The Matter of
A Professional Conduct Complaint
Against Paula J. Werme, Esquire
a/k/a "Werme's Case"

New Hampshire state law makes it illegal for anyone to talk publically about what goes on in a DCYF abuse/neglect hearing. The rationale for the law is to protect families, and especially the children, from disclosure of embarrassing facts and accusations. From RSA 169-C:25:

II. It shall be unlawful for any party present during a child abuse or neglect hearing to disclose any information concerning the hearing without the prior permission of the court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.

On the other hand, Article 22, Part 1 of the NH Constitution says:

Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved.

Finally, the US Supreme Court has stated,

"The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it is invalid on its face."
Walker v. Birmingham, 388 U.S. 307 (1967)

During the summer of 1999, a newspaper reported on the plight of one mother and her attempt to get a child returned from foster care. While the article does discuss the content of the hearings, it is not clear if that information came from the mother or from me. What is not clear from the pleadings and information is that we (I) gave the reporter two boxes of files - medical files, court files, police interviews, and third party records - all specifically excluded from the definition of "record" that's illegal to disclose under RSA 170-G:8-a, and none of which is the subject of the Supreme Court opinion so far as I can tell. It was the subject of the original complaint. (It was illegal under RSA 170-G:8-a to give him the DCYF records, and we did not do so.)

This Supreme Court professional conduct opinion is about one sentence of the newspaper article that discusses one statement made in the trial. The entire balance of the approximately 3000 word article was from conversations and materials legally supplied to the reporter concerning DCYF, Police, and doctor activities. Neither the Professional Conduct Committee and the NH Supreme Court ever attempted to deny the the fact that the statute's broad exclusions render it incapable of meeting even the rational basis test for constitutionality. Indeed, the Supreme Court stated that the constitutionality is immaterial. It helps to remember all of this as you read the balance of this page.

While the DCYF attorney tried, unsuccessfully, to get county and state attorneys to file charges against me, the presiding judge of the appellate hearing tried a different tack and filed a request with the state's Professional Conduct Committee to sanction me for violating 169-C. While I welcomed a chance to show that 169-C is unconstitutional in court, (the misdemeanor penalty would make the trial public), the PCC investigations can be made public at the target's request and concurrence of the PCC. They did not concur, citing 169-C:25. The Supreme Court ruled that that the file complaint was to be made public, except for only those portions covered by 169-C:25. Furthermore, the hearings are to be public.

All this will be a long and confusing process. Until it is resolved, I will limit my comments mostly to explaining and summarizing the documents involved. In order to help make sense of the following, here are the chronology and contents of the paper trail to date:

  • 1999 Jun 24: The complaint filed by Judge Smukler.
  • 1999 Jul 19: The notice to me about docketing the complaint.
  • 1999 Jul 25: My reply to the PCC.
  • 1999 Sep 8: The PCC's request for a Special Matters Confidential docket number.
  • 1999 Sep 9: My response presenting my case to make the complaint public.
  • 1999 Oct 4: A letter from Atty. Thomas Hanna introducing himself and saying he was assigned to investigate.
  • 1999 Dec 27: The NH Supreme Court ruling making the complaint public.
  • 2000 Nov 3: My letter to Judge Kelly telling him my understanding of the law.
  • 2001 Aug 8: Electronic mail to Thomas Hanna telling him to get moving.
  • 2001 Aug 20: A reply from Atty. Hanna promising to elevate this matter above others of "equal urgency."
  • 2002 Feb 8: Another letter to Thomas Hanna, to remind him I'm still waiting.
  • 2002 May 22: A grievance filed with the Judicial Conduct Commission against Thomas Hanna.
  • 2002 Jun 18: The JCC reply concluding that PCC members are not subject to the Code of Judicial Conduct.
  • 2002 Jul 22: The charges.
  • 2002 Aug 21: A letter clarifying my claim that people have the right to violate unconstitutional law.
  • 2002 Oct 17: The PCC has reached a decision and I'm reprimanded, but I'll appeal.
  • 2002 Nov 16: The appeal, which goes to the NH Supreme Court.
  • 2002 Dec 20: Oops - I miscalculated the due date for the appeal and was one day late.
  • 2003 May 1: The Supreme court appeal.
  • 2002 Oct 27 (out of sequence): Ken Starr offers two words of advice and support.


This is the Professional Conduct Complaint as redacted by the PCC. Links are to some of the rules and laws referenced in the complaint.

James L. DeHart, Esq.
Committee on Professional Conduct
Suite 304
4 Park Street
Concord, NH 03301

Re: Attorney Paula Werme

Dear Mr. DeHart:

Enclosed please find a copy of my order of June 24, 1999 in [Case Name Redacted], Merrimack County Docket # [Redacted] and a copy of a newspaper article referred to in that order.

Because Attorney Werme's possible participation in the process of disclosure to the newspaper of certain confidential information may implicate the Rules of Professional Conduct, see e.g. Professional Conduct Rules 1.2(d) and 8.4, I am sending these documents to you in conformity with my obligation under Supreme Court Rule 38, Canon 3B(3)(b), for whatever action the Committee deems appropriate. I am also sending a courtesy copy of this letter and the enclosures to Ms. Werme.

Sincerely,
 
Larry M. Smukler
Associated Justice


THE STATE OF NEW HAMPSHIRE

MERRIMACK, SS. SUPERIOR COURT

In the Matter of [Name Redacted]

No [Docket # Redacted]

Order

This is a child abuse proceeding brought under RSA 169-C:1, et seq. Before the Court is the Motion of the Court Appointed Special Advocate (CASA) for show cause hearing. The petitioner [DCYF] filed a concurrence to the CASA's Motion. Additionally, through [child's name redacted] through her attorney filed a motion for further orders re: confidentiality of juvenile proceedings pursuant to N.H. RSA 169-C:25 (II).

The CASA's motion, the petitioner's concurrence and the child all represent that the Sunday Monitor ran a headline story that indicates that confidential information about this proceeding was disclosed to the Monitor by the Respondent, [Respondent's Name Redacted], and her attorney, Paula Werme. Additionally, the child, through her attorney, represents that the disclosure of confidential information had an adverse effect upon her. See Motion for Further Orders at 2, 8. Citing RSA 169-C:25, CASA, the petitioner and the child request this Court to schedule a hearing at which the respondent and her attorney shall be required to show cause why sanctions should not be imposed.

RSA 169-C:25, II provides:

It shall be unlawful for any party present during a child abuse or neglect hearing to disclose any information concerning the hearing without the prior permission of the court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.

This statute, cited by the CASA, the petitioner and the child, establishes the sanction to be imposed - criminal liability. The Court cannot initiate this sanction; rather an appropriate prosecutorial arm of the State of New Hampshire must initiate it. In this context, a show cause hearing is not necessary.

Based on the foregoing, the Court rules as follows:

  1. The Court finds that the CASA, the petitioner and the child are correct in their representation that neither the respondent nor her attorney sought or obtained the prior permission of the Court for the disclosure of confidential information.

    Note, here Judge Smukler appears to be interpreting the statute to require Court permission to divulge any confidential information concerning the case. This is not required. RSA 170-G:8-a concerns most records of child abuse proceedings, and specifically exempts even Court pleadings and orders from the statute. RSA 169-C:25 only refers to HEARING contents.

  2. A copy of this order and the Newspaper article shall be forwarded to the Merrimack County Attorney for investigation and thereafter, for whatever action he deems appropriate in the exercise of his prosecutorial discretion.

    The Merrimack County Prosecutor declined to take any action, and forwarded the complaint to Mark Zuckerman of the NH AG's office.

  3. The parties are ordered to adhere to the confidentiality requirements of RSA 169-C:25. Accordingly, the parties are placed on notice that a violation of this order may constitute contempt of Court.

