*1 disеase,” his “progression pre-existing of Richardson is entitled jority concedes Cir.1996). (6th increment of 745-46 the additional 83 F.3d only to recover his aggravation the of by caused damages conclusion, support injury. To Bangor v. cites Stevens majority
the (1st Co.,
Aroostook R.R.
Cir.1996). an held that em- Yet Stevens injured em- for all of ployer is liable HART, child, by J.B., Frederic M. his under FELA when the damages ployee’s D.A., E.A., F.A., friend; Y.A., next by damages caused jury apportion cannot C.C., by Fenoglio, V.C., and Ella Joan condition and employee’s pre-existing friend; R.E., C.E., J.E., and next their case, it is the Id. In this injury. the new E.E., children, by Berg Barbara E. prevents language of the release —which friend; J.S., child, man, their next again for his recovering Richardson from Johnstone, friend; by next Peter H. his appli- injury precludes pre-existing —that and all on behalf of themselves others of rule set forth Stevens cation similarly situated, —Appel Plaintiff s recovery damages limits Richardson’s lants, any aggravation of his earlier caused words, majority’s v. In other condition. the limitation of Rich- regarding
statement VALDEZ, Secretary Alex New J. only is true damages ardson’s Health; Department Wil Mexico release makes it language of the express Johnson, Jr., Secretary liam H. true. Depart New Mexico Human Services “ev- majority further concludes that ment; Wilson, Secretary Heather does not assist” Union idence of release Children, Youth and the New Mexico the 1988 release Pacific’s defense because Department; Michael Families J. liability Pacific of not absolve” Union “does Davis, Superintendent State of Public injury if that aggravation for of the 1986 Instruction; Ortiz, Eleanor President by a accident. aggravation was caused new Education; Board of Van State true, applica- even if has no principle, This Witt, W. Vice President of State contend tion here. Pacific does not Union Mann; Education; Marlis E. Board of liability it from for the release shielded Secretary Rodriguez, Emmalou injuries, only for posN1986 unrelated but Education; Rudy Board of Cas State injuries that constitut- liability from those Davis; tellano; Roger Le Wallace injury of the 1986 ed mere manifestations Lynn Medlin; nard; Miller; Darl injuries “arising out of’ the those Beverly O’Dell; Pogna; R. Millie Ste None of the cases cited injury. Schmidt; Smith; M. ven Catherine Pacific from majority prevent Union Sanchez; Steinborn, Flora and David compel defense or ex- raising this release Education, members of State Board of the release. Babbitt clusion of evidence of p pellees. Defen dants—A Ry. only involved v. & Western Co. Norfolk release, validity of a not its admissibili- Rights, Inc., Amicus Children’s Curiae. (6th Cir.1997); ty, see 104 F.3d 92-93 No. 96-2278. and Aroostook R.R. Co. Bangor Stevens Appeals, all, United States Court involve a release at apparently did not Tenth Circuit. 601; see 97 F.3d at and Wilson v. CSX Inc., Transp., finding far from the release Aug. inadmissible, jury it was for the held plaintiff determine if the had “suffered injuries signing
‘new’ after the release” or
if the condition due to the was *3 Freedman, Goldberg, Boyd,
Joseph Daniels, Hollander, Goldberg, Guttman & (Jane B. New Mexico Wish- Abuquerque, ner, Peifer, Albuquerque, Browning & Mexico, Cubra, Albuquer- New and Peter briefs), Mexico, with him on the que, New appearing Plaintiffs-Appellants. for Clough, Attorney H. Assistant John (Robеrt General, Booms, T. Assistant At- General, Mexico, torney State of New San- Fe, Mexico, brief), him ta New with on the appearing Defendants-Appellees. Lowry Marcia Robinson and Suzanne Nossel, Inc., Rights, for Children’s New York, York, New filed amicus curiae brief. TACHA, BALDOCK, and
Before BRISCOE, Judges. Circuit TACHA, Judge. Circuit Plaintiffs, mentally develop- sixteen or mentally disabled children who are or were Mexico, in the of the state of New brought declaratory this action for injunctive alleging relief that defendants provide protections failed to and ther- apeutic required by services federal stat- and the utes United States Constitution. certify com- sought class prised of children who are now or in “[a]ll (a) the future will be risk of State (b) custody and determined defendants agents their to have form of and/or developmental disability for mental and/or they require therapeu- which some kind of support.” Appellants’ App., tic services or 226. The district court denied Vol. informed court that parties further abstained certification stipulation Twelve of the six- it consider this as the case. intended hearing from rul- appeal these original plaintiffs complaint. October part teen On affirm. ings.1 prejudice We the district court dismissed under the ADAMHRA plaintiffs’ claims History I. Procedural IDEA, and certain claims under the as friends, Plaintiffs, Secretary them next through against well as some claims Mexico’s Health, reform of New seek structural Department of the New Mexico chil- evaluating treating system for Secretary of the New Mexico Human developmental dis- dren with mental Department, and members of the Services *4 The of the custody. in its stories abilities addition, Board of Education. In State sys- reveal a child welfare plaintiffs named preju- the district court dismissed without providing difficulties having tem terrible dice certain claims under the Rehabilita- kind of care and the children with the ADA, Act, tion and the Fourteenth they deserve. treatment appeal Amendment. Plaintiffs do not from rulings. the services and these improve In an effort to by the state and to provided
protections 1994, plaintiffs In March moved for class initi- change, plaintiffs system-wide effect sponte sua certification. The district court by filing ated this action November stipulate ordered the to to addi- parties complaint. They amended a class action of tional facts the current status regarding 1994, alleging complaint March parties plaintiff. each named filed defendants, New Mexico state several 10, stipulation May of facts on second officers,2 had violated the Rehabilitation 1996, after all of the On June Act of the Americans Disabili- dismissal, filings and order of above (“ADA”), Act, the Act the Medicaid ties certification. In district court denied class Alcohol, Health Drug Abuse and Mental granted the district court October (“ADAMHRA”), the Reorganization Act previous reconsideration of its denial Act Individuals with Disabilities Education February 1995 motion to ab- defendants’ (“IDEA”), the Fourteenth Amend- and reconsideration, the district Upon stain. essence, plaintiffs charged In ment. appropriate court found .abstention based services, them failing provide state with Harris, Younger 401 U.S. on benefits, protections guaranteed and (1970), proge- and its 27 L.Ed.2d law. statutory and constitutional ny. into a May parties