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Taxpayers could be on the hook for more than the $38 million verdict to David Meehan in the Sununu Youth Detention Center abuse lawsuit after lawyers with the Department of Health and Human Services tried to force a cap on the award.

The historic jury decision is being disputed by the state, which claims New Hampshire law imposes a cap on monetary damages and limits the amount Meehan can receive to $475,000. But as both sides hash out the dispute, looming is the real possibility that taxpayers will have to pay more — much more — regardless who wins the current dispute.

New Hampshire is a self-insured state, meaning there is no liability coverage policy for Meehan, or the 1,300 other adult survivors who claim they were horrifically abused as children while in state custody. Meehan was the first of the YDC claimants to get to court.

On Wednesday, Rockingham Superior Court Judge Andrew Schulman rejected the state’s argument that New Hampshire only needed to pay $475,000 to Meehan for a “single incident” of abuse after a jury ruled in his favor last month. 

“In the court’s view, this would be an obvious miscarriage of justice because the finding of a ‘single incident’ was conclusively against the weight of the evidence,” Schulman wrote.

Meehan’s attorneys claim there were more than 300 incidents of rapes, beatings, emotional abuse, and illegal solitary confinement proven at the trial.

After listening to weeks of testimony about the hundreds rapes and other abuses Meehan suffered as a child in the 1990s, jurors returned a verdict finding the state liable for facilitating Meehan’s abuse and working to cover it up for decades. However, the verdict form was marked to indicate there was one incident where the state engaged in “wanton, malicious, and oppressive conduct” by abusing its power in permitting the sexual assaults.

Lawyers for DHHS argue that form means the $475,000 cap needs to be applied, overriding the $38 million verdict. However, after reading New Hampshire Attorney General John Formella’s statement about the cap, the jury foreman reached out to Meehan’s lawyers to express dismay, saying he felt “duped” by the state.

“I was literally sickened and brought to tears in fear of the mistake we made. I still am,” the foreman wrote in an unsolicited email. “Please know, and PLEASE let Mr. Meehan know that, had we had knowledge that that was the way it was going to work, we would NOT have written it that way.”

Schulman blamed his jury instructions, which did not specify jurors needed to count up all the individual instances of abuse, for the confusion. Schulman wrote he was trying to avoid influencing the jury by explaining the cap.

Schulman wrote that the jury’s $38 million award cannot be explained if it truly found only one instance of abuse had been proved. 

“An overly clever logician might say that the jury could have found that plaintiff proved one instance of abuse, disbelieved his testimony regarding all of the other instances, and awarded $38,000,000 for the single instance,” Schulman wrote. “But this would be sophistry rather than true logic. No reasonable jury would award $38 million for a single instance of abuse. No reasonable jury would have believed plaintiff’s testimony as it related to a single hour and disbelieved his testimony as related to all of the other hours, days, weeks, and months.”

David Vicinanzo, one of Meehan’s lawyers, pushed for an emergency hearing in court to let the jurors clarify their verdict. Short of that, he argued the $475,000 cap ought to be applied to each incident proved at trial, which he pegs at at least 300 rapes alone. 

Schulman’s order Tuesday recommends a process by which he will determine the number of incidents to which the cap could be applied. In more bad news for the state, Schulman writes that in reviewing the trial record he found there were between 103 and 155 incidents proved at trial. That would put the total award at between $47 million and $73 million. 

The state legislature passed a bill creating a $100 million settlement fund for all of the victims. But Vicinanzo and Russ Rilee, the other lead attorney for the plaintiffs, said that fund unjustly limited the damages the survivors could seek. 

The fund is administered by former state Supreme Court Chief Justice John Broderick, who told NHPR last month that 418 survivors entered into settlement agreements, and most took less than $500,000. A few have received more, between $1 million and $5 million. But with at least 1,200 more civil trials pending, the $100 million settlement fund, which has already spent $66 million, will run dry.

The state has been criticized by survivors for the conflict of interest demonstrated by the fact it is defending itself in the civil trials while it is also supposed to prosecuting the alleged abusers. Out of the hundreds of alleged abusers named in the lawsuits, the state has managed to indict just 11 men, with the last of the indictments coming in 2021.

CONCORD — Two more uncounted absentee ballots from Bedford’s 2020 presidential election were found Wednesday as officials with the New Hampshire Attorney General’s Office and the New Hampshire Secretary of State’s Office conducted a public count of all the town’s absentee ballots. It is the next step in their ongoing investigation into the mishandled ballots from the affluent community’s 2020 general election.

Associate Attorney General Anne Edwards led the effort to open about a dozen ballot boxes and check every one of the more than 7,000 absentee ballots cast in 2020.

“We reviewed all of the absentee envelopes that were involved in the Bedford general election – which was more than 7,000, almost 8,000 envelopes – to make sure that there were no other ballots that hadn’t been counted,” Edwards said.

Anne Edwards of the NH Attorney General’s office and Bud Fitch with the Secretary of State’s office review uncounted ballots from the 2020 general election in Bedford.

Bedford’s ballot boxes were seized by the Attorney General’s Office late last year after town officials were caught trying to hide a ballot snafu from the public. Close to 190 uncounted absentee ballots were found in the days after the November 2020 election. Town election officials tried to keep news of the uncounted ballots from leaking to the public despite Edwards and her staff advising that the impacted voters ought to be told.

The counting of all absentee ballots took place at the New Hampshire State Archives building in Concord in public view. The process took six hours as officials with the state went through all the absentee ballots and then checked through the known 188 uncounted ballots.

Edwards and her team also examined a second batch of ballots from the same election that were part of the original election count but lost for the subsequent recount.  The ballots were reportedly discovered inside a box for a voting machine used in the September 2021 special election. Again, town officials tried to keep word of those ballots from spreading to Bedford voters. Edwards said the ballots should not have been laying around for close to a year.

