United States Court of Appeals
For the First Circuit
No. 16-1486
MARK S. REENSTIERNA; T.H. REENSTIERNA, LLC,
Plaintiffs, Appellants,v.
KENNETH D. CURRIER,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW HAMPSHIRE[Hon. Joseph N. Laplante, U.S. District Judge]

BeforeLynch, Lipez, and Barron,
Circuit Judges.

Richard B. Reiling, with whom Bottone Reiling was on brief,
for appellant.
Russell F. Hilliard, with whom Upton & Hatfield, LLP was on
brief, for appellee.

October 13, 2017

LIPEZ,

CircuitJudge.

Reenstierna,

a

real

estatedisciplinary

hearing

beforeAppraisal

Board

("the

Plaintiff-appellant

appraiser,
the

Board").

New
In

was

the

subjectofReal

EstateHampshire
that

Mark

hearing,

the

a

Board

considered as evidence a report on Reenstierna's work written at
the Board's request by defendant-appellee Kenneth Currier.

Afterconvincing the Board to reconsider an earlier unfavorable decisionanddismissthegrievance

charges,

Reenstierna

accusing him of defamation and other torts.

sued

Currier,

The district court

granted summary judgment in favor of Currier, concluding that New
Hampshire's
testimony

absolute
provided

witnessatanimmunityruleadministrativeextends

hearingtobeyondincludestatements in the report that Currier prepared for the Board.

Weaffirm.
I.
Reenstierna, the president of Reenstierna LLC, works asa real estate appraiser and consultant in New York and New England,
specializing in the appraisal of gas stations and convenience
stores.
gas

Currier, also a real estate appraiser with expertise instations

andconvenience

stores,is

Massachusetts, New Hampshire, and New York.
top"go-to"peopleintheregionappraisals.

- 2 -

for

licensedin

Maine,The two men are thepartiesseekingsuchCumberland Farms, a gas station and convenience store
chain, hired Reenstierna in early 2010 to appraise one of its
properties in the city of Rochester that was the subject of ataking

by

the

New

Hampshire

DepartmentofTransportation.

Reenstierna provided his appraisal to Cumberland Farms in March.
On the signature line of the appraisal next to his then-expired
New Hampshire Certified General Real Estate Appraiser licensing
number, Reenstierna included a parenthetical notation that said,"Renewing."1
SpecificallycitingReenstierna's

appraisaloftheCumberland Farms site, an employee of the New Hampshire Departmentof Transportation filed an anonymous grievance against Reenstierna
with the Board in September 2011, complaining that he was working
as a real estate appraiser without the necessary licensure.

The

Board

and

subsequently

voted

to

investigate

thecomplaint

appointed a complaint officer, Mark Correnti, who asked Currier toprovide a report on Reenstierna's Cumberland Farms appraisal.
At the time Correnti hired him, Currier was a competitor
ofReenstierna's

Hampshire.

throughout

New

England,includingin

New

Currier had previously performed approximately twenty

1

Although Reenstierna may have been indicating to Cumberland
Farms that he had personally begun the process of renewing his
then-expired license, there is no formal designation of "Renewing"in New Hampshire. An appraiser either possesses a valid licenseor does not.

- 3 -appraisals for Cumberland Farms over the preceding decade andremained on Cumberland Farms' list of approved appraisers fromwhom the company would accept bids.2
In addition to faulting Reenstierna for performing theappraisal

withoutalicense,Currier'sreportcriticized

thequality of the appraisal itself, citing six flaws. After receiving
Currier's report, Correnti attempted to resolve the grievanceagainst Reenstierna informally in accordance with Board rules.
When Reenstierna rejected Correnti's proposal that he surrender
his license, Correnti recommended to the Board that it proceedwithadisciplinary

hearing.

The

Board

acceptedtherecommendation, and a hearing was held in July of 2012.
Initially, the Board ruled that Reenstierna had violated
the Uniform Standards of Professional Appraisal Practice's "Ethics
Rule," which bars an individual from indicating that he is alicensed

appraiser

when

he

is

not.3

The

Board

officially"reprimanded" Reenstierna in a "Final Decision and Order."Itfurther ordered him to (1) pay an "administrative fine in the2

Since preparing the report on Reenstierna's work for the
Board, Currier has appraised at least one property for Cumberland
Farms, in 2015.
3

The Board also determined that the qualitative flaws that
Currier flagged in Reenstierna's appraisal were "minor" and thatthe complaint officer charged with "prosecut[ing]" the grievanceagainst Reenstierna "failed to meet [his] burden of proof on theseissues beyond a reasonable doubt."- 4 -amount of $1,000"; (2) "complete a 15-hour [industry standards]
course"; (3) "furnish a copy of the Final Decision and Order toany current employer for whom [he was] perform[ing] services"within ten days; and (4) "furnish [for the following year] a copyof [the] Final Decision and Order to any employer to which [he]may apply for work as an appraiser or for work in any capacity
which requires appraisal knowledge."

The Board also "ordered that[the] Final Decision and Order shall become a permanent part of. . . Reenstierna's file, which is maintained by the Board as apublic document."
The disciplinary sanctions were stayed in December 2012,
however, after Reenstierna filed a motion asking the Board toreconsider its findings.

In April 2013, the Board notified

Reenstierna that it was dismissing the original complaint against
him, stating that the evidence and testimony presented were notsufficient to establish the presence of professional misconduct.
In February 2014, Reenstierna filed a diversity suitagainst Currier in the United States District Court for theDistrict of New Hampshire, alleging that Currier had (1) violated
New Hampshire's Consumer Protection Act, N.H. Rev. Stat. Ann.
§ 358-A; (2) defamed Reenstierna; and (3) tortiously interferedwith Reenstierna's advantageous business relations.