entered the district court’s deni- appeal Plaintiffs provide of additional facts to stipulation and decision to al of class certification update regarding court with an the district Defendants, for the first time on abstain. plaintiffs. status of the named the custodial C.E., the officers in their official judgment 2. Plaintiffs sued 1. The court entered on E.E., J.S., Y.A., D.A., E.A., F.A., V.C., J.E., capacities. plaintiffs' second Those named C.C., R.E., Governor; pursuant and J.B. to Fed.R.Civ.P. complaint amended include: 54(b), delay finding just reason for in this no Department of Secretary the New Mexico not, however, court did case. The district make Health; Secretary of the New Mexico Human M.H., mention of K.L. or and Secretary New Department; Services parties parties agree not to this Children, Depart- and Youth Families Mexico ment; judg- court also did not enter appeal. The Superintendent of Public Instruc- State R.W.'s claims because it did ment on A.S. and tion; State Board of Edu- President of the hearing their individual not abstain from cation; President of the State Board Vice it R.W.'s case is now cases as did others. Education; Secretary of the State Board moot, appealed. he has not Further- and Education; the State Board and members of morе, A.S. to consol- we denied the motion of of Education. one, his appeal with the current idate his Therefore, become moot. claims have since ap- parties nor A.S. are to this neither R.W. peal. additionally argue by placing overly the Elev- Act in an appeal, J.B. restrictive precludes us from hear- environment, enth Amendment failing a perma- to facilitate this case. ing him, nent for placement failing pro- him with an appropriate vide educational Background
II. Factual program. They further claim a violation estimate, and do defendants IDEA because J.B. received no dispute, approxi- that New Mexico has surrogate protect appointed parent his custody in its mately 3000 children rights. educational develop- have mental or that at least 1000 Y.A., D.A., E.A., F.A., V.C., and C.C. are mental disorders. Children with disabili- siblings develop- who each have several may range receive a custody ties mental, emotional, treatments, support from in-home ser- and behavioral disabili- family complete institution- vices ties. The state took them into by the complaint alization. As shown moved them repeatedly, and has nev- fact, the named succeeding stipulations of placing er more than two of the siblings needs, backgrounds, have varied together. to the According stipula- *5 For purposes and custodial situations. tion, placements Y.A. had received eleven allegations we take the con- appeal, the сomplaint. By since Y.A. had as true. complaint tained eighteen, turned and the had state dis- Conte, Newberg Newberg Herbert & Alba charged custody. her from currently She (3d ed.1992). on 7.26 Class Actions security receives social benefits. The Moreover, complaint because the does not initially placed state D.A. in a residential allegations with tie of its broad stipulation treatment center. The in- plaintiffs, individual named we have lib- mother, dicates that he lived with his ex- construed, erally help with the the dis- cept juvenile a spent for week at a deten- dismissal, trict court’s order of the viola- By tion center after an May arrest. that pertain tions to each child. judicial a order him discharged had from develop- mental J.B. has least six and custody age at the of sixteen. At years mental disabilities. Fourteen old at time, D.A. lived in family home complaint, the time of the the state had security received social benefits while him in placed custody years two earlier family support his received services from because of parental abuse. state first V.C., E.A., F.A., defendants. and C.C. placed him in a psychiatric children’s hos- placements received in foster homes. The pital for evaluation and treatment before subsequent stipulations facts indicate home, moving special him to a needs foster the state them returned to their private psychiatric hospitals, group two a discharged mother’s care and them from home, center, a residential treatment a custody. shelter, regular homeless and a foster home. At the time the complaint, J.B. argue that defendants violated resided in special a needs foster home. rights of each of siblings these under However, stipulation, to the 1995 according the ADA and Rehabilitation Act because New Mexico him in placed sep- had eleven they placed overly them in restrictive set- arate facilities programs since then. tings and failed provide ap- them with He frequently away ran from these envi- propriate programs. They educational ronments and was shop- once arrested for further claim that defendants violated lifting. According stipulation to the 1996 these children’s Fourteenth Amendment facts, placed juvenile the state J.B. in a right family integrity by placing them in period detention center for a of time. At separate They locations. allege addi- update, the latest he resided a motel Y.A., D.A., E.A., tional violation to and received parole social worker and offi- rights per- cer F.A.’s for failure to facilitate a allege services. Plaintiffs that defen- dants ADA violated the and Rehabilitation placement. manent R.E., siblings complaint. By ter home at the time of the custody of The state took J.E., C.E., abuse and and E.E. because of stipulation, appoint- the 1995 the state had mother returning them to their neglect, surrogate parent ed a and treatment from emo- year. after one R.E. suffers and, guardian placed J.S. in a disabilities, while tional and behavioral provided foster home which services C.E., J.E., developmental and E.E. psychological as and medical treat- such respect disabilities. With and behavioral allege ment. Plaintiffs a violation of the R.E., mother did not want her her ADA and Act because Rehabilitation J.S. provide returned because the state did in-home adequate did not receive services. and three disabled sons in-home services They further claim that defendants violat- judicial By May overwhelmed her. by failing ed the Medicaid Act to inform discharged R.E. from state order availability J.S. of the of Medicaid screen- under the although protec- she remained ing administering and not entitled tests. Children, Youth and supervision tive Finally, defendants allegedly violated (“CYFD”). Families Department She also right family integrity J.S.’s Medicaid services. The other sib- received they made no attempt reasonable to re- variety in a of locations. lings placed were turn him to his home. had According stipulation, to the 1995 C.E. homes, psychiatric hospi- resided foster III. Eleventh Amendment tals, companion operated by home assert, Defendants for the first of Retarded Association Citizens im appeal, time on Eleventh Amendment lived guardian. had a treatment J.E. also munity from this federal court suit. Be Meanwhile, companion in the home. E.E. *6 nature, jurisdictional- cause of defen its homes, a tempo- resided various foster may any stage raise this ’defense at dants home, rary respite comрanion and the proceedings. See Sutton v. Utah guardian home and has had a treatment Blind, Sch. & 173 F.3d By update, State appointed. the 1996 C.E. and Deaf (10th Cir.1999); operated by in a foster home 1231 J.E. resided 13 Charles Citizens, Association of Retarded Arthur R. Wright, Alan Miller & Edward had a and received surrogate appointed, Cooper, H. Federal Practice and Proce n security manage- social benefits and case (2d 2d, § dure: Jurisdictio 3524 ed. ment, psychological, special and education Supp.1998). 