Capital Beat: Conflict of interest concerns swirl around MacDonald Supreme Court bid

  • Attorney General Gordon MacDonald has been nominated to serve as chief justice of the N.H. Supreme Court. AP

Monitor staff
Published: 6/22/2019 10:25:17 PM

Gordon MacDonald first shot to prominence as New Hampshire’s attorney general two years ago. Yet in chasing the nomination for chief justice to the Supreme Court, he’s tracing an even rarer path.

Since 1901, only four New Hampshire attorneys general have gone on to serve on the Supreme Court, according to state records. But even those cases differ from MacDonald’s intended course.

Only two of the four ascended to the level of chief justice, for instance. But of those two, neither was nominated directly to be chief justice; each served at least four years as an associate justice before rising to the top.

And only one, Chief Justice Frank Kenison, moved directly from the attorney general post to the court, in 1946 as an associate justice. The other three had at least a five-year buffer period between their time in the Department of Justice and their time on the court.

That history makes the circumstances for MacDonald’s nomination unique: the first person to attempt a jump directly from the state’s highest prosecutorial role to the state’s highest judicial role in at least 119 years – perhaps ever.

Now, with little precedent, some are raising the matter of conflict of interest. Many of the recent headline-grabbing political lawsuits could see an appearance in the court again under MacDonald.

Groups such as the American Civil Liberties Union of New Hampshire and the state Democratic Party are flagging lawsuits they’ve filed in which MacDonald directly represented the state’s interests, urging the nominee to answer whether he will recuse himself should the cases make it to the court.

“As a Supreme Court Justice, would you agree to recuse yourself in all civil and criminal cases in which, while you were Attorney General, your office was a party or counsel?” the ACLU asked in a set of questions for the nominee published last week.

And ahead of his confirmation hearing June 26, at least one Executive Councilor has said the volume of recent conflicting case history following MacDonald is worth some scrutiny.

“It’s a legitimate question, particularly given how hands-on an AG he’s been,” said Andru Volinsky, a Concord Democrat.

Supporters of MacDonald have dismissed any concerns, pointing to a longstanding recusal process set up in the Supreme Court rules. The attorney general, who stepped aside from his post earlier this month in preparation for his nomination battle, did not respond to a request for comment, following common practice for nominees.

But before Wednesday’s hearing, it’s worth taking a look at the potential conflicts, and what a recusal process might look like.

Cases in the pipeline

MacDonald’s tenure has been a brisk two years. But two major political shifts in the State House have sparked a lot of conflict in recent years, and a number of political lawsuits have consumed the state.

To start, there’s the school funding lawsuit. The Cheshire County Superior Court’s ruling earlier this month – which once again found the state’s adequacy formula to be unconstitutional – an issue that remains unresolved since officials in Claremont made a similar argument in the 1990s and the Supreme Court agreed.

There’s Michael Addison’s death penalty conviction, appeals for which have been flying through state and federal courts for years. The latest state appeal is presently in limbo as counsel for Addison awaits a response from the Department of Justice to an earlier motion. With the death penalty now off the books, his death sentence is expected to make its way to the state’s highest court.

Last year, several of the state’s newspapers teamed up with the ACLU to sue the Department of Justice to release the “Laurie’s List” – a list of disciplined officers that has so far been heavily redacted. The ACLU is also taking on the Department of Health and Human Services over what it says is the lack of due process afforded to people involuntarily committed in emergency rooms due to mental health crises – a lawsuit MacDonald has also been involved with.

And then there’s Senate Bill 3. The Republican-passed bill, which added new requirements for voters to prove their place of domicile, has been encumbered in courts for years, with the state Democratic Party and the League of Women Voters arguing it unconstitutionally suppresses turnout.

A district court judge has put the bill’s penalties on hold. With a Hillsborough Superior Court trial set for September, a Supreme Court appearance is a ways off.

Interpretative process

In the Supreme Court, recusals are nothing unusual. The court’s rules include a comprehensive series of scenarios that require “disqualifications” – its preferred word for recusal.

Grounds for disqualification include any personal or family connection to one of the lawyers on the case; any economic interest in the case; any previously made public comment committing the judge to one opinion; any prior work experience or court experience in the matter, and more.

What’s less common? Recusal after overseeing the attorneys bringing the case.

There’s a provision in the rules for that: A disqualification must be made if the judge “served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding.”

But stepping off a case is not always a given; the judge has discretion to decide whether he or she meets those criteria. And exactly which specific cases MacDonald would decide to stop participating in – all that involved his department or just the ones that he had worked on – is not yet clear.

Random replacement

If the recusal process is subject to interpretation, the replacement process is more ironclad. State statute says that in the event there is one less justice on the Supreme Court, the chief justice can appoint a replacement. That replacement is chosen at random – first from a pool of retired Supreme Court justices, then from superior courts and on down depending on availability.

In theory, a 2-2 tie in a major Supreme Court decision – voting, schools – could come down to a probate judge.

It’s a system crafted to prevent bias while ensuring 3-2 outcomes in close cases.

Still, that rule is also open to some leeway. Not all four-justice courts need to appoint a fifth judge; in some cases likely to be unanimous they may let a 4-0 decision present itself, according to Tom Rath, a former attorney general and partner at Rath, Young and Pignatelli.

Thin precedent

The list of prior examples of attorneys general on the state court is a short one, according to state records. The most recent is a familiar figure: former U.S. Supreme Court justice David Souter, who became a state associate justice in 1983 after a two-year stint as attorney general from 1976 to 1978.

Francis Johnson of Claremont left the Department of Justice in 1935 and landed at the court in 1943. Stephen Wheeler of Exeter put in time as acting attorney general until 1945; he joined the Supreme Court 12 years later, in 1957.

And further back was Lewis Clark, who jumped from attorney general in 1876 to associate justice, according to a post from the New Hampshire Historical Society.

None of them provide an easy template for how to go about handling these cases in 2019. But some legal observers said they didn’t see a reason to worry about recusals.

“If I had to make a judgment, he will bend over backwards to be in compliance with that,” Rath said. “That’s just who he is. He’s very honorable.”

One thing is for sure: If MacDonald gets the votes, it may be happening a lot.

(Ethan DeWitt can be reached at 369-3307, or on Twitter at @edewittNH.)

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