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United States v. State

United States District Court, S.D. Mississippi.

September 3, 2019

United States of America, Plaintiff,
v.
State of Mississippi, Defendant.

          MEMORANDUM OPINION AND ORDER

          Carlton W. Reeves United States District Judge.

         Melody Worsham has a unique perspective on Mississippi's mental health system. She knows the system as a patient because she has struggled with serious mental illness (SMI) throughout her life. But she also knows it as a professional, in her job as a certified peer support specialist. That means Ms. Worsham is trained to help other persons with SMI “overcome the obstacles that might be getting in their way of living the life they want to live. And also navigating the system, helping to find resources, and then just being moral support, you know, just being there for somebody.” Trial Tr. 323.

         Ms. Worsham was one of dozens of witnesses who testified in this case about whether Mississippi unnecessarily institutionalizes persons with SMI. The trial record spans four weeks of testimony, thousands of pages of exhibits, and voluminous legal briefs by both sides, and still does not begin to reflect the enormity of Mississippi's mental health system. One would be forgiven for throwing their hands up in exasperation at the complexity of the situation.

         Yet we reached a moment of lucidity when Ms. Worsham was cross-examined by one of the State's attorneys. Ms. Worsham readily testified that the State was acting in good faith. “I think the people that I have worked with at the Department of Mental Health really want to see this change. I really do.” Trial Tr. 344. But Ms. Worsham could not agree that the State was making a “major effort” to expand community-based services throughout Mississippi:

It's like they stop right at that point to do the very thing that actually would make a difference. They stop. So there is a lot of talk, there is a lot of planning, but there is also a lot of people being hurt in the process.

Trial Tr. 348.

         The Court fully agrees with Ms. Worsham. On paper, Mississippi has a mental health system with an array of appropriate community-based services. In practice, however, the mental health system is hospital-centered and has major gaps in its community care. The result is a system that excludes adults with SMI from full integration into the communities in which they live and work, in violation of the Americans with Disabilities Act (ADA).

         At its heart, this case is about how Mississippi can best help the thousands of Melody Worshams who call our State home. The State generally understands the urgency of these needs, and it understands its obligations under federal law. It is moving toward fulfilling those obligations. The main question at trial was, has it moved fast enough to find itself in compliance with the ADA?

         The United States Department of Justice has presented compelling evidence that the answer to that question is “no.” Mississippi's current mental health system-the system in effect, not the system Mississippi might create by 2029-falls short of the requirements established by law. The below discussion explains why.

         I.

         The Americans with Disabilities Act

         In 1990, Congress passed the ADA, “the last major civil rights bill to be signed into law, ”[1] to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101 (b)(1).[2] Congress explained in the statute exactly what it wanted to rectify. Some of those explanations have direct bearing on our situation nearly 30 years later.

         Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). It specifically acknowledged that such discrimination “persists in such critical areas as . . . institutionalization” and “health services.” Id. § 12101 (a)(3). Congress then wrote that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, . . . failure to make modifications to existing facilities and practices, . . . segregation, and relegation to lesser services.” Id. § 12101(a)(5).

         To establish a violation of the ADA, “plaintiffs must demonstrate that (1) they are ‘qualified individuals' with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs' disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (citation omitted).

         Title II of the ADA prohibits discrimination by public entities. It establishes that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “Title II does not only benefit individuals with disabilities. . . . Congress specifically found that disability discrimination ‘costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.'” Frame v. City of Arlington, 657 F.3d 215, 230 (5th Cir. 2011) (en banc) (citations omitted).

         Congress instructed the Attorney General to promulgate regulations implementing Title II. Those regulations require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). Such a setting “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. Pt. 35, App. B. Public entities “shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130 (b)(7)(i).[3]

         The Supreme Court interpreted Title II in the landmark case Olmstead v. L.C ex rel. Zimring, 527 U.S. 581 (1999). It first noted that “Congress explicitly identified unjustified ‘segregation' of persons with disabilities as a ‘form of discrimination.'” 527 U.S. at 600 (citation and brackets omitted). The Court then reasoned that “unjustified institutional isolation of persons with disabilities is a form of discrimination [that] reflects two evident judgments.”

First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.
Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.

Id. at 600-01 (citations and brackets omitted).

         Because discrimination on the basis of disability might not be obvious, the Court tried to explain the “dissimilar treatment” in simpler terms. It came up with this: “In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.” Id. at 601 (citation omitted).

         Olmstead's final holding reads as follows:

States are required to provide community- based treatment for persons with mental disabilities when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.

