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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT * * * * * * * * * * * *Civil Docket * No. 3:03CV118(MRK) LORI RAYMOND, ET AL, * Plaintiffs * * January 22, 2004 vs. * 2:40 o'clock p.m. * JOHN ROWLAND, ET AL, * Defendant * * * * * * * * * * * * * *New Haven, Connecticut ORAL ARGUMENT

BEFORE THE HONORABLE MARK R. KRAVITZ UNITED STATES DISTRICT JUDGE 11 Appearances: For the Plaintiffs: GREGORY LEE BASS, ESQ. 12 Greater Hartford Legal Aid 999 Asylum Avenue 13 Hartford, CT 06105-2465 SHIRLEY J. BERGERT, ESQ. 14 Connecticut Legal Services 872 Main Street,PO Box 258 15 Willimantic, CT 06226 16 For the Defendants: 17 18 19 20 HUGH BARBER, ESQ. Attorney General's Office Health & Human Services 55 Elm Street, PO Box 120 Hartford, CT 06141-0120 PETER L. BROWN, ESQ. Attorney General's Office 55 Elm Street, PO Box 120 Hartford, CT 06141-0120

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21 Court Reporter: 22 23

Thea Finkelstein RMR, CRR 141 Church Street New Haven, CT 06510 (203) 777-3487

24 Proceedings recorded by mechanical stenography, transcript 25 produced by computer.

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THE COURT: Good afternoon. Please be seated.

2 Okay, we are here on Raymond versus Rowland 03CV118(MRK). We 3 have a number of motions before the Court. Let me just get 4 organized here. 5 6 Could counsel identify themselves for the record? MR. BASS: Your Honor, Greg Bass arguing for

7 plaintiffs. 8 9 10 11 THE COURT: Good afternoon, Mr. Bass. MS. BERGERT: Shirley Bergert with Mr. Bass. THE COURT: Good afternoon, Miss Bergert. MR. BROWN: Good afternoon, your Honor, Assistant

12 Attorney General Peter Brown for defendants. 13 14 THE COURT: Good afternoon, Mr. Brown. MR. BARBER: And Hugh Barber for the defendants.

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THE COURT: Good afternoon, Mr. Barber. MR. BARBER: Good afternoon. THE COURT: Okay. I have read all of your papers

18 and fundamentally, we are here to talk about the motion to 19 dismiss and the motion for class certification but there also 20 came in last week or so a motion for extension of time and 21 adjustment of scheduling order and I wanted to address that 22 first, if I could. Is that okay? 23 24 MR. BASS: Certainly, your Honor. THE COURT: And in particular, my question is --

25 you may want to not be on the record for this and if that's

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1 so, we can discuss it in my chambers -- but I did notice that 2 in part, the request for extension of time was due to ongoing 3 active settlement negotiations and that naturally raised in 4 my own mind the question of whether I should be following 5 this argument, turning immediately to this oral argument, 6 whether they would turn immediately to the settlement or 7 letting the settlement take its own course. 8 If somebody wants to address that, I would be happy

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9 to hear. 10 MR. BASS: It is true, the plaintiffs have

11 sporadically been engaging in intensive settlement 12 negotiations. They have not been constant but they have been 13 occurring, the latest bout of which has been written comments 14 to the attorney general's office on behalf of the defendants 15 commenting on proposed provisions to the universal manual, 16 which is a guide that the Department of Social Services uses. 17 They sent us draft revisions that would purportedly

18 take into account reasonable needs of recipients, we 19 submitted detailed comments in response and they're currently 20 reviewing them. 21 It's plaintiff's position that indeed argument

22 today on these pending motions might assist in the process of 23 settlement. We suggested to opposing counsel possibility of 24 mediation through Magistrate Garfinkel. We have not come to 25 terms on that as yet.

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THE COURT: Mr. Brown, do you have anything to add

2 to that?

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MR. BROWN: No, your Honor. In fact, we did

4 receive comments from plaintiff's counsel last week and we've 5 provided those to our client agency who's reviewing that. I 6 don't think that we would take issue with the argument that 7 hearing the arguments on the motions today and proceeding to 8 have a decision on that, wouldn't argue that that would not 9 help to move the process along so I think we should just 10 continue and stay the course. 11 THE COURT: Okay. That's fine. Then I guess my

12 question becomes: Is this essentially shoving out of 13 everything three months, is does that contemplate a 14 three-month hiatus while settlement discussions are active or 15 simply saying that, hey, you know, we've been preoccupied 16 with not only -- with trying to settle it and therefore we 17 haven't made as much progress on these other matters that we 18 should have? 19 MR. BASS: We are not asking for a three-month

20 hiatus. What we've also been doing in the interim is 21 engaging in intensive discovery. We recently completed 22 several depositions, we have a deposition pending next week 23 for Commissioner Patricia Wilson-Coker herself and regionally 24 based depositions beyond that are contemplated. We are on a 25 settlement track and plaintiff's discovery track as well. We

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1 don't contemplate a hiatus. 2 THE COURT: Certainly if you found that I keep

3 moving on my end, I think I would suggest you keep moving on 4 your end so that if you are going to go down a litigation and 5 a settlement track, it be not sequential but simultaneous, 6 okay? 7 8 MR. Brown: Yes, your Honor. THE COURT: I'll just look through these dates but

9 I expect to provide you with an extension but I would prefer 10 not to be requested for another extension, okay? 11 12 MR. Brown: Certainly, your Honor. THE COURT: All right. Then I will deal with that

13 shortly. 14 15 16 Do you want to take up the motion to dismiss first? MR. Brown: Yes, your Honor. THE COURT: I've read the stuff. Basically the way

17 I would like to do these arguments is to focus on really my 18 questions more than anything. As I understand your 19 opponent's argument, Mr. Brown, they say that, they say a

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20 number of things but they say that, one, they say that even 21 if Ms. Wilson-Coker, the department, were subject to some 22 orders, they can't be sure that the governor wouldn't 23 override them or not fund them properly to be implemented. 24 And in particular, I guess they point to the fact

25 that the problems that they are seeking to ameliorate in

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1 part, I gather, maybe wholly but certainly in part, were the 2 result of, in effect, directives from the governor and the 3 governor's budget people to various department people but 4 including DSS to close offices and reduce staff. 5 Assume for the moment that that's true, I think at

6 the motion to dismiss stage I have to assume it's true unless 7 you correct me otherwise, why wouldn't that then make the 8 governor a proper defendant and therefore be more than merely 9 the figurehead supreme person in charge of the law of the 10 state and therefore actually an affirmative actor in 11 connection with their claims of harm? 12 MR. BROWN: Yes, your Honor. Because if you take a

