Many of the stories, commentary, and questioning from the Executive Council on March 9, 2022, concerning whether Bedford attorney Brian Shaughnessy should serve as a New Hampshire Circuit Court judge have focused on the wrong issue.
The question – as it pertains to whether Shaughnessy should be a judge – is not whether Shaughnessy mishandled 190 uncounted absentee ballots, was under investigation or attempted to cover up the investigation into the ballot mishandling. The more interesting and compelling question is whether Shaughnessy (then the assistant moderator) acted outside his authority in rendering what appeared to be legal advice to the Town of Bedford.
In New Hampshire, an assistant moderator’s powers and duties are limited. An assistant moderator has “all the powers and duties which the moderator has, subject to the control of the moderator.” RSA 40:3-a, RSA 658:7.
The duties of the moderator are focused on two areas: town meetings and elections. They include “presid[ing] in the town meetings, regulat[ing] the business thereof, decid[ing] questions of order, and mak[ing] a public declaration of every vote passed.”RSA 40:4, I.
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The moderator may also “prescribe rules of proceeding” for town meetings and re-schedule deliberative or business sessions of such meetings. RSA 40:4, I, II(a).
Regarding elections, a moderator’s duty is to ensure that the election process is fair and is conducted in accordance with state law. A moderator may conduct vote by secret ballots, conduct a recount of votes, or re-take questioned votes. RSA 40:4-a, RSA 40:4-b.
A moderator also has duties concerning the preparation of polling places, monitoring additional polling places, establishing procedures for polling places, certifying ballots, and handling ballots. RSA Chapter 657 and 658.
Assistant moderators have all the powers and duties above that the moderator may delegate to them, except that the moderator may not delegate to an assistant moderator the power of making the declaration of votes cast. RSA 40:3-a, RSA 658:7. Most important: these powers and duties are limited, and they do not authorize the provision of legal advice.
Shaughnessy, nevertheless, decided to provide the Town with legal advice. He admitted so in his recent Facebook post.
“The advice to not discuss matters relating to the pending investigation came from me, as a lawyer, advising someone who is the subject [of] a pending investigation that could support criminal charges (see RSA 661). Any notification to the Town Council would be subject to RSA 91-A (the right to know law), and any public statements could become fodder for social media which could impact the pending investigation. Standard legal advice.”
That sounds like standard legal advice, but Shaughnessy was not the Town’s attorney, and he conceded to the Executive Council he was not there as an attorney. He was the assistant moderator.
Executive Councilor Cinde Warmington (a Democrat and herself an attorney) focused on this issue on March 9. In response to the concerns Shaughnessy expressed to Town officials regarding the “email traffic” that could result from their discussion of the investigation (which would be subject to public disclosure under the Right-to-Know law), Warmington opined that Shaughnessy’s communication to those officials appeared to be “legal advice.”
At one point, she asked Shaughnessy, “Who was your client?” Shaughnessy responded the Town Moderator (Bill Klein) was his client, but then he conceded he was “not representing anybody in the legal sense.”
Although Warmington will likely vote for Shaughnessy’s confirmation, she isolated the most glaring problem with Shaughnessy: his provision of legal advice to the Town despite having no authority (either as assistant moderator and, particularly, not having been retained by the Town as its attorney) to do so.
Shaughnessy’s decision to render legal advice in that instance should disqualify him from being a judge.
The Founders separated powers among three branches: among those is the power by our courts to interpret laws. That power, like its two counterparts (the executive and legislative branches), should be limited. A judge should interpret a law based on its text and original meaning.
This constraint means the law should govern, not the intent of a legislator, much less the preference of a judge.
The late Justice Antonin Scalia was highly critical of judges who say the law means whatever it ought to mean, ultimately based on their own policy preferences. Indeed, this practice becomes even more problematic when done by unelected judges. A judge – even a panel of judges sitting on an appellate court – can hardly be called a “representative assembly” of the people.
When judges deviate from these standards, the judiciary quickly becomes that which the Founders sought to prevent. We are a “government of laws,” and judges should faithfully apply those laws: the rule of law is predictable, is imbued with wisdom, and protects us from the government’s potential abuse of power.
Government officials are supposed to follow the limited laws that govern them. Judges, likewise, are supposed to adhere to their limited roles in our republic. If an official such as Shaughnessy ignores the fact he had no authority to provide legal advice to the Town, and acted outside of his authority in doing so, why should we trust that he would adhere to the law (and not act outside his authority) as a judge?
That is the question that should be asked. In this era where judges who actually follow and apply the law are hard to find, Shaughnessy does not deserve a vote of confidence.
Editors Note: An earlier version of this article had the citations in the wrong place. That was our fault, not the authors. They have been corrected.
