| City of New York v Maul |
| 2009 NY Slip Op 00982 [59 AD3d 187] |
| February 10, 2009 |
| Appellate Division, First Department |
| City of New York et al., Appellants, v Thomas A. Maul,Defendant. L.J. et al., Intervenors-Respondents v John B. Mattingly, as Commissioner, NewYork City Administration for Children's Services, Appellant, et al.,Defendant. |
—[*1] Patterson Belknap Webb & Tyler LLP, New York (Christopher M. Strong of counsel), forrespondents.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered May 1, 2008, whichgranted plaintiffs-intervenors' motion for class certification, and denied the motion ofdefendant-appellant New York City Administration for Children's Services for partial summaryjudgment, affirmed, without costs.
Plaintiffs-intervenors are mentally retarded and developmentally disabled individuals. All ofthem are, or were, in the foster care system under the aegis of defendant Administration forChildren's Services (ACS). Defendant New York State Office of Mental Retardation andDevelopmental Disabilities (OMRDD) has the responsibility, pursuant to the Mental HygieneLaw, to "assure the development of comprehensive plans, programs, and services in the areas ofresearch, prevention, and care, treatment, habilitation, rehabilitation, vocational and othereducation, and training of persons with mental retardation and developmental disabilities"(Mental Hygiene Law § 13.07 [a]). Plaintiffs claim that both ACS and OMRDD jointlyfailed to properly provide for their care.
ACS, plaintiffs contend, has no uniform policy for identifying individuals who are in need ofOMRDD services, does not train its staff to recognize such individuals, and rarely [*2]coordinates with OMRDD in this regard, despite OMRDD'sexpertise in the area. Even when individuals are identified by ACS as needing services, plaintiffsclaim that ACS often fails to refer them to OMRDD for further evaluation. When ACS doesmake a referral, plaintiffs assert that the referral information is often incomplete, resulting inOMRDD's rejection of the information packet and further delay in delivery of the services towhich the applicant has already been found entitled. Plaintiffs claim that ACS' lackadaisical,ineffective methods are especially harmful to those persons close to aging out of the foster caresystem, since it significantly limits the time OMRDD has to develop an individual's placementplan.
Plaintiffs contend that OMRDD shares responsibility for the breakdown in providingappropriate care for mentally retarded and developmentally disabled individuals andindependently fails to fulfill its statutory duties. For example, they claim that OMRDDcategorically refuses to provide services, other than residential placement, to foster children,even though residential placement is just one of several services offered to similarly disabledchildren who are not in foster care. In addition, they claim that OMRDD will only acceptplacement referrals from ACS for those for whom the permanency planning goal is residentialplacement. Even then, plaintiffs assert that the waiting list for placement is unreasonably longand that people for whom immediate placement is particularly crucial are given no specialconsideration.
Some individuals, plaintiffs claim, have languished on OMRDD's wait list for as long as nineyears without finding temporary placement. In those cases, ACS has placed mentally retardedand developmentally disabled people in facilities pending placement by OMRDD that are oftenunduly restrictive and highly inappropriate. Plaintiffs assert this is because ACS performs onlycursory investigations into the quality of facilities. ACS also fails to communicate each person'sspecific needs to the facility's staff before the placement.
Plaintiffs allege that, other than themselves, there are at least 150 individuals who areadversely affected by these systemic failures. Accordingly, they sought class certification. Mostof the people proposed for the class were those who have been found eligible for OMRDDservices but who have been on a waiting list for an inordinate period of time. Plaintiffs alsoclaim that relief is necessary for eligible individuals whom ACS has not yet referred to OMRDDand those whose referral was rejected by OMRDD because of a procedural defect in the referralpacket prepared by ACS. Further, they wish to represent those who had aged out of the ACSsystem prior to placement and those who need services other than adult residential care but arenot receiving such services from ACS or OMRDD.