Specifically,

he alleged that Currier knowingly and purposely submitted a false
report to the Board and that each of the purported deficiencies- 5 -cited against Reenstierna in Currier's report constituted material
misrepresentations of fact.

He further contended that Currier

falsely certified in his report to the Board that he had "nopersonal interest with respect to the parties involved" or any
"bias

with

respect

.

.

.

to

the

parties

involved

with

the

assignment."
The district court granted Currier's motion for summary
judgment,
immunity

concluding
doctrine

that

New

Hampshire's

precluded

the

use

of

Currier's

establish liability on Reenstierna's claims.4
appealed.

absolute

witness

reporttoReenstierna timely

We review a district court's grant of summary judgment

de novo, construing the evidence and all reasonable inferences in
the

light

most

Reenstierna.

favorable

tothenon-moving

party

--

here,

Audette v. Town of Plymouth, 858 F.3d 13, 20 (1stCir. 2017). "Summary judgment is appropriate where 'the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine

4

The district court actually expressed its ruling somewhat
differently, stating that "the court finds that Currier isabsolutely immune from a suit based on his acceptance of theassignment to review Reenstierna's appraisal and his analysis ofthat appraisal." In reality, however, New Hampshire's absolute
witness immunity doctrine does not provide blanket immunity fromsuit. Instead, the New Hampshire Supreme Court has held that thedoctrine precludes the use of certain statements in support of atheory of liability.
See, e.g., Provencher v. Buzzell-Plourde
Assocs., 711 A.2d 251, 256 (N.H. 1998); Pickering v. Frink, 461
A.2d 117, 119 (N.H. 1983); McGranahan v. Dahar, 408 A.2d 121, 124(N.H. 1979).

- 6 -issue as to any material fact and that the moving party is entitledto judgment as a matter of law.'"

Id. at 19 (quoting Mulloy v.

Acushnet Co., 460 F.3d 141, 145 (1st Cir. 2006)).
II.
To resolve this case, we must decide if the district
court correctly applied New Hampshire's absolute witness immunity
doctrine.

If it applies to the statements in Currier's report, wemust affirm.

If it does not apply, we must vacate the judgment sothat Reenstierna can use the statements in the report in a trialof his claims against Currier.
A. New Hampshire's Law of Absolute Witness Immunity"Theabilityofcourts,under

carefully

developed

procedures, to separate truth from falsity, and the importance of
accurately resolving factual disputes in criminal (and civil)
cases are such that those involved in judicial proceedings should
be 'given every encouragement to make a full disclosure of all
pertinent information within their knowledge.'. . . For awitness, this means he must be permitted to testify without fear
of

being

sued

if

his

testimonyisdisbelieved."

Imblerv.

Pachtman, 424 U.S. 409, 439 (1976) (White, J., concurring) (quoting
1 F. Harper & F. James, The Law of Torts § 5.22, p. 424 (1956)).
In order to effectuate such full disclosure, the common law has
traditionally acknowledged the importance of "provid[ing] absolute
immunity from subsequent damages liability for all persons --- 7 -governmental or otherwise -- who were integral parts of the
judicial process."

Briscoe v. LaHue, 460 U.S. 325, 335 (1983).

Consistent with these concerns, New Hampshire has longrecognizedthat"statements

made

in

the

courseofjudicial

proceedings are absolutely privileged from liability in civil
actions."

Pickering v. Frink, 461 A.2d 117, 119 (N.H. 1983)(citing McGranahan v. Dahar, 408 A.2d 121, 124 (N.H. 1979)).
absolute privilege "is tantamount to an immunity.
conditioned on the actor's good faith."This

It is notMcGranahan, 408 A.2d at

124.
Invoking Briscoe, the New Hampshire Supreme Court mostrecently addressed the extent of witness immunity, and whether itshould reach beyond the walls of a courtroom, in Provencher v.
Buzzell-Plourde Assocs., 711 A.2d 251, 255 (N.H. 1998).

Plaintiff

Arthur Provencher had initially agreed to sell his property to thestate for a highway project.

Id. at 253.

If the parties could

not negotiate a satisfactory price, however, the state was entitled
to

take

Provencher's

propertybyeminent

domain.

Id.

New

Hampshire thus hired two real estate appraisal firms, both of which
valued Provencher's land at $1 million.

Provencher claimed that

his land was in fact worth $7 million and refused to sell his
property.

Id.

The state's appraisers testified at a subsequentcondemnation hearing, where a jury ultimately valued Provencher's
property at $4 million.

- 8 -Provencher sued the government's appraisers, alleging
that they had breached various duties owed to him as an intended
third-party beneficiary of their contract with the state.

Id.

The defendants argued that their appraisal, any statements made inpreparation for the hearing, and their testimony at the hearing
were protected by absolute witness immunity.
contended

that

even

if

the

appraisers'

Id.

Provencher

testimonyatthedisciplinary hearing was protected by witness immunity, their prehearing statements and reports were beyond the doctrine's safe
harbor.

Id.
In deciding to extend witness immunity beyond testimony

at the judicial proceeding, the New Hampshire Supreme Court heeded
the counsel of the Supreme Court of Washington, "recogniz[ing]that 'an expert's courtroom testimony is the last act in a long,complexprocess

litigant.'"

ofevaluation

andconsultation

with

the

Id. at 255 (quoting Bruce v. Byrne-Stevens & Assocs.

Eng'rs, 776 P.2d 666, 672 (Wash. 1989)).

