By DAMIEN FISHER, InDepthNH.orgamien Fisher
The Sununu Youth Services Center, formerly known as YDC, sex abuse victims are undermining public faith in the judicial system by demanding a judge disclose a potential conflict of interest, according to the New Hampshire Attorney General’s Office.
The YDC victims publicly questioned the potential motives of Merrimack County Superior Court Judge Daniel St. Hilaire after he ruled against them in the lawsuit over Gov. Kelly Ayotte’s drastic changes to independence of the YDC Settlement Fund. But asking about whether or not St. Hilaire applied for a spot on the New Hampshire Supreme Court is a step too far, according to Assistant Attorney General Samuel Garland’s sharp rebuke filed Monday.
“To seek to undermine an adverse decision by suggesting, without any evidentiary support, that it was the product of bias is entirely inappropriate,” Garland wrote.
St. Hilaire ruled last month that the YDC victims do not have any legal grounds to challenge the way Ayotte administers the YDC Settlement Fund. The survivors of the horrific childhood abuse by state employees brought a lawsuit after Ayotte gutted the Settlement Fund administrator’s independence and neutrality.
Under Ayotte’s changes that took place July 1, the administrator is no longer appointed by the state Supreme Court, but instead answers to Ayotte. Further, Attorney General John Formella now has the ability to veto any settlements the administrator had offered.
The survivors agreed to halt their civil lawsuits against the state based in part on the ability of John Broderick, the former Settlement Fund administrator, to act fairly in deciding on their cases, and to be free from political interference. Since the changes took place, Formella has been vetoing numerous settlements Broderick reached, according to court records.
After St. Hilaire ruled against the YDC survivors, InDepthNH.org found that Ayotte keeps secret the names of judges who are applying to the Supreme Court. There will be at least one opening on the Court soon as Associate Justice Anna Barbara Hantz Marconi, fresh from her no contest plea deal, is expected to resign in February when she turns 70.
The survivors want to know if St. Hilaire is on Ayotte’s secret list of state Supreme Court candidates. Any Supreme Court hopeful is nominated by Ayotte, and then must be confirmed by the Republican-dominated Executive Council. But Garland thinks the survivors are being dangerously irresponsible by raising the question about St. Hilaire’s motives.
“Baseless suggestions of judicial bias undermine confidence in the judiciary and impede the judicial function. They have no place in the judicial process,” Garland wrote. “Parties to lawsuits do not get to issue what are effectively show-cause orders directed at judges seeking to ferret out potential recusal issues. Allowing such a motion here—a motion not authorized by any court rule and without any grounding in fact—will give litigants license in every case, criminal or civil, to file similar motions and use them as a cudgel against the bench.”
St. Hilaire does not need to disclose if he applied for the Supreme Court opening, according to Garland. The rules of judicial conduct require that he preside fairly over any case assigned to him, and only recuse himself if he’s proved to be biased, Garland wrote. Since there is no proof he’s potentially compromised, the survivors are wrong to ask for that proof, according to Garland.
“There is therefore a presumption that a judge presiding over a case will be fair and impartial, and the party asserting bias bears the burden to overcome that presumption. The plaintiffs do not offer a shred of evidence to satisfy that burden here,” Garland wrote.
But Dan Deane, one of the Nixon Peabody attorneys representing the majority of the YDC survivors, said Garland is responding to a straw man, and not the argument the survivors are actually making. The fact is Ayotte is a named defendant in the lawsuit, and only Ayotte can nominate a candidate for the Supreme Court.
“The plaintiffs are not accusing Judge St. Hilaire of any impropriety, but are simply asking the reasonable question that arises in these circumstances where the governor’s office has refused to disclose the names of any judges who have applied for a Supreme Court promotion. The state’s objection to plaintiffs simply asking the judge the question is antithetical to ensuring governmental transparency,” Deane said.