Petition for Writ of Certiorari — Parent-Guardian Ass'n of Arlington Developmental Center v. People First of Tennessee

Supreme Court, U.S

| Fifer

98 430 SEP; 41998

No. a

OFFICE OF THE C1 ff

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

PARENT-GUARDIAN ASSOCIATION OF ARLINGTON

DEVELOPMENTAL CENTER,

Petitioner,

V.

PEOPLE FIRST OF TENNESSEE,

on behalf of its members, et al.;

ARLING’ UN DEVELOPMENTAL CENTER, etal.,

Respondents.

On Petition For Writ Or CERTIORARI

To Tue UniTep STATES Court OF APPEALS

For Tue Sixts Circuit

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. BURKE, WILLIAM F. SHERMAN

Counsel of Record ATTORNEY AT LAW

BurkKE & STONE 504 PYRAMID PLACE

400 MapIsoN AVENUE 221 West SECOND STREET

New York, NY 10017 LittLe Rocx, AR 72201

(212) 752-5353 (501) 372-3148

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED

This action involves the undisputed habilitation rights

of certain severely disabled citizens of Tennessee. Remedies

conflict. Over objection, class action status was granted to

proponents of one remedy.

For those suffering severe disability, specialized

services; constant monitoring, and ready availability of medical

attention are mandatory. Some parties, including the parents

and guardians of the disabled individuals, submit that an

institution is a necessary option for the provision of such

continuous care. "Next friends" and an advocacy group,

plaintiffs herein, favor placement of all disabled in the

community and elimination of the institutional service option.

Over opposition of the parents and guardians, the

advocacy group was certified as the sole class representative.’

Upon these facts:

1. Was class representation improperly granted to

an advocacy group, claiming the right to litigate and decide for

all members of a class of severely disabled individuals, when

an intervening party representing parents and guardians of class

members advocated a contrary interest?

2. Was class action status otherwise proper to

determine the First Amendment associational rights of

institutionalized, severely disabled individuals, or did the lower

courts impermissibly enter and resolve a political, medical and

social debate over provision of services in an institutional

setting by granting class status to one proponent, and by

approving the settlement of institutional closure advocated by

that proponent?

' Subclasses were not created. See FRCP 23(c)(4)(B).

i

LIST OF PARTIES

Es The parties not listed in the caption are

as follows:

Petitioner: (PARENT-GUARDIAN

ASSOCIATION OF ARLINGTON

DEVELOPMENTAL CENTER)

Respondents: (1) | (ARLINGTON

DEVELOPMENTAL CENTER); NED

MCWHERTER; MONA REEVES-

WINFREY, sued in her official capacity as

superintendent of Arlington Developmental

Center; MENTAL HEALTH, TN; EVELYN

C. ROBERTSON, JR., sued in his official

Capacity as commissioner of Mental Health and

Mental Retardation; MARJORIE NELLE

CARDWELL; TENNESSEE HEALTH

DEPARTMENT; RUSSELL WHITE, sued in

his official capacity as commissioner of

Health; MANNIE MARTIN, sued in his

official capacity as director of bureau of

Medicaid; TENNESSEE DEPARTMENT OF

HUMAN SERVICES; ROBERT GRUNOW,

sued in his official capacity as commissioner of

Human Services; BETTY GAYLE, sued in her

official capacity as assistant commissioner for

social Services; PATSY MATTHEWS, sued

in her official capacity as assistant

commissioner for Rehabilitation Services.

Respondents: (2) (PEOPLE FIRST OF

TENNESSEE) Carl Beard, nfr Wendy

Kurland; SANDRA HOWARD; HERMAN

ii

WALTER RUNIONS, nfr Sarah R. Todd;

HARVEY RICHARD WATSON, nfr Bonita

Scott; CLARENCE WILSON, nfr Wilma

Williamson; STEVELYN DANIEL TUCKER; ©

KEITH COLLINS. |

2. Petitioner-intervenor Parent-Guardian

Association of Arlington Developmental

Center has no parents or subsidiaries.

* All defendants are either agencies or

officers of the State of Tennessee, sued in their

official capacities.

+. The lead plaintiff, People First of

Tennessee, is a nonprofit organization

advocating closure of institutions. Other

organizations similarly named (e.g., "People

First of the United States"; "People First of

Washington, Inc.") exist nationwide, with

similar goals. Petitioner is unaware whether

People First of Tennessee has a parent or

subsidiaries.

