Chief Justice Brock’s legacy: complicated and influential

Russ Hilliard, president of the New Hampshire Bar Association, will always remember something he heard years ago from Chief Justice David A. Brock, when Hilliard was arguing a case before the state’s Supreme Court.

The case involved eminent domain proceedings, and Hilliard’s client had won on what might be called a technicality. The city of Concord had failed to do something in a timely fashion, and so its proceedings against the individual and his property were thrown out in court. The city appealed, and Hilliard was in the position of defending the lower court’s interpretation of the technical point.

But the chief justice, he discovered, was interested in examining the merits of the case in terms of what lay behind and led up to the decision. Hilliard protested that the appeal was on the technical point alone.

“And (the chief justice) said, ‘Up here, Mr. Hilliard, we like to keep one eye on justice,’” Hilliard said. “I never forgot that.”

With “one eye on justice,” Brock also kept an eye during his 18 years as chief justice on budgetary and administrative issues, court procedures, relations with the Legislature and a few score other issues involved in maintaining and improving a smooth-running court system. In the process, he became embroiled in matters that led to a scathing attorney general’s report on the impropriety of a number of court practices and impeachment by the House of Representatives.

Needless to say, the legacy of David A. Brock, chief justice of New Hampshire, is a complicated one, with many of the facets intertwined.

“A series of courageous decisions and a legacy of modernizing and unifying the courts,” said Hilliard when asked to summarize the record of the chief justice, who retires on Dec. 31.

Considering Brock’s later conflict with the House Judiciary Committee, it is ironic that his rapport and influence with the committee and with the House as a whole was instrumental in achieving the legislation that created the unified court system.

“He spearheaded the effort in the House Judiciary Committee at the time,” said Hilliard. The result brought “all the courts under sort of one administrative umbrella,” eliminating duplications and creating an efficiency and level of consistency “that we now take for granted,” Hilliard said. “That’s not the way it was in the 1970s and before that.”

Yet another irony in Brock’s long tenure as chief justice is that the court’s effectiveness in dealing with the Legislature led to a familiarity that bred contempt, or at least resentment on the part of the legislators. That, at least, is how Portsmouth attorney Paul McEachern sees it.

“The court became gradually more involved in making the sausage (i.e. legislation) across the river, and they got too familiar with the people across the river,” said McEachern, whose experience on the west side of the river includes two terms as a state representative and a stint as legal counsel to the late Gov. Hugh Gallen.

Those things have been corrected, McEachern said, and the situation has “gone back to where it was under (Chief Justice Frank) Kenison, where they just speak with their opinions and they’re not over there (at the State House) schmoozing. To the extent that (Brock) is being blamed for being in charge when all of that happened, he should get credit for the beginning of the correction of it, too.”

An evolving career

A Dartmouth graduate, Brock was a conservative lawyer and a Republican who once ran for U.S. Senate. His position as the state’s top justice is the result of appointments by two of the state’s most conservative governors — Meldrim Thomson, who appointed him to the high court in 1978, and John H. Sununu, who elevated him to chief justice in 1986.

“He came from a conservative Republican background and was appointed (to the court) by an extremely conservative Republican governor,” said Hilliard. “Yet he issued decisions that time and time again defended federal and state constitutional rights” against the claims of the state, he observed. “He just called it as he saw it, even though many of those decisions might seem to be inconsistent politically with his roots.”

The Claremont school-funding rulings stand out among those decisions, said Hilliard, but there were a number of others, dealing with the state’s Right to Know law, holding administrative agencies accountable in terms of how they do business and reversing criminal convictions in cases in which evidence was illegally obtained.

“He has evolved over the years into a justice very concerned with individual rights, particularly in the area of search and seizure and the privacy of one’s own home,” said Manchester attorney Cathy Green, a criminal lawyer.

Green cited one 2003 decision in which the state’s top court held that a resident’s trash, left at curbside, remains personal property and may not be searched without a warrant. The ruling was notable for the fact that the U.S. Supreme Court had already ruled to the contrary in a similar case. The difference, said Green, is attributable to two things — a different constitution and a different court.

