Petition of New Hampshire Secretary of State and New Hampshire Attorney General

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Original
No. 2018-0208

PETITION OF NEW HAMPSHIRE SECRETARY OF STATE
AND NEW HAMPSHIRE ATTORNEY GENERAL

Argued: November 27, 2018
Opinion Issued: January 24, 2019

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

McLane Middleton, Professional Association, of Manchester (Wilbur A.
Glahn, III and Steven J. Dutton on the joint brief), Paul Twomey, of Epsom, on
the joint brief, and Perkins Coie LLP, of Washington, D.C. (Mark Erik Elias,
John M. Devaney, Bruce V. Spiva, Amanda R. Callais, Elisabeth Frost, and
Uzoma Nkwonta on the joint brief, and Mr. Spiva orally), for the League of
Women Voters of New Hampshire, Douglas Marino, Garrett Muscatel, Adriana
Lopera, Phillip Dragone, Spencer Anderson, and Sesha Mehta.
 Shaheen & Gordon, P.A., of Concord (William E. Christie and S. Amy
Spencer on the joint brief), for the New Hampshire Democratic Party.

LYNN, C.J. The court accepted this petition for original jurisdiction, see
Sup. Ct. R. 11, to determine whether the Superior Court (Temple, J.) erred in
ordering the New Hampshire Secretary of State and the New Hampshire
Attorney General, defendants in litigation pending before that court, to produce
to the plaintiffs in the litigation, the League of Women Voters of New
Hampshire, the New Hampshire Democratic Party, and various individuals, the
New Hampshire Centralized Voter Registration Database established pursuant
to RSA 654:45 (Supp. 2018). We conclude that the Database is exempt from
disclosure by statute, and we therefore vacate the trial court’s order.

I

The record establishes the following pertinent facts. The cases1 before
the trial court involve challenges to the lawfulness of Senate Bill 3 (SB 3) under
the New Hampshire Constitution. Enacted as Laws 2017, chapter 205 and
codified in RSA chapter 654, SB 3 changes the way in which persons must
substantiate their domicile when registering to vote. See generally RSA 654:2
(Supp. 2018); RSA 654:7 (Supp. 2018); RSA 654:7-a (Supp. 2018); RSA
654:7-b (Supp. 2018); RSA 654:12 (Supp. 2018). The procedure for verifying
one’s domicile under the new law differs depending on whether registration
takes place more than 30 days before an election or within 30 days of an
election, including on election day. The plaintiffs allege that SB 3 violates the
New Hampshire Constitution because it: (1) unduly burdens the equal right to
vote guaranteed to all persons domiciled in New Hampshire; (2) contradicts the
domicile requirements therein; (3) denies prospective registrants the equal
protection of the law; and (4) is void for vagueness.

During discovery, the plaintiffs requested the current version of the
Database, as well as the completed past versions of the Database “as of April 1,
2009, 2011, 2013, 2015, 2017, or the date on which the [D]atabase contained
the complete voter history following the 2008, 2010, 2012, 2014, and 2016
General Elections.”

Unlike voter checklists, which contain only “the full name, domicile
address, mailing address, and party affiliation, if any, of each voter on the
checklist,” RSA 654:25 (Supp. 2018), and which, subject to limited exceptions,
are public records subject to RSA chapter 91-A, see RSA 654:31 (2016); RSA
654:31-a (Supp. 2018), the Database contains substantially more personal
1The litigation before the trial court was initiated by two separate complaints, one filed by the
New Hampshire Democratic Party and the other filed by the League of Women Voters of New
Hampshire and several individual plaintiffs. The trial court thereafter consolidated the cases.

