# Appendix — Parent-Guardian Ass'n of Arlington Developmental Center v. People First of Tennessee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1572%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1001 ## Text APPENDIX A Case No: 97-5232 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED July 16, 1998 LEONARD GREEN, Clerk PEOPLE FIRST OF TENNESSEE, on behalf of its members; CARL BEARD, nfr Wendy Kurland; SANDRA HOWARD; HERMAN WALTER RUNIONS, nfr Sarah R. Todd; HARVEY RICHARD WATSON, orf Bonita Scott; CLARENCE WILSON, nfr Wilma Williamson; STEVELYN DANIEL TUCKER; KEITH COLLINS Plaintiffs - Appellees V. 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; la Order - No. 92-02213, 7/16/98 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 Defendants - Appellees PARENT-GUARDIAN ASSOCIATION OF ARLINGTON DEVELOPMENTAL CENTER Intervenor-Appellant BEFORE: KRUPANSKY, NELSON and BATCHELDER, Circuit Judges. Upon consideration of the motion filed by the appellant to stay the mandate pending the filing of a Petition of Writ of Certiorari, It is ORDERED that the motion be, and it hereby is, GRANTED. The mandate is stayed for thirty days from this Order unless the Court is advised that the Petition for Writ of Certiorari has been filed. ENTERED BY ORDER OF THE COURT /s/ Leonard Green, Clerk APPENDIX B 97-5232 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED July 1, 1998 LEONARD GREEN, Clerk PEOPLE FIRST OF TENNESSEE, ) ON BEHALF OF ITS MEMBERS, ) ET AL., Plaintiffs-Appellees, ORDER ) ) ) V. ) ) ARLINGTON DEVELOPMENTAL ) CENTER, ET AL., Defendants-Appellees, ASSOCIATION OF ARLINGTON DEVELOPMENTAL CENTER, ) ) ) PARENT-GUARDIAN ) ) ) Intervenor-Appellant. ) / BEFORE: KRUPANSKY, NELSON, and BATCHELDER, Circuit Judges. The court having received a petition for rehearing en 3a — a SERS PS RD eS DEO 0 Lh a Re oe SP MRE, Pe ee Se eng Ca ae ee banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original panel. The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied. ENTERED BY ORDER OF THE COURT /s/ Leonard Green, Clerk APPENDIX C FILED May 7, 1998 LEONARD GREEN, Clerk No. 97-5232 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE PEOPLE FIRST OF TENNESSEE, on behalf of its members; CARL BEARD, nfr Wendy Kurland; SANDRA HOWARD; HERMAN WALTER RUNIONS, nfr Sarah R. Todd; HARVY RICHARD WATSON, nfr Bonita Scott; CLARENCE WILSON, nfr Wilma Williamson; STEVELYN DANIEL TUCKER; KEITH COLLINS, Plaintiffs-Appellees Vv. ARLINGTON DEVELOPMENTAL CENTER; Sa ee Opinion - No. 97-5232, 5/7/98 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 NELLIE 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, Defendants-Appellees, PARENT-GUARDIAN ASSOCIATION OF ARLINGTON DEVELOPMENTAL CENTER, ee eee eee aes Intervenor-Appellant. Before: KRUPANSKY, NELSON, and BATCHELDER, Circuit Judges. PER CURIAM. This is a class action involving alleged violations of the constitutional rights of developmentally 6a 1 Opinion - No. 97-5232, 5/7/98 disabled residents of a state institution. The parents and guardians of a number of the residents intervened to oppose class action status, but the class was certified and the case was ultimately resolved in a settlement approved by the district court. The intervenors have appealed, asking us to overturn the certification of the class, the approval of the settlement, and three related rulings. We find no basis for doing so. I In December of 1991 an entity called "People First of Tennessee" brought suit against the Arlington Developmental Center ("ADC"), seeking injunctive and declaratory relief on behalf of ADC's residents. ADC is an institution owned and operated by the state of Tennessee to care for mentally retarded people. Approximately 400 individuals were housed at ADC when the suit was filed. People First of Tennessee is a non-profit advocacy organization composed of (and allegedly governed by) people with disabilities. Joining with six individual ADC residents,’ the organization sued ADC and other state agencies and officials” on claims that residents of the institution were being deprived of basic care and medical treatment, habilitation and training programs, adequate behavior and nutritional management, physical therapy, adequate communication services, and rights of personal choice, privacy, and freedom ' The initial complaint included four individual plaintiffs, but an amended complaint, filed in February of 1993, added two more. The plaintiffs will be referred to collectively as "People First." > The defendants will be referred to collectively as "the state." Ta Opinion - No. 97-5232, 5/7/98 of association. It was also alleged that the residents suffered frequent injury and abuse, unnecessary restraint, and loss of skills caused by inadequate therapy programs and inadequate staffing. Some of People First's claims were based on the "substantive" component of the Due Process Clause of the Fourteenth Amendment, others were based on the First Amendment as made applicable to the state by the Fourteenth Amendment, and still others had a statutory basis. Acting on behalf of relatives and guardians of ADC residents, the Parent-Guardian Association of Arlington Developmental Center ("PGA") moved to intervene. PGA objected to People First's representation of the class and expressed concern that People First would eventually seek to close ADC. On January 26, 1993, the district court granted PGA's motion to intervene and dismissed many of People First's claims. The court's ruling left certain due process and freedom of association claims to be adjudicated, but none of the statutory claims. While the class action was pending, the federal government sued the State of Tennessee under the Civil Rights of Institutionalized Persons Act, asserting claims similar to those advanced in the People First case. United States v. Tennessee, 92-2062 M1/A (W.D. Tenn.) (hereinafter referred to as "the U.S. case"). The U.S. case went to trial in the fall of 1993, and the court found that constitutional rights of ADC residents were indeed being violated. On September 2, 1994, the court entered a 54-page remedial order. Extensive training and monitoring programs were mandated, and the state was directed to reduce the ADC population to 8a Ag Opinion - No. 97-5232, 5/7/98 200 residents. The reduction was to be accomplished by transferring appropriate residents to community living arrangements designed to meet individual needs. At this point the court entered a temporary stay of proceedings in the People First case. All motions in this case were denied without prejudice, and the parties were instructed to review the Remedial Order and then renew any motions they wished to press further. Among the pending motions was one in which PGA had moved to consolidate the class action with the U.S. case. PGA did not renew the consolidation motion. People First renewed its motion for class certification, and on September 26, 1995 -- over objection from PGA -- the court certified a plaintiff class. The class included "all persons who on or after December 12, 1989, have resided, or are residing at the Arlington Developmental Center; all 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 all persons at risk of being placed at Arlington Developmental Center." The court went on to hold that the relief granted in the U.S. case disposed of People First's due process claims. The court adopted the findings of fact from the U.S. case and entered the remedial order from that case "as the final order in this matter as a remedy for defendants’ violation of plaintiffs' Fourteenth Amendment rights." The First 9a Opinion - No. 97-5232, 5/7/98 Amendment claims remained at issue. Meanwhile, in June of 1995 -- almost 30 months after it had been allowed to intervene -- PGA moved for leave to file a complaint against the state alleging that the placement of residents in community living arrangements would be harmful to the residents so placed. Treating the complaint as a cross- claim, the court denied the motion as both untimely and inappropriate because no substantive due process issues remained to be decided. People First and the state settled the remaining issues in January of 1997. Having stipulated to violations of the residents' First Amendment associational fights, the state agreed to develop a right-of-association policy, to train staff members to allow free exercise of the right of association, to implement a program for disciplining staff who violated residents' rights, and to allow "advocates, religious organizations, and community organizations reasonable opportunity to communicate with residents and allow[] residents the opportunity to participate in community activities." PGA objected to the settlement, contending that there should have been no stipulation without proffered evidence and expressing concern that the settlement would limit parental access to residents. After considering the objections and other factors, the district court approved the settlement as fair, adequate, and reasonable. PGA now appeals the class certification and the approval of the settlement, as well as the denial of the motion to consolidate, the denial of the motion for leave to file a 10a Opinion - No. 97-5232, 5/7/98 cross-claim, and the entering of findings from the U.S. case. II Most of the challenged rulings are subject to review under an abuse of discretion standard. See Weaver v. University of Cincinnati, 970 F.2d 1523, 1531 (6th Cir. 1992), cert. denied, 507 U.S. 917 (1993) (class certification); Bailey v. Great Lakes Canning, Inc., 908 F.2d 38, 42 (6th Cir. 1.990) (class settlement); Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993) (motion to consolidate); Shearson/Am. Express, Inc. v. Mann, 814 F.2d 301,308 (6th Cir. 1987) (counterclaim). The entry of final judgment on the substantive due process claims is reviewed de novo. See Parrett v. Am. Ship Bldg. Co., 990 F.2d 854, 857 (6th Cir. 1993). A The propriety of class certification in a case such as this, where injunctive and declaratory relief has been sought with respect to allegedly unlawful conditions at a state institution, turns in part on Fed. R. Civ. P. 23(b)(2).° Before certifying a class under Rule 23(b)(2), the district court must conduct a rigorous analysis to determine whether > Rule 23(b)(2) allows class actions, under certain conditions, in cases in which "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." lla iii ai Opinion - No. 97-5232, 5/7/98 "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative Parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). Considering each of these provisions, the district court concluded that the class certification requirements of Rules 23(a) and 23(b)(2) were met. At the time of certification ADC had approximately 385 residents. Although residents' medical and habilitation needs varied, the court found that "whether defendants are prohibiting residents from associating with certain individuals in violation of their First Amendment rights" was a question common to the class. The claims against the state arose from the same patterns and practices, moreover, and were based on the same legal theory. See Jn re Am. Med Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996) (discussing the typicality requirement). Finally, the court determined that the named plaintiffs would fairly and adequately protect the interests of the class. The plaintiffs’ counsel was qualified and competent to prosecute the action vigorously, and there was no evidence, that People First had interests that were antagonistic to those of the other residents. See id., at 1083; Senter v. General Motors Corp., 532 F.2d 511,525 (6th Cir.), cert. denied, 429 U.S. 870 (1976). PGA's primary objection to class certification was that many of the residents' parents and guardians opposed representation by People First. There were thus conflicts of interest between the representative and the Class, according to 12a Opinion - No. 97-5232, 5/7/98 PGA, and there were not enough residents allied with People First for the class to be numerous. Noting that Tennessee law does not give guardians exclusive control over the exercise of their wards’ legal rights, the district court rejected this argument. We find no abuse of discretion in this or any other aspect of the district court's treatment of the class certification issue. We cannot say the certification was improper.‘ B Where settlement of a class action is proposed, Fed. R. Civ. P. 23(e) directs the court to hold a hearing to determine whether the proposed settlement is "fair, adequate, and reasonable, as well as consistent with the public interest." The district court held the requisite heating in this case, after appropriate notice, and carefully considered (among other things) the likelihood of success on the merits, the complexity of the litigation, the stage of discovery, the opinions of the parties’ counsel, the concerns of the class members and other interested parties, and the public interest. Cf. Williams v. Vukovich, 720 F.2d 909, 922-924 (6th Cir. 1983). The settlement was held to be fair, adequate, and reasonable in light of the pertinent factors. We find no abuse of discretion in the court's decision. * Responding to PGA's appeal of the certification, the state itself questioned certain aspects of the class definition. Inasmuch as the State has not. appealed, however, these matters are not properly before the court. 13a Opinion - No. 97-5232, 5/7/98 The settlement assured that residents' First Amendment rights would be protected without the expense and effort of a trial. PGA's concerns about impairment of parental access to residents are unsupported; the language of the settlement protects residents’ rights to associate with others, but in no way abridges the rights of parents and guardians. Cc As to the denial of PGA's motion to consolidate, we note that the motion was denied without prejudice. PGA never having filed a new motion to consolidate, as the court invited it to do, we find it hard to see how PGA can complain of the failure to consolidate. PGA was allowed to intervene in the U.S. case, in any event, and the concerns about community placement were more properly addressed there. As to the denial of PGA's motion for leave to file a complaint against the state, we note that the motion came some two and one-half years after PGA's intervention. The proposed complaint, moreover, addressed only the due process issues dealt with in the U.S. case. The district court did not abuse its discretion in denying the motion. Finally, PGA challenges the court's entry of findings from the U.S. case, a proceeding in which PGA maintains that its interests were not represented. The question, however, is whether the state -- the defendant against which the remedial order was directed had a full and fair opportunity to contest the allegation that it had violated the substantive due process rights of the ADC residents. The court properly held that the state had such an opportunity. The remedial order in the U.S. case addressed the conditions underlying People l4a Opinion - No. 97-5232, 5/7/98 First's due process claims, and collateral estoppel barred relitigation of the due process issues in this case. PGA cannot effectively challenge the remedial order in the U.S. case as an intervenor here. AFFIRMED. 