Jurisdictional Statement — Kremens v. Bartley

75-1064

» Supreme Court, U. & a

t PILED

ae JAN 27 1976

AK, JR., CLERK

JACK B. KREMENS, Individually and as H

of Haverford State tal; FRANK 8. B

ly and as Secretary of Public Welfare of the Common-

ee Re Gocrcaty for baetnal Heakia nna

as ty or an

Mental Retardation of the ent of Public Welfare

of the Commonwealth of Pennsylvania,

Appellants

Vv.

KEVIN BARTLEY; STEVE GENTILE; LESLIE LEVINE;

VICKI MATHEWS; MARK WEAND; Minors, Through

Their Next Friend, Individually and on Behalf of All Others

Similarly Situated,

Appellees

Appeal From the Judgment of the United States District

Court for the Eastern District of Pennsylvania

JURISDICTIONAL STATEMENT

NORMAN J. WATKINS

Deputy Attorney General

BARRY A. ROTH

Assistant Attorney General

LAWRENCE SILVER

Deputy Attorney General,

ef, Civil Li tion

ROBERT P. KANE

Attorney General

Of Counsel:

JEFFREY COOPER

Deputy Attorney General

Department of Justice

Harrisburg, Pa. 17120

SEE I PE IT eT ITT TLIO

Murrelle Printing Co., Law Printers, Box 100, Sayre, Pa. 18840

TABLE OF CONTENTS

PAGE

Citation to Opinion Below ..............0056. 1

Statement of Jurisdiction ..............0.-.05- 2

Constitutional Provisions Involved ............ 3

Statutory Provisions Involved ................ 4

Coemstiame PURNIOE . . ic ond dcwdeicchacscess 9

OmMNNR AE GH GGOD 55 5 heed eo oie FEE o haie de cee 10

The Questions Are Substantial ................ 12

ied nist hes Wie dia aes Behe aes aes 28

ee ED co ckcadesucdeasudnesehens 29

TABLE OF CITATIONS

CASES:

Ad Hoc Committee on Judicial Administration v.

Massachusetts, 488 F. 2d 1241 (ist Cir. 1973) 25

Dixon v. Weinberger, C.A. 74-285 (D.D.C. 1974) 20

Dugan v. Rank, 372 U.S. 609 (1963) .......... 25

Edelman v. Jordan, 415 U.S. 651 (1974) ....23, 24,25

Employees v. Department of Public Health & Wel-

sgt se. f) eee 22

Ex Parte New York, 256 U.S. 490 (1921) ...... 25

Ex Parte Young, 209 U.S. 123 (1908) ...22,23, 25, 26

Frye v. Lukehard, 364 F. Supp. 1379 (W.D. Va.

CUUEE. eda 6 06a deus’ counter cereeeass 25

Georgia Railroad & Banking Co. v. Redwine, 342

a, Se UE dub oo 658s ca bb bees cKdus 22

Goldberg v. Kelly, 397 U.S. 254 (1970) ........ 26

Goldy v. Beal, C.A. 74-400 (M.D. Pa. 1974) .. 20

Graham v. Richardson, 403 U.S. 365 (1971) .... 26

Griffin v. County School Board of Prince Edward

County, 377 U.S. 218 (1964) ............ 26

Hans v. Louisiana, 134 U.S. 1 (1890) .......... 21

Hawaii v. Gordon, 373 U.S. 57 (1963) ........ 25

Horacek v. Exon, 354 F. Supp. 71 (D. Neb. 1974) = 13

J. L.& J. R. Minors v. Parham, 75-163-MAC (M.D.

DEE Gea cdvaueedaues coeeee arden 20

James v. Almond, 170 F. Supp. 331 (E.D. Va.

Me Wes seadetcadediadertdieeweew 25

Kansas City Southern Railway Co. v. Morley, 88

F. Supp. 300 (W.D. Ark. 1950) .......... 25

Kendall v. True, 391 F. Supp. 413 (W.D. Ky.

Pee es Freire meee 21

Kidd v. Schmidt, C.A. No. 74-6605 (E.D. Wisc.

See weer. doi cas ae eee eee 20

Land v. Dollar, 330 U.S. 731 (1947) .......... 25

Larson v. Domestic & Foreign Commerce Corp.,

See Wa Gee GOD bac ce iwinds cites 22, 23, 25

Malone v. Bowdoin, 369 U.S. 643 (1962) ...... 25

Meyer v. Nebraska, 262 U.S. 390, 399 ........ 14

Minnesota v. Hitchcock, 185 U.S. 373 (1902) .. 22

Parker v. Mandel, 344 F. Supp. 1068 (D. Md.