Noting that "it isdifficult to distinguish an expert witness's testimony from theacts and communications upon which it is based," id., the court
again quoted Bruce:
The privilege or immunity is not limited towhat a person may say under oath while on thewitness stand. It extends to statements orcommunications in connection with a judicial
proceeding. . . . If this were not so, every
expert who acts as a consultant for a clientwithreferenceto
proposedor
actual- 9 -litigation, and thereafter appears as anexpert witness, would be liable to suit at thehands of his client's adversary on the theory
that
while
the
expert's
testimonywasprivileged, his preliminary conferences withand reports to his client were not, and could
form the basis of a suit for tortious
interference.
Id. (quoting Bruce, 776 P.2d at 672-73).
The court next looked to the Restatement, which provides
that "[a] witness is absolutely privileged to publish defamatory
matterconcerning

another

incommunications

preliminary

toaproposed judicial proceeding or as part of a judicial proceeding
in

which

he

is

testifying,

if

it

has

some

relationtotheproceeding." Id. at 255-56 (quoting Restatement (Second) of Torts,§ 588 (1977)).

Importantly, the court cited comment e of section

588, which cabins the extent of the privilege by cautioning thata witness's pre-hearing statement should only be afforded immunity
if the statement "has some relation to a proceeding that is
actually

contemplated
the

in

good

witness

or

faith
a

and

under

seriouspossible

party

to

consideration

byproceeding."

Id. at 256 (quoting Restatement (Second) of Torts§ 588 cmt. e (1977)) (emphasis added in Provencher).

theComment efurther cautions that "[t]he bare possibility that the proceedingmight be instituted is not to be used as a cloak to provide immunity
for defamation when the possibility is not seriously considered."Id. (quoting Restatement (Second) of Torts § 588 cmt. e).

- 10 -

Guidedby these authorities, the New Hampshire Supreme Court held that it
wouldjoin those courts which have concluded that
pertinent
pre-litigation
communications
between a witness and a litigant or attorney
are absolutely privileged from civil liability
if litigation was contemplated in good faithand under serious consideration by thewitness, counsel, or possible party to theproceeding at the time of the communication.
Id.

at 256.

B. Application
The parties do not dispute that the disciplinary hearing at
issue in this case constitutes a "judicial proceeding" for the
purpose of witness immunity analysis.5

Currier argues that he isentitled to claim witness immunity because the role he played in
the Board's disciplinary process is comparable to the role playedby the appraisers hired by the state in Provencher.

On its face,

there is considerable force to Currier's argument. The appraisers
in both cases participated in an administrative process provided
bystatute.

In

Provencher,theappraisers

were

asked

to

investigate the value of property designated for taking by thestate in eminent domain proceedings.

Id. at 253.

Ideally, theappraisals commissioned by the state would provide a basis for an

5

Although the hearing was technically an administrative
adjudication, we use the phrase "judicial proceeding" inaccordance with the New Hampshire Supreme Court's language fromits case law and the Restatement (Second) of Torts.

- 11 -

agreement between the landowner and the state on the property's
value.

Id.

If that did not happen, however, the value would haveto be determined in an administrative proceeding, informed, inpart, by the appraisals commissioned by the state.

Id.

In thiscase, as part of a disciplinary process initiated by the Board,
Currier was commissioned to investigate and prepare a report on
Reenstierna's possible violations of Board rules and industry
standards in his Cumberland Farms appraisal.

Ideally, that report

would provide a basis for a resolution of the disciplinary process
through an agreement.
would

conducta

If that effort failed, however, the Board

disciplinary

hearing,

informed,

in

part,

by

Currier's report.
Reenstierna rejects this comparison on two grounds.
First, he asserts that the district court erred by considering
Provencher at all. Instead, he insists that the relevant precedentis the New Hampshire Supreme Court's more recent decision in Frostv. Delaney, 128 A.3d 663 (N.H. 2015), which he says supports the
proposition that the appropriate immunity analysis for Currier's
statements is official immunity, rather than absolute witness
immunity.

"Official immunity" under New Hampshire law is anarrower form of immunity that protects the acts and omissions ofgovernment officials.

See id. at 672 ("Under official immunity,

government officials are protected from personal liability for
those decisions, acts or omissions that are: (1) made within the- 12 -

scope of their official duties while in the course of theiremployment; (2) discretionary rather than ministerial; and (3) notmade in a wanton or reckless manner.").

New Hampshire's official

immunity standard is sometimes compared to the qualified immunity
standard applied to federal civil rights cases filed pursuant to42 U.S.C. § 1983.
Second,Id.
Reenstierna

arguesthatthestatements

inCurrier's report are not protected by witness immunity because
litigation was not contemplated at the time he performed theinvestigation and prepared his report for the Board.
1. Official Immunity
In

Frost

v.

Delaney,

Frost

was

charged

with

four

violations of New Hampshire's mortgage licensing laws on the basisofaninvestigation

carried

out

by

a

New

Hampshire

Banking

Department investigator. Id. at 666-67. After the court dismissed
both criminal and administrative charges against Frost, he sued
the investigator under § 1983, the New Hampshire Constitution, andNew Hampshire tort law.

Id. at 667.

The trial court dismissed

the federal claims on the basis of qualified immunity, and thestateconstitutional

and

tort

claimsHampshire's official immunity doctrine.6

6

on

the

basis

Id. at 668.

of

New

Frost thenThe defendants in the trial court also raised absolute
witness immunity as a defense, but the trial court did not address
this defense in its decision, disposing all of the state law claims
under New Hampshire's official immunity doctrine. See Frost v.
- 13 -

appealed the dismissal of the § 1983 claims, but not the state law
claims.

Id.

The New Hampshire Supreme Court affirmed the trial

court's qualified immunity determination.
This

description

of

the

Id. at 668-73.

Frost

Reenstierna's reliance on it is misplaced.

case

indicates

why

Reenstierna filed New

Hampshire common law tort claims against Currier.

