. This was denied. Several other locations were discussed. Mrs. Butler will review these[] with Mr. Duncan." (emphasis in original).
Although the Court understands Simonds' concerns, on balance, the Court concludes that the minutes met the minimum requirements of the Right-to-Know Law. See RSA 91-A:2, II.
[11] 3. Document requests
Simonds alleges that the Board had failed to provide her with documents that she had requested. Subject to narrow exceptions, the Right-to-Know Law provides that "[e]very citizen ... has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies[.]" RSA 91-A:4, I. Generally, if documents are not immediately available for inspection, a public entity must respond to a request for documents within five business days:
Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.
RSA 91-A:4, IV. The Board, similarly, would have five days to respond to a request for minutes. RSA 91-A:2, II.
Simonds alleges that the Board did not adequately respond to her requests for documents regarding warrant article 12. (Mot. 6) Evidence was presented at hearing that Simonds made multiple requests related to this warrant article, first seeking minutes at which the Board discussed the article, and, later, seeking all communications regarding the article that had taken place between February 1, 2012 and March 13, 2012. Simonds submits that the Board first [12] provided her with materials that were unresponsive to her request, and, subsequently, inaccurately informed her that the information she sought did not exist.
The Court finds that the Board responded to her requests regarding warrant article 12 in a permissible manner. Petitioner has not established that the Board has withheld documents from Simonds related to warrant article 12.
Next, Simonds asserts that the Board did not adequately respond to her request to review Board minutes from the years 1960 through 2009. (Mot. 15) Simonds was notified in writing that the minutes from 1980 through the present had been located and were available for her to review, including electronic copies of all of the minutes since 2002. However, Simonds has not been able to review the minutes from 1960-1979. LaPlante testified that despite a reasonably diligent search minutes from that period cannot be located. While the records for that period have not been located, there has been no evidence presented that the records had been knowingly disposed of in order to prevent inspection.
Next, Simonds submits the Town did not provide her access to requested materials concerning Town Policies. (Mot. 16) By letter dated February 3, 2012, Simonds had requested that the Board "provide [her] with a copy of the Town's policies or By-Laws. These should be the rules by which the town is governed." LaPlante responded by letter dated February 6, 2012 stating that "the Town is not capable of responding to the request because i[t] fails to reasonabl[y] describe what is sought. If you wish to come into town hall and inspect any and all rules, ordinances, by-laws, policies, etc, that may be here, please contact the [13] office and make arrangements to do so." At hearing, Simonds testified that she did inspect a book labeled "Town Policies." However, her argument is that she had been denied timely access to it.
LaPlante's February 6, 2012 correspondence indicated that Simonds' could personally inspect any of the Town's by-laws or policies by coming to town hall. Whether or not Simonds' request had been "reasonably described" under RSA 91-A:4, IV, the Court concludes that the Board had timely made the records available to her.
B. Conclusion Concerning Petitioner's Motion for Contempt
The Court concludes that petitioner has not established lack of compliance on the part of the Town with regard to the matters asserted in her initial motion for contempt. However laudable the policies which petitioner advocates might be, petitioner has not established that the Board has failed to meet the requirements of the Right-to-Know Law and related case-law. Accordingly, the petitioner's initial motion for contempt is denied.
The Court rules on the Board's request for findings of fact and rulings of law with regard to Simonds' motion for contempt, as follows:
GRANTED: 1, 2, 3, 4, 5, 6, 7, 8, 9 (Whether or not there was an interaction between the public and members of the Board after an meeting would not give rise to a violation of the Right-to-Know law), 10, 11, 12, 14, 15, 17, 18, 19, 20, 21 (strike "First"), 22, 23 (strike "Second"), 24, 27, 2[8] ("those meetings were sufficiently audible and discernible"), 29, 30 ("meetings were sufficiently [14] accurate"), 32, 33, 34, 35, and 36. DENIED: N/A. SEE DECREE: 1[3], 16, 25, 26, and 37.
II. Respondent's Counterclaim
The Board has brought a counterclaim against Simonds asserting that she is wrongfully retaining non-public sealed minutes. The minutes had been inadvertently provided to Simonds by LaPlante when the Board responded to Simonds' request for the Board's electronically stored minutes. While transferring the electronically stored public minutes, LaPlante transferred the sealed non-public minutes as well.4
The Board requests two forms of relief in its counterclaim. First, it seeks the return of the sealed minutes. Second, it requests that Simonds to be enjoined from discussing the content of the sealed minutes with others.
The first part of the Board's request appears to have largely resolved itself. At the hearing, Simonds represented that she would destroy the electronic minutes in her possession. If Simonds still retains any copy of the non-public minutes when this order is issued, the petitioner shall immediately return any physical copies of the minutes to the Board and shall destroy any electronic copy of the minutes that she retains.
The Board's request for an order directing Simonds to not discuss the content of the sealed non-public minutes can create issues concerning prior restraints on communications. "In cases involving alleged prior restraint of speech, the trial court must consider whether publication threatens an interest [15] more fundamental than the First Amendment itself." Mortgage Specialists v. Implode-Explode Heavy Indus., 160 N.H. 227, 240 (2010) (quotation and brackets omitted). "Only if a plaintiff can meet this substantially higher standard can a court issue an injunction prohibiting publication of pure speech." Id. As the Board has not argued that its interest in non-disclosure of the content of the non-public minutes meets this standard, the Court will not address the issue of a prior restraint here.
The Court rules on the Board's request for findings of fact and rulings of law with regard to its counterclaims, as follows:
GRANTED: 1, 2, 3 ("The Plaintiff did not notify the Defendant"), 4 (the minutes themselves have not been disclosed), 5 (strike "promptly"), 7, and 9. DENIED: N/A. SEE DECREE: 6, 8, and 10.
SO ORDERED.
1 The Board consists of three elected members: Gina Paight ("Paight"), John Northcott ("Northcott"), and Beverly Harris ("Harris"). Harris has been on the Board since March 2012; her position was previously held by Lawrence Robinson ("Robinson"). Sandy LaPlante ("LaPlante") is the Board's administrative assistant, a position which she has held for over ten years.
2 Subsequent to the hearing, petitioner filed a further motion to amend regarding the Board's review of manifests. This order does not address that motion.
3 To the extent that Simonds argues the Board violated RSA 32, the Court will not address these claims because, as explained above, they are not properly before the Court.
4 The Court has been provided with a copy of the non-public minutes, which will be kept sealed, subject to the provisions of the Court's order of March 15, 2013.