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

Whether an individual inmate, not a named plaintiff, may bring an action, on their own behalf, seeking to enforce the Laaman Settlement Agreement, as amended.

New Hampshire Legal Assistance (NHLA) is a non-profit law firm working to make justice a reality for and with people who experience economic hardship that threatens their basic human needs. NHLA has a history of providing both individual representation and systemic advocacy, including extensive class action litigation on behalf of our State’s most vulnerable residents. From 1976 through 2013, NHLA represented the Laaman class. See NHLA Appendix Volume II (NHLA App. II) at 105-106 (explanation of NHLA advocacy). Since then, the class has not been able to retain counsel.

Having devoted almost forty years to representation of the Laaman class, NHLA is in a unique position to provide its view on the question presented by this Court.

U.S. Constitution, Amendment VIII. Excessive Bail, Fines, Punishments Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

New Hampshire Constitution – Part 1, Article 14 [Legal Remedies to be Free, Complete, and Prompt.] Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

491:8 Actions Against State. – The superior court shall have jurisdiction to enter judgment against the state of New Hampshire founded upon any express or implied contract with the state, including specific performance and other equitable remedies that are not limited to money damages. Any action brought under this section shall be instituted by bill of complaint and shall be tried by the court without a jury. The jurisdiction conferred upon the superior court by this section includes any set-off, claim or demand whatever on the part of the state against any plaintiff commencing an action under this section. The attorney general, upon the presentation of a claim founded upon a judgment against the state, shall submit the claim to the department or agency which entered into the contract, and said department or agency shall manifest said claim for payment from the appropriation under which the contract was entered into; provided, that if there is not sufficient balance in said appropriation, the attorney general shall present said claim to the general court for the requisite appropriation.

Fed. R. Civ. P. 23 on Class Actions (iv) the resources that counsel will commit to representing the class; (B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class; (C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs; (D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and (E) may make further orders in connection with the appointment. (2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class. (e) A plain error that affects substantial rights may be considered and corrected by the court of its own initiative or on the motion of any party. (f) The clerk may refuse to accept, by notification in writing, any filing that the clerk determines does not comply with these rules. In the event an objection is made to such determination, a written motion may be made to the court to rule on such determination. The written notification shall state: (1) all the reasons why the filing is not being accepted; and (2) that in the event the filing party objects to such determination, a written motion shall be made to the court to rule on such determination within 15 days of the date of the notification.

Super. Ct. Civ. R. 15. Intervention Any person shown to be interested may become a party to any civil action upon filing and service of an Appearance and pleading briefly setting forth his or her relation to the cause; or, upon motion of any party, such person may be made a party by order of court notifying him or her to appear therein. If a party, so notified, neglects to file an Answer or other responsive pleading on or before the date established by the court, that party shall be defaulted. No such default shall be set aside, except by agreement or by order of the court upon such terms as justice may require. Super. Ct. Civ. R. 16. Class Actions (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all if: (1) The class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable; (2) There are questions of law or fact common to the class which predominate over any questions affecting only individual members; (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) The representative parties will fairly and adequately protect the interests of the class; (5) A class action is superior to other available methods for the fair and efficient adjudication of the controversy; and (6) The attorney or non-attorney representative for the representative parties will adequately represent the interests of the class. (b) Order Allowing Class Action. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional and may be altered or amended before the decision on the merits on the court’s own motion or on motion of the parties. The action may be maintained as a class action only if the court finds that the prerequisites under section (a) of this rule have been satisfied. (c) Satisfaction of Jurisdictional Damages Limit. For purposes of satisfying the jurisdictional damages limit of the court, the claims of the members of the class shall be aggregated.

(d) Description of Class. The order permitting a class action shall describe the class. When appropriate the court may limit the class to those members who do not request exclusion from the class within the specified time after notice.

