By PAULA TRACY, InDepthNH.org
CONCORD – Superior Court Judge Daniel E. Will was questioned by members of the Executive Council and the subject of a public hearing Friday on whether he should serve as an Associate Justice of the New Hampshire Supreme Court.
More than 20 people spoke in support of the nomination saying Will is an outstanding judge with all the qualities needed for the job on the five-member court while about eight spoke against the nomination focusing on his defense of state lockdowns during the early days of COVID 19 and when he was the state’s solicitor general.
The 59-year-old Loudon resident was nominated by Republican Gov. Kelly Ayotte to replace the retiring Justice Anna Barbara Hantz Marconi on the high court.
A vote on the nomination could come as early as next Wednesday when the Executive Council meets at 10 a.m. at the State House.
The five-hour public hearing began with Will introducing himself and answering questions from the five-member council who will be voting on the nomination.
Will had a roomful of supporters including many of the most prominent members of the state’s legal community with glowing recommendations.
But there were also individuals concerned about the Constitution and whether he will protect those rights.
Before Judge Will was selected to the Superior Court bench, he was the state’s first solicitor general, responsible for and overseeing all appeals involving the state.
Executive Councilor David Wheeler, R-Milford, said he has received 600 emails on the nomination, many of them concerned with the case where Will defended lockdowns. The case of Binford v. (former Governor Chris) Sununu had Will supporting the position, which temporarily restricted scheduled gatherings of 50 individuals or more in March of 2020.
“I did see the gravity of that, counselor, and was unable to go to church myself,” he said to Wheeler. “The issue was was the action of the governor patently unconstitutional or illegal?”
Will maintained that the then-governor’s actions had to comply with the emergency powers statute and limitations including a reasonable timeframe.
Attorney General John Formella, who at the time of COVID was the governor’s legal counsel, defended the position Will took and said courts were then deferential to the government in responding to the health emergency but noted that over time, the position of the courts has evolved.
He asked councilors to look at the context.
“When the pandemic began, it was chaos. There was a lot going on,” Formella said. “I think the law has changed. It was a very deferential standard that was used at the time. If you look at how the law evolved through COVID, by the end of COVID we had a lot more case law and I think the United States Supreme Court has really focused more on the traditional constitutional analysis.”
He said Dan Will is absolutely someone who sees the limits to government power under the constitution.
Free speech and assembly were temporarily restricted and people like former state Rep. Daniel Itse, R-Fremont said the fact that Will was supporting that is problematic to him as it relates to the constitution whose power is derived from the people, not the government.
“The legislature has no legitimate power…to put anyone in a worse condition than if there were no government. That is the standard by which you must judge the judge…Remember that you are electing someone to be a part of a board, a committee beyond which if you live in our state there is no appeal…whatever happens with your vote you need to be comfortable with it,” Itse said.
Will is a graduate of the University of Pennsylvania and at Boston College Law School he graduated in 1995 summa cum laude and was editor-in-chief of the Boston College Law Review. He went on to clerk for the Honorable Norman H. Stahl in the United States First Circuit Court of Appeals and the Honorable Morton A. Brody in the U.S. District Court in the state of Maine and lived in Bangor.
He came to the Concord law firm of Devine Millimet & Branch in 2003 where he worked through 2018 with a focus on general commercial litigation, and business disputes.
In 2018 he worked for the New Hampshire Department of Justice as solicitor general and in 2021 he was tapped by former Gov. Chris Sununu to be a Superior Court Judge where he is presently serving.
Former colleague at Devine Millimet & Branch, Susan Duprey told the council Will was making a healthy salary at the firm but seemed to want to be of public service to the state.
Described as kind, hard working and of a brilliant mind, Will lived in a 200-year old house in a rural part of Loudon with his wife, Laurel, and raised two grown girls while being active in their sports, their Catholic church, enjoying hiking and skiing, hunting and fishing and snowmobiling.
He has been described as a conservative.
“I have loved living in New Hampshire,” he said.
Will explained he is a textualist in law philosophy, focused on the text of the law itself and its plain meaning.
“The judiciary is not a public policy branch,” he stressed. “I come to decisions not on my own views,” he said, but on what he believes the drafters of the law meant.
Will said it would be the “highest professional honor” to serve the state on the Supreme Court. He said he was not involved with the creation of the emergency rules and during COVID 19 his role was then as attorney for the governor and he was tasked with defending his decisions.
He said the constitution can never be suspended.
Will noted the governor’s actions under the emergency powers statute had to comply with both the statute and the Constitution “and I argued they both did.”
