‘Old-Boy’ System Causes Chaos on N.H. High Court


Divorce can shatter more than marriage. For proof, look no further than this state’s five-person Supreme Court, where in the aftermath of an ugly marital split, the chief justice faces impeachment, two justices have disqualified themselves and the judge whose divorce started the whole matter resigned to avoid criminal misconduct charges.

The state constitution calls what’s taking place a grand inquest. But Richard Hesse, interim dean of the Franklin Pierce Law Center here, said it’s more like a grand mess. “The bar is appalled, the public is dismayed and the advocates of judicial reform are rejoicing.”

The Granite State scandal, part soap opera and part high politics, spotlights an old-boy legal system that may be crumbling before the old boys’ very eyes. And if there’s a moral, it’s that there’s nothing like a divorce to bring out the worst in everybody.


Using the impeachment of President Clinton as a blueprint, a legislative committee last week launched an investigation of Chief Justice David A. Brock. The inquiry, scheduled to last through June, will determine whether the 63-year-old jurist--and possibly other members of his court--will be impeached on misconduct charges stemming from the divorce of their former colleague, W. Stephen Thayer III. Thayer quit the court last month amid allegations that he tried to influence which judge would hear his divorce case.

2 Centuries Since Last Judicial Impeachment

In hearings at the Capitol last week, the mood was somber. Noting that the state’s last judicial impeachment took place in 1790, Republican state Rep. David Hess called the present effort “a dark, sad journey.”

Among other immediate effects, the fray has seriously winnowed the court’s judicial population. Thayer is history, and Brock is hors de combat, pending the outcome of the impeachment hearings. Two other justices, Sherman Horton and John Broderick--like Thayer and Brock, both appointed by Republican governors--retired their gavels until the Brock inquiry ends.

Fortunately, Democratic Gov. Jeanne Shaheen recently named Joseph Nadeau to the court that hears up to 400 cases a year. And when Linda Dalianis was sworn in last week to replace Thayer, supporters crowed that the court’s first female justice was unlikely to use the court’s “old-boy system” to bend the rules.

Observers say it was that same buddy-buddy tradition that caused the courthouse chaos. In the small, collegial atmosphere of this Supreme Court, justices have for years sat in on cases from which they were officially recused, Brock and others reported. It also was not uncommon for drafts of opinions to circulate among all justices--again, whether they had recused themselves or not.

Four ex-wives of lower court judges say the practice of judicial interference was so widespread that their settlements were compromised as well. The ex-wives said recently that they would seek restitution on the grounds that their civil rights had been violated.


At a news conference before the impeachment investigation began, Brock, who will not comment while the inquiry is in progress, said recused judges never attempted “to influence the merits of a decision in which they were recused,” and only edited opinions for grammar.

The justices also were chummy. When a member of the court--in this case, Thayer--was going through a difficult divorce, his friends cut him some slack. “It was a normal human reaction,” said Manchester attorney George Moore, the president of the New Hampshire Bar Assn.

But in “20-20 hindsight,” Moore conceded, Thayer’s colleagues may have been a little too considerate in allowing him to influence the selection of judges in an appeal of his divorce from former state Board of Education Chairwoman Judith O. Thayer.

The Thayers, both active in conservative Republican circles, married two days after Christmas in 1982. The year before, Stephen Thayer had been named U.S. attorney for New Hampshire by Ronald Reagan. In 1986, Republican Gov. John Sununu appointed Thayer to the Supreme Court. The same year, he gave Judith Thayer a spot on the state Board of Education.

With Judith Thayer’s two daughters from a previous marriage and their son, W. Stephen Thayer IV, the family lived in a 17-room house in Manchester’s best neighborhood. Stephen Thayer was known as the court’s most conservative member, and in her unpaid post, Judith Thayer advocated a proposal to drop minimum state standards for public schools and institute “character education.”

As a Supreme Court justice, Stephen Thayer earned more than $100,000 a year and, in one year, an additional $91,000 from teaching. But when Judith Thayer filed for divorce in 1998, the family was plagued with credit card debt and loans. In court, Judith Thayer said she was kept in the dark about the family’s finances. The court found both Thayers “responsible for living beyond their means.”

Witness Alleges Undue Influence

In their divorce hearing, Judith Thayer maintained: “I really don’t understand where the money went.” Her husband rejoined: “She told me it’s a man’s job to provide. She wanted to play tennis and do her prayer group.”

It was during the divorce proceedings that Justice Thayer’s failure to report a $50,000 loan he received from a Manchester lawyer who sometimes had business before the court also came to light.

Dissatisfied with the settlement, Judith Thayer appealed the divorce. New Hampshire has no separate appeals court, so the matter went straight to her husband’s home turf. Thayer’s fellow jurists recused themselves. But the court clerk told the state attorney general that Brock listened while Thayer tried to influence which lower court judges would hear the appeal.

The report the attorney general later submitted contends that when Thayer saw the memorandum that Court Clerk Howard Zibel wrote about the incident, he said, “If Zibel files this, it’s going to blow up the Supreme Court, and I’m not going to hang alone.”

The attorney general agreed that if Thayer resigned, he would not face criminal charges. Stepping down from the court also cost Thayer his job teaching legal ethics.

Turmoil Raises Judicial Practice Questions

Along with the future of the chief justice and potentially two other jurists, what’s hanging now is the Thayer divorce. After the court ordered their home sold, Judith Thayer refused to leave. Sheriff’s deputies broke open the front door, forcing her and her daughters out into the October rain.

Under state law, clients may be represented in court by layman lawyers, known as “attorneys in fact.” Judith Thayer, who will not discuss the case, has turned her appeal over to Theodore Kamasinski, a legal researcher who earlier worked with Caroline Douglas in her divorce from former Supreme Court Justice Charles G. Douglas III.

As Kamasinski pointed out in an interview, “Once you’ve got the court in meltdown mode, no way it’s going back to business as usual.”

As president of the state bar, Moore agreed that even the appearance of impropriety can tarnish the court. “Any justice system, whether it’s ours or yours out there in California, can only operate when the public has confidence in it.” Still, he predicted that his state’s court would recover.

Two lower court judges have stepped in to pinch-hit at the Supreme Court, and business is running smoothly, a court employee said.

Everyone at the courthouse is cognizant of new recusal rules implemented several weeks ago.

But law school dean Hesse said the turmoil here raises questions about judicial practice that may extend beyond New Hampshire. “The court system both here and elsewhere is entitled to the benefit of the doubt. However, doubt does exist,” Hesse said. “If I were in another state, I might be looking to see if these practices were going on in my state’s court as well.”