The New Hampshire Supreme Court has often interpreted Part 1 Article 19 of the New Hampshire Constitution as giving even greater protection to privacy rights than the Fourth Amendment to the federal Constitution.

Brock, she said, has been “steadfast” in resisting the “good faith” exception to the search warrant requirement that the U.S. high court has adopted. “New Hampshire has consistently refused to adopt that exception,” Green said.

Most of the attorneys interviewed for this article praised Brock for his courage in the Claremont I and II decisions holding that the state of New Hampshire had a duty to provide “adequate education” for school age children in the state and that reliance on local property taxes, with their widely varying rate assessments and tax bases, to pay for that education violates the requirement of the state Constitution that state taxes must be based on “proportional and reasonable assessments.” Many believe that the outrage at the State House over that decision helped fuel the unrelated controversies that led to Brock’s impeachment.

“I don’t think it was the whole reason,” said Manchester lawyer David Nixon, who later represented Brock before the Judicial Conduct Committee. “I think it was the genesis of bad relations between the legislative and executive and the judicial branch.” While it is not a black-and-white issue of cause and effect, Nixon said, “I do think (the impeachment) was affected by the Claremont ruling, which was one of the most courageously correct decisions the Supreme Court in this or any other state has come down with.”

House Democratic Leader Peter Burling believes the anger in the Legislature, mostly among Republicans, over the Claremont rulings was an essential component of the impeachment decision. “They were like hydrogen and oxygen,” he said of Claremont and later revelations about ethically questionable court procedures. “Take away either one and you don’t have water.”

Integrity and fortitude

But in the 2-1/2 years between the Claremont II decision and the impeachment, the only effort at removing Brock from office came in a bill of address proceeding that got virtually no support in the House. What triggered the impeachment was Attorney General Philip McLaughlin’s investigation and report in April 2000 that found the court had regularly allowed justices who were disqualified from sitting on a case to participate in the case conferences and to review drafts of the court’s opinion.

Associate Justice Stephen Thayer, who resigned rather than face indictment, was allowed, at least briefly, to have a say in who would sit on a substitute panel to hear an appeal in his own divorce case. There later was an allegation that Brock improperly intervened with a Superior Court judge in a case involving then-Senate President Ed Dupont.

Tony Soltani, an Epsom lawyer who served on the House Judiciary Committee that recommended Brock’s impeachment, is convinced that the Claremont II decision had little or no basis in the New Hampshire Constitution and was an overreach by a court determined to legislate from the bench. Yet he also believes that even if there had been no Claremont case, Brock would have been impeached over court practices unearthed in the attorney general’s report and the committee’s own investigation.

“The truth is that if it were a judge who had been very loyal to the text of the constitution and been accused of the same acts, he probably would have been much better treated during the impeachment. But I think that judge would also have been impeached.”

Whatever they may think of the Claremont rulings, there are people at the State House who swear by the integrity and fortitude of Chief Justice David Brock.

“The chief justice is a good and decent man,” said former state Sen. Ned Gordon, R-Bristol. “I just know he would not do anything that would compromise the integrity of the court.”

As a senator, Gordon, an attorney since 1989, disagreed with the Claremont decision and tried to generate support for a constitutional amendment to overturn it. But he was not a factor in the Senate votes against removing Brock from office on each of the four counts in the articles of impeachment.

Gordon recused himself from the Senate trial because he had clerked for the chief justice in his early days as a lawyer.

“I think the Senate got it right,” said Gordon, who believes that many of the court practices during Brock’s tenure as chief justice were “inappropriate, but did not constitute grounds for impeachment.”

Hilliard found Brock to be both tough and fair, both on and off the ice. Brock used to be a goalie in hockey games played by a group of young-to-middle age pucksters at the rink of St. Paul’s School in Concord, where Hilliard was often a teammate of the chief justice.

“He was an outstanding goalie,” said Hilliard. “I used to play defense in front of him. On days when I had to make an oral argument before him the next morning, I felt a lot of pressure to not let anyone get by me so he had to defend the goal alone. He never liked it when that happened.”