By KATHARINE WEBSTER, InDepthNH.org
A new state Supreme Court rule that took effect Jan. 1 lays out how the court must handle any appeals of decisions involving a justice who is disciplined for misconduct.
Another new court rule that requires at least three justices to agree in any appeal is already affecting the court’s process for deciding a major lawsuit by a group of school districts over education funding, in part because Associate Justice Anna Barbara Hantz Marconi has been on paid administrative leave for more than six months.
Hantz Marconi faces criminal indictments and judicial misconduct proceedings over allegations that she tried to improperly influence an investigation into her husband, state Ports and Harbors Director Geno Marconi, by speaking about it with then-Gov. Chris Sununu and Steve Duprey, chair of the Pease Development Authority, which oversees the Division of Ports and Harbors.
After Hantz Marconi was indicted in October, State Attorney General John Formella informed the state Judicial Conduct Committee of the charges, while Hantz Marconi self-reported. Her law license was suspended as well.
Through her attorney, Richard Guerriero, Hantz Marconi says she did nothing wrong. On Monday, InDepthNH reported that Guerriero said in a court filing that documents turned over by prosecutors show that both Sununu and Duprey told the attorney general’s investigators that Hantz Marconi did not ask for favors or say anything inappropriate.
Geno Marconi is accused of illegally giving confidential driver’s license information to another person and then deleting a voicemail or voicemails to cover it up. He has pleaded not guilty.
New Rule Requires Three-Justice Majority in All Appeals – Including ConVal
The new section of Supreme Court Rule 20 requires a majority of at least three justices, “either full-time or temporarily assigned,” to agree on any judgment in an appeal.
While only three judges are required for a quorum, the rule applies “whenever there are fewer than five participating justices and fewer than three votes for the appellate judgment,” court spokesman Av Harris said Thursday.
Harris said the rule was not created in anticipation of Hantz Marconi being out on administrative leave. He declined to comment on why the justices sought the new rule, but pointed to a memo that Clerk of Court Timothy Gudas filed on June 4 with the court’s Advisory Committee on Rules saying that the proposed rule would eliminate 2-1 and 2-2 split decisions.
Hantz Marconi did not speak to Sununu until June 6. Guerriero, her lawyer, did not return a call last week seeking comment.
Whatever the reason for the rule, three-judge majorities are going to be harder to achieve with Hantz Marconi on indefinite leave, since only four full-time justices remain eligible to hear appeals and one or another of them may also need to recuse themselves from time to time.
That’s the situation in the ConVal case, in which Contoocook Valley and other school districts sued the state, Sununu, the state Department of Education and Education Commissioner Frank Edelblut, claiming that they are unconstitutionally failing to pay for an adequate education for every K-12 public school child.
MacDonald is disqualified in that case because, as a former state attorney general, he represented the state against the school districts earlier in the proceedings.
So on Dec. 10, 2024, only three justices heard oral arguments in the state’s appeal of a Superior Court ruling that would greatly increase the base amount of per-pupil funding the state is required to provide to local school districts.
Less than a week later, on Dec. 16, 2024, Senior Associate Justice James Bassett issued an order saying that two retired Superior Court justices had been randomly selected from a pool of eligible retired judges to serve as temporary justices in the ConVal case – a signal that the three justices who heard oral arguments did not expect to agree with each other and would therefore be unable to conform to the new, three-justice rule.
On Dec. 24, 2024, Formella and Solicitor General Anthony Galdieri objected, arguing that Bassett’s order had come too late in the appeal process. They said that MacDonald and Hantz Marconi should have been replaced shortly after they were disqualified.
The school districts responded on Jan. 2, arguing that Bassett’s order was lawful.
Last Thursday, the three justices who originally heard the case upheld Bassett’s order, citing previous cases in which temporary justices had to be appointed after oral arguments. The orders said that the two substitute justices would read the briefs in the case and review official video of the oral arguments, and that the court did not anticipate a rehearing in front of the full panel.
However, either party could ask for a rehearing if they want to ensure that the temporarily assigned justices have an opportunity to question attorneys for both sides, Harris said.
“Re-argument is possible in any case,” he said.
Andru Volinsky, who is helping to represent property taxpayers in another major education funding case against the state that is also on appeal at the court, Rand v. New Hampshire, said he had no reason to think that the new rule was targeted at any other particular case or cases. Instead, he said, the justices could be seeking to reinforce the court’s legitimacy by requiring a clear majority ruling in all appeals.
“I think courts, generally, because of the misconduct of the U.S. Supreme Court, are being held in lower and lower regard, so this could have been in response to that – but I don’t know,” he said Monday.
State Rep. Robert Lynn, R-Windham, chair of the House Judiciary Committee and former chief justice of the state Supreme Court, noted that one reason for the rule change might be that 2-1 and 2-2 decisions do not set precedents that lower courts must obey. That’s of particular concern in major cases, he said.
Appeals of Decisions After Judicial Misconduct
New Supreme Court Rule 22A lays out the process for appeals of court rulings, judgments and orders “in cases involving judicial misconduct of a judicial officer of the Supreme Court” after the justice has been disciplined.
