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Judge Edwin Kelly
Sunday, June 5, 2011

Redress panel threatens autonomy of three branches

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 litgant’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.