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Advocates of a state income tax to fund public schools suffered a setback Tuesday when New Hampshire’s Supreme Court ruled the current Statewide Education Property Tax, or SWEPT, is constitutional.

The case, Rand v State of New Hampshire, was the first of two education funding lawsuits launched in hopes of upending the current property-tax-based system. Still looming is the ConVal ruling and its potential $500 million per year price tag.

In a 3-1 decision, the Supreme Court overruled Superior Court Judge David Ruoff, who had declared that the way money is collected is unequal across the state and unfair. He also ruled against the state’s current education spending formula in the ConVal case.

Though the cases aren’t connected, opponents of the ConVal lawsuit were heartened by Tuesday’s ruling, seeing it as a hopeful sign of how the court may be leaning.

New Hampshire’s constitution requires that taxes be applied at the same rate for every community, and Chief Justice Gordon MacDonald wrote in the majority opinion, the current SWEPT law does just that.

“The State Constitution requires that taxes, as ‘impose[d] and lev[ied],’ must be ‘proportional and reasonable.’ N.H. CONST. pt. II, art. 5. The plaintiffs do not dispute that under the SWEPT, as administered, taxpayers are actually assessed at a uniform rate. That concludes the constitutional inquiry,” MacDonald wrote.

The majority ruling states that since every community that collects SWEPT is also allowed under the law to keep excess revenue, there is nothing unconstitutional in the fact that some wealthy communities use the extra revenue to lower local taxes.

The Rand plaintiffs wanted SWEPT suspended since some wealthy towns with high property values collect more SWEPT than needed for education. Under the law, the SWEPT rate is set by the state, but the municipalities collect the revenue and then send it to their local school districts. The law allows towns that collect more SWEPT than required to use the excess revenue to lower local tax rates. The Rand plaintiffs argued that this allowed wealthy communities to effectively have lower tax rates than poorer communities.

Dissenting Associate Justice James Bassett argued that the fact some wealthy communities use SWEPT to lower the local SWEPT tax burden, means those wealthy communities are effectively getting taxed at a lower rate than poor communities, a violation of the constitution.

“To the contrary, when excess SWEPT funds are not sent to the State, but instead are retained by communities, the taxpayers’ effective SWEPT rate in those communities is reduced and Part II, Article 5 is violated,” Bassett wrote.

All four justices agreed that the state’s practice of setting lower SWEPT rates in a few poorer communities does violate the constitution.

(The fifth Supreme Court Justice, Anna Barbara Hantz Marconi, is on leave after being indicted for two felonies and five misdemeanors relating to her attempts to interfere with a criminal investigation into her husband, Geno Marconi.)

Marc Decoteau with the Education Funding Coalition Communities advocacy group applauded the decision, saying it keeps a fair system in place and allows people to decide how to operate their local schools and governments.

“This decision by the court says each community and each taxpayer is being taxed through the SWEPT in the same way. But there is a fairness component to this decision as well. Education expenses are decided by the voters who will pay the property taxes for use within their community, and this decision ensures that their hard-earned tax dollars will be spent in their community while providing for direct accountability,” Decoteau said.

At the opposite end of the debate, NH School Funding Fairness Project Executive Director Zack Sheehan said Tuesday’s decision leaves a fundamentally unfair system in place.

“Allowing some taxpayers in this state to continue to get special treatment and avoid paying their fair share of taxes to support the education of all students in the state is beyond disappointing. For far too long, the State has allowed this two-tiered system to operate, and this order will allow it to continue at the expense of funding for schools in the districts that need it the most,” Sheehan said.

Now, Gov. Kelly Ayotte and the legislature are waiting to see if the Supreme Court will uphold Ruoff’s ConVal decision. In that case, initiated by the Contoocook Valley School District, Ruoff found that the state’s per-pupil adequacy grant of around $4,000 is too low. As a result, he said, it violates the Supreme Court’s Claremont decision.

Ruoff ruled that the per-pupil grants need to be raised to about $7,200. If that’s upheld, taxpayers would need to find an extra $500 million each year to fund public schools.

New Hampshire’s sole death row inmate, Michael “Stix” Addison, is asking the state Supreme Court to lift his sentence for murdering Manchester Police Officer Michael Briggs. 

Attorneys for Addison, 45, have been trying for years to avoid the pending execution. Last week, they filed a petition with the Supreme Court seeking a review of Addison’s sentence in the wake of the 2019 law banning the death penalty. 

“With its legislative repeal of the death penalty on May 23, 2019, New Hampshire concluded that the death penalty is an excessive and disproportionate punishment for any crime or defendant,” the petition states. “This profound shift in community values against the death penalty provides ‘special and important reasons for’ this Court’s exercise of original jurisdiction to conduct renewed comparative proportionality review.”

The Supreme Court has twice weighed in on Addison’s fate since his 2008 conviction. In a 2013 ruling, the state’s highest court affirmed his capital murder conviction. In 2015, justices performed a sentence proportionality review and found his death penalty was “neither excessive nor disproportionate.”

