Opinion
CIVIL ACTION NO. 70-T-3195-N
July 13, 2000.
Ira A. Burnim, Leonard S. Rubenstein, Linda V. Priebe, Washington, DC, James M. Lichtman, Ropes Gray, Washington, DC, Fem Singer, Sirote Permutt, Birmingham, AL, James A. Tucker, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Kathryn H. Sumrall, Jackson, Garrison Sumrall, Birmingham, AL, Allen Smith, Jr., Warm Springs, MT, Iris Eytan, San Francisco, CA, for plaintiffs.
Algert S. Agricola, Jr., Wallace Jordan, Ratliff Brandt, L.L.C., Montgomery, AL, Ricky J. McKinney, Burr Forman, Birmingham, AL, Mary Elizabeth Culberson, Courtney Wayne Tarver, Office of the Attorney General, Montgomery, AL, Edward A. Hosp, Governor's Office Montgomery, AL Charles B. Campbell, Wallace, Jordan, Ratliff Brandt, L.L.C., Birmingham, AL, James Darrington Hamlett, Devereanx Associates, Montgomery, AL, June E. Lynn, G.R. (Rick) Trawick, Department of Mental Health Mental Retardation, Bureau of Legal Services, Montgomery, AL, Gregory D. Crosslin, Clifton E. Slaten, Mindi C. Robinson, Crosslin, Slaten O'Connor, P.C., Montgomery, AL, for Defendants.
Kenneth E. Vines, U.S. Attorney's Office, Montgomery, AL, Bill Lann Lee, Robinsue Frohboese, Judith C. Preston, Tawana E. Davis, Robert C. Bowman, United States Department of Justice, Civil Rights Division, Special Litigation Section, Washington, DC, for United States of America, amicus.
MEMORANDUM OPINION
In October 1999, as this case challenging conditions in the Alabama Mental Health and Mental Retardation System approached its 30th birthday, this court wrote with some optimism:
"[I]t is apparent that this litigation is steadily progressing toward its final resolution. Contributing to these efforts, newly appointed Commissioner of Mental Health and Mental Retardation Kathy E. Sawyer has, as this court recently observed, directly addressed one of the primary concerns of the court: the past unwillingness of the Mental Health and Mental Retardation Department to address rather than hide serious problems. As this court stated in its order of October 7, 1999: "Commissioner Sawyer has made clear that all problems will be "aired" and that all will be directly and forcefully addressed. Therefore, it appears now within sight that, under the leadership of Commissioner Sawyer, this litigation will come to an end in the near future, and certainly within her stint as Commissioner.'"Wyatt v. Sawyer, 190 F.R.D. 685, 689 (M.D. Ala. 1999) (Thompson, J.) (quoting Wyatt v. Sawyer, 985 F. Supp.2d 1331, 1358 (M.D. Ala. 1999) (Thompson, J.)). Just a few months later, on January 20, 2000, the parties reached a settlement agreement, and, on January 27, filed a joint motion for judicial approval of the agreement. On May 4, 2000, the court conducted a fairness hearing, and, based on a close examination of the agreement, the objections and other responses filed by plaintiff-class members and other interested persons, and the testimony offered at the fairness hearing, the court entered an order the next day approving the agreement, and promised that a memorandum opinion would follow later. This is the promised opinion.
See Doc. no. 2052.
See order of May 5, 2000 (Doc. no. 2142, attached here as appendix A), and agreement filed on May 5, 2000 (Doc. no. 2141, attached here as appendix B).
I. BACKGROUND
This litigation has traveled a long, winding, and often quite bumpy course, which the court has described at length in prior opinions and need not recount here. See, e.g., Wyatt v. Rogers, 985 F. Supp. 1356 (M.D. Ala. 1997) (Thompson, J.). However, a brief overview of the case's general trajectory and major turning points will serve as a useful foundation for consideration of the matter currently before the court.
