Richard R. Wescott v. Warden, New Hampshire State Prison

II. Does RSA 491:15 apply to trial court rulings on motions, and if so, does the trial court’s written order comply with RSA 491:15.

III. Do a judge’s prior adverse rulings against Mr. Wescott constitute “bias” that required that judge to recuse himself.

The Plaintiff seeks to enforce a class action settlement agreement between the New Hampshire Department of Corrections and a class of inmates at the New Hampshire State Prison (the “Laaman Settlement Agreement”). The issue in this appeal is whether the Parties to the Laaman Settlement Agreement (the Department and the Class) contractually agreed to provide each inmate a separate right to individually seek to enforce the Laaman Settlement Agreement.

The named Laaman Plaintiffs and their class were represented by New Hampshire Legal Assistance. Id. (preface to opinion). Ultimately, the New Hampshire Department of Corrections (“NHDOC”) entered into a consent decree with the Laaman Plaintiffs dated August 4, 1978 (the “1978 Laaman Consent Decree”). Copies of the 1978 Laaman Consent Decree, and all subsequent amendments to that Decree, are provided in the appendix to this Brief. The 1978 Laaman Consent Decree differentiated between the named Laaman Plaintiffs and other members of the Laaman Plaintiffs’ Class. See App. at 18, ¶¶1, 3 (defining “Plaintiffs” to mean “the parties named as plaintiffs... in the caption hereof”; defining “Inmates” to refer to “all members of the plaintiffs’ class as set forth [in the Consent Decree], ” and identifying 266 total inmates in the class as of July 1, 1978); App. at 16, ¶8 (“This Consent Decree shall be applicable to members of the class comprised of all inmates who are or will be incarcerated as duly convicted felons at New Hampshire State Prison....”).

This distinction is important because the 1978 Laaman Consent Decree afforded a right to enforce the agreement only to the “named plaintiffs and their counsel, ” and only after the named plaintiffs and their counsel first consult with State Prison administration or the Office of the Attorney General: In entering into this Consent Decree plaintiffs and defendants have acknowledged that it is not their intention to provide an extraordinary avenue of access to the courts to bring minute details of the New Hampshire State Prison’s day -to-day operations to the courts’ constant attention. The parties acknowledge that the size of the prison staff alone and the nature of its operations may lead to minor and isolated instances of noncompliance with the provisions of this Consent Decree which may be speedily resolved if br ought to the attention of the administration. Accordingly, the parties acknowledge that a spirit of reasonableness and cooperation should govern resolution of grievances arising under this Consent Decree. The named plaintiffs and their counsel agree to consult, where possible, with the Office of the Attorney General or the administration of the New Hampshire State Prison when a report of noncompliance comes to their attention, to allow the institution to either remedy the problem to the Plaintiffs’ satisfaction or to indicate disagreement with the report, prior to instituting litigation.

App. at 16-17, ¶9 (emphasis added). Significantly, this provision also made it clear that the Parties’ intent was not to “provide an extraordinary avenue of access to the courts to bring minute details of the New Hampshire State Prison’s day-to-day operations to the courts’ constant attention.” App. at 16.

The Laaman Plaintiffs, through their legal counsel, New Hampshire Legal Assistance, sought to enforce the Laaman Settlement Agreement on several occasions from 1978 through 2003. These actions resulted in the following amendments and modifications of the 1978 Laaman Consent Decree: (1) a May 22, 1990 modified federal consent decree; (2) a February 28, 1994 stipulation of settlement of vocational training issues; (3) an April 23, 2001 settlement agreement; and (4) a January 21, 2003 amended settlement agreement concerning the State Prison Special Housing Unit. See App. at 54; 117; 120; 129.

