By NANCY WEST, InDepthNH.org
CONCORD – House Democratic Leader Alexis Simpson and Senate Democratic Leader Rebecca Perkins Kwoka wrote the Judicial Conduct Committee Thursday seeking public disclosure under the Court’s rules of any ongoing investigations against sitting New Hampshire Supreme Court Justices.
They also reminded the JCC that the Legislature has independent constitutional responsibilities that gives the House and Senate impeachment powers, along with a separate process for removal for reasonable cause.
The New Hampshire Supreme Court has been in turmoil since Gordon MacDonald resigned as chief justice Sept. 15 and public records indicate other judges could be implicated in the scandal. MacDonald admitted violating the Code of Judicial Conduct, including by not being impartial when he helped Courts Administrator Dianne Martin receive a $50,000 payout of her accrued sick, vacation and termination pay after changing her status to being laid off instead of being fired.
The court has refused to say whether Martin still works for the judicial system in her new remote role overseeing Bar Admissions, a position in which she and another person were both paid for doing the same job for several months until the other person left.
On Thursday, Court spokesman David Sakowich didn’t respond when asked questions related to the request by Perkins Kwoka and Simpson relative to public disclosure of any other investigations into the Supreme Court.
“The public deserves clarity about whether sitting members of New Hampshire’s Supreme Court are currently the subject of judicial conduct investigations. We are calling on the Judicial Conduct Committee to use its authority under Rule 40 to disclose whether any such investigations are pending and, if so, provide their status and an expected timeline for completion. Continued uncertainty is already affecting court proceedings and risks undermining public confidence in the administration of justice,” Simpson and Perkins Kwoka said in a joint statement.
Separately when asked for comment, state Rep. Albert ‘Buzz’ Scherr, D-Portsmouth, who is also a professor at UNH Law School, said he thinks the justices involved should step back from their duties until this is resolved.
“In the early part of this century, Justices Broderick and Horton were under investigation by the House of Representatives for possible articles of impeachment. While that investigation was pending, they voluntarily stepped back from their duties for a few months.
“They were not impeached and returned to their full court duties. Even former chief justice MacDonald stepped back while the JCC investigated the matter. The three justices must think about how the public’s view of the court’s integrity has taken a serious hit. They should put rehabilitating the integrity of the court over personal interest or politics,” Scherr said.
Simpson and Perkins Kwoka told the Judicial Conduct Committee that Professional Conduct “Rule 40(3)(f) permits the JCC to make a statement when a proceeding is generally known through independent sources, is of broad public interest or speculation, and the lack of information may threaten public confidence in the administration of justice. Each condition appears to be present here.”
“Potential proceedings involving sitting justices are now a matter of public knowledge. As NHPR reported on September 21, Justices Melissa Countway, Patrick Donovan, and Bryan Gould were informed by a JCC investigator that they ‘had exposure under the rules’ related to the public statement examined during the Justice MacDonald investigation,” the letter states.
The letter noted that the lack of information is affecting proceedings before the Supreme Court. “On Sept. 21, defense counsel in State v. Twombly sought disclosure concerning any ongoing JCC investigation involving members of the Court and the Court granted a request to postpone oral argument scheduled for the following day.
“Continued uncertainty threatens the public confidence Rule 40(3)(f) is intended to protect. Publicly released records show that Justices Countway, Donovan, and Gould sought to block the JCC from publicly acknowledging its investigation into Justice MacDonald. Continued silence about whether related proceedings involving sitting justices remain pending risks compounds that
uncertainty,” the letter said.
They also asked for the current procedural status and anticipated timeline for completion of any investigation involving a sitting Supreme Court justice.
“The Legislature has independent constitutional responsibilities in this area: Part II, Article 17 gives the House the power of impeachment; Article 38 provides for Senate trials of impeachment; and Article 73 provides a separate process for removal of commissioned officers for reasonable cause.
“We stand ready to discharge those responsibilities should the facts require it. To do so responsibly, the Legislature and the public should know whether relevant JCC proceedings are pending and when they are expected to conclude. We therefore respectfully request that the Committee exercise its authority to state whether any proceedings involving a sitting justice of the New Hampshire Supreme Court are pending and, if so, provide their procedural status and an anticipated timeline for completion,” the letter states.