UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Arthur Ginsberg

v. Civil No. 05-cv-193-JM

Kelly A. Ayotte, in her official

capacity as Attorney General

of the State of New Hampshire

O R D E R

Plaintiff Arthur Ginsberg brought this action against

Defendant Kelly A. Ayotte, in her official capacity as the

Attorney General of the State of New Hampshire, challenging the

constitutionality of N.H. Rev. Stat. Ann. (“RSA”) 458:15-b. 

Defendant moves to dismiss for failure to state a claim upon

which relief may be granted. Plaintiff objects.

Standard of Review

 In considering a motion to dismiss for failure to state a

claim under Fed. R. Civ. P. 12(b)(6), the court accepts the facts

alleged in the complaint as true and determines whether “relief

could be granted under any set of facts that could be proved

consistent with the allegations.” Lalonde v. Textron, Inc., 369

F.3d 1, 6 (1st Cir. 2004) (quoting Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 514 (2002)). The Court draws all reasonable

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 1 of 20
2

inferences from the facts alleged in the plaintiff’s favor. 

Martin v. Applied Cellular Tech., 284 F.3d 1, 6 (1st Cir. 2002). 

Dismissal of the complaint is appropriate only if “it clearly

appears, according to the facts alleged, that the plaintiff

cannot recover on any viable theory.” Langadinos v. Am.

Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). 

A court adjudicating a motion to dismiss under Rule 12(b)(6)

must consider the notice pleading requirements of Fed. R. Civ. P.

8(a)(2). Educadores Puertorriquenos En Accion v. Hernandez, 367

F.3d 61, 66 (1st Cir. 2004). Under Rule 8(a)(2), a complaint

need only set forth “a short and plain statement of the claim

showing that the pleader is entitled to relief.” The complaint

must “give the defendant fair notice of what the plaintiff’s

claim is and the grounds upon which it rests.” Conley v. Gibson,

355 U.S. 41, 47 (1957). The court eschews “any reliance on bald

assertions, unsupportable conclusions, and opprobrious epithets.” 

Educadores, 367 F.3d at 68 (quoting Chongris v. Bd. of Appeals,

811 F.2d 36, 37 (1st Cir. 1987)). The facts pertinent to the

instant motion are discussed below.

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 2 of 20
3

Background

I. Factual Allegations Specific to the Plaintiff

Plaintiff was a party in a divorce proceeding in the

Hillsborough County Superior Court (the “Superior Court”),

located in Nashua, New Hampshire, between September 1998 and July

2004. First Am. Compl., ¶ 20. As a result, Plaintiff was

granted a divorce from Jennifer Wilson, formerly Jennifer

Ginsberg, on the grounds of adultery. Id. He was awarded

primary physical care and custody of their two daughters. Id.

During the course of the divorce proceeding, Plaintiff filed

five financial affidavits with the court; Jennifer Wilson filed

six financial affidavits. Id., ¶¶ 21-22. Immediately after the

docketing of each financial affidavit, the financial affidavit

was made available for public inspection by any person who

requests access to the public court file maintained in the case

by the Clerk of the Superior Court. Id., ¶ 23. As of the filing

of the instant complaint, those same eleven financial affidavits

were available for public inspection. Id.

Although Plaintiff and Jennifer Wilson are each required by

the terms of the final decree to contribute to their daughters’

post-secondary education, Plaintiff alleges that it has become

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 3 of 20
1Plaintiff does not identify the source of those funds in

the amended complaint.

4

clear that he must entirely shoulder that burden in addition to

all other costs associated with the upbringing of his 16-year-old

and 19-year-old daughters. Id., ¶ 28. Plaintiff alleges that

approximately $120,000.00 was provided to the children in the

form of gifts earmarked for their education.1 Id. For years,

Plaintiff believed that those funds were held in accounts opened

in the names of the two children by Jennifer Wilson. Id.

Plaintiff has been unable to trace that money, and now believes

that Jennifer Wilson misappropriated it. Id. Plaintiff plans to

initiate litigation to recover the education funds and to obtain

compensation for damages caused by Jennifer Wilson and any other

liable parties. Id., ¶ 29.

As part of his efforts to trace the misappropriated funds,

Plaintiff would like to disclose information contained in

Jennifer Wilson’s financial affidavits to a forensic accountant

and other unnamed third parties, who will assist in the search

for the funds. Id., ¶ 29. Jennifer Wilson’s financial

affidavits contain information that is available from other

sources, including the Internet, credit agencies and databanks

available to licensed investigators. Id., ¶ 31. Some of the

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 4 of 20
5

information that is included on Jennifer Wilson’s financial

affidavits Plaintiff acquired during the course of his and

Jennifer Wilson’s long marital relationship. Id., ¶ 32. Similar

information is available on Plaintiff’s and Jennifer Wilson’s

joint IRS returns, bank loan applications, credit card

applications, mortgage applications, joint bank accounts, medical

forms and insurance forms, among other things. Id.

