The Abusive Costs of Right-to-Know Cases In Nashua
Why did the City spend $650,000 in attorney’s fees and City Costs in an RTK case?
The First RTK Petition - My Costs - $225,000
I started seeking records in Nashua, the Welcoming City, in good faith, believing the City would comply. While New Hampshire’s Right-to-Know (RTK) law does not require employees to answer questions, it would be absurd for a City to refuse to answer basic questions when engaged in customer service. It would undermine the efficiency of the government and frustrate the customer. The City has adopted an unreasonable and discriminatory approach in determining whether simple questions will be answered or written requests are required. In 2019, the Welcoming City pushed me into written-only requests for records and then started denying requests as overly broad, unclear and unreasonably described, using redactions and delays. In early 2020, my First RTK Petition, represented by an attorney, was filed.
It was all about access to assessing records, and it seemed so evident that these were public records. My case was initially assigned to Judge Delker, who has an excellent reputation for valuing the RTK law and our constitutional rights to records. At the last minute, my case was switched to Judge Temple. He appeared less interested in these citizen cases.
My first case was financially draining. It took over two years to get through court with an order issued in May 2022. While affected by COVID, the City and the Court nonetheless dragged this out, as basic orders, after telephonic hearings, took up to five months to issue. My attorney was frustrated, and after billing $100,000 and recognizing the lack of interest in the court, the City’s unwillingness to negotiate, and the high costs, it was recommended I drop the suit. It must be frustrating for attorneys to believe a case is viable, but they know the judge won’t seriously consider it. Abandoning the case would mean Nashua citizens would be denied access to our assessing records. That was such an offensive violation of my constitutional rights and our rights as citizens that I decided to continue.
New Hampshire has a small legal bar and a short judicial bench. Unfortunately, my experience has proven that the system doesn’t seem to have an ethical foundation where truth, justice, and rulings of law apply consistently. It appears to be a who-you-know, not a what-you-know system. Nashua's Mayor is connected and would easily have avenues to get the ear of a Judge. My city had unfairly cast me as a radical, a lunatic, a liar, an insurrectionist, a Trumper, a vindictive person out to harm the city. The Judge appeared to embrace the narrative. Politics is playing a heavy role in judicial orders now. If you're with a registered democratic Judge and you're cast as a lunatic conservative, there's a solid chance you won't fare well in your rulings. I find the government’s false narratives cast on civic-minded people to be abhorrent, especially when created by attorneys, and it's a reason we should all question the trust and honor of the system. The irony of this is that I am undeclared for either party.
I marched on for another year, culminating with a three-day trial. I hired a more prominent firm, Bernstein and Shur, and received excellent, stress-free representation. In Nashua, Judge Temple and Judge Colburn appeared to have spent years in the city's pocket when ruling on municipal challenges. Unknown to me, when I found my first great lawyer, he was a Republican, and I started thinking that this was hurting me in the eyes of the Judge. By sheer luck, a democrat RTK attorney joined the case and did much better.
Ultimately, I did reasonably well with that lawsuit but paid over $250,000 for assessing records. The city appealed the ruling for 2019 records, which still sits before the Supreme Court.
Pushing For Open Records – Pro Se
While this case dragged on and I pursued records, the City hunkered down even more, unreasonably restricting access. At that time, the administrative services director, Kim Kleiner, ordered assessing employees to stop providing customer service, reducing my access to inspectable public records. The Mayor and Corporation counsel were petty, uncivil, and quick to anger. They played partisan politics; counsel’s advice to the Board was biased. Counsel was the one who labeled me “vile” and an insurrectionist.
I would appear a fool to spend the kind of money I did on the first case. I understood the value of a dollar from a very young age and hated waste. Recognizing the financial entrapment of the judicial/legal system, I decided to pursue future RTK cases pro se. Since the judges appear to be in the city's pocket and I couldn’t affect the courtroom schedule, I wouldn't be paying for these runaway costs. In truth, finding representation is nearly impossible as few attorneys do this type of work.
Being a pro se litigant is difficult. The courts are unwelcoming and intolerant of criticism; the clerks are unhappy working with inexperienced people. I almost quit on my first pro se case before Judge Temple. I had received a court notice that my case would be heard before the Judge. I prepared to present my case as the plaintiff. When I got to court, the Judge had Attorney Bolton present my case, and Attorney Bolton requested the case not be heard but instead hold a planning and organizing hearing, which the court permitted. The court scheduled a trial six months later, which sounded costly. I said I wanted to avoid taxpayers paying a lot or the court being burdened to rule if I could have these records. I left, telling the judge I would consider dropping the case.
