2018-0208, Petition of New Hampshire Secretary of State and New Hampshire Attorney General

Lopera, Phillip Dragone, Spencer Anderson, an d Sesha Mehta. Women Voters of New Hampshire, Douglas Marino, Garrett Muscatel, Adriana Uzoma Nkwonta on the join t brief, and Mr. Spiv a orally), for the League of John M. De vaney, Bruce V. Spiv a, Amanda R. Callais, Elisabeth Frost, and the joint brief, and Perkins Coie LLP, of Washington, D.C. (Mark Erik Elias, Glahn, III and Steven J. Dutton on the joint brief), Paul Twomey, of Epsom, on McLane Middleton, Professional Association, of Manchester (Wilbur A.

brief), for the petitioners. Concord (Bryan K. Gould, Cooley A. Arroyo, and Callan E. Maynard on the brief, and Mr. Galdieri orally), and Cleveland, Waters, and Bass, P.A., of attorney general, and Anthony J. Galdieri, assistant attorney general, on the Gordon J. MacDonald, attorney g eneral (Anne M. Edwards, associate

No. 2018 - 0208 Origi nal

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.sta te.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 p. 2 22 as 2

Hampshire and several individual plaintiffs. The trial court thereaft er consolidated the cases. New Hampshire Democratic Party and the other filed by the League of Women Voters of New The litigation before the trial court was initiated by two separate complaints, one filed by the 1 6 54:31 - a (Supp. p. 2 2018), the Database contains substantially more personal are public records subject to RSA chapter 91 - A, see RSA 654:31 (2016); RSA checklist,” RSA 654:25 (Supp. 2018), and which, subject to limited exceptions, address, mailing address, and party affiliation, if any, of each voter on the Unlike voter checklists, which contain only “the full n ame, domicile

General Elections.” the complete voter history following the p. 2 2008, 2010, 2012, 2014, and 2016 2009, 2011, 2013, 2015, 2017, or the date on which the [D] atabase contained D atabase, as well as the completed past versions of the D atabase “as of April 1, D uring discovery, the plaintiffs reques ted the current version of the

protection o f the law; and (4) is void for vague ness. domicile requirements therein; (3) denies prospective registrants the equal vote guaranteed to all persons domiciled in New Hampshire; ( p. 2 2) contradicts the New Ha mpshire Constitution because it: (1) unduly burdens the equal right to election, including on e lection d ay. The plaintiffs allege that SB 3 violates the takes place more than 30 days before an election or within 30 days of an one’s domicile under the new law differs depending on whether registration 654:7 - b (Supp. 2018); RSA 654:12 (Supp. 2018). The procedure for verifying (Supp. 2018); RSA 654:7 (Supp. 2018); RSA 654:7 - a (S upp. 2018); RSA substantiate their domicile when registering to vote. See generally RSA 654:2 c odified in RSA chapter 654, SB 3 changes the way in which persons must the New Hampshire Constitution. Enacted as Laws 2017, chapter 205 and the trial court involve challenges to the lawfulness of Senate Bill 3 (SB 3) under The record establishes the following pertinent facts. The cases before 1

disc losure by statute, and we therefore vacate the trial court’s o rder. to RSA 654:45 (Supp. p. 2 2018). We conclude that the D atabase is exempt from New Hampshire Centralized Voter Registration Database established pursuant Hampshire, the New Hampshire Democratic Party, and various individual s, the to the plaintiffs in the litigation, the Lea gue of Women Voters of New Attorney General, defendants in litigation pending before that court, to p roduce ordering the New Hampshire Secretary of State and the New Hampshire Sup. Ct. R. 11, to determine whether the Superior Court (Temple, J.) erred in LYNN, C.J. The court accepted this petition for original jurisdiction, see

