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Bar News - March 18, 2011

Judge Kelly: Impeachment Probe Would Undermine NH Justice System

The following is an excerpt of the testimony provided by Hon. Edwin W. Kelly, Administrative Judge of the District Court and the Family Division at a Feb. 22 hearing of the NH House Judiciary Committee. He was commenting on HR 7, which directed the committee to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court.

UPDATE: A floor vote by the NH House was scheduled for March 15 on HR 7 which directs the House Judiciary Committee to " investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court." The Committee voted 10-5 earlier this month to send the bill to the full House for consideration. Check the bill's status.

Mr. Chairman and members of the committee, I appreciate the opportunity to appear before you today to speak in opposition to HR 7.

I am here with great respect and reverence for the role this committee and this legislature is being asked to assume in what I believe is probably the most serious action this body can be asked to take. And I am mindful that this hearing today is not about whether Marital Master Phil Cross should be impeached but, rather, whether this committee should essentially advise the House of Representatives to authorize a full investigation.

I feel certain that some of you may believe that this is only a small step to take and that there is virtually no harm in at least investigating the facts raised by the resolution. I want you to know that it is my strongly-held belief that the action you are being asked to take today, would have consequences every bit as momentous as the potential result, an impeachment hearing. The resolution before you today involves one marital master, but, if it moves forward, the long-term impact has the potential to undermine our justice system and, I believe, violate basic constitutional principles that are at the core of our democracy, principles that all of us, judges and legislators, have pledged to uphold.

In our state and national history, the awesome power of the House to impeach and the Senate to convict a public official of an impeachable offense, has been used exceedingly sparingly. In fact, since 1790 it has been used only twice in New Hampshire. With that in mind, and because of the significant constitutional implications of this action, I urge each of you not only to exercise great restraint but also ask you to adopt, formally as a committee, and personally in each of your own minds and hearts, a standard by which you make this decision.

Before voting in favor of a full investigation, I believe this committee should make a conscious finding that the allegations in this resolution would, if proven, constitute impeachable offenses and that this rarely-used action is not designed to take the place of the right of our citizens, when they disagree with a judge’s order, to have their appeals heard by the Supreme Court as our constitution provides.

I respectfully suggest that if you believe that the allegations, as set forth in this resolution, are simply complaints about the process that was utilized in the context of matters properly before the courts or that the allegations are essentially based on a disagreement or dissatisfaction with a decision a master, a judge or the Supreme Court made, then to forward this case for further investigation would be a great injustice.

More importantly, however, it would threaten the constitutional admonishment that the legislative, executive and judicial branches, "…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 amity." Those words, of course, are taken from the Separation of Powers provision of our NH Constitution, found at Part 1, Article 37th, and have been in full force and effect since its adoption in 1784.

Mr. Chairman, I must say that I had a very difficult time determining the specifics of the allegations from a reading of the resolution; however, one thing is very clear and that is that each of the four allegations is related to a decision the master made in the exercise of his judicial discretion within the context of cases that were properly before him.

[Judge Kelly provides a specific review of the nature of the allegations in HR7, concluding that the allegations were reviewed during the appellate process, are baseless or without specificity. Read the full text of Judge Kelly’s testimony.]

If you decide to launch a full investigation in this case based on these allegations, is it your intention that every litigant around the state who is unhappy with a decision of a judge or master will be entitled to come to this body to seek and receive a full investigation of the judge or master who made that decision? Where would you draw the line? Keep in mind that every year more than 220,000 cases are filed in our courts.

Is the legislature to become a 400 member appellate court in these cases? Is this how the framers of our constitution expected our system of government to work? The same framers who wrote so clearly about the separation of powers and the need, in our democracy, for an independent judiciary?

Mr. Chairman and members of the committee, I am grateful for your attention and want to raise just one final, but very significant, point. Last session a Bill of Address on these issues against this marital master was presented to this House. It was fully investigated by a joint committee of the House and Senate and this House of Representatives rejected the bill by a vote of 170-127. That was not even one year ago.

Under our constitution, a Bill of Address may be appropriate in cases where there, "…shall not be a cause which is a sufficient ground for impeachment." In other words, an impeachment proceeding requires even higher standards than the process for Bills of Address. If the House did not believe these very same facts rose to the level of a Bill of Address, I respectfully ask how this committee can justify moving forward with these same facts as part of an impeachment process.

And, maybe more importantly, where does this end? Can the newly constituted membership of the next biennial session of this House bring the same facts forward again?

I conclude where I began, and that is with a plea that you consider this first step in this process carefully, deliberately and with restraint and that you consider the implications not only for the proponents of this resolution and for Master Cross but, even more importantly, for our constitutional form of government.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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