The motion court certified the class and defined it as plaintiffs had proposed: "Individualswith developmental disabilities who are in or have been in New York City Administration forChild[ren's] Services' (ACS's) care or custody and who, during their time in ACS's care orcustody, have not received or did not receive services from ACS and the New York Office ofMental Retardation and Developmental Disabilities to which they were or are entitled."
CPLR 901 (a) requires that to maintain an action on behalf of a class, it must be establishedthat
"1. the class is so numerous that joinder of all members . . . is impracticable;
"2. there are questions of law or fact common to the class which predominate over anyquestions affecting only individual members;[*3]
"3. the claims or defenses of the representative parties aretypical of the claims or defenses of the class;
"4. the representative parties will fairly and adequately protect the interests of the class; and
"5. a class action is superior to other available methods for the fair and efficient adjudicationof the controversy."This section has been interpreted to require that "[t]hese criteria . . . be broadlyconstrued not only because of the general command for liberal construction of all CPLR sections(see CPLR 104), but also because it is apparent that the Legislature intended article 9 to be aliberal substitute for the narrow class action legislation which preceded it" (Friar v VanguardHolding Corp., 78 AD2d 83, 91 [1980]).
Guided by this notion of liberality, we find that plaintiffs satisfied all of these factors. First,there are at least 150 class members. ACS does not dispute that the numerosity requirement issatisfied. Second, all members of the class are similarly situated because they allege the samedeprivation of specific governmental services to which they are entitled by law. Indeed, all of theclass members trace their predicament to the identical violations of law alleged to have beencommitted by ACS and OMRDD. While ACS argues that the class lacks commonality becauseto determine the appropriateness of a particular facility requires an individualized inquiry intothat individual's needs, it ignores all of the other alleged harmful results of its conduct which donot require specific factual inquiry. These include unreasonably long wait lists for placement,failures to refer individuals for necessary care and failures to submit complete referral packages.These harms predominate and it is "predominance, not identity or unanimity," that is the linchpinof commonality (Friar, 78 AD2d at 98; see also Brad H. v City of New York,185 Misc 2d 420, 424 [Sup Ct, NY County 2000], affd 276 AD2d 440 [2000] ["(e)venthough there may be some questions of law or fact which affect some individual members of theclass but not others . . . that is not a reason to deny class certification"]).
Moreover, the existence of commonality: "should not be determined by any mechanical test,but rather, 'whether the use of a class action would achieve economies of time, effort, andexpense, and promote uniformity of decision as to persons similarly situated.' " (Friar, 78AD2d at 97, quoting LaMar v H & B Novelty & Loan Co., 55 FRD 22, 25 [D Or 1972].)
The remaining prerequisites for class certification under CPLR 901 (a) were also fulfilled.Plaintiffs' claims meet the typicality requirement for the same reasons they satisfy thecommonality test. That is, plaintiffs' claims and the claims of the class generally flow from thesame alleged conduct. The class's interests will be adequately protected because it is representedby experienced counsel. Also, no conflict exists between the interests of plaintiffs and the classas a whole. To the extent that ACS identifies litigation in the Family Court as an alternativemethod for adjudicating the claims herein, that forum is inadequate. The limited jurisdiction ofthe Family Court would prevent it from granting most of the relief sought by the class. Finally,ACS is incorrect that the claims are nonjusticiable, as the action seeks neither to impose policydeterminations upon a governmental agency nor to direct an agency as to the manner in which it[*4]exercises discretionary functions. Rather, the action attemptsto obtain only those rights conferred on the individuals by the legislative branch (seeKlostermann v Cuomo, 61 NY2d 525 [1984]).
We reject ACS' argument that the action should have been dismissed for mootness becauseeach of the plaintiffs has now received the services to which each of them claims to be entitled.This case fits precisely within the exception to the mootness doctrine for cases involving issuesimportant to the public that are likely to evade review (see e.g. Matter of Hearst Corp. vClyne, 50 NY2d 707, 714-715 [1980]). If the case is dismissed the significant issue ofwhether ACS is complying with law will remain unresolved. Moreover, because an individual'stime in the foster system is necessarily temporary, there is no guarantee that future cases will notlikewise become moot.
