Top Democrats in New Hampshire are demanding more transparency about potential ethics probes involving three members of the New Hampshire Supreme Court, while one political candidate says the justices should stop hearing cases.
Meanwhile, a prominent defense attorney in the state continues to argue that the justices assigned to his criminal case need to disclose if they are aware of any probe, arguing his client’s fate should rest in the hands of judges who aren’t subject to potential discipline.
The concerns stem from the sudden resignation last month by former Chief Justice Gordon MacDonald, after he admitted to violating the state’s judicial code of conduct for his role in an unusual personnel maneuver and $50,000 payout to a top court staffer. In addition to showing favoritism, the state Judicial Conduct Committee accused MacDonald of misleading the public when he and fellow Justices Melissa Countway, Patrick Donovan and Bryan Gould issued a statement that appears to have inaccurately portrayed a series of events around the court’s decision to terminate that staffer.
The Judicial Conduct Committee does not generally comment on the existence of an investigation until it decides if formal ethics charges are warranted. In recent days, though, top state Democrats have been calling for just that. Executive Councilor Karen Liot Hill called for the committee to confirm if they are investigating Countway, Donovan and Gould for their participation in drafting and releasing the misleading public statement.
“Right now, there are unresolved questions relating to three sitting Supreme Court justices, and the public has the right to know what's going on,” Liot Hill said Friday.
Her push for more transparency was echoed in a joint statement by Democrats Sen. Rebecca Perkins-Kwoka and House Minority Leader Alexis Simson: “Continued uncertainty is already affecting court proceedings and risks undermining public confidence in the administration of justice.”
This week, Cinde Warmington, the Democratic nominee for New Hampshire governor and an attorney, went a step further and called for the three justices to “step aside” from hearing cases.
“Our state Supreme Court has returned to the bench under a cloud of corruption inconsistent with the fair administration of justice,” said Warmington.
The Judicial Conduct Committee has not publicly responded to the calls for more information, and the Supreme Court has not addressed the subject.
According to documents released last month, during its nearly 10-month investigation into MacDonald following the first published reports of the payout, the Judicial Conduct Committee sought to issue a public statement, citing widespread interest in the matter. MacDonald and his colleagues, through their attorney, pushed back against any public disclosure of the investigation. Ultimately, a specially appointed panel of judges also said the committee had failed to prove that the conditions were met to disclose the investigation.
Attorney presses for information
The New Hampshire Supreme Court returned from its summer recess on Sept. 22 with just four members, including Justice Dan Will, who filled the seat vacated earlier this year after Anna Barbara Hantz Marconi stepped down. Gov. Kelly Ayotte, who named both Will and Gould to the court, has yet to nominate a replacement for MacDonald.
One case scheduled for oral arguments that day was postponed, after defense attorney Mark Sisti raised questions about the possibility of an investigation into the justices who would hear his client’s criminal appeal.
In a last-minute written motion, Sisti pushed for the justices to disclose if they were aware of any pending investigation, and also questioned why Gould recused himself from his client’s case. The court opted to delay oral arguments, but asked for the New Hampshire Department of Justice to also weigh in on the issue.
In a legal filing Thursday, the Attorney General’s office argued that the criminal case should proceed with oral arguments. There is an “appropriate JCC process” for disclosing any investigations, prosecutors contend, but that doesn’t include a direct appeal through an unrelated criminal case.
Sisti is continuing to press the issue, filing his own response Friday alleging that litigants before the state’s highest court “are being kept in the dark as to whether justices determining their fate are currently involved in an investigation that has already caused the resignation of the Chief Justice.”
The New Hampshire Association of Criminal Defense Lawyers said in a separate statement that its top concern was “faith and confidence in the impartiality” of the court. The group said that MacDonald’s actions had harmed trust: “The path forward requires transparency, accountability, and a renewed commitment to ensuring that every person who comes before the Court is judged fairly."
