Filed

File Date: 2/7/2020 1:22 PM

Merrimack Superior Court
E-Filed Document

THE STATE OF NEW HAMPSHIRE

MERRIMACK COUNTY SUPERIOR COURT

217-2020-CV-00079

Anna Carrigan

v.

The State of New Hampshire, Department of Health and Human Services,

and,

Lori Shibinette, Commissioner, New Hampshire Department of Health and Human

Services,

and,

Sai Cherala, New Hampshire Department of Health and Human Services,

and

Whitney Hammond, New Hampshire Department of Health and Human Services,

and,

Marisa Lara, New Hampshire Department of Health and Human Services,

and,

Jake Leon, Department of Health and Human Services.

Docket No._________

COMPLAINT
(Jury Trial Demanded)

NOW COMES Anna Carrigan and hereby submits the following Complaint and Demand

for Jury Trial.

1
 INTRODUCTION

Government officials have a long history of attempting to suppress political speech that

shines a spotlight on their illegality, corruption, waste and abuse. 1 New Hampshire law provides

citizens with powerful protective measures to combat corrupt governments and corrupt public

officials when they seek to suppress truth. In doing so, New Hampshire embraces a commitment

to freedom of speech by recognizing the public’s fundamental interest in protecting citizens who

seek to bring corrupt, wasteful and illegal governments and government officials to heel through

the speech and conduct of an engaged, moral, and conscientious citizenry. 2

Anna Carrigan (“Anna”) is one such citizen. Through petitioning, public speeches and

organization, she has sought to expose the pervasive illegality, irresponsibility, corruption, waste

and ineptitude of New Hampshire’s child abuse and neglect response system. 3 She has done so

by seeking redress on behalf of a child whose case the state government bungled through a series

of standard-less and illegal governmental decisions that resulted in a flawed and biased

investigation. She has done so through public testimony before executive branch officials vested

with oversight responsibility. She has done so through the activities of a non-profit organization

1
See, e.g., Joanne B. Freeman, THE FIELD OF BLOOD at 114-15 (2018) (describing the congressional implementation
of a gag rule in 1837 prohibiting members of Congress from advocating for abolition and freedom).

2
See, e.g., N.H. Const., Part I, Art. 10 (“Government being instituted for the common benefit, protection, and
security of the whole community, and not for the private interest or emolument of any one man, family, or class of
men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all
other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new
government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and
destructive of the good and happiness of mankind.”).
3
See, e.g., Editorial, Case closed: Dysfunction at DCYF, NEW HAMPSHIRE UNION LEADER (Mar. 15, 2017) (“Over
two days in February 2016, Bartlett’s team closed 1,520 investigations of child abuse or neglect without following
division policies…Bartlett’s shocking decision to simply ignore DCYF procedures was just as shocking to him
[Commissioner Jeff Meyers].”), available at
http://www.unionleader.com/apps/pbcs.dll/article?avis=UL&date=20170316&category=OPINION01&lopenr=1703
19554&Ref=AR&source=RSS&template=printart.

2
that she founded. And she has done so by attempting to bring the New Hampshire Department

of Health and Human Services’ (“DHHS”) record of case-specific and historical ineptitude

forward through engagement with the public press. 4

Anna has performed these protected activities while she has been a DHHS employee. As

such, since first engaging in public advocacy, Anna has been subject to injuries and retaliation in

the workplace by DHHS and its supervisors and staff, including Defendants. She has been

denied accommodations she requested for health reasons. She has been subject to misstatements

regarding the extent to which she has met her DHHS duties and responsibilities. And she has

been subject to inconsistent and arbitrary directives and other conduct that have suppressed and

chilled her ability to speak to the public and the press about DHHS’s dysfunction. Anna seeks

relief before this Court to vindicate her interests under the state constitution, under state statutory

law, and specifically, under the statutory laws of New Hampshire that protect her as a public

employee from the injuries Defendants caused.

Anna also seeks declaratory relief under Part I, Article 8 of the New Hampshire

Constitution. She seeks a ruling from this Court that DHHS’s response to the child abuse and

neglect crisis is illegal and unconstitutional. She also seeks a ruling from this Court permitting

her to bring DHHS’s illegality forward in communications with the press where DHHS contests

her right. To this end, she comes to this Court as an injured party and as a taxpayer with

standing under Part I, Article 8 of the New Hampshire Constitution.5 Anna, like all New

4
See, e.g., Appeal of Booker, 139 N.H. 337, 338 (1995) (“In the summer of 1991, Division of Child and Youth
Services was under considerable public scrutiny following the release of a study conducted by the University of
Southern Maine of eight cases where the children either died or were seriously injured after contact with DCYS.”).
5
See N.H. Const., Part I, Art. 8 (“All power residing originally in, and being derived from, the people, all the
magistrates and officers of government are their substitutes and agents, and at all times accountable to
them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s
right of access to governmental proceedings and records shall not be unreasonably restricted. The public also has a
right to an orderly, lawful, and accountable government. Therefore, any individual taxpayer eligible to vote in the

3
Hampshire citizens, has the right to come to this Court to vindicate her interest in an “orderly,

lawful, and accountable government” because New Hampshire’s Constitution explicitly confirms

her right to seek judicial relief in this manner.

In further support of this complaint, Anna therefore states as follows:

PARTIES

1. Anna is a taxpaying resident of Farmington, New Hampshire and resides at 1023

Route 11, Farmington, New Hampshire 03835. She is a homeowner, pays property taxes and

other forms of state and local tax, and is an eligible New Hampshire voter. 6

2. DHHS is an agency within the executive branch of the New Hampshire State

Government. It is located at 129 Pleasant Street, Concord, New Hampshire 03301. DHHS is

responsible for government policy in the area of public health and with regard to spending

decisions. These spending determine whether DHHS can deploy government resources in a

manner that ensures that it is abiding by its legal obligations to children subject to abuse and

neglect.

3. The New Hampshire Division for Children, Youth and Family (“DCYF”) is an

agency within DHHS, located at 129 Pleasant Street, Concord, New Hampshire.

State, shall have standing to petition the Superior Court to declare whether the State or political subdivision in which
the taxpayer resides has spent, or has approved spending, public funds in violation of a law, ordinance, or
constitutional provision. In such a case, the taxpayer shall not have to demonstrate that his or her personal rights
were impaired or prejudiced beyond his or her status as a taxpayer. However, this right shall not apply when the
challenged governmental action is the subject of a judicial or administrative decision from which there is a right of
appeal by statute or otherwise by the parties to that proceeding.”).
6
See N.H. Secretary of State Publication, Registering to Vote in New Hampshire (July 2019)
file:///C:/Users/msl/Downloads/Registering%20to%20Vote%20in%20New%20Hampshire%20%20July%202019.pd
f.

4
 4. New Hampshire has appointed DCYF to “manage[] protective programs on behalf

of New Hampshire’s children and youth and their families” 7

5. The Bureau of Child Protection within DCYF “works to protect children from

abuse and neglect while attempting to preserve the family unit.” 8

6. DHHS is not above the laws enacted by the people to protect its citizens,

including from the government itself and its agents. See State v. Brousseau, 124 N.H. 184, 193-

94 (1983) (Douglas, J. concurring) (dating this concept to the Magna Carta); see also N.H.

Constitution, Part I, Article 8 (“The public has a right to an orderly, lawful, and accountable

government”).

7. Lori Shibinette is the Commissioner of DHHS (“Shibinette”). Prior to her

appointment, Shibinette was Deputy Commissioner of DHHS with similar supervisory and

decision-making responsibilities over DHHS, including in regard to spending decisions. In her

current capacity as Commissioner, and in her prior capacity as Deputy Commissioner, Shibinette

has resided at 129 Pleasant Street, Concord, New Hampshire 03301.

8. Sai Cherala is the Bureau Chief of Population Health & Community Services,

Division of Public Health Services, DHHS (“Cherala”). In this capacity, Cherala has resided at

29 Hazen Drive, Concord, New Hampshire 03301.

9. Whitney Hammond is the Chronic Disease Director within the Bureau of

Population Health & Community Services, Division of Public Health Services, DHHS

(“Hammond”). In this capacity, Hammond has resided at 29 Hazen Drive, Concord, New

Hampshire 03301.

7
See https://www.dhhnh.gov/dcyf/.

8
Id.

5
 10. Marisa Lara is a “Manager” within the New Hampshire Department of Health and

Human Services (“Lara”). In this capacity, Lara has resided at 29 Hazen Drive, Concord, New

Hampshire 03301.

11. Shibinette, Cherala, Hammond and Lara are Anna’s supervisors at DHHS.

12. Jake Leon is the Communications Director for DHHS. In this capacity, Leon has

resided at 129 Pleasant Street, Concord, New Hampshire 03301.

13. Leon is a top official at DHHS and is consulted by DHHS regarding DHHS-

business-related activities.

JURISDICTION AND VENUE

14. This Court has jurisdiction over this matter by virtue of the parties’ contacts with

New Hampshire and the allegations set forth herein, all of which justify subjecting Defendants to

the personal and subject matter jurisdiction of this Court, pursuant to RSA 491:7, RSA 491:14,

RSA 491:22, RSA 498:1 and RSA 507:9.

15. This Court has jurisdiction over this matter by virtue of Part I, Article 8, of the

New Hampshire Constitution.

FACTS COMMON TO ALL COUNTS

I. DHHS’s persistent state of illegality with regard to child abuse and neglect.

16. The Child Protection Act, codified at RSA 169-C, mandates that children receive

the utmost support and protection from DHHS.

17. RSA 169-C:2 provides that the purpose of the chapter is “to provide protection to

children whose life, health or welfare is endangered and to establish a judicial framework to

protect the rights of all parties involved in the adjudication of child abuse and neglect case.”

6
 18. RSA 169-C:2 further provides that: “Each child coming within the provisions of

this chapter shall receive, preferably in his own home, the care, emotional security, guidance

and control that will promote the child’s best interest.” (Emphasis added).

19. To facilitate this goal, RSA 169-C demands that New Hampshire citizens report

child abuse and neglect to state authorities as part of a legal infrastructure that requires New

Hampshire to protect children. 9 See RSA 169-C:29 (“Any . . . person having reason to suspect

that a child has been abused or neglected shall report the same in accordance with this chapter.”).

20. RSA 169-C further demands that DHHS, the public body responsible for

receiving these reports respond with haste and dispatch to them. See RSA 169-C:34.

