Juvenile Detention Center Controversy

November 25, 2010

What is the Secretary of Community and Cultural Affairs trying to hide? Secretary Melvin Faisao and the OAG refuse to allow access to NMPASI to inspect the juvenile detention center.

On October 6, 2010 the Northern Marianas Protection and Advocacy Systems, Inc. through attorney Matthew Holley, filed a complaint for declaratory and injunctive relief against Department of Community and Cultural Affairs Secretary Melvin Faisao in his capacity as supervisor of the Kagman Juvenile Detention and Corrections Facility.

NMPASI is tasked by Congress with protecting and advocating the civil rights of persons with disabilities.  In that official capacity that agency requested to inspect the juvenile detention center. The complaint alleges that Faisao and the representing attorney from the Office of the Attorney General, AAG Tom Schweiger, failed to return phone calls and messages requesting that NMPASI be allowed to inspect the facility. From the complaint:
7. Because many persons with disabilities living in private and public institutions suffer from abuse and neglect, Congress has mandated that each state have a "protection and advocacy system" designed to have independent access to such institutions in order to detect and prevent such abuse and neglect. Because the CNMI receives federal funds under the P&A Acts, it is required to establish systems "which are designed to -protect and advocate the rights of individuals with mental illness; and investigate incidents of abuse and neglect of individuals with mental illness ..." see e.g. 42, U.S.C. §10801 et. seq. NMPASI has been designated by the CNMI to be that system.

8. There have been numerous violations reported concerning the Facility this past year, some publicly and others privately. One such violation was reported this past June, when Federal Bureau of Investigation agents arrested a guard at the Facility who allegedly used his position of authority to force detainees to engage in sex acts. Another is that even though the new school year has begun, juvenile detainees at the Facility are not receiving the required education, nor any education for that matter. Additionally, there have been reported violations that have not been made public due to confidentiality reasons.

9. At this time, NMPASI has one client detained at the Facility who has requested NMPASI’s services. NMPASI has worked with the juvenile's attorney to assist the juvenile.
The complaint continues to outline a disturbing documented list of NMPASI’s attempts to contact AAG Schweiger and others to gain access to the facility without success. The first such attempt was made in July 2010 with a phone call to Schweiger that he ignored. He ignored three other phone calls made in July and August 2010 and an August 27, 2010 mailed and faxed letter.

NMPASI contacted JDF Supervisor Jaclyn Mendiola on September 13, 2010 and was told to send her an email with the request. The email was ignored, so another was sent on September 16, 2010 and she replied telling NMPASI to contact Faisao. From the complaint:
13. On September 16, 2010, after not receiving a response, the undersigned sent another email to supervisor Mendiola. She responded via email, informing the undersigned that she is referring the matter to Defendant. The same day Defendant sent an email to the undersigned simply stating to call the Attorney General's Office and "ask to speak to the responsible/designated Assistant Attorney Genera1." The undersigned responded by asking for the specific name of the "responsible/designated" AAG as numerous attempts had already been made to contact AAG Schweiger.

14. On September 17, 2010, Defendant Faisao replied to the specific request by merely stating, "[a]s it was indicated earlier in my previous e-mail correspondence and re-directed or re-iterated again ... call and ask ..."

15. On September 17, 2010, the undersigned called and verified, as anticipated, that AAG Schweiger is the designated AAG for the Facility. Subsequently, the undersigned sent a final email to Defendant explaining that no more attempts to contact AAG Schweiger would be made in light of the unanswered messages, letter and fax by AAG Schweiger. A ten (10) day notice was given to Defendant to make the proper arrangements or action would be taken through the court system. Defendant responded by stating he had forwarded the undersigned's email to the Attorney General's Office.

16. Since the last correspondence on September 17, 2010 with Defendant, neither Defendant nor anyone from the Attorney General's Office has contacted NMPASI concerning the matter.