However, both of those rulings came before the state passed a 2019 law eliminating the death penalty. That law included a carve-out to keep the death penalty in place for anyone already awaiting execution. Then, as now, Addison was the only person in the state on death row.

His legal team said the death penalty repeal law and exemption make his sentence unjust.

“New Hampshire’s super-majoritarian repeal of the death penalty has ensured that no one who is convicted of the same crime as Mr. Addison with a background like his will be sentenced to death. Even a defendant of far greater moral culpability than Mr. Addison will not be subject to execution. Accordingly, Mr. Addison’s sentence is now arbitrary, aberrational, and thus disproportionate, and it should be invalidated based on renewed comparative proportionality review,” the petition states. 

Addison’s lawyers argue that he is the victim of undue political influence. Gov. Kelly Ayotte pushed for Addison’s death penalty when she was attorney general, and she testified against the repeal of the bill in 2019 before the exception was added.

“If we repeal the death penalty, make no mistake, Michael Addison will not get the penalty for having murdered Officer Briggs,” Ayotte testified at the time. 

Addison’s lawyers argue politics should stay out of the question when it comes to Addison’s life.

“Such political accommodations or concerns cannot and should not impact this Court’s solemn duty to revisit proportionality review in light of the unquestionable expression of community standards that no person should ever again be subject to execution in New Hampshire,” the petition states.

Fallen Manchester Police Officer Michael Briggs.

Addison and his partner in crime, Antoine Bell-Rodgers, had pulled off three violent armed robberies in the days before Briggs was murdered. On Oct. 16, 2006, Briggs and fellow Manchester Police Officer John Breckenridge responded to a report of a fight at the home of Bell-Rodgers and Addison. 

The two men allegedly tried to leave when they saw the officers, but Briggs ordered the pair to stop. Bell-Rodgers did stop, but Addison kept walking away. Briggs again ordered him to stop. Addison turned around and shot Briggs in the head. Briggs hadn’t even unholstered his pistol.

Addison fled the state and was later caught in Dorchester, Mass.

Bell-Rodgers is currently serving 60 years to life for his role in the crime.

Three years before the murder, Briggs responded to a shooting scene in Manchester where Addison was the victim, providing first aid that may have saved his future killer’s life.

Emails and handouts from Manchester School District staff make two things clear.

The school district is still embracing Diversity, Equity and Inclusion content and policies. And they don’t want parents or the public to know about it.

The district is scrambling after a student handout using DEI teacher training materials in a class on the Holocaust was posted on the internet.

When it did, Amadou Hamady Sy, the Manchester School District’s executive director of Student Engagement, Outcomes and Success, sent staffers an email reminding them to keep the DEI lessons to themselves. Hamady Sy expressed concern that the materials had leaked to “individuals outside the school community and even the local press.”

“Given the current political climate and heightened scrutiny around Diversity, Equity, and Inclusion (DEI) work, we are again reminding all staff to refrain from sharing any training materials, especially presentation slides, surveys, facilitator guides, or discussion content with students or external parties,” Hamady Sy wrote. “These resources were designed strictly for internal staff development purposes.”

Not the right answer for parents or opponents of race-based DEI curricula.

“They don’t want parents and taxpayers to know that teachers are being trained to bring these divisive concepts into the classroom,” said state Sen. Victoria Sullivan (R-Manchester).

The handout in question was given to eighth-grade students at the Henry McLaughlin Jr. Middle School. It purported to lay out the “Wheel of Power and Privilege” in society, encouraging children to contemplate their own “power and privilege” by circling attributes they felt matched their own, such as skin color and economic background.

There was also a packet on so-called “microaggressions” — actions that can be labeled as racist or discriminatory even if the person committing them has no racist or discriminatory beliefs or motives.

The school district claims it was part of its Holocaust education, a state requirement. However, the handout makes no mention of Nazi Germany’s slaughter of Jews.

Sullivan called the materials the type of divisive, race-based ideology that the legislature has been trying to get out of schools for years.

“Within that lesson was a power and privilege wheel that sent a message to students that some children are better than others. That is a message that should never be put upon children,” Sullivan said. “All children are unique in their talents and abilities. Telling children that they are better than some people or are less than others based on skin color, sexuality, body size, and gender is unacceptable. The lesson also uses the term ‘cisgender,’ which is a made-up term not rooted in any science and has been deemed a slur.”

When parents began complaining about the DEI materials, district officials blamed the teacher. According to the district, the microaggressions worksheet and “Wheel of Power and Privilege” are part of teacher training and never intended for students.

“In this isolated incident, students were asked to complete an anonymous self-reflection form to explore their understanding of self to text within the unit. Unfortunately, materials intended only for staff professional development were used for this anonymous student self-reflection,” the district said in a statement released Friday. “We want to be clear that there was never a survey completed as part of this lesson or unit. The district team has taken steps so this action is not repeated.”

“But the fact remains the materials are used for teacher training, which shows the school district has the wrong priorities,” Sullivan said.

“Manchester repeatedly makes headlines for inadequate proficiency scores. Yet, this is where they are spending taxpayer dollars,” Sullivan said.

