New Hampshire Supreme Court Challenged Over Who Should Hear Oral Arguments

By GARRY RAYNO, InDepth NH

CONCORD, NH — The fallout from the resignation of state Supreme Court Chief Justice Gordon MacDonald and its impact on other members of the court was felt the day before the court is to begin hearing oral arguments for their Fall term.

Attorney Mark Sisti, who has a case scheduled for oral arguments Tuesday afternoon, the State Of New Hampshire vs. Tyler Twombly, filed a motion Monday challenging the composition of the panel of justices to hear the arguments.

The motion also asked to delay the oral arguments until there is clarification and open access to all files pertaining to the Judicial Conduct Committee investigation into the Martin case which prompted MacDonald’s resignation and the status of the current justices before the committee who might sit on the panel hearing oral arguments.

The court granted Sisti’s stay of oral arguments on Monday and the state has 14 days to respond to the motion.

MacDonald signed a stipulation and agreement that required his resignation as chief justice and from the court in admitting to three charges he violated the judicial conduct code. He admitted to failing to avoid the appearance of impropriety; failing to perform his administrative duties competently and diligently in connection with the characterization, processing and public explanation of Dianne Martin’s removal and reappointment, including by bypassing established Judicial Branch rules and procedures in extending her a position without the competitive, merit-based process required of every other Judicial Branch employee; and failing to exercise the power of administrative appointment impartially and on the basis of merit, and failed to avoid favoritism.

MacDonald’s relationship with Martin was detailed in a story by New Hampshire Public Radio’s Todd Bookman, as she was removed by two other judges as administrator of the courts, received a $50,000 payout for owed time, and rehired three days later as chief counsel for the Office for Bar Admissions.

After the story appeared, MacDonald and associate justices Patrick Donovan, Melissa Countway and Bryan Gould issued a joint public statement claiming a comprehensive review of the court’s administration and costs led to the elimination of Martin’s position, triggering the payout and offering her the other position.

The JCC opened an investigation into the court in November 2025 saying the statement was not accurate.

The panel of judges set to hear oral arguments for Twombly’s case were Donovan, associate justice Daniel Will and senior superior court justice Charles Temple.

In his motion, Sisti notes his case originally was to have five justices hear arguments, but since that time MacDonald is no longer on the court, Countway is recused because she prosecuted Twombly when she was Belknap County Attorney, and Gould is recused without giving a reason why he should not sit.

“Counsel has no idea why Justice Gould is disqualified and moves for explanation as to why he removed himself or was removed from the Panel,” Sisti writes in his motion.

He also notes that Donovan appears to be one of the judges to hear the case, but he may be under investigation by the JCC for his signing the statement the four judges released that “has been found to be inaccurate at best.”

Sisti also raises the issue of the court sealing records related to the committee investigation Friday, after they had been unsealed for about two hours. The court changed directions again Monday and unsealed them again.

“Tyler Twombly requests a fully qualified vetted Panel of five (5) Justices to hear his Mandatory Appeal. He faces decades of incarceration and the right to appeal is a critical stage designed to guarantee him due process,” Sisti writes.

At this time, the defendant is unsure of who will hear the oral arguments and their status in relationship to the investigation.

“His concerns are not unfounded as the makeup of his Panel has shifted and the explanation of why certain Justices remain on the Panel and why a certain Justice has been disqualified remains unknown,” Sisti writes.

He asked the court to delay the oral arguments and moves for the full disclosure of the present state of any investigation involving any sitting associate justice, and the reason for justice Gould’s disqualification.

Twombly was indicted in Hillsborough Superior Court in 2025 on assault, burglary, felony possession of a weapon and other related charges.

MacDonald had been on medical leave since July 24, with no other information available.

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

This story was originally published by InDepth NH.