1984 & We must address this E.E. in a different foster services. resided jurisdictional question to determine wheth home and received services similar to his can reach the class certification and er we siblings. allege that New Mexi- abstention issues. co violated the ADA and Rehabili- officials gen Amendment “The Eleventh by failing provide tation Act in-home erally against bars a state suits R.E., C.E., J.E., E.E., services to and and court commenced citizens of appropriate therapeutic educational and or, Elephant citizens of another state.” They services to R.E. and C.E. further Irrigation Depart Butte Dist. N.M. v. preserve claim that failed to defendants Interior, ment 160 F.3d 607 siblings’ family integrity by placing (10th Cir.) Louisiana, (citing Hans v. 134 settings. them in different 1, 13-15, L.Ed. 842 U.S. 10 S.Ct. 33 physical, developmen- suffers from J.S. (1890)), Salisbury cert. denied sub nom. tal, custody and behavioral disabilities. of N.M., Elephant Irrigation Butte Dist. year complaint, for one at the time of the — U.S. —, 1255, 143 L.Ed.2d 119 S.Ct. initially place- received a foster home J.S. (1999). However, primary three meth 352 ment but was returned tо his mother circumventing “for the Eleventh ods exist him briefly. placed His mother back allowing and federal courts to Amendment provided because the state with federal laws.” compliance ensure state support stopped paying no in-home Chemerinsky, resided in a fos- Erwin Federal Jurisdiction for his medication. J.S. 1286 (3d ed.1999); Butte, Elephant cataloguing deep see also After historical 607; roots, Pipeline legal importance, ANR Co. v. and the of state
160 F.3d at
(10th
over,
regulatory
Lafaver,
public
150 F.3d
1187-88
control
own-
—
Cir.),
denied,
—,
of,
lakes,
ership
cert.
U.S.
streams and
the Court
S.Ct.
(1999). First,
904, 142
Ex parte Young
L.Ed.2d 902
a state
ruled that the
doctrine
See, e.g.,
may
may
support prospective
consent to the action.
Ele
not be used to
Butte,
607;
injunctive
at
ANR
phant
Pipe
against
160 F.3d
federal court
relief
line,
Second, “Congress
just
at 1188.
state officials when that relief is
F.3d
as
may clearly
expressly abrogate
sovereignty
much an intrusion on state
Butte,
immunity.” Elephant
money
states’
as an award of
damages[.]
also,
607;
e.g.,
Pipeline,
F.3d at
ANR
see
ANR Pipeline,
(citing
of Federal Rule of Civil Procedure F.3d Baby 1080 Neal (3d Cir.1994). Falcon, 48, Casey, v. Tel. Co. v. 43 F.3d 56 See General U.S. Thus, 147, 161, commonality requirement “[t]he L.Ed.2d 740 is 23(a) if plaintiffs’ grievances met share (1982); Reed, a com- 849 F.2d 1309. Rule question mon of law or of fact.” Marisol four for certifi- imposes prerequisites class Giuliani, (2d A. v. 126 F.3d Cir. cation: 1997); Conte, see Newberg supra, also & (1) joinder numerous that the class is so Further, §at 3.10. the claims of “[t]hat (2) impracticable, all of members individual may class members differ factu- questions there are of law or fact com- ally should not preclude certification under (3) class, mon the the claims or de- 23(b)(2) Rule of seeking appli- a claim representative parties fenses of the are cation policy.” common Adamson v. typical of the claims or defenses of the (10th Bowen, Cir.1988); 855 F.2d (4) class, representative parties and Williams, see also Milonas fairly adequately protect will and (10th Cir.1982).4 interests of the class. The diverse situations' of the named addition, seeking declaratory those or plaintiffs question show there is no of fact injunctive relief must meet the require- common to the Even class. note: 23(b)(2), ments of Rule which states that These children come into “the party opposing the class has acted or the state in a variety ways. Most are grounds generally refused to act on appli- taken out of their natural homes class, thereby making cable to the appro- Children, Department of Youth and priate injunctive final relief or correspond- (CYFD) Families because abuse and ing declaratory respect relief with to the neglect dеterminations. These children 23(b)(2). class aas whole.” Fed.R.Civ.P. homes, then are placed in foster residen- The district court in this ease found centers, tial homes, treatment group 23(a) plaintiffs had failed to meet the Rule shelters, temporary psychiatric or hospi- requirements commonality typicali- tals. Some children are taken into the ty. validity Plaintiffs contest the custody of the State through juvenile reasoning court’s and conclusions system they corrections placed are regarding those prerequisites. class action Boys School, School or Girls Diagnostic Youth Development observed, Cen- As the district court ter, Sequoyah diagnostic and treat- “commonality 'requires only a single issue ” sometimes, facility, ment psychiat- Valdez, common to the class.’ K.L. v. ric hospitals. (D.N.M.1996) 167 F.R.D. (citing Conte, 3.12); Newberg supra, & see Appellants’ Thus, App., Vol. at 230-31. Inc., also In Sys., re American Med. ways 75 the in which these children come into Instead, 4. The correctly district court in this case set versal. interpret we this statement principles, forth these but it concluded simply finding: reiterate the court’s earlier matter, holding, present “In the the Court statutory there is no one or constitu- proposed finds that the members of the tional claim common to all named Plaintiffs satisfy prerequisite do not commonality Rather, putative class members. each insufficiently subject *9 to the statutory and constitutional claim is com- they may risk that suffer from all of Defen- imprecisely mon to an definеd subset of K.L., alleged dants' Violations.” 167 F.R.D. at some named putative Plaintiffs and some 693. Plaintiffs claim this shows the court Thus, class members. there can be no one applied improper heightened standard re- legal theory or factual issue common to all quiring commonality the class to have on all putative Plaintiffs and all class members. legal claims. representa- Nor can the claims of the class statement, tives Although imprecise, and the class members the be based on above in light legal opinion, theory. the same support entire does or remedial (citations K.L., allegation omitted). the judge applied that F.R.D. at 691 Therefore, wrong legal support applied standard to his decision. district court the cor- Thus, phrase this alone legal does not warrant re- rect standards to the facts of this case. allegation to read am Br. at 25. We refuse particular as their custody as well failures as a moniker for systematic of custody in differ drasti- once placements J.B., requirements. class action meeting took the state example, For cally. 