By DAMIEN FISHER, InDepthNH.org
Gov. Kelly Ayotte’s changes to the structure of the Sununu Youth Services Center (YDC) Settlement Fund fundamentally changed the deal thousands of survivors thought they were getting, according to a new brief filed with the New Hampshire Supreme Court.
A day after the deadline for the YDC survivors to file settlement claims with the Fund, Ayotte’s changes that stripped the independence from the Fund administrator and gave veto power to Attorney General John Formella went into effect.
“The timing was not coincidental. Only after the ‘vast majority’ of the YDC victims had opted into the settlement fund did the State move to unilaterally alter the bargain in fundamental ways,” attorney Daniel Deane wrote in the brief filed this week.
Deane, with Nixon Peabody, represents the 2,000 adult YDC survivors in a class action lawsuit who stopped their civil lawsuits and filed claims before the deadline under the belief that the YDC Fund had the authority to act independently and free from political pressure.
Deane and the survivors are challenging Merrimack Superior Court Judge James Kennedy’s dismissal of their lawsuit. Kennedy, who was forced to take over the case last year from Judge Daniel St. Hilaire, dismissed the survivor’s lawsuit in January with little explanation.
“[The] Court does not find that the facts as alleged in the complaint constitute a basis for relief,” Kennedy wrote.
If the New Hampshire Supreme Court sides with the survivors, that could pave the way for a trial in Superior Court, and an injunction against the state from enforcing Ayotte’s changes to the Fund.
Former Chief Justice John Borderick left the position last year when the changes were made, saying his independent position no longer existed. When Broderick took the job, the Fund Administrator answered to the Supreme Court and had the authority to make final decisions on settlement cases and amounts. Ayotte’s changes make the position answerable to her, and give Formella the authority to veto any settlements. Formella got to work immediately and vetoed 20 percent of Broderick’s settlements, according to court records.
Broderick testified these changes allow the state to avoid responsibility for the decades of physical and sexual abuse covered up under the YDC juvenile detention system.
“It is fundamentally wrong . . . for an interested party, in this case, the State of New Hampshire, through its employees, [which] abused people for over 50 years when they were children, to be able to say to them in a trauma informed, victim centered process, ‘I know you got an award, but we don’t agree you’re going to keep it.’ That’s not trauma informed. That’s trauma inducing,” Broderick testified last year.
Kennedy’s ruling relied largely on the decision handed down last September by Judge Daniel St. Hilaire. St. Hilaire’s September ruling essentially found that the state is not bound by any agreement concerning the YDC Settlement Fund’s operating rules.
St. Hilaire took himself off the case months after the ruling when survivors demanded to know if he had a conflict of interest. St. Hilaire denies that he’s applied for the then-open Supreme Court seat. Ayotte, the most prominent named defendant in the YDC Settlement Fund lawsuit, makes the final choice on Supreme Court applicants.
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.
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 in the Settlement Fund before the June 30 deadline.