Opposition Brief — Ass'n for Retarded Citizens of Connecticut, Inc. v. Thorne

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No. 94-743 ») NOV 23 1994

sith | OFEWE Oe wie GLEN

In The

Supreme Court Of The United States

October Term, 1994

.

THE ASSOCIATION FOR RETARDED CITIZENS OF

CONNECTICUT, INC., ET AL.

Petitioner,

Vv.

GARETH THORNE, ET AL.

Respondents.

>

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

——

BRIEF OF THE RESPONDENT IN OPPOSITION

&

RICHARD BLUMENTHAL

ATTORNEY GENERAL

HENRY A. SALTON’

RICHARD J. LYNCH

Assistant Attorneys General |

Office of the Attorney General

PO. Box 120

Hartford, CT 06141-0120

(203) 566-7334

*Counsel of Record

TABLE OF CONTENTS

Page

ee ee ST i iitlcctecsnctecsictsientecetivoccceddscastbeains (i)

ABER Cr Aa ee Oe occecccsesscccctccssccsccccesssceccsccoeoes (ii)

STATEMENT OF THE CASE. .......cccccccccscccccscccscscccccsescceees 2

FER I RNR IN ea aE 5

THE ISSUES PRESENTED IN THIS CASE DO

NOT WARRANT THIS COURT'S REVIEW. .... 5

A. The Decision of the Court of Appeals Is

Not In Conflict With Decisions Of This

And Other Courts And Has Little Applica-

tion Outside Of The Unique Facts Of This

i isccieiccintceersnigpttiinsieibinintanitinitibianiinanninss 5

B. The Petitioners’ Claims That The Public

Interest Requires Reversal Are Based On

Misstatements Of The Record And A

Mischaracterization Of The Holding Of

The Court Of Appeals. ...................:ccseceeee 10

Sa ciisciciignssninsnensecosenpinuncisiinminnbetimie 17

(i)

(ii)

TABLE OF AUTHORITIES

Cases: Page

Alberti v. Sheriff of Harris County, Tex., 937 F.2d. 984

CSG Ge TEED sciccscticenincersitiiniiitiatiniintiaaaaaceail 8n, 9

Association For Retarded Citizens of Connecticut v.

Thorne, 30 F.3d 367 (2d Cir. 1994)........c.cceceeee passim

Badgley v. Varelas, 729 F.2d 894 (2d Cir. 1984)......... 8n, 9

Benjamin v. Malcolm, 803 F.2d 46 (2d Cir. 1986), cert.

denied, 480 U.S. 910 (1987) ....cccccccccccscsesececsnssseesee 8n, 9

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561

TEI cceevecsnncssineoenpesaniieciesediestsaliadsciantiadamaniliatgiaiidiriiad 9

Martin v. Wilks, 490 U.S. 755 (1989) ......ccscscessseseseeees 7n, 9

New York State Association For Retarded Children, Inc. v.

Carey, 466 F.Supp. 479 (E.D.N.Y. 1978).......... 12, 14

New York State Association For Retarded Citizens, Inc. v.

Carey, 706 F.2d 956 (2d Cir. 1983) .........ccccceceseeseees 13

New York State Association For Retarded Citizens, Inc. v.

Rockefeller, 357 F.Supp. 752 (E.D.N.Y. 1973) ...... 13

(iii)

Pennsylvania Bureau of Correction v. U.S. Marshals Ser-

PO Fe le Pe © FD Picecccsmcnnescncesovescsncusercrancsecsovaceies 8

Richard Messier, et al v. Southbury Training School et al,

United States District Court, District of Connecti-

cut, No. 3:94CV01706 (AVC) (filed October 6,

Sidseisionehatbieisinstakeapbsianssiiaeabdsercnersttpystbonoronsevsnsevsseseniessonecocoe 9

United States v. IBT, 968 F.2d 1506 (2d Cir. 1992)

Sse eed bplilctieaipndaipiaphisntoirnntetansersieesmnsnensesiccunsescessensess 9

Youngberg v. Romeo, 457 U.S. 307 (1981) ......c.ccccseeeeeeeee 12

STATUTES

I EB assis csi cessiccsceiscaesscedisesvececesecvecerecseee 10

NI BIE OID cntctimcnsosanacisvnsisactundanssoneivimnarsaaseotsvisin 10

aici ieseinhanccnnccasisteienioipesennenienesesoncesaorens pe

FEDERAL RULES OF CIVIL PROCEDURE

Ee 8, 15, 16, 16n

a sennanevaninns 8, 15, 16, 16n

No. 94-743

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

THE ASSOCIATION FOR RETARDED CITIZENS OF

CONNECTICUT, INC., ET AL.

