the institutions the state centers are some of the most vulnerable members are our society they are in least seventy five percent of the cases profoundly disables that means that they have the mental abilities of infants and toddlers and i think it is very important that we keep that in mind as we consider the issues here more than eighty percent of them don't have guardians a substantial number do not have involve family members or numbers disputed but i believe plaintiff's counsel has put it at somewhere around twenty percent and so we are here in a situation where under the americans with disabilities act by five individuals who wish to be moved out of the state centers to another facility no one disagrees with that yes you want it is you asking this court to  you prevail here is it your position one that we remain and that to the district court to include you as a proper person to intervene court had before us before it at the time of the settlement approval hearing the objections that were filed by us and one hundred some odd other objectors in which we raised these issues so these issues were before the prior decision by this course was a decision on intervention it was not a decision on it was a decision on intervention it was not a decision on the propriety of class certification or on your back here on a second attempt to intervene or you know i'm sorry right you're back here on a second attempt to intervene i know you weren't you the party you're representing both  guardian council was not part of that first appeal but yet your interests are similar our interests are similar and your honor we're back here on a second attempts to be heard ok but we are back here on a second attempt to be heard in  higher different context ok let me just stop you right there ok it seems to me that you and you chose to use the word be heard as opposed to intervene it seems to me not only are you being heard today  the district court heard you and took into consideration many of the actions that you pose judge fisher to district court allowed us to argue at the settlement approval hearing the district court then issued an opinion in which it said that the objections that you raised were by not class members and therefore did not need to be entertained and so i have to be candid judge fisher i'm not sure to what extent the district heard court heard us and didn't because the court's opinion was ambiguous on that point we were there and yet it's he said that he didn't need to hear us we believe your honor we can cut through all of this just by the fact that you're right we're here being heard today we're here being heard today because we have standing to be heard today because we are class members we are class members if i may return to his question because this case has changed dramatically since this court's last decision that decision was entered before there was a sudden agreements that decision was those of those members who wished to be removed from the state centers there were a hundred and some objections stating not only do we not want to be removed from the state provision that is subject to a number of contingencies it says that we are not currently members we if we do not currently desire to be removed we don't have to be bucks we may be in the future if we do desire to be removed and then it sets up a quote a protocol he says yes to both worlds here your honor you know when i was told when i read the plaintiff's position that said you know you're not a part of this class and this doesn't affect you at all and therefore you get away scot free and don't worry about it i can't tell you how tempting it was to accept that and walk away but it's not true this settlement binds everybody it's subjects us to annual reviews under which we are required to state opposition and if we don't see a buck here at those reviews that does all of a sudden my sister is dean's to have agreed that your sister is going to be spoken for your honor today my sister is going to be settled before one of the provisions of disagreement is if i die and i don't appoint a proper substitute suddenly she's not spoken for so my substitute right now is my wife we go on vacation playing goes down she's not smoking hasn't the legislature established the d p w will be the entity that will speak for the who don't have a guardian is iran or isn't that the role and i mean we have to assume that the department that has been directed to manage this class is in fact going to speak properly for those individuals who don't have a guardian your honor here by d p w professional staff that say it is inappropriate to move them out of the state centers to the community and yet deeply w s and ministry to personnel have stipulated that everybody can be moved anyway he  are placed on what's called a list that's correct your honor i'm looking at a protocol and you correct me if i'm mistaken but it's as if the number of parties in this series already this year about ten different categories but the last one says one of these protocol says that if you are incapable of answering this question you have to question you'll be put on the list if you're incapable once you've put on the list you're not going to be looked at doesn't mean you're going to be removed once you're assuming that they're going to close down the states no your honor i'm assuming that the purpose of the list as stated in the settlement agreements is to list those people who will be removed that's the purpose of the list and that's the kernel of your argument that although at the because people that can't speak for themselves  hundred twenty five people currently and then we have to talk about those who are guardians or family members die pass away become unavailable because remember your honor many of these individuals were placed there by their parents some years individuals who filed the suit and have asked to be discharged will be discharged any other individuals who ask to be discharged will be discharged any guardians or family members were asked to do so will be one of the or a proper intervene or since the settlement agreement affects your the people who you represent and you have a right to be heard concerning the settlement because number one  people you represent are automatically get by default going to make a choice which is impossible for them to make and secondly there's a divergence there's only so much money in the pot and the government can only spend so much  and so much for community care and you have a right to be heard as to revamp it back we were a band as to whether or not the class certification was proposed concerning what was before the court i understand that your honor and that's correct all i was going to say was that we believe the record is already clear  change and so we would ask your honor to pine by it otherwise we'll be back here again mr so want to could we eliminate those steps and assume that you should have been properly included and evaluate whether or not the class was properly certified with whether to class definition or to amorphous most of those are questions of law i don't think you need to do a lot of fact finding there and on the propriety of the settlement the fairness of the subtle ment's we suggest your honor that the settlement provisions that ha as to what the settlement play should be and this and the settlement should be following from a proper description of the classic who you are the people you represent what are deter what would you write if you were writing the opinion as to what the settlement should be here ron or i