Justice Subverted for Docket Convenience

A Judicial Smokescreen: How Judge Schulman Shredded Ettinger to Cover a Municipal Backroom Deal

By Jeffrey Thomas Clay

When a judge abandons binding precedent and twists the evidentiary record just to tidy up his docket, the public loses its only check against municipal corruption. In the litigation between Jeffrey Clay and the Town of Newmarket, Judge Andrew R. Schulman didn't just misapply the law—he engineered a convenient fiction, flatly ignoring clear transcript admissions and binding New Hampshire Supreme Court precedent to bail out local officials who treated open government laws like a suggestion box.

The Myth of the "Consultation" and the Hearing Admissions

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To shield the Town of Newmarket from its blatant violations of RSA Chapter 91-A, Judge Schulman's order relied heavily on the statutory exception allowing "consultations with legal counsel" outside of standard public meetings.

There is just one glaring problem: it was a lie fabricated to save the town's skin, and the town's own lawyers admitted it on the record.

Turn straight to the transcript of the March 28, 2024 hearing. Town Counsel John Ratigan explicitly confessed to the court how the settlement was manufactured: he emailed the town manager, instructed him to poll individual town council members in secret, gather their feedback and votes asynchronously, and return their input to him.

That is not a "consultation with legal counsel." That is an unrecorded, illegal, asynchronous polling of a quorum of a governing body.

Running Roughshod Over Ettinger v. Madison Planning Board

Judge Schulman knew perfectly well that what Newmarket did was illegal under New Hampshire Supreme Court precedent, which is why he had to intentionally look the other way.

In Ettinger v. Town of Madison Planning Board, 162 N.H. 785 (2011), our State Supreme Court explicitly defined the limits of the legal consultation exception. Ettinger held that a public body cannot hide behind "legal consultation" to review correspondence, circulate opinions, or discuss municipal business in private silos unless the attorney is actively present or participating in a contemporaneous, real-time exchange. Passing emails back and forth through a town manager to whip votes and secure backroom consensus is precisely what Ettinger forbids.

Judge Schulman knew Ettinger. He knew that routing settlement instructions through an administrative courier to poll individual council members constitutes an illegal, un-noticed meeting. Yet, he deliberately ignored Ettinger on purpose because acknowledging it would have meant tearing up a corruptly executed contract.

The Absurdity of "Unprovable Prejudice"

Cornered by the fact that the town operated completely off the books, Judge Schulman resorted to an insulting legal cop-out: he ruled that because the backchannels were hidden so well, "neither I nor the public could prove we were prejudiced."

Think about the sheer cynicism of that judicial standard. How in the world is a citizen supposed to prove prejudice regarding an email chain, a secret caucus, or a backroom deal that the government deliberately concealed from them? By creating an impossible burden of proof that requires citizens to uncover secrets they are legally barred from seeing, the court built a permanent shield for municipal bad faith.

Justice Subverted for Docket Convenience

Judge Schulman made it clear he viewed the case as a pesky "feud" he wanted to put to bed, choosing to sacrifice statutory integrity, constitutional transparency, and binding Supreme Court precedent just to force a fake peace.

When a trial judge actively ignores transcript admissions, sweeps away the Supreme Court's mandate in Ettinger, and invents evidentiary traps to protect government officials who break the law, the judiciary stops functioning as an impartial arbiter. It becomes an active accomplice to government secrecy.