10 March 2008

KingCast presents on the eve of Franconia Selectman election: A Decision on the Merits in KingCast v. Ayotte and Town of Franconia, 07-E-268.

Cross post: BostonNow, NH Indy Media, Nashua Telegraph, NH Underground, Disbar NH AG Kelly Ayotte. The Decision is 31 pages long. Kelly took some hits. I'm not done reading the Decision. That will take me a day or two to digest and let it sink in. Sure I lost some things I think I could have won on but that's okay. What I did win, is huge. I will pick at this Decision like a fine piece of warm pecan pie with Hagen Dazs French Vanilla Ice Cream a la mode. That's Kelly's just dessert.
Regarding the video of the 5/11 dash cam:
"[KingCast] may copy the original video under supervision of custodial police authority."

And the AG's office got dinged for failing to provide protocol regarding homicide investigations:
"The Court has reviewed the cases and affidavits on which the Attorney General's office relied in originally denying the Petitioner access to its protocols for investigation of a homicide and finds that such withholding was not justified."


As KingCast requested, the State was ordered to provide some Affidavits as to the validity and depth of their purported searches for information, which is good:

As to the Troy Watts Complaint against Bruce McKay (here it is, and to KingCast one of the 3 most important issues) the Court wrote:
In this case, the Petitioner has demonstrated several positive indications of materials that were not located in the search, including Attorney Watts' statement as to the existence of his complaint against Officer McKay, and a document that may be the requested police report, inadvertently disclosed (KingCast is in possession of what appears to be a police report that Franconia claimed not to have!)

The Franconia Defendants must therefore undertake another search, since this search lacks indicia of reasonableness. In order to establish to the Court that the Town has undertaken an adequate, reasonable search, affidavits by any personnel involved in the search should describe the locations searched, as well as the terms and results of any computerized searches. After a reasonable and adequate search, the Court will be able to determine whether RSA 91-A was or was not violated, even if the documents cannot be found.

Given the lack of New Hampshire precedent on this subject, it would be inappropriate for the Court to grant the Petitioner's motion for declaratory judgment under the Federal cases requiring an affidavit detailing a good-faith search. The declaratory judgement motion is accordingly not ripe. The Court will consider the Petitioner's Motion for a declaratory judgment after the respondents provide either an affidavit describing the search, or the documents themselves.

Note: KingCast placed Defendant and the entire Free World on notice of the case law of Truitt v. Dep't of State and Kean v. NASA long ago in the now-infamous "Dog can't eat your homework" post. The Court was most gracious to allow them one last chance. Let's see what they do with it.


Also, the State is Ordered to provide many documents from Bruce McKay's personnel file for in camera inspection.

I will listen to the hearing again (available on YouTube by searching Franconia511 channel) but I could SWEAR that I heard Attorney Mullen specifically tell His Honor that he was at the time of hearing providing ALL of the personnel file for his in camera inspection AT THAT TIME.

I will listen to the audio again this evening for further explication and identify the salient portion of the hearing right here in a link right here.


In my estimation the court did not fully address my argument that Franconia's initial outright denial of any of Bruce McKay's personnel file was a violation of RSA 91-A/FOIA.

That one's going upstairs for certain.


Also, regarding the 150+ responses to the Franconia Recovery and Reconciliation Committee, I had publicly acknowledged in the audio of the hearing and in the Pleadings that the documents are not yet public record because they have not been provided to the Town for the PAST 9 MONTHS despite promises to do so. The Court denied my request for production and stated that the proper remedy was to seek an appeal rather than continued jurisdiction.

I am now picking and choosing the KingCast issues for appeal, and I'm sure the State is looking at its options as well.


As for assessment of costs and fees, the court ordered further briefing on those issues. At this point I will remind the entire Free World that Punitive Damages have been awarded in FOIA cases, and as RSA 91-A follows FOIA, the possibility exists for such an award in the case at bar. All of that law is thoroughly briefed and argued and may be heard in the YouTube/KingCast/Franconia511 audio.

That is all for now.

I have a lot of motorcycles to sell --yah, I'm Internet Manager at Best Cycle and #1 seller last month and this month and hope to rock that trend coming into the busy season so I can replace the Clydesdale (RIP) -- and I've a lot of work to do on this and many other cases.

Related post: Capleton, Oliver Ruff, some of Liko's Friends and KingCast are all living in the Danger Zone.



Christopher King said...

Those of you looking for some pronouncement from the Court that the case was frivolous or ill-founded will be forever left in search of.

Those of you truly interested in the Cause of Justice should continue reading on this topic and the related case I argued this morning about the Intellectual Property misappropriation of Brian Jesseman's likeness and cachet as Liko Kenney's friend and the son of Selectman candidate Jeffery Jesseman.

I want to tell some of you to kiss may ass so bad I can hardly refrain from typing it, but I won't go there =^.)

KingCast: It's a lot of work.

No bullshit.

Just a lot of work.

Christopher King said...

You know what's funny as hell?

I might not appeal anything.

Basically, I'm good enough.

Let's see if Kelly and Franconia can say that.


Christopher King said...

Ahh, but there is at least one issue:

The court wrote:

"It is unclear whether [Gregory Floyd's] military record was in the possession of the Attorney General's office before the office disclosed it to the Petitioner."

Perhaps this email will aid the Court in the KingCast Motion for Reconsideration on that point.

"Items 1, 6 and 7 were in our possession and not released by our office; and Items 2, 3, 4 and 5 were in our possession and released by our office."

As Bruce McKay would say to the town folk, I'll say to Kelly:


Christopher King said...

One more thing:

Some of the hypocrisy I noticed in my quest for Justice and open government in New Hampshire includes the NH AG's office failing to ensure that the Annual Right-to-Know Report was issued in 2006 and failing to provide their homicide investigation protocol after the Franconia shooting tragedy. They violated that policy, of course.

And one thing that I did not see the Court address that will come up in a Motion for Reconsideration is Defendant Ayotte's refusal to provide any of the fingerprint evidence about Gregory W. Floyd and whatever he did with Liko Kenney and Bruce McKay's guns as requested, despite the fact that Trooper Cooper told Floyd that was important, and despite the fact that one of Liko Kenney's live rounds was found in Floyd's pocket after Floyd said he could not get Liko's gun unjammed.


Read about that here.

It would be onerous to have to file another lawsuit on that case but if the Court declines to address it, guess what's going to happen.

As they say down South, and as I say to Kelly:

"Amal git what I came to git."


Anonymous said...

Good job, Chris!!

I look forward to seeing what else you come up with as you fine tune your viewing of the decision.

Sooooo...you get to copy the original from 5/11? This is really good news. How do you make sure it is the original? We all know there is sound so does that mean we will get that? Will the original be unadultered?

Good luck to you and Brian. I hope it went well yesterday and I hope Jeff rocks the house with his run for the select board today.