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Sunday, December 23, 2012

NH losing it's purpose...

The new legislator mixed with some of the old voted to absolve the Redress of Grievance Committee and while it was just beginning to get its bearings and become as productive as once was; it is questionable if it will continue. The committee vote was 6-4..

Pope John Paul II once said "When freedom does not have a purpose, when it does not wish to know anything about the rule of law engraved in the hearts of men and women, when it does not listen to the voice of conscience, it turns against humanity and society."   

It appears that the government of NH has no clear purpose and is turning away from the people it is suppose to serve. 

Wednesday, December 19, 2012

Redress of Grievance in Jeopardy LOB Room 301 2 pm 12/20/12

Action Alert: 

NH House Rules committee is intending to remove the Redress of Grievances Committee from the Rules of the House on Thursday at 2:00 pm - If the public wants to show concern over the loss, they should have a big presence. Room 301 keep it crowded so we can all get there!

If at all possible please to try to be there, the model other states are following is in jeopardy;Maybe Horrigan will actually live up to his own ramblings and vote to keep the redress of grievance committee as he stated here, but of course he didn't.

2013 Petitions to the New Hampshire House

Additional commentary by Rep. Timothy Horrigan
last revised: December 2012
See Also:
It probably seems a little silly to be listing the 2013 House Petitions, since there will almost certainly be no House Petitions and Redress Committee in 2013. The previous Speaker Bill O'Brien was committed to keeping the committee in place, even after House Counsel Ed Mosca became one of the many villains of the highly memorable "Youssef Petition." O'Brien did some work on redoing the committee's rules for the upcoming session. (He didn't include me or any other Democrats in that work, apparently since he considered us so insignificant that there was no need to even tell us what he was up to. I only found out because he told a reporter, and she passed the news on to me.)
O'Brien lost the Speakership: he narrowly held on to his seat, but over 100 of his fellow Republicans were not so lucky. He ended up not even being the Minority Leader. The new Speaker Terie Norelli has her expressed her opposition in the past to the creation— and continuance— of the committee, although in 2009 she helped create a process whereby petitions could be formally filed. There is only the most speculative possibility of the committee continuing to exist past January 2, 2013.
The 2013 session began on the first Wednesday in December, i.e., December 5, 2012. The main order of business for the House on December 5th was to elect a new Speaker, along with the House Clerk and the House Sergeant-at-Arms. The Senate simultaneously elected its President as well as its own Clerk and Sergeant-at-Arms. Finally, the House and Senate met in joint convention (not to be confused with Gus Breton's "joint conomtion") to elect the Secretary of State and the State Treasurer.
The House's standing committees are specified in House Rule 30, which currently has 23 subparagraphs lettered a through w. In 2012, there were 22 standing committees plus the Rules Committee. An amendment to Rule 30 is needed to create or abolish one or more committees. It would be bad form to bring a rules change to the floor of the full House without having a Rules Committee hearing first.
The Rules Committee won't have any members until the Speaker appoints some (probably herself, 4 other leading Democrats, the minority caucus leader and 3 other leading Republicans.) House Calendar #2, issued on Thursday, December 13, 2012 contains the following notice of a December 20, 2012 Rules Committee hearing:
2:00 p.m. Regular meeting.
That's all it says: "Regular meeting." The newly appointed committee will presumably hear testimony regarding the proposed abolishment of the Redress & Grievances and Constitutional Review & Statutory Recodification Committee. I would like to keep the Redress Committee in existence, even though many mistakes were made in 2011-2012. I am neutral about the Constitutional Review Committee, which proved to be useless but harmless. The big issue of the day will be guns in the State House. Right now there are only minimal restrictions on guns in the State House, except for the Senate chamber, a short hallway outside the Senate chamber, and the Governor's office, where they are banned. This will be an especially difficult issue this time around because of the recent spate of mass shootings.
I don't know how I will vote, since I don't know how many amendments will be presented on (or shortly after) January 2, 2013 to the full House nor do I know what form the amendment(s) will take.
In any case, several reps have submitted Legislative Services Requests ("LSR's") for several petitions during the September 2012 and November 2012 filing windows. Two of them were filed by Rep. Robert Luther, the man who introduced the inimitable Joshua Youssef to the Granite State political scene

Law Blogs that are Fun? What? Really?

Superheroes, supervillains, and the law
this is so wicked funny and actually right on point

To find all the top blogs & vote on your favorite by 12/21/12 go to the 

Who Knew Attorney's could have a sense of humor ... 
in NH we might consider that this lawyer can have a sense of humor, at least she is almost always in tune with whats going on in the court system 

Tuesday, December 18, 2012

NH Governor Hassan - Attacks Parents

Justice Sandra Day O'Connor recognized in her opinion that States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their "strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely."


Tuesday, December 18, 2012

A Note from Karen  


Dear Denise-Marie,

Maggie Hassan is targeting parents and their right to bring up their children and be involved in their lives and decisions. Governor-elect Hassan wants to prevent less fortunate parents from choosing a private school that would benefit their child(ren).

