NEW HAMPSHIRE SUPREME COURT COMMITTEE ON JUDICIAL CONDUCT

In re: Chief Justice David A. Brock

Docket No. JC-00-010A

 

INTRODUCTION

In June 1999, former New Hampshire Associate Supreme Court Justice W. Stephen Thayer, III reported certain of his own conduct to the Committee on Judicial Conduct (the "Committee"). The Committee began an investigation of then-Justice Thayer’s conduct at that time. Subsequent to the initiation of the Committee’s investigation of Justice Thayer’s conduct, the Committee received several reports which raised questions not only about Justice Thayer’s conduct, but other members of the New Hampshire Supreme Court as well.

In March 2000, the Committee initiated an investigation of the conduct of Supreme Court Chief Justice David A. Brock. On or about April 20, 2000, the Committee notified Chief Justice Brock of its investigation and invited him to respond to the inquiry. Chief Justice Brock replied to the Committee’s request by letter dated June 30, 2000. Also, in April, 2000, the House Judiciary Committee began an impeachment inquiry of Chief Justice Brock and the Judicial Conduct Committee agreed to suspend its investigation until the House and then Senate impeachment proceedings had concluded. That process concluded in October, 2000, and the Committee and the Chief Justice have had additional discussions since that date.

Due to the substantial testimony given during the impeachment proceedings, the Committee considered numerous issues including then-Justice Thayer’s conduct, the long-standing recusal policy, the Feld matter, and oversight of the financial filings by Justice Thayer. The Committee feels it has sufficient evidence concerning the conduct that is the subject of its inquiry, and has voted to conclude its investigation into Chief Justice Brock’s conduct. The Chief Justice is granted special authority and powers by both the State Constitution and several statutes detailed later in this document. The Committee finds that the distinctive status accorded the office of the Chief Justice carries with it an extraordinary responsibility of leadership and accountability, not always satisfied during the recent past. As described more fully herein, the Committee has concluded that Chief Justice Brock committed serious violations of the Code of Judicial Conduct for which it has recommended an admonishment which Chief Justice Brock has agreed to accept.

During his tenure as Chief Justice, the Committee is mindful that Brock has taken several substantive steps to increase the public’s knowledge of, and participation in, the administration of the courts. He has also taken steps to maintain high standards of integrity of the judiciary. For example, the Committee has one of the highest percentages of public membership in the country, and has become one of the country’s most open judicial oversight bodies.

The Committee is also cognizant of the fact that Chief Justice Brock has been subjected to months of scrutiny by the House of Representatives, which culminated in his impeachment, followed by a lengthy trial in the Senate. This legislative investigation caused a substantial disruption in Chief Justice Brock’s professional and personal life and required him to incur substantial expense, which amounts to a significant financial penalty upon him and his family. Throughout the inquiry, Chief Justice Brock was also subjected to public criticism and a sobering assessment of his failures. The fact that the conduct of Chief Justice Brock has already been thoroughly exposed, investigated, and dealt with by the legislature was a significant factor in the Committee’s decision to terminate its investigation in this matter. Although the Committee has concluded that the conduct requires a public admonishment, and although code violations as severe as those cited here could conceivably justify penalties such as suspension, fines, or more punitive measures that could serve as a deterrent to similar behavior in the future, in light of what has already transpired, the Committee believes such measures will serve no useful purpose. Accordingly, the Committee has decided to informally resolve this matter pursuant to Supreme Court Rule 40(6)(f) in lieu of a formal hearing, with Chief Justice Brock’s consent to same.

STATEMENT OF RELEVANT FACTS

During its investigation of this matter, the Committee considered the following relevant facts:

Justice Thayer’s Participation in Discussions concerning the Committee’s Rules

1. During 1999, the Supreme Court drafted proposed changes to the procedural rules governing the Judicial Conduct Committee.

2. Throughout the drafting process, the Supreme Court convened conferences, which Justice Thayer attended, to discuss the proposed rules, to consider public opinion on the proposed changes, and to make revisions to the draft rules.

3. Chief Justice Brock advised Justice Thayer to consider recusing himself from these discussions because of his pending proceeding before the Committee.

4. Despite his pending proceeding and his potential interest in the substance of the procedural rules, and Chief Justice Brock’s opinion that he ought to recuse himself, Justice Thayer declined to disqualify himself.

5. In addition to remaining present in the conferences, Justice Thayer freely commented on the proposed changes and even referred to his own personal experiences before the Committee.

The Thayer Divorce Panel

6. In October 1999, Justice Thayer’s divorce action, pending in Superior Court, reached the Supreme Court on an emergency motion filed by Mrs. Thayer.

7. Because of Justice Thayer’s position on the Supreme Court and his personal and professional association with the other justices, all members of the Court were disqualified from participating in the case.

8. Pursuant to RSA 490:3, Chief Justice Brock was charged with the task of appointing temporary justices to the Supreme Court to hear the Thayer v. Thayer divorce matter.

9. Chief Justice Brock appointed a panel of five active and retired judges to hear the emergency motion and the case then proceeded to a conclusion.

10. In January 2000, a Notice of Appeal from the final orders in Thayer v. Thayer was filed with the Supreme Court. The Court again required a temporary Supreme Court panel. Chief Justice Brock re-appointed three members from the previous panel and sought assistance from the Superior Court in locating two more members.

