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Entries in NH Constitution (12)


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.”


NHDP - House Speaker Votes to Give Himself Power to Jail NH Citizens

Concord, NH - During the debate on the HB655 last week, House Republicans offered an amendment that would give the Republican House Speaker Bill O'Brien subpoena power and the ability to throw New Hampshire citizens in jail for five days.  While the amendment was voted down 205 to 136, Speaker O'Brien cast just his 4th roll call vote of the entire year in favor of the overreaching amendment.


"The House Republican agenda has gone from morally reprehensible, to fiscally irresponsible, and now back again," said Harrell Kirstein press secretary for the New Hampshire Democratic Party. "Even with bills that would repeal kindergarten and the state budget that has killed over 1,500 jobs, giving Speaker O'Brien the unilateral power to subpoena and imprison law abiding New Hampshire citizens might be the most reckless idea from this out of touch bunch yet."


Testimony from the floor made clear that the New Hampshire Constitution gives the power to issue and enforce subpoenas to the New Hampshire House of Representatives and Senate not to the presiding officers of either body. Additionally, New Hampshire RSA 516:7 outlines the penalty for "neglecting or refusing to appear" at the request of a subpoena "shall be guilty of a violation, and may be ordered to pay costs." It makes no mention of an individual being ordered to spend any time in prison.


Video of the debate over the reckless amendment on the House floor can be found here. It begins at the 3:18:00 mark. The full text of the amendment to HB 655 can be found below. Speaker O'Brien's roll call votes can he found here.



Amendment to HB 655


Proposed by the Committee on Ways and Means - R


Amend section 3 of the bill by replacing paragraph II with the following:


            II.  The committee shall have the same investigatory powers as the general court. The committee may take evidence under oath, issue subpoenas duces tecum for records, and issue subpoenas to compel testimony.  A person shall have 5 business days to respond to any subpoena issued in accordance with this section.  Upon approval of the speaker of the house of representatives and the president of the senate, any person who fails to respond within the 5-day period may be fined up to $10,000 per day and may be subject to 5 days imprisonment.


NHDP - ICYMI: It's the People's House; Don't Shut Them Out 

Concord, NH - In case you missed it: Republican House Speaker Bill O'Brien was called out in today's Concord Monitor for shutting New Hampshire citizens out of the State House, while he passed a reckless budget that has since killed over a thousand Granite State jobs. In response to O'Brien's unconstitutional action, a group of concerned citizens filed a lawsuit and took him to court.


Last week, the House Republican Legal Counsel tried to have the case dismissed. He and O'Brien made the "far-fetched" argument that because the Constitution was written before the State House was build, its mandate that "The doors of the galleries . . . shall be kept open" is not relevant to this situation. Further O'Brien's lawyer argued that the gallery could be turned into a "cafeteria" or "WiFi lounge" at whim.


"O'Brien's complete lack of respect for the people of New Hampshire, their Constitution, and their State House couldn't be more obvious," said Harrell Kirstein, press secretary for the New Hampshire Democratic Party. "Passing his reckless budget behind closed doors may have been the best strategy at the time, but that doesn't make it right and hasn't stopped it from killing hundreds of New Hampshire jobs."


The full text of the editorial is below.  


Concord Monitor: It's the people's House; don't shut them out

August 16, 2011

Back in March, when New Hampshire House Speaker Bill O'Brien locked the public out of the gallery above Representatives Hall, it seemed like an overreaction to a difficult situation.


The House was debating budget cuts and measures to curtail collective bargaining by unions. There were thousands of protesters outside the building and hecklers in the gallery. O'Brien was trying to maintain decorum. Rather than just toss out the noise-makers, he shut off all public access to the gallery.


In the heat of the moment, it was an unfortunate decision. But all these months later, for O'Brien to persevere in a court fight to establish his right to shut the public out whenever he wants is downright chilling.


O'Brien, through attorney Ed Mosca, recently responded to a lawsuit accusing him of acting unconstitutionally that day. In fact, O'Brien argues, he has the authority to lock the public out of legislative sessions whenever he chooses.


