IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1997

Parent-Guardian Association of Arlington Developmental Center (Petitioner)
v. People First of Tennessee, on behalf of its members, et al.; Arlington
Developmental Center, et al. (Respondents).

PETITION FOR WRIT OF CERTIORARI                                            

Counsel for Petitioner:

William J. Burke, Counsel of Record
Burke & Stone
400 Madison Avenue
New York, NY 10017

William F. Sherman 
Attorney at Law
504 Pyramid Place
221 West Second Street
Little Rock, AR 72201

QUESTIONS PRESENTED

This action involves the undisputed habilitation rights of certain severely
disabled citizens of Tennessee. Remedies conflict. Over objection, class
action status was granted to proponents of one remedy.

For those suffering severe disability, specialized services, constant
monitoring, and ready availability of medical attention are mandatory. Some
parties, including the parents and guardians of the disabled individuals,
submit that an institution is a necessary option for the provision of such
continuous care. "Next friends" and an advocacy group, plaintiffs herein
[People First of Tennessee], favor placement of all disabled in the
community and elimination of the institutional service option.

Over opposition of the parents and guardians, the advocacy group was
certified as the sole class representative.  Upon these facts:

1.  Was class representation improperly granted to an advocacy group,
claiming the right to litigate and decide for all members of a class of
severely disabled individuals, when an intervening party representing
parents and guardians of class members advocated a contrary interest?

2. Was class action status otherwise proper to determine the First
Amendment associational rights of institutionalized, severely disabled
individuals, or did the lower courts impermissibly enter and resolve a
political, medical and social debate over the provision of services in an
institutional setting by granting class action to one proponent, and by
approving the settlement of institutional closure advocated by that
proponent?

STATEMENT OF THE CASE

1.  Overview

        The essence of this legation is an attempt by an advocacy group to
use the federal courts to close the Arlington Developmental Center ("ADC").

        ADC is a state-owned Tennessee facility providing services in an
institutional setting for developmentally disabled individuals. Upon years
of first-hand experience monitoring the care of disabled family members,
petitioner, the Parent Guardian Association of ADC ("Arlington PGA'),
supports strengthening services at ADC and opposes closure. Arlington PGA
also supports improvements in the Tennessee community placement system for
those disabled individuals who choose, and qualify for, such placement.

        The first step to closure was an investigation by the United States
Department of Justice ("DOJ"), which resulted in an unfavorable Letter of
Finding to Governor McWherter on 12 March 1991. Plaintiff People First of
Tennessee ("People First"), self- described as "a statewide advocacy
organization governed by people with disabilities", then "became keenly
interested in problems at Arlington"; retained counsel, and filed this
class action in December, 1991, under 28 U.S.C. Section 1343(a). A DOJ
action, United States v. State of Tennessee, et al., No. 92-2062 M1/A
(USDC, WD Tenn.), followed one month later ("DOJ Action").

        The DOJ Action went to trial in 1993, and resulted in due process
findings unfavorable to Tennessee; a remedial order, and an approved
remedial plan. The DOJ Action is now on appeal.

        This action (No. 92-2213, M1/V at the District Court) only went to
judgment in January, 1997, but has preceded the DOJ Action up the
appellate track and to this Court.

2.  The People First Claim

        Filing their claims as a class action, People First asserted that
Tennessee had denied five residents of Arlington DC "minimally adequate
living arrangements, habitation and services." Claims were pleaded under
various federal statutes, the Fourteenth Amendment, and the First
Amendment. Arlington DC, Governor McWherter, and eleven other Tennessee
officials or agencies were named as defendants (collectively, "Tennessee").

        In January, 1993, upon Tennessee's motion, the District Court
dismissed all statutory claims; claims under the Equal Protection clause of
the Fourteenth Amendment, and three of plaintiff's First Amendment claims.
This dismissal was never appealed. Remaining Equal Protection claims and a
procedural due process claim were voluntarily dismissed in May, 1994.

        Only the remaining two claims on the merits are pertinent to this
petition: denials of associational rights under the First Amendment, and
denials of due process rights to care and services under the Fourteenth
Amendment.

3.  Arlington PGA's intervention

        People First claimed class action status, purporting to speak for
everyone who ever resided at ADC "on or after December 12, 1989"; current
residents, and "all persons at risk of being placed at Arlington in the
future". Tennessee opposed. Arlington PGA was permitted to intervene to
oppose closure and class status, and was aligned as a defendant. 

        This action then paused, in view of developments in the related DOJ
Action.

4.  Parallel Developments

        At this point, the DOJ Action was far more advanced, and had
proceeded without Arlington PGA. It was tried in the fall of 1993, and
resulted in detailed findings, which the District Court later summarized as
follows:

        "Conditions at Arlington did not meet minimally adequate
constitutional standards and, therefore, defendants were found to have
violated the due process rights of residents at Arlington Developmental
Center."