(e) Notice of Class Action. Following the court’s order maintaining the class action, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (1) the court will exclude that party from the class if that party so requests by a specified date; (2) the judgment, whether favorable or not, will include all members who do not request exclusion; (3) any member who does not request exclusion may, if that party desires, enter an Appearance through that party’s counsel; and contain such other information that the court deems appropriate. Unless the court orders otherwise, the representatives of the class shall bear the expense of notification and be responsible for the giving of the notice to members of the class.

(f) Exclusion. Any member of the plaintiff class who files an election to be excluded in the manner and in the time specified in the notice, is excluded from and not bound by the judgment in the class action. A member of a defendant class may not elect to be excluded.

(g) Judgment. The judgment in an action maintained as a class action, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class.

(h) Methods of Payment of Damages. If the court renders judgment in favor of a plaintiff class, the court may, in its discretion, order the defendant to pay damages into the court and require each member of the class to file a claim with the court, or order payment of damages in any other manner it deems appropriate.

(i) Actions Conducted Partially as Class Actions. When appropriate, an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class. The provisions of this subdivision shall then be construed and applied accordingly.

(j) Orders in Conduct of Class Actions. In the conduct of class actions the court may make and alter appropriate orders: (1) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) Requiring, for the protection of the members of the class, or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, or to appear and present claims or defenses, or otherwise to come into the action; or (3) Dealing with similar procedural matters.

(k) Dismissal, Discontinuance or Settlement. A class action shall not be dismissed, discontinued or settled without the approval of the court. Notice of the proposed dismissal, discontinuance or settlement shall be given to all members of the class in such manner as the court directs.

District Judge Bownes consolidated those actions in 1976. Id. at 33, 34, 57. The consolidated actions included one lawsuit brought by Edgar Clifford Avery Jr. Id. at 4. Mr. Avery is an official Laaman “named Plaintiff” who is currently litigating a Laaman enforcement action in the New Hampshire Superior Court. NHLA App. II at 30, 39.

In the consolidated Laaman litigation, the inmates alleged violations of the Eighth Amendment of the U.S. Constitution related to their conditions of confinement. The claims were vindicated in a sweeping federal court decision that found, inter alia: The totality of the conditions of confinement, including, but not limited to, the traumatic introduction to prison life in the quarantine period, the failure to diagnose, classify and separate the violent, deranged and diseased from the general population, the lack of adequate medical and mental health care services, the pervasive idleness and inactivity of inmates, both with and without jobs, the scarcity of any meaningful vocational training, educational, recreational or religious programs, the lack of sufficient personnel for the medical, mental health, work, vocational and educational services, the restrictions on visitation, … the disregard for the safety of the inmates in terms of fire or other general emergency, … leads this court to conclude that, as a result of their incarceration at NHSP, plaintiffs lose whatever useful and acceptable skills and attitudes they had before they entered prison and become entrapped in the criminal culture. Deep anger and hatred of the society that relegates prisoners in the name of reform to cages with nothing to do, frustration and hostility engendered by false promises, and the loss of pride and self-esteem inherent in such a degrading experience spawn anti- authoritarian and often violent criminal behavior.

Laaman v. Helgemoe, 437 F. Supp. 269, 324-325 (D.N.H. 1977).

The federal court in Laaman specifically concluded, inter alia: 1) medical services and facilities at the prison “endanger the lives and health of the prison community, ” 2) “isolation cells at NHSP violate the Eighth Amendment’s proscription against cruel and unusual punishment, ” 3) “[t]here is a clear and present danger of serious loss of life of both inmates and staff at NHSP due to the combined effects of a partially combustible physical plant, inadequate fire protections…., ” and 4) conditions in the prison kitchen are “deplorable” and “the food services have been a danger to the health and safety of the inmates and staff.” Laaman, 437 F. Supp at 323-24.

