CACR 26 Would Rein-In Judicial Overreach and Restore the Balance of Power to the People of New Hampshire


KEENE, N.H.—Two state representatives and a former police officer are calling attention to the apparent abuse of power by a New Hampshire district court judge and other officials around him in an effort to showcase the need for a constitutional amendment, specifically CACR 26, which is designed to rein-in judicial authority and is now headed for the Senate after the House passed it last week.
In addition, a recent memo from Attorney General Michael Delaney about the August 2011 Federal Circuit Court of Appeals Glik decision, which explained that citizens have a right to video and audio record public officials when they are working, further showcases the need for the Legislative Branch to take back its authority from N.H. courts. The state courts are currently violating the Glik decision with Superior Court Rule 78, which restricts video and audio recording in the court room, and they have arrested several citizens on contempt charges for violating this rule. By adopting CACR 26, the Legislature would be able to take corrective action and ensure that the courts allow video and audio recording of their proceedings, which will ensure accountability to the people.

“We’ve seen judges write orders that directly violate the constitution’s freedom-of-speech, freedom-of-the-press or right-to-bear-arms provisions, and because of Part 2, Article 73-a of the constitution, those orders have the full ‘force and effect of law’ and put innocent people in jail,” said State Rep. George Lambert, R-Hills. 27. “I want to see us return to the New Hampshire I learned about in school, where judges make decisions that protect the rights of people based on the clear language of the state constitution. Passing CACR 26 is necessary to help restore the constitution’s original meaning so the Legislature can hold the courts in check.”

The N.H. House passed CACR 26 last week, and now the language moves on to the Senate. If adopted by the People, CACR 26 would restore the Legislature’s full authority to control law-making in New Hampshire and restore Legislative authority over the administrative rule-making of the Judicial Branch in a system similar to RSA 541-A, which governs the rule-making ability of the Executive Branch.

Specifically, the amendment would repeal Part 2, Article 73-a of the N.H. Constitution, which the courts have used in many cases since the article’s enactment in 1978 to protect judges’ assumed authority within the courtroom and beyond to advance rules that have the “force and effect of law.” Because 73-a makes the Chief Justice the “administrative head of all the courts,” there is concern that the Supreme Court can interpret the article as authorization to control the Legislature, which is also known as the “General Court.” CACR 26 would help restore the separation of powers required by Part 1, Article 37 of the N.H. Constitution.

Former Police Officer Bradley Jardis of Dover, N.H., is now acting as Attorney-in-Fact for Jason Talley of Keene, N.H., a journalist who was arrested for wearing a camera on his belt into a courtroom after a judge issued rules under Article 73-a that said no cameras carried by members of the public were allowed into the building. Talley argues that he was carrying the camera as part of his Part 1, Article 22 N.H. Constitutional right to the freedom of the press, a freedom that was recently upheld by the August 2011 Glik decision in the First Federal Circuit Court of Appeals. Yet, because the New Hampshire rules on cameras have the apparent “force and effect of law” under Article 73-a, Talley was arrested on charges of contempt, among other charges. The trial is scheduled for later this month.

In the meantime, Jardis has attempted to spread the word across the state about the Glik decision, which police departments and New Hampshire courts are routinely violating. In one recent videotaped situation, Jardis helped educate Hudson Police officers about the decision. His efforts have been so successful, Attorney General Michael Delaney sent a memo to all of the state’s County Attorneys and Law Enforcement Agencies alerting them to the implications of the Glik decision.

Jardis isn’t stopping with the apparent abuse inherent in Talley’s case, however. He noted how the court rules regarding cameras that led to Mr. Talley’s arrest surfaced just three days after Keene District Court Judge Edward Burke was filmed on tape asking a Bailiff to arrest Adam Mueller of Keene for threatening him. Mr. Mueller spent two days in jail as a result of Burke’s accusation under RSA 640:3(b), Improper Influence. The problem with Burke’s assertion is that Mueller’s videotape shows the videographer simply asking the judge questions. On the video, Mueller politely asks Judge Burke about the judge’s decision to jail Beau Davis of Keene for five days on a contempt charge for simply refusing to remove his hat in Burke’s courtroom (view the separate video about the hat incident). Mueller is heard asking on the video, “Do you think people want to pay for someone to be in jail for five days for wearing a hat? It’s kind of ridiculous to waste taxpayer money on that, don’t you think?”

After his arrest, Mueller attempted to pursue Burke on a charge of False Reports to Law Enforcement under RSA 641:4, I, but that charge was never brought. Mueller says the event is a clear sign of a double standard when it comes to public officials. In his video chronicling the incident, he notes that he has a friend currently serving six months in jail for doing the same thing Burke was filmed doing.

“I typically do not like the activism tactics of some of the people who confront Judge Burke and other officials in the Keene area, but as a former police officer, I find it inexcusable that government officials think they can get away with treating people so poorly simply because they are politically unpopular or annoying,” Jardis said. “I am willing to stake my reputation on this issue because I truly believe it is the right thing to do. After seeing this, it’s definitely time to repeal 73-a and rebalance government authority so it protects the rights of the People.”

Rep. J.R. Hoell, R-Merrimack 13, who has been involved with Jardis’s latest efforts to call attention to judicial abuse, noted the recent action of Judge Timothy Vaughan in Grafton Superior Court in December. At the time, Judge Vaughan issued a restraining order against Bradley Jardis and Tommy Mozingo, and anyone associated with them, prohibiting them from lawfully carrying weapons onto any campus of the University System of New Hampshire under penalty of contempt. The judge also ordered Jardis and Mozingo to post a copy of the restraining order on a specific Web site, a violation of their freedom of speech.

“With 73-a in place, judges are assuming unbridled powers to order people to do practically anything they want them to do, and they are jailing many peaceful dissenters,” Hoell said. “This is a clear sign that the constitution needs amendment to fix this. At the same time, if we cannot amend the constitution, it may be time for the House to introduce charges of impeachment. It is clear to me that some judges are abusing the authority delegated to them, and their abuses include but are not limited to corruption, malpractice and maladministration.”