Writ of Mandamus

Writ of Mandamus

By: Daniel Richard

What is a Writ of Mandamus?

A (writ ofmandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. (See, e.g. Cheney v. United States Dist. Court For D.C. (03-475) 542 U.S. 367 (2004) 334 F.3d 1096.) According to the U.S. Attorney Office, “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”

Document to follow:

STATE OF NEW HAMPSHIRE

MERRIMACK COUNTY SUPERIOR COURT

Docket No:______________________________

Daniel Richard

v.

Speaker of the House of Representatives Stephan Shurtleff

Senate President Donna Soucy

COMPLAINT FOR MANDAMUS AND PROHABITION

Now comes the Plaintiff, Daniel Richard Sui juris, a Citizen of the State of New Hampshire bringing this Complaint for Mandamus and Prohibition.

INTRODUCTION

Our Constitutional Republic stands upon the unassailable proposition that we are a country of laws, not of individuals. When public officials elevate and enforce personal agenda’s over the laws of the State, and our Constitution …thus violating our Republican form of government, our government becomes imperiled. When leadership of the legislative bodies refuse to present, as is their duty, information which the Constitution of New Hampshire expressly affirms, and that clearly informs the Citizen of the means by which to instruct their representatives by petition or remonstrance, then by this obstruction, they not only violate their oath, but keep their fellow representatives ignorant to what the people, (the body-politic,) by their rights to a redress of grievance, are telling them. Consequently so, this leads the Plaintiff to his final means of recourse, by requesting such a mandamus, and therefore involving the Courts of New Hampshire.

PARTIES

  • Daniel Richard is a Citizen of the State of New Hampshire, and is a qualified Inhabitant of the State, and he dwelleth and hath a Home in the State of New Hampshire.

95 Rockingham Rd. Auburn, N.H. 03032

  • Stephan Shurtleff serves as a Representative for Merrimack – District 20, and is the Speaker of the House of Representatives.

107 N. Main St. Concord, N.H. 03110

  • Donna Soucy serves as a State Senator for District 18, and is President of Senate.

107 N. Main St. Concord, N.H. 03110

JURISDICTION AND VENUE

This Court has jurisdiction as the court of general jurisdiction in New Hampshire,

RSA 491:7, and has jurisdiction to issue a writ of mandamus.

This Court has authority to issue orders, which state within, the actions the Constitution proscribes. Those actions are defined by the Constitution, instructing that the legislative bodies shall assemble for redress of grievances of the people, to wit, Part I., Bill of Rights, Article XXXI., and Article XXXII., and in unlawful disregard, by concealment and ommission, the defendants did not present the Plaintiff’s remonstrances to any committees.

Venue is proper, as a Constitutional Remonstrance is a formalised protest, by a Citizen of the State, brought before the General Court of the State, also implicating and involving every county, statewide.

CONSTITUTIONAL PROVISIONS

  • The Plaintiff has the fundamental right to require that all public officials be held accountable at all times, Part I. Bill of Rights, Article VIII.;
  • The Plaintiff has the fundamental right under Part I Bill of Rights, Article XXXVIII. …to require of his law-givers, an exact and constant observance to the fundamental principles of the New Hampshire Constitution, and to direct the formation and executions of the laws necessary for the good administration of government;
  • The Plaintiff is not controllable by any laws other than those to which the Inhabitants, or their representative body, “the voters” have given their consent to, including, but not limited to observing and directing the creation, enactment and enforcement of, or the repeal of, or the amending of the laws of the land. N.H. Constitution, Part I, Article XII;
  • The Plaintiff has a fundamental right to require of the General Court to assemble for redress of grievance, for correcting, strengthening and confirming of the laws. N.H. Constitution, Part I, Article XXXI.;
  • The Plaintiff has a fundamental right, to require of the General Court to assemble and consult upon the common good, for his right, and to give instruction to his representatives, to correct legislative acts that are repugnant and contrary to the New Hampshire Constitution by way of remonstrance; as a remedy for redress of wrongs done to Citizens; by seeking remedy for the weight of the damages and grievances the injured party, the Plaintiff, suffers. N.H. Constitution, Part I, Article XXXII. And,
  • As a point of Facts, while the General Court picks a speaker and a president for their bodies, it does not provide for, or, permit the suppression of a petition or remonstrance, and it never allows by any rule, statute or law, the concealing or omission of lawfully submitted documents, from said legislative membership bodies.

