Additional commentary by Timothy Horrigan
(member of the House Petitions & Redress Committee)
PETITION FOR REDRESS OF GRIEVANCE
Honorable House of Representatives
FROM: Petitioner Representative Donald B. McClarren, Hillsborough 21
DATE: October 27, 2011
SUBJECT: Grievance of Arthur Ginsberg, Nashua, New Hampshire
Your Petitioner Representative McClarren on behalf of Arthur Ginsberg of Nashua, and the citizens of New Hampshire who may likewise be affected, hereinafter presents the following summary of his grievances involving a decision of the New Hampshire Supreme Court and invokes the constitutional authority and duty of the Honorable House of Representatives pursuant to Articles 31 and 32 to bring about redress:
Grievance involving judges of the New Hampshire Superior Court for permitting an Attorney John P. Griffith to enter false evidence and testimony and to conduct malicious and frivolous litigation.
Grievance involving the Professional Conduct Committee of the Supreme Court Attorney Discipline System for delay in scheduling the hearing for Attorney Griffith, and unlawfully voiding an official investigative report.
Grievance involving special investigator Attorney Diane Nicolosi for falsifying a second investigative report on Attorney Griffith, including misrepresentation of interviews with Mr. Ginsberg's lawyers.
Grievance involving Margaret Nelson, chairperson of the Professional Conduct Committee of the Supreme Court Attorney Discipline System, Disciplinary Counsel Landya McCafferty, and Special Investigator Diane Nicolosi for stating that Mr. Ginsberg's complaint did not meet the clear and convincing evidence burden of proof when at the time of these investigations, preponderance of evidence was the standard burden of proof used at the investigative level.
Grievance involving a decision of the New Hampshire Supreme Court which vacated an order accepting the case in question.
Grievance involving the department of justice for not addressing specific violations of law and putting more effort into investigating Mr. Ginsberg than the actual complaint.
Wherefore, your Petitioner prays that the House of Representatives consider this proposed remedy:
Review and study the procedures used by the Professional Conduct Committee and the Judiciary Conduct Committee in handling complaints.
Determine what testimony and evidence should be accessible to the public in disciplinary actions and introduce legislation to provide for such accessibility.
Introduce legislation to repeal article 73-a of the second part of the New Hampshire constitution.
Review the standard burden of proof required for investigations that are part of the screening process within the court system and if necessary, introduce legislation to require a preponderance of evidence as the standard burden of proof.
Request an official investigation by the attorney general for criminal violation by members of the court system.
Respectfully submitted by Petitioner Representative McClaren on Behalf of Arthur Ginsberg.
Mr. Ginsberg is a brilliant man who has some very serious complaints about his divorce case— and about the state's court system in general. He also has some complaints about my committee's process: evidently, the House leadership gave him the runaround. He had to wait 14 months, beginning with the submission of his initial "Motion for Redress" a few days after the 2010 election, before he had his first hearing.
We have had issues with names in other petitions. This one had a name which looked like a possible typo: "Landya McCafferty." She is a federal judge whose name is spelled exactly as shown in the petition.
The committee had a fairly hard time reaching a verdict of Unfounded: the process was painful while it was going on, but it seems funny now. For me, and for most of my colleagues, the key issue was the July 16, 2006 "Dismissal with Warning" report (aka Exhibit J.) I thought it was about as fair a report as Mr. Ginsberg or anyone else could expect. I also thought the whole debate over "preponderance of evidence" vs. "clear and convincing evidence" was irrelevant because there was not even a preponderance of evidence for giving Attorney Griffith anything more than a warning.
The first time we voted, Mr. Ginsberg lost 6-5: the minority agreed with him, while the majority expressed some mild regret. That was not good enough for Mr. Ginsberg: he demanded that we reconsider. The second report had a lot of big words in it and was more negative: it won 8-3. Mr. Ginsberg and fellow petitioner David Johnson were so disruptive during the second debate, they had to be ejected from the hearing room. The third report had fewer big words in it, and it won 10-1. The harder he tried, the worse it got for Mr. Ginsberg.
PETITION #21: grievance of Arthur Ginsberg
Committee Majority Findings:
The Petitioner alleged being aggrieved by both the Attorney Discipline System (ADS) and the New Hampshire Supreme Court in the handling and disposition of his professional conduct complaint against his former wife's divorce counsel, the result of which was dismissal of his complaint with a warning.
In order for a petition for redress of grievance to be determined by this Committee to be "founded," it is not enough for a petitioner merely to show wrongful conduct or unjust acts of a governmental entity or official. He must also show the existence of a lawful legislative remedy. Further, by reason that— unlike the judicial branch and executive branch administrative agencies against which allegations of grievance are typically brought— this Committee is not designed and lacks the resources to conduct fundamentally fair adversary proceedings, a petitioner must be prepared to show that any such allegation admits of no reasonable alternative explanation other than corruption, incompetence, or willful disregard of law. The Committee concludes that the Petitioner in this case has failed to meet his burden of persuasion in either regard.
