Appellants Brief — Kremens v. Bartley
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' Supreme Court, U.S =
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JUN 16
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in the Supreme Court of the
Uunjted States
No. 75-1064
JACK B. KREMENS, individually and as Hospital Director
of Haverford State Hospital; FRANK 8S. BEAL, Individually
and as Secretary of Public Welfare of the Commonwealth
of Pennsylvania; WILLIAM B. BEACH, JR., Individually
and a3 Deputy Secretary for Mental Health and Mental
Retardation of the Department of Public Welfare of the
Commonwealth of Pennsylvania,
Appellants
v.
KEVIN BARTLEY; STEVE GENTILE; LESLIE LEVINE;
VICKI MATHEWS; MARK WAND; Minors, Through
Their Next Friend, Individually and on Behalf of All Others
Similarly Situated,
Appellees
com © From the Judgment of the United States District
Court for the Eastern District of Pennsylvania.
BRIEF FOR APPELLANTS
NORMAN J. WATKINS
Deputy Attorney General
BARRY A. ROTH
Assistant Attorney General
J. JUSTIN BLEWITT, JR.
Chief, Civil Litigation
ROBERT P. KANE
Attorney General
LED
1976
~ At wm
2%
ERRATA
BRIEF FOR APPELLANTS
No. 75-1064
Jack B. Kremens, et al.
v.
Kevin Bartley, et al.
Page iv—Second line from the bottom, 28 U.S.C. §2281
rather than §22811.
Page 19—Last line of second full paragraph should read
§2281 rather than §22811.
Page 38—Fourth line of last paragraph should read:
“Moreover, proof of delinquency must meet the
traditional heavy burden of beyond a reason-
able doubt.” rather than “. . . must not
a
Page 55—Last line of first paragraph should read “. . .
conclusion in Edelman exist and apply in this
case.”
INDEX TO BRIEF
PAGE
Opinions Below ........----eeeeeeeeeeeeeees 1
Jurisdiction .........ce cee ee cece cree eecees
Statutes and Regulations Involved .........----- 2
Questions Presented ........---++-eeeeeeeees 16
Statement of the Case .......-.---eeeeee: Regs OF
Summary of Argument .........----+-++e+05: 22
Argument:
I. A Parent, Acting on a Physician’s Recom-
mendation Has the Authority To Admit His
Child to a Mental Facility Without a Hear-
BRPRETETT TEE LO 24
A. The Admission Process: An Overview 24
B. The Rights of Children in State Institut-
ed Aecatied Proceedings Do Not Ex- pa
“st. A). Eras bP ereee
C. Admission or Commitment of a Child to
a Mental Facility Does Not Require a ¥
Hearing ..... ccc cece cece ec ccccces
Il. A. The Order in This Case Violates the
Eleventh Amendment and Alicrnatively, Vi-
olates the Rule of Preiser v. Rodriguez .... 52
. Retroactive Aspects of the Lower
‘ + tl Order Violates the Principle of Prei-
ser v. Rodriguez ......:.----eseeeeeees 59
TABLE OF CITATIONS
CASES:
Application of President & Directors of Georgetown
College, 331 F.2d 1000 (D.C. Cir. 1964) .. 51
Baker v. Owen, 395 F. Supp. 294 (M.D.N.C. 1975) 34
Baxtrom v. Herold, 383 U.S. 107 .............. 50
Bell v. Wayne County, 384 F. Supp. 1085 (E.D.
PE ee nee Be 50
Bonner v. Moran, 126 F.2d 121, 75 U.S. App. D.C.
ISG (EDGE) .. oo cevncessandhuceseeee 51
Breed v. Jones, 421 U.S. 519 (1974) .......... 38, 39
Bykofsky v. Middietown, 401 F. Supp. 1242 (M.D.
PO. GFED ccccsesiccncasnseueueeee 32
Chisholm v. Georgia, 2 Dall. 419 (1793) ........ 53
Dixon v. Attorney General of Pennsylvania, 325 F.
Supp. 966 (M.D. Pa. 1971) ........... 28, 36, 50
Edelman v. Jordan, 415 U.S. 651 (1973) ..23 ,54, 55, 56
Ex Parte Young, 209 U.S. 123 (1908) ...... 53, 54, 57
Gallegos v. Colorado, 370 U.S. 49 (1962) ...... 38, 39
Gerstein v. Pugh, 420 U.S. 103 at 107 n.6...... 59, 61
Ginsberg v. State of New York, 390 U.S. 629
(IGE «occ + s00scennenkeee Lee 29,51
Glasser v. Marietta, 351 F. Supp. 555 (W.D. Pa.
SUD. 0 come cmncnce canes een 34
Haley v. Ohio, 322 U.S. 596. (1948) .......... 38, 39
Hartmann v. Scott, 488 F.2d 1215 (8th Cir. 1973) 61
Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968)
34, 50, 60, 61
ii
In Re Ballay, 482 F.2d 648 (D.C. Cir. 1973) ....28, 50
In Re Gault, 387 U.S. 1 (1966) . .35, 38, 39, 50, 52, 58
In Re Green, 448 Pa. 338, 292 A.2d 387 (1972) .. 32
In Re Seiferth, 309 N.Y. 80, 127 N.E. 2d 820
SE Aad EE Sole aa 0964 006 oc U'c's vce’ 32
In Re Stuart, 114 F.2d 825 (D.C. Cir. 1940) .... 34
In Re Winship, 397 U.S. 358 (1970) .......... 38
J. L.& J. R. v. Parham, —— F. Supp. ——, No. 75-
163 M.A.C. (M.D. Ga. February 26,1976) .. 50
Jackson v. Indiana, 406 U.S. 715 (1971) ........ 28
Kendall v. True, 391 F. Supp. 413 (W.D. Ky. 1975) 59
Kent v. U.S., 383 U.S. 541 (1965) ............ 39
Larson v. Domestic & Foreign Corp., 337 U.S. 682
eee ee tenn 6 6 O60 fos 0h 0:4 54
Lemon v. Kurtzman II, 411 U.S. 192 (1973) . .58, 59, 63
Lessard v. Schmidt, 349 F. Supp. 1078, remanded
414 U.S. 473 (1974), redecided 379 F. Supp.
1376 (1974), remanded 421 U.S. 957 (1976) 36
Linkletter v. Walker, 381 U.S. 618 (1965) ...... 58
Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala.
DU Mi CCi cece she cteemaeesesseccesecc 36, 50
Matter of Quinlan, 355 A.2d 647 (1976) ...... 45, 46
McKeiver v. Pennsylvania, 403 U.S. 528 (1970) .. a a
Meyer v. Nebraska, 262 U.S. 390 (1922)
Miranda v. Arizona, 384 U.S. 436 (1966) ...... 63
O’Connor v. Donaldson, 422 U.S. 563 (1975) ..43, 50
Pierce v. Society of Sisters, 268 US. 510 (1925) 31, 32
iii
Preiser v. Rodriguez, 411 U.S. 475 (1973) ..23, 59, 60,
61, 62
Prince v. Commonwealth of Massachusetts, 321 U.S.
We GD. uh cdnaseeaenenutanuceienses 31, 34
Rizzo v. Goode, 423 U.S. 362 (1975) ........ 63
Roe v. Wade, 410 U.S. 113 (1972) ..... 32, 35, 36, 47
Saville v. Treadway, 404 F. Supp. 430 (M.D. Tenn.