17. Under the above-described circumstances, the Defendant has acted in his official capacity to create and maintain a system that hampers the Congressionally-mandated function and duties of NMPASI at the Facility. Plaintiff has no obligation to exhaust administrative or other remedies in this case. Nevertheless, Plaintiff spent considerable time attempting to negotiate with Defendant in an effort to eliminate Defendant's illegal policy and practice of denying to NMPASI full, complete, meaningful and timely access to the Facility. These attempts of negotiating have been unsuccessful.
Faisao claims that there are and have not been juveniles with developmental disabilities or mental illnesses housed at the juvenile detention center while he has been secretary. On that basis want the NMPASI lawsuit dismissed. This conflicts with the fact that at least one client housed there contacted NMPASI for assistance. The Saipan Tribune reported:
Assistant attorney general David Lochabay, counsel for Faisao, said the court should dismiss NMPASI's lawsuit with prejudice. Dismissal with prejudice means the plaintiff could not re-file the case anymore.
It also conflicts with a February 2008 Saipan Tribune article, which states that some juveniles at the detention center were referred to the PSS Special Education Program for assessment:
According to Department of Community & Cultural Affairs acting secretary Melvin L.O. Faisao, some of these juveniles were evaluated by PSS psychologist Marie McGee and found eligible through their Individual Education Plan.

The juvenile referrals have being ongoing since 2006 up to the present.

Faisao noted that more juveniles who come into the justice system may be eligible for the program, but were not detained long enough to go through the testing with the PSS psychologist.
Another February 2008 Saipan Tribune article quoted Secretary Faisao as discussing children with disabilities who were being housed at the juvenile detention center:
DCCA deputy secretary Melvin Faisao told Education Commissioner David Borja that DCCA has done extensive research and found that the Federal Mandates for Special Education in Juvenile Corrections summarizes three seminal federal laws, focusing primarily on the Individuals with Disabilities Education ACT or IDEA.

Faisao explained that IDEA is “landmark civil rights legislation because it guarantees free appropriate public education for all eligible children and youth with disabilities through age 21.”

IDEA applies to public schools and state-operated programs, including juvenile detention and confinement facilities since its passage in 1975.

In addition to IDEA, Faisao said, “Section 504 of the Vocational Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Education Act prohibit discrimination against persons with disabilities by any program or activity that receives federal funds including correctional facilities.”

He added that the ADA and Section 504 apply to juvenile correctional facilities to the extent that students with disabilities are excluded from appropriate education service or are excluded from school for misbehavior that may be related to the students' disability, or to the failure of the school program to meet the students' needs.

Faisao noted that since PSS is a grantor recipient of IDEA, DCCA is seeking its help in this matter.
In June 2010 a Kagman Juvenile Detention Center guard, Tyrone Fitial, was accused of sexually assaulting minors at the detention center.

Fitial's attorney, Joseph Camacho has filed a motion requesting pretrial release and modified bail. The Marianas Variety quoted Camacho as saying, "There is nothing in his background to suggest that he has a propensity for violence.”

The charges against him suggest he is violent and dangerous. His trial was scheduled for February 2011.

Read the complaint:

The negligent officials and attorneys should be investigated. AAG Schweiger and Secretary Faisao are being paid by public funds, and their offices are federally funded.  Their refusal to allow access to NMPASI has potentially put at least one child at-risk. 

Faisao is also under fire for merging the juvenile probation and juvenile detention units. (I don't understand why the Department of Community and Cultural Affairs even oversees the juvenile detention center and the juvenile probation office.) Within the last year the DCCA was also attacked for misappropriations of a federal grant to the Arts Council; for failure to provide educational classes and instruction to juveniles at the detention center; and for mismanagement of man'amko funds.


Anonymous said...

Wait til this administration is over. You'll see how many grants were lost or mishandled, all of the abuses at the juvenile detention, all the mismanagement in the department. He just got rid of one of the most qualified people the DYS have. Suspicious? He couldn't manage to extracate himself from a paper bag. Why anyone think he can manage a department. So much has been lost at that agency.

Anonymous said...

