By GARRY RAYNO, Distant Dome

Courts have always been the last resort for protecting people’s rights.

When lawmakers and the administration failed you, you could turn to the courts for an unbiased opinion.

Unfortunately, that unbiased opinion is currently thought to be more than slightly tainted judging by some of the decisions made by courts, particularly the US Supreme Court with the potential for tarnishing New Hampshire’s.

However, if you believe courts are inherently nonpolitical, you are either naive or do not know how judges arrived at their lifetime appointments.

In New Hampshire, judges are nominated by the governor and approved by the Executive Council, much like in Washington where the president nominates and the US Senate approves.

Think back to recent nominees from the Trump administration who all came pre-approved by the Federalist Society, an oligarchy-funded Libertarian leaning organization with access to more money than any of us will ever see in our lifetimes to ram their golden boys and girls through the Senate.

And if you do not believe the US Supreme Court is openly partisan then why is gerrymandering fine in Republican Alabama and Louisiana, but not in Democratic Virginia?

The US Supreme Court has been partisan since the Republican majority stopped the vote counting in Florida after the 2000 election.

In New Hampshire, the nominees often come from the ranks of superior court justices, but lately have also come from the governor’s office or administration or the attorney general’s office.

And their partisan leanings do tend to closely follow those of the individual nominating them although there once was an unwritten rule at least one supreme court justice has to be from the minority party — usually a Democrat — but since judge Gary Hicks left the bench with his 70th birthday in November 2023, there has been no Democrat on the state’s high court.

The court is set to decide the Rand education funding case with the state’s brief due next month, and oral arguments before the end of the year.

The court just recently ruled on a very similar education funding case decided by the same judge who wrote the Rand decision, Superior Court judge David Ruoff, that the state has failed to meet its constitutional obligation to provide and fund an adequate education for the state’s children.

The Rand case went a step further saying the state education funding system using local property taxes to cover the vast gap between what the state pays for an adequate education and its costs, is unconstitutional because local property taxes have widely varying rates when the state’s constitution calls for proportional and reasonable taxation.

For more than 30 years, the foundation of the state’s education system and its funding has been the two Claremont decisions first finding public education is the state’s responsibility to provide and fund, and then that the state’s funding system was unconstitutional.

The state has already stated it will ask the court to overturn the two Claremont decisions in its repeal of the Rand case. 

The Attorney General’s Office would not ask for the Claremont decisions to be overturned without the consent of Gov. Kelly Ayotte, and if it did, the attorney general would be unemployed and that is not the case.

The attorneys for the Rand plaintiffs, a group of commercial and residential property owners, hence property taxpayers, asked four of the five Supreme Court justices to recuse themselves from the case and they all refused.

Chief Justice Gordon MacDonald was the Attorney General when the state fought the ConVal education lawsuit and a key player in developing the state’s strategy and execution.

He recused himself from that case because he was the attorney general when it was fought in superior court, but not in the Rand case saying the two cases are different, he has a constitutional duty to sit, he has no association with the Rand case, and he swore to be unbiased and therefore should be assumed to be unbiased.

But the court’s rules on recusal are fairly clear when a judge should step aside. 

“A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:” the rule reads and goes on to list a number of instances when recusal should be the practice.

The key here is “not limited to” which makes it more expansive, not narrower.

In his order dismissing the recusal motion, MacDonald took the opportunity to slap the hands of the plaintiffs’ attorneys.

“In this case, it is perfectly appropriate for plaintiffs’ counsel to argue the facts and law surrounding whether this is the same ‘matter in controversy’ or that I should not be sitting on a matter involving the potential overruling of a case from which I was just disqualified.

“However, it is not appropriate to suggest, as plaintiffs’ counsel do, that if the outcome they seek — my disqualification — is not achieved, then the integrity of the court, public confidence in the judiciary, and the rule of law itself will be undermined. It has been a highly unfortunate development in our recent national history for public officials to attack judges and courts based on outcomes in cases. Here, the plaintiffs’ arguments are of a similar ilk: if their motion is denied, the court will necessarily lack integrity.

“Such attacks by public officials are not appropriate. Among other consequences, they threaten judicial independence. Because lawyers occupy a special place in our legal system, they should guard against such illegitimate attacks, rather than take a page from the same playbook,” MacDonald wrote.

His potential bias in the Rand case does not disrupt the integrity of the court, but questioning his potential bias does evidently.

Using MacDonald’s logic, how does the integrity of the court not be questioned when Gov. Ayotte blasts the same Supreme Court when it made a ruling she did not like in the ConVal case?

“The court reached the wrong decision today. The fact is, New Hampshire is top 10 in the country when it comes to funding our children’s education,” Ayotte said in a statement about the supreme court’s 3-2 decision affirming Ruoff’s ConVal decision.

And the other thing about her statement, the state may be in the top 10 for spending on public education, but most of that money is from local property taxes, whereas the state is dead last in the percentage of money it spends on education which is why there were the Claremont, Londonderry, ConVal and Rand lawsuits over the years.

On the Legislative side, Senate President Sharon Carson and House Speaker Sherman Packard – the Legislature’s two top Republicans – issued a joint statement criticizing the ConVal decision calling it judicial overreach.

“We are disappointed that the Court continues to insert itself into the Legislature’s role in determining state aid to local school districts,” they said.

The integrity of the court may have taken a bigger hit from the controversy over the dismissal, short-term layoff, and rehiring of Dianne Martin, the former administrative director of the judicial branch, who has been aligned with MacDonald.

A whistleblower raised the issue of the quick turnaround that allowed her to collect nearly $50,000 in severance and owed benefits.

And former associate justice Anna Barbara Hantz Marconi did the court’s reputation no favors when she went to then Gov. Chris Sununu concerning the attorney general’s investigation into her husband Geno Marconi, who was the director of NH Port Authority.

When she came back onto the court after her administrative leave, she had the good sense to recuse herself from all cases involving the attorney general’s office.

Two of the four attorneys the plaintiffs asked to recuse themselves were at the attorney general’s office and involved in the Claremont and ConVal cases.

Associate Justice Patrick Donovan was one of the attorneys fighting the original Claremont lawsuit, the court is now being asked to overturn by the state.

Associate Justice Daniel Will was the solicitor general working with MacDonald in developing the strategy of and oversaw the state’s legal fight and worked with two of the attorneys who will argue the state’s case in the Rand case before the Supreme Court.

Bryan Gould was a long time attorney for the state Republican Party and Republican causes including issues raised over the original Claremont decisions.

He called the plaintiffs’ contentions “innuendo” in his dismissal of the recusal motion, while the plaintiffs noted in their request for reconsideration, “the public statements and expressions of concern that Plaintiffs documented are not ‘innuendo.’ They are legitimate, on-the-record evidence that reasonable members of the public have, in fact, questioned Justice Gould’s impartiality.”

With four of the five justices on the court associated with cases if not issues that will be front and center in the Rand appeal, no matter which way they rule, there is bound to be concern how unbiased any human being can be in such a controversial situation.

That certainly appears to comply with “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”

Garry Rayno may be reached at garry.rayno@yahoo.com.

Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn and their two rescue dogs.