These amendments reiterated that the intention of the Laaman Settlement Agreement was not intended to provide an individual right to sue the State. See App. at 56, ¶8 (1990 Amendment); App. at 127, ¶32 (2001 Amendment); App. at 145, ¶46 (2003 Amendment). Although the Laaman Settlement Agreement did not provide any individual inmate a right to enforce the agreement, the agreement made it clear that neither did those inmates waive any individual claims that they had or may have in the future against the State. See App. at 88-89, ¶71 (“‘Non Waiver’ Nothing in this agreement shall be construed to waive or in any way limit or affect any claim which an individual member of the Plaintiff class may have, or may in the future have, against the Defendants, their agents or employees arising out of health care (including dental and mental health) provided or not provided to the class member.”); App. at 126, ¶31 (“No inmate shall be deemed to have waived any claim or action which he may have on his own behalf against the defendants, their agents, or their employees to remedy violations of his legal rights, based on the execution of this agreement.”); App. at 143-44, ¶¶36, 41 (“Nothing in this Amended Settlement Agreement shall be construed to waive or in any way limit or affect any claim which an individual member of the plaintiff class may now have or in the future may have against the defendants, their successors in office, agents or employees for damages or to remedy violations of such class member’s legal rights.”). The Laaman Settlement Agreement addresses numerous areas concerning minute details of the day-to-day operations of the State Prison, including sanitation standards (App. at 20); food service practices (App. at 24); fire and disaster plans (App. at 25); staffing (App. at 27); Medical staffing and evaluation practices (App. at 28); Mental health staffing practices (App. at 34); the classification system for all inmates (App. at 37); vocational training, work opportunities, and other services (App. at 39-47); visitation practices (App. at 48); and mail practices (App. at 50). Subsequent amendments to the Laaman Settlement Agreement involved even more detail regarding day-to-day operations of the State Prison. See, e.g., App. at 101 (providing for a State Prison “Print Shop” and “Tailor Shop”); App. at 105 (providing that the State Prison will generate reports regarding program enrollment); App. at 113 (providing that the State Prison will medically examine staff and inmates who are assigned to prepare or handle food); App. at 142 (providing that the State Prison will create a part- time position, as needed, for an inmate to serve as library assistant).

Mr. Wescott’s alleged breaches appear to all relate to the type or quality of mental health services that Mr. Wescott believes the State Prison should be providing. For example, Mr. Wescott believes that PTSD should be treated with “psychotherapy” that he alleges the State Prison does not provide, despite being informed that his meetings with a doctor are in-fact psychotherapy. App. at 167, 274. Similarly, Mr. Wescott believes that the State Prison does not meet medical health personnel staffing requirements in the Laaman Settlement Agreement, despite State Prison staff informing Mr. Wescott that the State Prison has positions that exceed requirements. App. at 166, 354-56.

private right of action for each individual inmate to seek to enforce its terms as they see fit. 3 App. at 5-10.

On August 14, 2022, the trial court (Kissinger, J.) granted the State’s motion to dismiss “for the reasons set out in the [State’s] motion.” App. at 1.

Mr. Wescott moved for reconsideration, which the trial court denied. This appeal followed.

As a matter of contract law, the Laaman Settlement Agreement does not create a private right of action for each individual inmate at the State Prison to individually seek to enforce the agreement. The State and the Laaman Plaintiffs entered into the Laaman Settlement Agreement to resolve class-wide claims that State Prison conditions violated the constitutional rights of State Prison inmates. The Laaman Settlement Agreement has been amended subsequently, and each amendment was the product of a class-wide enforcement action brought by Laaman Plaintiffs who were represented by class counsel. See, e.g., App. at 54 (plaintiffs were represented by New Hampshire Legal Assistance); 118 (same); 127 (same); 161 (same).

With this background in mind, the Laaman Settlement Agreement differentiates between “plaintiffs” being represented by counsel and “inmates” or “members of the plaintiffs’ class.” App. at 18. The Laaman Settlement Agreement sets forth how the agreement may be enforced, and it provides a right to enforce the agreement only to the “named Plaintiffs and their counsel.” See App. at 16-17, ¶9. Recognizing that the Laaman Settlement Agreement does not provide a private right of action to every individual inmate or class member to seek to enforce the agreement’s terms, the Laaman Settlement Agreement expressly provides that no individual inmate waives any private right of action that they may otherwise have against the State. See App. at 88-89, 126, 143-44. Read together, the intent of the parties to the Laaman Settlement Agreement is clear. Because the Laaman Settlement Agreement addresses prison-wide conditions and operations that necessarily have an effect on all inmates at the State Prison, the agreement can only be enforced by the Laaman Plaintiffs through class counsel. This ensures that the party seeking to enforce the Laaman Settlement Agreement has a fiduciary duty to enforce the agreement in a manner that protects the interests of the entire class of inmates at the State Prison. See, e.g., In re New Motor Vehicles Canadian Exp. Antitrust Litig., 800 F. Supp. 2d 328, 333 (D. Me. 2011) (recognizing that in class actions, “named plaintiffs owe fiduciary duties to absent class members” (quotation omitted)).

Conversely, although individual inmates do not have a right to seek to enforce the Laaman Settlement Agreement however they see fit, each inmate retains their right to bring claims that they otherwise hold, such as alleged violations of their constitutional rights, against the State. By not giving individual inmates the right to individually enforce the agreement, the Laaman Settlement Agreement ensures that there will not be endless litigation with conflicting results that do not protect the interests of the entire class of inmates.