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information about each respective voter, including the following: voter date of
birth, gender, driver’s license number, last four digits of social security number
(for voters without a driver’s license number), place of birth, naturalization
information, place where and name under which last registered to vote, form of
identification used to prove identity, whether the voter is in the military service
or located overseas, information concerning use of absentee ballots, and voting
history. At the time of the discovery request, RSA 654:45, VI provided:

The voter database shall be private and confidential and shall not
be subject to RSA 91-A and RSA 654:31. The secretary of state is
authorized to provide voter database record data to the
administrative office of the courts to assist in the preparation of
master jury lists pursuant to RSA 500-A and to the clerk of the
District Court of the United States for the District of New
Hampshire to assist in the preparation of federal court jury lists.
The voter checklist for a town or city shall be available pursuant to
RSA 654:31. Any person who discloses information from the voter
database in any manner not authorized by this section shall be
guilty of a misdemeanor.

RSA 654:45, VI (2016).

The defendants objected to production of the Database on the grounds
that it was irrelevant and was not subject to disclosure under RSA 654:45, VI.
The plaintiffs moved to compel production and, following a hearing, the trial
court granted the motion. The court found that the Database was relevant
because it contains material that the plaintiffs’ expert could use to provide the
court with information about the persons who are burdened by SB 3 and the
extent of the burden. Specifically, given the plaintiffs’ allegations that SB 3
makes same-day voter registration more difficult and that same-day registrants
are more likely to support Democratic candidates, the court found that
information as to the identities and voting patterns of same-day registrants
that could be gleaned from the Database would shed light on the issues in
dispute.2

2 Relying on an affidavit submitted by Deputy Secretary of State David Scanlan, the court
observed that “the Database contains a significant amount of information regarding
registration and domicile,” including:
(1) whether the voter registered 30 days or less prior to an election or on election
day; (2) whether the voter provided evidence of domicile when registering or
subsequently; (3) whether the voter initialed a verifiable action of domicile (if yes,
whether the voter provided evidence of domicile); (4) whether a voter who did not
provide proof of domicile initialed the voter registration form indicating that they
were not aware of having any evidence of domicile; and (5) [f]or voters who
register and do not provide proof of domicile when registering a yes/no value for
whether: (a) the voter used the verifiable action of domicile section of the voter
registration form; (b) the voter initialed that he or she possesses proof of
domicile and will provide the proof after the election; (c) whether the voter

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 The court next concluded that the Database was not exempt from
discovery by virtue of RSA 654:45, VI. The court recognized that RSA 654:45,
VI, as then in effect, made the Database “private and confidential and . . . not
. . . subject to RSA 91-A (the Right to Know Law) and RSA 654:31 (which
makes the voter checklists maintained by each municipality open to public
inspection),” and provided that “[a]ny person who discloses information from
the voter database in any manner not authorized by this section shall be guilty
of a misdemeanor.” However, the court disagreed with the defendants’ position
that these terms created a statutory privilege. Rather, relying on Marceau v.
Company, 97 N.H. 497 (1952),3 the court ruled that, while the foregoing
language demonstrated that the Database was to be confidential, in the sense
that it was not to be voluntarily disclosed by the defendants, it did not amount
to “a clear legislative mandate” prohibiting the production of the Database “for
use in judicial proceedings.” See Marceau, 97 N.H. at 498-500.4 In so ruling,
the court contrasted the language found in RSA 654:45, VI with that used in
statutes such as RSA 151:13-a, II (2005) and RSA 400-A:37, IV-a(a) (2018),
which specifically provide that the materials protected by their provisions shall
not be subject to discovery or subpoena. See RSA 151:13-a, II (noting that the
covered materials “shall be protected from direct or indirect means of discovery,
subpoena, or admission into evidence in any judicial or administrative
proceeding”); RSA 400-A:37, IV-a(a) (providing that the covered materials “shall
not be made public by the commissioner or any other person and shall be

provided the evidence; or (d) whether the voter initialed that he or she was not
aware of possessing any proof of domicile. (Quotations omitted.)
3 Marceau dealt with an action for assault and battery by a tenant against her landlord.

