In their decision, the First Circuit court stated that they were not affording any deference to Judge Tauro's own interpretation of the landmark consent decree that he helped fashion and negotiate in this case. For 35 years, Judge Tauro was directly involved in litigation to improve the conditions and care for persons with mental retardation in Massachusetts. Between 1977 and 1993, when he formally disengaged from the case--now Ricci v. Patrick--Judge Tauro make numerous visits to Fernald and other facilities, conducted extensive hearings, issued hundreds of orders, and effectively oversaw all services provided by the Department of Mental Retardation. In 2007, Judge Tauro concluded that the Patrick administration's "global declaration" that it was closing Fernald amounted to a "systemic failure" to provide adequate care to Ricci class members living there. Incredibly, the First Circuit court gave no deference to this conclusion. The appeals court decision stated that the court was reviewing the matter "de novo," meaning it was not considering Judge Tauro's own experience in this long-running case. The court concluded there was no systemic failure and that Judge Tauro had no jurisdiction to enter his order that Fernald remain open. We contend that if anyone is in a position to know whether there has been a systemic failure, it is Judge Tauro, not the First Circuit Court of Appeals. Our petition to the Supreme Court, filed by Leon Friedman, an eminent attorney and constitutional law scholar, notes that the federal circuit courts are split over whether deference should be shown to the rulings of district court judges in consent decree cases. Several circuit courts have stated that deference should be shown due to the district court judges' "intimate understanding" of those cases (Fourth Circuit decision, for instance). The First Circuit Court itself cited a need for deference in an earlier case because of a judge's "special knowledge" of the parties' intentions. Other circuit courts have reached an opposite conclusion. This "irreconcilable conflict" among the circuit courts over the standard of review of district court decisions is one that we believe must be resolved. All nine justices will consider whether to accept our petition. The administration has 30 days to respond. The Supreme Court will decide sometime this spring whether to take the case. One reason we believe our chances of getting our case considered are better than average is that the Supreme Court's own rules clearly state that the high court will consider important matters in which appeals courts are in conflict. There can be no doubt that that is the case here. If the Supreme Court does take our case, we will be in a position to seek a stay to halt further transfers from Fernald pending the outcome of the appeal. That could take a year or more--a period of time during which the administration would be prohibited from transferring anyone from Fernald who does not want to leave. In the end, this legal issue is coming back to the man who took it up for the first time in the 1970s--Judge Tauro. He is the central figure in the continuing effort to improve care for the mentally retarded in Massachusetts. His role should not be disregarded. |