1970-1974: The first phase of this litigation featured "expansive and landmark opinions," Wyatt, 985 F. Supp. at 1361, of Judge Frank M. Johnson, Jr., finding "that conditions in the facilities operated by the Alabama Department of Mental Health and Mental Retardation violated patients' constitutional rights," Id., and enjoining the defendants "to bring the facilities into compliance with certain minimum constitutional standards." Id. More specifically, in 1972, the court entered injunctions requiring the defendants to bring state facilities into compliance with certain minimum constitutional standards, now commonly referred to as the'Wyatt standards,' see Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972) (standards for mentally ill) (Johnson, J.), aff'd in relevant part, 503 F.2d 1305 (5th Cir. 1974); Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) (standards for mentally retarded) (Johnson, J.), aff'd in relevant part, 503 F.2d 1305 (5th Cir. 1974).
1975-1980: In the second phase, the parties focused on the defendants' non-compliance with these minimum constitutional standards. The plaintiffs and amicus curiae United States of America petitioned the court to appoint a special master or receiver to assure compliance, and both opposed a petition by the Governor of Alabama to be appointed as receiver of the State Mental Health and Mental Retardation System. Ultimately, following extensive hearings and appeals on the issue, the court appointed the Governor as receiver.
1981-1990: The plaintiffs triggered the third phase with their motion for sufficient state funding to ensure implementation of the Governor's plan of compliance with the Wyatt standards; in response, the Governor moved for termination of the receivership while the defendants moved to eliminate all of the Wyatt standards and to substitute in their place a requirement that the defendants achieve accreditation of the State's mental-illness facilities by the Joint Commission on the Accreditation of Healtheare Organizations (JCAHO) and certification of the mental-retardation facilities through Title XIX of the Social Security Act, 42 U.S.C.A. § 1396, et seq. The parties settled these conflicts, and, on September 22, 1986, this court approved a five-page consent decree which reflected a resolution of three issues, among others:(1) the defendants' desire to terminate court supervision of the state system;(2) the plaintiffs' concern about the continued viability of the Wyatt standards; and(3) the plaintiffs' efforts to focus the litigation on the provision of community facilities and programs and the placement of qualified patients in those facilities and programs. See Wyatt v. Wallis, 1986 WL 69194 (M.D. Ala. Sept. 22, 1986) (Thompson, J.).
1991-1997: The next round of litigation focused on the defendants' attempts to terminate this lawsuit upon a judicial finding that they had met their obligations under the 1986 consent decree. At the conclusion of a 35-day trial spanning several months in 1995, the court found that the defendants had acted in good faith with regard to some but not the whole 1986 consent decree, and it concluded that they should be released from the decree to the extent of their compliance with 17 of the mental-illness standards and 35 of the mental-retardation standards, as well as the requirement of JCAHO accreditation at all mental-illness facilities and Title XIX certification at all mental-retardation facilities. At this time the court also directed the parties to shift their focus to a standard-by-standard approach. See Wyatt v. Rogers, 985 F. Supp. 1356 (M.D. Ala. 1997) (Thompson, J.).
1998-present: The parties devoted much of 1998 and 1999 to discovery, including facility inspections by the plaintiffs' experts, on disputed compliance issues, several of which were either resolved or narrowed for the trial that had been scheduled for May and June 2000. See, e.g., Wyatt v. Rogers, 1998 WL 213779 (M.D. Ala. Apr. 21, 1998); Wyatt v. Rogers, 1998 WL 264783 (M.D. Ala. May 14, 1998); Wyatt v. Rogers, 1998 WL 862920 (M.D. Ala. Dec. 9, 1998); Wyatt v. Sawyer, 1999 WL 805285 (M.D. Ala. Oct. 4, 1999). Regularly scheduled status conferences with the court kept the parties focused. Negotiations intensified in 1999 when both parties retained settlement counsel independent of litigation counsel, which culminated in the settlement agreement now submitted for judicial approval.
