When the Highest Court Blesses the Unlawful, the Rule of Law Suffers

When the Highest Court Blesses the Unlawful, the Rule of Law Suffers

By Jeffrey T. Clay

Courts exist to enforce the law, not to excuse its violation. When they fail in that role—especially at the highest level—the damage extends far beyond a single case.

That is precisely what occurred when Judge Schulman upheld a settlement agreement between me and the Town of Newmarket that permanently stripped a citizen of statutory rights, and when the New Hampshire Supreme Court later blessed that reasoning, endorsing conclusions no reasonable trier of fact applying New Hampshire law could reach.

In doing so, the Court did more than affirm an error. It disgraced its institutional role as the guardian of the rule of law.

A Contract That Should Never Have Survived Judicial Scrutiny

The agreement at issue required a private citizen to permanently relinquish the right to make future Right-to-Know requests under RSA 91-A. Not temporarily. Not conditionally. Forever. It also imposed sweeping speech restrictions, barred criticism of public officials, and purported to regulate conduct involving other municipalities and even future employment.

RSA 91-A is not a private entitlement that may be bought, sold, or extinguished at will. It is a public-policy statute enacted to ensure transparency, accountability, and citizen oversight of government. New Hampshire courts have long recognized that statutes adopted for the public good cannot be nullified by private agreement—especially agreements involving government actors.

A court that enforces such a contract is not merely resolving a dispute; it is rewriting the statute.

Approval Is Not Authority—and Illegality Cannot Be Ratified

Judge Schulman further concluded that the agreement was “ratified” because the Town later brought suit to enforce it, even assuming the Town Manager lacked authority to bind the Town and even assuming the Town Council never approved the contract.

That conclusion is irreconcilable with basic municipal law.

Municipalities possess only the authority granted by statute. Contracts entered without that authority—or in violation of public policy—are void from inception. They are legal nullities. Unlike private contracts, they cannot be cured by ratification, estoppel, or after-the-fact conduct.

If filing a lawsuit were enough to ratify an unlawful municipal contract, then every statutory safeguard governing municipal action would be meaningless. Officials could bypass councils, ignore public-meeting laws, and retroactively legitimize illegal acts simply by suing on them later.

That is not New Hampshire law. And it never has been.

The Supreme Court’s Endorsement Is the Deeper Failure

Judicial error is not uncommon. What is alarming here is that the New Hampshire Supreme Court endorsed Judge Schulman’s reasoning rather than correcting it.

By doing so, the Court effectively announced that:

• A municipality may purchase a citizen’s permanent silence;
• Statutory transparency rights may be bargained away;
• Ultra vires acts may be cured by litigation;
• And courts may enforce contracts the Legislature itself could not authorize.

Each of those propositions contradicts settled law. Taken together, they describe a system in which government power is limited not by statute or constitution, but only by judicial willingness to look the other way.

When the highest court in the state lends its authority to such reasoning, the harm is institutional. The Court does not merely get a case wrong; it signals that legality is negotiable, that public rights are expendable, and that judicial convenience may override legislative command.

That is not judging. It is abdication.

Why This Matters to Every Citizen

This case is not about one contract or one litigant. It is about whether courts will enforce the Legislature’s judgment that transparency matters, or whether they will allow municipalities to contract around inconvenient statutes and constitutional principles.

When courts validate agreements that suppress public rights and excuse the absence of lawful authority—and when the Supreme Court affirms that approach—they erode confidence in the judiciary itself.

No reasonable trier of fact applying New Hampshire law could have reached these conclusions. When the Supreme Court nevertheless blesses them, it diminishes the rule of law it exists to protect.

That should concern every citizen of this state.