Wyatt By And Through Rawlins v. Hanan

• Decision Date: 27 October 1994
• Docket Number: Civ. A. No. 3195-N.
• Citation: 868 F. Supp. 1356
• Parties: Ricky WYATT, by and through his aunt and legal guardian, Mrs. W.C. RAWLINS, Jr., et al., Plaintiffs, Diane Martin, et al., Plaintiff-Intervenors, v. Richard E. HANAN, as Commissioner of Mental Health and Mental Retardation, and the State of Alabama Mental Health Officer, et al., Defendants, United States of America, Amicus Curiae.
• Court: U.S. District Court — Middle District of Alabama

868 F. Supp. 1356

Ricky WYATT, by and through his aunt and legal guardian, Mrs. W.C. RAWLINS, Jr., et al., Plaintiffs Diane Martin, et al., Plaintiff-Intervenors, v. Richard E. HANAN, as Commissioner of Mental Health and Mental Retardation, and the State of Alabama Mental Health Officer, et al., Defendants United States of America, Amicus Curiae.

Civ. A. No. 3195-N.

United States District Court, M.D. Alabama, Northern Division.

October 27, 1994.

Fern Singer, Watterson & Singer, Birmingham, AL, James A. Tucker, ACLU of Alabama, Montgomery, AL, Ira A. Burnim, Andrew Bridge, Shelley Jackson, Claudia

Schlosberg, Ellen Harris, Mary Giliberti, Leonard S. Rubenstein, Bazelon Center for Mental Health Law, James M. Lichtman, Ropes & Gray, Washington, DC, Kathryn H. Sumrall, Jackson, Garrison & Sumrall, P.C., Birmingham, AL, for Ricky Wyatt, Glenda Brandner, David S. Schoel, Dr. D. A.R. Peyman, Joseph L. Moudry, Brenda N. Stacey, William Holden, Jr., Amelia B. Heath.

David Ferleger, Philadelphia, PA, Drew P. Baker, Reuben Wright Cook, Victoria Ann Farr, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, for Diane Martin, Mary Beth Parker, William Smith, Adelia Keebler, Michael Guins, Richard Mills, Kim Smelley, Frankie Hopkins, Kenneth Cook, Wayne Williams.

Mary Elizabeth Culberson, Office of the Atty. Gen., Gregory Dale Crosslin, Robert E. Sasser, James Darrington Hamlett, Clifton E. Slaten, Charles Brinsfield Campbell, Patrick C. Davidson, Sasser & Littleton, P.C., June O. Lynn, G.R. (Rick) Trawick, Milton J. Westry, Dept. of Mental Health & Mental Retardation, Montgomery, AL, Ricky J. McKinney, Watson, Harrison & deGraffenried, Tuscaloosa, AL, for Richard E. Hanan, Henry Steagall, Tom Brassell, Annie Laurie Gunter, Ken Wallis.

Kenneth E. Vines, U.S. Attorney's Office, Montgomery, AL, Deval L. Patrick, Robinsue Frohboese, Judith C. Preston, Tawana E. Davis, U.S. Dept. of Justice, Civ. Rights Div., Sp. Litigation Section, Washington, DC, amicus U.S.

ORDER

MYRON H. THOMPSON, Chief Judge.

The plaintiffs and the defendants in this action entered into a consent decree in 1986 governing the operation of the Alabama Department of Mental Health and Mental Retardation System.¹ In the 1986 decree, defendant state officials agreed to renew their efforts to comply with certain minimal constitutional standards for mental health and mental retardation facilities set forth by the court in companion opinions in 1972: Wyatt v. Stickney, 344 F.Supp. 373 (M.D.Ala.1972) (standards for mentally ill), 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), aff'd in relevant part, 503 F.2d 1305 (5th Cir.1974). In 1991, a new round of litigation began. On January 18, 1991, the defendants brought a motion for a finding that they have met their obligations under the 1986 decree and for an order terminating this lawsuit, and, on January 22, 1993, the plaintiffs brought a motion to enforce the 1986 consent decree. Both motions are set for trial in January 1995.

