Thomas Breen photo
Legal aid attorneys Shelley White and Amy Marx and city-hired attorney Andrew Cohen.
The Harp administration and two privately hired attorneys bought the city a month and a half more time to fight a protracted class action lead poisoning lawsuit now that they’ve moved to dismiss the case entirely — on the grounds that the city’s recently updated lead law absolves the Health Department of any additional court-ordered responsibilities.
That was the upshot of the latest hearing in the case Nyriel Smith v. City of New Haven, which was held Tuesday afternoon in the third floor housing court of state Superior Court Judge Claudia Baio at 121 Elm St.
Five city and city-hired attorneys—Corporation Counsel John Rose, Deputy Corporation Counsel Catherine LaMarr, Assistant Corporation Counsel Roderick Williams, and Winnick Ruben Hoffnung Peabody & Mendel, LLC attorneys Andrew Cohen and Nancy Mendel — joined New Haven Legal Assistance Association (NHLAA) Director of Litigation Shelley White, legal aid attorney Amy Marx, and legal aid Legal Fellow Melissa Marichal for a 10 minute private chambers conference with the judge just after 3 p.m.
Cohen, Marx, and White then stuck around for a five-minute public scheduling update in the court room where Baio explained that both sides will next have to appear before her on Jan. 30.
For months, Cohen has been earning $300 an hour and Mendel $226 an hour for their work defending the city in the class action suit — which alleged that the city neglected to enforce local legally mandated protections for upwards of 300 children who tested above the city’s lead poisoning threshold of 5 micrograms per deciliter (μg/dL) and below the state’s level of 20 μg/dL.
City health officials admitted in open court this summer to changing their inspection mandate threshold in November 2018.
On Tuesday, Baio said that the late January hearing will deal with a motion filed by city-hired attorneys on Dec. 13 that urges the court to dismiss the case entirely.
That motion (which can be read in full here) argues that the judge should not grant legal aid’s request to order the city’s Health Department to conduct inspections and enforce lead hazard abatements for the entire class of plaintiffs.
The city’s rationale for that motion to dismiss is that, when the alders updated the local lead poisoning law earlier in December, they effectively obviated the law that former housing court Judge Patrick Cordiani cited in his initial judicial orders in the case as applied to the suit’s two primary child plaintiffs.
Because that law change has gone through, the motion reads, “the premise of plaintiffs’ complaint, and the statute that served as the basis for Judge Cordani’s ruling, no longer exist.”
Furthermore, it continues, “the ordinance has been rewritten, as Judge Cordani essentially suggested. The new ordinance, which sets a higher standard for action by the City than its predecessor, results directly from plaintiffs’ efforts, and by all accounts it achieves their goals. There is no legitimate reason to devote either judicial resources or the City’s time and revenue to a controversy that has been addressed and resolved through legislation.”
The city and legal aid attorneys did not debate the motion to dismiss Tuesday; they are scheduled to do that on Jan. 30.
Legal aid attorneys have argued in previous court appearances and public testimonies before the Board of Alders that the updated lead law clarifies and reinforces the requirement that the city do exactly the inspections and hazard abatement enforcement that was mandated by Cordani and three other state judges.
Marx and White said after the hearing that they plan on strongly objecting to the city’s motion to dismiss on behalf of the hundreds of children in the court-recognized class who have not received the full protections granted by the local law. They said the alders’ amendment to the law did not resolve the litigation, and that the class action is still needed to get the Health Department to do its job: To order inspections and enforce lead hazard abatements.
They also pointed out that motion to dismiss not address legal aid’s recent amendment of the original complaint to include a state Fair Housing Act complaint that alleges that city Health Department inaction has disproportionately hurt black and brown children in New Haven.
“Given that a motion to dismiss has been filed,” Baio said Tuesday, “the court needs to take that up before anything else is addressed.” Which pushes this entire matter out to Jan. 30.
There may be more changes to come. Because current city top lawyer Rose is slated to step down from his position in the new year, and will be replaced by Mayor-Elect Justin Elicker’s appointment for corporation counsel, Patricia King.
Elicker has also tapped a new prospective Community Services Administrator, Mehul Dalal, who, if approved, will oversee the city’s Health Department.
Throughout the mayoral campaign, Elicker criticized the city Health Department decisions that led to the class action suit, and has been skeptical of the city’s reliance on outside private attorneys to fight the case on the taxpayer’s dime.
Previous lead coverage:
• New Lead Law Passes, With Teeth
• Legal Aid Lobbies Alders On Lead Paint, Alleges Civil Rights Harm
• Weakened Lead Law Advances
• City Still Fighting As Lead Case Drags On
• City Lands $5.6M In Federal Lead Grants
• 5 New Lead Inspector Positions Approved
• Outrage Stalls Weakened Lead Law
• Lead Paint Legal Tab Tops $118K
• City Plan Passes On Lead Law
• City Loses Again On Lead
• Judge Denies City’s Motion To Dismiss Lead Suit
• City, Legal Aid Clash In Court On Lead
• New Lead Proposal “Eviscerates” Mandate
• Lead Cleanup Pricetag: $91M?
• Lead Panel’s Advice Rejected
• Lead Paint Chief Retires
• Lead Paint Fight Rejoined
• Harp Switches Gears On Lead
• Motion Accuses City Of Contempt
• City Loses Again On Lead
• Briefs Debate “Lead Poisoning”
• New Haven: Another Flint?
• Harp Administration Admits Relaxing Lead Standard To Save $$
• Class-Action Suit Slams City On Lead
• City, Legal Aid Clash On Lead Paint
• Legal Aid To City: Get Moving On Lead Paint Law
• 100+ Tenants Caught In Lead Limbo
• 2 Agencies, 2 Tacks On Lead Paint
• Chapel Apartments Get 3rd Lead Order
• Lead Sends Family Packing
• Health Officials Grilled On Lead Plans
• Judge Threatens To Find City In Contempt
• Same Mandy House Cited Twice For Lead Paint
• Lead $ Search Advances
• 3 Landlords Hit With New Lead Orders
• Another Judge Rips City On Lead
• Judge To City: Get Moving On Lead
• Health Department Seeks Another $4.1M For Lead Abatement
• City-OK’d Lead Fixes Fail Independent Inspection
• Judge: City Dragged Feet On Lead
• 2nd Kid Poisoned After City Ordered Repairs
• Judge: City Must Pay
• City Sued Over Handling Of Lead Poisonings
• City’s Lead Inspection Goes On Trial
• Eviction Withdrawn On Technicality
• 2nd Child Poisoned; Where’s The City?
• Carpenter With Poisoned Kid Tries A Fix
• High Lead Levels Stall Eviction
• 460 Kids Poisoned By Lead In 2 Years
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders Total Lead Paint Clean-Up
• Legal Aid Takes City To Task On Lead