EES Pre‑Placement Due Process Clarified; Trial Courts Must Apply the 2024 “Activity Logs” Standard to “Potentially Exculpatory” Determinations

Introduction

In John Doe v. Town of Lisbon & a., No. 2023-0700 (N.H. July 2, 2025), the New Hampshire Supreme Court vacated the superior court’s grant of summary judgment to the Town of Lisbon and the New Hampshire Department of Justice (DOJ) and remanded. The Court held that the plaintiff, a former town police officer whose name was placed on the State’s Exculpatory Evidence Schedule (EES) under RSA 105:13-d, did not receive adequate procedural due process before placement. The Court also directed the trial court to apply the newly announced standard from Doe v. New Hampshire Attorney General (Activity Logs), 176 N.H. 806 (2024), 2024 N.H. 50, to determine whether the officer’s conduct is “potentially exculpatory” within the meaning of RSA 105:13-d.

The decision clarifies that a disciplinary process, standing alone, is not enough to satisfy due process if the officer was not notified that EES placement was under consideration and was not given an opportunity to be heard on that specific question. It also cements Activity Logs as the governing framework for evaluating whether officer conduct qualifies as “potentially exculpatory” for EES purposes.

Background and Key Facts

The material facts are undisputed. In October 2020, while employed as a police officer for the Town of Lisbon, the plaintiff was ordered by the Chief of Police to take a physical fitness test. He took the test at another department without authorization and later falsely told a Sergeant that, with the Chief’s approval, he had taken the test elsewhere and thus was not required to attend the test ordered by the Chief.

An internal investigation followed. The plaintiff was interviewed, and the Chief recommended discipline to the Board of Selectmen. After a non-public session with the plaintiff, the Board terminated his employment. Critically, during the disciplinary process, the plaintiff received no notice that his name was being considered for EES placement.

On the same day in January 2021 that the plaintiff was terminated, the Chief sent a letter to the DOJ stating that a “determination has been made” that the plaintiff should be added to the EES. The plaintiff was not notified of his EES placement until October 2021. In subsequent discovery, the Chief stated that the Town did not make the EES determination (asserting that responsibility lay with the county attorney), the county attorney denied making it, and the DOJ also denied making it, describing its EES role as merely administrative under RSA 105:13-d, I.

The plaintiff sued in superior court in 2022 seeking removal from the EES. On cross-motions for summary judgment, the trial court granted the defendants’ motion, concluding that the internal investigation and Board hearing provided constitutionally sufficient process and that the conduct warranted EES placement. The court also found that the Chief determined the EES placement. The plaintiff moved for reconsideration; the motion was denied, and he appealed.

Summary of the Opinion

The Supreme Court vacated the grant of summary judgment to the defendants and remanded.
The Court held the plaintiff “did not receive adequate due process” prior to his placement on the EES where he was not notified pre-placement that EES placement was under consideration, distinguishing Gantert v. City of Rochester, 168 N.H. 640 (2016).
Because the trial court’s decision predated Doe v. N.H. Attorney General (Activity Logs), the Court directed the trial court to apply Activity Logs’ “new standard” for determining whether officer conduct is “potentially exculpatory” under RSA 105:13-d.
The Court left to the trial court the nature and scope of further proceedings on remand. Given the remand, the Court declined to reach the parties’ other arguments.

Analysis

Precedents Cited and Their Influence

The Court’s analysis was shaped by several precedents:

Doe v. N.H. Attorney General (Activity Logs), 176 N.H. 806 (2024), 2024 N.H. 50: The Court recently “announced a new standard” for assessing whether officer conduct is “potentially exculpatory” for purposes of RSA 105:13-d. Because the superior court ruled before Activity Logs, the Supreme Court remanded for the trial court to apply that new standard in the first instance. While the order does not restate the standard, its instruction confirms that Activity Logs now governs the merits of EES placements statewide.
Gantert v. City of Rochester, 168 N.H. 640 (2016): The defendants argued the process here was “virtually identical” to what was deemed sufficient in Gantert. The Court rejected that contention. In Gantert, the officer had pre-placement notice of consideration for EES placement and an opportunity to meet with the Chief before inclusion. Gantert neither addressed nor endorsed the sufficiency of a disciplinary hearing that lacked notice that EES placement was on the table. Thus, Gantert supports, rather than undermines, the requirement of EES-specific notice and an opportunity to respond before placement.
Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755 (2014): The Court repeated the familiar summary judgment standard: evidence is viewed in the light most favorable to each nonmoving party, with legal conclusions reviewed de novo. This framed the Court’s conclusion that, as a matter of law, the process the plaintiff received was inadequate to support summary judgment for the defendants.
City of Manchester v. Bellenoit, 176 N.H. 608 (2024): Cited for the proposition that the Court’s factual recitation is supported by the record or undisputed, reinforcing the factual premise that there was no pre-placement EES notice.
In the Matter of Gordon and Gordon, 147 N.H. 693 (2002): The Court declined to reach alternative arguments because it was remanding for further findings, a routine prudential step.