And, Sullivan added, the fact that the school is trying to keep materials secret from parents and the public raises more questions about what’s being taught in classrooms.

The Manchester School District already fought a lawsuit defending its right to keep parents in the dark about their children’s behavior regarding sex and gender at school. In court, Manchester argued the district has no legal duty to tell parents if their child identifies as a different sex at school than his or her biological one.

If Manchester parents don’t like it, “They can homeschool, or they can send their child to a private school; those are options available to them,” said the district’s attorney, Meghan Glynn.

The school district prevailed before the New Hampshire Supreme Court.

“We cannot conclude that any interference with parental rights which may result from non-disclosure is of constitutional dimension,” the Supreme Court justices ruled.

Associate Supreme Court Justice Anna Barbara Hantz-Marconi continues to push for a dismissal of the criminal charges against her, saying there’s no evidence she did anything illegal.

Merrimack Superior Court Judge Martin Honigberg is considering her motion to dismiss after Monday’s hearing in Concord. Hantz-Marconi is facing felony charges for allegedly trying to pressure former Gov. Chris Sununu and Pease Development Authority Chair Steve Duprey into dropping the criminal investigation of her husband, Geno Marconi, the former state ports director.

Hantz-Marconi’s lawyer, Richard Guerrero, told Honigberg that witness interviews recorded by prosecutors demonstrate no crime was committed.

“Our position is that even Supreme Court justices have a right to speak to public officials about matters of public concern and about matters of private concern, and we don’t think that these indictments, any of them, state a crime,” he said.

But Assistant Attorney General Joe Fincham argued a jury ought to decide if a crime was committed based on Hantz-Marconi’s intent, not just the words she allegedly spoke to Sununu and Duprey.

“So that is the ultimate issue, frankly, in this trial: what was her intent? Was it a benign protected First Amendment intent, or was it a corrupt criminal intent?” Fincham said.

If Hantz-Marconi was intent on pressuring Sununu to drop the investigation, the key prosecution witness seems to have not noticed. According to the transcripts filed with Hantz-Marconi’s motion to dismiss, Sununu told investigators she never tried to get him to interfere in the Geno Marconi criminal investigation.

“No, there was no ask, there was nothing ‘Governor, I wish you could do this,’ or there was nothing like that. She was expressing frustration. Clearly not asking me to do anything,” Sununu told investigators. “I, I didn’t get the sense that, I didn’t get the sense that anything was illegal about the conversation.”

Hantz-Marconi met with Sununu on June 6, 2024, in his office, along with Rudy Ogden, Sununu’s then legal counsel. At the time, Hantz-Marconi was recusing herself from sitting in on Supreme Court cases involving the New Hampshire Department of Justice due to the investigation into her husband.

Geno Marconi was placed on leave from his job in April, and a criminal investigation took off. By October, Geno Marconi was indicted for allegedly giving another person the private driver’s record of an individual known as N.L., and for destroying evidence.

Hantz Marconi was indicted the same week for her alleged attempt to pressure Sununu and Duprey into dropping the investigation. The charges are based on a phone call Hantz-Marconi made to Duprey and the June 6 conversation with Sununu. Ogden told investigators that Hantz-Marconi never asked Sununu to get involved in her husband’s investigation.

“[T] hat’s why I say in terms of her not asking for anything, it – it never was, it never went more than saying this needs to end quickly…Like it was never it needs to end quickly and geez, if you talk to them you should tell them that, or this needs to end quickly and I think you can do that. It was never anything like that,” Ogden told investigators.

Duprey told investigators he spoke with Hantz-Marconi as a friend, and listened as she expressed her frustrations with the ongoing criminal investigation.

“I think she was very appropriate in not trying to cross the line,” Duprey said.

Duprey and the PDA had placed Geno Marconi on paid leave in April after being told of the investigation by New Hampshire Attorney General John Formella. That disclosure occurred in April at the Department of Justice in a meeting attended by Sununu.

Facing criminal charges, Geno Marconi recently submitted paperwork to retire from his state job. He’s also a defendant, along with the PDA, in a new lawsuit brought by owners of the Rye Harbor Lobster Pound. The lobster shack owners claim Marconi used his position as ports director to hurt their business in order to help friends and family with competing businesses.

Geno Marconi’s sister owns the nearby Geno’s Chowder & Sandwich Shop, a restaurant started by their parents.

Lawyers for Associate Supreme Court Justice Anna Barbara Hantz-Marconi say the state’s key witness, former Gov. Chris Sununu, doesn’t think she committed any crime.

Hantz-Marconi is charged with felonies for allegedly trying to get Sununu to end the criminal investigation targeting her husband, Ports Director Geno Marconi, during a June 6 meeting in Sununu’s office. 

But in a bombshell filing made public Monday night, Hantz-Marconi’s lawyers say new evidence demands the criminal charges against the sitting justice be dismissed. According to the transcripts filed with Hantz-Marconi’s motion, Sununu told investigators she never tried to get him to interfere in the criminal investigation.

