HA 3, for the removal of Marital Master Philip Cross: April 26, 2010 video

plus discussion of HA 1, HA 2, and HA 3

additional commentary by Timothy Horrigan; August 6, 2010;  revised September 4, 2010 & November 4, 2010 & September 22, 2011



One of the odder misadventures of my time in the New Hampshire House was my involvement in an attempt to remove two marital masters and a family-court judge via "Bills of Address." We filed three bills, House Address 1 through 3, which all went down in flames; and frankly I think even the sponsors were not all that sorry to see them fail. But this misadventure was an eye-opening learning experience, and we did raise awareness of some of the problems with New Hampshire's family-law system.

I originally thought of leaving the House Address story off the website. My written testimony was pretty good, as was my spoken testimony. It involved, however, some details of the complainants' personal life which perhaps don't belong on this web site. The people on whose behalf we were advocating happened to be willing to place some extremely personal material in the public record. If you really want to see it, you can go to Concord to take a look for yourself.  And some of it is on these videos.

A Bill of Address is an alternative to impeachment. Article 73 of the state constitution says:

One of the problems we ran into during the hearings was that it was unclear when it was appropriate, under the State Constitution, to use a House (or Senate) Address rather than impeachment to remove a commissioned judicial officer. It was also unclear whether Article 73 even applied to marital masters, since they are "at will" employees of the judicial branch.

The most sensational of the three House Address cases was HA 3, "House Address: for the removal of Philip Cross, marital master in the judicial branch family division in the Derry District Court, from his said office." We cited questionable decisions and actions related to three specific extraordinarily complex and highly-litigated divorce/child-custody cases as grounds for Cross's removal. These three cases all involved fathers who tried to represent themselves per se, and went through hell while battling against ex-wives who had legal counsel. One of them, Puiia vs. Miner, involved a former constituent of mineversus a current constituent. (Miner was also the child of someone I went to school with.) I presented the testimony for a second case, Whalen vs. Emerson, which was by far the least complicated of the three cases. (I had an easy time of it because Whalen had moved on with his life and remarried, although there was still a child-custody case pending.) The third case, which is the first case on the video embeds, was Johnson vs. Johnson. Our Johnson was David W. Johnson from Derry, who is a familiar face at the State House. The April 26, 2010 hearing on the Cross bill of address became legendary because David was briefly arrested (over a matter related to his divorce case) while testifying. Arresting a witness during a hearing is highly irregular, especially when he was not misbehaving. Happily, David was immediately released.



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Videos are courtesy of Denis Goddard & Lydia Harman of NH Capitol Access, of someone who goes by the nickname of "BikerBillNH", and of Rep. Gary Hopper. I think I may have actually held Hopper's camera myself for a few minutes during the 2nd and 3rd videos.

Original Blog Posting:



  1. Introductory video


    Original YouTube URL: http://youtu.be/aVTldKtxYfM

  2. Part 1 of longer video (mostly David W. Johnson's & Rep. Dan Itse's testimony)


    Original BlipTV URL: http://blip.tv/file/3542033

  3. Part 2 of longer video (I can be seen about half an hour into the video)


    Original BlipTV URL: http://blip.tv/file/3542252

  4. Gary Hopper's brief video of Johnson's arrest
    (One oddity about this incident is that Gary Hopper and Al Baldasaro are members of the New Hampshire House of Representatives, who were doing the people's work, in the Legislative Office Building. Had the cops carried through on their implied threat to also arrest Hopper & Baldasaro, it would probably have been constitutionally impossible to actually prosecute the two legislators.)


    Original YouTube URL: http://youtu.be/ceMxxw7vO8U

  5. David Johnson in a much friendlier venue: Denis Goddard & Lydia Harman's Capitol Access

    I am not sure of the exact air date, but it was sometime in early 2009 or late 2008. David Johnson, accompanied by Rep. Dan Itse & activist Sam Dodson, tells the same story he told at the HA 3 hearing.

    Original NHCAPTV URL: http://nhcaptv.com/episode/54


I don't want to go into this in too much detail, because I thought some of David Johnson's statements were inappropriate. That said, I am sympathetic to his plight, and he and I have become friends.

A Health & Human Services ombudsman's report was prepared in January 2006 which tells the story of his daughter's medical treatment. Back in 2004 and 2005, David placed his daughter (who had a chronic infection) on a course of sulfamethoxazale and amoxicillin, which was prescribed by a well-known physician named Dr. Edward A. Chibaro. Sulfamethoxazale was one of the first modern antibiotics, but it is not used much these days because many bacteria are resistant to it and because it has serious side effects. David's ex-wife eventually took the girl to other doctors, and they tried different treatments. David objected to this, and Master Cross and Judge Sadler (rightly or wrongly) took the ex-wife's side. David was still the custodial parent, so the choice of treatment should have been his call— not his wife's and not the court's. This dispute coincided with a period when David's life was generally falling apart, and the daughter's infection did flare up again at least once. This dispute is what David is referring to when he speaks (as he does more than once on these videos) about "prophylaxis" and "infections."



HA 3 was one of three House Address Bills. HA 1 called for the removal of Michael Garner, the marital master assigned to a legendary child-custody case, Kurowski vs. Voydatch, where a girl was supposedly forced to go to public school against her will in 2009 (just weeks before the HA 1 legislation was initially filed) because her mother's Christian beliefs were "too rigid." I will just say that the legend was somewhat oversimplified.

HA 2 called for the removal of Judge Lucinda Sadler, the district court judge who countersigns Garner and Cross's orders and who oversaw their work on the Kurowski, Whalen and Johnson cases. The hearing on the "Sadler Address" took place on May 3: it was similar to the Cross hearing but less dramatic. My guy Tom Whalen didn't show up for the Cross hearing at all, but he did show up for the Sadler hearing. He did not speak but his current wife did make a few remarks. He liked what I said about his case.

