Sunday, November 6, 2011
House Counsel Ed Mosca Arrives Unprepared, Abets judicial child abuse
Apparently, house counsel Ed Mosca arrived unprepared to adequately advise the Judiciary Sub-committee at a hearing on Tues., Nov. 1, 2011 forcing the sub-committee to reconvene for another hearing approximately a month later - all while hundreds, if not thousands of children remain estranged from fit parents.
Read the letter below, reproduced in blue.
Below, I have prepared a quick research memorandum of law, which will hopefully answer your question as to whether a "marital master is a judicial officer under the N.H. Constitution." I was present at the hearing this past week on HR7 and there seemed to be a problem extracting definitive answers from house counsel Edward Mosca. He did not arrive prepared (no handouts, no answers, etc.) and brought no binding authority (case law, etc.). I am merely a concerned citizen, bringing these answers to you.
First, let it be known, I personally desire every under-performing, mal-administering, and corrupt judge and marital master removed forthwith, but my first loyalty is to the constitution, irrespective of whether it is favorable to me or not in a particular instance.
I am disappointed by what I have to report to you, as it goes against my desire to impeach marital masters. The Supreme Court does not consider marital masters judicial officers pursuant to the N.H. Constitution.
In support thereof:
1) "I. Are presently sitting marital masters judicial officers under Part II, Article 46 of the New Hampshire Constitution?"
Opinion of the Justices, 128 N.H. 17, p.19 (1986). As of the date of this email, the Shepard's Report indicates that this case is still good law in New Hampshire.
Beginning further down p.19, the Supreme Court of New Hampshire reasoned "Presently appointed marital masters of the superior court are not judicial officers within the meaning of part II, article 46 (Supp. 1985) of the Constitution of New Hampshire, and we accordingly answer no to your first question.
A necessary characteristic of a judicial officer is the authority to render judgment to determine issues that are properly raised before the judicial branch. See The State of Rhode Island v. The State of Massachusetts, 37 U.S. (12 Pet.) 657, 718 (1838); N.H. Const. pt. I, art. 37, pt. II, art. 72-a. That final authority may be exercised only by an officer appointed in accordance with the State Constitution and invested with the constitutional incidents of judicial office. Thus, a judicial officer within the meaning of part II, article 46 (Supp. 1985) must, by definition, be "nominated and appointed by the governor and council," id., and must be commissioned to hold office during good behavior, N.H. Const. pt. II, art. 73, except where the constitution otherwise provides. See N.H. Const. pt. II, art. 75 (five-year term for justices of the peace); see also Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
Marital and other masters are not so appointed, tenured or empowered. See generally R. Wiebusch, 5 New Hampshire Practice, Civil Practice and Procedure chap. 39 (1984). They are appointed by the superior court, and although their appointments are made and reviewed on a periodic basis, they have no tenure and are removable by the court at will. At most, such masters are authorized to make recommendations, which, though normally approved, have no binding force upon the court. But see Cornforth v. Cornforth, 123 N.H. 61, 455 A.2d 1049 (1983) (in absence of record, court may not alter master's recommended award without hearing or presentation of evidence)."
A question could be raised "The year 1984 was nearly 28 year ago. Has the criteria for 'judicial officials' under the N.H. Constitution changed in the ensuing years?" A historical review of Pt.2 Art.46 of the N.H. Constitution reveals that it has survived four eras in New Hampshire History: The first was June 2, 1784, The second, it was amended in 1792 making minor changes in wording, the third, it was amended in 1877 deleting solicitors and sheriffs from those appointed by governor and council, and finally, the last era began in 1976 when it was amended deleting appointment of coroners by governor and council.
The answer as to whether the criteria for "judicial officers" has changed in the past 28 years, appears to be "no, it has not."
2) In addressing questions posed by the legislature relative to HB 236, the N.H. Supreme Court ruled similarly in Opinion of the Justices (Recommendations of Marital Masters), 155 N.H. 524 (N.H. 2007)
3) In addressing questions posed relative to SB 112, the Supreme Court of New Hampshire held(in pertinent part) in OPINION OF THE JUSTICES RECOMMENDATIONS OF MARITAL MASTERS v. OPINION OF THE JUSTICES (RECOMMENDATIONS OF MARITAL MASTERS)., Request of the Senate No. 2007-263., May 30, 2007:
"Although marital masters provide invaluable service to the judicial branch and the citizens of the state, we conclude that they are not judicial officers within the meaning of Part II, Articles 46 and 73 of the New Hampshire Constitution."
4) In Witte v. Justices of the N.H. Superior Court, 831 F.2d 362 (1987), the United States Court of Appeals for the First Circuit held that marital masters in New Hampshire 'have no inherent power, but rather derive all their power from the appointing judge or from the agreement of the parties.'
"Plaintiff proceeds as if marital masters have the authority, over the objection of the parties, to finally determine cases. They do not. Rather, they may only make recommendations, and the recommendations have "no binding force upon the court." Opinion of the Justices, 128 N.H. 17, 20, 509 A.2d 746, 748 (1986).
Masters have no inherent power, but rather derive all their power from the appointing judge or from the agreement of the parties. See N.H. Rev. Stat. Ann. § 519:9; R. Wiebusch, 5 New Hampshire Civil Practice and Procedure § 1371 (1984). And masters are required to file a report with the court for the court's action thereon.
N.H. Rev. Stat. Ann. § 519:10; Rules of the Superior Court of New Hampshire 84 (report of master to be presented to presiding judge for judge's order). Upon request by either party, masters must "state specifically all matters of fact found by them to have been proved, and their rulings upon all questions of law." N.H. Rev. Stat. Ann. § 519:11. The judge, after reviewing the report, may accept it, recommit the case to the master for further proceedings, or hold further evidentiary hearing himself. N.H. Rev. Stat. Ann. § 519:12; Cornforth v. Cornforth, 123 N.H. 61, 64, 455 A.2d 1049, 1051 (1983). After the judge enters a final judgment, the parties may seek review of the judgment from the New Hampshire Supreme Court. Thus, under the marital master system, it is a judge, not a master, which determines the case."
I hope that these findings are of assistance, and will help to save our valuable commodity; time. I ask once again why house counsel could not have prepared a simple memorandum like this for the edification of the Judiciary Subcommittee at the HR7 hearing last Tuesday? It seems inexcusable, considering his position as house "counsel" and the value of his contract.
Representatives, just because a marital master may not meet the litmus test of "judicial officer," does not mean that they are off the hook. A recommendation should be made by this committee to the judiciary to terminate Philip Cross immediately - something you have the power to do. The onus is upon the Judiciary to act - and to fire Cross immediately - but the impetus must come from you!
Furthermore, I believe this finding can be looked at in a positive light; now we can address the impeachable "judicial officers," the "judges of the state," who perfunctorily and recklessly sign marital masters' "recommendations" without thoroughly reviewing them, in true "rubber stamp" fashion. HR7 addresses not only Philip Cross, but any other superior court "officer."
In high regard,