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Prison health care case shaping up for years of litigation

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Chick Arnold set out to do one thing when he filed the historic lawsuit that bears his name: compel the state to provide services for the seriously mentally ill as mandated by law.

He accomplished that mission after 33 years of litigation.

Arizona saw seven governors come and go in that time, and another case that addresses a forgotten population – prisoners and their health care – began.

Arnold’s 1981 case was simple. He said the state was not providing services as dictated by legislation passed in 1979. The state did not deny that, but claimed there simply was not enough money to meet everyone’s needs.

Arnold compared his role in the process to Columbo, the fictional TV detective whose seeming absent-mindedness masked his shrewdness.

“I sort of walk in and scratch my head and say, ‘So, what’s the problem here?’”

The problem in the case was that a pattern emerged that caused it to drag on for so long.

The court would issue an order requiring the state to do something. The defendants, which originally included the Arizona Department of Health Services and Maricopa County, would commit to comply – but didn’t. The plaintiffs would file a motion for contempt. The defendants would respond with a corrective action plan, and the court would approve it before the whole cycle started over.

And now, Arnold said, the same thing is happening in the Parsons v. Ryan prison health care case.

Advocacy

Parsons lacks a Columbo like Arnold, who became the plaintiff in Arnold v. Sarn as the court-appointed guardian for people who were entitled to services by law but who weren’t receiving them.

Parsons was filed in 2012 and settled in 2014, yet litigation continues. It is fueled by the private contractor Corizon and the Arizona Department of Corrections’ continued failure to fully comply with 103 performance measures.

Those performance measures dictate best practices, such as ensuring there be no lapse in chronic medication renewals, and were agreed upon by the parties, including Department of Corrections Director Charles Ryan and Assistant Director Richard Pratt.

“Presumably, they didn’t promise to do things that they thought were impossible,” said plaintiffs’ attorney David Fathi, director of the American Civil Liberties Union’s National Prison Project.

To terminate court-ordered monitoring of those measures, the state must show compliance in 18 out of the previous 24 months without three consecutive months of noncompliance within that time.

But the case is based on a “fuzzy” constitutional question, Arnold said.

Whereas his case could point to a statute with specific obligations of the state, he said there is no such statute laying out exactly what the Department of Corrections must do to care for prisoners.

Instead, the court has been asked to essentially advocate for the improvement of services.

He said this is the core of Parsons’ unfortunate similarities to Arnold v Sarn. The state is required to provide medical care to its prisoners, and an outside advocate such as the ACLU had to come in to ensure that obligation was being met.

But the court is limited in what it can do to advance that interest.

“It lasts forever because the court doesn’t want to let go, yet they can’t fund it,” Arnold said.

And in Parsons, the fuzziness has opened the door to criticism lobbed against recently retired U.S. Magistrate Judge David Duncan, who has been accused by various people on the state’s side as exercising bias.

Duncan drew criticism through the course of increasingly sharp admonishments against the state as he grew more frustrated.

His grandiose sermons from the bench were punctuated with threats of contempt charges and monetary sanctions – threats that materialized in an order for nearly $1.4 million to be paid for noncompliance with 10 performance measures.

The state has said it will appeal Duncan’s order, a detour that will likely take months to resolve.

Charles "Chick" Arnold

Charles “Chick” Arnold

Arnold’s recollection of the judge who oversaw most of his case bore striking similarities. He said Maricopa County Superior Court Judge Bernard Dougherty quickly became “quite energetic in his advocacy.”

But after 25 years on the case, Dougherty, like Duncan, retired.

And from there, Arnold said, the court was not as energetically involved. That left the parties to get more creative to continue in the right direction.

“It was time,” he said.

It was time for the case to find a champion within the state, something he said the Parsons case is lacking.

Executive

Picture it: The governor locked in a warm embrace with the plaintiff in a case against the state, having just recognized the value of that legal challenge.

This was not a scene playing out between Gov. Doug Ducey and Victor Parsons, the titular plaintiff in Parsons v. Ryan.

This was former Gov. Jane Hull embracing Chick Arnold.

A defendant in the case at the time, Hull had actually gone to court for a contempt hearing, Arnold recalled. So had then-Health Services Director Ted Williams, who Arnold said brought a toothbrush with him in case he’d have to spend the night in jail.

Hull was not the only governor to see eye-to-eye with Arnold.

Former Gov. Jan Brewer made the case a priority and shepherded it to a conclusion that included enhanced services for about 19,000 people in Maricopa County alone and another 7,000 to 8,000 people across the state.

In part, Arnold said, that came from a willingness by everyone involved to admit they could not do it all for everyone, that there were “priority clients.”

“The advocacy had to be like ‘The Price is Right’ – the closest without going over,” he said.

In Parsons, though the performance measures exist, the parties do not share a common goal line.

And there is no one like Brewer to bring the case home.

She, of course, had her personal reasons for getting involved.

Arnold said Brewer had a family member with mental illness. She was especially sensitized to what was at stake in the case and what those services meant to the people who needed them.

Ducey, he said, does not likely have the kind of coincidental experience in the Parsons context. But that doesn’t mean he cannot make a difference.

“Of course, the governor could be more assertive in trying to confront the issues that are problematic in getting that case resolved,” Arnold said.

After all, Ducey was the one who appointed Charles Ryan, and he could be the one to remove him.

Ducey’s office did not respond to multiple requests for comment.

In a text to the Arizona Capitol Times on June 29, spokesman Daniel Scarpinato said, “We just don’t really have anything new to say right now.”

Ducey was asked about Ryan at an event on July 11, however. The governor responded with praise for the director and a jab at Duncan, who left the bench on June 22 due to health challenges following a series of strokes.

“I have complete confidence in Charles Ryan,” Ducey told reporters, “and I think that we’re going to have our agency directors run our agencies, not judges.”

The Department of Corrections declined to comment, too, and another request for comment went unreturned from attorney Daniel Struck, whose firm Struck Love Bojanowski & Acedo has been hired to represent the state to the tune of at least $1.9 million as of last July.

Their silence on the issue and the governor’s is indicative of a significant obstacle.

“The people at the health department always wanted to do the right thing,” Arnold said. “They were sympathetic to the plaintiffs’ efforts. I don’t see that in Parsons.”

Plaintiffs’ attorney Fathi said the case could come to a close very soon – “if the state would fix its obviously broken health care system.”

“But it seems more interested in fighting in court than in fixing the problems that are obvious and plain for all to see,” Fathi said. “The case will end eventually, but probably no time soon.”

Arnold sees a bitterness in Parsons that was never present in his case. And even without that negative energy, Arnold went on for more than three decades.

Ultimately, he said, reason prevailed.

But Parsons has gone beyond reason.

“There is room for wiggle, and that creates room for too aggressive advocacy,” Arnold said. “And that’s a fatal impediment. The case will never resolve so long as the lawyers bring that kind of energy to the case.”

Fathi said he’s been working on cases like Parsons across the country for more than 20 years, and Parsons is “an extreme outlier” in terms of the hostility exhibited by the state and its counsel.

Typically, he said, when two sides reach a settlement, there is agreement that something is broken and that they must work together toward a safe solution.

In this case, it hasn’t worked that way.

“There has been litigation over every little thing, every little word in the settlement agreement. And that has been counterproductive,” Fathi said. “That’s unfortunate for, first and foremost, the prisoners who are at the mercy of a broken system. It’s unfortunate for the taxpayers of Arizona who are paying the private law firm millions of dollars. It’s unfortunate for everyone. And it doesn’t have to be this way.”

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