"Gov.-elect Maggie Hassan said she favored rescinding the reduction to the cigarette tax and revising the new voter ID law. She said she would reverse the parental notification law for abortion and restore state funding to the university system in exchange for the universities freezing tuition for two years. She also opposes the newly passed education tax credit that allows businesses to claim a tax credit if they contribute scholarship money for private school tuition and home-school expenses."
Concord Monitor, November 8, 2012

Don't let Governor-elect Hassan take away your rights as parents to assist your daughter in making a major medical decision that could affect her life physically as well as mentally, or that may put her at risk for suicide or depression.

After a long fought battle the NH Legislature under the leadership of Speaker William O'Brien restored our right as parents to be notified when our daughter is making the decision to end the life of the child within her.

Even Justice Sandra Day O'Connor recognized in her opinion that States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their "strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely."

  1. Pray for our leaders that they will have the wisdom to stop the attack on NH's parents.
  2. Contact your State Senator and House of Representatives. Alert them to the proposed agenda of the Democrats and Governor-elect Hassan.
  3. Ask them to protect your rights as parents. Ask them to safeguard your daughters by protecting your rights because of your strong and legitimate interests in the welfare of your daughter at a time when her immaturity, experience and lack of judgment may sometimes impair her ability to exercise her own rights wisely.
  4. Write a letter to the editor to support your point of view. 
To find who is representing you in the State Senate and House of Representatives, click HERE, then enter the name of your town or city ward.
Be in prayer.  Be informed.  Be involved.  

Blessings for your season of reflection and preparation,

Sunday, December 16, 2012

Remembering the victims of 12/14/12

It's time for America to confront the issues that it faces, if other countries with stronger gun laws show a significant reduction in crimes, that is something we must consider. Stronger laws on the drugs that are given to our children. The Judicial Branch needs to access how they handle children lives in divorce and realize they all need access to both parents, and we all need to remove "apathy" when it comes to any of our children and strive to spend one on one time with each of them as parents, teachers, a community and we all need to have no tolerance for bullies.

What happened on 12/14/12 and too many times before is a message; it is a message that young people are not getting what they need, they do not know how to live happily ever after.  And confronting evil is something our children should never have to face, we need to ensure their innocence for as long as possible so that they can grown their imaginations to be productive members of and enhance our society.  As a nation of great differences we put them aside and come together in tragedy, but how about every other day of the year?  We should be mobilizing our resources in a systematic and organized way to tackle the grave issues that confront us as a nation every day.

Mason Cooley once said: "Compassion brings us to a stop, and for a moment we rise above ourselves."

Extend that moment and think of the unlived lives the Connecticut State Police released:

Charlotte Bacon, 6
Daniel Barden, 7
Rachel Davino, 29
Olivia Engel, 6
Josephine Gay, 7
Ana Marquez-Greene, 6
Dylan Hockley, 6
Dawn Hochsprung, 47
Madeleine Hsu, 6
Catherine Hubbard, 6
Chase Kowalski, 7
Jesse Lewis, 6
James Mattioli, 6
Grace McDonnell, 7
Anne Marie Murphy, 52
Emilie Parker, 6
Jack Pinto, 6
Noah Pozner, 6
Caroline Previdi, 6
Jessica Rekos, 6
Avielle Richman, 6
Lauren Rousseau, 30
Mary Sherlach, 56
Victoria Soto, 27
Benjamin Wheeler, 6
Allison Wyatt, 6

"Great occasions do not make heroes or cowards; they simply unveil them to the eyes of men. Silently and imperceptibly, as we wake or sleep, we grow strong or weak; and at last some crisis shows what we have become."  Brooke Foss Westcott

Thank you to the teachers and staff who put aside their own needs to protect so many, there are no words for the wicked and no comprehension for  the things that they do.

We do have to ask ourselves what drove this young person Adam, to such a horrendous act and we have to make sure that schools and community's are giving "every child" the tools they need to succeed so that this never happens again.

Saturday, December 8, 2012

NH McCarthy ruling - paralyze's domestic violence victims

This article written by  Jennifer Chase when she was a third-year student at Franklin Pierce Law Center; depicts what Felix Frankfurter may have been referring to when he said "Judicial judgment must take deep account of the day before yesterday in order that yesterday may not paralyze today." because this ruling paralyze's domestic violence victims to day.  

Bar Journal - Summer 2006 for her references to case law and her sources click on the link below and you will find them at the bottom of her article; this is extremely well reasoned and points out flaws within the NH Judicial System. 

McCarthy v. Wheeler: Double Jeopardy for Domestic Violence Victims?