think the first thing you need to do is to address whether this type of class could be certified and i think the answer is it could not if the class i think in your honor the settlement agreement would be put in place proper procedures your primary goal to get into the class at least have a seat at the table so that you can have input with respect to the protocol is my primary goal is to recognize th the choir's individualized assessments and therefore this should not be a class actually do you argue that in the district court if we remained it back to this court say you were a proper interviewer they should hear from you and the term and whether or not the class is properly constituted under the rule judge will use the remaining fifteen minutes that is satisfactory yes your honor let me get right to the point that mr salon i was striving and that is whether in fact his clients are class members the district court found on equivocally they were not class members and in fact in this court before even after the settlement run of the settlement was actually the same so up about happen all the time every year anyway second of all we're talking about some time in the future speculative we that his client might not have a guardian but that is easily re they're affected or not mr salada was heard and he his comments and argument in cross examination of witness was certainly heard by the district court then well obviously this he was allowed to intervene as an intervenor correct heard not as opposition or not opposition first on the justice department spoke to that correct so but the states entitle to have a policy and the facts support that policy that people who cross examine witnesses there's a dispute internally as to how some of the processes work isn't the real question here for us as an appellate court as to whether or not mr salon and the people he's representing have standing to come before us to argue the issues that have been decided by judge isn't that really the question or that wasn't bob that would have been my first point have been able to make it your honor is that they only have to change the matter neither class members nor are they proper interveners they're not class members because they currently oppose placement and then i mean procedures are sort of called don't really make doesn't really have an impact in creating them as class members and everything else we're talking about is irrelevant to the decision we have to make is right not so you're probably right because if you just in fact a term and that they are proper parties before this court then we would have to proceed to the other issues regarding class sort of occasion and mr so long as clients people who represent back and say we no longer oppose this plan that they become members of the class correct that's all they need to do that's correct but they don't want to do that around what they want to do is certification class and the settlement shifting the decision from the department of law it will for words isn't that really what's happening here i don't think so you are because the party of public w has a role because the court gave them all but an e p debbie has a rule because they agreed in court to that rule but without this class certification would be moved to the community and that is exactly what we are asking this court simply affirm is that they can make those decisions under the statutory scheme that they can speak for people who cannot speak for themselves because they are the guardian you want me to repeat a point please try to because the default the soup individuals who cannot voice a preference are not opposed to moving how do you avoid the possibility the other way either you can't public they don't want to leave so the problem is that's the guardians certainly so by default they're making a choice which they never name your honor they are represented that's it that person is not going to go to community physical wreck and as to the opposition again your honor the decision making is left in the default group judge how it is left to the senator because under state law so that's who's the will speak now the protocol goes has been underway for a year or so and in fact what happens is every individual person is interviewed with a person who is very familiar with them from the facility who's an understand and the people that are making the decision whether they should move into a community services are those very same people for some director is the operative and but your support by professional judgment of to hearts saying that it did not have a plan that we had submitted to raise our fundamental alteration defense didn't have the specific benchmarks both with respect to the number of people in the timeframe for moving people out of well i think that's wrong and i wanted i understand the question because in fact the department did have quite a great say and the negotiation of the settlement agreement and supplant the plaintiffs didn't get everything that they wanted the big thing that the plan scott that was different from what the department had intended to only did sydney actually as part of its effectively working comprehensive plan to move people out of the state centers was that the department hadn't identified the number of people in the time frame within which people would move and also left it pretty much up to whether or not funding would be available in the district court said that that was unacceptable and said basically what the settlement agreement does is put those modified with the department had submitted to put those benchmarks and that definiteness for lack of a better way of saying it into the plan now one of the things that i do want to bring to the court's attention just to avoid confusion hopper do not represent the people who are unable to speak and have no accordions or family members the people who they represent in fact have  family members actually i think at this point all of them or guardians so the they are not representing for example if the court were to remain back to the district court they don't represent those people ok and in fact as mr meek has already pointed out he does represent those people by state law post statute and that's part of public welfare state and of policy is the facility director at each one of the centers so you think go back to my initial it leads to the department's the discretion to plan for as is its role the people who are going to be moving out of the state center know what do you and you have one hundred people now in the state but you know ten fifteen years from now you end up with two hundred people who are still in institutions from all over the state from erie department it's the it's the appellant's because what the parents are trying to assert and the department believes incorrectly as a matter of law is that they have a right to institutional placements they have a right to institutional care  own state and in fact exactly the opposite when in a footnote when she was responding to the dissent said we're not establishing any requirement on the part of the state that the state has to provide any level of care they have a right heard and  s what the settlement should be you're you're you're putting words in their mouth now actually sorry that's how in the reason that they're saying that they have a right to be heard is because they're claiming that they have a right to to stay in the if the court does what the district court properly was unwilling to do which is to override or ignore the states the policy decision the judgment exercised