Question

A case of ethics: The New Hampshire Supreme Court

September 2000 saw the historic impeachment trial of David Brock, Chief Justice of the New Hampshire Supreme Court, on four counts: making an improper call to a lower court judge in 1987; soliciting comments from a fellow justice on his own divorce case; lying to investigators; and allowing judges to comment on cases in which they had a conflict of interest. The situation arose after an investigation by the New Hampshire Attorney General shortly after receiving a memo from the Supreme Court Clerk, Zibel, detailing ethical violations relating to Justice Thayer’s divorce case and listing concerns about some of the court practices.

An impeachment trial is held to determine whether a judicial officer should be removed from office. The trial is heard by members of the New Hampshire Senate (elected representatives).

Brock had been a judge for 22 years, the last 14 of which was spent as Chief Justice. The Chief Justice is responsible for the efficient operation on New Hampshire courts and is the administrative head of the Supreme Court—a system funded through the State’s budget. Judges are nominated by the Governor and confirmed by the Executive Council. A Judicial Conduct Committee existed to establish ethical standards and provide guidelines to judges for their maintenance.

1. Maladministration or malpractice in connection with the 1987 case:

It was alleged that Chief Justice Brock phoned Trial Judge Gray in May 1987 to ask him about the status of his decision on a lawsuit in which a local company, Strafford Fuels, was the plaintiff. The owner of Strafford Fuels was the New Hampshire Senate majority leader, Ed Dupont. The phone conversation was to remind Gray of Dupont’s powerful position. Another Superior Court Judge commented that ‘The subject matter of this case did not warrant the treatment it got.’

Brock says he didn’t make the call to Gray but phoned the clerk of the court—Gray says he received the call. The charge also stated that Brock failed to report the call. Gray stated that the call was a ‘lapse in ethics’ and at the hearing said—‘Have I had lapses in ethics? Has anyone in this room had lapses in ethics? If so, raise your hand.’ Another Court Judge backed Gray’s testimony saying he recalled Gray joking with him the same day about the call. In a November 1987 letter from Brock to the Senate President, Brock said he had spoken to Gray about ‘our mutual friend’ and the matter would receive ‘prompt attention.’

The Supreme Court discovered the phone call situation when they investigated Gray, in 1987, for making three inappropriate off-the-cuff remarks. The court concluded it was likely Brock had made the call, but felt that the case had not received special treatment.

At the impeachment hearing, the Senate President talked about strained relationships with Brock who told him that if the Legislature did not pass the court budget as submitted, he would ‘order us to.’

2. Maladministration or malpractice in connection with the case of

Thayer v Thayer:

The story was as follows: Thayer, a Supreme Court Justice, was going through an acrimonious divorce. In February, Brock announced, at a meeting attended by Thayer, the appointment of two judges to a panel hearing Thayer’s divorce case. Thayer claims that in a hallway conversation, Brock asked his opinion about the judges, and that he (Thayer) objected to one of them. Brock denies this conversation ever took place. A replacement judge was named to hear the case.

The allegations surrounding Thayer were investigated and Thayer resigned to avoid prosecution.

3. Knowingly testifying falsely under oath to the House Judiciary Committee:

Brock was alleged to have provided false testimony to the House Judiciary Committee. A key set of documents were issued relating to the case. At one point during the investigation, Brock was asked by the House Judiciary Committee, ‘Do you have … [these documents]?’ He replied ‘No.’ It was revealed that he had held the documents but not at that moment in time because he had handed them to his counsel.

4. Maladministration by allowing a practice whereby recused justices could influence opinions in cases from which they were recused:

Justices are required to recuse (disqualify) themselves from any case in which they have an interest. The charge stated that Brock routinely allowed high court justices to comment on cases from which they had recused themselves. During the hearing, justices said that any conversations about such cases related to the language of the decision and not to the decision itself. They also claimed that this practice was not unusual but had gone on for a number of years—even prior to Brock’s appointment as Chief Justice.

After a three-week trial, Brock was acquitted of all charges, seven senators voting to convict and 15 to acquit.

Questions:

1. Why is this case important?
2. What factors do you think influenced the situation and how do these relate to organizational culture?
3. If you were the new Chief Justice, what changes would you make, why, and how?

Answer 1

1. This case is quite critical as it involved disciplinary actions against the chief justice of the region. Chief justice is supposed to be the epitome of fairness, law adherence as well as sincerity. However in this case, the Court was undergoing the impeachment trial of Chief Justice of the region. He had made improper call to a lower court judge, had solicited comments from a fellow judge on his personal case. This conduct is not expected from the Chief Justice of the region. Hence this case is going to be a landmark case of New Hampshire.

2. The factors which may have influenced the situation are as follows:

· The aura and power of the chair of Chief Justice

· Rich experience of David Brock of 22 years, out of which, he had served as Chief Justice for 14 years

· Strong connection in the legal system of the accused

The organization culture also played a critical role in this regard. Commenting on cases involving judges and attorneys is not acceptable. This habit is propagating the tendency of law makers to give preference to personal cases. This tendency can even lead to biasness in the approach the cases are heard and decision is made.

3. If I am the new Chief Justice, I would try to propagate a culture of justice and fairness. A proper decorum will be maintained. No personal opinions and interests must be given priority over the legal predicaments. A healthy synergy must be maintained in the courts. There must not be any case of bullying based on power and position. This will help in maintaining fairness and sanctity in the Court culture.