Paul Mirski, Member, NH General Court, Grafton District 12
RFD #1 Box 244, Algonquin Road Enfield, N.H. 03748 Tel. (603) 632-5555 Fax. (603) 632-4747
March 16, 1999
Honorable Henry Mock
State House
Concord, NH 03301
RE: HOUSE ADDRESS #1
Dear Chairman Mock,
I'm in an enormous quandary about what to do with regard to your request that I amend the initiating document for House Address 1 from that prepared by the Office of Legislative Services. The full and substantial causes for removal of judges and commissioned officers referenced in the Constitution are those causes which the legislature determines and articulates in its address to the governor and council, and not necessarily the reasons which the legislator, legislative committee or legislative leader may have for initiating the removal of a commissioned officer or judge. Since I can't predict what the public testimony will be on the subject of the removal of Justice Brock, I can't provide you with an amended list of reasons fleshed out in the detail you might like. In fact, I don't really have an idea of what would constitute sufficient or insufficient submission from your point of view.
The General Court is comprised of 424 individuals with widely varying skills. Some members are able to construct or demolish arguments with mere handfuls of words. Others must write tomes. Some legislators view themselves as conduits for their constituents needs and interests and only put forth legislation to serve those particular needs - relying primarily on aid from the Office of Legislative Services for the structure and content of those Bills. Others are content to write legislation themselves and to have the Office of Legislative Services formalize their work. Some are highly skilled legislators and others find the process intimidating and difficult. Permitting the establishment of subjective criteria within a legislative committee for the hearing of matters before the committee is, I think, bad public policy, akin to establishing a procedure which would permit the bottling up of a bill in committee in order to prevent a full hearing on its substance. It would also be prejudicial to less skilled individuals who may nevertheless have legitimate and pressing reasons to request the removal of a judge or commissioned officer.
The House address procedure exists to provide the General Court with leverage and some control over executive and judicial appointments. It need not be initiated for punitive reasons. Depending upon the legislatures view of the structure, composition or purpose of a legislative agency, action might require the termination of particular officers and the removal by address of appointees. The important matter to keep in mind is that the procedure is meant to serve the interests of the General Court.
Clearly, I wish to proceed but to honor the Joint Committee's request would be to legitimize the initiation of a procedure which could be misused by subsequent joint committees to prevent or thwart future hearings on either judicial abuse or job performance matter concerning commissioned officers and judges. I think, as with any legislative process, the proper approach would be to initiate hearings on the matter, consider testimony from aggrieved parties and others and then reach a conclusion as to what to recommend to the House and Senate for action. Therefore, I would like to respectfully request that you reconsider your request and agree to hear the matter before you based upon the initiating document. I order to help you understand my motivation and hopefully reverse your decision I thought it would be helpful if I explained more fully the reasons why I've initiated this extraordinary action.
My complaint against Chief Justice Brock goes to the heart of the purpose of the judicial branch of government - that being the requirement that the judiciary shall always and forever provide an absolute impartial adjudication of the laws of New Hampshire. I absolutely believe that the Chief Justice's public pronouncements, addresses to the bar and policies have encouraged and promoted the transformation of the court from that of a reserved, remote and impartial body to one which is engaged and interested in its own legislative agenda. Pro-activity and impartiality are incompatible and, in fact, mutually exclusive concepts.
Having had the opportunity to listen to many hours of public testimony while a member of the House Judiciary and as a member of the statutory committee which heard complaints concerning the behavior of John C. Fairbanks, I can assert that the average NH resident expects exactly the protection which the NH Constitution provides concerning the maintenance of impartiality within the judiciary. The public expects and demands that judges, who hold enormous power over the future disposition of individual lives, ever and always provide for fair and unbiased adjudication of matters before the court. It's impossible to maintain the idea of justice blind to poverty or privilege when the judiciary appears to have an active interest in the social issues of the day. The most corrosive effect which a judge can have on public esteem for the courts is to express a subjective interest in those topics which could come before the courts for adjudication. Advocacy is further disparaged by provisions in Part II, Articles 73, 79 and 81 of the NH Constitution.