SOND Kuswws cdkiGevisres elitist ed 30, 48, 49
Sims v. Waln, 388 F. Supp. 543 (S.D.0. 1974) .. 34
Specht v. Patterson, 386 U.S. 605 (1966) ...... 50
Stanley v. Illinois, 405 U.S. 645 (1972) ........ 30
Williams v. United States, 401 U.S. 646 (1970) .. 58
Winters v. Miller, 446 F.2d 65 (2d Cir. 1971) ..50, 51
Wisconsin v. Yoder, 406 U.S. 205 (1971) ..31, 32, 34
Wolff v. McDonell, 418 U.S. 539 (1973) ........ 61
Younger v. Harris, 401 U.S. 37 (1971) ........ 62
CONSTITUTIONAL AND STATUTORY PROVISIONS: *
Act of March 4, 1971, P.L. 809, No. 3-A ...... 46
Act of June 4, 1976, P.L. ——, No. 7-A ........ 46
16 Pa. Stat. Ann. §9960.6(c) ................ 10, 25
Be CR ED bd ace dcdie dudes eecSeGss eos 59
ee ED ‘ives oxide dhbedn aca benins ae 19
42 U.S.C. §1983 ....... eT ere 59, 60, 61
* Appellants examined in excess of thirty (30) state stat-
utes similar to those brought into question in this case which are
cited at p. 27, infra.
iv
Mental Health and Mental Retardation Act of 1966,
Sections 402 et seq., 50 Pa. Stat. Ann. §§4402
Ob. SUE... do sins.ciie oreeeieaee eh ans? eas o< Passim
50 Pa. Stat. Ann. §4418 .............-.. 26
50 Pa. Stat. Ann. §4420 ............+..-. 26
50 Pa. Stat. Ann. §4423(7) ..........-.. 26
50 Pa. Stat. Ann. §4426 ............. 8,26, 59
United States Constitution:
Fourteenth Amendment .............--- Passim
OTHER AUTHORITIES:
Attorneys’ Fees and the Eleventh Amendment, 88
Harv. L.R. 1875 (Jume 1975) ............ 53,57
Developments in the Law: Civil Commitment of the
Mentally Ill, 87 Harv. L.R. 1190 (1974) .. 51
Ellis, Volunteering Children: Parental Commitment
of Minors to Mental Institutions, 62 Cal. L.R.
FY aerate err: 28, 29
Kleinfeld, Balance of Power Among Infants, Their
Parents and the State, 4 Fam. L.Q. 319 (Dec.
GR -& c0.0 Wo 4+ eosecehkyse te cacienentes 32
Lemert, E., Instead of Courts, Crime and Delinquen-
cy Issues: National Institute of Mental Health
TEED wcccsebbbeunsecabaseheegeteesc< 41
MacMillan D., The Mentally Reiarded Label: A
Theoretical Analysis and Review of Research,
79 American Journal of Mental Deficiency, 41
Serer cr tr eee 47
Mahon, The Eleventh Amendment and Retroactive
Welfare Benefits, 36 U. of Pitt. L.R. 78 (Fall,
GET «6 Ouueboee cove ckpenehesoceuansenees 54
Marsden, G., Selection of Children for Residential
Treatment: -A Study of the Process, 9 J. Am.
Acad. Child Psychiatry, 332 (1970) ....... 44
v
On the Voluntary Admission of Minors, Mich. J. L.
— OF rte en OP ere 30, 37
Rabiner, The Case for Psychiatric Hospitalization,
131 Am. J. Psychiatry 761 (July 1974) .... 41
Rabinovitch, Are Inpatient Hospital Services for
Children Obsolete?, 5 Michigan Mental He2!th
Research Bulletin, 3 (1971) .............. 40, 41
Recognition and Protection of the Family Interests
in Child Abuse Proceedings, 13 J. of Fam. Law
Se ES ee cos comhin o mane e 6-6 37,45
Rosenhan, On Being Sane in Insane Places, 179 Sci-
CS Te We hres ese gi ecetscddcedcsi 43
Roth, L. M.D., Some Comments on Labeling, the
American Academy of Psychiatry and the Law
GR Ge clothe vemedesetebievestccuss 43
Rowitz, A Sociological Perspective on Labeling, 79
American Journal of Menta! Deficiency, 265
GOED oi ie Sd cése Se SrsheKéade desist. 47
Wengler & Fletcher, The Effect of Legal Counsel on
Admissions to a State Mental Hospital: A
Confrontation of Professions, 10 J. of Health
& Social Behavior 66 (1969) ............ 43,44
Opinions Below and Jurisdiction 1
OPINIONS BELOW
The majority and dissenting opinions of the District
Court are reported at 402 F. Supp. 1039. Copies of the
opinons are set forth in the Appendix at (783a-823a) .
JURISDICTION
The decision of the District Court and its final order
were entered on November 17, 1975. Bartley v. Kremens,
402 F. Supp. 1039. A notice of appeal was filed on No-
vember 28, 1975. Probable jurisdiction was noted on
March 22, 1976.
The jurisdiction of this Court is conferred by Title
28, United States Code, Section 1253.
2 Statutes and Regulations
STATUTES AND REGULATIONS INVOLVED
STATUTES
Mental Health and Mental Retardation Act of 1966,
50 P.S. §4402 et seq.
§4402. Voluntary admission; application, examination
and acceptance; duration of admission
(a) Application for voluntary admission to a fa-
cility 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 application 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 young-
er, any person voluntarily admitted shall be free to with-
draw at any time. Where application has been made un-
der the provisions of section 402 (a) (2), only the appli-
cant or his successor shall be free to withdraw the ad-
mitted person so long as the admitted person is eighteen
years of age or younger.
Statutes and Regulations 3
(d) Each admission under the provisions of this
section shall be reviewed at least annually by a commit-
tee, appointed by the director from the professional staff
of the facility wherein the person is admitted, to deter-
mine whether continued care 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 may permit.
Where the admission is under the provisions of sec-
tion 402 (a) (2), the person admitted shall be informed
at least each sixty days of the voluntary nature of his status
at the facility.
§4403. Voluntary commitment; application, examination
and acceptance; duration of commitment
(a) Application for voluntary commitment to a fa-
cility 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 witness.
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 application is in need of care
or observation, he shall be committed for a period not to
exceed thirty days. Successive applications for continued
voluntary commitment may be made for successive periods
4 Statutes and Regulations
not to exceed thirty days each, so long as care or observa-
tion is necessary.
(c) No person voluntarily committed shall be de-
tained for more than ten days after he has given written
notice to the director of his intention or desire to leave
the facility, or after the applicant or his successor has
given written notice of intention or desire to remove the
detained person.
(d) Each commitment under the provisions oi this
section shall be reviewed at least annually by a committee,
appointed by the director from the professional 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 sec-
tion 403 (a) (2), the person committed shall be informed
ut least each sixty days of the voluntary nature of his status
at the facility.
§4405. Commitment for emergency detention
(a) Whenever a person appears, by reason of his act
or threatened acts, to be so mentally disabled as to be dan-
gerous to himself or others and in need of immediate care,
he may be taken into custody for the purpose of examina-
tion, provided that:
(1) Only a relative, guardian, friend, individu-
al standing in loco parentis to the person believed to
be mentally disabled, executive Officer or authorized
Statutes and Regulations 5
agent of a governmental or recognized nonprofit
agency providing health or welfare services, or a po-
lice officer may take such person into custody and
then only upon written application approved by the
administrator or his delegate, and
(2) The acts or threats which give cause to be-
lieve the person to be mentally disabled and in need
of immediate care are overt, demonstrate a clear and
present danger to self or others and are set forth in
the application.
