The New Hampshire Supreme Court returned from its summer recess on Tuesday with a slate of oral arguments. That calendar was tweaked, though, after a defense attorney with a case before the court filed a last-minute motion asking if any of the justices may be tied up in an ongoing ethics probe. The delay is the latest fallout from a months-long inquiry into the highest levels of the state judicial system.
Mark Sisti, who is representing Tyler Twombly, a defendant facing decades in prison, asked the justices to postpone his proceedings, citing concerns about the justices’ “relationship to any ongoing [Judicial Conduct Committee] investigation.”
Sisti’s appeal comes in the wake of former Chief Justice Gordon MacDonald’s decision last week to resign, as he faced an ethics probe related to a personnel maneuver and payout involving a top aide. The state Judicial Conduct Committee has said it is concerned about the accuracy of a public statement the court released last October about that payout.
Justices Patrick Donovan, Melissa Countway and Bryan Gould all signed their names to the statement, alongside MacDonald. While the Judicial Conduct Committee pursued a disciplinary case against MacDonald, it has not publicly confirmed if it is reviewing the other justices for their role in the payout to Martin, or the court’s public statement on the matter.
With that up in the air, Sisti filed an appeal requesting “full disclosure” of the justices’ understanding of any open investigation involving themselves. Sisti also questioned if Donovan, who is serving as acting chief justice in MacDonald's absence, can hear the case, citing uncertainty about his possible ties to an ethics probe.
“Upon information and belief, as well as published media and the [Judicial Conduct Committee] findings, he was a co-signer on a letter endorsing a position that the Martin Decisions made were entirely consistent and in keeping with normal administrative process,” Sisti wrote in a legal brief. “This of course has been found to be inaccurate at best.”
Earlier in the summer, Countway recused herself from hearing the criminal case involving Twombly, as did Gould. Sisti argued in his motion that while Countway was forced to recuse herself because of her previous work as county attorney for Belknap County, Gould had not explained his reason for recusal. A retired judge was appointed to the case to ensure at least three judges would participate in the final ruling.
Late Monday, the justices issued a brief order granting Sisti’s request to delay the hearing.
The last-minute change to the court’s calendar on Tuesday didn’t impact any other scheduled proceedings. Earlier in the morning, the justices denied a similar motion to delay oral arguments filed by the attorney representing the City of Portsmouth. In that case — a civil dispute over a tax deed — the case proceeded as planned.
It isn’t clear if other litigants may follow Sisti’s lead and seek to delay their hearings, while the state’s legal community waits for clarity on any additional ethics probes. The court is next scheduled to hear oral arguments next Tuesday.
