At least one of the four Supreme Court justices asked to recuse himself from a landmark school funding case will not do so.
Justice Patrick Donovan wrote that he could rule impartially in the case, despite having previously served as a lawyer for the state in one of the cases he will likely be asked to overturn in an appeal.
“I affirm that I have no bias in this case,” Donovan wrote in his order.
The justice, who served as an assistant attorney general in the 1990s, was the first to weigh in on his recusal request. Chief Justice Gordon MacDonald and Justices Daniel Will and Bryan Gould have also been asked to step aside due to concerns about their potential biases on the topic.
Like Donovan, MacDonald and Will previously served in the attorney general’s office when the state defended itself against various school funding lawsuits. Gould never represented the state but was purportedly nominated to the Court last year for the express purpose of overturning previous school funding rulings, the conservative publication NH Journal previously reported.
Lawyers for the state have indicated they plan to ask the Court to overturn decades-old school funding precedents, including some of the cases in which the justices argued unsuccessfully on behalf of the state. If the Court heeds the state’s request, the decision would reshape school funding jurisprudence in New Hampshire.
“This case presents extraordinary circumstances that threaten lasting damage to this Court’s reputation as an impartial and professional arbiter of law that is beyond political squabbles,” the lawyers for the plaintiffs, a group of taxpayers from across the state, wrote.
Donovan’s decision not to step aside could suggest his colleagues will follow suit, though differences exist in the justices’ backgrounds that may affect their analyses. Donovan served as an assistant attorney general some three decades ago, while MacDonald and Will served as attorney general and solicitor general, respectively, as recently as 2021.
The other justices hadn’t released their own rulings as of early Wednesday afternoon.
None of the justices argued on behalf of the state in the case now on appeal, Rand, et al. v. State of New Hampshire, but the cases they worked on were closely related. Donovan represented the state in the case known as Claremont II, decided in 1997, which lawyers have now explicitly said they want the Court to reverse. Will argued on behalf of the state in the case known as ConVal, a portion of which was decided in 2021. The ConVal ruling rests on the Claremont precedents.
Because MacDonald served as attorney general during the first ConVal appeal, he recused himself when the second portion of the case reached the Court in 2024. Will was not on the Court at that time.
The case now on appeal was filed by taxpayers who argue that the school funding system in the state is unconstitutional. The Supreme Court justices will have to decide whether to affirm a lower court judge’s ruling that the current total and special education adequacy payments are too low.
While deciding on that question, the state may ask the justices to reconsider whether the Constitution imposes a duty to fund education. That duty was established in 1993 and serves as the foundation for the cases that have followed.
The lawyers for the taxpayers had also asked the justices to transfer their recusal requests to a panel of lower court judges, arguing that the justices couldn’t police themselves. The justices unanimously rejected that request late last month, ruling that allowing a judge to decide on their own recusal request was “standard practice.”
Donovan did not provide much reasoning for his personal decision not to step aside, instead referring to a previous order in response to a recusal request in a different portion of the Rand case that was heard by the Court in 2024. In that ruling, he wrote that his “former association with the Attorney General’s Office provides no basis for my recusal in this, or any other, case.”
His ruling, released Wednesday, does not address a key difference between this recusal request and the previous one: Unlike in 2024, the state has now expressed an intention to request the reversal of a case in which Donovan argued.
Attorneys for the plaintiffs did not immediately respond to a request for comment on Donovan’s ruling.