Se 60s stb oud babuesdes tie ceee ce 25

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 14

Poe v. Weinberger, C.A. 74-1800 (D.D.C. 1974) 20

Preiser v. Rodriguez, 411 U.S. 475 (1972) ...... 16, 20

Rizzo v. Goode, U.S. —, 44 U.S.L.W. 4095

Ss BE hed 86o 6 00d 0096p Keckend 19, 21

Rothstein v. Wyman, 467 F. 2d 226 (2nd Cir.

ce as eee ke Wenn e+e es.< 23, 24

Saville v. Treadway, —— F. Supp. —— (C.A.

i nh Wh MME sccceaeccetoeccce 13

Skinner v. Oklahoma, 316 U.S. 535 (1942) .... 14

Stanley v. Illinois, 405 U.S. 645 (1972) ........ 14

Wallace v. Chancery Clerk of Chicksaw County,

E.C. 75-92-S (N.D. Miss. 1974) .......... 20

Wisconsin v. Yoder, 406 U.S. 205 (1972) ...... 13, 14

Wolff v. McDonnell, 418 U.S. 539 (1973) ..16, 17, 18,

20, 26

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

ee kd ed eekGueveceess +4 26

CONSTITUTIONAL PROVISIONS:

Amendment XI, Constitution of the United

i Re ee Passim

Amendment XIV, Constitution of the United

Dt cept naede Ree een Ode ue 604d ss ¥o8 Passim

STATUTES:

Pennsylvania Mental Health and Mental Retarda-

tion Act of 1966, Section 402 ........... Passim

Pennsylvania Mental Health and Mental Retarda-

tion Act of 1966, Section 403 ........... Passim

Pennsylvania Mental Health and Mental Retarda-

tion Act of 1966, Section 426 ........... Passim

28 USL., Goctian 12598 68s «éun ct cee

42 USC... Section 0008 6.65%. 6. cs (ee Ye

OTHER AUTHORITY:

L. Tribe, “Supreme Court—Forward: Toward a

Model of Roles in Due Process,” 87 Harv.

7 As rr

iV

14

Citation to Opinion Below 1

CITATION TO OPINION BELOW

The opinion of the lower court is reported at 402 F.

Supp. 1039. The final order of the lower court is not

published but is included in the Appendix at page 97a.

oar Statement of Jurisdiction

STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal pursuant

to 28 U.S.C. $1253 in that this appeal is taken from an

order granting a permanent injunction in a civil action

required to be tried by a district court of three judges.

This appeal is timely in that this action was filed Novem-

ber 16, 1972, the decision of the three judge court was

entered July 24, 1975, and the final order of the three-

judge court was entered on November 17, 1975. This

appeal was taken on November 28, 1975.

Constitutional Provisions Involved 3

CONSTITUTIONAL PROVISIONS INVOLVED

Eleventh Amendment to the Constitution of the

United States:

“The Judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Cit-

izens or Subjects of any Foreign State.”

Fourteenth Amendment to the Constitution of the

United States, in pertinent part:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

+ Statutory Provisions Involved

STATUTORY PROVISIONS INVOLVED

The Pennsylvania Mental Health and Mental Re-

tardation Act of 1966, section 402 (Act of Oct. 20, 1966,

Special Sess. No. 3, P. L. 96, art. IV, §402) is set forth

as follows:

“(a) Application for voluntary admission to

a facility for examination, treatment and care may be

made by:

(1) Any person over eighteen years of age.

(2) A parent, guardian or individual standing

in loco parentis to the person to be admitted, if such

person is eighteen years of age or younger.

(b) When an application is made, the director

of the facility shall cause an examination to be made.

If it is determined that the person named in the ap-

plication is in need of care or observation, he may

be admitted.

(c) Except where application for admission

has been made under the provisions of section 402

(a) (2) and the person admitted is still eighteen years

of age or younger, any person voluntarily admitted

shall be free to withdraw at any time. Where ap-

plication has been made under the provisions of sec-

tion 402(a) (2), only the applicant or his successor

shall be free to withdraw the admitted person so

long as the admitted person is eighteen years of age

or younger.

(d) Each admission under the provisions of

this section, shall be reviewed at least annually by a

committee, appointed by the director from the pro-

Statutory Provisions Involved 5

fessional staff of the facility wherein the person is

admitted, to determine whether continued care is

necessary. Said committee shall make written recom-

mendations to the director which shall be filed at the

facility and be open to inspection and review by the

department and such other persons as the secretary

by regulation may permit.

Where the admission is under the provisions of

402 (a) (2), the person admitted shall be informed

at least each sixty days of the voluntary nature of his

status at the facility.”

The Pennsylvania Mental Health and Mental Retarda-

tion Act of 1966, section 403 (Act of Oct. 20, 1966,

Special Sess. No. 3, P. L. 96, art. IV, §403) is set forth

as follows:

“(a) Application for voluntary commitment

to a facility for examination, treatment and care may

be made by:

(1) Any person over eighteen years of age.

(2) A parent, guardian or individual standing

in loco parentis to the person to be admitted, if such

person is eighteen years of age or younger.

(b) The application shall be in writing, signed

by the applicant in the presence of at least one wit-

ness. When an application is made, the director of

the facility shall cause an examination to be made.

If it is determined that the person named in the ap-

plication is in need of care or observation, he shall

be committed for a period not to exceed thirty days.

Successive applications for continued voluntary com-

mitment may be made for successive periods not to

exceed thirty days each, so long as care or observa-

tion is necessary.

Statutory Provisions Involved

(c) No person voluntarily committed shall be

detained for more than ten days after he has given

written notice to the director of his intention or de-

sire to leave the facility, or after the applicant or his

successor has given written notice of intention or de-

sire to remove the detained person. :

(d) Each commitment under the provisions of

this section shall be reviewed at least annually by a

committee, appointed by the director from the pro-

fessional staff of the facility wherein the person is

cared for, to determine whether continued care and

commitment is necessary. Said committee shall make

written recommendations to the director which shall

be filed at the facility and be open to inspection and

review by the department and such other persons as

the secretary by regulation shall permit.

