By GARRY RAYNO, InDepthNH.org

CONCORD — The plaintiffs in the Rand education funding case ask that two Supreme Court orders be reconsidered that allow Chief Justice Gordon MacDonald and Associate Justice Daniel Will to refuse to recuse themselves from the case now before the state’s highest court.

The plaintiffs had earlier asked four of the five Supreme Court justices to recuse themselves from the case due to prior involvement or association with similar cases and earlier Claremont education decisions.

The other two justices Patrick Donovan and Bryan Gould also refused to recuse themselves and the plaintiffs earlier had asked those orders to be reconsidered as well.

Superior Court Judge David Ruoff found in the Rand case that the state failed to meet its constitutional duty to provide and fund an adequate education for the state’s children as well as the state’s share of special education costs.

And Ruoff found the state relies on local property taxes to make up the difference which is unconstitutional as the tax rates vary wildly and are not proportional as the constitution requires.

The state appealed the decision to the Supreme Court and indicated it will ask the court to overturn its two benchmark Claremont education rulings 30 years ago that it is the state’s duty to provide an adequate education, to pay for it, and not rely on local property taxes with widely varying rates to pay for it.

In their reconsideration request for MacDonald’s recusal, the plaintiffs argue MacDonald elevates a court-rule to constitutional status to sit on the case, while “subordinating the constitutional right to impartial judges,” in his order denying their motion for recusal.

The plaintiffs’ attorneys also contend his order overlooks the trial court’s finding in the similarities in the Rand and ConVal cases.

And the order “fails to grapple with the extraordinary circumstance that the State asks the Chief Justice to overrule the very decision from which he appropriately recused himself.”

MacDonald recused himself from hearing the ConVal appeal because he was attorney general when and he participated in developing the strategy and planning for the state’s case.

“Taken together, these errors of law and fact are sufficiently material to warrant reconsideration by the full Court,” the plaintiffs’ attorneys write.

While the individual justices determine whether to recuse themselves from a case, the five court justices have to decide on the reconsideration motion.

In asking for reconsideration for Will’s refusal to recuse himself, the plaintiffs’ attorneys argue he misrepresented a pre-trial ruling by a judge not to consolidate the two cases.

Later Judge Ruoff, who sat on both cases, denied Rand attorneys fees because the core issues had already been decided in the ConVal suit and attorneys’ fees awarded in that case.

“A pre-trial procedural decision made without knowledge of the evidence should not outweigh a post-trial substantive ruling made by the judge who heard everything,” the attorneys write.

The plaintiffs also note the state’s main witness was the same in both cases, Dr. Jay Greene.

“(I)n both Rand and ConVal, the State did not put on evidence on the cost of an adequate education. Instead, it deployed the same expert — Dr. Jay Greene — to advance the same two propositions: that it is improper to look at what districts actually spend to determine the cost of an adequate education; and that all state funding sources, not just RSA 198:40-a funding, must be considered when evaluating the State’s contribution.”

In March, the plaintiffs’ attorneys asked four of the five supreme court justices to recuse themselves from the latest appeal saying the public could have a reasonable assumption that the four have some bias in the case.

MacDonald was attorney general and Will the solicitor general in defending the state against the ConVal lawsuit on education funding, while Donovan was one of the state’s attorney in the original Claremont education lawsuit, and Gould has been an attorney for the state Republican Party, which has long opposed the original Claremont education decisions.

The court rule on recusal “requires disqualification whenever a judge’s impartiality might reasonably be questioned.”
And the rule goes on to list a number of specific instances that would require recusal, but leaves the door open for other reasons.

Several of the justices focused on the list of instances for recusal saying none apply specifically to their standing.

But the plaintiffs argue there is catchall provision which the justices failed to address in denying their motions for recusals.

“(T)he catchall requires the Court to consider the totality of the circumstances that could create the appearance of impropriety — not each factor in a vacuum,” they write.

The court has yet to decide on the reconsideration motions for Donovan and Gould.

The state’s brief for the appeal is due July 10 and the plaintiffs have until Aug. 24 to respond.

Oral arguments are likely before the end of the year.

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