In re State

• Decision Date: 04 February 2022
• Docket Number: 2021-0146
• Citation: 174 N.H. 785,274 A.3d 1190
• Parties: PETITION OF the STATE of New Hampshire
• Court: New Hampshire Supreme Court

174 N.H. 785

274 A.3d 1190

PETITION OF the STATE of New Hampshire

No. 2021-0146

Supreme Court of New Hampshire.

Argued: October 21, 2021

Opinion Issued: February 4, 2022

John M. Formella, attorney general(Elizabeth Velez, attorney, on the brief, and Samuel R.V. Garland, assistant attorney general, orally), for the State.

American Civil Liberties Union of New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint brief, and Henry R. Klementowicz orally); R. Peter Decato, of Lebanon, on the joint brief; Albert E. Scherr, of Concord, on the joint brief; and Wadleigh, Starr & Peters, of Manchester (Robin D. Melone on the joint brief), for defendantJeffrey Hallock-Saucier.

Law Office of Carl D. Olson, of Londonderry (Carl D. Olson, on the joint brief), for defendantNicholas Fuchs.

Alexander J. Vitale, New Hampshire public defender, of Concord, on the joint brief, for defendantJacob Johnson.

HICKS, J.

The State filed a petition for original jurisdiction, seeSup. Ct. R. 11, seeking certiorari review of a decision of the Superior Court(Schulman, J.) denying the State's motions for protective orders in separatecases against the defendants, Nicholas Fuchs, Jacob Johnson, and Jeffrey Hallock-Saucier.We reverse and remand.

The following facts were recited in the trial court's order or relate the contents of documents in the record.This petition for original jurisdiction arises out of three separate criminal cases, each against one of the defendants.In each case, the State determined that it was required to provide the defendant with information from one or more police officer's personnel files because the information was potentially exculpatory.SeeState v. Laurie, 139 N.H. 325, 330, 653 A.2d 549(1995);Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963).Citing the court's authority under New Hampshire Rule of Criminal Procedure 12(b)(8), the State filed a motion for a protective order of discovery materials in each case, seeking an order that would prohibit "Defense Counsel ... from sharing or further disseminating these confidential documents and the confidential information contained therein with anyone other than Defense Counsel's staff and the Defendant."Counsel for each defendant assented to the proposed protective order appended to the State's motion although, after the court denied those motions, Johnson filed a notice that "he no longer assents to the State's motions for protective orders."

In the cases against Fuchs and Johnson, the court denied the motions, by margin order, without prejudice.In each case, the court opined that the material may constitute public records subject to disclosure under the Right-to-Know Law, seeRSA chapter 91-A (2013& Supp. 2021), unless, for specific or particularized reasons, their disclosure would result in an invasion of privacy.The court implicitly invited the State to make such a particularized showing.In both cases, the State moved for reconsideration.

In the case against Hallock-Saucier, the court denied the motion by margin order, referencing a "separate narrative order to be issued within the day."In that subsequent order, the court denied the State's: (1)motion for a protective order in the case against Hallock-Saucier; (2)motions for reconsideration in the cases against Fuchs and Johnson; and (3)motions to seal and associated motions for reconsideration in all three cases.Acknowledging that it had the authority to supervise discovery in criminal cases by issuing protective orders, the court explained that it would not, however, "ordinarily issue a protective order that gags the parties and counsel from sharing what is otherwise available to the general public upon demand.""Thus,"the court elaborated, "if the State provides discovery of documents that are subject to mandatory public disclosure under the Right to Know statute, RSA 91-A:4, a protective order is inappropriate."