23(a) of J.E., requires question a common R.E., C.E., E.E. into Rule and of law neglect. question fact. For a common abuse law or parental of because exist, in must share a contrast, proposed putative some children to custody after conviction some kind. For legal question of class entered discrete . R.W., Bernstein, a named offense. v a class example, a сriminal Wilder of who court but plain before the case on which plaintiff action child welfare of class from the denial Protestant appeal rely, plaintiffs, did not black tiffs n this; certification, he entered children, illustrates law for challenged New York’s a sex offender. custody as convicted as uncon child welfare services providing why note does not even complaint discriminatory. See 499 stitutionally F.A., V.C., C.C., D.A., E.A., and Y.A., (S.D.N.Y.1980). J.S. All class F.Supp. Similarly, Mexico. wards of New became system denied them members claimed the primarily children have resided some their race and reli placements, because of boys’ and treatment centers residential Here, rather than ade gion. See id. fos- schools, stayed have while others advancing question a discrete quately course during the parents families and ter law, broadly merely attempt plaintiffs fre- Many have moved custody. of state -variety a of claims to establish conflate arrange- living among the various quently “system commonality allegation via an New in the state of programs ments hold, refuse to as atic failures.” We Mexico. law, of a any allegation that matter of various laws auto
Hence, and the factu- violation of examples systematic as these 23(a)(2).' demon- Rule The district provided matically above meets background al strate, children com of these to determine the circumstances court retains discretion being position than all dis- “in monality Other it is the best vary grеatly. case, having had some way ap abled some the.facts to determine child with New Mexico’s alternative consequences sort of contact preciate link no common factual system, welfare of the case resolving the issues methods say cannot plaintiffs. We joins these efficient method ... to select the most discretion in court abused its the district Boughton, for their resolution.” commonality pro- no factual finding legal facts and complex at 825. Given case, posed say class. we cannot involved issues its discretion court abused the district affirm the district court’s We also plaintiffs’ to characterize when it refused law. question common finding of no systematic violation.5 claims as a “there no-one The court concluded (cid:127) solely on their rely do not Plaintiffs claim common statutory or constitutional commonality, how- theory of “systematic” putative and all named Plaintiffs to all least, that, very at the They contend K.L., ever. 167 F.R.D. class members.” suffer, or will class members putative all claim that the common respond Act, the suffer, of the Medicaid violations in the defen systemic failures is “that ADA, Act. the Rehabilitation We system deny delivery child welfare dants’ amend- second closely reviewed legally- of the class access all members to match in an effort complaint ed need which mandated services proved This plaintiff.6 with each claims Appellants’ disabilities.” because of their the district court informed differs 6. Plaintiffs recognize that this conclusion 5. We integrate the for the court intended by the Third Circuit in reached from that *10 19, 1995, May stipulation, on into filed first Baby Casey, F.3d Neal v. case. See similar 48, Appellees’ at complaint. Supp.App. 1994). (3d 60-62 Cir. sup- stipulation as We have treated 13. complaint. We in the plementing the facts complaint difficult spe- receiving appropriate fails to services have no cifically particular allegations tie the Thus, claim under these statutes. the dis- Instead, it individual children. states the' trict court correctly stated that “there is factual circumstances of each child and statutory no one or constitutional claim then, terms, very general alleges viola- common to all named puta- Plaintiffs and ADA, Act, tions Rehabilitation Title K.L., tive class members.” 167 F.R.D. at (Medicaid Security XIX the Act Social Act), IDEA, and the Fourteenth Amend- sum', given divergent circum- feasible, ment. help When and with from stances, claims, legal and corresponding the district court’s order of dismissal from child, remedy for each we hold party appealed, which neither we have district court did not abuse its discretion paired the alleged violations under each failing single to find a issue of law or fact claim with the recited facts of the individu- common to all class members. Because al children in an effort to review the dis- we find no abuse of discretion regarding trict commonality.7 court’s failure to find commonality, we need not reach the dis- Our work allegation rеveals no common finding trict court’s typicality. on of a Medicaid Act all violation for named Our affirmance of the denial of class plaintiffs. Similarly, only a few of the requires certification us to rule on the plaintiffs named asserted claims under the continuing viability of plaintiffs’ individual IDEA and the Fourteenth Amendment. K.L., M.H., claims. As noted previously, As for the ADA and Rehabilitation Act R.W., and parties A.S. not to this claims, plaintiffs all named appear to have Moreover, appeal. we grant defendants’ asserted that defendants denied them ben- J.B., Y.A., D.A., E.A., motions to dismiss efits, services, or adequate care because of F.A., V.C., C.C., R.E., and J.E. because their disabilities. if this Even were suffi- they have reached the age majority cient legal to establish a question common otherwise fallen outside of state custody as to plaintiffs, the named plaintiffs have and their claims are now moot. It appears not shown that it putative is common to all C.E., E.E., only and J.S. continue to class proposed members under their Thus, viable individual claims. we definition. sought certify must determine whether the district court class of all children who erred in granting New Mexico’s motion for “have form of develop- mental and/or abstention as to parties. these mental disability they for which require some kind of therapeutic services or sup- V. Abstention port.” Appellants’ 2, App., Vol. at 226. court,
This broad
upon
definition would include not
reconsid
eration,
just children whom New Mexico
abstained from
improper-
deсiding Plaintiffs
ly
assistance,
Harris,
denied
but
claims
Younger
also children who
based on
v.
actually
37,
required
receive all services
under U.S.
