Street 83 N. Main St. City/State/Zip Boscawen, NH 03303
Telephone (603) 753-9384 E-mail
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:
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. 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.
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:
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:
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.
The Merrimack County Prosecutor declined to take any action, and
forwarded the complaint to Mark Zuckerman of the NH AG's office.
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?
This is the letter from the PCC to me formally notifying me of the complaint
and describing the process.
Paula J. Werme, Esquire 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.
Per the process, here is my reply to the complaint.
Robert C. Varney, Vice-Chairperson 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.
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 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.
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 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:
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.
"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."
WHEREFORE, the Committees on Professional Conduct respectfully prays:
Sept. 8, 1999
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 In the Matter of
RESPONSE TO THE PROFESSIONAL CONDUCT COMMITTEE'S
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:
WHEREFORE, Respondent respectfully requests the following relief:
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.
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.
Personal and Confidential
October 4, 1999
Paula J. Werme, Esquire 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.
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 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.)
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.
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.
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 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.
Cc: James L. DeHart, Administrator
Committee on Professional Conduct
Suite 304
4 Park Street
Concord, NH 03301
Sincerely,
Larry M. Smukler
Associated Justice
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.
July 19, 1999
83 North Main Street
Boscawen, NH 03303
Sincerely,
James L. DeHart
Administrator
July 25, 1999
c/o James L. DeHart, Administrator
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301
Sincerely,
Paula J. Werme, Esq.
NH Supreme Court
Noble Drive
Concord, NH 03301
Sincerely,
James L. DeHart
A Professional Conduct Complaint
Against Paula J. Werme, Esquire
Respectfully submitted,
THE STATE OF NEW HAMPSHIRE
SUPREME COURT COMMITTEE ON
PROFESSIONAL CONDUCT
/s/ James L. DeHart, Administrator
SUPREME COURT
A Professional Conduct Complaint
Against Paula J. Werme, Esquire
PETITION FOR PROTECTIVE ORDER
Respectfully submitted,
September 9, 1999
/s/ Paula J. Werme, Esq. - NH Bar 12173
83 North Main Street
Boscawen, NH 03303
753-9384
Paula J. Werme
Thomas R. Hanna
Attorney
41 School Street
Keene, New Hampshire 03431
83 North Main Street
Boscawen, New Hampshire 03303
TRH/gmv
Sincerely,
Thomas R. Hanna
Cc: James L. DeHart, Administrator
Committee on Professional Conduct
SUPREME COURT
Howard J. Zibel,
Clerk
Sincerely,
Paula J. Werme, Esq.
Date: Wed, 08 Aug 2001 13:58:16 -0400
To: <Thomas R. Hanna>
Subject: Since you haven't returned my telephone call
83 N. Main St
Boscawen, New Hampshire 03303
Sincerely,
Thomas R. Hanna
New Hampshire Professional Conduct Committee
| 02-017 RECEIVED MAY 22 2002 |
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 June 18, 2002
Paula J. Werme, Esquire 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.
Well, finally the PCC acts. They didn't dismiss the complaint as I had
hoped, but have scheduled a hearing.
Professional Conduct Committee July 22, 2002
Certified Mail #7001 251000043977 4187 Re: Werme, Paula J. advs. Professional Conduct Committee #99-072
NOTICE OF CHARGES
To: Paula J. Werme, Esquire
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
JLD/ksc 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.
James L. DeHart, Administrator 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.
Paula J. Werme
There is a Reprimand. I will appeal.
Professional Conduct Committee October 16, 2002
Paula J. Werme, Esquire 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:
[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.] 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.
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.
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:
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.
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.
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:
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.
JUDICIAL CONDUCT COMMISSION
83 North Main Street
Boscawen, New Hampshire 03303
Sincerely,
Donna Sytek
Chairman
4 Park Street, Suite 304
Concord, New Hampshire 03301
(603) 224-5828 - fax (603) 228-9511
Return Receipt Requested
83 North Main Street
Boscawen, New Hampshire 03303
By: James L. DeHart, Administrator
cc: Margaret H. Nelson, Vice Chair
Thomas R. Hanna, Hearing Panel Chair
Paula J. Werme, Esquire
Regular Mail
August 21, 2002
Professional Conduct Committee
4 Park Street, Suite 304
Concord, NH 03301
Re: 99-072 Paula Werme v. Professional Conduct Committee
Sincerely,
4 Park Street, Suite 304
Concord, New Hampshire 03301
(603) 224-5828 - fax (603) 228-9511
83 North Main Street
Boscawen, New Hampshire 03303
The Professional Conduct Committee
By: Margaret H. Nelson, Chair
Respectfully submitted,
December 20, 2002
Paula J. Werme, Esq.
83 N. Main St.
Boscawen, NH 03303