In reviewing a motion to dismiss, this Court’s standard of review “is whether the allegations in the plaintiff’s pleadings are reasonably susceptible of a construction that would permit recovery.” Sanguedolce v. Wolfe, 164 N.H. 644, 645 (2013). The Court assumes the plaintiff's pleadings to be true and construe all reasonable inferences in the light most favorable to him. Id. However, the Court need not assume the truth of statements in the plaintiff's pleadings that are merely conclusions of law. Id. The Court then engages in a threshold inquiry that tests the facts in the writ against the applicable law, and if the allegations do not constitute a basis for legal relief, the Court must affirm the trial court’s grant of a motion to dismiss. See id. The Court may also consider “documents the authenticity of which are not disputed by the parties, official public records, or documents sufficiently referred to in the complaint.” Automated Transactions, LLC v. Am. Bankers Ass’n, 172 N.H. 528, 532 (2019). The interpretation of a contract is a question of law, which this Court reviews de novo. In the Matter of Taber-McCarthy & McCarthy, 160 N.H. 112, 115 (2010). When interpreting a written agreement, the Court gives the language used by the parties its reasonable meaning, considering the circumstances and the context in which the agreement was negotiated, and reading the document as a whole. Id. Absent ambiguity, the Court determines the parties’ intent from the plain meaning of the language used in the contract. Id.

If the agreement’s language is ambiguous, the Court must determine, “under an objective standard, what the parties, as reasonable people, mutually understood the ambiguous language to mean.” Id. (quotation omitted). In applying the objective standard, the Court “should examine the contract as a whole, the circumstances surrounding execution and the object intended by the agreement, while keeping in mind the goal of giving effect to the intention of the parties.” Id. at 115-16.

The Laaman Settlement Agreement does not allow individual inmates at the State Prison, such as Mr. Wescott, to individually seek to enforce the agreement however they see fit.

The Laaman Settlement Agreement provides that “plaintiffs and defendants acknowledge that it is not their intention to provide an extraordinary avenue of access to the courts to bring minute details of the New Hampshire State Prison’s day-to-day operations to the courts’ constant attention.” App. at 16; see also App. at 56, ¶8 (same); App. at 127, ¶32; App. at 145, ¶46. To that end, the Laaman Settlement Agreement sets forth how the agreement may be enforced, and it provides a right to enforce the agreement only to the “named Plaintiffs and their counsel.” App. at 16-17, ¶9; App. at 56, ¶8; App. at 127; App. at 145, ¶146. Specifically, the agreement provides that the “named plaintiffs and their counsel agree to consult, where possible, with the Office of the Attorney General or the administration of the New Hampshire State Prison when a report of noncompliance comes to their attention, to allow the institution to either remedy the problem to the Plaintiffs’ satisfaction or to indicate disagreement with the report, prior to instituting litigation.” App. at 16-17, ¶9 (emphasis added). Each amendment to the Laaman Settlement Agreement included a similar provision, repeating that the agreement is to be enforced by the “plaintiffs” after first attempting to remedy any alleged noncompliance with the Attorney General’s Office or State Prison administration. App. at 56, ¶8; App. at 127; App. at 145, ¶146. The Laaman Settlement Agreement differentiates between the “plaintiffs” on the one hand, and “inmates” and “members of the plaintiffs’ class” on the other hand. The agreement defines “Plaintiffs” as “the parties named as plaintiffs... in the caption hereof.” App. at 18. Conversely, the agreement defines “Inmates” as “all members of the plaintiffs’ class, ” which the agreement defines as “all inmates who are or will be incarcerated as duly convicted felons at New Hampshire State Prison and are or will be in the custody of the Warden or any other person or agency who in the future may receive custody of such inmates.” App. at 18. Read together, the Laaman Settlement Agreement distinguishes between named plaintiffs acting on behalf of the class and individual inmates who belong to the class at large, and the agreement provided a right to enforce it only to “named plaintiffs” acting through class counsel. In other words, the Laaman Settlement Agreement clearly provides that it is to be enforced only by a named plaintiff representing the entire plaintiff class, through class counsel—not by every individual inmate who is merely a member of the plaintiffs’ class. Allowing every individual inmate to seek to enforce any alleged violation of the Laaman Settlement Agreement would effectively “provide an extraordinary avenue of access” for inmates to “bring minute details of the New Hampshire State Prison’s day-to-day operations to the courts’ constant attention, ” thereby frustrating the express intent of the agreement. App. at 16-17, ¶9.