Spencer on the joint brief), for the New Hampshire Democratic Party. Shaheen & Gordon, P.A., of Concord (William E. Christie and S. Amy p. 3 3

domicile and will provide the proof after the elect ion; (c) whether the voter registration form; (b) the voter initialed that he or she possesses proof of whether: (a) the voter used the verifiable action of domicile section of the voter register and do not provide proof of domicile when registering a yes/no value for were not aware of having any evidence of domicile; and (5) [f] or voters who provide proof of domicile initialed the voter registration form indicating that they whether the voter provid ed evidence of domicile); (4) whether a voter who did not subsequently; ( p. 3 3) whether the voter initialed a verifiable action of domicile (if yes, day; (2) whether the voter provided evidence of domicile when registering or (1) whether the v oter registered 30 days or less prior to an election or on election registration and domicile,” including: observed that “the Database contains a significant amount of information regarding Relying on an affidavit submitted by Deputy Secretary of State David Scanl a n, the court 2

dispute. 2 that could be gleaned from the Database would shed light on the issues in information as to the identities and voting patterns of same - day registrants are more likely to support Democratic candida tes, the court found that makes same - day voter registration more difficult and that same - day registrants extent of the burden. Specifically, given the plaintiffs’ allegations that SB p. 3 3 court with information about the persons who are burdened by SB 3 and the because it contains material that the plaintiffs’ expert could use to pr ovide the court granted the motion. The court found that the Database was relevant The plaintiffs moved to co mpel production and, following a hearing, the trial that it was irrelevant and was not subject to disclosure under RSA 654:45, VI. The defendants objected to production of the Database o n the grounds

guilty of a misdemeanor. database in any manner not autho rized by this section shall be RSA 654: p. 3 31. Any person who discloses information from the voter The voter checklist for a town or city shall be available pursuant to Hampshire to assist in the preparation of federal court jury lists. District Court of the United States for the District of New master jury lists pursuant to RSA 500 - A and to the clerk of the administrative office of the courts to assist in the preparation of authorized to provide voter database record data to the be subject to RSA 91 - A and RSA 654:31. The secretary of state is The voter database shall be private and confidential and shall not

history. At the time of the discovery request, RSA 65 p. 4 4:45, VI provided: or located overseas, information concerning use of absentee ballots, and voting identification used to prove identity, whether the voter is in the military service information, place where and name under which last registered to vote, form of (for voters without a driver’s license number), place of birth, naturalization birth, gender, driver’ s license number, last four digits of social security number in formation about each respective voter, including the following: voter date of dlord.

suppression of pertinent testimony.” Marceau, 97 N.H. at 500. acquired. It was not intended to impede the administration of justice in the courts by the clause of the statute was the voluntary imparting by State employees of information [they] the criminal penalty because “the evil intended to be forestalled and prevented [by the penalty] covered materials in response to a subpoena would not expose th e department employees to Database in discovery. The court reasoned that, as Marceau explained, production of the for by the statute for unauthorized disclosures precluded the defendants from producing the The court also relied on Marceau in rejecting the arg ument that the criminal penalty provided p. 4 4 be limited “without a clear legislative mandate.” Id. at 499 - 500. view, the obligation to furnish relevant information in the administration of justice should not this prohibition was subsequently deleted in later versions of the statute. Id. at 4 99. In our the information could not be used in a court action unless the commissioner was a party, but our conclusion was the fact that the original iteration of the statute had explicitly provided that evidence in judicial proceedings was intended to be forbidden . . . .” Id. at 498 - 99. Supporti ng records not be open to the public, it was “by no means plain . . . that use of the records in created a statutory privilege, reasoning that while the legislature certainly intended that the and ellipses omitted). We rejected the Director of Security’s argument that this language identity,” and imposed a penalty for violations of its statutory provisions. Id. at 498 (quotation performance of their public duties) in any manner revealing th e individual’s or employing unit’s or be open to public inspection (other than to employers and public employees in the pursuant to the administration of this chapter shall be confidential and shall not be published Unemployment Compensation Act provided that information “obtained from a n individual employment records from the Unemployment Compensation Bureau. Id. At the time, the Marceau, 97 N.H. at 497. During discovery, the landlord sought production of the tenant’s Marceau dealt with an action for assault and battery by a tenant against her lan 3 aware of po ssessing any proof of domicile. (Q uotations omitted.) provided the evidence; or (d) whether the voter initialed that he or she was not