Frost filed afederal civil rights claim under § 1983, alleging that a government
investigator violated his Fourth and Fourteenth Amendment rights
under the U.S. Constitution when she misrepresented material facts
on an application for a search warrant of his residence.
667-68.

Id. atOn appeal, the New Hampshire Supreme Court analyzed only

the federal law doctrine of qualified immunity under § 1983.

Id.

at

New

668-72.

It

saidnothing

about

the

applicationofHampshire's doctrine of official immunity to the out-of-court
statements of a government investigator.

Nor did it say anything

about New Hampshire's absolute witness immunity doctrine.
Ignoring critical differences between the Provencher andFrost cases, Reenstierna asks us to conclude that the New Hampshire
Supreme Court used Frost, a case applying qualified immunity tothe pre-hearing statements of an investigator facing federal civilrightsclaims,tocircumscribebyimplication

its

carefully

reasoned decision in Provencher that absolute witness immunity

Sheehan, No. 216-2012-CV-00603, 2014 WL 10122655 (N.H. Super. June
9, 2014).

- 14 -

applies to the pre-hearing statements of an investigator facing
state tort claims. Putting aside this implausible view of judicial
decisionmaking, a federal court sitting in diversity has no license
to reformulate state law in the manner requested by Reenstierna.7
To be sure, Reenstierna's allegation -- that Currier
unethically

acceptedtheBoard's

invitation

to

act

as

an

investigator with the intent of defaming and administratively
prosecuting his prime competitor -- is a serious charge.

It isperhaps understandable that Reenstierna believes that his caseagainst Currier is more akin to the alleged civil rights violationscommitted by the Banking Department investigator in Frost, whose
false statements led to both criminal and civil administrative
charges against Frost, than it is to the negligence and fraudclaims in Provencher, where the statements at issue were about thevalue of a parcel of land.
this

case

could

The allegedly defamatory statements inarguably

inflict

irreparable

damagetoReenstierna's professional reputation, an injury much more severe
than the mere disagreement over property value in Provencher.

7

Beyond Frost, Reenstierna asks us to apply the holding of
Stinson v. Gauger, 799 F.3d 833 (7th Cir. 2015), another § 1983
case, where the Seventh Circuit held that a pair of defendantodontologists accused of falsifying their expert reports leading
up to a murder prosecution could not assert absolute witness
immunity. Id. at 840-41. That holding was recently reaffirmed by
the court sitting en banc. See 868 F.3d 516, 528-29 (7th Cir.
2017). Reenstierna's reliance on this case, however, is similarly
misguided.
Stinson, like Frost, applies federal qualified
immunity doctrine to a federal cause of action. Id. at 833.

- 15 -

Nevertheless, Provencher's explicit adoption of the Restatement,
which provides that "[a] witness is absolutely privileged to
publish defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding," clearly indicatesthat the New Hampshire Supreme Court, mindful of the importance ofabsolute witness immunity to accurate fact-finding in civil andcriminal cases, contemplated the application of that immunity to
a common law tort action such as Reenstierna's.

711 A.2d at 255-

56 (quoting Restatement (Second) of Torts, § 588 (1977)) (emphasis
added).
Still,

with

Frost,

Reenstierna

does

highlightthedifferent treatment under New Hampshire law of the pre-hearing
statements of government investigators.

Investigators facing

state tort claims enjoy absolute witness immunity for their prehearing statements.

As interpreted by the Supreme Court of New

Hampshire, investigators facing federal civil rights claims fortheir pre-hearing statements have the benefit of only qualified
immunity.

In the judgment of the New Hampshire Supreme Court,

there may be good reasons for this distinction, or it may beproblematic.

Either way, this is an issue for the New Hampshire

Supreme Court to address in a future case, not us.
Our

dissenting

colleague

arguesthat,

ratherthan

applying the law as set out in Provencher, we should give the New
Hampshire Supreme Court the opportunity to reach a different result- 16 -

bycertifying

to

that

court

the

questionofapplicability to the circumstances of this case.

Provencher'sCertification to

the New Hampshire Supreme Court is appropriate when a question of
state

law

is

"determinative

of

the

controlling precedent" from that court.

case"

and

"thereisno

Old Republic Ins. Co. v.

Stratford Ins. Co., 777 F.3d 74, 86 (1st Cir. 2015) (citing N.H.
Sup. Ct. R. 34); see also, e.g., Trull v. Volkswagen of Am., Inc.,187 F.3d 88, 100 (1st Cir. 1999) (explaining decision to certify
where "[t]he New Hampshire Supreme Court has not yet faced theissue"). On the question now before us, however, the New Hampshire
Supreme Court has spoken.
The Provencher court expressly recognized the divergent
views on whether absolute immunity "extends to communications that
occur prior to the initiation of judicial proceedings," and thenchose to "join those courts which have concluded that pertinent
pre-litigation communications between a witness and a litigant or
attorneyarelitigationwas

absolutely

privileged

contemplated

in

good

from

civil

faith

and

liability
under

if

seriousconsideration . . . at the time of the communication." Provencher,
711 A.2d at 255, 256.

Assuming the good faith and "under serious

consideration" prerequisites are met -- which we discuss below -the holding of Provencher squarely applies to the statements at
issue here.

Of course, the New Hampshire Supreme Court is free toreverse itself or distinguish Provencher away.

- 17 -

However, it is notour prerogative, through the process of certification, to suggestthat the New Hampshire court do so.

Having chosen the federal

forum for his state-law claims, the plaintiff must live with ourobligation to apply New Hampshire law as it currently stands.8
2. Litigation under Serious Consideration9
Reenstierna argues that even if the Provencher framework
applies to pre-hearing statements at issue in common law tort
actions filed against state investigators such as Currier, its
holding is inapplicable to this particular case because litigation
was not "under serious consideration" at the time Currier conducted
his investigation and wrote his report.