Based on these findings, the federal court ordered the State to make specific improvements in programs, services, facilities and conditions of confinement at the prison. Id. at 325-330. Those improvements included orders relating to mental health care. Id. at 328. Over time, the parties entered into a series of consent decrees and settlement agreements which gave form to the rights the inmates secured as a result of the landmark Laaman decision. In this brief, NHLA will use the term “Laaman Settlement Agreement” as the Defendant defined that term in its Motion to Dismiss Mr. Westcott’s case. DOC App. at 6, ¶ 9.1 The Laaman Settlement Agreement includes specific requirements to ameliorate the illegal and inhumane prison conditions described by Judge Bownes. For instance, that Agreement mandates mental health services -- mental health services which Mr. Westcott claims he needs and that the Defendant has failed to provide. DOC App. at 36-38; 83-87; 122-129 (mental health-related provisions); 167 (Mr. Westcott’s allegation in his Complaint that “[v]iolative to the Laaman Consent Decree, the plaintiff has not received adequate ‘evidence-based’ mental health care to treat his serious diagnosed mental health illness of severe PTSD…”) II. Instant Litigation Brought by Mr. Westcott Richard Westcott brought the case on appeal on March 23, 2023. DOC App. at 164. Mr. Westcott claimed that, in violation of the Laaman Consent Decree, he did not receive the mental health services necessary to treat his severe Post Traumatic Stress Disorder (PTSD). Id. at 167. Mr. Westcott says that he did not receive appropriate treatment and as a result,

1The Defendant explained that: “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 New Hampshire State Prison Special Housing Unit (these agreements, together with the 1978 Laaman Consent Decree, will collectively be referred to as the ‘Laaman Settlement Agreement’).” DOC App. at 6, ¶ 9. his mental health declined to the extent that he attempted to kill himself. DOC App. at 167. Westcott’s requested relief included a court order for the “DOC to immediately come into compliance with all mandates of Laaman.” Id. at 171.

Based on the Laaman Settlement Agreement, Mr. Westcott states that he is seeking improvements in mental health services at the prison. Id. at 167-172. Those improvements would benefit other members of the Laaman class as well. So, although Mr. Westcott states that he is not attempting to represent a class – Westcott Appendices for Notice of Appeal at 20 – the relief he seeks is not limited to him individually. The Defendant itself recognizes that Mr. Westcott is seeking a judicial decision “that implicates the mental health treatment provided to numerous other inmates at NHSP” and also that a judgment in Mr. Westcott’s case “would affect every inmate at the State Prison with PTSD…” DOC Brief at 19. The Defendant DOC Warden filed her Motion to Dismiss on July 19, 2022. Id. at 3. The Defendant sought dismissal for “three independent reasons”: (1) the Plaintiff is not a party to the Laaman Settlement Agreement because he did not have legal standing to be a class member when the class was certified in 1976; (2) by its terms, only the named Laaman plaintiffs through class counsel can enforce the Laaman Settlement Agreement, which agreement does not create a private right of action for individual inmates to seek to enforce its terms; and (3) the Plaintiff cannot bring an action on behalf of the entire Laaman class because he is self-represented and cannot fairly and adequately represent the interests of the class.

Id. at 3-4. The trial court granted the order without any explanation of its decision other than the notation on Defendant’s motion: “Granted for the reasons set out in the motion. Case is dismissed.” Id. at 3. Mr. Westcott appealed.

III. Pending Avery v. Hanks Superior Court Litigation Clifford Avery is one of the original Named Plaintiffs in the federal Laaman litigation. NHLA App. I at 31. In 2018, Mr. Avery brought a new lawsuit in the Merrimack County Superior Court against the DOC Commissioner. NHLA App. II at 39. This Court has summarized Mr. Avery’s classwide allegations: In July 2018, Avery filed a “Petition for Enforcement of a Settlement Agreement, ” suing the department for breach of contract and seeking specific performance of the Laaman Settlement Agreement. Avery makes numerous allegations that conditions at the NHSP violate the terms of the Laaman Settlement Agreement. For example, Avery alleges that portions of the ventilation systems in multiple housing units are deteriorating and contain holes and rust, causing the circulation of “noxious and/or unhealthy air.” He alleges that the prison is overcrowded with more than double the population permitted by relevant standards and that there is a lack of required toilet facilities, both of which contribute to the “the decrepit state of these housing units.” He alleges that the NHSP pharmacy cannot fill prescriptions in a timely manner, that required programs are not being offered or are significantly understaffed, and that required inspections are not being undertaken. He alleges that “[c]ontaminated waste water, i.e., biological matter, ” leaks onto food preparation areas, meals, and the floor of the Food Service Department, and that the attempt to resolve this issue involved putting up tarps and hoses under the leak, which merely funnel the waste water directly onto the floors of the Food Service Department. Among other contentions, Avery additionally alleges that required counseling services, such as marital counseling, aggression management, and a pre-release program, are not being provided.

