The House is the grand inquest of the state. It is entrusted to carry out investigations and impeachments as a body independent of the judicial and executive branches. House investigative committees have certain powers to carry out their investigations, including collecting sworn or unsworn testimony, utilizing subpoenas to demand the appearance of witnesses for testimony or the procurement of documents, and utilizing warrants to force compliance with subpoenas. House investigations are to be carried out in a judicial-like manner. Information uncovered through House investigations may be used to make recommendations for House motions or legislation, initiate impeachment proceedings in the House, trigger impeachment trials by the Senate, and more.
For some reason, the New Hampshire House has a recent history of failing to utilize its powers of investigation. Because of this, well-known problems in the judicial and executive branches continue unchecked, despite many “special committees” established to purportedly collect needed information to address them.
Some members of current House leadership under Sherman Packard claim that the House is limited in its powers to obtain information from unwilling sources. They have decried efforts to hold government servants and employees accountable, and insist legislators must “play nice” and simply ask people to appear for testimony and hope they’ll be honest. I have pushed back against that assertion repeatedly and my collection of sworn testimony and exercise of authority granted by the people resulted in removal from my position as chair of the House Special Committee on the Division for Children, Youth, and Families (DCYF) by Sherman Packard.
After backlash for the decision to penalize me ensued, Packard made many attempts to clean up his mess. He wrote misleading emails to the House Republican Caucus that contained lies by omission about the practice of administering oaths, called an emergency caucus to quell the discontent among caucus members, during which he continued to lie and mislead members as to our authority and powers we possess as a body. His leadership team assured members that changes would be coming and they would “continue looking at all aspects of” the oaths issue. When pressed on how that work was coming along months later, the majority leader had nothing to say. They seemingly smoothed things over to their satisfaction and then were banking on the problem fading away.
However, now facing a competitive race for the Speakership against Len Turcotte should Republicans retain a majority in the House next session, Packard has been forced to cater to those of us who want the House to properly investigate rather than continue to “play nice” and get nowhere.
Packard’s leadership team purports to be looking into the matter of enforcing subpoenas. The Speaker’s Steering Committee sent out the email below to House candidates. It is an excerpt of the findings and recommendations for dealing with failure to comply with subpoenas (no mention of sworn testimony, however, to my knowledge the Speaker’s Steering Committee final report has not yet been released).
Unfortunately, the committee’s proposed solution is problematic, and misses the mark entirely, as it would force the House by rule to rely on the involvement of both the judicial and executive branches of government, and ignores and perhaps even is an effort to suppress the truth that the House has the authority to do so on its own. I will let the reader decide whether it is ignorance or intention.
Below I will cite what is written in Mason’s Manual of Legislative Procedure, the Constitution of New Hampshire, and House rules, and explain the powers of subpoena, warrant, and punishment the House possesses and how they can be used– right now– without any rule changes. Later I will make suggestions for rule changes that would strengthen the ability of the House to conduct investigations without abrogating its power.
Mason’s Manual of Legislative Procedure
“Mason’s Manual” is a parliamentary procedural manual. It is a compilation of principles and procedures established by a branch of common law called parliamentary law for legislative bodies. The New Hampshire House utilizes Mason’s Manual as its authority on parliamentary law wherever House rules are silent.It is an illuminating book and one I recommend every legislator and activist read and become familiar with.
In Mason’s Section 802, the subject of summons, subpoenas, and warrants is discussed (emphasis mine):
Sec. 802. Summons, Subpoenas and Warrants See also Sec. 615, Committees Are Agencies of the House.
1. A legislative body or a committee, when acting within the scope of its authority to conduct an investigation, may summon and examine witnesses, and require the production and examination of books, records and papers.
2. The law may provide for a penal offense for a person who fails to appear before a legislative committee pursuant to a summons or subpoena issued by the appropriate legislative authority. (There is no such criminal offense in statute, so the House would rule a person to be in contempt by a motion to that effect and a vote of the body in the affirmative.)
3. When a committee is authorized to subpoena witnesses, the chair of the committee, in conjunction with its counsel, may select the names and number of witnesses for attendance at each session, and the chair may sign the summons for each witness. Subpoenas should not be issued in blank.