The scheduling hearing was over quickly, and an attorney in the gallery encouraged me to stick with it and “don’t give up.” Had that one person not been present to speak with me, I would have gone home to withdraw. I told the attorney that I didn't know how I would win because the Judge wasn't even interested in hearing my voice. Again, he told me to stick with it. I did, and I won. The City then appealed that to the Supreme Court. I won again.
Then, I won another pro se email case. Naively, I thought the city would come on board, write some policies, and abide by the constitutional rights of all citizens. While the Mayor described me to the newspapers as a vindictive person, they were the miscreants. When it all started, I tried to speak privately with the Mayor about a $100,000 renovation permit he pulled on his home that was not correctly closed and assessed. He was unwilling to talk with me, so I addressed it in a public meeting, noting that when some get a sweetheart deal, others get the shaft. For the Mayor and Bolton, both attorneys, it became all personal. The Mayor was now driven by vengeance, while Bolton fixated on fury. These attorneys had co-opted the Court, had no civility, and were angry - a woman would not get away with this. I was unprepared to deal with the psychological warfare that was rolling in. Looking back, I recognize that my naivete, rose-colored glasses, and pollyannish views kept me in the game. The City would come around, right? My weakness was also my strength.
The Mayor and legal office enlisted elected people to mount a campaign to discredit everything I said and did. I became THE bogeywoman of Nashua. It was punishing watching the smearing of my reputation because I wanted to practice civics.
The court has an administrative order for RTK petitions designed to expedite and reduce case costs, but the Judges ignored this order. I was being thrown into costly trials with long delays, which gave the City ammunition to blame me for wasting taxpayer money. In Nashua, this appears to be an orchestrated plan between Attorneys and Judges to bring everyone to the “trough” and feed off the taxpayers’ wallets. I asked the court to use the Administrative Order.
More RTK Petitions under the Administrative Order
Next, I filed a series of short pro se cases, hoping to bring the city into compliance. I lost them all. I was killed on MOOTNESS. The MOOTNESS orders were just plain wrong, and, at that time, I began to believe that the Nashua Judges were in the pocket of the City. The rulings were not based on law or reasonableness. Instead, it appeared the Judges wanted to give the City another chance to comply with the law. This should not happen at the expense of the Petitioner, who paid for the lawsuit seeking their rights to lawful, reasonable access to records. By 2023, the City had four years to get its act together and write policies. City leaders did nothing but lock City Hall down like Fort Knox.
In one of these orders, Judge Temple issued a dress-down decree against the City, supporting my positions on record access. In the hearing, he firmly questioned the City on why they stonewalled producing my records; he received no credible answer. I lost this Petition because the Judge ruled that the City won as they responded one day before the hearing and three months after the RTK request. The City found it empowering and ignored the Judge’s constitutional call-outs and strong urging to create uniform public policies. It would be easy to believe it was all act by the Judge to look scolding but permit the City to continue breaking the law. The City wore the order like a badge of honor because they “won.”
Nashua’s 2022 $650,000 RTK Lawsuit – An Abuse of Judicial and Legal Power
The pinnacle of these cases was an RTK lawsuit filed in August 2022. It involved meetings and notices for the placement of the Downtown barriers, as well as meetings and notices and records within the Performing Arts Center. What started as a simple lawsuit blew into the discovery of possible corruption and civil violations regarding over $34M in taxpayer money spent to construct the Nashua Arts Center. It was startling to me when the City hired three outside attorneys and two City attorneys to create the "dream team" to beat one pro se plaintiff. I knew I had kicked a hornet’s nest, but at the time, I didn't understand why.
The City fought for a two-year Trial, and again, Judge Temple granted the long delays. He's part of the plot and embraces high fees. The City paid McLane Middleton (former Attorney General Joe Foster), a "discounted" $432,000 to represent the Board of Directors of the three sham shell corporations formed for the Performing Arts Center through which the Mayor funneled our money. These sham companies were supposedly independent of the City, but the taxpayer had to foot their legal bills. Why did Donchess need to hire the most expensive law firm in the state to deal with one unskilled lady trying to get records? That's another article.
Donchess then hired Russ Hilliard, a re-"tired" attorney whose golden reputation proceeds his current skill level. This elderly man is too pooped to do trials, but the Judge permitted this "retired" attorney to dictate my case management. While hired as the City’s trial attorney and paid $117,000, Hilliard traveled to Africa, Europe, the West Coast, the Midwest, etc. When he was in New Hampshire, he was only available from Tuesday to Thursday afternoons. I rarely could reach him. I objected to Hilliard's constant delays and request for continuation, as his retirement status was unfair for an expedited RTK trial. Still, the Judge granted the delays. I started wondering if the case had already been determined. Attorneys were making a lot of money while the taxpayers got soaked.