The cases on which the dissent relies regarding commonality are inapposite. In Solomon v Bell Atl. Corp. (9 AD3d49 [2004]), this Court decertified a class of people who alleged that they had purchasedinternet access service from the defendant based on deceptive advertising. This Court held thatthe commonality test was not met because the plaintiffs could not establish that all of theproposed class members had been exposed to the same advertisement or to any advertisement atall. This case is dramatically different. Here, all of the class members trace their predicament tothe identical violations of law allegedly committed by ACS and OMRDD. Furthermore,purchase of advertised internet access can hardly be compared to care critical for the well-beingof mentally retarded and developmentally disabled children.
In Mitchell v Barrios-Paoli (253 AD2d 281 [1999]), the proposed class memberswere public assistance recipients assigned to New York City's Work Experience Program as acondition for receiving benefits. They challenged the particular work assignments they weregiven, which they claimed were inappropriate to their particular disabilities. This Courtdecertified the class, holding that: "Assuming there is a class of persons whom the City routinelyassigns to medically inappropriate jobs . . . and to whom the State fails to affordrelief . . . the fact that wrongs were committed pursuant to a common plan orpattern does not permit invocation of the class action mechanism where the wrongs done wereindividual in nature or subject to individual defenses." (253 AD2d at 291.) Because each classmember's disability and work assignment were potentially unique, the economies which classactions are intended to provide did not exist in that case. Again, this case is factually and legallydistinguishable.
Here, there is a "common plan or pattern" and the wrongs done were, largely, not "individualin nature." Certainly, an individualized assessment is not required to determine whether a fosterchild who was found eligible for OMRDD services but allowed to languish on a wait list foryears, rather than receive necessary services, qualifies for the class. Nor, need a detailed inquirybe had to ensure that a foster child eligible for OMRDD services but rejected by OMRDDbecause her referral papers were not completed properly by ACS belongs in the class.
We also reject the dissent's application of the United States Supreme Court's constrainedexception to the mootness doctrine. That exception applies only where the very same individualplaintiff whose claim has been rendered moot is likely to become embroiled in the samecontroversy again. As even the dissent concedes, that exception is grounded in the United States[*5]Constitution's case and controversy clause, which has noanalog in the New York State Constitution. Instead, the dissent relies on an observation by theCourt of Appeals in Matter of Hearst Corp. that the principle that a court is limited todetermining rights of persons which are actually controverted before it "is founded both inconstitutional separation-of-powers doctrine, and in methodological strictures which inhere inthe decisional process of a common-law judiciary" (50 NY2d at 713-714). Thus, the dissentsuggests that there is no reason not to apply the more limited exception. However, the Court ofAppeals itself did not believe that to be the case. In the very same case the Court reiterated thatthe exception to the mootness doctrine can apply even where "other members of the public"would benefit from judicial review (id. at 715).
We see no reason to wait for "an express ruling from the Court of Appeals," as the dissentwould require. The Court of Appeals has ruled on the issue repeatedly since Matter of HearstCorp. (see e.g. Matter of M.B.,6 NY3d 437, 447 [2006]; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500,505-506 [1998]; Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148,154 [1994]; Matter of Chenier v Richard W., 82 NY2d 830, 832 [1993]), and hasconsistently restated the exception to the mootness doctrine applied by the motion court here.
Indeed, we can hardly perceive of a case better suited to application of the exception thanthis one. The people who have the most interest in the immediate adjudication of the claimsherein are among the most disadvantaged found in society. Not only were they born withsignificant obstacles to success, they were neglected, abandoned, or otherwise deprived of careby their parents. Now, it is alleged that the safety net designed by the Legislature for them hasfailed them as well. Judicial review of these claims should be had now, so that, if it is determinedthat the system for care of mentally retarded and developmentally disabled persons needs to becorrected, it can be corrected without any unnecessary delay. Concur—Lippman, P.J.,Mazzarelli, Buckley and DeGrasse, JJ.