15a APPENDIX D CASE NO: 92-2213-M1/V FILED January 7, 1997 ROBERT R. DI TROLIO CLERK, U.S. DIST. CT. W.D. OF TEN, MEMPHIS UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION PEOPLE FIRST OF TENNESSEE on behalf of its members, et al. ) ) ) ) VS. ) ) THE ARLINGTON DEVELOPMENTAL ) INVESTIGATION, et al. ) ) PARENT GUARDIAN ASSOCIATION OF) THE ARLINGTON DEVELOPMENTAL ) CENTER ) / JUDGMENT IN A CIVIL CASE DECISION BY COURT. This action came to consideration before the Court. The issues have been considered and a l6a decision has been rendered. IT IS SO ORDERED AND ADJUDGED that In accordance with the Order Approving Settlement of Class Action entered on January 6, 1997, the Court approves the proposed settlement and enters judgment in accordance with the settlement agreement. The Court shall retain jurisdiction over the parties, including all members of the settlement class, and the administration and enforcement of the settlement agreement. APPROVED: /s/ JON PHIPPS MCCALLA UNITED STATES DISTRICT COURT January 6, 1997 _ Date /s/ ROBERT R. DI TROLIO /s/ (By) Wendy Bachledge-Ellis Deputy Clerk APPENDIX E FILED January 7, 1997 Clerk No. 92-2213 M1/V IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION PEOPLE FIRST OF TENNESSEE on behalf of its members, et al. Plaintiffs, ¥, THE ARLINGTON DEVELOPMENTAL INVESTIGATION, et al. Defendants, ee eee twee wes GS PARENT GUARDIAN ASSOCIATION OF THE ARLINGTON DEVELOPMENTAL ) CENTER, ) Intervenor. ) 2 / — ORDER APPROVING SETTLEMENT OF CLASS ACTION 18a Order - No. 92-2213 M1/V - 1/6/97 This matter is before the Court on plaintiffs' and defendants' Proposed Stipulation and Order of Compromise and Dismissal, filed July 29, 1996, and plaintiffs' Motion for Final Approval of the Proposed Settlement Agreement, filed September 13, 1996. For the reasons set forth below, the proposed settlement of the class action is APPROVED. BACKGROUND This case was originally filed on December 12, 1991, by five Arlington Development Center ("ADC") residents and by People First of Tennessee. The case was transferred to this Court on March 5, 1992. Plaintiffs alleged that the conditions at Arlington Developmental Center violated the constitutional and statutory rights of the Arlington residents and those at risk of placement there. Plaintiffs sought injunctive and declaratory relief from the conditions at ADC. On January 26, 1993, the Court dismissed plaintiffs’ statutory claims and certain of their First and Fourteenth Amendment claims and granted the Parent Guardian Association's motion to intervene. The remaining First Amendment claims asserted that the defendants violated the plaintiffs’ rights to freedom of expression and association by preventing Arlington residents from associating with others, and by preventing the residents from communicating with others of their choice. Meanwhile, in January, 1992, the United States filed an action against the State of Tennessee under 42 U.S.C. § 1997 et seq, alleging that the state had failed to provide humane conditions and adequate treatment at Arlington Developmental Center. United States v. Tennessee, Civ. No. Order - No. 92-2213 M1/V - 1/6/97 92-2062. Each of the parties to the present action were parties to that case. After a lengthy trial, this Court entered judgment against the defendants finding that the conditions at ADC violated the residents’ due process rights. On September 27, 1995, the Court granted plaintiffs' motion for class certification, defining the class as: “all persons who after December 12, 1989, have resided or are residing at the Ariington Developmental Center, all persons who have been transferred to other facilities but who remain the defendants, responsibility, and all persons at risk of being placed in the Center." In addition, the Court granted partial summary judgment on plaintiff's claims under the Fourteenth Amendment relating to care, services, abuse, and neglect in light of the Court's decision in United States v. Tennessee, Civ. No. 92-2062. As a result of the September 27, 1995 Order, the only remaining issues in the case are the plaintiffs' First Amendment claims. By order dated January 11, 1996, the Court set a trial for these issues to begin on July 29, 1996. On July 29, 1996, however, plaintiffs and defendants filed a proposed stipulation and order of compromise and dismissal under Federal Rule of Civil Procedure 23(e). Parent Guardian Association, the intervenor, Opposes the proposed settlement. The proposed settlement agreement provides: 1. The plaintiffs and defendants acknowledge that past violations of the residents' First Amendment rights did occur. Plaintiff/residents were prevented from communicating, associating and assembling with persons of their choice. 20a Order - No. 92-2213 M1/V - 1/6/97 2. According to the proposed settlement, the Defendants will protect the rights of the Plaintiff/residents by: (a) (b) (c) (d) developing a policy to enable residents to communicate, associate, and assemble with others of their choice both publicly and privately; telling the staff of the Arlington Developmental Center and agencies who work with the Center about the policy so that staff will not discourage residents from exercising their right to freely communicate, associate and assemble with others of their choice; establishing a process to discipline staff members who violate the right of residents to freely communicate, associate and assemble with others; and allowing advocates, religious organizations, and community organizations reasonable opportunity to communicate with residents and allowing residents the opportunity to participate in community activities. DISCUSSION Federal Rule of Civil Procedure 23(e) provides that a 2la Order - No. 92-2213 M1/V - 1/6/97 Class action cannot be settled without court approval.' "Three Steps are required [for approving a class action settlement]: 1) the court must preliminarily approve the proposed settlement; 2) members of the class must be given notice of the proposed settlement; and 3) a hearing must be held to determine whether the proposed settlement is fair, reasonable and adequate." Reed v, Rhodes, 869 F. Supp. 1274, 1278 (N.D. Ohio 1994) (citing Williams v. Vukovich. 720 F.2d 909, 921- 22 (6th Cir. 1983)). By Order dated August 15, 1996, this Court preliminarily approved the proposed settlement agreement. In that same Order, the Court ordered counsel for the plaintiffs and defendants to mail notice to all class members and other interested parties by Friday, August 30, 1996, at 5:00 p.m. That notice also advised all parties interested in commenting on or objecting to the settlement to submit comments by September 20, 1996, at 5:00 p.m. Likewise, the notice advised all those wishing to participate in the hearing to notify the Court by September 20, 1996, at 5:00 p.m. On September 27, 1996, the Court held a hearing so that any class member or family member, guardian, or next friend of a class member could comment on the proposed settlement. At that hearing, the Court heard testimony from interested parties and accepted written comments from ' Federal Rule of Civil Procedure 23(e) provides: A class action shall not be dismissed or compromised without the approval of the court, and the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. 22a / Order - No. 92-2213 M1/V - 1/6/97 members of the intervenor. A court should approve a settlement if it is fundamentally "fair, adequate and reasonable, as well as consistent with the public interest." Bailey v. Great Lakes Canning. Inc., 908 F.2d 38, 42 (6th Cir. 1990) (citing United States v. Jones & Laughlin Steel Corp. 804 F.2d 348, 351 (6th Cir. 1986)). In determining whether the proposed settlement is "fundamentally fair, adequate, and reasonable," the court should consider the following factors: 1. Plaintiffs likelihood of success on the merits balanced against the relief offered by the proposed settlement agreement; 2. The complexity, expense, and likely duration of the litigation; 3. The stage of the proceedings and the amount of discovery; 4. The judgment of experienced trial counsel; > The nature of the negotiations; 6. The concerns and comments of the class members and other interested parties; and 2 The public interest. Bronson v. Board of Education, 604 F. Supp. 68, 74-82 (S.D. Ohio 1984) (citing Vukovich, 720 F.2d at 922); accord Granada Investments. Inc. v. DWG Corp., 962 F.2d 1203, 23a Order - No. 92-2213 M1/V - 1/6/97 1205 (6th Cir. 1992) (holding that a court should balance "the likelihood of success on the merits, the risk associated with and the expense and complexity of litigation, and the objections raised by class members"). Applying these factors to the present case, the Court finds that the proposed settlement is fundamentally fair, adequate, and reasonable. Re Plaintiff's likelihood of success on the merits balanced against the relief offered by the proposed settlement agreement. In their suit, plaintiffs seek to establish that the defendants have deprived the residents of Arlington Developmental Corporation of their First Amendment rights and seek injunctive and declaratory relief against any such future infringements. In the proposed settlement, the defendants stipulate to past First Amendment violations and agree to institute a plan to ensure that no such violations occur in the future. Thus, even if the plaintiffs were to succeed at trial, the plaintiffs could not conceivably obtain more relief than that offered in the proposed settlement. In going to trial, however, the plaintiffs would run the inescapable risk of obtaining no relief. Accordingly, the Court finds that this factor weighs in favor of approving the settlement. z: The complexity, expense and likely duration of the litigation. This case was originally filed in December 1991, and has involved costly, time-consuming litigation. Although the trial of the alleged First Amendment violations is estimated to last only one to one and one-half days, if the court were to find a First Amendment violation, remedial hearings would 24a Order - No. 92-2213 M1/V - 1/6/97 have to be held and appeals could be taken prior to any resolution of the alleged violations. Consequently, the relief sought by the plaintiffs could be delayed significantly. In contrast, the settlement agreement allows the plaintiffs to enjoy the benefits of the agreement almost immediately. Accordingly, the Court finds that this factor also weighs in favor of approving the settlement. 3. The stage of the proceedings and the amount of discovery completed. The purpose of considering the stage of the proceedings and the amount of discovery taken is to ensure that plaintiffs had access to sufficient material to evaluate the case and to assess the adequacy of the settlement proposal with an informed judgment of the strengths and weaknesses of their position. See In re General Motors Corp., 846 F. Supp. 330, 334-35 (E.D. Pa. 1993). As noted above, this case was originally filed almost five years ago. Thus, this is not a settlement that was reached in the early stages of litigation without significant consideration or deliberation. In contrast, significant amounts of discovery have occurred and a related trial has exposed the conditions existing at Arlington Developmental Center. As a result, the parties have been able to make an informed decision about the alleged First Amendment violations and the merits of the proposed settlement. Given the amount of information available to the parties, the Court concludes that this factor weighs in favor of the proposed settlement. 4. The opinion of counsel In appraising the fairness of a proposed settlement, the 25a Order - No. 92-2213 M1/V - 1/6/97 view of experienced counsel favoring a settlement is entitled to significant weight. Physicians Ass'n, 124 F.R.D. 154, 159 (S.D. Ohio 1988); Bronson, 604 F. Supp. at 73 (holding that "when significant discovery has been completed, the Court should defer to the judgment of trial counsel who has reviewed the strength of his case"). As noted above, a significant amount of discovery has taken place in this case. In addition, counsel has benefitted from the discovery and trial conducted in United States v. Tennessee, Thus, counsel for both sides was able to fully evaluate the strengths and weaknesses of their respective cases. See Bronson, 604 F. Supp. at 73. Consequently, the Court finds that the extensive discovery conducted in this case and other information available to the parties warrants placing great weight on the opinion of counsel that the settlement is fair, adequate, and reasonable. 