Hon. David King - Sworn Deposition (August 26, 2022)

Please read pages 24 through 29 of the sworn deposition of Administrative Judge David King, taken by his former law partner Philip Waystack, who presently serves as counsel for the New Hampshire Judicial Conduct Committee.

The text from the original PDF states:

Over 20 pages redacted - unredacted text begins on page 24.

Attorney Waystack:How about this: When you are deciding what to do vis-à-vis Bruce DalPra and sending this email, did you have in your mind, guiding your actions in this specific case, Rule 2.15?
Judge David King:Yes, I did.
Attorney Waystack:Okay. And did you have in mind the difference between 2.15(A) and 2.15(C)?
Judge David King:Yes.
Attorney Waystack:Okay. And at the time that you sent this email, in your mind, did you believe that it rose to the level of a 2.15(A) mandatory report?
Judge David King:I would say at the time I made the call, I hadn't decided that. I mean, I needed to gather some more information. I needed to talk to Master DalPra, find out what happened. I was going on pretty limited information at that point. So I would - You're asking me at a specific point in time. I would say at that time, I didn't know if I had a 2.15(A) or (C), or none of the above.
Attorney Waystack:Okay. And at some point, you did talk to Master DalPra, correct?
Judge David King:I did.
Attorney Waystack:And did that conversation clarify what obligations you had in this specific case vis-à-vis Rule 2.15?
Judge David King:Yes.
Attorney Waystack:Okay. And so, in this case, this leads me to my next set of questions - did you believe that 2.15(A) or 2.15(C) required you to provide this information to the Judicial Conduct Committee?
Judge David King:So, after speaking to Master DalPra and reviewing the rule, I concluded that “A” was not the applicable section. I did not have a belief, and don't have a belief, as I sit here today, that the rule had been violated raises a substantial question regarding his honesty. He was pretty forthright with me about what had occurred. His trustworthiness, I had no reason not to trust him at that point. And when I think of fitness as a judge, I think that's a pretty high bar to meet. And I didn't, at that time, have a concern about his fitness to serve as a judge. I had already decided under “C,” however, that this something that, even though it was a set of facts that I had never seen before in my 30+ years as a judge, I felt there was an obligation to let the Judicial Conduct Committee know about it.
Attorney Waystack:Did you tell the Judicial Conduct Committee?
Judge David King:Did I tell the Judicial Conduct Committee what?
Attorney Waystack:About what you had found regarding the transcript in the Albrecht case?
Judge David King:Yes.
Attorney Waystack:Okay. Did you provide this email to the Judicial Conduct Committee?
Judge David King:No.
Attorney Waystack:Okay.
Judge David King:And let me just be clear. When I say “Judicial Conduct Committee,” I had a conversation with Robert Mittelholzer after I spoke with Master DalPra about this incident. So I didn't have any communication with the committee itself. I didn't send them anything. I had a phone conversation with Robert Mittelholzer.
Attorney Waystack:Did you - STRIKE THAT. Were you aware of the fact that Master DalPra had decided to self-report?
Judge David King:I was aware that Master DalPra was going to self-report. I had a conversation with him on Wednesday, November 18th. I had sent him the email on Friday. I think he was either - he either had a writing day that day or he was on vacation. I had tried to call him on his extension, which is typically how I try to reach a judge. I don't like to call the clerk's office and, you know, “The administrative judge is calling. What's going on?” So I'm usually pretty low key about these things. I was not able to get him. I tried a couple of times during the day on Friday. So I sent the email that's been marked as Exhibit 1. Didn't hear back from him, I think until Tuesday, the 17th. He said he had left his laptop at work and he'd been working from home - circumstances that he didn't see my email. So I think we spoke on Tuesday, or we exchanged emails on Tuesday, and we agreed to speak on Wednesday, the 18th at 12:30 during a break in his cases.
Attorney Waystack:Okay. Two questions about what you just said. For people who are unaware, what is a writing day for a judge?
Judge David King:Rare. But it's a day when the judge is scheduled to not have any scheduled cases so that they can catch up on writing orders for cases that they've already heard.
Attorney Waystack:And then second, is it uncommon for judges to work outside the courtroom on a writing day?
Judge David King:Not during COVID-19, it wasn't.
Attorney Waystack:And for the record, this took place in November of 2020, which was during the pandemic?
Judge David King:Correct.
Attorney Waystack:Okay. Did anything about the delay between when you sent the email and when Master DalPra got back to you indicate that he was trying to be deceptive or concealing? Did you have any reason to believe that?
Judge David King:No.
Attorney Waystack:Okay. To this day, do you know whether or not the committee has seen this email?
Judge David King:I have no idea.
Attorney Waystack:Okay. To this day, are you aware of whether or not the committee has accessed and listened to either of the two audio files contained in this email?
Judge David King:I don't. I do know that in December of 2020, I provided those to Robert Mittelholzer. It took me a couple of tries because I sent them the first time in a - probably use the wrong word here - but format that he couldn't open. And so Kathy Yee was kind enough to help me re-send them in a different format so that he was able to open them.
Attorney Waystack:Okay. And the same goes for the - the same question for the two snippets. To your knowledge, do you know if they've seen these snippets as like set apart from the rest of the transcript in the way that you did in this email?
Judge David King:I do not.
Attorney Waystack:Okay.

Page 30 redacted.

A PDF copy of the 11 page redacted excerpt is available for download at:

If you would like a copy of Judge David King’s complete 33 page sworn deposition, without redactions, please call 1-855-212-1234, or contact:

Robert T. Mittelholzer, Esquire, Executive Secretary
Committee on Judicial Conduct
132 Chapel Street
Portsmouth, NH 03801
Phone: (603) 427-9295
Email: rmittelholzer@nhjcc.com
Dianne Martin, Director
Administrative Office of the Courts
1 Granite Place, Suite N400
Concord, NH 03301
Phone: (603) 271-2521
Email: DMartin@courts.state.nh.us
New Hampshire Supreme Court
1 Charles Doe Drive
Concord, NH 03301
Phone: (603) 271-2646
Email: TGudas@courts.state.nh.us
James F. Scully, Legal Counsel
Office of Governor Christopher T. Sununu
107 North Main Street
Concord, NH 03301
Phone: (603) 271-2121
Cell: (978) 807-1990
Email: James.F.Scully@nh.gov

Article 8 of the New Hampshire State Constitution requires that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.

[Art.] 8. [Accountability of Magistrates and Officers; Public’s Right to Know.] All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted. The public also has a right to an orderly, lawful, and accountable government. Therefore, any individual taxpayer eligible to vote in the State, shall have standing to petition the Superior Court to declare whether the State or political subdivision in which the taxpayer resides has spent, or has approved spending, public funds in violation of a law, ordinance, or constitutional provision. In such a case, the taxpayer shall not have to demonstrate that his or her personal rights were impaired or prejudiced beyond his or her status as a taxpayer. However, this right shall not apply when the challenged governmental action is the subject of a judicial or administrative decision from which there is a right of appeal by statute or otherwise by the parties to that proceeding.
June 2, 1784
Amended 1976 by providing right of access to governmental proceedings and records.
Amended 2018 by providing that taxpayers have standing to bring actions against the government

Source: https://www.nh.gov/glance/bill-of-rights.htm

See also: Petition of Union Leader Corp., 147 N.H. 603 (2002), and PDF of Oral Argument.

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