» # The remaining plaintiffs are seven

individual residents of Arlington

Developmental Center, represented by "next

friends".

iil

TABLE OF CONTENTS

eh kn II an ies ee Oo oe ea i

ee | og ks bos ac da Garell wale « ix ii

pp st ear ae ee iv

Thess ae Pee. 8 RK ERR Vii

Ca gs ea ew giclee elt Rass at l

FU Ds 62 SSAA SLSR ws 3

SEA ee Be ee RD na ok Stew hee en 4

[) Rat ae eka bk ewe ees 4

2. The People First Claims .............. 5

3. Arlington PGA’s Intervention ........... 6

4. Parallel Developments ................ 6

5.. Resolution of the Merits .............. 7

ee 7

B. The First Amendment ........... 8

eR OE eae )

4 ME ec eee he ER 11

SUMMARY OF ARGUMENT ................ 12

POSTE i ak eS Cc cin cee ois we ks 14

I. AS AN ADVOCATE WHOSE INTEREST

CONFLICTED WITH A PORTION OF THE

PROPOSED CLASS, PEOPLE FIRST

SHOULD NOT HAVE BEEN APPOINTED

CLASS REPRESENTATIVE, AND THE

iV

CLASS SHOULD NOT HAVE BEEN

COUT a ee...

1. The National Debate ...........

2. The Competing Interests ........-

3. The Court’s Precedent ..........

II. APPROVAL OF THE CLASS ACTION

SETTLEMENT MUST BE VACATED ....

es & 5) tener bet]. ic we ome

APPENDIX

Appendix A

Order Granting Motion to Stay Mandate,

TIGRE BOL IS Fo WSS) -

Appendix B

Order Denying Petition for Rehearing,

0 ES Se eer oe eee ee oe

Appendix C

Sixth Circuit Opinion, No. 97-5232, 5/7/98

Appendix D

District Court Judgment, 1/6/97 ..........

Appendix E

District Court Order Approving Settlement of

A I ks bw sae wn ee 8s

Appendix F

District Court Order on Notice of Proposed

Settlement of Class Action Lawsuit, 8/15/96

. 3la

Appendix G

District Court Order Denying Intervenor’s

Motions to Change Status and to File a

Se ee Sen

Appendix H

District Court Order Granting Class

6 a en

Appendix I

District Court Order Granting Motion to Enter

Findings and to Intervene, 9/27/95 ........

Appendix J

District Court Order Staying Proceeding,

I o0 na Suk a aoe 5 Aa Se Cw td

Appendix K

District Court Order on Motion to Dismiss,

ee We So sce ae cow wk

Appendix L

Appendix M

7 ET Sree See @. 8 SS B82 81 Se eS Se ere § Bo-G4S 8-6. 8 @

Appendix N

District Court Remedial Order, 9/2/94

Appendix O

Federal Rule 23 of Civil Procedure .......

vi

Appendix P

Excerpts From Deposition of William Knaus 227a

Appendix R

Orders in Washington Case No.

ot Ee re i 240a

Appendix S

Department of Justice Letter of Finding .... 246a

Appendix T

District Court Stipulation of Voluntary

GRR Sn ae ana eae a 268a

Vii

TABLE OF AUTHORITIES

Page

Cases

Amchem Products, Inc. v. Windsor,

521 US --, 117. S.Ct. 2231,

138 L.Ed. 2d 689 (1997) ....... 11, 13, 20-23

Appleyard v. Wallace,

tae rae eee, woe (11.Ce. 1989): eee ew... 19

DeShaney v. Winnebago County Department

te Oe COD og a ee Sek es Pei ee 24

Eisen v. Carlisle & Jacquelin,

NOTE vnc be et we aneen 12, 14

Flanagan v. Ahearn,

Soa ee Gat, EPMO) kw cea ecaeeevs 13

General Telephone Company of the

Northwest, Inc. v. EEOC,

en a 19

Pn

General Telephone Company of the

Southwest v. Falcon,

eT ok hk cs cc es bom 20

Gilpin v. AESCME, AFL-CIO,

phe Be Sek & | i rae eae 19

Gulf Oil Co. v. Bernard,

482 US 89, 100 (2981) ...........50. 10, 11.

Vill

Hansberry v. Lee,

311 US 32, 45 (1940) ..... ee eee eee 19

Helier v. Doe,

509 U.S. 312, 333 (1993) .....----+-- 16, 18

)

75 F.3d 1069 (6 Cir. 1996) .....--- eee ees 19

In re Joint Eastern and Southern.

District Asi Litigati

982 F.2d 721 (2 Cir. 1993),

993 F.2d 7 (on rehearing) .....-----+-++>:: 19

Oritz v. Fibreboard Corp.,

-- US --, 141 L.Ed. 2d 71,

~- §.Ct. -- (June 22, 1998) ...-.--- + esos: 13

N. C 96-5906 FDB (W.D. WA:

: May 1, 1997) .....--- eee eee eres 15, 16

¢

Scott v. Haworth,

916 F.2d 134, 145 (4 Cir. 1990) ......---- 19

Smith v. Babcock,

19 F.3d 257 (6 Cir. 1997) ....--- ee eres WW

United States of America v.

No. 92-2062 M1/A (USDC, WD Tenn.) ..... 4

Ww y, University of Cincinnati.