3: The nature of the negotiations There is no indication that the proposed settlement is the product of collusion. Instead, the settlement was the product of' "intense, arms-length negotiations between the parties," Bronson, 604 F. Supp. at 78, after almost five years of litigation. Counsel for the intervenor asserts that the agreement is the product of collusion on the grounds that there is no evidence of any First Amendment violations. In approving a settlement decree, however, "[t]he Court has no occasion to determine the merits of the controversy or the factual underpinning of the legal authorities advanced by the parties." Vukovich, 720 F.2d at 921. The only question before the Court is whether the settlement agreement is fair, adequate, and reasonable. Id. Moreover, even assuming that there were no First Amendment violations, this does not 26a Order - No. 92-2213 M1/V - 1/6/97 change the fact that the agreement is fair, adequate, and reasonable. The settlement provides the plaintiff class with the full range of protection sought in their complaint. It is difficult to see how this agreement is the result of collusion when the plaintiff class gets everything it wanted and the opposing parties include the state of Tennessee and various state agencies. This Court notes that there is little doubt that the state of Tennessee is quite capable of protecting itself and its agencies. Finally, requiring the plaintiffs to prove the existence of the First Amendment violations before settlement would undermine the overriding public policy interest in favor of settlement. See Schaeffer v. Tannian, 1995 WL 871134 at *5 (E.D. Mich. 1995) ("The policy in federal court favoring the voluntary resolution of litigation through settlement is particularly strong in the-class action context."). The entire point of a settlement is to resolve the case in a manner acceptable to the parties without an actual in-court determination of liability. Accordingly, the Court finds that the intervenor's objections do not merit a finding that the settlement is not fair, adequate, and reasonable. 6. The concerns and comments of class members and other interesied parties. The Court must also consider any objections to the proposed settlement. Stotts v. Memphis Fire Dep't, 679 F.2d 541, 554 (6th Cir. 1982), rev'd on other grounds sub nom, Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984); Bronson, 604 F. Supp. at 78. Although the Court must consider any objections made, the fact that there are objections does not mean that the settlement cannot be 27a Order - No. 92-2213. M1/V - 1/6/97 approved. Stotts 679 F.2d at 554. The ultimate issue remains whether the proposed settlement is fair, adequate, and reasonable. : In this case, the Court has received comments from a number of members of the Parent Guardian Association ("PGA") and from ComCare Inc., a court appointed guardian for a number of ADC residents.” After careful consideration of all the views expressed both in writing and at the hearing, the Court finds that the settlement is fair, adequate, and reasonable. One major area of concern voiced by the intervenor is that there was no evidence of any First Amendment infringement. As discussed above, this argument does not prevent the court from approving the settlement. A second area of concern raised by PGA and ComCare is that the settlement will interfere with the parents' and guardians’ rights to represent and speak for their children and wards. The settlement, however, does not strip the parents and guardians of their duties and responsibilities to their children and wards at the Arlington Developmental Center. Instead, the settlement merely provides Safeguards to the ADC residents that their First Amendment rights will not be violated by the staff at ADC. The parents and guardians will retain their voice and ability to influence the care"of their children and/or wards -- within constitutional constraints of > By Order dated November 6, 1996, the Court agreed to consider comments submitted by Comcare, Inc., even though the comments were received after the deadline for submitting such comments. 28a ee EE Order - No. 92-2213 M1/V - 1/6/97 course. A third area of concern is that the settlement will allow third parties, including advocates, religious organizations, and community organizations, unfettered access to the residents of Arlington Developmental Center. Again, such a concern is overstated. The settlement merely provides that the ADC will allow such parties "reasonable opportunity to communicate with residents." Reasonable opportunity does not mean unfettered access. Instead, the use of the term "reasonable opportunity" recognizes that a policy protecting the First Amendment rights of the Arlington residents cannoi be rigidly fixed; rather, it must remain flexible to accommodate the unique needs of the residents while at the same time protecting their First Amendment rights. A final area of concern surrounds the wording of the settlement decree. In particular, concerns were raised as to the meaning of "discourage" in paragraph 2(b) of the proposed settlement agreement. Once again, a settlement of this kind cannot be reduced to specific and exacting standards. The unique challenges facing both the residents and the staff of ADC require that such a policy remain somewhat flexible. In sum, although the Court recognizes the thoughtful and heartfelt concern expressed by the parents and guardians of the residents of Arlington Developmental Center, the Court nonetheless finds that the objections raised do not warrant a finding that the settlement is not fair, adequate, and reasonable to the plaintiff class. vs The public interest 29a Order - No. 92-2213 M1/V - 1/6/97 Finally, the Court must consider whether the settlement is in the public interest. Vukovich, 720 F.2d at 923. There is little doubt that the proposed agreement is in the public interest. Not only does the settlement agreement bring an end to nearly 5 years of litigation, but, more importantly , it improves the quality of services provided to the residents of the Arlington Development Center by guaranteeing protection of their constitutional rights under the First Amendment. CONCLUSION Having examined and weighed the above factors, the Court concludes that the proposed settlement agreement is fair, adequate, and reasonable. Accordingly, the Court APPROVES the proposed settlement and directs that a judgment, in accordance with the settlement agreement, be entered by the clerk. The Court shall RETAIN jurisdiction over the parties, including all members of the settlement Class, and the administration and enforcement of the settlement agreement. IT IS SO ORDERED this 6 day of January 1997. /s/ JON P. McCALLA STATES DISTRICT JUDGE 30a PEOPLE FIRST OF TENNESSEE; et. al., V. ARLINGTON DEVELOPMENTAL CENTER et. al, APPENDIX F IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION FILED August 15, 1996 No. 92-2213 M1/V CERTIFIED TRUE COPY ROBERT R. DI TROLIO U.S. DISTRICT COURT WESTERN DISTRICT OF TENNESSEE /s/ DEPUTY CLERK Plaintiffs, i i a a a a Defendants. ORDER On July 29, 1996, plaintiffs and defendants submitted a proposed stipulation and order of compromise and 3la Order - No. 92-2213 M1/V, 8/15/96 dismissal. Intervenor filed an objection to the proposed Stipulation and order. Accordingly, on July 30, 1996, the Court conducted a conference by telephone on the issues raised in intervenor's objection. On July 31, 1996, the Court entered an order directing plaintiffs to submit a plan for compliance with Fed. R. Civ. P. 23(e) by 5:00 p.m. on August 6, 1996, and intervenor to submit any comments on plaintiff's plan by 5:00 p.m. on August 13, 1996. On August 6, 1996, plaintiffs submitted a proposed plan for compliance along with a proposed notice of proposed settlement. On August 13, 1996, intervenor submitted comments on plaintiffs' proposed plan. Under Fed. R. Civ. P. 23(e), A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. Upon consideration of the filings of the parties with respect to compliance with Fed. R. Civ. P. 23(e), it appears that the following is necessary to provide proper notice to the class certified by order of September 27, 1995. The proposed stipulation and order of compromise and dismissal attached hereto as exhibit 1 is hereby PRELIMINARILY APPROVED pending final order of the Court after the hearing described hereinafter: The notice of proposed settlement attached hereto as exhibit 2 is hereby APPROVED. Counsel for plaintiffs are hereby ORDERED to arrange to have the notice of proposed settlement published in The Commercial Appeal (Memphis) newspaper on three occasions: 1) once during .the week of 32a Order - No. 92-2213 M1/V, 8/15/96 August 25, 1996, to August 31, 1996; 2) once during the week of September 1, 1996, to September 7, 1996; and 3) once during the week of September 8, 1996, to September 14, 1996. Counsel for defendants are hereby ORDERED to provide counsel for plaintiffs a current list of the following by 5:00 p.m. on Friday, August 23, 1996: 1) the names and addresses of all Arlington Developmental Center (“ADC”) residents discharged on or after December 12, 1989; 2) the names and address of the family members, guardians, or next friends of all ADC residents discharged on or after December 12, 1989; 3) the names and addresses of the family members, guardians, and next friends of all current ADC residents. Counsel for plaintiffs are hereby ORDERED to mail copies of the notice of proposed settlement via first class mail, postage prepaid, to ADC residents discharged on or after December 12, 1989, and to the family members, guardians, or next friends of ADC residents discharged on or after December 12, 1989, by 5:00 p.m on Friday, August 30, 1996. Counsel for defendants are hereby ORDERED to deliver a copy of the notice of proposed settlement to each current ADC resident by 5:00 p.m. on Friday, August 30, 1996. Counsel for plaintiffs are hereby ORDERED to mail copies of the notice of proposed settlement via first class mail, postage prepaid, to family members, guardians, or next friends of all current ADC residents. Counsel for defendants are hereby ORDERED to mail copies of the notice of proposed settlement via first class mail, postage prepaid, to community: service providers by 5:00 p.m. on Friday, August 30, 1996, for subsequent distribut.sn to class members served by such community service providers. A hearing on the proposed settlement is hereby SCHEDULED for 2:00 p.m. on Friday, September 27, 1996. 33a Order - No. 92-2213 M1/V, 8/15/96 Any class member or family member, guardian, or next friend of a class member who wishes to attend and/or participate in the hearing MUST notify the Court by 5:00 p.m. on Friday, September 20, 1996, by filing with the Clerk of Court a typewritten document no more than one page in length (on 8 2" by 11" paper) that refers to this case by docket number. Any class member or family member, guardian, or next friend of a class member who wishes to submit any comments in support of or in opposition to the proposed settlement MUST file such comments with the Clerk of Court by 5:00 p.m. on Friday, September 20, 1996, in a typewritten document no more than five pages in length (on 8 %” by 11" paper in no smaller than a ten point font) that refers to this case by docket number. Any class member or family member, guardian, or next friend of a class member who files such comments MUST also contemporaneously mail copies of such comments to one of the. attorneys for plaintiffs, one of the attorneys for defendants, and one of the attorneys for intervenor. Any party that wishes to file a memorandum of law on the proposed settlement MUST do so by 5:00 p.m. on Friday, September 13, 1996. SO ORDERED this 15 day of August 1996. /s/ JON P. McCALLA UNITED STATES DISTRICT JUDGE 34a Order - No. 92-2213 M1/V, 8/15/96 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION NO. 92-2213 M1/V PEOPLE FIRST OF TENNESSEE; et. al., Plaintiffs, V. ARLINGTON DEVELOPMENTAL CENTER; et. al., Defendants. ACTION LAWSUIT TO: A) ALL PERSONS WHO ON OR AFTER DECEMBER 12, 1989, HAVE RESIDED, OR ARE RESIDING AT THE ARLINGTON DEVELOPMENTAL CENTER: B) ALL PERSONS HAVE BEEN TRANSFERRED FROM ARLINGTON DEVELOPMENTAL CENTER TO OTHER SETTINGS, SUCH AS INTERMEDIATE CARE FACILITIES OR SKILLED NURSING FACILITIES, h BUT REMAIN DEFENDANTS' RESPONSIBILITY; C) ALL PERSONS AT RISK OF BEING 35a Order - No. 92-2213 M1/V, 8/15/96 PLACED AT ARLINGTON DEVELOPMENTAL CENTER; D) FAMILY MEMBERS, GUARDIANS, AND NEXT FRIENDS OF PERSONS LISTED IN A), B), AND C). This notice describes a Proposed settlement agreement of a lawsuit against the Arlington Developmental Center, its superintendent, the Governor of Tennessee, and officials of six State departments and agencies -- the Department of Mental Health and Mental Retardation, the Department of Health, the Medicaid Bureau, and the Department of Human Services including Social Services and Rehabilitation Services. This notice tells you what the lawsuit is about, how to get more information, and how to object to the proposed settlement agreement if you think it is not fair. The Lawsuit This class action lawsuit was filed in December 1991 by five residents of the Arlington Developmental Center on behalf of all Center residents, and by People First of Tennessee, a Self-advocacy group for persons with disabilities. They wanted to prevent further abuse and neglect in the institution, receive better services for the residents, and secure their legal and constitutional rights, including the fight to freely associate with persons of their choice as guaranteed under the First Amendment of the United States Constitution. In September 1995 the Court certified the class, defining it as: all persons who after December 12, 1989, have resided or are residing at the Arlington Developmental 36a Order - No. 92-2213 M1/V, 8/15/96 Center, all persons who have been transferred to other facilities but who remain the defendants’ responsibility and all persons at risk of being placed in the Center. Also, in 1995, the Court addressed the issue of care, services, abuse and neglect by entering a remedial Order in United State v. State of Tennessee, Case No. 92-2062-M1-A, as a final order in this case. Thus, the only remaining issue is the First Amendment rights of the residents. In order to avoid costly litigation on that issue, the parties reached an agreement which would secure the rights of the class members to exercise their freedom to associate and assemble with others of their choice. The Proposed Settlement 1. The plaintiffs and defendants acknowledge that past violations of the residents' First Amendment rights did occur. Pilaintiff/residents were prevented from communicating, associating and assembling with persons of their choice. 