4. When a subpoena duces tecum has been issued under statutory authority, showing that the purpose of the examination was within the scope of the inquiry authorized, the court cannot cancel the subpoena nor enjoin the issuance of any further subpoena. (subpoena duces tecum: A writ requiring someone to appear in court to give testimony, and to bring something [usually documents] to accompany that testimony.)
5. When a witness lawfully summoned refuses to appear, a warrant may be issued to compel the witness’ attendance.
6. No affidavit charging contempt need be filed be for a house to authorize it to issue its warrant to arrest a contumacious person who refuses to testify before one of its committees. The written report of the committee is sufficient authority for the issuance of the warrant.
7. A person disobeying a subpoena of a legislative committee may be apprehended and brought before the committee by a sheriff under a warrant issued to the sheriff, and either prosecuted for a misdemeanor under a statute for failure to obey the subpoena or punished for contempt by the legislature, but that person cannot be punished by the judiciary for contempt.
8. A writ of prohibition cannot be used to prevent an administrative or legislative body from proceeding with an investigation.
9. Service of a subpoena or the execution of a warrant requiring attendance before a legislative committee is nor “an arrest” within statute exempting members of the legislature from arrest. (mesne process)
10. Warrants, subpoenas, etc. issued during recess are signed only by authority specially given.
Mason’s goes on to say that contempt power is inherent in a legislative branch (emphasis mine):
Sec. 806. Use of Contempt Power in Maintaining Public Order
I. A constitutional provision that each house may punish for contempt and disorderly conduct is not a grant of contempt power but recognition and affirmation of historic and inherent contempt power possessed by the legislative branch.
2. Statutes relating to punishment of contempt of either house of the legislature are not a grant, but a regulation, of contempt power.
***There are no statutes relating to contempt power of either house of the legislature in New Hampshire, thus it is within the purview of the House without restriction other than those delineated by the constitution or parliamentary law.***
NH Constitution
Part 2, Article 22 of the state constitution says (emphasis mine):
The House of Representatives shall choose their own Speaker, appoint their own officers, and settle the rules of proceedings in their own House; and shall be judge of the returns, elections, and qualifications, of its members, as pointed out in this Constitution. They shall have authority to punish, by imprisonment, every person who shall be guilty of disrespect to the House, in its presence, by any disorderly and contemptuous behavior, or by threatening, or illtreating, any of its members; or by obstructing its deliberations; every person guilty of a breach of its privileges, in making arrests for debt, or by assaulting any member during his attendance at any session; in assaulting or disturbing any one of its officers in the execution of any order or procedure of the House; in assaulting any witness, or other person, ordered to attend, by and during his attendance of the House; or in rescuing any person arrested by order of the House, knowing them to be such.
New Hampshire House Rules
New Hampshire House rules touch on the topic (emphasis mine):
Rule 6. 6. Signing of bills, warrants,, subpoenas, etc.
The Speaker shall sign all bills, resolutions, and addresses after passage or enrollment. All warrants, subpoenas and other processes issued by order of the House shall be signed by the Speaker and attested to by the Clerk.…
Rule 28. Subpoena Power.
No subpoena shall issue except by majority vote of the entire House membership 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.
RSA 642:1
There is a criminal statute that deals with hindering or interfering with public servants performing official duties (emphasis mine):
I. A person is guilty of a misdemeanor if that person uses intimidation, actual or threatened force or violence, simulated legal process, or engages in any other unlawful conduct with a purpose to hinder or interfere with a public servant, as defined in RSA 640:2, II, performing or purporting to perform an official function or to retaliate for the performance or purported performance of such a function.
Written Procedures in Practice
From the above, it is my understanding that the processes and principles for issuing subpoenas, warrants, and contempt orders by the House are as follows:
Subpoenas
Per current House rules, a motion must be brought before the House to subpoena witnesses. This is a subpoena duces tecum (order to appear) or subpoena (usually for documents). These must not be “in blank,” rather it must specify the witness name(s), when they are to appear and where, and any documents in their possession they shall produce. The rules committee determines the exact form of the subpoena.
A sheriff deputy or constable may then serve the subpoena upon the person and they are expected to comply. (The Sargent at arms are ex officio constables per statute).
