NH Supreme Court rejects Twombly's challenge to three-judge panel

The New Hampshire Supreme Court rejected a criminal defendant's challenge to his three-judge appeal panel Oct. 7 and ended a court-ordered pause on arguments in the appeal.

The order in State v. Tyler Twombly denies requests for a five-justice panel, an explanation of Justice Bryan Gould's withdrawal from the case and disclosure about any Judicial Conduct Committee investigation involving a sitting associate justice. The Judicial Branch's communications office provided the order and four related filings and orders to Six State Signal.

The panel consists of Senior Associate Justice Patrick Donovan, Associate Justice Daniel Will and specially assigned retired Superior Court Justice Charles Temple. The order says that panel has been in place since July 30, when the parties were told that then-Chief Justice Gordon MacDonald and Justices Melissa Countway and Gould would not participate in the case.

The court said Twombly cited no authority requiring a judge to explain a voluntary withdrawal from a case or permitting the court to disclose the requested conduct information. The order does not say whether any Judicial Conduct Committee proceeding involving a sitting justice exists.

Defense attorney Mark Sisti wrote that Twombly was unsure of the panel's relationship to any conduct inquiry. Sisti sought the additional information and a full panel. After the court removed the case from its Sept. 22 argument list, the state filed an Oct. 1 objection to the remaining requests. In an Oct. 2 response, Sisti asked that each assigned justice say whether he was the subject of a Judicial Conduct Committee investigation or any investigation.

The Oct. 7 order did not set a new argument date. The Judicial Branch's communications office said Oct. 13 that none had been scheduled. Twombly does not appear on the court's Nov. 3 or Nov. 24 argument calendars, both updated Oct. 29. The court describes its posted calendars as preliminary and subject to change. Six State Signal could not review the Nov. 10 or Nov. 23 calendars on Oct. 29 and has not confirmed whether a new argument date has been set.

Sisti filed the motion Sept. 21, six days after MacDonald resigned. In a Sept. 15 statement, the Judicial Branch said he admitted violations of three judicial-code provisions. The release said the current associate justices were not members of the specially assigned panel that approved the agreement.

In its Oct. 1 objection, the state said Rule 40(3)(f) provides a way to ask the Judicial Conduct Committee for a limited public statement, and that Twombly could not obtain that relief in his criminal appeal.

Supreme Court Rule 40 generally protects the confidentiality of conduct proceedings. Rule 40(3)(f) allows brief statements when a proceeding is already generally known through independent sources, the subject is of broad public interest or speculation, and public confidence may be threatened by a lack of information. The committee must first consult the chief justice or senior associate justice. The rule permits, but does not require, such a statement.