II. SUMMARY OF THE SETTLEMENT AGREEMENT
The settlement agreement executed on January 20, 2000, proposes to dissolve the 1986 consent decree, settle the compliance disputes which have persisted since 1986, and finally bring to an end the federal court's long-term monitoring and control of the Alabama Department of Mental Health and Mental Retardation. Included in the settlement agreement are important provisions which guarantee that the State of Alabama will maintain its commitment to minimum constitutional standards for treatment and habilitation and significantly enhance and expand its services to the mentally ill and mentally retarded. Following is a summary of the settlement agreement's most significant provisions.
Accreditation: All of the State's mental-illness facilities are accredited by the JCAHO and all of the developmental centers are certified by the Health Care Financing Administration. These accreditations and certifications will be maintained.
Advocacy Program: The State Mental Health and Mental Retardation Department will maintain a trained staff of at least 26 full-time equivalent advocates for the effective operation of its internal advocacy program, which is designed to educate persons about client rights, to review or investigate complaints of rights violations, and to monitor conditions in mental-illness and mental-retardation facilities and in certified community programs.
Census Reduction: During the three-year period between October 1, 2000, and September 30, 2003, the department shall reduce by a total of 300 the number of extended-care mental-illness beds at Bryce Hospital, Searcy Hospital, and Thomasville Mental Health Rehabilitation Center and by a total of 300 the number of extended-care mental-retardation beds at Partlow Developmental Center, Albert P. Brewer Developmental Center, J. S. Tarwater Developmental Center, and Lurleen B. Wallace Developmental Center. The settlement agreement does not require closure of any state facilities.
Community Placement: By September 1, 2000, the department shall develop a plan, to be implemented between October 1, 2000, and September 30, 2003, to identify consumers to be out-placed from mental-illness facilities and to increase community-based placements and community-based services for them. By the same deadlines, the department shall also develop and implement a plan to identify consumers to be out-placed from mental-retardation facilities and to increase community-based placements and community-based services for them.
Public Education: The Department of Mental Health and Mental Retardation and the Alabama Disabilities Advocacy Program ("ADAP") have agreed to develop and implement a comprehensive, statewide plan to enhance the public's appreciation for the abilities, rights, and needs of the persons with mental illness and the persons with mental retardation who are served by the department.
Quality Improvement: The department has incorporated into its Policy and Procedures Manual compliance mechanisms and structures related to client treatment, care, rights, and services required by the 1986 consent decree and the Wyatt standards for adequate treatment of persons with mental illness and for adequate habilitation of persons with mental retardation. The settlement agreement requires the department to maintain its system-wide policy commitment to these minimum constitutional standards, to require that all facilities utilize the Policy Manual and expressly adhere to and implement all of these policies. Additionally, the settlement agreement requires that the department continue operating its Continuous Quality Improvement ("CQI") systems in order to monitor the quality of mental-health and mental-retardation services provided to persons served in state-operated psychiatric facilities and developmental centers. The department must maintain at least one full-time, trained CQI employee in the mental-illness divisional office, in the mental-retardation divisional office, and at each facility.
Safety and Protection: When there are allegations of abuse and neglect in mental-health and mental-retardation facilities, the department must conduct timely investigations, using standard operating procedures and trained employees. ADAP shall have a representative on each facility's investigation committee, and the department must provide specified notice and reports to ADAP concerning deaths, major personal injuries, suspected neglect, mistreatment, sexual assault, exploitation or abuse involving a departmental consumer.