Warrants
If a person does not comply with a subpoena, the House can then vote on a motion to issue a warrant.
In a legislature, a warrant is a means of forcing the appearance of a subpoenaed witness and to allow the body to carry out its duties, rather than for the initiation of criminal prosecution.
A warrant is issued to the Sherriff to serve the upon the person and bring them before the House for testimony and submission of documents.
Contempt
Additionally, the House may make a motion to hold such a person in contempt, and to punish them for that contempt.
What does contempt look like? It can be a Scarlett letter with no accompanying punishment. A simple resolution declaring a person in contempt approved by the House.
Punishment
The Constitution (Part 2 Article 22) states the House can also issue punishments for contemptuous behavior, such as imprisonment.
Prudence and principles of due process as well as parliamentary law would have that the House only employ a punishment such as imprisonment for the duration of time it takes to carry out its duty of obtaining testimony and documents. In the simplest terms, the person would be detained by the Sheriff or a constable such as the Sargent at Arms at the State House for the time needed. If it would take longer than a day to finish taking testimony and obtain documents, a concurrent resolution could be initiated to have Sheriff take the contumacious person to the county jail for the time needed. The House could also logically employ lesser punishments such as fines for each day the person fails to testify or produce subpoenaed documents.
Additionally, obstructing the ability of the Representatives of the People to carry out their official duties is an egregious offense. The failure to comply with orders of the House or one of its committees can and ought to be considered an act of maladministration for which impeachment or termination of employment is immediately due.
All specifics would be detailed in a motion, or multiple motions, deliberated on and voted on by the House.
Importantly, all these enforcement mechanisms can be enacted entirely without the need to rely on the executive or judicial branches.
Involving Other Branches
In addition to what the House can do within the legislative branch, members could submit affidavits to law enforcement attesting to the crime of obstructing operations of the House (RSA 642:1 above), conveying prosecutorial jurisdiction. The House as a body could also pass a simple resolution instructing the Attorney General to pursue charges under RSA 642:1, which would be advisory and dependent upon the Attorney General’s answering to the call of duty, or initiate a concurrent resolution process to mandate it. There is no accompanying criminal offense for contempt of the legislature (and Mason’s states the judiciary cannot adjudicate such a charge).
Rule Changes
To strengthen its ability to conduct investigations effectively, the House should consider rule changes that do not abrogate its power. My suggestions are:
1.) Eliminate rule 28. This would allow committees to issue subpoenas, rather than the entire House. This is the practice in Congress and other states, and the default procedure under Mason’s Manual. It allows those closest to the content of the investigation to make the decision, and removes extraneous political influence.
2.) Create a House rule that states that if any state official or employee fails to comply with a subpoena issued by the House, is found to be in contempt of the House, or is determined by the House to have committed perjury before the House, that the Speaker shall appoint a committee to impeach the official or employee.
Conclusion
The House currently has power of enforcement of subpoenas by way of warrant, contempt, and punishment. The power can be leveraged without the cooperation of the executive’s attorney general, and there is no need to refer to “the department of Justice for the initiation of judicial action to enforce compliance through appropriate civil or criminal proceedings,” as the Speaker’s Steering Committee proposes to enshrine in rules. The suggested language is superfluous and antithetical to good governance, as it would mandate the judiciary and executive be involved in matters of obstruction of House business. It is a shame but unsurprising that Packard would pursue such a path.
The House has the authority and power to handle these matters fully as an independent branch. Rule changes that would strengthen the House’s ability to conduct investigations without giving away power to other government entities would ensure continued separation of powers and maintain the ability of the legislature to act as a check and balance on the executive and judicial branches. It is with great interest that I await the release of the rest of the Speaker’s Steering Committee Report.
Finally, it is my greatest hope that the culture of the New Hampshire House of Representatives is restored from one which abrogates its power and enables continual abuses by government on the people of New Hampshire through fecklessness, to one that zealously upholds the principles of the Constitutions, of law and order, and moral government through the full exercise of its granted authorities as the grand inquest of the state. The election of for Speaker of the House will determine if we are to see that restoration of good governance in the next two years, or if we will have more of the status quo ineffectualness of the present administration.
