February 17, 2019
Dear Member of the House of Representatives;
I am writing to you in opposition to House Bill 696, Establishing a Protective Order for Vulnerable Adults. By way of background, I am the former Chairman of the Committee on Constitutional Review and Statutory Recodification, and former Vice Chairman of the Committee on Children and Family Law.
HB696 is an affront to the American legal system and the United States and New Hampshire Constitutions. It presumes the defendant is guilty until proven innocent, and provides for a mechanism by which to prevent the opportunity to prove innocence. This will make caring for a sick or disabled family member a legal risk. I think of the years I cared for my son Jarrod. Under this law, a clever lawyer could have made a claim on his behalf, and kicked us out of our home, making it impossible for us to care for him. Consider caring for an elderly parent suffering from early dementia. They could honestly believe that you are hostile to them, and deprive you of your home and property. HB 696 will ultimately make caring for sick family members a risk, and force them into State care.
First, and foremost I have constitutional concerns regarding this Bill. The Constitution of the State of New Hampshire, Part the First, Article 15, states; “No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him;” HB696, Amendment 2019-039 (Page 2, Line 22) allows the temporary orders to be issued ex parte. The Hearing, if there is one, is held without the defendant. However, it only allows the defendant to have a hearing if the temporary order is issued in writing. If the temporary is issued by telephone, property can be confiscated with no written record. The basic form of this law is guilty until proven innocent, and if the temporary relief is by telephone, you can’t request a hearing. You can’t demand the opportunity to prove your innocence.
The Bill uses the terms “plaintiff” and “defendant” which are criminal terms, and then sends the controversy to the Family Court. In Family Court the usual terms for the two parties are “petitioner” and “respondent” as is usual in civil cases. The Family Court is a court of equity, not a criminal court and many of the jurists are not equipped to deal with criminal cases. The laws regarding the Family Court allow Referees and Masters (not Judges) to be assigned to any case (RSA 490-F:15). In every other court, Referees are required to be retired Judges, Masters in the Family are required to be attorney’s with training in family matters, but Referees in Family Court are have no requirements, and several are listed as former employees of the Court. The statutory jurisdiction of the Family Court (RSA490-D:2) specifically states that there are no rules of evidence in the Family Court. HB696 (173-D:4 V) specifically throws out the technical rules of evidence allowing hearsay. There are Referees in the Family Court who are known to receive sealed envelopes as evidence that are never opened and the respondent (defendant) never sees, and the Referee doesn’t read (Case Number 622-2006-DM-0520, January 3rd, 2018). Because of the criminal aspects of the law it would be better addressed in District Court where domestic violence is addressed.
The Bill allows the jurist to issue a search warrant to seize any firearms or ammunition. While on the face this seems constitutional in accordance with Part 1, Article 19, Article 19 was written in regard to gathering evidence to support the investigation of a crime. The action contemplated in HB696 is dispositive, pursuant to either a Temporary or Final Court Order, equivalent to a conviction. The Bill is a conflation of investigation, conviction, criminal law and civil law.
Finally, in regard to recodification, there are already Statutes regarding elderly abuse and neglect (RSA 161-F:41 to 161-F:53). HB696 which creates a new chapter of law is in some respects redundant to the existing Statutes, and in other respects in conflict with the existing Statutes. The existing Statutes designate the Department of Children Youth and Families as the investigating agency, while HB696 authorizes independent third party action. The existence of two independent Chapters of law which overlap is confusing, and will create wildly varying outcomes. It would be better if all abuse of vulnerable adults were addressed in one chapter of law and tasked to an investigating agency.
Please vote NO on an “ought to pass” motion on HB 696 and YES on an “inexpedient to legislate” motion.
Thanks very much for your kind consideration.
Sincerely,
Hon. Daniel C. Itse P.E.
P.S. There is no difference between tyranny at the point of a gun or a knife and tyranny at the point of a pen; especially when that pen is backed by the power of the sword.