Treatment and Habilitation: The department must develop, review, and permit ADAP to have input concerning individualized treatment plans for each resident at Bryce, Searcy, and Thomasville facilities. The department agrees to hire qualified professional consultants to study, and to recommend policies and procedures regarding treatment and discharge plans for all juveniles and for adults who have special needs relating to these diagnoses: a dual diagnosis of mental illness and mental retardation; traumatic or organic brain injury; self-injurious behavior; HIV/AIDS/ARC; deafness, blindness, or serious physical impairments. The department also agrees to hire qualified professional consultants to study and to make recommendations concerning the use of seclusion and restraint for consumers with self-injurious behavior at Bryce and Searcy Hospitals and the use and administration of psychiatric medications.
For residents at Wallace, Partlow, Brewer, and Tarwater facilities, the department must develop, implement, and permit ADAP to have input concerning individualized habilitation plans. The department also agrees to secure professional assessments and recommendations regarding both systemic and clinical matters relevant to the habilitation of persons with mental retardation.
Term of the Settlement Agreement: The settlement agreement became effective immediately upon entry of the court's May 5, 2000, order. The projected ending date for the agreement is not later than September 30, 2003, which is the final deadline for the State to complete certain obligations undertaken in the agreement. The court retains jurisdiction over this case for the limited purpose of enforcing the settlement agreement, and the agreement outlines procedures to resolve any compliance dispute.
III. DISCUSSION
Judicial policy favors voluntary settlement as the means of resolving class-action cases. See Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). However, "the settlement process is more susceptible than the adversarial process to certain types of abuse and, as a result, a court has a heavy, independent duty to ensure that the settlement is 'fair, adequate, and reasonable.'" Paradise v. Wells, 686 F. Supp. 1442, 1444 (M.D. Ala. 1988) (Thompson, J.) (quoting Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020 (1979)). This abuse can occur when, for example, "the interests of the class lawyer and the class may diverge, or a majority of the class may wrongfully compromise, betray or "sell-out' the interests of the minority." Id. Besides evaluating the fairness of the settlement agreement, the court has the duty to make sure that the settlement is not illegal or against public policy. See Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir. 1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889 (1986).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
A. Class Notice
As a preliminary matter, Rule 23(e) of the Federal Rules of Civil Procedure requires that the court ensure that all interested parties were informed of the settlement and had the opportunity to voice their objections. This issue is particularly salient in the instant litigation because so many members of the plaintiff class lack the capacity to advocate effectively on their own behalf. The court must therefore take special care to ensure not only that the class members themselves, but also their guardians, advocates, and other interested persons were notified of the proposed settlement agreement and given adequate opportunities to voice their opinions on the class members' behalf.
The court-approved notice was directed to "patients, residents, clients, and consumers served by the Alabama Department of Mental Health and Mental Retardation, their families, and legal guardians; individuals, groups, and organizations involved in advocacy or support for the rights of Alabama's citizens with mental illness and mental retardation; and interested members of the general public." The notice advised that the settlement agreement proposed "to dissolve the 1986 consent decree, settle the compliance disputes which have persisted since 1986, and finally bring to an end the federal court's long-term monitoring and control of the Alabama Department of Mental Health and Mental Retardation." In plain and simple language, the notice highlighted substantive terms and requirements, stated the projected effective, date and ending date for the settlement agreement, and outlined the federal court's role. Most importantly, the notice detailed alternative means for reviewing and securing copies of the complete agreement, identified official representatives for questions, specified the process for making objections, stated the date, time, and place for the fairness hearing, and authorized discretionary attendance or participation in the fairness hearing.
As shown by the joint evidentiary submission regarding notice of settlement agreement and timely filed responses, the parties disseminated the notices as stipulated in the court-approved plan. Notices were posted prominently in the living areas of all facilities covered by this agreement, and notices were hand-delivered to approximately 1,083 patients and residents while departmental advocates consulted with another 450 for whom hand-delivery was deemed clinically inappropriate. Mail-delivery notice was given to 695 persons identified as legal guardians or responsible parties for patients and residents while 17 notices were mailed to consumer and advocacy organizations with statewide constituencies.