(b) Immediately upon being taken into custody,
such person shall be taken with the approved application
for examination to a physician or designated facility for
examination on an emergency basis: (i) When examina-
tion is made by a physician who determines that such per-
son is in need of immediate emergency care in a facility,
he shall so certify on the aforementioned application and
upon request, local police or State police shall forthwith
transport such person to such designated facility where
application shall be presented, the certificate filed with
the facility, and the person thereby committed “or emer-
gency care. (ii) When the examination is made at a desig-
nated facility and it is determined by an examining physi-
cian that the person is in need of immediate emergency
care, the examining physician shall file the required cer-
tificate and the commitment of such person for emergency
care thereby shall be effected.
(c) When the application is not made by a relative
or the guardian, the director, upon reception of the per-
son named in the application, shall notify the appropriate
relative or the guardian of the commitment of such per-
son.
6 Statutes and Regulations
(d) If the examining physician shall determine
that any person. taken into custody by a police officer is
not in need of immediate emergency care in a facility, and
the person in custody has committed a criminal act, the
police officer shall take such person to the proper issuing
authority to be dealt with according to law. In all other
cases such person shall be returned to the place where he
was taken into custody and released.
(e) No person who proceeds under the provisions
of this section shall be held civilly or criminally liable
therefor, unless he acted maliciously and did not have
probable’ cause to believe that the person taken into cus-
tody was suffering from mental disability.
(f) Any person committed under this section may
be detained for a period of not more than ten days. If
during this period the director finds that such person re-
quires further care, he may admit the person on a volun-
tary commitment or notify the applicant (other than a
police officer), or the administrator of the county of the
person’s residence, to make further application for such
person’s commitment under other provisions of this act.
§4406. Civil court commitment
(a) Whenever a person is believed to be mentally
disabled, and in need of care or treatment by reason of
such mental disability, and examination of such person
has been made by a physician or physicians, or for any
reason the examination of such person cannot be made,
a petition may be presented to the court of common pleas
of the county in which a person resides or is, for his im-
mediate examination or commitment to an appropriate
facility for examination, observation and diagnosis.
Statutes and Regulations 7
(1) The petition may be made by a relative,
guardian, friend, individual standing in loco parentis
or by the executive officer or an authorized agent
of a governmental or recognized nonprofit health and
welfare organization or agency of any responsible
person.
(2) The petition shall set forth the facts up-
on which the petitioner bases his belief of mental
disability and the efforts made to secure examina-
tion of the person by a physician.
(3) Said court upon consideration-of such pe-
tition shall: (i) issue a warrant requiring that such
person be brought before said court; (ii) fix a date
for a hearing which shall be as soon as the warrant
is executed, and (iii) notify the parties in interest.
(4) After hearing, said court may: (i) order
an immediate examination by two physicians appoint-
ed by said court, or (ii) order the commitment of the
person believed to be mentally disabled, to a facility
for a period not exceeding ten days for the purpose
of examination. If the examination can be accom-
plished by partial hospitalization said court may so
direct.
(b) If, upon examination, it is determined that such
person is in need of care at a facility, the examining physi-
cians or director, as the case may be, shall immediately
report to said court which may order the commitment of
such person for care and treatment.
In its order of commitment,.said court may permit
partial hospitalization or outpatient care, or if at any time
thereafter the director shall determine such partial hos-
8 Statutes and Regulations
pitalization or outpatient care to be beneficial to the per-
son so committed, the same may be permitted by said
court upon application by the director.
§4426. Habeas corpus; discharge by order of court
(a) Every person committed or detained in a fa-
cility by reason of the provisions of this act or anyone
acting on his behalf, may at any time, petition for a writ
of Habeas Corpus and, except as hereinafter provided,
said petition shall be filed in accordance with the provi-
sions of the act of May 25, 1951 (P.L. 415).
(b) Said petition may be based upon the following
grounds:
(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 men-
tally 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 responsi-
ble for such person’s continued detention.
(c) Jurisdiction and venue is hereby conferred up-
on the several courts of the Commonwealth to issue 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
Statutes and Regulations 9
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 in-
volved in the proceedings leading to commitment,
only in the same court which committed such per-
son.
(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.
REGULATIONS
Volume 3, Pennsylvania Bulletin, p. 1840
Department of Public Welfare
Additional Procedural Safeguards for Juveniles Admitted
to Institutions
The Department of Public Welfare by this Order
adopts additional procedural safeguards for juveniles ad-
10 Statutes and Regulations
mitted to institutions pursuant to §402 and §403 of the
Mental Health and Mental Retardation Act.
Notice of the proposed rule making was published
in 3 Pa. B. 536, March 24, 1973.
After consideration of the views presented by inter-
ested persons, the regulations are adopted with some
changes. Additions have been made in Paragraphs 1, 2, 6,
7 and the form of notification to permit referral of men-
tally retarded juveniles to institutions by either a pedia-
trician, or general physician or psychologist. A new para-
graph has been written to reflect whether the juvenile is
capable of understanding the notification form. In these
regulations, the word “applicant’”’ shall refer to the per-
son who signed the juvenile in while the word “juvenile”
shall refer to any youth 18 years of age or younger. Sev-
eral comments urge that the role of the Public Defender’s
Office be replaced by a legal service program; however,
the Public Defender Act, December 2, 1968 P.L. 1144,
(No. 358) §1 et seq., (16 P.S. 9960.6(a), (c), specifi-
cally makes the Public Defender responsible for persons
who are or may be subject to commitment under the Men-
tal Health and Mental Retardation Act of 1966. To the
extent, however, that Legal Services other than the Pub-
lic Defender are readily available, such Legal Services
may be utilized in lieu of the Public Defender’s Office
and §5, §6 and §9 of these regulations have been changed
accordingly. These regulations shall not be interpreted to
permit direct intake into state-operated facilities. Although
the Department is adopting these regulations, it will evalu-
ate the procedures at the end of six months. If necessary,
the Department will at that time hold public hearings.
The regulations hereby adopted are adopted pursuant
to Article 2, §201 of the Mental Health and Mental Re-
Statutes and Regulations 11
tardation Act of 1966, Act of October 20, 1966, No. 6,
Third Special Session.
The Department of Public Welfare finds:
1. That public notice of intention to adopt the ad-
ministrative regulations adopted by this Order has been
duly given pursuant to §§201 and 202 of the Common-
wealth Documents Law (45 P.S. §§1201 and 1202) and
the regulations thereunder, 1 Pa. Code, §§7.1 and 7.2.
2. That the adoption of the regulations in the man-
ner provided in this Order is necessary and appropriate
for the administration of the Mental Health and Mental
Retardation Act of 1966.
The Department of Public Welfare, acting pursuant
to the Public Welfare Code, and the Mental Health/Men-
tal Retardation Act of 1966, orders:
(A) The regulations of the Department of
Public Welfare are amended to read as set forth in
Annex A to this order.
(B) The Secretary of the Department of Pub-
lic Welfare shall submit this Order and Annex A
hereto to the Department of Justice for approval as
to legal'y as required by law.