“No, there was no ask, there was nothing, ‘Governor, I wish you could do this,’ or there was nothing like that,” Sununu said according to the transcript. “She was expressing frustration. Clearly not asking me to do anything.”

Defense lawyers Richard Guerriero and Jonathan Kotlier filed the transcripts Friday in Merrimack Superior Court as part of their effort to have the charges dismissed. The attorneys previously filed a motion to dismiss the charges for lack of a crime, to which the state objected. However, the state provided the transcripts to the defense before a decision on the dismissal was made. Guerriero and Kotlier say the state has essentially now proven there was no crime.

“[N]ow that discovery has been produced, it is clear that the defense was exactly right to ask the court to dismiss the indictments because they do not state any crime and because there is nothing in discovery which would inform a bill of particulars or an amended indictment such that the state could allege a crime,” Guerriero and Kotlier wrote.

Hantz-Marconi is currently on leave from the Supreme Court and has agreed to have her law license suspended pending the outcome of the criminal case. She maintains she never crossed any legal or ethical lines when talking to Sununu, an assertion seemingly backed by Sununu’s own words.

“I, I didn’t get the sense that, I didn’t get the sense that anything was illegal about the conversation,” Sununu told investigators. “No, I mean about halfway through the conversation I kept waiting, is she gonna ask me for something, or for something, or to do something, like and even imply that I should, ‘Governor, you need to dah, dah, dah,’ no, never came. So there’s technically no ask of me.”

Present at the June 6 meeting with Sununu and Hantz-Marconi was Rudy Ogden, Sununu’s then-legal counsel. Ogden also told investigators that the judge never asked Sununu to get involved in her husband’s investigation.

“[T]hat’s why I say in terms of her not asking for anything, it – it never was, it never went more than saying this needs to end quickly…Like it was never, ‘it needs to end quickly, and geez, if you talk to them, you should tell them that, or this needs to end quickly, and I think you can do that.’ It was never anything like that,” Ogden told investigators.

Geno Marconi was placed on leave from his position as Ports Director in April while the New Hampshire Attorney General’s Office launched an investigation. That pending investigation forced Hantz-Marconi to recuse herself from hearing cases involving the Department of Justice, a significant part of the caseload for the Supreme Court.

Her frustration at sitting out 20 to 25 percent of the cases led her to speak to Sununu, according to statements filed in court. Hantz-Marconi has previously disclosed she first cleared the potential ethical problems of the meeting with Chief Justice Gordon MacDonald, who told her she had a right to talk to the governor about her concerns.

She is also accused of trying to get Pease Development Authority Chair Steven Duprey to intervene in her husband’s suspension, an accusation Duprey denied when he spoke to investigators, according to the Friday filing.

“According to Duprey, Justice Hantz Marconi ‘was calling, obviously, because I’m a friend.’”

Duprey told the investigators Hantz-Marconi understood he had no say in the investigation, and she never asked him to get involved. Instead she wanted to vent about the difficulties she was facing as a result of her husband’s legal troubles, Duprey said. 

“I think she was very appropriate in not trying to cross the line,” Duprey said.

Geno Marconi was indicted last October along with Brad Cook, the chairman of the Division of Ports and Harbors Advisory Council and a longtime fishing boat captain. They are accused of crimes involving leaking information about an unnamed victim to further an unstated motive.

Marconi illegally provided Cook with the confidential driving records of another person, known in the indictments as N.L., according to the indictments, and believed to be PDA Vice Chair Neil Levesque. 

Marconi also is alleged to have deleted a voicemail in order to hinder any investigation, the indictments state. Cook, for his part, is accused of lying to the grand jury when questioned about N.L.’s driving records.

In a statement, Attorney General John Formella’s office defended the decision to charge Hantz Marconi.

“The Merrimack County Grand Jury heard all of the evidence in this case and determined that there was probable cause to charge the defendant with the crimes for which she was indicted. This case will continue to proceed as required by New Hampshire law, and the defendant will be entitled to the same due process as any other defendant – no more, no less. We will try this case in court based on all of the evidence collected and not in the media using just a portion of that evidence.”

Prosecutors are more than two months late producing evidence against Ports Director Geno Marconi, his lawyers say, and they’ve filed a motion asking the court to force the state to start showing its hand. If not, the attorneys argue, an upcoming meeting on the disposition of the case should be canceled.

Marconi is charged with felonies in a scandal that’s also snared his wife, Associate Supreme Court Justice Anna Barbara Hantz Marconi, as well as a host of other Granite State political heavyweights.

Marconi’s lawyers filed a motion demanding discovery on Dec. 20, writing that the delays are holding up the case. Marconi was indicted by a grand jury in September, and his lawyers asked for discovery on Oct. 17, according to the motion. Marconi pleaded not guilty on Nov. 27.

“Although the pretrial disclosure in direct indictment cases is typically due 45 calendar days after the entry of a not guilty plea by the defendant … it has now been over 90 days since the defendant was indicted and more than 60 days since discovery was requested,” lawyers Richard Samdperil and Joseph Welsh wrote.