Marceau, 97 N.H. at 497. During discovery, the landlord sought production of the tenant’s
employment records from the Unemployment Compensation Bureau. Id. At the time, the
Unemployment Compensation Act provided that information “obtained from an individual
pursuant to the administration of this chapter shall be confidential and shall not be published
or be open to public inspection (other than to employers and public employees in the
performance of their public duties) in any manner revealing the individual’s or employing unit’s
identity,” and imposed a penalty for violations of its statutory provisions. Id. at 498 (quotation
and ellipses omitted). We rejected the Director of Security’s argument that this language
created a statutory privilege, reasoning that while the legislature certainly intended that the
records not be open to the public, it was “by no means plain . . . that use of the records in
evidence in judicial proceedings was intended to be forbidden . . . .” Id. at 498-99. Supporting
our conclusion was the fact that the original iteration of the statute had explicitly provided that
the information could not be used in a court action unless the commissioner was a party, but
this prohibition was subsequently deleted in later versions of the statute. Id. at 499. In our
view, the obligation to furnish relevant information in the administration of justice should not
be limited “without a clear legislative mandate.” Id. at 499-500.
4 The court also relied on Marceau in rejecting the argument that the criminal penalty provided

for by the statute for unauthorized disclosures precluded the defendants from producing the
Database in discovery. The court reasoned that, as Marceau explained, production of the
covered materials in response to a subpoena would not expose the department employees to
the criminal penalty because “the evil intended to be forestalled and prevented [by the penalty]
clause of the statute was the voluntary imparting by State employees of information [they]
acquired. It was not intended to impede the administration of justice in the courts by the
suppression of pertinent testimony.” Marceau, 97 N.H. at 500.

4
confidential by law and privileged, shall not be subject to RSA 91-A, shall not
be subject to subpoena, and shall not be subject to discovery or admissible in
evidence in any private civil action”).

The court also rejected the defendants’ argument that the information
sought by the plaintiffs could be obtained through means other than the
Database. Citing Breagy v. Stark, 138 N.H. 479, 482 (1994), and Desclos v. S.
N.H. Med. Ctr., 153 N.H. 607, 615-16 (2006), the court reasoned that the
availability of alternative sources was a relevant consideration only when
dealing with privileged information. In light of its conclusions that the
Database was both relevant and non-privileged, the court ruled that the
possible existence of other sources for the information it contains did not
preclude the plaintiffs from obtaining production of the Database through
discovery. The court recognized that the Database contains a “significant
amount of private information,” but concluded that this concern could be
addressed through the issuance of a protective order. It therefore ordered the
parties to meet and confer, and submit a proposed protective order to the court
within ten days.

The plaintiffs proposed a protective order in which they agreed to limit
production to only those fields of the Database that they believed were
necessary to their expert’s analysis, which excluded disclosure of voters’
driver’s license and social security numbers. The plaintiffs also agreed that the
portions of the Database produced to them would not be maintained on any
devices connected to the internet, would be accessed only by plaintiffs’
attorneys and experts, and would be promptly returned to the defendants at
the conclusion of the litigation. Not satisfied with these proposed limitations,
the defendants filed the instant petition for original jurisdiction, which this
court accepted on May 23, 2018.5

While the case was pending before this court, the legislature responded
to the trial court’s order by amending RSA 654:45, VI. Added as a floor
amendment to a pending bill, the purpose of the legislation was explained as
follows:

Based on the highly confidential information contained in the voter
registration database, including information obtained in the
absentee ballot process, the legislature reiterates that this

5 In the petition for original jurisdiction, in addition to seeking interlocutory review of (1) the
trial court’s order requiring the defendants to produce the Database (Question 1), the
defendants also sought interlocutory review of (2) the trial court’s orders requiring the
defendants to produce discovery concerning all communications and meetings within and
between the defendants’ offices regarding SB 3 (Question 2), and (3) the trial court’s orders
denying the defendants’ motions to dismiss based on the plaintiffs’ lack of standing (Question
3). This court’s May 23 order accepted the petition with respect to Question 1 only. The May
23 order also denied the plaintiffs’ motion for summary affirmance of the trial court’s orders.

