Board of Contributors: To address DCYF failures, dust off the state constitution

  • Supreme Court Justice William Rehnquist is shown on July 30, 1986. AP

For the Monitor
Published: 5/20/2017 12:14:58 AM

The next generation of constitutional litigation over the failure of our state government to protect the interests of children will have an influential intellectual godfather: former New Hampshire Supreme Court Justice Charles Douglas.

Writing as a scholar in the late 1970s, Justice Douglas called upon state court judges to “seize the moment to dust off their state constitutions and to set in motion institutional and attitudinal changes in order to creatively protect the rights of citizens from increasingly meddlesome and burgeoning bureaucracies and governmental agencies.”

“By dusting off our state constitutions,” he wrote, “judges can be ‘activists’ in the best sense of the word and breathe life into the fifty documents” that comprise our nation’s separate and independent state constitutions.

The disturbing reports of state government dysfunction detailed by Allie Morris in the Monitor series “Fatal Flaws” reads tragically similar to the infamously cold decision of the United States Supreme Court in DeShaney v. Winnebago County Department of Social Service (1989). There, Chief Justice William Rehnquist denied constitutional relief to a mother whose child, Joshua DeShaney, was beaten to the point of permanent disability by his father, all under the watchful eye of child protection agency of the county, which reported on the escalating violence.

Rehnquist concluded that the federal constitutional guarantee of due process was “phrased as a limitation on state power, not as a guarantee of certain minimal levels of safety and security,” denying constitutional relief to the victims of extreme levels of county agency negligence.

Rehnquist’s bloodless articulation of principle provoked the following dissenting comment from his colleague Justice Harry Blackmun, among the more famous dissenting statements in the history of the United States court:

“Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents, who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante at 193, ‘dutifully recorded these incidents in (their) files.’ It is a sad commentary upon American life, and constitutional principles – so full of late of patriotic fervor and proud proclamations about ‘liberty and justice for all,’ that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded.”

Thirty years later, we are presented with the fates of Brielle Gage and Sadie Willott, New Hampshire children killed by parents under the watchful eye of a similarly helpless or hapless stage agency.

We are also confronted with the reality that there are hundreds, if not thousands, of children in this state living in traumatically abusive settings and that the state is aware of these situations – and yet is unable or unwilling, for institutional and dispositional reasons, to provide protection. Having “starved the beast” for so long, the state is now facing the consequences of its rigidly doctrinaire governing philosophy and they are dire.

Because of the state’s failure to act with the necessary speed and resources (any action now serving only as symbolic acts of futility for so many given the state’s continued failures) we will no doubt hear more stories about the fates of these children in the coming years. At the same time, we are faced with the prospect that our federal constitution provides these victims of state negligence with no relief under current law.

Douglas’s exhortation to search for state constitutional rights where the federal courts recognize no federal constitutional relief may provide the only form of judicial and legal leverage available to force change, particularly if our next budget fails to provide the appropriate resources to trigger a response.

This perspective lay beneath the decision of the New Hampshire Supreme Court to find rights to an adequate education for all children under New Hampshire’s state constitution in the Claremont cases, though the United States Supreme Court denied the existence of such rights under the United States Constitution.

Following Douglas’s prescription, the next generation of legal trailblazers in the area will have to “dust off” our state constitution once more and discover untested provisions teeming with potential.

Might judicial relief arise from Part I, Article 39 of the New Hampshire Constitution, requiring a “constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues” which are “indispensably necessary to preserve the blessings of liberty”? For how could we abide by such a provision if we cannot protect little children from violence that we know about?

Might judicial relief arise from our state constitutional due process clause under Part I, Article 15 of the constitution, when coupled with Part I, Article 14 of the New Hampshire Constitution, requiring that “every subject of this state is entitled to a certain remedy . . . for all injuries he may receive in his person”? For how can this right to a remedy be vindicated for children who are certainly “subjects,” without recognizing their right to a remedy against the state for failing to protect them where the state has committed to do so by law.

It was Justice Douglas who asked us to consider these questions in the 1970s as he watched the judicial power consolidate under the federal government. His perspective caused tectonic aftershocks to our legal system in the fraught, but far less so, policy environment of public education. In an arena where few could argue that the state plays any less of a fundamental and well-established role in protecting the health, safety and future of children, we can expect that his perspective will play an even greater role in resolving the question if such matters are presented in a judicial forum.

(Michael S. Lewis is a Concord attorney.)


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