2010-343, David J. Lovejoy v. James Daniel Linehan & a.

No. 2010-343

Rockingham

Sheehan Phinney Bass + Green, P.A.

McNeill, Taylor & Gallo, P.A.

Douglas, Leonard & Garvey, P.C. Orr & Reno, P.A. Rockingham County. and Elizabeth A. Bailey on the memorandum of law), for defendant

orally), for defendant Mark Peirce.

orally), for defendant James Daniel Linehan.

Jason R.L. Major on the brief, and Mr. Douglas orally), for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as plaintiff’s pleadings are reasonably susceptible of a construction that would p. 2 the trial court was required to, determine whether the allegations in the claims against Linehan and Peirce under the following standard: “We must, as court and remanded for that limited purpose. We now review the plaintiff’s denied the motion without prejudice to the plaintiff seeking relief in the trial On appeal, the plaintiff moved to nonsuit Dandurant with prejudice. We plead sufficient facts on which to obtain relief, which the trial court granted. Linehan, Peirce and Dandurant moved to dismiss count II for failure to

On October 27, 2008, the Portsmouth Herald

prohibited from publicity under RSA 651:5.” discuss a matter that the legislature has declared private, confidential, and alleged that such disclosure “put the plaintiff in a position of having to publicly all defendants for invasion of privacy by public disclosure of private facts. It defendants, only one of which is relevant here: Count II alleged a claim against

Linehan and Peirce, its employees, under the doctrine of respondeat Rockingham County, which was alleged to be responsible for the actions of The plaintiff brought suit against Linehan, Peirce, Dandurant and

The complaint alleged a number of counts against the various

Peirce was a deputy sheriff and Linehan’s second-in-command. County Sheriff in which the plaintiff challenged Linehan, the incumbent. Superior Court (Nicolosi by the record. This case arises out of the 2009 election for Rockingham HICKS, J. The plaintiff, David J. Lovejoy, appeals an order of the The following facts are recited in the trial court’s order or are supported

writing for the Portsmouth Herald.” “annulled criminal record to Ms. Dandurant for a story they knew she was plaintiff’s annulled conviction.” Linehan and Peirce then allegedly provided the county employees, prepared “documents containing information about the The amended complaint alleges that Linehan and Peirce, assisted by other

thrown out of court by the judge.” and was convicted in 1989. Lovejoy said the case was annulled and was provided to the Herald said Lovejoy was involved in a case of simple assault by defendant Karen Dandurant that contained the following: “A record

Mark Peirce. We affirm. public disclosure of private facts against defendants James Daniel Linehan and

no brief. Malloy & Sullivan, of Manchester, for defendant Karen Dandurant, filed p. 3 Restatement (Second) of Torts

(b) is not of legitimate concern to the public.

The plaintiff’s argument relies upon the statutory provision regarding serious and meaningful definition of a ‘private fact’ would be hard to imagine.” existence of a criminal sanction for disclosure of an annulled record, a more determinations inherent in the annulment of a criminal record, and the (a) would be highly offensive to a reasonable person, and public concern. He argues: “[G]iven the legislative and judicial policy that his annulled conviction was not private and was a matter of legitimate On appeal, the plaintiff contends that the trial court erred in concluding 3

As set forth in the p. 3 Restatement (Second) of Torts

McNamara v. Hersh

the annulled conviction addressed a matter of legitimate public concern.” plaintiff’s claim failed as a matter of law because “the disclosures concerning

motion to dismiss. for legal relief, we must hold that it was improper to grant the against the applicable law, and if the allegations constitute a basis engage in a threshold inquiry that tests the facts in [his] petition privacy, if the matter publicized is of a kind that reasonable inferences in the light most favorable to [him]. We then another is subject to liability to the other for invasion of his One who gives publicity to a matter concerning the private life of

In Hamberger v. Eastman:

(2002) (quotation omitted). private pertaining to the plaintiff.” Karch v. Baybank FSB, 147 N.H. 525, 535 form of the tort, which “involves the invasion of something secret, secluded or Hamberger, 106 N.H. at 109, 110. We deal here with the public disclosure defendant’s benefit or advantage, of the plaintiff’s name or likeness.” places the plaintiff in a false light in the public eye; (4) appropriation, for the solitude or seclusion; (2) public disclosure of private facts; (3) publicity which torts,” including: “(1) intrusion upon the plaintiff’s physical and mental We assume the [plaintiff’s] pleadings to be true and construe all “invasion of the right of privacy is not a single tort but consists of four distinct

(1990) (quotation and brackets omitted). permit recovery.” Provencal v. Vermont Mut. Ins. Co., 132 N.H. 742, 744-45 p. 4 (Citation omitted.); cf

disclosed. Moreover, the statute provides that “[t]he person the statute does not provide a civil remedy to the person whose record is record can be used. 651:5, XII imposes criminal liability on one who discloses an annulled record, conviction into a ‘private, secret, or secluded fact.’” We agree. While RSA under RSA 651:5 does not expressly turn the public event of a criminal actionable privacy interest.” Peirce similarly argues that “[a]n annulment a private cause of action, and therefore, the statute did not create an further public discourse.” Linehan counters that “RSA 651:5 does not include that his criminal conviction was effectively erased from any possibility of The plaintiff argues that pursuant to RSA 651:5, he “had the expectation

. . . [which] describes various circumstances in which the annulled other states, it is also contrary to the clear language of the statute

provided in subparagraph XI(b).” RSA 651:5, XII (2007). an expunged record] is not entitled to privacy protection.”). section, he discloses or communicates the existence of such record except as record, the underlying object of expungement remains public . . . [and therefore another who has had a record of arrest or conviction annulled pursuant to this it removes a particular arrest and/or conviction from an individual’s criminal further provides that “[a] person is guilty of a misdemeanor if, during the life of (noting that “[a]n expungement order does not privatize criminal activity. While circumstances not relevant to this appeal. RSA 651:5, X(a) (2007). The statute conceptually impossible position has not only been rejected by certain purposes”); Nilson v. Layton City must be treated under RSA 651:5 as if it had never occurred. This, 45 F.3d 369, 372 (10th Cir. 1995) [when the statute itself provides that] an expunged conviction can be used for The [plaintiff] essentially contends that an annulled conviction court” and expressing “doubt [that] this was the [legislature’s] intention . . . permanently erase from the public record those affairs that take place in open (noting that the Arkansas legislature does not “possess the Orwellian power to

had never been arrested, convicted or sentenced, except” in certain “[t]he person whose record is annulled shall be treated in all respects as if he RSA 651:5 provides, in part, that upon the entry of an annulment order, secrecy. RSA 651:5, X(a) (emphasis added). As Peirce argues: convicted or sentenced”; it does not enshroud the record itself with a cloak of annulled shall be treated in all respects as if he had never been arrested,

examine the relevant portions of that statute. annulment of criminal records, RSA 651:5 (2007 & Supp. 2010). Therefore, we p. 5 Lambert v. Belknap County Convention

that office. diminished privacy expectation in personal information relevant to candidate voluntarily seeking to fill an elected public office has a

in Summe v. Kenton County Clerk’s Office privacy by public disclosure of private facts. We conclude that it is. As stated matter of legitimate public concern for purposes of the tort of invasion of Our task here is to determine whether the plaintiff’s annulled record is a representatives, to evaluate the particular candidate. Thus, a requires members of the public, either individually or through their his or her qualifications for that office at issue, and, consequently, [A] candidate’s decision to apply for an elected public office places 5