Petitioner

Vv.

GARETH THORNE, ET AL.

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF THE RESPONDENT IN OPPOSITION

STATEMENT OF THE CASE

The petitioners Association for Retarded

Citizens of Connecticut et al have brought a petition for

a writ of certiorari asking this Court to review the judg-

ment of the Court of Appeals of the Second Circuit in

Association For Retarded Citizens of Connecticut v.

Thome, 30 F.3d 367 (1994)(reproduced in Petitioners

Appendix at 1A). This decision held that the district

court’s decision to join the respondent Department of

Public Health and Addiction Services (formerly known

as the Department of Health Services) pursuant to the

All Writs Act, 28 U.S.C. § 1651, was improper. The

Court held that the district court should not have

ordered joinder of the respondent in order to imple-

ment a consensual final order voluntarily entered into

by other parties three years earlier which the respon-

dent had neither bargained for nor agreed to.!/

The underlying litigation is a class action brought

in 1978 by mentally retarded individuals and the Con-

necticut Association For Retarded Citizens challenging

the care and placement of mentally retarded persons at

the Mansfield Training School. The named defendants

included the respondent Department of Health Services

I/ The respondent does not address petitioners’ misstatements

of the record regarding the underlying issues surrounding

Do Not Resuscitate orders as the Court of Appeals did not

reach these issues and other grounds of error raised in the

appeal of the district court decision.

(DHS) and the Department of Mental Retardation

(DMR). Petit. App. at 4A, 30 F.3d at 368.

In 1982, the respondent DHS was dismissed from

the case on the ground that "it was not essential to the

Court's resolving the disputed issues in the litigation.”

Id. In 1984, the magistrate judge to whom the case had

been referred by the district court approved a consent

degree entered into by the remaining parties. Id.

In November of 1990, the magistrate judge with

the agreement of the parties, issued a final order which

included portions of the consent decree, additional set-

tlement agreements entered into by the parties after the

decree, and some new provisions. Petit. App. at 4A-5A,

30 F.3d at 369. One of these provisions required DMR

to implement an advisory regarding Do Not Resuscitate

Orders which it had adopted in 1987. The advisory sets

guidelines for such orders for DMR clients who reside

in a facility operated or licensed by DMR. Id.

In July of 1992, petitioners filed a motion to join

DHS as a defendant and for a preliminary injunction

requiring DHS to implement the advisory in all DHS

licensed health care facilities. Petit. App. at 6A, 30 F.3d

at 369. On February 12, 1993, the magistrate judge

granted petitioners’ motion in a recommended ruling to

the district court. The magistrate judge joined DHS as a

party under the All Writs Act because it was in a posi-

tion to frustrate the implementation of the final order's

provision on the advisory. Jd. The magistrate judge also

recommended that a preliminary injunction be issued to

require DHS to implement the advisory because DHS

had violated the final order and the classmembers’

rights to life. Id.

On August 26, 1993, the district court adopted

and affirmed the magistrate judge’s recommended rul-

ing without significant change despite the objections of

DHS. Jd. DHS subsequently appealed to the Court of

Appeals of the Second Circuit.

On July 25, 1994, the Court of Appeals reversed

the district court decision. The Court found that the use

of the All Writs Act to impose the voluntarily assumed

settlement of the parties upon DHS was improper. The

Court did not reach the underlying issues surrounding

Do Not Resuscitate orders as well as other grounds of

error raised by DHS. Petitioners subsequently filed a

petition for a writ of certiorari to have this Court review

the Court of Appeals decision.

ARGUMENT

THE ISSUES PRESENTED IN THIS CASE DO

NOT WARRANT THIS COURT'S REVIEW.