not be made public by the commissioner or any other person and shall be proceeding”); RSA p. 4 400 - A:37, IV - a(a) (providin g that the covered materials “shall subpoena, or admission into evidence in any judicial or administrative covered materials “shall be protected from direct or indirect means of discovery, not be subject to disc overy or subpoena. See RSA 1 p. 5 51:13 - a, II (noting that the which specifically provide that the materials protected by their provisions shall statutes such as RSA 151:13 - a, II (2005) a nd RSA 400 - A:37, IV - a(a) (2018), the court contrasted the language found in RSA 654:45, VI with that used in use in judicial proceedings.” See Marceau, 97 N.H. at 498 - 500. In so ruling, 4 to “a clear legislative mandate” prohibiting the production of the Database “for that it was not to be voluntarily disclosed by the defendants, it did not amount language demonstrated that the Database was to be confidential, in the sense Company, 97 N.H. 497 (1952), the court ruled that, while the foregoing 3 that these terms created a statutory privilege. Rather, relying on Marceau v. of a misdemeanor.” However, t he court disagreed with the defendants’ position the voter database in any manner not authorized by this section s hall be guilty inspection),” and provided that “[a]ny person who discloses information from makes the voter checklists ma intained by each municipality open to public . . . subject to RSA 91 - A (the Right to Know Law) and RSA 654:31 (which VI, as then in effect, made the Database “private and confidential and . . . not disco very by virtue of RSA 654:45, VI. The court recognized that RSA 654:45, The court next concluded that the Database was not exempt from 5

23 order also denied the plaintiffs’ motion for summary affirmance of the trial court’s orders. 3). This court’s May 23 order accepted the petition with respect to Quest ion 1 only. The May denying the defendants’ motions to dismiss based on the plaintiffs’ lack of standing (Question between the defendants’ offices regarding SB 3 (Question 2), and (3) the trial court’s orders defendants to produce discovery concerning all communications and meetings within and defendants also sought interlocutory review of (2) the trial court’s orders requiring the trial court’s order requiring the defendants to produce the Database (Question 1), the In the petition for original jurisdiction, in addition to seeking interlocutory review of (1) the p. 5 5

absentee ballot process, the legislature reiterates that this registration database, including information obtained in the Based on the highly confidential inf ormation contained in the voter

follows: amendment to a pending bill, the purpose of the legislation was explained as to the trial court’s order by amending RSA 6 p. 5 54:45, VI. Added as a floor While the ca se was pending before this court, the legislature responded

court accepted on May 23, 2018. p. 5 5 the defendants filed the instant petition for original jurisdiction, which this the conclusion of the litigation. Not satisfied with these proposed limitations, attorneys and experts, and would be promptly returned to the defendants at devices connected to the internet, would be accessed only by plaintiffs’ portions of the Database produced to them would not be maintained on any driver’s license and social security numbers. The plaintiffs also agreed that the necessary to their expert’s analysis, which excluded disclosure of voters ’ production to only those fields of the Database that they believed were The plaintiffs proposed a protective order in which they agreed to limit

within ten days. parties to meet and confer, and submit a proposed protective order to the court addressed through the issuance of a protective order. It therefore ordered the amount of private information,” but concluded that this concern could be discovery. The court recognized that the Database contains a “significant preclude the plaintiffs from obtaining production of the Database through possib le existence of other sources for the information it contains did not Databas e was both relevant and non - privileged, the court ruled that the dealing with privileged information. In light of its conclusions that the availability of alternative sources was a relevant consideration only when N.H. Med. Ctr., 1 p. 5 53 N.H. 607, 615 - 16 (2006), t he court reasoned that the Database. Citing Breagy v. Stark, 138 N.H. 479, 482 (1994), and Desclos v. S. sought by the plaintiffs could be obtained through means other than the The court also rejected the defendants’ argument that the information

evidence in any private civil action”). be subject to subpoena, and shall not be subject to discovery or admissible in confidential by law and privileged, shall not be subject to RSA 91 - A, shall not p. 6 6

statute that adversely affects a person’s substantive rights may not be applied Citing Appeal of Silk, 15 p. 6 6 N.H. 539 (2007), the plaintiffs argue that a