McGuire, J., dissents in a memorandum as follows: The class certified by Supreme Court isthe one proposed by plaintiffs-intervenors: "Individuals with developmental disabilities who arein or have been in New York City Administration for Child[ren's] Services' (ACS's) care orcustody and who, during their time in ACS's care or custody, have not received or did notreceive services from ACS and the New York State Office of Mental Retardation andDevelopmental Disabilities to which they were or are entitled." As Supreme Court observed inthe course of granting the class certification motion, "intervenors do not point to affirmativepolicies which they claim violate the law."[*6]
In my view, the class certification motion is controlled bywell-settled law and, in particular, Justice Rosenberger's decision in Mitchell vBarrios-Paoli (253 AD2d 281 [1999]). In that case, the proposed class consisted of allindividuals who allegedly were assigned by the New York City Human ResourcesAdministration to work experience program jobs that exceeded their medical limitations. Thepanel in Mitchell unanimously found this definition of the class to be "unworkable"because: "determining who is a member of that class would require individualized examinationof each person's medical history and the physical demands of her assigned task, which woulddefeat the class action's goal of saving judicial time and resources (Small v Lorillard TobaccoCo., 252 AD2d 1, 6 [1998] [decertifying class of nicotine-addicted smokers as requiringburdensome individualized proof of class membership])" (Mitchell, 253 AD2d at 291).
Whether a putative class member was denied services to which he or she was entitled is not aquestion that can be resolved in the abstract. Rather, as in Mitchell, individualizeddeterminations would be necessary to determine whether any putative member of the class is amember of the class. Indeed, whether any individual is a member of the class necessarily entailsa fact-bound determination that he or she has a valid claim on the merits. Thus, to determinewhether any individual is a member of the class, not only must the particular services he or shedid not receive be identified, it also must be established that the individual was entitled to thoseservices under state or federal law. The necessity for these individual and fact-specificdeterminations makes it pointless at best to certify a class (id.) For these reasons, as inMitchell, we should reverse and deny the motion for class certification.
Justice Ellerin's opinion in Solomonv Bell Atl. Corp. (9 AD3d 49 [2004]) also is directly on point. In Solomon, aclass was certified by Supreme Court in an action alleging deceptive advertising abouthigh-speed internet service. The named plaintiffs, however, did "not demonstrate[ ] that allmembers of the class saw the same advertisements" (9 AD3d at 53). To the contrary, the namedplaintiffs "did not all see the same advertisements; some saw no advertisements at all beforedeciding to become subscribers" (id.). In addition, the content of the advertising "variedwidely and not all the advertisements contained the alleged misrepresentations" (id.).Accordingly we concluded that "questions of individual members' exposure to the allegedlydeceptive advertising predominate" (id.).
This Court decertified the class for another reason, after assuming arguendo that all membersof the class had seen the same advertisements: "questions as to whether each individual wasreasonably misled by them predominate, given the alternative sources of information about [theinternet] service that each may have had" (id. at 54). Thus, "individual trials would berequired to determine whether a reasonable consumer . . . would have been misledby defendants' representations" (id.; see also Hazelhurst v Brita Prods. Co., 295AD2d 240, 242 [2002] [decertifying class where, "(l)ike reliance, injury will require individualdeterminations which are not common to the class"]).
That the intervenors allege systemic failures by ACS does not support the certification of theclass. As Justice Rosenberger observed in Mitchell, "the fact that wrongs werecommitted pursuant to a common plan or pattern does not permit invocation of the class actionmechanism where the wrongs done were individual in nature or subject to individual defenses"(Mitchell, [*7]253 AD2d at 291; see also J.B. ex rel.Hart v Valdez, 186 F3d 1280, 1289 [10th Cir 1999] ["We refuse to read an allegation ofsystematic failures as a moniker for meeting the class action requirements. . . . Fora common question of law to exist, the putative class must share a discrete legal question ofsome kind. . . . Here, . . . plaintiffs merely attempt to broadly conflatea variety of claims to establish commonality via an allegation of systematic failures" (internalquotation marks and citations omitted)]).
