The Fernald League has filed a petition to the US Supreme Court to restore Federal Judge Joseph Tauro's order of August 14, 2007, requiring Fernald placement as an option in the individual service plans of all Fernald residents. This order was overturned on jurisdictional grounds by the US Court of Appeals, First Circuit, last September.
The grounds for the action are that other circuits of the US Court of Appeals give more deference to the District Court judge who has overseen a consent decree, while the First Circuit, in this and other cases, treats the consent decree as a business contract, to be treated as if the District Court Judge had no special insight. If the Supreme court accepts the case, to determine how all circuits should view the role of the trial judge in consent decrees, Judge Tauro's order would probably go back into effect until the Supreme Court ruled.
If the Supreme Court were to reverse the Court of Appeals decision, then Judge Tauro's July, 2007 order would stand: that the Romney administration's announcement that it was closing Fernald was a violation of the civil rights of the residents to an individual service plan process free of coercion. This would not make it impossible to close the Fernald Center as part of Governor Patrick's plan to close four of the six developmental centers, but it would slow down the process considerably and probably force objective negotiations with families and guardians there and at other Developmental Centers.
Although the question of whether District Court judges are the best interpreters of consent decrees in their courts seems like a technicality, it really reaches to the heart of the 35-year-old case against the Commonwealth, Ricci v. Okin, in which Judge Tauro has been the only judge on the case. Judge Tauro guided the parties both to establish a community residential system for most of the residents of the state's large facilities for the treatment of mental retardation *and* guided the state to increase staff and treatment for those who chose to remain.
His 2007 order would be cited in other facility-closing cases around the country.