I. Introduction

        A single mother is threatened with harm or physically hurt one more time by the father of her child. She has endured the abuse for years, but this time because he is no longer living with them, and she finally summons the courage to call the police.  She is unfamiliar with the law and finds out that to get immediate protection she needs to obtain a temporary protective order and then file a domestic violence petition.1  At the court house, fills out the necessary paperwork and is granted a temporary protective order.2 Once she has the order she feels safer, because now, maybe, the abuse will finally end. 
        Next, she finds out she has to go to court and have a hearing.3  She knows this is going to make the father angry. But she has the temporary order, so she knows the father will get into trouble if he violates it and she thinks this will deter him from harming or threatening her.  A hearing date is scheduled, but there are unanticipated continuances.  Then, and for reasons the victim does not understand, the order is dismissed.  She has no protection, and to obtain the protection of a protective order, she has to start the process over again.  Since the father is already angry that she has involved the court in the first place, does she dare go down that road again?  If the court could not offer her protection the first time around, will pursuing the same course protect her, or further provoke the father? 
        Today, domestic violence victims are particularly vulnerable, especially if they are neither represented by counsel nor familiar with the law.  As a result of the Supreme Court’s recent decision inMcCarthy v. Wheeler, the courts have no choice but to leave domestic violence victims unprotected if, through no fault of the alleged victim, the court misses a statutory hearing deadline. In McCarthy, the Supreme Court had to balance the safety interests of the victim against the due process rights of the defendant.4  The Court resolved the balance in favor of the defendant, holding that when the district court failed to schedule hearings within RSA 173-B’s statutorily prescribed time frames, the victim’s domestic violence petition, restraining the defendant from having contact with her, had to be dismissed.5 
        In this article I intend to first review the history behind current domestic violence laws, including New Hampshire’s, and explain the policy behind the law and how it was intended to operate.  Next I will discuss the McCarthy majority and dissenting opinions and will conclude that the majority decision:  1) is legally flawed and inconsistent with the policy behind, and purpose of, the domestic violence statute; 2) failed to consider other remedies short of dismissal; and 3) is inconsistent with State v. Kidder, a recent decision in which the Court upheld the rights of a domestic violence victim in the face of a due process-based challenge by her alleged abuser.6  Finally, I will suggest that the legislature, in response toMcCarthy, amend RSA 173-B to reflect the Domestic Violence Case Protocols’ allowance for an extension when a continuance has been granted, and require dismissal only upon a showing of prejudice by the accused which outweighs the paramount purpose of the statute, protection of the victim. 

II.   Addressing the Issue
of Domestic Violence
        In the United States, violence against women has reached epidemic proportions.7 The National Clearinghouse on Domestic Violence reports that in the United States men batter three to four million women a year.8  Congress allocated substantial federal resources and remedies to address the epidemic in its criminal context, through the Violence Against Women Act of 1994 (VAWA).9  VAWA expired in 2005, and on January 5, 2006 President Bush signed VAWA 2005 Reauthorization into law.10  VAWA 2005 enhances essential programs and policies in the criminal justice and legal systems and “reaffirms the commitment to reform systems that affect adult and youth victims of domestic violence, sexual assault and stalking.”11 
        Despite the federalization of domestic violence, today more than 95 percent of domestic violence prosecutions take place in state courts.12 During the past two decades, legislatures, courts and state prosecutors, have worked to develop and “improve the criminal justice system’s response to domestic violence,” through numerous reforms and initiatives.13 
        Among these measures are domestic violence training for police officers, prosecutors and judges.14 Police departments, prosecutor’s offices, probation departments and local courts have created special domestic violence units.15 Mandatory arrest policies in domestic violence cases have been established.16  Emergency ex parte restraining orders are available, and criminal sanctions for violating restraining orders have been created.17 Further, law enforcement now recognizes domestic violence crimes such as stalking; legislation has mandated stiffer sentences in some domestic violence cases; and there are prosecution “no drop” policies.18 

      A. NH’s Response:  RSA 173-B
        In every case involving domestic violence there are two overarching interests: “protecting the victim from further abuse by the accused and empowering the victim to take back control over his or her life.”19 In New Hampshire, RSA 173-B:1 provides that protection from domestic violence is afforded to a broad range of persons, including family or household members and current or former sexual or intimate partners of the defendant.20 Since its inception in 1979, on three different occasions the legislature has amended the section defining who is covered by RSA 173-B, and each amendment has broadened the statute’s reach.21 
        RSA 173-B serves the state’s public policy interest in preventing and deterring domestic violence by providing immediate and effective judicial relief to the victims of domestic violence.22 The provisions of 173-B were crafted to afford victims immediate and easy access to the courts, including a provision allowing victims to forgo a filing fee and appear pro se.23 Temporary relief is available through the issuance of orders to protect the victim without notice to the accused, and such orders may be issued by telephone or fax.24  At the court’s discretion, the temporary orders may: 1) restrain the defendant from abusing the victim, 2) restrain the defendant from entering the premises and curtilage of the victim’s residence, and, 3) restrict or regulate visitation.25 
        Thus, the statute purports to guarantee the victim judicially enforced law enforcement protection until the hearing date. Violation of the temporary order by the accused results in his automatic arrest.26 The temporary order, served on the defendant also provides notice of a hearing,27 and states that after the hearing the court may issue a final order.28 According to RSA 173-B4, I, when temporary orders are made ex parte, the party against whom the order is issued may request a hearing in writing, and that hearing shall be held no less than three and no later than five days after the request is received by the clerk.29 When a domestic violence petition is filed, RSA 173-B:3, VII states the court “shall hold a hearing within 30 days of the filing of a petition under this section or within 10 days of service of process upon the defendant, whichever occurs later.”30 In the aftermath of McCarthy, however, the victim can no longer count on this protection when the court fails to schedule hearings within these deadlines.