Avery v. Commissioner, 173 N.H. 726, 729-730 (2020). The defendant Commissioner of DOC twice moved to dismiss Mr. Avery’s lawsuit. NHLA App. II at 31 and 33. The DOC Commissioner first moved to dismiss by asserting sovereign immunity and that Mr. Avery lacked standing to sue for breach of the Laaman Settlement Agreement. 173 N.H. at 730. This Court reversed the trial court’s dismissal. 173 N.H. at 726. Noting that the New Hampshire General Court had recently enacted RSA 491:8, this Court first concluded that “the State has waived sovereign immunity for Avery’s action for breach of the Laaman Settlement Agreement.” 173 N.H. at 733. The Court then found that Mr. Avery does have constitutional standing to sue the DOC Commissioner for breach of the Laaman Settlement Agreement: As a party to a contract that he alleges has been breached, Avery has sufficiently demonstrated that he has suffered a legal injury against which the law was designed to protect…Avery has shown that his own rights, as a party entitled to enforce the promises made by the DOC in the Laaman Settlement Agreement, have been directly affected by the DOC’s alleged breaches… We, therefore, hold that Avery has standing to bring his breach of contract action against the department. Subsequent to remand, the defendant Commissioner again attempted to dismiss Mr. Avery’s lawsuit. NHLA App. II at 33. The superior court invited NHLA’s amicus participation on questions involving pro se enforcement of the Laaman Settlement Agreement, and NHLA provided its perspective. NHLA App. II at 93-114. Specifically, NHLA explained that Mr. Avery can enforce the Laaman Settlement Agreement as a pro se litigant. Id. at 99-103. Based on NHLA’s arguments, the superior court denied the DOC Commissioner’s second motion to dismiss Mr. Avery’s litigation. Id. at 115-116. Shortly thereafter, Mr. Avery filed a Motion for Class Action Status and to Appoint Counsel on February 10, 2023. Id. at 37. The defendant filed a Motion to Stay Mr. Avery’s Superior Court action, citing the pendency of this appeal. Id. at 117. That Motion to Stay did not succeed, and the Avery litigation proceeds. The defendant DOC Commissioner filed her Answer to Mr. Avery’s lawsuit on June 30, 2023. Id. at 38.

IV. Other Laaman-Related Litigation Pending in the Merrimack County Superior Court Nathan Albertson, Josiah Davies, Dale Holloway, Shawn Murphy, and Joshua Riff have all filed lawsuits in Merrimack County Superior Court to enforce the Laaman Settlement Agreement. NHLA App. II at 120-173; DOC App. at 423. Litigants Albertson, Davies, Murphy and Riff appear to be raising identical claims. DOC sought stays of all of these other lawsuits pending the outcome of Mr. Westcott’s appeal. See, for instance, NHLA App. II at 173. Unlike in Mr. Avery’s case, the DOC succeeded in putting multiple inmate lawsuits “on hold” pending the outcome of this appeal. Id. at 123, 133, 159, 172.

