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Bar Journal - Winter 2007

The Judicial Journey of David A. Brock

By:

This article was first published as part of a tribute to Chief Justice Brock in Vol. 151 of the New Hampshire Reports, and is reprinted with permission of the New Hampshire Supreme Court.

On October 6, 1986, David Allen Brock took the oath of office of Chief Justice of the New Hampshire Supreme Court thereby becoming, in effect, the trustee and steward of the state’s judicial branch of government. He retired on December 31, 2003, having served as chief justice for more than 17 years, a term longer than any of the preceding 32 chief justices with the exceptions of Frank Rowe Kenison (1952-77), Frank Nesmith Parsons (1902-24), William M. Richardson (1816-38), and Charles Cogswell Doe (1876-96).

Chief Justice Brock’s judicial service began as a justice of the superior court on December 20, 1976. He joined the supreme court as an associate justice on June 9, 1978, becoming chief justice eight years later. 

On September 27, 1978, the New Hampshire Supreme Court issued its opinion in Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607 (1978). The court held that the stated limits of coverage in a fire insurance policy did not limit the insurance company’s liability on the insured’s claim to recover losses of rental income occasioned by the company’s alleged mishandling of his claim. Lawton, 118 N.H. at 610-13.

In the larger sense of law in the business world, the case was not a landmark decision. It was, however, one more stone in the wall of the common law that we build to guide us in separating right from wrong in the affairs of humankind. This case was a milestone in the life of David Brock as a judge. It was the first case in which he placed ink on paper as an appellate judge.

On April 16, 2004, the court issued a decision in New England Homes v. R.J. Guarnaccia Irrevocable Trust, 150 N.H. 732 (2004). Chief Justice Brock, writing for the court, held that commissions on the sale of modular homes were earned when the employer accepted the orders rather than when the homes were delivered to the site and that a writing between the parties did not sufficiently constitute a private convention to overcome the prevailing rules in such cases. New England Homes, 150 N.H. at 734-37. This was the last case attributed to him as chief justice.

Between these two cases, there were 798 others, 540 of which were authored while David Brock was chief justice. We learn from history that appellate judges are remembered for a few cases, but not the many. The few cases are the ones that change or shift the fundamental rules that constitute the underpinnings of the fabric, purpose and vision of a stable society. In this brief offering, I will attempt to touch upon a few of the few that define the David Brock I knew as a compassionate, trusting, forward-looking and wise jurist who cared greatly about the welfare of New Hampshire’s citizens, their liberty and their government.

The events of recent decades in matters of population growth, communication and demands on government give credence to the adage that there is nothing so permanent as change. New Hampshire’s judiciary did not escape the phenomena and reality of its own time and place.

During the years of the Kenison court a law clerk was hired for the first time. Judicial education became an integral part of the judicial function and long strides were taken in the area of court administration.

On September 16, 1970, the supreme court opened its doors for the administration of justice at its present location on Noble Drive at a ceremony at which Governor Walter Peterson presided. The event marked the end and the beginning of an era in the court’s history. It is interesting to note that the matter of judicial education consumed a large portion of the remarks made by Chief Justice Earl Warren at the dedication ceremony.

During the chief justiceship of John W. King, a judiciary that for many decades had rested on a divided foundation of state, county and municipal government funding mechanisms became once and for all a state judiciary.

The Brock years witnessed an intensification of that which had gone on before. The highest number of cases filed in a year occurred in 1997 when there were 915 filings. The Chief Justice instituted a long-range plan that brought about legislatively-crafted change in the jurisdiction of the several courts and the creation of an administrative council providing a running dialogue between the courts and the administrative office of the courts.

A profound and far reaching jurisdictional shift was launched by the Chief Justice in cooperation with the Judicial Council and concerned legislators. A family division of the judiciary was created on an experimental basis and is now progressing to become statewide.

