Original Article: http://dartreview.com/archives/2000/10/02/nh_senators_judge_judge.php
Monday, October 2, 2000
Impeachment implies power, authority. Anyone subject to such an acute safeguard must hold a position of significant influence. Impeachment is more serious than being fired, being suspended, or other reprimands. Behaviors and decisions are scrutinized formally, as mandated by a constitution.
The state power structure, often hidden or muddled, has emerged to bring down New Hampshire Supreme Court Chief Justice David A. Brock '58, raising a familiar question: do his mistakes 'rise to the level' of impeachment?
Brock is the accused in the state's first-ever impeachment trial. The State House of Representatives formally brought charges against Brock with a July 12 impeachment vote of 253-95. The State Senate is considering four counts, including maladministration and lying under oath.
The allegations are grave. Brock intervened, perhaps inappropriately, in a lower-court civil case, in which then-Senate Majority Leader Ed Dupont, a friend, was being sued by Home Gas, a New Hampshire-based wholesaler.
Brock is charged with impropriety for intervening in the pending divorce case of Steven Thayer, a fellow justice who has since resigned. Brock discussed judicial appointments with other justices who had disqualified themselves from ruling on the case because of conflicts of interest.
Brock also faces the charge that he lied under oath when he denied knowledge, to the House Judiciary Committee, of phoning a lower-court judge in the Home Gas case, discussing with that same judge the divorce panel, and possessing documents sought for the investigation.
The fourth impeachment article charges that Brock facilitated a culture of maladministration wherein judges who had disqualified themselves from cases because of conflicts of interest contributed to the writing and reasoning of court decisions.
Brock's defense attorneys, Michael Madigan and Leslie Turner, filed a memorandum a week before the trial. 'The allegations set forth in the Articles of Impeachment,' they wrote, 'are unsupported by the facts and do not rise to the level of an impeachable offense.' Several facets of the New Hampshire proceedings seem to be mirrored after President Clinton's impeachment trial, in which the Senate 'managed to perform its constitutional responsibility expeditiously and with a surprising degree of decorum,' according to political scientists Samuel Kernell and Gary C. Jacobson. As in Clinton's trial, New Hampshire senators received a tour of the Supreme Court building and called a special session to rule on pre-trial motions. The motions determined whether to allow certain types of testimony, including hearsay testimony given without oath in the House hearings, as well as the number of expert and character witnesses.
Prosecuting attorney Joseph Steinfield began his opening arguments on September 19 by predicting Brock's viewpoint on the Home Gas case. Speaking to 22 senators (two have been disqualified for bias), Steinfield speculated that Brock would argue that the 1987 Home Gas case happened too long ago. He also suggested that Brock would contend that a chief justice can permissibly inquire about the status of a case by telephone. Steinfield countered that Brock actually took an 'extraordinary position' and only made the call because of a conversation with the Senate President, William Bartlett, and out of concern for the defendant, the politically agreeable Senate Majority Leader Dupont. Steinfield questioned if Brock would have acted in the same manner on behalf of a constituent or layperson.
Steinfield cited an apparent interest in the case, an interest of which the owners of Home Gas were unaware because of the secrecy of the call. There may have been foundation for Home Gas to object to Brock's subsequent presiding over the case on appeal. Brock acknowledges a call to check on the status of the case after another senator complained that it was 'languishing,' but claims that the call was placed to the court clerk. Brock also admits to having a conversation with the presiding judge, Douglas Gray, several months later, but says that Gray called him. Defense attorney Michael Madigan is prepared to provide a key witness to support the contention that Gray placed the call.
The divorce case of fellow justice Thayer is a more recent matter of alleged impropriety. On February 4, Steinfield believes Brock violated the judicial code requirement to 'preserve the appearance and reality of fairness,' when he announced his appointment of Superior Court Judge George Pappagianis to a special appeal hearing. He allegedly made the announcement before several recused Supreme Court Justices, including Thayer; Mrs. Thayer was not present.
Another conversation between Brock and Thayer regarding Pappagianis and
substituting appointments is alleged to have taken place in a hallway. Questions linger about the involvement of Thayer, who has since resigned but may take the stand if granted clemency.
Thayer is at the heart of another article of impeachment. Brock is accused of falsely testifying to the House Judiciary Committee. He testified that he was unsure about the status of a letter composed by his former attorneys, Michael Callahan and Michael Ramsdell, reporting Thayer's conduct to the state attorney general's office.
Steinfield has said that Callahan and Ramsdell will testify otherwise. According to Steinfield, they will assert that they never advised the filing of the report, and that after preparing and reviewing a draft with Brock, they recommended that it not be sent. They will say that he agreed and the letter was not sent.
Unlike the other impeachment articles, the maladministration charge does not hinge on an isolated incident. Rather, Brock is accused of repeated misconduct for overseeing a tainted recusal practice that routinely involved participation and deliberation by disqualified judges.
Much of Brock's defense is expected to be character-based, with testimony from a colleague from California and a local bridge partner. The defense may shirk responsibility for the maladministration charge on the grounds that the court's recusal process was inherited, not devised, by Brock.
Many Brock supporters offer that the impeachment trial is politically motivated, a response to the Supreme Court's Claremont decision, which ended the state's system of financing public education.
The Senate is expected to take three weeks to hear testimony and consider the charges.
Brock graduated from Dartmouth in 1958. In 1969, he served as a U.S. attorney, appointed by President Nixon. He became a judge in 1976, and has sat on the State Supreme Court since 1981, as chief justice since 1986. New Hampshire's only other impeachment, in 1790, was of associate justice Woodbury Langdon, who resigned prior to trial. Should Brock resign, the 64-year-old would not receive full pension, based on the passage of a resolution by the State House of Representatives.