21. According to RSA 169-C:34, I:

If it appears that the immediate safety or well-being of a child is endangered, the

family may flee or the child may disappear, or the facts otherwise so warrant, the
department shall commence an investigation immediately after receipt of a report.
In all other cases, a child protective investigation shall be commenced within 72
hours of receipt of the report.

22. In no case does RSA 169-C:34 permit DHHS to wait longer than 72 hours from

the receipt of the report to commence a child protective investigation.

23. Moreover, under RSA 169-C, DHHS must make immediate reports to law

enforcement where there is reason to believe that a minor is the victim of sexual violence,

physical violence, or crime in which acts of abuse are believed to have occurred. RSA 169-C:38.

In other words, the legal mandate for some reported cases is DHHS action consistent with the

requirement of immediacy.

9
See DCYF Website, titled, “Stop Abuse or Neglect” (“NH Law requires that any person who suspects that a child
under age 18 has been abused or neglected must report that suspicion immediately to DCYF (New Hampshire
RSA 169-C:29-31”) (emphasis in the original) available at https://www.dhhs.nh.gov/dcyf/cps/stop.htm.

7
 24. In all cases, DHHS must “promptly” perform a child protective investigation,

which includes rendering a determination “whether there is probable cause to believe that any

child in the family or household is abused or neglected, including a determination of harm or

threatened harm to each child, the nature and extent of present or prior injuries, abuse or neglect,

and evidence thereof….” RSA 169-C:34, II.

25. RSA 169-C:38-a mandates that DHHS and the New Hampshire Department of

Justice “jointly develop a standardized protocol for the interviewing of victims and the

investigation and assessment of cases of child abuse and neglect.”

26. The New Hampshire Attorney General has published a child abuse and neglect

protocol that, among other things, provides that “DCYF has 60 days from the initial report, in

which to make a determination of abuse and neglect.” 10

27. Notwithstanding these requirements, DHHS remains in a constant and perpetual

state of illegality in regard to these and other legal mandates. Officials have reported there is a

reported backlog of cases—a number in the thousands—and that this backlog has existed for

years. DHHS and Shibinette have used euphemisms like “open cases” to describe this backlog.

28. Whatever the label agencies and bureaucrats may affix to recapture and

temporize, it cannot be contested in any credible way that New Hampshire has a substantial,

documented and very public record of failing to abide by baseline standards of care with regard

to abused and neglected children.

29. The current Governor of New Hampshire has described problems within the

state’s child protective services as a “DCYF crisis” and that DCYF was a “disaster” during the

10
See “Child Abuse and Neglect, Third Edition”, available at https://www.doj.nh.gov/criminal/victim-
assistance/documents/child-abuse-protocol.pdf.

8
period of time he served in the role as executive counselor overseeing state executive agencies

and during the period of time he became chief executive of New Hampshire’s state

government. 11

30. New Hampshire’s Governor effectively fired DCYF Director Lorraine Bartlett in

March of 2017 on the grounds that she had prematurely closed 1,520 investigations of child

abuse or neglect in a two-day period. 12

31. Then-DHHS Commissioner Jeffrey Meyers placed then-Director Bartlett on

administrative leave and stated: “The closure of these cases was not undertaken consistent with

best practices or in accordance with established DCYF policies and procedures.” 13

32. Prior to this discipline, Bartlett had long been on record regarding the state’s

failure to fund baseline services necessary to protect children from abuse and neglect. 14

33. Failures within the system are more than a decade old and all parties who choose

to work in the system have been on notice of the dire consequences their failure to abide by

professional responsibilities has to the children. 15

34. In the fall of 2015, DHHS’s overall, manifest, illegality, caused government

officials to solicit an outside audit of the state’s systems.

11
See Dave Solomon, Dave Solomon’s State House Dome: A social worker’s lament, N.H. UNION LEADER available
at
http://www.unionleader.com/apps/pbcs.dll/article?AID=/20180902/NEWS0604/180909988/0/LOCALVOICES08.
12
Mark Hayward, DCYF chief ousted for tossed reports, N.H. UNION LEADER (Mar. 17, 2018), available at
http://www.unionleader.com/state-government/DCYF-chief-ousted-for-tossed-reports-03132017.
13
Id.
14
See Dave Solomon, DCYF chief laments ‘perfect storm,’ explosion of NH cases, N.H. UNION LEADER (Jan. 28,
2018), available at http://www.unionleader.com/article/20170129/NEWS07/170129281 (last visited 8/31/2018).
15
See Amy Wallace, Report: DCYF failed toddler, SEACOASTONLINE.COM (Jan. 10, 2002), available at
http://www.seacoastonline.com/article/20020110/NEWS/301109993 (last visited August 30, 2018) (“A children’s
advocate said this week that under-funding, a lack of staff and ignoring procedure at the state Division of Children,
Youth and Families all may have contributed to the death of 21-month-old Kassidy Bortner.”).

9
 35. In December 2016, DHHS sought and received the results of the outside audit of

its child protective services agencies.

36. The audit, provided by The Center for the Support of Families, a Division of SLI

Global Solutions LLC (“CSF”), resulted in a report titled “Quality Assurance Review of the

Division of Children, Youth and Families,” published on December 19, 2016 (“CSF Audit

Report”), attached hereto as Exhibit 1.

37. The decision to obtain the CSF Audit Report “stemmed, in part, from the deaths

of two children known to DCYF in the months preceding the request for proposals from the State

to conduct the review.” CSF Audit Report at 3.

38. The CSF Audit Report reviewed incidents of alleged mistreatment known to

DCYF during 2015. Id. at 5.

39. The CSF Audit Report determined that DCYF was not responding, effectively, to

the cases of abuse and neglect known to New Hampshire.

40. Among other things, the CSF Audit Report found that DCYF is understaffed, its

staff is undertrained or mis-trained, the state’s statutes are restrictive, DCYF has further

restricted statutes through its interpretations, and New Hampshire has failed to fund services

sufficient to meet the needs of New Hampshire children and their families. CSF Audit Report at

8.

41. The CSF Audit Report determined that DCYF was not adequately assessing risk

to children based upon forensic survey results. CSF Audit Report at 27.

42. The CSF Audit Report determined “inconsistency in seeing all parents and non-

victim children in the household as part of the assessment.” CSF Audit Report at 33.

10
 43. The CSF Audit Report indicated that DCYF staff did not rely upon safety

protocols in assessing the safety of children. CSF Audit Report at 35.

44. The CSF Audit Report indicated that “[e]ven when the allegations appeared true

and the alleged incidents occurred, assessments were most often determined unfounded.” CSF

Audit Report at 43.

45. The CSF Audit Report stated: “We are not confident families in unfounded

reports received the services they need.” Id.

46. The CSF Audit Report indicated that a “major reason for [a] ‘no’ response

[regarding screening for an abuse and neglect determination] was inadequate ongoing assessment

of safety and risk.” CSF Audit Report at 48.

47. In effect, the CSF Audit Report found that DCYF was understaffed and that its

staff was poorly trained and failed to follow standards and protocols.

48. The CSF indicated the following regarding the initiation of an investigation:

Policy indicates that all assessments are to be initiated within 72 hours of the
referral from intake, including weekends. Initiating an assessment is defined as
“beginning to work the assessment,” including reviewing history, making phone
calls to schedule home visits, or contacting law enforcement. Per policy,
assessments are to be completed within 60 days.

CFS Report at 47.

49. The CFS Report found that only approximately 20% of sampled cases were

completed within the 60-day timeframe. CFS Report at 30.

50. DHHS’s failures are due to executive mismanagement and the poor allocation of

resources, all of which relate to a series of spending decisions DHHS has made and continues to

make.

11
 51. DHHS has not invested sufficient resources to address its documented shortfalls

in regard to child protective services.

52. DHHS’s failure to protect children who were known to be at risk has been the

subject of substantial reporting in the public press, including in a four-part series published in the

Concord Monitor titled “Fatal Flaws” in April 2017.

53. At least one state commissioner who sat on an official state board regarding the

review of the state’s response to abuse and neglect stated that DHHS was responding to the crisis

with a lack of urgency.

54. The children who the state knew faced dangers from abuse and neglect remained

a matter of concern for him two years later. 16

55. New Hampshire officials responded to these public reports, in part, by calling for

the establishment of the Office of Child Advocate (“OCA”) as a “watchdog agency created . . . to

reform the state’s . . . child protection system,” according to press reports.

56. The “role of the advocate is to hear complaints,” according to press reports.

57. The OCA is granted the “authority to review and investigate any aspect of

[DCYF’s] child protection policies or practice.” RSA 170-G:18, III (i).

58. The OCA is granted the authority to investigate and issue findings in regard to

complaints filed with it. RSA 170-G:18, V.3.

59. The OCA was introduced as a legislative concept in early 2017.

60. A hearing was held on the matter on February 14, 2017.

61. The New Hampshire Health and Human Services Committee analyzed the bill as

follows:

16
Allie Morris, Efforts to Reform N.H. DCYF Await Implementation (Part 4 of 4), Fatal Flaws, CONCORD MONITOR
(April 19, 2017), available at https://www.vnews.com/Slow-Pace-of-Change-at-DCYF-9271226.

12
 This bill establishes the department of children’s services and
juvenile justice as a separate executive agency of state government
responsible for the general supervision and enforcement of all
programs and services for children and youth. The bill also
transfers all former powers, duties and responsibilities of the
department of health and human services, division of youth and
families and the division of juvenile justice systems to the newly
established department. 17

62. New Hampshire Senator Sharon Carson testified in support of the legislation that

“[a] recent report looking into the department listed many systemic problems in the department.

Many of the problems were unknown to anyone outside the department.” 18

63. She further testified that: “The Office for Child Ombudsman would get the

answers we need to make sure we as a state can act” and that “DCYF has lacked solid leadership

and oversight for a long time and giving the department a fresh start is needed.” 19

64. Then-DHHS Commissioner Jeffrey Meyers opposed the bill and noted that in

2011: “there was a $20 million cut by the legislature to child services and those funds have

not been restored.” 20

65. Then DHHS Commissioner Meyers testified that problems due to staffing are, in

part, the cause of systemic issues inside DCYF that resulted in harm to children under DCYF’s

supervision.

66. The bill establishing the OCA was ultimately included within the omnibus bill

introduced as part of the state budget in 2017 and was passed, becoming law in New Hampshire

on July 1, 2017. The powers granted the OCA are wide-reaching.

17
https://gencourt.state.nh.us/bill_Status/HearingReport.aspx?id=2659&sy=2018.
18
Id.
19
Id.
20
Id.

13
 67. The OCA has the power to issue public statements about DHHS’s response to

abuse and neglect cases.