        The trial result of the DOJ action (essentially a judgment on
liability) was not appealed. A remedial order was entered therein on
Tennessee's limited consent on 2 September 1994, and implemented
thereafter.

        In this action, all proceedings were temporarily stayed to consider
the effect of the remedial order entered in the DOJ Action, including the
Court's suggestion "to have the case dismissed without prejudice." People
First chose to press on with this litigation.

5. Resolution of the Merits
      
        A.  The Due Process Claim
    
        On 27 September 1995, the District Court granted collateral
estoppels effect to the liability findings in the DOJ Action, and to the
remedial order entered therein. It then concluded that People First's due
process claim was thereby determined, and entered a final order granting
that claim....
      
        B.  The First Amendment Claim
  
        As People First and Arlington PGA prepared to try the First
Amendment claim, Tennessee promptly folded. Without support in the record,
Tennessee agreed that ADC residents "were prevented from communicating,
associating and assembling with persons of their choice." Tennessee further
agreed to remedy its conduct by "developing a policy" concerning
communication; by "telling the staff ... about the policy"; by disciplining
violations; by giving outside organizations "reasonable opportunity to
communicate with residents", and by "allowing residents the opportunity to
participate in community activities." No monetary or injunctive relief was
ordered.

        Arlington PGA and ComCare inc., a court-appointed guardian,
objected. Arlington PGA's objection was noted in the order for notice to
the class, but nowhere appeared in the text of the notice. 

        Arlington PGA objected on grounds of collusion; absence of evidence
of First Amendment violations; interference with the rights and duties of
parents and guardians "to represent and speak for their children and
wards"; apparent unlimited access of strangers to a previously protected
environment, and difficulties with the term "discourage".

        The District Court observed:

        "The Court recognizes the thoughtful and heartfelt concern
expressed by the parents and guardians of the residents of Arlington
Developmental Center ..."

        Nevertheless, their objections were swept aside. Without citation
of authority, the District Court concluded:

        "Moreover, even assuming there were no First Amendment violations,
this does not change the fact that the agreement is fair, adequate and
reasonable."

6.   Class Action Issues

        Two issues were raised here. Tennessee objected to class
definition. Arlington PGA pointed to irreconcilable difference over remedy
within the purported class: community placement, or continued specialized
services in an institutional setting ...

        The District Court found two factual areas justifying class status:
"Whether defendants are providing constitutionally adequate habilitation",
and "whether defendants are prohibiting residents from associating with
certain individuals."

        The District Court also expressly found this conflict:

        "Lack of consent by parents and guardians for the participation
of their son, daughters and wards in the litigation...".

        Despite this obvious division of interest within the proposed
class, the District Court overruled the objections of Arlington PGA and
Tennessee; certified the class, and appointed People First as sole class
representative.  It concluded that the objections of the parents and
guardians were irrelevant, and that People First was free to be the class
representative despite its commitment to institutional closure. This
finding was most explicit:

        "In making such determination, the Court is mindful that, to the
extent that the views and goals of the parents and guardians are in
conflict with those goals of [the class representative], those views and
goals appear to be adequately represented by [Arlington PGA] ...".

        On 7 January 1997, the objections were overruled, and final
judgment was duly entered. 

        The option of subclasses, with a neutral class representative, was
not offered. 
       
7.  On Appeal

        Only Arlington PGA appealed. Primary stress was placed on the
propriety of People First as the sole class representative, given the
antagonism of interests. Approval of the settlement of the First Amendment
association claim was also appealed, as was the due process disposition. 

On 7 May 1998, the Court of Appeals affirmed in all respects, in an
unpublished per curium opinion. On class action issues, it concluded that
the District Court did not abuse its discretion in concluding that the four
threshold requirement of FRCP 23(a) were met, as well as those of FRCP
23(b)(2). The Court of Appeals made this astonishing conclusion of fair and
adequate protection under FRCP 23(a)(4):

        "There was no evidence that People First had interests that were
antagonistic to those of the other residents." 

        The Court of Appeals also found no abuse of discretion in the
District Court's approval of the settlement of First Amendment claims,
under a cost of litigation rationale and a broad construction of its access
terms.  It also held that only Tennessee was affected by the due process
disposition, denying Arlington PGA's standing to object. 

        Rehearing, and a suggestion for rehearing en banc, were each denied
on 1 July 1998.  The mandate was stayed until 31 August 1998 to permit this
petition; a supplemental motion to stay until 15 September 1998 is pending.

SUMMARY OF ARGUMENT

        Petitioners present two independent reasons for grant of certiorari
in this case.

        As a matter of class action administration, a Court of Appeals has
disregarded last year's decision in Amchem Products, Inc. v. Windsor, 521
US , 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) ("Amchem"), and its
predecessors. It was completely inappropriate to appoint People First as
the class representative in view of its judicially- found conflict of
interest with members of the class (Point I, below).

