On January 18, 2022, President Joe Biden nominated Michael A. Delaney to serve as a United States Circuit Court Judge for the United States Court of Appeals for the First Circuit. A litigator with over 25 years of trial advocacy experience, Mr. Delaney served in New Hampshire’s Department of Justice and as the state’s Attorney General before becoming the Director and Shareholder at the firm McLane Middleton.
Biography
Michael Delaney was born in Lynn, Massachusetts in 1969. He earned a degree in political science from the College of the Holy Cross in 1991 and graduated from Georgetown University Law Center in 1994.
Legal Experience
After law school, Mr. Delaney joined the law firm of Wiggin & Nourie in New Hampshire, where he worked in complex civil litigation. In 1999, he became a staff attorney in the New Hampshire Department of Justice. He was promoted to Assistant Attorney general, moved to the Homicide Prosecution Unit in 2000 and was eventually elevated to Senior Assistant Attorney General and Chief of the Homicide Prosecution Unit in 2002. During his five-year tenure as a prosecutor, he primarily handled homicide investigations and prosecutions. In 2004, he was appointed as New Hampshire’s sole Deputy Attorney General. In that role, he supervised criminal, civil, and administrative cases in the New Hampshire Department of Justice. Mr. Delaney also assisted the Attorney General in supervising 120 state employees, including 60 attorneys.
In 2006, Mr. Delaney was selected by New Hampshire Governor John Lynch to serve as the governor’s legal counsel. As legal counsel, he advised the governor on his constitutional and statutory duties, assisted with the oversight of the executive branch, and monitored legal affairs concerning office’s policy priorities. Gov. Lynch then appointed Mr. Delaney as New Hampshire Attorney General in 2009 with the unanimous consent of five bipartisan Executive Councilors. In that role, he handled a broad range of complex litigation and regulatory matters. Under Mr. Delaney’s leadership, the Attorney General’s office and the state banking department collaborated to create a fraud prevention unit in New Hampshire’s Consumer Protection Bureau. As Attorney General, Mr. Delaney signed amici briefs in support of the respondents in Hollingsworth v. Perry, which challenged a California proposition banning same-sex marriage, and United States v. Windsor, which challenged the constitutionality of the Defense of Marriage Act.
In 2013, Mr. Delaney left the Attorney General’s office to join the law firm of McLane Middleton in Manchester, New Hampshire, where he currently serves as Director and Shareholder. He specializes in civil litigation and internal investigations. His clients include business organizations, business officers and directors, colleges and schools, professionals subject to disciplinary proceedings, and charitable organizations. Mr. Delaney focuses on business litigation, government litigation, and education law, including advising schools on Title IX and compliance issues.
The following cases are representative of Mr. Delaney’s legal career:
Constitutional Law
When he was Deputy Attorney General, Mr. Delaney worked on Ayotte v. Planned Parenthood of Northern New England, which went before the United States Supreme Court. The case arose after New Hampshire’s legislature passed the Parental Notification Prior to Abortion Act, which required parents be notified before their minor child had an abortion. Planned Parenthood challenged the law before it went into effect, claiming that it violated the holding of Planned Parenthood v. Casey, which prevented states from placing undue burdens on people seeking abortions. Planned Parenthood was successful at both district court and at the First Circuit Court of Appeals. After New Hampshire’s Attorney General appealed the case to the Supreme Court, the Court upheld the plaintiffs’ ability to challenge the statute’s constitutionality before it went into effect and affirmed that, at the time, states could not constitutionally implement restrictions on abortions not aimed at protecting the health and safety of individuals seeking them. The Court also held that only certain parts of the New Hampshire law were unconstitutional, remanding the case to lower courts, listed criteria for determining whether only part of the law or the entire law should be blocked. The litigation ended when the New Hampshire legislature repealed the act in 2007.
As Attorney General of New Hampshire, Mr. Delaney argued Perry v. New Hampshire before the U.S. Supreme Court. The case arose after the defendant, Barion Perry, was arrested for breaking into a car. The victim witnessed the crime and identified Perry at the scene, but later was unable to pick him out of a photo lineup or describe his appearance. The defendant filed a motion to suppress the victim’s initial identification on the ground that it was unnecessarily suggestive because at the time of identification, the defendant was standing next to a police officer. After his request was denied by the trial court, the defendant appealed the issue all the way to the Supreme Court. The Supreme Court held in favor of New Hampshire, finding that the Due Process Clause of the Constitution does not require a court to determine the reliability of suggestive identifications when police are not responsible for the suggestive circumstances.