State representatives, let us remember, work for the people who sent them to Concord. The House and its gallery belong to the people - and those people have a right to check up on their elected officials. State government is supposed to operate in public. Indeed, the New Hampshire Constitution itself demands that "The doors of the galleries . . . shall be kept open to all persons who behave decently." To shut the public out offends the very basis of our democracy.


O'Brien's arguments to the contrary strike us as exotic and far-fetched: The particular gallery in question wasn't built at the time of the Constitution - and an 18th-century dictionary doesn't recognize "gallery" to mean the Representatives Hall balcony as it exists today. He also argues that the presence of journalists and the willingness of House leaders to "live-stream" their proceedings via internet negates the need for the public to actually sit in the gallery and watch.


None of that is a substitute for being there: To watch your own state legislators in action, to see whom they're kibitzing with, who's trying to twist their arms, whether they're making up their own minds or doing what their leaders instruct, whether they're listening to arguments on the floor or playing hooky during the debate - all of this important and hard to figure out from afar.


Even if a judge finds merit in the speaker's case, we urge O'Brien to think twice. Win or lose, he is setting a terrible precedent.


Transparency in government is critical - particularly in a state which touts its informed and politically active citizenry as a model for the rest of the nation.


At the time of the fracas, state lawmakers voted 217-146 to uphold O'Brien's decision to keep the gallery closed. They no doubt thought they were siding with law and order over mayhem. But the decision that day went too far. We urge them to prevail upon their leader to drop the argument and return to the rules that have governed the House for generations: As long as they do not interrupt the proceedings on the floor, visitors of all sorts are welcome in the gallery. That is a tradition to be cherished, not trampled on.


NHDP - The Real Radical Republican Agenda 

Intimidation, Trampling on Rights, Tossing Aside Transparency, Criminal Activity, Guns, and Wasting Taxpayer Dollars


Concord - Today, House Republicans released their "legislative agenda" for 2011.  But the first two weeks of the legislative session have already told New Hampshire voters everything they need to know about House Republican priorities.  They have embarked on a campaign of intimidation, trampling on rights, tossing aside transparency, criminal activity, guns, and wasting taxpayer dollars.


"The House Republican's press conference today was nothing but a song and dance routine to divert attention away from their reckless policies over the past several weeks," said Harrell Kirstein, press secretary for the New Hampshire Democratic Party.  "Not only did the Republican Majority leader fail to mention job creation in his top five legislative goals, but he refused to give any specific legislative proposals.  Apparently creating New Hampshire jobs simply isn't a priority for House Republicans this year."


Below is an outline of the real Republican agenda for 2011.


Intimidation - House Republicans embarked on an Un-Constitutional power grab, trying to oust the democratically elected Representative of Manchester's Ward Three, Mike Brunelle.  The Republican Majority Leader said that Brunelle introducing bills to raise the minimum wage, give tax credits to small business, and protect jobs at the Portsmouth Naval Shipyard, were grounds for removal because they were, "Democratic Initiatives." The Union Leader said, "The hypocrisy of this move is exceeded only by its imbecility."


Trampling of First Amendment Rights - Republican Chairman of the Health, Human Services and Elderly Affairs Committee John Reagan, silenced all debate over a bill to study the impact of Bed Bugs.  Never before has a Committee Chair ended the public's right testify for or against a bill entirely.  Reagan defended his action saying, "I just didn't want to spend any more time on it."  The Concord Monitor wrote that it was just a part of the House Republicans' "particularly troubling start to the 2011 session."

Lack of Transparency - Speaker O'Brien is making it harder for the public to track a bill's progress through the House.  Republican leadership is going to end the practice of giving public notice of any bill hearings in Executive Session, hiding the dates, times and locations of bill hearings from New Hampshire citizens.

