2010-688, Thomas Ettinger & a. v. Town of Madison Planning Board

No. 2010-688

Carroll

decision of the Superior Court (Houran appeals, and the plaintiffs, Thomas and Margaret Ettinger, cross-appeal, the LYNN, J. The defendant, Town of Madison Planning Board (the Board),

Mitchell Municipal Group, P.A.

Limited Partnership (Pomeroy) received conditional approval from the Board to The trial court found the following facts. In June 2009, the Pomeroy ___________________________ I

Hastings Law Office, P.A.

We affirm. 91-A:2 (Supp. 2010); and (2) denied the plaintiffs’ request for attorney’s fees. session by the Board on March 3, 2010, violated the Right-to-Know Law, RSA

and orally), for the defendant.

THE SUPREME COURT OF NEW HAMPSHIRE brief and orally), for the plaintiffs.

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 p. 2 Know Law. See with legal counsel” exclusion from the definition of a “meeting” in the Right-tocounsel and discuss its contents in a private session under the “consultation The Board argues that its members were permitted to read a letter from

followed. Pomeroy application or to award the plaintiffs attorney’s fees. This appeal Right-to-Know Law, but refused either to invalidate the Board’s approval of the (Supp. 2010). The superior court agreed that the private session violated the Supp. 2010), and seeking an award of attorney’s fees under RSA 91-A:8, I session violated New Hampshire’s Right-to-Know Law, RSA ch. 91-A (2001 & The plaintiffs filed a petition in superior court, arguing that the private by this court. Murray v. N.H. Div. of State Police The interpretation of the Right-to-Know Law is to be decided ultimately

meaning was intended. RSA 21:1, :2 (2000). We resolve questions regarding usage of the language unless from the statute it appears that a different Words and phrases are construed according to the common and approved words used. Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (1996). Right-to-Know Law, and we accordingly first look to the plain meaning of the We apply the ordinary rules of statutory construction to our review of the

Know Law in this context is a question of first impression. plaintiffs’ attorney. The Board then reopened the hearing at 7:34 p.m. and, client privilege as it applies to public bodies.” The meaning of the Right-to- Board’s attorney to the Board’s administrative assistant, and letters from the legislature intended nothing more than to “codify the common law attorney memorandum summarizing legal advice relayed over the phone from the the attorney is not present at the discussion, or, in the alternative, that the session, they read and discussed emails from the Board’s attorney, a legal counsel encompasses discussions of the advice of its attorney even when administrative assistant, went into a private session for thirty minutes. In that At 7:00 p.m., the scheduled time of the hearing, the Board, joined by its RSA 91-A:2, I(b). The Board’s view is that a consultation with

appeared at that hearing. grant final approval of the Pomeroy application. The plaintiffs’ attorney Board scheduled a public hearing for March 3, 2010, to consider whether to hearing to allow them to challenge the approval of the condominium plan. The plaintiffs, whose property abuts the Pomeroy property, requested a public convey part of the property to the Nature Conservancy. In January 2010, the convert the buildings on its property to a condominium ownership form and to usually to consider a special matter.” Webster’s Third New International p. 3 “consultation” is “a council or conference (as between two or more persons) board members and its administrative assistant that occurred here. A with legal counsel” exclusion does not encompass the discussion among the We agree with the trial court that the literal meaning of the “consultation

meeting as convening a quorum “for the purpose of discussing or acting upon” for affirming the superior court’s decision, and since the statute defines a the private session found to violate the Right-to-Know Law would be grounds the contents of those documents at the end of the session. Since any part of during the first twenty-five minutes of their private session, they also discussed merely read the memoranda and emails containing the advice of counsel RSA 91-A:2, I(b). At the outset, we note that, although the Board members Board’s private session qualifies as a “consultation with legal counsel” under With this statutory scheme in mind, we must determine whether the

91-A:2, II. RSA 91-A:2, I(b) (Supp. 2010). council or conference to consider a special case.”). Read together with the not subject to the various requirements for open meetings contained in RSA (3d ed. 1969) (“The deliberation of two or more persons on some matter; a with legal counsel,” however, is excluded from that definition and is therefore Dictionary jurisdiction, or advisory power.” RSA 91-A:2, I (Supp. 2010). “Consultation 490 (unabridged ed. 2002); accord Ballentine’s Law Dictionary 257 matter or matters over which the public body has supervision, control, membership of a public body “for the purpose of discussing or acting upon a people.” The statute defines a meeting as the convening of a quorum of the discussions and records of all public bodies, and their accountability to the chapter is to ensure both the greatest possible public access to the actions, of public business is essential to a democratic society. The purpose of this (2001) expresses the legislative policy of the statute: “Openness in the conduct manner, shall be open to the public.” RSA 91-A:2, II (Supp. 2010). RSA 91-A:1 person, by means of telephone or electronic communication, or in any other The Right-to-Know Law provides that “all meetings, whether held in

N.H. 375, 379 (2008). Hampton, 162 N.H. 7, 14 (2011); Lambert v. Belknap County Convention, 157 nonpublic assembly of its members. Cf. Hampton Police Assoc. v. Town of 451, 453 (2000). A public body bears the burden of proving that it may hold a exemptions restrictively. Goode v. N.H. Legislative Budget Assistant, 145 N.H. a result, we broadly construe provisions favoring disclosure and interpret the Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 546 (1997). As facilitating open access to the actions and decisions of public bodies. See the Right-to-Know Law with a view to best effectuate the statutory objective of p. 4 Riddle Spring Realty Co. v. State

representatives.