Plaintiff desires to obtain and discuss publicly available

rulings issued under RSA Chapter 458 by the Superior Court

without fear of penal sanction for revealing truthful information

that may be included in a financial affidavit sealed pursuant to

RSA 458:15-b. Id., ¶ 34. He further wishes to exercise his

First Amendment right to publicly petition the New Hampshire

Courts to redress his grievances while he participates in a fully

open public proceeding. Id., ¶ 35.

II. The Challenged Statute

A. Financial Affidavits in Domestic Relations Cases

New Hampshire Superior Court Rule 197 requires parties in

domestic relations proceedings to file financial affidavits “[a]t

every hearing involving financial matters or property, or as may

be required by the court.” Financial affidavits filed under Rule

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 5 of 20
6

197 must contain full disclosure of a party’s assets, expenses

and income. In re Rohdenburg, 149 N.H. 276, 278, 818 A.2d 309,

311 (2003). This mandatory duty of complete disclosure may not

be waived by the parties or the court. Id., 818 A.2d at 311-312. 

A party may make a written request to the clerk requesting that

the party’s financial affidavit be placed “in a sealed envelope,

which shall not be opened except by the parties, the Office of

Child Support, or with leave of court.” N.H. Superior Court Rule

197. Plaintiff alleges, on information and belief, that “the

vast majority of financial affidavits filed in New Hampshire

Superior Court domestic relations proceedings are not sealed

under the optional procedure provided in Superior Court Rule

197.” First Am. Compl., ¶ 26. 

B. House Bill 384

During its 2004 session, the New Hampshire Legislature

amended RSA 458:15 by adding section 15-b, an act relative to

financial affidavits in domestic relations cases. 2004 N.H. Laws

202:2 (HB 384). RSA 458:15-b now provides that:

I. Except as provided in paragraph III, all financial

affidavits filed under this chapter shall be

confidential and accessible only to the parties, their

attorneys, the guardian ad litem, department of health

and human services employees responsible for child

support administration, persons specified in RSA 161-

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 6 of 20
2RSA 458:15-b(I) was amended by House Bill 510 effective

September 3, 2005 to add the phrase “persons specified in RSA

161-B:7, III.”

7

B:7, III,2 and state and federal officials for the

purpose of carrying out their official functions.

II. Any person who knowingly discloses a financial

affidavit to any person not authorized to obtain the

financial affidavit under this section shall be guilty

of a misdemeanor. This paragraph shall not apply to

documents released by a court pursuant to paragraph

III.

III. Notwithstanding paragraph I, the court may grant

access to a financial affidavit filed under this

chapter to a person upon a showing by clear and

convincing evidence that the public interest served by

release of the information outweighs the private

interest served by maintaining the privacy of the

financial affidavit. For the purposes of this

paragraph, the right of the public to access court

records shall not, absent further cause, constitute

sufficient evidence to overcome the presumption of

privacy contained in paragraph I.

RSA 458:15-b (2005). RSA 458:15-b was enacted on June 11, 2004

and first became effective on August 10, 2004. House Bill 384,

the origin of the challenged statute, provides that RSA 458:15-b

“shall apply to all proceedings under RSA 458 filed or brought

forward on or after the effective date of this act.” See First

Am. Compl. at 4.

 The legislative history of RSA 458:15-b shows that the New

Hampshire Legislature viewed the legislation as a means to

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 7 of 20
8

protect personal privacy. Id., ¶ 16. Plaintiff alleges,

however, that “the legislative record is completely silent on any

studies, surveys, or findings that indicated the extent to which

the public was obtaining access to financial affidavits in court

files.” Id. Plaintiff further alleges that the legislative

record “contains no information on whether access to financial

affidavits had either resulted in or would prevent identity

theft,” id., and that “the legislature never considered a less

restrictive alternative to blanket confidentiality of the entire

contents of financial affidavits filed in domestic relations

cases.” Id., ¶ 18. Plaintiff alleges that neither the New

Hampshire Supreme Court nor the New Hampshire Legislature has

explicitly considered the constitutional rights of litigants in

domestic relations proceedings who do not wish to seal any record

contained in their divorce file. Id., ¶ 36.