13 look at all of the relief that the plaintiffs are actually

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14 seeking with regard to this case, these are all things that 15 the department has within its control and, in fact, we 16 believe that these are matters that the department has 17 already addressed. 18 For example, one of the issues of relief that the

19 plaintiff is seeking is to insure that there's some type of 20 grievance procedure that is put in place and put forward to 21 inform applicants and recipients of what their rights would 22 be if they feel they have been discriminated against on the 23 basis of their disability, that's something within the 24 department's control, it's not something that the governor or 25 the governor's office needs to be involved with in terms of

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1 holding him in the case for enforcement and in fact, we've 2 done that. 3 We have, in fact, the commissioner, pursuant to

4 policy that was issued in April of 2003, put information out 5 to its employees, informing them that there is a policy and 6 procedure in place and that we should make sure that our 7 clients are made well aware that if they believe that they're

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8 having a problem accessing services and benefits from the 9 department and in order to do so they need a reasonable 10 accommodation, there is a mechanism and procedure for doing 11 so. 12 Holding the governor in the case to address that

13 particular avenue of relief the plaintiffs are seeking would 14 not be relevant and in fact would not be necessary. 15 Another issue that they've asked is with regard to

16 the issue of training, make sure that all your employees have 17 received proper training with regard to ADA and reasonable 18 accommodations. That in fact has been done and in fact that 19 training took place over the summer. This was something that 20 was within the power of the Department of Social Services to 21 implement and they have, in fact, done that. 22 They've also indicated that applicants and

23 recipients should be simply placed on notice, make sure 24 there's some kind of notice available to these individuals to 25 insure that they know, again, if they're having a problem

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1 accessing services and need a reasonable accommodation, that

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2 they're made aware of that. 3 There's a brochure that's been prepared. A number

4 of the regional offices have received that and they're 5 filtering that information down to their respective offices 6 within the region. So these pamphlets have been produced and 7 they're in the process of being made available to individuals 8 when they come into the office. 9 Similarly, if an individual were to call the

10 office, simply make a phone call, and ask for assistance and 11 indicate they have a problem accessing services or benefits, 12 it's within the power of the department to make sure that 13 those individuals, if they're disabled, get the information, 14 the help, that they need. 15 So the things that the plaintiff is pointing to in

16 terms of relief and how do we address them are things that 17 can, in fact, be done and we believe are, in fact, being done 18 without the need to keep the governor in the case. 19 THE COURT: If they were to say, though, and I

20 think you focused on some good things that I'll ask your 21 opponent about but if they were to say, though, that at least 22 some of the things that they're looking for require funding, 23 money, and that Ms. Wilson-Coker is not able to demand funds 24 without the cooperation of the governor, and/or that the

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25 governor has placed her agency along with other agencies

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1 under strict budget guidelines under which they have to 2 either reduce their budgeting or can increase it in certain 3 ways, why wouldn't those circumstances and for whatever 4 aspects of those relief they're looking for, why wouldn't the 5 governor be an appropriate party? 6 MR. BROWN: Your Honor, if that were the case,

7 every time a person sues a state agency because they believe 8 it's not being provided a level of services because of 9 funding, they could always sue the governor and that would 10 appear to the defendants certainly is not what the Second 11 Circuit and other circuits have intended is a proper way of 12 looking at when a governor has been made a proper party in a 13 case. 14 Obviously, the governor is an individual pursuant

15 to the state Constitution, has supreme executive authority 16 and he obviously appoints individuals to serve as 17 commissioners and those individuals, as you know, go through 18 a budgetary process. But to claim that in every single case,

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19 when an agency is having a problem providing a service 20 because they claim it's a funding issue, that we can always 21 bring the governor in simply would fly in the face of all the 22 cases that talk about what it takes to prove that a person is 23 a proper party and in this -24 THE COURT: What they say, though, is a lot of the

25 cases in which, say, the governor's taken off the case, it's

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1 really an issue of is this law unconstitutional or not? And 2 you don't think the governor can do it, yes, sure, the 3 governor is nominally in charge of enforcing all laws but 4 there's no showing that the governor, you know, adopted the 5 law in particular and it's a law adopted by the legislature 6 and that those are the kinds of cases that you've cited and 7 that really they cite to cases where it's not that, they're 8 not trying to attack a law as unconstitutional or something; 9 they're trying to challenge an ongoing program as inadequate 10 under federal law and where the governor's cabinet official 11 who reports presumably to the governor may play a role in 12 implementing policies that comply with federal law.

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13

Do you have cases where that's the situation, where

14 it's an ongoing program of the state and whether the program 15 itself is constitutional where the court dismissed a governor 16 as a party? 17 MR. BROWN: Your Honor, I haven't seen any cases

18 specifically on this issue. The cases that have addressed 19 whether it would in fact be appropriate to hold an officer 20 like a governor in a case have been the cases that we've 21 cited. We have talked about the Rizzo case, your Honor, 22 which does, it's a Supreme Court case. 23 24 THE COURT: Rizzo against Goode? MR. BROWN: That's right, your Honor, and in that

25 particular case, you had a situation where I believe it was

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1 the mayor of Philadelphia was sought to be held in this 2 particular case as a party and the issue had to do with 3 police misconduct that actually took place in the past and 4 they were seeking to impose injunctive prospective relief 5 with regard to this particular officer, in this case the 6 mayor.

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I believe that the outcome of that case is you have

8 to find, in that particular instance, that that officer had 9 some connection -- some connection, even if it's minimal, 10 some connection -- to the alleged injury that's being 11 claimed. 12 THE COURT: Now, let's stop you there. Why

13 wouldn't -- recognizing that some connection seems on its 14 face at least to be a term that connotes not much maybe, why 15 wouldn't the fact, if it were true, that the governor ordered 16 the closing of these offices and staff reductions and budget 17 cuts, why wouldn't that satisfy a some connection 18 requirement? 19 MR. BROWN: First of all, your Honor, with all due

20 respect, there's no allegation made in the amended complaint 21 that the governor did any such thing. 22 23 24 THE COURT: I would agree with you on that. MR. BROWN: That's the first thing. THE COURT: That could be remedied though, right?

