Judge Kelly's & Rep. Mirski's Commentaries on the Petitions & Redress Committee

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Sunday, June 5, 2011

Redress panel threatens autonomy of three branches

By EDWIN W. KELLY

Guest Commentary

Our constitution requires that judges be "as impartial as the lot of humanity will admit." It also provides for three separate branches of government that are as independent of each other "as is consistent with the chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity."

Curious 18th-century phrases? Or pithy prescriptions for a healthy democracy?

I choose to believe the latter.

The founders called for neither a system of justice where judges were expected to be above the people or perfect in their decisions. Rather, they called for judges who reflected the people, judges as impartial as the lot of humanity will admit.

And recognizing that judges will err, our founders also established the mechanics of judicial review or, in modern parlance, an appellate system.

As for the relationship between and among the branches of government, our state constitution clearly stated that the executive, legislative and judicial branches function as a single unit, but retain strict independence from one another in those areas of government given exclusively to each.

From time to time, the natural tension among the branches, (also anticipated by our founders) can increase to the point where it threatens the delicate balance so necessary to our democratic form of government.

In my opinion, the newly created House Committee on Redress of Grievances has begun to move dangerously close to that imbalance. The committee has the exclusive authority to determine if any petition brought by a member of the House of Representatives will receive a public hearing.

Petition 5 seeks, on behalf of a litigant in a long-standing divorce matter, to override a court parenting order and return custody of the litigant's child to the petitioner through legislation; legislatively remove the court-appointed guardian; remove from office three sitting judges and two marital masters who had some involvement in the case, and order those judges to pay triple damages to the litigant for his losses, including child support arrearages and attorney's fees.

In the interest of full disclosure, I am one of the judicial officers against whom this petition is filed.

After approving the petition for a public hearing and chairing the first day of hearing, the committee chairman, Rep. Paul Ingbretson, of Pike, announced to the committee that he thought he may have a conflict because he has served for an extended period of time as the supervisor of court-ordered child visitation for the litigant at the litigant's request.

The judicial branch also reminded Ingbretson of a letter he had written to me almost two years ago in which he stated that he had listened "at great length to (the litigant) and other knowledgeable witnesses" and had "read extensively the documents pertaining to his case" and had, as of September 2009, formed a conclusion about what he saw as "obvious failures to act in the best interest of the child."

Ingbretson finally agreed to step down in that case. But the proceedings on Petition 5 will continue, even though this litigant has had, at his request, a number of judges and masters removed from his case; hearings before at least four different family division judges, two family division marital masters, and a superior court judge, and has filed an appeal to the New Hampshire Supreme Court, resulting in a decision against his position.

When does this stop?

The committee, which is scheduled to hold its next meeting in Concord on June 9, also has before it two petitions in which Rep. Peter Silva, of Nashua, says the committee should consider impeachment proceedings against a Nashua judge for rulings he made in two cases involving children.

Like Petition 5, any review of these rulings should be conducted at the New Hampshire Supreme Court, not, I would submit, in a legislative committee room.

Our system of justice was not designed to allow those people who bring cases to the courts for resolution to continue these matters ad infinitum. At some point in time, the parties have to accept the final judgment of the courts. To do otherwise makes a mockery of the constitutional responsibilities and authority of the courts and the clearly stated constitutional demand that the branches operate independent from one another in issues given to their exclusive authority.

A process established by the Legislature that allows a case such as this to be brought to hearing by a clearly conflicted chairman, seeking legislative action to overturn valid court orders and make judges pay damages to a party who feels aggrieved, not only threatens the delicate balance between the branches, it completely upends it.

Judge Edwin W. Kelly is the administrative judge of the District Court and Family Division in New Hampshire.

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Sunday, June 12, 2011

Judge's redress piece missed a key point

By PAUL MIRSKI

In the first paragraph of Judge Edwin Kelly's guest commentary June 5 in The Sunday Telegraph ("Redress panel threatens autonomy of three branches"), he selectively quotes only the last portion of the New Hampshire Constitution's language having to do with separation of powers.

Part I, Article 37, reads as follows: "In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and unity."

