In the wake of her decision to release repeat offender Michael Gleason — who then went on to kill his wife and himself — Magistrate Stephanie Johnson has been publicly disgraced and pulled from her duties.
But she has not been fired.
That fact outrages many Granite Staters, including Executive Councilors Joe Kenney (R-Wakefield) and John Stephen (R-Manchester), who believe judges should be held accountable for their rulings.
In New Hampshire, however, once a judge is sworn in, they cannot be removed from office — short of being impeached — until they reach the mandatory retirement age of 70. No matter how problematic or unpopular their rulings, they are effectively untouchable.
After seeing what Johnson did from behind the bench, some elected officials say it is time to reconsider that policy.
At Wednesday’s Executive Council meeting in Hampton Beach, Kenney told NHJournal he was still angry over the death of Marisol Fuentes but was heartened by the action it has inspired.
“We’re approaching this case from many angles. One was the court-ordered internal review. Now we have the Crime Bureau doing its investigation and the attorney general doing his review,” Kenney said. “Berlin P.D. is also doing an internal review, and on top of that, we’ve got SB140, creating the Domestic Violence Fatality Review Committee that’s going to do a deep dive on this case.
“I want that bill named after Marisol Fuentes. That needs to happen,” Kenney added.
Councilor Stephen is also angry about Johnson’s decision, pointing out she previously allowed Kyle Bisson to post personal recognizance bail after being accused of stabbing a stranger in Manchester last February.
While the state Judicial Branch confirms Johnson’s position is “vacant,” officials will not say whether she has been fired. Her magistrate position will be eliminated in September when bail reform signed by Gov. Kelly Ayotte takes effect.
But what about future judges? Some Granite Staters are troubled by the behavior of state Supreme Court Justice Barbara Hantz Marconi and her alleged interference in the prosecution of her husband, Geno. The scandal forced her off the bench but not out of a job. As a result, the recent ConVal case was heard by substitute judges, who ruled against the legislature’s authority to set education funding.
Now, an idea is circulating in Concord to impose some form of oversight of the judiciary.
“It’s high time in New Hampshire that we have to think about an accountability system for our judges,” Stephen said.
Kenney agrees.
“John Stephen is suggesting a judicial review, and I am with him on that.”
New Hampshire judges are nominated by the governor and confirmed by the Executive Council. After that, they serve until retirement age. Only 12 states use a version of that process.
In the other 38 states, justices must either run in contested elections or face retention elections — a yes-or-no vote to keep a sitting justice on the bench — after being appointed.
Many legislators tell NHJournal they have no interest in the direct election of judges, but they believe there is room for legislative oversight.
One idea being considered is similar to the South Carolina system, where judges receive a midterm review from the legislature. If a judge develops a pattern of controversial rulings or makes decisions that result in tragic outcomes, they would do so knowing they will face scrutiny from elected lawmakers.
The debate is as old as the nation. President Thomas Jefferson railed against the notion of judges having the last word on public policy in a democratic republic. He warned that giving judges ultimate authority over constitutional meaning would create “the despotism of an oligarchy.”
Judges, Jefferson said, are “as honest as other men — and not more so.”
