By PAULA TRACY, InDepthNH.org
CONCORD – Attorney Bryan Gould, 67, of Pittsburg, Republican Gov. Kelly Ayotte’s pick to be an associate justice on the New Hampshire Supreme Court, said he would recuse himself from any case involving his long-time client, Casella Waste Systems of Vermont during a public hearing on his nomination Friday.
The Executive Council held the hearing in Representatives Hall where roughly an equal number of supporters and opponents spoke.
Those who support Gould spoke of his experience and integrity as a lawyer while opponents focused on his lack of judicial experience, his work for Republicans and for Casella, whose subsidiary is currently suing the state.
Gould has 35 years of experience as a lawyer in the state and considers himself a “generalist.” He has worked for Casella in its pursuit of developing a landfill in Dalton among other clients, including Coos County on issues related to carbon capture and its impacts on forestry.
The hearing was an opportunity for Gould to publicly introduce himself, for the Executive Council to publicly ask him questions and for the public to speak before the five-member Executive Council likely votes on the nomination on Wednesday, Sept. 17.
Ayotte said previously that Gould was by far the most qualified for the position following the retirement of James Bassett in August at age 69.
About 100 people attended the public hearing.
GOULD’S INTRODUCTION
Gould has worked for the firm of Cleveland Waters and Bass in Concord for the past 13 years.
He called it a great privilege to be nominated and spoke of his family’s roots in the state which go back to the 17th century, calling them “courageous pioneers.”
He said the idea that certain rights are inherent or endowed by the creator was a revolutionary thought at the time the Constitution was drafted and that the source of government is the people as a whole was a new idea.
NH’s original constitution did not include a judicial branch, he said. Until 1966 it was not a co-equal branch, he said.
While he noted he has not been a judge, he said faith in the law is the most important role of a justice.
COUNCIL QUESTIONS
In the wake of the death of Sandra Marisol Fuentes Huaracha, 25, of Berlin at the hands of her husband who was out on $5,000 bail in July, Executive Councilor Joe Kenney, R-Wakefield asked about domestic violence and new training to be required on bail reform.
He noted Gould has not had any experience in that area of the law.
“What happened in Berlin should be very sobering for all in state government,” said Gould, noting the fundamental role of government is to protect.
When the government fails he said it needs to find a way to make sure that does not happen again.
Kenney asked about his representation of Casella and issues related to placement of a landfill near Forest Lake State Park. A permit has been denied by the state and Casella is now suing.
Asked if he would recuse himself if that case went to the high court, Gould responded.
“The answer is ‘yes.'”
But he said he would be careful of making recusal statements in advance.
How about any landfill, Kenney asked?
“That is a very different question,” Gould said. But he said he would consider that if impartiality could be questioned.
Gould said he would consider himself a textualist and originalist in his approach to the Constitution. By definition a textualist will look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words and not give weight to legislative history, while “originalism” is a legal theory which bases constitutional, judicial and statutory interpretation of text on the original understanding at the time of its adoption.
Gould said he thinks the courts are making an effort to be more transparent and educating that the courts don’t make rights but enforce them.
He said he thinks the courts could be more structured, and more actively encourage members of the bar to provide reduced fee or no fee legal services to those who cannot afford a lawyer.
Executive Councilor Karen Liot Hill, D-Lebanon, asked why Gould, who was chosen to be on the governor’s selection committee, then became the nominee.
Gould said he didn’t contemplate applying for this role when he was asked to serve and after being approached by others to consider a seat on the high court he resigned from the commission and then applied. Unfortunately that resignation was not immediately placed on the website.
He said he first spoke to the governor about the job in April.
He has served in a number of roles for the state Republican party and Liot Hill asked if he would recuse himself from cases involving the state and national committee.
He said he has a difficult time seeing himself sitting on a case where the state Republican Committee was a party.
He said the role of an advocate is very different from the role of a judge.
“The advocacy we do for our clients…does not necessarily reflect our personal point of view,” he said.
Asked about a published report related to the Claremont/Conval decision that he is a “torpedo” to strike that decision down, he said he had no idea where that comment came from and had made no commitment to anyone on that subject.
Liot Hill also noted in the article in the NH Journal that Executive Councilor David Wheeler, R-Milford, has said he has a “litmus test” for selecting a justice on the Claremont matter related to state funding of education and asked if he would have agreed to such, and he said, “that would be improper” and that it would be out of character for him to agree that he would participate in some sort of a “fix.”
“That is not who I am, not what I would do,” Gould said.
Gould served as legal counsel to Ayotte’s election and was asked his role, by Liot Hill. He said he was not her personal counsel but worked for her campaign committee and did not discuss any particular issue with her.
In terms of recusal, he said he would use a common sense standard to ensure the public does not lose confidence in the courts.
Executive Councilor Janet Stevens, R-Rye, asked if he is ready to hit the ground running noting the increasing numbers of cases before the high court.
