Chief Justice David A. Brock
New Hampshire Supreme Court
Noble Drive
Concord, New Hampshire 03301
Dear Justice Brock,
Judicial abuse during our colonial period was commonplace. Whether
performed on behalf of the merchants and functionaries who served the
King's interests during the era of Thomas Hutchinson and the Wentworths
here in New England, or as experienced in the middle colonies, described
by John Dickinson in his `Farmer's' letters, or as documented in 1769 by
the petitioners of Anson County North Carolina, judges served the
interests of the political office holders of the day. Indeed, the
abuses listed by Jefferson in the Declaration of Independence, as
predicates for separation would not have been possible without the
participation of courts which were complicit in the precipitation of
those abuses.
The framers of New Hampshire's 1784 Constitution sought to preempt
judicial abuse in two important ways. The first was to compose a
comprehensive Bill of Rights which asserted and proclaimed the
fundamental principles and foundation stones of government. The
non-concurrence of government with the Bill of Rights would render
government unconstitutional, invalid and subject to reform or rejection
as Part 1, Article 10 provides, by revolution. The second, in order
to clearly assert he people's right to a fair and impartial system of
justice, was to incorporate a new description of the judiciary's role
and to address specific judicial reforms within that Bill of Rights.
The proposed Bill of Rights included five key judicial reforms. The
first was to separate judges from political influence by requiring they
be appointed for life. The second was to eliminate political perks and
insure judicial independence by requiring that judges be paid honorable
salaries - subject to honorable service. The third was to insist upon
the absolute and unequivocal impartiality of judges in order that those
serving the people in such a capacity could never be subject to the
charge that they were, or ever would be, partial to a particular cause
or interest. In order to pre-empt the institution of a imperial
judiciary, the fourth insured that the people, through their
legislature, would retain the power to constitute and re-constitute
the courts. Finally, in order to insure an honorable and
constitutionally complaint judiciary, the fifth critical reform
provided that, upon the address of both houses of the legislature and
approval of governor and council, the people could remove errant
judges from office.
I have an enormous respect for the Supreme Court as an institution and
for the lawyers and all other members of the judicial system over which
you, as Chief Justice, have jurisdiction. As you are aware, for the
last two years I've had the privilege of serving as a member of the
House Judiciary Committee. Although the Judiciary has had the
unpleasant task of reviewing cases concerning miscreant lawyers and
judges, I've not personally had a bad experience with a member of the
New Hampshire Bar. Without exception, the New Hampshire attorneys whom
I know are honorable men and women.
Having had the opportunity to closely observe how the judiciary in New
Hampshire works and having had the opportunity to consider the
constraints which the Constitution imposes upon that judiciary, I have
come to the unhappy conclusion that the judiciary, under your
leadership, is no longer capable of projecting an interest or even the
appearance of an interest in the uniform dispensation of impartial
justice despite the many well meaning and honorable individuals who
serve in the judicial branch.
As disturbing as the discovery of court pro-activity is, more worrisome
are your own pronouncements and defense of the judicial institutions
that you use to limit the fundamental liberties and constitutionally
guaranteed rights of New Hampshire citizens. Certainly, your most
egregious act has been to squelch the free speech rights of members
of the New Hampshire Bar - as you did in your address to the Bar about
a year ago. Members of the Bar who criticise the Courts we now know are
destined to be summarily hauled before the Court's Professional Conduct
Committee for disciplinary action.
A judge is a public figure and is due no more protection from public
criticism than any other public official. Your willful attempts to
prohibit criticism and to conceal from public view complaints about
judges as they are made - essentially abrogating the public's
'right-to-know' - reflects your disregard for constitutional
guarantees. your willingness to be punitive toward members of the Bar,
upon whom the public relies for advocacy of rights -sometimes against
the courts - reflects badly upon your sense of place, time and
particularly responsibility.