Provencher, 711 A.2d at

256.
Reenstierna directs us to the timeline of Currier's
investigation and the Board's decisionmaking process, noting that
Correnti hired Currier, and Currier completed his report, before

8

Because our decision to certify, or not, must turn on thecurrent state of New Hampshire law, our colleague's lengthy
discussion of Massachusetts law is not directly pertinent. As tothe dangers that might be thought to attend absolute immunity, theProvencher court recognized that the protection applies "withoutinquiry into a defendant's motives," 711 A.2d at 255 (quoting
McGranahan v. Dahar, 408 A.2d 121, 124 (N.H. 1979)), butnonetheless chose to extend full immunity to certain prelitigation communications to "further the goals of encouraging
free and unfettered testimony during judicial proceedings," id. at
256-57 (internal quotation marks omitted).
9

That the pertinent proceeding was "contemplated in goodfaith" is conceded in this case, and the good-faith requirement
apparently was also undisputed in Provencher, as it was notdiscussed.

- 18 -

the Board decided to initiate Reenstierna's disciplinary hearing.
He also cites testimony from the Board President that the Board
actually decided to commence the administrative hearing based
primarily upon Currier's report.

Because Currier's report induced

the Board to take action, Reenstierna contends, litigation could
not have been "under serious consideration" at the time it was
prepared,and,hence,

thereportisbeyond

the

scope

of

Provencher's immunity doctrine.
Reenstierna reads Provencher too narrowly.
statutethatproceedings

framedintheprogression

Provencher,

the

of

EminenttheThe stateeminent

DomaindomainProcedure

Act("EDPA"), N.H. Rev. Stat. Ann. § 498-A, is analogous to the New
Hampshire regulations that structured the Board's disciplinary
process involving Reenstierna.

In Provencher, the New Hampshire

Supreme Court noted that EDPA requires the state to hire an
appraiser before it makes an offer to purchase property, and thatthe appraisal "often serves as the basis" of the state's initialoffer.

711

A.2d

at

256.

The

government

may

initiateacondemnation proceeding only after a property owner rejects thestate's purchase offer.
When

an

Id.

individual

files

a

grievance

againstan

appraiser such as Reenstierna, state regulations require the Board
to appoint a complaint officer (here, Correnti) if the allegationin the grievance constitutes a violation of state law or the- 19 -

Uniform Standards of Professional Appraisal Practice.
Admin. R. Ann. Rab 203.02(b)(2) (2017).10

N.H. Code

When an appraisal isincluded as part of the complaint, as it was here, the regulations
furtherrequirethecomplaint

officeroraninvestigatortoevaluate the appraisal for conformity with professional standards.
Id. at 203.02(b)(4).

Because he was not an expert in convenience

store appraisals, Correnti hired Currier to perform this task.
The regulations instruct the complaint officer to issue a final
report, including any investigatory reports, and require the Board
to either (1) dismiss the complaint; (2) accept an informal
resolution if the complaint officer was able to negotiate such aresolution

with

the

accusedappraiser;(3)

commenceanadjudicative hearing if the evidence suggests misconduct and an
informal resolution was not established; or (4) investigate thematter further.

Id. at 203.02(b)(7).

When Correnti hired Currier

to review Reenstierna's appraisal, a judicial proceeding "wascontemplated in good faith and under serious consideration" by the
Board within the meaning of Provencher.

711 A.2d at 256.

Provencher

a

Court

said,

"[s]ubjecting

party's

As thewitnesses

toliability for their pre-litigation statements in cases of this10

Currier wrote his report prior to New Hampshire amending
the relevant section of its Code of Administrative Regulations.
Because the relevant amendments only altered the section numberingand not the substance, we cite the relevant regulations in theircurrent form.

- 20 -

nature would undoubtedly have a perverse effect on the initiationand presentation of cases."

Id. at 257 (emphasis added).

Our dissenting colleague suggests that the facts here
are distinguishable from Provencher with respect to the "underserious consideration" criterion because the State and property
owner there had signed a pre-appraisal agreement acknowledging
that eminent domain proceedings would occur if the parties could
not agree on a purchase price. That agreement, however, was merelyaparticularizedversionofthegoverning

statutory

schemerequiring appraisals and negotiation before the state may begin
the condemnation process.

See N.H. Rev. Stat. § 498-A:4.

As described above, here, too, the governing framework
explicitly includes a proceeding as one possible outcome after aninvestigatory review of a complaint involving an appraisal.

Theabsence of an agreement between the parties incorporating theregulatory scheme does not make a judicial proceeding merely a"bare possibility" -- the status the Restatement contrasts with
"under serious consideration" -- even if such an agreement could
have added to the parties' awareness that a proceeding might occur.
Provencher, 711 A.2d at 256 (quoting Restatement (Second) of Torts§ 588 cmt. e).

To the contrary, once an appraisal review istriggered by a complaint, the prospect of a proceeding inevitablylooms large for the parties.

Hence, on the spectrum between- 21 -

seriously considered and a mere possibility, the likelihood of
litigation in this case is well within Provencher's scope.
III.
After
arguments,

we

carefully
agree

considering

with

the

district

Reenstierna's
court

that

contrary
Currier's

statements in his report are shielded in this action by New
Hampshire's absolute witness immunity doctrine as set forth inProvencher.

When it decided Provencher, the New Hampshire Supreme

Court explicitly noted that it was adopting an absolute witness
immunity rule that applied to allegedly defamatory pre-hearing
statements.

Id. at 256.

In this diversity action, we are boundto implement that choice.
Affirmed.

--Dissenting Opinion Follows--- 22 -BARRON, Circuit Judge, dissenting.

