State Rep. Joseph Barton is calling for an overhaul of how New Hampshire appoints judges after recently released documents show that the state’s Supreme Court justices acted to stifle the investigation into former chief justice Gordon MacDonald.
In the current system, the Judicial Selection Commission screens applicants and sends recommendations to the governor, who nominates a candidate.
Then, by a majority, the Executive Council confirms the nominee. The process applies to both Supreme Court justices and trial court judges.
But Barton has filed a constitutional amendment that would take judicial appointments out of the executive branch’s hands and give the power to the Legislature.
“It’s a stronger check and balance than having the Executive Council just blanket stamp confirm these nominees,” said Barton, a Republican representing towns in Grafton County. “There’s only five executive councilors, but there’s 424 legislators, and we act differently when it comes to recommendations and debate.”
Former Chief Justice MacDonald resigned in September after a Judicial Selection Committee investigation showed he exercised favoritism and bypassed merit-based hiring practices to hire a longtime ally, Dianne Martin.
The internal investigation documents also revealed that the justices filed protective orders preventing committee members from making any “public or private” statements that could disclose that an inquiry was opened.
On Thursday, Democrats in the State House called on the Judicial Conduct Committee to issue a public statement on whether it is investigating a sitting justice of the New Hampshire Supreme Court. The committee had stated in the documents released that Justices Melissa Countway, Patrick Donovan and Bryan Gould had “exposure under the rules” during MacDonald’s investigation.
If the committee finds that a sitting judge is unfit for the bench, it still cannot remove that judge from office. In New Hampshire, judges can only be removed through legislative impeachment or by joint action of the executive and legislative branches.
“We stand ready to discharge those responsibilities should the facts require it,” wrote House Democratic leader Alexis Simpson and Senate Democratic leader Rebecca Perkins Kwoka in a letter to the committee. “To do so responsibly, the Legislature and the public should know whether relevant JCC proceedings are pending and when they are expected to conclude.”
The Executive Council will typically hold one public hearing when the governor nominates a new Supreme Court justice. In contrast, there are several opportunities for public comment in the Legislature as a bill moves through the process
In the State House, Barton said the process would work by nominating committees in the Senate and House, with a hearing held just as it would be for any other bill or resolution.
The difference is that this would entail a public hearing for a nominee.
“I just want to bump it in a direction where the Legislature takes back some of its authority from the executive, because the executive really is overpowered, especially when it comes to administrative rules,” Barton said.
If a constitutional amendment passes both houses with a three-fifths majority, it goes to the governor’s desk to be signed. It then appears on the ballot at the next election, where it must receive two-thirds support to be adopted into the state constitution.
New Hampshire judges are appointed to serve life terms, but must retire at age 70.
Barton said he favors electing judges, as many other states do, but he does not plan to change New Hampshire’s current system.
In a recent interview with the Monitor, State Rep. Bob Lynn, former chief justice of the state’s Supreme Court, said he will not support electing judges and called it a “terrible idea.”
In more than 20 states, judges are chosen in either partisan or nonpartisan elections.
No New England state elects its judges.