by the states professionals and the states policymakers the things that i did want to talk about is during the course of my presentation was the process whereby services and programs will be developed for the people who are in the state centers because although that process i believe informs the district court's decision he didn't talk about it in the opinion it's meticulous painstaking process that that brings together everybody who will be involved including parents guardians involved family member anybody else who a resident says the people from the county where the person's going to be going potential providers possibly they come together they sit down of course the people at the facility as well as the people that the person is going to be going to in the community they sit down and they say what will doris need ok and then z she's going to need twenty four hour care she's going to need nursing services she's going to need ability that they program etc ok so we had that in the community no you know what we don't saying is her so into the policy that is frankly supported if not directed by federal law as well as the literature in the community that purse and the the option for that person is sustained situational wise right interpretating that statute sets in as the guardian not just with respect to whether or not a person is into the community but for every health care decision where every decision frankly that's made on behalf of that person and decision about whether or not somebody can live in the community unless you're doing an individualized terminations of whether or not somebody can vote in the community and that defeats cohesiveness and therefore you can have a class the department's position is everybody can live in the community so that the assessment of what services and supports are needed happens after the decision is made that they go into the community not before when to to make a decision about whether or not they go into the community currently pay for one person or another who is currently at a state center not a vacancy in the community such that the apartment would have to develop into a junction with the county and providers a new program buy a new house set it  cetera et cetera it is absolutely the case and there was a lot of testimony at the fair hearing to this effect that it is absolutely true and i think that appellant's and a lot of the objectors really don't realize this but it is absolutely the case that every single person who has served in the same states center has a counterpart in the community and we have a whole variety of services available to people to support them in the community so that it is not true as i think the opponents are you can there be that somebody who needs twenty four hour supervised care cannot live in the community that is just not true because there are a lot of people in the community who have twenty four hour care who costs i'm going to give you numbers and i do know it costs about two hundred fifty thousand dollars a year to serve somebody in a state center and there are approximately eleven hundred people in the states that are how much work  arguments that the department made in the district court in response or at summary judgment was that there is a transition period when in fact it costs more money because you have to fund both the s centers as well as the community care and the department doesn't really start to realize any savings until enough people leave that it results in a unit closing or possibly a facility closing and speaking of closures let me try to speak to three issues individual determinations the policy questions of touch fisheries and our standing of the individual determination i just want to be clear because there's been a lot of position shifting around what the way this settlement works is department is already determined that everyone is eligible to move to the community bus there are professionals and allstate says you look to the professionals have written in to many of these individuals facility in which to place them in the community but they've already decided that's what they want to put certainly had that for those who expressed a desire to go to your honor they have done that for a great many people many of whom are not as severely disabled both medically and naturally as this population and so as to how in points out the cost of doing this for this population is going to be so high that one of the things we question is it feasibility curry given the current economic climate they say we're going to do it but the feasibility of that is really open to question so in terms of individual ised what they're doing they're not making an individualized determine its determination whether they should move the mean but there's actually testimony saying this is the way this works so there's not a whole lot of choice there what they're saying in effect is that these people are too disabled to have a right to choice to choose as a policy matter in iran or what makes sense is to have everybody individually determines one of the things that we do not oppose is creation of an appropriate protocol sort of those people who choose honor i mean because i think everything if you're going to say the relief is that they have to be relocated it's that requires an individualized terminations as to whether it's appropriate and whether they want that to happen it's not appropriate for everyone your honor because we have testimony here about how many of these people have lived here for four decades this is their home district community they call the staff mommy these people some of them are just not susceptible to change we have testimony  objection letters about how they moved her to a different building in the prison stopped eating these are very serious decisions that you have to take an individual eyes look at and that brings me to how this judge fisher nothing stopped d p w over all of these years from deciding that a particular individual would do better in the community and we ought to move them there and if somebody didn't agree with that somebody could you know file a suit and we'd be here under rules of administr discretion and all that sort of stuff but it would be what happened here though is instead they subject themselves to court order so that now it's not a matter of their saying well you know the court is making us do it and so now as a result the legislature has got to fund this not the way the legislature in the policymakers you cite it but the way to court order has done we subject suggest that that makes no sense senator why talk about the summit at the at the hearing about the budget problems that the state is facing and how this makes no sense from a policy matter and and finally your honor i suggest that we do have standing because the settlement affects us directly and  the matter you're rather than this and judge how and i would never suggest that judge jones would not listen to what this court has to say and decide appropriately of course he would  honor i see my suggestion was simply that it was unnecessary because i think the record is already clear as to how it ought to be decided but we certainly you know are not suggesting that judge holland would not do the right thing if it were for a pro i think you know but i think in terms of fed accompli i thought it was telling that one of mr meeks responses to your honest question about where's the prejudice is he said well if you let them in the class is going to get the certified i think it pretty much shows that there's really not a whole lot