SURREPLY TO DEFENDANTS’ OBJECTION TO MOTION TO DISQUALIFY ATTORNEY GENERAL JOHN FORMELLA AND THE NEW HAMPSHIRE DEPARTMENT OF JUSTICE
Editor: The NH DOJs’ Objection to Motion to Disqualify can be found here.
The Appellant, Daniel Richard, submits this Surreply to address the Defendants’ objections to his Motion to Disqualify Attorney General John Formella and the New Hampshire Department of Justice (DOJ), filed on July 10, 2025. The Defendants’ arguments fail to rebut the substantial conflicts of interest, ethical violations, and procedural irregularities that necessitate disqualification to protect the Appellant’s constitutional rights and ensure judicial integrity.
I. Response to Defendants’ Claim of Untimeliness
The Defendants argue that the motion is untimely because the DOJ has represented them since the litigation’s inception. This argument ignores that new evidence of bias and misconduct, particularly Formella’s role in the unauthorized prosecution of Justice Anna Barbara Hantz Marconi, emerged only recently, as detailed in the Appellant’s motion (Section IV). Disqualification motions based on newly discovered evidence are timely when filed promptly upon discovery. See State v. Coburn, 165 N.H. 144, 151 (2013). The Appellant filed this motion on July 10, 2025, shortly after public records and filings in State v. Hantz Marconi revealed Formella’s actions, rendering the motion timely.
II. Response to Defendants’ Claim of Lack of Standing
The Defendants assert that the Appellant lacks standing because any conflict of interest impairs only their representation, not the Appellant’s rights. This argument is meritless. A conflict of interest compromising the Attorney General’s impartiality directly harms the Appellant’s due process rights by undermining the fairness of the judicial process. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (due process requires impartial tribunals free from bias). Formella’s alleged misconduct, including violations of election laws and manipulation of judicial proceedings, prejudices the Appellant’s right to a fair hearing, conferring standing to seek disqualification.
III. Response to Defendants’ Denial of Conflict Based on Official Capacity
The Defendants assert that representing state officials in civil matters is a fundamental duty of the Department of Justice (DOJ) under RSA 21-M:2, and that the Appellant’s allegations do not warrant disqualification. This argument fails to address the specific allegations of criminal misconduct against Attorney General Formella and other Defendants, including violations of N.H. RSA 666:2 (Official Malfeasance), RSA 666:3 (Official Misconduct), RSA 638:12 (Fraudulent Execution of Documents), and 52 U.S. Code § 20511, as detailed in Section II of the motion. When the Attorney General and other Defendants are accused of criminal conduct that undermines the integrity of the electoral process at issue, their representation by the DOJ creates an impermissible conflict of interest under N.H. R. Prof. Conduct 1.7. See Berger v. United States, 295 U.S. 78, 88 (1935) (emphasizing that prosecutors must maintain impartiality). The Defendants’ reliance on RSA 21-M:2 does not exempt Formella or the DOJ from ethical obligations to avoid conflicts that jeopardize judicial fairness and public trust, particularly when the DOJ’s representation of the Defendants in this criminal matter lacks any authorization from the Governor and Executive Council as required in civil cases by RSA 99-D:2.
IV. Response to Defendants’ Claim Regarding RSA 99-D:2
The Defendants contend that RSA 99-D:2 does not apply because the claims target their official capacities, and representation is authorized under RSA 21-M:2. However, RSA 99-D:2 explicitly governs DOJ representation of state officials in civil matters, requiring that such representation be conditioned on a determination that the alleged acts were not wanton or reckless. The allegations against the Defendants involve criminal misconduct, which falls outside the scope of RSA 99-D:2’s authorization for civil cases. The Appellant’s Right-to-Know requests (Exhibits A–D) reveal no evidence of documented authorization for the DOJ’s representation of Formella or the other Defendants, raising significant procedural concerns under RSA 99-D:2. The Defendants’ failure to produce evidence of compliance with these requests, dated May 6 and May 15, 2025, supports the Appellant’s claim of unauthorized representation. Moreover, the DOJ’s failure to affirm in their objection that Attorney General Formella and the other Defendants complied with RSA 99-D:2 in 2022, when the case was initially filed, suggests bad faith and bias in the use of DOJ resources to defend named Defendants accused of criminal wrongdoing, further justifying disqualification.
V. Statutory Limitations of RSA 99-D:2 and Special Considerations for Attorney General and Other Defendants
RSA 99-D:2 explicitly limits DOJ representation of state officials to civil cases and requires the Attorney General to ensure that the alleged acts were not wanton or reckless. When the Attorney General or other state officials are named as Defendants, the statute imposes an additional safeguard: the Governor and the New Hampshire Executive Council must confirm that the matter is civil (not criminal) and that the allegations do not involve wanton or reckless conduct. The allegations against Formella and the other Defendants, including violations of state and federal laws related to electoral integrity, are criminal in nature and thus fall outside the scope of authorized DOJ representation under RSA 99-D:2. The absence of documentation verifying that the Governor and Executive Council made the requisite determinations in 2022, when the case was filed, confirms that the DOJ’s representation of the Defendants is unauthorized. This procedural deficiency, combined with the Defendants’ failure to address the criminal nature of the allegations, reinforces the need for disqualification to preserve the integrity of the judicial process.
VI. Response to Defendants’ Dismissal of Prior Relationship with Sununu.
The Defendants claim that Formella’s prior role as Governor Sununu’s legal counsel (2017–2021) does not create a conflict. However, this relationship raises legitimate concerns about Formella’s impartiality, given Sununu’s status as a named Defendant. N.H. RSA 7:6 and 7:6-c require the Attorney General to act in the state’s interest, not as a personal advocate for a former client. This prior relationship, combined with Formella’s alleged protection of Sununu’s interests in election practices, violates N.H. R. Prof. Conduct 1.7 and warrants disqualification.
VII. Response to Defendants’ Dismissal of Hantz Marconi Prosecution.
The Defendants label the Appellant’s claim that Formella’s prosecution of Justice Hantz Marconi was a strategic maneuver to force her recusal as baseless. On the contrary, filings in State v. Hantz Marconi confirm that Formella initiated an investigation without a sworn complaint, violating DOJ policy and a 2021 memorandum. His role as a witness in that case (interviewing Sununu and Ogden) further implicates N.H. R. Prof. Conduct 3.7, prohibiting lawyers from acting as advocates and witnesses in the same matter. By causing Hantz Marconi’s recusal, Formella altered the composition of this Court, prejudicing the Appellant’s right to an impartial tribunal. See Caperton, 556 U.S. at 876. These actions demand disqualification to restore judicial fairness.
VIII. Conclusion
The Defendants’ objections fail to address the gravity of Formella’s conflicts of interest, ethical violations, and procedural irregularities. His alleged criminal conduct, unauthorized representation, bias in litigation, prior relationship with Sununu, and manipulation of judicial proceedings through Hantz Marconi’s recusal violate the Appellant’s due process rights and undermine public confidence in the judiciary. The Appellant respectfully reiterates his request to disqualify Attorney General Formella and the DOJ, and to appoint a special prosecutor or independent counsel to ensure a fair and impartial proceeding.
July 20, 2025
Respectfully submitted,
/s/ Daniel Richard
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