v. McLeod, Doc. No. 215-2008-E-192 (Grafton Super. Ct., December 23, 2008) (Vaughan, J.)

Pages: 1 2 3 4 5 6 7 8




No. 08-E-192, Christopher King


Martha McLeod, Terie Norelli, Town of Franconia, Police Chief Mark Montminy, and Kelly


Having reviewed the pleadings extensively, the Court cannot discern the precise nature of the dispute giving rise to this action. The petitioner's allegations relate generally to his belief that he has been denied access to public records in violation of RSA 91-A and his constitutional rights. Now pending are: (1) Motion to Dismiss of Defendant Terie Norelli (doc. 11); (2) Motion to Dismiss Amended Petition filed by Martha McLeod, Terie Norelli, and Kelly Ayotte (doc. 12); and (3) Defendants Chief Mark Montminy and the Town of Franconia's Motion to Dismiss (doc. 14). For the following reasons, each of these motions is GRANTED.

I. Standard of Review

In reviewing a motion to dismiss, the Court must determine whether the allegations contained in the pleadings are reasonably susceptible of a construction that would permit the granting of relief. Plourde Sand & Gravel v. JGI Eastern, 154 N.H. 791, 793 (2007). The factual allegations in the complaint are taken as true and all reasonable inferences drawn from the factual allegations are construed most favorably to the complaining party. Graves v. Estabrook, 149 N.H. 202, 203 (2003). The Court then engages "in a threshold inquiry that tests the facts in the complaint against the [2] applicable law." Berry v. Watchtower Bible & Tract Soc., 152 N.H. 407, 410 (2005) (quotation omitted). "If the facts as alleged would constitute a basis for legal relief, the motion to dismiss should be denied." Starr v. Governor, 148 N.H. 72, 73 (2002).

II. Factual Background

Petitioner Christopher King appears to have initiated this suit in response to a proposed bill ("HB 1428") in the New Hampshire State House of Representatives that would have renamed a portion of Interstate 93 after Bruce McKay, a Franconia Police Corporal who was fatally shot in 2007. King states that State Representative McLeod was a sponsor of HB 1428. King claims that he has written to the State Representatives McLeod and Norelli to ask for copies of emails from their personal and state email addresses that pertain to HB 1423.1

King also contends that he has attempted to obtain complaints against Corporal McKay and minutes regarding McKay's termination, but that these materials have not been provided by the Town of Franconia. Much of King's complaint discusses concerns he has that the shootings that resulted in Corporal McKay and another individual's death were not properly investigated. He takes the position that the public has a right to know what exactly occurred. King complains that he has not been able to access toxicology reports and other forensic evidence. He details what he believes are discrepancies between the evidence and reports regarding the shootings. He claims that Attorney General Ayotte has refused to provide evidence of whether McKay had gunpowder [3] residue on his hands and whether McKay was taking prescription medication. King blames Attorney General Ayotte and the Town of Franconia for failure to investigate.2

The claims raised fall into three general categories: (1) that State Representatives McLeod and Norelli have not made information regarding HB 1428 available in response to requests; (3) that Attorney General Ayotte has not properly investigated the shootings and that RSA 611-B:21, which limits disclosure of autopsy and investigative reports, is unconstitutional; and (2) that the Town of Franconia and Police Chief Montminy have not made information regarding Corporal McKay's employment and the shootings available in response to requests.

III. Discussion

State Representatives McLeod and Norelli

Pursuant to RSA 91-A:4,3 "[e]very citizen during the regular or business hours of all [public] bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records." Id. at 91-A:4, I. Upon request, a "public body or agency" must make public records reasonably described available for inspection and copying. Id. at 91-A:4, IV.

Assuming the allegations set forth in the petition are true, King is complaining that he wrote emails directly to the representatives demanding that they turn over their individual emails. King fails to state any legal basis for such demands. RSA 91-A:4 does [4] not require individual legislators or government officials to personally make documents available. Rather, it imposes an obligation on public bodies and agencies to make records available at their business premises during business hours. King has failed to allege that he made lawful a request to a public body or agency and received no response. Representatives McLeod and Norelli have no legal obligation to respond to King's emails.

The Court also notes that prior to July 1, 2008, there was no provision making the emails at issue available to the public. The emails at issue were not "public proceedings" within the meaning of RSA 91-A:1-a, nor were they records of public proceedings. As these respondents explain in their motion to dismiss, the emails at issue also did not constitute meetings because they did not convene a quorum of a public body. See id. at 91-A:2, I.4

With respect to State Representatives McLeod and Norelli, the Amended Complaint does not set forth facts that could establish a proper RSA 91-A document request that has been ignored. King has fails to state a claim against either respondent.

Attorney General Ayotte

Attorney General Ayotte "is being sued in her official capacities in order to settle New Hampshire law." (Am. Complaint at ¶ 5.) King claims that this suit is filed pursuant to RSA 91-A and RSA 611-B:21. He apparently seeks toxicology reports, autopsy reports, and other information pertaining to the investigation of circumstances surrounding Corporal McKay's shooting.

[5] While King makes reference to the right-to-know, he does not cite a provision of RSA 91-A that Attorney General Ayotte has violated. There is no allegation that King has been denied access to a meeting that should have been open to the public or that he has made a statutory request for documents which has been ignored. King fails to state a claim upon which relief can be granted under RSA 91-A.

