In recent months, there’s been a series of headlines involving the justices on the New Hampshire Supreme Court: Not for their decisions on the bench, but instead for their actions off of it.
Some Republican lawmakers say that to restore confidence in the judiciary, the New Hampshire House needs to take an exceedingly rare step and launch its own review, including into Chief Justice Gordon MacDonald.
“The New Hampshire Supreme Court is facing a serious and ongoing crisis of public trust, one that this body has both the constitutional authority and the institutional responsibility to address.” Rep. Kelly Potenza, a Republican from Rochester, told members of the House Judiciary Committee during a public hearing last month on a resolution to open an inquiry into MacDonald and other justices.
Other Republicans on the committee, though, are questioning the need and motivation behind the proposed investigation.
“I don't think we have seen that smoking gun,” Rep. Donald McFarlane, a GOP lawmaker from Orange, said during a hearing on the resolution. “I don't think we have even seen evidence that there is a smoking gun.”
The resolution is scheduled for a vote in the full New Hampshire House on Thursday.
Backers of the proposal have circled around a handful of concerns involving the court that they say the public deserves answers about, including a 2024 conversation between two justices that either did or did not take place.
Following the arrest of Supreme Court Justice Anna Barbara Hantz Marconi for trying to influence former Gov. Chris Sununu to intervene in a criminal investigation into her husband, Hantz Marconi, who has since retired, told investigators she received permission from MacDonald before meeting with Sununu.
In his own interview with prosecutors from the New Hampshire Department of Justice, however, MacDonald said he didn’t remember that conversation taking place.
For some lawmakers, including Republican Rep. Kristine Perez of Londonderry, that’s raising concerns that a Supreme Court justice — either one or the other — made false statements to investigators.
“You say one thing and I say the other, one of us is lying,” said Perez. “One of us are telling a mistruth.”
The second issue some Republicans want to investigate involves a $50,000 payment made to a top court official, Dianne Martin, who is a longtime colleague of MacDonald. A whistleblower alleges MacDonald helped orchestrate a 48-hour layoff for Martin, so that she could collect unpaid benefits, before she was immediately rehired into a top job in the court system.
The court has defended its handling of the payment, and said other justices at the time approved of the personnel decisions involving Martin.
A third issue raised during a public hearing on the proposed investigation is whether MacDonald has received preferential treatment from the courts during his own ongoing and lengthy divorce proceedings.
In a statement, Jessica King, general counsel for the state Judicial Branch, said the justices “remain focused on the fair and impartial administration of justice for the people of New Hampshire."
“The Supreme Court is committed to maintaining the highest standards of integrity, independence, and public trust,” she added. “An independent judiciary is essential to our constitutional system of three co-equal branches of government.”
The House Judiciary Committee recommended, on a 12-5 vote, that the resolution be rejected by the full House.
But supporters say they will introduce an amended version on Thursday, and will press colleagues to back a plan giving lawmakers heightened authority to investigate MacDonald — including requesting documents and interviews — and potentially other justices. Following the review, the committee could then vote on an impeachment recommendation.
Even though MacDonald was appointed by a Republican, some Democrats appear hesitant to move forward.
Rep. Paul Berch, the ranking Democrat on the House Judiciary Committee, says the Legislature should show restraint when it comes to the constitution’s separation of powers.
Crossing that line here, where he doesn’t think there’s much evidence to begin with, would set a dangerous precedent.
“And that's a troublesome thing,” said Berch.
The New Hampshire Judicial Branch does have its own internal systems for investigating and disciplining judges, including the Judicial Conduct Committee. The state Attorney General also can review potential criminal conduct, and has already cleared the justices of any criminal wrongdoing in the payout to Martin.
But Republican Rep. Katelyn Kuttab of Windham, who sits on the House Judiciary Committee, says lawmakers have their own unique role to play.
“These are serious potential allegations, and we owe it to the public to do our duty and look into these things,” she said.