1291
(1979).
432,
2371,
at
102
County,
60
994
sex
457 U.S.
S.Ct.
L.Ed.2d
We
99 S.Ct.
Younger
2515;
1297;
ab-
126
at
appropriateness
Taylor,
F.3d
Seneca-
review
v.
Taylor
Jaquez,
Tribe,
de novo.
Cayuga
stention
children
This
Plaintiffs
“New Mexico
making
court in the role of
disposi-
federal
juris-
Children’s Court is a court of limited
such as
to
tional decisions
whether
return
only
diction
can hear
arising
which
matters
parents
conjunction
the child to his
in
with under
Appellants’
the Children’s Code.”
assistance or whether
modify
state
to
However,
Br. at 43.
assuming
even
plan.
treatment
These are the kind of
only
the Children’s
permitted
Court “is
currently
decisions
made
the New Mex
do
specifically
what is
authorized
through
periodic
ico Children’s Court
statute,”
R.,
Angela
133,
In re
105 .N.M.
See,
process.
e.g.,
review
Stat. Ann.
N.M.
1387,
729
(Ct.App.1986);
P.2d
1391
accord
(Michie
32A-4-25(H)(2), (6)
§§
Supp.1998).
M.,
State v.
124
Adam
N.M.
953 P.2d
current
prevent
The
suit would
the Chil 40, 45
plaintiffs fail to clear-
(Ct.App.1997),
carrying
dren’s Court from
out this func
ly show that the Children’s Court could
Giuliani,
tion. But
A. v.
see Marisol
929
adjudicated
not have
these federal claims
(S.D.N.Y.1996)
F.Supp.
689
(finding during
periodic
process.
review
The
seeking systematic
action
reform of New Mexico Children’s Code specifically
program
welfare
would
“improp
child
not
provides
the periodic
review of disposi-
erly challengfe] a state
proceeding
court
tional
in the
judgments
Children’s Court.
courts”);
through the federal
Norman v.
§
N.M.
See
Ann.
Stat.
32A-4-25. Under
Johnson,
F.Supp.
739
1189-90
provision,
this
may
the court
“make ...
(N.D.Ill.1990) (finding class action chal
orders
regarding
plan
treatment
lenging
system
child welfare
not
did
inter
placement of the
protect
child to
the child’s
fere with ongoing proceeding).
best
if the court
interests
determines the
While we find
engaged
were
in department has failed in implementing any
an ongoing state proceeding, we are less
provision
material
of the treatment plan or
about
certain
whether
could have ade-
abused its
in
discretion
the placement or
quately raised their federal statutory and proposed
placement
child.” Id.
constitutional
claims
state pro-
these
32A-4-25(H)(6). Thus,
§
the Children’s
ceedings.
however,
uncertainty,
This
mili-
seemingly
Code
grants
the Children’s
in favor of
tates
abstention.
though
Even
power
Court
wide
determine the needs
plaintiffs have not raised their
and claims of children during
periodic
below,
claims
the “pertinent
issue is
proceeding.8
review
appellees’
whether
[federal] claims could
Furthermore,
the Children’s Court con-
have been raised in
pending
pro-
stitutes a division of the state district
Moore,
ceedings.”
442
at
U.S.
99
court, with a designated district judge pre-
added).
2371 (emphasis
S.Ct.
32A-1-5(A).
siding.
§
id.
See
Defen-
bear the burden of proving
pro-
dants argue that the Children’s
has
Court
cedural law
presentation
barred
of their
the full constitutional powers of the district
claims in the New Mexico Children’s
court, a
general jurisdiction.
If
Texaco, Inc.,
Court. See Pennzoil Co. v.
case,
this is the
the Children’s
may
Court
1, 14-15,
481 U.S.
hear
claims. The answer to this
(1987); Moore,
L.Ed.2d
442 U.S. at
uncertain,
question
but,
as the Supreme
2371. “Certainly,
S.Ct.
abstention is
Court
stated
Pennzoil:
appropriate unless state law clearly bars
We cannot
interposition
judges
assume that state
will
statutory]
[federal
interpret
Moore,
ambiguities
and constitutional
procedural
claims.”
425-26,
case,
U.S.
presentation
S.Ct. 2371. In bar
of federal claims.
law.
plaintiffs have failed to
Accordingly,
show that
when a
clearly
litigant has
at-
they could not have raised
tempted
present
their claims
his federal
claims
during
periodic
review proceedings.
related state-court proceedings, a feder-
addition,
modify
the Children's
can
party
guardian
Court
tion of a
or the child’s
ad
dispositional judgments
time on mo-
litem.
id.
32A-4-24.
V. Conclusion
proce-
that state
should assume
al court
remedy,
adequate
will afford an
dures
does not bar
Eleventh Amendment
*13
authority to
unambiguous
the
absence
We AFFIRM the
our review of this case.
contrary.
the
of class certification
court’s denial
district
defendants’ motion to
and GRANT the
(internal
1519
U.S.
