Op-Ed: When is there ever an appearance of judicial bias?

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Andru Volinsky and his wife, Amy, are pictured feeding their animals in East Concord.

A Book, an Idea and a Goat.

From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link:  https://substack.com/@andruvolinsky?utm_source=profile-page


Ignoring the Court’s prior thinking, Chief Justice MacDonald now sets an impossible standard for judicial recusals in NH.

I was elected to the five member NH Executive Council in 2016. NH does not have a lieutenant governor. The Executive Council serves as the state’s board of directors and is a check on the Governor’s power. I knew a lot about state government before my election and also knew my election would limit my legal practice to avoid even the appearance of a conflict of interest. Over the years, my legal practice included cases before many state agencies. I also represented Secretary of State Bill Gardner helping him to retrieve $80 million in overpaid premiums to health and workers comp risk pools that insured school districts and municipalities. That was $80 million in credits back to property taxpayers. I also sued the state of NH, repeatedly, over employment disputes, civil rights violations and in school funding cases. I led the Claremont School Funding legal team.

I consulted a leading legal ethics expert who taught at the UNH School of Law to deuce out my responsibilities upon taking office. We decided that I should not accept cases before any state agencies because as an Executive Councilor I confirmed all of the agency heads who were nominated by the Governor in our complex state system of checks and balances. As I was to hold the second highest office in state government, I was, in effect, the State and should stop suing the State. Finally, although my expert didn’t think this was required, I decided to give up my position as a shareholder in my 100-lawyer firm so that I would not indirectly profit from my colleagues taking cases that I could not pursue. This was a significant financial sacrifice but many people who believe in good government make sacrifices.

I also consulted the NH Supreme Court, through its clerk, Eileen Fox.

What do I do about the judges who I confirm? Should I argue cases before them?

I am a trial lawyer and one of the responsibilities of the Executive Council is to confirm or reject the Governor’s judicial nominations. I did not intend to give up my trial practice and worried I would inevitably wind up before a judge on whose nomination I voted. I consulted Ms. Fox because it would have been inappropriate to contact the Supreme Court directly. Linda Dalianis was the chief justice who oversaw the entire judicial system. Chief Justice Dalianis served with Associate Justices Gary Hicks, James Bassett, Robert Lynn, and Carol Ann Conboy.

Judges should recuse themselves if their confirmation proceedings were “controversial,” Eileen Fox reported back. That was the conclusion of the NH Supreme Court in 2016. It was unnecessary for me to seek the recusal of every judge on whose nomination I voted, disclosure was sufficient, but the few who were involved in controversial confirmation proceedings shouldn’t oversee my cases.

Even though I didn’t trust the judicial selection process put into place by Governor Sununu and run by former justice and bitterly partisan former congressman Chuck Douglas, my approach to Governor Sununu’s judicial nominations was that I supported the Governor’s nominees unless I considered them unqualified or their impartiality could be reasonably questioned based on their public record.

Governor Sununu won his election and should get his brand of judges. This didn’t mean I would take it easy on questioning the judicial nominees. I thought the public should know who Sununu was nominating and, if they disagreed with his choices, they should not re-elect him.

I took a similar approach to Sununu’s nomination of the leaders of state agencies. This led me to oppose Frank Edelblut as education commissioner because he was unqualified for the job and had taken public positions opposed to public education. He was, for example, a foundation board member of the ultra Christian conservative Patrick Henry College in Virginia where he committed to a code of ethics that challenged evolution and considered women to be second class because they were created from a man’s rib. My questioning of Sununu’s nominee to lead NH’s environmental services agency led to the Governor withdrawing his nomination because he was so grossly unqualified.

I voted to deny confirmation to two judges in my four years on the Executive Council. Virtually all the many judges I voted to confirm were far more conservative than me. It didn’t matter. Included in the group of judges I voted to confirm were two Supreme Court justices.

The first nominee I opposed was Dan St. Hillaire, a former Executive Councilor who was nominated to the trial court bench with virtually no experience as a trial lawyer and who had a recent ethical finding against him. I recall asking him, perhaps impolitely as he pointed out, “Are you the best we can do?”

My other “no vote” was against Gordon MacDonald, the attorney general who Governor Sununu nominated to be the head of the entire judicial system as chief justice. I knew MacDonald to be a very good lawyer at a national firm with an office in Manchester. He volunteered his time to support the Legal Assistance program in NH.

In all of his time as a lawyer, MacDonald never first-chaired a trial. He also never worked as a trial judge and now he was going to supervise all of the state’s judges.

