Mental Health MASQUERADE

Litigation over care fo rArizona's mentally ill ended four years ago. Sowhy have private attorneys racked up more than $1 million in fees since then?

"One of the most frustrating things since I've been in this case is the interest people have in getting off the issue," said Ronan, a staff attorney for the center--which last year ceded major responsibilities to the Boston firm. "Why don't we talk about the development of a true community-based mental health system? Why don't we talk about the positive things that have happened?"

In hindsight, the Arnold v. Sarn lawsuit was inevitable.
When it was filed in 1981, Arizona ranked at or near the bottom in per capita spending on services for the seriously mentally ill. National experts often cited the state as an excellent example of how not to treat the mentally ill.

Also in 1981, the Arizona Legislature approved a social policy change, saying that poor citizens suffering from serious mental illnesses have the right to receive comprehensive services.

Lawyers for the AG's Office, Maricopa County Attorney's Office and the Arizona Center for Law in the Public Interest squared off at trial in 1985 before Superior Court Judge Bernard Dougherty.

That June, Dougherty ruled for the plaintiffs. In so doing, he awarded the Center for Law $226,000 for its five years of work on the case. (From 1986 through 1993, records show the Center for Law's billings for work on Arnold v. Sarn averaged less than $100,000 per year.)

A lengthy appeal followed, but in March 1989, the Arizona Supreme Court unanimously upheld Dougherty.

"We write today from the bottom rung of the ladder," the high court pronounced. "Arizona has imprisoned its mentally ill in the shadows of public apathy. ... The Legislature must fund whatever programs it has required. ..."

Arnold v. Sarn marked the first U.S. case in which a court had ordered all-encompassing relief for a disabled class of people.

Slowly and grudgingly, the Legislature began to fund programs for the seriously mentally ill. The state also tapped federal funding streams for the first time, and now ranks 12th nationally in per capita spending on mental health programs.

But the favorable court rulings hardly guaranteed a working system. Much haggling among the lawyers over how to implement bona fide programs remained.

In mid-1991, Dougherty approved The Blueprint--a heavily negotiated document that was by degrees both pragmatic and pie in the sky. One segment of The Blueprint created the Office of the Court Monitor, to oversee the case's progress.

Until 1992, lawyers for the state and county continued to represent their respective agencies in Arnold v. Sarn.

Assistant AG Theresa Dwyer was doing the day-to-day work for the state. Deputy County Attorney Louis Gorman was handling the county's part of the case.

But things changed dramatically that year.
Alethea Caldwell, then the director of the Arizona Department of Health Services, decided she'd didn't like how the AG's Office was handling the case.

According to several sources, Caldwell asked her boss, Fife Symington, if she could retain private counsel. Symington ran for office on a promise of reducing state government spending. But he also has clashed with AG Grant Woods over Woods' handling of civil cases.

Symington gave the go-ahead to hire Andrew Federhar, a Tucson-based attorney with Fennemore Craig who had represented Caldwell in a personal case.

Federhar promptly hired Theresa Dwyer away from the AG's Office, at $157 per hour instead of her government wages.

"My personal view is that Alethea thought the AG's Office wasn't being assertive or aggressive enough in its defense--not Theresa, who knows what she's doing," Chick Arnold says. "Andy [Federhar] charged in without knowing a thing about the issues, the system or about mental health care in general. He had to learn a lot in a hurry."

Federhar also billed in a hurry.
Records supplied by DHS indicate that in fiscal 1992-93, Fennemore Craig submitted bills totaling about $80,000. The next year, the invoices jumped to about $114,000. And in the fiscal year that ended last June 30, Fennemore Craig's billings totaled $325,000.

Maricopa County was the next to retain private counsel. In late 1993, Lou Gorman found himself as a potential witness in a new court fight between the county and the state--over mental health funding, of course.

Even if that potential conflict of interest were to be resolved favorably, the county had something more pressing to consider: Gorman is not a courtroom litigator. In October 1993, the county retained Mariscal Weeks to work Arnold v. Sarn at $125 an hour.

"My strong sense is that the county hired Mariscal Weeks in response to Andy Federhar getting revved up," Arnold says.

In mid-1994, the plaintiffs also faced major changes. Tannis Fox, a Center for Law attorney who had labored on Arnold v. Sarn for years, moved to New Mexico.

The case was at a critical juncture, says Tim Hogan, executive director of the nonprofit Center for Law.

"The leadership in the Legislature and the Governor's Office were pressing for modifications [in Arnold v. Sarn]," Hogan avowed in an August 18 affidavit. "We believed there was a very real threat that most of the unrealized promises of the [Blueprint] would never be fulfilled, and the limited progress which had been achieved for class members could be lost."

His staff was swamped with other pressing matters, Hogan wrote, and he couldn't identify any local attorney capable of picking up the slack.

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