McLane and Upton signed a Joint Defense Agreement, which meant they would work together and share information on the case. These Joint Agreements are shady but are intended to create judicial economy for the Court, so filings on the same topic are consolidated to reduce the orders the Court must produce. However, McLane and Upton mostly ignored the judicial economy and filed separately to run up the bill, which required a response to both filings. The judge was doing twice the work.
The Court held a summer hearing on Arts Center email records; I introduced to the court the reasons for the heavy redactions of these records, identifying possible corruption, fraud, and what I now believe were RICO issues. The Court went silent for months and issued no rulings. Due to the rapidly approaching trial, I requested a status conference to determine what was happening. In the most bizarre demeanor I had ever witnessed, the Judge held a confusing and frightening October ranting conference. That conference left an unforgettable memory. Did the Judge report the corruption and fraud per his judicial code of conduct? To whom did he report? Two officials in suits with yellow legal pads took notes in the back of the room. Who were they, and who called them to the conference? The Judge then canceled discovery and threw the review of redacted emails (hundreds) into the already overburdened trial without scheduling additional time. He ordered the City Deputy Attorney to become a witness. He then struck down Hilliard’s motion for a City employee and attorney restraining order against me for trying to serve simple trial subpoenas. The City was again trying to eliminate my constitutional rights and put me in jail. In a summer hearing, the Judge claimed he believed in transparency, but his decisions that day were as clear as mud.
In 2022, the Court ordered the City to produce answers to the August 2022 filed lawsuit by December 2022. The City produced half-assed answers, claiming they needed more time to find them. This absurdity is startling because their meetings and records are being disputed. They had all the information; they did not want to disclose it —another stall tactic. The Court demanded the answer and then ignored incomplete work. In November 2023, one month before the start of the trial, the City produced complete answers. Why did they wait so long? To ambush and create an unfair surprise to prevent me from being prepared for my Trial. The Judge gave “red carpet” treatment to these influential, connected Attorneys.
Then, the City, Upton, and McLane, skilled attorneys with 150 years of collective legal experience, put together their exhibit books for the trial in violation of the rules for trial procedures in which the Defendant must use letters for their exhibits while the plaintiff uses numbers. This keeps exhibits organized and easily referenced for the Judge, clerk, and parties. The City (the Defendant) used numbers in their books and had never before made this mistake. The Judge would have accepted this, but I objected, and he ordered the book to be redone with letter indexes. Once the books were redone, “underhanded,” Hilliard omitted the letter indexes in my book while providing proper exhibit books to the Court, the clerk, and his defense team. All done to create hardship and confuse an inexperienced pro se plaintiff.
This is a gross conduct violation, so I filed a Professional Conduct complaint with the Attorney Discipline Office and lost. Why? Judge Temple did not take a position on the exhibit book violation. Again, he turned a blind eye—clear judicial favoritism for the City. More red carpet treatment for attorneys, unequal application of the rules based on who you are.
The penalty for the City’s abuse of power would have been that their exhibits and answers would be thrown out, and I would have won the case by default. It seemed that the Judge could not bring himself to enforce the rule of trial procedures. Why? Is it because the favored side would be penalized?
In the end, I won 50% of the lawsuit and costs (only one claim on the Arts Center), but the City spent over $550,000 in fees to Hilliard and McLane, in addition to City Attorney and staff costs, which took two years to get through the Court.
I have appealed the Court's order on the Arts Center claims to the Supreme Court. Given the lower court’s handling of these claims, it might be that orders to ignore the civil violations of the Arts Center were intentional. If so, there is a strong appearance that favoritism and connections have an undue influence on these rulings. In the eyes of many, the integrity of the system has suffered. Do citizen RTK’s depend on the whim of officials? When litigation is required, does it all come down to what the plaintiffs can afford and who you know?
The judicial/legal system is under deserved scrutiny at all levels and is losing public trust. Given my journey through the court over the last four years, misrepresentations, omissions, hyperbole, and cheating have been how “insiders” operated with impunity. They appear to have a club where honor, ethics, and morals are left at the door. Nashua has had two municipal judges, both Democrats, working in a heavily Democratic city for the last 10 years. Both will be retired by April 2025. Let's pray that the replacement Judges can restore our faith in an unbiased system where all sides can expect equal application of laws and rules.