Council should revisit Webber settlement
Now that the City Council has sanctioned the creation of a three-person panel to thoroughly and independently investigate matters pertaining to the Geraldine Webber estate, the council should publicly discuss the possibility of reviving the proposed settlement of the litigation now pending in the Rockingham County probate court.
At the time the Police Commission voted unanimously to reject the possibility of a settlement in the litigation, the council had not yet discussed the possibility of an investigation. It is my impression, based on the comments of the settlement opponents, that opposition to any settlement is based on three factors. First, the opponents of the settlement do not feel it would be fair, equitable, moral or legal for police Sgt. Aaron Goodwin to benefit in any way from the Webber estate. Second, opponents believe a settlement would obviate the need for a trial that might, through discovery and testimony, reveal the actions of Goodwin and/or the Portsmouth Police Department. Third, opponents view approval of the settlement as a capitulation of principle and a reward for greed or wrongdoing.
Addressing the first concern, it is of course possible, perhaps even probable, that if the case goes to trial, the estate will prevail and Goodwin will inherit the bulk of the estate — the opposite result settlement opponents wish to see. As the mediator (retired probate judge John Maher) has correctly and publicly pointed out, under New Hampshire law, there is a very low threshold of proof to establish testamentary capacity. Webber only needed to know the extent of her estate and the natural objects of her bounty — her heirs. On the other hand, opponents of the second (2012) will and trust must meet a very high standard of proof to establish undue influence. They must persuade the court under New Hampshire law that the second will and trust was a product of "force or coercion that alter(ed)" Mrs. Webber's "will" (see the case of Bartis v. Bartis, 107 N.H. 34, 37, 216 A.2d 784, 786 (1966)). Although the outcome of the probate court litigation is of course uncertain, it is quite conceivable that the estate will succeed in persuading the court to uphold the validity of the 2012 will and trust. Thus, if opposition to any settlement is based on the desire to prevent Goodwin from sharing any portion of the bequest, there is a distinct downside to that approach. If the estate prevails, Goodwin will inherit the bulk of the Webber estate — about $2.3 million.
Equally important, the city will lose the opportunity to receive the $800,000 the settlement would have provided and will instead get nothing. It is the duty of the City Council to look out for the best interests of the citizenry. This duty includes a duty to investigate the possibility of wrongdoing in any of its departments, but it also includes a duty to the taxpayers who are increasingly burdened by having to pay more and more, year after year. What will the Council say to the taxpayers if the Webber case goes to trial and the estate prevails? Are opponents of the settlement really willing to gamble by going to trial and risk losing $800,000 that might otherwise provide significant tax relief?
The second concern of settlement opponents — the need to learn what happened — is now presumably moot as a result of the approval of the investigation. The investigatory panel will uncover the necessary facts the citizens wish to know. The process will be open, inclusive, thorough and independent. There is no need for the litigation in the probate court to continue in order to discover additional facts. Much discovery in the probate court case has already been done and the investigatory panel will have the benefit of the sworn deposition testimony. Thus, rejection of the settlement for the purpose of facilitating fact-finding in the context of litigation doesn't make much sense.
The third basis for opposing the settlement reflects a lack of understanding of what the concept of a settlement is all about. There is nothing inherently wrong with settling matters involved in litigation. Lawyers and parties do it all the time. When a settlement is reached voluntarily, it avoids the cost and uncertainty of a trial. In a will challenge case, the attorneys' and fiduciarys' fees incurred by the estate are paid out of the assets of the estate. Therefore, the amount to be distributed between contesting parties is continually and substantially diminished as the litigation proceeds. This of course hurts the residuary legatees (who divide whatever assets remain after the specific bequests are paid). Goodwin is a specific legatee under the second will and trust. He would receive specified assets, including the real estate and bonds — before any distribution to a residuary beneficiary. The city is a residuary beneficiary under both the first will and the 2012 trust. While litigation benefits the lawyers who charge $250-$350 per hour for their work, it hurts the residuary beneficiaries. Even if the case were to go to trial and the 2012 will and trust were held to be invalid, the city as a residuary beneficiary under the first will would likely get less than it would get under the proposed settlement due to the cost of litigation.
It appears that many opponents of settlement of the Webber case feel that the proposed settlement was not "transparent," that it was reached "behind closed doors" and is somehow dishonorable. While it is true in the Webber case that the majority of the parties met privately to reach a settlement, the terms of the settlement are public knowledge and require the approval of the Police and Fire Commissions and the City Council after an open debate at each level.
For the above reasons, I will urge the City Council to recommend that the Police Commission reconsider its rejection of the settlement in light of the council's approval of an investigation or that the city request, and urge the other settling parties to request, a stay of the litigation for six months while the investigatory panel does its work. The Police Commission may then take whatever disciplinary action may be necessary and may institute any needed reforms in the department. After that, assuming the commission doesn't change its mind now and assuming the settlement remains extant, I would propose that the Police Commission revisit the proposed settlement after it has the necessary facts to weigh the equity and wisdom of doing so.
Brad Lown is a lawyer and a Portsmouth city councilor.
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