68. The OCA issued a public release finding that, in March 2018, DCYF was at fault

for failing to address substantial safety concerns surrounding the murder of a child by his

father. 21

69. The public release provided by the Office included the following conclusions:

“This is a clear case of a family that could have benefited from

Voluntary Services if they existed,” O’Neill stated. Voluntary
services are supports for families at risk of, but not found to be
abusive or neglectful. They were eliminated in New Hampshire in
recent years, a key deficiency noted by an independent review of
DCYF in 2016. Three bills aimed at reinstituting funding for these
kinds of preventive efforts are currently before the legislature.

“We will never know what Preston’s dad was thinking when he
sealed himself and his son in a room with two charcoal grills,”
O’Neill said, “But if the DCYF worker had been able to open a
Voluntary case for this family with ‘moderate risk’ of abuse and
neglect, the outcome could have been different. Tight budgets
make appropriating funds for family support services hard, but
New Hampshire cannot afford this kind of family despair.”
O’Neill urged lawmakers to consider carefully the legislation that
would restore funding to Voluntary and prevention service

Pursuant to NH RSA 170-G:18, the Office of the Child Advocate

is an independent state agency mandated to oversee the
Department of Children, Youth and Families, and to promote
policies and practices that ensure the safety and wellbeing of New
Hampshire children. O’Neill was appointed as the first director of
the new office in January, 2018.

70. However, on March 11, 2018, nearly a year after the OCA was established,

officials for New Hampshire reported that “[c]aseloads are too high, morale is low, turnover

21
Holly Ramer, Child advocate: Support Services might have saved New Hampshire boy’s life, Boston.com (March
2, 2018), available at https://www.boston.com/news/policy/2018/03/01/child-advocate-support-services-might-have-
saved-new-hampshire-boys-life.

14
remains a problem, and [DCYF] is unable to be proactive in the protection of New Hampshire

children.” 22

71. As of that date, DCYF had nearly “2000 open assessments of child abuse reports

that are overdue for resolution; turnover among social workers went from 25 percent of staff per

year in 2016 to 30 percent of staff in 2017.” 23

72. Moreover, the “number of child abuse reports coming into the office continues to

rise”. 24

73. The documented failings of DCYF are widespread and a matter of public

record. 25

74. The shortfalls are exacerbated by unconstitutional budgetary decision-making in

the face of uncontroverted evidence regarding the connection between the absence of resources

and the inability of New Hampshire to abide by its mandated legal obligations in response to a

period of “crisis.”

75. As of 2018, total spending on child protection in New Hampshire was millions of

dollars beneath where they were a decade before, before inflation and through the opioid crisis.

76. As a result, DHHS has failed to abide by the recommendations of its auditors

regarding budget allocations for DCYF and has not funded the agencies with responsibility for

22
Dave Solomon, DCYF leaders say caseloads still high, turnover still a problem, N.H. UNION LEADER (Mar. 11,
2018) available at http://www.unionleader.com/public-safety/dcyf-leaders-say-caseloads-are-high-morale-is-low-
and-turnover-a-problem-20180311.
23
Id.
24
Id.
25
See Dave Solomon, DCYF struggles to improve, as bad news keeps coming, N.H. UNION LEADER (May 30, 2018)
available at http://www.unionleader.com/state-government/DCYF-struggles-to-improve-as-bad-news-keeps-coming-
05312018.

15
abiding by the legal requirements enacted by the legislature at levels that facilitate legal

functioning.

77. DHHS’s conduct is the very definition of state neglect of its responsibilities

toward abused and neglected children.

78. DHHS has approached its remedial efforts with the very same absence of urgency

that has, for so long, characterized its officials’ illegal conduct. 26

79. DHHS has also retaliated against employees who have attempted to call attention

to the illegal, corrupt and wasteful conduct of DHHS and DCYF. 27

80. This has cost New Hampshire and its taxpayers.

81. In early May 2018, New Hampshire, through the New Hampshire Attorney

General, agreed to pay over $6.5 million to two children who suffered abuse while under the

supervision of DCYF, along with a separate $500,000 payment to their new guardians as a result

of New Hampshire’s failure to protect children from harm.

82. This settlement arose in response to a complaint filed in New Hampshire Superior

Court, identified by the case number, 216-2016-cv-743, Hillsborough County, Northern District.

83. The complaint alleged that that the abuse at issue occurred between the Summer

2012 and late Fall 2013.

26
New Hampshire even has had to codify baseline standards of courteous behavior to regulate the conduct of state
officials as it relates to foster parents. See RSA 170-E:51 and E:52.
27
See Ethan DeWitt, Plaintiff says $275K settlement sends a message to DCYF, Concord Monitor (Sept. 4, 2018)
(“In October 2016, Rossiter was fired from her position with the child services agency after a string of poor
performance reviews that she says were retaliatory. An outspoken critic of agency leadership, Rossiter says she
often locked horns with her superiors over constraints imposed on caseworkers.”), available at
https://www.concordmonitor.com/New-Hampshire-settles-with-DCYF-whistleblower-19779405.

16
 84. The New Hampshire Attorney General stated that “justice was well-served” by

New Hampshire’s resolution of the matter. 28

85. DHHS’s failure to protect its children is serial and extends throughout the child

protection system.

86. In May 2018, press reports indicated that state employees were being investigated

by the OCA for committing violence and child abuse upon children in New Hampshire’s youth

detention center. 29

87. The OCA expressed skepticism about New Hampshire’s commitment to

investigating New Hampshire’s violence toward its children in that case, suggesting that the

Attorney General and the Department of Health and Human Services were not being candid

about the status of their investigative effort. 30

88. The OCA asked for greater authority to protect children during the 2018

legislative session and its authority was expanded through Senate Bill 479, which amended RSA

170-G:18 so as to ensure the public is aware of the outcome of its investigations into New

Hampshire’s failure to protect children. 31

28
Kristen Carosa, Nearly $7M settlement reached with girls sexually abused while under DCYF care , WMUR.com
(May 3, 2018), available at http://www.wmur.com/article/nearly-dollar7m-settlement-reached-with-girls-sexually-
abused-while-under-dcyf-care/20137464.
29
Jason Moon, Child Advocate Investigating Sununu Youth Center Following Allegations Around Use of Restraints,
NHPR.org (May 9, 2018) available at http://nhpr.org/post/child-advocate-investigating-sununu-youth-center-
following-allegations-around-use-restraints#stream/0.
30
Id.
31
ASSOCIATED PRESS, Child Advocate Office Could Get More Authority Under Bill (Apr. 23, 2018) available at
http://nhpr.org/post/child-advocate-office-could-get-more-authority-under-bill#stream/0.

17
 89. On or about July 22, 2018, DHHS settled another civil action in which a plaintiff

child suffered traumatic brain injury after having been placed in foster care with foster parents

who had a record of superintending the death of another foster child. 32

90. Expert reports from academics retained in that matter concluded that state

officials failed to perform basic tasks to protect the welfare of a child and thereby breached

standards of care in 2014. 33

91. On July 26, 2018, the United States Department of Health and Human Services

issued a report indicating that New Hampshire continues to receive failing scores in regard to

how it is responding to children subject to abuse and neglect. 34

92. “After reviewing 65 cases in process at Manchester, Concord and Seacoast offices

of the Division of Children, Youth and Families in April [2018], officials from the U.S.

Department of Health and Human Services say the state is failing in all seven outcomes

considered essential to an effective child welfare system.” 35

93. The Director of DCYF admitted that even as of April 2018, New Hampshire is

failing to protect children from abuse and neglect. 36

32
Mark Hayward, NH settles another child abuse lawsuit, N.H. UNION LEADER (July 21, 2018) available at
http://www.unionleader.com/courts/mother-of-child-that-suffered-brain-damage-at-hastily-licensed-foster-home-
sues-dcyf-20180720.
33
Id.
34
See Dave Solomon, NH child protection gets failing grades in federal review, N.H. UNION LEADER (Aug. 17,
2018), available at http://www.unionleader.com/article/20180817/NEWS06/180819553/-
1/mobile_SPORTS0401&template=mobileart (last visited August 22, 2018).
35
Id.
36
See Letter of Jerry Milner, Associate Commissioner, Children’s Bureau, Administration for Children and
Families, United States Department of Health and Human Services to Mr. Joseph Ribsam, Jr., Director, Division of
Children, Youth and Families (July 26, 2018) (attaching document entitled Children and Family Services Reviews,
New Hampshire Final Report 2018) available at https://www.dhhs.nh.gov/dcyf/documents/nh-cfsr-2018-report.pdf .

18
 94. On or about August 13, 2018, DCYF was named in a lawsuit filed in the

Hillsborough County Superior Court, Estate of Sadence Willott v. DCYF, in which DCYF is

alleged to have failed to follow its own policies and procedures, and the law, when notified that

the child was abused and neglected, resulting in the death of the child.

95. On January 14, 2019, the OCA issued its 2018 Annual Report (“2018 Report”),

attached hereto as Exhibit 2.

96. The 2018 Report was the product of an assessment process in which the “OCA

staff traveled approximately 4,500 miles around the state and engaged in nearly 300 activities

and events locally, regionally and national” as well as interviews, site tours, field assessments,

and other assessment related projects. 2018 Report at 13.

97. The 2018 Report states: “Finally, the time has come to stop waiting for children

to appear bruised and battered before we step in to help.” 2018 Report at 2 (emphasis added).

98. The 2018 Report provides: “Intakes and assessments of reports of suspected abuse

and neglect have persistently been identified as an area for improvement in DCYF reviews.”

2018 Report at 2.

99. The 2018 Report provides: “The intake and assessment of allegations of abuse

and neglect are arguably the most impactful roles of DCYF. Decisions made at these points can

save lives or tear families apart.” 2018 Report at 17.

100. The 2018 Report provides: “The overdue assessment backlog remains at 2,000

cases. As the opioid epidemic impacts unintended high-risk pregnancies and births, the burden

on assessment workers intensifies.” 2018 Report at 2; see also 2018 Report at 17 (reporting the

number of cases at 2200).

19
 101. The 2018 Report provides: “The capacity for the DCYF system has been

exhaustively reviewed in the past two years. The shortcomings of the agency’s capacity are

clear: insufficient workforce, insufficient training and expertise, and insufficient resources to

purchase services that actively, actually help children heal.” 2018 Report at 1.

102. The 2018 Report provides: “If DCYF workers are going to intervene effectively

for children, they must have management workloads, support from experts like nurses and

substance use counselors, and an array of services to offer families.” 2018 Report at 1.

