I blogged about this case several months ago; Gavel to Gavel reports that the New Hampshire legislature is considering whether to pass a “bill of address” asking the governor to remove the judge who issued the decision:
A bill of address requires only a simple majority of both the House and Senate and need not specify any “bribery, corruption, malpractice or maladministration, in office” as in the case of an impeachment. “The governor with consent of the council may remove any commissioned officer for reasonable cause upon the address of both houses of the legislature…” …
Here’s the text of the bill of address:
The House of Representatives and Senate in General Court convened, under Part 2, Article 73 of the New Hampshire Constitution, satisfied that the public good requires that Michael Garner, Marital Master, should no longer hold and retain his judicial office and that there is reasonable cause for his removal, respectfully address and request the governor, with the advice and consent of the council, to remove said Marital Master Michael Garner from office.The cause for removal of the said Michael Garner is that he brought his office and the judiciary into disrepute, and exceeded his constitutional authority and abused his discretion, resulting in the failure to preserve the rights of individuals appearing before him of their liberty by not providing an impartial interpretation of the laws, contrary to Part I, Article 35 of the New Hampshire Constitution, when he recommended to the presiding justice an order removing a child from an educational setting on the basis of religious prejudice, depriving them of their liberty of conscience guaranteed by Article 4 and their religious freedom guaranteed by Article 5 thereof.
The underlying case is apparently pending before the New Hampshire Supreme Court.
Anderson says:
Interesting. I think I’m opposed to impeaching judges on the basis of a bad decision, but this intermediate step is less objectionable.
Still, the proper response to a bad decision is to appeal. I would want to see a “pattern and practice” of bad law from a judge before thinking that the legislature should step in.
February 9, 2010, 11:47 pmAnderson says:
P.S. – “Marital Master” is funny.
February 9, 2010, 11:49 pmBill Raftery says:
For those who are interested, tomorrow Gavel to Gavel will look at a similar bill of address targeting the Judge (Lucinda Sadler) who signed off on the marital master’s recommendation. Thursday, there’s yet another bill of address against another marital master over his rulings in custody and child support proceedings.
February 10, 2010, 12:00 amrequired says:
Ain’t gonna happen.
If the bill gets a vote (should die in committee) it won’t pass because it would cause a show down between the legislature and the judiciary, and the situation isn’t yet that dire. Heck, if somehow it gets out of committee I expect at least 2 of the sponsors to go on record as opposing it. There is tension in NH between the citizenry and the judiciary right now (more like the last 10 years) and this is part of that.
Long story short, NH had (has) some bad (not quite bad enough to be called corrupt as the term is often used) judges abusing the offices and no way to discipline them properly. Right now the state is trying to find a way to deal with bad judges and this is part of it. Currently this is manifesting itself in legislature and this is the legislature showing it has power over the judiciary, trying to force the judiciary to reform the discipline process.
Make of this what you will, but the actual issue has little to do with one judge’s specific ruling.
February 10, 2010, 12:57 amGeorge says:
He brought the judiciary into disrepute by making a lousy recommendation? How about removing the judge for noticing the prejudice, and then issuing the bad order anyway.
February 10, 2010, 2:54 amPreference for Public School Over Homeschooling — and Maybe Private Schooling — Because It Provides “Exposure to Different Points of View”? | Liberal Whoppers says:
[...] the article here: Preference for Public School Over Homeschooling — and Maybe Private Schooling — Because It Provi… [...]
February 10, 2010, 3:58 amox says:
What exactly was wrong with this decision? The judge decided that a child would be better served getting a public school education, rather than being home-schooled by a mother who appears to be using religious education to alienate her child from her father and others? It’s not at all clear from Volokh’s previous description of the case that the content of the religious beliefs is doing any work in the decision. The judge values diversity of viewpoints in education because such exposure is important for the child’s relationship with her father and with others. Courts, including the U.S. Supreme Court, have routinely expressed support for the state’s compelling interest in promoting education that brings students into contact with a diversity of perspectives (e.g., Yoder (despite the outcome), Mozert, Grutter, among others). Whatever you think about the judge’s decision, it is not obviously inconsistent with long-standing legal precedent, and indeed may well conform to that precedent.