The DYS facility is already under the supervision of the U.S. Department of Justice and District Court for the Northern Mariana Islands. The USAO is prosecuting the rapist guard.

This NMPASI lawsuit is superfluous. There are plenty of productive efforts NMPASI could be undertaking to make a difference. They don't need to duplicate what the feds are doing.

Anonymous said...

If DYS is already under the supervision of US DOJ and district court for the NMI then why don't the feds give access to NMPASI? Why isn't there a teacher? Why is the USDOJ so silent about this?

Anonymous said...

The feds aren't running the juvenile detention center. DCCA mismanagement placed forced the CNMI to conceed and agree to the terms of a settlement, a consent decree. Issue after issue the DCCA has failed to meet the terms and requirements of that decree. The Juvenile Center isn't being managed by Feds. Stop the spin crooks.

Anonymous said...

“Spin?” Nobody but you has claimed the Kagman Youth Facility (KYF) is “being managed by Feds” (emphasis added).

You are correct that the Feds did file a complaint, resulting in a consent decree. Pursuant to that decree, the KYF is under the ongoing supervision of the U.S. Department of Justice and the District Court for the Northern Mariana Islands.

What, exactly, will a duplicate lawsuit do that the original one won't?

This new frivolous case by NMPASI will be promptly dismissed.

Just like the wasteful, duplicative litigation against the NMIRF by attorney Bruce Lee Jorgensen should have been in district court, and soon will be in the Ninth Circuit.

Even more than our legislators and governors, one of the greatest determinants of the CNMI's social situation over the past three decades has been the absolute flood of bogus lawsuits enriching solely the lawyers concerned, and occasionally their greedy, scheming clients.

Anonymous said...

I took at face value the declaration of Melvin Faisao, Secretary of the Department of Community and Cultural Affairs, that there were no persons with disabilities currently detained at the Kagman Juvenile Detention and Correctional Facility, and therefore thought dismissal was likely and warranted.

However, yesterday NMPASI attorney Matthew Holley filed a First Amended Complaint including express allegations in paragraph 10 about juvenile detainees with disabilities. These are supported with declarations by four lawyers (Sean Frink, Matt Holley, Adam Miles, and Adam Hardwicke) about their impaired clients.

In light of this newly alleged evidence, it would appear Secretary Faisao was mistaken or uninformed, and the case is not reasonably susceptible to dismissal on that ground.

Likewise, as to the DoJ Consent Decree, it is not expressly based on the same laws that NMPASI is tasked with enforcing. So if there is any duplication of effort, that should be laid at the door of the U.S. Congress and the enforcement scheme they created to preserve various civil rights. Such inefficiency and having two cases in the same court concerning the same facility is not enough to merit dismissal.

Interestingly, Mr. Holley did not make that argument in his opposition to the motion to dismiss, but tried to make a criminal versus civil distinction in the Feds' role in the prosecution of the alleged guard rapist. Nice try, but the Consent Decree is also a civil matter. The winning argument is the one in the prior paragraph.

[Also, the plural is “Assistant Attorneys General”, not “Assistant Attorney Generals”, and the proper name of the office is the “Office of the Attorney General”, not “Attorney General's Office”. See 1 CMC § 2151.]

Mr. Holley is doing a masterful job of litigating this case. The filing of the First Amended Complaint moots the Motion to Dismiss. The OAG would be wise to settle the case and grant NMPASI access, to avoid future liability for statutory attorneys fees to NMPASI. (Attorneys fees thus far could be avoided due to the deficiencies in the Complaint, now corrected.)

By working very closely with his former Public Defender colleagues (including PSS counsel Kelley Butcher, who signed a supporting declaration opposing the motion to dismiss), Mr. Holley is shining a spotlight and attempting to gain support and services to a group of individuals who have for too long been treated with benign and not-so-benign neglect under the CNMI juvenile justice system, but that could not be remedied in single criminal cases. Well done.

Wendy, this First Amended Complaint deserves its own post, if you have the time.

Wendy Doromal said...

Thank you for this update, 7:35 Yes, it does deserve a post!