On September 27, 1994, the court entered an order² granting the motion of the United States of America to be reinstated in this lawsuit as amicus curiae.³ The United States sought to be reinstated based on "information and belief" that defendant state officials "are violating the Wyatt standards, which are now more than twenty years old, as well as the 1986 decree"; that they "have failed and are continuing to fail to provide community services to hundreds of class members who are presently confined in institutions and for whom community placement has been recommended or is otherwise appropriate"; and that they "have failed and are continuing to fail to make substantial progress in placing members of the plaintiff class in community facilities and programs as required by the 1986 decree."⁴ The federal government suggests that it can be of particular help to the court, first, by "presenting the testimony of leading mental health and mental retardation authorities in the United States" regarding these issues and, second, by assisting in "interpreting the requirements of Title II of the Americans with Disabilities Act, 42 U.S.C.A. §§ 12131-12165 (which requires a public entity to administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities) and the Department of Justice regulations implementing the Act."⁵

This cause is now before the court on the defendants' motion, filed September 29, 1994, for clarification of the September 27 order reinstating the federal government as amicus curiae.⁶ The defendants seek clarification as to whether the federal government is to take part as a "traditional" amicus curiae or a "litigating" amicus curiae. As will be discussed below, the court concludes that the federal government is reinstated to its historical role in this action, within the parameters set forth in this order.

I.

The court begins its analysis of this issue by noting that the federal government participated as an amicus in this case for over 20 years, until 1992 when it moved to withdraw because of its diminishing role in the litigation.⁷ The court granted the motion to withdraw, stating that it "would welcome a request by the United States in the future to renew its participation in this litigation."⁸ Prior to 1992, the federal government participated in many ways, including the following: submitting legal memoranda; conducting discovery, including participating in depositions and inspecting facilities; and participating in evidentiary hearings, including calling witnesses and cross-examining witnesses.⁹

The defendants, in drawing a distinction between what they call a "traditional" amicus and a "litigating" amicus, depend heavily on United States v. State of Michigan, 940 F.2d 143, 161-67 (6th Cir.1991). In that case, the Sixth Circuit Court of Appeals noted that, historically, an amicus participated as an "impartial friend of the court" and not as an "adversary party in interest in the litigation." Id. at 165 (emphasis deleted). Of course, as an impartial friend of the court, a party may still be adversarial; indeed, it must if it is to make its point. The critical point is that an impartial friend of the court steps out of the role of amicus when it essentially assumes the role of being not just adversarial but a "party in interest to the litigation." There has, therefore, "been a bright-line distinction between amicus curiae and named parties/real parties in interest." Id. at 165. Amici have not traditionally "been permitted to rise to the level of a named party/real party in interest." Id.

In Michigan, a group that had been denied intervention as a real party in interest was allowed to participate as amicus curiae. The amicus, however, "virtually assumed effective control of the proceedings in derogation of the original parties." 940 F.2d at 164. The Sixth Circuit found that this arrangement circumvented the Federal Rules of Civil Procedure—in particular, Rules 14 and 17 through 25. The amicus became "an intruder with equal litigating rights of a named party/real party in interest," taking control of the litigation from the plaintiff and defendant. Id. at 166. To allow an amicus curiae to enjoy this range of participation "would extend carte blanche discretion to a trial judge to convert the trial court into a free-wheeling forum of competing special interest groups capable of frustrating and undermining the ability of the named parties/real parties in interest to expeditiously resolve their own dispute." Id. Therefore, the bright line between an amicus and a named party centers around control of the litigation. The named parties should always remain in control, with the amicus merely responding to the issues presented by the parties. An amicus cannot initiate, create, extend, or enlarge issues. Further, an amicus has no right to appeal or dismiss issues. Id. at 165-66.

II.

The defendants would also have the court draw a bright line between the role of what they call a "traditional" amicus curiae and a "litigating" amicus curiae. This effort, which would essentially turn on nomenclature, would be meaningless. If an amicus — whether it goes by the title "litigating" amicus or under some other name — is essentially performing the role of a named party then, for the reasons given by the Sixth Circuit in Michigan, the amicus is not really an amicus.¹⁰ The more important question is how clearly the role of an amicus can, or should, be defined. The court believes that the concept of amicus curiae is flexible and that, as long as the amicus does not intrude on the rights of the parties, it can have a range of roles: from a passive one of providing information to a more active participatory one. In other words, although amici should not assume control of the litigation, they can take an active role in some cases beyond providing information. E.g., Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir.1982).

Whether the role of an amicus should be active or passive or should fall somewhere in between depends on a number of factors. The court has identified at least eight — in particular, where, as here, the amicus already has a history of participating in the litigation. First, the nature of the litigation and the issues presented: The role of an amicus will vary depending on whether the issues are of widespread public or narrow private concern and also on the procedural posture and complexity of a case. This lawsuit presents extremely complex issues of great public interest — the rights of the mentally ill and mentally retarded. Indeed, strong, wide, and independent public interest is an essential ingredient in this litigation because the persons whose rights are at issue are unlikely to be able to "voice" their concerns. Wyatt v. Horsley, 793 F.Supp. 1053, 1056 (M.D.Ala.1991). As this court has previously...