    An interesting paragraph, now that the Professional Conduct Committee has made this order public. Could I be held in contempt for releasing what the Supreme Court ordered released according to my request?

  4. To the extent that the CASA, the petition or the child seek additional sanctions that this Court may have the inherent authority to impose, they shall file pleadings specifying their requests no later than July 7, 1999. If such additional pleadings are filed, the respondent and her attorney will be provided an opportunity to respond in due course. The Court will then make a determination as to whether the matter will be addressed in the course of the hearing already scheduled for July 27, 1999.


This is the letter from the PCC to me formally notifying me of the complaint and describing the process.

July 19, 1999

Paula J. Werme, Esquire
83 North Main Street
Boscawen, NH 03303

Re: Werme, Paula J. advs. Professional Conduct Committee # 99-072

Dear Ms. Werme

The Committee on Professional Conduct has docketed this Committee generated complaint against you based upon the content of the enclosed documents:

1. Letter dated June 24, 1999 from Associate Justice Larry M. Smukler to James L. DeHart.

2. Order of the Merrimack County Superior Court dated June 24, 1999 In the Matter of [Child's Name Redacted], Merrimack County Superior Court No. [Docket Number Redacted].

3. Photocopy of the Newspaper Article Appearing in the Concord Monitor of June 13, 1999.

More specifically, the Committee calls your attention to allegations made by Judge Smuckler that your possible participation in the process of disclosure to the newspaper of certain confidential information may implicate certain Rules of Professional Conduct.

Involved in this complaint are questions under the Rules of Professional Conduct, in particular, but not limited to Rules 1.2(d), 8.4(a) and 8.4 (b). More specifically questions are raised as to whether you participated in the disclosure of confidential information to the Concord Monitor; whether by doing so you committed criminal acts or assisted your client in committing criminal acts; and because of the aforesaid conduct committed acts that are in violation of the Rules of Professional Conduct.

You are required to submit an original and two copies of your reply within 20 days of the date of this letter to Robert C. Varney, Vice-Chairperson, c/o James L. DeHart, Administrator, with a third copy to Robert C. Varney. See 2.3(b) of the Committee's Rules and Procedures.

IT IS EXPECTED THAT YOU WILL PROMPTLY RESPOND TO THE REQUESTS OF THE COMMITTEE. THE FAILURE TO COOPERATE WITH A DISCIPLINARY COMMITTEE COULD RESULT IN THE SCHEDULING OF A PUBLIC HEARING AND IN A FINDING THAT THE RULES OF PROFESSIONAL CONDUCT HAVE BEEN VIOLATED. RULE 8.1(B).

Following receipt of your reply, the Committee will take any further action it deems appropriate.

Please be advised that all matters relating to complaints submitted to this Committee, and any action taken by this Committee shall be confidential, unless otherwise provided by the Rules of the Supreme Court 37(17).

Pursuant to NH Supreme Court Rule 37(18), enclosed is a complete copy of Rule 37 as well as a copy of the Rules and Procedures of the Professional Conduct Committee.

Sincerely,
 
James L. DeHart
Administrator


Per the process, here is my reply to the complaint.

July 25, 1999

Robert C. Varney, Vice-Chairperson
c/o James L. DeHart, Administrator
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301

Re: Professional Conduct Complaint of Judge Smukler

Dear Mr. Varney,

I am in receipt of the letter of the Professional Conduct Committee dated July 19 requesting a reply to Judge Smukler's allegations. As you know, the statute complained of as possibly being violated was RSA 169-C:25, II, which provides that:

"It shall be unlawful for any party present during a child abuse or neglect hearing to disclose any information concerning that hearing without the prior permission of the Court. Any person who knowingly violates this provision shall be guilty of a misdemeanor."

As Judge Smukler indicated, the sanction for violation of the statute is criminal liability. To my knowledge, no one has ever been prosecuted in this state for violation of this statute, and as of this date, I am unaware that either myself or my client has been charged with its violation. I advise all of my child abuse or neglect clients that the statute, as applied to them, infringes their fundamental rights to political speech under the United States Constitution, Amendment I, and the New Hampshire Constitution, Article 22, Part I. As you know, Article 22 states:

"Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved."

I can only reconcile the statute with the constitution in one way. Inviolable means exactly what it says, and my clients' conduct is protected. Since my clients are the ones whose names are at the top of the Petitions for Abuse or Neglect, and they are the parties whose fundamental rights to the custody and control of their children being affected by the courts' decisions, they must be free to discuss any aspect of their case with anyone, anywhere, at any time, without the necessity of seeking the permission of the Court.

I am sure the committee is also aware of the ruling of Walker v. Birmingham, 388 U.S. 307 (1967). "The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it is invalid on its face." Unless, and until, the statute is upheld by the United States Supreme Court, I intend to continue advising my clients that it is unconstitutional.

I believe at this point that the matter of the level of my participation in legal conduct remains privileged. Should either my client or myself be convicted in the future of conduct relating to the [newspaper] article, I will be happy to provide the committee with further information at that time.

Sincerely,
 
Paula J. Werme, Esq.

Cc: Robert C. Varney, Vice Chairperson


Normally PCC complaints are secret, but a PCC rule allows the target of the complaint to request the hearings be made public. In this case, the PCC took 169-C:25 at face value and asked that be sealed "to protect the integrity of the statute." The NH Supreme Court is involved simply because the PCC is under the auspices of the Supreme Court.

September 8, 1999

Howard Zibel, Clerk
NH Supreme Court
Noble Drive
Concord, NH 03301

Re: In the Matter of Paula J. Werme, Esq.

Dear Mr. Zibel,

Enclosed is an original and 12 copies of a Petition for Protective Orders with regard to Paula J. Werme, Esquire. Based on the confidentiality issues, we request that this matter be given a Special Matters Confidential docket number.

Sincerely,
 
James L. DeHart

Administrator THE STATE OF NEW HAMPSHIRE SUPREME COURT

A quick search of the NH Supreme Court Rules reveals nothing about "Special Matters Confidential" docket numbers. There is no statutory authority for them.


In The Matter of
A Professional Conduct Complaint
Against Paula J. Werme, Esquire

PETITION FOR PROTECTIVE ORDERS

NOW COMES James L. DeHart, as Administrator of the New Hampshire Supreme Court Committee on Professional Conduct, and brings this Petition for Protective Orders on the basis that said orders are necessary to maintain the integrity of the confidentiality provisions of RSA 169-C, and in support thereof respectfully states as follows:

  1. That by letter dated June 24, 1999, Superior Court Associate Justice Larry M. Smukler sent the Professional Conduct Committee a copy of his order the same date in a juvenile proceeding, along with an undated copy of a story from the [newspaper].

  2. That Judge Smukler, in his letter, stated:

    Because of Attorney [Paula] Werme's possible participation in the process of disclosure to the newspaper of certain confidential information may implicate the Rules of Professional Conduct, see e.g. Professional Conduct Rules 1.2(d) and 8.4, I am sending these documents to you in conformity with my obligations under Supreme Court Rule 38, Canon 3B(3)(b) for whatever action the committee deems appropriate.

  3. That Judge Smukler's order specifically includes the name of the child as well as the name of the mother;

  4. That the newspaper story is about the mother and contains information about the judicial proceedings;

  5. That the committee docketed a Committee generated complaint against Ms. Werme and she responded;

  6. That the name and docket number of the Committee's file is Werme, Paula J. v. Professional Conduct Committee, # 99-072;

  7. That the Committee voted to assign the file to a member of the Committee for further review;

  8. That on September 7, 1999, the Committee received a brief letter dated September 4, 1999 which states:

    "Pursuant to your Committee Rule 17(4), I would like to request that the complaint against me be made public. Please advise me at your earliest convenience when I may disclose the facts of the allegation."

