John Doe v. New Hampshire Division of State Police & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0688, John Doe v. New Hampshire
Division of State Police & a., the court on January 7, 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 an order of the Superior
Court (Kissinger, J.) dismissing his complaint seeking declaratory judgment
pursuant to RSA 105:13-d (2023) and injunctive relief to remove his name from
the Exculpatory Evidence Schedule (EES). On appeal, the plaintiff argues that
the trial court erred by: (1) failing to consider differences between hearings
before the New Hampshire Personnel Appeals Board (PAB) and the superior
court, and (2) denying him the opportunity to challenge the underlying conduct
that led to his placement on the EES. We conclude that the trial court properly
limited its review to determining whether information in the plaintiff’s
personnel file constitutes “potentially exculpatory evidence.” RSA 105:13-d, I.
Accordingly, we affirm.

The following facts are derived from the plaintiff’s complaint and
accompanying documentation and are assumed to be true for the purposes of
this appeal. See Boucher v. Town of Moultonborough, 176 N.H. 271, 272
(2023). While employed as a trooper by defendant New Hampshire Division of
State Police (Division), the plaintiff cared for his elderly aunt and was the
successor trustee of his aunt’s trust. In April 2015, the plaintiff and his aunt
sought to change the trust from a revocable trust to an irrevocable trust. They
consulted with an attorney who proposed that the aunt resign as trustee and
name the plaintiff as the new trustee of the trust. The aunt signed a
“Resignation of Trustee form,” the plaintiff signed an “Acceptance of Trustee
form,” and the plaintiff became the trustee of the aunt’s trust. Soon thereafter,
however, the branch manager of the bank where the trust was located
contacted the aunt and expressed concern that the plaintiff was “withdrawing
large amounts of funds” from the trust. According to the plaintiff, his aunt
responded by closing the account at the bank and transferring the assets to a
different bank where she made herself the trustee of the trust.

The branch manager at the bank where the trust was originally located
also contacted defendant New Hampshire Attorney General’s Office (AGO)
regarding the plaintiff’s depletion of the trust’s funds, and the AGO opened an
investigation. The AGO interviewed the plaintiff and asked him several times
whether he was the trustee of his aunt’s trust. The plaintiff responded that he
was not. At the conclusion of the investigation, the AGO “cleared the [plaintiff]
of any criminal wrongdoing.” However, the AGO contacted the Division based
upon its belief that the plaintiff lied during the investigation and recommended
that the Division submit the plaintiff’s name for placement on the EES.

The Division conducted an internal investigation into the plaintiff’s
“alleged untruthfulness” during the AGO’s investigation. Prior to being
interviewed, the plaintiff asked the branch manager at the second bank
whether his aunt was the trust’s current trustee. The branch manager
responded that the aunt was the trustee and the plaintiff was the successor
trustee.

During an interview, the plaintiff represented to the Division that he was
not the trustee of his aunt’s trust and that his aunt remained the trustee. The
investigating officer confronted the plaintiff with the “Resignation of Trustee”
and “Acceptance of Trustee” forms that the plaintiff and his aunt had signed
and the plaintiff’s email communications with the attorney. The plaintiff
responded that he did not recall signing the document or sending the email
communications. The investigating officer determined that the plaintiff
“intended all along to take over as trustee and that he planned [his aunt’s]
resignation and his acceptance of the role of trustee” and recommended
disciplinary action. The Division concluded that the plaintiff’s responses
during the interview were “deceptive and obstructive to the investigation,” and
it terminated the plaintiff’s employment “for lack of integrity in violation of the
professional conduct standards.” The Division also notified the plaintiff that
his name would be added to the EES.

The plaintiff subsequently appealed the termination of his employment to
the PAB. Following an evidentiary hearing at which the plaintiff and other
witnesses testified, the PAB upheld the Division’s termination of the plaintiff’s
employment. The PAB “found it incredulous that [the plaintiff] had no
recollection of the email messages that he sent or of such important documents
that he signed” and did not find the plaintiff’s testimony credible on this point.
The PAB explained that the plaintiff’s “refusal to authorize [the Division] to
speak with the officers at [the original bank] and to view the transactional
records” demonstrated that the plaintiff knew “what he was doing and why.” It
also observed that the plaintiff admitted that “he did not contact [the attorney
with whom he and his aunt had originally consulted] who would have been the
obvious best source of definitive information about his and his aunt’s status
and roles in the trust.” The PAB ultimately concluded that the plaintiff “was
seeking plausible deniability by only contacting [the second bank’s branch
manager], who [the plaintiff] would have reason to know was not fully informed
about the . . . changes to the trust.” The plaintiff unsuccessfully moved for
rehearing and filed an appeal in this court, which we dismissed as untimely.

