DC Judge says case over district's failure to provide for deinstitutionalized disabled citizens will continue

From The Washington Post:

D.C. Attorney General Peter Nickles offered April 7 to restart settlement talks in a three-decade-old class action lawsuit over the city's care of people with developmental disabilities.

The conciliatory step by the city's top lawyer came at the conclusion of an otherwise contentious hearing called by federal judge Ellen Segal Huvelle, who earlier in the day rejected the District's demand to end the case, Evans v. Fenty.

Huvelle has been urging the District to settle with the plaintiffs, who have successfully argued that the District has systematically disregarded a court order and demanded that an outside administrator be brought in to run the Department on Disability Services (DDS).

But little progress has been made since the judge's latest entreaty a few months ago. Last week, the District submitted a unilateral plan to exit the case, prompting Huvelle to call Wednesday's hearing and demand that Nickles appear in person.

Nickles stood to address the judge and thanked her for the invitation, starting a series of exchanges between two of the more blunt members of the D.C. Bar.

Nickles, who has spearheaded the city's effort to end the Evans case and other long-running class actions over social services and special education, has been faulted by more than one judge for his hard-line legal tactics. In court, he took issue with Huvelle's critique. "This castigation of our effort or my efforts is unseemly, I think," Nickles told Huvelle.

Huvelle, meanwhile, repeatedly reminded Nickles that the plaintiffs had proved their case of noncompliance, and that consequently the District was in no position to dictate the terms of a settlement. "The problem is, you've lost the case," she said.

The suit was filed in 1976 over conditions at Forest Haven (pictured in its current state of disrepair), which was the city's institution for people with severe developmental disabilities. Forest Haven was closed almost two decades ago, but the city failed to provide adequate services to many former Forest Haven residents, and the litigation has lived on.

Lawyers for the plaintiffs, former Forest Haven residents, sought a receiver to run the agency. The court's special masters have proposed a monitor who could enforce compliance with the court's orders.

But as they try close the door on the class actions, Nickles and Mayor Adrian M. Fenty have resisted anything that would appear to be a step backward, even as DDS struggles to meet the benchmarks set out in a 2001 court ruling. To Nickles, the appointment of an outside administrator for DDS would be tantamount to a court takeover of the department.

Since the U.S. Supreme Court said last year that lower courts should take a more flexible approach to cases aimed at reforming agencies and institutions, the District has aggressively argued that the decision mandates a swift end to Evans v. Fenty and other similar lawsuits it faces.

But this week, two federal judges, including Huvelle, disagreed.

In her 84-page opinion, issued Wednesday, Huvelle said the circumstances of Evans were decisively different from those in the case considered by the Supreme Court, Horne v. Flores. She said the District has shown a long history of noncompliance and raised "a serious question about whether the defendants are even trying to comply with these orders."

On Monday, the judge in a separate child-welfare lawsuit issued his long-awaited decision on the District's effort to the end that case, known as LaShawn v. Fenty. In his opinion, Judge Thomas E. Hogan said the city had not met the standards set out last year by the Supreme Court.

Hogan rejected the city's legal argument and found Fenty in civil contempt for his failure to involve the plaintiffs in the selection of a new child-welfare director, as the administration has pledged to do.

The District has already noted its intent to appeal both decisions, and for most of Wednesday's proceeding, it appeared that Huvelle's efforts to encourage a settlement were going nowhere. Unless the plaintiffs were willing to consider a settlement that did not involve an outside administrator, the District was unwilling to talk, Nickles said.

But near the end of the hearing, an opening seemed to emerge, and Nickles said the city would have a proposal to present to the other side later this month. The judge suggested that cooler heads take the lead in negotiations.

"I don't know where that leaves you, Mr. Nickles," said Huvelle, who suggested Nickles enlist his well-regarded deputy, Eugene A. Adams, for the job.

"I'll find some cooler heads," Nickles replied.

But afterward outside the courtroom, he made clear he wasn't quite ready to defer.

In an interview with reporters, Nickles said he would be meeting with Stephen Hanlon, one of the Holland & Knight attorneys who, with the advocacy group University Legal Services, represents the plaintiffs.