By GARRY RAYNO, Distant Dome
The sudden resignation of Supreme Court Chief Justice Gordon MacDonald has been a long-time coming, according to documents released by the Judicial Conduct Committee last week.
MacDonald’s resignation both as chief justice and from the Supreme Court however did do away with the normal transparency that would accompany an investigation into a complaint brought against a judge if the committee deemed it actionable.
“In resolving this case by Stipulation and Agreement, the public is deprived of the full scope of transparency that would accompany an adversarial hearing. However, all legal settlements and plea agreements involve the balancing of competing interests. The JCC decided that conclusion of this case without a public hearing served the best interests of justice,” wrote committee chair John Mullen, in its report on the complaint against MacDonald.
The chief reason the committee was willing to keep most of the records from its investigation conducted by attorney Philip Waystack confidential was because MacDonald had resigned while the most severe penalty the committee could have imposed with a final punishment approved by the Supreme Court would have been suspension without pay.
A judge with a lifetime appointment or until their 70th birthday, can only be removed by impeachment and trial by the legislature or by a process of address by the legislative and executive branches.
The report cites the constitutional provision that “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit.”
“The JCC determined that if MacDonald were allowed to retain his judicial commission, even while suspended, it would run counter to these important constitutional principles,” Mullen writes. “Thus, the certainty that he would no longer hold a position of public trust was of paramount concern to the JCC.”
Wow. What does that say about MacDonald’s ability to be impartial in making decisions, although he swore he would be when former Gov. Chris Sununu nominated him to the Supreme Court the first time although the Democratically controlled Executive Council would turn the nomination down on a 3-2 vote.
That says the Chief Justice of the Supreme Court is not capable of putting his personal beliefs and feelings aside and impartially look at the facts as they sit within the confines of the constitution and statutes.
In his resignation, MacDonald agreed to three charges of violating the Code of Judicial Conduct: by failing “to avoid the appearance of impropriety; failed to perform his administrative duties competently and diligently in connection with the characterization, processing and public explanation of Dianne Martin’s removal and reappointment, including by bypassing established Judicial Branch rules and procedures in extending her a position without the competitive, merit-based process required of every other Judicial Branch employee; and failed to exercise the power of administrative appointment impartially and on the basis of merit, and failed to avoid favoritism.”
MacDonald’s dealings with Martin was detailed vividly in a story by New Hampshire Public Radio’s Todd Bookman, as she was removed as administrator of the courts, received a $50,000 payout for owed time, and rehired after a few days into the position of counsel for the Office for Bar Admissions.
After the story appeared, MacDonald and associate justices Patrick Donovan, Melissa Countway and Bryan Gould issued a joint statement claiming a comprehensive review of the court’s administration and costs led to the elimination of Martin’s position, triggering the payout and offering her the other position.
“The Court remains committed to responsible stewardship of public resources and to maintaining the effective administration of justice across the state,” the four justices stated.
The JCC’s investigation found that the statement is not accurate.
Other material released by the committee indicates that MacDonald was angry with Donovan and Countway over Martin’s dismissal, slammed shut doors to their offices and yelled at them, and, as the report notes, not for the first time.
The four justices with the advice of attorney Richard Lehmann, who is also the Senate legal counsel, tried to halt interviews Waystack was conducting and proposed a new protection procedure to discuss confidential personnel information.
Through Lehmann, the four justices also tried to have Waystack removed as the chief investigator, but failed to convince the JCC of their desires.
It is reminiscent of the actions of the Brock Supreme Court nearly 30 years ago when then justices Stephen Thayer tried to convince Chief Justice David Brock to replace the judge overseeing his divorce proceedings.
Which is what this is really all about, whether there is justice for all as the constitution states or a system that allows a separate path for the chosen.
Verging on a crisis, the same problem plagues the US Supreme Court as the rules only apply to those who cannot afford to buy their way around accountability.
MacDonald’s written decision in the first appeal of the Rand education funding case dealt with the Statewide Education Property Tax and its constitutionality when wealthy communities are allowed to keep the excess money they raised rather than send it to Concord to be distributed to the communities who are not so fortunate to have miles of lakefront or oceanfront property, or hundreds of second homes or ski areas within their boundaries.
The Supreme Court has spoken many times on that very issue indicating what the state currently does — allowing the excess money to remain in the property wealthy communities — is unconstitutional.
But MacDonald ruled that if the town’s property assessment was constitutional, that was all that mattered in an opinion that read like it was tailored to an ideology and not the constitution or the law, which is just one more reason MacDonald should have recused himself from hearing the Rand appeal currently before the court.
Instead he refused, invented a reason to remain on the case and chastised the attorneys for trying to make the court look bad. He accomplished that far more than the attorneys did.
But the other three justices signed on to the statement about the Martin situation and they had to know it was inaccurate or a polite way of saying a lie, if you read the material the JCC released.
If that is one of the charges against MacDonald how is it not complaints against Donovan, Countway and Gould as well.
What does it say about their impartiality and their ability to put aside their beliefs and feelings and look at the facts and the laws.
That is their job and ultimately their one and only job before they make a decision on anything coming before the court be it the second part of the Rand case over education funding or your neighbor’s divorce.
And if they were pressured by MacDonald, why were they not publicly truthful if they knew procedures and rules were not being followed.
They are all tainted with MacDonald’s stipulation and agreement. The one justice not caught in this dragnet is the newest member of the court, former Attorney General Solicitor General Daniel Will.
He was the solicitor general in fighting the ConVal education lawsuit against the state, which at its core is over the state’s failure to provide and pay for an adequate education for the state’s children without using local property taxes with widely varying and unconstitutional rates.
This as the state is asking the court to overturn the original Claremont decisions and all others based on those orders.
The court’s credibility is at stake. Corruption is never pretty.
What happened last week may have already put a stake through the court’s heart.
Read the Judicial Conduct Committee documents that were released last week here: https://www.courts.nh.gov/resources/committees/judicial-conduct-committee/news
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.