But Rockingham Superior Court Judge Andrew Schulman isn’t pausing the case calendar. In an order issued Dec. 31, Schulman wrote that he “assumes” prosecutors are in the process of getting evidence, including any exculpatory evidence, to Marconi’s lawyers. The case is currently set for a dispositional conference on Jan. 14. 

Marconi is charged with two class B felonies – Tampering with Witnesses and Informants and Falsifying Physical Evidence. He’s also charged with four class A misdemeanors – two counts of Driver Privacy Act Violations and two counts of Obstructing Government Administration.

Marconi and Brad Cook, chairman of the Division of Ports and Harbors Advisory Council and a longtime fishing boat captain, are accused of crimes involving leaking information about an unnamed victim to further an unstated motive.

Marconi illegally provided Cook with the confidential driving records of another person, known in the indictments as N.L., according to the indictments. Marconi also is alleged to have deleted a voicemail message in order to hinder any investigation, the indictments state. Cook, for his part, is accused of lying to the grand jury when questioned about N.L.’s driving records.

It is known that Marconi’s bail orders prohibit him from contacting Neil Levesque, a member of the Pease Development Authority Board. It’s also been reported that Levesque, Pease Development Authority Chair Steve Duprey, and the rest of the board met with Attorney General John Formella and Gov. Chris Sununu in April to discuss the emerging criminal investigation against Marconi.

Marconi and Cook both opposed the PDA’s plan to redevelop Rye Harbor to make it more retail friendly, a plan that Sununu supported. 

Marconi was placed on leave in April, after the meeting with Formella. Hantz-Marconi was forced to recuse herself from Supreme Court cases involving the Department of Justice while the criminal investigation proceeded. Frustrated at being sidelined, Hantz-Marconi met with Sununu in July to talk about the investigation interfering with her ability to serve on the court.

That conversation between Hantz-Marconi and Sununu became the basis for the criminal charges against the associate justice. She’s accused of trying to pressure Sununu to drop the investigation, though she strongly denies that is the case. Hantz-Marconi denies she did anything wrong. In court documents her lawyers have filed, it was learned Chief Justice Gordon MacDonald told her before the July meeting with Sununu that there would be nothing improper with the conversation.

The entire Supreme Court has since recused itself from Hantz-Marconi’s criminal case, as well as from her state attorney discipline process.

The New Hampshire Supreme Court could soon decide whether judges, or elected officials, should determine how much the state kicks in for local schools. If it decides the power belongs with the courts, the result could be a more than $500 million increase in state taxpayers’ share of funding for education.

Justices heard oral arguments Tuesday in the ConVal education funding appeal as New Hampshire Solicitor General Anthony Galdieri argued Superior Court Judge David Ruoff’s decision is unconstitutional.

Ruoff ruled in 2021 the real cost of the constitutionally mandated adequate education is at least $7,300 per pupil, while Galdieri and the state say it’s $3,900. Galdieri said Tuesday that Ruoff erred by including line items like school buses, building maintenance, and facility costs into his calculation. The legislature only funds direct costs, such as teacher salaries and learning materials, through the education adequacy grant system.

“The (Supreme Court) already decided the legislature only has to pay for what’s been defined,” Galdieri said. 

But Michael Tierney, ConVal’s attorney, said the legislature’s funding definitions exclude costs like heating oil, cleaning supplies, and even positions like principals and superintendents from the formula. 

“The state’s funding is woefully inadequate and unconstitutional,” Tierney said.

Galdioeri also objects to Ruoff overstepping the legislature by setting a number at all, arguing that violates the separation of powers. Tierney counters judges set damage amounts in court cases all the time.

In addition, Ruoff’s number crunching didn’t come out of the blue. He was ordered to come up with a number by the Supreme Court.

The Peterborough-based Contoocook Valley Regional School District filed its lawsuit in 2018, and was soon joined by dozens of other school districts, saying the state’s then $3,600 per pupil was well below the real cost of an education. The districts wanted at least $10,000 per pupil.

The state has since increased the per pupil amount up to $4,100

The Supreme Court ruled in the 1990s Claremont decisions that all New Hampshire children have a right to an adequate education and that the state must fund it. Galdieri said the base adequacy grants system is not constitutionally mandated, but simply the way the legislature decided to meet the constitutional obligation to fund an adequate education.

But the legislature’s solution focused solely on funding basics like teachers and materials, leaving individual communities to pay for the buildings, school busses, maintenance, and other school costs on their own.

While the parties dispute where the funding should come from, there is no debate over the fact that New Hampshire taxpayers spend more for K-12 education than nearly every other state. Average per pupil spending in the Granite State has passed the $20,000 mark, and no district spends less than Ruoff’s $7,300 per pupil minimum.

Ruoff originally ruled in favor of the districts, but he did not set a number saying that is the job of the legislature. The state appealed that decision and the Supreme Court sent the case back to Ruoff, this time telling him to hold evidentiary hearings and come up with the real cost. 