FACTUAL BACKGROUND

  • The Plaintiff filed a Remonstrance on May 20, 2019 with the office of the Secretary of State of New Hampshire, Office of the Governor, Clerk of the House of Representatives and the Clerk of the Senate, remonstrating N.H. RSA Chapter 654, concerning the voting laws of the state. N.H. RSA Chapter 654 is repugnant and contrary to the New Hampshire Constitution. The constitutional questions that where put to the voters on the November ballot of 1976, were intentionally misleading and deceptive. Re: The N.H. Supreme Court;

we likewise continue to be governed by the principle that the clearly expressed intent of the voters must prevail over any undisclosed purpose.”

…as is cited in 1967 THOMAS W. GERBER v. JOHN W. KING & a., (Concrete Co. v. Rheaume Builders, 101 N. H. 59, 61; Opinion of the Justices, 101 N. H. 541, 542; Penrod v. Crowley, 82 Idaho 511).

  • The Plaintiff filed a second Remonstrance on Jan 6, 2020, with the office of the Secretary of State of New Hampshire, office of the Governor, Clerk of the House of Representatives and the Clerk of the Senate, remonstrating the proposed legislation of HB 687-FN, a.k.a. a Red Flag Bill.
  • Speaker Shurtleff claims that he may suspend, and continues to do so, the Plaintiff’s Constitutional rights. He has negated the Speakers Constitutional obligation to provide the plaintiff with due process as aforesaid, as well as to not provide his legislative body with the documents as so they may be informed, as stated in Article XXXI., and Article XXXII. and,
  • President Soucy has deprived the Plaintiff of his Constitutional rights, and has failed in her Constitutional duty to provide the Plaintiff, due process and redress of grievance by refusing to provide both above noted Remonstrances to the Senatorial body. Senatorial Chief of Staff Donald Manning and Senatorial legal Counsel, Greg Silverman, have refused to answer the Plaintiff queries as to why said Remonstrance’s have not been publicly presented as required by the Constitutional Articles for the redress of grievance, and, by the due process, which is required by the Said Constitution.

BACKGROUND OF THE DISPUTE

  • The Plaintiff has filed two separate Remonstrances with the Clerk of the House of Representatives, and the Clerk of the Senate, remonstrating the unconstitutional changes to 1.) the N.H. voting laws “NH RSA Chapter 654,” and, 2.) the proposed “HB 687-FN,” a.k.a. a Red Flag Bill.
  • Speaker Shurtleff has not acknowledged his responsibility under New Hampshire Constitution, nor under House rules, to provide the due process and access to legislative actions for redress of grievances, denying the Plaintiff his Rights stated in the New Hampshire Constitution, Part I., stating that a Citizen may bring a “petition” or “remonstrance” to the General Court. Speaker Shurtleff has been, and is currently concealing the Plaintiffs Remonstrance from the House of Representatives, and by “citing” House rules of procedure for a “petition,” which, by House rules does not supersede the Constitution, and he continues to prevent the due process and the redress of grievance, which have always been required per N.H. Constitutional writ, for a Remonstrance.
  • President Soucy has not acknowledged her responsibility under New Hampshire Constitution, and, has refused to answer the Plaintiff’s Remonstrances, nor, has she taken due obligatory action to present said documents to the Senatorial body. By seeking to alter certain legilative outcomes President Soucy has ignored the possession and receipt of my Remonstrances, and, has deprived the Senatorial body of vital, lawfully submitted knowledge, thus keeping the Senatorial membership body ignorant as to their Citizen’s concerns, and she continues to do so. Therefore she is denying the People of New Hampshire of, and, the Plaintiff of, the protected Right to Constitutional redresses of legislative wrongs.
  • On May 20, 2019, the Plaintiff filed his first Remonstrance with the House Clerk, Paul Smith. Smith tried to refuse the Plaintiff’s filing. Smith then tried to coerces the Plaintiff to change his Remonstrance to a petition, and the Plaintiff refused to change his Remonstrance to a petition. The Plaintiff instructed him to check his Constitution, as he apparently did not know what a Remonstrance is. Smith, consequently, did confirm the Plaintiffs right under Part I, Article XXXII, and did receive the Plaintiff’s Remonstrance.
  • On July 23, 2019, a meeting was held at the request of the Chief of Staff of the House, Eileen Kelly, and House legal counsel Jim Cianci, from the Office of the Speaker. The Clerk of the House, Paul Smith, and Eileen Kelly represented the Speaker’s position. The response to the Plaintiff and the witnesses attending the meeting was presented by Paul Smith and Eileen Kelly, and evidenced in their writing (see their attached notes), their response was styled to defend their actions, whereby they attempted to justify their concealment and suspension of the Plaintiff’s Constitutional Rights by citing House rules of “procedure for a petition” – to which, no rules may over rule the regimen affirmed in the N.H. Constitution for a Remonstrance.
  • On July 23, 2019, Rep. Raymond Howard, David Dapkus and the Plaintiff called on the Office of the President of the Senate and were received by the Chief of Staff of the Senate, Donald Manning. Manning denied all knowledge of the Plaintiffs Remonstrance filed two (2) months earlier. Manning assured us that he would get back to us with an answer. No answer, to this date, has been forthcoming.
  • Plaintiff spoke with Legal Counsel for the Senate Greg Silverman and received the same response, a polite denial with the promise of a return call with an answer. No answer, to this date, has been forthcoming.
  • On January 6, 2020, The Plaintiff filed a second Remonstrance against the red flag bill titled HB-687-FN culminating in the results as my previous filings, and subsequently, as a second depravation of the rights to due process and redress of grievances by treating the second Remonstrance, again, as a Petition.
  • On January 8, 2020, Representative Raymond Howard from Alton, N.H. was summoned by Speaker Shurtleff to his Office to inform him that Plaintiff’s Remonstrance has been received, and that A Notice of Receipt would be published in the next publication of the House Calendar, which did happen, see attached copy. This violates again the Speakers duty to assign said Remonstrance to house committee for a hearing.
  • On January 8, Speaker Shurtleff, after receiving the Plaintiffs second remonstrance, and as the custodian of the Plaintiff Remonstrance’s as filed with Clerk of the House, Paul C. Smith, two (2) days earlier, did in fact, act in bad faith by concealing for the second time, the Plaintiff’s second Remonstrance from the members of the House, therefore, denying them knowledge of it, and the Plaintiff of his constitutionally protected right to remonstrate the proposed legislation, which is proposed legislation that is clearly and irrefutably repugnant and contrary to the New Hampshire and Federal Constitutions.
  • On January 10, 2020 the Clerk of the House, Paul C. Smith published a NOTICE in the HOUSE CALENDAR, stating;