5
 information must be protected and shall not be disclosed except as
set forth in RSA 654:45 and never in response to a subpoena or
civil discovery request.

Laws 2018, 329:7. To accomplish this purpose, the legislature adopted and
the Governor signed into law an amendment to RSA 654:45, VI, which added
the highlighted language to the first sentence thereof: “The voter database shall
be private and confidential and shall not be subject to RSA 91-A and RSA
654:31, nor shall it or any of the information contained therein be disclosed
pursuant to a subpoena or civil litigation discovery request.” Laws 2018,
329:8, (codified as amended at RSA 654:45, VI (Supp. 2018)) (emphasis added).
The amendment took effect on June 25, 2018.

II

Although we generally review trial court decisions regarding discovery
management and related issues deferentially under our unsustainable exercise
of discretion standard, Kukesh v. Mutrie, 168 N.H. 76, 80-81 (2015), where, as
here, the court’s ruling is based on its construction of a statute, our review is
de novo, see ATV Watch v. N.H. Dep’t of Transp., 161 N.H. 746, 752, 763
(2011).

The defendants contend that the trial court erred in construing the
version of RSA 654:45, VI in effect at the time of its order as not making the
Database exempt from discovery in civil litigation. The plaintiffs, on the other
hand, argue that the trial court correctly applied our decision in Marceau in
concluding that the Database is subject to discovery. We find it unnecessary to
decide whether the trial court’s application of Marceau was correct or
erroneous, or whether its construction of the pre-amendment version of RSA
654:45, VI was correct or erroneous. Even if we assume that the trial court did
correctly construe the statute as then in effect, the 2018 amendment to the
statute conclusively demonstrates that the legislature disagreed with the trial
court’s construction and effectively overruled that decision. As we have
frequently had occasion to observe, subject only to constitutional limitations,
when the legislature disagrees with a judicial decision, it is at liberty to change
the law through statutory enactment. See, e.g., Tuttle v. N.H. Med. Malpractice
Joint Underwriting Assoc., 159 N.H. 627, 648 (2010) (“Unless otherwise
inhibited by either the State or Federal Constitutions, the Legislature may
change existing laws, both statutory or common, at its pleasure, but in so
doing, it may not deprive a person of a property right theretofore acquired
under existing law.” (quotation omitted)); see also Hogan v. Pat’s Peak Skiing,
LLC, 168 N.H. 71, 75 (2015); State v. Dor, 165 N.H. 198, 205-06 (2013).

Citing Appeal of Silk, 156 N.H. 539 (2007), the plaintiffs argue that a
statute that adversely affects a person’s substantive rights may not be applied

6
retroactively. See id. at 542. That is true enough, but here, unlike the
attorney’s fees at issue in Silk, which we held were “indistinguishable from
other liabilities and rights” that accrued at the time of injury under the
workers’ compensation law, id. at 543, the trial court’s order did not confer
upon the plaintiffs a substantive or “vested” right to obtain the Database.
Indeed, given the facts that (1) the decision was a non-final discovery order that
was subject to revision by the trial court within its sound discretion at any time
prior to final judgment, see State v. Haycock, 139 N.H. 610, 611 (1995) (noting
that the trial court retains the discretion to correct its decision on pretrial
evidentiary matters any time prior to final judgment); A-Mark Auction Galleries
v. American Numismatic, 233 F.3d 895, 897 (5th Cir. 2000) (“Discovery orders
generally do not end the litigation on the merits and leave nothing for the court
to do but execute the judgment.” (quotation and brackets omitted)), and (2) the
Database had not actually been disclosed to the plaintiffs at the time the
interlocutory appeal was filed by the defendants, it is clear that, at most, the
plaintiffs had a mere “expectation based on an anticipation of the continuance
of existing law” that they would gain access to the Database, Tuttle, 159 N.H.
at 648 (quotation omitted). Such expectancy is not sufficient to establish a
vested right. Id.; see In the Matter of Goldman & Elliot, 151 N.H. 770, 774
(2005) (“A perfect vested right can be no other than such as is not doubtful, or
depending on any contingency, but absolute, fixed, and certain.” (quotation
omitted)); Church Mut. Ins. Co. v. Dardar, 145 So. 3d 271, 281 (La. 2014)
(explaining that a vested right is one that is “absolute, complete and
unconditional, independent of a contingency”).