Mr. Delaney played a central role in the issuance of In re Opinion of the Justices (Requiring Attorney General To Join Lawsuit), an advisory opinion issued by the New Hampshire Supreme Court, a landmark decision upholding the independence of State Attorneys General. The issue arose after the New Hampshire House of Representatives passed a bill that would mandate that Mr. Delaney, then serving as Attorney General, to join a federal lawsuit challenging the constitutionality of the federal Patient Protection and Affordable Care Act. Mr. Delaney testified that the state’s House of Representatives were attempting to violate the New Hampshire constitution’s separation of powers, because the legislative branch was infringing on the rights of the executive branch. At the request of the New Hampshire Senate, the state Supreme Court reviewed the matter and held that the New Hampshire Constitution gives the executive branch the sole power to determine whether it is in the public interest to litigate a matter, and that the proposed bill would violate this authority.
Title IX Compliance
Mr. Delaney represented St. Paul’s School, a private New Hampshire boarding school, in a lawsuit filed by the family of a 15-year-old student who was sexually assaulted by a classmate on campus. After a criminal trial, in which the accused student was found guilty of misdemeanor sexual assault, endangering the welfare of a child and felonious use of a computer, the victim’s family sued the school, alleging that the sexual assault was a “result of the school fostering, permitting, and condoning a tradition of ritualized statutory rape.” The school allegedly had a tradition called the “Senior Salute” in which senior male students would compete to “hook up” with underclassmen female students, which the plaintiffs argued led to their daughter’s assault. During the course of litigation, Mr. Delaney, on behalf of St. Paul’s, moved to have the victim’s name, which had remained protected until that point, revealed publicly. The tactic led to the victim coming forward and revealing her identity. The parties settled in 2018.
Corporate Law
In Finn v. Ballentine Partners, Mr. Delaney represented Ballentine Partners, an investment and wealth management firm after a former shareholder contested her termination and sued the firm for breach of contract and unjust enrichment. His representation included a five-day arbitration hearing that resulted in a $600,000 award for the plaintiff. After the hearing, Ballentine Partners successfully petitioned the New Hampshire Superior Court to vacate the award because the arbitration panel failed to dismiss the arbitration on the basis that the claims involved had already been litigated. When the plaintiff argued that the Federal Arbitration Act, not state law, applied to the proceedings, the New Hampshire Supreme Court affirmed the lower court’s finding in favor of Mr. Delaney’s client.
Criminal Law
While in the Homicide Prosecution Unit, Mr. Delaney prosecuted State v. Whittey, in which the defendant was accused of raping and murdering an 80-year-old woman in her home in 1980. In 1999, DNA collected at the scene was tested and matched the defendant. Much of the case focused on the defense’s pretrial challenge to the scientific reliability of DNA testing, which was an emerging science at the time. After extensive expert witness testimony, the evidence was allowed, and the case went to trial. The jury convicted the defendant of first-degree murder, and he was sentenced to life imprisonment without the possibility of parole.
Mr. Delaney also prosecuted State v. Tulloch and Parker No. 01-S-199, 01-S-200, 01-S-711, 01-S-712, 02-S-117 (Grafton County Superior Court) (Smith, J.), a homicide case involving the murder of two Dartmouth College professors who were stabbed to death in their home. Following guilty pleas, one defendant was sentenced to life imprisonment and the other was sentenced to 25 years to life imprisonment. Mr. Delaney oversaw the investigation and prosecution, including participating in a juvenile court hearing to determine whether Mr. Parker, a minor, could be tried as an adult and face first-degree murder charges.
Professional Activities and Accolades
In 2022, Mr. Delaney was named Lawyer of the Year: Education Law by Best Lawyers. Mr. Delaney has been named a New England Super Lawyer, Criminal Defense every year since 2020 and is listed on Chambers USA: A Guide to America’s Leading Lawyers, Litigation: White-Collar Crime and Government Investigations since 2018. In 2013, he received the Honorable William D. Paine II Award from the Governor’s Commission on Domestic and Sexual Violence and New Hampshire Gov. Hassan declared April 18th “Michael Delaney Day.”
Mr. Delaney was a member of the New Hampshire Police Standards and Training Council from 2009 to 2013. From 2012 to 2013, he was on the New Hampshire Commission to Combat Human Trafficking and Chair of the Governor’s Commission Against Domestic Violence, Sexual Assault and Stalking from 2011 to 2013. From 2002 to 2004, Mr. Delaney served on the New Hampshire Bar Ethics Committee where he participated in the Ethics Committee’s review of New Hampshire’s rules of professional conduct.