Legal Reasoning

The Court’s procedural due process analysis proceeded from the specific statutory context of RSA 105:13-d and the nature of the decision at issue—whether an officer’s personnel information contains “potentially exculpatory evidence” warranting placement on the EES.

What process is due under RSA 105:13-d: The Court emphasized that “the issue is whether the plaintiff received adequate due process with respect to the conclusion that he engaged in potentially exculpatory conduct.” Thus, the process must address not only the underlying facts (e.g., whether the conduct occurred) but also the determination that those facts qualify as “potentially exculpatory” within the statute.
Why the disciplinary process was insufficient here: The plaintiff participated in an internal investigation and appeared before the Board of Selectmen. But he was never told that EES placement was being considered, nor was he offered a chance to contest that specific determination before his name was added. The Court held this was inadequate. It rejected the defendants’ reliance on Gantert, explaining that Gantert involved pre-placement notice and an opportunity to be heard on EES inclusion; therefore, Gantert does not stand for the sufficiency of a disciplinary process that lacks EES-specific notice.
Pre-placement notice and opportunity to be heard: Implicit in the Court’s reasoning is that due process for EES placement requires, at minimum, notice that placement is under consideration and an opportunity to respond before the deprivation occurs. Because the plaintiff lacked both, the Court concluded his due process rights were not adequately protected.
Scope of remand: While the Court declared the process inadequate on the record presented, it left to the trial court “the nature and scope of any further proceedings,” signaling flexibility in fashioning appropriate procedures but rejecting the notion that a disciplinary process automatically satisfies due process for EES placement when it omits EES-specific notice.
Merits standard on “potentially exculpatory” conduct (Activity Logs): The Court did not decide whether the plaintiff’s conduct is potentially exculpatory. Instead, it directed the superior court to apply the Activity Logs standard on remand. This confirms that Activity Logs supplies the controlling test for all RSA 105:13-d determinations moving forward.

Impact and Practical Implications

The decision has immediate, statewide consequences for law enforcement agencies, prosecutors, and the DOJ concerning EES maintenance and officer due process rights.

Pre-placement procedure is mandatory in substance: Agencies cannot rely on general disciplinary processes to satisfy due process for EES placement unless the officer receives explicit notice that EES placement is being considered and has an opportunity to respond on that specific issue before placement.
Alignment with Gantert’s procedural model: Gantert remains a safe procedural template: pre-placement notice of contemplated EES inclusion and an opportunity for the officer to meet and respond before a decision is made.
Who decides EES placement must be clear: The footnote’s conflicting statements about who made the placement decision (Chief, county attorney, DOJ) underscore the need for written designation of the decision-maker and transparent documentation of the EES determination. Ambiguity is a due process risk.
Activity Logs now controls the merits: On the substance of what qualifies as “potentially exculpatory,” trial courts must apply Activity Logs. Agencies should review and recalibrate EES criteria, training, and documentation to reflect Activity Logs.
Potential for increased pre-placement process: Expect agencies to implement EES-specific notices and opportunities to be heard. Some may adopt a written notice with a brief response window, followed by a meeting with the chief or designated official, to balance prompt Brady/Giglio disclosures with due process.
Revisiting existing EES placements: Officers placed on the EES without EES-specific pre-placement notice may seek review. Agencies should be prepared to defend past process or offer remedial procedures.
Litigation posture on summary judgment: Given the Court’s emphasis on EES-specific notice, factual disputes about whether such notice was given or whether the officer had a meaningful chance to respond will often preclude summary judgment for the government absent clear records.

Complex Concepts Simplified

Exculpatory Evidence Schedule (EES): A list maintained by the DOJ under RSA 105:13-d of current and former officers whose personnel information may contain evidence favorable to criminal defendants (often impeachment material). Prosecutors consult it to fulfill constitutional disclosure obligations.
“Potentially exculpatory” evidence: Information that could, in some case, help a criminal defendant, including by impeaching an officer’s credibility. The precise standard for determining whether conduct meets this threshold is now governed by Activity Logs (2024).
Procedural due process: The constitutional requirement that, before the government takes an action that affects a protected interest, it must provide notice of the contemplated action and a meaningful opportunity to be heard. Here, the protected interest includes the officer’s reputation and employment prospects affected by EES placement.
Pre-placement versus disciplinary process: A disciplinary investigation/hearing adjudicates workplace rules and sanctions. An EES placement is a separate determination about the exculpatory significance of conduct for criminal cases. Due process requires that the officer be notified and heard on that specific determination before placement.
Summary judgment: A procedural device for resolving cases without trial when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The Supreme Court reviews legal conclusions de novo.
Supreme Court Rule 20(3): Allows the Court to decide an appeal by order without full opinion after reviewing the briefs and record. Such orders still resolve the issues and guide lower courts.