The majority cites a litany of alleged failures by ACS and the Office of Mental Retardationand Developmental Disabilities (OMRDD) to support a claim of "systemic failure." The firstpoint to be made, however, is that the majority's reliance on claimed "systemic failures" ismisplaced. The statements quoted above from our opinion in Mitchell and from theTenth Circuit's opinion in J.B. ex rel. Hart are squarely at odds with the majority'sposition. Notably, the majority simply ignores these statements of the law and makes no effort todistinguish Mitchell and J.B. ex rel. Hart in this regard.
Second, the highly fact-bound nature of the alleged failures is apparent. The majority writes,for example, that "[m]ost of the people proposed for the class were those who have been foundeligible for OMRDD services but who have been on a waiting list for aninordinate period of time. Plaintiffs also claim that relief is necessary for eligibleindividuals whom ACS has not yet referred to OMRDD and those whose referral wasrejected by OMRDD because of a procedural defect in the referral packet prepared byACS" (emphasis added). Under the first sentence quoted above, membership in the class willdepend, among other things, on identifying those who were found "eligible" (but presumably notany persons who may incorrectly have been found eligible) and who have been waitingfor a period of time that can be characterized, by some unknown standard, as "inordinate." Underthe second sentence, membership in the class will depend, among other things, on identifyingother "eligible" individuals—which certainly is a highly fact-boundprocess—and whose referral was rejected because of a "procedural defect," whichsurely must be determined on a case-by-case basis.
Similarly, the majority relies on allegations that "the waiting list for placement isunreasonably long and that people for whom immediate placement is particularlycrucial are given no special consideration" (emphasis added). Obviously enough,case-by-case determinations must be made to determine whether any particular putative classmember was on a waiting list for an "unreasonably" long period and whether the immediateplacement of any individual is "particularly crucial." So, too, with the majority's reliance onallegations of placements by OMRDD "that are often unduly restrictive" and "highlyinappropriate" (emphasis added).
My point is the one made in Mitchell, Solomon and Hazelhurst. Inall three cases we held that class certification was inappropriate because "determining who is amember of th[e] class would require individualized examination of each person's medical historyand the physical demands of her assigned task," (Mitchell, 253 AD2d at 291),"individual trials . . . to determine whether a reasonable consumer actingreasonably in each plaintiff's circumstances would have been misled" (Solomon, 9 AD3dat 54), and "individual determinations which are not common to the class" (Hazelhurst,295 AD2d at 242). The majority has nothing to say with respect to the above-quoted grounds forour decisions in these three cases. Rather, it refers to or quotes from portions of the opinions inMitchell and Solomon discussing some of the particular facts supporting theground for the holdings that class certification was inappropriate because of the [*8]necessity for mini-trials to determine the threshold issue ofmembership in the class.
I also disagree with the majority's conclusion that Supreme Court properly denied the City'smotion for partial summary judgment dismissing as moot the intervenors' claims for prospectiverelief. Of the 11 intervenors, eight now are in OMRDD's care and thus neither need nor areentitled to any services from ACS. The remaining three intervenors were referred to andaccepted by OMRDD and are awaiting placement; accordingly, they have only historical and notcurrent objections to planning, placements and services provided by ACS. For these reasons, theclaims for prospective relief should have been dismissed as moot (Saratoga County Chamberof Commerce v Pataki, 100 NY2d 801 [2003], cert denied sub nom. Pataki v SaratogaCounty Chamber of Commerce, Inc., 540 US 1017 [2003]).
The intervenors essentially concede that the claims for prospective relief otherwise are mootbut, relying on Matter of Jones v Berman (37 NY2d 42 [1975]), argue that the questionsprinted in the amended interview complaint "being of importance and interest and because of thelikeliness that they will recur, are properly entertainable . . . irrespective of anyallegation of mootness" (37 NY2d at 57).[FN1]In my view, however, the exception to the mootness doctrine for disputes that are likely to recur,typically evade review and raise important questions (see Matter of Hearst Corp. vClyne, 50 NY2d 707, 714-715 [1980]) does not apply here.