2 According to the proposed settlement, the Defendants will protect the rights of the Plaintiff/residents by: (a) developing a policy to enable residents to communicate, associate, and. assemble with others of their choice both publicly and privately; (b) telling the staff of the Arlington Developmental Center and agencies who work with the Center about the policy so that the staff will not discourage residents from exercising their fight to freely communicate, associate and assemble with others of their choice; 37a Order - No. 92-2213 M1/V, 8/15/96 (c) establishing a process to discipline staff members who violate the right of residents to freely communicate, associate and assemble with others; and (d) allowing advocates, religious organizations, and community organizations reasonable opportunity to communicate with residents and allowing residents the opportunity to participate in community activities. How the Settlement Affects Your Rights The settlement is a complete settlement of all class members’ claims regarding the Defendants’ interference with Plaintiff/residents' First Amendment rights to freely communicate, associate and assemble with persons of their choice. How to Comment on the Proposed Settlement If you do not want to object to this proposed settlement, then it is not necessary for you to take any action. If, however, you want to comment on the proposed settlement or object to it as not being far, reasonable, or adequate, then you or your attorney on your behalf may file no more than five (5) pages of typewritten objections on 8 %" by 11" paper, in no smaller than a ten (10) point font, by 5:00 p.m. on Friday, September 20, 1996. Comments and objections must refer to this case by docket number and be submitted to the Court at this address: Office of the Clerk United States District Court for the Western District of Tennessee 38a Order - No. 92-2213 M1/V, 8/15/96 167 N. Main Street Room 242 Memphis, Tennessee 38103 If you file comments or objections, then, at the same time, you must also send copies of the filed comments or objections to one of the attorneys for the plaintiffs, one of the attorneys for the defendants, and one of the attorneys for the intervenor. The attorneys’ names and addresses are set out below. y Obtain More Inf ; You can get a complete copy of the proposed settlement by writing to plaintiffs' attorneys, at one of the addresses listed below. You may also examine the court papers filed in this case, which can be viewed at the Office of the Clerk for the United States District Court, at the above address by asking to see the file in People First of Tennessee y. The Arlington Developmental Center, Case No. 92-2213 MI/V. If you have any questions or would like more information about this notice, you may contact your own lawyer or the lawyers for the plaintiffs. - Hearing A hearing on the proposed settlement will be held at 2:00 p.m. on Friday, September 27, 1996, in Courtroom 4 on the 9th Floor of the Federal Building, Memphis, Tennessee. Any class member or family member, guardian, or next friend of a class member who wishes to attend and/or participate in the hearing must notify the Court by 5:00 p.m. on Friday, 39a Order - No. 92-2213 M1/V, 8/15/96 September 20, 1996, by filing with the Clerk of Court at the above address a typewritten document no more than one page in length (on 8 4" by 11” paper) that refers to this case by docket number. Attorneys for Plaintiffs: Edward G. Connette Jack Derryberry Lesesne & Connette 1720 Parkway Towers 1001 Elizabeth Ave., Suite 1D 404 James Robertson Charlotte, NC 28204 Nashville, TN 37219 (704) 372-5700 (625) 244-0554 Earle Schwartz Frank J. Laski WARING COX Judith A. Gran 1300 Morgan Keegan Tower Public Interest Law 50 N. Front St. Center of Philadelphia Memphis, TN 38103-1190 125 South Ninth Street (901) 543-8000 Suite 700 Philadelphia, PA 19107 (215) 627-7100 Attorney for Defendants: Diane Dycus, Senior Counsel General Civil Division Office of Attorney General 404 James Robertson Parkway Nashville, TN 37243-0499 (615) 741-6420 Attorneys for Intervenor: Order - No. 92-2213 M1/V, 8/15/96 William F. Sherman Kaye C. Thurmond, Esq. 504 Pyramid Place Neely, Green, Gargarson Little Rock, AR 72201 & Brooks (501) 372-3148 615 Union Avenue, 9" Floor Memphis, TN 38103 (901) 523-2500 4la APPENDIX G IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ‘TENNESSEE WESTERN DIVISION No. 92-2213 M1/V FILED March 21, 1996 CERTIFIED TRUE COPY ROBERT R. DI TROLIO U.S. DISTRICT COURT WESTERN DISTRICT OF TENNESSEE /s/ BY: DEPUTY CLERK PEOPLE FIRST OF TENNESSEE; et. al., Plaintiffs, v. ARLINGTON DEVELOPMENTAL CENTER et. al., ) ) ) ) ) ) ) Defendants. ) / ORDER On June 9, 1995, intervenor Parent-Guardian 42a Opinion and Order - No. 92-2213 M1/V, 3/21/96 Association of Arlington Developmental Center filed a motion for leave to file a complaint and change intervenor's status, Intervenor seeks leave "to modify its status to independent" and file a complaint against defendants. Intervenor's proposed complaint states that it is "asserting a claim that those ADC residents who will be moved from ADC to community settings may suffer injury and deprivation of their rights in the new community settings,” and request that the Court: 1) Retain jurisdiction of the action as long as necessary to assure tha: former ADC residents who are moved into community living arrangements are protected from harm," 2) "Issue such preliminary and permanent injunction orders as may be necessary to protect ADC residents (past - present - future) from harm, wherever they should reside, and from violation of their constitutional rights," and 3) “Assure that all community living arrangements for former ADC residents comply with constitutional and all applicable statutory standards.” Plaintiffs filed a response on July 12, 1995, and defendants filed a response on July 14, 1995. There is no such thing as an "independent" intervenor. Therefore, intervenor's motion to change status is hereby DENIED. Intervenor's motion also seeks leave to file a cross- claim against defendants. The facts of this case indicate that leave should not be granted. The Parent-Guardian Association of Arlington Developmental Center was permitted to intervene in the instant case by order of January 26, 1993. Thereafter, the intervenor filed an answer to plaintiffs' complaint and did not attempt to file a cross-claim against defendants until June 9, 1993. Thus, the current attempt is untimely. Furthermore, the relief that intervenor seeks in its proposed cross-claim is 43a Opinion and Order - No. 92-2213 M1/V, 3/21/96 no longer available in this case and can be addressed only in United State, v. Tennessee, No. 92-2062 MI/A (W.D. Tenn.) (McCalla, J.). The order entered in the instant case on September 27, 1995, leaves only plaintiff's claims for violation of the First Amendment as incorporated by the Fourteenth Amendment. The substantive due process and statutory rights of the residents at Arlington Developmental Center are being dealt with exclusively in United States v. Tennessee -- in which all the parties to the instant case are also parties. Thus, allowing intervenor to file its proposed cross-claim would run contrary to the Court's efforts in previous orders in the two cases to avoid duplication of issues and potentially inconsistent results. Accordingly, intervenor’s motion to file a complaint is hereby DENIED. SO ORDERED this 21 day of March 1996. /s/ JON P. McCALLA UNITED STATES DISTRICT JUDGE APPENDIX H IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION No. 92-2213 M1/V FILED September 26, 1995 ROBERT R. DI TROLIO CLERK, U.S. DIST. CT. W.D. OF TN, MEMPHIS ORDER GRANTING CLASS CERTIFICATION Before the Court is plaintiffs' motion for class certification, renewed on June 12, 1995.' For those reasons On February 11, 1992, the plaintiffs moved for class certification. The Parent-Guardian Association of the Arlington Developmental Center (PGA) filed a motion for leave to intervene for the purpose of opposing class certification, which leave was granted. A brief evidentiary hearing was held on the Motion for class certification on April 28, 1993, after which the Court allowed the parties to supplement the record until July 1, 1993. U.S.A. vy. State of Tennessee, Civil Actiom No. 92-2062 On January 21, 1992, the United States of America filed suit against the State.of Tennessee and named defendants, including the Superintendent of Arlington Developmental Center, pursuant to the 45a Order - No. 92-2213-M1/V, 9/27/95 Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997, et seq. Trial began in that case, Uni v.State of Tennessee, et al.. No. 92-2062 MI/A, on August 30, 1993 (while the motion for class certification in the present case was pending), and the Court issued a comprehensive opinion in open court on November 22, 1993, followed by written Supplemental Findings of Fact on February 17, 1994. The Court found pervasive violations of Arlington residents’ rights under the Fourteenth Amendment in almost every aspect of care and services. In its ruling on November 22, 1993, the Court issued a preliminary injunction to deal with the immediate threat to human life at Arlington. As to permanent injunctive relief, the Court afforded the State of Tennessee an opportunity to comment upon the proposed injunctive order submitted by the United States and directed the Commissioner of the Tennessee Department of Mental Health/Mental Retardation to submit a plan to remedy the violations of constitutional rights and educational opportunities. Upon motion by the United States, filed February 9, 1994, and by Order docketed April 5, 1994, the Court appointed Dr. Linda O'Neall, an expert with extensive experience in mental retardation, program evaluation, and systemic reform and restructuring of mental retardation, services, to serve as Expert Facilitator to assist the parties in to develop an acceptable plan for remedying the conditions at Arlington, or, if no agreement could be reached, to develop a remedial plan for consideration by the Court. In August, 1994, the United States and the State of Tennessee reached agreement on the terms of a Remedial Order to correct the violations of Arlington residents’ constitutional rights. The agreement was entered as a stipulated Remedial Order, and filed on September 2, 1994. The order provides for extensive improvements in care and services at Arlington and obligates the State of Tennessee to reduce the - population. of Arlington to no more than 200 persons, subject to the State's receiving approval from the Federal Health Care Financing 46a Order - No. 92-2213-M1/V, 9/27/95 stated below, the motion is GRANTED.’ Statement of the Case This case was filed on December 12, 1991, by People First of Tennessee, a statewide advocacy organization governed by people with disabilities, on behalf of its Administration to use federal funds for community placement of Arlington residents. The Instant Case: People First, et al. v. Arlington Developmental Center, et al. In the instant case, in February 1994, plaintiffs filed a Motion for Partial Summary Judgment asking the Court to enter its findings on liability as findings in this case. A hearing was held on this motion on April 29, 1994. The Court did not decide plaintiffs’ outstanding motions for class certification, partial summary judgment, or other motions. Rather, on September 30, 1994, the Court entered an Order Staying Proceedings and denying all outstanding motions without prejudice. The Court instructed the parties to review the Remedial Order and advise the Court how they wished to proceed in this case. At a status conference on March 31, 1995, the plaintiffs informed the Court that they wished to refile the motions and proceed to trial. 2 The motion for class certification was filed on June 12, 1995, along with a motion to eitter the court's findings and order on liability in ULS.A. v. State of Tenn... et al., as findings and orders in this case, a motion for consolidation, and a motion for further relief. These motions will be addressed in a separate order(s). 47a Order - No. 92-2213-M1/V, 9/27/95 members, and by five residents of Arlington Developmental Center ("Arlington") to redress unlawful conditions at Arlington, on behalf of themselves and all others similarly situated. Two other individual residents of Arlington were added as named plaintiffs in subsequent motions for leave to amend the complaint. Plaintiffs asserted inat defendants denied them minimally adequate living arrangements, habilitation and services at Arlington, in violation of their rights under the First. and Fourteenth Amendments, and certain federal statutes. The case was filed in the Middle District of Tennessee and subsequently transferred to this Court on the defendants’ motion for change of venue. Defendants also filed a motion to dismiss the complaint which was denied as to plaintiffs' Due Process and First Amendment claims.? More recently, defendants have filed a motion to dismiss the complaint. With regard to the motion for class certification, plaintiffs have proposed the following class definition: All persons who on or after December 12, 1989, have resided, or are residing or will reside at the Arlington Developmental Center; all persons who have been transferred to Arlington from other settings such as * The court dismissed plaintiffs’ claims uncer Title XIX of the Social Security Act, Sections 100 and 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, - certain First Amendment claims set out in Count IV(b), (d), and (e) of plaintiffs’ Amended Complaint, and claims under the Equal - Protection Clause. (See Order on Motion to Dismiss, Dec. 22, 1992.) 48a Order - No. 92-2213-M1/V, 9/27/95 intermediate care facilities or skilled nursing facilities but remain defendants' responsibility; and all persons at risk of being placed at Arlington Developmental Center.* Defendants contend, inter alia, that the proposed class definition is too expansive in that it includes former residents and those "at risk" of being placed at ADC. Moreover, .they argue that because a number of parents and/or legal guardians oppose their children's or wards’ participation in this law suit, there are an insufficient number of residents to meet the numerosity requirement of a class action suit. Rule 23(a) of the Federal Rules of Civil Procedure provides: Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the Class. * Included within the proposed class are three categories: those who have resided at Arlington at any time from December 12, 1989 to present; those who are residing at Arlington currently; and all persons at risk of being placed at Arlington in the future. 49a Order - No. 92-2213-M1/V, 9/27/95 The Court will address each of these prerequisites below.