The Brock years were busy years on the administrative side of the ledger. They were time-consuming and, at times, daunting. The depth and breadth of the court docket during the Brock years cannot be credibly explained by reference to an isolated instance of court history. Having said this, on the argument list for December 1990 we heard, in a span of a few hours, a public utilities appeal involving more than $2 billion dollars, and in another appeal we heard two pro se litigants arguing the merits of $600 worth of tickets to a cancelled rock concert. I remember while driving home after the arguments giving thought to what a fascinating place was a court where such disparate litigants were accorded, as they should, equal time, respect and dignity in the resolution of disputes that were important to them.

The Chief Justice made certain that all litigants received equal treatment irrespective of the nature of the dispute. He recognized that every case involved human beings, not statistics, and that in the New Hampshire Supreme Court every person should be heard with dignity. He stressed the view that the court was the people’s court and it was for most the court of last resort.

The business of appellate judging, apart from being an elevated calling, is a boundless challenge involving the fulfillment of constitutional promise and, in a common law jurisdiction such as ours, the adjustment from time to time of important judicial precedent to meet the needs of a restless and changing society. There is nothing in the task that can be taken lightly.

It is equally important to note what appellate judging is not. It is not the pronouncement of academic views in the world of the abstract. It is the day-in, day-out considered response to the claims of real people in real cases seeking equal justice under law.  

As historians review the writings of Chief Justice Brock, they will soon learn that his judge’s view of the world around him reflected an extraordinarily deep regard for the New Hampshire Constitution and a dedication to the protection of individual rights. His jurisprudence was consistent. He did not waver, falter or easily shift his sense of what is right, nor did he bend to the political winds of his time. History will be kind to him for many reasons, not the least of which was the fact that he stayed the course. At argument, at conference and on paper, the Chief’s nature was to put flesh and blood and hopes on every name that came our way. It was just such an instinct that gave direction to his judging.

The judicial landscape that welcomed Chief Justice Brock was different from that which greeted his predecessors. The second half of the 20th century witnessed expanding concepts of equality in the workplace, educational opportunity, and all aspects of American life. These concepts found expression in many ways and many forums. Only one year before the Chief joined the court in 1978, Justice William Brennan wrote his influential article urging state courts to use their own constitutions to protect the rights of their citizens. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Few states embraced Justice Brennan’s call more fully than New Hampshire.

In 1983, then Justice Brock joined Justice Douglas in one of the court’s most important decisions, State v. Ball, 124 N.H. 226 (1983), which set forth an approach to state constitutional interpretation that other states since have emulated. Under this approach, the court first examines state constitutional claims, before addressing federal ones. Ball, 124 N.H. at 232. To the extent that it relies upon federal precedent, it does so merely to aid its analysis, not as binding precedent. Id. at 233. Under this approach, State constitutional law is primary. As the Ball court explained:

When State constitutional issues have been raised, this court has a responsibility to make an independent determination of the protections afforded in the New Hampshire Constitution. If we ignore this duty, we fail to live up to our oath to defend our constitution and we help to destroy the federalism that must be so carefully safeguarded by our people.

Id. at 231.

While on the court, Chief Justice Brock authored numerous opinions using this approach to afford expanded and reliable constitutional rights for New Hampshire citizens under their own constitution. By June 2005, Ball had been cited as authority in 389 New Hampshire Supreme Court decisions. 

With the doctrine of state constitutional primacy firmly planted in New Hampshire’s soil, the Brock court was called upon to rule in areas of constitutional protection that had proven nettlesome for many courts over a long span of time. Having been a prosecutor, the Chief Justice was well aware of the difficulty in locating the constitutional fulcrum to place in balance the competing interests of a powerful society of almost limitless resources and an individual citizen standing alone in its presence.

A few mileposts along the way help mark the direction of the Chief’s journey. In State v. Koppel, 127 N.H. 286 (1985), he wrote that the indiscriminate use of road blocks to ferret out impaired drivers was impermissible and must be conducted by appropriate rules and safeguards.

Koppel helped form a base upon which Chief Justice Brock ten years later determined in State v. Sterndale, 139 N.H. 445, 450 (1995), that New Hampshire, different from the federal courts and some state jurisdictions, would not recognize an “automobile exception” to the warrant requirements of the state constitution.

