JCC Records: Circuit Court Judge Filed Two Complaints Against MacDonald Unrelated To Martin Scandal

By GARRY RAYNO, InDepth NH

CONCORD, NH — Before he resigned as chief justice, Gordon MacDonald may have misled circuit and superior court judges about his position on a new judicial performance review law proposed unsuccessfully this year by the legislature over the objections of many of the state’s judges.

Senior Circuit Court Judge Susan Carbon filed two complaints against MacDonald May 19 that suggest he made conflicting statements on his position on House Bill 1130 which would have revamped the individual judge evaluation process to include peer review and written statements from people who appeared before the judge be part of the public record, according to newly released Judicial Conduct Committee records.The bill died when the Senate and House refused to reconcile their different versions of the bill at the end of the session. MacDonald and the other four Supreme Court justices attended a circuit and superior court training session March 20 where MacDonald was asked if the court was taking a position on the bill and he answered in the negative, yet less than a month later former chief justice and now state Rep. Robert Lynn, R-Windham, told a Senate Judiciary Committee hearing he had reviewed the bill with the chief justice and he supported it.

Carbon in her report maintains the two statements are irreconcilable saying MacDonald made material misrepresentations to the judges and Lynn.

“The betrayal felt by the Circuit Court bench is palpable” Carbon wrote.

She noted the circuit court was vehemently opposed to the bill, according to a motion filed by MacDonald’s attorney Jane Young.

Carbon also questions if the other four judges may also be at risk and alludes to an individual “who may have been paid to lobby behind the backs of the circuit court judges to support the JPE bill which the circuit bench vehemently opposes.”Concord lobbyist Periklis Karoutas was hired by the Judicial Branch under a no-bid contract paying $10,000 per month after NHPR’s Todd Bookman’s story detailing the internal court maneuverings to remove Dianne Martin from the court administrator position and then days later hiring her as chief counsel for Bar Admissions, while she received a $50,000 payout for her earned time.

MacDonald was informed in writing of the two Carbon complaints on June 26, before he was scheduled to meet with the Judicial Conduct Committee July 10 to make a presentation and to answer questions on the complaint filed by the committee on his handling of the Martin case which led to his resignation as chief justice and from the Supreme Court 10 days ago.

Young, MacDonald’s attorney, sought to disqualify three JCC members – Superior Court Judge Neals-Erik William Delker and Circuit Court judges Jennifer A. Lemire and John T. Pendleton from participating in the committee’s action on the complaints, and questioned whether the three justices voted to raise Carbon’s two charges to the level of a formal complaint at an earlier meeting.

Young cited the state constitution writing, “It is essential to the preservation of the right of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit.”

Young also quotes the section of the constitution that requires a “judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”MacDonald, as well as three other justices Patrick Donovan, Bryan Gould and Daniel Will, have refused to recuse themselves from the Rand public education funding case now on appeal to the court due to their participation in past litigation or positions with political organizations that oppose the Supreme Court’s original Claremont education decisions, that the state now wants the court to overturn.

Young also questions whether the three judges who heard the statements in question at the training center tainted other members of the JCC in its deliberation on the two complaints.

She requests the meeting minutes for all the discussion about the complaints as well as all communications between the committee members and the three justices sitting on the committee, and any and all records be preserved.

Young’s motion also seeks a special panel of justices to sit in place of the current court members to vote on any recommendations from the JCC and the new panel members should not have attended the March 20 training session where the statement was made.

The motion also seeks to halt any further actions by the committee until a new panel is named.

The committee’s lawyer Philip Waystack opposed the motion for MacDonald saying the JCC has a duty to investigate such reports of alleged judicial misconduct.

The JCC denied Young’s motion on MacDonald’s behalf.

Copies of the two complaints were not available from the committee as the members consider them confidential at this time.

Garry Rayno may be reached at garry.rayno@yahoo.com.

This story was originally published by InDepth NH.