The Jurisdictional Void: How DTC and New Hampshire Courts Conceded the Legality of Newmarket’s "Gag Order"

The Jurisdictional Void: How DTC and New Hampshire Courts Conceded the Legality of Newmarket’s "Gag Order" Settlement

In the ongoing legal battle between pro se advocate Jeffrey T. Clay and the Town of Newmarket, a glaring, structural omission has quietly compromised the integrity of the proceedings. Throughout multiple filings before both the Office of the Right to Know Ombudsman and the Rockingham County Superior Court, the Town’s outside counsel, Donahue, Tucker & Ciandella, PLLC (DTC), along with the reviewing judicial bodies, have systematically failed to answer a foundational question: Under what explicit legislative authority does a New Hampshire municipality possess the power to enter into a settlement agreement that permanently strips a citizen of their statutory civil rights?

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By moving forward under the assumption that municipalities possess an inherent, corporate right to contract away constitutional and statutory protections, DTC and the courts have ignored a bedrock principle of New Hampshire law: Dillon’s Rule. In doing so, they have exposed a deeply unsettling reality—that the town's defense relies on an extra-legal authority that the state legislature never granted.

Dillon's Rule and the Myth of Inherent Municipal Power

To understand the profound nature of this legal failure, one must look to the statutory architecture of New Hampshire government. New Hampshire is a strict Dillon’s Rule state. This means that municipal corporations (towns and cities) possess no inherent, sovereign authority. They are political subdivisions created by the state, and they possess only those powers that the New Hampshire General Court (the legislature) expressly grants to them, or those necessarily implied from expressly granted powers.

When DTC drafted the March 23, 2023, Mutual Settlement Agreement, they inserted a sweeping "forever waiver" clause:

• The clause explicitly dictates that the petitioner "shall submit no additional RSA 91-A requests ever again to the Respondents".
• It further attempts to bind unconsenting third parties, declaring that nor shall the petitioner "have any family relatives or other submit RSA-91-A requests on his behalf ever again".

When a public body uses $2,000.00 of public taxpayer funds to permanently buy a citizen’s silence and strip them of a right explicitly guaranteed to "every citizen" under RSA 91-A:4, it is exercising an extraordinary, quasi-constitutional power. Yet, nowhere in RSA 31 (the primary statute governing town powers), RSA 41, or RSA 91-A itself has the General Court ever empowered a local town council or select board to contractually extinguish a citizen's right to demand transparency from their government.

The Silent Capitulation: Failure to Identify Legal Authority

A review of the litigation timeline reveals that when challenged on the validity of this contract, DTC, the Town of Newmarket, and the reviewing judicial bodies simply treated the agreement as a standard, private commercial contract, completely blind to the public law limits of municipal authority.

By failing to demand that the Town produce the legislative enabling act allowing for such an extraordinary contract, the courts effectively granted Newmarket an unauthorized exemption from state law. They permitted a municipal corporation to create its own law through private contract, effectively overriding the explicit mandate of the General Court.

Laundering Ultra Vires Acts Through Private Procedures

The failure to identify statutory authority becomes even more egregious when paired with how the settlement was approved. In their formal admissions, DTC proudly notes that the approval of the settlement was not conducted out in the open at a town council meeting, but was instead the product of sequential "email responses to the Town legal counsel's email inquiry".

This highlights a double layer of ultra vires (beyond the scope of legal authority) conduct:

1. Procedural Nullity: The Town Council used sequential electronic communications to form a consensus and effectively vote outside of a lawful public or non-public session, a practice completely unauthorized by RSA 91-A.
2. Substantive Nullity: The underlying subject matter of that vote—buying a lifetime waiver of the Right-to-Know law—is an objective legal nullity because the legislature has never given towns the authority to purchase a citizen's statutory rights.

DTC and Newmarket know that the legislature never authorized this. They are fully aware that if they were forced to point to a specific line in the New Hampshire Revised Statutes Annotated that says, "A town may use public funds to contractually bar a resident from ever filing a public records request," they would come up entirely empty-handed.

Conclusion: A Judicial Blindspot Threatening Sovereign Rights

The refusal of the courts to force DTC to identify the legal authority for Newmarket’s actions is a dangerous judicial failure. When the judiciary allows a town to enforce a restrictive contract without verifying if the legislature ever gave the town the power to write that contract in the first place, Dillon’s Rule is effectively dismantled.

If a municipality can use taxpayer money to buy its way out of the Right-to-Know law through back-channel emails, there is nothing stopping local governments from drafting contracts to strip citizens of other rights—all while outside counsel hides behind the shield of "attorney-client privilege". The courts' failure to challenge DTC on this missing legal authority does not make the agreement lawful; it merely highlights a systemic refusal to hold accountable those who govern in the shadows.