III. Requested Relief

Plaintiff seeks declaratory and injunctive relief on the

grounds that RSA 458:15-b violates his rights under the United

States Constitution. Plaintiff claims that RSA 458:15-b violates

his rights to petition for redress of grievances, freedom of

speech and freedom of the press under the First Amendment, his

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 8 of 20
9

due process right to notice of prohibited conduct under the Fifth

Amendment, and his rights under the Equal Protection Clause of

the Fourteenth Amendment. 

Discussion

I. Subject Matter Jurisdiction

This Court has original jurisdiction in civil actions

arising under the Constitution and the laws of the United States. 

28 U.S.C. § 1331. In this action, Plaintiff alleges that RSA

458:15-b violates his rights secured by the First, Fifth and

Fourteenth Amendments to the Constitution. He brings this action

under 42 U.S.C. § 1983 against the Attorney General, as she is

charged with enforcing the challenged statute. See RSA 7:6. 

Plaintiff seeks declaratory and injunctive relief.

Federal courts are obligated to ensure that subject matter

jurisdiction exists to decide the cases before them. McCulloch

v. Velez, 364 F.3d 1, 5 (1st Cir. 2004) (“It is black-letter law

that a federal court has an obligation to inquire sua sponte into

its own subject matter jurisdiction”); Prou v. United States, 199

F.3d 37, 45 (1st Cir. 1999) (“the question of subject-matter

jurisdiction is always open: courts at every stage of the

proceedings are obligated to consider the issue even though the

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 9 of 20
10

parties have failed to raise it”). Whether a federal court has

subject matter jurisdiction “ordinarily depends on the facts as

they exist when the complaint is filed.” Mangual v. RotgerSabat, 317 F.3d 45, 58 (1st Cir. 2003).

In order for this Court to have subject matter jurisdiction

over Plaintiff’s action, the Court must find that this matter

presents a case or controversy under Article III of the United

States Constitution. See U.S. Const. art. III, § 2; 28 U.S.C. §

2201. The federal court’s jurisdiction can be invoked only when

the plaintiff has suffered some actual or threatened injury

resulting from allegedly illegal or unconstitutional conduct. 

Warth v. Seldin, 422 U.S. 490, 499 (1975).

“A paradigm of a case or controversy under Article III is a

challenge to a statute that imposes criminal penalties for

constitutionally protected activities by a person likely to be

subject to the statute.” Mangual, 317 F.3d at 56 (citing Diamond

v. Charles, 476 U.S. 54, 64 (1986)). There is no requirement

that a person violate a statute and subject himself to punishment

to create a case or controversy within the federal court’s

jurisdiction. Id. (citing Babbitt v. United Farm Workers Nat’l

Union, 442 U.S. 289, 298 (1979)). 

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 10 of 20
11

In challenges under the First Amendment, two types of

injuries may confer Article III standing without

necessitating that the challenger actually undergo a

criminal prosecution. The first is when “the plaintiff

has alleged an intention to engage in a course of

conduct arguably affected with a constitutional

interest, but proscribed by [the] statute, and there

exists a credible threat of prosecution” . . . “The

second type of injury is when a plaintiff “is chilled

from exercising her right to free expression or forgoes

expression in order to avoid enforcement consequences.”

Id. at 56-57 (citations omitted). A plaintiff must have a

specific and objectively reasonable fear of prosecution to

demonstrate Article III standing for either type of injury. Id.

at 57 (citing Laird v. Tatum, 408 U.S. 1, 13-14 (1972)). 

Although a plaintiff may have standing to make a preenforcement challenge to a statute, as in the circumstances

discussed above, a federal court nonetheless lacks jurisdiction

to decide a controversy that is not ripe for judicial review. 

The doctrine of ripeness “asks whether an injury that has not yet

happened is sufficiently likely to happen” to warrant judicial

review. Gun Owners’ Action League, Inc. v. Swift, 284 F.3d 198,

205 (1st Cir. 2002) (quoting 13A Charles Alan Wright, Arthur R.

Miller, and Edward H. Cooper, Federal Practice and Procedure, §

3531.12, at 50 (2d ed. 1984) (further citations omitted)). The

function of the doctrine is “to prevent the courts, through

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 11 of 20
12

avoidance of premature adjudication, from entangling themselves

in abstract disagreements.” R.I. Ass’n of Realtors v.

Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999) (quoting Abbott Labs.

v. Gardner, 387 U.S. 136, 148 (1967)).

To determine the issue of ripeness, a court must evaluate

“both the fitness of the issues for judicial decision and the

hardship to the parties of withholding court consideration.” 