III. McCarthy v. Wheeler
      On August 12, 2004, the plaintiff, Wendy L. McCarthy and the defendant, Robert E. Wheeler, were on the phone discussing their son.31  During the call, Wheeler threatened McCarthy with physical harm.32  With the aid of the Enfield Police Department, McCarthy obtained an emergency protective order via telephone through the Lebanon District Court, and the following day, August 13th, McCarthy filed a domestic violence petition.33
        The Family Division of the Lebanon District Court granted an ex parte temporary restraining order.34 The case was transferred to the Family Division at Plymouth because of a conflict with Lebanon, and a final hearing was scheduled for August 26th.35  At that hearing the judge informed both parties that he had to recuse himself from the case because he had previously represented the defendant.36  The case was to be rescheduled at the court’s earliest convenience.37 
        On August 30th the court received the defendant’s motion for an immediate hearing, claiming the August 13th visitation order was “unjustified” and “overbroad.”38  A hearing was scheduled on issues of visitation and property, for September 9th, but because the plaintiff’s counsel had a scheduling conflict, the hearing was rescheduled for September 16th.39  At the defendant’s request, however, a full hearing on the merits of the domestic violence petition was postponed until October 12th40 based on the defendant’s [Wheeler’s] request for a lengthier hearing.41 At the October 12th hearing, Wheeler moved to dismiss, asserting that the court failed to hold a hearing within the time limits prescribed by RSA 173-B:3, VII and RSA 173-B:4, I.42

      A. The Family Division’s Decision
        The court denied the motion to dismiss because it held that the delay was not unreasonable.43  The court concluded that although the first hearing where visitation and property issues were addressed occurred on September 16th, exceeding by three days the 30 day time limit mandated by 173-B:3, VII for conducting a final hearing, the delay was not unreasonable.44  The court noted that Wheeler’s liberty and property interests were protected and, where the final hearing date was scheduled within two weeks of the date of the temporary order, the hearing could have been held but for the additional delay resulting from the conflict with the judge.45  Finally, the court found that the defendant failed to object to a continuance requested by the plaintiff.46  

        B. The Appeal
        On appeal, Wheeler claimed because the court failed to hold a hearing within the time frames set forth under RSA 173-B:4, I for the temporary orders, and RSA 173-B:3, VII, for the domestic violence petition, the court had to dismiss the domestic violence petition.47 The Supreme Court held that the hearing on the temporary restraining order should have been held within five business days of August 30th when the defendant’s request for an immediate hearing was received, and the hearing on the domestic violence petition should have been held within 30 days of August 13th the date the victim filed the petition.48  The issue the Court addressed was the appropriate remedy when the hearings do not occur within these time frames.49

      C. The Majority’s Analysis
        The McCarthy Court examined the words “shall hold a hearing” in RSA 173-B:3, VII, and “such hearing shall be held,” in RSA 173-B:4, I  and concluded that the word “shall” suggests the legislature intended that the hearings must be held within the time limits prescribed.50   Because the legislature was silent on enforcement of the mandate, the Court was left to identify the proper remedy when a court fails to schedule a timely hearing.51  In doing so, the Court weighed the statute’s purpose against the prejudicial effect of the delay on Wheeler.52 
        The McCarthy Court noted that the legislature intended that the protection and safety interests of victims be balanced against the liberty interests of the defendant.53 Applying this balancing test, theMcCarthy Court first evaluated the import of the defendant’s interest in safeguarding his rights temporarily restricted by the protective order, such as his ability to visit his child.54  The defendant’s interest could, if substantial, outweigh the victim’s.55  The critical point and crux of the McCarthy Court’s analysis was its analogy of the defendant served with a temporary order or a domestic violence petition to a juvenile charged with delinquency.56  Since, in In re Russell, C., under the juvenile statute, when the adjudicatory hearing fails to occur within the statutory time frame the appropriate remedy is dismissal, the McCarthyCourt held the same remedy must apply, where the District Court fails to hold hearings for a temporary Restraining Order, or a Domestic Violence Petition within the time limits established in RSA 173-B.57 
        Since the delays were not deemed to have been caused by the defendant, the McCarthy Court held the only remedy was dismissal.58  The Court held that the victim was not precluded from refiling the domestic petition.59 In response to the plaintiff’s contention that dismissal only served to frustrate the purpose of RSA 173-B, the Court acknowledged that dismissal might result in effectively defeating the goals of the domestic violence statute but the result was consistent with legislative intent and thus, was not “absurd, unjust or illogical.”60 