Id. at 607.[4] This is often referred to as the “integration man- date.” Disability Advocates, Inc. v. Paterson (DAI I), 653 F.Supp.2d 184, 190-91 (E.D.N.Y. 2009), vacated on other grounds sub nom. Disability Advocates, Inc. v. New York Coal. for Quality Assisted Living, Inc. (DAI II), 675 F.3d 149 (2d Cir. 2012). “[F]ollowing Olmstead, courts have looked to the language of the Attorney General's regulations interpreting Title II, as well as the holding in Olmstead, as the standard by which to determine a violation of the ADA's integration mandate.” Id. (citations omitted).

         Though Olmstead spoke of “the State's treatment professionals, ” courts recognize that any treatment professional, whether employed by the state or not, may be used to show that community placement is appropriate. See Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003). If establishing a case required reliance on the government's own treatment professionals, states could circumscribe the requirements of Title II. See Joseph S. v. Hogan, 561 F.Supp.2d 280, 290-91 (E.D.N.Y. 2008); Long v. Benson, No. 4:08-CV-26, 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008); see also Martin v. Taft, 222 F.Supp.2d 940, 972 n.25 (S.D. Ohio 2002).

         II.

         Procedural Background and Preliminary Arguments

         In 2011, the United States Department of Justice issued a findings letter summarizing the results of its long investigation into the State of Mississippi's mental health system. It concluded that Mississippi was “unnecessarily institutionalizing persons with mental illness” in violation of the ADA's integration mandate. Docket No. 150-24 at 2. After years of negotiations failed, the United States filed this suit in 2016. It named the State as the sole defendant. See Docket No. 1.

         The parties have stipulated that the State is a public entity that must comply with the ADA and its implementing regulations. Trial Stipulations ¶ 1.[5] The State controls and operates the mental health system through the Mississippi Department of Mental Health (DMH), which provides services, and the Mississippi Division of Medicaid, which pays for services for Medicaid-enrolled persons. Id. ¶ 2. Persons with SMI are “almost always” eligible for Medicaid. Trial Tr. 1402.

         The United States alleges that Mississippi over-relies on state psychiatric hospitals in violation of Olmstead. Adults with SMI are forced into segregated hospital settings instead of being able to stay in their communities with the help and support of their families and local services. The United States claims that as a result, all Mississippians with SMI are denied the most integrated setting in which to receive services, and are at serious risk of institutionalization.[6]

         The case culminated in a four-week bench trial in June and July of 2019.[7] The parties have now submitted their post-trial proposed findings of facts and conclusions of law. See Docket Nos. 232-33.

         Motion practice established that the United States filed this action pursuant to its authority to enforce Title II of the ADA, 42 U.S.C. § 12133, and under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997a. See United States v. Mississippi, No. 3:16-CV-622-CWR-FKB, 2019 WL 2092569, at *2-3 (S.D.Miss. May 13, 2019); see also DAI II, 675 F.3d at 162 (finding that the United States had standing to bring suit on behalf of thousands of individuals with SMI living in segregated settings). The United States has complied with the necessary statutory prerequisites. The State has not challenged that these prerequisites have been met at or since trial.

         The State, however, has raised several arguments that all suggest the same conclusion: despite the statutory authority to bring such a suit, the United States cannot prevail in this case because it is the sole plaintiff. Without other named plaintiffs or a certified class of individuals, the State says, there is no violation of the ADA. These arguments must be addressed first, because while not expressly articulated as such, they invoke the basic principle of Article III standing that a plaintiff must suffer an “injury-in-fact.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

         First, the State argues that the United States has not proven that anyone was unnecessarily hospitalized. Second, the State argues that the United States has not proven that anyone was denied the benefits of, or excluded from participation in, any community-based program. Third, the State contends that because the United States does not have named plaintiffs who are currently institutionalized, this case is “only” an at-risk of institutionalization case. Docket No. 232 at 15.

         The first two arguments were refuted at trial. The United States' experts provided dozens of examples of individuals who were unnecessarily hospitalized or hospitalized too long because they were excluded from community-based services. Some of the persons the United States' experts analyzed for this suit were still hospitalized when the experts interviewed them. All of that evidence will be discussed below. In this section, though, the Court will discuss the third argument: whether this case is somehow deficient for emphasizing that Mississippians remain at risk of institutionalization and re-institutionalization.