Mangual, 317 F.3d at 59 (quoting Abbott Labs., 387 U.S. at 149). 

The fitness inquiry “involves subsidiary queries concerning

finality, definiteness, and the extent to which resolution of the

challenge depends upon facts that may not yet be sufficiently

developed.” R.I. Ass’n of Realtors, 199 F.3d at 33 (quoting

Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535

(1st Cir. 1995)). The critical question, however, is “whether

the claim involves uncertain and contingent events that may not

occur as anticipated or may not occur at all.” Ernst & Young, 45

F.3d at 536. The hardship inquiry “typically turns upon whether

the challenged action creates a direct and immediate dilemma for

the parties.” R.I. Ass’n of Realtors, 199 F.3d at 33. 

In the context of a pre-enforcement challenge, as in the

instant case, a plaintiff “must have concrete plans to engage

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 12 of 20
13

immediately (or nearly so) in an arguably proscribed activity” to

meet the requirement of ripeness. Id. “A showing that the

challenged statute, fairly read, thwarts implementation of the

plan adds the element of hardship.” Id.

II. Whether Plaintiff’s Challenge to RSA 458:15-b is Ripe

Applying the ripeness requirements discussed above, the

Court must determine whether Plaintiff’s constitutional claims

were ripe for decision when this action was filed. Taking the

facts alleged in the amended complaint as true, Plaintiff desires

to disclose information contained in Jennifer Wilson’s financial

affidavits to a forensic accountant and to other third parties,

who will assist in a search for misappropriated funds that

rightfully belong to his two children. Plaintiff plans to

initiate litigation to recover the funds and to obtain

compensation for damages caused by Jennifer Wilson and any other

liable parties.

Plaintiff alleges in his complaint that he already has

information contained in Jennifer Wilson’s financial affidavits,

which he obtained during the course of the parties’ long marital

relationship. The Attorney General shares the Court’s view that

RSA 458:15-b cannot be fairly read to reach out and make

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 13 of 20
14

confidential, and subject to punishment after disclosure,

information that Plaintiff lawfully obtains and discloses

independent of Jennifer Wilson’s financial affidavits. Such

disclosures would not constitute disclosure of the financial

affidavits and therefore would not violate RSA 458:15-b. See

Def.’s Mem. of Law In Support of Def.’s Mot. to Dismiss at 18;

see also Butterworth v. Smith, 494 U.S. 624, 636 (1990) (Scalia,

J., concurring) (finding that there is considerable doubt whether

a grand jury witness could be prohibited from making public, even

while a grand jury is sitting, what the witness knew before he

entered the grand jury room). 

Moreover, Plaintiff alleges that as of the filing of his

complaint, Jennifer Wilson’s financial affidavits were available

at the Superior Court for inspection by any member of the public. 

Plaintiff’s divorce proceeding concluded before the effective

date of RSA 458:15-b, so the statutory presumption of

confidentiality of financial affidavits did not yet apply. See

In re Keene Sentinel, 136 N.H. 121, 128, 612 A.2d 911, 916 (1992)

(“there is a presumption that court records are public and the

burden of proof rests with the party seeking closure or

nondisclosure of court records to demonstrate with specificity

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 14 of 20
15

that there is some overriding consideration or special

circumstance, that is, a sufficiently compelling interest, which

outweighs the public’s right of access to those records”);

Douglas v. Douglas, 146 N.H. 205, 208, 772 A.2d 316, 318 (2001)

(same). Thus, there is no apparent bar preventing Plaintiff’s

forensic accountant, or any other third person, from reviewing

Jennifer Wilson’s financial affidavits as part of Plaintiff’s

investigation regarding the missing funds and discussing his or

her findings with the Plaintiff.

The facts alleged in the amended complaint demonstrate that

Plaintiff’s challenge to RSA 458:15-b is not ripe because he does

not have a concrete plan to engage immediately in an activity

that is proscribed by the challenged statute. Therefore, the

issues raised in this lawsuit are not fit for judicial

determination because Plaintiff’s claims involve uncertain and

contingent events that may not occur as anticipated, or may not

occur at all. Plaintiff may or may not decide to pursue

litigation against Jennifer Wilson and others after completing

his investigation for the allegedly misappropriated funds. And

any such litigation may or may not present confidentiality issues

under RSA 458:15-b.

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 15 of 20
16

Furthermore, Plaintiff does not meet the hardship element of

the ripeness inquiry. RSA 458:15-b cannot be fairly read to

thwart the implementation of the plan that Plaintiff describes in

his complaint. Postponing adjudication of Plaintiff’s

constitutional claims until after he completes his investigation

of the misappropriation claim and initiates litigation pertaining

to it will not cause him a substantial hardship. To the extent

that Plaintiff claims that RSA 458:15-b imposes a chilling effect

on the activities that he intends to engage in, the Court finds

that his fear of prosecution is not objectively reasonable.