      D.  The Dissent
        The dissent disagreed with the majority’s analogy of a domestic violence respondent’s liberty interests to those of a juvenile.61  According to the dissent, the domestic violence statute, unlike the juvenile statute in Russell C., is not intended to protect the defendant’s liberty interests.62 The dissent’s conclusion was based on the fact that there is no reference to the defendant’s liberty interests in either the statute’s “statement of purpose or the mandate for liberal construction.” 63
        Rather, the dissent argued that this case is more similar to In re Robyn W., where the statute at issue, RSA 170-C:11, contains a hearing time limit for issuing a disposition in a parental rights termination proceeding after the final hearing.64  Similar to the district court in McCarthy, in Robyn W.,the probate court, through no fault of either party, failed to comply with the statutory time limit.65   TheRobyn W. Court recognized that RSA 170-C:11 addressed the competing interests of providing “a speedy disposition for the sake of child’s welfare and the interest of the parent whose parental rights [might] be terminated.”66  The dissent analogized the parental interest of a speedy disposition to theMcCarthy “defendant’s interest in a speedy disposition of the proceedings.”67   The Robyn W. Court held that although dismissal would vindicate the interest of the parent it would also thwart the statute’s other objectives and lead to an illogical result.68  By analogy, the dissent concluded that dismissal of McCarthy’s petition vindicated Wheeler, but at the expense of the primary purpose of the statute.69
        According to the dissent, the better framework within which to address failure of the court to hold a timely hearing is to follow the reasoning in Robyn W., and treat the “statutory mandate as one directed to this court” in its supervisory function.70  An approach which enforces the statutory time frames, not through dismissal, but through the Supreme Court exercising its supervisory capacity, would better serve and reconcile the various interests of the parties, since the purpose of the statute would not be compromised.71  By considering and reviewing complaints against dilatory judges, the statutory times frames would be enforced by the Court, providing an appropriate remedy when the district or family court failed to act within the statutory time frames.72 Acting in this supervisory capacity, the Court could order prompt action by the family or district court, order that the judge obtain additional judicial help, and “where appropriate initiate judicial disciplinary proceedings.”73 