Where the commitment is under the provisions

of section 403 (a) (2), the person committed shall be

informed at least each sixty days of the voluntary

nature of his status at the facility.”

The Pennsylvania Mental Health and Mental Retarda-

tion Act of 1966, section 426 (Act of Oct. 20, 1966,

Special Sess. No. 3, P. L. 96, art. IV, §426) is set forth

as follows:

“(a) Every person committed or detained in a

facility by reason of the provisions of this act or any-

one acting on his behalf, may at any time, petition

for a writ of Habeas Corpus and, except as herein-

after provided, said petition shall be filed in accord-

ance with the provisions of the act of May 25, 1951

(P.L. 415).

(b) Said petition may be based upon the fol-

lowing grounds:

Statutory Provisions Involved 7

(1) The insufficiency or illegality of the pro-

ceedings leading to such person’s commitment, or,

(2) Although the commitment proceedings

were proper, such person’s continued detention or

hospitalization is not warranted by reason of mental

disability. Where the petition is based on this

ground; (i) it shall be accompanied by the affidavit

of a physician stating that he has examined the per-

son and is of the opinion that such person is not

mentally disabled, or that such mental disability does

not require care or treatment in a facility, and (ii)

the burden of proof shall rest upon the director re-

sponsible for such person’s continued detention.

(c) Jurisdiction and venue is hereby conferred

upon the several courts of the Commonwealth to is-

sue writs of Habeas Corpus filed under this act as

follows:

(1) A petition filed under section 426(b) (1)

may be filed: (i) where committed by a court, only

in the same court, or (ii) where committed under

sections 404 or 405 of this act, only in the court of

the county where the application for commitment was

made.

(2) A petition filed under section 426(b) (2)

may be filed: (i) in the court which committed such

person or the court of common pleas of the county

where he is detained if a civil commitment was or-

dered, or (ii) where a criminal charge is pending, in

the court having jurisdiction of the charge or which

committed him or the court of the county where he is

detained, or (iii) where committed by a court where

a criminal act was in any way otherwise involved in

the proceedings leading to commitment, only in the

same court which committed such person.

Statutory Provisions Involved

(3) If any petition under section 426(b) (2)

is filed in a court other than the court of the county

in which the person is detained, the petition may be

transferred for disposition by the court in which it

was filed to the appropriate court of the county in

which the person is detained.”

42 U.S.C. §1983 provides as foilows:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or other

proper proceeding for redress.”

Questions Presented 4

QUESTIONS PRESENTED

I. The lower court’s holding that parents may not

waive the constitutional rights of their juveniles is both

novel and erroneous.

II. The retroactive injunctive relief granted by the

lower court is improper.

III. The retroactive relief ordered by the three judge

court below violates the Eleventh Amendment of the Con-

stitution of the United States.

10 Statement of the Case

STATEMENT OF THE CASE

On November 16, 1972 the plaintiffs instituted this

civil rights action challenging the constitutionality of cer-

tain portions of Pennsylvania’s Mental Health and Mental

Retardation Act of 1966. Specifically the plaintiffs

sought inter alia declaratory and injunctive relief from

the operation of sections 402 and 403 of Pennsylvania’s

Mental Health and Mental Retardation Act’ which gen-

erally provide the procedures for the admission and volun-

tary commitment of juveniles to Pennsylvania’s Mental

Health and Mental Retardation facilities.’

The plaintiffs in this class action were juveniles who

had been placed in mental health facilities under the pro-

visions of these statutes. These plaintiffs asserted that

they were involuntarily admitted and committed at the

hands of their parents or guardians pursuant to the above

mentioned statutes and that such placement without inter

alia a hearing violated their rights to equal protection and

due process of law.

On February 13, 1973 a three-judge court was con-

vened and after several hearings that court issued its

opinion on July 24, 1975 wherein it found that sections

402 and 403 of the Act violated the due process clause

of the Fourteenth Amendment. Specifically the Court

1 These sections are set forth in full at pp. 4, 5 & 6 supra.

2 Throughout the remainder of this Jurisdictional Statement

mental health and mental retardation facilities will be referred to

as simply ‘‘mental health facilities’’ and the Mental Health and

Mental Retardation Act of 1966 will be referred to as ‘‘the Act’’.

Statement of the Case il

found that parents could not constitutionally waive their

children’s due process rights in relation to the child’s ad-

mission Or commitment to a mental health facility (37a).

In addition to declaratory relief the Court also granted

extensive prospective and retroactive injunctive relief

(97a-106a) .

On November 28, 1975 this appeal was taken gen-

erally seeking review of both the lower court’s findings

and the nature of the relief ordered. After denial by the

lower court this Court granted the appellants’ request for

a stay of the lower court’s order on December 16, 1975.