A. The Decision of the Court of Appeals Is

Not In Conflict With Decisions Of This

And Other Courts And Has Little Appli-

cation Outside Of The Unique Facts Of

This Case.

The petitioners have failed to establish that

there are special and important reasons for the grant of

a writ of certiorari in this case. Petitioners have not

identified a single decision of this Court, of another

Court of Appeals or of a state court of last resort which

is in conflict with the ruling below by the Second Circuit

Court of Appeals. Nor have the petitioners established

that the Court of Appeals ruling was such a departure

from the accepted and usual precedent that the exercise

of the Supreme Court’s power of supervision is

required. On the contrary, the Court of Appeals

pointed out that its ruling was consistent with eight

prior decisions of the Second Circuit which considered

the use of the All Writs Act, 28 U.S.C. § 1651. Petition-

ers fail to discuss any of these precedents.

Nor can petitioners establish that the ruling

below will have a wide effect on the application of All

Writs Act outside of the unique factual setting of the

case. The Court of Appeals’ ruling that use of the All

Writs Act was inappropriate was based on a number of

facts in the unusual and protracted history of the under-

lying litigation.

The facts of this case are unique. When this

litigation began in 1978, the defendant Department of

Health Services (DHS) was a named defendant. Petit.

App. at 4A, 30 F.3d at 368. In 1982, the district court

granted DHS’ motion to be dismissed from the suit on

the ground that it was not "essential to the Court's

resolving the disputed issues in the litigation.” Jd. Peti-

tioners never challenged this order. In 1984, the

remaining parties entered into a consent decree resolv-

ing the case without adjudication of any of the issues on

the merits. Petit. App. at 4A-SA, 30 F.3d at 368. In

1990, these parties agreed to the entry of a final consen-

sual order reflecting a panoply of settlement agree-

ments, the consent decree and some additional terms

including one provision addressing Do Not Resuscitate

orders for classmembers in DMR licensed or operated

facilities. Petit. App. at SA, 30 F.3d at 369. The final

consensual order was entered without the knowledge or

participation of DHS and none of its terms or compo-

nents rested on a court adjudication of constitutional or

statutory violations. In 1993, nearly three years after the

entry of this final order and a decade after DHS was

dismissed from the case, the district court joined DHS

as a defendant under the All Writs Act in order to

require it to abide by one of the terms of the parties’

agreement. Petit. App. at 6A, 30 F.3d at 369. These

facts, peculiar to this case, were crucial to the Court of

Appeals’ ruling.

The Court of Appeals found that the joinder of

DHS in order to require its compliance with the terms

of an agreement to which it was not a party, rather than

with orders of a court, was improper. Petit. App. at

8A-9A, 30 F.3d at 370. The holding was dependent on

the specific fact that the consent decree and its succes-

sor, the final order, was entered into voluntarily without

any adjudication of the rights or liabilities of the parties.

This distinction was critical to the Court's analysis. Id.

The Court found, based on numerous precedents, that

the district court was without authority to extend the

consensual final order to DHS, a party that did not bar-

gain for it or agree to it, simply on the ground that

DHS’ compliance would assist the parties to implement

their settlement.2/

Where the district court exercises its juris-

diction to rule that on the merits of a liti-

gation, it determines that the law requires

a certain outcome and is empowered to

issue remedial orders to effectuate that

outcome. By power of the All Writs Act,

it may require the compliance of

nonparties in order to ensure that its

legally-mandated directives are not frus-

trated. Jn contrast, where a district court

enters a privately-negotiated consent decree,

2/ This conclusion is consistent with the precedent of this

Court. See Martin v. Wilks, 490 U.S. 755, 761-62 (1989)("A

judgment or decree among parties to a lawsuit resolves

issues among them, but it does not conclude the rights of

strangers to those proceedings.”).

it does not determine the obligations

assumed by the parties are required by law.

Indeed, consent decrees often impose "ight

and obligations greater than those required

2 ecause the terms of the consent

ecree were voluntarily assumed rather

than legally imposed, there is no basis for

extending the negotiated outcome to a

nonparty.

