By GARRY RAYNO, InDepthNH.org
CONCORD — A three-judge panel of the state Supreme Court has denied a request for a five-panel court to hear oral arguments in the case of State of New Hampshire vs. Tyler Twombly, and to reveal whether three of the Supreme Court justices are currently being investigated by the Judicial Conduct Committee in relation to the scandal that required former Supreme Court Chief Justice Gordon MacDonald to resign last month.
Attorney Mark Sisti, who had a case scheduled last month on the first day of oral arguments in the fall term, filed a motion the day before they were to occur challenging the composition of the panel of justices to hear the arguments.
The motion also requested a delay of the oral arguments until there is clarification and open access to all files pertaining to the Judicial Conduct Committee investigation into the Dianne Martin case which prompted MacDonald’s resignation and the status of the current justices before the committee who might sit on the panel hearing oral arguments.
The court granted a temporary stay of oral arguments, but on Wednesday lifted the stay when the panel consisting of Senior Associate Justice Patrick Donovan, associate justice Daniel Will and senior superior court justice Charles Temple, denied Sisti’s motion.
Temple was sitting for Associate Justice Bryan Gould who recused himself from the case.
Sisti’s motion also sought the reason for Gould’s recusal, and in a later filing, he said he does not object to Gould hearing the case, but wonders if the recusal is related to the larger issue involving MacDonald’s resignation. In a letter to the Judicial Conduct Committee, Sisti said, “We would like to know whether there is an ongoing investigation at this time.”
“There have been multiple articles written about this matter. It is generally known to the public, and of broad public interest. The public, as well as Mr. Twombly, have reasonable questions as to the three Justices who signed their name affirming the actions of the Chief Justice; actions we now know were improper. Mr. Twombly is facing a substantial sentence. This office has a duty to ensure that his rights are properly protected,” Sisti said in the letter.
MacDonald signed a stipulation and agreement that required he resign as chief justice and from the court in admitting to three charges he violated the judicial conduct code. He admitted to failing to avoid the appearance of impropriety; failing 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 failing to exercise the power of administrative appointment impartially and on the basis of merit, and failed to avoid favoritism.
MacDonald’s relationship with Martin was detailed in a story by New Hampshire Public Radio’s Todd Bookman, as she was removed by two other Supreme Court judges as administrator of the courts, received a $50,000 payout for owed time, then laid off and rehired three days later as chief counsel for the Office for Bar Admissions.
After the story appeared, MacDonald and associate justices Donovan, Melissa Countway and 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 JCC opened an investigation into the court in November 2025 saying the statement was not accurate.
Sisti in a filing notes that in documents released by the JCC Gould was involved in helping draft the letter in question although he had yet to be sworn in as associate justice.
In his motion, Sisti noted his case originally was to have five justices hear arguments, but since that time MacDonald is no longer on the court, Countway is recused because she prosecuted Twombly when she was Belknap County Attorney, and Gould is recused without giving a reason why he should not sit.
He also notes that Donovan appears to be one of the judges to hear the case, but he may be under investigation by the JCC for his signing the statement the four judges released that “has been found to be inaccurate at best.”
Sisti also raises the issue of the court sealing records related to the committee investigation last month, after they had been unsealed for about two hours.
“Tyler Twombly requests a fully qualified vetted Panel of five (5) Justices to hear his Mandatory Appeal. He faces decades of incarceration and the right to appeal is a critical stage designed to guarantee him due process,” Sisti writes.
At this time, the defendant is unsure of who will hear the oral arguments and their status in relationship to the ongoing investigation.
“His concerns are not unfounded as the makeup of his Panel has shifted and the explanation of why certain Justices remain on the Panel and why a certain Justice has been disqualified remains unknown,” Sisti writes.
The Attorney General filed an objection to Sisti’s motion saying the defendant is not entitled to a five-judge panel, only a quorum of the judges, which is three.
They also argue that no judge has to say why they are recusing themselves from a case and stating the reason may actually influence the other justices.
The state also noted Sisti waited until the last day before the oral arguments to file his motion when he had ample opportunity to file a motion to the size of the panel for a month or more.
Sisti argued the information about the Martin case only came to light the week before oral arguments were scheduled.
The state also noted the question of whether Gould and Donovan are under investigation by the JCC related to the Martin scandal is confidential until the time the panel decides to issue formal charges against a judge.
In its order issued Wednesday, the court gave no legal reasons for the denial but lifted the stay meaning the case will be rescheduled for oral arguments.
Twombly was indicted in Hillsborough Superior Court in 2025 on assault, burglary, felony possession of a weapon and other related charges.
MacDonald had been on medical leave since July 24, with no other information available.
Garry Rayno may be reached at garry.rayno@yahoo.com.