LLC, 1 p. 6 68 N.H. 71, 75 (2015); State v. Dor, 165 N.H. 198, 205 - 06 (2013). under existing law.” (quotation omitted)); see also Hogan v. Pat’s Peak Skiing, doing, it may not deprive a person of a property right theretofore acquired change existing laws, both statuto ry or common, at its pleasure, but in so inhibited by either the State or Federal Constitutions, the Legislature may Joint Underwriting Assoc., 159 N.H. 627, 648 (2010) (“Unless otherwise the la w through statutory enactment. See, e.g., Tuttle v. N.H. Med. Malpractice when the legislature disagrees with a judicial decision, it is at liberty to change frequently had occasion to observe, subject only to constitutional limitations, court’s construction and effectively overruled that decisi on. As we have statute conclusively demonstrates that the legislature disagreed wit h the trial correctly construe the statute as then in effect, the 2018 amendment to the 654:45, VI was correct or erroneous. Even if we assume that the trial court did erroneous, or whether its construction of th e pre - amendment version of RSA decide whether the trial court’s application of Marceau was correct or concluding that the Database is subject to discovery. We find it unnecessary to hand, argue that t he trial court correctly applied our decision in Marceau in Database exempt from discovery in civil litigation. The plaintiffs, on the other version of RSA 654:45, VI in effect at the time of its order as not making the The defendants contend that the trial court erred in construing the

(2011). de novo, see ATV Watch v. N.H. Dep’t of Transp., 1 p. 6 61 N.H. 746, 752, 763 here, the court’s ruling is based on its construction of a statute, our review is of discretion standard, Kuk e sh v. Mutrie, 168 N.H. 76, 80 - 81 (2015), where, as management and related issues deferentially under our un sustainable exercise Although we generally review trial court decisions regarding discovery

The amendment took effect on June 25, 2018. 329:8, (codified as amended at RSA p. 6 654:45, VI (Supp. 2018)) (emphasis added). pursuant to a subpoena or civil litigation discovery request.” Laws 2018, 654:31, nor shall it or any of the information contained therein be disclosed be private and confidential and shall not be subject to RSA 91 - A and RSA the highlighted language to the first sentence thereo f: “The voter database shall the G overnor signed into law an amendment to RSA 654:45, VI, which added Law s 2018, 329:7. To accomplish this purpose, t he legislature adopted and

civil discovery request. set forth in RSA p. 6 654:45 and never in response to a subpo ena or information must be protected and shall not be disclosed except as p. 7 7

901 (S. D. 1991) (explaining that s tatute altering requirements for obtaining remedial and did not infringe vested rights); Dahl v. Sittner, 4 p. 7 74 N.W. 2d 897, confidential to autopsy performed before its enactment because statute was App. 2002) (upholding application of statute making autopsy photographs Communications, Inc. v. Earnhardt, 821 So. 2d 388, 397, 401 (Fla. Dist. Ct. before their enactment without raising concerns about retroactivity.”); Campus 275 (1994) (“Changes in procedural rules may often be applied in suits arising N.H. 690, 695 (1983); see also Landgraf v. USI Film Products, 511 U.S. 244, constitutional prohibition on retrospective laws. S ee Gelinas v. Mackey, 123 legislative expression to the contrary.”). Such application does not offend the (“Procedural laws apply both prospectively and retroactively unless there is N.H. 590, 592 (1980); 73 Am. Jur. 2d Statutes § 240, at 470 (2012) applies to cases pending at the time of its enactment.” In re Snow Estate, 120 “Where a statute is . . . procedural in nature, there is a presumption that i t to an action ascertain the existence of material facts previously unk n own.”). N.E.2d 1010, 1012 (Ind. 1994) (“Discovery is the process by which the parties procedural aid for the parties in litigation); see also Jacob v. Chaplin, 639 Boston & Maine R. R., 102 N.H. 179, 181 (1959) (noting that civil discovery is a issue of discovery, a quintessential ly procedural matter. See McDuffey v. Furthermore, the 2018 amendment of RSA 654:45, VI addresses the