° Numerosity Rule 23(a) (1) requires that the class of similarly Situated individuals be so numerous that joinder of all members would be impracticable. Numerosity, however, is judged on the particular facts and circumstances of this case, and not on the basis of mere numbers, Senter v. General Motors Corporation, 532 F.2d 511, 523 n.24 (6th Cir. » 1976), cert. denied, 429 U.S. 870 (1976) (citing Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970).. Further, plaintiffs need not show the precise number of class members. 696 F.2d 925, 930 (11th Cir. 1983). Central to the resolution of the issues in this case is the contention by the defendants and intervenor that the majority of the parents and guardians of Arlington residents oppose the goals of this lawsuit and thus there is an insufficient number of_residents to form a class for this suit. In support of this contention, the Parent Guardian Association ("PGA") has submitted for the Court's consideration the responses to two " Commonality and typicality will be discussed even though the Court has already indicated that typicality and commonality have been adequately addressed by plaintiffs, as indicated in a telephonic conference on May 3, 1995, regarding plaintiffs' motion to compel discovery, wherein the Court sustained defendants’ objections to plaintiffs' discovery requests designed to establish commonality and typicality. 50a Order - No. 92-2213-M1/V, 9/27/95 questionnaires previously sent by the PGA to parents, relatives and guardians of Arlington residents in January and April 1992, indicating disagreement with this suit; and has provided the Court with declarations from parents and guardians stating their opposition to plaintiffs’ claims for class certification as well as to the request ot People First of — Tennessee to serve as a class representative. Although these submittals from the parents and/or guardians do indicate that a number of guardians and conservators object to their wards' participation in the lawsuit for those reasons discussed infra, these objections do not defeat the numerosity requirement of class certification. At present, the population of Arlington Developmental Center is approximately 385 persons. During the time of the first class certification hearing and at the time of trial in United States of America v. State of Tennessee, et al., Civil Action No. 922062, the population was approximately 423 persons, thirty of them minors. The attrition is because some Arlington residents have died during the last two years, and some have left the institution for other settings. All but approximately 150 of the residents have guardians, conservators or parents who hold various rights and powers of the resident. The guardianship orders for many residents are not uniform. Some have limited guardians and others have plenary guardians. Examples of limited guardianship orders would be those original probate court orders appointing limited guardians for plaintiffs Watson and Runions, dated April 8, 1986 and November 16, 1987 respectively. Appendix A. Sla Order - No. 92-2213-M1/V, 9/27/95 These give the limited guardians the responsibility to consent or make decisions relative to medical and mental examinations, including administration of psychotropic medication; participation in studies supervised by qualified individuals; and participation in activities which are reasonable and necessary for the habilitation of the resident. The limited guardianship order for plaintiff Wilson is identical to those of Watson and Runions, except that it does not contain a provision for consent for participation in studies. Appendix A, p. 6-8. Before this lawsuit was filed, guardianship orders typically assigned the same powers and duties to the limited guardian .as were assigned to the guardians of Runions and Watson.° See © On March 16, 1992, Mona Reeves-Winfrey, Superintendent of ADC petitioned the Probate Court of Shelby County to substitute Comcare, Inc. for Guardianship and Trust Corporation (GTC) as guardian for Runions and Watson. Comcare, Inc. has a contract with the State of Tennessee and ADC "to provide guardianship services to Arlington residents who require guardians but who have no family members available to act as guardian." Order of March 16, 1992, In re: Herman Walter Runions, Probate Ct. No. 8-5506 (Appendix B, p. 1). In addition to substituting Comcare for GTC, the power "to protect the respondent's personal well-being and legal interests" was also added to the orders substituting guardianship. Appendix B, p. 2. When this lawsuit was filed, GTC expressed no position on Runions' and Watson's Participation in this suit. (But see Declaration of Comcare, Inc. at 4, filed July 14, 1995.) As of April 28, 1993, 220 adult residents at Arlington had court- appointed guardians or conservators; 176 adult residents at 52a Order - No. 92-2213-M1/V, 9/27/95 Appendices C & D. That language with relatively minor Variations is contained in the great majority of Guardianship Orders for ADC residents. See Appendixes C & D. Arlington did not nave court-appointed guardians or conservators; and 30 Arlington tesidents were minors. Affidavit of Dianna Taylor (filed May 12, 1993). Of the 220 adult residents at Arlington who hac court-appoinied guardians or conservators, approximately (some documents were incomplete) 178 had individuals appointed aS guardians or conservators, and 42 had a contract corporate guardian or cCorservator appointed (either Comcare, Inc. or Guardianship and Trust Corporation of Tennessee). (2-Volume submission by State of Tennessee Relating to ADC Guardianship Orders, filed under seal May 12, 1993.) On July 24, 1995, updated lists, reflecting changes in the ‘resident population since the May 12, 1993 submittal, and copies of additional guardianship orders Were filed. (Exhibit 30, Hearing July 24, 1995.) Exhibit 30 does not contain copies of all orders to which reference s made in the exhibit. (See Exhibit 30, Hearing, July 24, 1995.) At least one (1) pre-1993 Order Appointing Limited Guardiat was included in the list and exhibit (Exhibit 30 was to contain ony post April 28, 1993 orders). (See Exhibit 30, In the Matter of Annie B. /Hardeman County Chancery No. 8393 (Dec. 20, 1989).) Twenty (20) conservatorship or guardianship orders are contained in Exhibit 30 (Hearing, July 24, 1995). One hundred thirty-seven (137) declarations have been filed by intervenor in Opposition to class certification. (See Intervenors' Notice of Filing Declarations (104 declarations), filed June 9, 1995; Intervenor's Notite of Filing Declarations (second submission) (29 declarations) filej] July 13, 1995; Intervenor's Notice of Filing Declarations -(third submission) (4 declarations) filed July 21, 1995.) 53a Order - No. 92-2213-M1/V, 9/27/95 After the lawsuit was filed, the format Changed and an additional power -- "[t]o protect [the resident's] personal well- being and legal interests" -- was added. Appendix B. Although plaintiffs seek a finding that those guardianship orders which add the power "to protect the person's well- being and legal interests" are an obvious effort by defendants to prevent ADC residents from participating in this suit without the guardian's permission, the Court need not reach this point to make a ruling on the motion for Class certification.’ Two of the individual named plaintiffs, Carl Beard and Stevelyn Tucker, have limited or natural guardians who have consented to their participation as plaintiffs in this case. Beard brings this action by a next friend with the consent of his limited guardian. Tucker brings this action by her parents and natural guardians. A third plaintiff, Keith Collins, is an adult without a guardian. He brings this action by his mother as his next friend. It is clear from the applicable Tennessee guardianship statutory provisions and the guardianship orders entered that the guardians of most Arlington residents have only limited powers. A new Tennessee conservatorship statute became effective on January 1, 1993, T.C.A. § 34 chs. 11-13: most Arlington residents' guardians were appointed under the previous statute, T.C.A. § 34-1-101, et seq. Under both Statutes, all powers tha: have not specifically been removed This evidence may have some bearing on the issue of whether defendants violated plaintiffs' First Amendment rights. The Court, however, is not ruling on that question at this time. 54a Order - No. 92-2213-M1/V, 9/27/95 from the ward and vested in the guardian are retained and may be exercised by the ward. The current law provides that If the court determines a conservator is needed, the court shall enter an order which shali enter an order which shall * * * (2) | Enumerate the powers removed from the respondent and vested in the conservator. To the extent not specifically removed, the respondent retains and shall exercise all powers of a person who has not been found to be a disabled person. T.C.A. §34-13-107.° Moe of the limited guardianship and conservatorship orders of Arlington residents contain provisions purporting to deprive wards of the right to associate with others, to confer with counsel of their choice, or to participate in litigation through a next friend or class representative. Thus, Arlington residents, with limited guardianship and conservatorship orders retain the right to do anything not specifically deprived * Similarly, the pre-1993 statute provided: Deprivation of respondent's rights -- The court may deprive the respondent of the right to vote, dispose of property, execute instruments, make purchases, enter into contractual relationships, hold a valid Tennessee driver's license, give consent to medical and mental examinations and treatment, or do such other act of legal significance the court deems necessary or advisablc. T.C.A. 34-4-111, repealed by Act of 1992, ch. 794, § 50. 55a Order - No. 92-2213-M1/V, 9/27/95 of them by the limited guardianship orders.” Further, it is settled law in Tennessee that the rights of minors and other persons under legal disability may not be waived by a natural or legal guardian. "The general rule is that a guardian may not waive the rights of an infant or an incompetent." Childress vy. Madison County, 777 S.W.2d. 1, 6 (Tenn. Ct. App., 1989) (citing 39 Am. Jur. 2d Guardian & Ward § 102 (1968); 42 Am. Jur. 2d Infants § 152 (1969). Indeed, legal authority supports the proposition that minors and other persons under a legal disability retain the rights of other citizens and that parents and guardians lack the power to waive the fundamental rights of their children and wards. Thus, a minor or ward has standing to sue to enjoin violatious of his or her constitutional rights despite the parent's or guardian's consent to the practices or conditions being challenged. See Milonas v. Williams, 691 F.2d 931, 943 (10th Cir. 1982), cert. denied, 460 U.S. 1069 (1983) (parent cannot authorize the state to limit a child's liberty without showing good cause); see also Doe by Doe v. Austin. ” It is also clear that under Tennessee law that, except as narrowly limited by orders of guardianship, Arlington resicents retain their other basic civil rights and liberties. For example, T.C.A. 33-3-101 provides that, "[nJo person shall be deprived of his [or her] liberty on the grounds that ie [or she] is, or is supposed to be, mentally ill, mentally retarded, or in need of mental treatment, except in accordance with the provisions of this title." At Part II of Title 33 Tennessee adopted, as a matter of public policy, a declaration of special rights of the mentally retarded which at Article | provides that a "mentally retarded person has the same basic rights as other citizens of the same country and same age." T.C.A. 33-5-201. 56a Order - No. 92-2213-M1/V, 9/27/95 848 F.2d 1386, 1392 (6th Cir.), cert. denied, 488 U.S. 967 (1988) (the commitment of mentally retarded adults upon application by a parent or guardian is to be considered involuntary); Thomas S. by Brooks v. Morrow, 601 F.Supp. 1055 (W.D.N.C. 1984), aff'd, 781 F.2d 367 (4th Cir. 1986), cert. denied sub. nom. Kirk v. Thomas S. by Brooks, 476 U.S. 1124 (1986) (young man with retardation whose court- appointed guardian had consented to his admission to a state institution had standing to sue the Secretary of the North Carolina Department of Human Resources and his guardian for violating his right to minimally adequate habilitation and unnecessarily restraining his liberty). As for the Arlington residents whose guardians have the authority “to protect their well-being and legal interest," even if this clause is interpreted to authorize the guardian to bring civil litigation on behalf of the ward, such authority cannot be exclusive. Bonnie S. v. Altman, civ. No. 87-3709; slip. op. at 5 (D.N.J. April 19, 1988) (quoting S. BRAKEL, ET AL., THE MENTALLY DISABLED AND THE LAW 437 (3d ed. 1985) ("[mJodern authorities generally regard the requirement that a guardian sue or be sued for the incompetent person as a protection of the interests of the incompetent person rather than as a limitation on ‘his or her Capacity to institute suit" (emphasis added by the court)). (Decision is attached to Plaintiffs' Proposed Findings of Fact and Conclusions of Law dated July 4, 1993, as Appendix C). To hold that a person confined to an institution must obtain the consent of his or her appointed guardian to sue for violations of constitutional rights would render those rights meaningless. Altman at 1. In a lawsuit in which plaintiffs challenge conditions to which their guardians have acceded S7a Order - No. 92-2213-M1/V, 9/27/95 is unlikely to be forthcoming." Id. at 5 (citations omitted). Given the complexity of the housing, habititation and service issues experienced by members of the proposed Class, given the application of a common legal standard of review to all putative class members, plaintiffs satisfy the requirement of numerosity under Rule 23(a) (1) in that joinder of all members would be impracticable. Commonality and Typicality The second and third requirements of Rule 23(a) are that there be questions of law and fact common to the class and that the claims of the named plaintiffs be typical of those in the class. Since "the commonality and typicality requirements of Rule 23(a) tend to merge ...,” Falcon, 457 U.S. 147, 157 n.13 (1982), these will be discussed together. Rule 23(a) (2) requires that there be "questions of law and fact common to the class." Similarly, the requirement of Rule 23(a) (3) requires that for typicality to exist there must be a common element of fact or law. Senter, 532 F.2d at 523. Plaintiffs’ claims are typical of those of the class as long as "the claims or defenses of the Class and the class representatives arise from the same event or pattern or practice and are based on the same legal theory." i ise Li 741 F.2d 1332, 1337 (11th Cir. 1984), cert. denied 470 U.S. 1004 (1985); see also Penn v. San_Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir. 58a Order - No. 92-2213-M1/V, 9/27/95 = 1975). eee. sierra The defendants apparently do not challenge the ‘commonality of the proposed class. However, the intervenor contends that the commonality requirement is not met because of the diverse circumstances and unique characteristics of each Arlington resident. Since commonality refers to the ____________defendants' conduct and is not defeated by the presence of individual differences among class members, intervenor's argument is without merit. See Adamson vy. Bowen, 855 F.2d 668, 676 (10th Cir.