I believe that the cause of the following abuses can be attributed to the Chief Justice's interest in the establishment of a pro-active court.
A pro-active court, to be effectively pro-active, requires an obsequious Bar. Rules of the Court which suppress legitimate dissent and criticism serve that end. Better to remain a quiet lawyer than speak out on the subject of judicial foolishness, impropriety or stupidity and risk one's clients' interests or one's practice.
A supplicant legislature is a legislature deluded in the belief that the Judiciary is a "coequal" branch of government. The NH Constitution makes no such provision for a Judiciary, which has co-equal powers. Each branch of government has particular functions but the powers and authority contained within each branch are vastly different. For that matter, the Executive and Legislative branches aren't "co-equal" either.
In exchange for the demand of impartiality, judges are appointed for life and are required to be given honorable salaries. Nevertheless, judges, upon address of both houses of the legislature to the Governor and Council, may be removed the very next day following their appointment to office. Part II, Article 4 clearly asserts that the judiciary is meant to be a creature of the legislature and is meant to serve the Constitution's demand for the impartial adjudication of laws - no more, no less. Claims and assertions to the contrary on the part of the Chief justice amount to an attack on the authority of the legislature itself. In my opinion they reflect the Chief Justice's interest in asserting the power of the courts over and at the expense of the legislature and the people of New Hampshire.
A pro-active court requires a supplicant legislature. A legislature deluded into believing that it is less than it is serves the interest of an ascendant judiciary. To the extent that the Court can convince legislators that judges are more than their equal it serves the idea of - at minimum - a "co-equal" Court. The Chief Justice, as well as the other Supreme Court Justices have been busy promoting this particular fallacy.
It is in the interest of a pro-active court to conceal the misbehaviors of judges and attorneys from public view. Better to quietly retire abusive, alcoholic or incompetent judges than besmirch the status of the Judiciary through public airings of judicial misbehavior. Better for the status of the courts, court advocates have until recently argued, to conceal inappropriate behaviors on the part of attorneys than reveal flaws which could diminish the status of the judiciary. Despite the provisions of Part I, Article 8 which concern the requirement for open government and Part II, Article 4 which concerns the full and forever power of the legislature to constitute courts, the Chief Justice stone walled the statutory committee hearing Fairbanks matters from reviewing complaints against member of the judiciary. The Chief Justice's recent concessions concerning the making of judicial conduct and professional conduct proceedings more open is too little too late for Fairbanks' victims.
A supplicant legislature is a legislature willing to accept the overt lobbying of judges on behalf of the Court's interest du jour. The influence which judges - who are no more than appointed officials - can have over legislators and others is enormous. Most individuals - including legislators - are in awe and often fearful of the courts because judges hold within their power the capacity to ruin or raise individual fortunes. When judges lobby individual legislators they arrive with the aura of power of the courts illuminating their presence. They also carry with them the implied threat to the future welfare of those who would disagree with their interests. Lobbying by individual judges is intolerable behavior because such lobbying voids the constitutional requirement for impartiality and because such lobbying is inherently coercive. I've been told that justices of the NH Supreme Court, apparently with the Chief Justice's imprimatur are currently engaged in lobbying activity with regard to pending legislation concerning court security personnel.
If the legislature does not care whether or not its authority is usurped by the judicial branch or if it would rather slough off its responsibility to assert the constitutional rights of its constituents then House Address #1 will not have a prayer of success. If individual legislators are intimidated by the Court or by the office of 'judge' and are fearful of potential consequences to them which might accrue as a consequence of supporting Justice Brock's removal then House Address #1 will have little chance of success. If however, members of the House and Senate have an interest in defending our constitutional form of government and want to see to it that the interests of the electorate and the power of the electorate always reside within the peoples legislature then House Address #1 will succeed.