The words that go to the redress of grievance process are those that read "as the nature of a free government will admit." This is because without judicial oversight – that is to say, without the ability of the people to review the actions of their judicial branch and to then be able to correct improprieties or worse – free government cannot exist in New Hampshire.

For more than 50 years now, New Hampshire's judiciary has worked hard to wriggle out from under legislative scrutiny and oversight. If one takes notice of the dates of amendments made to the Part II articles of the state's constitution that address the judiciary, one easily can see the gains that were made over time by judicial advocates to deliberately put our judiciary at arm's length with legislative and executive branch oversight, and worse, at arm's length of the people.

Since judges know they're expected to always act as impartially "as the lot of humanity will admit," it seems they should naturally expect and welcome scrutiny by the other branches and by the people concerned with impartial dealing in the courts.

Rep. Paul Ingbretson and members of the Redress of Grievance Committee deserve the heartfelt thanks of all citizens for their willingness to review and resolve the difficult matters brought before them for legislative remedy.

Rep. Paul Mirski, R-Enfield Center, represents Grafton District 10

TimothyHorrigan:

I am one of the members of the House Petitions & Redress Committee.  I am glad Rep.Mirski appreciates our efforts, but I don't think anyone else does.  So far, we have accomplished exactly nothing.  We haven't even thrown any petitions out, with exception of one which was totally ludicrous: the named complainant (the Hudson School District) hadn't even asked the sponsor to introduce it, and it had a blatant factual error.

It has been a frustrating assignment: I ran for the House to make a difference and to work on legislation. I didn't run because I was eager to hear hours and hours of rambling "he said/she said" testimony from complainants who in most cases have already lost in court multiple times.

"Neighborhood_Watch" criticizes us for not reading the materials.  Only a few "materials" have in fact been provided to us, and those materials usually address only side issues, and they are selectively chosen by the complainants. Typically, the complainants do show up carrying thick stacks of old papers, but they give us few if any copies.

And in any case, none of us on the committee are lawyers, and even though almost all of the petitions allege that legal procedures have been misapplied, we don't really know how things are supposed to work.  For example, in the case of the most famous petition, David Johnson's, the key charge against the nefarious Master Cross was that Cross misapplied civil contempt, turning it into criminal contempt to improperly throw Mr. Johnson in jail.  Johnson has shown us no documentation to prove this point and (even though he is precise on almost all other points)  he told us he doesn't remember exactly what dates he spent in jail.  (I am sure he was thrown in jail, I hasten to add.) Without such documentation, we have no way of knowing exactly what Cross did.  Without legal training and without counsel, it would be almost impossible for us, even with the paperwork in hand, to determine whether Cross's alleged actions were in fact improper.  For all we know, it may be proper for a court to imprison a defendant who repeatedly commits civil contempt.

Taken10:

Politics sounds like a hobby for you. With all due respect, I think you should resign your post on the committee since you point out how unqualified you are to understand the leagl proceedures you are being asked to review. What happens in these kangaroo courts has a dramatic negative effect on real families. These families deserve to have representatives who are capable of understanding the very real human tragedies that these courts are making. A family would have a better chance of fair and reasonable justice in any other country in the world than in a NH family court.

TimothyHorrigan:

I did not ask for this committee assignment: the Speaker and the Minority Leader asked me to sit on the committee. It would have been very difficult to turn down the assignment, although there are two reps who turned down assignments and sit on no committee at all. 

I am in any case just as qualified as  any of the other members of the committee.  Rep. Mirski, by the way, is not a member of the committee and has spent little if any time observing the proceedings.  My recollection is that he has never even sat in as a spectator, and he certainly has never taken advantage of the opportunity to fill in as a substitute for an absent member, even though we have had several absences which he could have filled.

Taken10:

The reason you are having to listen to hours of "rambling" is because the courts are not doing thier job. Obviously, we are not ever going to have family cases heard by jury's, but if most normal people would hear these cases, they would be absolutely shocked at the lack of accountability, the sloppiness, bias, and bizzare predetermined orders that result. If you choose to remain on the committee, please take the time to really understand what is going on with the courts and their personnel. Please do not view things from a political perspective. I don't care about the political parties. I only care about my family and the familes of others that have been seriously harmed by a court machine with an agenda.