When Judges Become Legislators: How Judge Schulman and the NH Supreme Court Undermined the Right-to-Know Law

By Jeffrey Thomas Clay

The people of New Hampshire have always valued open government. Part I, Article 8 of the State Constitution guarantees that government proceedings and records “shall be open, accessible, and available to the public.” RSA 91-A, the Right-to-Know Law, was enacted to enforce that constitutional promise.

But in my case, Judge Andrew Schulman of Rockingham Superior Court, later affirmed by the New Hampshire Supreme Court, wrote something into both the Constitution and RSA 91-A that simply does not exist: the power of an individual to negotiate away their constitutional and statutory rights in exchange for money.

Judicial Legislation from the Bench

In his final order, Judge Schulman upheld a settlement agreement between myself and the Town of Newmarket that permanently barred me from filing future Right-to-Know requests. By enforcing this agreement, he effectively amended the Constitution and RSA 91-A without the consent of the legislature or the people.

The transcript makes the danger plain: Attorney John Ratigan admitted that the Town Council’s “approval” of the agreement consisted only of email exchanges with the Town Manager — no public vote, no minutes, no lawful meeting. Instead of treating this as a violation, Judge Schulman accepted it and declared that nothing in the law prevented such a bargain. In doing so, he acted not as a judge but as a legislator, writing a new rule of law that has no basis in New Hampshire statutes or constitutional text.

Buying Silence with Taxpayer Funds

Judge Schulman’s order rests on the dangerous notion that government officials may use taxpayer money to silence citizens. Under his reasoning, a public body can commit clear violations of RSA 91-A and then pay off the complainant to avoid accountability. So long as the individual accepts the money, their constitutional rights — and the rights of the public — vanish.

This interpretation flips public policy on its head. New Hampshire courts have long recognized that settlements or contracts cannot override RSA 91-A or Article 8. In cases like Stone v. Claremont (2024) and Hawkins v. DHHS (2011), the Supreme Court rejected attempts to bargain away access to public records. The reason is obvious: these rights belong to all citizens, not just the individual requester.
Yet Judge Schulman declared otherwise, and the Supreme Court upheld his decision.

The End of the Right-to-Know Law?

The effect of this ruling is devastating. Under Judge Schulman’s logic, every citizen could now approach every public agency and offer to give up their Right-to-Know rights in exchange for a cash payment. Public agencies, eager to avoid scrutiny, could spend taxpayer funds to silence their most persistent critics.

Why fight a Right-to-Know lawsuit when it is cheaper to buy off the plaintiff? Why preserve the constitutional guarantee of transparency when it can be reduced to a bargaining chip?

This turns the Right-to-Know Law into a marketplace, where government secrecy is purchased with public money and accountability is for sale.

Public Policy Turned Upside Down

New Hampshire’s public policy is clear: government must be open, transparent, and accountable. Courts have repeatedly held that contracts or settlements that limit access to public records are void as against public policy. Yet Judge Schulman, and now the Supreme Court, have held the opposite: that using public funds to pay citizens to give up their rights does not violate public policy.

This radical departure is not only wrong as a matter of law but corrosive to democracy. It teaches public officials that violations of RSA 91-A can be “cured” with hush money, rather than corrected through compliance and transparency.

Conclusion

By his order, Judge Schulman acted as a legislature of one, inserting into the Constitution and RSA 91-A something that is not there: the ability of individuals to sell away the public’s rights for private gain. By affirming his order, the New Hampshire Supreme Court compounded the error and undermined decades of precedent.

If this stands, the Right-to-Know Law in New Hampshire is effectively destroyed. Transparency is no longer a constitutional guarantee; it is a commodity for sale. And public policy — which should protect the people’s right to know — has been inverted to protect government secrecy instead.
The people of New Hampshire deserve better.