970 F.2d 1523 (6 Cir. 1992) .......--+++-: 19

ix

a

PN SE Se eee A. ee ee ee Se aye ee

Youngberg v. Romeo,

er ee CI SER) eC Se 24

Statutes and Rules

I< Siena pal 4 <i ¢ wack 6 ase ge i 3

4 Re are Coron er mea ge 4

EE E's wo dca ns ewe > weed 24

Federal Rule of Civil Procedure 17(c) ............ 8

Federal Rule of Civil Procedure 23 .... 3, 11, 18, 20, 21

U.S. Constitution and other Authorities

US Constitution, Amendment .......... ee

US Constitution, Amendment XIV ............. 3,5

Americans with Disabilities Act, Title II .......... 5

Rehabilitation Act of 1973, §§ 100,504 .......... 5

Title XIX of Social Security Act ........5200005 5

CITATIONS BELOW’

1. This petition: No. 97-5232 (6 Cir.; May 7, 1998),

unpublished pursuant to Rule 24 of the

United States Court of Appeals for the

Sixth Circuit (App. at 5-15a);

rehearing denied, July 1, 1998 (App. at

3-4a).

No. 92-2213 Ml1/V (USDC, WD

Tenn.; Jan. 6, 1997), unpublished,

entitled "Order Approving Settlement

of Class Action", and judgment

thereunder (App. at 16-30a);

No. 92-2213 Mi/V (USDC, WD

Tenn.; Mar. 21, 1996), unpublished

order denying procedural relief (App.

at 42-44a);

No. 92-2213 Mi/V (USDC, WD

Tenn.; Sept. 27, 1995), unpublished,

entitled "Order Granting Motion To

Enter Findings From 92-2062 In This

Case..." (App. at 68-74a); and

2 Six years of bitter litigation in two related cases have

produced dozens of opinions and orders. None has been published

to date. Petitioner limits this list to the pertinent opinions and

orders set forth in the Appendix.

1

PET Oe a GP EE TO Raber RLS eI Te ee ae ny

No. 92-2213 M1/V (USDC, WD

Tenn.; Sept. 26, 1995), unpublished,

entitled "Order Granting Class

Certification" (App. at 45-67a).

No. 92-2213 Mi1/V (USDC, WD

Tenn.), orders dated: Aug. 15, 1996

(notice to class; App. at 31-41a); Sept.

30, 1994 (stay of proceedings; App. at

75-76a); May 13, 1994 (consent

dismissal), and Jan. 26, 1993 (on

motion to dismiss; App. at 77-87a).

: United States of America v. State of

Tennessee, et al., No. 92-2062 M1/A

(USDC, WD Tenn.; Aug. 21, 1997),

unpublished, entitled "Order on

Community Plan For West Tennessee",

and trial findings therein, dated Nov.

22, 1993 (App. at 88-124a) and Feb.

14, 1994 (App. at 125-165a); appeal

pending.

ee MELE A ae ewe ae Seeger) —- .

JURISDICTIONAL BASIS

Petitioner seeks review of an order of the United States

Court of Appeals for the Sixth Circuit, entered 7 May 1998.

(App. at 5-15a.) A petition for rehearing under FRAP 40(a),

with a suggestion for rehearing en banc under FRAP 35, was

denied on 1 July 1998. (App. at 3-4a.)

The basis of this Court's subject matter jurisdiction is

28 USC § 1254(1).

Statutes Involved

FRCP 23, reproduced in Appendix at 223a.

US Constitution, Amendment I:

"Congress shall make no law...abridging the

freedom of speech, or of the press; or the right

of the people peaceably to assemble...".

US Constitution, Amendment XIV, § 1:

" _.[NJor shall any State deprive any person of

life, liberty, or property, without due process

of law...".

STATEMENT OF THE CASE

1. Overview

The essence of this litigation is an attempt by an

advocacy group to use the federal courts to close the

Arlington Developmental Center ("ADC").

ADC is a state-owned Tennessee facility providing

services in an institutional setting for developmentally

disabled individuals. Upon years of first-hand experience

monitoring the care of disabled family members, petitioner,

the Parent-Guardian Association of ADC ("Arlington PGA"),

supports strengthening services at ADC and opposes closure.

Arlington PGA also supports improvements in the Tennessee

community placement system for those disabled individuals

who choose, and qualify for, such placement.

The first step to closure was an investigation by the

United States Department of Justice ("DOJ"), which resulted

in an unfavorable Letter of Finding to Governor McWherter

on 12 March 1991. (App. at 246-267a.) Plaintiff People

First of Tennessee ("People First"), self-described as "a

Statewide advocacy organization governed by people with

disabilities" (Appellee's Brief to the Sixth Circuit ["PF Br."],

p. 2), then "became keenly interested in problems at

Arlington"; retained counsel, and filed this class action in

December, 1991, under 28 USC § 1343(a). (Ibid.) A DOJ

action, United States of America v. State of Tennessee, et al.,

No. 92-2062 M1/A (USDC, WD Tenn.), followed one month

later ("DOJ Action").