Because Mr. Wescott is not a named plaintiff, is not seeking to represent the class, and is not represented by class counsel, the Laaman Settlement Agreement does not provide him a private right to enforce the agreement.

The purpose of the Laaman Settlement Agreement was to effect prison-wide changes to prison operations—not to address the particular grievances any individual inmate might have. For example, the Laaman Settlement Agreement addresses numerous areas concerning minute details of the day-to-day operations of the State Prison, including sanitation standards (App. at 20); food service practices (App. at 24); fire and disaster plans (App. at 25); staffing (App. at 27); Medical staffing and evaluation practices (App. at 28); Mental health staffing practices (App. at 34); the classification system for all inmates (App. at 37); vocational training, work opportunities, and other services (App. at 39-47); visitation practices (App. at 48); and mail practices (App. at 50).

If every inmate had a right to seek judicial review of all of these varied and detailed areas of day-to-day prison operations, there would be a great risk of conflicting judicial decisions regarding how the prison should be administered. Moreover, each inmate will have interests that will conflict with the interests of other inmates. For example, Mr. Wescott wants this Court to decide minute details of prison operations, such as what illness-specific training NHSP mental health personnel must possess and what types of mental health treatment they should provide to inmates with post-traumatic stress disorder—a decision that implicates the mental health treatment provided to numerous other inmates at NHSP. See App. at 144, 253 (Mr. Wescott complaining about what qualifications he believes NHSP and contract medical personnel should have to treat specific mental illnesses, including which medical treatments those personnel should prescribe). Although a judgment would affect every inmate at the State Prison with PTSD, Mr. Wescott as an individual has no duty to consider or protect the interests of other inmates at the State Prison. Conversely, interpreting the Laaman Settlement Agreement to allow only named plaintiffs through class counsel to enforce the agreement ensures that the interests of the entire plaintiff class are fairly and adequately protected by any resulting judgment or settlement. See, e.g., State Employees’ Ass’n of N.H., Inc. v. Belknap County, 122 N.H. 614, 623 (1982) (explaining that to represent a class, the named plaintiffs must be able to “fairly and adequately protect the interests of the class”); In re New Motor Vehicles Canadian Exp. Antitrust Litig., 800 F. Supp. 2d at 333 (recognizing named plaintiffs in class actions owe fiduciary duties to absent class members).

In sum, interpreting the Laaman Settlement Agreement as a whole, the Parties intended that only the named plaintiffs through class counsel could enforce the agreement. This ensures that the agreement can only be enforced in a manner that fairly and adequately protects the interests of all inmates at the State Prison. This also prevents there being conflicting judgments regarding how the State Prison must be operated on a day-to-day basis.

If every inmate had a right to seek judicial review of all the varied and detailed areas of day-to-day prison operations, all inmates would have an extraordinary avenue of access to the courts to challenge day-to-day prison operations. This necessarily conflicts with the Laaman Settlement Agreement’s express statement that it was not the intent of the parties to provide such a right. See, e.g., App. at 16-17, ¶9; App. at 56, ¶8. Absent the Laaman Settlement Agreement, an inmate would ordinarily need to allege a constitutional violation to maintain an action against the State. See, e.g., Wilson v. Seiter, 501 U.S. 294, 304 (1991) (affirming dismissal of an inmate’s claims because allegations of “inadequate cooling, housing with mentally ill inmates, and overcrowding” could not constitute a “serious deprivation” of the inmate’s Eighth Amendment rights). However, four different inmates in this State have separately alleged the State breached the Laaman Settlement Agreement for violations such as “failure to have a tailor program, ” not providing “hobby craft, ” not providing “full time” education, not providing “hands on” vocational training, and not providing a “weight room, ” 4 despite the fact that these violations could not separately support a constitutional claim against the State. In another pending case, an inmate filed a petition to enforce the Laaman Settlement Agreement after the State moved to dismiss the inmate’s statutory and constitutional violations, and the petition to enforce the Laaman Settlement Agreement remains pending despite the Superior Court having dismissed the inmate’s statutory and constitutional violations.5 Given the breadth and detail of the Laaman Settlement Agreement, interpreting the Laaman Settlement Agreement to allow every inmate an individual right to file a breach of contract action to challenge day-to-day prison operations would necessarily result in “an extraordinary avenue of access” for inmates to “bring minute details of the New Hampshire State Prison’s day-to-day operations to the courts’ constant attention.”