25 By an allegation?

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MR. BROWN: So far, your Honor, as the complaint

2 stands, it's not an allegation that's been made. Second of 3 all, as we argued, I think when you talk about some 4 connection, it would seem to have to be some evidence, in 5 some way, connecting that action -- say hypothetically 6 ordering closure of the offices -- with the actual injuries 7 that the plaintiff is claiming. The plaintiffs are alleging 8 that the closure of the offices has, in fact, resulted in the 9 plaintiffs being denied meaningful access to benefits. 10 THE COURT: Right, and for purposes of the current

11 motion, I have to assume that's true. 12 MR. BROWN: Yes, your Honor, I understand that, but

13 I think what would have to be shown is where is the nexus? 14 In order to keep the governor in the case, you've still got 15 to try to find some nexus between the closure of the offices 16 in some way and the denial of that meaningful access to 17 benefits. And again -18 19 THE COURT: In order to hold the governor in? MR. BROWN: Your Honor, at this point, unless

20 that's pled, how can it be found that he's a proper party? 21 THE COURT: Let me flip the question to you. If

22 they have to establish as opposed to simply pleading that 23 nexus, they haven't done it for Ms. Wilson-Coker either,

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24 under your theory, right? 25 MR. BROWN: Well, your Honor, what I'm arguing is

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1 at this point, the complaint, as written, does not plead that 2 the governor has played any role in -3 4 5 THE COURT: Closing the offices. MR. BROWN: That's correct. THE COURT: Do you deny that the governor played a

6 role in it? 7 MR. BROWN: Your Honor, to this point, that's not

8 been established. 9 THE COURT: We are at the pleading stage so it's

10 what can be pled consistent with Rule 11. What if the 11 governor shut down all the offices, would that be some 12 connection? 13 MR. BROWN: I think it would depend on the facts

14 and circumstances, your Honor, I don't know that I could 15 concede that that, in fact, would be the case. 16 17 THE COURT: Some connection? MR. BROWN: I think it would depend upon exactly

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18 what's pled and what the facts are, what the defendant's 19 actions, what the defendant DSS's actions, were as well at 20 that time. 21 THE COURT: Why don't you stand down for a bit and

22 let me talk to Mr. Bass and get you back up, Mr. Brown. 23 Let's just focus for a second on the portions of

24 the prayer for relief on page 32 of the amended complaint 25 that asked for changes in grievance policies, training and

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1 notices to individuals and the adoption of appropriate 2 policies at DSS to do these things. You don't need the 3 governor for those things, right? That, you just need the 4 head of the department for those prayers for relief? 5 MR. BASS: I think that's correct, your Honor, I

6 think the DSS commissioner would have statutory regulatory 7 policy to institute policy, provide adequate notice, by the 8 way we dispute has not yet happened. 9 THE COURT: Believe me, he can say that all he

10 wants, we are at a motion to dismiss and I understand it's 11 your allegation that they're not adequate and that's all

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12 that's necessary at this stage so you don't have to respond 13 to that. 14 MR. BASS: Similarly a grievance procedure could be

15 instituted to take into account reasonable accommodation 16 appeals and disputes without the governor's assistance. 17 18 THE COURT: Why do you need the governor? MR. BASS: We allege a systemwide breakdown from

19 the office of policy and management, the fiscal policy making 20 arm of the governor's office which resulted in the closure of 21 six DSS offices in 2003 and that's demonstrated by documents 22 that we attached. 23 THE COURT: Could I ask you this: I thought, and I

24 could be wrong about this, but I thought that while the 25 original lawsuit was to require the offices to be reopened,

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1 in effect, and I could imagine that in those circumstances, 2 if in fact the governor was the one responsible for 3 essentially ordering that there be reductions that caused the 4 closure, you might want him in there, but my understanding 5 now is that that is not what anybody's looking for, at least

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6 there's nothing in the amended complaint in the prayer for 7 relief that says, listen, we want these offices opened up. 8 It's rather all things about, you know, these policies, 9 training, notice and -- and, it's a big and, but and -10 providing reasonable accommodation. I could imagine that to 11 fulfill that, that might require money but that might not 12 require, and there's nothing in the complaint that demands, 13 the reopening of offices, right? 14 MR. BASS: That's correct although that certainly

15 could be a form of relief to the plaintiffs ultimately, try 16 to direct their energies towards in this lawsuit. The 17 complaint does need amendment, there's no question about 18 that, to sufficiently bring in allegations to demonstrate 19 there's some connection for the governor. 20 THE COURT: I was a little bit -- I read your brief

21 and your brief says a lot more than your complaint says. 22 23 MR. BASS: That's correct. THE COURT: And I didn't know why you hadn't

24 actually amended it because he's right, if you take the 25 complaint on its face, it says he's the supreme leader of the

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1 state or in charge of the law or whatever it says, period, 2 and that's it and that's probably not enough given the kinds 3 of things that you are pleading here. 4 5 MR. BASS: We agree. THE COURT: But on the other hand, it makes little

6 sense for me to dismiss the governor out and have you move to 7 amend and add -- I would rather would have dealt with this 8 all at once and have all the allegations and I am sympathetic 9 to Mr. Brown that it's hard for him to respond if he doesn't 10 know what the allegation would be. 11 MR. BASS: I understand, your Honor, the basic

12 reason we've not yet amended the complaint again is we are 13 pursuing intensive discovery and we are, in fact, discovering 14 the connection factually of the governor to the initial 15 closure of the offices and we intend to depose Pat 16 Wilson-Coker herself to ascertain what in fact emanated from 17 OPM and governor's office with respect to the further 18 continuum of events. 19 THE COURT: Tell me this, as you stand here right

20 now, what would you allege as to satisfy the some connection 21 requirement? 22 MR. BASS: At a bare minimum, we would allege

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23 matters that we argue the Court can take judicial notice of, 24 that is the institutional powers and duties of the governor's 25 office conferred by the state Constitution and the state

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1 statutes of the state of Connecticut. 2 Those are matters the defendant have not disputed

3 in any way. The state statutes speak for themselves in terms 4 of the institutional authority of the office and if you take 5 -6 THE COURT: That's not different than any other

7 state, right? That's got to be true in all 50 states, that 8 the governor is in charge of the executive branch of the 9 government and in charge of the -10 11 MR. BASS: Certainly. THE COURT: Doing the same kinds of things and yet

12 as he points out, there are cases where the courts say, you 13 know, you just don't need the governor in here. 14 MR. BASS: The cases, almost all of the cases cited

15 in defendant's briefing are the cases that deal with the 16 statute that simply vests supreme authority in the governor's

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17 office and the governor is being sought to have some 18 connection to an act which is being challenged as facially 19 unconstitutional or otherwise violative of federal law. 20 As your Honor pointed out, that is not the

21 situation in the case at bar. We are alleging a pattern and 22 practice of actions and inactions taken in tandem between the 23 governor's office as well as the Department of Social 24 Services commissioner. 25 What makes the state statutory authority that gives

