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Ligas v. Maram

April 7, 2010

STANLEY LIGAS, BY HIS SISTER AND NEXT FRIEND, GINA FOSTER, ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
BARRY S. MARAM, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ILLINOIS DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

Pending before the court are Burton A. Brown and Barbara A. Reilly's "Motion to Intervene" (Dkt. No. 446) ("Brown/Reilly Motion")) and "Proposed Intervenors' Motion for Limited Intervention Pursuant to Fed. R. Civ. P. 24" (Dkt. No. 464 ("Group Motion")). For the reasons set forth below, the Brown/Reilly Motion is dismissed as moot and the Group Motion is granted.

BACKGROUND

The Named Plaintiffs*fn1 in this lawsuit are individuals with mental retardation and other developmental disabilities who seek to enforce their statutory rights to long-term care services from the State of Illinois in the most integrated setting appropriate to their needs, as set forth by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999). (Dkt. No. 436 ("2d Am. Compl.") ¶¶ 1-8.) The Named Plaintiffs wish to proceed on behalf of themselves and on behalf of "all others similarly situated." (Id. ¶ 1.) Although their initial attempt to certify a class in this lawsuit was successful (Dkt. No. 85), the court ultimately decertified the class on July 7, 2009, after thousands of class members submitted written and oral objections to the first Proposed Consent Decree. (Dkt. No. 420 ("7/7/09 Order").) The court's July 7, 2009 ruling was based on its finding that "commonality and typicality do not exist among class members." (7/7/09 Order 3.)

With a new class definition in hand, and a Second Amended Complaint on file (Dkt. No. 436), the Named Plaintiffs and the State Defendants*fn2 have again sought class certification and preliminary approval of a second proposed consent decree. (See Dkt. No. 455 ("Class Cert. Mot."); Dkt. No. 456 ("Class Cert. Mem."); and Dkt. No. 456, Ex. A ("Amended Proposed Consent Decree").) The movants wishing to intervene in this lawsuit are approximately 2,000 previous objectors who live in intermediate care facilities for people with developmental disabilities ("ICF-DD") or are on a waiting list for an ICF-DD, as well as at least one individual who currently resides in a community integrated living arrangement ("CILA") (collectively "Proposed Intervenors").*fn3 The Proposed Intervenors seek to intervene "for the limited purpose of (1) participating in the Court's consideration of the Joint Motion for Settlement Class Certification, Preliminary Approval of Consent Decree, and Approval of Notice Plan . . . and (2) filing objections to and participating in any fairness hearing on the proposed consent decree." (Dkt. No. 465 ("Group Mem.") 1.)

ANALYSIS

A non-party has a right to intervene in an action if (1) the non-party files a timely motion to intervene; (2) the movant claims an interest related to the subject matter of the action; (3) disposition of the action threatens to impair or impede the movant's ability to protect that interest; and (4) the movant's interest is inadequately represented by the existing parties. Ligas ex rel. Foster v. Maram, 478 F.3d 771, 773 (7th Cir. 2007) (citing United States v. BDO Seidman, 337 F.3d 802, 808 (7th Cir. 2003)).*fn4 "A failure to establish any of these elements is grounds to deny the petition." Id. It is undisputed that the Group Motion has been timely filed.

I. Interest in Proposed Class Settlement

The Proposed Intervenors first contend that their interest in this litigation is "to protect their rights under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), as interpreted by Olmstead v. L.C., 527 U.S. 581 (1999)." (Dkt. No. 470 ("Group Reply") 1.) In Olmstead, the Supreme Court held that "under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when [1] the State's treatment professionals determine that such placement is appropriate, [2] the affected persons do not oppose such treatment, and [3] the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." Olmstead, 527 U.S. at 607. The Proposed Intervenors argue that their interest lies in enforcing "the mandate of Olmstead . . . that the needs of Intervenors and other ICF-DD residents be considered in determining the State's obligation to provide the 'community-based' services required by the proposed consent decree." (Group Mem. 2.) The court finds that the Proposed Intervenors' reliance on Olmstead is well placed.