         Most of the cases brought pursuant to Title II's integration mandate are brought by individual plaintiffs or classes of persons. E.g., Olmstead, 527 U.S. at 593 (reciting that plaintiffs L.C. and E.W. were persons with disabilities who challenged their institutionalization). This case is different. Here, the United States alleges, inter alia, that Mississippi's system pushes thousands of people into segregated hospital settings that could have been avoided with community-based services. When persons with SMI are eventually discharged, it claims, Mississippi's ongoing lack of community-based services means they are at serious risk of re-institutionalization.

         The Fifth Circuit has not reviewed a similar case, so decisions from around the country guide this Court's determination. Cf. Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018), as revised (Sept. 25, 2018) (“If there is no directly controlling authority, this court may rely on decisions from other circuits to the extent that they constitute a robust consensus of cases of persuasive authority.”).

         The cases show that Title II protects not only those persons currently institutionalized, but also those at serious risk of institutionalization. See Steimel v. Wernert, 823 F.3d 902, 911-13 (7th Cir. 2016); Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v. Delia, 709 F.3d 307, 321-22 (4th Cir. 2013); M.R. v. Dreyfus, 663 F.3d 1100, 1116 (9th Cir. 2011), amended by 697 F.3d 706 (9th Cir. 2012); Fisher, 335 F.3d at 1181; Steward v. Abbott, 189 F.Supp.3d 620, 633 (W.D. Tex. 2016); Pitts v. Greenstein, No. 10-635-JJB-SR, 2011 WL 1897552, at *3 (M.D. La. May 18, 2011); DAI I, 653 F.Supp.2d at 187-88 (finding violation of ADA and Rehabilitation Act where approximately 4, 300 individuals with SMI were “residing in, or at risk of entry into” segregated settings), vacated sub nom. DAI II, 675 F.3d at 162 (finding that original plaintiff lacked organizational standing but the United States could bring such a suit). In other words, the prospective approach taken by the United States is supported by the weight of authorities from around the country.

         The State argues that these cases have differing fact patterns. The argument is unpersuasive because these cases all evaluated the key premise at issue here-whether at risk of institutionalization claims are valid.

         In Pashby, for example, the Fourth Circuit rejected the idea that an Olmstead claim is limited to instances of “actual institutionalization.” 709 F.3d at 321. It instead agreed with the plaintiffs that Olmstead protects those facing “risk of institutionalization.” Id. at 322. The Tenth Circuit added that a contrary conclusion makes little sense, as the ADA's “protections would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Fisher, 335 F.3d at 1181; see also Steimel, 823 F.3d at 912. “Unsurprisingly, . . . courts of appeals applying the disability discrimination claim recognized in Olmstead have consistently held that the risk of institutionalization can support a valid claim under the integration mandate.” Davis, 821 F.3d at 263 (collecting cases).

         Unsatisfied with this principle, Mississippi pivots, and says those cases are distinguishable because those defendants were making “policy changes” to take away services, whereas here, Mississippi is simply moving slowly on deinstitutionalization. But that is not a complete statement of the facts or the law. The evidence showed that Mississippi is making policy changes that both decrease and increase institutionalization. For example, the State is increasing hospital beds at some of its facilities. The law, meanwhile, indicates that the ADA and Olmstead protect persons trapped in a snail's-pace deinstitutionalization.

         The ADA is unique among civil rights laws. It is “a ‘broad mandate' of ‘comprehensive character' and ‘sweeping purpose' intended ‘to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.'” Frame, 657 F.3d at 223 (citations omitted). Somewhat unusually, the ADA “impose[s] upon public entities an affirmative obligation to make reasonable accommodations for disabled individuals. Where a defendant fails to meet this affirmative obligation, the cause of that failure is irrelevant.” Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 454-55 (5th Cir. 2005) (emphasis added and citations omitted).

         This affirmative obligation extends to deinstitutionalization cases. Olmstead explicitly holds that “States are required to provide community-based treatment” if three elements are met. 527 U.S. at 607 (emphasis added).[8] None of those elements turn on whether the State is eliminating services or failing to provide services. The rate-of-change question is instead folded into element three of the standard; whether community placement “can be reasonably accommodated.” Id.

         Case law also indicates that states dragging their feet on deinstitutionalization can be held accountable under Olmstead.

         In Frederick L., the Third Circuit was faced with a situation with similarities to our own. Both parties sought deinstitutionalization and citizens' “integration into community-based healthcare programs.” Frederick L. v. Dep't of Pub. Welfare of Pa. (Frederick L. II), 422 F.3d 151, 154 (3d Cir. 2005). They disputed only the timeline of implementation (or lack thereof). The appellate court found that although the Commonwealth of Pennsylvania “proffers general assurances and good faith intentions to effectuate deinstitutionalization, ” that was not enough to satisfy the ADA.

