CONCORD, N.H. — Gov. Kelly Ayotte nominated Associate Justice of the Superior Court Daniel Will to serve on the state Supreme Court Tuesday, her second nomination to the high court since taking office last year.
But the nomination could face challenges: Councilor David Wheeler, a Milford Republican, said this week he has serious concerns about Will’s past as the state’s solicitor general and is likely to vote no.
Will has served on the superior court since 2021, and as the associate justice of that court has presided over superior court cases across the state.
Before that, he worked as a business and commercial litigator at Devine Millimet in Manchester. In 2018, then-Gov. Chris Sununu appointed Will as solicitor general, the first person to hold that role.
“He has the qualifications, integrity, and commitment to public service Granite Staters expect in a Supreme Court Justice, and I am confident he will uphold the rule of law and our Constitution,” Ayotte said in a statement.
But Wheeler says two cases Will worked on as solicitor general in the Attorney General’s office pose problems for him: Will’s role defending Sununu’s COVID-19 emergency order, and his role arguing against the release of the “Laurie List” database of police officers with perceived trust issues.
“If you’re asked to suspend the constitution, why would you want to stay in that job?” Wheeler said. “How could your conscience allow you to do that?”
Wheeler argued Will should have objected to those cases and resigned rather than work on them.
“‘Can that be justified?’ becomes the issue,” Wheeler said. “And I say, ‘No, it can’t. It can’t be justified in any way, shape or form.”
Wheeler previously voted against Will’s nomination to the superior court in 2021, citing the same objections.
In a press release Tuesday evening, the conservative advocacy organization Cornerstone also voiced opposition to Will, arguing his work defending the COVID emergency order could affect his decisions on the court.
“The warning signs are clear. Judge Will’s tenure would be characterized by a total disinterest in originalism, an automatic deference to government officials, and the cynical dismissal of litigants’ constitutional claims,” the group wrote.
The governor’s office did not immediately respond to questions about Wheeler’s concerns. Will’s nomination came from a recommendation by the governor’s Judicial Selection Commission; Cornerstone said Ayotte had ignored a list of more conservative judges and attorneys that they had provided.
Republicans control the Executive Council, 4-1, but if the lone Democrat on the council, Karen Liot Hill of Lebanon, joins Wheeler in opposing Will, the governor would need all three remaining Republicans to support him. Reached Tuesday, other executive councilors did not raise the same immediate issues as Wheeler, though all said they would evaluate Will closely before making their decisions.
“I have a lot of respect for Councilor Wheeler. He’s a colleague of mine. But yet, I am going to do my own independent review and due diligence, including looking at some of his opinions as well,” said Councilor John Stephen, a Manchester Republican.
Councilor Joseph Kenney, a Wakefield Republican, also served on the council during Will’s 2021 Superior Court nomination but voted in favor of Will at the time. He said he disagrees that Will’s actions as solicitor general should be counted against him.
“The function he was carrying out at that time was defending the state’s position, which he was hired to do,” he said of Will.
This time around, Kenney said he would ask about Will’s time on the superior court and evaluate how Will treated parties and issues as a judge.
“I literally make my decision the night before the actual confirmation vote,” he said Tuesday. “Because I truly never know what information is going to come at me that I didn’t have at my disposal throughout the process.”
Liot Hill said she would also reserve judgment until she can examine Will’s background and ask questions about his commitment to following the state Supreme Court’s 1993 and 1997 Claremont rulings around school funding. “I have my homework to do,” she said.
Councilor Janet Stevens, a Rye Republican, could not be immediately reached Tuesday.
As solicitor general, Will worked within the Attorney General’s Office and had a lot of interaction with the state Supreme Court. That included: representing the state in all criminal appeals in the state Supreme Court and federal court; reviewing cases decided against the state and deciding whether to appeal; representing the executive branch before the Supreme Court; and filing amicus curiae briefs on behalf of the state.
Rep. Robert Lynn, a Windham Republican and a former chief justice of the Supreme Court, praised Will in a statement and said he is “committed to fairness and the rule of law, and he has a clear understanding of the constitutional limits of judicial authority.”
“I think he will just be a fantastic justice: He’s very smart, hard working, fair-minded, and I think a principled conservative,” Lynn said in an interview Tuesday.
As solicitor general, Will led the state’s arguments against releasing the “Laurie List” — the state’s exculpatory evidence schedule that lists state and local police officers with incidents in their past that could impugn their credibility on the witness stand; in 2020, the Supreme Court ruled that the list is not confidential and is subject to the right-to-know law. But litigation over whether officers should be included or excluded from that last has continued; in November, the court ruled against a former Concord police officer who argued she should be excluded because she no longer works in law enforcement and her alleged conduct happened too far in the past.
And he represented Sununu against a lawsuit challenging the governor’s state of emergency called at the beginning of the COVID-19 pandemic in 2020. That declaration allowed the executive branch to issue orders shutting down certain businesses and to determine the use of federal emergency relief funds without the Legislature.
If confirmed to the Supreme Court by the Executive Council, Will’s time as solicitor general could raise questions about recusal in some future cases.
For instance, before becoming a judge in August 2021, Will represented the state at the Supreme Court in arguing against a major school funding lawsuit, Contoocook Valley School District v. State of New Hampshire. While the Supreme Court issued a final opinion in that case in July 2025, ruling that the state was not fulfilling its obligation to fund an adequate education, a similar lawsuit, Rand v. State of New Hampshire, is likely to come before the Supreme Court in the next year.
Though the two lawsuits deal with similar legal issues, the Rand lawsuit was filed in June 2022, nearly a year after Will left as solicitor general. And there is precedent in favor of Will not recusing himself in that case: Supreme Court Chief Justice Gordon MacDonald — the former attorney general — recused himself in the July 2025 ConVal decision because of his past role defending the state from that lawsuit, but did not recuse himself from a June 2025 decision in the Rand case because it was filed after he left the Attorney General’s Office.
Under Supreme Court rules, justices make their own determinations over whether to recuse themselves from hearing or ruling on cases.
The Executive Council will hold a public hearing for Will in the coming weeks; a date has not yet been determined. Councilors will also have the opportunity to interview Will privately ahead of the confirmation vote.
If approved, Will would fill an upcoming vacancy left by Associate Justice Anna Barbara Hantz Marconi, who is retiring in February.
Hantz Marconi was put on administrative leave from the court from July 2024 to October 2025, after she was charged with two Class B felonies after allegedly attempting to interfere with the state’s criminal investigation into her husband, former New Hampshire Port Authority Director Geno Marconi.
Hantz Marconi was allowed to return to the court in October after pleading guilty to a single charge of criminal solicitation and paying a $1,200 fine; the state’s Attorney General’s Office dropped the other charges as part of the plea deal. But the associate justice turns 70 in February — the mandatory retirement age for New Hampshire judges.
In September, the Executive Council approved Ayotte’s first nominee to the Supreme Court, Bryan Gould, 4-1, replacing Justice James Bassett, who retired ahead of turning 70. At the time, Republican councilors praised Gould, a former attorney with Cleveland, Waters and Bass in Concord for his pledges of neutrality if confirmed, while Democratic Councilor Karen Liot Hill raised concerns about whether his conservative background meant he might rule against school funding precedents, and voted no.
In a statement accompanying Ayotte’s announcement Tuesday, Will made a similar promise to take a non-ideological approach to the court.
“Granite Staters expect fair, impartial decisions from their Supreme Court,” he said. “If confirmed, I will strive each day to meet that expectation, uphold the rule of law, and help resolve disputes fairly and expeditiously.”