For many years courts have been plagued by questions concerning the use of exculpatory evidence in the trial of criminal cases. The prosecution’s duty when it is in the possession of such evidence and the materiality of the evidence provided the subject matter for State v. Laurie, 139 N.H. 325 (1995). In crafting the majority opinion for the court, Chief Justice Brock concluded that if a defendant could show that the government “knowingly withheld” exculpatory evidence, then the state would bear the burden of proving beyond a reasonable doubt that the disclosure of the evidence would not affect the verdict. Laurie, 139 N.H. at 330.

Society, over time, has been perplexed in many cases with what to do with evidence that has come into the prosecution’s hands unlawfully. Courts have decided, on balance, that justice is best served by preventing the use of such evidence in prosecutions. In recent times some courts have carved out a “good-faith exception” to the exclusionary rule.” A subtle fear has developed in some constitutional scholarship, depending upon the interpretation, that the exception might swallow the rule. This fear was quelled in New Hampshire because, in State v. Canelo, 139 N.H. 376, 386-88 (1995), Chief Justice Brock recognized the exclusionary rule as integral to safeguarding the protections afforded by the New Hampshire Constitution and persuasively rejected the adoption of a “good-faith exception.” 

Toward the end of his career on the court, the Chief authored the majority opinion in State v. Roache, 148 N.H. 45 (2002). The opinion stands for the proposition that when a custodial interrogation is taking place, the interrogator(s) must inform the suspect that counsel is attempting to contact him or her and questioning must cease until the waiver is either withdrawn or renewed. Roache, 148 N.H. at 52. This holding is at odds with federal rulings that view the announcement of counsel’s presence or retention as information unnecessary for an informed consent. See Moran v. Burbine, 475 U.S. 412, 422-23 (1986). The ruling seems to be one of common sense, practical and not burdensome in application. The New Hampshire court holds the view that a suspect will never be burdened by too much information before making an informed waiver. Under the Chief’s pen, the New Hampshire Supreme Court took one more step in the world of state constitutional primacy.

During my years as a member of the court there were two cases that weighed heavily upon us in ways differing from the ordinary and usual burdens of appellate judging. One was Appeal of Concerned Corporators of Portsmouth Savings Bank, 129 N.H. 183 (1987), and the other was In Re Proposed Rules of Civil Procedure, 139 N.H. 512 (1995).

The first case was the most divisive and contentious case in my memory. The overriding issue was the appropriate application of the rule of stare decisis. Justice Johnson and I collaborated on a per curiam opinion in which we were joined by Justice Nadeau, sitting by designation because of a recusal. He wrote separately. Dissenting opinions were written by the Chief and Justice Souter. I mention this case because the principled dissents, following weeks of vigorous and at times heated discussion and discourse, were in turn followed by collegiality, good humor and civility among all of us. There is a positive message here about the Chief’s leadership.

The second case was gut-wrenching for all of us, but mostly for the Chief because of his volunteered authorship. He did not seek to avoid the hard assignments. There were extraordinarily capable and dedicated counsel on both sides of the issue concerning the adoption of a New Hampshire edition of the Federal Rules of Civil Procedure. It was a difficult task to turn back the efforts of many bar members who had dedicated such monumental effort to bring about change in the way the courts operate. After all was said and done, the case was not made that the present system was failing its task to provide access to justice. Nor did it appear a comfortable fit to mold a federal-type rules mechanism around such diverse jurisdictions as small claims, probate and superior court levels confronting ever increasing numbers of pro se litigants. The Chief wrestled with this decision but determined that the court’s judgment was the correct one for New Hampshire’s traditional and historic view of getting to the merits without fanfare, and not permitting the procedural tail to wag the substantive dog.

In the world of appellate jurisprudence, there are times, rare indeed, when the court is called upon to play its role as constitutional arbiter in matters of first impression. Such were the circumstances in 1993 in the case of Claremont School District v. Governor, 138 N.H. 183 (1993) (Claremont I).

