New Hampshire Sees First Impeachment Since 1790
By Norma Love, Special to Stateline
What began as an investigation into whether a New Hampshire judge tried to influence the state Supreme Court over his divorce appeal now threatens to end the career of the chief justice in the state's first Senate impeachment trial.
Chief Justice David Brock will face an unprecedented trial starting Sept. 18 on charges he called a lower-court judge about a powerful state senator's case, let a Supreme Court colleague have a say in the handling of his own divorce, let disqualified justices participate in cases and lied to a House committee investigating the court.
He is the first New Hampshire official impeached in 210 years and his trial will be the first in the state's history. The last New Hampshire official impeached was Supreme Court Justice Woodbury Langdon in 1790. He resigned before his Senate trial.
The state Constitution puts both chambers in dual roles in impeachment proceedings. As the "grand inquest," the House decides whether evidence exists to impeach. Later, it acts as prosecutor before the Senate.
The Senate acts as jury and judge, first ruling on an official's guilt and then on whether a punishment is warranted, including removal from office. Brock's supporters argue the alleged ethics violations set the impeachment bar too low, that only crimes such as treason merit impeachment. Setting the bar too low will lead to impeachments of officials for political reasons, they say.
They say there was no evidence Brock committed any impeachable offenses, which the state Constitution defines as "bribery, corruption, malpractice or maladministration."
His critics say the court broke its own rules and Brock, as chief justice, was responsible. When the House impeached Langdon in 1790, it was for poor attendance, they point out.
For the Senate to convict Brock, it must decide the offenses are true and they are serious enough to deserve the constitutional penalty. In impeaching Brock, the House has forever applied that mark to his name regardless of any Senate action.
On Aug. 21, the Senate will entertain key pretrial motions that could make it harder to win a conviction. The Senate will consider what burden of proof to use in deciding whether to convict Brock, whether more than a simple majority should be required for conviction, whether to dismiss some of the charges and whether to require separate votes on convicting Brock and what penalty he could face.
The state Constitution is silent on the issues.
The 400-member House used a simple majority to impeach Brock on maladministration and malpractice, though the votes on all four articles were by much wider margins. The House Judiciary Committee also adopted a standard of "clear and convincing evidence" -- or more likely than not -- in deciding whether impeachment was warranted. Clear and convincing evidence is a standard used in civil cases. The Senate could choose a standard or leave it to each senator's conscience.
Brock's lawyers have argued the Senate should use "beyond a reasonable doubt," the highest standard of proof and the one used in criminal trials.
The state Constitution doesn't say whether more than a majority is needed to convict. The U.S. Constitution requires a two-thirds vote of the U.S. Senate.
The House voted 253-95 July 12 to adopt the following four articles of impeachment accusing Brock of:
- Calling a lower court judge in 1987 to remind him that one party in a pending case, then-Senate Majority Leader Edward Dupont, could help win pay raises for the bench. The House vote turned on whether Brock called the judge and, if so, whether he intended to influence the case. The lower-court judge, another Superior Court judge, a court clerk and four of Brock's colleagues on the Supreme Court say he made the call; Brock insists he called a court clerk, not the judge, to check the status of the case. House prosecutors will argue that the call was designed to influence Dupont's case. They will point out that other judges testified they had never made such calls or received them. His defenders say the call, if made, showed bad judgment, not willful misconduct.
- Soliciting comments from then-Justice Stephen Thayer about Thayer's divorce case in February, and then acting on Thayer's comments. He also is accused of having a private conversation with Thayer about the divorce. Brock says it did not happen; Thayer says it did. Brock admits that during a meeting of the justices, he brought up the topic of the divorce. But he says he never intended for Thayer to respond. The Senate will have to decide whether Brock did indeed raise the topic innocently. Senators also will have to decide whether they believe Brock or Thayer about the hallway conversation. The law forbids judges from talking to one party in a case without the other party present. Neither Thayer's ex-wife, Judith Thayer, nor her lawyer were present.
- Lying under oath four times to mislead the committee's investigation: He said he never called the lower court judge; he said he never spoke privately with Thayer about the divorce; he said he did not have documents that his lawyer had; and he said he believed a letter reporting Thayer's misconduct had been sent to the attorney general. House prosecutors will have to show Brock intended to mislead the committee and that he lied about the call and hallway conversation. Brock's defenders say he may have been evasive about the letter and documents, but did not lie.
- Letting disqualified justices take part in case deliberations when he, as chief justice, could have stopped it. No one disagrees the practice existed for years, but the justices say they suggested only grammar and style changes when they were disqualified. Except for Thayer, they say, no judge abused the practice, and the court has since stopped it. This is the only article that doesn't accuse Brock of a specific incident. The House committee rejected it because disqualified justices apparently had commented on cases for generations, and members believed it unfair to punish Brock for a practice he did not create. But the House overruled the committee on the premise that Brock, as chief justice, should have corrected it. House prosecutors will argue the court had a double standard: It admonished lower-court judges, lawyers and government agencies to avoid even the appearance of impropriety, but it itself did not.
The House began investigating the court in April, after Attorney General Philip McLaughlin accused Thayer of trying to influence his own divorce. Thayer resigned to avoid possible criminal prosecution.
The House voted July 12 to clear two other Supreme Court justices facing possible impeachment or reprimand.