2020-0447, John Doe v. Attorney General

curiae. brief), for New Hampshire Association of Criminal Defense Lawyers, as amici and Wadleigh, St arr & Peters, of Manchester (Robin D. Melone on the joint Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint brief), American Civil Liberties Union of New Hampshire Foundation, of

brief, and Anthony J. Galdieri orally), for the respondent. attorney general, and Samuel R.V. Garland, assistant attorney general, on the John M. Formella, attorney general (Anthony J. Galdieri, senior assistant

Krupski on the brief, and John S. Krupski orally), for the p etitioner. Milner & Krupski, PLLC, of Concord (Marc G. Beaudoin and John S.

No. 2020 - 0447 Merrimack

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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

774, 777 - 79 ( p. 2 2015). purpose and origin of the “Laurie L ist” in Duchesne v. Hillsborough County Attorney, 167 N.H. called the Excul patory Evidence Sche dule (EES). Id. W e provide a detailed discussion of the Dep ’t of Justice, 173 N. H. 648, 651 (2020). The l i st, formerly known as the “Laurie List,” is now negatively on their credibility or trustworthiness. N.H. Ctr. f or Pub. Interest Journalism v. N.H. The AGO currently maintains a list of police officers who have engaged in misconduct reflecting 1

both the New Hampshire and Federal Constitutions in its August p. 2 27, 2020 Constitution, the trial court construed the petition as raising claim s under Because Doe had relied on two cases decided under the New Hampshire

objected. Doe failed to state a claim for relief under the Federal Constitution. Doe is generally not exculpatory in order to obtain removal from the EES; and ( p. 2 2) mechanism for judicial review of whether evidence in an officer’s personnel file dismiss the petition, arguing, inter alia: (1) RSA 105:13 - b does not provide a personnel file, removal from the EES, and attorney’s fees. The AGO moved to preliminary and permanent injunction s against the AGO, seeking review of his Constitution, Doe filed a petition for declaratory relief and a request for Citing RSA 105:13 - b and his right to due process under the Federal

overturning the original finding of misconduct. (AGO). Both requests were denied for lack of an “order or other determination” requests to remove his name from the EES to the Attorney General’s Office to make an argument against” his inclusion. Later, Doe submitted two because he “was in the full - time police academy, and he did not have the time S chedule (EES). Doe did not contest his inclusion on the EES at that time 1 personnel file, his name was being placed on the Exculpatory Evidence informed by a letter from the County Attorney’s Office that, from a review of his page written report. In April p. 2 2017, after leaving the department, Doe was be a misunderstanding, he later found that the inve stigation resulted in a one believe” he would only receive a “verbal counseling” for what he understood to in permanent marker on a department rain jacket. Although Doe “was led to department, Doe was investi gated by that department for denying that he wrote 532 (2019). In April 2016, while employed as a patrol officer by a town police this appeal. See Automated Transactions v. Am. Bankers Ass ’n, 172 N.H. 528, We accept the following factual allegations as true for the purposes of

further proceedings consistent with this opinion. the State Constitution. We affirm in part, vacate in part, and remand for injunctive relief for failure to state a claim under either RSA 105:1 p. 3 3 - b ( p. 2 2013) or Superior Court (Kissinger, J.) dismissing hi s petition for declaratory and HANTZ MARCONI, J. The p etitioner, John Doe, appeals an order of the 3

phrases in isolation, but rather within the context of the statute as a whole. Id. avoid an absurd or unjust result. Id. Moreover, we do not consider words and construe all parts of a statute together to effectuate its overall purpose and and, whenever possible, every word of a statute should be given effect. Id. We The legislature is not presumed to waste words or enact redundant provisions have said or add language that the legislature did not see fit to include. See id. interpret the statute as written and will not consider what the legislature might construe that language accord ing to its plain and ordinary meaning. Id. We (2020). We first look to the language of the statute itself, and, if possible, interpretation, our review is de novo. State v. Beattie, 17 p. 3 3 N.H. 716, 720 When, as here, the party’s arguments require us to engage in statutory

EES.” its equitable powers to order that the officer’s name [be] removed from the the “authority to review the underlying facts in these types of cases and . . . use proceeding. Doe asserts, in part, that RSA 105:1 p. 3 3 - b, II grants the trial court in the personnel file was exculpatory outside of a particular criminal exculpatory evidence; and (2) found that it could not consider whether evidence conduct an in camera revie w of Doe’s personnel file to determine if it contained Doe argues on appeal that the trial court erred when it: (1) declined to

we must affirm the grant of the motion to dismiss. See i d. applicable law, and if the allegations do not constitute a basis for legal relief, engage in a threshold inquiry that tests the facts in the petition a gainst the reasonable inferences in the light most favorable to the plaintiff. Id. We then 5 p. 3 32. We assume the plaintiff’s pleadings to be true and construe all construction that would permit recovery. Automated Transactions, 172 N.H. at allegations in the plaintiff’s pleadings are reasonably susceptible of a In reviewing a motion to dismiss, our standard of review is whether the

standard. This appeal followed. Constitutions because he had received adequate d ue process under either that Doe had failed to state a claim under either the Federal or State was exculpatory outside of a pending criminal case. The court then determined civil suit and that it d id not allow the trial court to consider whether evidence independent cause of action for an officer to seek a declaratory judgment in a exercise its equitable powers. It found that RSA 105:1 p. 3 3 - b does not create an alternative, whether it created a framework by which the trial court could action for officers to have their names removed from the EES, or, in the order. The trial court first considered whether RSA 105:13 - b created a cause of p. 4 4

issue shall be submitted to the court for in camera review. Id. 709. Par agraph II directs that, where such uncertainty exists, the evidence at evidence contained within police personnel files is, in fact, exculpatory. Id. at of RSA 105:13 - b covers situations in which there is uncertainty whether information to the defendant. See Shaw, 173 N.H. at 708. Next, paragraph II contain exculpatory evidence, paragraph I requires the State to disclose the as the personnel files of officers who appear as witnesses in a criminal case v. Hillsborough County Attorney, 167 N.H. 77 p. 4 4, 781 - 82 (2015). First, insofar in criminal cases. State v. Shaw, 173 N.H. 700, 708 (2020); accord Duchesne situations that may exist with respect to police officers appearing as witnesses As we have previously observed, RSA 105:13 - b addresses three

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

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

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

Confidentiality of Personnel Files.