With respect to the constitutionality of RSA 611-B:21, the Court finds, as the motion to dismiss argues, that King lacks standing. "The general rule in this State is that a party has standing to raise a constitutional issue only when his own personal rights have been or will be directly and specifically affected." Petition of Burling, 139 N.H. 266, 272 (1994) (quotation omitted). To have standing, King must have a personal stake in the outcome of the proceedings, meaning the proceedings will directly affect his legally protected interests. See 59 Am. Jur. 2d Parties § 34 (2002).

King has failed to identify a legally protected interest. He states that RSA 611-B:21 interferes with his rights under the right-to-know law. As the Court has already explained, King has not pled facts that could support a finding that he has filed a proper right-to-know request to which Attorney General Ayotte has not responded. Accordingly, at this juncture, he is asking the Court to resolve a constitutional question that does not implicate his personal legal interests. He has no standing to raise this Constitutional question. Because King lacks standing, the Court has no subject matter jurisdiction over this constitutional claim and it must be dismissed.

Town of Franconia and Police Chief Montminy

King complains that the Town has refused to provide citizen complaints against Corporal McKay and minutes of a discussion regarding termination of McKay. He states [6] that he made a request for materials on July 22, 2008, and received no answer until August 1, 2008. In their motion to dismiss, the Town and Police Chief Montminy state that the first requests were made on June 28, 2008. The exact dates are of little substantive significance, but the Court will assume that the dates given by King are correct and these requests for materials were made after July 1, 2008, meaning they under the amended version of RSA 91-A.

King apparently emailed the Town, requesting all citizen complaints against police officers from January 1, 1997 through February 21, 2006.5 He also sought information regarding discussion of Corporal McKay's termination. Assuming the facts set forth are true, King has not made a proper RSA 91-A request for documents. As the Court has already explained, King has a right to make a demand to inspect governmental records during regular or business hours of a public body on the premises of that public body. RSA 91-A:4, I. Rather than making such a request, King has apparently sent emails to the Town demanding that it provide him with documents. Even assuming that King has a right to inspect the documents in question, he has not complied with the statutory method of requesting such documents.6 The Amended Complaint does not set forth facts that could establish a violation of RSA 91-A:4. On this basis alone, his complaint can be dismissed.

Even if the Court assumes that a proper RSA 91-A request was made, the documents at issue are exempt from disclosure. Under RSA 91-A:5, IV, the Town is not required to disclose records pertaining to internal personnel practices. Such records [7] include investigations of discipline matters involving individual police officers. Union Leader Corp. v. Fenniman, 136 N.H. 624, 626-27 (1993). Thus, the complaints at issue were exempt from disclosure.

Insofar as King further requests information from a non-public session, the Town states that no such session occurred and that even if it did, the records would be exempt from disclosure under RSA 91-A:3 and RSA 91-A:5. Even assuming records of a non-public session exist, such session would have been held for the purpose of discussing investigation or dismissal of a public employee. The minutes of that session would not be subject to disclosure.

The Amended Complaint must be dismissed because it fails to state that King made a request for documents that complied with the applicable statute. Even assuming the request was properly filed, the information was not subject to disclosure. For each of these independent reasons, King has failed to state a claim upon which relief can be granted against the Town or Police Chief Montminy. The remaining allegations in the Amended Complaint regarding the Town, for example King's statement that the facts of this case warrant piercing the corporate veil, are incoherent and do not state a cognizable basis for recovery.

IV. Conclusion

For the foregoing reasons, the Court finds that the Amended Complaint fails to state a claim upon which relief can be granted. The Court need not, therefore, address the remaining issues raised by the motions to dismiss. The Court also finds no explanation for King's sporadic statements that the named respondents have infringed upon his rights under the First Amendment to the United States Constitution. To the [8] extent that King intended to state a separate First Amendment claim, that claim is also dismissed for failure to state a cognizable claim.

The following motions are GRANTED: (1) Motion to Dismiss of Defendant Terie Norelli (doc. 11); (2) Motion to Dismiss Amended Petition filed by Martha McLeod, Terie Norelli, and Kelly Ayotte (doc. 12); and (3) Defendants Chief Mark Montminy and the Town of Franconia's Motion to Dismiss (doc. 14).


Dated: December 23, 2008    /s/   

Timothy J. Vaughan,

Presiding Justice

1 For the purpose of these motions, the Court assumes King has made the requests he sets forth. There is, however, no documentation of these requests because instead of providing the actual requests as attachments, King has provided printouts of his website,, on which he blogs about his activities.

2 In the Amended Complaint, King incorporates a discussion of other investigations involving the Attorney Office. (Am. Complaint at 7-9.) There is no explanation of how these investigations relate to the investigation of Corporal McKay's shooting. King has stated no basis for requesting information about these investigations.

3 The Court notes that amendments to RSA 91-A took effect on July 1, 2008 -- prior to the initiation of this suit, but after some of the document requests and other facts giving rise to this suit occurred. The amendments primarily targeted electronic communications but also included clarification of definitions and correction of minor inconsistencies throughout the Chapter. Because all of the purported right-to-know requests involving these two representatives were made prior to July 1, the Court applies the prior law to these respondents. The Court would reach the same result under the amended law for the same reasons.

4 Even under the amended version of RSA 91-A, which better addresses electronic communications, the emails would not be subject to public disclosure. They are not "governmental records" because they were not "created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function." RSA 91-A:1-a, III (2008).

5 The Court cannot determine from the Amended Complaint what information King actually sought. The Court, therefore, relies on the motion to dismiss which explains the substance of the information request.

6 The Town has apparently asked King to send hard copies of requests due to the confusing nature of his emails, but he has not done so. (Mot. Dismiss at 2 n.1.)