Id. (citation omitted) (emphasis added).2/

In addition, the fact that DHS had once been a

party but had been dismissed by the lower court eleven

years earlier as nonessential to resolution of the case,

led to the Court’s statement in dicta, that while the dis-

trict court had not considered joinder under Rules 19

and 20 of the Federal Rules of Civil Procedure, “[w]e

have serious doubts that Rules 19 and 20 would have

permitted DHS’ joinder...” Petit. App. at 9A, 30 F.3d at

370. Consistent with this Court’s caselaw, the Second

Circuit noted that the All Writs Act does not authorize

ad hoc writs in order to avoid use of existing proce-

dures, including those provided in Rules 19 and 20.

Petit. App. at 9A-10A, 30 F.3d at 371. See Pennsylvania

7A This holding was supported in part by the comparison of the

present case to the Second Circuit's prior decisions in

Badgley v. Varelas, 729 F.2d 894 (2d Cir. 1984) and

Benjamin v. Malcolm, 803 F.2d 46 (2d Cir. 1986), cert.

denied, 480 U.S. 910 (1987). Petit. App. at 10A-12A, 30 F.3d

at 371. Both of these cases involved the imposition of con-

sent decrees upon nonparties. The Second Circuit's analysis

of these two cases was foretold by the Fifth Circuit in Alberti

v. Sheriff of Harris County, Tex., 937 F.2d. 984, 996 (Sth Cir.

1991).

Bureau of Correction v. U.S. Marshals Service, 474 U.S.

34, 43 (1985). Moreover, the fact that DHS had been

dismissed from the litigation by order of the district

court in 1982 was the basis for the Court's rejection of

petitioners’ argument that DHS’ interests could be con-

sidered to have been represented by the parties to the

consent decree. Petit. App. at 13A, 30 F.3d at 372.

This ruling, predicated on the unique facts of the

case, is consistent with the rulings of this Court and

other rulings by the Second Circuit. See e.g. Firefighters

Local Union No. 1784 v. Stotts, 467 U.S. 561, 575 (1984);

Martin v. Wilks, 490 U.S. 755, 761-62 (1989); Benjamin v.

Malcolm, 803 F.2d 46 (2d Cir. 1986), cert. denied, 480

U.S. 910 (1987); Badgley v. Varelas, 729 F.2d 894 (2d

Cir. 1984); United States v. IBT, 968 F.2d 1506, 1512 (2d

Cir. 1992); United States v. IBT, 968 F.2d 1472, 1477 (2d

Cir. 1992). See also Alberti v. Sheriff of Harris County,

Tex., 937 F.2d. 984, 996 (Sth Cir. 1991). The petitioner

has identified no case whose holding conflicts with the

ruling below.

Further, the fact driven nature of the ruling,

based as it is on the unique history of the case, assures

that its application outside of this context will be lim-

ited. Consequently, the issues presented in this case are

such that they do not warrant this Court’s review.

10

B. The Petitioners’ Claims That The Public

Interest Requires Reversal Are Based On

Misstatements Of The Record And A

Mischaracterization Of The Holding Of

The Court Of Appeals.

Petitioners assert that the “public interest” in

institutional reform litigation requires the exercise of

this Court's jurisdiction. This argument, however, is

predicated on misstatements of the record and

mischaracterization of the holding of the Court of

Appeals and is insufficient to support the grant of a writ

of certorari.

In order to sustain their assertion of an adverse

impact on the public interest, petitioners

mischaracterize the district court's ruling, prior caselaw,

and the effect of the Second Circuit's decision.

Although the district court based its order on the

authority of the All Writs Act, and it was this ground

that was argued to the Second Circuit, the petitioners

for the first time argue that the district court's jurisdic-

tion was established under the Judicial Improvement

Act of 1990, 28 U.S.C. § 1367 (a). Petition at 22-25. This

statute was never previously raised by petitioners or

considered by any court in this case.

Further, petitioners mistakenly state that the

district court first found that DHS had violated the con-

stitutional rights of classmembers and upon that basis, it

had jurisdiction to join DHS under 28 U.S.C. § 1367 (a)

and 28 U.S.C. § 1343 (a)(3). Petition at 23. A review of

the district court decision reveals the falsity of both of

a,

11

these assertions. The district court unequivocally and

exclusively relied upon the All Writs Act to join DHS.

