In re Keene Sentinel

612 A.2d 911, 136 N.H. 121, 20 Media L. Rep. (BNA) 1770, 1992 N.H. LEXIS 146
CourtSupreme Court of New Hampshire
DecidedAugust 27, 1992
DocketNo. 91-055
StatusPublished
Cited by22 cases

This text of 612 A.2d 911 (In re Keene Sentinel) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Keene Sentinel, 612 A.2d 911, 136 N.H. 121, 20 Media L. Rep. (BNA) 1770, 1992 N.H. LEXIS 146 (N.H. 1992).

Opinion

Johnson, J.

The Keene Sentinel appeals the decision of the Superior Court (Dunn, J.) denying its requests to unseal the records of Charles G. Douglas, III and Martha R. (Douglas) Johnson’s 1979 divorce and Charles G. Douglas, III and Nancy C. (Douglas) Clough’s 1983 divorce. The newspaper argues that both the State and Federal Constitutions guarantee it a right of access to records such as these, while Charles G. Douglas, III, Martha R. Johnson, Charles G. Douglas, I\( and Thomas A. Douglas (the Douglases) contend that access would violate their right of privacy. Moreover, they submit that the Keene Sentinel’s request is untimely For the reasons stated below, we reverse and remand.

This lawsuit began in the summer of 1990, during a political campaign for New Hampshire’s second congressional district seat in the United States House of Representatives. The major contenders in the race were the incumbent, Charles G. Douglas, III, a former member of the superior and supreme courts, and Richard Swett, who ultimately won. In July 1990, a Keene Sentinel reporter visited the Merrimack County Superior Court and asked to examine the records [124]*124of Charles G. Douglas, Ill’s divorces. A clerk told the reporter that the file of the 1979 divorce, between Martha E. Johnson and Charles G. Douglas, III, had been “partially impounded,” and that only the following documents were open for public inspection: the libel for divorce, the orders of notice setting forth a return date, a return of service, an appearance, a joint motion of the parties to waive the thirty day rule for final hearings and to place the parties’ permanent stipulation in a sealed envelope, an order approving the motion, an order granting a divorce, a State report of divorce, an order accepting the permanent stipulation, and a notice of a post-divorce order. The reporter was informed that the file of the 1983 divorce, between Charles G. Douglas, III and Nancy C. Clough, was “completely impounded.”

The petitioner sought to intervene in each case. Martha E. Johnson and Charles G. Douglas, III both asked the superior court to dismiss the Keene Sentinel’s petitions, while Charles G. Douglas, IV and Thomas A. Douglas, sons of Martha E. Johnson and Charles G. Douglas, III, filed their own motions to intervene. Nancy C. Clough did not file an appearance, and an order of default was entered against her.

The superior court granted the Keene Sentinel’s requests to intervene, finding that the newspaper “does have a direct and apparent right sufficient to give it standing to intervene in these actions,” and granted the sons’ motions as well. The court, however, denied the newspaper’s request for access to the sealed divorce records, as it found that:

“In these long-terminated marital actions, the files in question were sealed by the Court at the close of the litigation upon the request of the divorce litigants and with the approval of the trial judge. Despite the longstanding policy in this state favoring open judicial proceedings and court records, we are unwilling to overturn the decision of the trial court in these eases where there has been no evidence presented that the balance accorded by the trial judges in these cases should be shifted in favor of the press. This is particularly true where the petitioner’s motive appears to be to promote public scandal by exposing the most private aspects of the divorce litigants’ marital lives.”

The Keene Sentinel appealed.

Before this Court, the newspaper argues that the superior court correctly granted its requests to intervene, but that regardless of [125]*125the propriety of that ruling, we have jurisdiction to reverse the superior court’s decision maintaining nondisclosure of the divorce records pursuant to our supervisory powers over the trial courts. Regarding the merits of its petitions, the Keene Sentinel contends that the superior court committed error by placing upon it the burden of proof, and failed to tailor its order in the least restrictive manner. Moreover, it argues that disclosure should have been permitted under RSA chapter 91-A, the Right-To-Know Law.

The Douglases first argue that the trial court should not have granted the newspaper intervenor status because the Keene Sentinel has no proper interest in the divorce cases, and because its request was untimely. In addition, they contend that the newspaper’s right to access is outweighed by the families’ privacy rights. Finally, the Douglases assert that neither the Right-To-Know Law nor our supervisory powers apply to this case.

We begin by addressing the procedural issue, whether the trial court properly granted Keene Sentinel’s requests to intervene in these closed cases. It is argued that the procedure used by Keene Sentinel in seeking to intervene was improper because the newspaper’s interest is not “ ‘direct and apparent.’ ” R. WIEBUSCH, 4 New Hampshire Practice, Civil Practice and Procedure § 176, at 129-30 (1984) (quoting Pike v. Pike, 24 N.H. 384, 394 (1852)); see also Snyder v. N.H. Savings Bank, 134 N.H. 32, 34, 592 A.2d 506, 507 (1991) (right to intervene is determined as matter of discretion of trial court). The newspaper has no direct and apparent interest as would a party in the subject matter of the underlying litigation that would warrant its intervention as a party. The newspaper, as well as any member of the public, however, has standing, without having to be made a party in a case, to request access to court records. The newspaper sought to do so through intervention. Procedurally, this case more appropriately should have been initiated by a petition for access to the sealed records. Cf. Keene Publishing Corp. v. Cheshire County Super. Ct., 119 N.H. 710, 406 A.2d 137 (1979); Keene Pub. Corp. v. Keene Dist. Ct., 117 N.H. 959, 380 A.2d 261 (1977). Because this is a question of form and not substance, we conclude that the newspaper’s choice of procedure should not jeopardize its pursuit of a potentially meritorious claim. Given our treatment of this procedural issue, we need not address the newspaper’s arguments concerning either our supervisory powers under RSA 490:4 or the Right-To-Know Law.

The Douglases next argue that this action is procedurally barred by the three-year “general statute of limitations.” See RSA [126]*126508:4 (Supp. 1991) (personal actions). None of our many specific statutes of limitations can be interpreted to hinder a citizen’s right to seek disclosure of court records. Moreover, we are aware of no jurisdiction which applies a general or specific statute of limitations to a claim brought seeking such access. We hold that the right to seek access is not time-barred, and the Keene Sentinel’s request is therefore timely.

We proceed to the substantive issues raised in the case. Although the Keene Sentinel bases its claim on both Federal and State constitutional grounds, our decision today rests solely on our interpretation of the New Hampshire Constitution. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983). We look to cases from other jurisdictions for guidance, but we do not rely on them to arrive at our conclusion. See Michigan v. Long,

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Bluebook (online)
612 A.2d 911, 136 N.H. 121, 20 Media L. Rep. (BNA) 1770, 1992 N.H. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-keene-sentinel-nh-1992.