A federal judge has recused himself from a nearly four-year-old lawsuit that alleges mistreatment of children in West Virginia’s foster care system after seeking to use a piece of legislation to resolve the suit and conducting settlement talks that involved state lawmakers.
In an order entered Monday, U.S. District Judge Thomas E. Johnston said he recused himself because of the nature of the settlement talks.
The decision comes after questions from Mountain State Spotlight about new emails and documents, obtained through a public records request, that show regular communication between Johnston, state lawmakers and government staffers.
In one email, House Speaker Roger Hanshaw, R-Clay, asked Johnston’s law clerk if the judge would like to make any changes to a bill to split up the state Department of Health and Human Resources, which runs the foster care system, and whether lawmakers could help settle the case with other legislation.
“We will work with our senate colleagues to hold up the bill for a bit while your team determines what, if any, further amendments are needed to the bill to achieve a resolution of the case,” Hanshaw wrote in an email to Johnston’s law clerk.
House of Delegates spokesperson Ann Ali said in a statement that the Speaker “did not provide the judge with the opportunity to adjust the bill to resolve an open lawsuit”. Rather, she said, he allowed Johnston and the lawyers to “ask questions of those involved in creating and passing that legislation.”
Last month, Mountain State Spotlight reported that Johnston sought legislative input about the lawsuit. Court transcripts revealed that Johnston thought the Legislature could play an important role in settling the lawsuit, in which plaintiffs allege DHHR’s foster care system bred structural abuse and unsafe living conditions.
Charles Geyh, an Indiana University law professor who specializes in judicial ethics, said the lawsuit has strange and unique circumstances, and it’s not necessarily unethical for Johnston to take an untraditional approach to an uncommon case. But, given the oddness, Geyh thinks Johnston should have been transparent about involving the state Legislature.
“The public has the right to know what is influencing the course of legislation that their representatives are enacting,” Geyh said.
Through a law clerk, Johnston declined to comment further.
A meeting in the Speaker’s office
The lawsuit was filed in 2019 on behalf of children that, plaintiffs alleged, had been “repeatedly failed” by DHHR while in the state foster care system.
The complaint alleges a range of systematic shortcomings, from isolating kids from their birth families at out-of-state institutions, to placing children in known dangerous places, to hiring unqualified caseworkers to handle an unmanageable number of cases. At one point, the lawsuit alleged state officials placed an 11-year-old girl in a facility with a known history of child molestation and a 12-year-old boy with no history of sex crimes in an institution designed to house convicted sex offenders.
In January, as the lawsuit remained unresolved in its fourth year of litigation, Johnston asked permission from both parties to meet with members of the state Legislature. While the plaintiffs hesitated to involve lawmakers, they ultimately consented.
Shortly after, Johnston met with lawmakers in Hanshaw’s office, including the House Speaker, Del. Amy Summers, R-Tayor, Del. Heather Tully, R-Nicholas, and State Sen. Charles Trump, R-Morgan. In a second conference call later in January, Johnston recounted his thoughts from the meetings with the lawyers.
He praised HB 2006, a 53-page bill to split DHHR into three agencies, and pointed to its plan to create a foster care ombudsman as a way to address the concerns of the lawyers for the children. He then asked the lawyers to join him in meeting with lawmakers in early February, hoping they all could work towards a settlement.
In preparation for additional meetings with the Legislature, a law clerk for Johnston emailed Summers, Trump and Hanshaw’s legislative counsel copies of pre-settlement statements from both sides of the case, documents that normally would stay confidential.
“That’s part of the issue when you involve the Legislature,” said Richard Walters, one of the plaintiff lawyers. “These things that are supposed to be confidential can’t be.”
Continued communication with the Legislature
Email attachments show that soon after the lawyers and Johnston met with legislative leadership, Johnston drafted a settlement agreement. That proposed agreement involved elements from HB 2006, such as the ombudsman, in addition to court enforcement, like DHHR having to report data about its foster care system to the plaintiff lawyers.
When asked last month, Hanshaw spokesperson Ali said the bill was not specifically intended to address anything in the federal lawsuit, but rather to address long-standing issues within DHHR, including foster care.
Even after the bill passed the House, Hanshaw continued to offer Johnston assistance. In a mid-February email to Johnston’s law clerk, Hanshaw wrote that the bill “remained fully amendable by our senate colleagues, and I would appreciate if you can explain that to Judge Johnston.”
Two days after Hanshaw’s email, lawyers representing DHHR wrote to Johnston that they could not agree to his proposed settlement. No documents, either from the public records request or on the online case docket, indicate that the parties have restarted settlement talks — and in a mid-March filing, lawyers for the children wrote that “the parties failed to reach an agreement, and negotiations are no longer ongoing.” HB 2006, despite the settlement failures, became law soon afterwards.
To the lawyers for the children, it remains to be seen what impact the law will have on West Virginia’s foster care system. They believe the only way to determine if DHHR is complying with the terms of a settlement would be through court-mandated data reporting.
“We’re always willing to negotiate what and how that looks like, but it’s always been our position that we need a court to be able to enforce it,” Walters said. “It doesn’t do these families and children any good if they have to go file individual lawsuits every time DHHR fails to do their job.”
DHHR lawyers did not respond to several requests for comment, but had previously indicated that they’d be open to renegotiating a settlement if the parties agreed to a specific end date for the court-ordered data reporting requirements.
“Obviously, it’s disappointing,” Walters said. “We’re appreciative of what Judge Johnston and the Legislature were trying to do and were hopeful that it was going to be successful.”
Hanshaw continued to offer the Legislature’s services. In early March, he had his legislative counsel email Johnston’s law clerk, expressing optimism that an “opportunity for a solution to be found” in the future.
Ali said Hanshaw is not currently involved in the lawsuit, nor does he plan to be in the future.
No results for non-traditional approach
Geyh, the Indiana University law professor, didn’t want to draw conclusions about Johnston’s ethics from involving the Legislature. But he would caution other federal judges from replicating his actions.
“This is not a template for business as usual,” Geyh said.
Even so, he believes transparency for unusual actions like these is crucial — unlike what went on with the private emails and the multiple closed-door meetings the judge had with lawmakers.
In response to a question about why the meetings were held in private, Ali said Johnston would be the best person to answer that.
When recusing himself, Johnston cited a section of federal code that states a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Since Johnston brought lawmakers into the conversation, the settlement talks have fallen apart and the case remains unresolved. Now, the suit has been reassigned to U.S. District Judge Joseph R. Goodwin.
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