No. 96-2278.

186 F.3d 1280 (1999)

J.B., a child, by Frederic M. HART, his next friend; Y.A., D.A., E.A., F.A., V.C., and C.C., by Ella Joan Fenoglio, their next friend; R.E., C.E., J.E., and E.E., children, by Barbara E. Bergman, their next friend; J.S., a child, by Peter H. Johnstone, his next friend; on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. J. Alex VALDEZ, Secretary of the New Mexico Department of Health; William H. Johnson, Jr., Secretary of the New Mexico Human Services Department; Heather Wilson, Secretary of the New Mexico Children, Youth and Families Department; Michael J. Davis, State Superintendent of Public Instruction; Eleanor Ortiz, President of the State Board of Education; Van W. Witt, Vice President of the State Board of Education; Marlis E. Mann; Emmalou Rodriguez, Secretary of the State Board of Education; Rudy Castellano; Wallace Davis; Roger Lenard; Lynn Medlin; Darl Miller; Beverly R. O'Dell; Millie Pogna; Steven Schmidt; Catherine M. Smith; Flora Sanchez; and David Steinborn, members of the State Board of Education, Defendants-Appellees. Children's Rights, Inc., Amicus Curiae.

United States Court of Appeals, Tenth Circuit.

August 12, 1999.

Attorney(s) appearing for the Case

Joseph Goldberg, Freedman, Boyd, Daniels, Hollander, Guttman & Goldberg, Abuquerque, New Mexico (Jane B. Wishner, Browning & Peifer, Albuquerque, New Mexico, and Peter Cubra, Albuquerque, New Mexico, with him on the briefs), appearing for Plaintiffs-Appellants.

John H. Clough, Assistant Attorney General, (Robert T. Booms, Assistant Attorney General, State of New Mexico, Santa Fe, New Mexico, with him on the brief), appearing for Defendants-Appellees.

Marcia Robinson Lowry and Suzanne Nossel, for Children's Rights, Inc., New York, New York, filed an amicus curiae brief.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

TACHA, Circuit Judge.

Plaintiffs, sixteen mentally or developmentally disabled children who are or were in the custody of the state of New Mexico, brought this action for declaratory and injunctive relief alleging that defendants have failed to provide protections and therapeutic services required by federal statutes and the United States Constitution. Plaintiffs sought to certify a class comprised of "[a]ll children who are now or in the future will be (a) in or...


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