The evidence also reflects newspaper publication of the notice in each of the cities housing a mental-health facility. Additionally, Commissioner Sawyer and counsel for the plaintiff class maximized the interested public's understanding of the settlement agreement with their joint presentations to advocacy groups in these same cities along with several individual presentations across the State as well as news releases and written communications.
The adequacy of the notice is reflected, in part, by the substantial number of written responses timely filed before the fairness hearing and by the attendance and participation at the fairness hearing. Forty-five comments were timely received, nine of which are in the nature of objections. The court also conducted a fairness hearing on May 4, 2000, which many class members and their advocates attended, and at which many took the opportunity to voice objections to the proposed settlement. The court concludes that these measures, taken together, were sufficient to satisfy the notice requirements of Rule 23(e).
B. Plaintiffs' Objections and Comments
"In determining whether a settlement is fair, adequate, and reasonable, the obvious first place a court should look is to the views of the class itself." Paradise, 686 F. Supp. at 1444. Determining those views and quantifying them in a manner that enables the court to determine whether the settlement is fair is, however, not always easy. The court should be careful "not (to] allow a majority, no matter how large, to impose its decision on the minority," Pettway, 576 F.2d at 1217; the court should be certain "that the burden of the settlement is not shifted arbitrarily to a small group of class members." Id. However, where the settlement provides for structural changes, with each class member having a virtually equivalent stake in the changes, and where there are no conflicts of interest among class members or among definable groups within the class, then the decision to approve the settlement "may appropriately be described as an intrinsically "class' decision in which majority sentiments should be given great weight." Id.
As noted above with respect to the notice issue, the court must take special care in this case to consider carefully the opinions of those who filed objections or otherwise responded to the notice of settlement agreement. This is because many of the class members, as consumers of mental-health services, are not well-equipped to advocate on their own behalf in this litigation. The court must therefore rely on family, friends, other advocates, and those class members who are capable of voicing their opinions to communicate the interests of those who cannot. For this reason, the court takes the opinions of these advocates very seriously.
The timely-filed comments in response to notice of the parties' settlement agreement reflect a substantial sentiment in favor of the settlement. As stated, of the 45 submissions, only nine are in the nature of objections, 10 are statements of support from consumer and advocacy organizations, 23 are letters of support from mental-health consumers and relatives, and three are too vague and generalized to categorize.
Also included in the parties' joint evidentiary submission are representative letters of support from a number of individuals and advocacy groups, including, but not limited to: R. Emmett Poundstone, III, a former Commissioner of, and a former legal counsel to, the Alabama Department of Mental Health and Mental Retardation; Ann Denbo, mother of a Bryce patient; Brenda Doss, President of The Arc of the United States; Friends of Bryce; Friends of Brewer Center; and Friends of the Wallace Center.
The objectors fall into three categories. First, three relatives of mental-illness or mental-retardation patients express alarm at the prospect of having their loved ones transferred from institutional facilities to community placements, fearing a reduced quality of care in the latter. A second category consists of three objectors whose concerns either lack specificity or relate only generally to the issues in controversy. The last category of objectors consists of three advocacy groups, and the court deems it appropriate to address their thoughtful concerns.
See Doc. no. 2108 (Carol E. Parker); Doc. no. 2082 (Reva Brown); Doc. no. 2100 (Emma Jean Coleman).
See Doc. no. 2062 (Robert Landis Williams); Doc. no. 2074 (Mrs. Jerry Delk, mother of a mental health patient and an advocate for the seriously mentally ill, who advocates implementation of the "1994 Community Service Officer Act."); Doc. no. 2060 (Eugenia Roos, a disabled senior citizen generally concerned that institutionalized citizens may not be well-protected in the absence of the Wyatt standards and the Wyatt consent decree).