12 The Questions Are Substantial

THE QUESTIONS ARE SUBSTANTIAL

I. The Lower Court’s Holding That Parents May Not

Waive the Constitutional Rights of Their Juveniles Is Both

Novel and Erroneous

The lower court made essentially three legal deter-

minations which appellants presently seek review of by

this Court. First it was determined that sections 402

and 403 of the Mental Health Act as well as the regula-

tions promulgated thereunder, were facially unconstitu-

tional on due process grounds.’ Next the lower court

found that parents and those standing in loco parentis

could not effectively waive these due process rights of

their children. And finally the Court prescribed an

elaborate array of procedural rights which must be af-

forded in order to continue allowing admission or com-

mitment of juveniles to the state’s mental health facili-

ties. The adverse effects of these erroneous findings

stretch from the individual juvenile in need of care,

through the family unit to various state mental health pro-

grams throughout the country. *

8 These regulations are reproduced in the majority opinion at

n. 5, pp. 25a-27a. See dissenting opinion of Broderick, J., pp. 52a-

6la.

*The following state statutes permit parents to voluntarily

commit their children to mental institutions: Alaska Stat. Sec.

47.30.020; A. R. S. (Ariz.) Sees. 36-502, 36-504; Ark. Stat. Ann.

See. 59-405; Cal. Welf. & Inst. Code See. 6000; Colo. Rev. Stat.

Ann. See. 71-1-2; 16 Del. C. See. 5121; D. C. Code Ann. Sees. 21-

511, 21-512; Fla. S. A. See. 394, 465; Ga. Code Ann. Sec. 88-503.1 ;

The Questions Are Substantial 13

The lower court’s holdings regarding the due process

rights of juveniles with respect to admission or commit-

ment to a mental health facility is completely without

precedent. This Court specifically excepted from its de-

cision in Wisconsin v. Yoder, 406 U.S. 205, 230 (1972),

any pronouncement on the proper balancing of the in-

terests of the state, family, and juvenile member of the

family when such interests potentially clash.°

The lower court’s ruling mandates a complete adver-

sary judicial proceeding before responsible parents can

secure the professional care and treatment they deem

necessary for their mentally handicapped children. Just

Hawaii R. 8S. Sec. 334-52; Idaho Code Ann. Sees. 66-318, 66-320;

Ind. Stat. Ann. Sec. 22-1206; Ky. R. 8. Sec. 202.015; 34 M. R. S. A.

(Maine) Sees. 2291, 2293; Md. Ann. Code, Art. 59, See. 11(g);

Mass. G. L. A. Oh. 123, Sees. 10, 11; Mich. C. L. A. See. 303.19a;

Minn. Stat. Ann. Sec. 253A 03 subdiv. 1 and 2; V. A. M. S. (Mis-

souri) Sees. 202.783, 202.790; Mont. Rev. Codes Ann. Sec. 38-

406.2; Nev. R. S., See. 433.665; N. H. R. S. A. Sees. 135:22, 135:-

22-a; N. J. S. A. Sees. 30:4-46, 30:4-48: N. M. Stat. Ann. Sees.

34-2-2, 34-2-4(2); N. Y. Mental Hygiene Law Sec. 71; N. D. Cen-

tury Code Sees. 25.03-01, 20-03-06(2) ; Ohio Rev. Code Ann. Sees.

5122.02, 5122.03(A)(2); 43 Okl. St. Ann. See. 184; O. R. S.

(Oregon) Sec. 426.220; Pa. Stat. Ann. tit. 50, Sees. 4402, 4403;

S. C. Code See. 32-951; Tenn. Code Ann. See. 33-601; Utah Code

Ann. Sec. 64-7-29; 18 V. S. A. (Vermont) Sees. 7503, 8001: Va.

Code Ann. See. 37.1-65; R. C. W. A. (Washington) Sees, 72.23.-

070, 72.23.0909; W. Va. Code Ann. Sees. 27-4-1, 27-4-3: W. S. A.

( Wise.) See. 51.10; See. 25.54, W. S. (Wyoming).

* The only authority remotely approaching the holding in this

case counsel has been able to find are the unreported opinion in

Saville v. Treadway, F. Supp. (C.A. 6969, M.D. Tenn.

1974) ; and Horacek v. Exon, 354 F. Supp. 71 (D. Neb. 1974).

Both of these cases are equally lacking in precedent for their

holding regarding the due process rights of juveniles and the

waivability thereof by their parents.

14 The Questions Are Substantial

as the right of parents to educate their children is funda-

mental and not lightly interfered with Wisconsin v. Yoder,

supra. Pierce v. Society of Sisters, 268 U.S. 510 (1925),

the rights of parents to freely provide medical treatment

for their children cannot be overlooked as is required by

the lower court’s opinion and order.®

Assuming arguendo that some measure of due process

must be provided, clearly the lower court has provided an

“overdose”’ of such procedural requirements. As _ the

dissent suggests this holding may well mark the beginning

of the end of voluntary admission and commitment of

juveniles for necessary care and treatment.’ At what cost

we must ask do we then surrender this valuable service?

The lower court has mandated a severe intrusion by the

state into the normal sphere of decision making authority

reserved for the family." And again we must ask at what

cost? And finally at what cost do we permit an adver-

sarial barrier of due process to be erected between the

parent and child in need of care and treatment in a mental

health facility.

Fundamental concepts of familial existence are in-

volved in this case. In view of the tremendous impact

of this decision, and in view of the fact that the resolution

of this case will drastically effect thousands if not millions

of families nationally it is strongly urged that this Court

review the opinion in this case.

® In Stanley v. Illinois, 405 U.S. 645, at 651 (1972) this Court

found that ‘‘[t]he rights to conceive and to raise one’s children

have been deemed essential.”” See also Meyer v. Nebraska, 262

U.S. 390, 399 and Skinner v. Oklahoma, 316 U.S. 535 (1942).