There is no questionthat New Hampshire law confers absolute immunity on those who
appear as witnesses in judicial proceedings and on those who
prepare reports in anticipation of such proceedings.

This caserequires us to decide, however, a distinct question concerning the
scope

of

that

immunity:

whetheritextends

tothepurelyinvestigative acts of those whom the State retains to help it
decide whether to initiate the kind of judicial proceedings throughwhich private parties may be sanctioned for their wrongdoing.
In my view, it is a mistake to answer this question in
the affirmative without first finding out whether the New Hampshire
Supreme Court agrees.

For, while Provencher v. Buzzell-Plourde

Associates, 711 A.2d 251 (N.H. 1998), construes the scope of theState's witness immunity broadly, that case simply did not involve
facts

that

implicatedtheState'sinterest

inpromotingaccountable government -- and guarding against investigative abuseby law enforcement officials -- in the way that the case before us
necessarily does.

Thus, I would certify the question of whether

witness

applies

immunity

on

the

facts

before

us

to

the

New

Hampshire Supreme Court.
I.
On the surface, I can see how Provencher might be thought
to require the dismissal of this suit on the basis of witness
immunity.

Provencher held, after all, that, due to the possible- 23 -

eminent

domainproceeding

in

the

offing,litigation"was

contemplated in good faith and under serious consideration" when
New Hampshire requested the appraisals from the appraisers that
the State had retained.

Id. at 256.

As a result, Provencher ruledthat witness immunity protected those appraisers, such that thesuit against them for what their appraisals said could not go
forward.

Id.
But Provencher did not conclude that witness immunity

applied to protect the appraisers in that case simply because the
State

knew

that

there

eventually

might

be

a

judicial

proceeding -- namely, the eminent domain proceeding that the Statemight choose to commence. Instead, the New Hampshire Supreme Court
provided a detailed explanation for why it concluded that, given
the particular facts of that case, litigation was "seriously
contemplated" at the time that the appraisals were prepared.
id. at 255-56.

SeeAnd, in doing so, Provencher described the case interms that suggest to me that the New Hampshire Supreme Court mightview quite differently a case like this one, involving as it doesa claim to witness immunity for a law enforcement official's
investigation
privateintowrongdoing

whethertothere

providewasthesufficient

predicateforevidenceof

initiating

judicial proceedings at which discipline might be meted out.
Specifically, in Provencher, the New Hampshire Supreme
Court found a judicial proceeding to be "seriously contemplated,"- 24 -

such that witness immunity applied, only after first pointing toa pre-appraisal agreement between the State and the owner of theproperty that was the subject of the appraisals.

Id. at 256.

Provencher explained that this agreement "specifically stated that
if the parties could not agree on a purchase price, then the State
shall initiate an eminent domain proceeding to acquire the property
and determine the purchase price in accordance with [the eminent
domain statute]."Id. (emphasis added).

In addition, the New

Hampshire Supreme Court noted that the property owner concededthat the agreement specifically provided that the State wouldcommence eminent domain proceedings if voluntary negotiations
between the parties failed.

Id.

And, finally, the New Hampshire

Supreme Court indicated that the Eminent Domain Procedure Act madeclear that the State could commence "condemnation proceedings"
only after making an offer of purchase based on an appraisal.

Id.

These particular features of Provencher showed that,
beforetheStatesoughttheappraisals

atissue,

theStateapparently had done whatever investigation it needed to do in orderto decide that it would take the property via eminent domain, if
necessary.

Otherwise, the State would not have been in a position

to represent in the agreement with the property owner that it would
take

the

propertyiftheproperty

owner

refusedtosell.

Accordingly, in Provencher, there could be no doubt that -- quite
apart

from

what

the

appraisals

might- 25 -

say

--

the

State

was

"seriously

contemplating"ajudicial

proceeding

when

the

appraisals at issue were prepared, as the State could only effectthrough a judicial proceeding the taking that it had already madeclear that it was willing to pursue.
In this way, the facts of Provencher simply did not
require the New Hampshire Supreme Court to decide whether it would
extend witness immunity to a state-retained investigator who had
been hired to investigate whether a private citizen had engaged in
the kind of misconduct that could be sanctioned only throughjudicial proceedings.

For, in such a case, involving a state

investigation into possible private misconduct, the State could
not -- apart from what the investigator actually found through his
investigation -- have a sufficient basis for knowing whether it
would have an interest in commencing a judicial proceeding at all.
Yet, in this case, we are confronted with just the kindof claim to absolute immunity for a law enforcement investigationthat was not presented in Provencher.

As the plaintiff in thiscase points out, "[the appraiser who seeks witness immunity] wasserving as an investigator for the [New Hampshire Real Estate]
Board, an administrative arm of the State, at the time of his
subject transgressions[,]" and the Board in turn "relie[d] on theinvestigation

todecidewhether- 26 -

tocommenceadisciplinaryproceeding."11

Accordingly, it is not clear to me that, justbecause Provencher ruled that the appraisals in that case werepreparedincontemplationofajudicial

proceeding,

the

New

Hampshire Supreme Court would conclude that this appraisal was,too.12

11This possible basis for distinguishing Provencher also wasraised -- but never directly addressed -- by Provencher itself.
One of the two arguments that Provencher identified as having beenpresented by the plaintiff in that case with respect to absolute
immunity was whether that immunity applies to a report that"causes" the judicial proceeding.
See 711 A.2d at 253.
Provencher, however, said nothing directly about that issue -namely, whether the appraisals at issue "caused" the proceeding - in the course of ruling as it did.
12

