This is Part II of Andru Volinsky’s op-ed on education funding and the Supreme Court “A Court in Turmoil.” Part I is here: https://indepthnh.org/2026/09/30/op-ed-a-court-in-turmoil/
By ANDRU VOLINSKY
Is it legitimate to ask if NH Governors Sununu and Ayotte have engineered a Supreme Court designed to overturn the Claremont school funding principles?
Since 2023, the Supreme Court is a conservative, all Republican body for the first time in decades. Two of the current justices, plus Chief Justice MacDonald who recently resigned, were also lawyers in school funding cases on the side opposed to school districts, children and taxpayers. A fourth justice, Governor Ayotte’s former campaign lawyer Bryan Gould, was described by a Republican wag as a “torpedo” aimed at Claremont.
My client in the current school funding case, Steve Rand, recently shared an email with me that he wrote to an elected official. Steve summed up concerns about the NH court system in very polite terms.
As the named party in the Rand lawsuit, I rather obviously feel that the Supreme court is not sufficiently unbiased to make a decision that will pass the test of public confidence. The public needs to believe that justice is served, and that the intent of the Constitution is being upheld . . . .
Public confidence in the courts was shaken by MacDonald’s resignation two weeks ago based on facts that also implicate three other justices. The crux of those facts involve lying to the public.
The Rand case, now on appeal, provides another challenge to public confidence in the Court. Our legal team moved to recuse, or disqualify, Justices MacDonald, Donovan, Gould, and Dan Will from hearing the case because they present the appearance of being biased. The challenge to MacDonald is moot with his resignation.
The “Surprise” Effort to Reverse Claremont.
Judge David Ruoff ruled in August 2025 that State funding is constitutionally deficient for base adequacy and for differentiated aid, the part of adequacy dedicated to children who fit certain categories for poverty, English language learners and special education. The State seeks not only to overturn the trial order but to go back to 1993 and reverse the Claremont I school funding case. And also to reverse Claremont II (1997), the Londonderry school funding cases (2006 and 2008), the ConVal II school funding case (2025) and a half dozen advisory Opinions of the Justices concerning school funding. The ConVal II case upheld an order by the trial judge to increase state funding for public schools by half a billion dollars. The State challenges the ConVal decision as illegitimate because the majority that rendered it included two substitute justices appointed pursuant to NHRSA 490:3.
Over the last 33 years, a dozen members of the NH Supreme Court have ruled in favor of school districts, children and taxpayers concluding that, in one way or another, NH’s school funding system is unfair. Five of the twelve were Republicans.
NH’s system of funding public schools is more dependent on local property values than any other funding system in the nation, by a lot. The over dependence on local property values means school taxes vary widely across the state. In the end, school funding is a math problem. The lower local property values, the higher school taxes must be to raise money for schools.
The first time the State’s lawyers challenged the correctness of Claremont and its progeny in either the ConVal or Rand cases was when it filed its notice of appeal on February 24, 2026. The two cases were pending for a combined total of 83 months and nary a word of challenge to Claremont was uttered by the State’s lawyers or by the outside legal team from Missouri. In fact, the State relied on the Claremont precedents during the Rand litigation when it suited them.
NH, by the way, spent $4 million defending against these two cases.
What changed?
The first challenge to Claremont and its progeny was lodged by the State thirteen days after Dan Will became a justice and five months after Bryan Gould was appointed. Until then, nothing.
Justice Will’s appointment created what some call an extraordinary Murderer’s Row against the principles of school funding announced in the Claremont cases with a majority of the NH Supreme Court being lawyers who previously represented the state of NH against school districts, children and taxpayers.
Patrick Donovan was my counterpart in the Claremont II trial. Gordon MacDonald was the attorney general during the litigation of ConVal I. Dan Will argued on behalf of the state in ConVal I as solicitor general.
A fourth justice, Bryan Gould, was confirmed by the Executive Council after its dean, David Wheeler, publicly proclaimed that he would not vote for Gould unless Gould committed to reversing Claremont. Gould got Wheeler’s vote. Did someone vouch for Gould to secure Wheeler’s vote?
What are recusals?
In NH, justices are nominated to the Supreme Court by the Governor and confirmed after a hearing by the Executive Council. In most states, members of the state senate confirm the nominees. Massachusetts and NH, with their executive councils, are outliers. Once confirmed, justices are presumed to be unbiased. Litigants who seek a justice’s disqualification, or recusal, bear a significant burden to overcome this presumption. This is as it should be.
The standard for disqualifying a judge, or justice, is not whether the judge can perform some complex mental gymnastics to put aside all the positions he argued for years while representing the other side of a case. The standard is one of the reasonable appearance of bias.
Under Judicial Conduct Rule 2.11, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. . . .”
The problem is that NH’s recusal rules are self-policing. The justice who is the very subject of the motion for recusal rules on whether his or her impartiality might be reasonably questioned. There is only a limited appeal from the challenged justice’s original decision.
Social science clearly demonstrates inherent limitations in the self-assessment of bias.
Recent social science research demonstrates that individuals—including judges—are often unable to accurately assess their own biases. Some judges agree.