Petit. App. at 38A-42A: Petit. App. at 7A, 9A-10A, 30

F.3d at 369, 370-71. In addition, only after the district

court found that it had jurisdiction under the All Writs

Act to join DHS did the court even address the ques-

tion of “whether the plaintiffs are entitled to the relief

they seek.” Petit. App. at 43a.4/

Petitioners argument that the standards for join-

der under Rule 19 of the Federal Rules of Civil Proce-

dure are satisfied is based entirely on their false repre-

sentation of the district court's findings. Petitioners

falsely claim that the district court found "that imple-

mentation of the consent decree and protection of

classmembers constitutional rights is impossible unless

DHS is joined.” Petition at 24. This is simply untrue. To

the contrary, the district court never evaluated or made

a finding regarding the authority or the ability of DMR

to implement the consent decree without joinder of

DHS. Rather, the district court merely accepted on its

face DMR’s unsupported claims that it was powerless to

enforce the final order in facilities licensed by DHS.

Petit. App. at 41A, 47A-48A. As petitioners know, this

4/ Petitioners’ bootstrap argument that the district court could

adjudicate the merits of the petitioners’ claims and thereaf-

ter establish jurisdiction over DHS was rejected by the

Court of Appeals. Petit. App. at 11A, 30 F.3d at 371.

12

omission has been one of the grounds of error raised

repeatedly by DHs.>/

Petitioners further mischaracterize the district

court’s ruling that DHS violated classmembers’ rights to

life by casting this finding as made under the due pro-

cess standards set forth in Youngberg v. Romeo, 457 U.S.

307 (1981). Petition at 23. However, the district court

made no citation or mention of the Youngberg standards

in its decision and ironically, this failure has been one of

the objections maintained by DHS throughout the judi-

cial review process to the district court and Court of

Appeals.

In addition to misstating the findings of the dis-

trict court, petitioners confuse the caselaw upon which

their petition is based. Petitioners rely heavily upon a

district court decision in New York State Association For

Retarded Children, Inc. v. Carey, 466 F.Supp. 479

(E.D.N.Y. 1978) (hereinafter Carey ).°/ In Carey, a

S/ Petitioners also falsely suggest that DHS opposed the con-

sent decree and actively sought to undermine its implemen-

tation. Petition at 27. The district court found only that

DHS was in a position to frustrate the final consensual order,

not that it had actively opposed it. Not only did the district

court make no such finding, but there was no evidence that

would have supported such a finding. Petit. App. at 41A.

6/ Petitioners erroneously cite this decision as affirmed by the

Second Circuit Court of Appeals. Petition at 19. The Court

of Appeals did not review this ruling, rather the subsequent

rejection by the district court of the remedy proposed by the

(footnote cont'd)

13

class action brought by residents of Willowbrook Devel-

opmental Center against state officials had been

resolved by a consent judgment after an adjudication on

the merits which concluded that the rights of

classmembers had been violated. See New York State

Association For Retarded Citizens, Inc. v. Carey, 706 F.2d

956, 958 (2d Cir. 1983); New York State Association For

Retarded Citizens, Inc. v. Rockefeller, 357 F.Supp. 752

(E.D.N.Y. 1973) (violations of classmembers’ rights

under Eighth and Fourteenth Amendment supported

grant of preliminary injunction). The consent Judgment

required that state officials take all steps necessary to

secure compliance with the consent judgment which

included requirements for appropriate services in the

community. In order to fulfill this responsibility, and

under the standing provided by the consent judgment,

the Commissioner of the Office of Mental Retardation

and Developmental Disabilities brought an action on

behalf of a group of Willowbrook classmembers against

a city board of education which had excluded them from

local schools because they were hepatitis B carriers 466

F. Supp. at 481-82. The district court determined that

the Commissioner's action was ancillary to the underly-

ing Willowbrook class action. In addition, a new class

(footnote cont'd from previous page)

defendant was affirmed. See New York State Association for

Retarded Children, Inc. v. Carey, 466 F.Supp. 487 (E.D.N.Y.

1979) aff'd, 612 F.2d 644 (2d Cir. 1979).