The central issue the court was called upon to decide was whether the education clause in Part II, Article 83 of the New Hampshire Constitution imposes an affirmative duty on the state to provide a constitutionally adequate public education for school-age children. The case was on appeal from a ruling by the trial court on a petition for declaratory judgment. This litigation, however, had its origins in earlier times and in different forums.

At mid-20th century, as America emerged from the Great Depression of the 1930s and the consequences of World War II, it turned its attention increasingly toward matters of social justice, which included desegregation and educational equality in the nation’s public schools. On May 17, 1954, the United States Supreme Court, in a landmark decision authored by Chief Justice Earl Warren for a unanimous court, ruled that there was no place in American society for a “separate but equal doctrine” in America’s public schools. See Brown v. Board of Education, 347 U.S. 483 (1954). The Brown decision, in addition to raising the national consciousness concerning public schools and notions of equality, also marked a first step in a civil rights expansion that continues today.

The next major United States Supreme Court decision in matters of public education addressed the use of disparate property tax bases as a source of funding public schools. See San Antonio School District v. Rodriguez, 411 U.S. 1 (1973). In a 5-to-4 opinion authored by Justice Powell, the court held, on March 21, 1973, that disparate property valuations rendering financial support for public schools unequal did not violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Id. at 54-55.

Those who claimed that it was unfair to fund education through local taxes because of the disparity in financial resources were left to make their arguments in the several states based on state rather than federal constitutional concerns. This direction was not lost on the state of New Hampshire.

Wendell Jesseman on his own behalf and that of his school-age child filed a petition for a declaratory judgment in the Merrimack County Superior Court claiming that Part II, Article 83 of the New Hampshire Constitution placed a duty upon the state to provide educational opportunities for school-age children, thereby rendering existing funding based on varying real estate values unconstitutional. The case was transferred without ruling to the supreme court and later returned to the trial court for findings of fact or in their absence an agreement as to the nature of a factual predicate upon which the court might base a constitutional opinion.

Wendell Jesseman was represented by the law firm of Nighswander, Martin, Kidder and Mitchell and the Manchester firm of McLane, Graf, Raulerson and Middleton. The state was represented by the Attorney General. Subsequent developments suggest that while the case was pending in the superior court neither side was anxious to bear the risk of non-persuasion in the supreme court. This resulted in the plaintiffs, on September 4, 1985, filing a motion for voluntary non-suit based upon the legislature’s adoption of the Augenblick Formula, so-called, to fund education. The motion also provided that the formula, if funded, would result in a more equitable distribution of state aid to education. In this manner, the search for a constitutional base upon which to seek educational funding temporarily ended.

The truce brought about by the resolution of the Jesseman case was short-lived because shortly thereafter the State failed to fund the formula upon which the Jesseman plaintiffs and their counsel had relied. It was the legislature’s disavowal of its commitment that brought many of the same lawyers together representing five “property poor” communities namely: Allenstown, Claremont, Franklin, Lisbon and Pittsfield, known as the Claremont communities. The lead firm in the new action was Shaheen, Cappiello, Stein and Gordon.

The Claremont I case, like its predecessor Jesseman, sought a declaratory judgment that the New Hampshire Constitution obligated the state to fund a constitutionally adequate public education for its school-age children. Justice Thayer was recused from participating in the case. Former Chief Justice William A. Grimes, a nationally recognized constitutional scholar, participated by special designation to fill the Thayer vacancy. Chief Justice Brock, writing for a unanimous court, held that the language contained in Part II, Article 83 in New Hampshire’s Constitution imposed upon the state a constitutional duty to provide an education to its public school children sufficient to prepare them for their roles as participants and potential competitors in today’s marketplace of ideas. Claremont I, 138 N.H. at 184, 192. The court also held that the state had a corresponding duty to underwrite the cost of a constitutionally adequate education. Id. at 184.

