At 35, John Formella makes his mark as New Hampshire’s attorney general

When the nomination of John Formella as attorney general came before the Executive Council, he faced a volley of questions from Councilor Cinde Warmington. “Have you ever been counsel in a criminal jury trial?” she asked. “In a civil jury trial? Done a bail hearing? Drafted an indictment? A subpoena? Taken a deposition? Handled a plea negotiation?” “No,” Formella answered repeatedly, before quoting Mark Twain, who said, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” Then he added firmly, “I know what I don’t know.”

At the same time, he assured the Executive Council he would be an “independent attorney general.” As legal counsel for the governor, he said, “the governor and governor’s office was my only client, but as attorney general I would not be the governor’s lawyer. I’d be the state’s lawyer.”

In that role, Formella explained, “you have to be ready to push back when necessary to say you can’t do something under the law, to say something is not permissible under the law, and you have to be willing to do that to people it’s not easy to say that to, including the governor.”

At 35, the youngest New Hampshire AG in a halfcentury, Formella finds himself faced with resolving the state’s liability for the criminal abuse — physical, sexual and emotional — of hundreds of children at the Youth Development Center. Abuse that began decades before he was born and persisted throughout his lifetime.

Although little in his experience in private law practice or as governor’s legal counsel has prepared him for the challenge, Formella has shown an appetite for hard work, the ability to grasp complex issues and, perhaps most important, skill at brokering resolutions to contentious issues, say many of those who know him.

Formella came to New Hampshire at the age of 12, in 1999, when his late mother Nancy, after training as a nurse, served in executive positions with the Mayo Clinic in Minnesota and Florida and became chief nursing officer and later president of Mary Hitchcock Memorial Hospital in Lebanon. With her counterpart at the Dartmouth-Hitchcock Clinic, she was among the architects of what is now Dartmouth-Hitchcock Health. His father, who was a truck driver when his parents met, earned an engineering degree and had a career with IBM.

Formella graduated from Hanover High School, then Florida State University in 2009 and earned his law degree from George Washington University Law School in 2012. He returned to New Hampshire in 2012 and worked at the Pierce Atwood law firm’s Portsmouth office, where he was mentored by Jack Sanders, a highly respected member of the legal community. Sanders, a Democrat, and Formella, a Republican, shared an interest in governance and public policy.

A resident of Portsmouth, Formella engaged in civic affairs and served on the city’s board of adjustment. A common interest in zoning and housing led to a friendship with Rebecca Perkins Kwoka, a progressive Democrat who he helped win a city council seat in 2015 and became the first LGBTQ+ woman elected to the New Hampshire Senate in 2020.

At Pierce Atwood, Formella dealt primarily with commercial and environmental matters, including mergers and acquisitions as well as the regulatory, permitting and compliance issues surrounding real estate development.

The firm represented Waterville Valley Resort, in which the Sununu family are major investors and Chris Sununu served as CEO from 2010 to 2016.

When Sununu ran for governor, Formella, then a member of the Republican State Committee, volunteered on his campaign and served on his transition team before joining the administration as legal counsel.

As legal counsel, Formella said his major task was preparing the biennial budget and drafting the companion legislation, which cemented working relationships with officials throughout the executive and legislative branches of state government.

“He was terrific to deal with,” said Sen. Lou D’Allesandro, D-Manchester. “He listens and appreciates your opinions. We worked well together. He’s got his hands full, but he has a great work ethic.”

After working mostly in the shadows, Formella stepped into the limelight in 2018, when the U.S. Supreme Court ruled, in South Dakota v. Wayfair, that out-of-state vendors must collect and remit sales taxes on purchases by customers in other states where the sellers have no physical presence. The decision encroached on New Hampshire’s competitive advantage as one of five states without a general sales tax.

A commission drafted legislation to spare New Hampshire businesses the cost of assessing, collecting and remitting sales taxes. The bill unanimously carried the Senate but failed in the House, where conservative lawmakers insisted on a more aggressive defense of state sovereignty.

The next year, lawmakers returned with fresh legislation.

Attorney Bill Ardinger, who for three decades has led the Tax Practice Group at Rath, Young & Pignatelli and worked on the legislation, said that Formella was instrumental in resolving the differences among lawmakers. “He’s young, but I was very impressed,” Ardinger said.