14

action was brought against the city board of education

by a class composed of those Willowbrook

classmembers and others who had been excluded based

upon their hepatitis B status. This class action was certi-

fied and consolidated with the ancillary proceeding

brought by the Commissioner. /d. at 482.

Petitioners’ reliance on Carey is misplaced on its

face. First, in marked contrast to this case, the Carey

court did not rely upon the All Writs Act for jurisdic-

tion. Rather two independent actions were brought

against the defendant board of education. The consoli-

dation of these actions is not equivalent to the district

court’s joinder of DHS here. Further, in Carey, there

had been an adjudication of the classmembers’ claims

on the merits which led to the entry of the consent judg-

ment, whereas, in this case there was not. This is the

very distinction the Court of Appeals made in determin-

ing that joinder was inappropriate in this case.

Finally, petitioners make several unsupported

claims regarding the effect of the Second Circuit's rul-

ing. Petitioners’ assertion that classmembers’ rights

cannct be protected unless they are able to join

nonparties to compel their obedience to their settle-

ment is specious. Petitioners repeatedly raise the spec-

ter that classmembers will be left unprotected from

government agencies that are not parties to consent

decrees. As the Court of Appeals noted, its decision

does nothing to foreclose future litigation of the under-

lying issues in this case. Petit. App. at 1SA, 30 F.3d at

15

373. However, the Court held that "DHS is entitled to

defend the propriety of its actions in an independent

suit where it is not prejudiced by the presence of extra-

neous claims or parties and an unrelated litigation his-

tory.” Petit. App. at 11A, 30 F.3d at 371. If DHS has

violated classmembers’ constitutional rights, nothing

prevents classmembers from bringing a direct action

against DHS. UY

In addition, petitioners’ claim that the ruling

below leaves district courts powerless to join parties

under Rules 19, 20 and 21 of the Federal Rules of Civil

Procedure whenever their conduct thwarts implementa-

tion of a consent decree and violates the constitutional

rights of persons protected by the decree is a misstate-

ment of the Circuit Court’s ruling. Petition at 13-14. In

direct contrast to the petitioners’ claim, the Second

Circuit decision actually admonished district courts to

7/ The petitioner organization, Association For Retarded

Citizens of Connecticut, Inc., has recently brought a class

action regarding Connecticut's sole remaining large institu-

tion for the mentally retarded which named DHS as a

defendant. The action brought by petitioners’ counsel

includes allegations regarding improper Do Not Resuscitate

orders similar to those presented in this case. See Richard

Messier, et al v. Southbury Training School et al, United

States District Court, District of Connecticut, No.

3:94CV01706 (AVC) (filed October 6, 1994).

16

use Rules 19 and 20 to resolve joinder issues.9/ Petit.

App. at 9A-10A, 30 F.3d at 370-71.

Petitioners’ speculation that the decision of the

Court of Appeals will discourage the use of consent

decrees is unfounded. It merely makes clear that when a

negotiated resolution of a case occurs without any adju-

dication of the merits, parties may not expect that their

voluntary settlements will be forced upon others. The

decision may discourage plaintiffs who sit idly by when a

defendant is dismissed from a case and then, ten years

later, attempt to impose settlements they have negoti-

ated with other parties upon the former defendant.

This result scarcely supports petitioners’ allegation that

the Court of Appeals ruling undermines the "public

interest” in institutional reform litigation.

8/ The Court of Appeals’ statement that it had “doubts” that

joinder would be permitted under Rules 19 and 20 in the

particular circumstances of this case is insufficient to sup-

port petitioners’ conjecture that the ruling leaves district

courts powerless to use these rules. Petit. App. at 9A, 30

F.3d at 370.

17

CONCLUSION

For the foregoing reasons, the Petition for Writ

of Certiorari to review the decision of the Court of

Appeals of the Second Circuit in this matter should be

denied.

Respectfully submitted,

RESPONDENT

Susan Addiss, Commissioner

of the Connecticut Depart-

ment of Public Health And

Addiction Services

RICHARD BLUMENTHAL

ATTORNEY GENERAL

HENRY A. SALTON

Assistant Attorney General

Counsel of Record

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

Tel. (203) 566-7334