In so writing, the Chief Justice relied upon New Hampshire precedent as well as a similar interpretation of like language by the Massachusetts Supreme Judicial Court four years earlier. New Hampshire’s constitutional language is almost identical to that of the Massachusetts Constitution. It is not contemporary language; it is the language of John Adams.

Upon remand, the trial court conducted a lengthy trial inquiring into the status of public education in New Hampshire. In an extensive decree, the trial court concluded, in effect, that although there was room for improvement in public education, the state’s constitutional duty to provide it was met by its de facto delegation of that duty to the several towns and cities.

The case was then revisited upon the supreme court on the September argument list in 1997. See Claremont School Dist. v. Governor, 142 N.H. 462 (1997) (Claremont II). In a 4-to-1 decision (Horton, J., dissenting), Chief Justice Brock, writing for the majority, wrote the language that has been the center point of political discourse, continuing to this day. The proposition that has proven nettlesome for the state’s policy makers was written by the Chief Justice in simple terms: “In this appeal we hold that the present system of financing elementary and secondary public education in New Hampshire is unconstitutional. To hold otherwise would be to effectively conclude that it is reasonable, in discharging a State obligation, to tax property owners in one town or city as much as four times the amount taxed to others similarly situated in other towns or cities. This is precisely the kind of taxation and fiscal mischief from which the framers of our State Constitution took strong steps to protect our citizens.” Claremont II, 142 N.H. at 465. The court explained that the right to a state-funded constitutionally adequate education is fundamental and that any property tax levied to fund that right must be levied proportionately throughout the entire State. Id. at 471, 473.

The Claremont cases did not seek out Chief Justice Brock, nor did he seek out the issues that they presented. He was not alone in the Claremont opinions. He was supported at all times by a full court affirmation with the exception of one isolated dissent. Chief Justice Brock and Claremont are joined together in the history of New Hampshire’s jurisprudence, as Chief Justice Earl Warren is joined with Brown v. Board of Education in the history of our country. In this regard, historians will treat Chief Justice Brock well as he occupies a high place in the company of his predecessors.                      As I noted at the outset, anyone who assumes the post of an appellate judge in a court of last resort, becomes in effect a trustee of the constitution. In contemplation of this concept some language from the great judge and wordsmith, Justice Benjamin N. Cardozo, comes to mind. While on the New York Court of Appeals in Meinhard v. Salmon, 164 N.E. 545, 546 (1928), he had the occasion to write about trustees and said, “that the level of conduct for [trustees has] been kept at a level higher than that trodden by the crowd.” The appellate judge is often reminded that he or she, on any given day, is walking on paths removed from those trodden by the crowd. This is as it should be because such a judge is a trustee of the constitution, the common law, and the hopes of a free society. At times the path is lonely.

In Professor J. Phillip Reid’s delightful book, Chief Justice: The Judicial World of Charles Doe, he describes Doe as “a product of his environment and an expression of his world.” J. Phillip Reid, Chief Justice: The Judicial World of Charles Doe 3 (1967). Reid views heritage as an important ingredient in Doe’s judging. The same can be said for Chief Justice Brock. Together with family, roots, education, vision and experience, there is formed a reservoir of strength and energy that nurtures us in meeting the challenges and tasks that come our way. The Chief walked the path contemplated by Cardozo. As one reads his many opinions, a powerful consistency emerges that celebrates the rights of New Hampshire’s citizens as they navigate their personal lives amidst the competing interests of contemporary law and society.

The Chief strove mightily to keep the playing field level for all litigants by interpreting the law and its constitutional mandates with the integrity, rigor and fundamental fairness they were crafted to achieve. He did so consistently, fearlessly, impartially and with the humility befitting the great public trust he was given – a public trust he so nobly fulfilled. The Chief’s service will be long admired and its imprint on the fundamental rights and liberties of our citizens respected and referenced for generations to come.

 

Author
Hon. William Batchelder retired from the New Hampshire Supreme Court in November 1995. He was appointed as an Associate Justice of the New Hampshire Supreme Court by Gov. Hugh Gallen in 1981 after 11 years as a superior court judge.

 

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