- 1988); Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985); and see Baby Neal v. Casey, 43 F.3d 48, 56-57 (3d Cir. 1994) (commonality requirement can be met even though class members have individual circumstances, relying on Califano v. Yamasaki, 442.U.S. 682, 99 S.Ct. 2545, 61 L. Ed. 2d 176 (1979).) While each individual class member in the instant case, requires individualized services, class members as a whole need similar types of habilitation and services, such as adequate physical therapy, proper feeding techniques, habilitation plans and behavioral programming. The common factual inquiry with respect to all class members is whether defendants are providing constitutionally adequate habilitation as well as whether defendants are prohibiting residents from associating with certain individuals in. violation of their First Amendment rights. Furthermore, based on the record before the Court, the claims of the proposed plaintiff class arises from the same patterns and practices and are based on the same legal theory. Adequacy of Representation Order - No. 92-2213-M1/V, 9/27/95 Rule 23(a) (4) requires the representative parties to be able to fairly and adequately protect the interests of the class as a whole. This prerequisite contains two requirements: that the named plaintiff themselves have no interests antagonistic to those of the rest of the class, and that plaintiffs’ counsel be qualified, experienced and generally able to conduct the proposed litigation. See Griffin v. Carlin, 755 F.2d 1516, 1533 (11th cir. 1985) (citing ia Hi Express, Inc., 417 F.2d 122, 1125 (Sth Cir. 1969)). As discussed above, the central issue with regard to Class certification appears to be whether the lack of consent by parents and guardians for the Participation of their sons, daughters and wards in the litigation, renders plaintiffs inadequate represetatives of the class. This issue arises from the fact that the great majority of Arlington residents cannot express a choice regarding whether to participate in this lawsuit or a choice regarding the relief that should be entered. This, for a substantial number of the residents, is so because of their particular disabilities along with lack of experience, training and/or assistance in communicating. '© People First has Standing to bring this action on behalf of its mbers who are members of the proposed class, as well as to defendants' alleged refusal to allow People First to communicate with its members and to allow members to attend People First 60a Order - No. 92-2213-M1/V, 9/27/95 that the individual named plaintiffs have the same remedial objective(s) as People First and further do not appear to object to the participation of plaintiffs Carl Beard, Keith Collins and Stevelyn Tucker in this lawsuit through their next friends and parents. Thus, defendants and intervenor appear to concede that at least three individual plaintiffs in this action are proper class representatives under Rule 23(a) (4). meetings, see Simon v. Eastern Kentucky Welfare Rights’ Organization, 426 U.S. 26 (1976) (to establish standing as representative organization, proposed representative must show that members have been injured in fact and that members could have brought suit in their own right); also see Warth v. Seldin, 422 U.S. 490 (1975) . At least nine members of the proposed class, including individual plaintiffs Sandra Howard and Clarence Wilson, are members of People First of Tennessee who have formal membership applications on file with the organization. At least nine additional members of the proposed class have attended People First meetings. The testimony at the hearing showed that People First has been interested in problems at Arlington since March 1991, when the Department of Justice issued its Letter of Finding to Governor McWherter. After the Letter of Finding was issued, People First convened a special board meeting to discuss the findings. The ‘officers of People First also met with the Commissioner of Mental Health/Mental Retardation and left the meeting convinced that the state would not resolve the problems voluntarily. At the March 1991 special People First board meeting, after discussion of the findings, a motion was made to ask attorneys to come to the next regular board meeting, in June 1991, to discuss litigation. 6la Order - No. 92-2213-M1/V, 9/27/95 The defendants and intervenor, however, contend that plaintiffs cannot represent the majority of Arlington residents, and that four of the seven named plaintiffs (Sandra Howard, Herman Runions, Harvey Watson, and Clarence Wilson) are precluded from serving as class representatives, because they have limited guardians who have not consented to their participation as plaintiffs in this action. As discussed more fully above, the parents and guardians lack the authority to waive the fundamental rights of their children and wards; moreover, any authority by the parents or guardians to bring civil litigation on behalf of their ward is not exclusive. Additionally, a court may not refuse to certify a class merely because some class members may prefer to leave a potential violation of their rights unremedied. Martino vy. McDonald's System, Inc, 81 F.R.D. 81, 85 (N.D. Ill. 1979), (citing 3B MOORE'S FEDERAL PRACTICE, ¢ 23.06-2, 23- 197 (1978)); ivi Commission, 435 F.Supp. 546, 559 (E.D.N.Y. 1977), appeal dismissed, 566 F.2d 846 (2d Cir. 1977). The holding of the Court of Appeals in Halderman y. Pennhurst, 612 F.2d 84, 109-111 (3d Cir. 1979) is squarely on point in this regard. Pennhurst was a class action suit brought by the Pennsylvania Association for Retarded Citizens and named plaintiffs who were residents of the institution or at risk of placement there. The state defendants challenged certification of the class as proposed by plaintiffs, arguing that a "conflict" existed between the plaintiff organization, which supported community placement, and the vast majority of the parents and guardians, who wished the 62a Order - No. 92-2213-M1/V, 9/27/95 institution to remain open. The Court of Appeals rejected the defendants' argument and held that the Pennsylvania - Association for Retarded citizens, the named plaintiffs and next friends were proper class representatives because they had alleged and proved violations of Pennhurst residents’ constitutional rights that affected all of the residents, not simply those who wished a transfer from Pennhurst. Where the issue was the defendants’ liability, disagreement over relief had no bearing on class certification: At the liability stage, therefore, important questions of law were common to all members of the class. Thus, regardless of any subsequent disagreement as to the appropriate relief, we can think of no persuasive reason to have fractionated the class at that early juncture. 612 F.2d at 109 (emphasis added). Additionally, courts have found individualized decisions at the remedial stage fully compatible with class certification, see Pennhurst, 612 F.2d 84, 110-111 (3d Cir. 1979), rev'd on other grounds, 451 U.S. 1 (1981). In the instant case, ample protection exists for the interest of any class member who opposes the relief sought by plaintiffs. It is clear that the interest of any class member who desires to maintain the status quo will be adequately represented by the intervenor or, perhaps, by the defendants. Plaintiffs need not show that the whole or a majority of the class considers his [or her] representation adequate." Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968). 63a Pena aameretnlendebaclsernescie en Hee DNA oe Oe. ET an a OS wr ee ey Order - No. 92-2213-M1/V, 9/27/95 In Richard C. v. Snider, 1993 WL 757634 (W.D. Pa.), the court was faced with an objection by an intervenor parent association, similar to that voiced here against People First, to the class representative status of the Pennsylvania Association for Retarded citizens (PARC) and the Pennsylvania Protection & Advocacy Association. The intervenor claimed that the organizations were not proper class representatives because "they follow a philosophy that institutions such as Western Center are unnecessary and obsolete, are never appropriate for the placement of mentally retarded persons and should be closed." Id. at *5. In response, the court found that Although opposing intervenors overstate the position of these organizational plaintiffs, it is true that they advocate the community placement and support, where it is appropriate, of persons residing in Western Center and similar institutions. Their position, however, is not antagonistic to the interests of the class members, notwithstanding the disagreement of the opposing intervenors. Id. Based on the foregoing, the Court finds that the named plaintiffs, together with People First of Tennessee, are appropriate representatives in this case. In making such a determination, the court is mindful that to the extent that the views or goals of the parents and guardians are in conflict with those of the named plaintiffs and People First of Tennessee, those views or goals appear to be adequately represented by the Parent Guardian Association which has 64a Order - No. 92-2213-M1/V, 9/27/95 been allowed to intervene in this action. By allowing intervention by the PGA and by certifying the class, the Court is assuring all affected parties the opportunity to be heard on the merits of plaintiffs’ claims. , Competency Of Counsel There appears to be no dispute as to the competency of plaintiffs‘ counsel to represent the class. They are experienced in class action litigation, appear to have extensive knowledge of community service systems and extensive experience enforcing the rights of former institutional residents after they move to the ‘community. A brief outline of each counsel's experience is set out below. Jack Derryberry has handled class action litigation in antitrust actions, employment discrimination actions, and actions under the Equal Protection Clause. He has an extensive practice in the educational rights of persons with disabilities, and also has extensively represented persons with disabilities in civil commitment cases. He serves as a Land Commissioner for the United States District Court for the Middle District of Tennessee. Edward G. ("Woody") Connette graduated from Davidson College in 1974 and from University of North Carolina Law School in 1977. He has been engaged in the practice of law since graduation from law school. Since 1987, Connette has been a partner in Lesesne & Connette, where his primary emphasis is general civil trial work. He has served as lead counsel or co-counsel in numerous class actions. 65a Order - No. 92-2213-M1/V, 9/27/95 Earle J. Schwarz graduated from Brown University in 1975 and received his J.D. from Vanderbilt University in 1980, where he served as Authorities Editor for the Vanderbilt Journal of Transnational Law. He is a diplomate of the Court Practice Institute, a recipient of the Pro Bono Panel for Senior Citizens Service Award in 1984, and member of the Panel of Arbitrators of the American Arbitration Association. Mr. Schwarz is a partner in the Waring Cox law firm in Memphis, Tennessee. He has served as counsel in federal and state class action lawsuits. Judith Gran and Frank Laski of the Public Interest Law Center of Philadelphia are class counsel for many of institutional residents and former residents who now live in the community. Ms. Gran graduated from Wellesley College, the University of Chicago, and Temple University School of Law, where she served on the Temple Law Quarterly. Mr. Laski graduated from the University of Massachusetts and Harvard University School of Law. He is President of TASH (the Association for Persons with Severe Handicaps), a leading professional organization in the field of services for persons with severe disabilities. In addition to meeting the requirements of Rule 23(a), the Court concludes that the requirements of Rule 23(b) (2) have also been satisfied. For the reasons set out above, it is hereby ORDERED that a class of plaintiffs is certified to include: all persons who on or after December 12, 1989, have resided, or are residing at the Arlington Developmental Center; all persons who have been transferred from Arlington Developmental Center to other settings such as intermediate care facilities or skilled 66a Order - No. 92-2213-M1/V, 9/27/95 nursing facilities but remain defendants’ responsibility; and all persons at risk of being placed at Arlington Developmental Center. Entered this 26 day of September 1995. /s/ JON PHiPPS McCALLA UNITED STATES DISTRICT JUDGE 67a APPENDIX I IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION No. 92-2213 M1/V FILED September 27, 1995 ROBERT R. DI TROLIO CLERK, U.S. DIST. CT. W.D. OF TN, MEMPHIS ORDER GRANTING MOTION TO ENTER FINDINGS FROM 92-2062 IN THIS CASE AND GRANTING MOTION TO INTERVENE IN CIVIL ACTION NO. 92-2062 Before the Court is plaintiffs' Motion for Entry of The Court's Findings And Orders on Liability in United States of i aL. civil Action No. 92- 2062, as Findings of Fact in This Case, and Motion to Consolidated, filed June 12, 1995. More specifically , plaintiffs assert that defendants should be prevented from litigating the issue of defendants’ liability for violation of plaintiffs’ substantive due process rights' because that issue ' ‘The-parties