Furthermore, the 2018 amendment of RSA 654:45, VI addresses the
issue of discovery, a quintessentially procedural matter. See McDuffey v.
Boston & Maine R. R., 102 N.H. 179, 181 (1959) (noting that civil discovery is a
procedural aid for the parties in litigation); see also Jacob v. Chaplin, 639
N.E.2d 1010, 1012 (Ind. 1994) (“Discovery is the process by which the parties
to an action ascertain the existence of material facts previously unknown.”).
“Where a statute is . . . procedural in nature, there is a presumption that it
applies to cases pending at the time of its enactment.” In re Snow Estate, 120
N.H. 590, 592 (1980); 73 Am. Jur. 2d Statutes § 240, at 470 (2012)
(“Procedural laws apply both prospectively and retroactively unless there is
legislative expression to the contrary.”). Such application does not offend the
constitutional prohibition on retrospective laws. See Gelinas v. Mackey, 123
N.H. 690, 695 (1983); see also Landgraf v. USI Film Products, 511 U.S. 244,
275 (1994) (“Changes in procedural rules may often be applied in suits arising
before their enactment without raising concerns about retroactivity.”); Campus
Communications, Inc. v. Earnhardt, 821 So. 2d 388, 397, 401 (Fla. Dist. Ct.
App. 2002) (upholding application of statute making autopsy photographs
confidential to autopsy performed before its enactment because statute was
remedial and did not infringe vested rights); Dahl v. Sittner, 474 N.W.2d 897,
901 (S.D. 1991) (explaining that statute altering requirements for obtaining

7
discovery in regards to claims for punitive damages was procedural and
therefore was properly applied to claim arising before statute took effect); 82
C.J.S. Statutes § 579, at 763 (2009) (noting that amendments to a procedural
law apply to all pending cases whether or not the cause of action accrued prior
to the change).

In light of the foregoing authorities, the plaintiffs’ argument that the
amendment should not apply retroactively to this case necessarily fails.
Indeed, this claim rests on the plaintiffs’ assumption that the law was
substantive and that they had a vested right to the information contained
within the Database. The rights were not vested given that there was no final
judgment and the trial court retained the discretion to reverse itself on the
matter. See Haycock, 139 N.H. at 611; A-Mark Auction Galleries, 233 F.3d at
897. Nor could the law be classified as substantive. See In the Matter of
Goldman & Elliot, 151 N.H. 770, 772 (2005) (“When engaging in [a Part I,
Article 23 constitutional] analysis, we distinguish new laws that affect
substantive rights and liabilities from those that solely affect procedures or
remedies enforcing those rights.”). “While there is no precise definition of
either substantive or procedural law, it is generally agreed that a substantive
law creates, defines and regulates rights while a procedural law prescribes the
methods of enforcing such rights or obtaining redress.” Morrison v. Ocean
State Jobbers, Inc., 180 F. Supp. 3d 190, 197 (D. Conn. 2016) (quotation and
brackets omitted); Church Mut. Ins. Co., 145 So. 3d at 283 (“By definition
substantive laws establish new rules, rights, and duties or change existing
ones,” while “[p]rocedural laws prescribe a method for enforcing a substantive
right and relate to the form of the proceeding or the operation of the laws.”
(quotation and brackets omitted)). Put another way, “the purpose of procedural
law is to facilitate decision of the case on the merits.” Nashua v. Public Utilities
Commission, 101 N.H. 503, 506 (1959). Here, the substantive law at issue is
the right to vote under the New Hampshire Constitution. The Database is
sought only to aid in deciding whether the substantive law has been violated.
Id.

