Civil Law

An associate with Ford & McPartlin in Portsmouth, NH

No. 2018-0208
January 24, 2019
Vacated.

  • Whether the trial court erred in ordering production of the New Hampshire Centralized Voter Registration Database.

 

The New Hampshire Democratic Party, the League of Women Voters of New Hampshire and various other individuals brought an action against the New Hampshire Secretary of State and the New Hampshire Attorney General, challenging the constitutionality of Senate Bill 3 under the New Hampshire Constitution. During discovery, plaintiffs requested that defendants produce the New Hampshire Centralized Voter Registration Database. The trial court ordered the production of the Database. Defendants objected on the grounds that the Database was irrelevant and not subject to disclosure under RSA 645:45, VI. The parties were ordered to meet and propose a protective order limiting the fields of the Database to be disclosed. The parties did so, but, unsatisfied with the terms of the proposed protective order, the defendants filed the instant petition for original jurisdiction, which the court accepted. While the case was pending before the court, RSA 654:45, VI was amended to prohibit the disclosure of a voter database pursuant to a civil litigation discovery request.

The defendants argued the trial court erred in interpreting that RSA 654:45, VI did not make the Database exempt from discovery in a civil suit. The court found it unnecessary to address the interpretation as correct or incorrect because the recent amendment to the statute demonstrated that the legislature disagreed with the trial court’s ruling and effectively overruled it. Addressing retroactive application of the amendment, the plaintiff argued it had established a substantive or “vested” right to obtain the Database. The court disagreed and found that the mere expectation that the database would be produced was not sufficient to establish a vested right, and the right was not vested because the trial court had not issued a final judgment and therefore retained the discretion to revise its order requiring production.

Plaintiffs also argued the enactment of the recent amendment violated Part 1, Article 37 of the State Constitution, the separation of powers provision. Plaintiffs argued this violation amounted to the legislative revision of the judiciary’s judgment. The court found that the revision of a statute can be applied to pending and future cases, but not decisions already deemed final. Here, there was no final judgment, so the amendment did not violate the state Constitution.

The court concluded the Database was exempt from disclosure by statute and vacated the trial court’s order of production.

 

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

 

Wilbur A. Glahn, III and Steven J. Dutton, McLane Middleton, Manchester, Paul Twomey, Epsom, Mark Erik Elias, John M. Devaney, Bruce V. Spiva, Amanda R. Callais, Elisabeth Frost, and Uzoma Nkwonta, Mr. Spiva orally, for the League of Women Voters in New Hampshire, Douglas Marino, Garrett Muscatel, Adriana Lopera, Phillip Dragone, Spencer Anderson, and Sesha Mehta.

 

William E. Christie and S. Amy Spencer, Shaheen & Gordon, Concord, for the New Hampshire Democratic Party.