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1 institutional power to the governor's office in Connecticut 2 somewhat unique is both his budget making authority in terms 3 of sending a comprehensive budget message to the legislature 4 and also having on the tail end rescission authority and line 5 item transfer authority within various circumstances to 6 budgets that come back from the legislature and are passed 7 that far surpasses any sort of budgetary authority that the 8 DSS commissioner has. 9 The DSS commissioner as an executive department

10 head serves expressly by statute at the pleasure of the

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11 governor's office. He appoints these department heads, they 12 serve at his pleasure, he has programmatic authority over 13 their actions. 14 So the case of Rowland versus Cellucci from the

15 district court of Massachusetts is actually a more analogous 16 case. The court there disputed and discounted ultimately the 17 defendant's obligations, the defendant governor of 18 Massachusetts's contentions, that he was not a proper party 19 to that action. That was a class of developmentally disabled 20 plaintiffs who sought placement under Medicare statute and 21 also under the ADA. 22 The court discounted the governor's argument that

23 he should not be included as a proper party by citing some of 24 the very same things that we have cited in our briefing here, 25 namely the statutory authority of the governor to appoint

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1 department heads of executive state agencies, the fact that 2 they serve at his pleasure and his programmatic control. 3 Those factors were at least persuasive to the district court 4 of Massachusetts in allowing the governor to remain in that

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5 action. 6 That's actually a more analogous ruling than the

7 plethora of cases the defendant cites where a supreme 8 executive power is cited as the only authority keeping the 9 governor in and he is being attacked as a defendant who is 10 theoretically charged with enforcing unconstitutional state 11 statute. Very different scenarios. 12 13 THE COURT: Why do you need him though? MR. BASS: It's a practical issue. Under Rule

14 65(d) as your Honor knows, the acting in concert with 15 extension of the rule does not flow upstream, it flows 16 downstream. You have to view DSS Commissioner Wilson-Coker 17 as the agent in this case, in terms of actions or inactions 18 leading to violations and leading to subsequent injury under 19 the ADA and the Rehabilitation Act and the governor's office 20 has to be viewed as the principal. 21 Any injunctive order under Rule 65 against the

22 agent will not bind the principal. If there are programmatic 23 changes within the department, and we've alleged systemic 24 series of violations where the reasonable accommodation 25 rights of disabled applicants and recipients are not met on a

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1 routine uniform basis, they're not identified, screened, 2 tracked or reasonably accommodated, to secure full and 3 adequate relief requires programmatic changes or funding, 4 only the governor can do that. 5 It is easy to envision a scenario where the DSS

6 commissioner seeks in good faith and reasonably to comply 7 with a court injunctive order but ultimately comes before the 8 court in saying I submitted my recommendations of 9 programmatic changes and policy shifts, whether it's staff 10 reductions, office closures, or funding realignment to the 11 governor's office and was told no. 12 THE COURT: Okay. So at that point, we can bring

13 the governor in because then the governor is affirmatively 14 preventing the implementation of policies that at that point, 15 the Court has concluded are essential to compliance with 16 federal law. 17 18 MR. BASS: It's unclear. THE COURT: What you are really saying is, you

19 know, the governor may very well veto what you, Judge, order 20 Ms. Wilson-Coker to do and because he might do that, even 21 though we don't know that he will do that and we would think

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22 that, hope that he would comply with the Court's orders, we 23 need to keep him in and make sure that your order, Judge, 24 runs to him because we -- I don't mean it like we can't trust 25 him but it's almost like that and that seems like an odd

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1 thing and it also seems like an inappropriate assumption for 2 me to make as a federal judge dealing with a head of a 3 sovereign state. 4 MR. BASS: That's understandable certainly, your

5 Honor, and we are not asking the Court to make any sort of 6 inference that the governor's office would be acting out of 7 anything but good faith. 8 It's unclear, under Rule 65, whether or not an

9 injunctive order emanating from this court would, in fact, 10 reach an entity or state official, in his official capacity, 11 who has otherwise not been party to the underlying 12 proceedings, who's not been able to present defenses, 13 affirmatively, or to present disputed facts in any way as to 14 his involvement in the case. 15 If you secure an injunctive order under Rule 65

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16 that binds the agent, the DSS commissioner in this instance, 17 it's clear that that does not in and of itself bind the 18 principal. 19 THE COURT: So we have to name all the legislators,

20 too, because the legislators might pass a law ordering Ms. 21 Wilson-Coker not to comply with the things that I order 22 because they have the power of the purse and they might say, 23 we are going to withhold your whole budget because we don't 24 want you to comply with Judge Kravitz's order so we really 25 need to get Moira Lyons in here and everybody -- you can take

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1 that analogy forever, really, and it would be infinite, it 2 seems to me. 3 And unless and until there were some indication

4 that in the past, when federal courts have entered orders 5 against department heads, the governor has taken steps to 6 override them in a budgetary or programmatic way or that 7 there has been -- you know, that there's a substantial risk 8 that we are going to find ourselves in the same kind of 9 conduct, then I would say, well, you know, maybe -- or I

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10 think if the exact act that is being attacked here is one in 11 which the governor said to his agent, listen, this is what I 12 want you to do from now on. 13 I want you, and this is my order, in effect,

14 executive order characterize that or otherwise, but I want 15 you to whatever, whatever the thing is. And his agent says, 16 sure, fine, governor, I'm doing it. So we know really the 17 mover here isn't the department head, the mover really here 18 is the governor, again that would be appropriate 19 circumstance. 20 But here, where the governor's simply exercising an

21 overall budgetary control for his department and Ms. 22 Wilson-Coker is implementing that as best she can, given the 23 constraints she has, and there is no indication that the 24 governor will thumb his nose at an order that I may issue, 25 it's hard for me to understand why it's essential that he be

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1 here from the outset. 2 MR. BASS: Because the facts that we are pursuing

3 in discovery and the facts that we've been able to divulge so

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4 far, in which we have brought to the Court by way of 5 attachment to our briefing, do indicate that the prime mover 6 behind the closure of the offices, which in turn precipitated 7 a virtually systemic chaotic disorder within the department 8 which, in turn, is leading to the reasonable accommodation 9 needs of our clients, disabled applicants and recipients, 10 being unmet, began with the governor, fiscal budgetary 11 decision without any apparent forethought or planning as to 12 how this would impact disabled clients of services, programs 13 and benefits of the Department of Social Services. 14 THE COURT: Maybe then the solution would be to