The alleged wrongs that were the basis of the Petitioner's professional conduct complaint occurred in the course of his and his then-wife's divorce. Those wrongs, even accepting them to have occurred exactly as articulated and with all the consequences asserted by the Petitioner, were part of that judicial proceeding, and if left unraised, unaddressed or unremedied at the time of and within the context of that proceeding, their effects cannot be remedied by legislative action, as the legislative branch has no authority to interfere with or disturb the results of judicial proceedings. Similarly, the dismissal with a warning resulting from wrongs allegedly perpetrated by personnel or agents of the ADS, again accepting those wrongs to have occurred exactly as articulated by the Petitioner, and accepting as well his conviction of the inadequacy of the punishment imposed, also cannot be changed by legislative action. In summary, the Committee is satisfied that there is no set of facts the Petitioner alleged or could allege which, even if accepted by the Committee as true and incontrovertible, would support any legislative remedy directed to the specific judicial or ADS proceedings in question.
The only other basis for a determination of "founded" by the Committee would be if the Petitioner demonstrated systemic unfairness of the ADS, of which that alleged to have occurred in his case was symptomatic. The Petitioner focused in particular on amendments made in 2007 to Subdivisions (5)(b)(5) and (5)(b)(7) of Supreme Court Rule 37, which allegedly changed the standard of review in the initial screening of professional conduct complaints, retrospectively in his case, from "preponderance of the evidence" to "reasonable likelihood that a complaint can be proven by clear and convincing evidence." The Committee notes that "clear and convincing evidence" has always been the standard of proof in ADS cases once they have reached the hearing level before the Professional Conduct Committee (Supreme Court Rule 37(3)(c)(2); Young's Case, 154 NH 359 (2006); Edes' Case, 118 NH 815(1978); Decato's Case, 117 NH 885 (1977)). Accordingly, in opposition to the Petitioner's allegation of corrupt motivation in making the amendments is the alternative explanation that they were made merely to harmonize the complaint screening process with the "clear and convincing evidence" standard, and thereby relieve an unnecessary burden on ADS staff and avoid unrealistic expectations of complainants by reducing the number of complaints entering the system that plainly cannot be resolved other than by their eventual dismissal. The Committee is aware of no groundswell of public discontent or pattern of injustice that has emerged over the five years since the Supreme Court's amendments were implemented, and the Petitioner has not, among the numerous documents with which he has favored the Committee, offered one containing proof to the contrary. The objection offered to the changes that they make it more difficult for lay people to file, pursue and prevail in the attorney disciplinary process is countered by the observation that, the ultimate subject of a professional conduct complaint being a person's livelihood, the process should not be easy but should be rigorous and exacting.
Finally, the Petitioner complains against the Supreme Court for vacating an earlier order accepting for review his Supreme Court Rule 11 petition from the ADS dismissal of his complaint. The Committee notes that, by its terms, petitions filed under Supreme Court Rule 11 are granted "only when there are special and important reasons for doing so," such as when a judicial or administrative agency proceeding "has so far departed from the accepted or usual course…as to call for an exercise of [the] court's power of supervision." In opposition to the Petitioner's allegation of corrupt motivation in vacating its acceptance of his petition is the reasonable alternative explanation that, once the Court had clarified the matter of the proper standard to apply in the screening of professional conduct complaints, the Petitioner's Rule 11 petition no longer met the Rule's threshold requirements, and the Court's prior acceptance of that petition was therefore properly vacated. Vote 10-1.
Rep. Gregory M. Sorg for the Majority of the Committee.
Minority Committee Findings:
The Minority believes Mr. Ginsberg conclusively documented that until 2007 the rules of New Hampshire's Attorney Disciplinary System only allowed "clear and convincing" evidence to be used at the hearing stage of a complaint. "Preponderance of evidence" was the standard used for screening, and investigating complaints. In January of 2007, on a "temporary basis," the rules were changed to "clear and convincing" at all stages of a complaint. The new rules actually violate the 1st and 14th constitutional amendments, and deny citizens access to the courts. These rules further provide immunity to unethical and dishonest attorneys in New Hampshire.
It is recommended that the Professional Conduct Committee adopt the American Bar Association recommendations of "preponderance of evidence," but if "clear and convincing" evidence is used it is to be only at the hearing level. The PCC must adhere to their rules and truly discipline attorneys that are violating these rules (Code of Ethics and Laws of NH).
When the state legislature passes a law (RSA) that may be unconstitutional, it is the Supreme Court which rules. When the Supreme Court acts as a legislature and publishes written laws (Supreme Court Rules), then the General Court (NH State Legislature) has the responsibility of reviewing those laws. 73a does not prevent the General Court from overruling the Supreme Court when they institute rules that violate citizens' rights… it is our duty to take action. No one is above the law.
Rep. Stella Tremblay for the Minority of the Committee.
Other 2012 Petitions:
Official Petitions & Redress committee page (not much to see here)