Cady v. Town of Deerfield, Doc. No. 218-2011-CV-257 (Rockingham Super. Ct., June 27, 2012) (McHugh, J.)

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The State of New Hampshire







The procedural history of this case is as follows. On March 4, 2011 the plaintiff filed a Right to Know Violation Petition against the defendant. She referenced two issues in her Petition, to wit, non posted notices of meetings of the Open Space Committee and an alleged failure of the police department to sell confiscated guns privately without public notice. Her Petition contained two requests, to wit, that the Open Space Plan as developed by the Committee be ordered null and void and that she be reimbursed for all costs incurred to copy police inventory information.

In response to the plaintiff's Petition the defendant acknowledged that the Open Space Committee had not properly noticed prior meetings however that mistake had been corrected by a subsequent properly noticed meeting wherein all actions and votes taken at the prior improperly noticed meetings were ratified and confirmed. The defendant opined that it believed that the Right to Know challenge regarding the eventually passed Open Space Plan was a thinly veiled attempt to abolish that Plan, and any challenge to it could not be accomplished by way of a Right to Know Violation. Concerning the issue of police inventory records, the defendant promised to make those records available to the plaintiff immediately and also would provide copies of those records at no cost to her.

After holding a hearing on the plaintiff's Petition, the Court by Order dated [2] September 1, 2011, dismissed it, finding that any violation of the Right to Know Law was not willful. The plaintiff appealed the Court's decisions and our Supreme Court issued an Order on May 3, 2012 containing the following directive: "We remand for the trial court to consider whether to grant the petitioner's requests for injunctive relief and/or costs for this violation."

The Remand Hearing was held on June 26, 2012. Both parties appeared. At this point in time all the relief that the plaintiff wanted was a finding that the Open Space Plan was null and void because of improperly posted meetings by the Open Space Committee and secondly reimbursement for the costs that she incurred in both this proceeding and her Supreme Court Appeal. Those costs amounted to $675.40.

It is the position of the defendant that this litigation was wholly unnecessary. When the Town was made aware of the improperly posted meetings of the Open Space Committee it claims it rectified the problem by insisting on the posting of all future meetings and also by ratifying the actions taken at the earlier non posted meetings. The ratification was accomplished at a posted meeting. Therefore the Town argues there is no basis for ordering an injunction prohibiting the implementation of the Open Space Plan that was properly approved, nor is there a basis for declaring that Plan null and void. With respect to the issue of costs, the defendant believes that not only should it not have to pay costs to the plaintiff, but rather she should be responsible for the Town's expenses in having to defend this alleged unnecessary lawsuit. The Town pointed out that the Supreme Court did affirm this Court's ruling with respect to the police inventory issue and therefore that matter is no longer part of this litigation.

With respect to the issue of the Open Space Plan, from the documents exhibited to the Court it does appear that any action taken by the Open Space Committee that was [3] not properly noticed was rectified in a later action. At one of the meetings the plaintiff appeared and objected to the Open Space Plan, suggesting that at least her voice was heard by the Committee although they did not adopt her suggestions. The Court agrees with the defendant that any substantive criticism of the Plan has to be made directly and not attacked by way of a backdoor Right to Know complaint. Injunctive relief being an extraordinary remedy, the plaintiff has not met her burden of showing that irreparable harm will fall upon her and further that there is no adequate remedy of law. Therefore the relief requested by the plaintiff regarding the Open Space Plan is denied.

Both parties in this litigation have requested reimbursement for costs and fees. The criteria for the awarding of such a remedy to a petitioner is found in RSA 91-A:8 I. For the plaintiff to recover costs incurred in this lawsuit, the Court has to find that the litigation was necessary in order to make the information available or the proceeding open to the public. The defendant argues that the lawsuit was not necessary because once the information about the non published meetings was reported, the meetings then were properly published. In the same vein, once the plaintiff demanded a copy of the police inventory the Town agreed to provide it to her at no cost. Therefore the defendant concludes that while perhaps this lawsuit was necessary in order to get the Town's attention concerning these matters, no hearing was required in Superior Court and no appeal was necessary to our Supreme Court.

With respect to the defendant's request for attorney fees, the Court notes that RSA 91-A:8 I (a) provides: "The Court may award attorney fees to a public body for having to defend against a persons lawsuit under the provisions of this chapter when the Court makes an affirmative finding that the lawsuit is in bad faith, frivolous, unjust, vexatious, wanton, or oppressive."

[4] The Court is compelled to find that when the lawsuit was originally brought it may have had some merit in that it addressed the entitlement by the plaintiff to a copy of the police inventory information. The lawsuit had no merit with respect to the Open Space Plan since the Open Space Committee had rectified its earlier failure to post its meetings before this litigation commenced. Prior to an appeal being taken to our Supreme Court, the police inventory issue was resolved in favor of the plaintiff by the town's invitation to produce the report for her at no cost to her. Therefore the Court finds that the plaintiff did not have a good faith basis for having our Supreme Court consider the police inventory issue.

That being said, the Court still cannot include that the appeal was taken in bad faith. That is because a center point of the appeal was this Court's belief that costs could not be awarded unless the trial court found a willful violation of the Right to Know law. Thus while the unnecessary issues of police inventory records and Open Space Plans were part of the appeal, the question of whether or not a Court had to find a willful violation of the Right to Know law before assessing costs is one that presented our Supreme Court with a legitimate issue which it resolved in favor the plaintiff.

In summary, while the Court denies the plaintiff's request for injunctive relief regarding the implementation of the Open Space Plan, it will aware her costs in the sum of $500.00 because of her appeal of the Court's ruling that a finding of willfulness is required in order to find a municipality committed a right to know violation. The amount awarded is less than the amount requested due to the fact that mileage and other [5] miscellaneous expenses are not recoverable. The defendant's request for costs is denied.

   June 27, 2012       /s/   

Date Kenneth R. McHugh

Presiding Justice