By DAMIEN FISHER, InDepthNH.org
CONCORD — One replacement judge later, the lawsuit over Gov. Kelly Ayotte’s changes to the Sununu Youth Services Center (YDC) Settlement Fund is back on the docket.
Merrimack County Superior Court Judge James Kennedy stepped in Friday to hear arguments against Merrimack County Superior Court Judge Daniel St. Hilaire’s September decision that went against the YDC survivors. Kennedy acknowledged he’s in new territory with the YDC plaintiffs’ motion to reconsider St. Hilaire.
“This is the first time I’ve been asked to reconsider another judge’s order,” Kennedy said.
St. Hilaire stepped down from the case last month after the plaintiffs raised the possibility he was ethically compromised, an accusation the judge denied. Lawyers for the plaintiffs were demanding that St. Hilaire disclose whether or not he applied for a job on the state Supreme Court, a position that must be nominated by Ayotte.
“I have not applied to be a judge anywhere else,” St. Hilaire said during his final hearing in November.
On his way out, St. Hilaire scolded lawyers for the YDC survivors for raising the questions about his potential bias in public court documents.
“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,” St. Hilaire said.
Kennedy is now tasked with deciding if St. Hilaire’s ruling in favor of Ayotte stands. Whatever his decision, a Supreme Court appeal is all but guaranteed by the attorneys.
Lost in the judicial shuffling and supposedly embarrassing questions about ethics, is the very real complaint that Ayotte and New Hampshire Attorney General John Formella broke the deal made with 1,700 people who were sexually and physically brutalized as incarcerated children by state employees.
Ayotte and Formella pushed through legal changes to the YDC Settlement Fund this summer that guts the independence of the fund administrator, and gives Formella veto power over all settlement offers, according to the lawsuit. Those changes took place July 1, one day after the June 30 deadline survivors had to file their applications for the fund.
As part of the Settlement Fund application, survivors must agree to a halt to any civil lawsuits against the state over the YDC abuse. But many survivors claim they only agreed to apply for a settlement because Fund Administrator John Broderick was neutral and independent, and his decisions were legally final.
St. Hilaire ruled in September that the state is not bound by any contract with the survivors, and is free to amend the Settlement Fund process anyway it wants.
But Daniel Deane, one of the Nixon Peabody attorneys representing more than 1,000 survivors, argued Friday the state made a contract with the survivors that the state is now breaking.
“It’s an express contract under the statute,” Deane said.
Assistant Attorney General Sam Garland told Kennedy that St. Hilaire got it right, and his ruling should stand. The Settlement Fund does not represent a contract between the state and the survivors, as evidenced by the fact survivors are free to walk away at any point and revive their civil lawsuits.
“It’s not even close,” Garland said.
St. Hilaire’s September ruling denied the YDC plaintiffs’ request for a preliminary injunction that would have stopped the state from enforcing Ayotte’s changes pending a possible trial. St. Hilaire’s ruling indicated he did not think the plaintiffs would be successful at trial. Kennedy’s decision on St. Hilaire’s injunction will likely be challenged by whichever side loses through a Supreme Court appeal.
The New Hampshire legislature first created the Settlement Fund in 2022 in order to try to avoid costly civil lawsuits. But survivors were unimpressed with the fund and its maximum payouts for the abuse they suffered. Some of the survivors were repeatedly raped, beaten and tortured as children by YDC employees who were then protected by their supervisors in a state-sponsored coverup.
It was clear the Settlement Fund wasn’t gaining traction with the survivors, as only about 100 claims had been filed a year into the program. According to testimony entered into the record this summer, Formella negotiated with lawyers for the survivors in 2023 and 2024 to make the Settlement Fund a more attractive option. These negotiations resulted in changes to the Settlement Fund passed by the legislature in 2024, including upping the settlement amounts, and setting up an independent administrator who would have final say over the offers. The attorneys then agreed to encourage their clients to file settlement claims rather than go through a lawsuit.
Broderick, the retired New Hampshire Supreme Court Chief Justice, was agreed on by the state and the plaintiffs’ attorneys to be the administrator. Under the 2024 law, Broderick served independently and only answered to the Supreme Court if there was a complaint about his performance. The result was 1,700 survivors agreeing to file a Settlement Fund before the June 30 deadline.
But Ayotte’s changes make the Fund Administrator a political appointee answerable to her. Additionally, Formella now has the authority to veto settlement offers made by the administrator. Deane is aware of three offers out of 15 that Formella has already vetoed. Broderick finalized all 15 of those offers after July 1 for applications made before June 30.