John Doe v. Commissioner, New Hampshire Department of Safety & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0215, John Doe v. Commissioner, New
Hampshire Department of Safety & a., the court on January 14,
2025, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiff, John Doe, appeals a Superior Court order
(Schulman, J.) dismissing his complaint against the defendants, the
Commissioner of the New Hampshire Division of State Police (the Division) and
the New Hampshire Attorney General’s Office (collectively, the State). On
appeal, the plaintiff argues that his name should be removed from the
Exculpatory Evidence Schedule (EES) because his conduct is not “potentially
exculpatory” under RSA 105:13-d (2023). Specifically, the plaintiff argues that
his conduct — making false statements to a police dispatcher over twenty years
ago regarding a traffic stop — is not “potentially exculpatory evidence” under
RSA 105:13-d due to the passage of time and his flawless disciplinary record
since the incident. Because the trial court’s order preceded our articulation of
the appropriate standard for determining whether evidence is “potentially
exculpatory” under RSA 105:13-d, we vacate and remand.

We accept the following factual allegations set forth in the plaintiff’s
pleadings as true for the purposes of this appeal. See Barufaldi v. City of
Dover, 175 N.H. 424, 425 (2022). In 1999, the plaintiff responded to a report
of a possible drunk driver while he was employed as a trooper for the Division.
The stopped driver was the Chief of Police for a local town. Despite the plaintiff
believing that the Chief was impaired, he told the police dispatcher that the
driver was not intoxicated, that the vehicle was disabled, and that he was
transporting the operator to a telephone. In fact, the plaintiff drove the Chief
home.

Months later, the Division became aware of the incident. The Division
also discovered a subsequent incident in which the plaintiff failed to stop a
vehicle registered to the same Chief of Police when he believed that the driver
might have been intoxicated. The Division conducted an internal investigation
into the plaintiff’s conduct, during which the plaintiff was forthcoming and took
responsibility for his actions. The investigation found that the plaintiff violated
Division policies relating to integrity and duty requirements, and the plaintiff
was suspended for ten days without pay.
 In February 2020, the plaintiff was notified that his 1999 suspension
had been reviewed and that the Division intended to submit his name for
inclusion on the EES. In June 2020, after holding a hearing, the Division
submitted the plaintiff’s name for inclusion on the EES. In July 2020, the
circuit court reviewed the plaintiff’s personnel file in camera in relation to a
criminal proceeding in which the plaintiff was a witness, and the court
determined that the information in the plaintiff’s personnel file was not
exculpatory and need not be disclosed in that particular case.

In 2021, the plaintiff filed a complaint in superior court in which he
argued that his placement on the EES is unwarranted because his personnel
file does not contain potentially exculpatory evidence. The plaintiff argued that
he should not be on the EES due to his honesty during the internal
investigation, the age of the conduct, and his exemplary disciplinary record
since the incident.

The State filed a motion to dismiss. The trial court granted the State’s
motion. In its ruling, the trial court accepted that “the conduct occurred more
than 20 years ago,” “that the plaintiff has been an exemplary officer ever since,”
and “that he has no additional bruises on his credibility.” Nonetheless, the
trial court reasoned that the plaintiff’s inclusion on the EES was appropriate
because “[p]rosecutors must provide the defense with any information that
could impeach the witness[’s] credibility, including information that might be
admissible under” New Hampshire Rule of Evidence 608(b) for impeachment
purposes. The trial court reasoned that “if the plaintiff were called to
corroborate the account of a fellow officer” whom a defendant accused of
wrongdoing, then it may be permissible to ask the plaintiff if he has ever lied to
conceal a fellow officer’s misconduct. Accordingly, the trial court ruled that the
plaintiff’s conduct during the 1999 incident warranted including the plaintiff’s
name on the EES. The plaintiff unsuccessfully moved for reconsideration, and
this appeal followed.

The principal issue on appeal is whether the trial court erred in
dismissing the plaintiff’s complaint by concluding that the plaintiff’s conduct is
“potentially exculpatory evidence” warranting his placement on the EES. When
reviewing a trial court’s ruling on a motion to dismiss, we consider whether the
allegations in the pleadings are reasonably susceptible of a construction that
would permit recovery. Doe v. N.H. Attorney Gen. (Activity Logs), 176 N.H.
806, 812 (2024), 2024 N.H. 50, ¶13. We assume the facts alleged in the
plaintiff’s pleadings to be true and construe all reasonable inferences in the
light most favorable to the plaintiff. Id. We then engage in a threshold inquiry
that tests the facts in the complaint against the applicable law. Id. We will
uphold the granting of a motion to dismiss if the facts pled do not constitute a
basis for legal relief. Id.

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 RSA 105:13-d, I, provides that “[t]he department of justice may
voluntarily maintain an [EES],” which “shall consist of a list of all current or
former law enforcement officers whose personnel information contain
potentially exculpatory evidence.” The statute further provides that an officer
may challenge his or her placement on the EES in superior court, and “the
individual’s name and corresponding information will become public” unless “a
court issues an order finding that the underlying misconduct is not potentially
exculpatory” or “[a] court issues an order finding that the law enforcement
agency erred in recommending that the officer be placed on the [EES].” RSA
105:13-d, II(a)-(d).

Recently, in Doe v. New Hampshire Attorney General (Activity Logs), we
held that “potentially exculpatory evidence” under RSA 105:13-d, I, is evidence,
including impeachment evidence, that is “reasonably capable of being material
to guilt or to punishment.” Doe (Activity Logs), 176 N.H. at 814, 2024 N.H. 50,
¶18. We explained that the considerations bearing upon the admissibility of
evidence are relevant to the determination of whether information is
“potentially exculpatory” such that an officer’s inclusion on the EES is
warranted. Id. at 815, 2024 N.H. 50, ¶20. “If there is no reasonably
foreseeable case in which ‘potentially exculpatory evidence’ relating to an
officer’s conduct would be admissible, due to the passage of a significant length
of time or some other factor weighing on the conduct’s relevance,” then an
officer’s inclusion on the EES is not warranted. Id.

The trial court order in this case preceded our articulation of the
applicable standard in Doe. Having articulated this new standard, we vacate
the trial court’s ruling and remand for further proceedings consistent with this
order.

Vacated and remanded.

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred.

Timothy A. Gudas,
Clerk

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