Justice MacDonald was also very political. He was the chief of staff to Senator Gordon Humphrey when Humphrey attempted to amend federal tax bills and the budget, along with Jesse Helms, to include anti-abortion measures. Humphrey also spearheaded an attempt to amend the Constitution to create a fetus’ bill of rights. Much more recently, MacDonald was a delegate to the Republican National Convention for Marco Rubio who similarly advocated against reproductive rights. In line with these political beliefs MacDonald represented the Catholic Archdiocese of Manchester and had, behind the scenes, caused a chief assistant to reverse her legal advice to the legislature against funding educational vouchers for religious schools. MacDonald was also an officer and board member of the Koch Brothers funded Josiah Bartlett Center think tank in Concord, NH.

The Bartlett Center opposed most of what I tried to accomplish in education funding and fair taxation. Indeed, just a few years before my election, I debated the Bartlett Center’s executive director Charlie Arlinghaus in a debate sponsored by the Business and Industry Association. I should note that I voted to confirm Arlinghaus as the head of Administrative Services when he was nominated by Governor Sununu because I didn’t hold a grudge, believed the Bartlett Center’s opinions were irrelevant to the job and because I thought Arlinghaus would be a good administrator. I was right on all counts.

A Democratic majority of the Executive Council, with a great deal of controversy, voted against MacDonald’s nomination to be chief justice. Governor Sununu, and others, called the proceeding “a circus.” We didn’t create the circus, Sununu did. The vote was certainly very controversial and the subject of extensive media coverage across the state and throughout New England. I remember MacDonald sitting red-faced glaring at us from the front row of the Littleton town hall where the vote took place. He was obviously and understandably very angry. Two years later, Governor Sununu re-nominated MacDonald and a Republican majority on the Executive Council confirmed him.

This brings us to the Rand case and the Rand plaintiffs’ motion to recuse Chief Justice MacDonald from participating in the appeal of our case.

The standard for recusing a judge from presiding over a case is whether a reasonable person, informed of the facts, would question a judge’s impartiality. It is a “reasonable appearance” standard, not a question of whether a judge is able to set aside his or her personal feelings. And, in my case, we also had a court consensus that judges should not sit in cases where the lawyer in the case voted as an Executive Councilor in a confirmation process that was “controversial.”

Chief Justice MacDonald denied the motion to recuse last week.

He will preside over the Rand appeal.

MacDonald’s reasoning was twofold.

First, he considers the controversy of his confirmation process balanced by the fact that he received the John Tobin Legal Assistance Award. John is one of my co-counsel in the Rand case and was the long time executive director of NH Legal Assistance. The award is named for John. He doesn’t choose the winners.

Second, although Chief Justice MacDonald recuses himself from all proceedings in the ConVal school funding case because he was the Attorney General when it started, he considers the Rand and ConVal cases not to overlap. In doing so, he ignores the fact that the exact same tax issue now on appeal in Rand was the same tax issue originally asserted in the ConVal case and later dropped by the ConVal plaintiffs. While Chief Justice MacDonald was Attorney General MacDonald his office denied all constitutional violations including the tax claim we are now litigating. We won a ruling that state property taxes are unconstitutional from the trial judge because the state taxes include preferences for property owners who live in NH’s wealthiest communities. The State appealed the ruling.

It is also worth noting that the “unrelated” ConVal and Rand appeals were just issued identical briefing schedules that set them up to be argued on the same day and to have decisions issued at a similar time. Judge Ruoff issued both the ConVal and Rand tax orders at the same time as well.

If the law is the law and judges are charged with ferreting out its meaning from existing precedent, one might ask why it is so important for any particular judge or justice to sit on a case. Isn’t the appearance of impartiality more important than the involvement of any one judge, particularly when that judge has already stepped off a very clearly related similar case?

I am now left to wonder if my clients in the Rand case will be punished because I did my constitutional duty in good faith as an Executive Councilor. Should I step off the case even though I am the lawyer with the most school funding litigation experience in the state of NH? Did the Chief Justice even begin to consider the implications for the legal system and our system of executive branch checks and balances?

Chief Justice John Roberts of the US Supreme Court has set the standard for ignoring the appearance of bias in his hands-off approach to the embarrassingly improper conduct of Justice Alito who flew insurrectionist flags over his two homes and who accepted gifts from a billionaire with legal business before the Court. Roberts did the same with Clarence Thomas who has raised grifting to an art form.

Chief Justice MacDonald has now done the same for NH judges.

Perhaps single justices shouldn’t decide questions of their own bias? The entire court should be asked to weigh in as it is the reputation of the judicial system that is on the line.

We soldier on.

Thanks for reading.

Editor’s Note: Op-Ed opinions belong to the author, not InDepthNH.org. We encourage diverse opinions by emailing nancywestnews@gmail.com

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