The Defendant claims that pro se inmates cannot bring a class action, arguing that the Laaman Settlement Agreement “can only be enforced by the Laaman Plaintiffs through class counsel.” DOC Brief at 14. The Defendant also claims that individual inmates should not be able to enforce their rights either, for fear of multiple inmate lawsuits potentially leading to “conflicting judicial decisions regarding how the prison should be administered.” Id. at 18. If Defendant is correct, the Laaman Settlement Agreement is completely unenforceable in a scenario where counsel is not available. According to the DOC, a pro se individual cannot bring a class action to enforce the Laaman Settlement Agreement, and an individual inmate thwarted from bringing a class action cannot enforce his own rights under the Settlement Agreement on an individual basis. Defendant is wrong. The Laaman Settlement Agreement does not limit its enforcement to the original Laaman “Named Plaintiffs, ” acting through “class counsel.” New Hampshire’s Superior Court Civil Rule 16(a)(6) explicitly authorizes pro se individuals to bring class action litigation. The superior court’s decision to grant the Defendant’s motion to dismiss was legally erroneous for at least those reasons. The Merrimack County Superior Court also unsustainably exercised its discretion by dismissing Mr. Westcott’s lawsuit without convening a joint case management conference to determine how to best adjudicate the multiple Laaman enforcement cases pending in the New Hampshire Superior Court. Numerous inmates are litigating separate actions in the Merrimack County Superior Court to challenge their conditions of confinement at the New Hampshire State Prison. NHLA App. II at 30, 120, 132, 145, 158, 171. When confronted with the same situation in 1975, Judge Bownes recognized the potential for chaotic litigation and conflicting orders, and thus treated multiple inmate lawsuits in a coordinated and ultimately consolidated manner. NHLA App. I at 57. The trial court should have done likewise. This Court should reject the DOC’s efforts to avoid its obligations under the Laaman Settlement Agreement and remand this litigation with instructions for the Merrimack County Superior Court to conduct a consolidated case management conference to determine how best to adjudicate the multiple individual cases on their merits.

The superior court committed an unsustainable exercise of discretion in its adjudication of the specific question presented to amicus. The superior court also erred as a matter of law in its ruling (by notation) on the legal issues raised in the Defendant’s Motion to Dismiss. NHLA will address these inter-related topics. 2 If the DOC prevails in its efforts to prevent inmates’ pro se enforcement of the Laaman Settlement Agreement, the safety of the inmates and their rehabilitative efforts may be severely compromised.

The unsustainable exercise of discretion standard means that this Court will overturn the trial court’s dismissal if the court’s ruling was “clearly untenable or unreasonable to the prejudice of [the litigant’s] case.” Matter of McAndrews, 171 N.H. 214, 218 (2018)(quotation omitted). At least seven individual inmates (Richard Westcott, Clifford Avery, Nathan Albertson, Josiah Davies, Dale Holloway, Shawn Murphy, and Joshua Riff) are each, on a pro se basis, attempting to enforce inmate rights under the Laaman Settlement Agreement at a time when NHLA is no longer able to provide classwide representation. The superior court untenably overlooked the relevant factor of the multiple lawsuits in its adjudication of Mr. Westcott’s case. If not reversed on appeal, the trial court’s ruling is unreasonably prejudicial to a pro se inmate trying to secure mental health services.

Further, by responding to the multiple Laaman enforcement lawsuits in a piecemeal way, the superior court unsustainably overlooked its own duty to construe and administer its own rules “to secure the just, speedy, and cost-effective determination of every action.” Super. Ct. Civ. R. 1. Unlike Fed. R. Civ. P. 23(g)(4), Super. Ct. Civ. Rule 16 expressly allows for class action litigation by a pro se individual. The interests of justice and judicial economy would be served by the superior court convening a joint case management conference that includes the seven pending cases in the Superior Court in which inmates at the NHSP are alleging substantial violations of the Laaman Settlement Agreement.

