The New Hampshire Supreme Court dismissed a request from plaintiffs in the Rand education funding lawsuit to reconsider its order allowing Senior Associate Justice Patrick Donovan to hear the case despite his prior work defending the state in related lawsuits. Donovan worked as an attorney in the Attorney General's Office during the landmark Claremont I and II education funding cases and fought against those suits on the state's behalf. He also represented the House Speaker and Senate President in Claremont-related cases in opposition to plaintiffs. The three-justice panel ruled Wednesday that the plaintiffs failed to identify any points of law or fact the court overlooked or misunderstood.
The decision on Donovan marks the first of four reconsideration motions filed by plaintiffs' attorneys after all four justices initially declined to step aside from the appeal. Associate Justices Melissa Countway, Bryan Gould, and Daniel Will signed the order, while Donovan did not participate in the reconsideration decision itself. Plaintiff attorney Andru Volinsky noted Donovan's absence from the decision was appropriate, though court rules don't mandate it. One reconsideration motion concerning former Chief Justice Gordon MacDonald became irrelevant after his resignation last week following an investigation into his handling of a personnel matter. The court is expected to rule soon on the remaining two reconsideration requests involving Gould and Will.
The plaintiffs argued that because the state asked the court to overturn the Claremont decisions Donovan litigated for the state, it constitutes "the same matter of controversy" requiring his recusal. They also contended that "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." But the three justices rejected both arguments, writing that courts have "uniformly rejected the notion that a judge's previous advocacy for a legal, constitutional, or policy position is a bar to adjudicating a case." The justices said plaintiffs cited no legal precedent in which a judge recused themselves merely for having previously litigated similar issues.
The court's reasoning centered on its interpretation of what constitutes impartiality under judicial conduct rules. The three justices wrote that even construing "matter in controversy" broadly, the phrase couldn't encompass all cases involving the same subject matter a judge handled in private practice. The test for apparent bias, they explained, is whether an objective, disinterested observer fully informed of the facts would seriously doubt that justice would be done—and that reasonable person is thoughtful rather than hypersensitive or unduly suspicious. The justices concluded Donovan applied the correct standard and affirmed he has no bias and will decide the case based on facts and law. Volinsky countered that "the American Bar Association has done numerous studies that found judges can't judge their own bias." The underlying Rand case found the state failed its constitutional duty to provide and fund adequate education, forcing local property taxes to make up the difference with widely varying rates across communities—a requirement Superior Court Judge David Ruoff ruled violates the constitution's mandate that state taxes be proportional and reasonable.