A hearing was held on May 6th regarding the appointment of Attorney General Daniel Will to a position on the bench in the NH Superior Court. Last year, Will was the lead architect of a dangerous theory adopted by some New Hampshire courts. namely that constitutional rights can be “suspended” in a state of emergency.
On April 9 of that year, a bipartisan majority in the New Hampshire House labeled Will’s theory “disruptive” and passed bill to expel it under state law.
Last week, Will had an opportunity to explain or disagree that view. Instead, Will brushed the controversy away, pretending he had no idea what the house was talking about. “I’ve never argued that the constitution can be repealed,” he told Councilor Joe Kenney. He later said to Kenney again, “It was never about suspending the Constitution. I never made that argument.”
When Councilor Dave Wheeler asked Will on the same subject, he doubled in size. “It was argued not to suspend the Constitution. We never made that argument.” He kept repeating this lie throughout the taped hearing.
So where did the idea of repealing the constitution come from? Have groups like ReopenNH just made the claim? The simple answer is “no”. The public record here clearly contradicts Will’s disapproval.
Just take a look at the documents yourself. On page 6 of Binford’s decision, the judge in the case says: “The state claims that Governor Sununu … can use his emergency powers to temporarily suspend or restrict fundamental rights.” On page 10 of the same document, the judge reiterates: “The state claims … during a state of emergency, executives are given greater leeway to suspend civil liberties to address the emergency.”
“The state” in this court document means Daniel Will, who was the chief attorney for the attorney general who advanced the case for “the state” in the case. Did Will tell the Executive Boards that the judge lied on the case?
It gets worse than that. Judge John Kissinger explains exactly where he got the language on the subject of “suspension of civil liberties”. See page 11 of the Binford Decision under the section entitled, “The Governor’s Power to Suspend Civil Liberties.” Did you understand this subject line? In this section the judge says he will use an old case called Smith against Avino. Lawyers say Avino is a so-called “no-obligation” case, which means it did not have to be used in New Hampshire.
What did the Avino case say? The judge quotes it on page 11. It says: “In an emergency situation, basic rights such as the right to travel and freedom of expression can be temporarily restricted or suspended.”
The judge didn’t pull this Avino case out of his hat. He used it because Daniel Will asked him to use it. Just look at pages 13 and 14 of Will’s own signed objection. There Will used Avino to argue that constitutional rights have no effect in an emergency as long as “the actions of the executive are taken in good faith and … there is a factual basis for the decision”.
The talk of the abolition of constitutional rights is omnipresent here. This wasn’t just the judge’s opinion: it’s what the judge said that Will asked him to do. The judge’s words also come straight from the main case Will used in his argument.
If you listened to Will’s testimony before the Executive Board, you would never guess. Will tried to create the impression that he had no idea why anyone would believe he was promoting the abolition of constitutional rights. He kept denying the truth. It could be that he was trying to get the Executive Board to believe that voters who are concerned about this theory are imagining things. Will seems to believe that the councilors will not read the public records themselves.
Here’s the bottom line: The danger here is much greater than a word like “suspend”. If constitutional rights do not apply while government action is taken “in good faith” on a “matter-of-fact basis,” it is the same as having no constitutional rights at all. This is what Will argued, whether he liked the word “suspend” or not.
Sure, Will also said at the hearing that “the Constitution will never be repealed”. But what does that mean? Since Will believes that if you stop enforcing it in an emergency, the Constitution will not be “suspended”, so we have no idea whether the words “never suspended” mean anything.
Will’s nomination now goes beyond concern about a dangerous argument Will made last year. He also insulted the violation by misleading the council and voters. He turned down several opportunities from Councilor Wheeler to admit that his reasoning might have been something dangerous. By being completely clueless as to why the “repeal of the constitution” might affect some people, he has also shown that he simply is not serious about upholding constitutional rights. None of this looks good for his temperament or ability to do his job as a judge.
Will had another high profile case where he argued that the state was entitled to withhold critical information from the public. The ‘Laurie List’ is a list of police officers who have questionable credibility problems. The credibility problems are so significant that the public prosecutor’s office must give the defense attorney the names of the officers during criminal proceedings, otherwise there is a risk of violating ethical rules. The problem dates back to a mid-1990s court case in which a man named Carl Laurie was charged with murder and the conviction overturned because the officer concerned had serious integrity issues. Will argued that this list should be kept private. Just recently, the Senate disagreed with Will in a 24-0 vote and voted to publish this list.
Will is an exceptionally smart and capable lawyer. During the public hearing, he was referred to as “the attorney’s lawyer”. He’s the kind of person lawyers go to for advice. There is concern here that his significant corporate law expertise is desperately needed in the New Hampshire Supreme Court and that this nomination is just a stepping stone to this overarching position. We should be careful when promoting lawyers to court who are ready to trample the Constitutional Protection under their feet in order to win cases. The argument to keep the “Laurie List” is another example of the fact that the public interest is not being put before the state.
Given that our Supreme Court is the last place to stand up to protect our civil rights, and knowing that the federal government is talking about filling the courts with judges willing to trample on those rights, we must protect the court of our state system. It is imperative that we only approve judges who are fair, impartial and willing to ensure that our constitution protection is never trampled. Candidates who defend and advocate for unjust acts of the state are not eligible to sit in these positions.
Our constitutional rights are in grave danger in New Hampshire. It’s time for freedom groups and leaders who have concerns about Will’s nomination to get off the fence and defy him. Call or email your executive board asking them to verify the facts and vote against Will’s confirmation.
Former MP JR Hoell is the treasurer of ReopenNH.
This story was originally published by the NH Journal, an online news publication dedicated to the fair, unbiased reporting and analysis of political news of interest to New Hampshire. For more stories from the NH Journal, visit NHJournal.com.
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