Detailed Discussion

Why Gantert Does Not Control

The defendants argued that the process afforded to the plaintiff mirrored what was upheld in Gantert. The Supreme Court rejected this, highlighting a dispositive factual difference: in Gantert, the officer received explicit pre-placement notice and an opportunity to confer with the chief regarding EES inclusion before his name was added. Gantert therefore supports the proposition that EES-specific notice and a chance to be heard are key features of constitutionally sufficient process. It does not approve the sufficiency of disciplinary proceedings that never flagged the EES issue.

The Due Process Deficiency Here

The plaintiff’s “disciplinary” process was robust in ordinary employment terms—interview in an internal investigation, personal appearance before the Board, and reasoned termination decision. But it lacked notice that EES placement was under consideration and a chance to contest that determination before placement. The Court explicitly concluded that the plaintiff “did not receive adequate due process.” It also underscored that due process must be measured against the conclusion that the officer’s conduct is “potentially exculpatory”—a distinct question from whether discipline is warranted.

Activity Logs Now Governs the Merits

The Court did not decide whether the plaintiff’s conduct (taking an unauthorized test and lying to a superior) is “potentially exculpatory.” Instead, it instructed the trial court to apply the “new standard” from Activity Logs. Although the order does not restate that standard, the mandate makes clear that Activity Logs is now the controlling authority for assessing the exculpatory character of officer conduct under RSA 105:13-d. Trial courts and agencies must therefore analyze EES placements through that lens.

Authority and Accountability for EES Decisions

A footnote reveals significant ambiguity about who made the EES “determination” here: the Chief disclaimed responsibility (pointing to the county attorney), the county attorney disclaimed it, and the DOJ described its role as purely administrative. This confusion is consequential for due process. If the decision-maker is unknown or obscured, it is difficult to provide proper notice, a targeted opportunity to be heard, and a path for reconsideration or appeal. On remand, the superior court may need to resolve who is authorized to decide EES placement and whether the process accords with statutory and constitutional requirements.

Practical Guidance

For law enforcement agencies:
- Adopt an EES placement protocol distinct from disciplinary procedures.
- Provide written pre-placement notice that EES inclusion is being considered, identify the conduct at issue, and specify why it may be “potentially exculpatory.”
- Offer a meaningful opportunity to respond (in writing and/or a meeting) before any placement decision is finalized or transmitted to DOJ.
- Designate in writing the official responsible for making the EES determination and maintain a clear record of the decision and reasons.
- Coordinate with prosecutors to balance prompt Brady/Giglio compliance with the officer’s due process rights—e.g., expedited notice-and-response windows where time is of the essence.
For county attorneys/prosecutors:
- Audit EES placement processes to ensure pre-placement notice and opportunity to be heard occurred when decisions originated in your office.
- Apply Activity Logs to assess “potentially exculpatory” status going forward and when revisiting existing entries.
For DOJ (EES administrator):
- Clarify and publish the administrative role and interfaces with local agencies and prosecutors, including minimum process requirements the DOJ expects before accepting a placement request.
- Implement a notice system that confirms when an officer has received pre-placement notice and been given a chance to respond.
For defense counsel/criminal practitioners:
- Expect more robust, documented EES processes and potentially refined EES contents as Activity Logs is implemented statewide.
- When litigating disclosure issues, Activity Logs supplies the merits standard; the presence or absence of due process in the EES process may bear on the weight or admissibility of related materials in some contexts.

Unresolved Questions and What to Watch

What specific procedural steps will superior courts require on remand to satisfy pre-placement due process in different factual settings?
How will Activity Logs’ new standard affect the scope of “potentially exculpatory” conduct—will it narrow or broaden EES entries relative to prior practice?
Who is the legally authorized decision-maker for EES placement in various jurisdictions (chief, internal affairs, police commission, county attorney), and how must that authority be documented?
What remedy, if any, applies for past EES placements made without EES-specific notice and opportunity to be heard—removal, rehearing, or other relief?

Conclusion

John Doe v. Town of Lisbon & a. clarifies two critical points in New Hampshire EES practice. First, a disciplinary investigation or hearing does not, by itself, satisfy procedural due process for EES placement when the officer received no pre-placement notice that EES inclusion was being considered and no opportunity to be heard on that discrete determination. The Court’s distinction of Gantert underscores that EES-specific notice and an opportunity to respond are the features that render the process constitutionally sufficient.

Second, the merits of EES placement must now be evaluated under the “new standard” announced in Doe v. N.H. Attorney General (Activity Logs), which the trial court must apply on remand. Together, these rulings require agencies and prosecutors to separate EES determinations from routine discipline, to build EES-specific procedures into their practices, and to analyze the “potentially exculpatory” status of officer conduct under Activity Logs. The decision will likely prompt statewide process reforms, greater clarity in responsibility for EES decisions, and more consistent application of the governing substantive standard.