The Defendant argues that permitting Mr. Westcott to attempt to enforce the Laaman Settlement Agreement on his own behalf would likely lead the superior court to issue multiple orders which contradict one another. DOC Brief at 18. This is exactly why the proper course of action would have been for the trial court to hold a joint case management conference for all parties in the multiple pending cases which each seek to enforce the Laaman Settlement Agreement for the purpose of considering: 1) which of the cases should be consolidated; 2) whether the consolidated cases meet the prerequisites for class certification set forth in Superior Court Rule 16(a); and 3) which of the plaintiffs in these actions would be appropriate class representatives under Super. Ct. Civ. R. 16(a)(4). With at least seven pending actions in which the plaintiffs are attempting to enforce the Laaman Settlement Agreement the trial court should at least have considered whether a class action would be “…… superior to other available methods for the fair and efficient adjudication of the controversy” (Super. Ct. Civ. R. 16(a)(5)). A class action would avoid the potential of having inconsistent or conflicting rulings on similar inmate claims. Moreover, class certification, after notice to the inmates, would potentially benefit the trial court and the Defendant through issuance of an order which will be binding in future cases.

Enforcement of the Laaman Settlement Agreement as requested by Mr. Westcott would benefit numerous inmates at the New Hampshire State Prision who are in need of mental health care. The trial court’s decision to handle his claim on a piecemeal basis, if followed in the other pending cases, threatens to deprive all members of the Laaman class who suffer from serious mental conditions of the hard won and essential benefits obtained in the Settlement Agreement. The failure of the trial court to consider Mr. Westcott’s claims in the context of the other Laaman-based actions that were pending in the very same court and at the very same time constitutes an unsustainable exercise of its discretion. The trial court erred by dismissing Mr. Westcott’s complaint without affording him the opportunity to seek consolidation with the other pending Laaman-based cases and/or seek classwide enforcement of the Laaman Settlement Agreements.

This Court should remand this case to the Merrimack County Superior Court with instructions for that Court to convene a case management conference involving all pending Merrimack County Superior Court actions brought by inmates to enforce any rights under the Laaman Settlement Agreement, whether classwide or individual. Any of those inmates, including Plaintiff Richard Westcott, could seek permission from the Superior Court under Super. Ct. Civ. R. 16(a)(6) to enforce the Laaman Settlement Agreement on behalf of the entire class in a consolidated lawsuit. The Westcott case could be consolidated with other pending inmate actions, including one case (Avery v. Hanks) brought by an actual Laaman named plaintiff, and the Merrimack County Superior Court could determine which of the plaintiffs can best represent the interests of the class.

II. Mr. Westcott and/or Other NHSP Inmates Can Be Appointed to Represent Laaman Class Members in Enforcement of the Laaman Settlement Agreement.

Defendant narrowly frames the issue on appeal as “whether the Parties to the Laaman Settlement Agreement…contractually agreed to provide each inmate a separate right to individually seek to enforce the Laaman Settlement Agreement.” DOC Brief at 7. Defendant then answers the question in the negative, arguing that “[b]ecause 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.” At a time when the number of named Plaintiffs who brought the 1970’s-era Laaman litigation can be expected to be dwindling and when the Laaman class does not have counsel, the Defendant’s argument, if adopted by this Court, would render the Laaman Settlement Agreement unenforceable. According to the terms of that Agreement and under the superior court’s own rules, the Merrimack County Superior Court can and should enforce the Laaman Settlement Agreement on its merits. Therefore, the superior court erred as a matter of law in adopting the Defendant’s legal arguments contained in its Motion to Dismiss.

In DOC’s trial court briefing (DOC App. at 12) Defendant disregards a crucial difference between Federal Rule of Civil Procedure 23(g)(4) and New Hampshire Superior Court Civil Rule 16(a)(6). Whereas the former forecloses the possibility of the class being represented by a non-lawyer, the latter allows a non-lawyer to do so when “…the non- attorney will adequately represent the interests of the class, ” Super. Ct. Civil R. 16(a)(6) (emphasis added), and the other requirements of Rule 16 are met. Before dismissing Mr. Wescott’s case “for the reasons set out in the motion [to Dismiss], ” the superior court should have examined whether Mr. Westcott’s claims were appropriate for class wide relief and whether he was an appropriate person to represent the class.