(C) The Secretary of the Department of Pub-
lic Welfare shall duly certify this Order and Annex
A hereto and deposit same in the Legislative Refer-
ence Bureau as required by law.
(D) This order shall take effect upon publi-
cation.
(s)
Secretary of Public Welfare
12 Statutes and Regulations
ANNEX A
Rules Relating to Persons 18 Years of Age or Younger
Admitted to Mental Health or Mental Retardation Insti-
tutions Pursuant to §§402 and 403 of ine Mental Health
and Mental Retardation Act
1. All juveniles aged 18 and younger to be admitted
to an Institution must be referred from a recognized medi-
cal facility, Mental Health/Mental Retardation therapist
or Mental Health Agency; however, mentally retarded ju-
veniles may be referred by either a pediatrician, or general
physician or psychologist.
2. This referral must be accomplished by a psychi-
atric evaluation and that report must indicate with speci-
ficity the reasons that the person requires institutional
care; however, a medical or psychological evaluation may
accompany the referral of a mentally retarded juvenile;
3. The Director of the Institution or his delegate,
shall have conducted an independent examination of the
proposed juvenile, and if his results disagree with the pro-
fessional’s opinion, the Director, or his delegate, shall dis-
charge the juvenile;
4. The telephone number and address of the juve-
nile’s parents or the person who is requesting admission
for the juvenile must accompany the referral;
5. Within 24 hours after the juvenile’s admission,
every youth who is at least 13 years of age must receive
written notification (which he signs) explaining his
rights indicating that he will be given a status report peri-
odically of his condition; that he can contact by telephone
or by mail his parents or the person who requested his
admission; and that he will be furnished with the number
/
~
Statutes and Regulations 13
of counsel (Public Defender’s number; Legal Services)
that he can call for representation. An appropriate person
shall explain this notice (attached) ;
6. In the event that a juvenile whose chronological
age is 13 or older objects (either orally or in writing) to
remaining in the Institution, the Director, or his delegate,
if he feels it is necessary for the youth to remain, may con-
tinue the institutionalization for two business days during
which time he shall notify the applicant and the referral
unit so that either party may institute a 406 proceeding.
During that same two-day period, the Director, or his dele-
gate, shall notify the Public Defender’s Office or notify
Legal Services readily available of the juvenile’s need for
legal representation. If a 406 proceeding is begun during
the two day period, the juvenile shall remain institution-
alized. If the applicant cannot be located and the Direc-
tor, or his delegate, feels that the juvenile does not require
institutionalization, the Director or his delegate, shall di-
rect the Base Service Unit to assume responsibility of pro-
viding for the iuvenile’s aftercare. However, if the Direc-
tor, or his delegate, feels that the juvenile requires institu-
tionalization, he shall direct the Base Service Unit to file
a 406 proceeding within two days after failure to locate
the applicant;
7. The juvenile’s counsel shail be furnished with the
juvenile’s evaluation from the referral unit, with a psychi-
atric evaluation from the Institution, and with a written
report of the reasons to institutionalize the juvenile.
8. If the staff members of the facility giving notice
to the patient (etermines that the patient is incapable of
understanding the notification, it shall be written on the
notification;
14 Statutes and Regulations
9. Juveniles aged 13 and older shall be given the
following notice:
RIGHTS OF CHILDREN UNDER §402 and §403
You have currently been admitted to the
Institution for observation and treat-
ment. This voluntary admission procedure was instituted
by on (date) .
You can call the applicant at Telephone Number
————or you can write the applicant at
. The purpose in having you admitted to
this facility is to help you overcome problems you are ex-
periencing and to return you to the community as soon as
possible. Before we accepted you, you must realize that
a (circle which one) psychiatric, medical, or psychological
opinion was given to us by }
Also, the Director of this Institution had a (circle which
one) psychiatric, medical, or psychological examination
conducted so that he could be thoroughly appraised and
certain that you could benefit in receiving care and treat-
ment at this Institution.
If you object to remaining in this Institution, you are
advised that we shall contact the Public Defender’s Office
to make other suitable arrangements to obtain legal coun-
sel for you. We will provide you with the telephone num-
ber of the attorney who has been contacted on your be-
half. We will require two working days from date of
your objection to remain, in order to make certain that you
will be afforded counsel. At the same time, the Director,
or his delegate, of this Institution shall notify the appli-
cant of his desire to require you (sic) hospitalization for
your benefit.
Statutes and Regulations 15
A member of our staff shall explain this written let-
ter to you and we ask you to sign it, which will evidence
that you have a copy of this letter and that it has been
explained to you in detail. In the event that you have any
questions, you can direct them to the person who is ex-
plaining this document to you or you may contact this of-
fice.
Superintendent’s Signature
Patient’s Signature
Staff Member’s Signature
Giving Notice to Patient
16 Questions Presented
QUESTIONS PRESENTED
1. Whether a parent, acting on a physician’s recom-
mendation has the authority to admit his child to a men-
tal facility without a hearing?
II. Whether the order in this case violates the Elev-
enth Amendment or alternatively, violates the Rule of
Preiser v. Rodriguez?
Statement of the Case 17
STATEMENT OF THE CASE
In 1971 and 1972 each of the named plaintiffs in this
case was admitted or committed to Haverford State Hos-
pital. These plaintiffs were juveniles ranging in age from
fourteen to seventeen at the time of their hospitalization.’
The commitments were initiated by one or both of the juve-
niles’ parents under the provisions of either Section 402
or 403 of Pennsylvania’s Mental Health and Mental Re-
tardation Act of 1966.’
As required by the Act, each of the plaintiffs received
a complete psychiatric examination to determine whether
he or she was in need of care and treatment at the hospital
50 Pa. Stat. Ann. §§402(b), 403(b). However, these
children were not provided a hearing where, with the as-
sistance of counsel, they could challenge either the basis
of their parents’ decision to seek psychiatric in-patient
therapy for them or the medical findings and recommenda-
tions with respect to the necessity for such treatment.
As a result of their respective admissions and com-
mitments this lawsuit was commenced on November 16,
1972 (23a). This action was brought against the super-
intendent of Haverford and certain named officials of the
1 For the purposes of this brief, the terms ‘‘juvenile’’ and
‘*child’’ will be used interchangeably and will refer to persons
eighteen or younger.
2 The provisions of these Sections of the Mental Health and
Mental Retardation Act of 1966 are fully set forth at pages 2-
15 of this brief under the heading “Statutes and Regulations In-
volved.’’ Moreover, this Act of 1966 throughout the remainder of
this brief will simplv be referred to as ‘‘the Act.’’
18 Statement of the Case
Pennsylvania Department of Public Welfare.’ Moreover,
the plaintiffs brought their claims under the Civil Rights
Act and generally challenged the constitutionality of Sec-
tions 402 and 403 of the Act.
The plaintiffs have predicated their challenge exclu-
sively on two theories. First it was asserted that the pro-
cedure which was used in their hospitalization violated the
Due Process Clause of the Fourteenth Amendment. In this
respect, it has been contended that the Act is unconstitu-
tional in that it fails to require a broad array of procedural
safeguards including the rights of notice, hearing, and ap-
pointed counsel if necessary, prior tc ihe child’s admission
to a mental facility.