A remonstrance has been filed with the New Hampshire House regarding House Bill 687, It is available for inspection in the Office of the Clerk of the House.”

LEGAL ARGUMENT

  • The Constitution of New Hampshire is the supreme basis for, and of the Laws of this State. It begins with and ends with the consent of the people, the qualified inhabitants to retain power onto themselves. One power is the right to present a petition or remonstrance. Part I, Article I;

All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.”

  • And, similar context is found at the end of the Original New Hampshire Constitution, Part II., Form of Government;

; provided that no alteration shall be made in this constitution before the same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters present, and voting upon the question.” June 4, 1784

The State Constitution precludes the General Court from amending the Laws of the Land, the Constitution, without the consent and approval of the representative body of the people, the Qualified Inhabitants of the State by a 2 thirds majority of the voters, in the bi-annual elections.

  • Speaker Shurtleff and President Soucy do not possess any Constitutional, statutory, or discretionary authority to refuse to act within their duties within the New Hampshire Constitution, duties which they take an oath to uphold, nor to suspend the Constitutional Rights of the Plaintiff, and they have hereby neglected their Constitutional obligations to protect the Plaintiffs Rights, those rights and duties which they have sworn an obligatory oath to defend and protect.
  • Speaker Shurtleff and President Soucy do not possess any Constitutional, statutory, or discretionary authority to conceal a Citizens filed Remonstrance to instruct their representatives, nor do they possess the authority to prevent the public recording of a constitutional remonstrance.
  • Speaker Shurtleff and President Soucy do not possess any Constitutional, statutory, discretionary authority to conceal a Citizen filed Remonstrance; nor do they possess the authority interfere with the legislative process by depriving the members of the General Court the knowledge of a lawfully filed Remonstrance, to affect the outcome of certain proposed legislation, to wit, HB 687-FN.
  • Speaker Shurtleff and President Soucy do not possess any Constitutional, statutory, or discretionary authority to conceal and omit a Citizen filed Remonstrance, nor do they possess the authority to interfere with any investigation into the claims by the Plaintiff that they have violated, each, their Oaths’ of Office.
  • Any citation of any rules of the General Court, written or omitted, whether by design or by inattention, which change the intent of the Constitution, are repugnant and contrary to the New Hampshire Constitution.

Certainly, all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the Legislature repugnant to the Constitution is void.”