unconditional, inde pe ndent of a contingency”). (explaining that a vested right is one that is “absolute, complete and omitted)); Church Mut. Ins. Co. v. Dardar, 145 So. 3d 2 p. 7 71, 2 p. 8 81 (La. 2014) depending on any contingency, but absolute, fixed, and certain.” (quotation (2005) (“A perfect vested right can be no other than such as is not doubtful, or vested right. Id.; see In the Matter of Goldman & Elliot, 151 N.H. 770, 774 at 648 (quotation om itted). Such expectancy is not sufficient to establish a of existing law” that they woul d gain access to the Database, Tuttle, 159 N.H. plaintiffs had a mere “expectation based on an anticipation of the continuance int erlocutory appeal was filed by the defendants, it is clear that, at most, the Database had not actually been disclosed to the plaintiffs at the time the to do but execute the judgment.” (quotation and brackets omitted)), and (2) the generally do not end the litigation on the merits and leave nothing for the court v. American Numismatic, 233 F.3d 895, 897 (5th Cir. 2000) (“D iscovery orders evidentiary matters any time prior to final judgment); A - Mark Auction Galleries that the trial court retains the discretion to correct its decision on pretrial prior to final judgment, see State v. Haycock, 139 N.H. 610, 611 (1995) (noting was subject to revision by the trial court within its sound discretion at any time Indeed, given the facts that (1) the decision was a no n - final discovery order that upon the plaintiffs a substantive o r “vested” right to obtain the Database. workers’ compensation law, id. at 543, the trial court’ s order did not confer other liabilities and rights” that accrued at the time of injury under the attorney ’ s fees at issue in Silk, which we held were “indistinguishable from retroactively. See id. at 542. That is true enough, but here, unlike the 8

conclusion that the legislature acted for the purpose of maintaining the carry. The reason is that the circumstance i s equally susceptible to the circumstance simply will not bear the weight which the plaintiffs ask it to was enacted as a response to the trial court’s discovery order. But that unconstitutionality of SB 3 is the bare circumstance that the 201 p. 8 8 amendment inhibiting them from discovering evidence that would allegedly reveal the offer in support of their claim that the legislature acted for the purpose of There are two answers to this argument. First, the only basis th e plaintiffs insulating itself and a law it passed — SB 3 — from full, meaningful review.” party changed the law to interfere directly with a pending lawsuit, thereby retroactively in this case because it involves a situation “where a self - interested would be “exceptionally problematic” to apply the 2018 amendment Notwithst anding that the law is procedural, the plaintiffs argue that it

Id. sought only to aid in deciding whether the substantive law has been violated. the right to vote under the New Hampshire Constitution. The Database is Commission, 101 N.H. 503, 506 (1959). Here, t he substantive law at issue is law is to facilitate decision of the case on the merits.” Nashua v. Public Utilities (quotation and brackets omitted)). Put another way, “the purpose of procedural right and relate to the form of the proceeding or the operation of the laws.” ones,” whi le “[p] rocedural laws prescribe a method for enforcing a substantive substantive laws establish new rules, rights, and duties or change existing brackets omitted); Church Mut. Ins. Co., 145 So. 3d at 2 p. 8 83 (“By definition State Jobbers, Inc., 180 F. Supp. 3d 190, 197 (D. Conn. 2016) (quotation and methods of enforcing such rights or obtaining redress.” Morrison v. Ocean law creates, defines and regulates rights while a procedural law prescribes the either substantive or procedural law, it is generally agreed that a substantive remedies enforcing those rights.”). “W hile there is no precise definition of substantive rights and liabilities from those that solely affect procedures or A rticle 23 constitutional] analysis, we distinguish new laws that affect Goldman & Elliot, 151 N.H. 770, 772 (200 5) (“When engaging in [a Part I, 897. Nor could the law be classified as substantive. See In the Matter of matter. See Haycock, 139 N.H. at 611; A - Mark Auction Galleries, 233 F.3d at judgment and the trial court retained the discretion to reverse itself on the within the Database. T he rights were not vested given that th ere was no final substantive and that they had a vested right to the information contained Indeed, thi s claim rests on the plaintiffs ’ assumption that the law was amendment should not apply retroactively to this case necessarily fail s. In light of the foregoing authorities, the plaintiffs ’ argument that the

