2012 Petitions to the New Hampshire House

Additional commentary by Timothy Horrigan
(member of the House Petitions & Redress Committee)

last revised November 21, 2012



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To my surprise, I continued to be a member of the New Hampshire House Petitions & Redress Committee throughout its first (and likely last) two years of existence.

I have treated my committee like any other committee and I treat its petitions like I treat all other legislative vehicles. I am respectful and objective, but I am also skeptical. I have also operated under the assumption that everything the committee does is— and should be— in the public domain (although I did have to change my thinking on this issue near the end of the session.)

I have been showing up at the public meetings and doing the people's work, which is more than I can say for the rest of the committee. About half the regular members of the committee— Republicans and (to a lesser extent) Democrats alike— stopped showing up. I can't blame my absentee colleagues. Ours is a frustrating committee assignment. We rarely make any actual decisions, we never know what's really going on, and it is unclear what our powers are.  But it is still an important assignment.

My late father's last piece of political advice to me was that I should request a different committee assignment if the people returned me to the House after the 2012 election. He didn't like my committee assignment at all (although I actually enjoy it, most of the time.) We talked about this on his deathbed about three weeks before he passed on September 25, 2011.




Here is a list of the petitions introduced in 2012. The first one, Petition #11, was technically introduced during the 2011 session, which lasted three calendar years, beginning in December 1, 2010 and not officially ending until we adjourned just before lunch on January 4, 2012. The Vandenberg petition was introduced on the morning of January 4.

The sponsors are all Republicans. I have put up HTML pages about each petition, and I put several of them in some context. I tried to be fair to the petitioners— but I also tried to be fair to the other parties involved in these petitions, and to all the people of my state. If I am tossed off the committee as a result, so be it. Here they are:




You can also download a PDF of each petition (just the petitions themselves) by clicking on the appropriate link in the following list:


At the March 22, 2012 session, the Full House took an historic vote at the behest of the Redress Committee's chair, Rep. Paul Ingbretson. Although Ingbretson had been rambling randomly about the possibility of issuing subpoenas for a while, the actual rule-making process happened in a few short days while most reps were worrying about other stuff. On Thursday March 15, 2012, the proposed rules change turned up on the next day's Rules Committee calendar. The Rules Committee consists of seven members of the Republican leadership and two Democratic leaders, and it meets rather sporadically— and, the Friday, March 16 hearing was their first meeting in a couple of months. I sat in on the meeting and did not speak to the rules change— which was approved on party lines and placed on the next session day's calendar.

I did speak to the next item on the Rules Committee's agenda (a request to resubmit Petition #29.) For several minutes, I was criticized rather sharply over seemingly unrelated stuff by three members of the Republican leadership. Ironically, I was trying to agree that Petition #29 should be reintroduced. (It was reintroduced as Petition #34.)

In any case, the new rule (which passed the full House 241-114) makes it much easier for a House Committee to get a subpoena. Any committee can now ask for a subpoena by a simple majority vote. The Rules Committee and the Speaker would still have to sign off on the request, but the full House would have not get to vote on the matter. The courts would have no say, either.

The only standing committee which actually has any interest in subpoenaing anyone is the Redress Committee. Ingbretson's rationale is evidently based on a misinterpretation of Health & Human Service and judicial-branch officials' polite refusals. He claims people have told him they would love to come in, but only under subpoena. He implies that they are eager to fess up and are currently held back by the fear of retaliation from their vicious highers-up if they tell the truth. I believe that what those folks really meant was that they would prefer not to come in and testify, but if they were subpoenaed, they would honor the subpoenas.

Even if we do subpoena these people, there is no guarantee that they will give us the answers we are looking for. Indeed, we (apparently) have no way to force them to give any answers at all, since we have no obvious way to punish them.

The new rule gives the committees the power of subpoena duces tecum as well: that means we can order the witness to bring papers, books, or other items with her. The whole phrase "sub poena duces tecum" means "bring the stuff with you, or else!"

The new rule is:

  1. No subpoena shall issue except by majority vote of the Committee on Rules and upon the signature of the Speaker.  The Committee on Rules shall determine the form of subpoenas and subpoenas duces tecum and specify conditions if any with regard to the issuance and use of such subpoenas.

    Any Committee that has voted to seek the issuance of a subpoena or a subpoena duces tecum shall, through its Chairman, make a written request to the Committee on Rules.  The request shall identify with particularity the witness or witnesses the requesting Committee seeks to subpoena or, in the case of a subpoena duces tecum, the information and materials the requesting Committee seeks to obtain.  The request shall provide a sufficient explanation for the Committee on Rules to understand the purpose for which the witness or information is sought and why it is necessary to subpoena the witness or information and materials. 

    The Committee on Rules shall consider the request at its next meeting.  The Committee on Rules may grant the request in whole or in part, or may deny the request.  

    The Speaker shall be authorized to take such action as may be necessary and proper to enforce any subpoena or subpoena duces tecum.

Rule 66 was first used by the Redress Committee in mid-June 2012, The proposed subpoena would have been directed at a sealed envelope held by a certain Guardian ad Litem Bruce Wechsler: petitioner David Johnson believes this envelope contains exculpatory evidence. I am not sure that it even exists, and if it does exist it might not contain exculpatory evidence.

