By GARRY RAYNO, InDepthNH.org

CONCORD - New Hampshire Supreme Court Chief Justice Gordon MacDonald has declined to remove himself from the ongoing appeal in the Rand education funding lawsuit.

This marks the second instance where he has refused a recusal request tied to the state's challenges of two decisions issued by Rockingham County Superior Court Judge David Ruoff.

Back in March, attorneys for the plaintiffs urged four of the five justices to disqualify themselves, arguing that the public might reasonably perceive bias among them.

The justices in question include MacDonald along with associates Bryan Gould, Patrick Donovan, and Daniel Will. MacDonald previously served as attorney general and Will as solicitor general in the ConVal education funding defense, while Donovan participated in the earlier Claremont litigation and Gould represented the state Republican Party, which has opposed the Claremont rulings.

Donovan and Gould had already turned down similar recusal requests in the Rand appeal.

Judge Ruoff ruled in the Rand matter that the state fell short of its duty to fund an adequate education and special education services, relying instead on varying local property taxes in a manner that violates constitutional requirements for proportional and reasonable state taxation.

Plaintiffs maintained that the ConVal and Rand actions share nearly identical issues regarding the state's constitutional responsibilities for education funding and adequacy payments.

MacDonald and Will helped shape the state's defense strategy in the ConVal proceedings.

In his June 4 order rejecting the recusal motion, MacDonald noted his constitutional duty to hear cases absent compelling reasons for withdrawal, though he omitted supporting case citations for that point unlike other arguments.

He emphasized that judges take an oath to uphold fairness, creating a presumption of impartiality supported by precedent from Hutchinson v. Railway.

MacDonald acknowledged that counsel could properly debate whether the cases involve the same controversy or warrant his exclusion, yet he rejected claims that denying recusal would erode court integrity or public trust in the rule of law.

He compared such arguments to recent national trends of questioning judicial outcomes and stressed that they undermine judicial independence.

MacDonald asserted no prior involvement in any case linked to the Rand litigation, clarifying that the matters in controversy differ substantially from ConVal.

He pointed out that he departed the attorney general's office before the 2022 filing of Rand and highlighted the superior court's refusal to consolidate the suits despite overlapping arguments.

Only two of 28 ConVal witnesses appeared in Rand, he observed, and the plaintiff groups differ, with school districts in one case and property owners in the other.

MacDonald further referenced the court's handling of prior education cases stemming from Claremont to show they do not equate to the current controversy.

In summary, he concluded there exists no appearance of bias, actual bias, statutory violation, or constitutional basis for disqualification.

His ruling mirrored language from an earlier May 31 order denying recusal in a related Rand appeal concerning the statewide property tax and adjustments in unincorporated areas.

Plaintiffs had contended that MacDonald's ConVal involvement, covering similar questions of educational adequacy and state funding shortfalls, required his withdrawal here as well, especially since the attorneys now arguing for the state worked under his supervision during ConVal.

They warned that inconsistent recusal decisions would appear improper and weaken legal standards.

The state must submit its brief by July 10, with plaintiffs responding by August 24.

Officials have signaled intent to seek reversal of the foundational Claremont education rulings that have guided funding policy for thirty years.

Oral arguments are expected before year's end.

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