to the change). law apply to all pending cases whether or not the cause of action accrued prior C.J.S. Statutes § 57 p. 9 9, at 763 (2009) (noting that amendments to a procedural therefore was properly applied to claim arising before statute took effect); p. 8 82 discovery in regards to claims for punitive damages was procedural and 9

that are already final.” Armijo v. Miles, 26 Cal. Rptr. 3d 623, 633 (Ct. App. though any such law cannot readjudicate or otherwise disregard judgments amending a statute and applying the change to both pending and future cases, “[s]eparation of powers principles do not preclude the Legislature from proceeding and required reversal of the trial court’ s judgment). In sum, the became effectiv e while the condemnation order was on appeal, applied to the calling for restoration of vessels “not yet definitively condemned,” which Sc hooner Peggy, 5 U.S. (1 Cranch) 103, 107 - 10 (1801) (holding that a treaty before an interest is perfected in the donee.”); s ee also United States v. complaint. The power that authorizes or proposes to give, may always revoke amendments or repeals of those laws, those individu als have no cause of become vested in particular individuals, the conv enience of the state produces unless they impair rights which are vested. . .; and if, before the rights opposed to those fundamental axioms of legislation before particularized, judgment. See Merrill, 1 N.H. at 213 - 14 (“Nor can acts of the legislature be from revision by legislation prior to the time it attains the status of a final 2018 amendment modified does not amount to a judgment that is immune (2015). In contrast, t he interlocutory trial court discovery orde r which the that has already abated.” 16 C.J.S. Constitutional Law § 30 p. 9 9, at 400 - 01 “state legislatures cannot, as a gene ral rule,” pass legislation “reviving [a suit] final judgment against him. Id. at 205. Indeed, it cannot be disputed that legislation that grant ed a new trial to a litigant after the court had entered a this case. In that case, the enactment w hich the court struck down was judgments of the judiciary.”). Merrill, however, is readily distinguishable from the legislature, if the legislature could at pleasure revise or alter any of the N.H. at 210 (“But the judiciary would in every respect cease to be a check on amounts to a legislative revision of a judgment of the judiciary. See Merrill, 1 of powers provisio n of Part I, Article 37 of the State Constitution because it suggest that the enactment of the 2018 amendment contravenes the separation Finally, c iting Merrill v. Sherburne, 1 N.H. 199 (1818), the plaintiffs

unconstitutional.” Libertarian Party N.H. v. State, 154 N.H. 376, 387 (2006). such motivation “is not a recognized basis for declaring a statute the legislature acted with a ne farious motive in enacting t he 2018 amendment, legislation. In this regard, we note that, to the extent the plaintiffs suggest that we are aware of no legal basis u pon which we cou ld fail to give effect to the any other provision of the State or Federal Constitutions. That being the case, address below, the p laintiffs do not contend that the 2018 amendment violates Aside from their allusion to a separation of powers violation, an issue we the plaintiff s to pursue a challenge to another law enacted by the legislature. legislative directive merely because doing so would make it more difficult for supporting the proposition that we may refuse to enforce a duly enacted Second, t he plaintiffs do not cite — nor are we aware of — any authority

preserve. confidentiality of the Database, which the legislature deemed important to p. 10 10

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

to be disturbed here, the constitution is not offended by the legislative action. 2005) (quotation and brackets omitted). Because there was no final judgment