My testimony will address the following subject areas. It is impossible for me to be specific about what other individuals, legislators, court reformers or members of the public might relate. Typically, I'd expect that the Joint Committee will keep testimony focused upon matters which relate to the Chief Justice's performance, understanding of course that what might seem at first to be a peripheral event may illustrate a potent reflection of behavior at the top of the judicial pyramid. In any event, my views are as follows:
1. Chief Justice David A. Brock has encouraged the emergence of a pro-active judiciary - one which is engaged in the development of legislative initiatives and involved in legislative process - and in doing so has undermined, and in some eyes, destroyed the Court's essential mantle of impartiality. The very idea that a Chief Justice who is compelled by the constitution to maintain the very highest standards of impartiality in all matters and to assure that "...every citizen ...be tried by judges as impartial as the lot of humanity will admit." (NH Constitution - Part 1, Article 35) would promote in public addresses the very idea that the judiciary ought to initiate something call "therapeutic justice" with the judiciary acting as a quasi-legislative body and acting on its own policy initiatives is utterly contrary to the concept of an impartial judiciary. Encouraging judges to 'make laws' voids their capacity to impartially adjudicate those laws.
2. Chief Justice David A. Brock has defended and, in fact, insisted upon the concealment of records and complaints concerning judicial misbehavior from the people and their legislature, inferring unfortunately, that protecting the reputation of the courts by concealing judicial misbehavior is more important than securing justice for those aggrieved on account of that judicial misbehavior. This behavior is clearly contrary to constitutional provisions contained within Part I, Article 8 and Part II, Article 4.
3. Under Chief Justice David A. Brock's leadership, the Supreme Court has usurped legislative and executive authority. The creation of the Public Protection Fund and the imposition of fees upon members of the NH Bar to support that fund are not acts permitted by the administrative function of the court in the absence of legislative authority. The imposition of fees, whether they be bar dues or taxes (duties, charged, etc.) without a legislative initiative violate Part I, Article 28 of the NH Constitution.
4. Chief Justice David A. Brock has attempted to intimidate a legislator who proposed judicial reform which was repugnant to the Court. On the same issue, which involved the transfer of Court security from the Courts to County Sheriffs, it is reported that the Court actively lobbied either the Executive Branch or legislature or both to have the proposed Bill sent to the Court for an advisory opinion so that the Court could "croak it." I understand that new lobbying efforts are underway on the part of Supreme Court Justices in opposition to a Bill proposed this session concerning the same subject. Finally,
5. Chief Justice David A. Brock has presided over the execution of administrative rules which effectively suppress the free speech rights of New Hampshire lawyers, silencing critics by threat of punishment before the Court's Professional Conduct Committee. Lawyers presently suppress their interest in publicly criticizing judicial wrongs and stupidities than endure the publicity attendant to being dragged before the Professional Conduct committee for hand slaps or worse. The result has been to deprive the public or advocates for judicial reform from within the judicial system. The result has also been to deny the public and their legislature of articulate advocates from the legal community when the advocacy would be contrary to the narrow interest of the Courts. Public policy debate concerning the quality of decision making by judges has been stifled as a consequence. As an example, though not a part of this particular complaint, bar members have been silent on the quality of the Claremont Decisions despite disagreement by many as to its' constitutional quality.
The Chief Justice in his address to the NH Bar in January of 1998, a month following the Claremont II decision, admonished members of the Bar against criticizing the Judiciary. He couched his remarks by first saying that criticism of the Courts' interpretations was healthy. "What is not appropriate..." he then remarked "...and what I speak out against today, is miscasting the judicial role as tyrannical or illegitimate. such criticism..." he said "...is dangerous in a free society, for it will erode public respect for and confidence in the judicial system and the rule of law, which are the foundation of our society." "Tyrannical" and "illegitimate" are perfectly good words to use if the courts act tyrannically or illegitimately as Sam Adams, Otis, Hancock, Revere, and others believed of colonial courts. They are perfectly good words to use today if one believes the courts have acted tyrannically or illegitimately. The Chief Justice's remarks offer a startling revelation about where his real interests lie- and they appear to lie in the ascendancy of the Court at the expense of the right of speech and perhaps, any other unalienable right which might stand in the way.
I hope the above material will provide the Joint Committee with the confidence to proceed.
Sincerely,
Representative Paul Mirski
Grafton, District 12