A Court That Would Not Review: How the New Hampshire Supreme Court Abandoned the Law

By Jeffrey Thomas Clay

INTRODUCTION

This rebuke addresses a fundamental failure by the New Hampshire Supreme Court in my appeal from Judge Andrew R. Schulman’s order granting summary judgment to the Town of Newmarket. The Court did not merely err in outcome. It failed to apply the governing standard of review. That failure deprived me of my right to trial, my right to meaningful appellate review, and my right to due process of law.

I do not allege motive as fact. I allege something more serious and provable: a departure from settled law so stark that it creates, at a minimum, the appearance of bias and unequal justice.

I. THE GOVERNING LAW THE COURT WAS REQUIRED TO APPLY

The standard of review for summary judgment is among the most settled principles in New Hampshire law. Appellate review is de novo. No deference is owed to the trial court. All evidence must be viewed in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in that party’s favor.

The New Hampshire Supreme Court has repeatedly held:
“We review the trial court’s grant of summary judgment de novo.”
Appeal of Town of Lincoln, 172 N.H. 244, 248 (2019).

Because summary judgment presents only questions of law, the appellate court owes no deference to the trial court’s ruling.
Conduent State Healthcare, LLC v. Blue Cross Blue Shield of N.H., 173 N.H. 242, 249 (2020).

A court may not resolve disputed facts, weigh evidence, or make credibility determinations at summary judgment.
DiLuglio v. N.H. Ins. Co., 165 N.H. 735, 742 (2013);
Viking Plumbing & Heating Co. v. Stevens, 141 N.H. 448, 450 (1996).

Federal law is identical:
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

II. THE ERROR: DE NOVO REVIEW WAS REPLACED WITH DEFERENCE

In my appeal, the Supreme Court did not independently examine the summary judgment record. Instead, it accepted Judge Schulman’s factual framing, deferred to contested conclusions, and treated disputed issues as settled.

That approach violates black-letter law. De novo review requires the appellate court to conduct its own analysis, not to endorse the trial court’s reasoning.

By deferring rather than reviewing, the Court effectively converted summary judgment into an unreviewable determination, stripping the appellate process of its constitutional function.

III. CONSTITUTIONAL CONSEQUENCES

This error was not harmless.

First, it eliminated my right to trial. Summary judgment is a “drastic remedy” that must be applied cautiously. Rallis v. Demoulas Super Mkts., Inc., 159 N.H. 95, 99 (2009). By failing to credit disputed facts, the Court removed factual questions from the jury.

Second, it denied meaningful appellate review. Due process guarantees a meaningful opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). An appeal that defers rather than reviews is a constitutional nullity.

IV. PRO SE STATUS AND THE APPEARANCE OF IMPROPRIETY

Courts recognize that while pro se litigants are held to procedural rules, they are entitled to fair and impartial application of the law.
In re Estate of King, 149 N.H. 226, 230 (2003).

In this case, context matters:

I was a pro se appellant.
I had previously filed a judicial-conduct complaint against Judge Schulman.
The Town of Newmarket affirmatively included that judicial complaint as an exhibit before the Supreme Court.

That exhibit served no legitimate appellate purpose. Its only effect was to inform the Court that the appellant had accused the trial judge of misconduct.

I do not allege retaliatory intent as fact. But constitutional law does not require proof of intent to establish a due process problem. It requires only an appearance that justice was not administered impartially.

“Justice must satisfy the appearance of justice.”
Offutt v. United States, 348 U.S. 11, 14 (1954).

When a court departs from settled standards of review, does so in a way that uniformly disadvantages a pro se litigant, and does so with knowledge of a judicial-conduct complaint injected into the record by the opposing party, the integrity of the judicial process is called into question.

V. CONCLUSION

This was not merely an incorrect decision. It was a failure of appellate review.

By abandoning the governing standard of review, the New Hampshire Supreme Court deprived me of my right to trial, my right to meaningful appellate review, and my right to due process. At minimum, the error was structural—undermining confidence in the fairness and neutrality of the judicial system itself.

Courts demand adherence to standards from litigants. They must demand no less from themselves.