In the first place, this exception requires, among other things, "a reasonable expectation thatthe same complaining party will be subject to the same action again" (Davis v FederalElection Commn., 554 US—, —, 128 S Ct 2759, 2769 [2008] [internalquotation marks and citation omitted]; see also Spencer v Kemna, 523 US at 17-18[same and citing other decisions so holding]; East Meadow Community Concerts Assn. vBoard of Educ. of Union Free School Dist No. 3, 18 NY2d 129, 135 [1966] ["It is settleddoctrine that an appeal will . . . be entertained where, as here, the controversy is ofa character which is likely to recur not only with respect to the parties before the court but withrespect to others as well"]). This requirement is a corollary of "the core requirement that a courtcan act only when the rights of the party requesting relief are affected" (Society of PlasticsIndus. v County of Suffolk, 77 NY2d 761, 772 [1991]). After all, if the party requestingrelief will not be subject to the same action again, the rights of that party will not be affected, letalone "directly affected" (Matter of Hearst Corp., 50 NY2d at 714), by a determinationon the merits. Here, there is no contention that any of the intervenors will be [*9]subject again to the same allegedly unlawful action. For this reasonalone, the claims for prospective relief do not fall within this exception to the prohibition againstdeciding moot disputes.
In Matter of Hearst Corp., the Court of Appeals stated that one element of thisexception is "a likelihood of repetition, either between the parties or among other members ofthe public" (50 NY2d at 714-715 [emphasis added]). The highlighted language, which wasnot necessary to the Court's resolution of the appeal, is not inconsistent with the requirement thatthe party seeking relief show a reasonable expectation that it will be subject to the same actionagain. The Court may have had in mind a case in which the party seeking relief would be subjectagain to the same action, but as a result of the conduct of someone other than a party to theaction. To the extent the highlighted language can be read otherwise, I would not regard it asauthoritative. Although New York's Constitution does not contain an analogue to therequirement of the federal constitution of a case or controversy (Society of PlasticsIndus., 77 NY2d at 772), the "fundamental principle" of New York law that "forbids courtsto pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both inconstitutional separation-of-powers doctrine, and in methodological strictures which inhere inthe decisional process of a common-law judiciary" (Matter of Hearst Corp., 50 NY2d at713-714). Given that New York's prohibition against deciding moot disputes also is ofconstitutional dimension, I would follow the unequivocal precedents of the United StatesSupreme Court in the absence of an express ruling from the Court of Appeals that the partyseeking relief need not show that it will be subject to the same action again.
The majority dismisses the holdings of the United States Supreme Court in Davis,Spencer and the long line of cases they cite, breezily disparaging these holdings as a"constrained exception to the mootness doctrine" (emphasis added). As the decisionsmake plain, however, these holdings inhere in fundamental, constitutional precepts of separationof powers. To be sure, the majority is correct that there are decisions of the Court of Appeals inwhich the Court had held that a dispute was not moot even though it appears that the plaintiffwould not be subject again to the same allegedly unlawful action. But none of those decisionsprovide any reason to think that the issue of whether the plaintiff must be subject again to thesame allegedly unlawful action was raised, let alone decided. Accordingly, these decisionscannot be regarded as having decided the issue (see Matter of Seelig v Koehler, 76NY2d 87, 92 [1990], cert denied 498 US 847 [1990] [distinguishing prior decisions andobserving that "the identification and weighing of all the unique and particular facts of each casegoverns"]; Roosa v Harrington, 171 NY 341, 350 [1902] ["each case, as it arises, mustbe viewed and decided according to its own particular facts and circumstances, and will becomea controlling precedent, only, where the facts are the same"]). The Court of Appeals may decidenot to follow the holdings of the United States Supreme Court. If so, however, it surely will befor some substantive reason grounded in the structure of New York's Constitution—themajority offers none—and will not, for the reasons stated above, be premised on theabsence of the phrase "case or controversy" in the New York Constitution.[FN2][*10]
