By NANCY WEST, InDepthNH.org
Republican Gov. Kelly Ayotte’s new Judicial Selection Commission refused to release the names of applicants for the New Hampshire Supreme Court who at the time of application were also sitting justices in any of the state’s lower courts after InDepthNH.org filed a right-to-know request to publish the names.
Those judges’ names are important for the public to know to avoid any potential conflict of interest in case a sitting judge applying to move up to the state Supreme Court is presiding on any lower court case that may be of particular interest to or involve Ayotte or the state in general, and may want to curry favor with the governor.
Judges in New Hampshire are nominated by the governor, confirmed by the five-member Executive Council and may serve until age 70.
Ayotte’s legal counsel Myles Matteson, a former senior assistant attorney general and chief of the Criminal Justice Bureau, denied InDepthNH.org’s right-to-know request for the judges’ names applying for the Supreme Court under RSA 91a and the New Hampshire Constitution Part 1, Articles 8 and 22 citing the executive order Ayotte issued in May and an exemption in RSA 91a, the state’s right-to-know law.
Legal expert Albert “Buzz” Scherr, a professor at UNH Law and chair of the International Criminal Law and Justice Program, said the denial is wrong, and Ayotte’s executive order creating the Judicial Selection Commission violates RSA 91a.
Matteson wrote: “All records and deliberations with respect to persons who are examined as nominees or prospective nominees shall be held in strict confidence by the Commission but shall be available to the Governor. The names of persons considered by the Commission shall remain confidential personnel records except to the extent necessary for the Commission to carry out its responsibility to evaluate applicants for the Governor.
“As internal and confidential personnel records, documents from the Judicial Selection Commission responsive to your request are exempt from disclosure under RSA 91-A:5, IV and will not be produced,” Matteson wrote in the denial letter to InDepthNH.org.
Scherr said the governor’s office response says the governor issued an executive order that said all records of deliberations with respect to persons who are examined as nominees and perspective nominees shall be held in confidence.
“And then refer to what they thought was the relevant exemption in the 91a exemption list about the language records of deliberations with respect to persons who are examined as nominees. That’s not included in the exemption in RSA 91-A:5, IV.
“So what this Executive Order does is make more confidential public records than the statute allows for. Their Executive Order is in violation of RSA 91a,” Scherr said.
A public hearing last week on Ayotte’s nomination of Bryan Gould to the five-member state Supreme Court brought out a large crowd of people in favor and opposed to the nomination.
Gould, whose name had appeared as a member of Ayotte’s new Judicial Selection Commission, was asked at least week’s hearing how he could be on the commission and also get the governor’s nomination. He said he had resigned from the commission after deciding to apply for the Supreme Court, then applied for the post. Gould’s name no longer appears on the Judicial Selection Commission’s website as a member.
InDepthNH.org asked Matteson for Gould’s letter withdrawing his name from the commission and documents seeking the post, but he hasn’t immediately responded.
If confirmed, Gould will replace James Bassett, who recently retired.
Ayotte will likely get to nominate another Supreme Court judge soon as Justice Anna Barbara Hantz Marconi will turn 70 in February, the mandatory retirement age. Hantz Marconi is on paid leave from the court awaiting trial for allegedly trying to interfere with a criminal investigation into her husband Ports and Harbors director Geno Marconi, who is also on paid leave from his job and facing unrelated charges.
Geno Marconi was indicted for allegedly falsifying physical evidence by deleting a voicemail/and or voicemails from a phone on April 22, 2024. He was also indicted for allegedly retaliating against PDA Board Vice Chairman Neil Levesque by providing confidential motor vehicle records pertaining to Levesque to Bradley Cook, in violation of the Driver Privacy Act.
At Gould’s hearing last week, attorney Pete Mosseau of Concord said New Hampshire until recently has had a bipartisan selection committee for judges and this one was not bipartisan.
“All of us are concerned about public confidence in the judiciary,” Mosseau said after the hearing ended in an interview with InDepthNH.org’s reporter Paula Tracy.
This particular selection committee was all Republican, he said, “and I know that other select commissions were larger and more bipartisan,” in the past.
Mosseau 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.