The fate of the Walter E. Fernald Developmental Center could be in the hands of the U.S. Supreme Court.
That's if the Supreme Court decides to hear an appeal made by Leon Friedman, a prominent New York attorney and law professor at Hofstra University. Friedman filed the appeal on behalf of the Fernald League, a group of guardians who have fought for years to keep the Trapelo Road facility open.
Friedman, speaking at a press conference yesterday at the Omni Parker House Hotel in Boston, said the petition revolves around the question of whether the First U.S. Circuit Court of Appeals overstepped its bounds by not showing "deference" to an August 2007 ruling made by U.S District Judge Joseph Tauro.
Tauro, who has presided over court proceedings involving Fernald since 1974, ruled in 2007 that the state must give Fernald residents the opportunity to stay there if they so choose. To do that, Tauro reopened a 1993 consent decree which guaranteed that residents would receive individualized treatment that must be equal or better elsewhere if they are moved to another facility.
In October 2008, the First U.S. First Circuit Court of Appeals overruled Tauro's decision, saying he lacked the authority to reopen the consent decree. Many argue the appeals court decision essentially paved the way for the state to go ahead with its plans to close Fernald.
The state announced plans in December to shut down Fernald by July 2010.
Friedman said the federal appeals court should have deferred to Tauro's interpretation of his own orders, especially since Tauro has been involved with the case for 35 years.
"It was (Tauro's) order," Friedman said about the consent decree. "He was the one who signed that order, he was the one who drafted that order."
If the U.S. Supreme Court takes the appeal, Friedman said that could stymie the state's plans to close Fernald and transfer its approximately 160 residents to other facilities.
Friedman said the Supreme Court is being asked to look at the larger issue of whether federal appeals courts must show some deference to the decisions of district court judges in public-interest, consent decree cases.
Friedman said the petition he filed with the Supreme Court notes that the 12 circuit courts of appeals are essentially split on that issue.
Friedman said the state has 30 days to legally respond to the filing with the Supreme Court. He said the Supreme Court would likely make a decision by June on whether to take the case. If they do, Friedman said their review could begin next year and a decision could come down within 18 months.
Jennifer Critz, a spokeswoman for the state Department of Mental Retardation, said the department was looking over the appeal.
"We're reviewing the petition and we'll respond within the 30-day window," Critz said.
Former Gov. Mitt Romney originally announced plans to close the 196-acre campus at Fernald in 2003. The Fernald League has fought in the court system to keep it open, saying the move could have a devastating effect on its residents, many of whom have lived there for at least 50 years.
Beryl Cohen, an attorney who has represented the Fernald League in previous court proceedings, said that Gov. Deval Patrick's administration has presided over the "most aggressive effort" to close the Fernald campus.
Richard Conn can be contacted at 781-398-8004 or rconn@cnc.com.
