12 March 2008

KingCast Supplemental Motion to Reconsider: Why was Bruce McKay on medication, and why was he allegedly subject to attorney client privilege?

Here is the linked version at Scribd.com.

I. The documents identified by Petitioner are not exempt by RSA 91-A:5.

Immediately after mailing his Limited Motion for Reconsideration Petitioner retrieved a letter from Franconia Counsel Dan Mullen, in which he essentially claims that all of documents in Bruce McKay’s personnel file are exempt. Defendant writes
“We believe Item P should not be disclosed because it contains medication information and thus it would be an invasion of privacy. Moreover, the document is protected by Attorney/Client privilege. Items TT and UU should not be disclosed because the documents are an internal personnel investigation and are exempt pursuant to RSA 91-A:5.”

The first thing that is striking is the fact that Bruce McKay was on some sort of medication. If it’s medication for a skin condition that’s one thing. But if he was on psychotropic drugs the public is entitled to know that because that would have an influence on, and be related to his performance on the job. See generally Hansen v. Lamontagne, 808 F. Supp. 89, 1992 U.S. Dist. LEXIS 19301 (D.N.H. 1992).

Lamontagne was very similar to Bruce McKay, with all matter of registered attempted complaints against him and people suggesting counseling, etc. etc. just like Ms. B did after her Bruce McKay knife-near-labia experience. Here’s what the selectmen said:
He has to be protected by the Chief, why else would he be able to break into a house in Cascade and when the woman came to file a complaint, the police would not accept [it].
* * *
Take the Rozek case[.] 1 [Police Chief] George Gazey recommended counselling for Officer Hansen, [and] that's a matter of record. Counselling tells me that he was at fault.

The Court ruled that was protected speech.

Moreover, Defendant does not offer an Affidavit or description of the document or how and why it is purportedly privileged. Unless there is some sort of pending litigation and the communication is between Bruce McKay and counsel pursuant to litigation, it’s not privileged and must be produced for the general public. In re Grand Jury Subpoena, 274 F.3d 563 (1st Cir. Mass 2001).
“The work product rule protects work done by an attorney in anticipation of, or during, litigation from disclosure to the opposing party. The rule facilitates zealous advocacy in the context of an adversarial system of justice by ensuring that the sweat of an attorney's brow is not appropriated by the opposing party.”

There hasn’t been any litigation involving Bruce McKay, so the documents are ipso facto not subject to privilege. The burden of proving the existence of the attorney-client privilege is on the party asserting the privilege. United States v. Cardiges, 881 F. Supp. 717 (New Hampshire District, 1995) Defendants had better be prepared to offer some serious explanations before this turns into a Federal Case.

Lastly, to be clear, the documents Petitioner has filed with the Court, as identified herein and previously identifed as Appendix Attachments KS 111 through 115, inclusive, do not fall within any exemption. They are simply training and job evaluaton reports. [KingCast note: Some of them are used as art for this post, which goes back to the Three Blind Mice post].

II. The Town’s responses as seen at KS 11 and KS 15, inclusive, violated RSA 91-A.
At KS 11 Franconia Administrative Assistant Sally Small wrote Petitioner on 3 July 2007
“The documents in Corporal McKay’s files are all personnel related and fall into the category of personnel records. Therefore, the records will not be disclosed to you because of the reasons I have just mentioned.”

Ms. Small’s opinion was seconded by town counsel Dan Mullen, who wrote at KS 15,
“It is my understanding that Chief Montminy informed you that the personnel records of Bruce McKay would not be provided as they are exempt from disclosure pursuant to RSA 91-A:5.”

With all due respect, Petitioner submits that those responses, which fail to even provide for the possibility of a Vaughn index, are patently unlawful and stand in absolute violation of RSA 91-A because they constitute a blanket denial.