103. The 2018 Report provides that “at the height of workload crisis, DCYF

assessment workers carried over 90 cases on their load. By September 2018, the workload had

dropped to 44 cases on average. Although much improved, the DCYF workload does not meet

the recommended standard of adequate, safe assessment work of 12 cases.” Id.

104. In other words, the OCA report found that “the improved” position of DCYF still

imposed a case load on assessment workers that is four-times larger than the standard for

“adequate, safe assessment.” Id.

105. The 2018 Report recommended, among other things, that the legislature:

a. “Allocate funding for 104 positions as recommended in DCYF’s prioritized

budget needs to ensure DCYF has sufficient staff to meet the standard of safe
assessment.”

b. “Allocate funding for 15 nurses within DCYF to serve as health resource on

assessments, targeting medically complex assessments such as drug exposed
infants.”

2018 Report at 2; see also 2018 Report at 19.

106. Then-DHHS Commissioner Meyers responded to the 2018 Report by letter dated

January 14, 2019, contesting its findings, denying legal responsibility, and interpreting DHHS’s

scope of responsibility narrowly without any credible legal analysis. Exhibit 3.

20
 107. The OCA responded to then-DHHS Commissioner Meyer’s January 14, 2019

letter, by letter dated January 16, 2019. Exhibit 4.

108. In this letter, the OCA contested then DHHS Commissioner Meyer’s

understanding of his agency’s legal mandate. In this letter, the OCA deemed it necessary to

remind the DHHS Commissioner his agency’s core legal obligations, noting:

[T]o disavow the leading role of DCYF holds and to further suggest that
DCYF is solely a crisis response system bellies the experience of children who
are in DCYF custody or guardianship for years – some for an entire
childhood. […] Within the collective efforts of the community to support
children, the Department, as the entity mandated by statute to protect and
supervise them, is held to the highest standard of care.

Exhibit 4 at 2 (emphasis added).

109. The OCA’s interpretation of DHHS’s broad responsibilities was consistent with a

memorandum drafted by Attorney General Gordon MacDonald, dated March 5, 2018, and

addressed to Commissioner Meyers, the OCA, and high-ranking DCYF officials. Exhibit 5.

110. The memorandum provides: “With respect to child protective services, the term

‘custody or control’ should be read broadly to include children who are in the assessment phase

of the process or who have had calls made to Central Intake that have been screened for review.”

Exhibit 5 at 3 (construing provisions of RSA 169-C and 170-G). Exhibit 5 at 3.

111. Approximately eleven months later, the OCA issued a 2019 System Learning

Review Summary Report (“2019 Report”), attached as Exhibit 6.

112. The 2019 Report reiterates: “A comprehensive and thorough review of child

deaths and other critical incidents is an essential component of public health.” 2019 Report at 4.

113. The 2019 Report provides: “By law, we are all mandated reporters in New

Hampshire. As a community, we all carry responsibility for the safety and wellbeing of children.

That includes ensuring well-resourced and effective prevention programs are available to

21
families; and for when families struggle, child protection services that are equipped to intervene

and ensure children are safe.” 2019 Report at 4.

114. The 2019 Report provides: “Between February 2018 and September 2019, the

OCA received notice of 26 child deaths.” 2019 Report at 9.

115. The 2019 Report found that 17 of the 26 children had histories of contact with

DCYF. 2019 Report at 10.

116. The 2019 Report found that the legislature had appropriated funding for 77

positions in the most recent budget, dozens short of the recommendations in the 2018 Report of

119 additional DCYF workers. 2019 Report at 24.

117. The 2019 Report indicated that DCYF assessment caseworkers continued to have

caseloads of between 42-46 cases per worker with “some district offices report[ing] caseloads up

to 60-65.” 2019 Report at 24.

118. The 2019 Report indicated that “Although DCYF administrators reported to the

OCA considerable changes in human resource processes, there have been significant delays.”

2019 Report at 24.

119. 2019 Report noted that DCYF indicated low acceptance rates in response to offers

of employment. 2019 Report at 24.

120. The 2019 Report indicated that OCA conducted a survey of similarly situated

positions throughout the region and found that there were “significant differences in starting

salary for child protection caseworkers across the region, with New Hampshire paying the

lowest.” 2019 Report at 24.

22
 121. The 2019 Report indicated that New Hampshire pays incoming caseworkers

between $10,000 and $15,000 less than caseworkers hired to positions in Massachusetts and

Maine. 2019 Report at 25.

122. The 2019 Report indicated: “If the logistical barriers to hiring are not yet

resolved, the Commissioner and Governor should declare emergency hiring circumstances and

insist on rapid position postings and application processing. If the barrier truly is salary disparity

in the region, then reconsideration of CPSW and CPSW supervisor salaries should be emergently

reviewed and adjusted as well.” 2019 Report at 25.

123. The 2019 Report further provided: “Functioning for more than a decade with

inadequate staffing appears to have established a culture of inadequacy that will need deep

training, supervision and support to shift to a higher quality of services.” 2019 Report at 25.

124. As a result, the 2019 Report provided that administrators have continued

unqualified or inadequate staff in positions of substantial responsibility. 2019 Report at 25.

125. The 2019 Report garnered substantial press coverage, including by New

Hampshire Public Radio (“NHPR”) and its reporters. 37

126. Governor Sununu nominated Shibinette to the position of Commissioner of

DHHS on December 17, 2019 after the OCA issued the 2019 Report.

127. Shibinette testified before the Executive Council at a hearing on her nomination

on January 8, 2020.

128. She testified, “I think that recruitment and retention issues at DCYF is a cycle.

We recruit new CPSWs and their caseloads are so high that they become burned out very, very

37
See Jason Moon, Communications Problems, Staffing Shortages and Public Imagine Hinder DCYF, Child
Advocate Finds, NHPR (Oct. 30, 2019) available at https://www.nhpr.org/post/communication-problems-staffing-
shortages-and-public-image-hinder-dcyf-child-advocate-finds#stream/0 .

23
quickly and then they look for another job. And they are not paid what they feel is a living wage.

So they look for another job. Then we have vacancies again.”

129. DHHS and Shibinette have taken the remarkable step of introducing a bill to

provide stress management services to DHHS staff exposed to critical incidents of trauma in the

course of their employment. 38

130. In her testimony before the Executive Council, Shibinette confirmed that the

backlog identified by the OCA in the 2019 Report remained at over 2,000 cases.

131. Shibinette, like Meyers, minimized the responsibilities of DHHS during her

testimony, refusing to confirm DHHS’s leading role in New Hampshire’s failure to protect our

most vulnerable children. 39

132. DHHS, Shibinette and Meyers, together have claimed that they have had

difficulty recruiting and maintaining the DHHS employees necessary to respond to the needs of

abused and neglected children.

133. DHHS, Shibinette and Meyers have not spent substantial sums of state allocated

funds available to address the needs of abused and neglected children, though such funds are

available.

38
See SB 634, available at
http://gencourt.state.nh.us/bill_status/billText.aspx?sy=2020&v=SI&id=1967&txtFormat=html; see also Jason
Moon, Bill Would Create Peer Support Group for N.H. DCYF Employees Who Investigate Abuse (Jan. 29, 2020)
(“Supporters of the measure say case workers with the Division of Children Youth and Families experience
secondary traumas on a regular basis and [] need a protected setting to debrief.”), available at
https://www.nhpr.org/post/bill-would-create-peer-support-group-nh-dcyf-employees-who-investigate-
abuse#stream/0 .
39
See Associated Press, Youth Parole Officer Kept Job Amid Child Abuse Investigation (Feb. 5, 2020) (“A former
employee of a New Hampshire youth detention center continued working with children in a state job for nine
months after police began investigating allegations that he held a boy down while colleagues raped him in 1998.”),
available at https://www.nhpr.org/post/youth-parole-officer-kept-job-amid-child-abuse-investigation.

24
 134. For instance, DHHS failed to use as much as $90 million in public health

appropriations, budgeted to DHHS for the past biennium. 40

135. DHHS, Shibinette and Meyers, could not, credibly, justify their spending

decisions with reference to basic principles of market-based economics, including the principles

of supply and demand, and given legal mandates applicable to each.

136. This and other spending decisions by DHHS, Shibinette and Meyers, contribute

to, have contributed to, cause and have caused, DHHS’s persistently illegal conduct toward

abused and neglected children.

II. Anna responded to this crisis by advocating for abused and neglected children.
DHHS retaliated against her for doing so.

137. Anna is a Programs Information Officer for a DHHS program called NH Healthy

Lives.

138. Anna has an Associate’s Degree in Animal Science and Community Leadership

from the University of New Hampshire.

139. Anna has a Bachelor’s Degree in Applied Management from Granite State

College.

140. Anna has a Master’s Degree in Social Work from the University of New

Hampshire.

141. Anna has been a licensed as a child and family therapist.

142. Anna has spent the balance of her career devoted to public health issues affecting

children and other vulnerable populations.

40
See Ethan Dewitt, Next head of DHHS faces many issues, VALLEY NEWS (Oct. 20, 2019)
https://www.vnews.com/Capital-Beat-What-s-left-for-Jeff-Meyer-s-successor-29523311 (“the Department had
returned a significant amount of unused money—more than $90 million—at the end of the latest fiscal year.”).

25
 143. From October 2017 until May 2019, Anna worked as a Health Promotion Advisor

within the Asthma Control Program at DHHS.

144. Her duties and responsibilities included leading public education efforts through

presentation and outreach activities to New Hampshire citizens.

145. Beginning in May 2019, Anna was promoted to her current position as a

Programs Information Officer for the NH Healthy Lives program.

146. Her duties and responsibilities include, but are not limited to, coordinating

communication and marketing materials for the arthritis, cancer, asthma, oral health, heart

disease, and diabetes programs on behalf of the state including, branding, marketing campaigns,

graphic design, and layouts for official reports and documents, and creating strategic

communication plans to guide grant-related activities.

147. Anna has been a vocal critic of New Hampshire’s response to the abuse and

neglect crisis.

148. Anna is the Founder and Director of The New Road Project, a non-profit

organization dedicated to educating the public about New Hampshire’s child protection system

and advocating for families with child protection involvement.

149. The New Road Project has a publicly available website at thenewroadproject.org

in which Anna and the organization publicly advocate for an improved child protective services

system and propose public policy solutions. The New Road Project engages in similar public

advocacy through third-party social media outlets.

150. As of April 19, 2019, DHHS provided the following official review in response to

an internal request to promote Anna to her current position: “She has a proven track record of

results, leadership, passion, and knowledge that she has cultivated during her years at DPHS. . .

