Volinsky: Chief Justice MacDonald Refuses To Step Off Rand Appeal, What Do You Think?

By ANDRU VOLINSKY, InDepth NH

The case of the pernicious duty to sit.

Sounds like something A. Conan Doyle would write.

There is a creeping judicial hegemony overtaking our state. Shade by shade, the grasp of judges grows darker. “THE DUTY TO SIT” it is decreed, must only be written in caps. Wait, is that Moriarty?

Before anyone else files a Bar complaint against me or publicly criticizes my professional ethics, let me point out the preceding paragraph is satire, political satire, if you like.

Here’s the thing, even though I religiously attended my law school classes about professional ethics, constitutional law and civil procedure, I don’t remember hearing or reading a single paragraph about a judge’s constitutional DUTY TO SIT on a case that overpowers the duty to disqualify oneself if there is a reasonable appearance of bias. Yet, a constitutionally based DUTY TO SIT is the rationale upon which Justice MacDonald denied our motion to recuse (or disqualify) him from presiding as chief justice over the Rand school funding appeal as he disqualified himself in the ConVal school funding appeal decided just last year.

Chief Justice MacDonald, as you may recall, was NH’s Attorney General prior to being appointed to the bench and in that capacity supervised the state’s legal team in the ConVal school funding case through the first two years of that litigation. As a result, he recused himself from the ConVal appeal. ConVal and Rand present overlapping issues.

Worse, the state now explicitly seeks to reverse ConVal, along with Claremont and all of the other decisions in this line of cases. Our legal team moved to disqualify the justices who worked so hard to represent the state in the Claremont, Londonderry and ConVal cases from presiding over an appeal to determine if their losses should be reversed. Justices MacDonald, Donovan and Will have now declined to do so. Justice Gould was separately challenged on other grounds. He declined to step off, too.

“The Constitutional Duty to Sit and the Presumption of Impartiality.”

The constitutional DUTY TO SIT was important to Justice MacDonald’s conclusion because his decision to stay on the case required him to overcome the authority of an actual NH constitutional provision about judicial impartiality. That provision, Article 35, is in the NH Bill of Rights, and it states: “It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit.”

You might wonder why a provision about judges is in the NH Bill of Rights. Article 35 itself provides the answer: “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.”

The constitutional provisions about judges and the judiciary, Part Two, Articles 72-a through 81 do not mention a DUTY TO SIT.

So where does it come from?

According to Justice MacDonald the DUTY TO SIT exists as a constitutional duty as a result of the oath of office he took to become a judge. He provided no other authority to support his construction of the DUTY TO SIT as a constitutional responsibility.

The oaths (there are two) are word for word described in Part II, Article 84:

I, A.B. do solemnly swear, that I will bear faith and true allegiance to the United States of America and the state of New Hampshire, and will support the constitution thereof. So help me God.

I, A.B. do solemnly and sincerely swear and affirm that I will faithfully and impartially discharge and perform all duties incumbent on me as …, according to the best of my abilities, agreeably to the rules and regulations of this constitution and laws of the state of New Hampshire. So help me God.

This is the same pair of oaths that I took when I became an executive councilor. It’s the same for all holders of state offices. The oaths do not include a DUTY TO SIT. The oaths require the oath taker to follow the constitution which, in this context, includes Article 35’s requirement for impartiality.

Justice MacDonald did not cite to a single case. He declared a new, previously undiscovered constitutional duty to create a ballast against the duty to step off when the judge cannot be “as impartial as the lot of humanity will admit.”

Legal scholars have disparaged the DUTY TO SIT.

Some call it “the pernicious duty to sit” because it undermines the public’s confidence in courts.

“The duty to sit, like any doctrine, is capable of being misapplied or misinterpreted by courts. That is the situation that Professor Jeffrey Stempel has characterized as the ‘pernicious’ version of the duty to sit.

This misapplication or misinterpretation of the duty to sit ‘pushes judges in exactly the wrong direction, suggesting that they should decline to preside only if the grounds for disqualification are undeniably clear.’”