I’m surprised that Volokh hasn’t said anything about the idea of censuring this judge. No comment on removing a judge over a disagreement with the reasoning behind what he (and most others) concede is, at the end of the day, a correct decision? Seems like significant, culture-war style, over-reaching by the legislature.
February 10, 2010, 8:13 amEric Rasmusen says:
This is a very good sign. Judges do not get disciplined for bad decisions, and many lawyers think that no matter how stupid, unfair, and unlawful a decision, there should be no consequence for the judge except being overruled (unless he accepts a little money for it, in which case suddenly impeachment kicks in, even if the decision is not especially bad).
February 10, 2010, 10:36 amChris Travers says:
Maybe he is a master at marital arts?
February 10, 2010, 10:47 amChris Travers says:
I think the fundamental issue (IMHO) is not the decision but the standard. In most states, judges have an extremely free hand to discriminate against points of view in divorce cases. As noted a few days ago, Washington State is fairly restrained in this area but NH is not. The “best interest of the child” standard, reviewable only under an abuse of discretion standard is nothing more than an invitation to the judge to take control and order whatever he thinks is best.
On the surface this doesn’t seem so bad, but as one digs deeper I think it raises substantial Constitutional problems. Individuals have been denied custody (and still are in many states today) due to religious beliefs (including atheism), political affiliations, and the like, so in general doing “what’s best for the child” is inseparable from punishing the parents for advocating unpopular points of view. When I raised these points in previous discussions, several lawyers couldn’t see the problem with this. However consider these:
1) Should a court be able to rule against a parent on the basis that he/she advocates drug legalization on the theory that exposing the child to those ideas will make the child more likely to abuse drugs?
2) Should a court be able to rule against a parent solely because the court believes the religious beliefs of the parent are less beneficial to the child than the other’s? I.e. if you have a Methodist divorcing a Church of Satan member, should the court be able to consider which religion the court feels is in the best interests of the child without even showing a clear danger for harm?
I remember reading an appellate opinion in a divorce case where the trial judge awarded custody to the father because the father alleged that the mother was a Wiccan. The mother denied the claim and argued she was a Baptist. The court held that it was better to be a baptist than a Wiccan and therefore awarded custody to the father because there was some doubt about the mother’s actual religion. The panel, 2-1, sided with the trial judge. The dissent argued that this was nothing more than a witch hunt (his words, iirc).
If divorcing parents are punished for advocating unconventional or unpopular points of view, of what value is the first amendment?
February 10, 2010, 10:58 amChris Travers says:
Maybe. However, it isn’t clear to me that this is about anything more than the lack of popularity of the opinion. Really, the solution is to change the law, not to change the judge. One would think the legislators, of all people, would get that…..
February 10, 2010, 11:01 amArthurKirkland says:
This should depend on the circumstances of the decision spurring the efforts to remove the judge.
I hope this child is strong enough to overcome the unusual obstacles she confronts.
February 10, 2010, 11:01 amEarly Bird says:
That’s true, but the problem I have with this incident (the legislature trying to oust the judge) is that the legislature created this standard, the judge followed it, and the legislature wants to fire the judge because it doesn’t like the outcome. Would it be too much to ask for the legislature to coome up with a better standard before they go around firing people?
February 10, 2010, 11:29 amSteve says:
I would be interested to know if the legislature is seriously considering this bill or if it’s just a stunt by one or two legislators. After all, technically Congress is considering a bill to reinstate the draft, but it really wouldn’t be fair to offer that as a statement of fact.
February 10, 2010, 11:48 amChris Travers says:
Exactly.
Changing the law is a better approach than changing the judge :-)
Not that somehow we demand our legislators to do their jobs….
February 10, 2010, 11:49 amChris Travers says:
You know…. if we want to become physically stronger, we have to work against physical resistance.
If we want to become personally stronger, we have to work against personal resistance.
I have been through enough unusual obstacles in my life (bullied every day as a kid, victim of domestic abuse at the hands of my college girlfriend, assaulted by a street gang) that I am actually thankful that I have gone through all of that. I am a stronger person today because of what I have gone through and it helps me be more successful.
If there is a message that can be communicated to the girl in question here, that is what it needs to be.
