The ACLU of New Hampshire is a non-partisan organization and does not support or oppose any candidate for elected or appointed office, including N.H. Supreme Court nominees.
However, it is within the mission of our organization to ask questions of any public official—including judicial nominees—about their positions on civil liberties issues. Given the important role that the Chief Justice of the N.H. Supreme Court serves in whether and how constitutional rights are protected in New Hampshire, we believe that it is important for any nominee for this office, in this instance Attorney General Gordon MacDonald, to be asked certain civil liberties questions.
- Implicit Racial Bias and White Supremacy: Do you believe that implicit racial bias that favors white people and minimizes the lives and experiences of people of color exists in the criminal justice system, including in how judges and juries make decisions?
- Reproductive Rights: Do you believe that Roe v. Wade was correctly decided? Do you believe that the N.H. Constitution independently protects the right of a woman to obtain an abortion, just as such a right exists under the Federal Constitution as explained in Roe?
Recusals: As a Supreme Court Justice, would you agree to recuse yourself in all civil and criminal cases in which, while you were Attorney General, your office was a party or counsel? This includes the following:
- Contoocook Valley School District et al. v. State of New Hampshire, Cheshire Superior Court No. 213-2019-cv-00069;
- N.H. Center for Public Interest Journalism, et al. v. N.H. Department of Justice, No. 2019-0279 (“Laurie List Chapter 91-A Lawsuit”);
- League of Women Voters of New Hampshire, et al. v. Gardner, No. 226-2017-cv00433 (‘Senate Bill 3 Litigation”);
- Jones v. State, No. 2019-0057 (search and seizure case addressing race);
- John Doe v. State of New Hampshire, No. 1:18-cv-01039-JD (emergency room involuntary boarding due process case); and
- Recent cases filed by your office against the chemical companies that manufacture PFAS chemicals.
Also, what will be your policy with respect to recusing yourself from cases in which the law firm Nixon Peabody LLP is counsel?
- Right to Privacy: Do you interpret the 2018 N.H. constitutional amendment protecting privacy—which states that an “individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent”—as being purely aspirational, or do you interpret it to be an enforceable privacy right that extends protections to individuals against state and local governments? Please explain your understanding of the legal significance of the amendment.
- Immigration Enforcement in Courthouses: As the Chief Justice of the N.H. Supreme Court—where you would be the chief administrator of the New Hampshire courts—would you implement a policy that protects immigrants and communities of color from being detained or arrested inside New Hampshire state courts?*
- LGBTQ+ Equality: Setting aside existing New Hampshire statutes, do you believe that the N.H. Constitution independently protects the right of same-sex couples to marry, just as such a right exists under the Federal Constitution as explained in Obergefell v. Hodges?*
- Gender Equality: Do you believe that the Equal Rights Amendment in Part I, Article 2 of the N.H. Constitution provides a right to gender equality that is more expansive than the Federal Constitution? If more expansive, please describe the expanded protections provided by the N.H. Constitution.
- Government Transparency: Do you believe that the government transparency provisions in Part I, Article 8 of the N.H. Constitution are merely parallel with Chapter 91-A, or should they be interpreted as being more expansive than Chapter 91-A?* If more expansive, please describe the expanded government transparency protections provided by the N.H. Constitution.
- Police Accountability: Do you believe that the N.H. Supreme Court’s decision in Union Leader Corp. v. Fenniman was correctly decided? Should this decision be reconsidered in light of the consequences of this decision?*
- Advisory Opinions: Do you believe that the N.H. Supreme Court should give advisory decisions to the N.H. legislature or Governor on important constitutional questions without a factual record? If so, under what circumstances and why?*
- The Right to Vote: Do you believe that Part I, Article 11 of the N.H. Constitution provides a right to vote that is more expansive than the Federal Constitution, given that the N.H. Constitution explicitly protects the right to vote, whereas the Federal Constitution only implies it? If not, what is the legal significance of the explicit protections in Article 11 of the N.H. Constitution?*
- Free Speech: Do you believe that Part I, Article 22 of the N.H. Constitution provides a right to free speech that is more expansive than the First Amendment in the Federal Constitution? If not, what do you believe is the legal significance of the N.H. Constitution making free speech an affirmative right in Article 22?*
- Search and Seizure: Do you believe that Part I, Article 19 of the N.H. Constitution provides a right against searches and seizures that is more expansive than the Fourth Amendment in the Federal Constitution?* If more expansive, please describe the additional expanded protections provided by the N.H. Constitution.
- Public Funds to Religious Education: Was SB193, as proposed in the 2017-18 legislative session, constitutional under the N.H. Constitution? If so, what is the basis for this opinion?*
- Immunity of Government Officials for Constitutional Violations: Do you believe that the doctrine of qualified immunity should be revisited by the courts?*
For background information about questions with an asterisk (*) please see below and attached PDF.