Richard Sager, attorney for the Tuftonboro Board of Selectmen, has filed an Objection in Carroll County Superior Court in the matter of Town of Tuftonboro v. Maxim A.A.L. Blowen-Ledoux & Robert McWhirter.
Through Sager, the selectmen are averring that they should not have to pay our “reasonable attorney’s fees,” should they lose, because their suit is not a Right to Know lawsuit, and “thus, there is no ‘lawsuit … necessary in order to make the information available’ to the defendants.”
The selectmen also claim in their Objection that it “isn’t clear if or when a complaint would be filed by either of these defendants.” They make this claim now even though just two months ago they justified their lawsuit against us by claiming in their original Complaint that “it is also apparent that the Town would be sued by one or both of defendants if the Town continued to refuse to provide redacted emails for no charge.”
The selectmen — Carolyn Sundquist, Lloyd Wood, and Bill Marcussen — sued Bob and me late last year in a preemptive attempt thwart our Constitutional and statutory Rights to inspect governmental records.
Now they claim, of us, “if they were planning to take a proactive approach, they should have done so before the Town filed this action.” Of course, the reason that we have not sued them is that they sued us.
Furthermore, no legal action would have been necessary had they simply complied with RSA 91-A:4(IV): “Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. … No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”
Instead, they took the unprecedented step of suing us. They sought to force us into Court just four days before Christmas. However, we filed a Motion to Continue, which was granted by Judge Fauver, and the hearing was rescheduled to January 27.
On January 23, four days before the hearing, we filed an Answer to the selectmen’s Complaint. We could have dropped the Answer in Sager’s lap in court. Instead, we were courteous and provided it to him in advance. He then filed his own Motion to Continue, which we assented to through our attorney. The hearing is now scheduled for February 22, at 1PM.
After filing his Motion to Continue, however, Sager then took to Facebook to claim that our Answer was late because it was “required to be filed on December 21.” This is simply false.
However, when I asked Sager to correct his obviously wrong claim, he instead doubled down, writing “the document entitled ‘Summons – Hearing Scheduled’ served on both Mr. Ledoux and Mr. McWhirter states, in pertinent part, ‘The Court ORDERS that ON OR BEFORE: … December 21, 2016 …Maxim Blowen-Ledoux, A.A L.; Robert McWhirter shall file an Appearance and Answer or other response with this Court. A copy of the Appearance and Answer or other response must be sent to the party listed below and any other party who has filed an Appearance in this matter.’ It’s part of the public record. I am not making this up.”
Sager might not be making that up, but he is ignoring the clear meaning of “Appearance and Answer or other response.”
Our attorney filed an Appearance and a Motion to Continue on December 15, 2016. The Motion to Continue, which Sager assented to, was our “other response.” In the Motion to Continue, our attorney wrote “Defendants plan to address the Town’s Complaint in a responsive pleading, or memorandum of law, and more time is needed to conduct research and prepare the same.”
It strains credulity to think that the court would grant a Motion to Continue, and reschedule the hearing, but require the Answer to be filed by the original court date. What would be the point of postponing the trial, in that event?
Who knows. Sager wrote, “The deadline for filing an Answer has always been December 21. It was never modified by the court. I didn’t push the issue out of courtesy to your attorney, knowing he needed time to get up to speed.” He then added that he was “regretting that decision now”
Sager even alludes to his theory in the introduction to the Objection: “Rather than object to both the Answer and the Motion as being non-compliant with superior court rules in various aspects, the Town seeks instead to respond to the imbedded Motion on its merits.” (Emphasis added.) However, since he has no actual proof that our Answer was late or in violation of superior court rules, he offers none.
Later in the Objection, Sager misinterprets Paragraph 72 in our Answer. He seems to be under the impression that we were claiming the Superior Court found in Sawyer v. Sundquist that the selectmen “knew or should have known” that they were breaking the law.
That is not what we wrote, and a clear reading of Paragraph 72 makes that obvious. In fact, our attorney cited the ATV Watch case at the end of the paragraph, not Sawyer. The point we were making, apparently lost on Sager, is that since the Superior Court ruled the selectmen had violated RSA 91-A multiple times in Sawyer, the selectmen “should have known” that they were violating the law when they attempted to illegally charge me a fee to inspect a governmental record.
Sawyer was less than a year before the selectmen attempted to charge me, and two of the current selectmen — Carolyn Sundquist and Lloyd Wood, were on the board when Sawyer was decided against them.
Given Sager’s muddied view of RSA 91-A and superior court rules, it’s no wonder that the selectmen, with his advice, embarked on such an egregious abuse of power as to sue citizens in an attempt to avoid their obligation under the state constitution and law.
It is my opinion as a tax payer in Tuftonboro that our town is not served well by Sager’s legal advice and that we would do well as a town to fire him. Of course, the selectmen are the ones who decide who to hire as their attorney (even though his $175 an hour fee is paid with tax payer money).