This case is analogous to another case filed in this court

that was found to present a constitutional challenge that was not

ripe for decision. In Kamasinski v. N.H. Sup. Ct. Comm. on

Judicial Conduct, No. Civ. 94-10-M, 1995 WL 89344 (D.N.H. Feb.

27, 1995), the Plaintiff sought “a declaration that certain rules

of the New Hampshire Supreme Court requiring confidentiality of

proceedings before the Committee on Judicial Conduct” violated

his First Amendment right to free speech. Id. at *1. The

plaintiff, who was uncertain as to whether the confidentiality

rules would apply to him if he filed his intended petition

against an unnamed New Hampshire judge, filed an action seeking a

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 16 of 20
17

declaratory judgment in this court. Id. at *2. Plaintiff argued

that if the challenged confidentiality rules applied to him that

he would be prohibited “from publicly disclosing the substance of

his complaint, or any facts relating to it, thereby depriving him

of his constitutionally protected right to freedom of speech.” 

Id.

The court found that the complaint in Kamasinski presented a

“speculative situation” because the plaintiff did not presently

face a choice of abandoning his right to petition or risk

possible sanctions under the challenged confidentiality rules. 

Id. at *3. 

Merely filing a petition with the CJC will not expose

plaintiff to any form of penalty or sanction. And,

unless and until he files a petition with the CJC,

plaintiff is entirely free to exercise his

constitutional right to free speech. He may freely

discuss his alleged grievances whenever and with

whomever he chooses, without violating any law or

regulation. The CJC confidentiality rules simply do

not apply to him nor will they ever apply to him,

unless he should actually file a complaint against a

New Hampshire judge with the CJC, thereby invoking its

jurisdiction (and rules).

Id. (emphasis in original). Similarly, in the instant case,

Plaintiff’s plan to investigate his ex-wife’s alleged

misappropriation of his children’s education funds and to

initiate litigation against her is not proscribed by RSA 458:15-

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 17 of 20
3As alleged in the amended complaint, the missing funds are

not marital assets, but rather are assets that belong to the

children. Therefore, any litigation to recover those funds would

appear to be appropriately brought as a common law action for

conversion by a guardian ad litem as opposed to reopening the

divorce case. 

18

b. Plaintiff may use the financial information that he already

possesses, and information that is available to licensed

investigators, to investigate the misappropriation claim whether

or not that information appears on financial affidavits that

Jennifer Wilson filed in the divorce proceeding. Moreover, by

Plaintiff’s own admission, Jennifer Wilson’s financial affidavits

are available for inspection at the Superior Court by any member

of the public, including his forensic accountant, upon request. 

Therefore, Plaintiff’s current constitutional challenge is

speculative and hypothetical. Id. (citing North Carolina v.

Rice, 404 U.S. 244, 244 (1971) (a case must involve “a real and

substantial controversy admitting of specific relief through a

decree of a conclusive character, as distinguished from an

opinion advising what the law would be upon a hypothetical state

of facts.”).

If Plaintiff decides, after further investigation, that it

is necessary to bring forward his divorce case or commence a new

domestic relations proceeding,3 and if the Superior Court finds

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 18 of 20
4In this action, Plaintiff sought to represent a class of

similarly situated individuals in New Hampshire who have access

to information contained in any financial affidavit filed in any

New Hampshire Superior Court under Chapter 458. See First Am.

Compl., ¶ 7. In light of the Court’s decision on the issue of

subject matter jurisdiction, consideration of Plaintiff’s request

for class certification is unnecessary. 

19

that the confidentiality provisions of RSA 458:15-b prevent

Plaintiff from making disclosures that he wishes to make at that

time, then Plaintiff’s declaratory judgment action would likely

be ripe for judicial review. None of those possibilities are

presented concretely now. Accordingly, the Court finds that

Plaintiff’s amended complaint must be dismissed for lack of

subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).4

Conclusion

For the reasons set forth above, Plaintiff’s amended

complaint is dismissed for lack of subject matter jurisdiction. 

Defendant’s motion to dismiss for failure to state claim

(document no. 16) is moot.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 15, 2005

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 19 of 20
20

cc: Jill Dinneen, Esq.

Wynn E. Arnold, Esq. 

Case 1:05-cv-00193-JM Document 20 Filed 12/15/05 Page 20 of 20