Extended Learning Opportunity For Students Becomes A Lesson In The Law

CONCORD, NH — An extended learning opportunity for high schoolers in Concord on Monday gave them a lesson in the law and some of the changes being made to the state’s institutions during the past few years due to tumultuous societal occurrences.

The talk with New Hampshire Supreme Court Chief Justice Gordon MacDonald, who up until about a year ago, was the state’s attorney general, was set up by Jessamyn Rockwell, the school’s ELO coordinator as an opportunity for students to learn about laws, civics, and the judiciary. Civics students as well as Concord Regional Technical Center students, some who are taking the criminal justice course, attended the event.

MacDonald said speaking to students and others about the court system was one of the two main functions of being the chief justice; the other was being a part of the appeals process.

“It’s an absolute treat to do something like this,” he told the students, especially with the focus being on how civic institutions work — whether someone had experience with justice and the law or not.

MacDonald’s path to be a lawyer, the attorney general, and now, the chief justice was an unusual process. After graduating from high school in New Hampshire (Hanover High School) and attending college (at Dartmouth), he said he worked for a senator for eight years mostly on public policy (U.S. Sen. Gordon Humphrey, a Chichester Republican, who served from 1979 to 1990). He always had an interest in government and politics, he said; it had informed everything he had done, at that time, since high school. But watching the senators, especially the ones who were lawyers, and what they brought to the legislative process, up close, made him decide to go to law school.

“I was one of the older students in law school, having been out of college for eight years,” he said. “(It was) an intellectual challenge.”

After graduating from law school, he worked for a federal judge while living just down the road on Warren Street. At that point, being in his early 30s, he said, he thought he might one day want to work as a judge. But, life took him in another direction. He decided to work as a private attorney and ended up at Nixon Peabody LLP, one of 700 attorneys across the country. He called it “a great place to practice” law offering “the ability to do really complex cases” as well as providing services for those who could not afford an attorney.

In 2017, Gov. Chris Sununu nominated him to be the attorney general, “a very important job,” and stayed at it for four years.

Being attorney general, he said, had specific roles — including investigating major cases, eyeing officer-involved shootings, defending state laws, and working with other AGs to protect citizens via lawsuits. It was, he said, “a really big job” where he was “constantly solving problems … (things) end up on your desk, one way or another.”

Then, the coronavirus pandemic hit, and most of 2020 was spent offering advice to state agencies on how to handle it while also balancing 200-year-old institutions and traditions.

Then, there was work tackling reforms in the wake of the killing of George Floyd — which led to a review of policing policies and 56 recommendations for changing, including body cams for state police, which were all approved.

After that, there was “a highly contested election” and “numerous challenges associated with that in 2020.”

When Robert Lynn stepped down as chief justice due to age — the New Hampshire Constitution requires judges to retire at 70, MacDonald was nominated by Sununu.

At the talk on Monday, MacDonald skipped over the fight concerning his nomination and jumped right to being confirmed — missing out on an opportunity to share the contentious nature of the law and courts, something that was discussed later. MacDonald was rejected in July 2019, after being grilled for two weeks by the Executive Council and Democrats raising the issue of abortion and Roe v. Wade as litmus tests, something that had never been done before. The three Democrats on the council voted against his nomination while two Republicans supported him, and he went back to being AG.

Gary Hicks, a senior associate justice, stepped into the role, and after Democrats were swept out of control on the Executive Council in November 2020, MacDonald was re-nominated and approved by a 4-to-1 vote.

Courts in New Hampshire, MacDonald noted, were a $120 million operation, on three different levels — circuit, superior, and supreme.

MacDonald said the circuit courts, which were “very high volume,” specialized in all misdemeanors, landlord-tenant actions, small claims, family matters, and probate and will matters. There were around 120,000 cases every year, dozens of judges in 34 locations.

Superior handles all felony crimes and civil matters for more than $25,000. There are 11 courts, one in each count and two in Hillsborough County, and they take on anywhere from 21,000 to 22,000 cases per year and hundreds of appeals, he said.

The supreme court, MacDonald added, handled appeals.

During the last year and change, MacDonald has been able to settle into the role, focusing on being the administrative head of the judiciary and also working on appeals. He has tried to emphasize “three areas of need” — access to justice, addressing diversity and inclusion in the system, and civics education.