That calls for the imposition of heavy sanctions:
Imposition of heavy penalties for violating the Right-to-Know Law, codified at N.H. Rev. Stat. Ann. § 91-A (1990), may be appropriate to ensure the broadest possible access to public records, and thus summary disclosure is one remedy available to trial courts where a non-public body fails to reasonably comply with an order for a document index.
Vaughn v. Rosen, 157 U.S. App. D.C. 340 (1973), Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540, 1997, followed by Murray v. N.H. Div. of State Police, 154 N.H. 579 (2006). The Union Leader case is a decade old and Attorneys Mullen and smith were on the losing end of Murray that initiated in this very court so they are most definitely charged with the duty to know their responsibilities in this area, and in that light Franconia’s responses are all the more repugnant.
Petitioner thanks this Honorable Court in advance for its consideration of these matters that are quite complex in nature.

Petitioner thanks this Honorable Court in advance for its consideration of these matters that are quite complex in nature.


Christopher King said...

Whatever happens, this case is going to be properly litigated. A girlfriend of mine from the American Tower days of 2002/3 wrote me today:

"Good for you re: legal stuff. You've always been tenacious & I think your opponents underestimate you greatly [on] dedication to a case."

Yah, she knows me, huh. She also knows a bit about corporate lawyer-think and how they usually get tripped up when they step to the Kid =^.)

KingCast and Busta' Rhymes say Whoo-Hah!

When we step up in the place you know we step correct.... We got that head nod sh*t that make you break yo' neck.... Whoo hah! Got you all in check....

Christopher King said...

On the Attorney/Client issue, it sure would be funny to discover my assertion that Bruce McKay was not ever subject to litigation.... was wrong.

Because they've never said he was subject to litigation.

Nice little Catch-22, Heller would be proud.

And here they thought -- or at least hoped -- they were dealing with an amateur.


Christopher King said...

My comment from a current Topix thread:

Wait a minute.

The drugs, the medication......

Is the reason they never fired McKay because he had a mental or emotional defect and they feared litigation?

The mind boggles.

Christopher King said...

Wanna' know something funny?

New Hampshire is a small State and the same group of lawyers handles ALL of the First Amendment stuff.

My opposing counsel in KingCast v. Jesseman, Hillsborough South 07-E-093 is Greg Sullivan/Kate Sullivan, who argued Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540, 1997, that KingCast just cited in support for heavy sanctions for nondisclosure.

It's a small World, and little people got Lexis now, and we're not afraid of anyone. Here's what I told Attorneys Sullivan the other day:

Date: Tue, 11 Mar 2008 18:25:20 -0700 (PDT)
From: "Christopher King" kingjurisdoctor@yahoo.com
Subject: Why is your client really fighting KingCast/Jesseman v. UL 08-E-093???
To: [blankety-blank private email address]
CC: kingjurisdoctor@yahoo.com

Dear Attorneys Sullivan:

You know this is wrong, morally and legally just as
sure as Defendant Ayotte knew it was morally and
legally wrong not to forward me that homicide protocol when I asked for it as Judge Vaughn held:


The record company peer-to-peer copyright cases obtain here unless you are going to stand before the Court and argue that Brian Jesseman does not have a copyright on his own Intellectual Property that he carries inside his head.

The distinguishing factor then would be that Mr.
Jesseman -- unlike the record companies -- has no standing because his thoughts were not bundled to manifest pecuniary gain but were instead bundled to manifest political gain, so that's fair game for someone to in effect steal those thoughts (even falsely ascribing such thoughts to him) and use them for political gain.

I'll be more than happy to argue that issue before
this or any court of appeal, and even if I don't have
standing this very passage will appear in the Court
file for Brian's attorney should he have to hire one.

This is not Falwell v. Hustler, either.

This is immoral and unlawful conduct is what it is.

And I'm still not too pleased with your client's
apparent last-hour reversal of position on these

Best regards,

Christopher King, J.D.

Anonymous said...

just so ya know, folks are reading and following this, both from the blawg and linked to scribd.
there is much hidden, and much to be revealed...obviously, it needs to be dragged from them as they kick and scream.
without your efforts, just think of how reliably gullible the public has been.
then there's the matter of maura murray, as well. imagine being her father/family? what gives in the north country?

Christopher King said...


Yah, I know.

I've spoken with Fred Murray last summer and I vowed to him I would do everything in my power to bring the Truth to light.


Christopher King said...

More documents that disappeared. In today's post 1 Jan 2010 I begin restoring them.


Other pics I put up of nonpolitical issues are still hosted, what a coincidence.