IV. Analysis
        When the McCarthy decision is measured against the underlying policies and goals of RSA 173-B, it is inconsistent with the statutory scheme and intent of the legislature, since the victim is left unprotected. When viewed in the context of the larger judicial scheme, against statutory time frames for speedy trial claims, and administrative and parole hearings, the result is illogical.  Positioned next to theKidder, where the Kidder Court concluded the victim’s interests were paramount to the defendant’s, theMcCarthy decision is inconsistent. When the decision is considered in the context of the guidelines established in the New Hampshire Domestic Violence Case Protocols, it is anomalous since nowhere is dismissal contemplated.
        The critical moment for McCarthy occurred when the Court determined how it would characterize the defendant’s liberty interest.  Once the Court decided to equate the domestic violence respondent with a juvenile facing delinquency, the result it reached was fixed since the juvenile statute, and the case law interpreting it, mandated dismissal.  This, of course, begs the question of why the Court found the juvenile model so persuasive, especially where the domestic violence statute in no way purports to similarly protect the respondent’s interest.  As the dissent rightly argues, the analogy is flawed, and the resultant dismissal is at the expense of the primary purpose of the domestic violence statute, which is to safeguard the interests of petitioners like Wendy McCarthy.
        Given the obvious lack of similarity between the domestic violence and juvenile statutes, it is unclear why the majority rejected other suitable analytical models, all of which require a showing of actual prejudice to warrant dismissal when there has been a similar breach of statutory time frames.  For example, in addition to Robyn W., the Court has rejected dismissal in speedy trial hearings, administrative hearings, and parole hearings, absent the respondent or defendant demonstrating actual prejudice, when there is a failure to comply with a prescribed time frame.74
      McCarthy is particularly puzzling when examined in the larger context of criminal cases, specifically a speedy trial claim where a defendant is required to demonstrate actual prejudice to succeed on his motion to dismiss.75 The Court has held that when a defendant is unable to demonstrate actual prejudice, his speedy trial claim must fail.76  The criminal defendant, whose liberty interests are superior to all other defendants, must show actual prejudice; yet in McCarthy, the Court required no such showing by the domestic violence defendant whose liberty interests are substantially less than those of the criminal defendant.  The Court presumed prejudice when it held the violation of the time frames was itself prejudicial to the due process rights of the domestic violence defendant.  The criminal defendant’s liberty interests are especially acute: if he is incarcerated while awaiting trial, he has lost all freedom.77 Ironically, the standard the criminal defendant must demonstrate to succeed on a speedy trial claim is substantially higher than the standard the Domestic Violence defendant must show to succeed on his motion to dismiss.
        Aside from the critical flawed analogy to the juvenile statute, the McCarthy decision suffers from other flaws.  First, it gives short shrift to the inconvenience and stress associated with refiling a petition that has been dismissed.  Practically speaking, refiling can be a frustrating, and demoralizing experience.  The pro se victim is forced to take time off from work, and if there are young children involved, bring them to the courthouse, or obtain daycare, proceed to fill out all of the necessary paperwork again, and wait for as long as it takes for a judge to decide on whether to grant the petition.78 Thus, both the victim and the accused must endure a second waiting period of up to 30 days.79  Further, the children must endure the continued disruption of their lives.  As for the represented victim, he or she must incur additional attorney’s fees. 
        The Court’s opinion is also problematic because it is inconsistent with State v. Kidder, a recent case in which the Court vindicated the rights of the domestic violence petitioner in the face of a more serious challenge by the defendant.80  In Kidder, the defendant contacted the victim through his attorney, in violation of a protective order issued under RSA 173-B, I (a)(6).81  The defendant raised due process and liberty concerns.82 Similar to McCarthy, the Court had to balance the rights of a criminal defendant subject to a domestic violence restraining order against the victim’s interest in safety. 
        Ultimately, the Kidder Court subordinated the rights and interests of the defendant to those of the victim, which meant that the defendant, even in the interest of preparing for his criminal trial could not contact the victim without a special court order.83  Where the liberty interests of a criminal defendant exceed and are superior to those of a defendant like Wheeler, the results of these two cases cannot be reconciled.  Had McCarthy been decided using the balancing test applied in Kidder; the result would have favored the victim.84 Ensuring protection of the victim would have been the primary and governing consideration since the statute’s expressly stated policy is to provide judicial relief to the victim and the entire statutory scheme was intended to maintain and protect the safety of domestic violence victims. 
        Another problem with the Court’s analysis stems from consideration of The New Hampshire Domestic Violence Case Protocols.85  Protocol 5-20 of the N.H. District Court Domestic Violence Case Protocols, states: 
If a continuance of the final hearing is granted, the case should be expeditiously rescheduled, but in all cases, within 14 days unless for good cause shown. However, it need not be rescheduled within the statutory time frame. The temporary order should be extended until disposition of the final order.”86
        The judges and legal professionals who developed the Protocols understood there would be circumstances where the thirty day deadline could not be met, and made a provision to allow for a reasonable delay in the final hearing date.  In response to Wheeler’s contention that the final hearing date exceeded the statutory time limit, this case would have fallen squarely within the parameters of the Protocols which allow for a final hearing to be scheduled within 14 days of the grant of a continuance. Under the Protocols, the case would not have been dismissed.
        If the Protocols are a legitimate judicial resource providing guidelines for the District Courts in their management of Domestic Violence cases, Protocol 5-20 permits District Courts to extend the final hearing deadline beyond the statutory time limit, and if good cause is shown, sets no window.  It makes no sense to expend time and resources developing protocols to govern the disposition of domestic violence cases if such protocols have no influence in shaping jurisprudence or policy under RSA 173-B.

V. Remedies by the Court / Legislature
        Based on the foregoing analysis, I recommend that the legislature amend RSA 173-B in response to McCarthy.  Specifically, upon review of the relevant case law and protocols, I recommend that the legislature build into the statutory framework remedies for violations of the hearing time frames which recognize that delays in scheduling hearings may occur.  Those remedies should not punish or potentially endanger a victim who was not responsible for such a delay and who did not expressly or impliedly waive the protections RSA 173-B was designed to provide.  I recommend that the current time frames for hearings under RSA 173-B4, I and173-B3, VII remain as drafted and that the following language be incorporated into the statute:
•     The deadlines may be extended upon motion of either party for good cause shown;
•     In the event of a delay, the court shall reschedule a hearing as soon as is practicable, and shall give the matter high priority in scheduling;
•     A domestic violence petition may only be dismissed, based on delay, if the moving party demonstrates the delay has caused the party actual prejudice;
•     In the event of a delay, the court should incorporate leave for visitation into any temporary order, unless to do so would pose a risk to the safety of the child or another person.

VI. Conclusion
        The judicially enforced protection of domestic violence victims has been significantly eroded by the McCarthy decision because the remedy of dismissal leaves the victim without protection. There are less drastic measures the Court could have employed to remedy the violation of the statutory deadlines.  It has taken society centuries to not only identify, define and understand domestic violence for what it actually is, but also to develop an effective judicial and law enforcement response.  Unfortunately, McCarthy represents a break with current public policy and judicial management of domestic violence proceedings and erodes the carefully crafted protections of RSA 173-B.

It would appear that the Majority in this NH decision acted without vision. Helen Keller once said "the most pathetic person in the world is someone who has sight, but no vision." 