26
Given the success she’s had in her current position, her experience with DHHS staff, and

familiarity with our work and state systems, she’ll be effective immediately upon hire.”

151. Anna’s personnel file, which she obtained by request, otherwise includes no

negative performance indicators and no disciplinary history.

152. On April 22, 2019, Anna was profiled by a statewide newspaper for her advocacy

on behalf of the victims of child abuse and neglect. 41

153. According to the report, in one case involving abuse and neglect against a young

child, Anna asserted that her concerns “were arbitrarily dismissed by the Manchester police

detective assigned to the case, the case workers at DCYF who relied too heavily on the

investigator’s conclusions, and a mayor who took no interest in challenging any of those

decisions.” Id.

154. The report indicated that, earlier the same year, “Anna was recognized in the

March 28 edition of the DHHS internal employee newsletter in honor of Social Work Month: ‘A

background in social work has proven invaluable in the Division of Public Health Services’

Asthma Control Program, as Program Administrator Anna Carrigan can attest.’” Id.

155. The report indicated: “The Democratically controlled legislature is at odds with

the governor over how many more positions to fund, as a House committee voted last Tuesday to

fund 77 new positions, while Gov. Chris Sununu would authorize 62 but fund only 26.” Id.

156. In response, Anna is reported as having stated:

• “Not wanting dead children and refusing to fully fund the child protection system
are diametrically opposed ideas…They are mutually exclusive.” Id.

• “Case workers get much of the blame when things go wrong, but that’s
misplaced. It should be redirected up the chain of command.” Id.

41
See Dave Solomon, DHHS social worker hopes to mobilize public to improve child protection, UNION LEADER
(Apr. 22, 2019), available at https://www.unionleader.com/news/politics/state/dhhs-social-worker-hopes-to-
mobilize-public-to-improve-child/article_2b2dd67a-516b-5a8f-be20-b555bc186e79.html attached as Exhibit 7.

27
 • “Based on the current state of child protection, DCYF case workers are given an
impossible task where it is a lose-lose for them and for those they are trying to
help.” Id.

• “They arguably have the most difficult job in the entire government but are some
of the lowest paid workers, which is a true testament to how much we actually
value the work they do.” Id.

157. On May 3, 2019, Anna gave an interview to NHPR in which she made the

following statements: 42

• “Yes, we have the Office of the Child Advocate. She has no ability to
make DCYF do anything. She can only make recommendations. And I
think that's a misperception in the public, and that to me it almost seems
like placating the public that oh yes, there is oversight. But to me,
oversight means then being able to have the authority to say that this
piece needs to change and she can't do that. And the same is true of the
DHHS ombudsman. So in effect, people are able to look at what's
happening at DCYF. No one can make DCYF do anything different.”

• “…I think that these reforms, in terms of increasing the amount of

caseworkers, it's not fast enough. Because what I predict is going to
happen is that they'll bring these new people on, which they're having
trouble recruiting because of the reputation of the agency, and that they're
going to burn out faster than they can build up the capacity to get
caseloads down to a manageable ratio.”

• “My nonprofit is not about decreasing childhood abuse and neglect

directly. I think there's already many organizations that do that in the
state, and that's you know obviously certainly DCYF's job. There seems
to be a gap in the three things I'm hoping to do with my organization,
which is first of all, being able to provide education for families and for
professionals that need to make reports and interact with the system about
what you can do if things aren't going right and who you can reach out
to.”

42
See Rick Ganey & Mary McIntyre, DHHS Worker Becomes Advocate for DCYF Reform, NHPR (May 3, 2019),
available at https://www.nhpr.org/post/dhhs-worker-becomes-advocate-dcyf-reform#stream/0) attached hereto as
Exhibit 8.

28
 158. While engaging in this public advocacy, Anna also engaged DHHS and DCYF,

internally, to ensure that the child she believed DHHS failed to protect obtained the review and

services necessary for the child’s best interest.

159. Anna petitioned Thomas Pristow (“Pristow”), former Deputy Commissioner of

DHHS that the child was in danger and that the danger was the product of corruption, illegality,

and waste at DCYF.

160. Pristow instructed top officials at DCYF to communicate with Anna to resolve the

matter.

161. These top officials took months and months to respond to Anna’s petitioning

conduct.

162. Ultimately, Anna petitioned for a meeting with then-Commissioner Meyers.

163. Anna noted that DCYF had failed to abide by safety review and assessment policy

protocols on a timely basis, failing to do so months after the time periods mandated by policy.

164. Then-Commissioner Meyers, whose agency was facing numerous lawsuits for

DCYF misconduct, having been put on notice of Anna’s concerns through her petitioning,

initiated an additional review in response to Anna’s petitioning.

165. As result, the Office of the Ombudsman reviewed the matter, months and months

after the initiating event, and concluded that DCYF failed to comply with its own policies.

166. The Office of the Ombudsman is a body which purports to “respond to complaints

and requests for assistance from clients, employees, and members of the general public to resolve

disagreements in matters that involve DHHS. The Office of the Ombudsman is dedicated to

maintaining an environment that supports the civil rights of all served.” 43

43
See https://www.dhhs.nh.gov/oos/ombudsman/.

29
 167. The Office of Ombudsmen issued recommendations that DCYF interview all

relevant individuals and comply with policy-manded timelines.

168. A subsequent review by a specialist external to DCYF further indicated that the

Manchester Police detective assigned to the case was biased and engaged in inexcusable delay in

the investigation.

169. On or about July 28, 2019, Anna led a public protest in front of the New

Hampshire state house organized by the New Road Project for the purpose of bringing greater

attention to the child abuse and neglect crisis. She chose this public forum to gain the attention

of the New Hampshire General Court and the New Hampshire public.

170. NHPR covered and reported on the protest. 44

171. Among other things, NHPR reported: “Anna Carrigan, the director of the non-

profit and an official at the Department of Health and Human Services, says a public event like

this is important because the current system discourages families from speaking up and seeking

outside resources.” Id.

172. NHPR reported that Anna stated: “The department and this infrastructure makes

people feel really isolated. That [they can’t] reach out out of fear of what would happen to their

children…And so I’m hoping that we can act as an umbrella organization for people to feel safe

and say 'this is what’s going on with me.'” Id. (internal quotations omitted).

173. On or about August 8, 2019, Jake Leon, the Director of Communications for

DHHS and a high-ranking official with DHHS, relayed a message from the top-levels of DHHS

that Anna had been labeled by Leon, at least, a “disgruntled employee.”

44
See, Sara Willa Ernst, Child Welfare Advocates March for Reforms at N.H. DCYF, NHPR (July 28, 2019),
available at https://www.nhpr.org/post/child-welfare-advocates-march-reforms-nh-dcyf#stream/0 attached hereto as
Exhibit 9.

30
 174. Leon then attended a meeting with Anna her colleagues, without explanation, and

publicly criticized Anna in front of her colleagues, providing comments related to her mode of

communication and advocacy on behalf of abused and neglected children.

175. Leon’s presence at the meeting was not consistent with his practice or

performance of attending such meetings.

176. Anna subsequently requested authorization, from then-Commissioner Meyers,

through counsel, that she be permitted to speak to the press about DHHS’s performance with

regard to her, her petitioning activity, and the subject matter of her petitioning activity.

177. Anna specifically requested authorization to speak to Jason Moon, a reporter with

NHPR. Moon has covered the child abuse and neglect crisis.

178. Anna, through counsel, requested that DHHS engage in a meet and confer process

around her request, seeking to confer on the scope of the subject matter she could discuss with

Moon and NHPR.

179. Anna learned, through then Commissioner Meyers, on September 3, 2019, that

“The Department of Health and Human Services does not consent to the sharing of any records

or information regarding this matter with NHPR or any media at this time.”

180. DHHS has not modified its position since that time. DHHS has never provided to

Anna or counsel a basis in the law for its position, which suppresses and interference with

Anna’s rights to free speech and expression.

181. Anna suffers from Lyme Disease. Anna received a diagnosis in 2011 and has

suffered severe symptoms resulting from Lyme Disease, both physical and neurological.

31
 182. DHHS has devoted an entire separate website to acknowledging and responding

to Lyme Disease and other tickborne diseases. 45

183. According to DHHS, “Lyme disease and other tickborne diseases are an important

cause of illness in New Hampshire (NH).” 46

184. “The incidence of these infections has increased significantly over the last decade

prompting the need for a statewide prevention plan to reduce their burden.” Id.

185. Symptoms associated with Lyme Disease include “head ache, flu-like illnesses,

muscle pain, joint pain and swelling, neurological deficits and cardiologic dysfunction.” Id.

186. “For the years 2008 and 2012, NH had the highest incidence rate of Lyme disease

in the US.” Id.

187. On May 8, 2018, DHHS published an official alert regarding Lyme Disease,

expanding the symptoms associated with Lyme Disease and acknowledging that “about half of

those that survive clinical disease have permanent neurological sequelae.” 47

188. On August 22, 2018, Governor Sununu drafted a letter to the United States

Environmental Protection Agency, in which he stated:

In New Hampshire it is almost impossible now to find anybody who doesn’t have
a loved one, friend, or acquaintance with Lyme disease. It is heartbreaking to see
the effects of this often times debilitating disease. In fact, a recent study
highlighted in US Today found that over 1,200 suicides each year—and more
31,00 suicide attempts—are attributed to Lyme disease. 48

45
See Publications and Data for Lyme and Other Tickborne Diseases, NH DHHS, available at
https://www.dhhs.nh.gov/dphs/cdcs/lyme/publications.htm (last visited Feb. 3, 2020).
46
See State of New Hampshire Tickborne Disease Prevention Plan, NH DHHS (Mar. 31, 2015), available at
https://www.dhhs.nh.gov/dphs/cdcs/lyme/documents/tbdpreventionplan.pdf (last visited Feb. 3, 2020).
47
See Tickborne Diseases in New Hampshire, NH DHHS (May 19, 2018) available at
https://www.hanovernh.org/sites/hanovernh/files/uploads/20180518_tickborne_disease_han_with_attachments.pdf
(last visited Feb. 3, 2020).
48
See Letter of Hon. Christopher Sununu to Hon. Andrew Wheeler, Acting Administrator, United States Department
of Environmental Protection Agency (Aug. 22, 2018).

32
 189. Indeed, in May 2018, Governor Sununu declared “May . . . Lyme Disease

Awareness Month” 49

190. According to Governor Sununu, “Lyme Disease is an indiscriminate illness that

has touched every corner of New Hampshire.” Id.

