By NANCY WEST, InDepthNH.org
CONCORD – Superior Court Judge Daniel St. Hilaire recused himself Monday from hearing a lawsuit YDC victims filed against the state, Gov. Kelly Ayotte and Attorney General John Formella over changes in the YDC Settlement Fund, but not because their attorney filed a motion asking him to disclose whether he applied for a state Supreme Court judgeship.
St. Hilaire said he was recusing himself because during the media “firestorm” over the victims’ motion asking if he had applied for the job, to which only a governor can nominate and executive council confirm, he discovered that someone close to him hired and continues to hire one of the victims’ well-know attorneys David Vicinanzo’s lawfirm Nixon Peabody.
St. Hilaire scolded Vicinanzo for seeking judicial disclosure in a public motion during a hearing Monday in Merrimack County Superior Court, but Vicinanzo insisted it was the right way to handle the matter for the 1,500 YDC victims he and Rus Rilee represent.
St. Hilaire said: “Counsel could have asked for a status hearing, chamber conference – anything … rather than airing a grievance in the press and a motion in this manner.”
“I have not applied to be a judge anywhere else,” St. Hilaire said, ending the mystery that started soon after Ayotte issued an executive order creating her judicial nomination commission in late May that keeps the names of applicants for a judgeship confidential until they are nominated.
It is rare for a governor to be named in a lawsuit in New Hampshire, so the question was raised whether there could be a potential conflict for any lower court judge looking for a promotion to the Supreme Court to sit on a case in which the governor has a keen interest as in this YDC victims’ case. The suit challenges changes Ayotte pushed to the YDC Settlement Fund giving her the power to appoint the Fund Administrator and the attorney general the authority to veto any settlement.
“If I had (applied) I probably wouldn’t be sitting in the first place because I would have had to disclose,” St. Hilaire said, making it clear he hasn’t applied for a Supreme Court judgeship.
As he is no longer sitting on a case involving the governor because of his recusal Monday, there would be no conflict if he did decide to apply for the next opening on the state Supreme Court, which is likely to be state Supreme Court Justice Anna Barbara Hantz Marconi’s seat because she must retire in February by law when she turns 70.
Vicinanzo thanked St. Hilaire for his candor, but said after hearing people suggest since summer that St. Hilaire was looking for a promotion, he consulted outside advice when some of his clients began questioning whether St. Hilaire was biased after he found in favor of Ayotte saying the state had a right to change the settlement fund process.
Because of the potential appearance of conflict because someone close to him hires Nixon Peabody, St. Hilaire said he must recuse himself and has told state Supreme Court Chief Justice Gordon MacDonald he will have to find a new judge to continue the YDC victims lawsuit against the settlement fund changes.
“For those reasons I have to recuse myself, not because of the reasons you brought up…,” St. Hilaire told Vicinanzo.
Vicinanzo said some of his YDC clients learned of the potential for conflict because of the secrecy in the judicial nomination process and demanded to know if St. Hilaire was biased against them to gain favor from the governor if he applied for the Supreme Court.
“One of our clients said, ‘I’m going to file a motion myself if you don’t file it,'” Vicinanzo said.
Vicinanzo said he has 1,500 clients who expect him to represent them, people who in the past were often ignored or generally treated poorly. “They can’t believe their lawyers are going to not fight for them and take a dive because we’re afraid of our reputations or we’re scared of the establishment, the judiciary, whatever. We’re not,” Vicinanzo said.
“We consulted with outside experts who said in these circumstances ‘you have an obligation to ask,’ that’s what motivated us…,” Vicinanzo said.
St. Hilaire responded: “I appreciate your resolve and you have clients you are representing. I appreciate the position you’re in and when they come to you looking for answers I appreciate that.
“I just feel like in retrospect you might have been able to come to me without going to the press, filing motions and things like that and just simply ask me without raising a firestorm,” St. Hilaire said.
St. Hilaire suggested the victims’ attorneys should have asked for a chambers conference.
Vicinanzo said the consultant suggested that would have been worse.
The consultant “told us we may be creating more of a problem by doing that because it actually seems like adding secrecy to potential secrecy,” Vicinanzo told St. Hilaire.
St. Hilaire said: “Anyway, I guess it is what it is. I just feel like if you lay the foundation for an accusation that you better have the facts as an attorney.”
Vicinanzo said: “We didn’t make an accusation. We asked for disclosure.”
The changes in the Settlement Fund law happened after the State convinced YDC survivors to drop their civil lawsuits against the state in favor of the settlement process, where they would likely receive much smaller payouts. The Settlement Fund was created by the legislature to compensate the survivors of physical and sexual abuse they received as children from state employees while incarcerated at the Youth Development Center in Manchester.
YDC victims were upset because one of the benefits of the original Settlement Fund was the administrator would be appointed by the state Supreme Court, who would be neutral and independent. The first fund administrator after legislators created the fund, former state Supreme Court Chief Justice John Broderick, left the fund after the new law went into effect July 1, highly critical of the changes.
As it stands now, there have been no new Settlement Fund hearings since Broderick left and Ayotte hasn’t named his replacement.
The YDC survivors who disagree with the settlement offers can restart their lawsuits, but that process is estimated to take several years, if not a decade. The delay might be part of Ayotte’s motive for the changes, according to an affidavit filed by Jonathan O’Neil, one of the Nixon Peabody attorneys representing the victims in the case.
“Many of our clients will never receive justice. Indeed, 50 of our clients have passed away since the consolidated litigation began in 2021. That number will inevitably increase as a result of the delays caused by Defendants’ dismantling of the Settlement Fund. Based on the average settlement amounts in the Settlement Fund, the deaths of 50 victims yielded a savings to the State of approximately $20 million. Additional delays will mean additional deaths and further savings to the State of funds which should be directed to victims,” O’Neil wrote.
St. Hilaire had ruled that Ayotte’s changes are valid as the survivors don’t have any legal right to say how the Settlement Fund operates. InDepthNH.org had reported that Ayotte’s office refused to disclose the names of any lower court judge who applied for the Supreme Court opening.
Ayotte’s refusal to release the names of Supreme Court applicants prompted the survivors to file the motion demanding answers about St. Hilaire’s possible ambitions.
“The request for disclosure is very simple, and the State shouldn’t be blocking it. Why wouldn’t the AG and Governor want the judge to just say ‘yes’ or ‘no’ so the abuse victims can be treated with respect and candor? The public also deserves transparency from its government. Our Constitution says our government must be ‘open, accessible, accountable and responsive.’ Objecting to our simple question just makes it like they have something to hide,” Vicinanzo said at the time.