2006 Winter, 52. LEX LOCI A Survey of New Hampshire Supreme Court Decisions.

AuthorBar Journal Author - Attorney Charles A. DeGrandpre

New Hampshire Bar Journal

2006.

2006 Winter, 52.

LEX LOCI A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar Journal Volume 46, No. 4, Pg. 52Winter 2006LEX LOCI A Survey of New Hampshire Supreme Court DecisionsBar Journal Author - Attorney Charles A. DeGrandpreJust as 2005 wound down, the New Hampshire Supreme Court handed down a very significant First Amendment/access to public records case, The Associated Press v. State of New Hampshire, opinion issued December 30, 2005. A unanimous Supreme Court, speaking through Justice Duggan, issued a luminescent opinion interpreting Part I, Article 8 and Part I, Article 22, of the New Hampshire Constitution in the context of a determination whether RSA 458:15-b, effective August 10, 2004, was constitutional. This recent legislation, in substance, provided that all financial affidavits filed in domestic relations cases were confidential and accessible only to the public upon certain conditions. The Court first reviewed the copious common law history relating to the public's access to court records and found that

[T]he public right of access to court proceedings and records pre-dates the State and Federal Constitutions and is firmly grounded in the common law. . . .The United States Supreme Court has also recognized the existence of a general common law right to access public records and documents, including judicial records. . . Both the State and Federal Constitutions were adopted against this common law background.

Turning to the most applicable New Hampshire Constitutional provision found in Part I, Article 8, ["Government, therefore should be open, accessible, accountable and responsive. To that end, the publics' access to governmental proceedings and records shall not be unreasonably restricted."], the Court found that, unlike the federal right of access found only implicitly under the First Amendment to the United States Constitution, the state constitutional right of access to court proceedings and records is explicitly provided by this provision of the New Hampshire Constitution:

New Hampshire is one of only a handful of States with a constitutional provision that explicitly protects the public's right of access to governmental proceedings and documents. . . .The explicit incorporation of the right of access to governmental documents into the State Constitution provides greater textual support to the constitutional right of access to court records than does the First Amendment.

Addressing the particular statutory provision before it (RSA 458:15-b), the Court concluded "that financial affidavits filed in domestic relations cases are subject to the constitutional right of access because they are important and relevant to a determination made by the court in its adjudicatory function in connection with a presumptively open proceeding." The Court ruled, however, that there was nothing in our Constitution that prohibits the legislature from enacting legislation that, with sufficient justification, creates a procedure by which a narrow category of documents is made confidential upon filing with the court. Yet, the Court found that the provisions of RSA 458:15-b, III providing for limited disclosure upon certain conditions were unconstitutional because they placed the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure:

In keeping with our prior cases, we hold that, whenever a member of the public, including the press, seeks access to a sealed court document, Part I, Articles 8 and 22 of the State Constitution require: (1) that the party opposing disclosure of the document demonstrate that 'there is a sufficiently compelling reason that would justify preventing public access to that document'; and (2) that the court 'determine that no reasonable alternative to nondisclosure exists' and 'use the least restrictive means available to accomplish the purposes sought to be achieved.'

This opinion's ringing endorsement of a broad interpretation of the right of the public to access public records will make this a seminal First Amendment/public access to records case for years to come.

Prosecutors, commonly thought to have wide and unabridged powers are, in law, subject to standards of prosecutorial overreaching as established by our Supreme Court. State v....

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