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

NHLA argues that the trial court erred by not consolidating this case with several other inmate matters that involve the Laaman Settlement Agreement. NB 19, 21-22. NHLA’s argument exceeds the scope of the Amicus Order, was not preserved for review, and is contradicted by the record.

In its Amicus Order, this Court granted NHLA permission to file a brief addressing the “issue of 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.” In other words, the Court granted NHLA permission to address the Warden’s argument, which the trial court accepted, that the Laaman Settlement, as a matter of contract law, does not grant each inmates an individual right to bring breach of contract actions based on alleged breaches of the agreement. NHLA’s argument regarding consolidation plainly exceeds the scope of this issue. Whether the trial court could have exercised its discretion to consolidate the Plaintiff’s lawsuit with other pending inmate appeals is irrelevant to the proper interpretation of the Laaman Settlement Agreement. NHLA’s argument is also not preserved for appellate review. The Plaintiff never asked the trial court to consolidate his case with other inmate cases. Nor did the trial court address consolidation in its order dismissing the Plaintiff’s complaint. Nor did the Plaintiff argue in a motion for reconsideration that the trial court erred by not consolidating this case with any other cases. Accordingly, this argument is not preserved for appellate review. See, e.g., Vention Medical Advanced Components, Inc. v. Pappas, 171 N.H. 13, 27 (2018) (ruling that the Court “has consistently held that [it] will not consider issues raised on appeal that were not presented in the lower court”).

NHLA’s argument regarding consolidation is also contradicted by the record. NHLA argues that the trial court erred by not consolidating this matter with the cases of six other inmates. NB 21. However, NHLA overlooked the fact that most of those cases were filed after the trial court dismissed the Plaintiff’s complaint in this matter. Compare DA 3 (trial court dismissed Plaintiff’s case on August 14, 2022); with DA 435 (Holloway filed a petition for enforcement of the Laaman Settlement Agreement into an already pending case on November 3, 2022), DA 420 (Riffs complaint filed November 21, 2022), NA 132 (Albertson complaint filed November 17, 2022); NA 147 (Davies complaint filed November 17, 2022); NA 160 (Murphy complaint filed November 17, 2022). The final case, involving Clifford Avery, was filed in July of 2018 and had been pending for more than four years prior to the trial court’s dismissal of this matter. NA 30. Under these circumstances and absent any party requesting consolidation, the trial court clearly did not unsustainably exercise its discretion by not consolidating the Plaintiff’s case with four cases that hadn’t been filed, one case that did not yet involve any Laaman Settlement Agreement issues, and one case that had been pending for more than four years.

II. NHLA’s argument regarding the Plaintiff’s ability to represent a class of inmates under Superior Court Rule 16 exceeds the scope of the Amicus Order, was not preserved for review, and is contradicted by the record.

NHLA next argues that the trial court erred by not determining whether the Plaintiff could have brought his claims on behalf of an entire class of inmates. Specifically, NHLA argues that the Warden “disregard[ed] a crucial difference” between federal rules and state rules governing class actions, and a self-represented party could bring a class action under Superior Court Rule 16. NB 24.

Like NHLA’s first argument, this argument also exceeds the scope of the Amicus Order. Whether the Plaintiff may have been qualified to maintain a class action is irrelevant to the issue of whether, as a matter of contract law, the Laaman Settlement Agreement grants Mr. Wescott the right to bring an individual action on his own behalf. Nor is this argument preserved for appellate review. The Plaintiff never argued to the trial court that he could fairly and adequately protect the interests of a class of inmates, the trial court never addressed this issue in its dismissal order, and no party raised this issue in a motion for reconsideration. Accordingly, this Court should decline to address NHLA’s argument because it is not preserved for this Court’s review. See Vention, 171 N.H. at 27 (explaining that the preservation “requirement is designed to discourage parties unhappy with the trial result from combing the record, endeavoring to find some alleged error never addressed by the trial judge that could be used to set aside the verdict” (cleaned up)).

NHLA’s argument is also contradicted by record. Specifically, the Plaintiff expressly stated that he “does not have the legal training, experience, or resources to handle complex class action litigation in a manner that will adequately represent the entire class of inmates that would be bound by any judgment.” PB 79 (explaining that the Plaintiff was not attempting to represent a class of inmates and stating “I understand that I am not representing a class”).