General assurances and good-faith intentions neither meet the federal laws nor a patient's expectations. Their implementation may change with each administration . . ., regardless of how genuine; they are simply insufficient guarantors in light of the hardship daily inflicted upon patients through unnecessary and indefinite institutionalization.

Id. at 158-59. The Third Circuit concluded that under Olmstead, states must provide more than “a vague assurance” of “future deinstitutionalization”; that “verifiable benchmarks or timelines” are “necessary elements of an acceptable plan”; and that any plan must “demonstrate a commitment to community placement in a manner for which [the state government] can be held accountable by the courts.” Id. at 155- 56. This Court agrees, and will therefore consider the State's arguments regarding the timing of deinstitutionalization later in the Olmstead analysis, rather than as a bar to the entire action.

         Given all of these authorities, the Court cannot sustain the State's preliminary legal arguments. The Court will now turn to the evidence.

         III.

         Mississippi's Mental Health System

         Mississippi's mental health system looks like a broad continuum of care-with community services on one end and the state hospitals on the other. On one end, the State is divided into regions, each covered by a community mental health center that provides a range of services. On the other end, a handful of state hospitals are used to institutionalize patients when necessary.

         Dr. Robert Drake, one of the United States' experts, testified that the community-based system described in Mississippi's manuals “is well written.” Trial Tr. 105. In practice, however, the continuum of care morphs from a line into a circle. Mississippians with SMI are faced with a recurring cycle of hospitalizations, without adequate community-based services to stop the next commitment. This process of “cycling admissions” is “the hallmark of a failed system.” Trial Tr. 119.

         A. Community-Based Services

         “The State offers community-based mental health services primarily through fourteen regional community mental health centers (CMHCs). DMH is responsible for certifying, monitoring, and assisting the CMHCs.” Trial Stipulations ¶ 5. DMH promulgates standards for the CMHCs and provides them with grant funding, but the management of each CMHC is left to a board appointed by the county supervisors within the catchment area covered by the CMHC. Id. ¶ 7; Trial Tr. 1579.

         “Community-based services” refers to a bundle of evidence-based practices. If these services are provided in a county, they are provided through the regional CMHC. Each kind of service is described in more detail below.

. Programs of Assertive Community Treatment (PACT): PACT is the most intensive community-based service available in Mississippi. It is for individuals “who have the most severe and persistent mental illnesses, have severe symptoms and impairments, and have not benefited from traditional outpatient programs.” JX 60 at 215; see Trial Stipulations ¶¶ 189-90. PACT teams include some combination of psychiatric nurse practitioners, psychiatrists, registered nurses, community support specialists, peer support specialists, employment and housing specialists, therapists, and program coordinators. See Trial Tr. 529 and 2194. Currently, PACT services are offered in Mississippi through eight PACT teams, which together cover 14 of Mississippi's 82 counties. See PX 413; Trial Stipulations ¶ 195.
. Mobile Crisis Response Services: “All fourteen CMHC regions established Mobile Crisis Response Teams in 2014. Mobile crisis response services are required by DMH regulation to be available 24 hours a day, 7 days a week, 365 days a year.” Trial Stipulations ¶¶ 208-09.
. Crisis Stabilization Units (CSUs): “CSUs provide psychiatric supervision, nursing, therapy, and psychotherapy to individuals experiencing psychiatric crises, and are designed to prevent civil commitment and/or longer-term inpatient hospitalization by addressing acute symptoms, distress, and further decompensation.” Id. ¶ 212. There are nine CSUs in Mississippi. They are located in Batesville, Brookhaven, Cleveland, Corinth, Grenada, Gulfport, Laurel, Newton, and Jackson. Id. ¶ 222.9 9 The ninth CSU was added in Hinds County, the State's most populous county, in the spring of 2019, past the fact cut-off date agreed to by the parties. See Trial Tr. 2202. Nevertheless, this is relevant for understanding the complete range of services currently provided by DMH.
. Community Support Services: Community support services are similar to PACT services, but are less intensive. They allow healthcare professionals to provide in-home services like medication management and referrals to other service providers. Medicaid will reimburse up to 100 hours of community support services per person per year. See Trial Tr. 40 and 1345.
. Peer Support Services: “Peer Supports are provided in Mississippi by Certified Peer Support Specialists (CPSS), individuals or family members of individuals who have received mental health services and have received training and certification from the State. CPSS may work in State Hospitals, as part of PACT or Mobile Crisis Response Teams, for CMHCs, or for other providers and serve as a resource for individuals with mental illness. Peer specialists engage in person-centered activities with a rehabilitation and resiliency/recovery focus. These activities allow consumers of mental health services and their family members the opportunity to build skills for coping with and managing psychiatric symptoms and challenges associated with various disabilities while directing their own recovery.” Trial Stipulations ¶¶ 251-52.
. Supported Employment: “Supported Employment for SMI assists individuals with severe and persistent mental illness in obtaining and maintaining competitive employment.” Id. ¶ 227. “In FY17 116 individuals with SMI received supported employment.” Id. ¶ 232.
. Permanent Supported Housing: “According to SAMHSA, [10] Permanent Supported Housing is an evidence-based practice that provides an integrated, community-based alternative to hospitals, nursing facilities, and other segregated settings. It includes housing where tenants have a private and secure place to make their home, just like other members of the community, and the mental health support services necessary to maintain the housing.” Id. ¶ 235. In Mississippi, supported housing services are delivered through a program known as CHOICE. “CHOICE recipients receive mental health services from the local CMHC or other providers and are eligible for a rental subsidy administ[ered] through MHC.” Id. ¶ 237. “In FY17 205 individuals were served through CHOICE.” Id. ¶ 249.

