Case 2:89-cv-00362-EAS-NMK
Document 730
Filed 10/07/2005
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION NANCY MARTIN, ET AL., PLAINTIFFS, CASE NO. C2-89-362
VS.
ROBERT TAFT, ET AL.,
JUDGE SARGUS
MAGISTRATE JUDGE KING DEFENDANTS __________________________________________________________________ REPLY MEMORANDUM OF PLAINTIFFS AND THE PLAINTIFF CLASS TO RESPONSES BY PLAINTIFF OBJECTORS AND AMICI CURIAE TO THE REPORT AND RECOMMENDATION OF THE SPECIAL MASTER ______________________________________________________________________________
I. Introduction The plaintiffs and the plaintiff class file this reply to the responses filed by objectors and amici curiae to the Report and Recommendation of the Special Master filed with the Court on September 9, 2005 (Doc. # 721). The Special Master was charged by the Court with recommending disposition of several motions to decertify the class in this case (Doc. ## 609, 669, 679, 680, 681), and to remove or disqualify class counsel (Doc. ## 690, 705). The Special Master recommended that the motions be denied, and made findings and conclusions in five areas: 1. that the plaintiff class should not be de-certified because it continues to meet the requirements of Federal Rule of Civil Procedure 23; 2. the motions to decertify are moot because the alleged conflict of interest was raised by the proposed consent decree and the decree and the underlying settlement had been withdrawn;
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3. that the class definition should be modified by applying the controlling substantive law [as articulated by the U.S. Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999)] to limit class membership to those individuals with mental retardation or other developmental disabilities who are in need of residential services and would choose to receive those services in an integrated community setting; 4. under the class definition, the plaintiff objectors were not class members and did not have standing to seek decertification of the class or to object to the proposed settlement; and 5. that class counsel is fairly and adequately representing the class and should not be removed, and that counsel is qualified, experienced, and able to conduct the litigation. Plaintiffs and the plaintiff class submit this reply; ask the Court to adopt the R&R in its entirety; and ask the Court to set a pre-trial pursuant to Rule 16 to schedule a final discovery cut-off and trial in this case. II. Standard for Review A district court reviews the Report and Recommendation of a Special Master under the standard set out in Federal Rule of Civil Procedure 53(g). The court may “adopt or affirm; modify; wholly or in part reject or reverse; or resubmit to the master with instructions.” Id. at (a)(1). The rule sets out different standards of review for different circumstances. Thus, factual findings and conclusions of law are reviewed de novo by the district court. Id. at (3, 4). Review of procedural matters, however, is conducted under an abuse of discretion standard, Id. at (5). In that the certification of a class, and the determination of the adequacy of class counsel are
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governed by the rules of procedure and are, in fact, procedural matters vested in the discretion of the trial court, this latter standard applies.1 Regardless of the standard utilized by the Court, however, the report of the special master in this case is correct, both as a matter of application of controlling law and as a proper determination within the factual and procedural context of this litigation, and should be adopted. III. Argument Several of the objectors and two amici curiae have responded to the R&R.2 The Joel Martin, Heary/Ciocco, and Paul Peterson objectors have responded (Doc. ## 723, 725, and 726), as did amici Ohio Health Care Association and Ohio Provider Resource Association. (Doc. ## 727-1 and 728). As an initial matter, it is important to note that none of the responses have been characterized as “objections” to the R&R. Each plaintiff objector has in some fashion stated its acceptance of the conclusion that individuals who reside in ICF/MR facilities and are satisfied with their placements and services are not “in need of services” as that term is interpreted by the Special Master. Thus, they do not significantly dispute the conclusion that they have no standing to challenge the class. The Hearey / Ciocco objectors and amicus OHCA suggest a modification of the R&R that would prevent the plaintiffs and the plaintiff class from seeking any relief, including a new settlement, that would cause the elimination of ICF/MR services in Ohio. The Special Master recognizes, however, that the plaintiffs and plaintiff class have not sought elimination or creation of a particular program, but rather have sought to enforce the class’ right under federal law to have options in where and how residential services are provided. (Doc. # 721, R&R, p. 6-7) If
1
Rule 53(g)(5) was adopted in the 2003 amendments to the federal rules, and counsel reports a dearth of interpretive opinions on this rule. 2 Neither the Sheila Klein objectors nor their affiliated (and co-represented) amicus Ohio League for the Mentally Retarded have filed responses to the R&R. 3
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plaintiffs and the plaintiff class prove a violation of the defendants’ legal duties, the equitable remedy fashioned by the Court must be directly related to the demonstrated harm. The suggestion of the Heary / Ciocco objectors actually suggests a limitation on this Court’s powers in equity, rather than a limitation on what relief may be requested by the plaintiffs, and is inappropriate at this stage of the litigation. Moreover, none of the objectors or amici articulate a legal basis for imposing any limitations on the parties. Neither do they cite to any precedent that would support such an argument. Finally, plaintiffs and the plaintiff class must note the response of amicus Ohio Provider Resource Association. This filing, devoid of case law or legal analysis of the R&R, serves instead as a polemic on issues that may or may not be legally viable within the context of the case, and as a general criticism of plaintiffs’ counsel. For example, OPRA challenges the named plaintiffs as lacking standing. This factual matter was not considered or decided by the Special Master. And it is by now commonly recognized that even if the named plaintiffs’ / class representatives’ claims had expired the claims of the class are not moot. E.g. U.S. Parole Commission v. Geraghty, 445 U.S. 388, (1980). An Article III case and controversy continues to exist on behalf of the certified class itself. Beyond this specific point, the response simply meanders from criticism to criticism, each one less relevant to the pending litigation. The use of straw men abounds. For example, supporters of the settlement were under no duty to submit proof of their support during the objections period, as this was not a plebiscite. Indeed, plaintiffs were prepared to present support for the settlement at the fairness hearing which, of course, was cancelled.