Notwithstanding that the law is procedural, the plaintiffs argue that it
would be “exceptionally problematic” to apply the 2018 amendment
retroactively in this case because it involves a situation “where a self-interested
party changed the law to interfere directly with a pending lawsuit, thereby
insulating itself and a law it passed — SB 3 — from full, meaningful review.”
There are two answers to this argument. First, the only basis the plaintiffs
offer in support of their claim that the legislature acted for the purpose of
inhibiting them from discovering evidence that would allegedly reveal the
unconstitutionality of SB 3 is the bare circumstance that the 2018 amendment
was enacted as a response to the trial court’s discovery order. But that
circumstance simply will not bear the weight which the plaintiffs ask it to
carry. The reason is that the circumstance is equally susceptible to the
conclusion that the legislature acted for the purpose of maintaining the

8
confidentiality of the Database, which the legislature deemed important to
preserve.

Second, the plaintiffs do not cite — nor are we aware of — any authority
supporting the proposition that we may refuse to enforce a duly enacted
legislative directive merely because doing so would make it more difficult for
the plaintiffs to pursue a challenge to another law enacted by the legislature.
Aside from their allusion to a separation of powers violation, an issue we
address below, the plaintiffs do not contend that the 2018 amendment violates
any other provision of the State or Federal Constitutions. That being the case,
we are aware of no legal basis upon which we could fail to give effect to the
legislation. In this regard, we note that, to the extent the plaintiffs suggest that
the legislature acted with a nefarious motive in enacting SB 527, such
motivation “is not a recognized basis for declaring a statute unconstitutional.”
Libertarian Party N.H. v. State, 154 N.H. 376, 387 (2006).

Finally, citing Merrill v. Sherburne, 1 N.H. 199 (1818), the plaintiffs
suggest that the enactment of the 2018 amendment contravenes the separation
of powers provision of Part I, Article 37 of the State Constitution because it
amounts to a legislative revision of a judgment of the judiciary. See Merrill, 1
N.H. at 210 (“But the judiciary would in every respect cease to be a check on
the legislature, if the legislature could at pleasure revise or alter any of the
judgments of the judiciary.”). Merrill, however, is readily distinguishable from
this case. In that case, the enactment which the court struck down was
legislation that granted a new trial to a litigant after the court had entered a
final judgment against him. Id. at 205. Indeed, it cannot be disputed that
“state legislatures cannot, as a general rule,” pass legislation “reviving [a suit]
that has already abated.” 16 C.J.S. Constitutional Law § 309, at 400-01
(2015). In contrast, the interlocutory trial court discovery order which the
2018 amendment modified does not amount to a judgment that is immune
from revision by legislation prior to the time it attains the status of a final
judgment. See Merrill, 1 N.H. at 213-14 (“Nor can acts of the legislature be
opposed to those fundamental axioms of legislation before particularized,
unless they impair rights which are vested . . . ; and if, before the rights
become vested in particular individuals, the convenience of the state produces
amendments or repeals of those laws, those individuals have no cause of
complaint. The power that authorizes or proposes to give, may always revoke
before an interest is perfected in the donee.”); see also United States v.
Schooner Peggy, 5 U.S. (1 Cranch) 103, 107-10 (1801) (holding that a treaty
calling for restoration of vessels “not yet definitively condemned,” which
became effective while the condemnation order was on appeal, applied to the
proceeding and required reversal of the trial court’s judgment). In sum, the
“[s]eparation of powers principles do not preclude the Legislature from
amending a statute and applying the change to both pending and future cases,
though any such law cannot readjudicate or otherwise disregard judgments
that are already final.” Armijo v. Miles, 26 Cal. Rptr. 3d 623, 633 (Ct. App.

9
2005) (quotation and brackets omitted). Because there was no final judgment
to be disturbed here, the constitution is not offended by the legislative action.

Vacated.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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