RSA 10 p. 5 5:13 - b states: 5

personnel file outside the scope of a particular criminal case. does not authorize the trial court to review the contents of an officer’s review.” (quotation omitted)). Accordingly, we conclude that RSA 10 p. 5 5:13 - b, II exists, the evidence at issue is to be submitted to the court for in camera directs that, where such uncertainty [i.e., wheth er evidence is exculpatory] confidential. See RSA 105:13 - b; c f. Shaw, 173 N.H. at 709 (“Paragraph II that would not otherwise be discoverable in a particular criminal case remains Paragraph II, in particu lar, serves as a mechanism to ensure that information the State of New Hampshire, 174 N.H. at 793; s ee also RSA 105:13 - b. maintaining the confidentiality of those files for all other purposes. Petition of personnel files of any police officer testifying in a criminal case while turning over to a defendant any exculpatory or relevant evidence found in the 105:13 - b, II. However, read as a whole, RSA 105:13 - b details the procedure for contain a clause expressly referring to an officer serving as a witness. See RSA contained therein is not exculpatory. It is true that p aragraph II does not criminal case, and make a generalized determination that the evidence to review a police officer’s personnel file outside the context of a particular express provision referring to an officer serving as a witness, it allows the court contends that, because paragraph II of RSA 105:13 - b does not contain an 105:13 - b, I, and III are explicitly tied to a “particular criminal case.” Doe N.H. 78 5, 792 (2022), we articulated that disclosure requirements under RSA Recently, in Petition of the State of New Hampshire (State v. Fuchs), 174

case in rendering our decision. See id. determine whether RSA 10 p. 5 5:13 - b was available outside of a particular criminal was not. Id. There, u nlike the case presently before us, we did not need to to statutory exemption from RSA chapter 91 - A. See id. We determined that it in a police officer’s personnel file governed by RSA 105:13 - b and thus subject That decision addressed whether the EES was, itself, information maintained specific criminal case. N.H. Ctr. for Pub. Interest Journalism, 173 N.H. at 656. of that appeal, that RSA 105:13 - b could apply outside of the context of a Interest Journalism, where we assumed — without deciding — for the purposes argument misconstrues our analysis in New Hampshire Center for Public specific criminal case, and that we should conclude it does so here. Doe’s we have already found that RSA 105:13 - b can apply outside the context of a Hampshire Department of Justice, 173 N.H. 648, 656 (2020), Doe argues that Citing New H ampshire Center for Public Interest Journalism v. New

the scope of a particular criminal case. the particular criminal case. Id. None of these inquiries is conducted outside that probable cause exists to believe that the file contains eviden ce relevant to for non - exculpatory evidence unless the trial court makes a specific finding paragraph prohibits the opening of a police personnel file to examine the same nonetheless be relevant to a case in which an officer is a witness. Id. This Finally, paragraph III covers evidence that is non - exculpatory but may p. 6 6

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

given the statutory change. remand for further proceedings without prejudice to Doe amending his petition vacate the trial court’s ruling on the s tate c onstitutional due process issue, and should be considered, in the first instance, by the trial court. Accordingly, we State v. Brouillette, 1 p. 6 66 N.H. 487, 489 (2014), w e conclude that this issue appeal. Because we decide constitutional questions only when necessary, no need to decide the constituti onal question presented in this provides him with the relief that he seeks in the trial cou rt, then there may be argued in this court. If, as Doe argues, the enactment of RSA 105:13 - d The proper interpretation of RSA 105:13 - d has not been fully briefed or

an opportunity to refile the same com plaint.” appeal because it “does not create a new cause of action nor does it give [Doe] objected to this motion, contending that the new statute does not moot the which would make [his] case[] before the Supreme Court moot.” The State the position that, upon enactment, HB 47 1 creates a “new cause of action, of the statute, Doe filed a motion to stay in this court. In his motion, Doe to ok d, which speaks to officer placement on the EES. I d. Relying on the enactment 225. HB 471 amend ed RSA chapter 105 by adding a new section, RSA 105:13 appeal, the legislature passed House Bill 471 (HB 471). See Laws 2021, ch. Part I, Articles 14 and 15.” (Bolding omitted.) During the pendency of this plaintif f received sufficient due process under the New Hampshire Constitution Finally, Doe asserts that the trial court erred when it “concluded that the

(2019). insufficiently developed for our review. See White v. Auger, 171 N.H. p. 6 660, 665 jurisdiction to support his position, we conclude that such argument is above. Insofar as Doe seeks to invoke the trial court’s general equitable to conduct such a review, we reject this conclusion for the reasons articulated on RSA 105:13 - b to support his position that the trial court has the authority should have been overturned.” (Bolding omitted.) To the extent that Doe relies underlying facts of the case to determine if the ‘sustained’ finding of discipline exercise of discretion or erred as a matter of law when it failed to examine the Doe next asserts that the trial court “committed an unsustainable