On Wednesday, June 5, 2024, Andru Volinsky, a member of the New Hampshire Executive Council and prominent attorney, published an op-ed in InDepthNH.org questioning the appearance of bias in the state’s judicial system.

Volinsky began his career advocating for social justice issues, leading the legal team in the Claremont school funding cases that challenged the state’s overreliance on local property taxes to fund education. In 2016, he was elected to the New Hampshire Executive Council, a constitutional body that serves as a check on the governor’s power by approving major appointments and contracts.

To avoid conflicts of interest in his new role, Volinsky stepped away from suing state agencies and representing clients before them. He also gave up his partnership at a 100-lawyer firm so he would not profit from cases he could no longer take. However, as an attorney who intended to maintain his trial practice, Volinsky was concerned about appearing before judges who he would have to approve as a member of the executive council.

He received guidance from the state Supreme Court that judges should recuse themselves if their confirmation proceedings were controversial. Relying on this standard, Volinsky took care to question nominees’ qualifications but generally approved Governor Chris Sununu’s picks unless impartiality was in clear doubt. There were a few nominees he opposed, such as a former executive councilor with little trial experience and ethical issues.

Most notably, Volinsky cast a decisive vote against Gordon MacDonald’s nomination as chief justice due to MacDonald’s lack of trial experience and involvement in partisan political activities. MacDonald’s confirmation process became embroiled in controversy. Two years later, Sununu renominated MacDonald, and he was approved.

Volinsky’s op-ed focused on MacDonald’s denial of a recent motion to recuse himself from an appeal involving Volinsky’s client in another school funding case, known as Rand v. Town of Exeter. Volinsky argued the reasonable person standard for impartiality is not being followed since MacDonald’s initial confirmation was so controversial and the issues in the cases overlapped.

While acknowledging the reputation of judges is important, Volinsky questioned if defendants in the Rand case would face consequences of his actions as an elected official carrying out his duty to carefully vet nominees. He closed by arguing single justices should not decide their own bias cases without input from the full court.



Source: InDepthNH.org