Secondly, the plaintiffs have claimed a violation of
the Equal Protection Clause. The gravamen of their com-
plaint in this regard is that certain procedural rights gen-
erally afforded adults by the Act have been denied them
solely because of their status as juveniles. Specifically,
they have asserted that the right to discharge themselves
from voluntary admission and the right to a pre-commit-
ment hearing, which rights are afforded adults under the
Act, have not been afforded juveniles in violation of the
Equal Protection Clause (19a-20a). In view of the dis-
position of this case on due process grounds the court did
* This action was brought and maintained as a class action,
which class was described by the lower court as ‘‘. . . all persons
eighteen years of age or younger who have been, are, or may be
admitted or committed to mental facilities in Pennsylvania under
the Pennsylvania Mental Health and Mental Retardation Act
(Act).’’ Moreover, the court specifically noted that this deserip-
tion was intended to encompass both emotionally ill and mentally
retarded children (783a).
Statement of the Case 19
not address this claim, and similarly the appellants‘ will
not address this issue separately for if there is no Due
Process violation the same reasons would necessarily ap-
ply to defeat the Equal Protection claim.
This lawsuit does not in any way question the va-
lidity or quality of treatment that the plaintiffs received
at Haverford State Hospital. The plaintiffs are exclusively
challenging the procedure by which they were hospitalized.
Because the questions raised by this action were sub-
stantial, and because injunctive relief was sought from
the operation of these statutes on the basis of their asserted
unconstitutionality, a three-judge court was convened on
January 19, 1973, pursuant to the provisions of 28 U.S.C.
§22811.
However, shortly after this lawsuit was filed the
Pennsylvania Department of Public Welfare promulgated
regulations augmenting Sections 402 and 403 as they per-
tain to juveniles. These regulations greatly expanded the
procedural protections afforded juveniles in these situ-
ations. * Briefly they require not one, but two independent
psychiatric, psychological, or medical examinations both
of which must conclude that hospitalization is necessary
as a condition of continued hospitalization.* All children
thirteen years of age or older must receive written notice
of all his rights under the regulations including the right
* To avoid confusion the appellees will continue to be referred
to as ‘‘plaintiffs’’ and the appellants as ‘‘defendants’’ throughout
the remainder of this brief.
5 The regulations are set out in full at pages 9-15 of this
brief.
® For the remainder of this brief ‘‘medical’’ or ‘‘ psychiatric’’
examinations are used interchangeably and are intended to also
include ‘‘ psychological’’ examinations where appropriate.
20 Statement of the Case
to be provided free counsel and the right to a hearing if he
objects in any manner whatsoever to his continued com-
mitment.
On the basis of constitutional deficiencies still per-
ceived in those regulations, and after a fairly extensive
evidentiary record had been created, the lower court, with
one judge dissenting, held that Sections 402 and 403 of
the Act violated the Due Process Clause of the Fourteenth
Amendment (783a-813a). By its final order, entered al-
most four months after this decision,’ the Court granted
very broad declaratory and injunctive relief to the
plaintiffs.
Briefly, the lower court ruled that children of any age
were entitled to, and the defendants were required to pro-
vide (1) a “probable cause hearing’ within seventy-two
hours of hospitalization (defendants were required to
serve prior written notice of that hearing upon the child
and his attorney at least forty-eight hours beforehand) ;
(2) a “post-commitment hearing” within two weeks of
hosnitalization (with a similar prior notice requirement) ;
(3) “Counsel at all significant stages of the commitment,”
(4) the right to be present at all hearings and to confront
and cross-examine witnesses as well as to present testi-
mony on their own behalf (843a-852a) .
The Court further ordered that within 120 days of the
entry of its order each of the thousands of children then
hospitalized in mental facilities either be discharged or re-
committed in accord with the newly mandated procedures.
7 While the opinion was handed down on July 24, 1975, it took
nearly four months for the parties to present their views on the
appropriate relief and for the court to enter its order on Novem-
ber 17, 1975.
Statement of the Case 21
Finally, the Court directed that the Commonwealth judi-
cial system provide all the necessary judicial resources to
implement this order (846a) .
Because of the sweeping nature of the relief granted
and because of its overwhelming effect upon the govern-
ment of Pennsylvania, and finally because of the impact
of the decision in a societal context, a stay of this order
was sought. On December 16, 1975, this Court granted
a stay and this appeal followed. On March 22, 1976,
probable jurisdiction over this appeal was noted.
22 Summary of Argument
SUMMARY OF ARGUMENT
I. A. The system of mental health admissions and
commitments in Pennsylvania relative to juveniles gen-
erally recognizes the rights of the parent, with medical ad-
vice, to seek hospitalization for his child. However, reg-
ulations promulgated by the defendants do provide sub-
stantial protective procedures for children over the age of
thirteen. A comparison of similar statutory schemes dem-
onstrates that Pennsylvania compares very favorably in
balancing the interests of the child with those of his par-
ent when those interests collide.
B. With the exception of this case and its limited
progeny there have been no other mental health cases pre-
senting a conflict between the parent and his child. The
lower court failed to recognize this important fact and ac-
cordingly found the existence of due process rights for
children in one situation: state versus child; and applied
those rights in a totally different context—child versus
parent and doctor.
C. Juveniles’ rights have been recognized by this
Court in a very careful and deliberate manner. This Court
has attempted to balance the need for accurate fact-finding
with the desire for informality in delinquency proceedings.
The considerations that have led to the recognition of these
rights in the area of juvenile delinquency do not apply to
the admission procedure for children to mental facilities.
In the latter case the crucial determination is not of guilt
or innocence, but rather whether or not a child needs psy-
chiatric in-patient care.
Summary of Argument 23
Moreover, the underlying assumptions made by the
lower court in ordering a full panoply of procedures are
of doubtful validity, and more importantly create a mis-
use of judicial process. Physicians, not lawyers and judges
should prescribe medical treatment. Institutional therapy
is but one mode in a full spectrum of treatment and any
dissatisfaction with that type of treatment is a social prob-
lem that should be dealt with legislatively, not by impos-
ing purposeless judicial proceedings on the treatment pro-
cess. Accordingly, this Court must reverse the decision
of the lower court.
Il. A. The retroactive portions of the injunctive re-
lief granted by the lower court violate the Eleventh Amend-
ment. This retroactive relief is no less offensive, in its
fiscal impact, than was the order set aside by this Court
in Edelman v. Jordan, 415 U.S. 651 (1974).
B. Alternatively the lower court’s order for retro-
active implementation violates the principies of federal-
ism recognized by this Court in Preiser v. Rodriguez, 411
U.S. 475 (1973). Clearly the plaintiffs in this case had
the complete remedy of habeas corpus available to them
and, at the very least, they should not have been permit-
ted to attack the legality of their custody by the means of
a civil rights action as opposed to habeas corpus. Finally,
these same notions of federalism were totally ignored by
the lower court when it ordered that the thousands of
hearings required to implement the retroactive portions
of this order must be conducted by the Commonwealth
Judiciary. The Judiciary was never made a party to these
proceedings and there was no constitutional necessity for
judicial hearings. Accordingly, the retroactive portions of
the lower court’s order should be set aside.
