NH Supreme Court Challenged Again on Who Should Hear Oral Arguments

By GARRY RAYNO, InDepthNH.org

CONCORD — Another request to stay oral arguments has been filed with the state Supreme Court until the possible investigations of three justices is known.

The case at issue is the State vs. Hassan Sapry, who was convicted of first-degree murder in Belknap County Superior Court last year for the murder of Wilfred Guzman Sr. in his Laconia home in 2019.

Sapry’s attorney, Mark Sisti. wrote in his filing that Sapry is facing a life without parole sentence and would like the possible review before the Judicial Conduct Committee settled before a Supreme Court panel hears oral arguments.

Sisti notes in his motion that the three justices were intimately involved in drafting a statement along with former chief justice Gordon MacDonald about Dianne Martin’s removal as court administrator and appointment as counsel for Bar Admissions, while collecting $50,000 for earned time.

The statement was found by the JCC to be a false representation of what occurred and led to the resignation of MacDonald as chief justice and from the court.

One of the three justices was told by the attorney investigating the case, the justices may have some exposure as well for their involvement in drafting the statement.

MacDonald resigned after a stipulation and agreement to three charges he violated the judicial conduct code. 

He admitted to failing to avoid the appearance of impropriety; failing to perform his administrative duties competently and diligently in connection with the characterization, processing and public explanation of Dianne Martin’s removal and reappointment, including by bypassing established Judicial Branch rules and procedures in extending her a position without the competitive, merit-based process required of every other Judicial Branch employee; and failing to exercise the power of administrative appointment impartially and on the basis of merit, and failed to avoid favoritism.

MacDonald’s relationship with Martin was detailed in a story by New Hampshire Public Radio’s Todd Bookman.

Sisti, in his motion, noted the false statement was the foundation of the JCC investigation of MacDonald that led to his resignation.

Justices Patrick Donovan and Melissa Countway were involved in the removal of Martin from her position and then resuming work at the court in another capacity, which is also one of the charges against MacDonald, that the actions did not follow court personnel rules and procedures.

Sisti filed a challenge to the composition of the judicial panel to hear oral arguments last month in the State Of New Hampshire vs. Tyler Twombly, and was granted a temporary stay, but last week the current members of the court, the three justices at issue and justice Daniel Will dismissed the motion and ordered oral arguments on the case to be scheduled.

Sisti in both cases wrote letters to the JCC about his motions asking for the status of any investigation into justices Donovan, Countway and Bryan Gould.

“It is incumbent upon me to deliver the utmost advocacy for my client, especially as he is facing a life without parole sentence,” Sisti wrote to the JCC. “The question of whether the Justices scheduled to hear his case are qualified is one that concerns him greatly.”

The JCC cannot remove justices from the bench, but they can suspend them without pay.

Oral arguments in the Sapry case are scheduled for Nov. 10.

MacDonald had been on medical leave since July 24, with no other information available, when the stipulation and agreement was announced by the JCC on Sept. 15.

The four justices fought every effort by the JCC to release any information about the investigation prior to formal charges.

Once MacDonald was facing investigation, the other three justices continued to fight any release that would make the review public.

At least one complaint against the three justices has been filed with the JCC.

MacDonald faced two other complaints filed by Senior Circuit Court Judge Susan Carbon filed May 19 that suggest he made conflicting statements on his position on House Bill 1130 which would have revamped the individual judge evaluation process to include peer review and written statements from people who appeared before the judge be part of the public record.

The bill died when the Senate and House refused to reconcile their different versions of the bill at the end of the session. MacDonald and the other four Supreme Court justices attended a circuit and superior court training session March 20 where MacDonald was asked if the court was taking a position on the bill and he answered in the negative, yet less than a month later former chief justice and Rep. Robert Lynn, R-Windham, told a Senate Judiciary Committee hearing he had reviewed the bill with the chief justice and he supported it.

Carbon maintains the two statements are irreconcilable saying MacDonald made material misrepresentations to the judges and Lynn.

“The betrayal felt by the Circuit Court bench is palpable” she wrote.

The JCC met last Friday but nothing was released publicly about any action the group took.

Garry Rayno may be reached at [email protected].

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