“They should have been sealed at the end of the night and they should have been with the rest of the 2020 ballots, but they weren’t,” she said.

Edwards said a full report on what happened in Bedford is expected to be completed by the end of the month.

Former Bedford Town Moderator Bill Klein, who was part of the attempt to keep the public in the dark about the ballots, said the town struggled in 2020 dealing with an unprecedented number of absentee ballots cast during the COVID-impacted election. More than 16,000 Bedford voters cast ballots that year, with close to 8,000 absentee ballots.

“Hopefully we’ll never have to go through this again, but honestly maybe things should have been done a little bit differently,” Klein said Wednesday.

The fallout from the ballot errors already cost current Town Moderator Brian Shaughnessy a shot at becoming a circuit court judge. In 2020, Shaughnessy was the assistant town moderator and was the first person to tell Klein to keep quiet about the ballots.

Former Bedford Town Moderator Bill Klein is on hand as state officials review the ballots left uncounted during the 2020 general election.

After being brought before the Town Council, Shaughnessy said one reason he and Klein did not tell anyone in town government about the ballots was to prevent members of the public from finding out.

“If we came to the Town Council while the (Attorney General’s Office) investigation is pending it becomes public knowledge,” Shaughnessy has said.

Shaughnessy’s actions in the drama cost him support from the Executive Council when his judicial nomination was considered last month.

Klein later tried to blame the lack of transparency on the Attorney General’s Office, but that version of events is disputed by Edwards. She took Klein to task in a letter she sent to Klein and other town officials last year.

“Our office never instructed you not to tell anyone of the incident involving the 190 uncounted absentee ballots,” Edwards wrote to Klein.

According to Edwards, Klein was told last summer that he needed to tell the voters whose ballots were not counted what had happened. Klein dragged his feet on the notifications, according to Edwards’s letter.

“Since early June, our Office has been in contact with Bedford election officials regarding possible remediation plans and investigative interviews,” Edwards wrote. “During those conversations, Bedford election officials raised concerns that they did not want to notify voters of the fact that their ballots were not counted. Our Office directed that such a notification was a requirement of any remediation plan.”

Klein was directed to make the notification in August and again in September, and finally he was told by Edwards that he would have to make the notifications after the September special election. Klein finally told voters in October 2021.

Wednesday’s ballot examination in Concord was aimed in part at making sure all the people who had their ballots uncounted were in fact notified by Klein. State officials checked the names on the ballots against the names on the list of people the town had notified. No discrepancies were found during Wednesday’s examination.

Documents obtained by New Hampshire Journal confirm Bedford town officials discovered still more mishandled ballots in September 2021 and, like the 190 uncounted ballots from November, are attempting to hide their discovery from the public.

Meanwhile, an attorney with the New Hampshire Attorney General’s office has told NHJournal it is preparing to begin an investigation into the matter.

Bedford Town Manager Rick Sawyer sent members of the Town Council an email on Tuesday informing them more ballots from the 2020 election were discovered by town staff, who kept their existence secret until this week.

“I am making you aware that the Town Clerk (Sally Kellar) just walked into my office with an envelope that she says contains cast ballots from the November 2020 election and that were found in a voting box in the September 2021 Special Election and handed to her,” Sawyer wrote. “I advised her immediately to contact the town attorney and the appropriate state officials. If it is as described, these ballots were counted in the election but would not have been available for the recount. I don’t know why notification was not made immediately in September.”

Sources tell NHJournal town election officials have no plan to reveal this information to the public. It’s still not clear how many ballots were discovered in this second incident, and they refused to answer questions about the ballots, or even acknowledge their existence to NHJournal.

The 2020 state Senate election in Bedford was close enough for a recount between incumbent Democrat Jeanne Dietsch and Republican Denise Ricciardi. Dietsch called off the recount halfway through, leaving Ricciardi with a 409-vote margin.

Town officials say the 190 uncast absentee ballots they discovered last November and hid from the public for nearly a year would not have changed any election results.

Kellar hung up when asked questions about the ballots on Tuesday, after saying that no ‘uncast ballots’ were found, an apparent attempt to mislead the reporter. Sawyer, Town Moderator Bill Klein, and Town Council Chair David Gilbert, and Vice-Chair Bill Carter were all contacted for this story. They all failed to respond.

Senior Assistant Attorney General Anne Edwards said Wednesday her office is aware of the latest ballot problem in Bedford and is looking into the matter.

“Yesterday, we were made aware of an issue regarding ballots in Bedford. At this time, we do not have detailed information. We will be investigating this situation,” Edwards said. 

Senior Assistant Town Moderator Brian Shaughnessy played a leadership role in the November 2020 general election and now admits that he — and not the Attorney General’s Office — is the source of the decision to keep the mishandled ballots secret from the public and town council. But on Wednesday, he told NHJournal he was completely unaware of the discovery of any additional ballots or a second snafu.

“I’m a volunteer that gets appointed at the election,” he said. “I would not normally be kept in the loop.”

The town enacted a series of election reforms after the New Hampshire Attorney General’s Office investigated, Shaughnessy said. He blamed the issues from 2020 on the unprecedented number of absentee ballots cast during the pandemic election. 

“It was a unique situation with 7,700 absentee ballots,” he said. “We generally don’t need 50 volunteers to open envelopes.”

At last week’s Town Council meeting, Shaughnessy insisted he and the other election officials “did the right thing” by keeping the story about the 190 ballots a secret for nearly a year. 

“We don’t work for you,” was Shaughnessy’s answer when councilors asked why elected representatives of Bedford’s citizens were left in the dark. Klein acknowledged those voters “were disenfranchised,” but he stood by the decision not to inform them.

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