15 drop the governor for the moment but without prejudice to you 16 coming back at some later point after you've taken all your 17 discovery and seek to add him back in on the ground that now 18 we can demonstrate the some connection and here it all is and 19 then I deal with it at that point rather than keeping him in 20 on the basis that you may find something in discovery and 21 then throwing him out on summary judgment. 22 The reason I ask this is I did notice that one case

23 before Judge Thompson that I think you all cited to me on 24 class action status, I didn't see the governor in that case 25 and actually I went back to the docket sheets and looked at

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1 the complaint and he's not there. 2 3 MR. BASS: That's correct. THE COURT: Why is it you think in that case, which

4 deals with programmatic problems, that it's not important to 5 keep the governor, you think an order in that case ordering 6 Miss Wilson-Coker to change her programs and spend money, you 7 could do that and you don't need the governor but here you 8 need the governor. I couldn't understand that. 9 MR. BASS: Carr has some distinguishing

10 characteristics peculiar to the Medicaid system. In Carr, it 11 runs downward by contracts that emanate from department to 12 managed care agencies, which run virtually all of the state 13 of Connecticut's Medicaid program. 14 So to deal with the issues of systemic lack of

15 access for Medicaid recipients to dental care in that 16 litigation, we've had to deal with managed care corporations 17 who have contracted upwards with the department, in turn 18 those MCOs contract downwards to dental care subcontractors. 19 So we've got three layers emanating down from the

20 department, and the compartment has clear authority under

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21 federal law to issue these contracts and to seek waivers of 22 federal law to run a Medicaid managed care system in the 23 first place. 24 So the governor would have added yet a fourth layer

25 and for tactical reasons, logistical reasons and legal

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1 reasons he isn't a necessary party in that case to secure 2 adequate relief. 3 THE COURT: He didn't have any connection with the

4 implementation of the policies that are being challenged in 5 that case? 6 MR. BASS: Not directly, the waiver sought to

7 implement a Medicaid managed care system was sought by the 8 Department of Social Services with some modicum of oversight 9 by committees of cognizance within the state legislature. 10 THE COURT: Your view, though, is what's different

11 about this case is that the harm really flows from the 12 closing of the offices and that the governor, through OPM, 13 either directly or through OPM, you believe, had an 14 affirmative role in precipitating this?

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15

MR. BASS: Absolutely. That's what precipitated

16 this lawsuit, that's what has precipitated a situation 17 existing today where DSS frontline case workers have case 18 loads of upwards of 1300 cases. 19 Their ability to meet as a frontline threshold

20 proposition the needs, to reasonably accommodate disabled 21 applicants and recipients are directly thwarted by the 22 closing of offices, the resulting reduction of physical 23 facilities, the resulting concentration of staff resources, 24 added to staff layoffs, this is all combined to perpetuate a 25 system which, we allege, is in virtual chaos at this point.

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1

Similar to the Henrietta D versus Bloomberg case

2 last year out of the Second Circuit where HIV positive 3 plaintiffs had a system that had been placed into being by 4 state statute in New York to assist them in an ombudsman sort 5 of context to access existing public benefit programs and to 6 make it easier for HIV positive individuals who were 7 thwarted, by virtue of their disability, from acting on their 8 own to access these programs, to serve as a go between, to

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9 assist them, that system was in perpetual chaos, as alleged 10 by the plaintiffs, and ultimately found by the district court 11 in that case, and that led to the lack -- denial of 12 meaningful access based upon lack of reasonable 13 accommodation. 14 We have a very analogous situation in the instant

15 case, your Honor. 16 THE COURT: Although everything you've just said to

17 me, I know you've said this in your brief, I don't see that 18 in the complaint. I really don't. This allegation of 19 completely dysfunctional system that's broken down entirely 20 and, you know, I just don't see that in the complaint. 21 I see you've got individuals there, and you do

22 argue that they didn't adequately prepare for the transition, 23 they don't have adequate policies, there's a generalized 24 allegation that therefore, they're not reasonably 25 accommodating but it's extremely general and it is not of the

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1 level and depth of that you've described in your brief or you 2 are describing now.

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3

MR. BASS: It is illustrated in a series of

4 illustrative circumstances of the named plaintiffs. Time and 5 time again the recurring scenario pled and alleged in the 6 complaint for plaintiffs such as Kimberly Dade, Carmen 7 Gonzalez, Darryl Paulding is that by virtue of their 8 disabilities, they are being denied access to the system, not 9 just because their local office closed but because they can't 10 get their worker on the hotline, they can't get telephone 11 access on a recurring basis. 12 Their ability to use the mail system in the way

13 that comports with their disabling conditions is also 14 troublesome. There's an individual who is blind who is one 15 of the named plaintiffs, there's no indication that she's 16 been provided Braille messages at any time. The department 17 simply sits back and says that we never received a reasonable 18 accommodation message from any of these named plaintiffs and 19 so they don't present conditions that allege violations of 20 the ADA or the Rehabilitation Act. 21 Well, there's no indication that they received

22 notice of their right to request reasonable accommodation, 23 there's no indication that they received any assistance 24 through way of an interactive process mandated by the ADA to 25 facilitate the accommodation. So it's disingenuous for the

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Page 28

1 department to say we didn't receive magic words from these 2 named individuals so we can't act on their reasonable 3 accommodations. These are individuals whose disabilities 4 have long time been known to the department. 5 THE COURT: Hang on for a second. That's true but,

6 you know, again, as I read your amended complaint, and while 7 there are a few examples where you talk about actual 8 problems, in most instances, what you say is this person's 9 disabled, they have no way of getting to Norwich or wherever 10 they have to go, and they don't know how they'll get there. 11 That's a little bit different than saying they've

12 tried seven times, their benefits have been denied, they're 13 constantly calling and can never get through, nobody has ever 14 contacted them to offer them a ride, they think they have to 15 actually physically go there when in fact the state said they 16 don't have to. There are not those kinds of allegations 17 there by and large. 18 In most instances, in the individual cases in your

19 amended complaint, it's this person was being serviced out of

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20 this office, that person does not have a car, does not have 21 means of going on public transportation and therefore can't 22 get to Norwich or wherever the place is. 23 That's qualitatively different than the kind of

24 thing that you are talking about right now and that you are 25 urging me to use as a basis for ruling on this motion.