The DOJ Action went to trial in 1993, and resulted in

due process findings unfavorable to Tennessee; a remedial

order, and an approved remedial plan. The DOJ Action is

now on appeal.

This action (No. 92-2213 M1/V at the District Court)

only went to judgment in January, 1997, but has preceded the

DOJ Action up the appellate track and to this Court.

2. The People First Claims

Filing their claims as a class action, People First

asserted that Tennessee had denied five residents of Arlington

DC "minimally adequate living arrangements, habitation and

services". (PF Br., pp. 2-3.) Claims were pleaded under

various federal statutes*, the Fourteenth Amendment, and the

First Amendment. Arlington DC, Governor McWherter, and

eleven other Tennessee officials or agencies were named as

defendants (collectively, "Tennessee".

In January, 1993, upon Tennessee's motion, the

District Court dismissed all statutory claims; claims under the

Equal Protection clause of the Fourteenth Amendment, and

three of plaintiff's First Amendment claims. (App. at 77-

87a.) This dismissal was never appealed. Remaining Equal

Protection claims and a procedural due process claim were

voluntarily dismissed in May, 1994. (App. at 268-269.)

Only the remaining two claims on the merits are

pertinent to this petition: denials of associational rights under

the First Amendment, and denials of due process rights to

care and services under the Fourteenth Amendment.

3 Title XIX of the Social Security Act; Rehabilitation Act

of 1973, §§ 100 and 504; Americans with Disabilities Act, Title Il.

5

3: Arlington PGA's Intervention

People First claimed class action status, purporting to

speak for everyone who ever resided at ADC "on or after

December 12, 1989"; current residents, and "all persons at

risk of being placed at Arlington in the future". (App. at 49a,

n. 4.)* Tennessee opposed. Arlington PGA was permitted to

intervene to oppose closure and class status, and was aligned

as a defendant.

This action then paused, in view of developments in

the related DOJ Action.

4. Parallel Developments

At this point, the DOJ Action was far more advanced,

and had proceeded without Arlington PGA.” It was tried in

the fall of 1993, and resulted in detailed findings (App. at 88-

165a), which the District Court later summarized as follows:

"[C]jonditions at Arlington did not meet

minimally adequate constitutional standards

and, therefore, defendants were found to have

violated the due process rights of residents at

Arlington Developmental Center." (App. at

70a.)

* In addition to its claim of class representation, individual

members of People First also sought to appear as a "next friend" to

five ADC residents under FRCP 17(c).

* Arlington PGA was granted a very limited right "to attend

depositions and.receive documents" in the DOJ action. (App. at

73a, n. 4.)

The trial result of the DOJ Action (essentially a

judgment on liability) was not appealed. A remedial order

was entered therein on Tennessee's limited consent on 2

September 1994 (App. at 166- 222a), and implemented

thereafter.

In this action, all proceedings were temporarily stayed

to consider the effect of the remedial order entered in the DOJ

Action, including the Court's suggestion "to have the case

dismissed without prejudice". (App. at 76a.) People First

chose to press on with this litigation. (App. at 45-47a, n. 1.)

5. Resolution of the Merits

A. The Due Process Claim

On 27 September 1995, the District Court granted

collateral estoppel effect to the liability findings in the DOJ

Action, and to the remedial order entered therein. It then

concluded that People First's due process claim was thereby

determined, and entered a final order granting that claim.

(App. at 68-72a.)

The Court did so over the objection of Tennessee.

Having conceded identity of issue (App. at 68-69a, n. 1), and

unable to contest its presence in both litigations, Tennessee's

objection to offensive collateral estoppel was doomed to

failure. (App. at 71a.)°

6 Ironically, the same order belatedly granted full

intervenor status to Arlington PGA in the DOJ Action, as to

remedy alone; its separate objection was overruled. (App. at 72-

74a.)

i

B. The First Amendment Claim

As People First and Arlington PGA prepared to try the

First Amendment claim, Tennessee promptly folded. Without

support in the record, Tennessee agreed that ADC residents

"were prevented from communicating, associating and

assembling with persons of their choice". (App. at 37a, { 1.)

Tennessee further agreed to remedy its conduct by

"developing a policy" concerning communication; by "telling

the staff...about the policy"; by disciplining violations; by

giving outside organizations "reasonable opportunity to

communicate with residents", and by "allowing residents the

opportunity to participate in community activities". (App. at

37-38a, ¢ 2.) No monetary or injunctive relief was ordered.

Arlington PGA and ComCare Inc., a court-appointed

guardian, objected. (App. at 49a, 57-62a.) Arlington PGA's

objection was noted in the order for notice to the class (App.

at 28a), but nowhere appeared in the text of the notice (App.

at 35-41a).

Arlington PGA objected on grounds of collusion;

absence of evidence of First Amendment violations;

interference with the rights and duties of parents and

guardians "to represent and speak for their children and

wards"; apparent unlimited access of strangers to a previously

protected environment, and difficulties with the term

"discourage". (App. at 28-29a.)’