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The notion of no consultation by the Ohio Legal Rights Service ignores both the factual record in this case and in the larger public context over the course of this litigation. It also begs the question of consultation with whom, although OPRA attempts to answer its own rhetorical question by suggesting that OLRS has not communicated regarding this case with APSI. OPRA has again set up a straw man, however, based on speculation that can only be answered by further development of the factual record, and which ignores the close working relationship of OLRS and APSI on this case and in other matters. Indeed, Ron Koslowski, APSI’s executive director, has been listed as a witness for plaintiffs in every pre-trial filing. See Doc. # 437, Proposed Pretrial Order. APSI’s response to the proposed consent order was a result of significant consultation between plaintiffs’ counsel and the APSI staff and board. Finally, OPRA is less than candid in its own involvement in the CAFS take down. First, it is important to note the OPRA does not suggest that there is a coherent legal theory that could have been successful to prevent the takedown. In fact, a suit filed on behalf of OPRA in Franklin Co. Common Pleas Court (Frazee v Ohio Dept. JFS, No. 05CV06592) was abruptly and voluntarily dismissed by the plaintiff when a TRO was refused by the common pleas judge. In fact, the press release used by OPRA to announce the dismissal of the case has an almost identical explanation of the decision to eliminate the CAFS program as does the OLRS FAQ that is attacked by OPRA. (OPRA press release, Exhibit A). The point of this discussion is not to prove OPRA wrong. That would require significant factual development on matters arguably irrelevant to the R&R. It is, instead, to demonstrate the baseless nature of the arguments it raises, a difficulty that has beleaguered this phase of the
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litigation. Empty rhetoric and specious arguments that have simply prolonged this litigation should not be given serious attention by this court. 3
IV. Conclusion It is a truism that only the defendants in this case can create or eliminate programs. Similarly, it is only the Court that can fashion an equitable remedy in this matter, assuming the plaintiffs and plaintiff class meet their burden to establish a violation of defendants’ obligations under the law. Hence, the fury focused on the plaintiffs, their attorneys, and the ongoing existence of the plaintiff class is perplexing to counsel, particularly as the objectors and amici acknowledge their agreement (however grudging) with the conclusion of the Special Master that they are not part of the class, do not have standing in this matter, and are not bound by a judgment or settlement in the case. It is certainly true that criticism intended for one entity (the defendants or the Court, in this case) is sometimes deflected to an easier target, and that may explain the vigor with which plaintiffs and their counsel are attacked. The Special Master, however, has correctly recognized that this attack is misplaced, and that the class is both properly certified and ably represented. The Court should adopt the recommendation without modification, set this matter for a scheduling conference, and set a trial date.
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Counsel reminds the Court that OPRA is affiliated with and represented by the same attorney as the Joel Martin objectors. Beyond the fact that this has allowed this interest group to have two opportunities to respond or comment to the R&R, the Court should keep this circumstance in mind when considering allocation of the compensation of the Special Master under Rule 53(h). 6
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Respectfully submitted, OHIO LEGAL RIGHTS SERVICE /s/Michael Kirkman Michael Kirkman (0009854) mkirkman@olrs.state.oh.us Trial Attorney for Plaintiffs and the Plaintiff Class
/s/Harry B. Keith Harry B. Keith (0024022) hkeith@olrs.state.oh.us 8 East Long Street, 5th Floor Columbus, Ohio 43215-2999 (614) 466-7264 fax (614) 644-1888
CERTIFICATE OF SERVICE I hereby certify that on October 7, 2005, the Reply Memorandum of Plaintiffs and the Plaintiff Class was filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
/s/Michael Kirkman Michael Kirkman
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