Jeff D. v. Andrus

• Decision Date: 23 October 1989
• Docket Number: No. 87-3586,87-3586
• Citation: 888 F.2d 617
• Parties: JEFF D.; Paula E.; John M.; and Dusty R., individually and on behalf of all minors similarly situated, by and through their next friend, Charles Johnson III, Plaintiffs-Appellants, v. Cecil D. ANDRUS; Richard Donovan; George Bachik; and William G. Gruzenski, in their official capacities and their successors in office, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 617

888 F.2d 617

JEFF D.; Paula E.; John M.; and Dusty R., individually and on behalf of all minors similarly situated, by and through their next friend, Charles Johnson III, Plaintiffs-Appellants, v. Cecil D. ANDRUS; Richard Donovan; George Bachik; and William G. Gruzenski, in their official capacities and their successors in office Defendants-Appellees.

No. 87-3586.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1988.

Decided Oct. 23, 1989.

Howard A. Belodoff, Idaho Legal Aid Services, Inc., Boise, Idaho, Charles Johnson, III, Johnson, Olson, Robison, Chartered, Pocatello, Idaho, for plaintiffs-appellants.

Michael De Angelo, Deputy Atty. Gen., Health and Welfare Div., Boise, Idaho, Jim Jones, Atty. Gen., State of Idaho, Boise, Idaho, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before NELSON, BOOCHEVER and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

I

A. STATEMENT OF FACTS

Appellants are over 2,000 indigent children, from 8 to 17 years of age, who suffer from emotional and mental handicaps. Evans v. Jeff D., 475 U.S. 717, 720 n. 1, 106 S.Ct. 1531, 1534 n. 1, 89 L.Ed.2d 747 (1986). Appellees are the Governor of Idaho, Director of the Idaho Department of Health and Welfare, Administrator of State Hospital South, and Clinical Director of State Hospital South. Many of these children have been confined to adult psychiatric wards of state hospitals and other facilities or in out-of-state institutions located far from their homes and families. These children have not received minimal education or mental health services as required by law. These children would benefit and recover more successfully if community mental health care services geared to juveniles were provided. The fact that some juveniles are sent out of state or to adult facilities has hindered their recovery. For example, State Hospital South (SHS) does not have a child psychiatrist or other qualified staff to provide specialized juvenile treatment and services. Some children were placed in facilities where contact with adult patients was unavoidable. Many of these adult patients were committed for illegal sexual conduct with children or were unfit to stand trial for criminal charges. As a result, some of the adult patients have had sexual encounters with or have inflicted injury on these children.

At age 15 appellant Jeff D. was committed by a state court to the custody of the director of the Idaho Department of Health and Welfare under the Idaho Mental Health Act. He was diagnosed as being emotionally disturbed and mildly retarded. He was initially housed at SHS, but was subsequently committed under the Youth Rehabilitation Act for criminal behavior and sent to the Youth Services Center, a facility of the Idaho Department of Health and Welfare.

At age 15 appellant Paula E. was committed by a state court to the custody of the director of the Idaho Department of Health and Welfare. She was diagnosed as suffering from a borderline personality disorder and mild mental retardation. She was sent to an out-of-state treatment facility but then returned to the State of Idaho and admitted to SHS.

At age 15 John M. was admitted to SHS for evaluation under the Youth Rehabilitation Act. He was diagnosed as suffering from emotional problems, possible mental retardation and other handicaps. He had experienced problems caused by antisocial behavior. After being placed at SHS for a short period of time, he was sent to an out-of-state facility which was under contract with the Idaho Department of Health and Welfare.

At 12 years of age, Dusty R. was committed to SHS for evaluation under the Youth Rehabilitation Act due to behavioral problems.

B. PROCEDURAL HISTORY

On August 4, 1980, the complaint in this case was filed on behalf of 2,000 indigent juveniles. On December 24, 1980, the parties stipulated to the numerosity requirement of Rule 23 as a first step towards class certification. On April 10, and later on November 4, 1981, the appellants submitted a motion for class certification with supporting briefs and affidavits. The appellees did not respond to any of these papers. On May 24, 1982, the district court conditionally granted class certification but instructed the parties to arrive at a class definition by negotiation. Between June 2 and September 7, 1982, the parties negotiated the meaning of categories of the classes of children involved in this litigation. On September 7th, the parties stipulated to class certification and the district court signed the order approving the stipulation (Stipulation). The Stipulation For Class Certification and Order reads as follows:

Come now the parties to the above entitled cause of action and hereby stipulate that the class in this matter may be defined as follows:

All Idaho juveniles under the age of eighteen (18) years who have been or will be diagnosed by the Idaho State Department of Health and Welfare as suffering from emotional or mental illness, either alone or in conjunction with another mental defect(s), and because of such condition are placed in, or committed to, the care and custody of the Idaho State Department of Health and Welfare as follows:

A. In residence at State Hospital South, Blackfoot, Idaho, or State Hospital North, Orofino, Idaho;

B. In residence in any institution outside of the State of Idaho; or

C. In residence in any facility for the treatment, detention or housing of such youths within the state of Idaho specifically excluding the Idaho State School and Hospital in Nampa, Idaho.

Thereafter, the parties settled the mental health claims and the district court approved the Stipulation Settling Mental Health Claims (Settlement Agreement) in an order dated April 28, 1983. The appellants appealed the fee waiver provision in the Settlement Agreement on May 26, 1983. On appellees' motion, the district court in an order dated August 12, 1983 suspended appellees' performance under the Settlement Agreement pending the appeal. On September 26th, 1983, this court vacated the district court's decision and ordered appellees to comply with the Settlement Agreement. The district court did not hold a compliance hearing and appellees did not comply with the Settlement Agreement.

A year later, on October 22nd, 1984, appellees obtained another order from the district court delaying any discovery and all matters regarding the case pending appeal of the fee waiver. On November 6, 1984, this court vacated the district court's order and ordered appellees to comply with the Settlement Agreement, and on December 3, 1984, we reversed the district court on the fee waiver provision and ordered the Settlement Agreement enforced. Jeff D. v. Evans, 743 F.2d 648 (9th Cir.1984). Appellees petitioned for certiorari the issue of fee waiver to the U.S. Supreme Court and at the same time, sought to exclude some juveniles from the class definition in a Motion to Clarify Scope of Class filed in the district court. The district court refused to consider appellees' pending motion and refused to enforce the Settlement Agreement pending the review of the fee waiver provision by the Supreme Court. For the third time, on September 30, 1985, this court ordered the appellees to comply with the Settlement Agreement and held that the district court retained jurisdiction under Fed.R.Civ.P. 62(c) during the pendency of the Supreme Court appeal. Pursuant to our order, the appellants renewed their motion for compliance and the district court held a hearing on the matter. At the hearing, appellees stated that unless the district court excluded class members as outlined in their Motion to Clarify Scope of Class, they would have to admit noncompliance with the Settlement Agreement.

On April 21, 1986, the U.S. Supreme Court upheld the fee waiver provision, finding that the district court did not abuse its discretion in "upholding a fee waiver which secured broad injunctive relief, relief greater than that which appellants could reasonably have expected to achieve at trial." Evans v. Jeff D., 475 U.S. 717, 743, 106 S.Ct. 1531, 1545, 89 L.Ed.2d 747 (1986). After receiving supplemental briefs on the issue, on December 31, 1986, the district court ordered (Clarification Order) that the class members which the appellees sought to remove from the class definition be excluded from the benefits of the Settlement Agreement. The plaintiffs timely appealed from the district court's Clarification Order, (this Case No. 83-3586), and we have jurisdiction under 28 U.S.C. Sec. 1291 and Sec. 1292(a)(1). On November 18, 1987, in response to plaintiffs' motion for a compliance hearing as to the undisputed members of the class, the district court ruled it had been divested of jurisdiction by the notice of appeal from the December 31st Clarification Order. Then plaintiffs timely appealed that ruling in Case No. 87-4377. The appeals were consolidated and on November 16, 1988, we issued an order in appeal No. 87-4377 directing the district court to conduct a compliance hearing as to the undisputed members of the class and issued the mandate immediately, retaining jurisdiction over all future matters arising out of this case.

C. STANDARD OF REVIEW

Appellees argue we must apply the abuse of discretion standard under Rule 23(c)(1) which provides that the district court may alter or amend the class "before the decision on the merits." That rule is inapplicable here. The district court had on April 28, 1983, entered a "final judgment" in the form of an order approving the Stipulation Settling Mental Health Claims (Settlement Agreement) and contrary to appellees' assertion, except in the face of egregious error, it could not alter the class under Rule 23. Fed.R.Civ.P. 23(c)(1); Officers For Justice v. Civil Serv. Com'n., Etc., 688 F.2d 615, 633 (9th Cir.1982), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983). Appellees, in the alternative,...