191. According to Governor Sununu, “Lyme Disease has an absolutely debilitating

effect that keeps far too many Granite States from living the lives they want to live.” Id.

192. Defendants are public officials or agencies tasked with public responsibilities

associated with understanding and combatting public health threats such as Lyme Disease.

193. Defendants would not contest that Lyme Disease has a debilitating effect on those

afflicted with it.

194. On or about August 6, 2018, Anna requested accommodations for the serious

symptoms she suffers as a result of Lyme Disease from a DHHS administrator. Anna never

received a response to this request from Jones, who became the Ombudsman who responded to

Anna’s petition on behalf of a child referenced in this complaint.

195. On or about April 11, 2019, Anna met with her supervisors, Hammond and Lara,

and reported her Lyme Disease and symptoms to them. Anna received permission from both to

telework when she suffered symptoms associated with Lyme disease at or as a result of this

meeting.

49
See Tony Schinella, It’s Lyme Disease Awareness Month; NH Has 4th Highest Rate in U.S., PATCH.COM (May
16,2019) available at https://patch.com/new-hampshire/concord-nh/it-s-lyme-disease-awareness-month-nh-has-4th-
highest-rate-u-s (last visited Feb. 3, 2020); see also Governor Sununu Proclaims May 2018 Lyme Disease
Awareness Month in New Hampshire, NH DHHS, available at https://www.dhhs.nh.gov/media/pr/2018/05182018-
lyme-disease.htm (Feb. 4, 2020)

33
 196. Anna, Hammond, and Lara all agreed that because of the serious symptoms

associated with Anna’s Lyme Disease, Anna would be permitted to telework when her symptoms

recurred.

197. Anna, Hammond, and Lara also agreed that Anna’s ability to telework was a

condition of Anna’s decision to accept DHHS’s offer to assume her current position. Hammond

and Lara recruited her to this position knowing, understanding, and accepting the limitations

resulting from Anna’s symptoms as a victim of Lyme Disease.

198. According to the New Hampshire Department of Administrative Services

“Telework Technical Assistance Manual.” (“Telework Manual”), 50 “[t]elework refers to

conducting normal business operations from the home or alternate location and has been found to

benefit society by reducing energy consumption, decreasing environmental pollution and

reducing traffic congestion.” Telework Manual at 3.

199. “Telework is an authorized work arrangement in which some or all work is

performed at a location other than the employee’s primary (usual and customary workplace).”

Telework Manual at 3. The alternative workplace may include the employee’s home or

alternative location.” Telework Manual at 3.

200. The Telework Manual provides that “Telework has been found to benefit

employers and employees by reducing office costs, saving commuting costs and allowing

flexibility in work schedules.”

201. On or about May 31, 2019, Lara gave Anna permission to work on a flex time

basis, consistent with Lara’s practice of permitting other employees to work on a flex time basis.

50
Available at https://das.nh.gov/hr/documents/Telework%20Manual%20NH.pdf (last visited Feb. 4, 2020).

34
 202. On or about October 14, 2019, Anna reported that she was suffering serious

symptoms associated with her Lyme Disease, resulting in substantial limitations on her physical

well-being.

203. On or about November 25, 2019, after a spring and summer of advocacy on

behalf of the rights and interests of children, Anna received a “notation of counseling session,”

from Lara accusing Anna of failing to communicate regarding her health status and suspending

her “telework” privileges.

204. Lara issued this “notation of counseling session” as a means of depriving Anna of

representation by her union.

205. On or about December 2, 2019, Lara informed Anna that she could not telework

during snowstorms though many other DHHS employees, including Anna’s colleagues, past and

present, were permitted to do so.

206. On or about December 3, 2019, Anna emailed Lara and Hammond seeking the

accommodation of telework because of a snowstorm and received no response. Anna’s

colleagues received this accommodation.

207. On or about December 9, 2019, Lara informed Anna that she was not entitled to

union representation in regard to the suspension of her telework privileges, an inaccurate

representation.

208. On or about December 19, 2019, Anna provided her supervisor with a medical

note indicating that she suffers from a serious medical condition and requesting that she be

permitted to work from home until her condition improves.

35
 209. Since Anna became a public advocate for abused and neglected children, and

since Anna engaged in petitioning conduct described in this complaint, Anna’s supervisors have

subjected her to inconsistent positions regarding her employment and telework privileges.

210. This treatment caused Anna to suffer recurrences of symptoms associated with

Lyme disease and to suffer injuries to her professional and personal life, including those

associated with lost wages, lost opportunities for professional growth, and deteriorating personal

health.

211. On or about January 8, 2020, and despite suffering these injuries, Anna continued

her advocacy and petitioning conduct by providing testimony before the Executive Council

opposing the confirmation of Shibinette to the position of Commissioner of DHHS.

212. Her testimony was coextensive, or nearly coextensive, with a letter she submitted

to the Executive Council, attached hereto as Exhibit 10.

213. Before the Executive Council and in her letter, Anna disputed whether Shibinette

had the leadership capacity or inclination to effectively respond to the child abuse and neglect

crisis. Id.

214. Among other things, she noted, “[T]he fact that [Shibinette] served as Deputy

Commissioner of DHHS from 2016-2017, in the middle of the States’s most disturbing, and

ongoing, child protection crisis in our history, and never took a public stance to condemn what

was (and still is) happening inside the ranks of DHHS leadership and the Sununu administration

in the handling of this crisis calls into question whether Ms. Shibinette possesses and is able to

demonstrate the qualities of a moral leader.” Id.

36
 215. On January 24, 2020, DHHS denied Anna a workplace accommodation under the

Americans with Disabilities Act, though Anna never initiated such a request, and did not know

that a review process had been initiated regarding her request under this statute.

216. On January 31, 2020, Anna received an unsigned letter from Hammond making a

series of demonstrably false accusations regarding Anna’s duties and responsibilities at DHHS.

217. On February 3, 2020, Anna, through counsel, responded to the unsigned letter,

identifying the letter’s inaccuracies. See Exhibit 11 (containing letter and response).

III. The New Hampshire Constitution empowers Anna to seek broad relief before this
Court.

218. On November 2018, the New Hampshire voters amended Part I, Article 8 of the

New Hampshire Constitution.

219. Part I, Article 8 of the New Hampshire Constitution now includes the following

provisions:

• “The public . . . has a right to an orderly, lawful and accountable government.”

• “Therefore, any individual taxpayer eligible to vote in the State shall have
standing to petition the Superior Court to declare whether the State . . . has spent,
or has approved spending public funds in violation of a law, ordinance or
constitutional provision.”

• “In such a case, the taxpayer shall not have to demonstrate that his or her personal
rights were impaired or prejudiced beyond his or her status as a taxpayer.”

N.H. Const., Part I, Art. 8.

220. Anna is a New Hampshire taxpayer and a homeowner who lives in Farmington,

New Hampshire, pays New Hampshire taxes, and is eligible to vote in New Hampshire.

221. In this action, in addition to seeking relief for injuries she suffered personally,

Anna seeks relief regarding the spending decisions of DHHS and Shibinette under Part I, Article

8, as a taxpayer and eligible voter.

37
 222. In each such instance, Anna asserts that the failures of DHHS and its officials, set

forth below, for which she asserts standing under Part I, Article 8, are the product of illegal state

spending decisions of DHHS and Shibinette, and are subject to relief before the judicial branch.

223. Anna asserts that DHHS and Shibinette are responsible for these spending

decisions which she asserts have caused DHHS to act illegally as set forth in this complaint.

COUNT I
(DECLARATION OF VIOLATIONS OF RSA 169-C AGAINST DHHS AND
SHIBINETTE)

224. Anna hereby repeats, realleges and incorporates by reference each and every

allegation set forth in the preceding paragraphs.

225. Anna seeks a declaration that DHHS and Shibinette are in violation of RSA 169-

C.

226. Anna seeks a declaration that, as a product of DHHS spending decisions, DHHS

and Shibinette have failed and are currently failing to:

• Ensure that “[e]ach child coming within the provisions of this chapter shall

receive, preferably in his own home, the care, emotional security, guidance and

control that will promote the child’s best interest” pursuant to 169-C:2 (Emphasis

added).

• Ensure that an investigation is commenced with regard to all reported cases of

abuse and neglect under within no later than 72 hours of the report under RSA

169-34;

• Ensure that any investigation is conducted “promptly” as set forth under RSA

169-34, II;

38
 • Ensure that law enforcement is notified “immediately” of the subject matter of

RSA 169-38;

• Ensure that, in any case, investigations and assessments be completed within 60

days of obtaining a report, consistent with RSA 169-38-a, which mandates that

DHHS adopt standard protocols of child abuse and neglect investigations.

227. Anna asserts that the persistence of an approximately 2000-case backlog along

with caseloads for assessment workers that are four-to-eight times greater than the standard for

responsible and proper assessment standards is evidence of these violations.

228. Anna asserts that overstaffing, understaffing, and poor training of DHHS also

violates RSA 169-C.

229. Anna asserts that all of the illegal conduct set forth above is the product of

spending decisions by DHHS and Shibinette, in her official capacities.

COUNT II
(DECLARATION OF VIOLATIONS OF THE NEW HAMPSHIRE CONSTITUTION
AGAINST DHHS AND SHIBINETTE)

230. Anna hereby repeats, realleges and incorporates by reference each and every

allegation set forth in the preceding paragraphs, whether legal or factual.

231. Anna seeks a declaration that, for the reasons and in the manner set forth under

Count II, DHHS and Shibinette are in violation of the state constitutional rights of abused and

neglected children in New Hampshire.

232. As a matter of state constitutional law, New Hampshire provides the following

non-exclusive protections to children as a matter of constitutional right. 51

51
See Susan E. Marshall, THE NEW HAMPSHIRE CONSTITUTION at 41 (2011) (“Since the 1980s, the New Hampshire
Supreme Court has followed a national trend of giving primary importance to the interpretation of the state
constitution, when a protection for an individual right exists under both the state and federal constitutions.”); see
also Randy J. Holland, Stephen R. McAllister, Jeffrey M. Shaman & Jeffrey S. Sutton, STATE CONSTITUTIONAL

39
 233. These rights each individually, and in combination with each other, include:

a. Part I, Article 1, the right to have a government organized for the general good;

b. Part I, Article 2, the right to enjoy life and liberty and to seek and obtain

happiness;

c. Part I, Articles 3 and 12, the right to live in a society that ensures the protection of

its citizens as a basis for agreeing to engage in society and government;

d. Part I, Article 6, the right to equal protection under the laws;

e. Part I, Article 8, the right to an open, accessible, accountable and responsive

government, specifically in response to the conduct of magistrate and officers, as

well as an “orderly, lawful, and accountable government” whose adherence to the

law is subject to judicial review and judicial remedies;

f. Part I, Article 14, the right of every subject of the state to a remedy under our

laws for all injuries he may receive and the right to obtain justice fairly,

completely, promptly and without delay;

g. Part I, Article 15, the right of due process of the law;

h. Part I, Article 20, the sacred right to a jury trial in all controversies between

people in cases exceeding $1500 in value;

i. Part I, Article 28, the right to the full-funding of mandated programs assigned to

political subdivisions;

j. Part I, Article 29, the right against the suspension of the laws or the execution of

them by executive officials;

LAW THE MODERN EXPERIENCE iv (2016) (“Under the system of dual sovereignty that exists in this nation, a state
court is free to interpret its own state constitution in any way it determines, provided it does not contravene federal
law.”).