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 In March 2022, the plaintiff filed a complaint in the superior court
requesting declaratory judgment that “his name is not appropriate for inclusion
on the EES” and a permanent injunction to remove his name from the EES.
The defendants moved to dismiss the complaint, and the court granted their
motion. The court determined that it did not need to “decide whether the
[plaintiff] lied to the AGO or [the Division] during his internal investigation”
because the PAB had “already decided that he did so in affirming his
termination,” and the court did not have jurisdiction to review the PAB’s factual
findings. The court reasoned that “three different entities (the AGO, the
Division, and the PAB) all came to the same conclusion that the [plaintiff] lied
during his investigation,” and that the “sustained instances of untruthfulness
during official investigations bear on the [plaintiff’s] general credibility,
potentially triggering a prosecutor’s obligation to disclose the evidence to a
criminal defendant in a case where the [plaintiff’s] credibility is at issue.”
Accordingly, it concluded that the plaintiff’s placement on the EES is
appropriate. The plaintiff unsuccessfully moved for reconsideration, and this
appeal followed.

The standard of review in considering a motion to dismiss is whether the
plaintiff’s allegations are reasonably susceptible of a construction that would
permit recovery. Barufaldi v. City of Dover, 175 N.H. 424, 427 (2022). This
threshold inquiry involves testing the facts alleged in the pleadings against the
applicable law. Id. The trial court may also consider documents attached to
the plaintiff’s pleadings, documents the authenticity of which no party
disputes, official public records, or documents sufficiently referred to in the
complaint. Id. We will uphold the trial court’s dismissal if the facts pled do not
constitute a basis for legal relief. Id.

The plaintiff argues that the trial court erred by failing “to properly review
[his] alleged misconduct in light of the different standards by which the PAB
and Superior Court operate.” He claims that, due to differences in hearings
before the PAB and the superior court, the court should have allowed him to
relitigate the PAB’s findings because “all the evidence” supported his “position
that he did not deliberately lie to investigators,” contrary to the PAB’s
conclusion. Specifically, he argues that because the superior court, unlike the
PAB, adheres to the Rules of Evidence, and because “the Division would have
the burden of persuasion” in a civil hearing, he should be given the opportunity
to “demonstrate that the alleged misconduct . . . did not occur as outlined in
the records.”

The defendants disagree, arguing that the court properly declined the
plaintiff’s request to review the PAB’s factual findings because the court lacked
jurisdiction to do so. In addition, they contend that “[e]ven if a subsequent
tribunal were to disagree with the PAB’s conclusions,” the PAB decision is
potentially exculpatory.
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 The question therefore is whether the plaintiff is entitled to a hearing in
the superior court regarding his placement on the EES in addition to the PAB
employment termination appeal in which he participated. We addressed a
similar issue in Gantert v. City of Rochester, 168 N.H. 640, 650-51 (2016). In
that case, the Rochester Police Department found that an officer violated two
departmental policies, recommended the officer’s termination, and informed
the officer that it intended to notify the county attorney that the officer’s
actions could be “Laurie material.”1 Gantert, 168 N.H. at 644. After a meeting,
the chief and the officer’s union agreed that the chief would not notify the
county attorney of the “Laurie issue” until after the police commission made a
final decision. Id. Following the police commission’s decision to uphold the
termination decision and the chief’s notification to the county attorney, the
officer challenged his discharge before the New Hampshire Public Employee
Labor Relations Board (PELRB), which selected an arbitrator. Id. The
arbitrator reduced the discipline to suspension without pay but did not rule on
the “Laurie List” issue. Id. at 645.

The officer then unsuccessfully brought suit in the superior court to
remove his name from the “Laurie List.” The officer argued on appeal from the
superior court’s decision that he received insufficient due process both before
and after his placement on the list. Id. at 647. In addressing whether there
was a risk of erroneous deprivation of the officer’s reputational interest, we
observed that the officer’s “real complaint about the procedure appears to be
that he does not agree with the decisions made.” Id. at 649. Because the
officer was notified that the chief intended to contact the county attorney
regarding potential “Laurie material” prior to the police commission appeal and
arbitration, the officer had notice and an opportunity to challenge the police
department’s “Laurie List” recommendation. See id. at 644-45, 649. Although
we agreed that an additional hearing “might be more in-depth,” we concluded
that “it is not clear that it would add significantly to the accuracy of the
outcomes versus the procedure already in place.” Id. at 649.

We also addressed the officer’s argument that the employment
disciplinary process, which culminated in arbitration, was distinct from the
“Laurie List” designation process and that, as a result, officers should be
provided a separate hearing solely addressing the “Laurie issue.” Id. at 650.
We disagreed and explained that because both the discipline and the “Laurie
List” designation were predicated on the same underlying conduct, having an
additional hearing to examine the same facts “would serve little purpose.” Id.
at 650-51.