24 Argument
ARGUMENT
I. A PARENT, ACTING ON A PHYSCIAN’S REC-
OMMENDATION, HAS THE AUTHORITY TO ADMIT
HIS CHILD TO A MENTAL FACILITY WITHOUT A
HEARING
A. The Admission Process: an Overview
There presently are four means by which a person
may be civilly committed to a mental health facility in
Pennsylvania. The first method is referred to as voluntary
admission." By this procedure any adult may apply for
admission and any parent or guardian may apply for his
child’s admission to a mental health facility. However,
only after an examination concluding that the prospective
patient is in need of care or observation has been com-
pleted may the patient be admitted. Moreover, by this
procedure every adult patient is free to withdraw from the
facility at any time. Juvenile patients, on the other hand,
may only be withdrawn by the parent who admitted them.
Secondly, there is the voluntary commitment.’ This
procedure is generally the same as the voluntary admission
procedure except that commitments under this section may
not exceed thirty days, and ten days written notice to the
*50 Pa. Stat. Ann. §4402. See pp. 2-3, supra, where this sec-
tion of the Act is set out in full.
* See Section 403 at pp. 3-4, supra.
Argument 25
director of the facility is required to withdraw from the
facility. Again, as with the voluntary admission, a juvenile
may only be committed and withdrawn by his parent.
The procedure for an involuntary commitment is set
forth in Section 406 of the Act." Briefly, this procedure
allows a third party to petition the appropriate county
court for the commitment of a person thought to be in
need of care and treatment because of a mental disability.
Persons for whom involuntary commitment is sought are
provided with notice, hearing and the right to counsel. ™
The provisions of this section make no distinction as to
age.
12
Finally, there is the emergency commitment. In
this situation a person who is observed as being dangerous
to himself or others and in need of immediate care may
be immediately taken into custody for the purpose of ex-
amination. Custody of the individual for the initial exam-
ination is accomplished without notice or a hearing, how-
ever, a commitment under this section of the Act may not
exceed ten days. Again, there is no distinction as to age
contained in the emergency commitment provisions of the
Act.
Several other features of the Pennsylvania system
of mental health admissions bear noting. First, any per-
son committed to a mental health facility may test the va-
150 Pa. Stat. Ann. §4406 is set out in full at pp. 6-8, su-
ra.
. 1116 Pa. Stat. Ann. §9960.6(c) provides that counsel be ap-
pointed for any person who is unable to afford counsel and who
is the subject of an involuntary commitment action.
12 See Section 405 of the Act which is set out in full at pp.
4-6, supra.
26 Argument
lidity of his custody by petitioning for a writ of habeas
corpus in state court. 50 Pa. Stat. Ann. §4426. Moreover,
a patient may demand an independent psychiatric evalu-
ation to assure the accuracy of the diagnosis by which he
stands committed to the facility. 50 Pa. Stat. Ann. §4423-
(7). Additionally, the director of any facility may dis-
charge any patient when that patient no longer needs care
and treatment in the facility. 50 Pa. Stat. Ann. §4418,
§4420.
Finally, the Pennsylvania Department of Public Wel-
fare promulgated regulations under the Act. These reg-
ulations augment sections 402 and 403 of the Act (vol-
untary admission, and voluntary commitment) as those
sections apply to juveniles and are set forth at pp. 2-4
of this brief. Although the general effect of these regula-
tions has already been highlighted, it is important to ex-
amine these provisions more closely at this point. Parts 2
and 3 of the regulation guarantee that no juvenile may be
admitted to a Pennsylvania facility unless two independent
psychiatric examinations concur that admission is appro-
priate. If the results of these examinations do not concur
in the need for hospitalization, the child may not be ad-
mitted. Moreover, within 24 hours of admission, every
child over 13 years of age must be given oral and written
notice of his rights, including the right to receive periodic
reports of his condition, the right to communicate with
family and counsel, and, if necessary, the right to be fur-
nished counsel."* If the juvenile objects to continued
treatment in the institution, counsel is immediately noti-
fied, as are all other interested parties. At this point, the
child’s hospitalization may continue for a maximum of
13 Section 5 of the Regulations at pp. 9-15, supra.
Argument 27
two business days during which appropriate proceedings
must be commenced under Section 406 of the Act, or the
child must be discharged. “
This, then is the general statutory and regulatory
framework within which children may be admitted or
committed to mental health facilities in Pennsylvania. It
is indeed an understatement to note that there are legal
impediments confronting parents intent on “dumping” a
child in a Pennsylvania mental health facility. In fact,
Pennsylvania compares very favorably with most of her
sister states in this regard. Defendants’ examination of
similar state statutes reveals that Pennsylvania’s pre- and
post-commitment standards and procedures for juveniles
far exceed those provided in most, if not all, of those
states. *°
14 Section 6 of the Regulations at pp. 9-15, supra; there is
a possibility of a slightly extended institutionalization in the situa-
tion where the director of the facility involved cannot locate the
applicant (parent or guardian) and continued hospitalization is
recommended. In this case the involuntary civil commitment is
then instituted by the appropriate base service unit (local mental
health referral and treatment agency).
5 Statutes reviewed: Hawaii R. S. Sec. 334-52; Idaho Code
Ann. Sees. 66-318, 66-320; Ky. R. S. See. 202.015; 34 M. R. S. A.
(Maine) Sees. 2291, 2293; Md. Ann. Code, Art. 59, See. 11(g) ;
Mass. G. L. A. Ch. 123, Sees. 10, 11; Mich. C. L. A. See. 303.19a;
Minn. Stat. Ann. See. 253A 03 subdiv. 1 and 2; V. A. M. S.
(Missouri) Sees. 202.783, 202.790; Mont. Rev. Codes Ann. See, 38-
406.2; Nev. R. S., See. 433.665; N. H. R. 8. 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. (Ore-
gon) See. 426.220; Pa. Stat. Ann. tit. 50, Sees. 4402, 4403; S. C.
Code See. 32-951; Tenn. Code Ann. Sec. 33-601; Utah Code Ann.
28 Argument
B. The Rights of Children in State Instituted Delin-
quency Proceedings Do Not Exist in This Case
1. Increased recognition of the legal rights of the
mentally ill and mentally retarded ** has in large part oc-
curred as a result of litigation of relatively recent vin-
tage.'" Moreover, the majority of those cases dealt with
securing various procedural rights for those who were,
or were about to be institutionalized. In all of these cases
the competing interests have been those of the patient or
prospective patient and the state. And it has generally
been found that the due process clause limits to some de-
gree the power of the State to confine persons against
their will for the sake of treatment. **
This case is different for it is not concerned with the
power of the state vis-a-vis the individual. Here there is
See. 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. 23.090; W. Va. Code Ann. Sees. 27-4-1, 27-43; W. S. A.
( Wise.) See. 51.10; See. 25.54, W. S. (Wyoming).
16 Later criticism of the lower court’s order in this case will
demonstrate that the two groups, emotionally ill and mentally re-
tarded, should have been treated separately. However, for the
sake of brevity, both groups together will hereafter be referred
to as ‘‘mentally ill’’.
17 While there were early cases on the fringes of the contro-
versy, see e.g. In re Joseph (sic) Oakes, 8 Law Rptr. 122 (Sup.
Jud. Ct. Mass. 1845), as cited in J. Ellis, Volunteering Children:
Parental Commitment of Minors to Mental Institutions, 62 Cal.
L. R. 840, 841 (1974), the significant inroads in this area were not
made until the mid and late sixties.
18 See e.g. Jackson v. Indiana, 406 U.S. 715; In Re Ballay,
482 F. 2d 648 (D.C. Cir. 1973); Dizon v. Attorney General of
Pennsylwania, 325 F. Supp. 966 (M.D. Pa. 1971).
