By DAMIEN FISHER, InDepthNH.org
The New Hampshire Supreme Court won’t suspend the normal rules for judicial recusals in the Rand v State of New Hampshire education funding lawsuit appeal.
The Court ruled Tuesday there’s no reason to change how judges are recused, despite the plaintiffs motion arguing that four of the five justices cannot be unbiased in the case.
Plaintiff attorneys in Rand asked Chief Justice Gordon MacDonald, and associate justices Dan Will, Patrick Donovan, and Stephen Gould to step aside, arguing each man is compromised by his work history. The lawyers also wanted the justices to suspend Court Rule 21A, which dictates the process for recusal. Under 21A, the judge being asked to recuse is the arbiter of that request.
The justices wrote Tuesday that New Hampshire’s Rule 21A is in keeping with judicial rules in other states, as well as rules for federal judges. Judges are guided by the ethics rules already in place in order to make recusal decisions, they wrote.
“The plaintiffs’ motion to suspend Rule 21A cites ‘social science research’ for the proposition that the individual justices of this court are so ‘blind’ to our alleged ‘biases’ that we cannot be trusted to rule on motions for our recusal under the objective standard. As the State points out, however, it is standard practice in New Hampshire and in other jurisdictions for the justice whose recusal is sought to rule in the first instance on the issue of recusal,” the justices wrote. “The plaintiffs cite no judicial decision holding that such a procedure is unconstitutional, and our own research has found none.”
The Rand plaintiffs wanted a panel of randomly chosen Superior Court judges to be assigned to decide if MacDonald, Donovan, Will, and Gould could hear the case. But using substitutes to make recusal decisions goes against precedent in New Hampshire, and elsewhere, the justices wrote.
Motions for MacDonald, Donovan, Will, and Gould to recuse themselves are still pending. All of them are biased by their past work history before they were elevated to the bench, the Rand plaintiffs argue.
MacDonald is a former state Attorney General, Will a former Solicitor General, Donovan a former Assistant Attorney General, and Gould 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.
The state is appealing Rockingham Superior Court Judge David Ruoff’s decision in the Rand lawsuit 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.