29 August 2007

KingCast presents: RSA 91-A Declaratory Judgment Motion 3.0 for Liko Kenney in Franconia shooting tragedy.

Here it is. After some fine tuning it will go out Friday or Monday. Quote:

"Turning to State v. Theodosopoulos [citation], we find New Hampshire Courts moving toward greater, rather than less, disclosure. While the issue is not directly on point some of the movement in this case may inform the Court’s judgment. In Theodosopoulos the Court was addressing the availability of a police officer’s file in a case where the officer is a material witness. The Defendant in that case had been involved in an automobile collision with an officer and sought “all information, documentation or disciplinary memoranda which would serve as exculpatory evidence either where the information relates to (Officer) Defina’s credibility or his use of police vehicles.”

The Attorney General’s office lost a Supreme Court challenge over a Hooksett Court ruling that compelled production of a police officer’s personnel file. The Supreme Court held that the lower Court did not err in providing substantial portions of the file instead of using an in-camera inspection because the Defendant is entitled to ALL exculpatory evidence, and that’s what was requested.

In this case, Plaintiff is analogously moving for exculpatory evidence for Liko Kenney, who repeatedly voiced his concerns that he was scared of Bruce McKay as were many other people in the community. The public has a Right-to-Know anything and everything that is in McKay’s file that in any way implicates lack of fitness. In essence, the exculpatory file in this case goes beyond the set of things that concern operation of a motor vehicle and actually extends to the set of things that govern the operation of his badge.


Christopher King said...

......Liko Kenney has suffered for exercising his First and Fourth Amendment Rights. Plaintiff has suffered for exercising his First Amendment Rights, and many citizens of Franconia suffered for falling into the path of Bruce McKay, and that is why we are here today:

The blood of Liko Kenney and Bruce McKay may wash over the souls of the Franconia Selectmen and NH AG Kelly Ayotte but this Court has the option to help us move forward to a new and brighter day.

V. Model policy

“Defendant shall be ordered to provide a copy of Bruce McKay's entire personnel file for review and inspection by KingCast and any and all other members of the media. Plaintiff will identify the documents he wants to reproduce to the general public. If there are documents that Defendant believes are actually protected by privacy concerns they will mark such documents and the parties will visit the matter on the Court, which will maintain jurisdiction. Should Plaintiff in the interim (or subsequently if the Court sustains the objection) post any information that came exclusively from those sequestered documents, it shall be criminal contempt of the Court.

The documents need not leave custody of counsel for the State, and any medical issues pertaining to family members that are linked only by way of genetics, or that clearly have no relation to the officer’s ability to function shall not be sought for publication.”

Christopher King said...

"When the exemption is claimed on the ground that disclosure would constitute an invasion of privacy, we examine the nature of the requested document . . . and its relationship to the basic purpose of the Right-to-Know Law." Id. The party resisting disclosure bears a heavy burden to shift the balance toward nondisclosure. N.H. Housing Fin. Auth., 142 N.H. at 554.

In this case the balancing contest clearly favors disclosure. Plaintiff is not seeking to publish any intimate detail of Bruce McKay’s personal life unless it implicates some element of criminality or substantially aberrant behavior. As such, the entire file must be available for inspection, whether be he alive or not.

The documents that they have produced fall well short of that, and the Defendant did not initially offer Plaintiff a Vaughan index. See correspondence file at Attachment____.

The simple fact is, media is entitled to full access subject to reasonable restrictions on publication. In fact, That is far different than having the government tell us "you can come down here and pick up what we decide to give you," which is the sort of approach contemplated by a Vaughn index.

But in a case like this, given the history of serious allegations and complaints of misconduct, the media should be entitled to more than that."

Christopher King said...

Sometimes you've just gotta' sue 'em:

Telegraph editorial 4 Feb. 2007:

"Has the United States reached such a point of political correctness and potential lawsuit aversion that we are willing to give up essential liberties for the sake of avoiding uncomfortable debate?

Apparently so in Nashua, a least until the threat of a real lawsuit looms.

Nashua Board of Education members unanimously voted last Monday to eliminate a year-old restriction on public comments at their meetings. The limits, both vague and potentially unconstitutional, prohibited citizens from discussing “administrative and personnel-related problems.”

In any public or private enterprise “administrative and personnel-related” issues cover a great deal of territory. Interpreted broadly, the policy could have been used to shut out public comment on almost any issue brought before the school board.

The rule went largely unnoticed until October 2006 when Paula Johnson, a former alderman, was told she could not speak about Superintendent Julia Earl, who was, and still is, on paid leave.

Two more months passed before Nashua resident Chris King again attempted to speak about Earl during a December meeting. When he was told to stop, King’s response was a pledge to get the policy revoked.

The school board began an internal review of the rule, but received vastly differing opinions from city and outside attorneys, and appeared themselves to be split on the issue.

To justify the policy, several board members cited the potential for defamatory speech by members of the public targeted at school employees.

While anything is possible, it is a thin excuse and a legal leap of faith to assume the school board could be held liable for such behavior. Nonetheless, several of the board’s lawyers backed up this contention.

So King, who has practiced as a lawyer in Ohio, threatened his own lawsuit against the board and came within hours of filing the paperwork. The suit was avoided when the board called a policy committee meeting, leading to the vote last week to change the rule.

The about-face on the part of the school board is to be praised as a common sense decision. However, more praise would be due if the change had not been due largely to outside pressure and the threat of a lawsuit.

The school board, and its attorneys, would be well served to remember who the public in “public comment” is: their employers, the taxpayers.

The school board has done the right thing, but the impression we are left with is that many members did it grudgingly. The board needs to change its thinking and reframe its approach when dealing with the public.

Yes, there should be rules enforced to maintain a civil and productive public debate during governmental meetings.

However, there is no excuse for imposing rules out of fear at the expense of an open and public discussion of the issues.


BACKGROUND: The Nashua Board of Education, under threat of a lawsuit, has reversed its previous policy of not allowing members of the public to comment on school personnel during the public comment section of its meetings.

CONCLUSION: The school board has done the right thing and this should be a first step in reframing how the board deals with the public.