February 10, 2010, 11:53 amLaura(southernxyl) says:
Chris, that works for some people. Other people are permanently broken by bad experiences that they couldn’t rise above. I used to make my daughter go to school through ear infections, etc., because she was sick so often that the alternative was to shut her life down. The outcome was that she has a tremendous work ethic and is soldiering on at her job right now even as she is trying to recover from mono and possibly went back to work too soon. But if I could have spared her the ear infections and migraines and so on, I certainly would have. You can get to a point with the misery that it’s not worth the payoff.
“I’m not a Wiccan, I’m a Baptist!” Isn’t that a line from “The Princess Bride”?
February 10, 2010, 12:31 pmChris Travers says:
I actually think that what makes some people more successful than others is how they are taught to address obstacles.
For example, my understanding is that failure is something we all go through on the road to success. Other people think success is something you go through on the road to failure. This results in a tremendous difference in approaching problems.
This is why I was saying that it is important to communicate to the girl involved that if she faces the problems directly and strives her way through them (as your daughter did), they can lead her to a better point of strength.
On the other hand, if we pity her, and lament that she will become damaged, we help make that happen, unfortunately.
February 10, 2010, 1:42 pmChris Travers says:
Laura:
This was the decision iirc.
February 10, 2010, 1:48 pmChris Travers says:
One more point.
My oldest son has OCD as was evident from the time he was old enough to play with toys (he would line them up and sort them by size or color and get upset if anyone disturbed his sense of order). One thing I have to do is identify some of those issues and disturb them.
After my second son was born, he started freaking out and refusing to eat of the infant was near the table. Like all things, my approach was to force him to work through the resistance. I would identify things that REALLY pissed him off and do them remarkably frequently. This was because he was too young to get to do the typical behavioral therapies and so it was a substitute.
The result was that the OCD became more manageable very quickly. He still has some issues but by identifying them and countering them, I am able to help him become strong enough to overcome the obstacles. It seems cruel on the surface but the result is a happier kid.
February 10, 2010, 1:53 pmGeorge says:
Chris, you are lucky that you did not have a marital master, family court judge, or other disinterested expert second-guessing your parenting. If you had, you might have been accused of emotional abuse and lost the kid.
February 10, 2010, 3:36 pmChris Travers says:
Yep. And that is sad commentary on our society, is it not?
February 10, 2010, 4:16 pmLaura(southernxyl) says:
Chris, that’s an interesting case.
This:
The dog bites are definitely a concern and he could have stopped right there.
Diaper rashes can be the result of neglect, or they can just happen. They can get bad fast, too. They’re only a problem if no one is trying to address them.
Dirty fingernails and toenails on a toddler? Give me a break.
A bad earwax condition – well, I’d have to see a ped. report on that. Also on the facial fungus. Ringworm happens. As with the diaper rash, its presence isn’t indicative of anything unless it’s not being treated, in which case it is.
This from the mother:
is definitely problematic, though.
And this:
is just bizarre. Why does anyone care if she practices Wicca, and why would she lie to the kid’s father about it – just to stir him up? Well, she stirred him, all right. But I still don’t think her religion is relevant to the case. The dog bite on the shoulder and the untaken prescription drugs are enough IMO.
And this part is just funny:
February 10, 2010, 9:20 pmohwilleke says:
If it passed and the NH Supreme Court overturned the ruling, I wonder if there might be a constitutional challenge to the validity of the NH Supreme Court ruling on the grounds that its independence was compromised in a pending case violating a right to due process.
February 10, 2010, 9:58 pmChris Travers says:
Quite possibly. I thought the dissent’s suggestion that it should have been remanded was correct. Religion is very frequently used in custody decisions in many parts of the country. I would have been happier to see a harder line taken there.
The case should have been remanded for additional hearings regarding exactly what the circumstances were regarding the dog bite, etc.
February 11, 2010, 12:21 amlosantiville says:
diversity of viewpoints in education
Did the Marital Master conduct fact finding to determine if slave schools were more diverse than home schools or private schools?
I note a lack of diversity in the left-wing, secular schools in my vicinity (both slave and private).
No weapons training. No actual history. No intro to even the basics of Western Civ. Complete lies about the morals of naked savages, the benefits of draining swamps, the benefits of clearing forests. Complete absence of religious ed.
Awful lot of missing material. Narrow ideological perspective as well.
Maybe some of the little slaves (those forced to labor in the fields of academe) should be assigned to home schools to diversify their experiences.
February 11, 2010, 2:45 pm