On behalf of the Patrons of Partlow, a support organization for 214 parents or guardians of Partlow residents, President William Haas first expresses a viewpoint with which the court and the parties cannot disagree: that the settlement should "promot[e] the best possible care and quality of life for the Partlow (and other plaintiff class] residents." His organization's chief objection is to the provision of the agreement that requires that "a specific number (300]" of "persons with mental retardation receiving services at the four state institutions will be transferred to community facilities" over the term of the agreement. His organization proposes that the number, 300, be replaced with this: "those individuals who would benefit from community placement in terms of receiving care, services, and security that are better than that which they are currently receiving in an institution."
See Doc. No. 2079.
Vandy J. Copeland, the second objector, is parent of a resident at Tarwater as well as president of two support groups, Friends of Tarwater and Advocates for the Retarded. His objection, which he characterized at the fairness hearing as a "concern" rather than a true "objection," echoes those of Mr. Haas. Believing that many residents of Tarwater receive excellent and appropriate services in that institution, Copeland is concerned about the push toward outplacement, and seeks "guidelines and protection" to ensure the safety of mental-health consumers and the appropriate use of the projected census reduction in state facilities.
See Doc. no. 2113.
In contrast to Haas and Copeland, who worry about the over-use of community placement, the Arc of Morgan County — an 180-member advocacy organization for persons with mental retardation and developmental disabilities — complains that the settlement should address community placement for all 650 mental-retardation residents rather than only the 300 targeted. An additional concern, shared by all three objectors, relates to the possibility that insufficient funding will doom the projected census reduction in facilities and community placements, and transitional services.
See Doc. no. 2080.
C. Judgment of Counsel
"In addressing whether a settlement is fair, adequate, and reasonable, a court should also consider the judgment of experienced counsel for the parties." Paradise, 686 F. Supp. at 1446. Here, counsel for the plaintiffs argue strongly in favor of approval of the settlement agreement, and their views carry great weight with the court. The plaintiffs' attorneys have a significant background in disability law, and especially in mental-health law. Each of the two attorneys who have been the plaintiffs' liaison counsel in the last 15 years has extensive experience in litigating, negotiating, and implementing structural reforms on behalf of individuals with disabilities in institutional settings. The parties' settlement counsel are also experienced counsel with reputable records in federal class-action litigation. No one has questioned in any manner these attorneys' dedication to the plaintiff class. Counsel for amicus curiae United States also supports the settlement agreement, and the court takes their views, supported by many years of experience in this type of litigation, very strongly into consideration.D. Assessment of the Settlement Agreement
"Finally, with the above considerations in mind, the court should itself assess whether the consent decree is fair, adequate, and reasonable," Paradise, 686 F. Supp. at 1446, as well as legal. See id. at 1448. The court finds that the proposed settlement meets these standards. The agreement imposes requirements and provides avenues for the outplacement of Alabama's mental-health consumers into the community, while ensuring that such decisions are made on an individualized basis and with adequate safeguards of each consumer's health and safety. The agreement is supported by commitments from Governor Don Siegelman and Commissioner Sawyer to put the agreement in place and to secure the funding necessary to do so. The court is also reassured of the agreement's fairness by the role it affords both to the plaintiffs' families and guardians to participate in placement decisions for each patient, and to the plaintiffs' counsel to remain active in monitoring implementation efforts over the course of the next three years. Thus, while the court appreciates the concerns voiced by Mr. Haas and Mr. Copeland, the court is convinced by Commissioner Sawyer' s representation that the figures of "300" in the settlement reflect a reasonable assessment of the number of patients that should be eligible for community placement and that the actual placement of a patient in a community facility will not be driven by numbers but rather will be based on an individual assessment and approved only when it is in the best interest of the patient. Finally, the court also finds that the settlement agreement complies with state and federal law.
IV. CONCLUSION
For the foregoing reasons, the court concluded that the proposed settlement agreement is fair, adequate, and reasonable, and the joint motion for judicial approval of this agreement and termination of the litigation was granted. An appropriate judgment approving the settlement and granting the motion was, therefore, entered on May 5, 2000.