Ruoff’s order has been stayed pending the outcome of the current appeal. If it were to go into effect it would suddenly require an additional $500 million in taxpayer money for education. Progressives have argued this spending would require that the state would have to give up its vaunted “New Hampshire Advantage” and embrace either a broad-based income or sales tax.

But Republican leaders like incoming Gov. Kelly Ayotte and new state Senate President Sharon Carson say tax hikes are not on the table. Carson was asked by WMUR if the courts should decide how much is “adequate,” she replied, “absolutely not.”

“That’s not their job. That’s our job. That’s the legislature’s job. The responsibility has been given to the legislature by the people of the state, not to the courts,” Carson said.

The person accusing New Hampshire Supreme Court Justice Anna Barbara Hantz Marconi of potential lawbreaking is Gov. Chris Sununu.

The person prosecuting her alleged wrongdoing, Attorney General John Formella, works for Sununu.

And that, Hantz Marconi’s lawyers argue, is a conflict of interest. So they’re asking Merrimack Superior Court Judge Martin Honigberg to throw out the case as a result.

Prosecutors from the Attorney General’s Office say it’s just her legal team’s attempt to grab a get-out-of-free card.

It’s now up to Merrimack Superior Court Judge Martin Honigberg to decide who’s right.

Hantz Marconi is accused of illegally trying to influence Sununu to intervene in the criminal investigation involving her husband, Ports Director Geno Marconi, during a June meeting. Geno Marconi was indicted three months later on charges he leaked confidential driver’s license records and destroyed evidence.

In Merrimack Superior Court in Concord on Monday, Hantz Marconi’s lawyer, Richard Guerriero, said Formella cannot fairly prosecute the case due to his personal and professional relationship with Sununu. Formella represented Sununu in private practice, worked on Sununu’s original transition team after the 2016 election, served as the governor’s counsel, and now owes his current position as attorney general to Sununu. 

“Every accused person is entitled to a prosecutor who is impartial,” Guerriero said. “I don’t think we can ignore the fact Attorney General Formella has a close relationship with this one very powerful public official.”

Formella is supposed to represent every New Hampshire citizen as attorney general, but he can’t do that fairly given his previous role as Sununu’s attorney and his attorney general duties that require he represent the governor in civil matters.

The case has highlighted a problem that comes from a system where the attorney general is selected by the state’s chief executive. In 43 states and the District of Columbia, the top cop is elected by the voters. Only four other states follow the New Hampshire model.

“A prosecutor cannot serve two masters,” Guerriero said. “He can’t be loyal to his client, and at the same time fairly assess the merits of a possible case against an accused person.”

Assistant Attorney General Joe Fincham countered that the alleged conflict of interest Guerriero is claiming is nothing more than an attempt to derail any criminal charges against Hantz Marconi.

“The defense is asking for immunity. If you commit a crime in front of the governor … you are immune from prosecution in the state of New Hampshire,” Fincham said. “This alleged conflict means no one can prosecute this defendant … which is an absurd result.”

But Guerriero said prosecutors are trying to blame him when they knew for months Formella’s conflict is a live legal issue in the case. He spoke to them before the case against Hantz Marconi was brought to a grand jury, urging them to appoint a special prosecutor. Short of hiring an outside prosecutor, Guerriero said they could have taken steps to remove Formella from the prosecution and shield him from the case to protect Hantz Marconi’s rights and avoid the conflict. But that did not happen.

“This could have been different,” Guerriero said. “But they plowed ahead and now we’re here three months later.”

Guerriero wants the charges dismissed and have the state start over with a new, independent prosecutor. Because grand juries only consider evidence presented by a prosecutor, without any argument from a defense attorney, it’s essential the prosecutor be absolutely fair and impartial, Guerriero said.

“The only protection we have at the grand jury is if the prosecutor is impartial,” Guerriero said.

For his part, Honigberg seemed skeptical of Guerriero’s argument Formella is conflicted due to his role as civil litigator for Sununu and the rest of the executive branch. The judge remarked every attorney general represents every governor in civil matters while also prosecuting every criminal case. 

But things get murky when it comes to the matter of Formella’s prior relationship with Sununu.

Attorney-client ethics rules mean Formella is bound not to disclose information he learned about Sununu in private practice and as the governor’s counsel, even if it is exculpatory for Hantz Marconi, Honigberg noted. 

Guerriero, speaking hypothetically to the judge, suggested that if Formella knew something about Sununu’s statements or actions regarding the Pease Development Authority (PDA).

“Suppose there was some interest of Sununu’s in the Pease Development Authority that [Formella] discussed with Sununu. It’s knows [Sununu’s] taken action at Pease. Suppose something the governor said about Pease becomes an issue, contrary to what he’s saying now,” Guerriero said.

Geno Marconi clashed with the Pease Development Board over a proposed Rye Harbor development. While the board and Sununu supported spending $1 million in federal money on a raised shopping area at the harbor, Marconi and his co-defendant Brad Cook opposed the plan. The PDA backed off the plan in September following a push back from the community. Geno Marconi is accused of leaking private information of an individual known as N.L. in the indictments. It’s believed that N.L. is Neil Levesque, PDA vice chair and the executive director of the New Hampshire Institute for Politics at Saint Anselm College. 