I do not mean to suggest that, in Provencher, the judicial
proceeding was certain to happen or that the appraisals could notplay any role in determining whether it would.
The appraisals
might have affected the property owner's willingness to accept theState's offer of purchase, and there would have been no need fora judicial proceeding if the property owner were willing to sell.
In addition, the State could have learned something from theappraisals that could have led the State to retreat from its
previously expressed commitment to acquire the land by taking it
if necessary. Nevertheless, nothing in the record suggests that
the State was looking to the appraisals in order to decide whether
to take the coercive action that could necessitate the relevant
judicial proceeding. The State instead was using the appraisals
merely to facilitate the acquisition of the property that the State
had already made clear that it was willing to pursue, through a
judicial proceeding if necessary. And that is presumably because
the State's own prior investigation into the property had led it
to see the need for initiating a taking in the absence of a sale.
For that reason, Provencher is quite unlike the present case, inwhich the State's interest in ever initiating a judicial proceeding
is seemingly entirely dependent on the outcome of the preliminary
law enforcement investigation that the appraiser who seeks witness
immunity has been retained by the State to carry out.

- 27 -

II.
Adding to my doubts on this score is the fact that theNew

Hampshire

Supreme

Court

has

elsewhere

statedthat

qualified -- and not absolute -- immunity is generally "sufficient
to protect [State] officials in the exercise of their duties."
Belcher v. Paine, 612 A.2d 1318, 1323 (N.H. 1992) (citing Burns v.
Reed, 500 U.S. 478, 486 (1991)); see also N.H. Rev. Stat. Ann.
§ 99-D:1 (legislatively adopting qualified immunity for stateagency officers, trustees, officials, and employees).

In fact,

the New Hampshire Supreme Court has even held that the one classof State law enforcement officials that it has identified as
needing absolute immunity -- namely, prosecutors -- needs only aqualified immunity to protect its members in the performance ofwhat the New Hampshire Supreme Court has described as their "purely
investigative" functions.

Id. at 1324-25.

The New Hampshire Supreme Court has explained in thisregard that a criminal case has not entered its "judicial phase"during the period in which law enforcement is merely investigating
whether a crime has been committed.

Id.

For that reason, the New

Hampshire Supreme Court has held that there is no need to provide
prosecutors with the more complete protection that flows to them-- as an offshoot of the absolute immunity that judicial officers
enjoy

in

performing

theirjudicialfunctions

--

once

an

investigation turns up sufficient evidence of criminal wrongdoing- 28 -

to provide the predicate for the criminal charges that would bringthe case into its "judicial phase."

Id.

In light of these aspects of New Hampshire law, it is
not at all clear to me that New Hampshire would wish to give its
investigating law enforcement officials an absolute rather than aqualified immunity in performing "purely investigative" duties.
These law enforcement officials may well be called as witnesses inthe event that their investigations turn up sufficient evidence ofwrongdoing to lead the State to commence an action that would
trigger what might be described as the case's "judicial phase."I

am not convinced, however, that the New Hampshire Supreme Court
would conclude that this fact alone necessarily entitles suchinvestigators to witness immunity for even "purely investigative"
actions.
claim

Otherwise, it would seem that even police officers could

absolutefunctions,immunity

notwithstanding

inperforming

the

New

their

Hampshire

investigative

SupremeCourt'sconclusion that qualified immunity is generally "sufficient toprotect[State]officials

intheexercise

of

their

duties."Belcher, 612 A.2d at 1323 (citing Burns, 500 U.S. at 486).
Moreover, I note that a relatively recent case from
Massachusetts suggests to me that it is a mistake to assume that
the New Hampshire Supreme Court would treat that state's law
enforcement officials as merely a species of prospective witnesses
for purposes of determining whether they are entitled to absolute- 29 -

(ratherthanmerelyqualified)immunity

investigations into private wrongdoing.

in

conducting

And, of course, New

Hampshire has looked to Massachusetts in determining the contoursof its own absolute immunity law.

See McGranahan v. Dahar, 408

A.2d 121, 124 (N.H. 1979) (citing Aborn v. Lipson, 256 N.E.2d 442(Mass. 1979)).
The case I have in mind is Dear v. Devaney, 983 N.E.2d
240(Mass.

App.

Massachusetts's

Ct.

2013).

absolute

allegedly

defamatory

reporting

their

It

concerned

privilegestatements

investigation

made

of

a

whether,

under

for

witness

statements,bypoliceofficersnightclub's

license violation were absolutely privileged.

inentertainment

Id. at 242-45.

In that case, police officers who had been assigned toassist a state licensing board in deciding whether to suspend anightclub's

licensepreparedaninvestigative

contained allegedly defamatory statements.

reportthat

Id. at 242-43.

After

the police officers provided their report to the licensing board,a disc jockey who the report said was operating a promotion company
that was staging events that posed a danger to public safety sued
the police officers for defamation.

Id. at 243.

The police

officers then asserted Massachusetts's state law witness privilege-- which usually is absolute -- as a defense against that suit.
Id. at 244.

- 30 -

The

Massachusetts

Court

of

Appeals

explainedthat

Massachusetts's absolute witness privilege for statements made in
the course of a judicial proceeding -- much like New Hampshire's
absolute witness immunity -- does extend "prior to the actualcommencement of the judicial part of the proceeding[]," so long as
the proceeding "is contemplated in good faith and . . . is underserious consideration".
345

N.E.2d882,

884

Id. at 246 (quoting Sriberg v. Raymond,(Mass.

1976)).

And,in

applying

that

Provencher-like standard, Dear also made clear -- quite in accord
with the way that Provencher applies that standard -- that thisprivilege has been extended to "pretrial materials prepared byprosecutors and other lawyers," as well as to "witness statements
made to the police," at least when they are made "in the context
of a proposed judicial proceeding."

Id.

But, Dear then went on to point out that "[a]n absoluteprivilege has not . . . been extended to police officers' own
investigatory reports."

