PAULA TRACY, InDepthNH.org

CONCORD – A public hearing for the governor’s nomination of Melissa Beth Countway to be seated on the New Hampshire Supreme Court was held Wednesday before the Executive Council, which will vote on it likely on Dec. 20.

This comes as members of the progressive Kent Street Coalition attended, and its leader and co-founder Louise Spencer, said they reserve judgment on Countway, indicating a concern for the current process of selecting judges in this state and the need for more transparency in the future that “invites the public in.”

Republican Joe Kenney, Executive Councilor from Wakefield, defended the process as one which has been followed for several years.

Spencer said it is not as robust a public process as it could be.

The Alton woman who was Belknap County Attorney before being tapped by Gov. Chris Sununu for the state circuit court in 2017, if confirmed, will replace Gary Hicks who is retiring Thursday as he has met the term limit at age 70.

Countway declined to say how she would vote on issues of reproductive rights.

“I am someone who has proven myself on the circuit court the past six years,” where Countway said she has conducted over 3,000 hearings at court in Ossipee.

“Like drinking water from a fire hose,” Countway said of the case volume. Nonetheless, she said she has listened to cases and “I have done it successfully.” 

While some will disagree, she said, she believes she is fair and consistent and within the law.

She said as a girl she was run over by a boat and hit in the head by a propeller on Lake Winnipesaukee and said she believes she had a hard head and was meant to do some important work in life.

Countway received a well-qualified candidate approval for the highest court from the judicial nomination council.

She said she is even-tempered and prepared to issue well-reasoned orders.

Asked to prejudge a future case, she said she could not.

“I apply the facts to the law. I am not a judicial activist,” Countway said. “I am open minded.”

“The Constitution is fixed but it must evolve,” slowly with time and the changes in the world, she said which were not contemplated when it was drafted.

She said as a person, Justice Sandra Day O’Connor impressed her when she once met her, but her decisions on the U.S. Supreme Court were not a part of that calculation.

With the Dobbs decision pushing reproductive rights down to the state and a likely matter about education funding coming before the courts in the future, she was asked by Kenney what her approach would be.

She said she would be bound by the code of conduct but being open minded and ready, willing and able to do the research would be key to her approach.

“I believe the court should answer questions as narrowly as possible,” Countway said.

Asked by Executive Councilor Cinde Warmington, D-Concord, about abortion services, Countway said she could not respond due to the code of conduct and said she has not attended rallies and is a “quiet person.”

Asked if she has supported a candidate, she said she supported herself as a county attorney and supported Chris Sununu’s run for governor in 2016. She was among Sununu’s first nominations to the circuit court in 2017.

Asked about leaving personal opinions at the courtroom door, she said, “you have to be able to set that aside and be open minded.”

Warmington said given that a majority of the state supports a woman’s right to abortion, would that influence her rulings, Countway said the public could change the Constitution by a two-thirds vote “if it’s so overwhelming.”

Asked if she could provide an assurance to the people of New Hampshire that she would protect abortion rights, Countway said “I can’t provide that assurance,” due to the code of conduct and answering that would show she was pre-judging a case.

Supreme Court Chief Justice Gordon MacDonald commended the governor for this nomination and said Countway provides an accomplished and remarkably diverse background which will enrich the Supreme Court.

“It is critical to have a circuit court judge on the high court,” he said, and it will be invaluable, calling the circuit court “the people’s court.”

He said 61 percent of the cases the Supreme Court hears come from that court rather than the Superior Court.

Countway would be the only judge on the high court with that sort of background.

Warmington asked MacDonald if he was consulted on the nomination and said he was.

“We welcome diverse views. It is part of the process,” MacDonald said.

Asked by Warmington about the fact that this would be the fifth Republican on the five-member high court, he said he was not concerned there was a lack of political diversity.

Tina Nadeau, the former chief justice of the Superior Court, also spoke in support of the nomination.

“She will hit the ground running,” Nadeau said. “She understands there is a community out there to serve.”

Paul Callaghan, Rochester Mayor who for 36 years worked in law enforcement, said he believes Countway has the unique ability to be an amazing judge on the high court.

Hillsborough County Sheriff Chris Connelly also recommended Countway.

Anthony Kenney, who said he was unlawfully imprisoned, asked if Countway will follow the Constitution. He asked why he should have to withdraw his appeal as a condition for being released from jail and provided an email to the council and councilors who said they just received the document and would be following up with Countway.

Anne Zinkin, mental health and wellness coordinator for the NH Judicial Branch, spoke in support of her nomination and said she has been very impressed by Countway’s courage over the years.

Elaine Low, clerk in Conway and Ossipee said when Countway is on the bench, her orders are clear and timely and she never complains about the large case loads.

Andrew Livernois, Belknap County Attorney, also spoke in support of her nomination as did the administrative judge of the circuit court, David King.

Joseph Nugent, said, “I feel like as a member of the public, it is hard to come forward and wished there was another way to come forward,” with concerns about a nomination.

He said he had concerns about Countway’s ethics. He said he interacted with her in a landlord-tenant case in Laconia and a driving case in Ossipee.

In both cases, he said he saw improper action by the judge. 

“She protected the attorney,” Nugent said.

“I just wish there was a way to talk to you about these cases,” he said.

KENT STREET WEIGHS IN

Louise Spencer, co-founder of Kent Street Coalition, which promotes democracy and progressive values particularly at the NH State House and represents 3,000 members, said the focus of the group is now going to turn a little toward the court system and the process of selecting judges.

She said with the dramatic erosion of freedoms in the past year, her group has become increasingly aware of the need to oversee the third branch of government in addition to the legislature, and has created a new branch which will be dedicated to looking at the judiciary.

She said transparency is key to the courts and right now the state’s process is flawed.

Unfortunately, she said Countway’s nomination was not a public process. 

“We are learning more today which is excellent,” Spencer said but the public process is limited to the very end.

“There is no indication in her nomination about her background on reproductive freedom…

“I have been impressed today with her commitment to the rule of law…but on bodily freedom we have learned little or nothing today,” Spencer said.

She noted if confirmed, Countway will be making decisions for the next 20 years.

She said the Kent Street Coalition is also concerned that there will be a lack of political diversity on the high court, as was noted by Warmington.

“We must reserve our judgment,” on the nomination, she said. And hoped that the Council will do a thorough job on this nomination.

In the future, Spencer said there is hope that there would be more information and transparency ahead of time on why the person was nominated.