We never heard from the other side at all. Two officials from the Judicial branch's administrative office showed up, but they only spoke in general terms.

One footnote to this episode is that David Johnson was inspired to run for state rep, as a Republican in Rockingham District #5 (which is the Town of Derry.). He was one of 13 Republicans and 7 Democrats competing for 11 seats.  He ended up in last place in the Republican primary, but he was only 44 votes behind the 11th place finisher.  The Republicans ran the table in the 2010 general election in Derry, just like in many other communities: all 11 Republican nominees won.  So, David actually came pretty close to being elected.


HA 3, AS INTRODUCED

2010 SESSION

10-2661

09/04

HOUSE ADDRESS 3

AN ADDRESS for the removal of Philip Cross, marital master in the judicial branch family division in the Derry District Court, from his said office.

SPONSORS: Rep. Itse, Rock 9; Rep. Ingbretson, Graf 5; Rep. Baldasaro, Rock 3; Rep. Hinkle, Hills 19; Rep. Seidel, Hills 20

COMMITTEE: Joint Legislative Committee on Address

ANALYSIS

This address seeks the removal by address of Philip Cross, marital master in the judicial branch family division in the Derry District Court, from his said office.

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

10-2661

09/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Ten

AN ADDRESS for the removal of Philip Cross, marital master in the judicial branch family division in the Derry District Court, from his said office.

Be it Enacted by the Senate and House of Representatives in General Court convened:

The House of Representatives and Senate in General Court convened, under Part 2, Article 73 of the New Hampshire Constitution, satisfied that the public good requires that Philip Cross, Marital Master, should no longer hold and retain his judicial office and that there is reasonable cause for his removal, respectfully address and request the governor, with the consent of the council, to remove said Marital Master Philip Cross from office. 

The cause for removal of the said Philip Cross is that he exceeded his authority and abused his discretion, resulting in the failure to afford justice to the parties appearing before him, as exemplified fully and substantially as follows:

1. He recommended an order holding a father in criminal contempt following a hearing that had been noticed as a civil contempt hearing, which order resulted in that father, who was representing himself and was the primary custodian of the parties' minor child, to be incarcerated for 10 weeks, in contravention of his right not to be deprived of liberty but by the judgment of his peers, as guaranteed by Part 1, Article 15 of the New Hampshire Constitution.

2. He:

(a) Recommended a child support order in the absence of submission of the affidavits and child support guidelines worksheets necessary to its lawful determination under RSA 458-C, thereby basing said recommendation neither upon the guidelines set forth in RSA 458-C:4 nor upon some other basis supported by written findings pursuant to RSA 458-C:5;

(b) Recommended in said proposed order that child support be paid by the father, even though the father had primary physical custody of the parties' minor child and the mother's income was at least as great as that of the father;

(c) Recommended an order denying a motion to reconsider that support order when presented with evidence of these defects; and

(d) Subsequently recommended an order requiring the sale of the father's home in order to pay the arrearage in the child support determined on the basis of the support order so generated, resulting in the father and the minor child becoming homeless.

3. He:

(a) Refused to allow competent testimony or the admission into evidence of documentation critical to the determination of the medical needs of a minor child;

(b) Willfully misrepresented such of the medical needs of the minor child as were known to him;

(c) Recommended an order transferring parental medical decision-making authority respecting said minor child in the absence of any evidence of changed circumstances so justifying; and

(d) Held the father in contempt of court for seeking appropriate emergency medical attention for said minor child in circumstances in which he knew or should have known the father had no reasonable alternative.

4. Rather than recommend a new order to replace it, he instead refused to enforce an existing custody order that had been temporarily suspended, thereby allowing the mother to disregard the custodial rights of the father thereunder, and did not act upon a motion brought by the father against the mother to enforce his custodial rights under said existing order.

5. Following entry of an order precluding a father from taking his minor child out of school early and a subsequent order requiring the parties' minor child to undergo counseling, he recommended an order holding the father in contempt for violating the second order in circumstances in which his doing so would have caused him to violate the first order.

6. He followed a pattern, in an ongoing case before him, of recommending orders having the effect of gradually eroding one parent's custodial rights without proper pleadings having been filed by the other parent, without proper notice having been given, without hearings having been held, and without changed circumstances having arisen.

7. He recommended an order relating to parenting issues following a hearing that had been noticed as one to consider financial issues, but which on the day of the hearing, over the objection of one parent, had been changed to parenting issues raised at the hearing by the other parent, thereby depriving the objecting parent of adequate opportunity to prepare and of advance disclosure of the identity and expected testimony of the expert witnesses brought and called to testify by the other parent, which order, in addition to its adverse consequences to the objecting parent, terminated the physical custodial rights of the objecting parent's parents, who, notwithstanding that they were formal parties, had not been afforded the opportunity to testify, to present witnesses, or to cross-examine opposing witnesses at the hearing.

8. He recommended an order, without opportunity for objection or hearing, approving payment of guardian ad litem fees of $44,000 that encompassed activities beyond the scope of the guardian's legitimate duties and responsibilities and in disregard of the retainer agreement that had limited fees to $4,000.

9. In summary, it is evident to the general court that Marital Master Philip Cross has established a pattern of retaliatory, arbitrary, capricious and/or prejudiced adjudication; disregard of governing law and rules; disregard of the evidentiary record; and recommendation of conflicting orders, and orders disregarding the best interests, safety, and health of minor children of the parties appearing before him.



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