7 Dissent at 52a.

SL. Tribe, ‘‘Supreme Court—Forward: Toward a Model of

Roles in Due Process,” 87 Harv. L. Rev. (1973).

The Questions Are Substantial 15

II. The Retroactive Injunctive Relief Granted by the

Lower Court Is Improper

The plaintiffs in this action were at all times attack-

ing the very fact or duration of their confinement and they

were seeking injunctive relief necessitating their immediate

or speedier release.’ In addition to the injunctive relief

sought the plaintiffs requested damages and declaratory

relief.”

The lower court, having found that Pennsylvania’s

Mental Health and Mental Retardation Act were facially

unconstitutional on due process grounds, granted both

declaratory and injunctive relief to the plaintiffs. As part

of the injunctive relief it was ordered that the defendants

were enjoined “to refrain from accepting or continuing the

admission or commitment of any child . . .” who at that

time was in, or was attempting to be admitted to, a mental

health facility unless the child was provided the full

panoply of prescribed due process rights within 120 days

of the effective date of the Court’s order."’ In other words

the lower court retroactively applied the injunctive aspects

of its order which appellants contend is not permissible

within the context of a civil rights action.

® While the prayer for relief in the Complaint did not utilize

the precise term ‘‘release’’ or some similar substitute therefore, the

Complaint did request that the very statute which provided the

sole basis by which the defendants were authorized to maintain

custody of the plaintiffs be enjoined (16a). Further each of the

named plaintiffs specifically complained of their—continued in-

earceration and set forth their desire to be released (6a-9a).

1° (16a) Midway in the course of this litigation the plaintiffs

relinquished their claims for damages.

1! 103a-106a.

_

16 The Questions Are Substantial

This Court has held in Preiser v. Rodriguez, 411 U.S.

475 (1972), that, to the extent that the remedy of habeas

corpus may be available to protect the interests being

advanced, that remedy must be utilized exclusively. As

in Preiser, the plaintiffs in this action were clearly attack-

ing the very basis of their custody, which attack this Court

noted was “the essence of habeas corpus” Jd. at 484.

However, in this case the plaintiffs also sought relief

in the form of damages.” The question then arises wheth-

er or not claims for traditional habeas corpus relief can be

resolved by federal courts ancillary to an apparent valid

civil rights damage claim.

The answer which demonstrates the defect in the

lower court’s order in this case is found in the decision

of this Court in Wolff v. McDonnell, 418 U.S. 539 (1973).

In Wolff this Court held that a civil rights action for dam-

ages may provide the jurisdictional base for ancillary deter-

mination of claims for declaratory and injunctive relief

which could have otherwise been obtained through habeas

corpus. But, this Court noted very clearly that such in-

junctive relief may only be prospective in nature and then,

as always, standing requirements must be met. The

analogy being drawn and which is compelled by this

Court’s holding in Wolff is clear from the following lan-

guage found, at pp. 554-5 of the opinion:

* At p. 494 of Preiser this Court noted that ‘‘[I]f a state

prisoner is seeking damages, he is attacking something other than

the fact or length of his confinement, and he is see!.ing something

other than immediate or more speedy release, the traditional pur-

pose of habeas corpus. In the case of a damages claim, habeas

corpus is not an appropriate or available federal remedy.’’

The Questions Are Substantial 17

“At the threshold is the issue whether under

Preiser v. Rodriguez, 411 U.S. 475 (1973), the

validity of the procedures for depriving prisoners of

good-time credits may be considered in a civil rights

suit brought under 42 U.S.C. §1983. In Preiser,

state prisoners brought a §1983 suit seeking an in-

junction to compel restoration of good-time credits.

The Court held that because the state prisoners were

challenging the very fact or duration of their con-

finement and were seeking a speedier release, their

sole federal remedy was by writ of habeas corpus,

4i1 U.S. at 500, with the concomitant requirement

of exhausting state remedies. But the Court was care-

ful to point out that habeas corpus is not an appro-

priate or available remedy for damages claims, which,

if not frivolous and of sufficient substance to invoke

the jurisdiction of the federal court, could be pressed

under §1983 along with suits challenging the condi-

tions of confinement rather than the fact or length

of custody. 411 U.S. at 494, 498-499.

The complaint in this case sought restoration

of good-time credits, and the Court of Appeals cor-

rectly held this relief foreclosed under Preiser. But

the complaint also sought damages; and Preiser ex-

pressly contemplated that claims properly brought

under §1983 could go forward while actual restora-

tion of good-time credits is sought in state proceed-

ings. 411 U.S. at 499 n. 14. Respondent’s damages

claim was therefore properly before the District Court

and required determination of the validity of the pro-

cedures employed for imposing sanctions, including

loss of good time, for flagrant or serious misconduct.

Such a declaratory judgment as a predicate to a dam-

i8 The Questions Are Substantial

ages award would not be barred by Preiser; and be-

cause under that case, only an injunction restoring

good time improperly taken is foreclosed, neither

would it preclude a litigant with standing from ob-

taining by way of ancillary relief an otherwise proper

injunction enjoining the prospective enforcement of

invalid prison regulations.

