Op-Ed: NH Supreme Court Justices Anonymously Deciding Sununu Case Dampens Sunshine Week

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NH Supreme Court website photo

From left are New Hampshire Supreme Court Justices Anna Barbara Hantz Marconi, Senior Associate Justice Gary E. Hicks, Chief Justice Gordon MacDonald, Justice James Bassett, and Justice Patrick Donovan.

By NANCY WEST, InDepthNH.org

I see no reason to celebrate Sunshine Week this year – you know where we get happy over open government and the open records they share so generously with the public and reporters – at least not in New Hampshire.

In fact, I am appalled that the New Hampshire Supreme Court refused to release how the four justices decided their 2 to 2 split that allowed the lower court’s ruling keeping Gov. Chris Sununu’s records confidential on his change of heart on a redistricting bill stand.

I’ve never seen the justices named, but not how he or she voted kept secret in New Hampshire on any Supreme Court case and couldn’t find anyone who had.

The fact that it involves an important political case turns one bad smell into a real stinker.

The state Supreme Court’s 2 to 2 decision in the case Louise Spencer v. Governor, State of NH March 1 kept Gov. Chris Sununu’s records confidential about why he flipflopped at the last minute on signing legislation that would have established an independent redistricting commission.

How the four Supreme Court justices individually decided is secret and the court won’t say who made the decision. The fifth justice – Chief Justice Gordon MacDonald – abstained because he was the attorney general at the time of the events. Because it was an even split, the lower court ruling protecting Sununu’s records stand.

But it didn’t have to be an even split. State law RSA 490:3 allows another justice may be assigned whenever a justice is unable to sit. But that didn’t happen.

Republican Gov. Chris Sununu nominated Associate Justice Anna Barbara Hantz Marconi and Associate Justice Patrick Donovan.

The two nominated by former Gov. John Lynch, a Democrat, were Associate Justice James P. Bassett and Senior Associate Justice Gary Hicks.

We’ll never know who sided with Sununu secrecy.

When the court refused to identify them, I filed a request seeking the information citing the New Hampshire Constitution since the Judicial System is exempt from RSA 91a, the state’s right-to-know law.

And was told  “All requests for information under Part I, Article 8 of the NH Constitution are referred to the Judicial Branch General Counsel for review and response. Your request has been referred to that office.  Further questions should go to our general counsel, Mary Ann Dempsey at mdempsey@courts.state.nh.us.

Dempsey responded: Dear Ms. West,

“On behalf of the New Hampshire Judicial Branch, I am in receipt of your right-to-know request, dated March 1, 2023, and submitted under Part I, Article 8 of the New Hampshire Constitution.  You request information concerning the votes of individual justices in the case of Louise Spencer v. Governor, State of New Hampshire, case no. 2020-0521.  Please be advised that the court records in case no. 2020-0521 are the documents set forth in the court file, which includes the decision itself.  See Petition of Union Leader, 147 N.H. 603 (2002).  Because the court records do not identify the votes of the four justices, any other information relative to their judicial decision-making in the case is beyond the scope of Part I, Article 8.  As a result, your request is denied. Mary Ann Dempsey”


Concord activist Louise Spencer, a co-founder of the Kent Street Coalition, had filed a right-to-know request to obtain correspondence between Sununu, his staff, former Wisconsin Gov. Scott Walker and associates, and groups opposed to independent redistricting commissions.

Spencer wanted to know why Sununu suddenly vetoed House Bill 706 which would have established an independent redistricting commission.

Sununu’s legal counsel responded that the state’s right-to-know law does not traditionally apply to the Governor’s Office. It also said there was no correspondence applicable to Spencer’s request, but 11 emails were discovered although they were not “government documents” and would not be released.

Superior Court Judge John Kissinger granted Sununu’s motion to dismiss the case and Spencer appealed the case to the New Hampshire Supreme Court.

According to InDepthNH.org reporting, the four justices evenly divided on the four issues: whether the Right-to-Know Law applies to the Governor’s Office; whether the search for records conducted by the Governor’s Office was reasonable under the Right-to-Know Law and Part I, Article 8 of the New Hampshire Constitution;  whether the 11 emails withheld by the Governor’s Office constituted “governmental records” subject to disclosure under RSA 91-A, I, or Part I, Article 8; and if so, whether the emails are exempt from disclosure as part of the deliberative process or an executive privilege.

“Consistent with the Supreme Court’s settled practice, we also enter a judgment of affirmance in cases in which the judges are evenly divided,” the four justices wrote. “This is such a case. Accordingly, the judgment of the superior court is affirmed by an evenly divided court.”

Legislators were led to believe Sununu would sign the redistricting bill which had bipartisan support in both the House and the Senate, and a signing ceremony was being planned.

Sununu abruptly vetoed the bill, the complaint claims, and less than two weeks later former Wisconsin Gov. Scott Walker, who at the time was the finance chair for the National Republican Redistricting Trust, a group opposed to independent commissions, issued an editorial saying Sununu “was right to veto (the) redistricting bill.”

From now on, InDepthNH.org will celebrate Sunshine Week all year long by alerting you, our readers, how you are getting short-changed from the people you elect who appoint the people who serve you.

InDepthNH.org will also give out Sunshine Week/Year Awards as appropriate.

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