The court observed suasponte that the legal landscape regarding the Right-to-Know Law had recently changed with our overruling of Union Leader Corp. v. Fenniman, 136 N.H. 624, 620 A.2d 1039(1993), overruled bySeacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. 325, 337, 239 A.3d 946(2020), and our decision in Union Leader Corp. v. Town of Salem, 173 N.H. 345, 357, 239 A.3d 961(2020).The court observed that while "Fenniman did not actually require the issuance of protective orders," it "fostered a culture of confidentiality with respect to internal police misconduct and discipline records."It then noted that our decision in Union Leader Corp."did away with the categorical approach taken by Fenniman and replaced it with a fact-specific balancing test" that "requires the court to determine whether the release of ... records [relating to police internal personnel practices and officer discipline] would constitute an invasion of privacy."The court invited the State"to make a fact-specific case that public disclosure of the information would result in an invasion of privacy," but stated that it would "not issue gag orders in blank."The court also considered the State's reliance on RSA 105:13-b to be "misplaced."SeeRSA 105:13-b (2013).

The trial court subsequently stayed the proceedings in each case to allow the State to seek review in this court, accepted redacted copies of prior pleadings, and denied the State's motion to reconsider in the case against Hallock-Saucier.The State then filed its petition for original jurisdiction with this court, which we accepted.Thereafter, the State withdrew its request for review of the trial court's denials of the State's motions to seal.Accordingly, only the trial court's rulings on the protective orders are now at issue.

"Certiorari is an extraordinary remedy that is not granted as a matter of right, but rather at the court's discretion."Petition of N.H. Div. of State Police, 174 N.H. 176, 180, 261 A.3d 283(2021)."Our review of the trial court's decision on a petition for writ of certiorari entails examining whether the court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously."Id.

Generally, we"review trial court decisions regarding discovery management and related issues deferentially under our unsustainable exercise of discretion standard."Id. at 184, 261 A.3d 283(quotation omitted).When "the court's ruling is based on its construction of a statute," however, "our review is denovo."Id.(quotations omitted).

The State first argues that the trial court erred in concluding that police personnel file information is not confidential once it is disclosed to a defendant under RSA 105:13-b.In requesting that the trial court grant the protective orders at issue, the State contended that they were "necessary to ensure the confidentiality of the law enforcement officer[s’] personnel records while meeting the State's competing interest in providing potentially exculpatory evidence in a criminal matter."The State cited RSA 105:13-b as authority for the confidentiality of police personnel files.The trial court disagreed, concluding that nothing in that statute"suggests that ... exculpatory evidence, once disclosed, must be kept confidential."The State now contends that the trial court's interpretation of RSA 105:13-b is "erroneous because it overlooks the statute's plain language, statutory purpose, and disregards the context of the statute as a whole."

When engaging in statutory interpretation, we discern "the intent of the legislature as expressed in the words of the statute considered as a whole."Petition of N.H. Div. of State Police, 174 N.H. at 184, 261 A.3d 283."We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning."Id."We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include."Id."We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result."Id."Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole, which enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme."Id.

RSA 105:13-b provides:

Confidentiality of Personnel Files.

I. Exculpatory evidence in a police personnel file of a police officer who is serving as a witness in any criminal case shall be disclosed to the defendant.The duty to disclose exculpatory evidence that should have been disclosed prior to trial under this paragraph is an ongoing duty that extends beyond a finding of guilt.

II.If a determination cannot be made as to whether evidence is exculpatory, an in camera review by the court shall be required.

III.No personnel file of a police officer who is serving as a witness or prosecutor in a criminal case shall be opened for the purposes of obtaining or reviewing non-exculpatory evidence in that criminal case, unless the sitting judge makes a specific ruling that probable cause exists to believe that the file contains evidence relevant to that criminal case.If the judge rules that probable cause exists, the judge shall order the police department employing the officer to deliver the file to the judge.The judge shall examine the file in camera and make a determination as to whether it contains evidence relevant to the criminal case.Only those portions of the file which the judge determines to be relevant in the case shall be released to be used as evidence in accordance with all applicable rules regarding evidence in criminal cases.The remainder of the file shall be treated as confidential and shall be returned to the police

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