  9. That to allow the Committee's file to become public at this or any later stage would be inconsistent with the confidentiality requirements of RSA 169-C; and

  10. That the materials submitted by Judge Smukler to not lend themselves to being effectively redacted.

    WHEREFORE, the Committees on Professional Conduct respectfully prays:

    1. That this honorable Court, pursuant to its authority under Supreme Court Rule 37(17)(c), issue a protective order sealing the Committee file in Werme, Paula J. advs. Professional Conduct, #99-072.

    2. That this Court order that should any hearings be necessary before the Committee in # 99-072 that all hearings be closed.

    3. That the Court order all parties involved in Committee complaint # 99-072 not to publicly disclose information or materials submitted to the Committee which are protected by the confidentiality provisions of RSA 169-C.

    4. For other and such relief as may be just.

Respectfully submitted,
 
THE STATE OF NEW HAMPSHIRE
SUPREME COURT COMMITTEE ON
PROFESSIONAL CONDUCT

Sept. 8, 1999
/s/ James L. DeHart, Administrator


This was certainly not the direction I wanted this matter to follow. I also wanted to present this the house/senate committee investigating DCYF, but could not go against the Supreme Court's orders. Therefore, I asked them not to honor the request.

STATE OF NEW HAMPSHIRE
SUPREME COURT

In the Matter of
A Professional Conduct Complaint
Against Paula J. Werme, Esquire

RESPONSE TO THE PROFESSIONAL CONDUCT COMMITTEE'S
PETITION FOR PROTECTIVE ORDER

NOW COMES Paula Werme, Esquire, Respondent in the Above Petition for Protective Order and respectfully responds to the Professional Conduct Committee's Petition dated September 8, 1999 as follows:

  1. The complaint involved Judge Smukler's perception that I may have violated the Rules of Professional Conduct with Respect to encouraging or participating in disclosure of information regarding a child abuse case to the [newspaper] for a newspaper article concerning that case.

  2. The Statute in question, both on which the complaint is based, and the reason for the filing of this Petition is RSA 169-C:25 Confidentiality, which states:

    1. The Court records of proceedings under this chapter shall be kept in books and files separate from all other Court records. Such records shall be withheld from public inspection but shall be open to inspection by the parties, child, parent, guardian, custodian, attorney or other authorized representative of the child.

    2. It shall be unlawful for any party present during a child abuse or neglect hearing to disclose any information concerning the hearing without the prior permission of the Court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.

    3. All case records, as defined in RSA 170-G:8-a, relative to abuse and neglect, shall be confidential, and access shall be provided pursuant to RSA 170-G:8-a.

  3. Neither I nor my client have been charged with any crime pursuant to this statute, although the matter was reported by Judge Smukler to the Merrimack County Attorney's Office and subsequently, by Attorney James Anderson, to the NH Attorney General's office. The Merrimack County attorney refused to take action on the complaint.

  4. Nevertheless, Judge Smukler made a report to the professional conduct committee regarding my actions in the matter, without waiting for a response from the Merrimack County Attorney or the criminal process to determine whether either I or my client committed a crime.

  5. My response to the Professional Conduct Committee was based on First Amendment Grounds, as well as Article 22, Part 1 of the NH Constitution, which states "Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved."

  6. Based on Article 22 and the Professional Conduct Committee's own rule 17(4) on which I requested disclosure of the complaint against me, there is no "integrity" for the confidentiality provisions of RSA 169-C to maintain. It is a statute that violates the United States and NH Constitutions, and that was the essence of my response to the Professional Conduct Committee.

  7. Based on the circular reasoning of the Professional Conduct Committee, the substance of the complaint regarding my action or inaction regarding a disclosure about a child abuse case, (A First Amendment issue) based on a complaint from a judge, prior to a criminal charge being filed (which would result in a full and fair hearing on the constitutionality of the statute), should be suppressed (a violation of the First Amendment and Article 22, Part 1) to protect the integrity of the unconstitutional statute. This argument is untenable.

  8. Undersigned attorney wishes to disclose the nature of the complaint to the NH Legislative DCYF Field Practices Study Committee in order to lobby them to repeal the statute. The Field Practices Study Committee is meeting for public comment on September 29, 1999.

  9. Nevertheless undersigned Respondent is not opposed to limiting the disclosure of the complaint to:

    1. the nature of the allegation, without only so much information being disclosed to allow a person of reasonable intelligence to understand the nature and wording of the complaint, without disclosing information sufficient to identify the specific case to which the complaint refers.

    2. the subsequent correspondence and action of the Professional Conduct Committee action on the complaint, including this Petition to Seal the Complaint in violation of their own rules and Article 22, Part 1 of the NH Constitution.

    3. the failure of the judge to allow the criminal process to decide the issue of wrongdoing prior to filing a complaint of possible professional misconduct against me.

WHEREFORE, Respondent respectfully requests the following relief:

  1. A prompt hearing on the matter, in time for this Court to make a decision prior to September 29th public hearing of the DCYF Field Practices Study Committee

  2. A public hearing on the Motion to Seal, provided that at the hearing that no parties refer to the juvenile matter to which the complaint refers.

  3. For disclosure of the complaint pursuant to the Professional Conduct Committee rule 17(4), with such limitations as this Court deems just under the Constitution of the State of New Hampshire.

  4. For other and such relief as may be just.

Respectfully submitted,
 
September 9, 1999
/s/ Paula J. Werme, Esq. - NH Bar 12173
83 North Main Street
Boscawen, NH 03303
753-9384

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing response was forwarded to the Professional Conduct Committee this 9th day of September, 1999.

Paula J. Werme


This is the first mail I received from the person assigned to investigate the case. Little did I know I wouldn't hear from him at all the next year. I did reply promptly, but don't have that letter handy.

Thomas R. Hanna
Attorney
41 School Street
Keene, New Hampshire 03431

Personal and Confidential

October 4, 1999

Paula J. Werme, Esquire
83 North Main Street
Boscawen, New Hampshire 03303

RE: Werme, Paula J. advs. Professional Conduct Committee #99-072

Dear Ms. Werme:

I am writing to you in my capacity as a member of the New Hampshire Supreme Court Committee on Professional Conduct. The above-referenced complaint was recently referred to me for further investigation.

To facilitate my review and before I proceed further, I would appreciate your mailing or faxing to me a copy of Walker v. Birmingham, 388 U.S. 307 (1967).

At some point in the near future, I would like to speak with you regarding the allegation contained in the complaint. I would appreciate it if you would give me a call. If I am not available when you call, please let my secretary, Gloria, know what time would be best for me to return your call.

Thank you very much for your anticipated assistance in this matter. I look forward to hearing from you.

Sincerely,
 
Thomas R. Hanna
TRH/gmv
Cc: James L. DeHart, Administrator
     Committee on Professional Conduct


The Supreme Court finally acted and ruled that the important part of the proceedings be made public. However, they did not act in time to let me present this before the house/senate committee on DCYF Field Practices. The committee hasn't produced their final report. This information will be delivered soon.

STATE OF NEW HAMPSHIRE
SUPREME COURT

In Case No. SMC-99-003, In the Matter of Paula J. Werme, the Court upon December 27, 1999 made the following order:

The petition of the professional conduct committee for protective orders is granted in part and denied in part. The original professional conduct committee file shall be sealed. The committee, however, shall prepare a redacted version of the file which shall be made public. The public file shall not contain work product or internal memoranda of the committee. The committee shall redact only those portions of documents in the original file as necessary to comply with RSA 169-C:25.

