The "Basement Doctrine":

The "Basement Doctrine": How Judge Andrew R. Schulman Weaponized "Prejudice" to Blindfold the Public

By Jeffrey Thomas Clay

A cornerstone of democratic accountability is the principle that the public has a right to witness not just the final votes of their government, but the actual deliberations, debates, and compromises that lead to them. In New Hampshire, this principle is codified under the Right-to-Know Law (RSA 91-A). Yet, in Town of Newmarket v. Jeffrey Clay, Judge Andrew R. Schulman engineered a dangerous legal loophole—what can only be described as the "Basement Doctrine"—that effectively immunizes municipal secrecy and guts the very spirit of open government.

By ruling that a citizen must prove actual "prejudice" to invalidate an illegal meeting, Judge Andrew R. Schulman has placed an impossible burden on the public and handed rogue officials a roadmap for evading transparency. Here is why Judge Schulman's reasoning is fundamentally flawed, legally toxic, and a direct assault on the public's right to know.

1. Judge Schulman Trivializes Structural Secrecy as a "Technicality"

To justify shielding municipal officials, Judge Andrew R. Schulman relied on an absurd hypothetical: suggesting that if a public body held a meeting in an unusual or restrictive location—like a basement—the location alone might constitute a mere technical violation. If a formal vote was later rubber-stamped in public, Judge Schulman argued, the public could not invalidate the action unless they could prove tangible prejudice.

This framing is a profound deception. There is a massive structural difference between a public body meeting in a poorly chosen physical room and a public body completely bypassing the public eye by using secret electronic processes or rolling email quorums to authorize contracts. By treating deliberate, non-public electronic decision-making as a harmless technical defect, Judge Andrew R. Schulman systematically sanitized illegal government behavior.

2. The Catch-22: Judge Schulman’s Impossible Burden of Proof

The most egregious flaw in Judge Andrew R. Schulman’s logic is the creation of a classic Catch-22 for citizens. Under Judge Schulman's standard:

• To prove you were prejudiced or that a secret meeting improperly altered a municipal outcome, you must know exactly what was said, argued, and decided behind closed doors.
• But because the meeting was held in secret, the public is entirely blocked from knowing what occurred.

By requiring citizens to prove the specific negative impacts of a meeting from which they were illegally excluded, Judge Andrew R. Schulman has effectively immunized municipal misconduct. Under this rule, the more secretive a government body is, the safer they are from legal accountability.

3. Subverting the Core Purpose of Sunshine Laws

Judge Andrew R. Schulman’s ruling betrays a fundamental misunderstanding of why open government laws exist. The core philosophy of RSA 91-A is that the process of governance must be open. The prejudice is not found in whether a secret meeting changed a vote; the prejudice is the exclusion of the public itself.

When Judge Andrew R. Schulman ruled that a public body can deliberate in secret and escape accountability because the public cannot prove a separate harm, he flipped the law on its head. Sunshine laws are designed to prevent secret deliberations entirely, not to police whether those secrets produced a "good" or "bad" final vote.

4. A Green Light for "Theatrical" Governance

Perhaps the most damaging consequence of Judge Andrew R. Schulman's doctrine is that it reduces public meetings to mere theater. Under Judge Schulman’s rationale, a town council or school board can meet in secret, hash out all the details, make the real deals completely out of sight, and then walk into a public room for a 30-second rubber-stamp vote.

As long as the public cannot prove that the private debate altered the final pre-arranged outcome, Judge Schulman’s standard deems the violation harmless. This completely eviscerates the statutory mandate that deliberations must be open, transforming citizens from active participants in democracy into blindfolded spectators.

The Bottom Line: By inventing a standard where structural secrecy is treated as a harmless technicality, Judge Andrew R. Schulman did not just issue a flawed ruling—he weaponized the judiciary to protect institutional lack of transparency. When the law allows judges to look at secret government deliberations and demand that the locked-out public prove what happened behind closed doors, the law ceases to be a shield for the citizen and becomes a cloak for the state.