Argument 29
a direct confrontation between the wishes of the child and
his parent. Rather than state versus individual, in this
case it is child versus parent. The voluntary admission
of juveniles to a mental facility has been described as pre-
senting a triangular configuration of competing interests,
those of the parent, child and state. '* And by this action
the plaintiffs seek to severely diminish the parents’ role in
the decision to seek institutional care for their child.
The plaintiffs’ theory is not complex: (a) unless one
is free to leave an institution at will, one’s hospitalization
is not voluntary; (b) since children cannot come and go
as they please against the wishes of their parents and phy-
sicians, they are involuntarily hospitalized; and (c) invol-
untary commitment in a mental hospital without a prior
hearing and the right to counsel is a denial of liberty with-
out due process of law. Their argument’s simplicity
amounts to little more than a “knee-jerk application of
the [Fourteenth] Amendment” ” which was unfortunately
subscribed to almost in toto by the court below. As is the
case with most simple solutions to complex issues, grave
difficulties and serious questions have arisen which cause
the need for a more probing analysis.
For instance, by the terms of the lower court’s order
there is absolutely no distinction made between the six
month old severely retarded infant with brain damage and
the seventeen year old emotionally disturbed youth. More-
over, the lower court by its order refused generally to dis-
tinguish between the mentally retarded and the emotion-
19 Ellis, Volunteering Children: Parental Commitment of Mi-
nors to Mental Institutions, 62 Cal. L.R. 840, 877 (1974).
20 Ginsberg v. State of New York, 390 U.S. 629, 648 (1968)
(Mr. Justice Stewart concurring).
30 Argument
ally ill, and infants and teenagers, even though legal and
practical considerations vary greatly for each group. ™
2. In order to strike the proper balance between the
interests of the parent and child, it is first necessary to
briefly survey the contours of the Due Process Clause as it
has been applied with respect to each. From this we will
be able to determine whether the Due Process Clause lim-
its the traditional role of the parent in the area of mental
health where it does not in the provision of other recom-
mended health services for his child. Moreover, this anal-
ysis will reveal that there is no basis for the finding below
with respect to the child’s due process rights in this area.
The rights of parents to direct the upbringing of their
children has been given great deference in this Court. That
is as it should be, for parents are presumed to act in the
best interests of their children. Thus this Court noted in
Stanley v. Illinois, 405 U.S. 645 (1972), at 651:
The Court has frequently emphasized the im-
portance of the family. The rights to conceive and to
raise one’s children have been deemed “essential,”
Meyer v. Nebraska, 262 U.S. 390, 399 (1923), “basic
civil rights of man,” Skinner v. Oklahoma, 316 U:S.
535, 541 (1942), and “[rJights far more precious
... than property rights,”” May v. Anderson, 345 US.
21 The special problems of the mentally retarded are specifi-
eally excluded from consideration in the diseussion of this due
process issue in On the Voluntary Admission of Minors, 8 Mich.
J. of Law Reform, pp. 189, 192, n. 18 (Fall 1974). Also, see dis-
eussion of Saville v. Treadway, 404 F. Supp. 430 (M.D. Tenn.
1974), infra at p. 48 of this brief, which is a case similar to this.
That court made broad exceptions in its order to accommodate the
special needs of mentally retarded children.
Argument 31
528, 533 (1953). “It is cardinal with us that the cus-
tody, care and nurture of the child reside first in the
parents, whose primary function and freedom include
preparation for obligations the state can neither sup-
ply nor hinder.” Prince v. Massachusetts, 321 U.S.
158, 166 (1944). The integrity of the family unit
has found protection in the Due Process Clause of
the Fourteenth Amendment, Meyer v. Nebraska, su-
pra, at 399, the Equal Protection Clause of the Four-
teenth Amendment, Skinner v. Oklahoma, supra, at
541, and the Ninth Amendment, Griswold v. Con-
necticut, 381 U.S. 479, 496 (1965) (Goldberg, J.,
concurring) .
The strength of these rights cannot be measured in a
vacuum, however. For rights which are given a priority
in one situation may be treated differently in another sit-
uation when competing interests are even more compel-
ling. A review of those cases where parental authority
over their offspring has been in issue makes clear that each
case concerned attempts by a state in one way or another
to intrude into this sphere of parental authority. In Wis-
consin v. Yoder, 406 U.S. 205 (1971), this Court found
that ‘. . . [the] primary role of the parents in the up-
bringing of their children . . .” id. at 232, predominated
over the State’s admittedly strong interest in compulsory
public education, at least with respect to the last two years
of required schooling. Similar results were reached in
Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v.
Society of Sisters, 268 U.S. 510 (1925). By contrast in
Prince v. Commonwealth of Massachusetts, 321 U.S. 158
(1944), the guardian’s interest in that regard was not
found to be superior to a state law forbidding street ped-
dling of religious materials by children.
32 Argument
The rights parents enjoy in their children generally
flow from their parental duties. ** Meyer v. Nebraska, 262
U.S. 390, 400 (1922). Surely one of the highest duties
of parenthood is protecting the health of one’s children.
This duty is certainly as important as the parental interest
in directing the education of one’s children. Wisconsin
v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sis-
ters, supra; Meyer v. Nebraska, supra. So compelling is
this duty that the state will not interfere with a parent’s
actions in this regard unless a life threatening situation has
been created for the child by the parents’ actions or inac-
tions. In Re Green, 448 Pa. 338, 292 A.2d 387 (1972);
In Re Seiferth, 309 N.Y. 80, 127 N.E. 2d 820 (1955);
cf. Bykofsky v. Middletown, 401 F. Supp. 1242 (M.D. Pa.
1975). Similarly a state’s interest in the education of its
children, described by this Court as being “at the very
apex of the functions of a State’’ is not paramount to the
rights of parents to provide alternative education for their
children. Wisconsin v. Yoder, supra at 213.
These parental rights are, of course, an essential ele-
ment of a general familial right of privacy which has been
given special recognition by this Court. Thus Mr. Justice
Blackmun noted in Roe v. Wade, 410 U.S. 113 (1972):
[The] decisions make it clear that only personal
rights that can be deemed “fundamental” or “im-
plicit in the concept of ordered liberty’, Palko v.
Connecticut, 302 U.S. 319, 325 (1937), are included
in this guarantee of personal privacy. They also make
22 Implicit in the recognition of parental duties is the power
to perform those duties. Kleinfeld, ‘* Balance vj Power Among In-
fants, Their Parents and the State”; 4 Fam. L.Q, 410, 413 (Dee.
1970).
—EE =
Argument 33
it clear that the right has some extension to activi-
ties relating to marriage, Loving v. Virginia, 388 US.
1, 12 (1967) ; procreation, Skinner v. Oklahoma, 316
U.S. 535, 541-542 (1942); contraception, Eisenstadt
v. Baird, 405 U.S. at 453-454; id. at 460, 463-465
(White, J., concurring in result) ; family relationships,
Prince v. Massachusetts, 321 U.S. 158, 166 (1944);
and child rearing and education; Pierce v. Society of
Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebras-
ka, supra. Id. at 152-3.