The committee's request that any hearings be closed is denied without prejudice. The Court assumes that all parties shall comply with RSA 169-C, and therefore declines at this time to issue any order requiring parties not to disclose information or materials protected by the confidentiality provisions of RSA chapter 169-C. Cf. Keene Publishing Corp. v. Cheshire County Super. Ct., 119 N.H. 710, 712 (1979) (presumption against use of prior restraints on speech and publication.)

Howard J. Zibel,
Clerk


More than a year later and this case is still open! Oh well, I can't wait for the PCC to clarify things (it's not their job to interpret law anyway). Here's a letter I wrote to Judge Kelly to let him know where I stand on the issue.

November 3, 2000

The Honorable Edwin Kelly Administrative Judge - District Court PO Box 389 Concord, NH 03302-0389

Re: New Protocols for Abuse and Neglect Cases

Dear Judge Kelly,

I've now had time to review some of the protocols on the issue of abuse and neglect cases, and I would in particular like to point out to you one glaring error in the protocols. Protocol # 5 states:

All parties, witnesses, and others present shall be advised by the court, pursuant to RSA 169-C:25, that it is unlawful to disclose any information concerning the case records or hearings to any person.

I don't know how your courts define case records, but RSA 170-G:8-a, I specifically defines case records very narrowly, namely as:

I. The case records of the department consist of all official records, regardless of the media upon which they are retained, created by the department of health and human services in connection with a report received pursuant to RSA 169-C:29, or cases brought under RSA 169-B, 169-C, 169-D, or 463, or services provided to the child or family without a court order pursuant to RSA 170-G:4, including intake and assessment reports, service or case plans, case logs, termination reports and a list of persons or entities providing reports to the department or services to the child or family. Such records do not include:

(a) Records created as part of an action brought pursuant to RSA 170-B or 170-C.

(b) Records submitted to or maintained by the courts, or records created by third parties, such as psychologists, physicians, and police officers, even if such records are prepared or furnished at the request of the department.

Despite the narrow definition of what is prohibited from disclosure by the statute, it has, been, and will continue to be, my policy and practice to advise all of my clients, who consist almost exclusively of parents named in petitions for abuse or neglect, or non-offending parents, that this law is in violation of Article 22, Part 1 of the NH constitution, and is void as applied to them. As you well know, the right to defy unconstitutional laws is "basic to our scheme." Walker v. Birmingham, 388 U.S. 307 (1967). I will not tolerate any declaration that these "protocols" have the force and effect of law, particularly as this court may wish to implement these policies with respect to free speech. They are VOID.

I intend to continue to use court records legally furnished to me by clients and non-clients in the defense of charges of abuse and neglect, and to maintain my right to publish those record on the internet or otherwise, subject to appropriate releases from the parties furnishing the records to me. I suggest that the judges and others in child abuse and neglect matters take into consideration that their attempts to keep court pleadings and orders secret will be in vain, should citizens of this state decide to share them in the pursuit of freedom.

I enclose my web page on the matter, so you can see that I am extremely serious about my oath to preserve and protect the Constitution of the United States and New Hampshire, even when it means being brought in front of the Professional Conduct Committee. I trust you will do the same, and remove the offending language from the protocols.

Sincerely,
 
Paula J. Werme, Esq.

cc: Children and Family Law Committee


It's now more than two years since this complaint was filed. This is blocking my admittance to the US Supreme Court to file a Writ of Certiorari with them. This is not just affecting me, it's affecting my clients, and it's time to rattle the cage.

Date: Wed, 08 Aug 2001 13:58:16 -0400
To: <Thomas R. Hanna>
Subject: Since you haven't returned my telephone call

Jim DeHart told me that my PCC Complaint on the Concord Monitor news story has been assigned to you for legal research.

I consider it extremely unprofessional for you to have failed to do the small amount of legal research it would have taken to dismiss the PCC complaint on me for the violation of RSA 169-C:25.

Walker v. Birmingham, 388 U.S. 307 (1967) has not been overturned to my knowledge, and it takes only a first year legal student to shepardize the case.

This complaint is over two years old, and I wrote a letter to the PCC asking them to clear up my open PCC complaints in September of last year. My application for the US Supreme Court bar is now being held up because I have to explain my OPEN PCC complaints to them. This particular one is ridiculous, and your two year delay in resolving it is inexcusable.

I do not appreciate being told that you are "in a meeting" with clients when you haven't attended to your other responsibilities, and then not returning my phone call. Please do your job.


Well, I don't think Atty. Hanna completely appreciated the letter, but the cage is rattled. I had my client file the Writ of Certiorari Pro se. Not the way things should work....

August 20, 2001

Paula Werme, Esquire
83 N. Main St
Boscawen, New Hampshire 03303

Dear Ms Werme:

This will acknowledge receipt of your August 8 letter. I feel very bad that I have not completed my investigation of the PCC complaint against you and made my report to the full committee. I will endeavor to do so soon by elevating your matter above others of equal urgency. Also, I assure you that I will be objective and do the best that I can do notwithstanding your rather extreme comments. I particularly apologize for not returning your call on August 6. This year, I sandwiched 3 ½ days of work (August 6 through August 9) between two vacations, the latter of which ended this past weekend. Today is my first day back.

Sincerely,
 
Thomas R. Hanna

Cc: James L. DeHart, Administrator
New Hampshire Professional Conduct Committee


Well, six months later and nothing has happened. I'm not sure what I can do other than to remind him and others that I'm still waiting.

February 8, 2002

Thomas R. Hanna, Esq.
41 School Street
Keene, NH 03431

Dear Attorney Hanna,

I call your attention to your letter of August 20, 2001, in which you indicated that you would attempt to "elevate[] my matter above others of equal urgency." Your letter involves the professional conduct matter filed by Judge Smukler in 1999, a matter of which the Supreme Court is well aware, since it has already been the subject of an order concerning the complaint. Docket # SMC-99-003. It would appear that your efforts at investigation have been somewhat less than substantial in this regard. I spoke with Steve Varnum some months back, and he indicated to me that he has never heard from any member of the Professional Conduct Committee concerning the matter. Neither has my client. Nor have you spoken to me concerning the complaint.

I will remind you that as a member of the Supreme Court Professional Conduct Committee, your duties are judicial in nature. Supreme Court Rule 38, Canon 3B (2) states that "A judge should require his staff and court officials subject to his direction to observe the standards of fidelity and diligence that would apply to him."

I don't consider your actions in this matter to comport with the standards of diligence required of an court official subject to the direction of the NH Supreme Court judges. I once again ask you to do your job so this matter may be concluded.

Sincerely,

Paula J. Werme

cc: NH Supreme Court Justices


I give up. If I can't get action going to the principals myself, I guess it's time to file a grievance. Given that the PCC is part of the Supreme Court and that it has the power to mete out penalties, the Judicial Conduct Commission must be the relevant organization, so I filled in their grievance form on my typewriter.

02-017
RECEIVED MAY 22 2002

STATE OF NEW HAMPSHIRE
JUDICIAL CONDUCT COMMISSION
Grievance Cover Sheet

Your Name Paula J. Werme, Esq.
Street 83 N. Main St. City/State/Zip Boscawen, NH 03303
Telephone (603) 753-9384 E-mail

Please note that the Commission has no authority to change a judge's decisions or rulings. Our jurisdiction extends only to conduct that violates the Code of Judicial Conduct, which may be found at www.state.nh.us/jcc. Additionally, our rules prohibit us from considering conduct that occurred more than three years ago or grievances that have been filed with the Supreme Court Committee on Judicial Conduct.

