Litigants Seek Mandatory NH Supreme Court Appeals

By Katharine Webster, InDepth NH

Two men who have represented themselves in state and federal court are seeking to make it mandatory for the state Supreme Court to accept appeals in virtually all cases.

Eric Kratzenberg, who represented himself in a post-divorce proceeding, argues that appeals are a constitutional right. He also thinks that the state Supreme Court is more likely to turn down appeals by pro se litigants – people who represent themselves.

Under current state Supreme Court rules, the court must accept appeals of final divorce decrees, but it can choose whether or not to review later judgments that alter that decree, such as reductions in alimony, increases in child support or changes to child custody.

“We all ought to have access to the government,” said Kratzenberg, a Peterborough resident. “And when one class doesn’t have access to government or you’re unable to (seek) redress (of) government decisions, that’s unconstitutional.”

Kratzenberg and Richard Maximus “Max” Strahan, a longtime pro se litigant, have submitted a proposal to the state Supreme Court’s Advisory Committee on Rules to make virtually all appeals mandatory, not discretionary. The committee is seeking public comment on the proposed changes and will hold a public hearing on Dec. 12.

State Rep. Albert “Buzz” Scherr, D-Portsmouth, a professor of constitutional law at the University of New Hampshire, says there is no state or federal constitutional right of appeal in civil cases – except what the court itself specifies in its rules.

“He (Kratzenberg) just petitioned the government for redress in the court down below,” Scherr said.

“If that constitutional statement (about seeking redress) applied as they want it to apply, then every single person in every single kind of case in the court system would have a right to appeal. It’s never meant that. There has never been anything close to that language being what that means.”

In January 2024, Kratzenberg filed a mandatory appeal form with the state Supreme Court after a family court judge declined to reduce his alimony and child support when he was laid off from his job as an electrical engineer.

He said the judge’s decision would cost him hundreds of thousands of dollars over 10 years – and could even land him in jail if he couldn’t make the payments.

“Without being able to seek an appeal on a very expensive decision, you raise the bar,” he said. “If you don’t do what this family court judge says, they could put you in jail. Of course, then it does become a mandatory appeal.”

The state Supreme Court issued a brief order saying that his appeal did not qualify as mandatory. The order invited him to resubmit his case as a discretionary appeal, saying that form would give them more information. Kratzenberg did not refile.

Instead, he sued the court and Chief Justice Gordon MacDonald in the U.S. District Court for New Hampshire, claiming the state court was constitutionally obligated to accept his appeal since it involved constitutional issues, including due process and equal protection.

He also argued that the courts should base their divorce and post-divorce decisions on the laws in effect when a couple marries, not when they divorce, just as with other laws that cannot be applied retroactively. And he sought to have his $450 filing fee refunded.

Katzenberg said in an interview Thursday that he never sought to dodge his obligations to his family, and that he and his ex-wife have since reached a settlement.

It’s the principle that concerns him, he says, especially because family court judges are focused on applying the laws, not determining whether they are constitutional or not – the purview of the high court.

“If you can’t get what is a fair shake from the family court, where do you go?” he said. “I ought to be able to get someone in the government to give me a second opinion, just like when you go to the doctor.”

The federal court disagreed, dismissing his lawsuit earlier this year on the grounds that it does not have jurisdiction to review most final state court decisions and that the court and its justices are immune from suit for their official actions, including rule-making.

Strahan, who has scored some notable legal successes in forcing the federal government to protect North Atlantic right whales, which are on the verge of extinction, has not always been so successful on his own account.

In 2022 and again in 2023, he lost two cases in the U.S. District Court for New Hampshire against various employees of the University of New Hampshire after he was banned from riding Wildcat Transit buses for a year for “disruptive” behavior and “verbal abuse and intimidation of university staff members and other transportation services patrons.”

He did not respond to an email on Thursday asking whether those lawsuits had inspired his current challenge to the state court rules.

This article first appeared on InDepthNH.org and is republished here under a Creative Commons license.