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.” Marbury v Madison, 5 U.S. 137 (1803)

As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us, and it is our responsibility today. “Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them.” United States Supreme Court; Miranda v. Arizona, 384 U.S. 436

HISTORY OF REMONSTRANCE IN NEW HAMPSHIRE

  • The first use of a Citizen Remonstrance in New Hampshire was filed on November 7, 1783, a week after the ratification of the Constitution of New Hampshire October 31, 1783. This was done protest a legislative act.
  • James Madison famously remonstrated in his Memorial and Remonstrance of in June of 1785 to protest (Remonstrate) the petition that Patrick Henry had proposed to the General Assembly of the Commonwealth of Virginia on December 3rd, 1784, a bill “establishing a provision for Teachers of Religion” as was reported to the General Assembly of Virginia. James Madison answer was a Remonstrance.
  • N.H. Constitution article XXXII provides the constitutional right to redress of grievances by two different acts, both of these actions have two different definition’s and two different uses;
  • The petition may be used to make a request of the General Court, to perform an act constitutionally delegated to the General Court by the Constitution.
  • Remonstrance may be used to protest any legislative act that is repugnant or contrary to the Constitution or to remonstrate (protest) a proposed legislative act. These two words “Petition” and “Remonstrance” are not synonymous. What they have in common is that they are both memorials, as defined;

CAUSES OF ACTION

COUNT I

Writ of Mandamus

  • All factual allegations in this Complaint are incorporated herein.
  • A writ of mandamus is used to compel a public official to perform a ministerial act that the official has refused or neglected to perform. Petition of CIGNA Healthcare, 146 N.H. 683, 687 (2001). “The court may issue a writ of mandamus where the petitioner has an apparent right to the requested relief and no other remedy will fully and adequately afford relief.” Id.
  • The Plaintiff request an order compelling Speaker Shurtleff and President Soucy, of the General Court, to refer said Remonstrances to said committees for public hearing as stated in the Constitution for redress of grievance. Said Memorial and Remonstrance, and the following Remonstrance shall be received and read into the public record for action upon the legislative body to act as per the Constitution.

COUNT II

Writ of Prohibition

  • All factual allegations in this Complaint are incorporated herein.
  • A Writ of Prohibition prevents “officers or persons from usurping or exercising jurisdiction with which they are not vested.” Petition of CIGNA Healthcare, 146 N.H. at 687. / A Writ of Prohibition will lie “when the necessity to act is clear.” American Fed’n of State, County and Municipal Employees Local 572 v. City of Dover, 115 N.H. 491, 492 (1975); See also New Hampshire Retail Grocers Ass’n v. State Tax Comm’n, 113 N.H. 511, 516 (1973), (a prohibition issued to prevent state agency from enforcing an erroneous interpretation of the law).
  • Plaintiff requests an order Prohibiting Speaker Shurtleff and President Soucy, on behalf of the General Court, from concealing, or exercising any jurisdiction over any document filed or by concealing, omitting or holding such a document from being publicly recorded and heard.

The remedy of mandamus and prohibition provide full and adequate relief.

  • This dispute is inherently about the exercise of undelegated powers by Speaker Shurtleff and President Soucy.
  • The Defendants, Speaker of the House Shurtleff, and President of the Senate, Soucy, in their capacity as officers of the General Court, have no constitutional or statutory authority to conceal any document filed with their clerks of their respective offices.
  • A writ of mandamus is designed for the “amelioration of exigent circumstances and the correction of a plain legal error by the government.” Guarracino v. Beaudry, 118 N.H. 435, 437 (1978): see also Petition of CIGNA Healthcare, 146 N.H. 683, 687 (2001) (this remedy is used to compel a public official to perform a compulsory act that the official has refused to perform); c.f. New Hampshire Practice (Civil Practice and Procedure) § 38.29[3] (3d ed. 2010) Mandamus relief may be issued where the petitioner has an apparent right to the requested relief and no other remedy will fully and adequately afford relief. Petition of CIGNA Healthcare, 146 N.H. at 687.

The Plaintiff Will Suffer Irreparable Harm Without such Relief.

  • The Plaintiff is a Citizen of the State of New Hampshire, and his rights, and the rights of every Citizen of this State as secured in both Constitutions, must be upheld.
  • As a Citizen of the State of New Hampshire the Plaintiff is entitled to the faithful execution of the laws of the land established by the New Hampshire Constitution. Intervention is needed as the jurisdiction for correcting, strengthening and confirming the laws, as delegated to the legislature in Part I, Article XXVIV; “the power of suspending the laws, ought never to be exercised but by the legislature, or by authority derived therefrom,” and this fact is also codified in Article XXXI.

REQUESTS FOR RELIEF

  • Wherefor, the Plaintiff respectfully request that this Honorable Court enter the following relief:
  • Issue orders;
  • compelling Speaker Shurtleff and President Soucy to act upon the Remonstrance’s as defined by the Constitution.
  • An order preliminarily and permanently enjoining the Speaker Shurtleff and President Soucy, of the General Court from concealing, or omitting lawfully filed documents.
  • An order preventing the removal of due process to the Plaintiff. Allow his Constitutional right to redress of grievance. So, he may suffer no more the loss of his Constitutional rights.
  • Such other actions, remedy or relief as the Court deems just and proper.

Respectfully submitted,

Daniel Richard

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