Nor does the claimed importance of the intervenors'claims for prospective relief save them from dismissal on mootness grounds. On the one hand, ifonly the particular, fact-bound claims of each intervenor were litigated, resolving any of themfavorably to an intervenor would establish nothing more than that the intervenor did not receivesome service or services from ACS to which he or she was entitled under the specific facts of thecase. As ACS argues, a declaration that ACS should have acted differently with respect to anintervenor would not alter the scope of discretion that ACS may exercise in another case. Thus,the resolution of the intervenors' claims for prospective relief would have "no appreciable publicsignificance beyond the immediately affected parties" (Matter of Colella v Board ofAssessors of County of Nassau, 95 NY2d 401, 411 [2000]). On the other hand, permittingthe intervenors to prescind from the particular facts of each intervenor's claim and litigategeneralized grievances against ACS is incompatible with basic, separation-of-powers precepts(see Lujan v Defenders of Wildlife, 504 US 555, 576 [1992] ["Vindicating the publicinterest (including the public interest in Government observance of the Constitution and laws) isthe function of Congress and the Chief Executive" (emphasis deleted)]; id. at 577 ["toconvert the undifferentiated public interest in executive officers' compliance with the law into an'individual right' vindicable in the courts is to permit (the) transfer from the President to thecourts (of) the Chief Executive's most important constitutional duty, to 'take Care that the Lawsbe faithfully executed,' Art. II, § 3"]).
Because the exception to the prohibition against deciding moot disputes does not apply forthe foregoing reasons, I need not determine whether ACS is correct in arguing that claims thatfoster children with developmental disabilities are denied services to which they are entitled donot typically evade review given the broad and ongoing jurisdiction of Family Court over fosterchildren. I note, however, that although decertification would be required if ACS' argumentbased on Family Court's jurisdiction is correct, the majority disposes of that argument with theconclusory assertion that Family Court would be an "inadequate" forum because "[t]he limitedjurisdiction of the Family Court would prevent it from granting most of the relief sought by theclass." The majority, however, does not identify either the respects in which that jurisdiction islimited or the particular forms of relief Family Court is incapable of granting to individual classmembers. Finally, because I believe that the class should be decertified in any event, I also neednot address the question of whether dismissal of the intervenors' claims for prospective reliefprovides an independent ground for decertifying a class seeking that relief (cf. Simon vEastern Ky. Welfare Rights Organization, 426 US 26, 40 n 20 [1976] ["That a suit may be aclass action . . . adds nothing to the question of standing, for even named plaintiffswho represent a class must allege and show that they personally have been injured, not thatinjury has been suffered by other, [*11]unidentified members ofthe class . . . which they purport to represent" (internal quotation marks and citationomitted)]).
Footnote 1: The intervenors are notpersuasive to the extent they argue that the claims for prospective relief are not moot becauseappropriate placements for certain of them occurred "not due to ACS fulfilling its statutoryrequirements, but rather through the efforts of [their] counsel and the State." The Supreme Courtrejected a similar claim that a case should not be considered moot because, among other things,of "the dilatory tactics of the state attorney general's office" (Spencer v Kemna, 523 US1, 18 [1998]). As the Court stated, "mootness, however it may have come about, simply deprivesus of our power to act; there is nothing for us to remedy, even if we were disposed to do so. Weare not in the business of pronouncing that past actions which have no demonstrable continuingeffect were right or wrong" (id.).
Footnote 2: Permitting a party to maintainan action because another party, i.e., not the plaintiff, is or may be subject to the same allegedlyunlawful action legitimizes what Professor Monaghan describes as "a genuine third partyclaim—one not susceptible of a first party formulation" (Monaghan, Third PartyStanding, 84 Colum L Rev 277, 282 [1984]). As Professor Monaghan observes, to the extentthat a litigant presents "a genuine third party claim . . . the litigant is essentially ajudicially licensed private attorney general. Talk of third party standing in these cases obscuresthe doubtful basis of federal judicial authority to create such private attorneys general"(id.; see also id. at 310-316 [questioning the authority of the judiciary to licensesuch third-party claims]).