Association for Retarded Citizens of North Dakota v. Olson

• Decision Date: 08 September 1983
• Docket Number: Nos. 82-1798,82-2545 and 82-2423,82-2365,s. 82-1798
• Citation: 713 F.2d 1384
• Parties: ASSOCIATION FOR RETARDED CITIZENS OF NORTH DAKOTA; Lindley Black, by his father, Sidney Black; Bradley Cossette, by his mother, Denise Cossette; Richard Schneiderhan, by his mother and guardian Elmira Schneiderhan; Naomi Jordison, by her father, Timothy Jordison; Kelli Moriarty, by her mother and guardian, Jacquelyn Moriarty; and Philip Dechant, by his mother and guardian, Lois Dechant: on behalf of themselves and all others similarly situated, Appellees, v. Allen I. OLSON, Governor of the State of North Dakota; Alton L. Lick, Director of Institutions; Milton Wisland, Superintendent of Grafton State School; Richard Charrier, Assistant Superintendent of Grafton State School and Chief Administrative Office of San Haven Division; Dr. M.A.K. Lommen, State Health Officer, Department of Health; Sam Ismir, Director, Division of Mental Health, Department of Human Services; Darvin Hirsch, Director, Division of Developmental Disabilities, Department of Human Services; Carroll Burchinal, Director of Department of Vocational Education; Dr. Joseph Crawford, Superintendent of Public Instruction; Gary Gronberg, Director of Special Education Division of Department of Public Instruction; Dale Moug, Acting Director Department of Human Services; James O. Fine, Director of Division of Vocational Rehabilitation, Department of Human Services; Marcellus Hartze, Director of Division of Community Services, Department of Human Services, Appellants. (Three Cases) ASSOCIATION FOR RETARDED CITIZENS OF NORTH DAKOTA; Lindley Black, by his father, Sidney Black; Bradley Cossette, by his mother, Denise Cossette; Richard Schneiderhan, by his mother and guardian Elmira Schneiderhan; Naomi Jordison, by her father, Timothy Jordison; Kelli Moriarty, by her mother and guardian, Jacquelyn Moriarty; and Philip Dechant, by his mother and guardian, Lois Dechant: on behalf of themselves and all others similarly situated, Appellants, v. Allen I. OLSON, Governor of the State of North Dakota; Alton L. Lick, Direc
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1384

713 F.2d 1384

ASSOCIATION FOR RETARDED CITIZENS OF NORTH DAKOTA; Lindley

Black, by his father, Sidney Black; Bradley Cossette, by

his mother, Denise Cossette; Richard Schneiderhan, by his

mother and guardian Elmira Schneiderhan; Naomi Jordison, by

her father, Timothy Jordison; Kelli Moriarty, by her mother

and guardian, Jacquelyn Moriarty; and Philip Dechant, by

his mother and guardian, Lois Dechant: on behalf of themselves and all others similarly situated, Appellees, v. Allen I. OLSON, Governor of the State of North Dakota;

Alton L. Lick, Director of Institutions; Milton Wisland,

Superintendent of Grafton State School; Richard Charrier,

Assistant Superintendent of Grafton State School and Chief

Administrative Office of San Haven Division; Dr. M.A.K.

Lommen, State Health Officer, Department of Health; Sam

Ismir, Director, Division of Mental Health, Department of

Human Services; Darvin Hirsch, Director, Division of

Developmental Disabilities, Department of Human Services;

Carroll Burchinal, Director of Department of Vocational

Education; Dr. Joseph Crawford, Superintendent of Public

Instruction; Gary Gronberg, Director of Special Education

Division of Department of Public Instruction; Dale Moug,

Acting Director Department of Human Services; James O.

Fine, Director of Division of Vocational Rehabilitation,

Department of Human Services; Marcellus Hartze, Director of

Division of Community Services, Department of Human

Services, Appellants. (Three Cases)

ASSOCIATION FOR RETARDED CITIZENS OF NORTH DAKOTA; Lindley

Black, by his father, Sidney Black; Bradley Cossette, by

his mother, Denise Cossette; Richard Schneiderhan, by his

mother and guardian Elmira Schneiderhan; Naomi Jordison, by

her father, Timothy Jordison; Kelli Moriarty, by her mother

and guardian, Jacquelyn Moriarty; and Philip Dechant, by

his mother and guardian, Lois Dechant: on behalf of themselves and all others similarly situated, Appellants, v. Allen I. OLSON, Governor of the State of North Dakota;

Alton L. Lick, Director of Institutions; Milton Wisland,

Superintendent of Grafton State School; Richard Charrier,

Assistant Superintendent of Grafton State School and

Chief Administrative Office of San Haven Division;

Dr. M.A.K. Lommen, State Health Officer, Department of

Health; Sam Ismir, Director, Division of Mental Health,

Department of Human Services; Darvin Hirsch, Director,

Division of Developmental Disabilities, Department of Human

Services; Carroll Burchinal, Director of Department of

Vocational Education; Dr. Joseph Crawford, Superintendent

of Public Instruction; Gary Gronberg, Director of Special

Education Division of Department of Public Instruction;

Dale Moug, Acting Director Department of Human Services;

James O. Fine, Director of Division of Vocational

Rehabilitation, Department of Human Services; Marcellus

Hartze, Director of Division of Community Services,

Department of Human Services, Appellees.

Nos. 82-1798, 82-2365, 82-2545 and 82-2423.

United States Court of Appeals Eighth Circuit.

Submitted March 17, 1983.