E.A., F.A., V.C.,
J.B., Y.A., D.A.,
dismiss
omitted).
citations
C.C., R.E.,
AFFIRM the
also
and J.E. We
abstaining from hear-
district court’s order
authority to
“unambiguous
no
We find
C.E., E.E., and
ing the individual claims of
us the New
that
informs
contrary”
the
DENY defendants’ motion
Finally, we
J.S.
jurisdic
lacks the
Court
Mexico Children’s
ap-
and
portions
appendix
to strike
adjudicate federal statuto
ability to
tion or
GRANT,
in
and
pellants’ brief-in-chief
during autho
claims
ry and constitutional
caption.
part,
their motion to revise
In this
proceedings.
periodic
rized
review
AFFIRMED.
sense,
from oth
us differs
the case before
re
courts have
in which federal
er cases
BRISCOE,
concurring
Judge,
Circuit
in LaShawn
example,
For
fused to abstain.
dissenting:
(D.C.Cir.
F.2d 1319
Kelly,
A.
I
part.
in
in
part
I concur
and dissent
1993),
decision not
based its
the court
suit
majority
plaintiffs’
with the
that
agree
class action on
in a child welfare
abstain
by the Eleventh Amendment.
is not barred
Fam
of Columbia
fact that the District
however,
majority’s
with the
disagree,
I
rejected the use
explicitly
Division “has
ily
abstention
regarding Yоunger
conclusions
adjudge claims re
hearings to
of review
I would conclude
and class certification.
injunctive
relief
questing broad-based
not warranted
Younger
that
abstention is
at 1323. Simi
law.” Id.
based on federal
the federal
plaintiffs do not ask
Casey,
F.Supp.
larly, Baby
in
Neal v.
reviews
periodic
to interfere
courts
(E.D.Pa.1993),
other
rev’d on
Court, because
in New Mexico Children’s
(3d Cir.1994), the
jurisdictiоn only proceedings to consider services, dating provision specific that arise under the Children’s Code. See adequacy constitutional New Mexi- 32A-1-8(A). N.M. Stat. Ann. As rele delivery system, co’s entire service but here, explicitly vant the Children’s Code rather to reassess the Children’s Court’s authorizes Children’s Court to make previous regarding custody determinations status, initial determinations of child’s and treatment. See N.M. Stat. Ann. *16 periodic dispositional conduct reviews of 32A-4-25(G); M., § In re Jacinta placement plan, the child’s and treatment N.M. 764 P.2d (App.1988) plan. and alter the treatment id. See (“The periodic review is a proceeding to § language 32A-4-25. There is no in change determine whether in an initial a reasonably may Children’s Code that disposition change is warranted a in permitting any be construed as child in circumstances.”). These determinations custody state to initiate a federal statuto individual, intensely focusing are only on ry in or constitutional claim Children’s family guardian. the child and his or her Court, nor is there any statutory lan The proceedings nature of the not does guage suggesting jurisdiction of the Chil critical, permit prolonged, a and adversari- Court, dren’s extends to officials in al gamut examination of services agencies Depart state other than the being provided to a child in custody. state Children, Youth, ment of and Families. Moreover, many procedural safeguards specific Given the lack of such statutory in present typical that are a adversarial authorization, I would plaintiffs conclude proceeding, designed and that are to en- clearly have shown their claims were sure fundamental fairness and the reliabili- cognizable in Children’s Court. evidence, ty of admitted noticeably ab- A., In LaShawn sent hearings. Children’s Court For D.C. Circuit considered an analogous example, is the court required itself is not There, a sue. class action on behalf hearing, may conduct the review but desig- brought challeng master, foster care children was special nate that task to a who in ing practices Depart District’s turn submits recommendations to the ment of Human In § Services. LaShawn N.M. court. See Stat. Ann. 32A-4- A, 25(A). subject And, the children periodic were although may evidence be months, or, proceedings every review presented six and witnesses cross-examined at circumstances, every year. certain In hearing, discovery is limited and the affirming the district court’s finding apply.1 order of evidence do not rules See id. step judges clogged Plaintiffs taken the unusual of children. The also claim obtaining dockets, two affidavits from Children's Court discovery, summary limited and the judges historically who attest the Court has proceedings nature of the render the court a involving rights not handled cases federal 32A-4-25(C) (D). tend gamut support programs & The Children’s the entire adjudicate is not suited to the com- custody Court and services for children constitutional, statutory, systemic plex is deficient. Wooley, by plaintiffs. claims raised theory The central complaint is (“Youngеr
430 U.S. that, when children with mental and be- aside, litigant is principles entitled brought havioral disabilities are into seeking forum in re- resort a federal custody, defendants have failed to ... alleged deprivation dress for an of' develop system which capacity has the rights.”). special to meet the needs these children summary, In I believe the court have because of their disabilities. Plain- erroneously Younger. invoked allege tiffs systemic these failures enjoin ongoing not seek to an do constitute violations of various federal proceeding previously or annul a de- laws, against and result in discrimination judgment termined state court or order. them because of their disabilities. addition, In dispositional review hear- Aplt.’s Br. at 29. Plaintiffs do not seek in the Mexico ings New Children’s Court money damages, only declaratory but ongoing proceedings do not constitute and injunctive relief requiring defendants to present plaintiffs adequate do not an fo- provide a sufficient program “care and de- statutory rum in which to air their federal essence, livery system.” plaintiffs seek grievances. and constitutional injunction requiring put defendants to place policies plans into to ensure that II. certification Class children matriculating into state The denial of certification a more class receive screening and other services to question given difficult that our scope of which are entitled under federal law. is limited to' whether the district review Bearing mind the nature of However, I court abused its discretion. claim, I turn to the merits conclude have satisfied that bur *17 denying district court’s decision certifica- An den here. abuse of discretion is estab tion. here, where, lished as the district court I am not convinced that the district legal interpretation errs its court applied appropriate legal the stan- claim and misapplies class the Rule 23 commonality dard in the concluding if factors used to determine class certifica 23(a) typicality prongs of Rule were not appropriate. Boughton tion is See v. Cot satisfied. The district court stated as fol- (10th Corp., ter 826-27 Cir. lows in its order: 1995) (abuse of discretion standard em matter, ployed only present if district court correct the the sixteen applied case). criteria to facts of un- named Plaintiffs have stated claims Act, ADA, the der the Rehabilitation addressing Before the merits of the dis- Act, They Medicaid and the IDEA. also trict class court’s certification order and assert their due violations of substantive majority’s resolution of the class certi- process rights minimally adequate issues, fication it necessary is to elaborate treatment, family integrity, and access brought by on the nature of the class claim judicial named Plain- process. Some plaintiffs. Plaintiffs do not seek redress putative tiffs and class members have any individual state decisionmaker’s only one allegedly suffered violations of not determination services need be statutory rights and cоnstitutional Indeed, specific a child. provided to listed above. Other named Plaintiffs being that are or are not specific services putative alleg- class members have provided apparently to a child particular or three edly suffered violations of two are not issue this lawsuit. Plaintiffs’ complaint systemic: They statutory rights instead is eon- or constitutional (cid:127) magnitude.' Aplt.’sApp.
