On Thursday, January 16, 2025, InDepthNH.org reported on significant changes to New Hampshire’s court rules and their impact on ongoing legal proceedings, particularly a major education funding lawsuit. These rule changes, effective January 1st, 2025, address appeals involving judicially disciplined justices and mandate a three-justice majority for all appeals. The changes are intertwined with the ongoing administrative leave of Associate Justice Anna Barbara Hantz Marconi, who faces criminal indictments and judicial misconduct proceedings.
Justice Hantz Marconi’s leave, exceeding six months, stems from allegations of attempting to improperly influence an investigation into her husband, Geno Marconi, the state Ports and Harbors Director. These allegations involve conversations with former Governor Chris Sununu and Steve Duprey, chair of the Pease Development Authority. While Justice Hantz Marconi, through her attorney, maintains her innocence, the attorney general’s office has presented evidence to the Judicial Conduct Committee. Her law license is currently suspended. Geno Marconi faces separate charges of illegally sharing confidential information and deleting voicemails.
The new Supreme Court Rule 20 requires a three-justice majority for all appeal judgments, impacting cases where fewer than five justices participate. Court spokesman Av Harris stated this rule, while not directly anticipating Justice Hantz Marconi’s leave, aims to eliminate 2-1 and 2-2 split decisions, as indicated in a June 4th memo from the Clerk of Court. The rule’s implementation presents challenges given Justice Hantz Marconi’s absence and the possibility of other justices needing to recuse themselves.
This new rule directly affects the ConVal case, a lawsuit filed by Contoocook Valley and other school districts challenging the state’s education funding system. The lawsuit alleges unconstitutional underfunding of K-12 public schools. Due to Justice Patrick MacDonald’s disqualification— stemming from his prior representation of the state in this case—only three justices initially heard oral arguments in the state’s appeal of a Superior Court ruling. Anticipating a lack of three-justice agreement, Senior Associate Justice James Bassett appointed two retired Superior Court justices as temporary replacements.
This appointment prompted objections from Attorney General John Formella and Solicitor General Anthony Galdieri, arguing the timing was inappropriate. The school districts, however, defended the appointment, citing precedent for such actions. The three original justices subsequently upheld Bassett’s order, with the temporary justices reviewing briefs and the oral argument video. A rehearing remains possible should either party request one to allow questioning of attorneys by the temporary justices.
The new rule’s impact is debated. Andru Volinsky, representing property taxpayers in a related education funding case, suggested the rule aims to bolster the court’s legitimacy amidst concerns about declining public trust in judicial systems. State Representative Robert Lynn, a former chief justice, noted that 2-1 and 2-2 decisions lack precedential weight, particularly problematic in significant cases.
Supreme Court Rule 22A, also effective January 1st, outlines the appeals process for rulings involving Supreme Court justices disciplined for misconduct. This rule, expedited due to a new law (also effective January 1st), allows the “aggrieved party” to appeal if misconduct directly influenced the decision. The chief justice or highest-ranking qualified justice reviews the appeal, potentially ordering a rehearing. Decisions following a rehearing are appealable to the full court. The new law applies to all state courts, but only the Supreme Court’s rules required updating, according to Harris. State Representative Marjorie Smith clarified that this is because there is no other avenue for appeal from the state’s highest court.
The new law, introduced by Representative Lynn a year prior, stemmed from recommendations addressing fairness concerns in Family Division courts, unrelated to Justice Hantz Marconi’s case. Both Lynn and Smith stated that the law’s application to Justice Hantz Marconi is unlikely unless she participated in a split decision, which is rare at the Supreme Court level. Further, it’s noted that she recused herself from cases involving the attorney general’s office upon learning of the investigation into her husband. The timing of the Judicial Conduct Committee’s investigation remains uncertain.
Other rule changes include increased hourly rates for court-appointed attorneys in criminal cases, reflecting efforts to improve compensation and ensure equitable representation across the state. Amendments also allow electronic signatures on certain forms and relax confidentiality restrictions regarding attorney misconduct proceedings. These changes, alongside those affecting appeals and judicial discipline, represent a significant restructuring of New Hampshire’s court procedures.
Source: InDepthNH.org
