Why New Hampshire Law Forbids Municipal "Ratification by Lawsuit"

The Statutory Shield: Why New Hampshire Law Forbids Municipal "Ratification by Lawsuit"

By Jeffrey Thomas Clay

When analyzing Judge Schulman’s order through the lens of established New Hampshire jurisprudence, a stark conflict emerges. By allowing a municipality to retroactively validate an unapproved settlement agreement via its litigation behavior, the order stands in direct opposition to long-standing New Hampshire Supreme Court precedent.

Chief among these is the landmark 2024 decision in Stone v. City of Claremont, which—alongside a deeply entrenched body of municipal law—explicitly establishes that public entities cannot use private contracts or litigation maneuvers to override statutory mandates and public constitutional rights.

The Stone v. Claremont Mandate: Transparency Cannot Be Contracted Away

In Stone v. City of Claremont (2024), the New Hampshire Supreme Court addressed a scenario that mirrors the exact danger presented by the Schulman order: an attempt to shield municipal records from public view using a negotiated settlement.

In that case, the City of Claremont had entered into a settlement agreement with a former police officer. As part of that private agreement, the City explicitly promised to "purge" the officer’s personnel file of certain disciplinary actions and agreed to a strict confidentiality provision—essentially promising to remain silent if the media or public inquired. When a journalist filed an RSA 91-A request for those records, the officer sued, arguing that the contractually binding settlement barred the city from releasing them.

The Supreme Court rejected this argument entirely. The Court held that:

• Public Law Trumps Private Contract: A confidentiality provision or restrictive covenant within a municipal settlement agreement cannot supersede the statutory mandates of New Hampshire’s Right-to-Know Law (RSA 91-A).
• No Private Safe Harbors: Public agencies and private litigants are legally forbidden from negotiating away the public's right to access government records.

By enforcing an agreement that restricts statutory rights, the Schulman order commits the exact error Stone prohibits: it treats a private agreement as an ironclad barrier against public accountability laws. Under Stone, if a municipal contract seeks to restrict rights guaranteed by RSA 91-A or the NH Constitution, that provision is legally unenforceable.

The Doctrine of Ultra Vires: Why Unauthorized Commitments are Wholly Void

The Schulman order’s reliance on "ratification" and "promissory estoppel" to bind a town via a lawsuit ignores a foundational principle of New Hampshire municipal law: the doctrine of ultra vires.

In New Hampshire, municipalities are purely creatures of the state. They possess absolutely no inherent authority; they have only the powers expressly granted to them by the legislature. Under a long line of NH Supreme Court cases (such as Marrone v. Town of Hampton and Tremblay v. Berlin Police Union), any contract made by a municipal official or attorney that skips mandatory statutory approval processes is ultra vires—meaning it is beyond their legal power, completely void from the beginning (void ab initio), and legally incapable of being enforced.

The NH Supreme Court has consistently established two strict rules that invalidate Judge Schulman’s "ratification by lawsuit" theory:

A town attorney or select board member cannot bypass public voting requirements to sign a settlement, and then "fix" that illegal contract by defending it in court. The NH Supreme Court has repeatedly held that if an agreement was executed without the proper statutory authority, subsequent actions by municipal agents—including filing lawsuits or entering pleas—cannot retroactively breathe life into a void contract.

In private commercial law, if one party promises something and the other relies on it, a judge can enforce it under "estoppel." But the NH Supreme Court has explicitly ruled that estoppel generally does not apply against a municipality when public rights or statutory procedures are at stake. As the Court noted in cases involving unauthorized municipal agreements, the public shouldn't suffer because a single official or attorney blew past the law.

The rationale is clear: if an official makes an illegal, unauthorized promise, the remedy is not to force the town to break statutory law to keep that promise. The promise is simply void.

The Legal Reality Going Forward

Conclusion: A Precedent Built on Sand

By trying to apply corporate rubber-stamping concepts to local government, the Schulman order creates a legal anomaly in New Hampshire. It suggests that town officials can create legally binding obligations in the shadows, then finalize them via a court clerk's filing.

According to the highest court in the state, however, public laws are not bargaining chips. Because the order forces the enforcement of an agreement that sidesteps statutory authority and chokes off public oversight, it directly collides with Stone v. Claremont and the immutable rules governing municipal authority. For municipalities looking forward, relying on the Schulman order is a high-risk gamble—one that is highly vulnerable to being overturned the moment it faces true appellate scrutiny.