With the New Hampshire House having adopted HR 13, the latest House calendar indicates a subcommittee of the House Judiciary Committee is set to discuss on November 1 a resolution previously adopted (HR 7, previous blog posts here) regarding possible impeachment of a martial master and judges because of their opinions. Unlike current controversies at the federal level, with presidential candidates suggesting impeachment for federal judges who “misinterpret” the U.S. Constitution, these impeachment efforts are focused on family law, divorce, and custody cases.
New Hampshire’s Constitution gives two ways to remove a judge from office. The first is an Article 73 “bill of address”
The governor with consent of the council may remove any commissioned officer for reasonable cause upon the address of both houses of the legislature, provided nevertheless that the cause for removal shall be stated fully and substantially in the address and shall not be a cause which is a sufficient ground for impeachment, and provided further that no officer shall be so removed unless he shall have had an opportunity to be heard in his defense by a joint committee of both houses of the legislature.
The second is impeachment under Article 38
The senate shall be a court, with full power and authority to hear, try, and determine, all impeachments made by the house of representatives against any officer or officers of the state, for bribery, corruption, malpractice or maladministration, in office…
The first recent attempt in New Hampshire to remove a judge from office for his opinions was via the Bill of Address route. In 2006, HA 1 of 2006 was filed against Superior Court Justice Kenneth R. McHugh for a decision the judge had rendered against an ex-husband in 1999. Justice McHugh testified before the Joint Committee of Address as per Article 73’s “opportunity to be heard” clause. The joint committee decided on a 12-0 vote to reject the effort to remove the judge, determining that the ex-husband had not been completely honest with the court at the time or the joint committee, and chastising the legislators that had introduced the bill of address in the first place.
While the committee understands the sponsor’s concern for judicial accountability, it firmly believed that the serious nature of an address should not be used as a means by which aggrieved litigants can express their disagreement or dissatisfaction with a single ruling in an isolated case, particularly where significant legal and factual questions exist as to the validity of the litigant’s claims. The committee also believed that legislative sponsors should attempt to verify and corroborate the claims of a private proponent of an address to ensure that this serious procedure is not subject to abuse by litigious and recalcitrant individuals.
2010: Garner, Sadler, Cross
A second round of efforts to remove New Hampshire judges and judicial officers for their decisions, again by bill of address, was prefiled in late 2009 and taken up by the House in early 2010.
HA 1, filed against Marital Master Michael Garner, accused him of “recommended[ing] to the presiding justice (Judge Sadler, see below) an order removing a child from an educational setting on the basis of religious prejudice.” The case surrounded a divorce case and a child, identified only as “Amanda,” who was being home schooled by her mother, while her father wanted the child placed in public school. According to media reports, Garner evaluated the home schooling situation. On July 13, 2009, he issued his recommendation, stating “The Court is extremely reluctant to impose on parents a decision about a child’s education” but ultimately deciding, based on the testimony of the parents and a Guardian Ad Litem, that it was in “Amanda’s best interests to attend public school.”
HA 2 was lodged against District Court Judge Lucinda Sadler for her role in the homeschooling order. Sadler was also cited for her role in as many as 6 other child support and custody cases.
HA 3 focused on Marital Master Philip Cross. Details were not provided as to specific case number or names in the bill of address.
In 2010, the Joint Committee of Address voted 8-3 to reject HA 1 and voted 6-3 to reject HA 3 against Marital Master Cross. The majority held the bill of address clause of Article 73 did not apply because Martial Masters were not “commissioned officers”.
In 2000, when Michael Garner became a marital master, appointments to the position were made solely by the judicial branch. Michael Garner has continued as an at-will employee of the judicial branch to this day. He has never been commissioned by the Governor and Council. He has never held a commission of any kind. Under the plain meaning of the language of Article 73, he cannot be subject to address. Moreover, the purpose of Article 73 is to allow for the removal, when necessary, of judges who cannot be removed from office except by impeachment or address. This is not the case with marital masters. Under the family division court rules, the administrative judge may at any time respond to a complaint against a marital master and “take whatever action is appropriate, including termination.”
Additionally, the Joint Committee held the testimony against Cross failed to meet the threshold for a bill of address and noted the proper course of action is an appeal not an attempt to remove the martial master from office.
With respect to whether the bill states a reasonable cause for removal, the bipartisan majority finds it does not. The numerous actions complained of in the bill of address arise out of only three of the hundreds of divorce cases that Master Cross has heard since his appointment in 2004. The voluminous filings in the bill of address and the testimony of the litigants complaining against Master Cross give some insight into the incredibly difficult task marital masters face in contentious cases. The combined number of docket entries in these three cases total an astounding 2,045 entries as of the week before the bill was heard. On the day after the bill was heard, one of the litigants requested copies of the Joint Committee’s records in the matter with the intent of filing further proceedings in the family court, based on what occurred at the Joint Committee hearing. While members of the majority believed that some of the allegations stated in the bill of address might, if fully proven, give grounds for concern, the allegations were such that the appropriate remedy is an appeal to the Supreme Court for review and possible reversal. The majority finds that the requirement that the address state a reasonable cause for removal is not met. The bill alleges that the Master issued an order that held a parent in criminal contempt after a hearing noticed as a civil contempt hearing. There is no finding of criminal contempt. The complaining party concludes that he was held in criminal contempt on the basis of the terms of the order. An alternative reading of the order is that at the hearing, a determination of ability to pay the bail was made, precisely as required in an action for civil contempt.
Similarly, in the case of Garner, the Joint Committee found that the proper course of action with respect to the decision on home schooling was an appeal, not an attempt at removal from office.
The majority notes that the issues complained of in the decision are ones of first impression in this state, and the decisions are currently on appeal before the Supreme Court. The Supreme Court may ultimately find that the decisions were made in error. In that case, the remedy is reversal of the decision. Any further sanction for the master would be inappropriate. The majority is concerned that the serious nature of an address should not be used as a means by which litigants can express their disagreement or dissatisfaction with the rulings in discrete cases, particularly when significant legal or factual questions exist as to the validity of the litigant’s claims. The majority finds that the requirement that the Address state a reasonable cause for removal is not met.
The Joint Committee also voted 6-4 to reject HA 2 against Judge Sadler, holding “A majority of the Joint Committee has already voted that the orders of the marital masters were not reasonable cause for them to be removed. It follows that the actions of the judge who read and approved those orders are likewise not reasonable cause for removal.”
2011: Cross and “any justice of the New Hampshire Superior Court”
Undaunted, several representatives introduced HR 7 in 2011 based on the testimony from the 2010 bill of address hearings against Marital Master Cross. The resolution, however, is much more expansive, authorizing an impeachment investigation of every single justice of the state’s Superior Court. The House Judiciary Committee:
acting as a whole or by any subcommittee thereof appointed by the chairman for the purposes hereof and in accordance with the rules of the house and rules which may be adopted by the committee, to investigate whether grounds exist, based on the public hearing of 2010, HA3, and any information arising out of the judiciary committee investigation, for the house of representatives to exercise its constitutional power to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court
The full House approved HR 7 on a 242-105 vote in March 2011.