Criminal Activity - Rep. Jim Coffey stole official personnel files from the New Ipswich Town Hall.  Rather than make any move to reprimand Rep. Coffey, House Republican leadership put him on the House Municipal and County Government - the committee that works with and oversees the very people he stole from.


Guns in the State House - Republican House Leadership's first action was to overturn a ban on weapons in the State House, including 40-year old prohibition on carrying guns on the floor of the House Chamber. The reckless action has already prompted some school boards to reconsider their policies on elementary school field trips to the State House to teach children about state government. The Concord Monitor said, "The Republican majority has chosen a bizarre start to its takeover of the Legislature."


Ending Education - In addition to a bill filed by a Republican Representative that would end all New Hampshire education funding and replace it with a tax rebate, the Vice Chair of the Education Committee announced his own far right wing ideology would get consideration over what is best for Granite State children.  He announced opposition to a Best Practices education initiative that has been adopted in 43 other states, simply because he incorrectly assumed the program came from the Department of Education.

Wasting Taxpayer Time and Money - Before the session even began Speaker Bill O'Brien announced creation of two new standing committees in the House, Constitutional and Statutory Recodification, and Petitions and for Redress and Grievances.  While neither of the two committees or the more than 30 Representatives assigned to them will be focused on creating jobs or helping the economy, the will take up office and meeting space, wasting taxpayer time and money, and distracting from the serious issues the House should be focused on.  Foster's Daily Democrat wrote, "It is disappointing then that as newbies and veterans to the state Legislature settle in they are wasting time and precious effort promoting bills to reshape the state's social agenda."


Jobs and the Economy - Republican legislative leadership has not focused on the budget, jobs or the economy for the past four years. While they sat on their hands and spread misinformation, Governor Lynch and the legislative Democrats made New Hampshire's economy the second fastest growing in the country. It is not surprising that the public has reacted to Republican announcements of their new found interest with great skepticism.


NHDP - Former Chair Kathy Sullivan on the Actions of the House Subcommittee on Elections

Concord - Former New Hampshire Democratic Party Chair Kathy Sullivan released the following statement on the actions of the House Subcommittee on Elections today.

"It has become abundantly clear that Speaker O'Brien and his leadership now recognize that the reckless political vendetta they embarked on against Rep. Michael Brunelle was a mistake, both under the law and as a political strategy. Rather than admit their mistake, however, they are now going to engage in a charade to make it look like they care about the meaning of the New Hampshire Constitution. If they were interested in a fair process and the meaning of the Constitution, they would have sought advice through the appropriate process before putting Rep. Brunelle through this very public, ham-fisted act of political bullying. This is like arresting someone, and keeping him in a cell, until they can figure out a charge. That is not appropriate under our system of government.

"As Speaker, when Bill O'Brien hears of a charge against any member of the House, whatever their party, he has an obligation to determine whether there is a basis for the charge. He did not do so. Instead, he told Rep. Greazzo to go ahead and accuse Rep. Brunelle of a constitutional offense even thouigh O'Brien apparently had no idea of the meaning of the constitutional provision in question.   He allowed Rep. Greazzo to smear Rep. Brunelle's good name, and then tried to capitalize on that smear for political gain when he allowed Majority Leader Bettencourt to send out a press release while the vote was being taken.  This was a gross abuse of power by the Speaker, and that abuse continues.  Rep. Brunelle is left in limbo, under a cloud, while Representatives  O'Brien,  Bettencourt and Mirski try to educate themselves on something that they should have known before this matter ever was allowed to proceed to the House.

"Even worse, Republican leadership now is compounding their smear of Rep. Brunelle with attacks on other state representatives. Yesterday, Rep. Ken Wyler, chairman of the House Finance Committee, said that the Democratic representatives who objected to the actions of the leadership suffer from "mental illness." It was not enough to act in an unconstitutional manner.  Now they are resorting to juvenile name calling and insults against colleagues who stand up to what the Union Leader called a sleazy, sophomoric trick.  Speaker O'Brien needs to show leadership and bring this whole fiasco to an end, and start engaging in the work of the people of New Hampshire."