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1 2

MR. BASS: There are at least several -THE COURT: There are a couple where there are

3 individual things but I have in mind your statistics in the 4 motion to dismiss that we are talking about vast numbers, 5 thousands upon thousands of disabled people in the state who 6 are seeking assistance and need accommodation and yet, you 7 know, not even all the people who you plead here have had 8 problems and there are some problems but, you know, there's a 9 disconnect between systemic dysfunctional broken down agency 10 that can't operate and allegations about three or four people 11 out of tens of thousands. 12 MR. BASS: We would certainly point to Mr. Burdine

13 who your Honor has by court order allowed intervention as

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14 presenting a serious virtually life and death emergent 15 situation due to his being on renal failure requiring three 16 times a week kidney dialysis treatments and his inability to 17 get through -- this was just a few months ago -- to his 18 worker to explain why he should not be terminated from life 19 subsisting Medicaid benefits resulted almost in his death. 20 That's a dramatic scenario that would demonstrate an ongoing 21 breakdown of reasonable accommodations. 22 23 THE COURT: Systemwide. MR. BASS: Systemwide. Proof that we are divulging

24 in discovery and would be happy to include an amended 25 complaint indicates that there are no systemic policies,

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1 protocols, regulations or guidelines in place that adequately 2 identify individuals, even individuals known to the 3 department, to ascertain their disabling conditions, what 4 reasonable accommodations they will need on an ongoing basis 5 so they don't have to perpetually reinvent the wheel and how 6 their meaningful acts as to benefits programs will be 7 facilitated on an ongoing basis. Those systems are not in

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8 place and that's the crux of our complaint. 9 THE COURT: We'll get to that more in the class

10 action thing but I appreciate your comments and your 11 arguments. 12 Unless you have something more to say, I'm going to

13 go back to Mr. Brown and have him respond to some of the 14 things. 15 16 17 18 MR. BASS: Thank you, your Honor. THE COURT: Mr. Brown. MR. Brown: Yes, your Honor? THE COURT: Assume for the moment that I were to

19 allow Mr. Bass to amend his complaint and assume for the 20 moment that he were to allege that the difficulties that the 21 department is now facing, complying with the ADA and 22 rehabilitation act began when the closings occurred and some 23 staff reductions occurred and that those, the governor and 24 OPM directed or played a large role in directing those 25 closings and staff reductions, period, just that, would you

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1 agree at that point that he has pled enough -- again, this is

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2 a motion to dismiss not a motion for summary judgment -- pled 3 enough to keep the governor in at least for the moment until 4 we find out what the full facts are at the end? Based on the 5 case law you've cited me, Rizzo against Goode and these other 6 cases. 7 MR. BROWN: Again, your Honor, I think the problem

8 is that the class as it's defined right now really has no 9 relation to the office closure whatsoever. The injunction 10 action clearly did speak to the problem concerning office 11 closures. 12 THE COURT: What I'm saying to you is that he is

13 going to be alleging -- I'm making this up, I realize right 14 now, under my hypothetical he's going to be alleging yes, 15 there are systemic problems in the state and in large part, 16 those were caused by and/or exacerbated by the closings of 17 offices which made it much more difficult to accommodate 18 clients and that difficulty has meant increased case loads 19 for existing offices, et cetera, et cetera, longer distances 20 people have to travel, increase the needs for accommodation 21 and that all began when those offices were required to be 22 closed and the governor and OPM staff played at least a 23 significant if not major role in that. Assume he were to 24 have allegations along those lines, would you agree that that

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25 probably would be enough, at least for the motion to dismiss

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1 stage, to satisfy the some connection rule? 2 3 MR. BROWN: I think that would, yes, your Honor. THE COURT: Kind of where I am on the thing, to

4 tell you the truth. 5 6 MR. BROWN: Of course, that's not occurred yet. THE COURT: I know that has not occurred yet. I

7 guess the real question is -- Mr. Bass, I really, when you 8 see a motion like this and you think you can plead to solve 9 the problem, you got to plead, okay? You don't put it in 10 your brief. You really have to say, listen, I can solve this 11 problem, I'll give him the allegations that he wants and here 12 are the allegations and that's enough. 13 Are you prepared to make allegations along the

14 lines that I've just described? 15 MR. BASS: Yes, absolutely, your Honor, and again,

16 you are absolutely right, the normal course of events we 17 would have presented an amended complaint before these 18 matters but due to the fact that we are in discovery and

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19 doing a string of depositions including the commissioner 20 herself -21 THE COURT: But that's not the way things work.

22 You don't sue somebody hoping you will find something on it; 23 you sue somebody based on what you know you have and if you 24 have to amend it later on to add additional things, you can 25 do that.

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1

Mr. Brown is absolutely right that the allegations

2 on the face of that amended complaint really aren't enough 3 but it seems to me silly to dismiss the governor out and have 4 you make a motion to amend the complaint to add him back in 5 with new allegations. 6 We ought to see what the allegations are. You

7 shouldn't have to guess but we ought to see what they can do 8 and if you plead things consistent with your obligations 9 under Rule 11 and the facts that are akin to the kinds of 10 things we are talking about, you are probably going to sneak 11 within the some connection rule. That may not be that he 12 stays in the case forever but it probably would be enough.

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13 This complaint doesn't have enough for me to keep him in. 14 15 16 MR. BASS: I agree, your Honor. THE COURT: Mr. Brown? MR. BROWN: Yes, your Honor, the only point I would

17 make is obviously at this point, keeping the governor in the 18 complaint would obviously subject the governor presumably to 19 depositions himself in discovery. Until the plaintiffs have 20 properly pled an action against the governor, it would really 21 seem, frankly, unfair. 22 THE COURT: I can solve your problem on that. You

23 are not taking the governor's deposition or his office's 24 deposition until I see a pleading that gives allegations that 25 meets the some connection test. Once you do that, and if you

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1 withdraw your motion or we deny it without prejudice to renew 2 on summary judgment, then they're fair game. 3 Mr. Brown's right and I don't anticipate that you

4 are going to be seeking that but we are going to put him on a 5 short leash, he's going to have to come up with some 6 allegations along the lines we've talked about. I frankly

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7 would like you to rethink whether you even need the governor 8 in this case. 9 I asked this when we met several months ago and I

10 see this case, this other Wilson-Coker case doesn't have the 11 governor in, I've looked at a few other cases the governor's 12 not in, I don't think the governor's likely to be ignoring my 13 orders but if he did that, certainly there's no history that 14 he's done that but if he did do that, I think there are ways 15 of solving the problem. 16 I just don't think it's necessary but if you still

17 think it's necessary, you got to come up with the allegations 18 to meet it. You haven't done so now, I'm going to put you on 19 a short leash to do it, there's no discovery of the governor 20 or the governor's personnel until I see that. 21 Mr. Brown, you will have a chance to take a look at

22 it, if you still don't think it's adequate you can let me 23 know that and I'll decide the matter at that point but based 24 on the representations of Mr. Bass, it sounds like he's going 25 to plead something that's probably going to at least for the

