Friday, October 3, 2008

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

There will a status hearing with Judge Retchin in courtroom 516 on
Wednesday, Oct. 8, at 9:30am in Superior Court, 500 Indiana Ave, NW,
WDC to schedule a hearing on the merits of motion for a preliminary
injunction (to reopen Franklin Shelter). 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 the
lawsuit as plaintiffs, please come by MLK on Monday night or send your
contact info to us.

Update:
We alleged violation of a few statutes (4-753.01 and 4-754.2, requiring
the city to prepare adequately to provide shelter for those in need
when the temperature is freezing and below), and 10-801 (Surplusing
Act: requiring public input and economic accountability by the mayor
prior to changing the disposition of a public property) (e.g. prior to
shuttering the shelter and preparing it for sale to developers), as
well as procedural due process violations (in denying persons
fundamental rights without due process). We could not sue about
violation of the Franklin Shelter Closing Requirements Emergency Act of
2008 (Bill 17-923) because Fenty had not signed it into law. He
legally had until Oct 1 to sign or veto it, and chose to sit on the
bill until the last possible moment. In the meantime, Fenty closed
Franklin Shelter at 7:00 in the morning on Sept 26, although this bill
clearly required that he satisfy numerous requirements dealing with
the needs for shelter PRIOR to closing the shelter.

We had a hearing which took place at Superior Court on Sept. 30 and Oct
1 before Judge Duncan-Peters and lasted about 8 hours in total. This
hearing concerned a motion filed for a temporary restraining order
(TRO) to try to immediately reopen the shelter. The TRO would have
lasted for a maximum of 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: 1. that more harm will result to plaintiffs from
the denial of the TRO than to the nonmovant (the city) from the TRO
being granted, and 2. the public interest will not be disserved by
grant of the TRO. We failed to satisfy the other two prongs: 3. there
is a substantial likelihood plaintiffs will prevail on the merits; and
4. plaintiffs 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 determining that
plaintiffs did not satisfy the two prongs above included the fact that
the most vulnerable plaintiffs were not listed as indiv
idual
plaintiffs, but instead were included under the umbrella of the
Committee to Save Franklin Shelter. (We hope to challenge this legal
interpretation of denying the right of unincorporated organizations to
sue on behalf of their members). There was great difficulty in listing
all of the plaintiffs that wanted to be part of the lawsuit at the
time of initially filing because, as you recall, things were very crazy
the day of the 26th.

It was raining cats and dogs the morning of Sept 26, the men were
awakened between 6 and 7am, and, without prior warning, abruptly told
to immediately leave the shelter. They were then refused reentry,
while trucks moved up to remove their belongings. Inhabitants were
previously told the shelter would close on Oct 1. So we did the best
we could in locating plaintiffs before filing the lawsuit that morning.
So the most vulnerable plaintiffs were the most difficult to locate
that morning, because they had scattered in the rain. And so the judge
could not consider their harm for the TRO. That will change for the
next stage, because lots of former inhabitants of Franklin have since
stepped forward and will be added to plaintiff list. There was also no
imminent harm found because it is not freezing temperature yet (now you
see why Fenty closed the shelter when he did…). And we couldn’t sue
under failure to comply with Franklin Shelter Closing
Requirements
Emergency Act, because Fenty refused to sign it into law before
abruptly closing the shelter.

The second difficulty was that the judge thought that there was no
private cause of action under the Surplusing Act (10-801) (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 Councilman Thomas’ version of a proposed revised surplusing bill,
which includes a citizen’s attorneys general clause, is SO VITAL
because it gives citizens the right to sue. 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 at
the time the shelter was closed. Instead we could 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, especially in light of the cursory report provided
by the city, which clearly shows that the20city has made NO real
assessment of the needs for shelter this winter.

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 Fenty’s charades. 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 Franklin Shelter Closing Requirements
Emergency Act, and that it is not up to citizens individually to be
able to evaluate the report released the night of Sept 30 (again, the
emergency bill has no citizen’s attorneys general 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 accurately
assess the needs for shelter this winter, and therefore fails to
satisfy what is required to legally 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 better
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 on this front.

Plaintiffs also asked if Judge D
uncan-Peters would be willing to
mediate between the city and those before her in court that day in
pushing the process forward to obtain supportive permanent housing. We
are waiting to see if the city is willing to do this, but have not
heard back from them so far. This is independent of, and hopefully will
be parallel to the ongoing lawsuit.

JZ

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