” ComCare joined in most of these grounds. (App. at 28-

29a.) Arlington PGA's objection was supported by 137

declarations. (App. at 52-53a, n. 6.) People First's position was

supported only by representatives of the seven individual plaintiffs,

appointed as "next friends" under FRCP 17(c). (19a; 47-48a; 78a.)

8

The District Court observed:

"(T]he Court recognizes the thoughtful and

heartfelt concern expressed by the parents and

guardians of the residents of Arlington

Developmental Center...". (App. at 29a.)

Nevertheless, their objections were swept aside.

(App. at 28-29a.) Without citation of authority, the District

Court concluded:

"Moreover, even assuming that there were no

First Amendment violations, this does not

change the fact that the agreement is fair,

adequate and reasonable." (App. at 26-27a;

emphasis added.)*

6. Class Action Issues

Two issues were raised here. Tennessee objected to

class definition. Arlington PGA pointed to the irreconcilable

difference over remedy within the purported class:

community placement, or continued specialized services in an

institutional setting. (See App. at 227-237a). The District

Court stayed the motions as possibly moot in view of the

relief granted in the DOJ Action. (App. at 75-76a; see 7

above.) Upon People First's urging (App. at 45-47a, n. 1),

the Court pressed on to decision on 26 September 1995.

8 Petitioner would substitute "collusive". We have little

doubt that People First will seek "prevailing party" fees from the

public fisc of Tennessee for this First Amendment "victory" unless

this Court reverses.

The District Court found two factual areas justifying

Class _ status: "Whether defendants are providing

constitutionally adequate habilitation", and “whether

defendants are prohibiting residents from associating with

certain individuals". (App. at 59a.)

The District Court also expressly found this conflict:

"[L]ack of consent by parents and guardians

for the participation of their sons, daughters

and wards in the litigation...". (App. at 60a.)

Despite this obvious division of interest within the

proposed class, the District Court overruled the objections of

Arlington PGA and Tennessee; certified the class, and

appointed People First as sole class representative. (App. at

42-67a.) It concluded that the objections of the parents and

guardians were irrelevant, and that People First was free to be

the class representative despite its commitment to institutional

closure. (App. at 50-65a.) This finding was most explicit:

"In making such a determination, the Court is

mindful that, to the extent that the views and

goals of the parents and guardians are in

conflict with those of [the class

representative], those views or goals appear to

be adequately represented by [Arlington

PGA]...." (App. at 64a.)

The option of subclasses, with a neutral class

representative, was not offered.’

® Subclass.creation. and definition is a matter of court

administration, not party objection. Gulf Oil Co. v. Bernard, 452

10

On 7 January 1997, the objections were overruled, and

final judgment was duly entered. (App. at 16-17a.)

7 On Appeal

Only Arlington PGA appealed. Primary stress was

placed on the propriety of People First as the sole class

representative, given the antagonism of interests. Approval

of the settlement of the First Amendment association claim

was also appealed, as was the due process disposition. '°

On 7 May 1998, the Court of Appeals affirmed in all

respects, in an unpublished per curiam opinion. (App. at 5-

15a.) On class action issues, it concluded that the District

Court did not abuse its discretion in concluding that the four

threshold requirements of FRCP 23(a) were met, as well as

those of FRCP 23(b)(2). (App. at 11-13a.) The Court of

Appeals made this astonishing conclusion of fair and adequate

protection under FRCP 23(a)(4):

"(T]here was no evidence that People First had

interests that were antagonistic to those of the

US 89, 100 (1981); Amchem Products, Inc. v. Windsor, 521 US

--, at --; 117 S. Ct. 2231, at 2248-9; 138 L. Ed. 2d 689, at 710-2

(1997).

10 Arlington PGA also appealed a procedural order denying

leave to cross-claim against Tennessee, which would have alleged

inadequacies in the community care system and would have sought

to keep ADC open.. (App. at 42-44a.) The Court of Appeals found

no abuse of discretion. (App. at 14a.)

11

other residents." (App. at 12a; citation

omitted; emphasis added.)""

The Court of Appeals also found no abuse of

discretion in the District Court's approval of the settlement of

the First Amendment claim, under a cost of litigation rationale

and a broad construction of its access terms. (App. at 13-

14a.) It also held that only Tennessee was affected by the due

process disposition, denying Arlington PGA's standing to

object. (App. at 14-15a.)

Rehearing, and a suggestion for rehearing en banc,

were each denied on 1 July 1998. (App. at 3-4a.)'? The

mandate was stayed until 31 August 1998 to permit this

petition (see App. at 1-2a); a supplemental motion to stay

until 15 September 1998 is pending.

Summary of Argument

Petitioners present two independent reasons for the |

grant of certiorari in this case.

'! Such evidence appears throughout the District Court's

opinions. (See, ¢.g., App. at 28-29a; 63a.)