        Although couched in constitutional and class action terms, the
claims below are really political and nonjusticiable. The core issue is
whether institutions may continue to serve the disabled community as one
care option. That issue is governmental only. (Point II below).

ARGUMENT

I.      AS AN ADVOCATE WHOSE INTEREST CONFLICTED WITH A PORTION OF THE
PROPOSED CLASS, PEOPLE FIRST SHOULD NOT HAVE BEEN APPOINTED CLASS
REPRESENTATIVE, AND THE CLASS SHOULD NOT HAVE BEEN CERTIFIED.

        The class was broadly defined by the District Court:

        "[A]ll persons who, on or after December 12, 1989, have resided, or
are residing, at the Arlington Developmental Center;

        [A]ll persons who have been transferred from Arlington
Developmental Center to other settings, such as intermediate care
facilities or skilled nursing facilities, but remain defendants'
responsibility, and

        [A]ll persons at risk of being placed at Arlington Developmental
Center to other settings, such as intermediate care facilities or skilled
nursing facilities, but remain defendants' responsibility, and

        [A]ll persons at risk of being placed at Arlington Developmental
Center." 

        The first two categories covered at least 423 people; the third
potentially reaches the entire population of Tennessee.  A class as elastic
as this has not previously met this Court's approval. 

        What gives this case particular interest is the national debate
over the appropriate treatment of severe disability. A spectrum of care is
available, ranging from full rehabilitation and return to the community,
through the intermediate step of group homes, up to continued
institutionalization of the incurable.

        There are many colors in this spectrum. The Court of Appeals made
it monochromatic by selecting one to represent all.

1.  The National Debate

        This Petition concerns degrees of disability, and the differences
in appropriate treatment of disability. Community placement or group homes
may well be an effective option for those whose disabilities are less
severe. For many of the severely disabled, however, provision of services
and continuous care in an institution is the best (or only) possible
choice; their very lives may depend on it.

   The essence of the problem was captured in People First of Washington,
Inc. v. Rainier Residential Habilitation Center, et al., No. C96-5906 FDB
(W.D. WA May 1, 1997:

        "FOR [Friends of Rainier] explains that there is a great debate in
this country about how to best treat, care for, and accommodate the
mentally retarded and developmentally disabled. On one side are those who
say that large, institutionalized care is inhumane, unnecessarily
restrictive, and violative of human rights, and that all developmentally
disabled persons should be placed in small, community based programs. On
the other side are those who say that a continuum of care is more
appropriate, that is, that while some disabled persons can function in
community settings, others are so severely disabled that, for them, an
institution with centralized, constant protection and care is a better
alternative. FOR acknowledges that on both sides are experts, examples of
failure, and families with difficult choices and hard feelings."

        Arlington PGA speaks for those people who are so disabled that
their least restrictive alternative is institutionalization. People First
favors community placement and institutional closure. 

2.   The Competing Interests

        Arlington PGA's interest is distinct from  indeed, opposed to --
that of People First. As Judge Burgess' sensitive opinion in People First
of Washington, supra, shows, neither side has a monopoly on correctness;
the choices are agonizing.

        But there are choices. Different interests support different
choices. No one interest may be the class representative.

        Each competing interest has made a clear record. Arlington PGA's
inclusion of institutionalization as an important option was supported by
expert testimony.  People First adopted a position antagonistic to that of
Tennessee and Arlington PGA. It bluntly opposed Arlington PGA's support for
ADC as follows:

        "Appellees simply contend that ... the parents' failure of refusal
to raise the constitutional claims of their sons, daughters and wards, make
it appropriate, in this proceeding, that those claims be raised by the
named appellees..."

        In describing these interests, this Court correctly stated:

        "We deal here with issues of unusual delicacy, in an area where
professional judgments regarding desirable procedures are constantly and
rapidly changing." (Heller v. Doe, supra, n. 16, loc. cit.)

        People First seeks to downsize, and then close, Arlington DC. 
Arlington PGA seeks to preserve it as an option for the many disabled
persons who need that institution open.

        This is a record of competing interests. No single class could
arise from it.

3. This Court's Precedent

        Arlington PGA submits that the sharply differing interests of
People First and itself fail to satisfy the "commonality" test of FRCP
23(a)(2); the "typicality" requirement of FRCP 23(a)(3); the conflict of
interest aspect of the adequacy of representation requirement of FRCP
23(a)(4), and the class definition of FRCP 23(b)(2) under the established
precedent of this Court. The contrary decision below should be rejected. 

        The issue rises to the level of a denial of procedural due process.
Selection of a class representative "whose substantial interests are not
necessarily, or even probably, the same as those [whom] they deemed to
represent" violates due process. Hansberry v. Lee, 311 US 32, 45 (1940).

