By NANCY WEST, InDepthNH.org
Judicial ethics are taking a front seat in New Hampshire’s governor’s race as the public waits to see if three of the four remaining Supreme Court justices are under investigation by the Judicial Conduct Committee for their part in a press release that partially caused the resignation of Gordon MacDonald as chief justice last month.
A former Republican Speaker of the state House, Rep. William O’Brien, wants Attorney General John Formella to investigate a UNH Law School conference about the workings of the Judicial Conduct Committee that had been scheduled for five days before the elections, but was already rescheduled to Nov. 10 because of O’Brien’s complaint.
“I allege that the planning, promotion, and proposed presentation of the October 29, 2026, judicial-conduct conference at the publicly funded University of New Hampshire Franklin Pierce School of Law (UNH Law) constitute improper, publicly funded in-kind assistance to partisan campaigns, including the Democrat gubernatorial campaign,” O’Brien wrote to Formella on Friday.
“…The Conference follows documented efforts by the New Hampshire Democratic Party and Cinde Warmington’s gubernatorial campaign to make the judicial-conduct controversy an election issue…” By contrast Republican Gov. Kelly Ayotte has said very little about the court scandal except that she was disappointed in MacDonald’s behavior.
On Monday, a spokesman said Formella has no comment on the request from O’Brien. Ayotte didn’t respond to a request for comment.
“It is outrageous that public institutions would be used to help Democrats promote yet another false campaign theme five days before an election,” O’Brien said. “Democrats working within these institutions have no right to commit public money, facilities, and personnel to partisan politicking. The Attorney General and Secretary of State must act now, before this conference takes place.”
On Sept. 16, the New Hampshire Democratic Party issued a statement pressing Gov. Ayotte, a candidate for reelection, to answer questions about MacDonald’s resignation, public hearings into the Supreme Court, oversight, and the timing of a replacement appointment, the complaint said.
Jon Levin, Communications Director for Warmington, said: “We appreciate Bill O’Brien for highlighting the culture of corruption at the New Hampshire Supreme Court that has been enabled by Kelly Ayotte. This complaint is just as laughable as Kelly telling Granite Staters she’s moving New Hampshire in the right direction.”
The JCC conference, “Judicial Conduct: Accountability, Due Process, and Public Trust,” includes the JCC’s executive secretary Robert Mittelholzer, its investigator and others, sponsored by UNH Law’s Warren B. Rudman Center. The invitation says they won’t discuss individual cases.
Mittelholzer said: “New Hampshire Supreme Court Rule 39 (9) (i) requires the JCC ‘to educate the public on the general functions and procedures of the Committee.’ And that public education is, therefore, not discretionary outreach. Public education sits beside the Committee’s core adjudicative functions. The event is designed and intended to fulfill that mission.”
It isn’t the first controversy raised about partisanship on the state Supreme Court, which is now all-Republican. Past governors have tried to maintain a bipartisan balance of 3 to 2 on the five-member appeals court leaning toward the party of the governor, but Ayotte and former Republican Gov. Chris Sununu are responsible for the all-Republican body. In New Hampshire, governors nominate judges and it is up to the Executive Council to confirm.
Ayotte hasn’t nominated MacDonald’s replacement.
MacDonald resigned Sept. 15 after admitting violating the code of Judicial Conduct in helping Dianne Martin, then-director of the Administrative Office of the Courts, obtain a $50,000 payout of unused earned time before being laid off for a few days before being rehired in another judicial branch position, then issuing an untrue statement to the press of how that all transpired. The three justices under public scrutiny signed off on the same untrue statement, but the JCC won’t say if Justices Melissa Countway, Patrick Donovan and Bryan Gould are being investigated or not.
The controversy at the court had already reignited over criminal charges against Supreme Court Justice Anna Barbara Hantz Marconi, a Sununu appointee, who was found guilty after pleading no contest to having a conversation with Sununu about an investigation into her husband, then-Ports and Harbors director Geno Marconi. Hantz Marconi said MacDonald – who was her boss at the time – told her she had a right to meet with Sununu. MacDonald later denied telling her that.
The Judicial Conduct Committee filed ethics charges against Hantz Marconi this summer after she retired. A hearing in Hantz Marconi’s case is scheduled for December in which Sununu and MacDonald will likely be called as witnesses.
By executive order, Ayotte has also made the Judicial Selection Commission all-Republican as well. Lawyers interested in serving as a judge can fill out a form on the commission’s website. The names of applicants are only made public if they end up being nominated by the governor.
Eyebrows were also raised when Ayotte appointed Bryan Gould, 66, who was a long-time lawyer for the Republican party. He was appointed to the court with less than four years before he must retire at age 70.
Gould’s appointment fed speculation that the Supreme Court was going to overturn the Claremont I and Claremont II school funding decisions.
Attorney General Formella recently argued in a filing to the Supreme Court that the Claremont decisions should be overturned in whole or in part in his appeal of the Superior Court’s Rand decision.
The Claremont decisions have been the foundation of the state’s education system since they were issued by the Supreme Court three decades ago. Claremont I found the state has a constitutional duty to provide an adequate education for the state’s children and to pay for it, while Claremont II found the education funding system dependent on widely varying local property taxes was unconstitutional.
Court watchdog Christopher Gregory of Colorado had filed a NH JCC complaint against the three remaining justices Melissa Countway, Patrick Donovan and Bryan Gould, but said it was dismissed recently claiming he lacks standing. Gregory said he is facing a similar corruption problem in Colorado courts.
“It is hard to understand how public fraud that impacts federal taxpayer dollars does not allow standing for any member of the public to file a judicial misconduct complaint. Moreover, because I and everyone else who read the October 31, 2025 press release were witnesses and present when the (ongoing) conduct complained of occurred, it is hard to see how NHSC Rule 40(5)(c)(2) prevents consideration of the complaint. I will be filing additional complaints against Justice Will and Judge Christopher M. Keating. I will also formally request reconsideration of this dismissal,” Gregory said Monday.