1 The “Laurie List,” a “list of police officers who have engaged in misconduct reflecting negatively

on their credibility or trustworthiness,” is now known as the Exculpatory Evidence Schedule
(EES). See N.H. Ctr. for Pub. Interest Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 651
(2020). See generally State v. Laurie, 139 N.H. 325 (1995).
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 To reach this conclusion, we relied upon Duchesne v. Hillsborough
County Attorney, in which we recognized that an officer may have grounds for
judicial relief after his placement on the “Laurie List” if the circumstances that
gave rise to placement are clearly shown to be without basis. See id. at 650;
Duchesne v. Hillsborough County Attorney, 167 N.H. 774, 784-85 (2015). In
Duchesne, we determined that the officers’ names should be removed from the
“Laurie List” because their conduct would not typically be admissible to
impeach their general credibility and, “more importantly,” an arbitrator
overturned the police chief’s initial finding of misconduct. Duchesne, 167 N.H.
at 783-85. By contrast, in Gantert, the arbitrator’s decision “did not establish
that there was no basis for the plaintiff’s placement on the ‘Laurie List,’” and
we concluded that the officer received all the process he was due. Gantert, 168
N.H. at 651.

Here, the plaintiff participated in the Division’s investigation that
resulted in its finding of misconduct, and the Division informed him that it
intended to submit his name for inclusion on the EES when it reached the
decision to terminate his employment. The plaintiff then appealed his
employment termination to the PAB, which, although it did not separately
address the plaintiff’s placement on the EES, upheld the Division’s finding of
misconduct that led to the plaintiff’s termination. See Gantert, 168 N.H. at 651
(“Although the arbitrator in this case noted that he had no authority over the
[officer’s] placement on the ‘Laurie List,’ . . . his decision was based upon the
same information that led to the [officer’s] placement on the list.”). The PAB
denied the plaintiff’s motion for rehearing, and the plaintiff failed to timely
appeal the PAB’s decision to this court.

Furthermore, the Division notified the plaintiff that it intended to submit
his name for inclusion on the EES when it terminated his employment prior to
the plaintiff’s PAB appeal. While the PAB’s decision preceded the enactment of
RSA 105:13-d, the plaintiff was provided an opportunity to challenge the
conduct that led both to his termination and his placement on the EES during
his appeal to the PAB. Because the employment termination and the EES
designation “were predicated on the same underlying conduct of the plaintiff,”
id. at 650, we are not persuaded that the plaintiff should be provided an
additional hearing in the superior court to relitigate the EES placement.
Moreover, we do not find any differences in hearings conducted before the PAB
and the superior court sufficient to warrant a separate hearing, and we are not
convinced that a different outcome would result regarding the plaintiff’s
misconduct.

As the trial court explained, the plaintiff “had a full and fair opportunity
to present the arguments to the PAB about whether he lied, and indeed
provided his own testimony about the underlying facts.” Therefore, the trial
court found, and we agree, that the “sustained finding sufficiently establishes
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[the plaintiff’s] misconduct for the purposes of determining whether it is
potentially exculpatory.”2 The only question remaining before the court was
“whether the underlying misconduct is not potentially exculpatory.” See RSA
105:13-d, II(d)(1).

Although the trial court’s decision preceded our articulation of the
standard for determining whether information in an officer’s personnel file
constitutes potentially exculpatory evidence, its reasoning is consistent with
that standard. See Doe v. N.H. Attorney Gen. (Activity Logs), 176 N.H. 806,
814 (2024), 2024 N.H. 50, ¶18. We recently explained that “within the context
of RSA 105:13-d, ‘potentially exculpatory evidence’ is evidence, including
impeachment evidence, that is reasonably capable of being material to guilt or
to punishment.” Id. Furthermore, “considerations made to determine the
admissibility of evidence, such as the age of the conduct and its materiality to
an officer’s general credibility, should factor into the determination of whether
information in an officer’s personnel file warrants his or her inclusion on the
EES.” Id. at 815, 2024 N.H. 50, ¶20.

Here, the trial court reasoned that the “sustained instances of
untruthfulness during official investigations bear on the [plaintiff’s] general
credibility, potentially triggering a prosecutor’s obligation to disclose the
evidence to a criminal defendant in a case where the [plaintiff’s] credibility is at
issue.” Therefore, the trial court concluded that the plaintiff’s “personnel
information contains potentially exculpatory evidence such that his placement
on the EES is appropriate.” See RSA 105:13-d, I, II(d)(1).

We agree. The plaintiff’s responses during the investigations conducted
by the AGO and the Division were deceptive, and evidence of this misconduct is
reasonably capable of being material to guilt or to punishment. See Doe, 176
N.H. at 814, 2024 N.H. 50, ¶18. Therefore, the trial court correctly determined
that the plaintiff failed to demonstrate that the information in his personnel file

2 The plaintiff also argues that the trial court erred by applying the doctrine of collateral estoppel

in declining to allow him to relitigate the PAB’s findings. However, the defendants never pleaded,
and the trial court’s order therefore did not address, the doctrine of collateral estoppel. See Gray
v. Kelly, 161 N.H. 160, 164 (2010) (stating that collateral estoppel is an affirmative defense);
Super. Ct. R. 9(d) (failure to plead affirmative defenses constitutes waiver). Therefore, we need not
address whether collateral estoppel bars the parties from relitigating the issues already decided by
the PAB.
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does not contain potentially exculpatory evidence such that his name should
be removed from the EES. See RSA 105:13-d, I.

Affirmed.

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

Timothy A. Gudas,
Clerk

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