In April 2000, New Hampshire House lawmakers stood on the brink of a near-unprecedented act: an impeachment investigation into then-Supreme Court Chief Justice David Brock. Brock was accused of ignoring attempts by another justice, Stephen Thayer, to sway the choice in judges overseeing the appeal of Thayer’s divorce case.
One problem: The only other time an impeachment against a New Hampshire Supreme Court justice had been attempted was in 1790.
“We’re making this up as we go along,” House Speaker Donna Sytek told the New Hampshire Union Leader at the time. “This is new ground for us.”
Brock was later impeached by the House, in July 2000, but acquitted a few months later by the Senate, following a process broadly directed by the state constitution. It’s a precedent that could soon become relevant.
A week after New Hampshire Supreme Court Associate Justice Anna Barbara Hantz Marconi was indicted on two felony charges for allegedly attempting to influence an investigation of her husband, her future on the bench is unclear.
Hantz Marconi took a 90-day leave of absence in July, and on Thursday, the court released an order extending that leave of absence “pending further developments” in her case “and any other proceedings related to the conduct at issue.”
There are no indications so far that she plans to leave the court. And if she chooses not to resign, there is only one avenue for her to be forced off: impeachment.
As in 2000, the process would require the House to initiate an investigation into the Supreme Court justice, and for the Senate to hold a trial and vote to convict her.
But there are no indications so far that the House is preparing to do that. Republican House Speaker Sherman Packard did not respond to a question Friday asking whether he would seek an investigation. House Democratic Leader Matt Wilhelm said in a statement the indictments were “deeply concerning” but suggested the Legislature would wait before taking any action.
“The Legislature does not meet again until December, so we anticipate that more will play out on the legal process between now and then, at which time we will re-evaluate the Legislature’s role, if any, in ensuring accountability and upholding the public trust,” Wilhelm said in the statement Friday.
And while Gov. Chris Sununu called the indictments “incredibly serious” in a Thursday interview with WMUR, he did not call for her to step down voluntarily. Sununu’s office did not answer a query from the Bulletin into whether he would call for her to resign.
The governor has no power to remove a Supreme Court justice; any calls to resign would be mere recommendations.
Sununu is at the center of the indictments: Prosecutors allege that Hantz Marconi spoke directly with Sununu in an attempt to convince him to reach out to the Attorney General’s Office and “wrap up” the investigation into her husband, New Hampshire Port Authority Director Geno Marconi. Marconi was indicted Thursday on charges that he illegally shared confidential motor vehicle data and then attempted to cover it up, but the context behind the charges is not known.
Sununu’s office did not answer questions asking him to confirm prosecutors’ alleged version of events, and it did not say whether the governor had assisted in the investigation.
Whether Hantz Marconi steps down could have a major impact on the court’s docket. She is scheduled to be arraigned in Merrimack County Superior Court Nov. 21, and a trial might not commence for weeks after that.
If she doesn’t step down, the court will continue relying on alternate superior court judges to help hear cases that might require five justices. And if she stays on the court through January, Sununu, who is not seeking re-election, would not be able to choose her successor before leaving office.
Even as they moved ahead with impeachment of Brock in 2000, lawmakers were wary of the immense implications.
“(Impeachment) is not a decoration that’s sitting up on the wall that can be admired but untouched or unused. And it’s not a museum piece, although it is over 200 years old,” said then-Rep. David Hess, a Hooksett Republican, speaking just before the House voted to authorize the probe, according to the Union Leader. “It is a process that was put into place in our living constitution so that, when the situation called for it, it was there to be used.”
But the legal circumstances in 2000 were different. Thayer resigned before any charges were filed against him. And the Attorney General’s Office did not charge Brock, either; the House took up the impeachment matter independently.
Because charges have been filed this time, key lawmakers are leery of taking action against Hantz Marconi before the judicial process can play out.
“It’s way too early to really even be thinking about something like that,” said Rep. Bob Lynn, a Windham Republican and the chairman of the House Judiciary Committee. “It would make much more sense to let that criminal case take its course, and see what happens there.”
That approach, Lynn noted, is the ideal progression in cases where a judge is arrested. He noted the case of Alcee Hastings, the former Florida federal judge who was arrested in 1981 after an FBI inquiry into bribery and acquitted two years later, but was impeached by the U.S. House of Representatives in 1988. He was removed from the bench after the U.S. Senate convicted him in 1989.
Further, Lynn said lawmakers should not proceed as if Hantz Marconi is guilty. And he stressed that too little is known at this point about what the Attorney General’s Office is accusing Hantz Marconi of – or her husband.
“We always follow the presumption of innocence in this country,” Lynn said. “That’s what our whole justice system is based upon.”
Lynn said whether the House moves ahead with an impeachment investigation of its own would be a decision for the House Speaker’s Office, not his committee. And if it happened, he said, it would be an endeavor not taken lightly.
“If there’s an impeachment inquiry, obviously that’s not something that’s good for the judiciary, just in terms of how it looks to the public,” Lynn said.
This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NH Business Review and other outlets to republish its reporting.