11. In late January 2000, before the two vacant positions had been filled, Justice Thayer inquired whether a three-judge panel could hear the divorce appeal. Chief Justice Brock responded that a three-judge panel would not "look good."

12. Between this conversation and February 3, 2000, Supreme Court Clerk Howard Zibel received a list of judges who were qualified to sit on the Thayer appeal. The list included the names of active Superior Court Justice Phillip Mangones and retired Superior Court Justice George Pappagianis.

13. On February 4, 2000, Justice Thayer attended a counsel’s agenda conference at which the appointment of temporary justices for his divorce proceeding was discussed. The Court’s counsel, Eileen Fox, was in attendance, along with the other members of the Court. At some point during the meeting, Chief Justice Brock announced that he had appointed Justices Mangones and Pappagianis to the Thayer v. Thayer panel.

14. At least some of those present at the conference believed that, by making the announcement, Chief Justice Brock was inviting comment on the appointments.

15. According to all reports, Justice Thayer made an immediate and strenuous objection to the appointment of Justice Pappagianis and a statement that he did not "want Pappagianis on the panel." Justice Horton also objected to the appointment of Justice Pappagianis.

16. In response to the objections of Justices Horton and Thayer, Chief Justice Brock stated he had already instructed Clerk Zibel to contact the two justices to determine their availability to sit on the matter.

17. Notwithstanding that fact, Chief Justice Brock stated he would see if Clerk Zibel had made the calls, and he left the room to do so.

18. When Chief Justice Brock arrived at Clerk Zibel’s office, the clerk was on the phone with Justice Pappagianis and had already informed Justice Pappagianis that he was calling with regard to his appointment to the Thayer v. Thayer divorce panel.

19. Chief Justice Brock informed Clerk Zibel that he needed to speak with him and, in response, Clerk Zibel told Justice Pappagianis that he would have to call him back.

20. Chief Justice Brock then informed Clerk Zibel that Justices Horton and Thayer objected to the appointment of Justice Pappagianis and asked if he could "slow down" the process of contacting Justice Pappagianis.

21. When Clerk Zibel informed Chief Justice Brock that he had already spoken to Justice Pappagianis about his appointment, the Chief Justice responded that he would get back to Clerk Zibel about the appointment.

22. Chief Justice Brock returned to the conference room, asked Justice Thayer to leave the room, and questioned Justice Horton about his objection to Justice Pappagianis. After Justice Horton stated his position, Chief Justice Brock explained to those present that Clerk Zibel had already contacted Justice Pappagianis and that Justice Pappagianis would be fair to both sides.

23. Justice Thayer was called back into the room and told Justice Pappagianis would be serving on the panel.

Thayer’s Teaching Schedule

24. Beginning in 1994, former Justice Thayer began teaching part-time in Boston-area law schools.

25. Starting as early as 1995, Justice Thayer’s teaching schedule frequently made him unavailable for court business on Mondays, and at certain other times.

26. In 1998 and 1999, he was teaching classes at both Suffolk University Law School and Boston University Law School. In 1998, his teaching income of $91,000 nearly equaled his judicial salary

27. By December 1998, the Chief Justice was aware of and concerned by the extent of Justice Thayer’s outside employment and income, and had expressed those concerns to him. Though Justice Thayer rescheduled his commitments to conflict less with scheduled court activities, he left the extent of employment and income the same for the 1999-2000 academic year, according to a memo the Chief Justice wrote on May 24, 1999.

RELEVANT CANONS OF THE CODE OF JUDICIAL CONDUCT

(RULE 38 OF THE RULES OF THE SUPREME COURT)

CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL HIS ACTIVITIES

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

...

CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY

...

2. Administrative Responsibilities.

(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

(2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him.

(3) If a judge shall become aware of unprofessional conduct by a judge or a lawyer

(a) he shall in the instance of a judge report his knowledge to the committee on judicial conduct [.]

PROCEDURAL REQUIREMENTS

Pursuant to Rule 40(9)(c), the Committee has the burden of proving alleged violations of the Code of Judicial Conduct by clear and convincing evidence. At least seven members of the Committee must vote affirmatively to find that Chief Justice Brock violated the Code of Judicial Conduct. Supreme Court Rule 40(10)(c). Currently, the Committee has ten members qualified to hear the matter.

CONCLUSION AND RESOLUTION

The Committee believes that, based on its investigation, the Committee would find that the Chief Justice has violated the Code in the three specific instances recited above. It thus believes that the Chief Justice should accept a formal admonishment that acknowledges such violations. The Committee has communicated these conclusions to the Chief Justice and he has said that he understands those findings and accepts the admonishment.

 

 

 

NEW HAMPSHIRE SUPREME COURT

COMMITTEE ON JUDICIAL CONDUCT

IN FAVOR:

____________________________________ ___________________________

David A. Hodges, Sr., Chair                                 Date

____________________________________

Honorable Jean K. Burling

____________________________________

Honorable Raymond A. Cloutier

____________________________________

Honorable Douglas S. Hatfield, Jr.

____________________________________

J. Michael McDonough, Esquire

____________________________________

John R. Newsom

____________________________________

Wilfred L. Sanders, Jr., Esquire

____________________________________

Dr. Robert O. Wilson

 

DISSENTING:

_____________________________________

Anne Coughlin

 

_____________________________________

Terence R. Pfaff

 

 

ACCEPTED: _____________________________

David A. Brock Dated: ____________________