We therefore conclude that it was proper for

the Court of Appeals and the District Court to deter-

mine the validity of the procedures for revoking good-

time credits and to fashion appropriate remedies for

any constitutional violations ascertained, short of

ordering the actual restoration of good time already

canceled.” [Emphasis supplied. ]

Thus even assuming there existed plaintiffs with proper

standing to seek the prospective injunctive relief, which

is not at all clear or conceded, it was clear error under

Wolff for the lower court to order the retroactive applica-

tion of the injunctive relief.

The effect of the error committed by the lower court

will not be minimal. In fact this Court was required to

intervene in this case and stay the operation of the order

of this case." The lower court in this matter without ever

formally involving the Commonwealth judicial branch of

government ordered that all children then in the custody

of any mental health facility’* must either be discharged

Or recommitted pursuant to the provisions of the lower

as US. (December 15, 1975). ,

** The lower court’s order presumably covers all Pennsylvania

Mental Health facilities notwithstanding the fact that approximate-

ly 150 of these facilities are private and only licensed by the Com-

monwealth.

The Questions Are Substantial 19

court’s decree within 120 days of the date of the order.

The adverse effect of this order on the judicial branch of

Pennsylvania’s government was pointed out as follows by

Chief Justice Jones of the Pennsylvania Supreme Court in

a telegram directed to each member of this Court.

“ORDER APPEALED FROM CALLS FOR

JUDICIAL INTERVENTION IN ESTIMATED SIX

TO EIGHT THOUSAND CASES WITHIN FIVE

MONTHS.” COURT ADMINISTRATOR OF

PENNSYLVANIA PREPARING, TO INTERVENE

IN THE ACTION, IF POSSIBLE, AND HE AND

THIS COURT JOIN WITH THE COMMON-

WEALTH IN THE REQUEST FOR A STAY.

FAILURE OF STAY WIL RESULT IN OVER-

WHELMING AND DISRUPTING THE JUDICIAL

SYSTEM OF PENNSYLVANIA WHICH ARE

ALREADY OVERLOADED WITH REGULAR

COURT BUSINESS”.”*

Of course, it is not only Pennsylvania’s judicial sys-

tem that will suffer as a result of the effect of the lower

court’s order."” This order if allowed to go into effect

will greatly undermine the delicate balance of judicial

authority which has been created in our federal system of

15 The lower court’s order actually requires completion of these

hearings within 120 days (105a).

16 The Supreme Court of Pennsylvania has informed counsel

for appellants that upon notation of jurisdiction in this matter

its counsel Bernard G. Segal will seek to proceed as amicus curiae.

17 This clash between the federal and state judicial systems

would have in large part been avoided if the lower court had not

completely ignored traditional notions of federalism. See Rizzo

v. Goode, US. , 44 U.S.L.W. 4095 (Jan. 21, 1976).

20 The Questions Are Substantial

government. It is thus absolutely essential that this Court

hear this appeal and determine to what extent a federal

court can create new causes of action and order massive

numbers of state judicial proceedings in state courts. ™

Finally, as has already been pointed out the vast

majority of the states have similar juvenile admission and

commitment statutes which, if not already under attack,

will undoubtedly be the subject of similar attacks in this

ever-burgeoning area of mental health litigation. Fur-

ther, it should be noted that there are many mental health

cases presently pending which in one way or another

challenge the fact or duration of confinement on due

process grounds, which cases will most probably involve

similar Preiser and Wolff problems if such issues have not

already arisen.”

Pennsylvania law provides a complete remedy for

mental patients to challenge the legality of their confine-

ment.’ And instead of ignoring the state’s law the lower

court should have required that presently incarcerated

patients assert their newly pronounced rights to due pro-

cess by this means rather than to completely disrupt the

judicial system of Pennsylvania by creating new forms of

‘8 Fortunately questions of enforcement of the lower court’s

order have not and will not arise until further action by this Ceurt

as a result of the stay issued previously by this Court.

1® See note 4 supra.

9 See e.g. Kidd v. Schmidt, C.A. No. 74-6605 (E.D. Wisc.,

3 J. Ct. 1974) ; J. L. & J. R. Minors v. Parham, 75-163-MAC (M.D.

Ga., 3 J. Ct. 1975) ; Goldy v. Beal, C. A. 74-400 (M.D. Pa. 3 J. Ct.

1974) ; Wallace v. Chancery Clerk of Chicksaw County, E. C. 75-

92-S (N.D. Miss. 1974) ; Dizon v. Weinberger, C. A. 74-285 (D.D.C.

1974) ; Poe v. Weinberger, C. A. 74-1800 (D.D.C. 3 J. Ct. 1974).

** See 50 P.S. §4426 set forth in full at pp. 6-8 supra.

The Questions Are Substantial 21

action and severe time restrictions upon the completion

of this massive amount of litigation.”

Overstatement of the importance of the issues raised

by the retroactive application of the lower court’s order

in this case is difficult to conceive. Paramount considera-

tions of federalism were totally ignored by the lower court

in framing its equitable relief. The importance of such

considerations has recently been noted by this Court:

“When the frame of reference moves from a

unitary court system, governed by the principles just

stated, to a system of federal courts representing the

Nation, subsisting side by side with 50 state judicial,

legislative, and executive branches, appropriate con-

sideration must be given to principles of federalism

in determining the availability and scope of equitable

relief. Doran v. Salem Inn, Inc., 422 U.S. 922, 928

(1975) .”

