The Contractual Buying of Silence:

It is a bedrock principle of American jurisprudence that public officials are accountable to the people, that the First Amendment protects the right to criticize governance, and that statutory transparency cannot be bartered away in secret. Yet, a review of a New Hampshire Superior Court Final Order (Jeffrey Clay v. Town of Newmarket, 218-2023-CV-01435) and the underlying "Mutual Settlement Agreement" reveals a staggering, collusive failure of legal ethics.

Newmarket municipal officials, attorneys from Donahue, Tucker & Ciandella (DTC), and a sitting Superior Court judge did not just commit a procedural oversight. They actively concocted, signed, and legally rubber-stamped a contract so fundamentally illegal that it shatters the bounds of the New Hampshire Constitution.

They knew—or by any standard of basic legal competence, absolutely should have known—that this agreement was dead on arrival. Here is how they got it completely, egregiously wrong.

1. The Fiction of "Ratification" for a Contract Void Ab Initio

In his final order, the presiding judge leaned heavily on the concept of municipal ratification, arguing that even if the Town Manager lacked the initial authority to sign away a citizen's rights, the Town magically cured this defect by filing a lawsuit to enforce the deal.

This is elementary-school contract law applied entirely upside down.

A municipality can only ratify an unauthorized agent’s act if the underlying contract is voidable—meaning it contains a technical, procedural flaw. A municipality cannot ratify a contract that is void ab initio (void from the beginning) because its very object is illegal.

Paragraph 3 of the settlement agreement explicitly dictates that the petitioner "shall not engage in writing in media or social media about the Respondents, its employees or its other public officials." This is a textbook prior restraint on core political speech targeting public servants. Part 1, Article 8 of the New Hampshire Constitution explicitly mandates that public officials are "substitutes and agents, and at all times accountable to [the people]."

A town manager and a city attorney have zero legal capacity to use public funds to buy a citizen's silence or insulate politicians from public criticism. Because the contract barters away unalienable constitutional rights, its substance is illegal. It never legally existed, and no subsequent lawsuit can breathe life into a corpse.

2. Privatizing Public Law: You Cannot Contract Out of RSA 91-A

The court and DTC attorneys treated the New Hampshire Right to Know Law (RSA Chapter 91-A) as if it were a private commercial tort that could be permanently settled and waived. Paragraph 2 of the agreement bans the petitioner from ever submitting an RSA 91-A request to Newmarket again.

The court excused this by pointing out that the petitioner had moved to Florida, as if geography strips an American citizen of statutory rights. But RSA 91-A is a statutory mandate explicitly founded on the state's public policy regarding transparency. The legislature granted the right to inspect public records to "every citizen."

The New Hampshire Supreme Court has made it clear that parties cannot contractually alter or render statutes founded on public policy permanently "inoperative" in advance. By upholding this ban, the Superior Court allowed a local municipality to invent an arbitrary, localized exemption to state law, creating a dangerous precedent where towns can carve themselves out of statutory accountability one cash payout at a time.

3. The Overreach: Illegally Binding Third Parties

Perhaps the most glaring evidence of "buyer's remorse" or outright arrogance from Newmarket and its counsel is found in Paragraph 2, which states that the petitioner shall not "have any family relatives or others submit RSA 91-A requests on his behalf ever again."

Every freshman law student understands that a contract cannot bind non-signatories. Your family members, neighbors, and independent journalists are completely separate citizens who possess their own distinct statutory rights under RSA 91-A. You have no legal mechanism to contract away their rights, and the Town has no legal right to vet the "intent" of a third-party record requestor based on a private settlement. By declaring this contract fully enforceable, the court legitimized an overbroad, illegal mechanism to deny public records to completely uninvolved third parties.

4. Misapplying Commercial Estoppel to Constitutional Rights

The court’s final shield for this unconstitutional document was the "acceptance of benefits" doctrine, ruling that because a $\$1,000$ check was cashed, the petitioner was legally estopped from challenging the contract's validity.

While this rule stops a contractor from complaining about a bad commercial deal after taking the money, it has no place in constitutional equity. It is a well-established legal maxim that a party cannot be estopped by an agreement that violently contradicts clear public policy or constitutional mandates. If a contract is void because it strips away constitutional protections and statutory transparency, a payment of public funds cannot sanitize it.

The proper remedy for an unbiased court was not to enforce an illegal contract. The proper remedy was to declare the contract void, strike down the illegal speech and 91-A bans, and order the restitution of the disbursed funds to return the parties to their original positions.

Conclusion: A Calculated Blindness

Newmarket officials wanted an expensive, off-the-books truce to stop a persistent gadfly. DTC attorneys were happy to draft an overbroad, unconstitutional gag order to deliver that peace. And a Superior Court judge, fatigued by a long-standing municipal feud, chose convenience over constitutional fidelity.

They all knew—or should have known—that you cannot use a private cash settlement to permanently exempt a government entity from state transparency laws, strip third parties of their rights, or contractually ban an American citizen from speaking on social media. This order is a stain on municipal accountability, and it demands reversal.