Three of the four motions we filed to disqualify justices from the Rand school funding appeal are based on the fact that these justices in their previous jobs as attorneys general represented the state of NH in prior NH Supreme Court school funding cases. Now that the current NH attorney general has expressly asked the Court to reverse all of these prior cases (Claremont, Londonderry and ConVal), we think there is a legitimate concern about the court’s “fairness and integrity.”

The law review article continues:

“. . . to the degree that the duty to sit prompts a judge to remain presiding when there are good arguments for disqualification, the lay and legal communities have valid reason to wonder whether the outcome of the case turned in any significant part on favoritism by the judge.”

This is what is at stake.

Sure, if the school funding principles are reversed children will no longer have the right to a good public education and taxpayers will lose their right to a modicum of fairness, but the real sacrifice might just be how the public perceives the NH Supreme Court. The scholars and the cases all talk about this and we raised this concern in our motion papers.

Here’s what the Chief Justice wrote in response:

“. . . it is not appropriate to suggest, as plaintiffs’ counsel do, that if the outcome they seek — my disqualification — is not achieved, then the integrity of the court, public confidence in the judiciary, and the rule of law itself will be undermined. It has been a highly unfortunate development in our recent national history for public officials to attack judges and courts based on outcomes in cases. Here, the plaintiffs’ arguments are of a similar ilk: if their motion is denied, the court will necessarily lack integrity.”

A Makeweight

The article concludes the section about the pernicious DUTY TO SIT as follows:

“The judge might cite the duty to sit as the reason for her refusal to disqualify, but the duty is then an after-the-fact rationalization for her erroneous decision to keep the case rather than the cause for keeping it.”

Find the full article here. I removed footnotes and shortened the quotes for ease of presentation. The proper citation is: Douglas R. Richmond, Mandatory Judging, 54 Loy. U. Chi. L. J. 989 (2023)

Recused Justices are replaceable.

I’ll add one final note about the scholarly article. The DUTY TO SIT is properly a matter of judicial ethics, and no more. Some scholars argue the DUTY TO SIT should play no role in deciding disqualification cases because, with respect to the US Supreme Court, “Unbiased justice is more important than having nine justices.” But even the concern for having a full court of nine US Supreme Court justices (or five NH Supreme Court justices) doesn’t save this pernicious duty. If a US Supreme Court justice is disqualified from sitting on a case, the number of justices on the case is reduced. The US Supreme Court justice is not temporarily replaced by another judge.

This is not a problem for the NH Supreme Court as our court has a longstanding practice that substitutes either a retired justice for one who is disqualified or temporarily promotes a trial court judge to fill the role. This is what happened in the ConVal case last year.

Justice Will issued his order denying recusal on Friday afternoon (6-5-26)

Justice Daniel Will also declined to recuse himself from the Rand appeal providing well-trod arguments previously put forward by his fellow justices. The only thing is Justice Will was the lead lawyer for the state of NH during the first two years of ConVal and, unlike some of the others, Will clearly admits that the state now seeks to reverse the ConVal case. He also concludes that a reasonable person would not look askance at the fact that Justice Will personally supervised the two attorneys general who are now on the Rand appeal when they were members of his ConVal legal team. Will concludes, “A reasonable person, fully informed of the facts alleged, would not question my impartiality in this case.”

Your thoughts?

All four justices have refused to disqualify themselves. Two of the decisions are currently the subject of further motions.

Chief Justice MacDonald expressed his criticism of our team (“it is not appropriate to suggest . . . that if . . . my disqualification — is not achieved, then the integrity of the court, public confidence in the judiciary, and the rule of law itself will be undermined.”). I guess in a way former Speaker William O’Brien expressed his criticism when he filed an ethics complaint and asked the Bar to discipline me.

So, as A. Conan Doyle would have written, “Dear readers, it’s your turn.”

What are your thoughts? After all, the standard for recusal involves what a reasonable member of the public would think. I shall be pleased to see your fair criticisms of our team, the recusal decisions or the overall litigation of this appeal.

Email your thoughts to: andruvolinsky@gmail.com.

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