Rizzo v. Goode, US. , 44 US.L.W.

4095, 4100.

Ill. The Retroactive Relief Ordered by the Three-Judge

Court Below Violates the Eleventh Amendment of the

Constitution of the United States

The Eleventh Amendment of the Constitution of the

United States has, since this Court’s decision in Hans v.

22%n this connection this Court is directed to the case of

Kendall v. True, 391 F.S. 413 (W.D. Ky. 1975) where the Court

properly refused to retroactively apply its injunctive order and

required the then incarcerated patients to utilize the state reme-

dies to pursue their release.

22 The Questions Are Substantial

Louisiana, 134 U.S. 1 (1890), been held applicable to

suits brought against an unconsenting state by a citizen of

that same state. Georgia Railroad & Banking Co. v. Red-

wine, 342 U.S. 299 (1950); Employees v. Department of

Public Health & Welfare, 411 U.S. 279 (1973).

Similarly, in determining the applicability of the

Eleventh Amendment to a particular action, this Court has

looked not only to the relief requested, Larson v. Domestic

& Foreign Commerce Corp., 337 U.S. 682 (1949), but

also to the relief actually ordered. Minnesota v. Hitch-

cock, 185 U.S. 373 (1902).

Upon examination of the nature and effect of the

relief mandated below, appellants assert that the retro-

active requirements of the order, raise substantial and

novel questions under the Eleventh Amendment. Specif-

ically this Court is rquested to review the propriety of a

federal court clearly requiring allocations from a state’s

treasury to retroactively implement newly announced due

process commitment standards, and also requiring a state

officer to affirmatively exercise powers of the sovereign.

Since Ex parte Young, 209 U.S. 123 (1908), there

has been no doubt as to a federal court’s authority to enter-

tain a suit against a state official, acting or threatening to

act, under a statute alleged to be unconstitutional:

“If the act which the state attorney genera! seeks

to enforce be a violation of the Federal Constitution,

the officer in proceeding under such enactment comes

into conflict with the superior authority of that Con-

stitution, and he is in that case stripped of his official

or representative character and is subjected in his per-

son to the consequences of his individual conduct.”

Id. at 160.

| ea tm ses PO ee at tae eb ye

The Questions Are Substantial 23

Despite the doctrine of Ex parte Young, allowing a

federal court to assert its jurisdiction over a state officer

in his individual capacity, this Court has recognized cer-

tain limitations on the relief which may be afforded

against the individual. As was stated in Larson v. Do-

mestic & Foreign Commerce Corp., supra:

“Of course, a suit may fail, as one against the

sovereign, even if it is claimed that the officer being

sued has acted unconstitutionally or beyond his statu-

tory powers, if the relief requested cannot be granted

by merely ordering the cessation of the conduct com-

plained of but will require affirmative action by the

sovereign or the disposition of unquestionably sov-

ereign property. [Citation omitted]’’ Jd. at 691 n.

11.

While Larson involved the federal government’s sov-

ereign immunity, the decision of this Court in Edelman v.

Jordan, 415 U.S. 651 (1974), makes clear that relief

requiring the disposition of unquestionably sovereign prop-

erty, particularly monies from a state’s treasury, is sim-

ilarly barred by the Eleventh Amendment. Relying on

Ex parte Young, this Court in Edelman, held that the retro-

active award of wrongfully withheld AFDC benefits

whether denominated as damages or equitable restitution,

was barred by the Eleventh Amendment.

This Court’s opinion in Edelman quotes with ap-

proval the words of Judge McGowen in Rothstein v.

Wyman, 467 W. 2d 226 (2d Cir. 1972), where he ob-

served that:

“It is one thing to tell the Commissioner of

Social Services that he must comply with the Federal

standards for the future if the state is to have the bene-

24 The Questions Are Substantial

fit of Federal funds in the programs he administers.

It is quite another thing to order the Commissioner

to use state funds to make reparation for the past.

The latter would appear to us to fall afoul of the

Eleventh Amendment if that basic constitutional pro-

vision is to be conceived of as having any present

force.” 467 F. 2d at 236-37 (footnote omitted) .

While it may be argued in the present case that the

expenditure of funds for the recommitment hearings and

for the provision of counsel required by the order below,

is not the same as the monetary award contemplated in

Edelman, this Court clearly met that issue by focusing on

the impropriety of requiring an allocation from the state

treasury to meet the requirements of the order:

‘“*. . . where the state has a definable allocation

to be used in the payment of public aid benefits, and

pursues a certain course of action such as the pro-

cessing of applications within certain time periods as

did Illinois here, the subsequent ordering by a federal

court of retroactive payments to correct delays in such

processing will invariably mean there is less money

available for payments for the continuing obligations

of the public aid system.” Edelman, 415 U.S. at 666

n. 11.

Similarly, Pennsylvania has already made an alloca-

tion for the representation of indigents as well as for the

proceedings required under the various commitment sec-

tions of the Pennsylvania Mental Health and Mental Re-

tardation Act. The order of the court below will neces-

sarily mean that less money will be available to meet those

already existing obligations.~

23 Article 3, §24 of the Pennsylvania Constitution provides:

The Questions Are Substantial 25

This Court in Edelman clearly found that retroactive

relief requiring the direct payment of funds from the state

treasury violated the Eleventh Amendment of the Constitu-

tion. This case raises the substantial question of whether

the Eleventh Amendment is so transparent as to protect

the sovereign states only from relief requiring direct pay-

ments of public funds or whether relief, non-monetary in

nature, but still requiring vast expenditures of public funds

is similarly prohibited.