Attorney General John Formella and his entire office need to be dismissed from Associate Supreme Court Justice Anna Barbara Hantz Marconi’s criminal case due to serious conflicts of interest, according to her attorney Richard Guerriero.

“Attorney General Formella and his subordinate attorneys should not have been handling this matter before the grand jury and should not be prosecuting it now,” Guerriero wrote in a motion filed Thursday.

Ultimately, Guerriero wants all of the charges dismissed. Short of that, he wants Formella and his office removed from the case entirely. The concern Guerriero raises is that Formella not only has a long-standing personal and professional relationship with Gov. Chris Sununu, but he considers himself to be the chief executive’s lawyer in his role as attorney general.

Hantz Marconi is charged with felonies for allegedly trying to pressure Sununu to drop the criminal investigation into her husband, New Hampshire Ports Director Geno Marconi. That makes Sununu, Formella’s friend and client, the state’s key witness in the alleged crimes. 

Before becoming attorney general, Formella was a private attorney working for Sununu and his family who worked on the campaign for governor, and then became Sununu’s legal counsel in office. In his role as attorney general, Formella told NHJournal during a podcast interview that he considers himself Sununu’s attorney. 

“As far as the relationship with the governor, for every attorney general, the governor is probably their most important client. So, it’s an attorney-client relationship,” Formella said. 

The attorney general is the state’s chief prosecutor as well as the governor’s attorney in civil matters, according to memos from the Department of Justice.

Formella is tasked with making decisions on criminal prosecutions handled by his office, and he is in charge of directing his staff who handle the day-to-day work. With Hantz Marconi’s case, the prosecution is being handled by the Public Integrity Unit (PIU), which was created by order of Sununu in 2020 and not the legislature. Guerriero wrote that means the PIU can be subject to Sununu’s wishes, and not the work of the public.

“As a result of how it was created, Gov. Sununu has unique power over the PIU. Sununu determines what funding to recommend to the legislature for the PIU. Furthermore, he has the power to unilaterally dissolve the unit by executive order,” Guerriero wrote.

Because of that lack of impartiality, all of the indictments need to be dismissed, Guerriero wrote. The charges were handed up by a grand jury two weeks ago, but because of Formella and his office’s conflict of interest, Guerriero argues the grand jury’s findings should be discounted. Grand jury proceedings happen in secret, and there is no one representing the accused. Instead, prosecutors alone present evidence for the jurors to consider.

“If there is any chance a grand jury will make a fair decision about whether to indict a person, rather than simply signing off on the indictments presented to them, it depends on the impartiality of the prosecutors,” Guerriero wrote. “The prosecutors here are not impartial.”

Four Supreme Court justices, including Chief Justice Gordon MacDonald, have recused themselves from the case. MacDonald, like Sununu, is a witness in the case as he reportedly told Hantz Marconi she had a right to talk about her husband’s investigation with the governor before the June meeting at the heart of the matter.

“I think you can do that. You are a constituent and have concerns,” MacDonald reportedly said.

Hantz Marconi then made an appointment with Sununu through official channels to speak with him on June 6 in his office. Sununu’s current legal counsel, Rudolph Ogden attended the meeting, which was on Sununu’s official calendar.

“The meeting was open and documented in multiple ways — not exactly the usual route to corruption,” Guerriero wrote.

Hantz Marconi and Gereero maintain there was no crime committed, and the state has not alleged any actual criminal acts.

Hantz Marconi allegedly told Sununu there was no merit to any of the allegations against her husband and the case “needed to wrap up quickly because she was rescued from important cases pending or imminently pending before the New Hampshire Supreme Court,” the indictments state.

No threat was made, nor was there any improper request, Guerriero claims. Prosecutors have not yet made their evidence available to the defense, so it is not clear who reported Hantz Marconi to Formella. Earlier this week, a panel of substitute judges sitting for the recused Supreme Court ordered Hantz Marconi’s law license suspended based on the fact she’s been charged with a felony.

Geno Marconi has been on leave from his job directing the ports since April of this year while the criminal investigation into his alleged acts proceeded. Geno Marconi and Bradley Cook, the chairman of the Division of Ports and Harbors Advisory Council and a longtime fishing boat captain, were both indicted the same week as Hantz Marconi. Geno Marconi is accused of giving confidential driving records of an unnamed person to Cook, though the official charges give very little detail about the alleged crime. 

Hantz Marconi is facing charges of Attempt to Commit Improper Influence, Criminal Solicitation of Improper Influence, Official Oppression, Criminal  Solicitation of Official Oppression, Obstructing Government Administration, and Criminal Solicitation of Misuse of Position. Geno Marconi is indicted on felony charges of Tampering with Witnesses and Informants and Falsifying Physical Evidence. He’s also charged with four class A misdemeanors – two counts of Driver Privacy Act Violations and two counts of Obstructing Government Administration.

A Republican prosecutor running a tough-on-crime campaign against a Democratic defense attorney should have checked his evidence before launching the political attack that’s now backfiring.