adviser unless the protection is waived by the client or his legal

permanently protected from disclosure by himself or by the legal that purpose, made in confidence by the client, are at his instance

adviser in his capacity as such, the communications relating to Where legal advice of any kind is sought from a professional legal

acts are irreconcilable, clearly repugnant as to vital matters to which they presumption against implied repeals is overcome . . . by a showing that two Statutes and Statutory Construction § 23.10, at 481 (7th ed. 2009) (“The the Right-to-Know Law cannot coexist. See 1A N. Singer & J.D. Singer, however, we discern no reason why the attorney-client evidentiary privilege and intent to do so. See follows: State v. Hermsdorf, 135 N.H. 360, 363 (1992). Here, a statute to abrogate the common law absent a clear legislative expression of the attorney-client relationship. The classic articulation of the privilege is as enumerated exceptions or exclusions applies. We do not, in general, interpret allowing the attorney or client to withhold information shared in the course of public bodies open their meetings to the public unless one of several specific, As an initial matter, the attorney-client privilege is an evidentiary rule By contrast, the Right-to-Know Law is a statute mandating that all

revealing information “relating to the representation of a client”). R. Ev. 502(b); accord N.H. R. Prof. Conduct 1.6(a) (prohibiting lawyers from facilitating the rendition of professional legal services to the client . . . .” N.H. person from disclosing confidential communications made for the purpose of that “[a] client has a privilege to refuse to disclose and to prevent any other 1961)). New Hampshire Rule of Evidence 502 embodies that rule, providing Wigmore, Evidence §§ 2292, 2327-2329, at 554, 634-41 (McNaughten rev.

counsel. We disagree. public bodies to enter nonpublic sessions to discuss the written advice of coextensive with the common-law attorney-client privilege, and therefore allows its argument, the Board argues that a consultation with legal counsel is Anticipating the difficulties a literal construction of the statute poses for

attorney. contemporaneous exchange of words and ideas between the public body and its the discussion. At the very least, that clause requires the ability to have a of, the public body’s attorney where that attorney is unavailable at the time of 91-A:2, I, only to discuss a legal memorandum prepared by, or at the direction which the public body convenes a quorum of its membership, as set out in RSA phrase “with legal counsel,” a “consultation” does not encompass a situation in p. 5 5

counsel present. In the absence of an applicable exception, the clear legislative attorney, but also to “discuss” and “consider” the memorandum without session not only to read the memorandum prepared at the direction of the the statute would have said as much. In this case, the Board met in a private legal counsel but also “consideration or discussion of the advice of counsel,” intended the exclusion in RSA 91-A:2, I(b) to cover not just consultations with of N.H. v. N.H. Div. of Personnel, 1 p. 5 58 N.H. 338, 345 (2009). Had the legislature that the legislature intended something different. See State Employees Assoc. When the legislature uses different language in the same statute, we assume provision permits a far narrower category – consultation with legal counsel. government bodies to consider and discuss the enumerated matters, the latter legal counsel” in RSA 91-A:2, I(b). Whereas the former provisions allow II(d)-(j) stand in marked contrast to the narrower phrase “consultation with The terms “discussed” in RSA 91-A:3, II(c) and “consideration” in RSA 91-A:3, members when it enacted these ten exceptions to the open meetings mandate. legislature contemplated the need for private discussions among the board to consider or act upon “[o]nly” certain matters in nonpublic session. The (footnotes omitted). Notably, RSA 91-A:3, II (Supp. 2010) allows public bodies Statutes and Statutory Construction § 47.11, at 328-30 (7th ed. 2007) no other exceptions will be implied.” 2A N. Singer & J.D. Shambie Singer, exception, it comprises the only limitation on the operation of the statute and discussion. “[E]xceptions are not to be implied. . . . Where there is an express only circumstances in which a public body may enter into a private session for meetings requirement compels our conclusion that these provisions provide the Our legislature’s decision to enumerate specific exceptions to the open-

Anderson, p. 6 676 S.W.2d 328, 333 (Tenn. 1984). 481 N.E.2d 1128, 1131 (Mass. 198 p. 5 5); accord Smith County Educ. Ass’n v. narrow circumstances stated in the statute.” District Atty. v. Bd. of Selectmen, public waiver of any possible privilege of the public client . . . except in the the privilege is the client’s to waive, and RSA 91-A:2 operates “as a statutory thereof because of his membership in such body or agency . . . .” In any case, threatened in writing or filed against the body . . . , or against any member sessions to consider or negotiate “pending claims or litigation which has been by its enactment of RSA 91-A:3, II(e) (Supp. 2010), authorizing nonpublic from gaining an unfair advantage, the legislature has safeguarded that interest attorney-client privilege helps prevent a public body’s adversary in litigation to discuss matters within its purview. Moreover, to the extent that the governing the disputed situation in this case – namely, a public body meeting between the two, the Right-to-Know Law expresses a more specific policy to consult with lawyers by enabling the free and open exchange of information the common law attorney-client privilege reflects a policy of encouraging clients repugnancy” between two provisions before repealing by implication). Whereas also State v. Wilton Railroad, 89 N.H. 59, 61-62 (1937) (requiring a “positive relate, and so inconsistent that they cannot have concurrent operation.”); see 6

DALIANIS, C.J.