New Hampshire High Court In Crisis, Removal Proceedings Loom
By Norma Love, Special to Stateline
CONCORD -- A state Supreme Court judge's attempt to influence who sat on his wife's divorce appeal has revealed widespread, questionable ethical practices on the court and plunged New Hampshire into a constitutional crisis.
The judge in question, Justice Stephen Thayer, resigned last Friday to avoid being prosecuted for criminal ethics violations, and the Legislature and governor took the first steps this week toward impeaching the chief justice of the court.
Chief Justice David Brock counterattacked Monday night, accusing the governor and attorney general of an unfounded political attack on the integrity of the court.
At issue is a 25-page report released Friday by Attorney General Philip McLaughlin that not only detailed Thayer's transgressions, but also accused the entire court of ethics violations. He said it was an "institutional practice" for judges who had excused themselves from cases to review and discuss draft decisions in those cases.
McLaughlin also said none of the other justices reported Thayer's transgressions to the court committee that disciplines judges, although ethics rules require them to do so. Instead, the court clerk reported the problems.
Besides his divorce, Thayer attempted to influence the outcome of another case involving a close friend who had loaned him $50,000, McLaughlin said. Thayer had excused himself from the case, but took part in a meeting at which judges reviewed a draft opinion.
When told a judicial conduct panel was about to get a memo about the incidents, Thayer said if that happened, "It's over for me." Later, he said, "We all do it. We can either hang together on this or hang separately."
Brock faulted Thayer for "poor and harmful judgment" but called them isolated incidents by a colleague stressed by his divorce. An unrepentant Brock also said the practice of recused judges reviewing draft opinions was a longstanding practice going back decades that "served the court and the people of New Hampshire well."
Brock promised a detailed rebuttal to McLaughlin's report and the investigation's background file to be released this week.
The institutional court practice has, however, raised questions about the validity of rulings going back years. Executive Councilor Thomas Colantuono said Monday all cases where judges excused themselves should be reopened. "Litigants in those cases deserve to have new decisions made by an untainted panel," he said.
McLaughlin also said Brock broke the law by listening to Thayer's request for a different judge to be assigned to his divorce case, but there's no criminal penalty for violating that law.
That prompted calls for Brock's resignation or impeachment, with some also arguing only a clean sweep of the court could restore the public's confidence since the court clerk not any of the justices blew the whistle on the ethical violations.
House officials worked over the weekend to research how to conduct an impeachment since the only time a judge has been impeached was in 1790. Under New Hampshire's constitution, the House conducts impeachments and the Senate sits as a jury.
On Monday, a state lawmaker, who tried unsuccessfully to get lawmakers to "fire" Brock last year on other issues through a process called a bill of address, met with legislative bill drafters to draft both bills of impeachment and address to remove Brock. Both bills could serve as a "template" to also remove Justices John Broderick and Sherman Horton, the lawmaker said.
A fourth justice, Joseph Nadeau, was recently appointed and isn't a removal target.
Unlike an impeachment, in bill of address, lawmakers do not have to spell out specific crimes or hold a trial, but both houses of the Legislature, the governor and the Executive Council would have to agree for the judge to be removed.
House and Senate leaders met with the governor's legal counsel Monday and decided to adopt the process used by Congress last year in impeaching President Clinton. House Speaker Donna Sytek said the House will vote on a bipartisan resolution April 13 directing its Judiciary Committee to investigate whether Brock committed impeachable offenses. The scope of the investigation won't be limited to Brock, however.
If the committee recommends impeachment, the House would vote on it, and, if approved, the Senate would decide the justice's fate. The committee also could seek removal through a bill of address.
The court's defense has not impressed key lawmakers. They noted Horton, Broderick and retired Justices William Batchelder and William Johnson were with Brock at his news conference in a "circling of the wagons" by the judiciary against the other two branches of government.
State Rep. David Welch, chairman of the House Criminal Justice and Public Safety Committee, called Brock's defense a "counterattack" instead of an acknowledgment of problems at the Supreme Court.
"The shortest way to sum it up is he doesn't get it," said Welch, a Kingston Republican.
Brock's defense came two days after Johnson and Horton told reporters the crisis was overblown. Horton said Thayer's actions may not have been serious enough to warrant his resignation.
Both said that with the exception of Thayer, recused justices did not try to influence the outcome of cases, and Thayer's remarks ultimately had no effect.
Johnson said it was common practice to receive draft opinions, but he didn't read them.
"It upsets me, there's no question about that," he said about Thayer trying to influence the outcome of the case involving Thayer's friend. But he said Thayer's action didn't change the outcome since a new conference was held without Thayer present to decide the case.
"There's an old theory in basketball: If there's no harm, there's no foul," he said.
Lawmakers say the comments reveal an arrogant and cavalier attitude by the court toward justice.
"If this is true, this is institutional. If you have a judge who says it's not a big deal, that bothers me," said state Sen. Mary Brown, who would, as a senator, sit in judgment of any judges impeached by the House.
Deputy House Speaker Donnalee Lozeau, who has worked closely with the judicial branch during her legislative career, said she felt betrayed.
"We all have an obligation to the public's trust and nobody's above the law," she said.