Recognizing that individual inmates cannot have an individual right to seek to enforce the Laaman Settlement Agreement without creating such an extraordinary avenue of access to the courts to enforce the agreement as Laaman Settlement Agreement made it clear that no individual inmate waived any private right of action they may have against the State. The amendments to the agreement repeatedly recognize that “based on the execution of this agreement, ” “[n]o inmate shall be deemed to have waived any claim or action which he may have on his own behalf against the defendants, their agents, or their employees to remedy violations of his legal rights.” App. at 88-89, ¶71 (emphasis added); App. at 126, ¶31; App. at 143-44, ¶¶36, 40. In other words, individual inmates neither have the right to enforce the Laaman Settlement Agreement nor are individually bound by the agreement.

Interpreting the Laaman Settlement Agreement to provide an enforcement right to individual inmates is particularly unreasonable in light of the fact that the Laaman Settlement Agreement does not expressly provide how long the agreement is to be effective. But see IBM Corp. v. Khoury, 170 N.H. 492, 514 (2017) (when a contract is silent as to a time period for performance, the contract impliedly requires performance within a “reasonable time”); Fraternal Order of Police Lodge No. 52 v. Elkhart, 551 N.E.2d 469, 472 (Ind. Ct. App. 1990) (under Indiana law, “a contract providing for continuing performance and which has no termination date, or which provides that it will last indefinitely, is terminable at will by either party” even “if the contract had expressly provided for an indefinite duration” (quotation omitted)).

Put differently, the Laaman Settlement Agreement cannot reasonably be interpreted as the State agreeing to provide every inmate for the indefinite future the right to bring a contract action against the State based on violations that would not otherwise be actionable. This is precisely why the Parties expressly stated that the agreement was not intended to “provide an extraordinary avenue of access” for inmates to “bring minute details of the New Hampshire State Prison’s day-to-day operations to the courts’ constant attention.” This language must be given effect, which requires the Laaman Settlement Agreement to be interpreted to foreclose individual inmates from bringing individual contract actions against the State.

Mr. Wescott additionally argues that the trial court failed to issue a written decision upon request, contrary to RSA 491:15. Pl. Br. at 17-18. RSA 491:15 provides that the “court or justice trying causes under RSA 491:13 and 491:14 shall, if either party requests it, give his decision in writing, stating the facts found and his rulings of law, which shall be filed and recorded.” RSA 491:13 refers to Superior Court’s authority to try bench trials, and RSA 491:14 refers to the Superior Court’s authority to try suits in equity. See M.A. Cowley Trucking, Inc. v. Moyers, 140 N.H. 190, 195 (1995) (explaining that RSA 491:15 requires the court to issue written decisions, upon request, “in jury-waived and non-jury cases heard in accordance RSA 491:13 and RSA 491:14, respectively”). Neither RSA 491:13 nor RSA 491:14 applies when the Superior Court rules on a motion to dismiss. Even if RSA 491:15 applied, the Court issued a written decision that stated the reason for granting dismissal. See App. at 1-13. (Court’s margin order stating that it granted dismissal “for the reasons set out in the motion, ” which motion explained in detail why dismissal was required).

Mr. Wescott additionally argues that the trial court erred because Judge Kissinger has “continuing bias against the appellant.” Pl. Br. at 18. 6 Mr. Wescott appears to allege that Judge Kissinger is biased based solely on certain decisions in this underlying matter and in other matters in which Judge Kissinger made decisions that were adverse to Mr. Wescott. Pl. Br. at 18-22. However, this Court has recognized that judicial rulings alone, whether in current or prior proceedings, “almost never constitute a valid basis for a bias or partiality motion.” In re C.M., 166 N.H. 764, 776 (2014) (quotation omitted); see also State v. Bader, 148 N.H. 265, 271 (2002) (“Adverse rulings against the defendant in the same or a prior judicial proceeding do not render the judge biased.” (quotation omitted)). Accordingly, Mr. Wescott has not identified any valid reason that would have required Judge Kissinger to recuse himself.

Therefore, Mr. Wescott has not demonstrated reversible error. See Gallo v. Traina, 166 N.H. 737, 740 (2014) (stating that the appealing party has “the burden of demonstrating reversible error”).

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the judgment below.

The State does request a fifteen-minute oral argument.

I, Brendan A. O’Donnell, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 4, 464 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

Date: February 10, 2023 /s/ Brendan A. O’Donnell Brendan A. O’Donnell

I hereby certify that a copy of the State’s brief was conventionally mailed to Mr. Wescott at:

Date: February 10, 2023 /s/ Brendan A. O’Donnell Brendan A. O’Donnell