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Carney v. Town of Weare

Supreme Court of New Hampshire

July 24, 2014

James Carney
v.
Town of Weare

The petitioner, James Carney, appeals an order of the superior court dismissing his petition for injunctive relief against the respondent, the Town of Weare, on mootness grounds. We affirm.

The record establishes the following factual and procedural history. The petitioner, who was employed by the Weare Police Department for approximately twenty years, filed this action after the town, by letter dated March 7, 2013, notified him that it had placed him on administrative leave. In the letter, the town advised the petitioner that "[a]ny necessary communications with Police Department are to be done by [its Chief of Police] through email only."

In his petition, the petitioner characterized the March 7 letter as an "order" (March 7 order) "to refrain from any communication with any members of the police department except for 'any necessary communication' to be done with Police Chief by e-mail only." He alleged that he notified the town that while he

accepted the notion that he could only communicate with the Chief through e-mail[, ] . . . his rights to assembly, free speech, and privacy as guaranteed under the [State and Federal] Constitutions were violated by having a gag order not to communicate with any of his friends from the police department, whether on or off duty, nor to attend any meeting where other [police department] employees may be present, including Union meetings.

Additionally, the petitioner alleged that he requested that the town "contract the scope of the order to conform with the guaranties of free assembly, speech and privacy under the Federal and State Constitutions."

In addition to the March 7 order, the police chief issued an internal memorandum dated March 5, 2013, notifying all staff of the petitioner's administrative leave, and that he was "not [to] be contacted by any member of this department without" the police chief's approval. In his petition, the petitioner characterized the March 5 memorandum as an "order" (March 5 order) "not to contact [the petitioner] without approval from the Police Chief."

Among other claims for relief, which are not relevant to this appeal, the petitioner requested that the trial court either require the town to "[w]ithdraw the order of March 7, 2013, " or to

[i]mmediately and without delay modify the order issued on March 7, 2013 so as to allow [him] to enjoy the guarantees of the First Amendment to the United States Constitution and the right to fee [sic] assembly, fee [sic] speech and privacy as guaranteed under the New Hampshire Constitution; to attend Union meetings, to communicate with his friends, to allow his friends to visit him during his time of illness in and out of the hospital, and to otherwise engage in free speech, without any restrictions whatsoever unless the Town of Weare is able to make an adequate showing that the exercise of such constitutionally-guaranteed rights will pose a clear and imminent threat to the orderly operation of the police department to carry out its mission.

The petition asserted no other specific constitutional claims for relief.

Effective July 1, 2013, the petitioner retired. The town advised the petitioner that, under the circumstances, it could no longer enforce the March 7 order, and requested that he voluntarily nonsuit the matter. The petitioner declined to nonsuit the case, in part because the town had not lifted the March 5 order. The town then moved to dismiss, arguing that the petitioner's retirement and its inability to enforce the March 7 order rendered the matter moot. With respect to the March 5 order, the town argued that: (1) the petitioner had asserted no claim regarding the March 5 order; and (2) he lacked standing to challenge the March 5 order. The trial court granted the motion, finding that the town's lifting of the March 7 order rendered the case moot.

In his brief, the petitioner argues that both the March 5 order and the March 7 order violated his state and federal constitutional rights to free speech and assembly, without addressing the trial court's determination that the case is moot. The town counters, as it argued in the trial court, that the petitioner's claim relative to the March 7 order is moot, that the petitioner asserted no claim relative to the March 5 order, and that he lacks standing to challenge the March 5 order. The petitioner responds to these arguments in a "Memorandum of Law in Reply to Town of Weare's Brief, " which is twice the allowable length of a reply brief under Rule 16(11), and which otherwise does not comply with the technical requirements of Rule 16. The petitioner also raises new issues in his reply memorandum, including: (1) whether the trial court erred by not granting him leave to amend his petition; and (2) whether he was entitled to attorney's fees. While we waive the technical requirements of Rule 16, see Sup. Ct. R. 1, we decline to address the issues raised for the first time in the reply memorandum, see Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 617-18 (1987).

Where a motion to dismiss does not attack the sufficiency of the petitioner's legal claim, but instead challenges the petitioner's ability to maintain the action, the trial court must look beyond the petitioner's unsubstantiated allegations and determine, based upon the facts, whether the petitioner has demonstrated the right to claim relief. See Avery v. N.H. Dep't of Educ., 162 N.H. 604, 606-07 (2011). The petitioner bears the burden of establishing the right to claim relief. Exeter Hosp. Medical Staff v. Board of Trustees of Exeter Health Resources, 148 N.H. 492, 495 (2002).

In this case, we agree with the town that, due to the petitioner's retirement and the town's inability to enforce a "gag" order against him, the petitioner's constitutional challenge to the March 7 order has become academic, and his request for injunctive relief relative to the order is, therefore, moot. In the Matter of O'Neil & O'Neil, 159 N.H. 615, 624 (2010). Nor has the petitioner established that the issue implicates a pressing public interest, or is capable of repetition yet evading judicial review, so as to justify a decision on the merits. Appeal of Hinsdale Fed. of Teachers, 133 N.H. 272, 276 (1990). To the extent the petitioner challenges the constitutionality of the March ...


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