By Rep. ALBERT ‘BUZZ’ SCHERR, D-Portsmouth
The mess at the New Hampshire Supreme Court is not over with Gordon MacDonald’s resignation. The justices of the Court have been under justifiable scrutiny of the last several months. The scandal involved Chief Justice MacDonald’s handling of the “job transfer” of Dianne Martin from one Court position to another without following court rules and procedures. It resulted in the Chief Justice’s resignation from the Court. He admitted violating several provisions of the state’s Judicial Conduct Code.
However, problems with the Court still persist. Three justices of the Court – Patrick Donovan, Melissa Countway, and Bryan Gould – signed on to a telling statement with the Chief Justice in October 2025 that said Dianne Martin’s removal from her position as the top administrator of the state court system and subsequent hiring into a new role in the Judicial Branch two days later was in line with “standard personnel policies.” Ostensibly, this came after a comprehensive review.
That statement was wrong. The Judicial Conduct Committee (JCC) stated – as part of Chief Justice MacDonald’s resignation agreement – that, in fact the standard personnel policies had not been followed. It agreed that the Chief Justice “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…”. Note that MacDonald’s failures in the matter were so serious that he resigned, anything but a slap on the wrist.
The serious, still unresolved problem: what about the three justices who signed onto the “characterization, processing and public explanation” that the JCC found more than wanting? We have heard no explanation from the three justices whatsoever as to why they signed onto that seriously flawed court statement in 2025.
The public is owed a clear and transparent explanation of their behavior. The Court’s reputation in the eyes of the public is at very substantial risk in the face of their silence. Did they themselves actually investigate MacDonald’s conduct, independent of what he told them prior to their statement signatures? Did they rely only on what MacDonald told them? Did each of them think that his behavior was appropriate personnel practice? If so, why? Or, did they simply sign on as an act of comity without any review, a go-along-to-get-along approach?
The public deserves these answers. The JCC has already agreed that MacDonald’s conduct did not promote “public confidence in the impartiality of the judiciary and failed to avoid the appearance of impropriety.” Can we the public have confidence in those remaining on the Court and the Court itself without a full and transparent explanation of their collaboration with Gordon MacDonald in the now discredited statement of last October.
Yes, it may be that Justices Donovan, Countway and Gould are currently under investigation by the JCC, a confidential process. But, nonetheless, they owe it to us to come clean openly and transparently. The hope is that they can explain their conduct in a way that reassures us about the integrity of the Court. The worry is that they signed on to the discredited statement either without thinking or because they simply agreed with its substance. The public is entitled to know. It is our Court, not theirs.
(Buzz Scherr is a state Representative from Portsmouth (District 26), a Portsmouth Police Commissioner and a law professor at UNH Law.)