"2 We hope that the Court of Appeals did so in the spirit of

another significant class action case, Eisen v. Carlisle & Jacquelin,

479 F. 2d 1005 (2 Cir. 1973). For five judges of the Second

Circuit, Judge Kaufman observed:

"I vote against en banc, not because I believe this

case is unimportant, but because the case is of such

extraordinary consequence that I am confident the

Supreme Court will take this matter under its

certiorari jurisdiction." (479 F. 2d at 1020.)

12

As a matter of class action administration, a Court of

Appeals has disregarded last year's decision in Amchem

Products. Inc. v. Windsor, 521 US --, 117 S. Ct. 2231, 138

L. Ed. 2d 689 (1997) ("Amchem"), and its predecessors.'* It

was completely inappropriate to appoint People First as the

class representative in view of its judicially-found conflict of

interest with members of the class. (Point I, below.)'*

Although couched in constitutional and class action

terms, the claims below are really political and nonjusticiabie.

The core issue is whether institutions may continue to serve

the disabled community as one care option. That issue is

governmental only. (Point II, below.)

13 The then-new Amchem decision was attached to

Arlington PGA's reply brief at the Court of Appeals, and was

argued as a basis for rehearing. (Brief in Support of Petition for

Rehearing, Point I[C].)

'4 This Court has granted certiorari for October 1998 term

to review a case challenging one aspect of Amchem, the propriety

of class action certification in a “limited fund" mass tort context.

Ortiz v. Fibreboard Corp., -- US --, 141 L. Ed. 2d. 711, -- S. Ct.

-- (June 22, 1998), granting review to Flanagan v. Ahearn, 134 F.

3d 668 (5 Cir. 1998). This petition presents a similar challenge to

Amchem: adequacy of representation when interests conflict.

Indeed, the mutually exclusive remedies sought here present an

even clearer conflict than in Ortiz, supra.

13

ARGUMENT

I. AS AN ADVOCATE WHOSE

INTEREST CONFLICTED WITH A

PORTION OF THE PROPOSED CLASS,

PEOPLE FIRST SHOULD NOT HAVE

BEEN APPOINTED CLASS

REPRESENTATIVE, AND THE CLASS

SHOULD NOT HAVE BEEN CERTIFIED.

The class was broadly defined by the District Court:

"{A]ll persons who, on or after December 12

1989, have resided, or are residing, at the

Arlington Developmental Center;

[A]ll persons who have been transferred from

Arlington Developmental ‘Center to other

settings, such as intermediate care facilities or

skilled nursing facilities, but remain

defendants’ responsibility, and

[A]ll persons at risk of being placed at

Arlington Developmental Center." (App. at

65a; paragraphing and punctuation added.)

The first two categories covered at least 423 people

(App. at 50a); the third potentially reaches the entire

population of Tennessee. A class as elastic as this has not

previously met this Court's approval. See Eisen v. Carlisle

& Jacguelin, 417 US 156 (1974).

What gives this case particular interest is the national

debate over the appropriate treatment of severe disability. A

spectrum of care is available, ranging from full rehabilitation

14

and return to the community, through the intermediate step of

group homes, up to continued institutionalization of the

incurable.

There are many colors in that spectrum. The Court of

Appeals made it monochromatic by selecting one to represent

all.

1. The National Debate

This petition concerns degrees of disability, and the

differences in appropriate treatment of disability. Community

placement or group homes may well be an effective option for

those whose disabilities are less severe. For many of the

severely disabled, however, provision of services and

continuous care in an institution is the best (or only) possible

choice; their very lives may depend on it.

The essence of the problem was captured in People

Center. et. al., No. C 96-5906 FDB (W.D. WA, 1997):'°

"FOR explains that there is 'a great debate’ in

this country about how to best treat, care for,

and accommodate the mentally retarded and

developmentally disabled. On one side are

those who say that large, institutionalized care

is inhumane, unnecessarily restrictive, and

violative of human rights, and that all

'S The lead respondent herein is "People First of

Tennessee". Petitioner Arlington PGA is situated similarly to

intervenor Friends of Rainier, Inc. ("FOR") in the Washington

litigation.

15

developmentally disabled persons should be

placed in small, community based programs.

On the other side are those who say that a

‘continuum' of care is more appropriate, that

is, that while some disabled persons can

function in community settings, others are so

severely disabled that, for them, an institution

with centralized, constant protection and care

is a better alternative. FOR acknowledges that

on both sides are experts, examples of failure,

and families with difficult choices and hard

feelings." (App. at 240-245a.)

Arlington PGA speaks for those people who are so

disabled that their least restrictive alternative is

institutionalization. People First favors community placement

and institutional closure.

2. The Competing Interests

Arlington PGA's interest is Ghetinct from -- indeed,

opposed to -- that of People First.'"° As Judge Burgess'

sensitive opinion in People First of Washington, supra,

shows, neither side has a monopoly on correctness; the

choices are agonizing.