And even if this disavowal were not enough, federal law persuasively demonstrates that an individual member of a class cannot adequately represent the interests of the class pro se. Although not coterminous with the federal class-action standard, Rule 16 does expressly require that “representative parties will fairly and adequately protect the interests of the class, ” and that “[t]he attorney or non-attorney representative for the representative parties will adequately represent the interests of the class.” Super. Ct. Civ. R. 16(a)(4), (6). Similar concerns underpin the federal standard. See Wright & Miller, 7A Federal Practice and Procedure § 1769. 1 (4th ed.) (“[B]ecause of the broad binding effect of class-action judgments, serious attention is given to the adequacy of representation of those absent class members who will be bound by the judgment.”). Thus, under the federal standard, a class representative “must be qualified, experienced and generally able to conduct the proposed litigation.” Id. (quotation omitted).

A conflict of interest may arise when a single class representative “could not represent all members without at some point risking making a decision adverse to one interest or another.” Id. To avoid this risk, “several courts have ruled that the class attorney cannot be the named representative or even a member of the class.” Id. (collecting cases). “This approach minimizes the potential for this problem and ensures that there is someone concerned only with the class members’ interests participating throughout the litigation.” Id.

The Plaintiff acknowledges what is self-evident: an individual inmate with no legal training seeking a specific outcome in relation to his own conditions of confinement cannot reasonably be expected to “represent all the members [of the class] without at some point risking making a decision adverse to one interest or another.” id. III. NHLA’s interpretation of the Laaman Settlement Agreement is not reasonable because it renders provisions meaningless and is contrary to the clear intent of the settling parties. NHLA also appears to argue that any inmate may bring a individual contract action to enforce the Laaman Settlement Agreement, at least when there is no longer class counsel to represent the class as a whole. To reach this interpretation, NHLA fails to mention, let alone address, multiple relevant provisions of the Laaman Settlement Agreement that the Warden relied upon throughout her opening brief.

NHLA primarily relies upon a single sentence in the Laaman Settlement Agreement, which provides that the “named plaintiffs and their counsel agree to consult, where possible” with the Department of Corrections regarding noncompliance with the agreement prior to initiating litigation. NB 25. NHLA contends that the words “where possible” in this sentence must be read to contemplate inmates bringing individual actions on their own behalf to enforce the contract. NB 25–28. This is not a plausible interpretation of the contract for several reasons.

At the outset, NHLA’s interpretation assumes that the continued presence of class counsel was not a material, bargained-for term of the Laaman agreement. Put differently, NHLA assumes that there was a meeting of the minds at the time the Laaman agreement was executed that class counsel could unilaterally abandon the class at any point after execution. This is a big assumption that NHLA fails to meaningfully grapple with in its brief. This failure is more notable considering that it was NHLA’s own decision in 2013 to no longer take Laaman claims (and not any decision on the part the State or members of the Laaman class whose interests NHLA until that time represented as class counsel) that caused the current state of affairs. Ultimately, these issues are not before the Court and need not be resolved now. But the Court similarly should not assume them away, as NHLA does in its brief.

Rather, the Court should interpret the Laaman Settlement Agreement to give effect to all provisions in the contract so that no provision is rendered meaningless. See Bellak v. Franconia College, 118 N.H. 313, 316 (1978). In doing so, the Court should consider the import of preceding language from the same paragraph in the Laaman Settlement Agreement that NHLA ignores. Specifically, the Laaman Settlement Agreement states that the “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.” DA 16; DA 56, ¶8; DA 127, ¶32; DA 145, ¶46 This language precedes the requirement that “named plaintiffs and their counsel” must consult with the Department of Corrections prior to initiating litigation. As set forth in the State’s opening brief, this language informs the enforcement language that follows it and confirms that the Laaman Settlement Agreement is only to be enforced on a class-wide basis for the benefit of the class as a whole, not by individual inmates through one-off breach of contract claims. DB 16–18.