both agree,-and the.Court has previously noted, that the substantive due process claim in the present matter is identical 68a Order - No. 92-2213-M1/V, 9/27/95 has already been decided by the Court in U.S.A. v. State of Tennessee, civil Action No. 92-2062. Plaintiffs are not seeking issue preclusion on their First Amendment claim since that claim was not litigated in Civil Action No. 92-2062; but they argue that for purposes of judicial economy both cases should be consolidated. For those reasons stated below, the Motion to Enter Findings is GRANTED and the Motion for Consolidation will be treated as a Motion to Intervene, which is GRANTED. The doctrine of issue preclusion, also known as collateral estoppel, is used to prevent unnecessary relitigation of issues that previously have been decided. Generally, issue preclusion is appropriate where an issue in a prior action was raised, litigated, and actually determined and where the estopped party (defendants) had a full and fair opportunity to be heard on this issue in the prior action. See NLRB v. Master Slack Corp., 773 F.2d 77, 81-81 (6th Cir. 1985). The doctrine, in federal cases, is no longer limited by the need for mutuality of the parties. Allen v. McCurry, 449 U.S. 90, 94- 95 (1980) (citing Blinder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971)). Thus, a plaintiff who was not a party to a prior federal suit can, under many circumstances, use collateral estoppel "offensively" in a subsequent case against the party who lost in the earlier suit. See Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). The trial in U.S.A. vy, State of Tennessee, et al. began to the substantive due process claim litigated in U.S.A. v. State of IN. 69a Order - No. 92-2213-M1/V, 9/27/95 on August 30, 1993 and ended on October 26, 1993. During the trial the United States presented a total of 17 witnesses, together with a large number of depositions and deposition excerpts. The state of Tennessee began its defense on September 10, 1993, ultimately presenting the live testimony of 20 witnesses plus a large number of depositions. In rebuttal the United States presented the testimony of three witnesses and the video deposition of Dr. Susan Hyman. Over 440 exhibits were introduced at trial and considered by the court. Based on the extensive evidence presented in this case, the Court entered detailed findings of fact, assessing credibility of witnesses, resolving conflicts in testimony, and weighing the sufficiency of evidence. Specifically, in oral findings of November 22, 1993 (Addendum docketed February 18, 1994) and Supplemental Findings of Fact filed February 18, 1994, the Court found that conditions 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. All of the defendants named in U.S.A... v, State of Tennessee, et al., are officials of the State of Tennessee who are sued in their official capacity. Named defendants include Don Sundquist, Governor of the State of Tennessee, Marjorie Nelle Cardwell, Commissioner of the Tennessee Department of Mental Health and Mental Retardation, and Max Jackson, Superintendent of Arlington Developmental Center. In the matter currently before the Court, all defendants are named in their official capacity as well. As this Court has previously noted, "When a suit is brought against employees of a state or a county or other political subdivision in their official capacity, the governmental entity with whom they are 70a Order - No. 92-2213-M1/V, 9/27/95 employed is, for all practical purposes, the actual party in the case." (Addendum to Supp. Find. of Fact at 3.) Thus, both cases share a common defendant, the State of Tennessee. A review of the record of U.S.A. v. State of Tennessee, et al. reflects that defendants had a full and fair opportunity to litigate the key issue of whether conditions at Arlington met minimally adequate due process standards prescribed by the Constitution. Additicnally, allowing defendants a second opportunity to litigate the same issues already decided by the Court in U.S.A. v. State of Tennessee, et_a, would be a waste of judicial resources. Furthermore, defendants agree in their motion to dismiss that collateral estoppel or res judicata applies to this case, although they argue that application of either doctrine should result in dismissal of the case. See Motion to Dismiss, filed June 12, 1995.” Thus, defendants are barred by the doctrine of issue preclusion from again litigating their liability under this substantive due process claim.’ Accordingly, the Motion for Entry of the Court's Findings is GRANTED. Since plaintiffs have established that they meet the 2 The motion to dismiss will be addressed by the Court in a separate order of the Court. > In so ruling, the Court, upon reviewing the record, notes that nonmutual offensive collateral estoppel is applicable against the State of Tennessee under the facts in this case and thus the limitation of this doctrine by United States v. Mensoza, 464 U.S. 154 (1984), is not Ls pay See, e. g., tee F. Supp. 1475 (Ds Col 1987). Tla Order - No. 92-2213-M1/V, 9/27/95 conditions for applying the doctrine of issue preclusion, the prior findings of fact, including supplemental findings of fact (Supplemental Findings, docketed February 18, 1994 (docket entry #251); Addendum docketed. February 18, 1994 (docket entry #252)), by the Court in civil Action No. 92-2062 ARE HEREBY ENTERED as findings of fact in this case. Furthermore, the Court having previously found that the Remedial Order, docketed September 2, 1994 (docket entry #338), is the appropriate remedy in this matter for violation of the plaintiffs' due process rights, IT IS HEREBY ORDERED that the Remedial Order, docketed September 2, 1995, IS ENTERED as the final Order in this matter as a remedy for defendants' violation of plaintiffs' Fourteenth Amendment rights. Consolidation Plaintiffs have additionally moved for consolidation of the present case with Civil Action No. 92-2062 pursuant to Federal Rule of Civil Procedure 42(a) which allows a Court to consolidate cases when pending actions involve a common question of law or fact to avoid unnecessary costs or delay. Upon consideration of the motion in this matter, it appears that consolidation is not applicable. See LS.D. et al., 980 F.2d 1514, 1531-32 (5th Cir. 1993). However, it appears that plaintiffs are actually seeking to intervene in Civil Action No. 92-2062, under Federal Rule of Civil Procedure 24. Based on the record before the Court 72a Order - No. 92-2213-M1/V, 9/27/95 and the facts and circumstances in this case,’ it is the opinion of this Court that the interest of plaintiffs in Civil Action No 92-2213, as well as the intervenors', are not adequately represented in Civil Action No. 92-2062 and that those interests would be adversely affected if plaintiffs and intervenors were not allowed to intervene in the case of U.S.A. v. State of Tennessee.° See United States v. Detroit International Bridge Company, 7 F.3d 497 (6th Cir. 1993) (district court's denial of motion to intervene filed approximately 8 month after the settlement agreement was * Since December 11, 1992 plaintiffs and intervenor in this case have been allowed to attend depositions and receive documents in USA vy. State of Tennessee, et al., Civil Action No. 92-2062. Rule 16(b) Scheduling Order (docketed December 11, 1992). Plaintiffs first sought consolidation with Case No. 92-2062 by motion filed February 7, 1994. See also, Order Directing Plaintiffs and Intervenor to Execute Protective Order (filed December 28, 1992) (allowing presence and receipt of discovery materials by People First plaintiffs and intervenor). Intervention in Civil Action No. 92- 2062 will not unduly delay or prejudice the adjudication of the rights of the original parties in that case; moreover, the intervening parties’ interests (both the People First plaintiffs and the Parent- Guardian Association) are not adequately represented by the existing parties. Thus, intervention in case no. 92-2062 is appropriate under both Rule 24(a) and 24(b). See U.S. v. Oregon, 839 F.2d 635, 638 (9th Cir. 1988) (state mental health facility residents entitled, as a matter of right, to intervene in federal government civil rights action against state). ° Since defendants addressed this issue in their Response to the motion to consolidate, the Court has considered the question of prejudice and determines that intervention would best serve the interests of justice. 73a Order - No. 92-2213-M1/V, 9/27/95 dated was an abuse of discretion). Based on the foregoing, the Motion to Enter Findings is GRANTED and the Motion to Consolidate will be treated as a motion to Intervene which is GRANTED. Because First Amendment association rights remain to be resolved in this case, a Rule 16(b) follow-up scheduling conference has been set at 9:00 a.m. on Thursday, October 19, 1995 in this case to establish final discovery and motion deadlines on those issues and to set trial and pretrial dates. Counsel should be prepared to address all issues set out in the Court's Standing Order on Rule 16(b) conferences. Intervenors People First, et al. and the Parent- Guardian Association are also hereby given notice of hearings currently set for 9:30 a.m. on Tuesday. October 10, 1995 and 9:00 a.m. on Friday, October 27, 1995 in Civil Action No. 92-2062. SO ORDERED this 27 day of September 1995. /s/ JON PHIPPS McCALLA UNITED STATES DISTRICT JUDGE 74a APPENDIX J IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION No. 92-2213-M1/Bro FILED September 29, 1994 W.D. OF TN, MEMPHIS PEOPLE FIRST OF TENNESSEE etal., Plaintiffs, ¥- ARLINGTON DEVELOPMENTAL CENTER, et al., Defendants. i i a a ee a ee / ORDER STAYING PROCEEDINGS Currently there are several pending motions before the court, including but not limited to a motion for class certification, for appointment of next of friends, for partial summary judgment and for consolidation with civil action number 92-2062. This court filed a stipulated Remedial Order in Civil action number 92-2062 on September 2, 1994. That Order addresses the agreed remedy for the unconstitutional 75a conditions found to exist at Arlington Developmental Center. The motions pending in the instant matter were filed prior to entry of the Remedial Order in civil action no. 92- 2062. The germane claim in the above-styled matter (substantive due process) is identical to the claim resolved in civil action no. 92-2062 which resulted in the entry of a Remedial Order. Accordingly, proceedings in the instant matter are stayed until January 15, 1994, and all motions are denied without prejudice. During the interim the parties to this case are instructed to review the stipulated Remedial Order and determine whether they wish to pursue any of the previously filed motions, wish to file different motions or wish to have the case dismissed without prejudice. SO ORDERED this 29 day of September, 1994. /s/ JON PHIPPS McCALLA UNITED STATES DISTRICT JUDGE 76a APPENDIX K IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION No. 92-2213-M1/A FILED January 26, 1993 W.D. OF TN, MEMPHIS PEOPLE FIRST OF TENNESSEE ) etal., Plaintiffs, V. a ARLINGTON DEVELOPMENTAL CENTER, et al., Defendants. — a" / ORDER ON MOTION TO DISMISS This cause is before the Court on defendants’ motion to dismiss the complaint in its entirety for failure to state a claim under Federal Rule of Civil Procedure 12(b) (6).' For | The motion.to dismiss included an assertion that Plaintiff People First did not have standing to sue as "next friend" under FRCP T7a Order - No. 92-2213 M1/A, 1/26/93 the reasons stated below, the motion to dismiss is GRANTED in part and DENIED in part. Claims under Title XIX of the Social Security Act, Sections 100 and 504 of the Rehabilitation Act of 1973, Title II of the American With Disabilities Act of 1990, the Equal Protection Clause, and the First Amendment as set out in Count IV(b), (d), & (e) are DISMISSED. The claims remaining are those under the First Amendment as set out in Count IV(a) and (c) and the Due Process Clause. Because this case raises important issues and controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order with respect to certain claims may materially advance the ultimate termination of litigation, the following claims are certified for appeal: (1) Title XIX of the Social Security Act; (2) Sections 100 and 504 of the Rehabilitation Act of 1973; and (3) Title II of the Americans With Disabilities Act of 1990. This action is brought by People First of Tennessee, a state wide advocacy organization governed entirely by people with disabilities, on behalf of its members and by five 17(c) because four of the five originally named individual plaintiffs had legal guardians who apparently are opposed to the suit. Even if four of the named plaintiffs did not have standing, at least one plaintiff would and, therefore, this Court can appropriately consider the other issues raised in the motion to dismiss. The issue of standing will not be addressed in this opinion, but will be subsequently considered. See Order filed Oct. 1, 1992, allowing plaintiffs additional time to request discovery on the issue of standing, if warranted. 78a Order - No. 92-2213 M1/A, 1/26/93 mentally retarded residents of Arlington Developmental Center ("Arlington") to redress allegedly unlawful conditions at Arlington. The plaintiffs assert that they are denied living arrangements (placement in-small,. individualized, family-scale community residential programs) and services because of the severity of their retardation and physical disabilities and that defendants have failed to meet their federal statutory and regulatory obligations with regard to placing, monitoring and discharging plaintiffs to alternative non-institutional services. The original complaint raised claims under five (5) statutory and constitutional provisions.