Wednesday, December 5, 2012

NH parents beware of ... Judicial & State Oppression

Galileo Galilei once said "All truths are easy to understand once they are discovered; the point is to discover them." 

However, in NH even if you do discover the truth, the Court's are denying them, ignoring the facts, and disregarding what the US Court’s above them have already decided.   Why would they do this?  Because if you are a parent or pro se, it's highly-unlikely you will be able to afford to go to the 1st Circuit Court of Appeals after they wasted two years of your time reaching an illogical decision. My suggestion is to ignore the NH Supreme Ct. and appeal directly to the 1st Circuit Court of Appeals.  They may recognize that you are not an attorney and really look at the fraud going on in the Judicial System in NH.

Under NH RSA 169-C:27, the State has a right to charge parent's for reimbursement. However, before agreeing to it, under the same paragraph you are entitled to a hearing first, in the case to be explained, the Mother in the matter was not afforded one prior to a NH State Employee, Matt Barrington, asserting that there was and forcing her into an assented to agreement for reimbursement that she couldn't afford, but that she agreed to have her pay attached by the Reimbursement Unit and taken out of her check. This same employee forgot and/or failed to attach her pay in 2009 so, in 2010, when he realized his mistake he took her to court at which point she cross petitioned not to have to pay for his mistake; however, the District Ct. held her in contempt.

The Supreme Ct. has decided, in it's decision for 2012-0455, Denise-Marie McIntosh v. State of NH , that it is  okay for parents to be coerced into signing an assented to agreement as put out by Matt Barrington. They failed to address that in the lower court, Judge Leary, had stayed the attachment following a motion by Matt Barrington by simply stating "denied pending appeal" and recognizing that the mother had filed a De Novo appeal under NH 169-C:28 in the Superior Ct.

However, when the matter came before Judge Garfinkel for a De Novo appeal,  who was completely and literally unfamiliar with NH 169-C matters, he denied the De Novo appeal which would have allowed the parent in the matter to re-litigate and instead upheld a right to a Writ of Certiorari, which as shown in this decision by the NH Supreme Ct. was a complete waste of time and money.

Perhaps the mother did not argue her appeal as eloquently as an Attorney, however the The Pl.[’s] Petition “…"however inartfully pleaded" is to be held to less stringent standards than formal pleadings drafted by lawyers,” see Haines v. Kerner, 404 U.S. 519, 520 (1972). See also Maclin v. Paulson, 627 F.2d 83, 86 (CA7 1980); and French v. Heyne, 547 F.2d 994, 996 (CA7 1976). Obviously, she is not a lawyer just now but a paralegal who does extensive research she clearly pointed out the following:

1. Matt Barrington attached her pay as of 1/7/11 without a court order and after Judge Leary denied his motion for contempt stating "denied pending appeal";

2. Matt Barrington over charged the mother by 298 weeks;

3. Judge Leary recognized the over-charge in his order of 12/10 signifying that the mother was correct and the state was limited to the amount of weeks it could collect under NH RSA 169-C:27 I. (c)

The not so funny and oppressive conclusion is that the order clearly shows the US case law quoted above was completely disregarded by the NH Supreme Ct. and not one of these so called Judges corrected the problems that clearly exist in the final orders:  not Judge Leary on reconsideration or clarification, not Judge Garfinkel who clearly has not fully read this law and now the NH Supreme Ct. through their twisted logic and failure to uphold the laws written by legislators. The first circuit court of appeals is out of reach on this matter for this litigant and the Supreme Ct. itself is out of reach for most parents who as of 7/2011 are no longer afforded an attorney in these matters.

Also, it should be noted that in this matter the Mother was charged for the non-offending father's attorney, who was approved by Judge Bamberger contrary to NH 169-C:8 the mother was never made aware of the chargeable aspect or any of her rights at first contact by CPSW Tracy Roukey, because as she testified on 8/26/11, "it wasn’t the law to notify a parent of their rights it was just a recommendation"; and contrary to NH RSA 169-C who through the civil matter under Denise-Marie McIntosh v. State of NH et al 216-2011-CV-00967 has clearly shown that the orders were procured by fraud, when the father hired a Susan Vonderheide to report to the Ct. what the child in the matter said; records finally fully attained 5 years after the start of the matter showed without question that she purposely and maliciously lied, not only to the court but to the child as well.

Now here is the other twisted part of these combined cases, the Mother filed this Appeal 2012-250 to the Supreme Ct. for Access to her records; they of course denied it here, even though all of these laws & rules state parents are entitled to these records. Moreover, it shows that the NH Supreme Court supports covering for State employees.  In addition, the State failed to enter discovery into the court file as ordered by a Judge Bamberger who never compelled them further to do so and in fact stating he didn't have to.  So why make orders?

The moral is if you fail to provide discovery in a NH Court long enough, like the family court system, you never have to provide it.  Just quote this case, it's all chaos without substantiated reasoning.