In order to help the Commission understand the circumstances and specific conduct that you are complaining about please furnish the following information:

Name of Person(s) you are complaining about (Judge, Master, Clerk, Register, or other person):
Tom Hannah - Member - Supreme Court ProfessionaL Conduct Committee
Court where conduct occurred Supreme Court
Name of the case In the matter of Paula J. Werme, Esq.
Docket Number 99-072
What is the status of this case? "referred" to Tom Hanna "for further investigation."
Date(s) of Conduct October 4, 1999 - present
Did you witness the conduct in question?   Yes   No
If not, how were you affected by the conduct? Mr. Hannah has not contacted me, except fo his initial letter, nor has he investigated the complaint, nor has it been closed.
Have you filed a complaint about this conduct with the Supreme Court Committee on Judicial Conduct?   Yes   No
Describe the conduct you are complaining about and summarize the supporting evidence:

Violation of Canon 3A(5), 3B(2). Tom Hannah, or the members of the Supreme Court, failed to exercise due diligence in the investigation of the complaint resulting in the complaint being open foralmost three years. I have informed the committee that I wanted to be admitted to the U.S. Supreme Court to practice, however, OPEN complaints, even ones that are in the investigatory stage, are grounds in the U.S. Supreme Court for them to NOT consider the application. As I pointed out to Tom Hanna, this complaint is ridiculous, as it involves First Amendment and Article 22 rights of my clients. Attached to this complaint is my web page on it, which contatins most of the relevant info. I am also enclosing an affidavit from Steve Varnum, the newspaper reporter.

I hereby represent that I have not filed this complaint with any other disciplinary group and upon receipt of a decision in this case, I agree not to refile the complaint with any other similar agency or Commission.

I swear or affirm under pains and penalties of perjury that the information contained in this grievance is true to the best of my knowledge.

Signature /s/Paula J Werme Date 5-20-02

Commission rules require that you keep confidential the fact that you have filed a grievance until the Commission brings formal charges against the judge or otherwise disposes of the grievance.

Mail to: Judicial Conduct Commission, 501 South Street, Bow, NH 03304


They disagree, but did forward the grievance on to the PCC. Apparently they concluded that the PCC is the body that disciplines the PCC. Checks and balances? At least they took less than a month.

STATE OF NEW HAMPSHIRE
JUDICIAL CONDUCT COMMISSION

June 18, 2002

Paula J. Werme, Esquire
83 North Main Street
Boscawen, New Hampshire 03303

Dear Ms. Werme:

At its meeting on June 14, the Commission determined that the grievance you filed concerned a person that is not subject to the Code of Judicial Conduct and, therefore, dismissed your complaint.

Pursuant to Rule (5)(d)(1) of our Procedural Rules, we are returning your grievance to you as well as forwarding a copy of your frievance to James DeHart, Esp. of the N.H. Supreme Court Committee on Professional Conduct for his review.

Ms. Margaret Lynch recused herself and left the meeting during the consideration of this matter.

Sincerely,
 
Donna Sytek
Chairman


Well, finally the PCC acts. They didn't dismiss the complaint as I had hoped, but have scheduled a hearing.

The State of New Hampshire Supreme Court

Professional Conduct Committee
4 Park Street, Suite 304
Concord, New Hampshire 03301
(603) 224-5828 - fax (603) 228-9511

July 22, 2002

Certified Mail #7001 251000043977 4187
Return Receipt Requested

Re: Werme, Paula J. advs. Professional Conduct Committee #99-072

NOTICE OF CHARGES

To: Paula J. Werme, Esquire
83 North Main Street
Boscawen, New Hampshire 03303

In accordance with New Hampshire Supreme Court Rule 37 A(3)(b)(2) you are hereby notified that a hearing on the above entitled matter has been scheduled for Wednesday , August 21, 2002 at 1:00 p.m. at the Administrative Office of the Courts Building, Noble Drive, Concord, New Hampshire. Will you please inform the receptionist of your arrival.

In this Committee generated complaint, which has been redacted per Order of the Supreme Court dated December 27, 1999 in Case No. SMC-99-003 In the Matter of Paula J. Werme (the redacted version of which will be used at the public hearing in this matter), and which was based upon a letter dated June 24, 1999 from Associate Superior Court Justice Larry M. Smuckler to James L. DeHart and documents enclosed with that letter, your attention was directed to allegations made by Judge Smuckler that your possible participation in the process of disclosure to the newspaper of certain confidential information may implicate certain Rules of Professional Conduct. Specifically, Judge Smuckler had provided the Committee with a copy of an Order of the Merrimack County Superior Court dated June 24, 1999 in a certain child abuse proceeding and a copy of an article from the Concord Monitor dated June 13, 1999 entitled "Defending herself, mother fights for her child"; that the order of Judge Smuckler indicated that the matter that was before the Court was a motion of the Court Appointed Special Advocate ("CASA") for a show cause hearing in which the petitioner in the case had filed a concurrence; that the child, through her attorney filed a motion for further orders regarding the confidentiality of juvenile proceedings' pursuant to N.H. RSA 169-C:25(II); that the CASA' s motion, the petitioner's concurrence and the child represented that the Sunday Concord Monitor ran a headline story that indicated that confidential information about the proceeding before the Court was disclosed to the newspaper by the respondent and by you, who were representing the respondent; that the child, through her attorney, represented that the disclosure of this confidential information had an adverse effect on the child; that, citing RSA 169-C:25, CASA, the petitioner and the child requested the Court to schedule a hearing at which the respondent and you would be required to show cause why sanctions should not be imposed; that the statute, which was cited by the CASA, the petitioner and the child, established the sanction to be imposed which is criminal liability; that the Court did not have the power to initiate this sanction, but, rather, an appropriate prosecutorial arm of the State of New Hampshire must initiate it; that the Court indicated that neither the respondent nor you had sought or obtained the prior permission of the Court for the disclosure of the confidential information; that the Court ordered that the order and the newspaper article would be forwarded to the Merrimack County Attorney; and that the Court further ordered that the parties were to adhere to the confidentiality requirements of RSA 169-C:25 and that violation of the order might constitute contempt of court.

In your response to this complaint you indicated that the statute complained of as being possibly violated was RSA 169-C:25, II which provides the following:

It shall be unlawful for any party present during a child abuse or neglect hearing to disclose any information concerning that hearing without the prior permission of the Court. Any person who knowingly violates this provision shall be guilty of a misdemeanor;

that Judge Smuckler indicated that the sanction for violation of the statute is criminal liability; that to your knowledge, no one has ever been prosecuted in this State for the violation of this statute and as of the date of your letter of response, you were unaware that either you or your client had been charged with its violation; that you advise all of your child abuse and neglect clients that the statute, as applied to them, infringes their fundamental rights to political speech under the United States Constitution, Amendment I, and the New Hampshire Constitution, Article 22, Part I; that Article 22 states the following:

Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved;

that you can only reconcile the statute with the Constitution in one way; that inviolable means exactly what it says, and your clients' conduct is protected; that, since 'your clients are the ones whose names are at the top of the Petitions for Abuse or Neglect, and they are the parties whose fundamental rights to the custody and control of their children are being affected by the courts' decisions, they must be free to discuss any aspect of their case with anyone, anywhere, at any time, without the necessity of seeking the permission of the Court; that you were sure that the Committee is aware of the decision of the United States Supreme Court in Walker v. Birmingham, 38 U.S. 307 (1967) in which the Court stated that "(t)he right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it is invalid on its face;" that unless, and until, the statute is upheld by the United States Supreme Court, you intend to continue advising your clients that it is unconstitutional; that you believed, at the point that you drafted your answer to the complaint, that the level of your participation in legal conduct remains privileged; and that should either your client or you be convicted in the future of conduct relating to the Concord Monitor article, you will be happy to provide the Committee with further information at that time. This paragraph is only a summary and reference is made to your answer for further detail.

