A group of taxpayers who sued the state in 2022, challenging its school funding system, called this week for four of five Supreme Court justices to recuse themselves from presiding over an appeal in their case.
“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 taxpayers wrote.
Three of the five Supreme Court justices who would hear a request to overrule a series of foundational school funding precedents previously defended the state in some of those very cases. A fourth was nominated to the Court last year for the express purpose of overturning those rulings, the conservative publication NH Journal previously reported.
If justices recuse themselves, the Court would appoint replacement judges through a process laid out in state law.
The plaintiffs asked the Court to refer their request to a panel of Superior Court judges, rather than allowing the justices decide whether to disqualify themselves individually, which the Court’s rules allow. The lawyers called that process “fundamentally flawed”.
The Court’s ruling in the broader case, Rand, et al. v. State of New Hampshire, could reshape school funding jurisprudence in New Hampshire. The Department of Justice indicated last month that it plans to ask the justices to overturn a pair of landmark 1990s rulings that found the state has a constitutional duty to fund public education, as well as a series of court decisions in the three decades since that rest on those precedents.
The attorneys argue that the justices’ past legal work and advocacy disqualify them from ruling impartially on the appeal.
Chief Justice Gordon MacDonald and Justice Daniel Will served as the attorney general and solicitor general, respectively, when the Court ruled on a closely related case in 2021. Will argued before the Court in that case.
Justice Patrick Donovan served as an assistant attorney general on the second of two landmark 1990s cases, known as Claremont I and II, that the state is now asking the Court to overrule.
Justice Bryan Gould has “spent decades representing and associating himself with politicians and political groups that have fought for the Claremont precedent to be overturned,” including serving as vice-chair of the state Republican Party, according to the plaintiffs’ lawyers.
The Court’s rules state that justices should recuse themselves from deciding cases in which their “impartiality might be reasonably questioned”.
The rules lay out a series of instances that would fall under that category, including when the justice has made a public statement that suggests a commitment to a particular side; when they have served as a lawyer in “the matter in controversy”; or when they have participated “personally and substantially” in the proceeding while working in government.
The justices’ decisions on whether to recuse themselves may hinge on the meaning of a “matter in controversy”.
MacDonald and Will’s representation in the 2021 case, known as ConVal, required them to defend the state in litigation involving the constitutionality of the current state-level education funding. Donovan’s representation in the 1997 case, Claremont II, required him to defend against the claim that the funding system in place then — which relied solely on local property taxes to fund education — was unconstitutional.
The appeal at issue now raises some of the same legal questions decided in the cases, the lawyers for the Rand plaintiffs contend. The Court will have to decide whether to affirm a lower court judge’s ruling that the current total and special education adequacy payments are unconstitutionally low.
The plaintiffs’ lawyers argue the Rand case qualifies as the same “matter” as the cases in which the justices represented the state.
In 2024, when an earlier portion of the case went before the court, both MacDonald and Donovan rejected calls to recuse themselves, but the analysis might prove different here, chiefly because the state now plans to ask the Court to overrule the entire line of cases that originated from Claremont, which include those that the justices participated in.
(In the ConVal case, MacDonald did recuse himself.)
The plaintiffs’ lawyers also note that MacDonald and Will, who was confirmed to the Court last month, worked closely in 2021 with two of the state’s lawyers who are bringing the current appeal, Solicitor General Anthony Galdieri and Assistant Attorney General Samuel Garland.
“Those conferences granted counsel for the State unparalleled insight into the way” MacDonald and Will think about the legal arguments at issue in this case, the lawyers wrote.
A spokesperson for the Department of Justice did not respond to a request for comment for this story.
In asking the justices to convene a panel of lower court judges to rule on the recusal requests, the plaintiffs’ lawyers argue that a failure to do so could lead to a decline in respect for the Court’s authority, akin to what research suggests the U.S. Supreme Court has experienced in recent years.
“Ineffective recusal practices and procedures effectively allow for self-policing by members of the New Hampshire Supreme Court and self-policing will diminish the Court’s public standing,” the lawyers wrote.
They argue that current procedure violates both the state and U.S. Constitutions by denying parties who go before the Court due process and an impartial judiciary.
The plaintiffs are represented by attorneys John Tobin, Andru Volinsky and Natalie Laflamme.