The first, he said, was difficult because for most, working with the legal system, was like “dealing with a completely foreign world to most people.” At the same time, it was important “because your ultimate right as a citizen, your liberty, your freedom, is at issue.”

“We’ve got to do better and do all we can to assure people whose rights (were protected),” he said.

As far as diversity, the system was working on developing a strategic plan to do better at serving the needs of everyone, in an increasingly diverse state.

Part of the education component was something he was doing at Concord High — engaging with young people about the law. But also, others, too. Making sure the public understood that the court was “guided by enforceable norms,” instead of by dictators and authoritarians, while knowing, too, elected representatives “transform the needs and desires of the public into laws.”

It was the law that governs us, he said, which stands in “stark contrast” to other places around the world.

Students, Teachers Ask Questions

During a thorough question-and-answer session, students asked about a variety of topics including how the courts dealt with immigrants who do not speak English and domestic violence cases as well as abortion, decisions about becoming a lawyer, and other issues.

MacDonald said domestic violence cases were a priority as attorney general. A special commission was recently established offering about 40 recommendations to improve the system. The commission was put together due to the death of Lindsay Smith, 33, who was shot and killed in Salem, Massachusetts, after being denied a restraining order against her killer, Richard Lorman, 55, of Wilton. He later died of an apparent self-inflicted gunshot wound. And “we’re hard at work” implementing those suggestions, he said.

One student asked why every case was not appealed by the losing side. MacDonald called it “a good question,” but added it was financial in nature. Most of the cases, in small claims courts and other lower court cases, were so high volume it was not financially feasible to spend time and money on appeals, which can often take a year. Criminal cases though were more apt to be challenged, he said.

When asked about career advice, MacDonald called his path “a little strange,” but the most important part was making sure it was exactly what the student wanted to do.

“It’s expensive and hard” to become a lawyer, he said.

But there was a “wide variety” of legal fields. At the same time, there was the debt incurred, too.

“If opportunities arrive, seize them, and work really hard,” he said. “Always be prepared … not just in law school but whatever you do. And if you do go down that route, don’t give up.”

MacDonald was asked about how many schools he had visited and he said this was the first high school. He also visited UNH. More often than not, the students, like fourth-graders, come to the court, he said. Coronavirus had also put a damper on in-person visits, he said, but he was plugging away at them.

When asked about stress, MacDonald said it could be a stressful job. He also commended former Chief Justice John Broderick for raising the issue of mental health with the public calling it an important issue to tackle. It is a significant problem in the legal profession and law enforcement, he added.

When asked what he liked about the job, MacDonald said taking on the “hard legal cases” while working to “help arrive at the right result. He cherished the opportunity of leading a really important institution in the state — while “seeking opportunities to make it better.”

MacDonald was also asked about just going to school to be a judge and said people attending law school should want to get into the profession first although they may end up wanting to become a judge later. He also admitted it was “a significant transition” to go from being an advocate to a decider.

MacDonald was asked about whether judges were more lenient in the morning versus the afternoon and he laughed, calling it “an excellent question” worthy of more study.

A teacher asked about the only death row inmate in New Hampshire, Michael Addison, and his appeal process. Addison shot and killed Manchester Police Officer Michael Briggs in 2006. MacDonald said he would be disqualified from the case due to handling and did not know the status of the case.

MacDonald was also asked about the Roe v. Wade decision by the U.S. Supreme Court but did not offer comment on it. A teacher, however, followed up with a question about the U.S. Supreme Court being too politicized. MacDonald seemed to agree, saying they deal with matters of policy and are almost inevitably snarled in policy debates at the national level. But they still make decisions based on the law, he said. MacDonald said 90 percent of state judges in the United States were elected — which meant it was a challenge for state judges to not become politicized.

When asked about judges making decisions based on their beliefs, he said they were not supposed to; it’s about the facts and the law. Everyone is a human being, he said, but a judge is supposed to leave that outside of the courthouse.

One student asked about jury nullification — the ability of the jury to decide someone is innocent based on not liking the law. After some back and forth, with MacDonald asking the student what he thought and the student saying he did not know, he said juries ought to be following the law.

MacDonald also said he was “thrilled” to meet some of the criminal justice students involved in the CRTC program and said it was “fantastic” that so many young people wanted to work in law enforcement.

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