Although the court’s decision raised complex constitutional issues, he said Formella proved “a quick study, who got the fine points very, very quickly. I think his greatest strength is that he is remarkably able to communicate and work with everybody on all sides of an issue and bring them to ‘yes.’” Formella explained that the statute is designed to deter other states from compelling New Hampshire firms to remit taxes on their remote sales or to compromise the privacy of their customers by requiring them to pursue their claims through the Department of Justice. “Our goal is to send a strong message and provide a deterrent,” he said, “and so far it’s been fairly successful.”

When the pandemic hit, Formella found himself amid the strained and soured relations between the executive and legislative branches of government as lawmakers chafed at what many charged was excessive use, even abuse, of executive authority. He said that while New Hampshire is known for its “weak governorship, Covid-19 highlighted the need for strong executive action.” For months, the governor sustained a state of emergency while issuing orders bearing on individual behavior, commercial activity and school operations. Despite litigation and legislation Formella said, “Ultimately, the governor prevailed.”

Meanwhile, Formella was working with the Governor’s Office for Emergency Relief and Recovery (GOFFER), led by Jerry Little, then the state’s banking commissioner. The office was charged with distributing $1.25 billion in federal emergency assistance allocated by the federal CARES Act.

“I was flabbergasted by the amount of time and effort John put in,” Little said. “I’ll bet he was working 80 hours a week.”

Little said GOFFER initiated more than 40 programs in four months, navigating a thicket of federal regulations and an avalanche of documents. “John’s legal work was absolutely crucial,” he said. “He is a quick study, good listener and always reachable.”

Appointed attorney general in March 2021, Formella shepherded some of the 48 recommendations of the Law Enforcement Conduct Review Committee (LEACT), formed by executive order in the aftermath of George Floyd’s death, through the legislative process.

The measures included publishing the so-called Laurie List of police officers with suspect credibility, opening police disciplinary proceedings to the public and establishing LEACT. While conceding loose ends remain, Formella called the legislation “a milestone” in strengthening relationships between the police and the community.

Formella also tried to resolve differences between the governor and lawmakers over legislation to prohibit the teaching of “divisive concepts” in public schools.

Together with Senate Majority Leader Jeb Bradley, R-Wolfeboro, he drafted an amendment that confined the prohibition to teaching that any one group of people is inherently superior or inferior to another while removing language that would restrict or forbid instruction about the history of discrimination based on race, sex, gender, disability, sexual orientation or religion.

Despite the change, critics charge that the law, which was appended to the budget, is laced with ambiguous language and will have a chilling effect on classroom instruction. The law entitles a student or parent who believes a teacher has violated the law to file a complaint with the NH Commission for Human Rights, the Department of Justice or Superior Court, which if upheld could subject the teacher to disciplinary action. Both the American Civil Liberties Union and National Education Association have challenged the law in court.

On the other hand, the Department of Justice raised issues about the so-called parental rights bill, which prompted Governor Sununu to threaten a veto and led the bill to fail in the House. The bill reaffirmed and expanded the rights of parents to oversee classroom curriculum and extracurricular activities while entitling them to pursue their grievances in court.

However, Assistant Attorney General Sean Locke, head of the civil rights unit, took issue with the provision vesting parents with the right to be notified promptly when any school official, teacher or employee undertakes any action “relating to the student pursuant to school policies governing” — an expansive range of student conduct, including “gender expression or identity.”

He told lawmakers the bill could place schools in violation of the state anti-discrimination law, which includes gender identity among its protected classes.

“Children have privacy rights,” said Formella, who added that “the bill posed legal risks and unintended consequences” that he thought could be overcome by balancing the interests of parents and children.

While his predecessor Gordon MacDonald, now chief justice of the NH Supreme Court, distanced himself from the Republican Attorney General Association, Formella has joined his counterparts in a handful of amicus briefs asking the U.S. Supreme Court to strike actions taken by the Biden administration. Three briefs were aimed at vaccine mandates and the fourth asked the justices to deny a ban on bump stocks, accessories that increase the rate of fire of firearms.

“I’ve been more aggressive than attorneys general in the past,” Formella said, explaining that the decisions to join or shun the “collegial or group decisions” are made after the briefs are distributed within the department. In each case, he said, “the issues were important ones that raised procedural questions and involved the fundamental rights of New Hampshire citizens.”

Formella added that, in joining the briefs, “we’re not making policy decisions but standing up for legal principles.”

The state’s atonement for the historic abuse of children and youths at the hands of employees of the state’s juvenile facilities, primarily the Youth Development Center (now the Sununu Youth Services Center), presents Formella with the first adversarial proceedings of his tenure.

In 1980, then-Attorney General Tom Rath likened conditions at the YDC to those suffered by residents of the Laconia State School, who were returned to the community in 1991, when the facility was forced to close following years of litigation. Nevertheless, even in June a child was handcuffed and beaten at YDC.

