By GARRY RAYNO, InDepthNH.org

CONCORD — Associate Supreme Court Justice Patrick Donovan has refused to recuse himself from the appeal of the lower court decision the state’s administration of the Statewide Education Property Tax is unconstitutional.

The plaintiffs in the case Rand and others versus the State of New Hampshire had called for Donovan and Supreme Court Chief Justice Gordon MacDonald to recuse themselves from the case.

Donovan wrote his own decision released Tuesday refusing to recuse himself instead saying he believes under court rules “I have a duty to participate,” citing Rule 2.7 of the Code of Judicial Conduct (“A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.”).

The plaintiffs argued that when he was in the Attorney General’s Office he participated in both the trial and the appeal of the Claremont education funding case, and represented the state when attempting to extend the deadlines set in the Claremont II decision.

And the plaintiffs argued in private practice Donovan represented the Speaker of the House and Senate President in an attempt to overturn the Supreme Court’s ruling in the Londonderry versus the State in another education funding lawsuit related to the Claremont decision.

Both the ConVal and Rand cases are closely linked to the original Claremont decisions, the plaintiffs note.

In his order, Donovan notes court rule 38 in the Judicial Conduct Code requires a judge to recuse him or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned . . . .Whether an appearance of

Impropriety exists is determined under an objective standard, i.e., would a reasonable person, not the judge himself, question the impartiality of the court.”

He then cites a 1998 case where the court has said the test is  whether an objective, disinterested observer, fully informed of the facts, would have significant doubt that justice would be done.

Donovan notes the litigants in the case were fully aware of his prior involvement with the education funding issues, but failed to cite any case or other legal authority that would support his recusal from the case.

He said he has never served as an advocate for the state or against the plaintiffs in any case dealing with the Statewide Education Property tax.

“My previous service as an attorney in other education-funding litigation is not a basis for recusal, even if the arguments I advanced more than a decade ago as an advocate could fairly be described as somehow ‘adverse’ to the plaintiffs here,” Donovan writes.

He cites a 1966 case before the court that found “bias in the sense of crystallized point of view about issues of law or policy is almost universally deemed no ground for disqualification.”

In his ruling, the justice notes former criminal prosecutors are not barred from hearing criminal cases before the court, nor would attorneys who appeared in redistricting cases be barred as judges from sitting on redistricting decisions.

Donovan quotes former US Supreme Court Justice William Rehnquist who notes most supreme court justices come to the bench in their middle years and have written opinions on many issues before the court and developed some tentative notions about clauses in the Constitution.

To come to the bench with “tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias,” Rehnquist wrote.

Just because he wrote the court’s decision on the original ConVal appeal on the question of whether the state is paying for an adequate education is not reason for recusal noting it was a unanimous decision of the court, Donovan said.

“A reasonable person, fully informed of the facts and the legal principles applicable to judicial disqualification, would not question my impartiality,” Donovan concludes. “I affirm that I have no bias in this case and will decide it on the facts and the law.”

The question of MacDonald’s recusal has not been addressed by the court.

Attorneys for the plaintiffs did not respond to requests for comment on Donovan’s order.

The Coalition Communities, composed of property wealthy communities, and the State appealed Judge David Ruoff’s November 2023 decision that the state’s administration of the Statewide Education Property Tax is unconstitutional because it results in differing property tax rates for the communities.

Prior to the decision and currently — because the order is stayed by the Supreme Court — property wealthy communities retain the money they collected from the levy that is not needed to pay the cost of an adequate education for their students.

And small and unincorporated places with no or few children have negative local education property tax rates set by the Department of Revenue Administration to offset what they would collect in Statewide Education Property Tax.

Under the state constitution, taxes have to be proportional and reasonable, meaning varying rates for property taxes that pay for the state’s obligation to pay for an adequate education for the state’s children are not constitutional.

No date has been set for oral arguments in the appeal nor has a briefing scheduled been set.

Garry Rayno may be reached at garry.rayno@yahoo.com.