Involved in this complaint are questions under the Rules of Professional Conduct, in particular, but not limited to Rules 1.2(d); 3.4(c); 8.4(a) and 8.4(b). More specifically questions are raised as to whether you participated in the disclosure of confidential information to the Concord Monitor; whether by doing so you committed criminal acts or assisted your client in committing criminal acts; whether by doing so you knowingly disobeyed an obligation under the rules of a tribunal; and whether, because of the aforesaid conduct, you committed acts that are in violation of the Rules of Professional Conduct.

You are hereby advised that any failure to attend this hearing may subject you to findings of professional misconduct and to the imposition of or request for appropriate sanctions.

Any and all further notices concerning this hearing, including any adjournment thereof, shall be given by Margaret H. Nelson, Vice Chair of the Committee. There will be no continuances except for extremely good cause shown.

You are advised that you may be represented by counsel at the hearing and that you may have witnesses present and may present evidence in your own behalf. You are further advised that the New Hampshire Supreme Court has issued an order In the Matter of Paula J. Werme, dated December 27, 1999 in which it stated, in denying (without prejudice) the Committee's request that any hearings in this matter be closed, that it "...assumes that all parties shall comply with RSA chapter 169-C...". The hearing panel intends to strictly adhere to the provisions of that statute and to require strict compliance with the statute with regard to all exhibits and testimony received at the hearing. Should anyone not comply with the provisions of this statute, the hearing will be immediately terminated and appropriate relief will be sought.

It is important to note that in any given matter, not every member of the hearing panel is likely to have read the entire file. For this reason you should be prepared to present your position at the hearing. To the extent that additional documentation will be presented, it is requested that at least four copies be submitted to the panel. Professional Conduct Committee

By: James L. DeHart, Administrator

JLD/ksc
cc: Margaret H. Nelson, Vice Chair
Thomas R. Hanna, Hearing Panel Chair
Paula J. Werme, Esquire
Regular Mail

F:\OFFICE\WPWIN\DOCS\HEARING\O2HRNGS\99-072.AUG


At the hearing the Committee and I spent most of the time discussing the legality of disobeying laws that are obviously unconstitutional. This took me by surprise, as I assumed it was common knowledge among people interested in the law. They were also concerned that I referred to a dissent in a decision involving the legality of disobeying an unconstitutional court order. The following note refers to a case that directly considered the question.

August 21, 2002

James L. DeHart, Administrator
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301
Re: 99-072 Paula Werme v. Professional Conduct Committee

Dear Mr. DeHart,

At today's hearing on this professional conduct complaint, there was extensive discussion on the right to disobey an unconstitutional ordinance v. the duty to obey an unconstitutional court order. The committee mentioned that the cases cited in the dissent of Walker v. Birmingham would be made a part of the record in support of my statement that my clients have no duty to obey an unconstitutional statute.

There was an additional case discussed, pulled from my Constitutional Law Black Letter book, Shuttlesworth v. City of Birmingham, 394 U.S. 147.

Noting that Shuttlesworth involves the same people involved in the Walker case, the court came to the opposite conclusion of the Walker holding, for the reason I originally pointed out in my answer to the committee. I would at this time submit this case to the committee in support of my position, and point out to them in particular footnote # 7 on p. 9 of the computerized print out. It states, as I explained to the committee today, that the issue of violating an unconstitutional court order is a different issue than the right to disobey an unconstitutional law. It also squarely holds that one has a right to disobey an unconstitutional law infringing one's First Amendment rights.

Hopefully, this will bring this matter to a prompt resolution. Thank you.

Sincerely,

Paula J. Werme


There is a Reprimand. I will appeal.

The State of New Hampshire Supreme Court

Professional Conduct Committee
4 Park Street, Suite 304
Concord, New Hampshire 03301
(603) 224-5828 - fax (603) 228-9511

October 16, 2002

Paula J. Werme, Esquire
83 North Main Street
Boscawen, New Hampshire 03303

Re: Werme, Paula J. advs. Professional Conduct Committee -#99-072

REPRIMAND

Dear Ms. Werme:

The Professional Conduct Committee has thoroughly reviewed the entire record of the above entitled matter .

After giving due consideration to this record the Committee finds:

  1. that you represented a mother in a 1998 DCYF case on appeal to the Merrimack County Superior Court;

  2. that after the Court (Smuckler, J.) ruled against the mother on appeal, a newspaper article about the case appeared In the Concord Monitor on June 13, 1999;

  3. that the article was entitled "Defending Herself, Mother Fights for her Child";

  4. that the article contained quotes about the case from both you and your client;

  5. that, in the article, the author explained how he accessed the confidential documentary evidence about the case: "[The mother] loaned extensive medical, psychological and court records to the Monitor so her story, which had been confined to confidential court proceedings and documents, could be told publicly .";

  6. that you did not seek Judge Smuckler's prior approval, as required by RSA 169-C:25(II), before you and your client spoke to the Monitor;

  7. that in response to the Monitor article, the attorney for the child filed a pleading indicating that "the disclosure of confidential information had an adverse effect on her.";

  8. that Judge Smuckler subsequently referred your actions both to the Merrimack County Attorney's Office and the Professional Conduct Committee;

  9. that the Merrimack County Attorney's Office did not bring charges against either you or your client;

  10. that as of the date of the Professional Conduct Committee hearing on this matter (August 21,2002), the statute of limitations for a criminal charge under RSA 169-C:25(II) has expired;

  11. that you readily admitted that, in advance of the interview, you "advised" your client to violate RSA 169-C:25(II);

  12. that you also admitted that, in advance of the interview, you were "absolutely" aware of RSA 169-C:25(II) and its criminal penalty;

  13. that you believed that you were entitled to advise your client to violate RSA 169-C:25(II), as it is "unconstitutional on its face";

  14. that you testified that you will continue to advise clients to violate this statute,

    [In my original reply it's worded a bit differently:

    I advise all of my child abuse or neglect clients that the statute, as applied to them, infringes their fundamental rights to political speech under the United States constitution, Amendment I, and the New Hampshire Constitution, Article 22, Part I....

    ... Unless, and until, the statute is upheld by the United States Supreme Court, I intend to continue advising my clients that it is unconstitutional.]

  15. that based on your admissions that you were aware of RSA 169-C:25(II) and its criminal penalty at the time that you advised your client to violate it, the Committee found clear and convincing evidence of a violation of Rule 1.2(d);

  16. that Rule 1.2(d) permits a lawyer to counselor assist a client in making a good "faith effort to determine the validity, scope, meaning and application of the law but such a good faith effort should have included a "discussion of the legal consequences to the client of the proposed conduct; and

  17. that because of the above cited conduct there is clear and convincing evidence that you engaged in conduct involving professional misconduct and violation of the Rules of Professional Conduct and that you, therefore, violated Rule 8.4(a).

The Committee finds that because of the above conduct you are guilty of professional misconduct and in violation of Rules 1.2(d) and 8.4(a) of the Rules of Professional Conduct. Finally, the Committee made a finding of no professional misconduct on your part with regard to Rules 3.4(c) and 8.4(b).

This letter of Reprimand is issued because of this misconduct and a copy will be placed in your permanent file. The findings in this matter may be considered in determining the severity of discipline imposed for any further violation.

You are entitled to appeal a Reprimand by filing a written notice of appeal in accordance with the Rules of the New Hampshire Supreme Court.

The Professional Conduct Committee
 
By: Margaret H. Nelson, Chair

MHN/bg

F:\OFFICE\WPWIN\DOCS\CONCLUSN\O2CLOSED\99-072.REP


The appeal format is a little odd and several pages long, so I made it a separate page. The following is the heart of the appeal, the questions for the justices to consider.