Liken the NH Court System to Satan and like Mark Twain once questioned, we should be asking:
"Who prays for Satan? Who, in eighteen centuries, has had the common humanity to pray for the one sinner that needed it most?" All we can do is cross our fingers and hope you never get caught in their tangled web, but the truth needs to be revealed time and time again until those responsible are held accountable for their acts.

Be very aware of the players in this unraveling matter, they are the ones you need to stay away from and keep an eye on; people like Susan Vonderheide who deliberately hurt children and families; people like Matt Barrington, a state employee, who gets a commission and bonus for their recovery efforts, push for your hearing in court. And people like Tracy Roukey, Kris Geno, Tracy Gubbins, and Maggie Bishop who blatantly and without conscience lie to the public they are supposed to serve. Kris Geno does it to get her son out of trouble but others are just a bit arrogant, stupid or angry over their own lacking childhoods and like Hitler and Nashua, NH Division previous supervisor Geraldo Pilarski stated to this reporter in 2010, about the abuses in his office, “things happen but we are here for the Greater Good.”  

Because in the end, the Civil Matter filed against all of these individuals changed in titles to a defendant not even in the case Denise-Marie McIntosh vs. Lori Ayotte-McIntosh et al. 226-2011-CV-00967 changed from 226-2010-CV-612 Denise-Marie McIntosh v. The State of NH DHHS/DCYF shows that the court is only denying her complaint (which can not be disclosed because it is in the appeal process).  But the court held they are guilty based on the facts alleged but Judge Garfunkle, believes the  Plaintiff/Parent did not meet the statute of limitations and should have known they were guilty while it was occurring.

These people remind me of a comment by Helen Keller who said, "We may have found a cure for most evils; but we have found no remedy for the worst of them all, the apathy of human beings."

Tuesday, December 4, 2012

NH Judges/Arses in Perspective

At the height of a political corruption trial, the prosecuting attorney attacked a witness. "Isn't it true," he bellowed, "that you accepted five thousand dollars to compromise this case?"
The witness stared out the window as though he hadn't hear the question."Isn't it true that you accepted five thousand dollars to compromise this case?" the lawyer repeated.
The witness still did not respond.
Finally, the judge leaned over and said, "Sir, please answer the question."
"Oh," the startled witness said, "I thought he was talking to you."


The Supreme Court ruled there cannot be a Nativity scene in Washington, D.C. this Christmas.
enough asses to fill the stableThis isn’t for any religious or constitutional reason, they simply have not been able to find three wise men and a virgin in the nation’s capitol.
There was no problem however finding enough asses to fill the stable.  

"A fraudulent intent, however carefully concealed at the outset, will generally, in the end, betray itself."  Titus Livius 

Tuesday, November 27, 2012

Rights of Parents with Disabilities and Their Children

This is America right? The land of equal rights, however what you believe to be equal rights must be questioned when things like the following occur and when reviewing these points keep in mind what Galileo once said "All truths are easy to understand once they are discovered; the point is to discover them."

 First you have to wonder what the hell is going on when the President of the United States assigns a committee to look into how parents with disabilities and their children are being treated. See their full report here it isn't pretty Rocking-the-Cradle-Ensuring-the-Rights-of-Parents-with-Disabilities-and-Their-Children Parents with even minimal disabilities are having their children stripped from their care without valid reasoning.

On top of it in NH every single parent is at a disadvantage because the Supreme Ct. has decided it will no longer even give them the lack lustrous lawyers it once did; these parent's disability stems from not understanding the legal system and while behind closed doors they are deprived by overzealous social workers and dysfunctional Judges who togehter are destroying the American Family.

Furthermore, when women like myself and these women are discriminated against, because we actually speak out against the oppression we faced as shown in this NOW Foundation Files Amicus Brief in Domestic Violence Case where a women was charge $350,000 for disclosing abuse by her husband it is a clear message that the male dominated judicial system is telling us to shut up and take it. Hardly equal rights.

In these cases America has become what it set out not to be "an oppressive dictatorship run in large part my white males" and the point is to expose them for what they are. Not much has changed from 2011 ... but with a little bit of effort we can certainly hope that the recent election favoring the previously oppressed, who are now represented in the House of Representatives; a government body that actually put in a women's room on the house floor only as recently as 2011 it's a politifact; of course they were put in by a "John" US Speaker John Boehner, the fact that his wife must be very cool and he has two daughters and is a practical republican surely played a role. But really we had to wait that long.

Don't wait for the doors of Due Process to be slammed closed in your face - "Great occasions do not make heroes or cowards; they simply unveil them to the eyes of men. Silently and imperceptibly, as we wake or sleep, we grow strong or weak; and at last some crisis shows what we have become." Brook Foss Westcott  

Ps. these abusers get the children and hold them in captivity they are denied normal relationships with friends, denied the right to speak freely and given a laundry list of do and don't's is that the next generation, is that all we are capable of giving them?