Decided Aug. 12, 1983.

Rehearing Denied Sept. 8, 1983.

Kapsner & Kapsner, Michael J. Williams, John C. Kapsner, Bismarck, N.D., Mary Deutsch Schneider, Fargo, N.D., for appellees.

Robert O. Wefald, Atty. Gen., State of N.D., Daniel Hovland, Allan Benson, Asst. Attys. Gen., Albert A. Wolf, Sp. Asst. Atty. Gen., Bismarck, N.D., for appellants.

Before BRIGHT and JOHN R. GIBSON, Circuit Judges, and HANSON, Senior District Judge. ^*

BRIGHT, Circuit Judge.

Allen I. Olson, the Governor of North Dakota, and twelve other North Dakota State officials (hereinafter "the State") appeal three orders of the district court ¹ directing the State to take specific actions to rectify violations of the federal and state constitutional and statutory rights of residents of two North Dakota facilities for mentally retarded citizens and awarding attorneys' fees and costs. The Association of Retarded Citizens of North Dakota (ARC) cross-appeals the district court's failure to find a right to education for handicapped children aged three to five under the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq. For the reasons outlined below, we: (1) affirm the district court on the merits; (2) modify and, as modified, affirm the district court's award of attorneys' fees and costs; and (3) remand to the district court for further proceedings as may be appropriate.

We summarize our rulings as follows:

1) the district court did not err in refusing to abstain from the case;

2) the district court order of August 31, 1982, which requires, inter alia, the State to reduce the number of handicapped individuals in state institutions and improve the quality and delivery of services to the handicapped, does not impermissibly interfere with North Dakota's operation of its facilities and programs for the mentally handicapped;

3) the State has a duty under North Dakota law to provide appropriate treatment, services and habilitation in the least restrictive appropriate setting to both voluntarily and involuntarily committed mentally handicapped citizens;

4) should implementation of the program ordered by the district court for the reduction of residents and improvement of facilities at state institutions for the mentally handicapped prove impossible or impractical, the district court retains continuing jurisdiction to make any necessary and appropriate changes;

5) the district court did not err in interpreting federal and state law, as it existed at the time of the district court's ruling, as not requiring mandatory pre-school education for handicapped children aged three to five in North Dakota; however, the North Dakota legislature has recently enacted a statute which imposes mandatory pre-school education for handicapped children in this age group; and

6) attorneys for ARC should be awarded $455,738.13 for attorneys' fees and costs in the district court; this is a reduction from the $521,162.70 awarded by the district court, 561 F.Supp. 495.

I. Background.

ARC is a nonprofit corporation which was incorporated in North Dakota in 1957, and consists of approximately 1,200 parents and guardians of mentally retarded citizens together with mental retardation professionals, concerned citizens, and the mentally retarded citizens themselves. The ARC and six mentally retarded citizens of North Dakota brought this action seeking declaratory and injunctive relief regarding treatment and conditions in the Grafton and San Haven state facilities for the retarded, and alternatives to placement in those facilities. ARC sought relief under the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution; the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq.; 42 U.S.C. § 1983; and state law. The defendants are North Dakota public officials responsible for the care and condition of mentally retarded citizens.

ARC filed its complaint on September 26, 1980. On January 13, 1981, the district court granted class certification. The plaintiff class consists of ARC and all persons who, as of September 26, 1980, and at any time thereafter, have been or may become residents of Grafton or San Haven. The court also granted the State's first motion to stay the proceedings to allow the North Dakota Legislative Assembly the opportunity to resolve independently the issues raised. The district court subsequently lifted the stay, and on May 29, 1981, State officials made separate motions to abstain and/or dismiss the lawsuit. The district court denied the motions on August 28, 1981.

On September 8, 1981, the State filed an answer admitting numerous deficiencies in state institutions for the retarded. In an attempt to remedy some of the more critical problems at the institutions, the district court, on November 4, 1981, issued an interim order and appointed a court observer to monitor compliance with the order. The district court, on December 16, 1981, also awarded interim attorneys' fees to the ARC in the amount of $183,197.50.

The trial commenced on January 27, 1982, and continued intermittently for thirty-one days until May 14, 1982. More than fifty expert and lay witnesses testified. During the trial, ARC filed a motion for order to show cause why the State should not be held in contempt of court for noncompliance with certain provisions of the district court's interim order of November 4, 1981, and for failure to pay the attorneys' fees awarded by the December 16, 1981 order. The district court held a hearing regarding State officials' admitted noncompliance with the December 16 order and the staffing additions of the November 4 order. On May 7, 1982, the district court issued an order which refused to hold the State in contempt for failure to comply with its orders. However, the district court ordered State officials to make the staffing additions or transfer residents to other facilities. Further, the court ordered that ARC attorneys receive interest on the interim award of $183,197.50 at the rate of fourteen percent per annum, and that attorneys for ARC receive an additional allowable expense of all lawful interest paid or incurred by counsel to loaning agencies for operational loans made in an amount not exceeding the principal sum.

The trial concluded on May 14, 1982. On May 17, 1982, the State filed a motion to alter or amend the district court's order awarding fourteen percent interest on the interim award of attorneys' fees and interest on operational loans incurred by counsel. The district court denied the motion.

On August 31, 1982, the district court issued its memorandum and order on the merits, 561 F.Supp. 473. The district court found, inter alia, that: on a per person basis, in 1980, North Dakota spent fewer dollars per resident than any other state in the United States; as of June 30, 1981, the national average per diem...