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Orden v. Schafer

United States District Court, E.D. Missouri, Eastern Division

November 23, 2016

JOHN VAN ORDEN, et al., Plaintiffs,
KEITH SCHAFER, et al., Defendants.



         This matter is before the Court for consideration of the fairness, reasonableness, and adequacy of a proposed class action settlement under Rule 23(e) of the Federal Rules of Civil Procedure. The settlement agreement proposes injunctive relief to address alleged constitutional violations. The case is somewhat unusual because counsel representing the Plaintiff class have divergent views with respect to the fairness and sufficiency of the proposed settlement. Further, all of the class representatives and most of the class members oppose the settlement. The settlement addresses only the remedial phase of the case, as the Court has already found the statute at issue to be unconstitutional as applied.

         The Court finds that the proposed settlement agreement contains provisions directed at the main violations found by the Court, and confers many benefits, not the least of which is finality and immediate implementation. Nevertheless, after careful review, the Court finds that certain deficiencies require denial of the proposed settlement and further court proceedings with respect to an appropriate remedy.


         The approximately 225 Plaintiffs in this class action are civilly committed residents of the Missouri Department of Mental Health's (“DMH”) Sex Offender Rehabilitation and Treatment Services (“SORTS”) facilities, who have been declared sexually violent predators (“SVPs”) under Missouri's SVP Act, Mo. Rev. Stat. §§ 632.480-632.525. Plaintiffs filed suit under 42 U.S.C. § 1983, challenging the constitutionality of the SVP Act as written and as applied to SORTS. They named as Defendants various executives and employees of SORTS and the DMH, solely in their official capacities.

         At the request of the parties, the case was bifurcated for trial, and the Court held an eight-day bench trial on the issue of liability only, beginning on April 21, 2015. At the trial, the Plaintiff class was represented by several attorneys who worked cooperatively and vigorously represented the class. The Court ultimately concluded that the SVP Act was unconstitutional as applied to SORTS in three specific respects, [1] each of which contributed to the civil commitment of individuals beyond the time and scope permissible under the Due Process Clause. (Doc. No. 501.)

         The first constitutional deficiency the Court found was the manner in which Defendants conducted annual assessments of the mental condition of SORTS residents, known as “annual reviews.” The evidence at trial showed that annual reviews were the primary tool that the state courts used to evaluate whether a civilly committed person continued to satisfy the statutory criteria for commitment. The Court concluded that SORTS officials responsible for conducting annual reviews were not consistently applying the correct legal standard for evaluating residents' risk level under the statutory criteria. The Court held that the improper application of the annual review mechanism contributed to the continued confinement of individuals beyond the time constitutionally justified. Id. at 53-54.

         The second constitutional deficiency the Court found was with respect to treatment progress and the lack of any community reintegration program. The Court concluded that residents' progress through the various treatment phases at SORTS was “tortuously slow, ” that the “lack of clear time frames for such progress . . . contributed to the program's failure to release residents, ” and that “Defendants' stated goal of treating and safely reintegrating individuals back into the community [was] observed in theory but not in practice.” Id. at 54. The Court held that the result of these deficiencies was “punitive, lifetime detention of SORTS residents, in violation of the Due Process Clause.” Id. at 55.

         The final constitutional deficiency the Court found was that the release procedures at SORTS were not being performed in the manner required by the SVP Act or the Due Process Clause. The Court concluded that the Director of the DMH (the “Director”) had effectively abdicated his statutory duty under Mo. Rev. Stat. § 632.501, which provides that “[i]f the director of the [DMH] determines that the person's mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, [2] the director shall authorize the person to petition the court for release.”[3] The Court held that the Director had not authorized a single person committed under the SVP Act to petition for conditional release, and that Defendants were instead stalling or blocking Director authorization even when SORTS treatment providers and annual reviewers concluded that a resident qualified for conditional release. The Court held that the Director's failure to comply with the SVP Act in this regard contributed to the unconstitutional confinement of persons who no longer met the criteria for commitment.

         The Court held that Plaintiffs' prayers for injunctive relief with respect to these three constitutional violations would be addressed in a second phase of trial, the “Remedies Phase, ” initially set for March 30, 2016. However, before trial was held in the Remedies Phase, the parties jointly moved to stay all proceedings in order to engage in settlement negotiations. Pursuant to the parties' joint request and 28 U.S.C. § 636(b), the Court referred the case to Retired United States Magistrate Judge Mary Ann Medler, who was approved for recall status, to assist the parties with their efforts to agree to appropriate remedies.

         On May 4, 2016, the parties filed a joint motion to approve and direct notice to the class of a proposed settlement. Shortly thereafter, the Court learned that the designated lead class counsel and supporting class counsel (such counsel referred to herein as “class counsel”) believed the proposed settlement was in the best interest of the class. But John H. Quinn, one of the attorneys for the class who took a leading role at the trial, and all but one of the class representatives objected to the proposed settlement.[4] After the parties addressed the propriety of proceeding with a proposed settlement not endorsed by the class representatives, the Court, on August 5, 2016, approved the parties' proposed form of notice and directed notice to the class of the proposed settlement. The Court appointed Mr. Quinn as counsel to represent the class representatives and any other class members who objected to the proposed settlement (Mr. Quinn referred to herein as “objectors' counsel”).

         Class counsel, Defendants, and objectors' counsel thereafter engaged in further negotiations, which resulted in an amended proposed settlement agreement. (Doc. No. 591-1.) Objectors' counsel continued to oppose the amended proposed settlement on behalf of the class representatives but joined class counsel and Defendants in a request to approve a supplemental notice to the class, advising them of the amended proposed settlement. On September 8, 2016, the Court approved the parties' proposed supplemental notice and directed supplemental notice to the class of the amended proposed settlement. All class members received notice of the original and amended proposed settlements, and a full and fair opportunity to object to or support the amended proposed settlement.

         The matter is now before the Court on the parties' motion (Doc. No. 689) for final approval of the amended proposed settlement. Approximately 175 of the 225 of the class members (more than 75% of the class), including all of the class representatives, have objected to the amended proposed settlement, largely through objectors' counsel. One class member has filed a letter in support of the amended proposed settlement.

         The Court held a fairness hearing on October 20, 2016, during which the Court heard arguments from Defendants and class counsel in support of the amended proposed settlement and from ...

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