Olmstead's requirement that the court consider the needs of other individuals with mental disabilities must be read in its full intended context. The relevant portions of Olmstead address the government officials' asserted defense-that providing the community-based services requested by the plaintiffs would "fundamentally alter" the nature of the services provided by the State to individuals with mental disabilities. Id. at 594-95; see also 28 CFR § 35.130(b)(7). Accordingly, the Supreme Court's instruction in Olmstead that the district court "consider [on remand], in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State's obligation to mete out those services equitably" applies because the district court was charged with "evaluating [the] State's fundamental-alteration defense." Id. at 597.*fn5

The State Defendants in this case have not raised a fundamental-alteration defense. Nevertheless, this court reads Olmstead to grant the Proposed Intervenors a right to intervene in this litigation. The Justices writing for the Olmstead Court were very much aware of competing claims on limited State resources. For example, Justice Ginsburg's plurality opinion notes the States' obligation "[t]o maintain a range of facilities and to administer services with an even hand." Id. at 605. Similarly, Justice Kennedy's concurring opinion recognizes the "continuing challenge" that States face "to provide . . . care in an effective and humane way," and it is in this context that he stresses the "central importance" of deferring to decisions made by State policymakers. Id. at 608-10. Accordingly, the Olmstead Court directed the lower courts to "tak[e] into account the resources available to the State and the needs of others with mental disabilities" if the fundamental-alteration defense is raised. Olmstead, 527 U.S. at 607. Because the State Defendants apparently do not believe it is proper, necessary, or advisable to raise the fundamental-alteration defense at this point in the litigation,*fn6 this court simply has no basis to address the third prong of the Olmstead equation. Yet, a settlement that does not consider the needs of the Proposed Intervenors-or a settlement promising relief to the Named Plaintiffs that the State admittedly cannot deliver-would run contrary to the rationale set forth in Olmstead. Accordingly, the court finds that the Proposed Intervenors have a right under Olmstead to have their needs considered before the Amended Proposed Consent Decree is approved. The interest the Proposed Intervenors have in this litigation is "direct, significant, and legally protectable." Solid Waste Agency of N. Cook County v. U.S. Army Corp of Eng'rs, 101 F.3d 503, 506 (7th Cir. 1996).

The State defendants argue that the Proposed Intervenors are prohibited from intervening in this case under Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982). Although relevant to this court's analysis, Wade is distinguishable. In Wade, the decision most directly impacting the rights of the proposed intervenors had already been made by the U.S. Department of Transportation. The only issue pending before the court was whether the agency's decision comported with relevant statutory requirements. Id. at 185. Accordingly, the Seventh Circuit determined that "the governmental bodies charged with compliance can be the only defendants." Id. In this case, the decision most directly impacting the rights of the Proposed Intervenors- whether to approve the Amended Proposed Consent Decree-has yet to be made. Pursuant to Rule 23(e)(2), this court will be obliged to evaluate the fairness of the Amended Proposed Consent Decree and, to satisfy itself that the Olmstead mandate is being fulfilled, the court believes hearing from the Proposed Intervenors is necessary.

The court further finds that the pending litigation threatens to impair the Proposed Intervenors' interest in having their needs considered before the Amended Proposed Consent Decree is approved. In Olmstead, the Supreme Court recognized that the needs of individuals with mental disabilities are often in conflict. Olmstead, 527 U.S. at 597. The balance set forth by the Olmstead Court implicitly acknowledges that the needs of one group can be threatened by the needs of another. In this case, the claims in the Second Amended Complaint address only the needs of the Named Plaintiffs and others who similarly desire community-based services. The Amended Proposed Consent Decree requires that the State Defendants "implement sufficient measures . . . to provide Community-Based Settings and Community-Based Services pursuant to the Decree" (Decree ¶ 4), but does not include any specific mention of the Proposed Intervenors' need for State resources. Moreover, the Amended Proposed Consent Decree is slated to remain in effect "for at least nine (9) years." (Decree ¶ 45.) If the needs of the Proposed Intervenors are not considered before the Amended Proposed Consent Decree is approved, the Proposed Intervenors' future ability to have their needs considered in balance with the State's obligations to other individuals with mental disabilities would be significantly impaired "as a practical matter." Fed. R. Civ. P. 24(a)(2).

Finally, the court finds that the Proposed Intervenors' interest is not adequately represented by the existing parties. It is uncontested that the Named Plaintiffs do not represent the Proposed Intervenors' interest. This leaves to the State Defendants the task of representing the Proposed Intervenors' interest in this litigation. As representatives of "governmental bod[ies] charged by law with protecting the interests of the [P]roposed [I]ntervenors," the State Defendants are "presumed to adequately represent [the Proposed Intervenors'] interests unless there is a showing of gross negligence or bad faith." Ligas, 478 F.3d at 774. In other words, "'more is needed than a presumption of inadequacy based on the diversity' of the State Defendants' interests." (Dkt. No. 60 ("12/22/05 ...


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