40
 k. Part I, Article 38, the right to live in a just, enlightened and virtuous society, as

opposed to a debased and selfish one;

l. Part II, Article 5, securing the legislative power and obligation to make

wholesome and reasonable laws; and

m. Part II, Article 83, securing the legislative obligation to spread opportunities and

the advantages of education and to inculcate humanity and general benevolence

among the people.

Cf. Baker v. State, 744 A.2d 864, 879 (Vt. 1999) (“We must ultimately ascertain whether the

omission of a party of the community from the benefit, protection, and security of the challenged

law bears a reasonable and just relation to the government purpose.”); Goodrich v. Department

of Public Health, 798 N.E.2d 941, 948 (Mass. 2003) (“The Massachusetts Constitution affirms

the dignity and equality of all individuals.”).

234. These constitutional rights guarantee the right to safety from DHHS and

Shibinette in cases of reported child abuse and neglect.

235. No responsible DHHS Commissioner would contest the existence of a child’s

constitutional right to be protected by DHHS and its appointees or agents when the state

becomes aware that a child is in danger through the mandatory report of abuse and neglect

process the state imposes.

236. The existence of this constitutional right is demonstrated through New

Hampshire’s self-imposed statutory mandate “to provide protection to children whose life, health

or welfare is endangered and to establish a judicial framework to protect the rights of all parties

involved in the adjudication of child abuse and neglect case.” RSA 169-C; see also RSA 170-E

and RSA 173-B.

41
 237. The rights arising from our state constitution place affirmative, as opposed to

merely negative, responsibilities upon the state to ensure and protect the safety of New

Hampshire’s children when the state is aware that the children’s safety is in jeopardy or

compromised. 52 Cf. Corfield v. Coryell, 4 Wash. C. C. 371, 6 F. Cas. 546, F. Cas. No. 3230

(CCED Pa. 1823) (“Protection by the government” identified as a fundamental aspect of the

rights of citizenry).

238. For instance, it would be impossible to maintain that New Hampshire: a) is just,

enlightened and virtuous, or b) that it complies with the obligations of humanity and general

benevolence, or c) that it abides by its responsibilities to fund its state mandated obligations, or

d) that its executive officials follow the law as imposed by the legislature, which are deemed

wholesome, if e) DHHS and Shibinette are permitted to fail to protect children from abuse and

neglect as a result of the systematic failures set forth herein.

239. The New Hampshire Supreme Court has demanded much more of the state in

regard to its children than these baseline constitutional principles require and the rights it has

described as positive rights. See Claremont School Dist. v. Governor, 138 N.H. 183, 192 (1993)

(“For over two hundred years New Hampshire has recognized its duty to provide for the proper

education of the children.”).

240. That is because, in New Hampshire, “[o]ur children embody the enduring wonder

of life. They hold our hopes for the future. We want them to be happy, to succeed in whatever

52
See Jenna MacNaughton, Positive Rights in Constitutional Law: No Need to Graft, Best not to Prune, 3 U. PA.
LAW. REV. 750, 764 (2001) (“State constitutional law contains even broader guarantees of positive rights, which
shows that these rights are already an established part of our political culture.”).

42
they do both in work and in play. We want them to contribute to our country and the world in a

constructive way.” 53

241. The concept of government responsibility for the welfare of children, as a positive

right belonging to children, is not novel. It has been acknowledged by the most respected legal

authorities in the history of the nation with regard to the development of our laws because of the

special nature of childhood. 54

242. During the nineteenth century, Justice Joseph Story pertinently remarked in his

renowned commentaries on American Law:

For although in general parents are intrusted with the custody of

the persons and the education of their children, yet this is done
upon the natural presumption that the children will be properly
taken care of… But whenever this presumption is removed,
whenever (for example) it is found that a father is guilty of gross ill
treatment toward his infant children, … in every such case the
Court of Chancery will interfere and deprive him of the custody of
his children…. 55

243. The government’s obligation to care for abused and neglected children and to

thwart child abuse are aims grounded in the very philosophy underlying our liberal democracy. 56

53
John M. Lewis and Stephen E. Borofksy, Claremont I and II – Were They Rightly Decided and Where Have They
Left Us, 14 U.N.H. L. REV. 1, 2 (2016).
54
See Tamar Ezer, A Positive Right to Protection for Children, 1 YALE HUMAN RIGHTS AND DEVELOPMENT J. 1, 3
(2014) (“Although children defy the conventional view of negative rights, they lend themselves readily to a positive
rights regime. Their very dependence and capacity for growth call for a positive right to protection and to the means
necessary for their development.”) (footnotes and citations omitted).
55
See Joseph Story, COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA (13
ed. 1886).
56
See Tamar Ezer, A Positive Right to Protection for Children, 1 YALE HUMAN RIGHTS AND DEVELOPMENT J. 1, 2
(2014) (tracking positive constitutional protections to the theories of John Locke and John Stuart Mill); see also
Liliya Abramchayez, A Social Contract Argument for the State’s Duty to Protect from Private Violence, 18
JOURNAL OF CIVIL RIGHTS AND ECONOMIC DEVELOPMENT 849, 862 (2004) (linking and critiquing positive right
jurisprudence with regard to the rights of children to early liberal social contract theorists). Compare with Part 1,
Art. 3, N.H. Constitution and Susan E. Marshall, THE NEW HAMPSHIRE CONSTITUTION at 49 (2011) (“This article
expresses John Locke’s idea of the social compact into which members of society enter and under which they agree
to give up some of their natural rights in exchange for the protection of society.”).

43
 244. DHHS and Shibinette have affirmative, positive right obligations to children is a

notion that is nearly universally recognized across the country and over the history of the

country.

245. In New England, it is a view that dates back to before the establishment of the

United States. 57

246. That is because “[t]here can be no keener revelation of a society’s soul than the

way it treats its children.”

247. “We owe our children, the most vulnerable citizens in our society, a life free of

violence and fear.” 58

248. Afterall, “[c]hildren are the world’s most valuable resource and its best hope for

the future.” 59

249. New Hampshire has repeatedly endorsed the view, as the following history

tracking the development of New Hampshire statutory law demonstrates, that the state has

affirmative obligations to protect abused and neglected children over the course of the history of

the state:

• In 1879, the General Court passed “An Act to Provide for the Better Protection of
Destitute and Abused Children,” codifying preexisting standards of state
mandated protections for abused and neglected children. See Laws, 1879, Ch. 12.

57
See Mason P. Thomas, Jr., Child Abuse and Neglect Part I—Historical Overview, Legal Matrix, and Social
Perspectives, 50 U.N.C. L. REV. 293, 303 (1972) (“Perhaps the earliest recorded child-abuse case was decided in
Massachusetts in 1655 . . . Two other Massachusetts cases decided in 1675 and 1678 show children being removed
from their parents by the courts because homes were considered unsuitable.”) (citations omitted).
58
See Nelson Mandela, Former President of South Africa. See Nelson Mandela Children’s Fund, available at
http://www.nelsonmandelachildrensfund.com/news/nelson-mandela-quotes-about-children (last visited August 24,
2018).
59
John F. Kennedy, 35th President of the United States, available at https://www.jfklibrary.org/Research/Research-
Aids/Ready-Reference/JFK-Fast-Facts/Appeal-UNICEF.aspx (last visited August 24, 2018). See also President
Herbert Hoover, 31st President of the United States, https://foreignpolicyblogs.com/2008/03/07/children-are-our-
most-valuable-natural-resource-herbert-hoover-31st-us-president/ (“Children are our most valuable natural
resource.”) (last visited August 24, 2018).

44
 • In 1907, the General Court passed “An Act to Regulate the Treatment and Control
of Dependent, Neglected, and Delinquent Children and to Provide for the
Appointment of Probation Officers,” further defining stated mandated protections
for abused and neglected children dependent upon the public for support, and
affirmatively placing upon the state the requirement that it take custody over and
direct the well-being of abused and neglected children. See Laws 1907, Ch. 125.
That same law fined public officers for failing to perform their duties. Id. § 20.

• In 1937, again, the General Court passed the Child Protection Act of 1937,
clarifying the power and obligation of the state to take custody over abused and
neglected children to ensure their safety and well-being and to bear the expense of
their care. Pub. Law Ch. 132, later re-codified as RSA 169. This law, too,
imposed upon public officers fines for failing to perform any of the duties
imposed by statute. Id. § 22.

250. Each effort by the General Court to codify law in this area resulted in an ever-

deepening series of commitments by the state to affirmative involvement in the health and

welfare of abused and neglected children as a matter of positive right and affirmative obligation.

251. The most recent, wholesale recodification efforts commenced in 1979.

252. This effort included a sweeping departure from the standard features of American

common law, imposing upon the entire public an obligation to cooperate with the state to protect

abused and neglected children. See Analysis, House Bill No. 831 (1979) (“Chapter 169-C deals

with those who under current law are considered neglected children . . . It requires anyone who

comes in contact with a child who is suspected of having been abandoned or abused to report

such child.”).

