Rand Plaintiffs Ask 4 Supreme Court Justices To Recuse Themselves From Appeal

By GARRY RAYNO, InDepthNH

CONCORD, NH — The Plaintiffs in the Rand education funding lawsuit seek the recusal of four of the five state Supreme Courts justices, including Chief Justice Gordon MacDonald, from the case.

The state appealed the Rand case to the Supreme Court last month, asking the court to overturn the two original Claremont education funding decisions that are three decades old.

In the Rand case, Rockingham Superior Court Judge David Ruoff determined the state has failed to meet its obligation to pay for an adequate education for the state’s students and for special education services, and instead uses local property taxes to meet its obligation which is unconstitutional because the rates vary widely and state taxes have to be proportional and reasonable under the state’s constitution.

The Plaintiffs in the case filed motions seeking the recusal of MacDonald, and associate justices Bryan Gould, Patrick Donovan, and Daniel Will. Only Associate Justice Melissa B. Countway wasn't asked to recuse herself.

The attorneys note that three of the four justices have been directly involved in the original Claremont decisions or other education and education funding decisions based on the earlier rulings and should not sit on the appeal.

The Plaintiffs also filed a motion challenging the current judicial rule that allows judges to decide their own impartiality.

“(T)his 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,” wrote attorneys John Tobin, Andru Volinsky and Natalie Laflamme.

The Plaintiffs want the court to strike its rule that allows justices to decide their own impartiality because it violates the “plaintiffs’” state and federal constitutional due process rights to fair and impartial justices who will determine their rights and decide this case.

The court rule’s self-policing provision denies citizens the impartiality they are constitutionally entitled to, the Plaintiffs claim.

They also claim the foundations of the two Claremont decisions had been litigated by the state numerous times — as recently as last year when the court decided the appeal of the ConVal ruling, which is similar to the Rand case — and never challenged those tenets until after Gould and Will were appointed to the court by Gov. Kelly Ayotte.

Only after the last two justices were appointed did the state seek to overturn the original decisions, the attorneys argue.

The Plaintiffs cite an article appearing in the New Hampshire Journal indicating the assumption the current makeup of the court could very well overturn the Claremont decisions.

“This pick is about one case, and one case only: Claremont,” one GOP insider told NHJournal on background. “Gould is a torpedo pointed right at the Claremont decision. That’s the 'legacy.'”

The Plaintiffs also note the recusal issues raised concerning the US Supreme Court and the resulting undermining of its respect among the public.

“When a court starts acting like a political actor, it risks being treated as one that is subject to all kinds of political responses— and court packing is far from being the worst of them all,” the attorneys write. “New Hampshire courts have long enjoyed the reputation of being an impartial and professional arbiter of the law that is beyond political squabbles. This Court must honor that legacy.”

The Plaintiffs argue that both MacDonald and Will were involved in the state’s defense in the ConVal case which contained many of the same contentions of what constitutes an adequate education and if the state was paying for it, while the Rand case also goes to whether the state education funding system is constitutional when it uses local property taxes to fund the balance of what it does not provide through adequacy aid.

MacDonald recused himself as Chief Justice from hearing the ConVal appeal, and because the contentions will be largely the same, he and Will should both recuse themselves from the Rand appeal, the attorneys argue.

They also claim the two state attorneys who will argue the Rand case were on the team of attorneys supervised by MacDonald and Will that oversaw the state’s defense of the ConVal case.

“For the Chief Justice to recuse himself from ruling on ConVal because of his involvement in that litigation as Attorney General, but fail to recuse himself here in Rand—the same matter in controversy—on an appeal would lead to a preposterous result that surely creates an appearance of impropriety and undermines the rule of law,” the attorneys write.

The Plaintiffs note Donovan represented the state in Claremont II litigation at trial and in multiple appeals and will now be asked to overturn that decision.

“The implications of this appeal for public education in New Hampshire are enormous. Given the stakes, it is especially important that the public view the judges presiding over the future of public education as impeccably impartial,” the Plaintiffs argue. “The average person would not believe that the State’s former lawyer can rule impartially on the precise constitutional questions that he litigated and lost on the State’s behalf.”

Having the state’s former lawyer rule on the precise constitutional rules that he disputed on the state’s behalf and then on behalf of private parties casts doubt on the legitimacy of the case outcome, the Plaintiffs claim.

The attorneys argue Will was on the defense team defending the state in the ConVal case and the two attorneys arguing the state’s appeal in the Rand case were as well.

That team did not raise the issue of overturning the original Claremont decision, but the state is making that argument in the Rand appeal, the Plaintiffs claim.

“In the context of recusal, the Plaintiffs – and the public – are left to ask: what changed?” the attorneys write. “As far as the public record is concerned, there is only one factor which has changed: the composition of the Court,” noting the addition of Will and Gould.

The plaintiffs cite RSA 492:1 which reads “[a] justice shall not sit in any case in which he has been concerned as party or attorney or in any appeal in which he has acted as judge in the court below, or act as attorney or be of counsel for either party or give advice in any matter pending or which may come before the court for adjudication.”

The Supreme Court has upheld the original Claremont many times since it was issued 30 years ago, the plaintiffs argue, but now the state is asking to completely overturn it.

“(T)he results will have lasting, monumental impacts on taxation and education policy throughout New Hampshire. Every taxpayer, along with every public school student, teacher, and administrator, will feel the weight of this decision,” the Plaintiffs write. “Justice demands that such a momentous ruling be made without even the slightest suggestion of partiality.”

The attorneys note that the Claremont decisions are at the heart of the Rand case and if the public perceives there is a high likelihood the court will overturn those decisions based on the composition of the court and not on changed circumstances or errors, the public’s trust in the courts, the independence of the judiciary, and the rule of law could be undermined.

The Plaintiffs note that Gould has long been associated with and represented groups who have opposed the original Claremont decisions and held leadership positions in the state Republican Party when its platform included overturning the Claremont decisions.

The attorney’s write, “Ultimately, one must ask whether the impartiality of a justice in this case may be reasonably questioned when: 1) his political supporters have openly stated he is a ‘torpedo’ to Claremont; 2) he represented and was later nominated to the Court by a governor who has publicly disagreed with Claremont’s progeny; 3) he held a leadership position in a political party that endorsed the overturning of Claremont; and 4) an executive councilor voted for his nomination to the Court shortly after publicly stating that he would only vote for nominees who would overturn Claremont.”

In the state’s appeal of the Rand decision, the state attorney general asks the court to find that how the state funds and determines the cost of an adequate education is a political question and not a judicial determination, which would end the steady stream of education funding lawsuits claiming the state has failed to live up to its constitutional obligations that the state has lost since the original decision 30 years ago.

Lawmakers this session seek to change decades of precedent on the issue, in two very similar bills House Bill 1815 and Senate Bill 659 that would rewrite core sections of the school funding and adequacy statutes by making public education a shared responsibility between the state and school districts while removing language guaranteeing students an opportunity for an adequate education.

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

This article first appeared on InDepthNH.org and is republished here under a Creative Commons license.