        In General Telephone Electric Company of the Northwest, Inc. v.
EEOC, 446 US 318 (1980), this Court noted:

        "[T]he adequate representation requirement is typically construed
to foreclose the class action where there is a conflict of interest between
the named plaintiff and the members of the putative class." (446 US at
331).

        This Court plainly concluded there that, when represented groups
compete: "[t]he same plaintiff could not represent these classes." (Ibid.)

        In General Telephone Electric Company of the Southwest v. Falcom,
457 US 147 (1982), this Court noted the same difficulty:

        "The commonality and typicality requirements of Rule 23(a) tend to
merge. Both serve as guideposts for determining ... whether the named
plaintiffs' claim and the class claims are so interrelated that the
interests of the class members will be fairly and adequately protected in
their absence. Those requirements also tend to merge with the
adequacy-of-representation requirement, although the latter ... also raises
concerns about ... conflict of interest..." (457 US at 157, n. 13).

        Very closely on point is Amchem, supra, an asbestos litigation
case. A well- intentioned group achieved a national settlement conditioned
upon class certification. Construing both challenges made here (typicality
and adequacy), this Court rejected the class certification:

        "Settlement, though a relevant factor, does not inevitably signal
that class action certification should be granted more readily than it
would be were the case to be litigated. ... [P]roposed settlement classes
sometimes warrant more, not less, caution on the question of class
certification." (521 US at ---, n. 16; 138 L. Ed. 2nd at 711; 117 S. Ct. at
2248).

        "[FRCP 23(a) and (b)] focus court attention on whether a proposed
class has sufficient unity so that absent members can fairly be bound by
decisions of class representatives. That dominant concern persists when
settlement, rather than trial, is proposed." (521 US at ___; 138 L. Ed. 2d
at 711, 117 S. Ct. at 2248).

        "[N]amed parties with diverse medical conditions sought to act on
behalf of a single giant class rather than on behalf of discrete
subclasses. In significant respects, the interests of those within the
single class are not aligned." (521 US at __; 138 L. Ed. 2d at 714; 117 S.
Ct. at 2251).

        Given the sharp contrast between the interests of Arlington PGA and
People First, neither could represent the class as defined here. The class
itself covered over 423 individuals, and countless others "at risk of being
placed at Arlington Developmental Center." Within this boundless class of
individuals, there existed diverse medical conditions, disabilities, and
behavioral complexities. As this Court observed in Amchem:

        "The settling parties, in sum, achieved a global compromise with no
structural assurance of fair and adequate representation for the diverse
groups and individuals affected." (521 US at __; 138 L. Ed. 2d at 715; 117
S. Ct. at 2251).

        This Court should correct the Court of Appeals' deviation from
Amchem, supra; deny class action status, and remand for further
proceedings.

II.  APPROVAL OF THE CLASS ACTION SETTLEMENT MUST BE VACATED.

        As in Amchem, supra, denial of class action status would also
vacate the settlement of First Amendment claims made below. Whether
individuals choose to settle on those terms, or any others, would be a
matter for remand.

        In this context, we must note that no proof of First Amendment
violations was ever presented. The District Court actually acknowledged:

        "[I]t may well be that [only] a fairly small number of people will
be in the position to really exercise those [First Amendment] rights ..."

        The rights involved are associational. Arlington PGA members were
never denied access to their children. The primary complaint was by an
outside interest group, claiming to "know better." Those prejudiced by the
settlement were Arlington PGA and the disabled residents, for whom People
First was permitted to make life and placement decisions.

        Indeed, we suggest that the core issue involved is political,
rather than justiciable. Institutionalized individuals are clothed with due
process protections under, e.g., Young v. Romeo, 457 US 307, 324 (1982),
and DeShaney v. Winnebago County Department of Social Services, 489 US 189,
200-1, nn 8-9 (1989). To the extent, however, that People First
organizations pursue the objective of institutional closure as "next
friends" to the disabled, a different agenda appears.

        The United States has the unquestioned right to seek relief under
CRIPA, as it did in the DOJ Action. The people of Tennessee may, through
their elected officials or their own vote, determine to open or close
health facilities in their state. People First is neither of these.

        As an amicus curiae, People First has whatever limited role a court
may permit in litigation between real parties.  It may not, however, create
a litigation by copying the DOJ Action through the guise of a "next friend"
pleading when the natural "next friends" of a disabled adult, the parents
or guardians, see no difficulty and raise no alarm.

CONCLUSION

        For the reasons set forth above, this Court should issue a writ of
certiorari to the United State Court of Appeals for the Sixth Circuit.

Dated:  New York, New York
        September 11, 1998

Respectfully submitted,

/s/ William J. Burke, Esq.
Counsel of Record for Petitioner

/s/ William F. Sherman, Esq.
Co-counsel to Petitioner