Thursday, October 2, 2008

Sheptock vs. Fenty (An Update On The Franklin Shelter Lawsuit)

I, Eric Sheptock, posted a message from an e-mail that the lawyer who is handling this case pro bono sent me. She is even coming out of pocket for the court fees. Bless her heart.


Update on Franklin Shelter lawsuit, filed on behalf of former
inhabitants of Franklin Shelter.


We alleged violation of a few statutes, two dealing with the
requirement that the city provide shelter for those in need when the
temperature is freezing and below, and the other one requiring public
input when changing the disposition of a public property, as well as
procedural due process violations.

We had a hearing which took place at Superior Court on Sept. 29 and 30
before Judge Duncan-Peters and lasted about 8 hours in total. It was
concerning a motion filed for a temporary restraining order (TRO) to
try to reopen the shelter and would have lasted for 10 days.

The TRO was denied for several reasons, some of which I will elaborate.
Four prongs must be satisfied for a TRO, and the judge felt we
satisfied two of them: that more harm will result to plaintiffs from
the denial of the injunction than to the nonmovant (the city) from the
TRO being granted, and the public interest will not be disserved by
grant of the TRO. We failed to satisfy the other two prongs: there is
a substantial likelihood plaintiffs will prevail on the merits; and
they are in danger of suffering irreparable harm during the pendency of
the action.

The judge will provide a written opinion, and we are in process of
getting transcripts of the hearing. Her reasons for not satisfying the
two prongs above included20the fact that the most vulnerable plaintiffs
were not listed as individual plaintiffs, but instead were included
under the umbrella of the Committee to Save Franklin Shelter. The
reasons for this included the difficulty of getting in touch with all
who wanted to be plaintiffs prior to filing the complaint (As you
recall, things were very crazy the day of the 26th, so we did the best
we could in locating plaintiffs before filing that morning.). So the
most vulnerable people's harm could be considered. That will change
for the next stage, because lots of former inhabs of Franklin have
since stepped forward and will be added to plaintiff list. There was
also no imminent harm because it is not hypothemic temperatures yet
(now you see why Fenty closed the shelter when he did…).

The second difficulty was that the judge thought that there was no
private cause of action under the suplusing act (which is an
interesting debacle, since ANC’s are forbidden by law to file a lawsuit
as ANC’s: this will be fun to sort out in the future.) This also
shows why CM Thomas’ version of a proposed surplusing bill, which
includes a citizen’s attorney general's clause, is SO VITAL.). And a
most interesting thing is that Fenty’s procedural contortions only
allowed for the Franklin shelter emergency bill to turn into law after
the hearing began (the nite of the 30th), so we could not
allege violation of it, only show evidence as to why it hasn't been complied
with as it applied to our immediate lawsuit. And the city filed a
report at 5:01pm, the nite of the 30th asserting that they have
fulfilled the requirements to close Franklin shelter. All of this in
spite of the fact that the bill clearly stated that the requirements
had to be fulfilled PRIOR to the shelter’s closing. Plaintiffs
asserted that the requirements for the bill have not been fulfilled, as
shown in the city’s report, and put that on the record, and why, in
light of the cursory report provided by the city.

So we were constrained by these things, but it makes things so
interesting legally, although difficult. Nevertheless the public will
be able to see through these charades of Fenty’s. The judge also
thought that it is the council’s duty to say that the report does not
fulfill the requirements set forth by the emergency bill law, and that
it is not up to citizens individually to be able to evaluate the report
in light of the newly passed Franklin emergency law (again, the
emergency bill has no citizens attorney general’s clause, so no
inference of a right of private action to sue for violation of it,
according to the judge). So let’s hope the council has the spine to
fairly evaluate the city’s report, and to find it fails to satisfy what
is required to20legally close the shelter.

The good news is that many witnesses got to provide testimony on the
stand as to how they have been affected by the closing of the shelter.
The testimony is very moving and lasted for hours. We also understand
the case law and statutory requirements we must address at the next
stage. We filed a motion for a preliminary and permanent injunction
last Friday as well, and will push forward.

Plaintiffs also asked if Judge Duncan-Peters would be willing to
mediate between the city and those before here in court that day about
getting into the supportive permanent housing program. We are waiting
to see if the city is willing to do this. This is independent of and
hopefull will be parallel to the ongoing lawsuit, however.

There is a status hearing with Judge Retchin in courtroom 516 on
Wednesday, Oct. 8, at 9:30 am in Superior Court, 500 Indiana Ave, NW,
WDC to schedule a future hearing on the merits. Plaintiffs (old and
new) will meet at MLK library on Monday, Oct 6, at 5:00 pm. Anyone
interested in either helping with the logistics of the lawsuit(s), or
joining as plaintiffs, please come by or send your contact info to us.

La lucha continua!!!

See you all soon,
Jane Zara

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