As an active proponent of judicial activism you have demonstrated
contempt for the constitutional limitations of power imposed upon the
judiciary. You have been the principal proponent of an expanded
judiciary, and have asserted for the New Hampshire judiciary the power
to tax, the power to field its own police force and the power to
govern without being subject to either the legislature's prerogatives
or the peoples scrutiny. None of these powers are granted the judiciary
by the Constitution.
The Courts imposition of a fee upon the members of the New Hampshire
Bar in order to create a source of funds to support the Court's Public
Protection fund is a case in point. Part 1, Article 28 of the
Constitution specifically precludes the establishment, fixing, laying
or levying of any "...subsidy, charge, tax, impost, duty...under any
pretext whatsoever, without the consent of the people or their
representatives in the legislature, or authority derived from that
body." Further, the Court's very creation of a public protection fund
without legislative approval is a violation of the Constitution
because the creation of a function of government, with all its
attendant administrative costs and needs encumbers the people with
unexpected duties and taxes to which they have not given their consent.
"If the British Parliament..." John Dickinson wrote in 1767, "...has a
legal authority to issue an order that we shall furnish a single article
for the troops here, and to compel obedience to that order, they have
the same right to issue an order to supply those troops with arms,
cloths, and every necessary; and to compel obedience to that order also;
in short to lay an burthens (sic) they please upon us. What is this but
taxing at a certain sum, and leaving to us only the manner of raising
it?" "An Act of Parliament..." he further observed, "...commanding us
to do a certain thing, if it has any validity, is a tax upon us for the
expence (sic) that accrues in complying with it..." If one substitutes
the words 'the judiciary' for 'Parliament' in the last sentence one can
easily understand how the Court can unconstitutionally exercise the
'power to tax'. One can also appreciate the nature of the reincarnation
that the Court apparently wishes to effect.
The Court's recent and self-serving ruling in defense of its right to
create and maintain its own police force falls within the same category
of constitutional offense and illustrates the distance which now
separates the Supreme Court's point of view from the substance of the
Constitution. The Court's warning shot across the legislature's bow
in the dicta of that decision in which the Court asserts that the
legislature has a constitutional obligation to adequately fund the
Court more than suggests that the Court views itself as utterly
independent of the public weal. For the Court to assert that it
has legislative and executive authority - in addition to judicial
authority highlights exactly the kind of aggregation of power to
courts, which the drafters of the Constitution sought to expunge.
Your attempted intimidation of the member of the legislature who
sponsored the Bill which would have removed the jurisdiction of
the Court's private police to the jurisdiction of county sheriffs
simply add an exclamation to this particular point.
Finally, at least for the purpose of this letter, the Court's lobbying
in policy areas further precludes the expectation of the people for
impartial justice in those policy areas where the Court has elected
to become pro-active. Lobbying efforts by the Court, at your
direction and with your approval, have convinced many that they
cannot receive an
impartial hearing in the state's courts.
The destruction of the Court's mantle of impartiality as a
consequence of its policy of silencing and punishing critics, its
attempts to conceal records of judicial misbehavior and complaints,
its pro-active behavior in the realm of policy, its usurpation of
legislative and executive authority, and its complicity in the
attempted intimidation of a legislator who proposed a judicial
reform which was repugnant to the self-interest of the Court -
acts occurring on your watch - have been inimical to the respect
for the judiciary which the Constitution seeks
to achieve.
I believe the Court requires new direction and compositional
reform. I wish it were otherwise, but I feel compelled to
advocate for your removal as Chief Justice of the New Hampshire
Supreme Court for your failure to maintain and insure the Court's
impartiality. I've initiated the preparation of a Bill of Address
for consideration by the House and Senate for this purpose.
In deference to your position I now make my intentions known to
your prior to their becoming public knowledge.
Respectfully,
Rep. Paul Mirski
Grafton, District 12
New Hampshire Politics
P.O. Box 1120
Merrimack, NH 03054
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