“As noted by Judge Richard A. Posner in his book ‘How Judges Think’ (Harvard University Press, 2008), judges ‘use introspection to acquit ourselves of accusations of bias, while using realistic notions of human behavior to identify bias in others.’ These tendencies make it difficult for judges to identify their own biases.”
Studies in cognitive psychology have consistently shown that people are subject to unconscious biases that affect their judgment, even when they believe themselves to be acting impartially. Judges, despite their training and commitment to neutrality, are subject to the same cognitive errors and illusions as other individuals. For example, a widely cited study of 167 federal magistrate judges found that judges were influenced by five common cognitive illusions that had previously been identified to affect the lay population. As the authors wrote in their conclusion, “Judges, it seems, are human. Like the rest of us, their judgment is affected by cognitive illusions that can produce systematic errors in judgment.”
As Professor Melinda Marbes summarized in her article about blind spot bias, “we are unable to accurately assess the influence of our own biases using introspection and are seldom persuaded that we are influenced by biases—cognitive or motivational.” The bias blind spot has serious implications for judicial recusal; “the jurist who is tasked with deciding whether he or she is disqualified due to some alleged bias will not be able to see his or her own biases objectively.”
This body of research suggests that permitting judges to be the arbiters of their own impartiality is inconsistent with the realities of human cognition and the need for public confidence in the judiciary. Only by removing the challenged judge from the recusal decision can the legal system ensure both actual and perceived impartiality, and protect litigants’ rights while maintaining public confidence in the judiciary.
[Thanks to the Rand litigation team and particularly Alice Tsier for the substance of the preceding four paragraphs that are drawn from our motion to suspend NH’s recusal procedures because four of the Court’s five members were challenged. The motion was denied.]
All of the motions for recusal have been denied by the justices who were the subjects of the motions. Two of the four motions for reconsideration have also been denied by the remaining justices in very brief orders. The reconsideration motion challenging Chief Justice MacDonald’s recusal is mooted by his resignation. The reconsideration motion concerning Justice Will remains pending.
Ironies Abound
The Dianne Martin saga and the efforts to disqualify arguably biased justices in the Rand case overlap both in time and in irony. Both affect the public’s view of the Court.
Both the Martin affair and the recusal litigation happened at the same time.
On the irony front, MacDonald’s lawyers sought to disqualify members of the JCC panel and the JCC’s lead investigator Phil Haystack, for appearing biased based upon the same constitutional provision against biased judges that we cited. It’s part I, article 35 of the NH Constitution.
[Art.] 35. [The Judiciary; Tenure of Office, etc.]
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. . . .
Also, Chief Justice MacDonald denied our motion to disqualify him for appearing to be biased while he was actively under investigation for lying to the public. MacDonald didn’t just deny our motion. He turned his order into an ethics lecture.
MacDonald wrote: “It is not appropriate to suggest, as plaintiffs’ counsel do, that if the outcome they seek — my disqualification — is not achieved, then the integrity of the court, public confidence in the judiciary, and the rule of law itself will be undermined . . . .” (Order 6-4-26).
Briefs are now being written in the Rand appeal. Expect oral arguments before the NH Supreme Court early next year and a decision late in the spring.
Chronological Timeline (2017–2026)
- April 13, 2017 – Gordon MacDonald appointed NH Attorney General.
- May 8, 2018 – Patrick Donovan appointed to the NH Supreme Court.
- August 20, 2018 – Dan Will appointed NH Solicitor General (serving as the state’s very first Solicitor General). Will left this position to become a trial court judge in 2021.
- March 13, 2019 – ConVal school funding suit filed by the Contoocook Valley School District. Coincidentally, also my birthday.
- March 23, 2021 – ConVal I decided (The NH Supreme Court reversed a ruling in favor of the school districts and remanded the case back to the trial court for a full trial).
- March 4, 2021 – Gordon MacDonald appointed to the NH Supreme Court (sworn in as Chief Justice).
- June 29, 2022 – Rand v. State filed on behalf of five individual property taxpayers and two corporate property taxpayers.
- January 2, 2024 – Melissa Countway appointed to the NH Supreme Court .
- June 2025 – ConVal II decided (The NH Supreme Court upheld the lower court’s ruling that the state’s base educational aid was unconstitutionally low. Decision was rendered by panel with two Superior Court judges substituting for Chief Justice MacDonald and Justice Hantz Marconi.).
- August 18, 2025 – Rand v. State funding sufficiency issue decided on the merits by Judge David Ruoff, Rockingham County Superior Court, finding state funding deficient for both base adequacy and differentiated aid for children living in poverty, learning English or who qualify for special ed.)
- September 18, 2025 – Bryan Gould appointed to the NH Supreme Court.
- January 26, 2026 – Rand v. State motion for reconsideration by State denied by Judge Ruoff.
- February 11, 2026 – Dan Will appointed to the NH Supreme Court
- February 24, 2026 – State of NH files notice of appeal in Rand v. State and for the first time in either the ConVal or Rand litigation seeks to reverse the Claremont School funding case and its progeny that includes the ConVal case.