Defendant claims that representation by counsel is a condition precedent to the initiation of any action taken by inmates to enforce the Laaman Settlement Agreement. DOC Brief at 16.

Defendant’s position is based on five words that appear in the original Laaman Consent Decree, the 1990 Consent Decree and 2001 Settlement Agreement. Id. The words are “named plaintiffs and their counsel, ” which appear in ¶ 8 of the 1990 Consent Decree (DOC App. at 58) and ¶ 32 of the 2001 Laaman Settlement Agreement (DOC App. at 129). The sentence at issue reads: “The named plaintiffs and their counsel agree to consult, where possible in the first instance, with the Commissioner of the Department of Corrections and, thereafter, with the Office of the Attorney General if a problem of noncompliance comes to their attention, and to allow the institution a reasonable amount of time to either remedy the problem to the plaintiffs’ satisfaction or to indicate disagreement with the alleged problem, prior to initiating litigation.” (emphasis added). Id.

The only way that this Court can interpret the words “plaintiffs and their counsel agree to consult where possible…” in a manner that is consistent with the purpose of the Laaman Settlement Agreement is for the Court to recognize the obvious: if the plaintiff or class members no longer have counsel it is not possible for counsel to consult with defendant or the Office of the Attorney General or file the lawsuit. Imposing a “condition precedent” requiring the plaintiffs to pursue a breach of contract action only through counsel, when plaintiffs and class members no longer have counsel, would prevent the inmates from “ensuring that the DOC uphold its end of the bargain.” Avery, 173 N.H. at 738. Indeed, under this interpretation, once plaintiffs no longer had access to counsel – no matter how soon after the agreement was executed – the extensive promises procured by the inmates from hard fought litigation would have totally evaporated. The importance of providing access to the courts to parties who have been injured by the State’s failure to comply with its contractual obligation was underscored by the General Court in 2018. The legislature amended RSA 491:8 to make absolutely clear that parties who enter into contracts with the State have the right to seek enforcement of those contracts by way of “specific performance or other equitable remedies.” RSA 491:8, as amended by Laws, 2020 12:2. In reversing the dismissal of inmate Clifford Avery’s case, this Court observed, “‘[T]he functionality of state institutions depends on the trust and confidence of New Hampshire citizens. Allowing the state to disregard its contractual obligations would undermine this trust.’ Chase Home for Children v. N.H. Division for Children, 162 N.H. at 733.” Avery, 173 N.H. at 736. Depriving the inmates of the NHSP of their ability to enforce the extensive promises made by the state to remedy unacceptable conditions of confinement, merely because, through no fault of their own, they no longer have counsel, would be a textbook example of how the state can undermine the public trust. Additionally, reading the language at issue as defendant suggests would effectively nullify the plaintiff’s access to the courts to remedy the wrong of a legal right, thereby raising serious constitutional concerns, including violation of Part 1, Article 14 of the NH Constitution. Part 1, Article 14 of the New Hampshire Constitution states: Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws. This Court has explicitly held that “[t]his provision provides that all citizens have a right to the redress of their actionable injuries.” Gonya v. Commissioner, New Hampshire Insurance Dept., 153 N.H. 521, 525 (2006) (citing N.H. Const. Pt. 1, Art. 14; Gould v. Concord Hospital, 126 N.H. 405, 409 (1985)). “It makes civil remedies readily available and guards against arbitrary and discriminatory infringements on access to courts.” Id. (citing City of Dover v. Imperial Cas. & Indemn. Co., 133 N.H. 109, 116 (1990)). Although the right to recover for one’s injuries is not a fundamental right, “it is nevertheless an important substantive right, ” Carson v. Maurer, 120 N.H. 925, 931-932 (1980), and is “accorded solicitous protection, ” Gould, 126 N.H. at 408; Gonya, 153 N.H. at 525. Any requirement that Mr. Westcott have counsel in order to enforce the State’s contractual obligation would be unreasonable and should be rejected by the Court. The words “named plaintiffs and their counsel” must be interpreted as being modified by the words “where possible, ” which appear in the same sentence. Where Laaman class members no longer have counsel, they may proceed on their own to consult with the DOC and to file suit pro se if matters cannot be resolved.