While he said we are all imbued as humans with certain inherent rights we surrender, to some degree, those rights in order to form a society for our own mutual protection.
In the Binford case, he maintained that Sununu’s order was narrowly tailored to meet a compelling government interest.
Executive Councilor John Stephen, R-Manchester, had very detailed questioning of Will looking over a number of cases and asked questions about judicial restraint.
He was asked who has served on the U.S. Supreme Court who best aligns with his views, Will said the late Justice Antonin Scalia but does not write like him nor considers himself an equal.
The praise for Will was forceful and came from many corners of the law.
John Coughlin, Hillsborough County Attorney, said he spoke to attorneys after the nomination and said they all spoke highly of Judge Will and his reasonable rulings.
“Judge Will is an outstanding choice,” said Coughlin. “I’ve heard nothing but good things.”
Patricia Myers of Concord opposed the nomination. She said her concern was about the presumption that the rights given by God could be suspended by anyone.
“I pray that you have the eyes to see this,” she said.
Retired NH Supreme Court Justice Carol Ann Conboy spoke “strongly” in favor of the nomination. She said Will is professional and committed to the rule of law.
He has the one skill, she said, “that I think is most important in the job. The ability to suspend judgment until all the facts are known on one hand and the applicable law is discerned on the other.”
She said “that is easy to say and very hard to do,” she said.
Robert J. Lynn of Windham, a state representative and a former Supreme Court Chief Justice who is also a member of the governor’s judicial selection commission which was unanimous in its recommendation of Will, had words of praise.
“He is smart, hard working and thoughtful,” Lynn said.
Some of the comments related to Will’s advocacy of the governor during COVID are wrong and misguided, Lynn said.
Will’s duty was to defend the governor’s actions unless they were unconstitutional. Thus, the positions he took say nothing about his personal views. We cannot subscribe to the view that lawyers should be punished in their careers in this way, he said.
Will relied on a doctrine that no constitutional right is absolute, Lynn said. “Dan Will is a first rate candidate,” he said.
JR Hoell, a former House representative, opposed the nomination, though he said it was not personal.
“We are asking Judge Will to step into a new role,” he said, and it is unclear if Will is ready.
U.S. District Judge Joseph Laplante said Will is ready. He said he is a teacher and if he is given this role, he will be one of the most important teachers in the state.
Pete Mosseau spoke in support of the nomination and also talked about the judicial selection process which used to be a bipartisan commission, which is now all Republican.
He suggested the council ask the governor to return to those days of bipartisan selection because of a diminished favorability in the public. He noted 40 percent of the state voters are undeclared/independents.
“If we want public trust in the judiciary we need to change the process that currently goes forward,” Mosseau said.
Court watchdog Dana Albrecht signed up as opposed to the nomination. “I think we need a better window” into Will’s record which he argued is incomplete.
After the hearing, Albrecht said: “Most recently, Judge Will presided over a civil case against Geno Marconi – Rye Harbor Lobster Pound, LLC, et al v Pease Development Authority, et al, No. 217-2025-CV-00039.
“Judge Will dismissed every claim against Geno Marconi on December 12, 2025 – after he had already applied for the Supreme Court seat Marconi’s wife Anna Barbara Hantz Marconi was vacating,” Albrecht said.
Judge Mark Howard, chief of the Superior Court, spoke in support of Will.
He said the man has plenty of understanding of criminal law and has all of the most important attributes to be on the high court, including his humility. “His north star is always the right thing,” Howard said.
Superior Court Judge Anne Edwards, a former member of the state Department of Justice also spoke in support of the nomination.
She said she knew people disagreed with some of his decisions during COVID 19 and had very hard conversations because they could not worship in church in the way they were accustomed.
She brought Judge Will to tears in her description of him as a father, hunter, and hard worker.
“He will listen to everyone,” Edwards said, and make decisions that are fair.
Ian Huyett, representing the Christian advocacy group Cornerstone opposed the nomination. He said there is an ad campaign for him as a conservative constitutionalist but asked where is the evidence.
He said his organization has never been eager to testify against a nomination in a small state.
Huyett said the right standard is to err strongly on the constitutional rights side and reject the nomination.
Jane Young, former U.S. Attorney who is now in private practice said Will possesses the highest ethical standards and is someone who can set aside their own beliefs when looking at a case.
Alex Walker, a long time friend and former colleague, said Will is “galactically smart” and humble, an overachiever in the extreme who will bring credit and honor to the state if he is confirmed.