The two remaining contenders for the state’s corner office — Democrat Colin Van Ostern and Republican Chris Sununu — took part in a controversial vote that resulted in a rare rejection of a judicial nominee; one voted for the nominee, the other against. Now, the legal community, Republicans and Democrats alike, fears that this has set a bad precedent with ripple effects into the future.
The strange case
On Nov. 4, 2015, the governor and the executive council performed one of their more mundane tasks: voting on court appointments. Normally this is perfunctory and unanimous, and executive councilors rarely find cause for dissent. While the nominees are officially named by the governor, they’ve been vetted and selected for the past several years by an independent commission.
When it came time to consider appointing Dorothy Graham a Superior Court judge, the majority of councilors said no on a party line vote.
“Up until that point, it was almost a non-event. I think everyone would’ve expected that it would go straight through,” said Anna Zimmerman, president of the New Hampshire Association for Justice.
Zimmerman said the legal community was shocked and blindsided by the vote, which she said has no precedent in recent memory.
“It is pretty abnormal,” Zimmerman said. “I’m not aware of it ever having happened on these, having a judge nomination be turned down, on these types of grounds.”
The three Republicans on the council who voted against Graham’s appointment each cited her background in defense. Graham had served 20 years as a public defender in Manchester.
Councilor Joe Kenney said publicly that he voted nay because of Graham’s role defending sex offenders in appellate court and that he grew concerned with the appointment after reading an Oct. 16 article in the Washington Free Beacon, a right-wing newspaper.
The article targeted Gov. Maggie Hassan for nominating Graham, someone who tried to get “child rapists off on technicalities,” according to the article.
The story quotes another Republican Executive Councilor, David Wheeler, saying he found the claim “disturbing.”
Chris Sununu, a newly announced candidate for governor by the time of the vote, said he would have liked to see a resume with more variety beyond just defense.
“My guess is she does a pretty darn good job at what she does but there’s lots of folks out there who could be judges and I’d like to see somebody with a more varied background to make the best decisions on the bench,” said Sununu in a recent phone interview.
Graham had some strong references ahead of the vote, including a letter written by Manchester Police Chief Nick Willard, which is noteworthy since police are by nature on the side of the prosecution.
And as a public defender, she did not choose her clients and it was her duty to defend them zealously just the same.
So, when she was rejected, the outcry was loud. The Washington Post published an opinion by a regular columnist and law professor highly critical of the decision, saying Wheeler didn’t understand how the justice system works.
The Concord Monitor published its own critical op-ed, penned by a local defense attorney. The New Hampshire Bar Association bought half-page ads in the Monitor and the Union Leader to print an open letter signed by 27 past presidents, calling for a revote and expressing concern that the reasons given for the rejection amounted to a condemnation of defenders and a disregard for the constitutional right to a defense.
“The general consensus was that it was very surprising and upsetting that someone would be prevented from holding an office like that, not because of character or because of judicial decorum concerns or qualification concerns, but for doing her job as a public defender,” Zimmerman said. “I can say that, across the board, on the [NHAJ] board and the people that I spoke to, I didn’t run into anyone who thought it was appropriate, that someone be barred because they worked for the Public Defender’s office.”
She said such a reason seems “patently unfair and wrong.”
Graham is now working in the New England office of the Federal Public Defender. Reached by phone, she declined to comment for this story.
Democratic Executive Councilors Colin Van Ostern and Chris Pappas both voted in favor of appointing Graham, and Pappas led the charge to revisit the vote. None of the Republicans opted to change their votes.
“I think that was a wrong-headed decision,” Pappas said.
“What bothered me about that vote was that it was just one more example of how politics have held us back as a state,” Van Ostern said.
Van Ostern said in a recent interview that, if elected, he would continue to put forth judicial nominees vetted by the Independent Judicial Selection Commission.
And if the commission decided to submit Graham for consideration during a Van Ostern administration, he said Graham would get a fair shake.
“If they did, I think she’s very well qualified and I’d give her every consideration,” Van Ostern said.
Even some Republican candidates for Executive Council believe Graham’s rejection was ill-advised. Joe Kelly Levasseur, who is running to unseat Pappas this November, is a lawyer himself and would like to see more diversity in the courts.
“It seems that most of the people that are getting those jobs are people who are prosecutors,” Levasseur said. “Public defenders understand the legality and the law and probably plea out 95 percent of their cases, which is exactly the record that a prosecutor would have.”
Zimmerman said Graham’s rejection could mean fewer defense attorneys applying for judgeships and fewer law school graduates getting into defense if they want to become judges someday.
“I can certainly see it having a chilling effect on others potentially,” Zimmerman said.
Ultimately, Hassan put forward a new nominee for the Superior Court spot in December: David Ruoff, a practicing defense attorney and law professor at UNH who has experience both as a public defender and a prosecutor. The Executive Council confirmed him unanimously in late January.
Ruoff was defense attorney for Beatrice Munyenyezi, a refugee who was sentenced to 10 years by a federal judge for her role in the Rwandan genocide.