As noted above, an actual Laaman Named Plaintiff – Clifford Avery – is litigating in the Merrimack County Superior Court to enforce the Laaman Settlement Agreement on a classwide basis. It is conceivable that, post-remand, the New Hampshire Superior Court could decide to consolidate the Westcott and Avery cases.

But an individual like Richard Westcott can enforce the Laaman Settlement Agreement without the need to rely on any Laaman original named Plaintiff status. By its own terms, the original Laaman Consent Decree applied not only to then-current inmates but also to those who “will be incarcerated at the New Hampshire State prison...” DOC App. at 18, ¶8. The 1990 Consent Decree contained the same language. DOC App. at 57, ¶ 7. The parties agreed that “this Consent Decree also constitutes a settlement agreement which survives the termination of this court’s [the federal court’s] jurisdiction over the Decree.” DOC App. at 59, ¶10. The Settlement Agreement of April 23, 2001 contained similar language. DOC App. at 122, ¶1.

The extensive substantive provisions of the Laaman Settlement Agreement envision commitments of the DOC to current and future inmates requiring action for an extended time period. Assuming that the state made its promises in good faith, it would strain credulity to conclude that the parties intended enforcement to be contingent on the continued involvement of the original Named Plaintiffs – any of whom could at any time be transferred out of State or released by the DOC. This Court must also consider that two federal judges – both Judge Devine and Judge Barbadoro – held fairness hearings to determine whether or not each proposed settlement was “fair, adequate and reasonable.” DOC App. at 163; NHLA App. II at 11. Judge Barbadoro specifically considered whether the proposed settlement was “in the best interests of the class” (DOC App. at 163) and Judge Bownes specifically considered whether the proposed settlement “properly safeguards the interests of absent class members.” NHLA App. II at 11. Had the Laaman Settlement Agreement been enforceable only by a handful of original Named Plaintiffs, it is difficult to see how the federal court could have carried out the approval process on two separate occasions.

Appellant Mr. Wescott has been in prison for over twenty years. DOC App. at 170. Mr. Wescott and other class members should not have to wait another twenty years for the merits of their claims under the Laaman Settlement Agreement to be addressed.

Amicus NHLA asks this Court to rule that the Superior Court committed an unsustainable exercise of discretion by dismissing this action. Mr. Wescott has the right to seek court authorization to enforce the Laaman Settlement Agreement on a classwide basis under Superior Court 16(a). Mr. Westcott should be afforded the opportunity to seek that right as part of a consolidated action. NHLA also asks this Court to rule that the superior court erred as a matter of law in adopting the Defendant’s arguments for dismissal, and then dismissing the case.

U.S. District Judge Bownes observed that the multiple litigation efforts of individual inmates called out for judicial leadership. He consolidated several inmate cases, and later found that the New Hampshire State Prison for Men was indeed violating the Eighth Amendment rights of the Laaman class members. The state superior court has that same case management authority under its own rules. NHLA suggests that this Court remand this case to the superior court with instructions for it to conduct a joint case management conference in all pending inmate lawsuits to determine how that Court will adjudicate those multiple lawsuits to achieve justice.

I, Kay E. Drought, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, the relevant portions of this brief contain approximately 5093 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.

August 14, 2023 /s/ Kay E. Drought Kay E. Drought

I, Kay E. Drought, hereby certify that two (2) copies of this Amicus Brief and Appendix shall be mailed to Mr. Richard Westcott, pro se, postage prepaid, at the following address:

August 14, 2023 /s/ Kay E. Drought Kay E. Drought