         The evidence established that the descriptions of the services provided by CMHCs is adequate. The problem is that the descriptions do not match the reality of service delivery, in terms of what is actually provided and where it is provided. Some of those realities are presented below.

         1. PACT is unavailable and under-enrolled.

         The following map provides an understanding of the regional catchment areas that each CMHC covers. It shows that PACT services do not exist in 68 of Mississippi's 82 counties.

         Figure 1

         Mississippi Counties with PACT Teams as of June 2018[11]

         (Image Omitted)

         PACT is the most intensive community-based service. It targets individuals who need the most assistance staying out of the hospital. The prime candidate for PACT is someone who has had multiple hospitalizations, such as the 743 Mississippians hospitalized more than once between 2015 and 2017. See PX 405 at 28.[12] The United States refers to this group as the “heavy utilizers” of the mental health system. Trial Tr. 2468.

         As of September 2018, however, only 384 people in the state were receiving PACT services. See JX 50 at 8. The problem is obvious. If there are more than 700 heavy utilizers who have been hospitalized multiple times, but fewer than 400 persons receive PACT services, the penetration rate of PACT services is low.

         Again, one obvious reason for the under-enrollment of heavy utilizers is geographical. The below map shows that many of Mississippi's most-hospitalized persons live in areas where PACT services are not available.

         Figure 2

         Home Addresses of the top 30% of Hospital Utilizers[13]

         (Image omitted)

         Even in those 14 counties where PACT exists, there is another problem. Testimony revealed that existing PACT teams are not operating at full capacity. A DMH Bureau Director attributed the shortfall to "staff issues" and the fact that some patients “choose not to have that level of intervention in their life.” Trial Tr. 1587-88.

         The first explanation is understandable. The second is less persuasive. Other states' experiences show that patients do in fact choose to have intensive community-based services in their lives. We know this because other states have significantly higher PACT penetration rates. One of the State's experts testified that if Mississippi's PACT services had the nation's average penetration rate, a total of 1, 329 Mississippians with SMI would be receiving PACT services. Trial Tr. 1539. That is nearly 1, 000 persons more than are being served today.

         2. Mobile Crisis Services are illusory.

         Geographic availability does not always translate into true accessibility. The Court heard from Sheriff Travis Patten, the top law enforcement official in Adams County, Mississippi. He testified that although his county is covered by the CMHC for Region 11, when people call the mobile crisis line, the Adams County Sheriff's Department is dispatched to respond to the call. That is in large part because the mobile crisis team is based in McComb, over an hour away. His department never sees the mobile crisis team. See Trial Tr. 914-15.

         Ms. Worsham, the certified peer support specialist, has called the mobile crisis line in Gulfport “dozens of times.” Trial Tr. 335. They came only once. Trial Tr. 336. Every other time, they told her to take herself or her client to the hospital or call the police. Trial Tr. 336-37.

         It is no surprise then that the mobile crisis lines covering Adams County and Gulfport are utilized less often than others in the state. The below map shows the utilization of this service by region:

         Figu ...


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