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1 motion to dismiss stage probably get us over the hurdle. 2 3 How much time do you need, Mr. Bass? MR. BASS: I would estimate three weeks, your

4 Honor. 5 6 THE COURT: Three weeks to make the allegations? MR. BASS: We'll be deposing Commissioner

7 Wilson-Coker next week and that may have to be adjourned. 8 MR. BROWN: We'll do the best we can to make the

9 commissioner as available as possible, we are scheduled to go 10 next Thursday the 29th, I believe that she's setting aside a 11 number of hours on the 30th as well. 12 THE COURT: Maybe you can concentrate on the

13 governor's role first, in the first deposition, and then you 14 won't have to wait until the end, okay? 15 16 MR. BASS: Certainly. MR. BROWN: If I'm allowed to indicate, I do want

17 to make it clear that I think continuing to keep the governor 18 in the case could cause some issues with regard to potential 19 settlement. 20 Obviously, we would like to see if we could

21 continue with our settlement discussions and I think we would 22 find it sort of an olive branch, if you will, if the 23 plaintiff could come to the conclusion that the governor's

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24 presence in the case is not necessary, so I would like to put 25 that on the record.

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1

THE COURT: Let me say this, Mr. Bass, that's

2 another alternative which may be a useful one, which is: I 3 could grant the motion on the basis of the current amended 4 complaint without prejudice to your seeking to amend the 5 complaint to add any defendant, including the governor, at 6 some subsequent time as long as you do it within, and we set 7 some period of time, whether it's a month or some period of 8 time, and you are free at that point to do that, make the 9 allegations, assuming that you make the kinds of allegations 10 we are talking about, that's going to meet his -- he can't 11 argue that the amendment is inappropriate because it's futile 12 because you haven't made the allegations necessary and maybe 13 in the meantime, you all conclude that you are getting along 14 enough that you can resolve this case without me. That's 15 another option. 16 MR. BASS: Respectfully, your Honor, we would

17 prefer the first option of allowing us to amend the complaint

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18 to withstand the motion to dismiss, obviously it can be 19 renewed without prejudice or they can certainly file a 20 summary judgment motion. 21 As to whether or not it will facilitate settlement

22 discussions, we certainly hope that it would. We lack any 23 clear vision or guarantee on that at this point but we would 24 prefer, your Honor, to be allowed, within your Honor's 25 discretion, to amend the complaint to reflect the

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1 allegations. 2 THE COURT: I'm going to let you amend the

3 complaint, there's no question about that. Whatever I do 4 today with this motion to dismiss, I'm going to let you amend 5 it, okay? And I'm going to let you amend it to seek to add 6 more allegations regarding the governor. 7 The only question really was: Would I, today,

8 grant the motion to dismiss without prejudice to your right 9 to seek to add him back in with additional allegations or 10 would I simply hold the motion to dismiss in abeyance pending 11 some amendment you are going to file three weeks from now.

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12 That's really the two choices. 13 MR. BASS: We would ask, your Honor respectfully,

14 that the motion be held in abeyance and see what we can 15 produce with an amended complaint. Perhaps the parties can 16 resolve the matter at that point between themselves, as to 17 whether the defendant feels that the allegations are 18 sufficient to meet the "some connection test." 19 MR. BROWN: We prefer that the motion to dismiss be

20 granted, your Honor, and that would certainly provide the 21 plaintiffs with the time and the impetus and the opportunity 22 to file the amended complaint and we take it up at that time. 23 24 THE COURT: You guys get along famously. MR. BASS: We would submit that in the interests of

25 judicial economy, the former might serve the interests of the

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1 court more efficiently if the motion is held in abeyance. If 2 the motion is held without prejudice, we may be here on semi 3 dispositive motion, we would ask that it be held in abeyance, 4 let us submit an amended complaint. If it doesn't satisfy 5 your Honor's requirements, that would speak for itself.

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6 7

THE COURT: Hang on for a second. What other discovery are you likely to be taking in

8 the next month or so, Mr. Bass? 9 MR. BASS: We will further our regional and local

10 base of officials to see how scenarios are playing out at a 11 local level apart from the central office, we'll be deposing 12 Wilson-Coker, maybe Marc Ryan if necessary, whether those 13 will all be done within the next month, I'm not sure, that 14 depends on some fairly logistical scheduling. We only have a 15 three-month window obviously if your Honor grants the 16 extension. 17 THE COURT: Although you are going to have about

18 six months more discovery or five months, I guess, right? 19 MR. BASS: We also may be sending out an additional

20 round of written discovery, your Honor, production requests. 21 THE COURT: How about you, Mr. Brown, are you

22 taking discovery? 23 MR. BROWN: Mr. Barber and I have to discuss that

24 but we intend to, your Honor, yes. 25 THE COURT: None on the horizon right now?

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1

MR. BROWN: We will, at the very least, be deposing

2 the named plaintiffs, your Honor. Your Honor, Mr. Barber, 3 counsel's reminded me, that Mr. Ryan, secretary of OPM, is 4 direct arm of the governor's office. I don't know what 5 issues that would present if, in fact, the motion is simply 6 held in abeyance as opposed to simply being granted at this 7 point. 8 9 MR. BASS: We would submit no effect, your Honor. THE COURT: At some point, there may be all sorts

10 of people in the government who they have reason to believe 11 has knowledge of relevant facts and I just didn't want him 12 deposing the governor or anything like that at the moment. 13 This is what I'm going to do, whether it's the

14 right thing or not, I don't know, but it's what I'm going to 15 do: 16 I'm a little bit disappointed, I guess, Mr. Bass,

17 and have to say that this motion has been out here for a long 18 time and you did amend the complaint, you could have amended 19 the complaint before now, I believe, to make some of the 20 allegations that you really haven't. 21 My inclination, therefore, is to grant the motion

22 to dismiss the governor without prejudice to the plaintiffs'

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23 right to seek to amend the complaint. I'm going to give you 24 a month from now to in any way you want to amend the 25 complaint, including amending it to bring the governor back

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1 in the case with appropriate allegations regarding his 2 connection to the events that are causing the -- that are 3 connected to the events that underlie the complaint and 4 that's my ruling on the -- hang on for a second. I don't 5 have a number on it. The pleadings I have -- I have the file 6 here, defendant Governor John Rowland's motion to dismiss is 7 docket No. 54, that will be granted without prejudice to the 8 plaintiffs having the right to amend their complaint within 9 one month from today, that is to say February 23rd, 2004, to 10 add the governor back in with appropriate allegations or add 11 any other defendant or to add additional allegations to the 12 complaint, okay? 13 14 15 MR. BASS: Your Honor, if I may. THE COURT: Yes, you may. MR. BASS: If we do amend the complaint to once

