Legislators don’t want to hand over logs

MANCHESTER – Two lawmakers sought as witnesses in the SB 3 voter residency lawsuit, Kathleen Hoelzel, R-Raymond, and Barbara Griffin, R-Goffstown, want Judge Kenneth Brown to reconsider his order that they provide information to the court, according to a motion they filed this week.

Hoelzel and Griffin were served with subpoenas as potential witnesses in the case that pits the state’s Democratic Party, League of Women Voters and several individual voters against the New Hampshire Attorney General’s Office and the New Hampshire Secretary of State’s Office. Along with Sen. Regina Birdsell, R-District 19, Hoelzel and Griffin were called to turn over communications and other documents related to their internal deliberations on the creation and passing of SB 3.

Brown ruled the lawmakers did not have to turn over the documents sought in the subpoenas, as those would be covered by the legal privilege extended to lawmakers under New Hampshire’s Constitution. However, Brown ruled that Birdsell, Hoelzel and Griffin must produce privilege logs for the court under New Hampshire Supreme Court Rule 21.

That rule states, in part, “When a party withholds materials or information otherwise discoverable under this rule by claiming that the same is privileged, the party shall promptly and expressly notify the opposing party of the privilege claim and, without revealing the contents or substance of the materials or information at issue, shall describe its general character with sufficient specificity as to enable other parties to assess the applicability of the privilege claim.”

In their motions, Hoelzel and Griffin write that Brown’s ruling seemed to make clear the documents sought could not be brought into court, and a privilege log is unnecessary.

“[I]t is unclear why Reps. Hoelzel and Griffin should be required after the fact to provide a privilege log to comply with court rules,” their motions states.

The representatives want Brown to either clarify why they have to produce the logs, in light of the ruling they are covered by privilege, or they want him to rule they do not have to produce the logs at all.

The lawsuit is scheduled for a preliminary injunction hearing starting on Aug. 27, and going into the week of Sept. 5. The lawsuit was originally filed in the Hillsborough Superior Court South in Nashua, but was moved to the Hillsborough Superior Court North in Manchester after Judge Charles Temple recused himself from the case citing a personal conflict.

The SB 3 lawsuit started last year, after Republican Gov. Chris Sununu signed the law that creates possible criminal penalties for people who register to vote on Election Day, but fail to provide evidence they are legally entitled to vote within a certain timeframe. The plaintiffs’ claim the law will discourage poor, minorities and college students from


Damien Fisher can be reached at 594-1245 or dfisher@nashuatelegraph.com or @Telegraph_DF.