253. Scholars have even argued that children subject to abuse that has been previously

brought to the attention of public agencies empowered to protect and care for the child, are the

victims of illegal slavery in violation of the Thirteenth Amendment to the United States

Constitution.60

60
Akhil Reed Amar, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney, 105 HARV. L. REV.
1359, 1364 (1992) (“Like an antebellum slave, an abused child is subject of near total domination and degradation

45
 254. Children who are the victims of known child abuse at the hands of their birth

parents represent perhaps the paradigmatic example of a politically helpless class of New

Hampshire citizens because their parents, the voting adults who would otherwise be their

proxies, are manifestly hostile to their interests and welfare. 61

255. “At its core, slavery is a system of domination, degradation and subordination, in

which some people are allowed in effect to treat other people—other human beings with God-

given rights—as property rather than persons.” 62

256. A child raised in certain abuse and neglect environments and facing threats “in

today’s world . . . embodies that core idea of slavery about as well as could be imagined.” 63

257. In New Hampshire, “[b]oth statutory law and agency practices contribute to a

contextual prison every bit as restraining and real to the child as a physical prison would be” 64

and the Thirteenth Amendment requires affirmative state action to remove this condition for the

child. Cf. Nicina v. Morra, 212 F.3d 798, 807 (3rd Cir. 2000) (“After Deshaney, many of our

sister courts held that foster children have a substantive due process right to be free from harm at

the hands of state-regulated foster parents . . . . These courts have accepted the analogy between

persons the state places in foster care and those it incarcerates or institutionalizes.”).

by another person, and is treated more as a possession than a person. Unless the state acts to protect an abused
child, the child’s status bears an eerie resemblance to that of a pre-Civil War American slave.”).
61
See Anne C. Dailey, Children’s Constitutional Rights, 95 MINN. L. REV. 2099, 2170 (2011) (establishing a
framework by which “children have a right to the minimum level of caregiving services necessary to ensure their
physical safety”).
62
See Akhil Amar, Remember the Thirteenth, 43 MINN. L. REV 403, 405 (1993). See also Richard Kluger, SIMPLE
JUSTICE at 26 (2004) (describing the subhuman conditions of slavery imposed upon slaves by law).
63
Id.

See Kelli M. Mulder-Westrate, Waiting for the Justice League: Motivating Child Welfare Agencies to Save
64

Children, 88 NOTRE DAME L. REV. 523, 542 (2012).

46
 258. These constitutional rights are augmented and reaffirmed by New Hampshire’s

self-imposed statutory mandate “to provide protection to children whose life, health or welfare is

endangered and to establish a judicial framework to protect the rights of all parties involved in

the adjudication of child abuse and neglect case.” RSA 169-C; see also RSA 170-E and RSA

173-B.

259. Moreover, by its very language conferring upon the people a right to live under a

lawful government, Part I, Article 8, causes the statutory language of RSA 169-C to attain

constitutional dimensions.

260. So as to ensure that the aforementioned positive rights are protected, New

Hampshire has set up policies and procedures that it has failed to abide by itself as a matter of

state constitutional due process, including the requirement that abuse and neglect cases be

assessed within 60 days of a case having been opened. See RSA 169-C.

261. Having established these policies and procedures, Defendants were obliged to

abide by them and failed to do so. See Petition of Bagley, 128 N.H. 275, 282 (1986) (“We have

long regarded the ‘law of the land’ as synonymous with ‘due process of law.’”) (citing Mayo v.

Wilson, 1 N.H. 53, 54-55 (1817)).

262. The duty to abide by these standards and the cost of doing so is far outweighed by

the costs of failing to abide by these standards. See Mathews v. Eldridge, 424 U.S. 319 (1976)

(the interests of an individual in the rights conferred by the government is a property interest

subject to the due process clauses of the United States constitution); see also Duffley v. New

Hampshire Interscholastic Athletic Ass’n, 122 N.H. 484 (1982) (the right to participate in

interscholastic sports is protected by the due process clause of the New Hampshire constitution).

47
 263. The interests at issue for abused and neglected children are paramount as a matter

of law and the failure to abide by state mandated laws and procedures designed to protect those

interests constitutes a violation of due process causing injuries including the deprivation of rights

and interests guaranteed as a matter of constitutional law. See Goldberg v. Kelly, 397 U.S. 254,

263 (1970) (citation omitted). 65

264. Anna asserts that the failures of DHHS and Shibinette, in her official capacity,

constitute failures to meet constitutional obligations and are the result of irresponsible spending

decisions under Part I, Article 8 of the New Hampshire Constitution.

COUNT III
(VIOLATIONS OF RSA 98-E BY ALL DEFENDANTS)

265. Anna hereby repeats, realleges and incorporates by reference each and every

allegation set forth in the preceding paragraphs, whether legal or factual.

266. RSA 98-E:2 provides that “[n]o person shall interfere in any way with the right of

freedom of speech, full criticism, or disclosure by any public employee.”

267. RSA 98-E:4 provides that “[a] public employee may seek injunctive relief or

maintain a civil action, or both, to recover damages for violation of this chapter in any court of

competent jurisdiction by bench or jury trial.”

268. RSA 98-E:4 provides that “[i]f the public employee prevails, in addition to

damages the court may allow the costs of the action and such attorney’s fees as it finds to be

reasonable to be paid by the defendant employer.”

65
See also Breaden Douthett, The Death of Constitutional Duty: The Court Reacts to the Expansion of Section 1983
Liability in Deshaney v.Winnebago County Department of Social Services, 52 OHIO ST. L. REV. 643, 652 (1991) (“In
an entitlement context, it would seem that Joshua DeShaney would have benefitted from the attachment of
procedural due process rights by reliance upon the relevant state law which ‘directed citizens and other
governmental entities to depend on local departments of social services . . . to protect children from abuse.’”)
(footnote omitted).

48
 269. Defendants have all interfered directly or indirectly in Anna’s right of freedom of

speech, full criticism and disclosure.

270. Defendants have done so, either directly, through efforts at intimidation, or by

leveraging employment decisions in their capacity as Anna’s supervisors in a manner that is

inconsistent and irrational, or generally, through retaliatory conduct against Anna for her public

speech, advocacy and efforts at organization, as set forth above.

271. Anna has been injured as a result of the actions of the Defendants, which actions

have been taken together and separately, in violation of the law.

COUNT IV
(VIOLATIONS OF RSA 275-E:2 BY ALL DEFENDANTS)

272. Anna hereby repeats, realleges and incorporates by reference each and every

allegation set forth in the preceding paragraphs, whether legal or factual.

273. RSA 275-E:2 provides that “[n]o employer shall . . . threaten, or discriminate

against any employee regarding such employee’s compensation, terms, conditions, location or

privileges of employment because:

• “The employee, in good faith, reports or causes to be reported, verbally or in

writing, what the employee has reasonable cause to believe is a violation of any
law or rule adopted under the laws of this state . . . or the United States”; or

• “The employee, in good faith, participates verbally or in writing, in any

investigation, hearing or inquiry conducted by any governmental entity, including
a court action, which concerns allegations that the employer had violated any law
or rule adopted under the laws of this state . . . or the United States.”

274. RSA 275-E:2 provides that “[a]n aggrieved party may bring a civil suit within 3

years of the alleged violation of this section. The court may order reinstatement and back-pay as

well as reasonable attorney fees and costs to the prevailing party.”

49
 275. Defendants have violated RSA 275-E:2, either directly or indirectly, through

efforts at intimidation, by leveraging employment decisions in their capacity as Anna’s

supervisors in a manner that is inconsistent and irrational, and, generally, through retaliatory

conduct against Anna for her public speech, advocacy, efforts at organization, and advocacy on

behalf of a child whose legal rights were violated by DHHS, as set forth above.

276. Anna has been injured as a result of the actions of the Defendants, which actions

have been taken together and separately, in violation of the law.

COUNT V
(VIOLATIONS OF RSA 275-E:9 BY ALL DEFENDANTS)

277. Anna hereby repeats, realleges and incorporates by reference each and every

allegation set forth in the preceding paragraphs, whether legal or factual.

278. RSA 275-E:9 provides that “no governmental entity shall threaten, discipline . . .

or discriminate against a public employee who . . . discloses activities or information that . . .

represents gross mismanagement or waste of public funds . . . or evidences an abuse of authority

or a danger to the public health and safety.”

279. Defendants have violated RSA 275-E:9, either directly or indirectly, through

efforts at intimidation, by leveraging employment decisions in their capacity as Anna’s

supervisors in a manner that is inconsistent and irrational, and, generally, through retaliatory

conduct against Anna for her public speech, advocacy, efforts at organization, and advocacy on

behalf of a child whose legal rights were violated by DHHS, as set forth above.

280. Anna has been injured as a result of the actions of the Defendants, which actions

have been taken together and separately, in violation of the law.

50
 COUNT VI
(VIOLATIONS OF THE STATE CONSTITUTION BY ALL DEFENDANTS)

281. Anna hereby repeats, realleges and incorporates by reference each and every

allegation set forth in the preceding paragraphs, whether legal or factual.

282. As a New Hampshire citizen, Anna is entitled to the protections of free speech,

free press, and to petition her government under Part I, Article 22 and Article 32 of the New

Hampshire Constitution.

283. Part I, Article 22 of the New Hampshire Constitution provides: “Free speech and

Liberty of the press are essential to the security of Freedom in a State: They ought, therefore, to

be inviolably preserved.”

284. Part I, Article 32 of the New Hampshire Constitution provides: “The People have

a right, in an orderly and peacable manner . . . to consult upon the common good, give

instructions to their Representatives, and to request of the legislative body, by way of petition or

remonstrance, redress of the wrongs done them, and of the grievances they suffer.”

285. Defendants DHHS and Shibinette have interfered with Anna’s state constitutional

rights by prohibiting her from communicating with the press about the illegality of DHHS’s

handling of a reported case of child abuse and neglect as set forth above.

286. Defendants, together, have violated Anna’s state constitutional rights, either

directly or indirectly, through efforts at intimidation, by leveraging employment decisions in

their capacity as Anna’s supervisors in a manner that is inconsistent and irrational, and,

generally, through retaliatory conduct against Anna for her public speech, advocacy, efforts at

organization, and advocacy and petitioning of government on behalf of a child whose legal rights

were violated by DHHS, as set forth above.

51
 RELIEF REQUESTED

WHEREFORE, Plaintiff’s respectfully request the following relief from this Court:

a. A trial by jury in this matter;

b. Judgment according to the laws of New Hampshire;

c. Any and all monetary damages under the governing laws, including consequential

and enhanced damages and statutory relief, including double or treble damages;

d. Preliminary and permanent injunctive relief enjoining defendants from any

continuing violations of law as set forth above and requiring that they abide by

their legal duties as set forth above;

e. Declaratory relief;

f. Statutory relief including Attorneys’ fees and costs; and

g. Any other relief this court deems just.

Respectfully submitted by:

ANNA CARRIGAN

By and through:

Dated: February 7, 2020 RATH YOUNG AND PIGNATELLI, PC

_____/s/ Michael S. Lewis___________

Michael Lewis, NH Bar # 16466
Rath, Young and Pignatelli, PC
One Capital Plaza
Concord, New Hampshire 03302

52