Id. at 385. in disclosure significantly outweighs the privacy interests of the candidates.” balancing those interests in Lambert, we concluded “that the public’s interest interest in knowing the candidates under consideration for that office.” Id. In concern.” We agree. under State’s Right-to-Know Law). Moreover, “[t]he public has a significant also rendered his annulled assault conviction a matter of legitimate public, 157 N.H. 375, 384 (2008) (action “not only opened himself up to the disclosure of otherwise private facts, but therefore, that when he entered the county sheriff election race, the plaintiff Here, the plaintiff was a candidate for public office. Linehan argues,

a corrupt Congressman,” but was himself a private citizen. Id. at 774. for public office.” Rather, the individual “allegedly had improper dealings with [because] the individual whose criminal records were at issue was not running circumstances in the Reporters Committee case are fundamentally different . . . invasion of privacy.” Id. at 762 n.13. In addition, as Peirce argues, “[t]he course, not the same as the question whether a tort action might lie for Act, see 5 U.S.C. § 552 (b)(7)(C) (2006)],” which the Supreme Court noted “is, of question of the statutory meaning of privacy under the [Freedom of Information however, is inapposite in a number of respects. First, it dealt with “[t]he privacy.” Reporters Committee, 489 U.S. at 774, 780. Reporters Committee, about a private citizen can reasonably be expected to invade that citizen’s held “that a third party’s request for law enforcement records or information some way related to the subject’s dealing with a public official or agency,” it some public interest in anyone’s criminal history, especially if the history is in asserts that while the Supreme Court recognized that “there is undoubtedly record that is not overcome by a legitimate public concern in that record. He supports his claim that he has a privacy interest in his annulled criminal Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), The plaintiff nevertheless argues that United States Department of of the provision, “overlooked the statute’s unambiguous language regarding to p. 6 reference to RSA 651:5, XI(b), arguing that the court, by quoting only a portion RSA 651:5, XI(b) (2007). The plaintiff takes issue with the trial court’s

not be disclosed to any other person. enforcement officer, in any of which cases such information shall

determining the fitness of an individual to serve as a law training council solely for the purpose of assisting the council in record of arrest or conviction to . . . the police standards and

person’s annulled conviction to the person’s qualifications for a law court relied upon the statute’s implicit acknowledgment of the relevance of a ignored the language of, nor expanded, the statutory exceptions. Rather, the purport to apply RSA 651:5, XI(b) to the case at hand, and therefore neither The plaintiff misconstrues the trial court’s order. The court did not

records and to communicate information regarding the annulled (b) Of law enforcement officers to maintain arrest and conviction

shall affect any right: enforcement position. RSA 651:5, XI(b) provides that nothing in RSA 651:5 annulled conviction is relevant to determining a person’s fitness for a law We note, as did the trial court, that RSA 651:5 itself recognizes that an (Quotations omitted.) the expression of one thing in a statute implies the exclusion of another.” thereby “ignor[ing] the familiar axiom of statutory construction that provides nondisclosure provided by the New Hampshire legislature under RSA 651:5,” that “[t]he trial court erred by judicially expanding the exceptions to whom such annulled information may be provided.” The plaintiff also argues

and newsworthy”). was in conformity with the law[,] [a] claim that he violated the law was relevant enable him to judge the conduct of others and determine whether that conduct legitimate public concern; where the appellant “sought a position that would been made against candidate for public office of district justice was matter of Super. Ct. 1993) (finding fact that complaint of sexual abuse of a minor had qualifications for that position. Cf. Santillo v. Reedel, 634 A.2d 264, 266 (Pa. conviction, whether subsequently annulled or not, is relevant to the Comm’rs, 151 N.H. 276, 283 (2004). We conclude that a prior assault chief law enforcement officer of the county.” Linehan v. Rockingham County “the sheriff maintains his common law powers, duties and responsibilities as qualifications for the county sheriff position, we note that in New Hampshire, determining whether the plaintiff’s annulled conviction was relevant to his therefore, a candidate loses his or her privacy right to this information.” In candidate for public office is an area of legitimate concern to the public and, Ky. 2009), aff’d in part, 604 F.3d 257 (6th Cir. 2010), “The qualifications of a p. 7 7 Affirmed

DALIANIS, C.J.