Message-Id: <5.2.1.1.2.20040108154851.029a1008@mailhost.psychrights.org>
Date: Thu, 08 Jan 2004 16:05:14 -0900
To: "list@akmhcweb.org" <list@akmhcweb.org>
From: Jim Gottstein <jim@psychrights.org>
Subject: akmhcweb-list Potential Declaratory Judgment Lawsuit Against State
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Hi Everyone,

Summary

I am seriously contemplating filing what is known as a declaratory judgment action against the State of Alaska seeking the court to rule that the failure of the state to provide the resources (mainly funding) and opportunities necessary for the four Mental Health Trust Settlement boards to fulfill their settlement mandated duties is a material breach of the settlement. I am writing because I want to know how much support and opposition there is to the idea, as well as to potentially identify a plaintiff.

Background

For a very brief discussion of the Alaska Mental Health Trust Litigation and the Settlement, see, http://www.touchngo.com/lglcntr/spclint/mht.htm and http://akmhcweb.org/docs/Legal/Modandenforcemmo.pdf for a discussion of the modification and enforcement mechanisms. This latter memo was written because of the Administration's initiative to merge the Alaska Mental Health Board (AMHB) with the Advisory Board on Alcohol and Drug Abuse (ABADA). The Alaska Mental Health Trust Authority (Trust) is now considering its position on the merger issue, but the Administration's budget cuts to the 4 boards proposed for Fiscal Year 2005 (FY05) raise the question of whether the state is obligated to fund the four boards sufficiently to fulfill their settlement mandated duties. For example, while there is some indication of flexibility on how the cuts are to be implemented, the Governor's FY05 Budget makes all of the 4 boards' Executive Directors half time positions. One way of interpreting this is that this is a back door way to accomplish a merger by requiring AMHB and ABADA to share an Executive Director (and maybe other staff with the other cuts).   In addition, the Administration has recently issued an edict that no positions may be filled even if there is money for them. ABADA only has one employee with the departure of its Executive Director within the last month and can't even fill that position. The AMHB is losing its planner and is not able to fill that position.

Most importantly from my perspective is the Administration does not seem to believe compliance with the settlement is necessary. As set forth in the memo on enforcement and modification, the settlement really has no enforcement mechanism other than what I call an en terrorem clause. The settlement (including the court's order) specifically provides that if any material term of the settlement is breached, the only remedy is to re-start the whole mental health trust litigation, which means tying up the title to the whole 1 million acres again. The idea is that the memory of how big a problem the original lawsuit was for the state when this happened before will be sufficient incentive not to breach the settlement. (As an aside, my clients opposed this settlement for various reasons, including this enforceability problem)

However, because the Legislature and the Governor normally don't have many restrictions on what they do it really goes against their way of thinking to recognize that they aren't supposed to mess with the settlement.   If the state ever does materially breach the settlement and a lawsuit is filed reopening the original litigation it is going to be a huge mess both for the beneficiaries and for the state so a major objective from my perspective is to keep the State from breaching. Virtually all of the legislators that were around during the settlement are gone and of course the Governor is different too. If the litigation is opened up again, it will have a substantial detrimental impact on the Governor's development agenda so the Governor's budget is counterproductive to his own goals.

The Prospective Lawsuit

The prospective lawsuit is designed as a way to get the Administration's and Legislature's attention on this and to recognize the folly of messing with the settlement in a relatively risk-free manner. Thus, the lawsuit would be to seek a court ruling that adequate funding and other opportunities (such as actually being able to hire people) necessary for the 4 boards to fulfill their settlement mandated duties is a material term of the settlement and breaching it gives rise to the En Terrorem clause. We wouldn't be seeking a determination that the State actually has breached; just that if they don't provide adequate resources and opportunities it would be a breach.   In other words, the idea of the lawsuit is to deter a breach. This seems like a relatively low risk approach, but one can never totally predict how a lawsuit will unfold.

Level of Support

If there is not support for the lawsuit I won't do it. There are two types of support. One is substantive support, i.e., are people in favor of filing the lawsuit and the other is at least a relatively minor amount of financial support. For example, it costs $150 to file a lawsuit and there will no doubt be other expenses. If we lose at the trial court level there would be filing expenses associated with filing an appeal, which is at least $900 unless we can get the court to waive them. I will not be charging for my time per se, but if people aren't willing to come up with the relatively minor amount of money to support the costs in this case I won't consider the support to be real. My intention is to file the case under the auspices of the Law Project for Psychiatric Rights, a tax deductible non-profit corporation. See, http://psychrights.org/. People can send checks or there is even an on-line credit card way to donate (which worked for the dollar when I tested it).   If anybody does want to donate they should mention that it is in response to this e-mail. We will of course use the money we need to for this lawsuit, but it isn't going to be restricted to that if we have some left over. Unless $1,000 comes in for this it will be considered that there is insufficient support for the lawsuit. That's okay; it is your Trust. In that case, we will return the money we did get (unless you want us to keep it for PsychRights).

You can let me know how you feel about filing such a lawsuit by sending it just to me at jim@psychrights.org if you don't want it to go to the whole list.

Plaintiffs

If the lawsuit goes forward we will need a plaintiff (client). The best one from my perspective would be a Trust beneficiary, although I think family members and even every citizen of the state has an interest in not having the case re-opened. A potential issue, however, is that the Legislature purported to repeal what is known as the "Public Interest Litigant Exception" to the award of attorneys fees this past session in Ch 86 SLA 2003 (amending AS 09.60.010). This means that a plaintiff in this case has the potential for being socked with partial attorneys fees to the state if we lose the case. This statute is being challenged by Earth Justice in Juneau and it seems like they have a pretty good shot at getting it thrown out, but there is no guarantee on that either. Also there is the chance that a plaintiff wouldn't be considered a "public interest litigant" and be exposed to this potential if we lost. Thus, from my perspective, a Trust beneficiary that didn't have any money to lose (we call that being "judgment proof") would be best. Unfortunately, many, many Trust beneficiaries are on SSDI and don't really have any money for the state to get (other than the Permanent Fund Dividend) so there are many beneficiaries who are "judgment proof," particularly if they have lost their Permanent Fund Dividend for any reason. Don't get me wrong, it does seem like we should win, but I need to tell you about this issue and it is important to know that no matter how strong a case is, one never knows what will happen. A rule of thumb is that even if you have a 100% case, you only have an 80% chance of winning.

So, is anyone willing to step up to the plate?   If so, please e-mail me separately to jim@psychrights.org

Timing

Oral argument in the Faith Myers case is currently scheduled for some time during February 10-13, so if I don't get this filed by the end of January, it will probably be the end of February before it could go in. I would like to get it in before the end of January so it can hopefully forestall imprudent action on the 4 boards' budgets during this legislative session.

So, let me know what you think about filing the lawsuit and if anyone wants to be considered as a potential plaintiff.

Jim Gottstein
Law Project for Psychiatric Rights
(PsychRights)
http://psychrights.org/
406 G Street, Suite 206
Anchorage, Alaska 99501
(907) 274-7686)
(fax) 274-9493)
jim@psychrights.org

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