He said “yes” and that growth in caseload is in part to blame for the fact that one justice (Anna Barbara Hantz Marconi) has been on leave since July 2024 and is awaiting trial in Merrimack County Superior Court on charges related to a conversation she had with former Gov. Chris Sununu allegedly seeking improper influence into an investigation into her husband, Ports and Harbors director Geno Marconi.
Hantz Marconi will also reach mandatory retirement age in February, likely giving the governor another nomination to the five-member Supreme Court.
Stevens asked what can and should be done to better protect victims of domestic violence.
While the courts can certainly contribute to a solution, public policy is decided first and foremost by the legislature, he said.
“The decision is largely legislative,” Gould said.
She said only 14 percent of domestic violence victims have legal support and asked how that could be improved. Gould said he thinks lawyers are responsive to suggestions and requests of the court.
PUBLIC COMMENT
Mark Brady, Coos County administrator and Ray Gorman, Coos County commissioner said Gould has done great work for them on carbon sequestration issues involving the forest products industry and commended him for placement on the high court.
Brady said Gould was a “straight shooter” and said the issue is a major one for the county.
“Brian helped the county a great deal,” he said.
Gorman, a Colebrook Republican, said Gould is objective and has done a great job for the county.
Ken Merrifield, commissioner of the department of labor, said he wanted to support him as one of his closest friends. He said the word for Gould is “brilliant.”
Merrifield said Gould is also one of the funniest people he knows.
Mike Dennehy of Bristol called Gould among the most decent people he knows.
He said politics has become about demonizing people and that many have lost sight of who people really are. He noted Bryan Gould is a beekeeper and showed Dennehy’s son about beekeeping.
“He is a decent, honorable, compassionate person,” Dennehy said.
State Senator Howard Pearl, R-Loudon, said Gould is “truthful” and a top quality candidate.
Also speaking in support was state Sen. Tim McGough, R-Merrimack, who said Gould’s integrity and deep experience would serve the state well.
Former Republican Senator Jeanie Forrester of Meredith voiced support for Gould and thanked the council for their thoughtful questions.
While state Rep. Linda Haskins, D-Exeter, said she does not know Gould, she has worked hard on issues of the environment and opposed the nomination. She said she would ask the governor to pull his nomination as it relates to his involvement with Casella and its subsidiary suing the state.
Maybe he will recuse himself, she said, “but that is not my only concern with his nomination,” Haskins said noting she worried about his weighing in on property poor towns with woefully underfunded schools and said she believes if he sits on the Supreme Court, he will not support the fair funding of public schools.
Rep. Nick Germana, D-Keene, also opposed the nomination.
“We are not trusted by the public anymore,” he said of politicians.
Germana said Gould’s primary qualifications are that he has been selected as a “political insider.”
Noting Gould has fewer than three years before the law requires judges retire at 70, he said there are myriad issues that would come before the court where Gould would have to recuse himself.
Laurie Ortolano, of Nashua, an activist, said she is concerned with Gould’s lack of judicial experience. She also raised concern about the lack of time he would have on the court to be meaningfully involved.
Judi Lindsey of Candia said she is confused why Ayotte would nominate Gould given his representation of Casella and Ayotte’s opposition to the landfill creation in Dalton. She urged denial of the nomination.
Lawyer and state Rep. Jay Markell, R-Atkinson, said he came to support the nomination.
He said when one puts on the robe of a judge it is entirely different than being a lawyer and paid advocate.
David Scanlan, Secretary of State, said he wanted to support Gould as a friend and advocate on issues.
“I just think he is an excellent choice. Correct demeanor,” Scanlan said.
Laura Vincent of Loudon said she has several reasons for concern for the nomination, particularly his position on public education and on state spending.
David Trumble of Weare said it is crucial that the court is perceived as fair and impartial. He said if a person spends much of his life representing a political party that would be a part of public perception.
The judicial branch is supposed to be not political, he stressed.
The Rev. Fred Anderson of Whitefield, president of Forest Lake Association said the organization opposed the siting of a landfill near the lake. The group faced a lawsuit from Casella and spent thousands on defense. Anderson said the council should reject the nomination.
John Tuthill of Acworth opposed the nomination and said he would prefer someone selected to the high court not be involved in politics.
State Rep. Kelley Potenza R-Rochester, opposed the nomination and said while he has great experience the high court should have people who have moved through the ranks from circuit court to Superior Court.
Claudia Damon of Concord said her concerns involve impartially for his advocacy on issues of election law and solid waste and his involvement in the Republican party.
While she said he said he would put those aside, she still had concerns.
Pete Mosseau of Concord said New Hampshire practice until now has been a bipartisan selection committee for judges and this one was not bipartisan.
“All of us are concerned about public confidence in the judiciary,” he said after the hearing ended in an interview.
This particular selection committee was all Republican, he said, “and I know that other select commissions were larger and more bipartisan,” in the past.
He said there was an understanding in the past among both the Democrat and Republican parties that no party would have more than three members on the Supreme Court and it would vacillate back and forth.
“We’re not at that point anymore,” Mosseau said.
Correction: Ray Gorman is a Colebrook Republican.