By GARRY RAYNO, InDepthNH.org
CONCORD — The Supreme Court dismissed a request from the Rand education funding suit plaintiffs to reconsider its order by Senior Associate Justice Patrick Donovan not to recuse himself from hearing the case, which is on appeal before the court.
Donovan was an attorney in the Attorney General’s Office when the Claremont I and II education funding cases were argued and fought the suit on behalf of the state.
He also represented the House Speaker and Senate President in Claremont-related cases before the court in opposition to suits.
The court in a decision released Wednesday, said in order to reconsider Donovan’s decision, the plaintiffs need to state the areas in law the court overlooked or misapprehended.
“We have reviewed the claims made in the plaintiffs’ motion to reconsider and conclude that no points of law or fact were overlooked or misapprehended in the 2026 recusal order,” the order states.
The order was signed by associate justices Melissa Countway, Bryan Gould and Daniel Will. Donovan did not sit on the reconsideration decision.
Attorney Andru Volinsky, one of the plaintiffs’ attorneys, noted “Donovan did not sit on this decision. It is the right thing to do, but the court rule does not require it.”
The decision on Donovan is the first of four reconsideration motions the plaintiffs’ attorneys filed after the four justices declined to recuse themselves from hearing the appeal.
The one for MacDonald is moot as he is no longer on the court, and the other two decisions on Gould and Will are expected soon.
Volinsky noted the reconsideration request has been before the court since May, and wondered why it was issued now.
Last week, Chief Justice Gordon MacDonald resigned as both chief justice and from the court after an investigation into his handling of a personnel matter, concerning his long time associate Dianne Martin.
The investigation began when MacDonald as well as Donovan, Countway and Gould signed a statement about the incident being part of a major reorganization of court administration that the Judicial Conduct Committee found inaccurate and began an investigation in November 2025.
All four justices were interviewed during the investigation and Countway was told the justices also could have some exposure for agreeing to the misleading statement.
Earlier the Rand plaintiffs asked all but Countway to recuse themselves from hearing the Rand case which found the state failed to meet its constitutional obligation to provide an adequate education to the state’s children and to pay for it as well as special education services.
Superior Court Judge David Ruoff found that the state’s failure to pay for the full cost of an adequate education requires local property taxes to make up the difference, which have widely varying rates across the state when the constitution requires “state taxes” be proportional and reasonable.
The four justices each denied the recusal motions saying they could be fair and impartial in hearing the case.
MacDonald had recused himself from the similar ConVal education funding lawsuit, and Will was one of the lead attorneys in the state’s defense.
MacDonald, who has since resigned, and Will said the two cases are different with different issues and plaintiffs so they did not need to recuse themselves from hearing the Rand appeal.
This week’s order dealt only with the issue of reconsidering Donovan’s recusal.
The plaintiffs asked for reconsideration again for MacDonald and Will after the state filled its brief in the Rand case, asking the court to overturn the two original Claremont decisions and all others based on those decisions including the ConVal case and its requirement the state pay an additional $500 million for the cost of an adequate education.
The plaintiff said given the state’s request for the court “to overrule one case in which Justice Donovan served as counsel for the State, and another case in which he represented amici adverse to Plaintiffs’ position here, (the order) overlooked and misapprehended the mandatory nature of (Judicial Conduct Rule 38, Canon 2), which requires disqualification when a judge served as a lawyer in the matter in controversy.”
But the three justices said the original recusal request for Donovan centered on his having litigated the opposing side of most of the issues in the Rand case. The court notes Donovan’s order denying the motion, saying the plaintiffs did not “cite a single case or any other legal authority supporting [his] recusal” on those grounds.
The plaintiffs also argued that because the state wants the court to overturn the Claremont decisions that Donovan litigated for the state, it is “the same matter of controversy” before the court in Rand.
But the court also rejected that argument saying there are different plaintiffs, different facts and different applicable law.
“Even if one construes ‘matter in controversy’ more broadly than the case before the court,” the phrase “could not have been intended to encompass all cases involving the same substantive subject or legal issues that the judge litigated while in private practice,” the three justices write, “Courts have uniformly rejected the notion that a judge’s previous advocacy for a legal, constitutional, or policy position is a bar to adjudicating a case, even when that position is directly implicated in the case before the court.”
The plaintiffs also contended “The average person would not believe that the State’s former lawyer can rule impartially on the precise constitutional questions that he litigated and lost on the State’s behalf.”
But the three justices disagreed and said the recusal rule that requires a judge recuse him or herself if the judge’s impartiality might reasonably be questioned and then lists a number of instances.
The justices said the plaintiffs cited “no authority at all in which a judge recused him or herself based merely on having previously litigated the same or similar issues coming before the court, or on having represented parties taking positions adverse to the party seeking recusal.”
The justices note the test for the appearance of partiality is an objective one, that is, whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case, id., i.e., would a reasonable person, not the judge himself, question the impartiality of the court.
The justices note a reasonable person is a thoughtful observer rather than a hypersensitive or unduly suspicious person.
Recusal should not be done to find a judge more to a party’s liking, the justices said.
They contend Donovan applied the correct standard for determining his impartiality, that a reasonable person would not question his impartiality and he affirmed he has no bias and will decide it based on the facts and the law.
Volinsky noted “the American Bar Association has done numerous studies that found judges can’t judge their own bias.”
Garry Rayno may be reached at garry.rayno@yahoo.com.