poor adjudicate forum in which'to matters of such at 762-65. However, parties by resolving dispute to the via a above. Court’s listed Plaintiff and no action rather numerous individ- knowledge, no named class than allegedly member has suf- ual suits. certification under Rule putative class Class 23(b)(3) all even most of the appropriate only “ques- fered violations of or is if the statutory rights and constitutional listed of law or fact common to the mem- tions supra. predominate bers of the class over affecting only individual mem- questions must therefore conclude Court added). This (Emphasis predomi- bers.” statutory that there is no one or consti- in a requirement nation makes sense Rule tutional claim common to all named 23(b)(3) gener- all mem- context because these cases putative Plaintiffs and class Rather, statutory ally highly each and consti- involve individualized claims or bers. impre- require plaintiff-by-plain- tutional claim is common to an an individualized cisely monetary damages. defined subset of some named tiff determination of putative Plaintiffs and some mem- Wright, class 7A Charles A. Arthur R. Mil- Thus, legal Kane, bers. there can be no one Mary Kay ler & Federal Practice theory Procedure, (1986). factual all § issue common to at 516-17 putative 23(b)(2) and all class mem- The nature of Rule action obvi- can the bers. Nor claims of the class pre- ates the need for common issues to representatives and the members injunctive dominate because relief be based on the same or remedial that, granted, if will cure the sought ills theory.... by every plaintiff suffered named and class Few, if any,
member. individualized de- in a terminations be made Rule need ... Court finds that the mem- [T]he 23(b)(2) class action. See id. class do proposed satisfy bers (“Class injunctive suits for or declara- prerequisite commonality tory very pres- relief their nature often subject insufficiently to the risk questions satisfying” ent common common- from all they may suffer of Defen- ality.). alleged dants’ violations. The district compounded its error Valdez, K.L. v. 167 F.R.D. 691-93 by disregarding complaint relying (D.N.M.1996)(citations omitted). stipulation parties that it on directed The insinuation in the district court’s parties The court required craft. statement-that all class members must suf- “stipulate many to as as possible” facts as (or suffering fer or be at risk of from all *18 present to “the custodial status of each one) even more than of alleged defendants’ Plaintiff currently named and the services only contrary violations-is not to well-set- being provided to Aplt.’s those Plaintiffs.” tled law but inconsistent with the court’s App. 114. The parties presented stip- a recognition earlier that one issue of com- the court ulation to which set forth each mon fact or law is sufficient for commonali- plaintiff receiving. service each named was ty purposes. Pursuant to the rule applied certification, denying In class the district court, by the district pro- no action could essentially court the ignored allegations of plaintiff ceed as a class unless each named and, complaint stipula- the based on this uniformly legal asserted the same claims tion, exactly determined what services it injuries or suffered the same at the same appeared plaintiff alleged- each named was time. The district analysis court’s is more ly being deprived of in violation of federal 23(b)(3) akin applied to one to a Rule class was, foremost, 23(b)(2) law. This first and an inde- than a action Rule action. pendent determination of the merits of significant. The differences are Rule 23(b)(3) plaintiffs’ claims. It is well-settled that is a broad provision catch-all al- lowing may the district the district court not examine the certify court to a class in deciding its discretion when a motion for class to do so would con- merits certi- serve the resources of the judiciary City fication. See Anderson v. Albu- (10th Cir.1982). concluding failed to show plaintiffs F.2d querque, 690 typicality, the stipula- is that the district.court stated “there unsettling Even more determining potential whether are conflicts of interest between tion is useless exist, the putative or whether the named Plaintiffs and the сommon issues 167 F.R.D. at The plaintiffs typical the named class.” district claims of in that potential claims the absentee class members. court saw conflicts some the stipula- plaintiffs pursuing statutory court’s misuse of this named were The district analysis being pursued by its entire certification claims that were not tion renders reveal, Thus, stipulation plaintiffs. according The does not other named suspect. court, if complaint, plaintiff pur- were the district one was as does IDEA systemic just suing only relief and not assert- claim and another seeking was claim, pursuing only federal statutes. a Medicaid Act each ing individual violations of tempted ignore statutory would be Applying appropriate legal stan- pursuit claim of the other in vigorous alleged complaint, to the facts dards their own claim. commonality typ- I would conclude the potential by and a icality requirements perceived are satisfied conflict minimal, previ- As if it at all. class should have been certified. is exists stated, noted, redress did not accu- ously plaintiffs do not seek As district court deprivations, sys- rately but characterize the nature of for individual seek obtained, that, remedy complaint. complaint if will The court reads the temic relief by any asserting partic- child in as causes of actions under every violation suffered Hence, particular com- ular federal statutes a custody. alleging the dominant by every plain- a deprived particular mon theme asserted child has been systemic tiff is that the deficiencies service or treatment to ’which child is de- The court system ig- defendant’s treatment service entitled under federal law. custody that the crux of the is the prive complaint all children who nores very developmental alleging process suffer from mental and dis- claim occurs rights guaranteed by orders of them stat- in the course of a child’s matriculation into discriminatory and uncon- ute or the Constitution. This satisfies 23(a)(2)’s commonality requirement. comprehensive, Rule stitutional. Plaintiffs seek (3d individual, Neal v. relief. Baby Casey, Cir.1994) (“Because may requirement light, viewed in this the named When issue, by single satisfied common it is be every an incentive to show plaintiffs have met.”) easily (citing Newberg H. & A. provided by treatment or facet of services 3.10, Conte, Newberg on Actions Class byprod- and is a inadequate defendants is (1992)). at 3-50 system-wide deficiency. Empha- uct of 23(a)(3)