'© The Supreme Court has expressly recognized the

separate interests of parents and guardians, amply warranting

intervention and presentation of their unique prospective. Heller v.

Doe, 509 U.S. 312, 333 (1993). Arlington PGA represents over

200 families with a resident at ADC, a clear majority.

16

But there are choices. Different interests support

different choices. No one interest may be the class

representative.

Each competing interest made a clear record.

Arlington PGA's inclusion of institutionalization as an

important option was supported by expert testimony. (App.

at 227-237a.)'” People First adopted a position antagonistic

to that of Tennessee and Arlington PGA."* It bluntly opposed

Arlington PGA's support for ADC, as follows:

"Appellees simply contend that...the parents’

failure or refusal to raise the constitutional

claims of their sons, daughters and wards,

make it appropriate, in this proceeding, that

'7 Families representing 137 ADC residents submitted

declarations in opposition to class certification demonstrating the

unique needs of each resident. (App. at 52a, n. 6.) Together with

the expert testimony submitted, an abundant record was created on

the issue of conflict.

'8 "People First of Tennessee became keenly interested in

problems at Arlington in March 1991, when the [DOJ] issued a

Letter of Finding to Governor Ned McWherter informing [him] that

DOJ had found a pattern of serious violations of Arlington

residents’ constitutional rights. After the Letter of Finding was

issued, People First convened a special board meeting to discuss the

findings.... At the special board meeting, after discussion of the

findings, a motion was made and carried by the board...to discuss

litigation. This lawsuit followed." (PF Brief, p. 2.)

17

7537"

those claims be raised by the named

appellees...". (PF Brief, pp. 20-21.)'°

In describing these interests, this Court has correctly

stated:

"We deal here with issues of unusual delicacy,

in an area where professional judgments

regarding desirable procedures are constantly

and rapidly changing." (Heller v. Doe, supra

n. 16, loc. cit.)

People First seeks to downsize, and then close, ADC.

Arlington PGA seeks to preserve ADC as an option for the

many disabled persons who need that institution open.

This is a record of competing interests. No single

class could arise from it.

3. This Court's Precedent

Arlington PGA submits that the sharply differing

interests of People First and itself fail to satisfy the

"commonality" test of FRCP 23(a)(2); the "typicality"

requirement of FRCP 23(a)(3); the conflict of interest aspect

of the adequacy of representation requirement of FRCP

23(a)(4), and the class definition of FRCP 23(b)(2) under the

'? From the parents’ perspective, this is the cant of an

officious intermeddler. A final judgment ends an advocacy group's

involvement with these disabled individuals. Their parents and

guardians. must cope with the resulting service system, day by

fearful day.

18

established precedent of this Court. The contrary decision

below should be rejected.”

The issue rises to the level of a denial of procedural

due process. Selection of a class representative "whose

substantial interests are not necessarily, or even probably, the

same as those [whom] they are deemed to represent" violates

due process. Hansberry v. Lee, 311 US 32, 45 (1940).

In

v. EEOC, 446 US 318 (1980), this Court noted:

"(T]he adequate representation requirement is

typically construed to foreclose the class action

where there is a conflict of interest between

the named plaintiff and the members of the

putative class." (446 US at 331.)

This Court plainly concluded there that, when

represented groups compete: "[t]he same plaintiff could not

represent these classes." (Ibid.)

20 The prior precedent of the Sixth Circuit was orthodox.

See, ¢.g., In.re American Medical Systems. Inc. (Pfizer Inc.), 75

F. 3d 1069 (6 Cir. 1996); Smith v. Babcock, 19 F. 3d 257 (6 Cir.

1994), and Weaver v. University of Cincinnati, 970 F. 2d 1523 (6

Cir. 1992). The aberrant decision below conflicts with precedent

in other circuits. See, e.g., In re Joint Eastern and Southern

District Asbestos Litigation, 982 F. 2d 721 (2 Cir. 1993) and 993

F. 2d 7 (on rehearing); Scott v Haworth, 916 F. 2d 134, 145 (4

Cir. 1990); Gilpin v. AESCME, AFL-CIO, 875 F. 2d 1310 (7 Cir.

1989), and Appleyard v. Wallace, 754 F. 2d 955, 958 (11 Cir.

1985).

19

In General Telephone Company of the Southwest v.

Ealcon, 457 US 147 (1982), this Court noted the same

difficulty:

"The commonality and typicality requirements

of Rule 23(a) tend to merge. Both serve as

guideposts for determining...whether the

named plaintiffs' claim and the class claims are

so interrelated that the interests of the class

members will be fairly and adequately

protected in their absence. Those

requirements also tend to merge with the

adequacy-of-representation requirement,

although the latter...also raises concerns

about...conflicts of interest...". (457 US at

157, n. 13.)

