By DAMIEN FISHER, InDepthNH.org

CONCORD – There’s no conflict on the New Hampshire Supreme Court when it comes to school funding questions, according to objections filed by the state.

Lawyers in the Rand v. State of New Hampshire school funding appeal want Chief Justice Gordon MacDonald, and associate justices Dan Will, Patrick Donovan, and Bryan Gould to step aside, arguing each man is compromised by his work history.

MacDonald is a former state Attorney General, Will a former Solicitor General, Donovan a former Assistant Attorney General,  and Gould was the lawyer for the state GOP.

MacDonald, Will, and Donovan, in their former official capacities, each worked against schools that sued the state over education funding. Gould represented the GOP while it advocated overturning the Claremont decision in which the state Supreme Court ruled that New Hampshire children have a constitutional right to an adequate education funded by the state. 

But the fact three sitting Supreme Court justices all worked for a New Hampshire Department of Justice in opposition to school funding plaintiffs, and a fourth spent years working for the state Republican Party which sought to overturn the Claremont school funding decision, is not a problem, according an objection recently signed by Solicitor General Anthony Galdieri. 

None of the four judges the Rand plaintiffs want removed have a direct financial stake in the outcome of the case, and there are no other situations generally considered conflicts under judicial rules, according to Galdieri’s motions. MacDonald, Gould, Will, and Donovan are all seasoned attorneys with years of experience gained in practice before they joined the Court. 

But it’s that experience that Rand attorneys John Tobin, Andru Volinsky, and Natalie Laflamme say disqualifies the four judges from deciding the case. Because the justices either represented the state against different school plaintiffs, or represented an organization like the New Hampshire GOP, they are compromised, according to the plaintiffs’ attorneys.

Galdieri’s objection states the standard the plaintiffs use for their recusal request would make it impossible for most judges to oversee just about any case.

“Even if it were possible to keep track of every issue presented in every case that every justice of this Court had ever litigated, supervised, or presided over, such a rule would render duly appointed justices unable to perform their constitutional function in a wide swath of cases that this Court is constitutionally authorized and statutorily mandated to hear. That outcome finds no support in the law and defies common sense,” Galdieri’s motion states.

Tobin, Volinsky, and Laflamme are pushing to force the judges to be potentially recused outside the normal rules. Under the current practice, recusal requests are decided by the judge being asked to recuse, but the Rand plaintiffs want that rule suspended so that a different judge would decide. The argument Tobin, Volinsky, and Laflamme make to justify that rule-bending is that the Rand case is unusual due to the significant nature of the matter at hand, and that requires a different approach to judicial ethics. 

Again, Galdieri’s motion disputes this argument, stating there is nothing unusual about a Supreme Court justice making a decision on how to interpret the state constitution, which is the heart of the Rand case.

“This appeal will put questions concerning the proper interpretation of the New Hampshire Constitution before this Court. This fact does not make this case uniquely important,” Galdieri’s motion states.

The state is appealing Rockingham Superior Court Judge David Ruoff’s decision that determined the state has failed to meet its obligation to pay for an adequate education for the state’s students and for special education services, and instead uses local property taxes to meet its obligation which is unconstitutional because the rates vary widely and state taxes have to be proportional and reasonable under the state’s constitution.

As part of the state’s appeal, New Hampshire Attorney General John Formella is asking the court to find that how the state funds and determines the cost of an adequate education is a political question and not a judicial determination. Such a ruling would effectively put a stop to the lawsuits that have been filed since the original Claremont decision more than 30 years ago.