  1. If an attorney is required by solemn oath to support the Constitution of the United States and of New Hampshire, and upholds that solemn oath by advising a client that article 22 of the NH Constitution gives her an inviolable right of free speech (meaning speech that is within the definition of speech protected by the first amendment and article 22), is it a violation of the Rules of Professional Conduct rule 1.2 (d) to tell the client, based on U.S. Supreme Court case law, that a law infringing that right is unconstitutional, void on its face, and need not be followed?

  2. Given that the original notice of charges did not refer to facts alleging that she did not advise her client as to the possible consequences of proposed conduct, can an attorney be reprimanded on that basis when she was not on notice that she had to submit evidence as to her compliance with the requirement?

  3. Can an attorney be reprimanded for failing to seek permission of the court to disclose or advising her client that it is legal to disclose confidential records, including court records, psychological records or medical records in the absence of a statute prohibiting such behavior or requiring permission of the court or requiring permission of the court to do so?

  4. Is a reprimand admonishing an attorney for telling only a client, as opposed to the world at large, that a statute constitutes an unconstitutional prohibition on free speech simply a means of imposing an unconstitutional time, place and manner restriction on that speech, and punishing otherwise protected first amendment and article 22 speech as well as the right of the client to receive the information?


Attorney meltdown. . . . You might get the impression I don't give a flying rip any more, and you'd be right!

I filed my PCC appeal one day late, and Justice Duggan ordered me to brief whether or not it should be dismissed.

STATE OF NEW HAMPSHIRE

SUPREME COURT

DOCKET # 02-0719

Paula J. Werme v. Professional Conduct Committee

MEMORANDUM ON WHETHER THE APPEAL SHOULD BE DISMISSED AS UNTIMELY FILED ISSUE

Should the Supreme Court dismiss the appeal of Paula J. Werme on a finding of professional misconduct based on the appeal being filed on Monday, November 18, 2002, when the 30 day time for appeal expired on Friday, November 15, 2002?

FACTS [You want facts? I'll give you facts!]

In June of 1999, an article appeared in the Concord Monitor regarding one of undersigned attorney's child protection cases in the Merrimack Superior Court . As a result of the article, the judge on the case, Judge Smukler referred undersigned attorney to the Professional Conduct Committee on June 24, 1999 and a complaint was generated by the Committee on July 19, 1999. Undersigned attorney replied to the Committee on July 25, 1999. As a result of undersigned attorney's request that the complaint be made public in early September of 1999, the Professional Conduct Committee petitioned this Court for an order prohibiting the complaint from becoming public on September 8, 1999. On September 9, 1999, this attorney replied to that request, and further requested a prompt resolution of that Petition, as undersigned attorney intended to testify in front of the NH Legislature on September 29, 1999. (Docket # SMC99-003, Response to Professional Conduct Committee, Paragraph A.). This Court ruled on the Petition on December 27, 1999, almost three months after the legislative hearing.

In the meantime, on October 4, 1999, Committee member Thomas Hanna sent a letter to undersigned attorney stating that the complaint was assigned to him for "further investigation." At that time, he also requested a copy of Walker v. Birmingham, 88 U.S. 307 (1967), which undersigned attorney had referred to in her reply to the Committee. Undersigned attorney promptly complied with that request, and heard nothing further. On June 14, 2000, undersigned attorney wrote to Robert Varney, requesting prompt consideration of two professional conduct complaints then pending against her, stating "Due Process includes the concept of timely consideration of matters involving a person's liberty interest. It includes the right to have the matters decided as well. A person's interest in their law license, and their interest in their reputation are both interests protected by the Due Process clause." On September 25, 2000, undersigned attorney again wrote to James DeHart, administrator of the Professional Conduct Committee, and again asked for prompt consideration of her (then three) outstanding complaints. In it, she cited her intent to appeal Samantha L. to the Supreme Court should the appeal fail in the NH Supreme Court, and submitted a bar application for the U.S. Supreme Court, which asked if any complaints were pending. FN 1. She subsequently submitted an application to the U.S. Supreme Court for admission, and it was promptly returned with her application fee and a letter stating that it would not be considered due to the pending professional conduct matters.

On August 8, 2001, undersigned attorney wrote to Thomas Hannah, indicating that she was anxious to have the matter resolved, and complained that she thought that two years was enough to do the small amount of research required to verify that one has a right to violate an unconstitutional law. She checked with her client, who had heard nothing from the Committee, and had moved to a location where she was not easily contacted. Undersigned attorney also spoke with the reporter, Steve Varnum, formerly of the Concord Monitor. She obtained an affidavit from him in September of 2001 that he had heard nothing from the Committee. On August 20 of 2001, Attorney Hanna replied to undersigned attorney's letter, stating that he would "attempt to elevate this matter above others of equal urgency." [that included his vacation, mentioned in the letter!] Meanwhile, hearings were finally scheduled for two of the three complaints in November of 2001, and they were eventually resolved without reprimands. Undersigned attorney heard nothing further on the Smukler complaint, and wrote to Attorney Hannah on February 8, 2002, to remind him she was still waiting.

On May 22, 2002, undersigned attorney filed a grievance with the Judicial Conduct Commission against Thomas Hanna. On June 18, 2002, the Commission wrote back, indicating that they did not believe they had jurisdiction to hear a complaint on a member of a Supreme Court Committee, and closed the complaint, filing a copy of their letter and undersigned attorney's grievance with the Professional Conduct Committee. In early July, undersigned attorney received word that charges would be filed, and that a hearing would be scheduled for August. On July 22, of 2002, undersigned attorney received the NOTICE OF CHARGES, and the hearing was set for August 20, 2002.

Much of the hearing was spent explaining to the six committee members hearing the matter that, even though the statement regarding the right to violate unconstitutional laws was in the dissent in Walker v. Birmingham, that the proposition was still good law, because that particular case involved whether or not one had a right to violate an unconstitutional court order. Undersigned attorney perceived during that discussion that the delay of three years in bringing the complaint to hearing was because no one on the committee either wrote for clarification based on their misperception that every word of a dissenting opinion was an inaccurate statement of the law. Undersigned attorney submitted an additional Supreme Court case to the Committee on August 21, 2002, Shuttlesworth v. Birmingham, 394 U.S. 147 (1967), which squarely supported undersigned attorney's legal position, and the Committee rendered its decision on October 17, 2002. In their finding, they appeared to have assumed facts not in evidence, as they made a finding that undersigned attorney's effort to "determine the scope, validity, meaning and application of the law" should "have included a discussion of the legal consequences to the client of the proposed conduct." Since the issue was not in the original COMPLAINT generated by the Committee, or the NOTICE OF CHARGES, no evidence was requested or submitted on that point.

Undersigned attorney, as a result of miscalculating the 30 day deadline for appeal, submitted the appeal on Monday, November 18, 2002, instead of Friday, November 15, the 30th day from the date of decision.