Very closely on point is Amchem, supra, an asbestos

litigation case. A well-intentioned group achieved a national

settlement conditioned upon class certification. Construing

both challenges made here (typicality and adequacy), this

Court rejected the class certification:

"Settlement, though a relevant factor, does not

inevitably signal that class action certification

should be granted more readily than it would

be were the case to be litigated....[P]roposed

settlement classes sometimes warrant more,

not less, caution on the question of

certification.” (521 US at __,n. 16; 138 L.

Ed. 2d at 711; 117 S. Ct. at 2248.)

"[FRCP 23(a) and (b)] focus court attention on

whether a proposed class has sufficient unity

so that absent members can fairly be bound by

20

decisions of class representatives. That

dominant concern persists when settlement,

rather than trial, is proposed." (521 US at

__; 138 L. Ed. 2d at 711, 117 S. Ct. at 2248;

emphasis added.)

"(Njamed parties with diverse medical

conditions sought to act on behalf of a single

giant class rather than on behalf of discrete

subclasses. In significant respects, the

interests of those within the single class are not

aligned." (521 US at _; 138 L. Ed. 2d at

714; 117 S. Ct. at 2251.)

Given the sharp contrast between the interests of

Arlington PGA and People First, neither could represent the

class as defined here.” The class itself covered over 423

individuals, and countless others "at risk of being placed at

Arlington Developmental Center". Within this boundless

class of individuals, there existed diverse medical conditions,

disabilities, and behavioral complexities. As this court

observed in Amchem:

"The settling parties, in sum, achieved a global

compromise with no structural assurance of

fair and adequate representation for the diverse

21 The panel based certification "in part" on FRCP

23(b)(2). Upon Amchem's discussion, we submit that the only

applicable "class type" rule is FRCP 23(b)(3), which requires both

a predominance of class issues over individual issues and an

opportunity for dissenters to opt out. No such opportunity was

_ offered here. In any event, this case does not meet the threshold

requirements of FRCP 23(a)(2-4).

21

groups and individuals affected." (521 US at

_; 138 L. Ed. 2d at 715; 117 S. Ct. at 2251.)

This Court should correct the Court of Appeals’

deviation from Amchem, supra; deny class action status, and

remand for further proceedings.

Il. | APPROVAL OF THE CLASS ACTION

SETTLEMENT MUST BE VACATED.

As in Amchem, supra, denial of class action status

would also vacate the settlement of First Amendment claims

made below. Whether individuals choose to settle on those

terms, or any other, would be a matter for remand.

In this context, we must note that no proof of First

Amendment violations was ever presented.” The District

Court actually acknowledged:

"{I]t may well be that [only] a fairly small

number of people will be in a position to really

exercise those [First Amendment] rights...".

(App. at 239a.)

The rights involved are associational. Arlington PGA

members were never denied access to their children. The

primary complaint was by an outside interest group, claiming

to "know better". Those prejudiced by the settlement were

Arlington PGA and the disabled residents, for whom People

First was permitted to make life and placement decisions.

Indeed, we suggest that the core issue involved is

political, rather than justiciable. Institutionalized individuals

are clothed with due process protections under, ¢..,

22 At oral argument of this appeal on 10 March 1998,

Tennessee continued to assert that there were no violations. At the

settlement hearing below, the District Court precluded inquiry into

alleged violations. It seems apparent that the State agreed to settle

to save costs and end the litigation.

3 PF Brief, pp. 20-21.

23

Youngberg v. Romeo, 457 US 307, 324 (1982), and

DeShaney v. Winnebago County Department of Social

Services, 489 US 189, 200-1, nn. 8-9 (1989). To the extent,

however, that the People First organizations pursue the

objective of institutional closure as "next friends" to the

disabled, a different agenda appears.

The United States has the unquestioned right to seek

relief under CRIPA™, as it did in the DOJ Action. The

people of Tennessee may, through their elected officials or

their own vote, determine to open or close health facilities in

their state. People First is neither of these.

As an amicus curiae, People First has whatever limited

role a court may permit in a litigation between real parties.

(See this Court's Rule 37.1.) It may not, however, create a

litigation by copying the DOJ Action through the guise of a

"next friend" pleading when the natural "next friends" of a

disabled adult, the parents or guardians, see no difficulty, and

raise no alarm.

* Civil Rights of Institutionalized Persons Act, 42 USCA

§ 1997.

24

ee

CONCLUSION

For the reasons set forth above, this Court should

issue a writ of certiorari to the United States Court of Appeals

for the Sixth Circuit.

Dated: New York, New York

September 11, 1998

Respectfully submitted,

/s/

WILLIAM J. BURKE, ESQ.

Counsel of Record for Petitioner

BURKE & STONE

400 Madison Avenue

New York, New York 10017

(212) 752-5353

/s/

WILLIAM F. SHERMAN, ESQ.

Co-counsel to Petitioner

221 West Second Street

504 Pyramid Place

Little Rock, Arkansas 72201

(501) 372-3148

25