The next step was to make a request to the Committee on Rules. The Rules Committee, had a good technical reason to deny the request. Wechsler's now-legendary envelope was not mentioned in the original petition: the sealed envelope is something David Johnson and his sponsors added to the petition after it came to the Redress Committee. We have been informed (apparently by the Speaker) that no amendments can be made to these petitions once they are submitted, and we have been forced to deal with several petitions with wrong names in them. In the case of the Katz-Grodman petition, one of the petitioners' names is wrong: Arnold Grodman is referred to erroneously as Arnold Goodman.

The Rules Committee met with rather short notice on the morning of Thursday, September 6th and unanimously denied the subpoena request. By then, the Redress Committee had actually voted on the petition and filed a pair of reports in the House Calendar. The fact that the Redress Committee had already disposed of Johnson's petition was one factor behind the Rules Committee's decision, but the main problem turned out to be that the Redress Committee never submitted anything in writing which explained why the subpoena was necessary.

The House Democratic caucus issued the following press release on June 20, 2012 about the subpoena:

 

FOR IMMEDIATE RELEASE                                

CONTACT: Eileen Kelly]

603-271-2136

June 20, 2012                                                             

 

House Democrats Call for an End of Abuse of Power by Legislative Committee


CONCORD, NEW HAMPSHIRE – On June 14th, The House Redress of Grievances Committee voted along party lines to subpoena "sealed records" in a petition currently before the committee. Democrats on the committee voted against allowing the subpoena. The case, Petition 5 on behalf of David Johnson of Londonderry, involves a custody dispute concerning a minor child. The subpoena must still be approved by the House Rules Committee, which is chaired by Speaker O'Brien.

 

"Petition 5 has been before the committee for the past fifteen months and only now the Republicans on the committee are getting around to requesting more information. This committee is a waste of taxpayers' money and a waste of state resources," stated Representative Sandra Keans of Rochester. "The committee is delving into areas that could threaten the safety of at-risk children and could also be in violation of the HIPPA act when health records are used against a former spouse in a case. The legislature should not be going after materials that have been legitimately closed by the courts."

 

 "This subpoena is an attempt to unseal an envelope which was presumably sealed for good reason. The committee does not need this information to reach a fair decision on the Johnson petition," stated Representative Tim Horrigan of Durham. "There is abundant documentation related to the Johnson petition already available to us." 

 

"I call on House Republicans on the Rules Committee to join me in voting against allowing this subpoena to go forward," said Representative Terie Norelli, House Democratic Leader. "This is a brazen abuse of power which puts law abiding citizens and minor children in jeopardy of having their privacy violated by the state. This exploitation by the legislature must stop immediately before more harm is done." 

 

The House Redress of Grievances Committee is an archaic committee that was reinstituted by Speaker O'Brien at the beginning of this legislative session. The committee has primarily dealt with complaints from litigants in cases involving child custody and support who were displeased with the court ruling.

 

The Attorney General's office has also expressed concerns about child protection issues that are subject to strict confidentiality requirements and about the subpoenas compelling people to testify or produce records before the committee.

X       X       X

 

 

Eileen Kelly
Senior Legislative Assistant
New Hampshire House of Representatives
State House, Room 307

Concord, New Hampshire 03301

 

603 271 2136



At the very end of the 2012 session, two weeks after the election, the Legislative Ethics Committee issued an interpretive ruling. I can't go into any detail about what prompted this ruling, since the proceedings were confidential—but I think it is OK to acknowledge that I was one of the people who inspired it.

I posted some material on my web site which arguably didn't need to be reposted, even if it had already been released into the public domain by the petitioners and/or the sponsors. I am reasonably comfortable with the ruling, although there are some cases where it is useful to let the public know what evidence is being presented to support a petition, even when that evidence is questionable.

INTERPRETIVE RULING 2012-#3 (November 14, 2012)

Supplementing Interpretive Ruling 2011-#1 Relating to Obligations of Legislators in Connection with Proposed Petitions for the Redress of Grievances

Further questions have arisen regarding the obligations of legislators in connection with requests from members of the public to present petitions for redress of grievances on their behalf. Specifically, the questions are

  1. what obligations legislators may have when asked to include in a Grievance Petition information that involves private health or financial information of third parties, i.e., persons who are not the object of the redress sought by the request; and

  2. what obligations legislators may have in connection with dissemination of such information though unofficial channels.

The Committee has reviewed applicable provisions of the New Hampshire Constitution, statutes, rules, and Ethics Guidelines governing the conduct of legislators in the performance of their duties as such, and interprets them as follows.

  1. Obligation to exercise caution and due diligence in considering what information should properly be included in a Grievance Petition. Legislators should exercise caution and due diligence about the propriety of including, and the accuracy of, private health or financial information of third parties, i.e., persons who are not the object of the redress sought by the request. Where a request proposes to include such information in a Grievance Petition, it is not sufficient for a legislator simply to include the information as submitted, without exercising independent judgment about whether the information is protected by law from disclosure, whether the information appears to be accurate, and whether including it is necessary to support granting the relief sought in the requested Petition.

  2. Obligation to exercise caution and due diligence in considering whether to further disseminate, through unofficial channels, private health or financial information of third parties contained in Grievance Petitions. Legislators should not further discuss or disseminate such information through unofficial channels without first exercising independent judgment about whether the information is protected by law from disclosure, whether the information appears to be accurate, and whether it is necessary to support granting the relief sought in the Petition.

Martin L. Gross, Chairman For the Committee







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