By GARRY RAYNO, Distant Dome

Courts have long served as the final safeguard for citizens' rights.

When legislators and the executive branch let people down, they could seek an impartial ruling from the judiciary.

Regrettably, that impartial view is now seen as somewhat compromised based on recent court rulings, especially from the US Supreme Court, which could also affect New Hampshire's reputation.

Still, if you assume courts are always free of politics, you are either uninformed or unaware of how judges secure their lifetime positions.

In New Hampshire, judges receive nominations from the governor and confirmation from the Executive Council, similar to the federal process where the president nominates and the Senate confirms.

Recall recent nominees from the Trump era, all pre-vetted by the Federalist Society, a well-funded libertarian group backed by wealthy interests that pushed its favored candidates through Senate approval.

And if you doubt the US Supreme Court acts in a partisan manner, consider why gerrymandering is acceptable in Republican-led Alabama and Louisiana yet rejected in Democratic Virginia.

The US Supreme Court has shown partisan tendencies since the Republican majority halted vote counting in Florida following the 2000 election.

In New Hampshire, nominees frequently rise from superior court ranks, though some recently have come from the governor's administration or the attorney general's office.

Their political leanings often align closely with the nominating governor, though an informal tradition once required at least one supreme court justice from the minority party, usually a Democrat. Since Judge Gary Hicks departed upon turning 70 in November 2023, no Democrat remains on the state's highest court.

The court will soon rule on the Rand education funding case, with the state's filing due next month and arguments set before year's end.

The court recently decided a comparable education funding matter from the same superior court judge, David Ruoff, who authored the Rand opinion, concluding the state fell short of its constitutional duty to deliver and finance an adequate education.

The Rand ruling went further, declaring the state's education funding approach, which relies on local property taxes to bridge the gap between state contributions and actual costs, unconstitutional due to varying local tax rates that conflict with the constitution's call for proportional and reasonable taxation.

For over three decades, the state's education framework and funding have rested on the two Claremont rulings, which first established public education as a state responsibility and then deemed the funding system unconstitutional.

The state has indicated it will urge the court to reverse the Claremont decisions when appealing the Rand outcome.

The Attorney General's Office would not seek to overturn the Claremont rulings without Governor Kelly Ayotte's approval, and doing so independently would cost the attorney general their position.

The attorneys for the Rand plaintiffs, a collection of commercial and residential property owners and thus taxpayers, requested that four of the five Supreme Court justices recuse themselves, but all declined.

Chief Justice Gordon MacDonald served as Attorney General during the state's defense of the ConVal education lawsuit and played a central role in shaping its approach.

He stepped aside from that matter due to his prior involvement but refused recusal in Rand, arguing the cases differ, he holds a constitutional obligation to participate, he has no direct tie to Rand, and his oath to impartiality should suffice.

Yet the court's recusal guidelines are explicit about when a judge must withdraw.

"A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances," the rule states, followed by examples.

The phrase "not limited to" broadens its reach rather than restricting it.

In his ruling denying the recusal request, MacDonald used the chance to rebuke the plaintiffs' lawyers.

"In this case, it is perfectly appropriate for plaintiffs' counsel to argue the facts and law surrounding whether this is the same 'matter in controversy' or that I should not be sitting on a matter involving the potential overruling of a case from which I was just disqualified.

However, 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.

Such attacks by public officials are not appropriate. Among other consequences, they threaten judicial independence. Because lawyers occupy a special place in our legal system, they should guard against such illegitimate attacks, rather than take a page from the same playbook," MacDonald wrote.

His possible bias in Rand does not harm the court's integrity, but questioning that bias apparently does.

Applying MacDonald's reasoning, how can the court's integrity remain unquestioned when Governor Ayotte criticizes the same Supreme Court for a ruling she disliked in the ConVal matter?

"The court reached the wrong decision today. The fact is, New Hampshire is top 10 in the country when it comes to funding our children's education," Ayotte stated regarding the supreme court's 3-2 decision upholding Ruoff's ConVal ruling.

Moreover, while the state ranks high in overall education spending, much of that funding comes from local property taxes, and New Hampshire ranks last in the share contributed by the state, which explains the string of lawsuits including Claremont, Londonderry, ConVal, and Rand.

On the legislative front, Senate President Sharon Carson and House Speaker Sherman Packard, the top Republicans, released a joint statement faulting the ConVal decision as judicial overreach.

"We are disappointed that the Court continues to insert itself into the Legislature's role in determining state aid to local school districts," they said.

The court's standing may have suffered more from the dispute over the dismissal, brief layoff, and rehiring of Dianne Martin, the former administrative director of the judicial branch, who has ties to MacDonald.

A whistleblower highlighted the rapid process that enabled her to receive nearly $50,000 in severance and benefits.

Former associate justice Anna Barbara Hantz Marconi also did little to help the court's image when she contacted then-Governor Chris Sununu about the attorney general's probe into her husband Geno Marconi, director of the NH Port Authority.

Upon returning from administrative leave, she wisely recused herself from all cases involving the attorney general's office.

Two of the four justices the plaintiffs sought to recuse had worked in the attorney general's office and participated in the Claremont and ConVal cases.

Associate Justice Patrick Donovan helped defend against the original Claremont lawsuit, which the state now wants overturned.

Associate Justice Daniel Will served as solicitor general, collaborating with MacDonald on strategy and overseeing the state's defense while working alongside two attorneys who will argue the state's position in Rand.

Bryan Gould long represented the state Republican Party and Republican interests, including challenges tied to the original Claremont rulings.

He labeled the plaintiffs' claims "innuendo" when denying the recusal motion, while the plaintiffs countered in their reconsideration request that "the public statements and expressions of concern that Plaintiffs documented are not 'innuendo.' They are legitimate, on-the-record evidence that reasonable members of the public have, in fact, questioned Justice Gould's impartiality."

With four of the five justices linked to cases or issues central to the Rand appeal, any ruling will likely raise questions about how unbiased any individual can remain in such a charged context.

That situation aligns with the standard that "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned."

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

Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster's Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn and their two rescue dogs.