Id.

And thus Dear shows that the same

standard Provencher applied is one that has been quite comfortably
understood

not

to

requireinvestigatory reports.

immunityforlaw

enforcement's

In this connection, Dear cited to cases

holding that statements made by police officers in the course ofinvestigations were only conditionally privileged.

See Seelig v.

Harvard Coop. Soc'y, 246 N.E.2d 642 (Mass. 1969). Dear also reliedon Buckley v. Fitzsimmons, 509 U.S. 259 (1993), which held -- in- 31 -

accord with the way that New Hampshire law treats prosecutorial
immunity as a matter of state law -- that, under 42 U.S.C. § 1983,
prosecutors enjoy absolute immunity only during the judicial, andnot the purely investigative, phase of a criminal case.

Dear, 983

N.E.2d at 246 (quoting Buckley, 509 U.S. at 273).
In laying out these principles, Dear did not "rulecategorically on the privileged status of police investigatory
reports in general."Id. at 246 n.7.

But, Dear did note thatcases in other jurisdictions "have mostly treated police reports
under the rubric of a qualified privilege."Id. (citing Marjorie

A. Shields, Annotation, Immunity of Police or Other Law Enforcement
Officer from Liability in Defamation Action, 100 A.L.R. 5th 341,
377-82 (2002)). Dear then ruled that the statements made by police
officers in the investigatory report at issue in that case wereentitled to only a qualified, and not an absolute, privilege under
Massachusetts
statements

law.

"were

Id.
made

at

246-47.

duringtheDearreasoned

that

the

investigation,

not

the

prosecution, of the license suspension proceedings.
made by police officers, not lawyers or prosecutors.

They were
For the mostpart, the report does not contain witness statements but theofficers' own speculation or recounting of unidentified hearsay."
Id. at 246.
The facts of Dear are by no means identical to thosepresented here.

Dear held that "an absolute privilege does not- 32 -

extend to statements made by police officers so far removed fromany quasi judicial proceedings that would test the truth or falsityof such assertions."

Id.

And, unlike in our case, the party

allegedly defamed by the investigative report in that case was not
the party against whom the license suspension proceeding wascontemplated.

See id. at 246-47.

In consequence, the subject of

the investigative report there would not have had a chance -- inthe way that the plaintiff in the present case would -- to "testthe validity" of the offending statements at the contemplated
licensingboard

proceeding.

Id.

at

247.

Moreover,theinvestigators in Dear were police officers, and thus governmental
employees.

Here,

of

course,

that

is

not

the

case.

The

investigator who seeks absolute immunity is a private citizen whom
the State has retained for this particular investigation.
But, these distinctions aside, Dear did note that, atthe time that the police officers prepared the report in that case,they were acting as investigators working for the state's licensing
board.

Id.

In fact, the police officers apparently undertook theinvestigation as agents of the state's licensing board with an eye
towards a possible suspension of the nightclub's license.
242.

Id. atAnd, Dear noted, too, that one of the police officers

testified that the information that he gathered for the reportuncovered information that could have been used to bring criminal- 33 -

charges against the disc jockey, even though the officer chose not
to do so.

Id. at 247.
Thus, in my view, Dear at least suggests this much:investigative reports prepared for the government in advance ofeither a future licensing proceeding or a future criminal case are
not necessarily entitled to an absolute privilege.

Indeed, Dear

represents that there is apparently little support for a contraryconclusion in the precedents of any state.

In consequence, I see

no reason to be certain that New Hampshire would approach thequestionwhether

absolute

witness

immunity

extends

totheinvestigative acts of those whom the state calls upon to help it
enforce the law any differently from the way that the Massachusetts
Court of Appeals did in Dear and that, apparently, most states do.
And, if that is so, then Provencher can hardly be said to becontrolling here.
III.
To be sure, the defendant in this case is not a state
employee.

He is a private citizen whom the State retained toassist in its investigation of a licensee's alleged misconduct.
And states often reach out to such private actors for similar
investigative

assistanceinpolicing

theprofessions.

Thatfeature of this case may distinguish it from others involving state
law enforcement investigators -- such as, perhaps, cases that look
more like Dear.

- 34 -

Nevertheless, I think it important to recall that theplaintiff in this case contends not only that he was defamed by
the allegations lodged against him by the investigator whom theState retained to investigate the possible wrongdoing but alsothat this state-retained investigator was a direct competitor ofhis.

He thus alleges that the investigator who seeks an absolute

immunity for his investigative acts is hardly a person well
positioned

toperform

disinterested manner.

them

on

behalf

of

the

State

in

a

Those allegations -- whether supported by

the record or not -- are a reminder of the dangers that can attend
the conferral of absolute immunity on those whom the state chooses
to arm with significant power to ferret out private wrongdoing,even when those investigators are not full-time employees of thestate.13
Thus, due to the well-known tendency of absolute power
to corrupt absolutely, I see no reason to risk being wrong by
expansively

construing

the

scope

of

New

Hampshire's

witness

immunity to extend beyond the facts of Provencher to encompass
this case, too.

Instead, I believe it appropriate for us to take

13

Further, no party makes the argument that qualified
immunity would not apply to a contractor like Currier, and thestatute codifying official immunity in New Hampshire applies not
only to employees but also to "officials" and "officers."
So,
just as the parties appear to accept that the proceeding here is"judicial," they also appear to accept that if witness immunity
does not apply, at least official immunity -- as opposed to no
immunity at all -- does.

- 35 -

the more cautious approach of certifying the question to the New
Hampshire Supreme Court so that it may weigh for itself thecompeting interests that are at stake in a case of this special
sort and then fashion a rule in response.
respectfully dissent.

- 36 -For these reasons, I