ARGUMENT

THE COURT SHOULD WAIVE THE RULE BECAUSE THE ISSUE IS IMPORTANT, AND THE MATTER MAY NOT COME UP AGAIN DUE TO A CHANGE IN THE STATUTE

Since the filing of the complaint, the legislature changed the wording of RSA 169-C:25, which is the confidentiality provision of the Child Protection Act. It now permits anyone to discuss what happened in a hearing, provided that the parties are not identified. RSA 169-C:25. While undersigned attorney believes that the statute is still unconstitutional as applied to the accused parents, she does not disclose the identities of her clients without their express permission. For her purposes, which is usually in explaining to either the legislature or others how the Child Protection Act works, it is generally unnecessary to use even that information. Never-the-less, some states have held the confidentiality provisions of their child protection acts to be unconstitutional, e.g. Care and Protection of Edith, 421 Mass. 703, 659 N.E.2d 1174 (1996). Undersigned attorney was not given the opportunity to litigate the constitutionality of the conduct in a criminal setting, because the state did not pursue prosecution of either her client or her. Given that she had no reason to believe there were any prosecutions under the old statute, and that the state had adequate opportunity to pursue the matter in her own case, it is even more unlikely that they would pursue any violation that the statute has been changed. fn2 In addition, it is clear that the statute is widely violated with few, if any consequences to the violators. fn3

THIS COURT HAS THE ABILITY TO WAIVE THEIR RULE AND JUSTICE IN THIS CASE WEIGHS IN FAVOR OF WAIVER

There is no question that the NH Supreme Court generally does not favor late filings of appeals. When a statute states that an appeal must be filed within 30 days of a lower court or agency decision, it is a jurisdictional requirement, and any appeal filed as a result of a miscalculation of a due date must be rejected. When there is no statutory bar to jurisdiction, and justice requires, the Court has the authority to waive the rule. In this case, the inexcusable delays of the Professional Conduct Committee in hearing the matter, and recent changes in federal law weigh in favor of waiving the rule.

This court found inexcusable neglect when an attorney filed an appeal 18 months after the due date when the statute permitted relief for the court to allow late filings under terms and conditions as justice may require. Brady v. Duran, 117 N.H. 275 (1977). In addition, this court has "often strictly adhered to deadlines and other procedural requirements and have denied relief to delinquent parties whose excuses for noncompliance were more meritorious than the excuses offered in the present case. E.g., Pelham Plaza v. Pelham, 117 N.H. 178, 370 A.2d 638 (1977); Timberlane Page 277 Regional Educ. Ass'n v. Crompton, 115 N.H. 616, 347 A.2d 612 (1975); Alden v. Kimball, 104 N.H. 454, 189 A.2d 494 (1963); Sullivan v. Indian Head Nat'l Bank, 99 N.H. 262, 109 A.2d 572 (1954)." Id., 117 N.H. 275, 372 A.2d 283 (1977).

However, this court has also granted relief in some cases by waiving the rules, as permitted in Supreme Court Rule 1, e.g. State v. Cotell, 143 N.H. 275 (1998).

Under the federal rule, mere negligence in the failure to comply with a filing deadline, can be "excusable neglect." The U.S. Supreme Court's analysis indicates that "Congress plainly contemplated that the courts would be permitted to accept late filings caused by inadvertence, mistake, or carelessness, not just those caused by intervening circumstances beyond the party's control. They were "in substantial agreement with the factors identified by the Court of Appeals." Pioneer Investment Services v. Brunswick Assoc. Ltd., 507 U.S. 380 (1993), The Court took into account the following relevant factors: The Court took into account the following relevant factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and the potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith." Under this analysis, overlooking a court deadline because of miscalculation of the due date is excusable, and the case changed the law of excusable neglect in all federal courts. This Supreme Court also opined that "It is this [excusable neglect] requirement that we believe will deter creditors or other parties from freely ignoring court-ordered deadlines in the hopes of winning a permissive reprieve under Rule 9006(b)(1)." They clearly did not believe that their decision would result in a flood of cases being filed untimely.

This court could decide to waive the rule based on the excessive delays of the Professional Conduct Committee in hearing the matter, or it could choose to follow Pioneer and to redefine "excusable neglect" to bring it into line with current U.S. Supreme Court law. There are good reasons in this case for doing so:

  1. Undersigned attorney waited almost three years for a hearing on a complaint, because the rules of the Professional Conduct Committee don't proscribe any time limitations on when any given matter should be set for hearing.

  2. The delay of the Professional Conduct Committee in bringing the matter to a hearing, and their failure to "investigate" the matter for three years before scheduling a hearing had serious, negative consequences for undersigned attorney, who was unable to apply for membership in the U.S. Supreme Court bar during that three year time frame solely because a complaint or complaints were pending against her. A strict application of the rules against the Petitioner, when Petitioner had no rule or similar means to effectuate a timely resolution of the open complaints against her is blatantly unfair.

  3. Using the factors in Pioneer weighs in favor of waiving the rule and permitting the appeal. There is no prejudice to the other party, as the finding has negligible impact on the Committee itself. The length of the delay was short, one business day, which is consistent with a miscalculation of the due date of the appeal, and it weighs in favor of a finding of good faith on the part of the petitioner, and the reason for the delay of one day. In this case, the matter was under her control, but the U.S. Supreme Court has rejected the notion that mere negligence in calculating a due date should be grounds for rejecting a late filing in all instances.

CONCLUSION

This court has the discretion to waive the time limitations on filing the appeal. Despite late filing, there are good reasons to waive the rules. Undersigned Petitioner urges the Court to look at all of the factors, including the relatively new federal interpretation of "excusable neglect," and the inaction of the Professional Conduct Committee in waiting three years to schedule the matter for hearing without contacting her, her client, or the newspaper reporter involved in the complaint to investigate the facts. In light of the excessive delay of the Professional Conduct Committee in bringing the matter to hearing, justice requires that an honest mistake resulting in a delay of one business day in filing the appeal should not be grounds for dismissing the appeal when there is no statutory bar to jurisdiction.

Respectfully submitted,
 
December 20, 2002
Paula J. Werme, Esq.
83 N. Main St.
Boscawen, NH 03303

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing MEMORANDUM has been mailed to the Professional Conduct Committee, c/o James DeHart, 4 Park St., Suite 304, Concord, NH 03301 this 20th day of December, 2002.

FOOTNOTES

[fn1] Samantha L. was not appealed to the U.S. Supreme Court because the week after the decision was rendered by this court, Judge Smukler made an order that the child would be returned home, and if "no pleadings" were filed before March 15, 2001, the case would automatically close. The 90 day deadline for filing the U.S. Supreme Court appeal naturally fell within that window. Despite the constitutional guarantee that the right to appeal should not be rendered meaningless by negative consequences of the appeal itself, undersigned attorney full well knew the negative consequences of the first appeal on her client, and chose not to subject her to the same risk by a Supreme Court appeal.

[fn2] Both Judge Smukler and DCYF attorney James Anderson requested prosecution in the matter, Judge Smukler from the Merrimack County Attorney's office, and James Anderson through the Attorney General.

[fn3] Undersigned attorney had a conversation with another attorney from the seacoast area in early 1999, and the attorney asked her if she heard about the ruling in Merrimack County where the court held that the mother's failure to believe that her child was abused constituted grounds for a finding. Although she doesn't recall the attorney's name, she clearly recalls his statement that "Even DCYF couldn't believe that one!" Certainly, the other attorney was speaking of the case that brought about the charges against undersigned attorney, and he stated he had gotten the information from someone in DCYF.


I finally got the brief for the appeal finished and delivered to the court and all the other parties involved. Now the PCC's lawyer writes a response. The brief (1) is too big to include here and (2) defies porting to HTML, thanks to things like footnotes, etc. So its out as a separate PDF file.


My husband and I attended an event that featured a short talk by Ken Starr, the independent prosecutor in the Whitewater (et al) affair. I bought a copy of his new book on the U.S. Supreme Court. After talking to him about my difficulties in getting fellow lawyers to appreciate the Constitutional issues in this case, he wrote:

Be strong


The NH Supreme Court has upheld the decision. They determined that it doesn't make a difference if the statute was unconstitutional, that I should have challenged the statute in court before advising a client of the words of the US Supreme Court. "The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it is invalid on its face." Walker v. Birmingham, 388 U.S. 307 (1967) I will appeal. It will be expensive, however. If you wish to make a donation to the appeal fund, please forward checks to Paula Werme , 83 N. Main St., Boscawen, NH 03303


Contact Paula Werme, Esq. or return to Law Practice home page.

Last updated 2003 December 19.