In 2017, the first of what would swell to hundreds of victims reported his abuse to the State Police, and in 2019, MacDonald launched a “comprehensive, multifaceted investigation” of the YDC and its personnel. By the summer of 2021, 11 individuals had been indicted on numerous charges of sexual assault and another has been indicted since.

At the same time, MacDonald began talks to reach a civil resolution of the victim’s individual claim as well as a class-action complaint filed on behalf of other victims. In a motion filed in Merrimack County Superior Court in June, attorneys David Vicinanzo and Rus Rilee, who represent nearly 600 victims, described these discussions as “productive.”

Noting, “it appeared reasonably promising that the State might agree to a truly victim-centered and traumainformed process for fairly addressing the harm suffered by the survivors.”

However, the attorneys wrote that the “tenor and direction” of the approach taken by the attorney general’s office changed with Formella’s appointment. They claimed negotiations stalled as “the State began to adopt tactics seemingly calculated to delay, if not outright deny, justice for the survivors.” The state unsuccessfully sought to dismiss the victim’s claim, citing the statute of limitations, but in May 2021 the court granted its motion to dismiss the class action complaint.

With that, individual victims began filing lawsuits, which since February 2022 have been stayed pending arrangements to handle the volume of cases.

In the meantime, Formella prepared a plan for compensating victims, which he described as “a victimcentered, trauma-informed, gentler alternative.”

The settlement plan, passed by the Legislature and signed by the governor in May, allocated $100 million to compensate victims suffering sexual and physical, but not emotional, abuse.

A draft schedule sets forth the proposed awards to victims. Base awards to victims of sexual abuse range from $25,000 for those experiencing indecent exposure to $200,000 for those suffering rape. For physical abuse, base awards range from $2,500 to those escaping without injury to $50,000 to those suffering permanent injury. Awards within the range may be enhanced by multipliers reflecting the frequency of the abuse and aggravating factors, such as rape resulting in pregnancy.

However, the statute establishing the settlement capped awards to individual victims. The maximum award for a victim of sexual or physical abuse or both is $1.5 million and for a victim of physical abuse $150,000. The Department of Justice said the guidelines for compensation are based on data from settlements of similar cases in both New Hampshire and other states.

The statute provides that, by filing a claim, victims waive their right to simultaneously seek compensation from the state through litigation, though they may sue individuals they deem culpable for the abuse. Victims who reject the offer made by the terms of the settlement may bargain for a higher amount, ask the administrator to arbitrate the claim or withdraw the claim and pursue compensation through litigation.

Formella calls the settlement proposal “historic,” claiming that it offers “a claims resolution process that provides a trauma-informed and victim-centered alternative to traditional litigation. No victim is required to use this process, but it is my hope that this bill will provide an avenue for much-needed healing and compensation for many of these victims.”

But attorneys for victims and the NH Coalition Against Domestic and Sexual Violence have sharply criticized the settlement from the start.

They described the caps on awards as arbitrary and “absurdly low,” the exclusion of compensation for emotional abuse as without justification and the time allowed to submit claims too short.

When the draft guidelines for calculating awards were issued, Vicinanzo and Rilee wrote to Formella, saying the proposal “furthers the state’s designs to minimize liability by setting a trap for financially insecure victims. Rather than forcing victims to choose either accepting a low-ball settlement or pursuing justice through litigation, the process should focus on providing the victims with a true measure of justice outside of litigation that provides just compensation for the grievous harms suffered at the hands of state actors.”

Both attorneys have indicated they may advise clients to shun the settlement process and have asked the court to lift the stay and allow the litigation of individual claims to proceed.

Formella responded to the attorneys’ stance through his spokesman Michael Garrity, who said, “We have worked hard to develop first drafts of a claims process and guidelines, and we are hoping to have collaborative and constructive discussions with claimants’ counsel to continue to improve the process.” Formella has insisted that the settlement process will not only spare victims the travails of litigation but also ensure a timely resolution of their claims.

The YDC aftermath is by no means the only major issue facing Formella. He and his team now have to begin preparing to defend the state in another round of schoolfunding litigation following the filing of a suit in Grafton County Superior Court by the attorneys who led the Claremont school-funding cases in the 1990s. The suit, filed in June, is seeking to persuade the NH Supreme Court to reaffirm and enforce its decisions by ordering the state to rescind and replace its unconstitutional system of financing public schools.

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‘He’s got his hands full, but he has a great work ethic.’