In their decision, the First Circuit court stated that they were not affording any deference to Judge Tauro's own interpretation of the landmark consent decree that he helped fashion and negotiate in this case.
For 35 years, Judge Tauro was directly involved in litigation to improve the conditions and care for persons with mental retardation in Massachusetts. Between 1977 and 1993, when he formally disengaged from the case–now Ricci v. Patrick–Judge Tauro make numerous visits to Fernald and other facilities, conducted extensive hearings, issued hundreds of orders, and effectively oversaw all services provided by the Department of Mental Retardation.
In 2007, Judge Tauro concluded that the Patrick administration's “global declaration” that it was closing Fernald amounted to a “systemic failure” to provide adequate care to Ricci class members living there. Incredibly, the First Circuit court gave no deference to this conclusion. The appeals court decision stated that the court was reviewing the matter “de novo,” meaning it was not considering Judge Tauro's own experience in this long-running case. The court concluded there was no systemic failure and that Judge Tauro had no jurisdiction to enter his order that Fernald remain open.
We contend that if anyone is in a position to know whether there has been a systemic failure, it is Judge Tauro, not the First Circuit Court of Appeals.
Our petition to the Supreme Court, filed by Leon Friedman, an eminent attorney and constitutional law scholar, notes that the federal circuit courts are split over whether deference should be shown to the rulings of district court judges in consent decree cases. Several circuit courts have stated that deference should be shown due to the district court judges' “intimate understanding” of those cases (Fourth Circuit decision, for instance). The First Circuit Court itself cited a need for deference in an earlier case because of a judge's “special knowledge” of the parties' intentions. Other circuit courts have reached an opposite conclusion.
This “irreconcilable conflict” among the circuit courts over the standard of review of district court decisions is one that we believe must be resolved. All nine justices will consider whether to accept our petition. The administration has 30 days to respond. The Supreme Court will decide sometime this spring whether to take the case.
One reason we believe our chances of getting our case considered are better than average is that the Supreme Court's own rules clearly state that the high court will consider important matters in which appeals courts are in conflict. There can be no doubt that that is the case here.
If the Supreme Court does take our case, we will be in a position to seek a stay to halt further transfers from Fernald pending the outcome of the appeal. That could take a year or more–a period of time during which the administration would be prohibited from transferring anyone from Fernald who does not want to leave.
In the end, this legal issue is coming back to the man who took it up for the first time in the 1970s–Judge Tauro. He is the central figure in the continuing effort to improve care for the mentally retarded in Massachusetts. His role should not be disregarded.
I fail to see how this is not simply one of those tough policy decisions which may stink on the merits, but is an appropriate exercise of state power. I’m all for courts addressing violations of fundamental rights, but this seems like an example of running to a court simply because we don’t like a policy decision.
This is all part of a consent decree case that goes back to the 1970s when conditions of care for the mentally retarded in Massachusetts and many other states were deplorable. Are you saying the courts should not have gotten involved? Two years ago, the same judge who oversaw this consent decree from the very start said that the state had engaged in a systemic violation of his consent decree order. He was overturned by an appeals court that did not pay any deference to his experience. We are appealing the appeals court decision. No one is running to a court. We’ve been in court since the 1970s.
…the original case brought by the late Ben Ricci? If my historical understanding of this issue is correct, the families of mentally disabled individuals were/are divided into those who advocated for deinstitutionization and those that advocated for Fernald-like solutions. Of course the outcome of the Ricci case resulted in the closing of Belchertown State Hosp and other facilities, with Judge Touro putting the whole system in recievership.
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My understanding is there has been a historical split within the DMR community between those who advocate for deinstitutionalization and those who believe institutions such as Fernald should be part of the continuum of care. The Fernald families are not against community-based care. They simply believe it is not appropriate for everyone–particularly those with the most severe and profound levels of retardation. On the other hand, advocates of deinstitutionalization tend to be against institutions period.
that is akin to a death sentence for these fragile people. Studies have been done on this, and still the Governor ignores the data. I’m glad the families aren’t sitting still for this.
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p>Also, Christopher, these are class clients, consent decree – entitled to the same as or better level of care for the rest of their lives as the result of a federal lawsuit against the state in the 1970s. They are being evicted from the only homes many of them know, and shoehorned into a residence and “care” model that is inappropriate for their very complex needs. So…the state is essentially violating the original consent decree. I think it’s the only thing the families can do at this time.
Dave – an excellent summary of the facts. Sometimes the legal jargon can be difficult to fully understand.
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p>I sat through the First Circuit Appeal hearing on this case. I know nothing about the law or the appeals process but at the time my thoughts were that the appeal panel should have deferred to Judge Tauro’s intimate knowledge of this case or at the very least requested some sort of clarification from him. He alone is uniquely qualified to see through the “slight-of-hand” put forth by the Commonwealth. After all, he has seen it all before. As you stated, who could possibly be in a better position to determine noncompliance with a consent decree than the judge who wrote it?
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p>I am extremely hopeful, after reading Atty. Friedman’s petition, that the Supreme Court will decide to hear this case because there is a big issue–conflicts between the circuits that needs to be settled. Hopefully the Fernald residents will benefit from the need to decide this issue.
I have my fingers crossed that the Supreme Court will decide that the First Circuit Court of Appeals erred in not giving deference to district court judge’s knowledge, as they should have, and that this case will be put back where it belongs–in Judge Tauro’s hands.
per resident to operate Fernald?
The administration has pushed a cost argument for closing Fernald. We’ve argued that they have never done an adequate analysis of the true cost of operating Fernald or whether they will really ever save any money in putting the residents into the community.
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p>In fact, we don’t think the administration is really interested in saving money. If they were, they wouldn’t be planning to put residents into group homes that will each cost the state $2 million or more to rent over 20 years.
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p>In the end, this is about selling very valuable land to developers. This isn’t about the cost operating Fernald, whatever that cost really is.
There are about 160 residents remaining at Fernald, not counting about 26 patients in the Marquardt skilled nursing facility.
Lightiris asked the question, “How much does it cost per resident to operate Fernald”? This is a good question that really cannot be answered.
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p>The first answer is that VOR, a national advocacy organization that speaks for persons with mental retardation, commissioned a study a few years ago that discovered that there is no printed literature which says that the cost of care is less in a community program than the same level of care in an intermediate care facility like Fernald.
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p>All the costs ($256K claimed) associated with the operation of Fernald are in the Department of Mental Retardation budget. However they cannot isolate the cost per building in order to tell us the actual cost per resident. The Fernald budget includes the cost to operate a homeless shelter for mothers and their school aged children (265 persons), Tufts Dental Clinic (90% of their patients live in a community residence), a storage facilty for the State Police, DMR Metro Boston regional office, and a therapeutic swimming pool and gym (most of the users are not Fernald residents).
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p>All the costs to operated a community facility is not in the DMR budget (102K claimed). Providers receive low-income housing development from HUD, transportation from the federal DOT, and food stamps from the Department of Agriculture.
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p>The claimed $256K costs at Fernald is heavily padded; the $102K community costs omits many significant basic costs.
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p>The criteria should be the proper choice based on the individual’s needs. Remember, we have the choice to live in a house, condo, or assisted living or nursing home based on our needs. Why should severely retarded individuals live by such different standards??
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p>MAV
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