Constitutional Law

N.H. justices: Expunged criminal records fair game in political race

By By The Associated Press

CONCORD, N.H. — Even expunged criminal records are fair game during a campaign for public office, the New Hampshire Supreme Court ruled yesterday.

The court unanimously rejected the invasion-of-privacy complaint filed by David Lovejoy against his opponent in the 2009 Rockingham County Sheriff?s race, incumbent Dan Linehan, and deputy sheriff Mark Peirce.

Lovejoy accused Linehan and Peirce of leaking Lovejoy?s annulled simple assault conviction to the Portsmouth Herald in October 2008. The conviction stemmed from an incident in 1989.

The Supreme Court upheld a lower court?s dismissal of Lovejoy?s lawsuit, saying candidates have less expectation of privacy to start with and that a prior assault conviction is relevant if the candidate is running for the county?s top law enforcement post.

Lovejoy?s lawyer, Charles Douglas III, said he was disappointed his client can?t collect damages from Linehan and Peirce, who knew the annulled records were supposed to be kept confidential.

?Hopefully the legislature will look at this,? Douglas said. ?If someone in law enforcement does disclose and knows better, there should be a penalty in addition to criminal charge.?

Linehan and Peirce resigned their posts to avoid criminal prosecution.

Lovejoy claimed that Linehan and Peirce invaded his privacy by publicly disclosing private information about him.

The state law permitting judges to annul certain criminal convictions states that a person who has been granted an annulment shall be treated as if he?d never been arrested or convicted and makes it a misdemeanor in most instances to disclose the record.

But to prevail on his invasion-of-privacy complaint, Lovejoy had to convince the court that the leaked information was of no legitimate concern to the public. The court said it was.

?A candidate voluntarily seeking to fill an elected public office has a diminished privacy expectation in personal information relevant to that office,? the court stated.

Full post as published by First Amendment Center on February 23, 2011 (boomark / email).