* By motion filed January 31, 1992, defendants moved to dismiss the complaint in its entirety. On January 30, 1992, the plaintiffs filed an amended complaint which added a sixth count: Title II of the Americans With Disabilities Act of 1990 ("ADA"), which became effective on January 26, 1992. Defendants moved to dismiss the ADA claim by motion filed February 11, 1992. For purposes of judicial economy, the defendants' two motions to dismiss will be treated as a single motion to dismiss all six counts of the Amended Complaint. The defendants contend, in the context of this case, that neither Title XIX nor its regulations create rights enforceable under 42 U.S.C. § 1983 against the defendants as providers of service and that the defendants have failed to 2 These claims were: (1) Title XIX of the Social Security Act; (2) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); (3) the Due Process Clause of the Fourteenth Amendment, U.S. Constitution; (4) the Equal Protection Clause of the Fourteenth Amendment, U.S. Constitution;.and (5) the First Amendment to the U.S. Constitution. 79a Order - No. 92-2213 M1/A, 1/26/93 allege any deficiency in the state administrative structure sufficient to state a cause of action. They also argue that the plaintiffs’ claims are not cognizable under the Rehabilitation Act; that due process rights are not implicated in this case: that only First Amendment claims pertaining to named individuals are actionable; that the plaintiffs have failed to state an Equal Protection claim; and that the Eleventh Amendment is a bar to some of the claims.? Each one of these contentions will be dealt with in turn. Under the standard of review for a motion to dismiss for failure to state a claim under Rule 12(b) (6), the defendant Cir. 1983), rehearing denied, 726 F.2d 277, cert. denied, 469 U.S. 826 (1984). In reviewing the motion, the court must accept as true all factual allegations in the complaint. Windsor at 1103. All reasonable inferences are resolved in favor of the plaintiff and dismissal is only appropriate if it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957): Ang vy. Gamble Co., 932 F.2d 540, 541 (6th Cir. 1991). Eleventh Amendment Defendants argue that the Eleventh Amendment is a bar to the plaintiffs’ claims against defendants Arlington ’ The motion to dismiss also raised the issue of standing. See note 1, supra. 80a Order - No. 92-2213 M1/A, 1/26/93 Developmentai Center, the Tennessee Department of Mental Health and Mental Retardation, the Tennessee Department of Health, and the Tennessee Department of Human Services for relief under Counts I (social Security Act), III (due process clause), IV (First Amendment) and V (equal protection). Courts are limited by the Eleventh Amendment to providing for only "prospective injunctive relief" against state officials sued in their official capacity. Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 959 (6th Cir. 1986). Accordingly, the claims against the above-listed agencies pursuant to the Social Security Act, the due process clause, First Amendment and the equal protection clause are dismissed.* However, this Court can consider the merits of the plaintiffs' claims against individual defendant state officials sued in their official capacities since, if successful, plaintiffs could be entitled to prospective injunctive relief. Title XIX of the social Security Act The plaintiffs assert that Title XIX of the Social Security Act creates judicially enforceable rights against state officials under 42 U.S.C. § 1983. The defendants agree that the plaintiffs may sue under the Social Security Act when the actions of state officials have denied a direct right to payment, See Maine v. Thiboutot, 448 U.S. 1 (1980), but that the plaintiffs cannot sue the defendants for failure to meet any minimum standards of care -- standards of care which the 4 Defendants do not contend the Eleventh Amendment is a bar to plaintiffs' claims pursuant to the Rehabilitation. Act. Thus, the Court's analysis under the Rehabilitative act is not only applicable to the named individual defendants, but.is.also applicable to the defendant agencies. 8la Order - No. 92-2213 M1/A, 1/26/93 facility must meet in order to retain federal funding under the Act, which are indirect benefits. When determining whether a federal statute creates implied rights of action,’ the primary focus is on congressional intent. Cabinet for Human Resources, Com. of ‘n, 954 F.2d 1179, 1181 (6th Cir. 1992). The Supreme Court in Cort y. Ash, 422 U.S. 66 (1975) set out four factors to consider when determining whether a private remedy is implicit in the statute. These factors are as follows: (1) Is the plaintiff one of the class for whose special benefit the statute was enacted? (2) Did Congress indicate any intent either to create or deny a remedy? (3) Would implying a remedy for the plaintiff be consistent with the underlying purpose of the legislative scheme? and (4) Would the cause of action be one traditionally delegated to state law such that it should be inappropriate tc imply a federal remedy? Cabinet for Human Resources at 1181. The defendants assert that the courts should not second-guess certification decisions, thereby rendering superfluous the entire administrative review and oversight mechanism developed by Congress through the Medicaid program. Such enforcement by the federal courts would interfere with the administrative system which each state has been required to implement. * The parties agree that Title XIX does not expressly provide for a private right of action. 82a Order - No. 92-2213 M1/A, 1/26/93 Defendants arguments are compelling. This Court is not persuaded that Congress in enacting Title XIX of the Social Security Act intended to create a private cause of action for enforcement of the standards of care which.a facility must meet in order to retain funding. Accordingly, plaintiffs’ claims under Title XIX are dismissed.° Rehabilitation Act of 1973, and Title II of the American With Disabilities Act of 1990 In order to state a claim under § 504 and Title II ’ plaintiffs must prove (1) that they are handicapped within the meaning of the Act (2) that they are "otherwise qualified" for the services sought, (3) that they were excluded from the services sought solely by reason of these handicaps, and (4) that the program in question receives federal financial assistance. Clark v. Cohen, 613 F. Supp. 684, 692 (D.C.Pa. 1985), affirm'd on other grounds, 794, F.2d 79 (3rd Cir.), cert denied, 479 U.S. 962 (1986); See also Doherty v. Southern College of Optometry, 862 F.2d 570 (6th Cir. 1988). ® Although Title XIX does not provide the mechanism for private enforcement of standards of care, the essence of some of these claims is remedied through the due process clause of the Fourteenth Amendment. See substantive due process analysis, infra. ’ Plaintiffs and defendants agree that the analysis under § 504 and Title II would be the same under the facts and claims asserted by the plaintiffs. Additionally, the parties agree that the Eleventh -Amendment is.not a bar-to claims arising under Title II of the ADA and § 504. 83a ME SARE OM NRE = eo a iad eras enn > oe ae oF we Order - No. 92-2213 MI1/A, 1/26/93 Plaintiffs are claiming, inter alia, that some Arlington residents are being excluded from community services, because of the severity of their retardation or physical disabilities, but that other handicapped persons are receiving such services. However, an action asserting that certain plaintiffs have been the victim of discrimination vis-a-vis other handicapped people must fail because § 504 does not cover discrimination among similarly handicapped persons. Clark at 653; Johnson v. Thompson, No. 90-6107. slip op. at 5 (10th Cir., August 7, 1992). Accordingly, plaintiffs claims under the Rehabilitation Act and Title II of the ADA are dismissed. Due Process With respect to the due process clause of the Fourteenth Amendment, the complaint primarily sets out substantive due process issues, although there appears to be at least one allegation which goes toward a procedural due process claim. This Court has already recognized the substantive due process rights of institutionalized individuals. See USA v. State of TN, Docket No. 92-2062.° Since the , Although the vast majority of residents at Arlington were placed there at the request of their parents or guardians, as opposed to a court commitment procedure, it is reasonable to infer from the facts as alleged that there is sufficient state action in the process used to admit residents into the facility to trigger substantive due process rights under the Fourteenth Amendment. See Parham v. LR., 442 U.S. 584, 600 (1979) ("It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined ‘unnecessarily for medical treatment and that the state's involvement in the commitment decision constitutes state action under the 84a Order - No. 92-2213 M1/A, 1/26/93 plaintiff has alleged sufficient facts to support a claim of violations of substantive rights, dismissal is not appropriate. Accordingly, the defendants motion to dismiss the substantive due process claim is denied. The plaintiffs contend that they have been denied an opportunity to be heard on the appropriateness of their habilitative plans, programs and environment. Under the standard of a motion to dismiss, the Court must take as true the allegations in the complaint. At this point in time, it appears that Arlington residents are entitled to some review or hearing during the course of their stay. See Clark at 697-701. Without further evidence on this point, this Court is reluctant to dismiss this claim. Therefore, the procedural due process claim, if any, will not be dismissed until this court has further information regarding any hearings that may have been conducted during the confinement of some of the plaintiffs. Accordingly, defendants' motion to dismiss the procedural due process claims is denied. First Amendment Fourteenth Amendment"). Also, under Tennessee law, once an individual is confined to Arlington the mentally retarded person is under the "exclusive care, custody and control of the commissioner and superintendent.” Tenn. Code Ann. § 33-5-103. Once the state has accepted the individual into its custody and control, the state has assumed some responsibility for the safety and well-being of the resident. See DeShaney at 1005. Moreover, the alleged harm is caused by state actors who control every aspect of the resident's daily. life, including treatment, care and his or her movement in and out of the institution. 85a Order - No. 92-2213 MI/A, 1/26/93 Under Count IV, the plaintiffs aver that their First Amendment rights of freedom of expression and association and religion have been violated by defendants. Although the defendant concede that the plaintiffs may have stated a claim under the First Amendment because of certain alleged incidents not related to any policy at Arlington, subsections (b), (d) and (e) are dismiss because none of the plaintiffs have alleged any injury with respect to these allegations. However, plaintiffs have sufficiently alleged facts to Support their claims under Count IV(a) (c) and, therefore, defendants motion to dismiss those claims is denied. Equal Protection The plaintiffs additionally assert equal protection violations. Defendants claim that mental retardation is not a Suspect or quasi-suspect class, that institutionalization is a rational choice, and thus there is no equal protection claim. This Court agrees that the equal protection claim should be dismissed. Mentally retarded persons are not a suspect classification and, therefore, the court only applies rational basis scrutiny. Ci ivi 473 U.S. 432 (1985). There is sufficient logical rationale for the defendants’ actions to overcome the plaintiffs’ challenge. Accordingly, plaintiffs’ equal protection claim is dismissed. Moreover, Section 504 codified the equal protection clause with respect to persons with disabilities. Since the § 504 claim is dismissed, plaintiffs' equal protection claim likewise fails. Based on the foregoing, defendants' motion to dismiss is GRANTED in part and DENIED in part. Claims under 86a Order - No. 92-2213 M1/A, 1/26/93 Title XIX of the Social Security Act, Sections 100 and 504 of the Rehabilitation Act of 1973, Title II of the American With Disabilities Act of 1990, the Equal Protection Clause, and the First Amendment as set out in Count IV(b),(d), & (e) are DISMISSED. The claims remaining are those under the First Amendment as set out in Count [V(a) and (c) and the Due Process Clause. As: already noted above, because this case raises important issues and controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order with respect to certain claims may materially advance the ultimate termination of litigation, the following claims are certified for appeal: (1) claims under Title XIX of the Social Security Act; (2) claims under Sections 100 and 504 of the Rehabilitation Act of 1973; and (3) claims under Title I] of the Americans With Disabilities Act of 1990. SO ORDERED this 25 day of January, 1993. /s/ JON PHIPPS McCALLA DISTRICT COURT JUDGE 87a a oe Seo Loe ek on ee re ee APPENDIX L Civil Action No. 92-2062 CERTIFIED TRUE COPY ROBERT R. DI TROLIO U.S. DISTRICT COURT WESTERN DISTRICT OF TENNESSEE BY:/S/ DEPUTY CLERK I'm going to go through some comments in this case and it will take me a little time to do that. I also want to make it clear, and it will be clear from my written comments, that the defendant in this case, of course, is the State of Tennessee. I point that out because, obviously, sometimes it is necessary for me to make comments which seem to be directed at individuals. Now, that is because no institution, whether it is the state or the federal government, can act through anyone other than those people who work for that entity. But it is, of course, the State of Tennessee that has the responsibilities in this case, and it is to the State of Tennessee ' The following are the comments made by Judge Jon Phipps McCalla on November 22,. 1993. Clerical corrections have been made. 88a USA v. State of Tennessee - No. 92-2062 M1/A and to the United States that I direct my comments. I also point out in this case, that the rights of those individuals who are being litigated are the rights of individuals whose condition precludes them often from making their own complaint. Often they are individuals who, while they enjoy all of the constitutional rights of every citizen of this country, are unable, because of physical or mental disability, to articulate their own claim. While that does not give them special rights, it points out the problem that each of us must recognize, and that is that often it is the circumstantial evidence which has great weight in these cases. We are g [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1572%3A2. Public record. Not legal advice.