By DAMIEN FISHER, InDepthNH.org
Official state secrecy is eroding trust in the justice system, not demands for judicial transparency made by sex abuse survivors, according to a new motion in the lawsuit over the state’s Sununu Youth Services Center, also known as YDC Settlement Fund.
Survivors of the horrific childhood abuse perpetrated by state employees are pushing back on the government’s accusation that they are undermining public faith in the courts. The latest legal battle started when YDC survivors filed a motion demanding Merrimack County Superior Court Judge Daniel St. Hilaire disclose whether or not he’s applied for the upcoming opening on the New Hampshire Supreme Court.
“The circumstances of this case, combined with the State’s insistence on secrecy surrounding judicial appointments, has already led to public speculation about whether the presiding judge has applied for promotion. The State’s loud effort to double-down on secrecy, attacking Plaintiffs for merely asking the question, amplifies that appearance,” attorney Daniel Deane wrote.
Deane is responding to Assistant Attorney General Samuel Garland’s accusation that the survivors are trying to undermine St. Hilaire because they do not like his rulings. Garland made that accusation in a motion filed earlier this month.
“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.
The survivors brought their lawsuit against Gov. Kelly Ayotte and others over changes she pushed on the Settlement Fund. The changes took effect after the vast majority of survivors agreed to halt their lawsuits and seek a settlement under the previous Settlement Fund rules of operation. Ayotte’s changes strip the independence from the fund administrator and empower Attorney General John Formella to veto settlement fund offers.
St. Hilaire denied the survivors’ motion for a preliminary injunction against the state in a ruling released last month. But in the days following that ruling, InDepthNH.org reported that Ayotte is refusing to name any lower court judge who applied for the Supreme Court opening. Ayotte has the sole authority to nominate justices to the Supreme Court.
The survivors want St. Hilaire to disclose whether or not he’s on the list of Supreme Court applicants. Such a disclosure would restore trust in St. Hilaire and the judiciary, Deane wrote.
“In these circumstances, a simple disclosure from the Court would dispel public speculation and allow all parties, and the public, to proceed with full confidence in the judiciary’s independence,” Deane wrote.
The survivors filed a motion for reconsideration of St. Hilaire’s preliminary injunction denial, meaning it is still a live legal question despite the ruling. If St. Hilaire denies that reconsideration, the survivors can always appeal to the New Hampshire Supreme Court.
The survivors claim Ayotte gutted the Settlement Fund administrator’s independence and neutrality, the features that convinced many to enter into the settlement process. There are about 1,500 civil lawsuits brought by survivors of the YDC sex abuse scandal. By entering into the settlement process, all of those survivors agreed to stay their court cases. If they now leave the settlement fund, their court calendars basically restart and could take years to get to a jury.
The only YDC lawsuit to get a jury trial resulted in a $38 million award to survivor David Meehan. But the state is appealing that verdict, arguing Meehan is only entitled to a capped $475,000 award. That dispute is set for a Supreme Court hearing on Nov. 20.