NHLA similarly does not address the Laaman Settlement Agreement’s provision 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.” DA 88-89, ¶71; DA 126, ¶31; DA 143-44, ¶¶36, 40. Inmates thus retain the ability to bring individual actions to enforce their own legal rights, including their rights under the State and Federal Constitutions, notwithstanding the Laaman Settlement Agreement. This dispels any notion that the trial court’s conclusion that individual inmates cannot enforce the Laaman Settlement Agreement is incompatible with the right to a remedy under Part I, Article 14, as NHLA contends in its brief. See NB 27-28. And when read in conjunction with the rest of the Laaman Settlement Agreement, this provision reinforces the settling parties’ intent that the agreement could only be enforced through a class action with class counsel, while individual inmates remain able to bring challenges to enforce alleged violations of their constitutional rights. See also Wright & Miller, supra, § 1769.1 (explaining that independent class counsel is important to “ensure[] that there is someone concerned only with the class members’ interests participating throughout the litigation”).

NHLA’s contrary reading does not merely render this additional language of the Laaman Settlement Agreement meaningless, in contravention of this Court’s precedents. See Bellak, 118 N.H. at 316. It creates an internal inconsistency within the Laaman Settlement Agreement itself. Given the scope of day-to-day operations covered by the Laaman Settlement Agreement, NHLA’s reading would grossly expand the situations in which an inmate could maintain a lawsuit to challenge NHSP operations. In other words, the NHLA’s reading would provide each inmate 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 Laaman Settlement Agreement expressly disclaims this outcome.

Conversely, reading the Laaman Settlement Agreement in a manner consistent with its language as a whole promotes the purpose the agreement was designed to serve. See DB 18-20. It avoids constant enforcement actions that seek varying and potentially conflicting applications of the Laaman Settlement Agreement, while also protecting individual inmates from conflicting judgments that don’t benefit the entire class. As explained in further detail in the Warden’s opening brief, when the Laaman Settlement Agreement is read as a whole, the clear intent of the settling parties was to limit enforcement of the agreement to class wide actions with class counsel, and not to create an “extraordinary avenue of access to the courts” for inmates to continually bring contract actions challenging NHSP operations.

Therefore, NHLA’s interpretation of the Laaman Settlement Agreement is not reasonable because it renders provisions meaningless and is contrary to the clear intent of the settling parties, based on the language of the agreement read as a whole.

In its amicus brief, NHLA appears to have combed the appellate record for additional, unpreserved errors in a bid to help the Plaintiff overturn the lower court’s decision. Even when NHLA addressed the issue posed by the Court’s Amicus Order—the proper interpretation of the Laaman Settlement Agreement—NHLA conspicuously failed to consider multiple provisions of the agreement that the Warden had relied upon throughout her opening brief. In other words, NHLA was only able to interpret the Laaman Settlement Agreement as creating a private right of action for each individual inmate by ignoring express statements in the agreement that this was not the settling parties’ intent. Therefore, NHLA’s interpretation is not reasonable because it renders provisions in the Laaman Settlement Agreement meaningless and contradicts the clear intent of the settling parties. Conversely, the Warden’s interpretation is the only interpretation that gives effect to all the provisions of the Laaman Settlement Agreement, read as a whole. Here, the Plaintiff expressly disclaimed any attempt to bring an action on behalf of an entire class of inmates at NHSP. The Plaintiff also conceded that he is not able to adequately represent the interests of all inmates at NHSP. Under these circumstances and based on language of the Laaman Settlement Agreement read as a whole, the agreement clearly does not provide the Plaintiff with a right to individually enforce the agreement. The Warden respectfully requests that this Honorable Court affirm the judgment below.

I, Brendan A. O’Donnell, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 2, 625 words, excluding title page, signature lines, and certificates, which is fewer than the number of words permitted by this Court’s grant of leave for the Warden to file a reply. Counsel relied upon the word count of the computer program used to prepare this brief.

Date: September 12, 2023 /s/ Brendan A. O’Donnell Brendan A. O’Donnell

I hereby certify that a copy of the State’s brief will be conventionally mailed to Mr. Wescott on September 13, 2023.

Date: September 12, 2023 /s/ Brendan A. O’Donnell Brendan A. O’Donnell