This Court’s opinion in Larson, supra, clearly suggests

that the sovereign’s immunity generally bars relief re-

quiring a governmental officer to affirmatively exercise

the powers of sovereign. Hawaii v. Gordon, 373 U.S. 57

(1963); Dugan v. Rank, 372 US. 609 (1963); Malone

v. Bowdoin, 369 U.S. 643 (1962); Land v. Dollar, 330

U.S. 731 (1947); Ex parte New York, 256 U.S. 490

(1921) .**

While this issue appears to be novel in its presenta-

tion to this Court, authorities since Ex parte Young lend

‘*No money shall be paid out of the treasury, except on

appropriations made by law and on warrant issued by the

proper officers; but cash refunds of taxes, licenses, fees, and

other charges paid or collected, but not legally due, may be

paid, as provided by law, without appropriation from the

fund into which they were paid on warrant of the proper of-

ficer.’’

*4 While appellants have found no case in this Court which

either affirmatively or negatively applies this proscription to cases

involving the Eleventh Amendment a number of lower federal

courts have discussed the issue. See Ad Hoc Committee on Judi-

cial Administration v. Massachusettes, 488 F. 2d 1241 (lst Cir.

1973); Frye v. Lukehard, 364 F. Supp. 1379 (W.D. Va. 1973):

Parker v. Mandel, 344 F. Supp. 1068 (D. Md. 1972); James v.

Almond, 170 F. Supp. 331 (E.D. Va. 1959) ; Kansas City Southern

Railway Co. v. Morley, 88 F. Supp. 300 (W.D. Ark. 1950).

26 The Quesiions Are Substantial

credence to the Proposition that the Eleventh Amendment

does bar injunctive relief which would require a state of-

ficial to act affirmatively, at least when such actions would

be required to retroactively remedy a previous denial of

constitutional rights:

“The general discretion regarding the enforce-

ment of laws when and as he deems appropriate is

not interfered with by an injunction which restrains

the state officer from taking any steps towards the

enforcement of an unconstitutional enactment to the

injury of complainant. In such case no affirmative

action of any nature is directed, and the officer is

simply prohibited from doing an act which he had no

legal right to do.” Ex parte Young, 209 US. at 159

(emphasis supplied) .

It is true that this Court has required state officials

to take affirmative steps to prospectively remedy uncon-

stitutional procedures or situations.” Griffin v. County

School Board of Prince Edward County, 377 U.S. 218

(1964); Graham vy. Richardson, 403 U.S. 365 (1971);

Goldberg v. Kelly, 397 U.S. 254 (1970). The orders in

these cases are actually no different than the prospective

aspect of Edelman which allows only “‘an ancillary effect

on the state treasury”. Thus, a federal court clearly may

grant prospective injunctive relief to cure existing con-

stitutional infirmities and such relief may, as an ancillary

effect, impose some burden on officials of the sovereign

to individually take appropriate affirmative actions.”

25 See discussion of Wolff v. McDonnell. supra.

26 In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952), this Court upheld an injunction restraining the Secretary

of Commerce from ‘‘continuing the seizure and possession of the

plant.’’ The injunction issued against a federal officer was by

its language prospective in effect.

The Questions Are Substantial 27

However, this Court has never sanctioned an injunc-

tion. which would require a state officer in his official

capacity, to take an affirmative act, retroactive in effect,

in order to grant a newly pronounced right previously

withheld. The court below requires precisely such

sovereign acts in mandating the discharge or release of all

previously committed juveniles.

It is therefore necessary that this Court note juris-

diction in this case to resolve the grave questions herein

raised which are fundamental to the basic concepts of

federalism embodied in our Constitution.

28 Conclusion

CONCLUSION

Based upon the foregoing arguments and authorities

it is requested that this Court note jurisdiction in this

appeal, receive full briefs on the merits, and hear oral

arguments in order to resolve the substantial questions

which are involved.

(s) NORMAN J. WATKINS

NORMAN J. WATKINS

Deputy Attorney General

BARRY A. ROTH

Assistant Attorney General

LAWRENCE SILVER

Deputy Attorney General

Chief, Civil Litigation

ROBERT P. KANE

Attorney General

Of Counsel:

JEFFREY COOPER

Deputy Attorney General

Department of Justice

Harrisburg, Pa. 17120

nn

Certificate of Service 29

IN THE SUPREME COURT OF THE UNITED STATES

No. A—

Jack B. Kremens, et al.,

Appellants

v.

Kevin Bartley, et al.,

Appellees

CERTIFICATE OF SERVICE

I, NORMAN J. WATKINS, Deputy Attorney Gen-

eral, do hereby certify that I have served by United States

Mail, postage prepaid, first class, on this date, Tuesday,

January 27, 1976, three copies of Appellants’ Jurisdic-

tional Statement and Appendix to David Ferleger, Esquire,

Counsel for Appellees, at 1315 Walnut Street, Suite 1600,

Philadelphia, Pennsylvania 19103. I further certify that

all parties required to be served in this appeal have been

served.

(s) NORMAN J. WATKINS

NorMAN J. WATKINS

Deputy Attorney General