A federal judge has been quietly promoting a bill reorganizing West Virginia’s Department of Health and Human Resources as an avenue for a quick settlement of a major lawsuit, one that alleges mistreatment of children under the protection of the agency’s foster care system.
The lawsuit, filed on behalf of former foster kids against Gov. Jim Justice’s administration in 2019, alleges that DHHR institutionalized, segregated, and failed to provide basic necessities to foster children placed under its care.
Chief U.S. District Judge Thomas E. Johnston met behind closed doors at least once with some of the state’s most powerful lawmakers, in hopes that new legislation would push the parties to settle the lawsuit, according to conference call transcripts reviewed by Mountain State Spotlight.
“Now might be the time that the iron is hottest to strike and get the people who are real decision makers in all of this into the process and try to find a resolution that’s satisfactory to everybody,” Johnston said, as he made the case for this legislative outreach to lawyers on the call.
But Johnston’s actions were an unusual approach to get what he believes to be the best outcome, a judicial ethics expert said.
“Judges are under an ethical duty not to speak on pending and impending cases,” said Charles Geyh, an Indiana University law professor. “And he’s talking to the Legislature on pending or impending cases.”
Geyh said it’s likely the judge was trying to do right by both parties of the lawsuit but raised concerns about taking a closed-door meeting with outside entities with regards to an ongoing case. He said that if no lawyers for the state or plaintiffs were present at the meeting, there’s no way to know what Johnston said to lawmakers, or whether he was influenced by the personal relationships he touted with several key players.
“We don’t know what information is being shared,” Geyh said. “And we don’t know what effect that had on the resulting legislation.”
Through a clerk, Johnston declined to comment.
Johnston seeks an end to a multi-year lawsuit
Led by the national advocacy organization A Better Childhood, the case was filed on behalf of 10 named West Virginians with experience in the foster care system and all others in similar situations. It alleges that DHHR systematically placed children in environments that endangered their safety.
The plaintiff lawyers are seeking class action status, with the goal of obtaining a federal court order that forces DHHR to comply with its own policies by implementing an independent overseer of the foster care system. DHHR has responded that the state has made great efforts to improve that system and would vigorously defend against the lawsuit.
The two parties have yet to reach a settlement or resolution. In July 2021, Johnston threw out the case, saying it was a state matter, not a federal one. But a year later, after the plaintiffs appealed, the 4th Circuit Court overturned Johnston’s decision and sent the case back to his courtroom.
In January, court documents show Johnston convened the parties and asked for their permission to reach out to House Speaker Roger Hanshaw, R-Clay, and meet behind closed doors with legislative leaders. He wanted to use those discussions to try to reach a settlement in the lawsuit.
“This strikes me as a great opportunity to find a real resolution to this case,” Johnston said.
Lawyers representing DHHR embraced the idea, but a lawyer for the children expressed some concerns. Legislative action would be great, Richard Walters said, but the issue was DHHR’s failure to protect kids and follow existing laws and regulations.
“From the get-go, our position has never been that we need to go in and change anything,” he said. “We just need to get them to comply with what’s already in place.”
But the judge pressed the issue, suggesting that a settlement would be much quicker.
“We probably have years of litigation ahead of us,” he said. “I’m offering you a potential opportunity to do some good for these kids in the near term.”
Walters said he would have to check with his co-counsel Marcia Lowry, who had COVID at the time and was not on the call.
“If Ms. Lowry’s answer is no, then I’m going to want to talk to Ms. Lowry,” Johnston responded, giving Walters and the other plaintiffs’ lawyers two days to answer. “And you can tell her that.”
Ultimately, both sides agreed and on Jan. 20, Johnston met with lawmakers in Hanshaw’s office.
“It was a room full of people,” the judge recounted to lawyers several days later, mentioning Hanshaw, Senate Judiciary Chair Charles Trump, R-Morgan, and House Health and Human Resources Chair Amy Summers, R-Taylor.
When recounting the meeting to case lawyers, Johnston indicated that the meeting was a success. Lawmakers were moving a bill that would split DHHR into three separate agencies. Within the Department of Health, the bill calls for a new foster care ombudsman, someone who would answer to the state’s executive branch leaders and be tasked with making sure there is proper oversight of the system.
Lawmakers were serious about fixing foster care, the judge told the lawyers. And he had personal connections to several that he believed would help. Johnston mentioned previous relationships with Hanshaw and Trump, calling the latter a “friend for decades.” He said all the legislators he met with were “very serious about reforming the system.”
“Speaker Hanshaw made it clear that reform, real reform of the DHHR and its problems…is at the top of the list of the legislative agenda this year,” he said on the call.
He then said that Hanshaw suggested all parties, including Johnston and the lawyers for the plaintiffs and defendants, meet twice with the legislative leaders to hash out a solution sometime during the first week of February.
He also asked if James Hoyer, a retired national guard general who Justice appointed as a DHHR advisor last December, could join them in the meetings. When DHHR’s lawyers said that Hoyer didn’t directly oversee the child welfare system, Johnston pushed for his involvement, saying the two had been friends for decades and describing Hoyer as “a straight shooter and has a lot of credibility.”
In an email, Hanshaw spokesperson Ann Ali confirmed the Speaker met with the “relevant parties,” but couldn’t elaborate as to who that was. She noted that the bill in question, HB 2006, was intended to correct long-standing problems within DHHR, and not to specifically address the federal lawsuit. The bill passed the Senate last week and is awaiting the governor’s signature.
Little meeting transparency creates issues
The only court record of the mid-January meeting with lawmakers appears to be Johnston’s, as he recounted his version of the conversation to the attorneys. Had he called in legislative leaders to meet with the lawsuit’s parties in his courtroom, the entire discussion would have been part of the court’s official record.
Geyh, the Indiana University law professor, said it makes him uneasy that Johnston sought outside input on an active case without the parties present. When Johnston asked for permission from both parties, Geyh believes it indicated that he was trying to reach the correct ruling. But it could be problematic to approach lawmakers privately to help spur a settlement when the parties weren’t already negotiating a deal.
“For the most part, I’m not familiar with exceptions that say when everybody agrees, a judge can do whatever,” he said.
It’s unclear whether attorneys and Johnston ever held the follow-up meetings with legislative leaders; Lowry declined to say whether those gatherings took place, although she did note that she found Johnston involving the Legislature odd.
She also said that her position hasn’t changed since the beginning of the case: there needs to be an enforcement mechanism, ordered by a federal judge, to make sure DHHR adheres to its existing foster care rules.
“Good laws are great, but good laws don’t get automatically implemented,” Lowry said. “Our concern is with [DHHR’s] practices, not with what the law says.”
She doesn’t know whether the DHHR reorganization bill will reduce the issues her clients say they faced while in West Virginia’s foster care system. But Lowry doesn’t think any legislative action will prevent children in the state’s care from being abused — and more comprehensive change in the agency is needed.
“There needs to be accountability,” she said.