The rule was sought on an expedited basis by Clerk of Court Timothy Gudas late last year because of a new law that also took effect Jan. 1. The law was proposed more than a year ago, before the attorney general began investigating Hantz Marconi or her husband.
The rule says that, if a state Supreme Court justice is disciplined for misconduct, the “aggrieved party” – the losing side – in a case can appeal a judgment, ruling or order if the misconduct had a direct, “causal” bearing on the decision.
The chief justice of the Supreme Court or the highest-ranking qualified justice will then review the case and decide whether the misconduct affected the decision. The chief justice or highest-ranking justice can then either reject the appeal or set aside the decision in the case and order a rehearing. A decision to reject the appeal or an adverse verdict after rehearing can be appealed to the full court.
The new law underlying the rule change applies to judges in any state court, including the Circuit and Superior Courts. Asked why the Supreme Court had only updated its own rules and not those for the lower courts, Harris said that the Supreme Court’s rules were the only ones that didn’t fit with the new law.
State Rep. Marjorie Smith, D-Durham, the ranking Democrat on the House Judiciary Committee and a co-sponsor of the new law, said that only the Supreme Court needed to change its rules because there’s no other way to appeal a decision by a justice on the state’s highest court.
Why a New Appeals Process?
The new law was introduced as a bill a year ago by Lynn.
Both Lynn and Smith said it grew out of recommendations by a special committee investigating allegations of unfairness in the Family Division courts, and that it had nothing to do with the judicial misconduct proceeding against Hantz Marconi.
They said the new rule and law were unlikely to apply in her case unless she voted in a split decision – and split decisions, Lynn said, are “extremely rare” at the Supreme Court, which votes as a panel. Also, Hantz Marconi appears to have recused herself from all cases involving the attorney general’s office as soon as she learned that her husband was being investigated, they said.
It’s unclear when the Judicial Conduct Committee might complete its investigation of Hantz Marconi and either dispose of the complaint against her or issue a recommendation for sanctions. It could proceed on its own or wait for the criminal case to play out.
All of the Judicial Conduct Committee’s proceedings are confidential until the committee issues formal charges or the complaint is dismissed or informally resolved. All of the Supreme Court’s remaining justices have recused themselves from deciding on the disposition of the complaint, asking that substitute justices be appointed instead.
Lynn said he anticipated very few appeals stemming from the new law, and that it was more likely to apply to judges in the lower courts. Jeff Odland, president of the New Hampshire Association of Criminal Defense Lawyers, agreed.
Still, several judges have faced serious discipline, loss of their law licenses and even criminal charges in recent years.
In one example, Julie Introcaso, a former Circuit Court judge in the Family Division, was prosecuted for overseeing a child custody case in which she was friends with the lawyer appointed to represent the child’s interests. Introcaso was also accused of altering some of the case records. She resigned and reached a deal with prosecutors for a suspended sentence in 2021.
Introcaso also was sanctioned for judicial misconduct, but the Judicial Conduct Committee has no authority to overturn the outcome of a case, even if it’s clear that the judge’s misconduct could have influenced it, Lynn said.
Others sanctioned in recent memory include former Circuit Court Judge Paul Moore, who was disbarred in 2018 for faking his own job performance evaluations, and former Superior Court Judge Patricia Coffey, who was suspended for three years in 2008 after helping to shield her husband’s assets.
Other New Rules
Other new and amended court rules raise the rates for court-appointed attorneys for indigent defendants in criminal cases and for court-appointed guardians ad litem from $90 to $125 an hour, while raising the rates to defend people charged with major felonies such as capital murder and aggravated sexual assault to $150 per hour, plus travel time to visit incarcerated clients.
The higher rates for criminal defense lawyers were sought by the New Hampshire Public Defender and court-appointed defense attorneys in private practice, many of whose firms are unwilling to let them take such cases because they lose money on them.
They said that the higher rates and travel expenses will ensure greater equity for defendants in the more rural parts of the state, given that the majority of lawyers are concentrated in the Merrimack Valley and Seacoast regions and must travel long distances to consult with indigent clients elsewhere.
Advocates for the rate increases for guardians ad litem included advocates for vulnerable children involved in abuse and neglect cases.
Further rule changes allow for electronic signatures on some forms and allow either party to an attorney misconduct proceeding to talk about it, as long as they don’t disclose certain information that must be kept confidential. Previously, only the person filing the complaint was allowed to discuss it publicly early in the process.
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To see all of the court’s rule changes, read the Dec. 30, 2024 “Order adopting amendments to court rules” at: https://www.courts.nh.gov/our-courts/supreme-court/orders-and-opinions/supervisory-orders/2024.
To read public comments submitted to the court on the proposed rule changes, visit: https://www.courts.nh.gov/resources/committees/advisory-committee-rules/committee-materials-docket-number/2024
To read Supreme Court filings and orders in the ConVal education funding case, visit: https://www.courts.nh.gov/media/requested-cases/supreme-court/civil/2024-0121-contoocook-valley-school-district-v-state-new