Hillsborough County Attorney John Coughlin’s reelection campaign recently launched a website attacking his opponent, Kim Kossick, for defending alleged Valley Cemetery rapist Amuri Diole. Diole was arrested in April 2021 for the violent rape of a woman for two hours in the cemetery.

But court records show Diole had been released from jail a week before the alleged rape because prosecutors in Coughlin’s office failed to file the necessary paperwork to keep the dangerous suspect locked up.

“I can’t change history. I can’t change the facts,” Coughlin told NHJournal.

At the same time, Coughlin’s opponent is trying to use the campaign website to get Diole off the hook for ever facing a trial over the horrific crime he allegedly committed.

Kossick is taking heat for running as a liberal reformer.

Because the campaign website mentions the Diole case, Kossick filed a motion in court to have the criminal charges dismissed. Diole was deemed incompetent to stand trial in the alleged rape in 2022 and is currently being held in the New Hampshire State Prison Secure Psychiatric Unit in Concord as the state seeks to have him ruled a sexually violent predator and then have him further held on an involuntary civil commitment.

But under state law, if Diole is ever returned to competency through medical treatment, he could then go on trial for the alleged rape. Kossik wants Diole to avoid prosecution in the future because, she says, Coughlin’s attack on her work defending Diole against the civil commitment taints the potential jury pool.

“The website is targeted at Hillsborough County voters and jurors,” Kossick said. “The people on the voting rolls are the jurors.”

Coughlin supporters say it is an example of the progressive approach Kossick would take to prosecuting crime. The issue has even reached the New Hampshire governor’s race.

On WMUR, Adam Sexton asked Democrat Joyce Craig if she supported the effort to use a campaign attack ad to get Diole exempted from prosecution. She appeared to defend her fellow Democrat.

“Everyone has the right to a civil defense,” Craig said. “And Kim Kossick is doing her job, and I believe that the county attorney has to be someone who represents our county and is always doing what’s right.”

Kossick says the real issue is that Diole wouldn’t have been out and able to commit the crime of Coughlin’s office had done its job.

“Coughlin doesn’t know what’s going on in his own office,” Kossick said.

Kossick was appointed to represent Diole during the civil commitment proceedings in the 2021 rape case, and ended up appealing the commitment to the New Hampshire Supreme Court. The Supreme Court sided against Doile. Coughlin’s website attacks Kossick for representing Diole.

“Instead of ensuring justice for the victim, Kossick prioritized the legal defense of a man deemed too dangerous to release into society,” the website states.

Coughlin, echoing the website, told NHJournal that Kossick does not prioritize the rights of victims and their families as evidenced by her work to represent Diole. 

“The website is about her judgment and about victims rights, and her failure to protect the victims of crimes and their families,” Coughlin said.

But NHJournal reviewed the court records in Diole’s criminal history and found a failure by Coughlin’s office put Diole on the street a week before the alleged rape.

According to court records, Diole was jailed in early 2021 as the result of a 2018 assault case in Nashua. When the issue of Dole’s competency was raised in pre-trial in that case, he underwent an examination by Forensic Psychologist Mathilde Pelaprat. On Jan. 27, 2021, Judge Charles Temple deemed Diole a danger to himself and others and ordered Diole held for 90 days, giving time for prosecutors to have Diole committed.

But prosecutors failed to get the involuntary commitment order within the 90 days, forcing Temple to release Diole in his April 23, 2021, order. 

“In accordance with RSA 135:17-a, V, the defendant is released from custody at the Hillsborough County House of Corrections. The State has been unable to secure an involuntary commitment order and the 90 day hold period expires on April 27, 2021. As such, Mr. Diole’s release is mandatory under RSA 135:17-a, V,” Temple wrote.

According to media reports, Diole went from living in the Valley Street Jail in Manchester to the Valley Cemetery across the street for the next six days before he was arrested again for the brutal rape. 

Coughlin blamed Diole’s release on the fact one of his assistant county attorneys was unable to get a qualified specialist to examine Diole within the 90-day timeframe. Prosecutors must use specially qualified experts from a pre-approved list provided by the state to examine people for involuntary commitment proceedings, he said. 

“We made reasonable efforts to identify specialists,” Coughlin said.

Since Dole’s re-arrest for the alleged rape, Coughlin said his office worked with the New Hampshire Attorney General’s Office on an expanded list of qualified specialists to make sure people who are a danger to the community can be committed. 

Kossick said blaming her, a defense attorney, for representing a criminal ignores the right every American has for a vigorous defense under both the United States Constitution and the New Hampshire Constitution.

“Defense attorneys are the only people standing between the government and their client,” Kossick said.

Kossick was surprised that Coughlin, a former judge, would attack her for the work she did as a defense attorney. Not only does such an attack undermine the criminal justice system, but it is totally out of character for Coughlin, she said.

“We all thought John Coughlin was a very good judge,” Kossick said. “We all thought he was great because he never revoked bail and never put anyone in jail. I can only assume he’s pandering to somebody.”