Typicality present. by plaintiff alleged is also Rule sis a named on a claim plaintiff certification “the claims but not another named precludes unless parties or class member would be incon- representative plaintiff *19 or defenses of the typical of the claims or defenses of the with this incentive and would serve are sistent only provide not that a failure to a Typicality require class.” does to demonstrate or particular federally-mandated the claims of class members be identical to service treatment, type systemic of not a inade- plaintiffs. the claims of the class See Anderson, “[Djiffering quacy. every F.2d at 800. This would undermine systemic are of class members do not claims that there fact situations process employed by ... in the typicality long defeat so as the claims deficiencies and class mem- to determine what services are representative of the class defendants law, needed, and legal required by on the or reme- bers are based same Bowen, entry provided upon are to be to a child theory.” dial Adamson v. Neal, (10th Cir.1988). custody. Baby F.2d into systematically “whether defendants require- “a (noting typicality at 58 F.3d in mandated ser- automatically legally ... provide satisfied failed to almost ment is injunctive re- seeking unique “The circum- Id. at 377. primarily actions vices.” lief’). compromise child do not of each stances ... of whether de- question common troubling majority’s Finally, I find by injured all class members fendants have from rejection of two cases unexplained state law their federal and failing to meet dealt with this circuits that have our sister the court held appeal, Id. On obligations.” A. v. Both Marisol Giulia- precise issue. Cir.1997) legal the common (2d “conceptualizing Baby that and F.3d 372 ni Neal, of high at this level questions child wel- and factual systemic were into a aggregating was them in which class certification cases fare abstraction” — A., the Circuit In Marisol Second not constitute an abuse sought. “super-claim” —did certified; Baby in a class to be permitted conceded this Id. The court of discretion. Neal, a to required class the Third Circuit “stretchefd] characterization generalized be certified. commonality typicality,” and the notions of plaintiffs’ inju- convincing found it but A, action was a class In Marisol single defi- allegedly derived from ries City New chil- brought on behalf of York conduct. system’s unitary course of cient City York child alleging dren the New systemically deficient Id. system was welfare in adequate services failing provide factor in the apparently significant One and state of a number of federal violation in Marisol A. Circuit’s decision Second Constitution. and the United States laws in Baby was Third Circuit’s decision the. reservations, panel
With some
Neal, a
action was
Baby
Neal. In
upheld the district court’s
Second Circuit
in the
brought on
of children
custo-
behalf
Defendants,
certify
a class.
decision
of Hu-
dy
Philadelphia Department
commonality
surprisingly, contended
Services,
City’s
operated
man
which
only
“grossest
at the
level of
present
was
al-
system.
complaint
welfare
child
entirely
and
was
generality,”
typicality
systemic
very
claims
similar to those
leged
nonexistent:
in Marisol A. and those here. Unlike
point out
that each
The defendants
A,
Baby
court in
Neal
Marisol
the district
challenges a different as-
plaintiff
named
grounds
class certification on
denied
system.
welfare
These
pect of the child
commonality
failed to show
plaintiffs had
train-
allegations
inadequate
include
typicality.
The district court’s order
parents,
of foster
ing
supervision
essеntially
the instant case is
a verbatim
properly investigate
the failure to
re-
in Baby
of the district court’s order
copy
abuse,
ports
suspected neglect
example,
Neal. For
the district court
delay
removing chil-
unconscionable
commonality
Neal
was not sat-
Baby
found
homes, and the inabil-
dren from abusive
because not “one of the common
isfied
ity
appropriate placements
to secure
by plaintiffs applies
asserted
legal issues
adoption....
The claimed deficiencies
every
proposed
member
statutory,
different
constitu-
implicate
tional,
The children’s claims are based
Fur-
class....
regulatory
schemes.
ther,
depending on
single upon
note that no
different
theories
defendants
(named
otherwise)
is affected
circumstances
plaintiff
individual
every legal
alleged
each and
violation
meet
required
child....
The services
complaint,
single spe-
in the
and that no
vastly
needs
one child are
different
*20
by
plain-
identified
legal
cific
claim
child.”
irrelevant” of the nature of sought.
tive relief Id. Significantly, the
district court in Baby recog- Neal failed to remedying
nize that the systemic deficien-
cies would of necessity plaintiffs’ cure each injuries alleged regardless of what services BULLINGTON, Marion S. being were deprived plaintiff. It was Plaintiff-Appellant, sufficiently therefore a common basis for class certification purposes plain- “systemic tiffs attacked the deficiencies LINES, INC., AIR UNITED providing legally mandated child care ser- Defendant-Appellee. short, vices.” Id. 61. In the “violations independently Employment Lawyers of individual- chil- exist[ed] National Associ- dren’s circumstances.” Id. at 62. The ation; Transport Air Association Third Circuit found the district typ- court’s America, Amici Curiae. icality findings equally unpersuasive. The No. 98-1125. deficiencies, systemic not individual differ- ences, were central to the claims United States Appeals, Court of named plaintiffs and class members. Tenth Circuit. There “no ... danger was that the named Aug. plaintiffs have unique interests that might litigate against motivate them to or settle
with the way defendants in a that preju-
dices the absentees.” Id. at 63.
The facts of this compelling case are as Baby
as those in Neal. The district court by citing
here denied class certification
factual differences that are largely irrele-
vant to the misconstruing class issue and unitary systemic claim plain- on which proposed
tiffs’ If require- class rests. 23(a)
ments of Rule are met and one of the 23(b) met,
requirements of Rule then
the district court lacked discretion not to
certify a analyzed class. When this case is framework,
under the appropriate legal satisfy claims the Rule 23 re- I
quirements. would reverse the district
court’s denial of class certification and re-
mand the case to the district court.