16 again add the governor as a party defendant, will the

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17 defendant then be allowed leave to proceed once again with a 18 motion to dismiss? 19 THE COURT: I can't stop them from filing a motion

20 to dismiss. I would say to you, Mr. Brown, that we went 21 through this colloquy and if they make the allegations that 22 the governor was, and his staff through OPM played a 23 significant role in the closings and that the closings were a 24 major part of the cause of the problem that we currently 25 face, or they've contributed in large measure, whatever

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1 adjective you want, I think we all agree that they meet the 2 some connection. I wouldn't expect to see a motion to 3 dismiss in the case. Do we understand? 4 5 MR. BROWN: I understand. THE COURT: If you don't have those allegations or

6 there's a problem in some way -- the thing about it is this: 7 The way I see the law is that I think if there's an 8 allegation where the governor is not just the titular head 9 and included as the titular head but is included as somehow 10 playing a role of some nature in connection with the policies

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11 or procedures or actions that form the basis of the lawsuit, 12 I think he's a proper defendant and he should be there. And 13 that's the way I read Rizzo against Goode and I take it from 14 Mr. Bass that you intend to make those allegations, do you 15 not? 16 17 MR. BASS: Yes, we do, your Honor. THE COURT: If he does and I see no reason why he

18 won't, I wouldn't expect to see a motion to dismiss from you, 19 Mr. Brown, understood? 20 21 22 MR. BROWN: Understood. MR. BASS: Thank you, your Honor. THE COURT: Class certification. Mr. Bass, why

23 don't we start with you on this. Here's my concern, and then 24 you tell me why I shouldn't be concerned about it or what 25 your answer is to it:

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1

It seems to me that your complaints about the

2 policies and procedures and transition plans and grievance 3 plans, that seems systemic. In other words, it's 4 programmatic, it goes across the board, it affects everybody

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5 who avails themselves of those programs and I'll be asking 6 Mr. Brown why shouldn't that be a class action honestly, but 7 his point is that at least some of what you are claiming here 8 is that the people haven't been reasonably accommodated and 9 they should be reasonably accommodated. 10 As to that portion of your case, I think even you,

11 in your reply brief, conceded -- I'll find it in a second -12 that, you know, that's really based on individualized factual 13 determinations as to what each person needs, someone who's 14 blind needs different services than someone who's depressed 15 and can't leave the house and different services than someone 16 who is confined to a wheelchair and everybody has to be 17 accommodated in a different way and trying to determine 18 whether or not they have been accommodated reasonably 19 involves sort of numerous individual factual determinations. 20 So where I come out is or where I'm thinking is,

21 there are a lot of this that you are challenging which is 22 programmatic and affects everybody equally, it seems to me, 23 the grievance and the like, the policies, the training and 24 all those things. 25 But it wasn't clear to me whether there's some

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Page 43

1 other thing in your lawsuit which is saying, wanting an 2 order, for example, that the department shall reasonably 3 accommodate all the disabled people in the system. That's 4 what the statute says, for goodness sakes. I don't know 5 whether that's what you are seeking or if you want an 6 individual determination that the department hasn't been 7 reasonably accommodating, you know, that may develop into 8 individual factual determinations. That's what I want you to 9 address. 10 MR. BASS: Well, your Honor, we maintain that the

11 crux of the case at bar is, in fact, a challenge to the 12 systemic lack of any process, any sequential system in place 13 that identifies, screens, accommodates and tracks on an 14 ongoing basis the reasonable accommodations of disabled 15 applicants and recipients who try to meaningfully access DSS 16 programs, services and benefits. 17 The crux of the litigation has its focus on the

18 defendants' actions or inactions, not on any varying factual 19 patterns of the individual clients who need and who may seek 20 an interactive process which is a reasonable accommodation. 21 THE COURT: When you say defendants' actions, you

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22 are saying on a system wide basis and program basis, not on 23 an individual basis? 24 MR. BASS: The closest analogy is the Carr case,

25 where Judge Thompson granted class certification in a very

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1 analogous situation where plaintiffs were seeking on a system 2 wide statewide basis meaningful access to Medicaid 3 reimbursable dental services. 4 They were being denied due to a series of systemic

5 deficiencies, lack of adequate provider reimbursements to 6 dentists to enable them to participate in the program and to 7 provide sufficient numbers of dentists in the state who 8 would, in turn, serve recipients. Lack of outreach. Lack of 9 supportive services such as scheduling assistance, case 10 management, transportation to both children and adults, all 11 systemic problems and Judge Thompson granted class 12 certification. 13 THE COURT: How do I ensure, were I to certify a

14 class, though, that the case wouldn't evolve into 15 individualized factual determinations as to whether this

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16 particular person was accommodated or that particular person 17 wasn't accommodated and it would stay at that system wide -18 not 30,000 feet but systemwide applicable to all and how do I 19 ensure that that's what the case remains once it gets 20 certified? 21 MR. BASS: Because we sought a Rule 23(b)(2) and

22 declaratory relief based upon a unitary course of conduct 23 from the defendants resulted in their actions or inactions 24 affecting all class members statewide and systemwide and 25 thereby making appropriate declaratory injunctive relief for

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1 the class as a whole. 2 We submit that we absolutely meet that standard as

3 well as the four prerequisites of Rule 23(a). There's 4 absolute commonality under 23(a)(2), we are not bringing 5 damages actions, so litigating individual circumstances of 6 individual clients who may seek reasonable accommodations is 7 not part of the lawsuit. 8 What is part of the lawsuit is a systemic challenge

9 to lack of policy and procedures in place to afford people

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10 with so-called hidden disabilities such as learning 11 disabilities, cognitive disorders, behavioral disorders as 12 well as the more readily apparent disorders of individuals 13 such as those who are mobility impaired and confined to 14 wheelchairs. 15 16 THE COURT: Ms. McMahon and Ms. Morin? MR. BASS: Do not present disabling conditions and

17 we propose to drop them from the lawsuit, your Honor. 18 19 THE COURT: When you do your amendment. I'll talk to Mr. Brown then. When you first got

20 up, one of the first things you said that struck me was, 21 geez, your Honor, all the relief they're looking for, you 22 know, doesn't really affect the governor after all what 23 they're looking for is changes in grievance policies, they're 24 looking for changes in training, looking for changes in 25 notification and notices and we've done all these things and

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1 DSS has done all those and implemented all those things. 2 If I take you at your word and that's what this

3 case is about, recognize for a moment that they disagree that

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