3. In this case the plaintiffs’ parents sought psychi-
atric in-patient therapy at Haverford Hospital for their
children. After a complete medical examination, each of
the plaintiffs was admitted for treatment. * Subsequently,
each child objected to this type of medical treatment and
expressed those objections by this lawsuit. ** However
viewed, this case directly challenges the general right of
parents to authorize medical care which has been medical-
ly recommended for their children against the child’s wish-
es. This challenge to parental authority has been predicat-
ed on the child’s asserted rights to due process of law.
Generally, the type of situation that will provide a
sufficient basis for the state’s intervention into the parent-
child relationship involves an abdication of responsibility
toward the child by the parent. Examples of this type of
23 The testimony of Dr. Barbara Armstrong of Haverford State
Hospital indicates thet, in fact, each of the plaintiffs did receive
a psychiatric examination prior to admission which was, and still
is required by Sections 402 and 403 of the Act (109a).
24 Under the regulations enacted shortly after this lawsuit was
commenced each of the plaintiffs would be furnished counsel and
provided a hearing to challenge their continued institutionaliza-
tion. See pages 9-15, supra.
34 Argument
intervention by the State are child abuse proceedings, ne-
glect proceedings and ultimately proceedings to terminate
parental rights altogether. Prince v. Massachusetts, 321
U.S. 158, 166 (1943); In Re Stuart, 114 F.2d 825 (D.C.
Cir. 1940). Also included in this category are situations
where the parent is effectively foreclosed from assuming
his traditional role of responsibility, such as in the area of
public education, e.g. Baker v. Owen, 395 F. Supp. 294
(M.D.N.C. 1975); Sims v. Waln, 388 F. Supp. 543
(S.D.O. 1974) (involving State’s power to discipline chil-
dren in public schools) ; compare Glasser v. Marietta, 351
F. Supp. 555 (W.D.Pa. 1972).
This case presents a conflict between recognized
rights of parents and due process rights claimed by their
children. * The conflict is between the parent’s power to
authorize medical treatment for his child which has been
recommended by a physician and the child’s asserted right
to refuse that treatment. By its decision, the lower court
found that this parental authority was outweighed by these
misperceived due process rights of the child.
4. In finding that these children have a personal
right of liberty superior to their parent’s right to provide
recommended medical care, the court totally failed to con-
sider the parental rights. The lower court’s decision did
not address the question of whether or not the parental
duty to provide for their children’s health and welfare, and
concomitant right to follow legitimate medical advice in
that regard, would be intolerably compromised by this
massive intrusion of state regulation sought and ordered
25 See Wisconsin v. Yoder, 406 U.S. 205 (1972), and Heryford
v. Parker, 396 F. 2d 393 (10th Cir. 1968), which specifically did
not reach this confrontation.
Argument 35
in this case. Rather the court focused only upon the
child’s interests without regard to the parental rights in-
volved. The finding that the plaintiffs were entitled to
due process of law rested not on an analysis of the child’s
relationship with his parent but rather upon a nonexistent
adversary relationship with the state. Viewing the ques-
tion from that perspective the finding of these rights for
the children is not surprising, but is nonetheless erroneous.
First the court found that the state’s interest in “the
family unit, [and] maintaining the rights of parents to the
custody, care, and upbringing of their children... .”
(792a) was not sufficient to override the due process man-
dates of the Fourteenth Amendment. The court went fur-
ther and determined that defendant’s assertion that the
state is acting “‘. . . as parens patriae and not as an adver-
sary” (794a) “. . . ignore[d] that the child [was] in-
voluntarily removed from his home . . .” (794a). This
reasoning ignores two factors central to the case. First,
even if the state’s interest in “maintaining the rights of
parents” is not compelling—what of the parents’ interest
in their rights to provide for their children’s health? Roe
v. Wade, 410 U.S. 113 (1972). Perhaps more important-
ly, the court decided the case without ever addressing the
real issue when it dismissed the defendants’ arguments as
ignoring that the child was involuntarily removed from his
home. ** The removal was only involuntary from the
child’s point of view—it was, after all, the children’s par-
ents who initiated the admission procedure not the state.
While a child may have due process rights vis-a-vis the
state in a delinquency proceeding, Jn Re Gault, 387 U.S. 1
26 The second part of this argument will deal more fully with
the question of the child's due process rights in this situation.
36 Argument
(1966). those rights are not controlling when the child’s
loss of freedom is the result of a joint decision between
his parent and doctor. Roe v. Wade, supra.
Moreover, the court’s conclusion that a parent may
not waive the constitutional rights of his child in this re-
gard misses the point (798a). Surely if the state were to
institute delinquency proceedings against a child it is very
doubtful that a parent could legally waive his child’s due
process rights in those proceedings. But that is not this
case. Here the court found rights for the child in one set-
ting—state versus child—and applied those rights in a
wholly different setting—parent and doctor versus child. *
When a parent, with a doctor’s advice, places his child in
a general hospital for long term care such as physical ther-
apy and the child objects, surely no one would suggest
that the child is “involuntarily’’ removed from his home
in a legal sense. But this is a very different situation than
when the state seeks to remove the child from his home
for rehabilitation as the result of a delinquency finding,
and the rights of the child in the latter situation cannot
be assumed in the former. Surely the law must view the
relationship between a parent and his child differently
than it views the relationship between the state and that
child.
5. Finally the opinion and order in this case creates
a presumption of child abuse when a parent accepts the
77 This transplantation of rights is clear from the fact that
the lower court relied for its finding of a due process violation
on eases such as Diron v. Attorney General of Commonwealth of
Pennsylvania, 325 F. Supp. 966 (M.D. Pa. 1971); Lessard v.
Schmidt, 399 F. Supp. 1078, remanded 414 U.S. 473 (1974), re-
decided 379 F. Supp. 1376 (1974), remanded 421 U.S. 957 (1975),
and Lynch v. Barley, 386 F. Supp. 378 (M.D. Ala. 1974), all of
which are state-versus-individual cascs.
Argument 37
advice of two psychiatrists to seek institutional care for
his child. The rather bizarre effect of this is that when a
parent, however reluctantly, decides to seek and follow a
doctor’s advice recommending in-patient psychiatric care
for his child, that parent must then prove his case against
his child in a courtroom in order to secure the recommend-
ed treatment for the child. * These concerns were not ad-
dressed by the lower court because of its failure to per-
ceive the case in its proper light. Due Process rights that
exist in one situation are not necessarily transferrable to
another. It is therefore necessary to view the plaintiffs’
claim in the proper context: contrasted with the recognized
right of parent to authorize medical treatment for his
child, does the child have any rights to due process, and,
if so, do they outweigh the rights of the parent?
C. Admission or Commitment of a Child to a Mental
Facility Does Not Require a Hearing
1. The Due Process rights of juveniles have been
the subject of relatively recent decisions in this Court.
2* While there is some disagreement over this point it seems
quite reasonable to assume that a full adversary hearing as has
been ordered in this case will not enhance the family situation.
Most of the expert witnesses agreed that such a hearing would be
traumatizing for the child and the family (566a, 636a, 655a, 687a,
689a-690a, 697a-699a, 727a). See generally, Recognition and Pro-
tection of the Family's Interests in Child Abuse Proceedings, 13
Fam. L.Q. 803 (1973-74). Certainly, all of these hearings will
result in a diminution in the quality of services available inasmuch
as the already limited resources of the mental health system will be
severely taxed, On The Voluntary Admission of Minors, Univ.
Mich. J. L. Ref. 189, 206 (Fall 1974).
be
38 Argument
However, these cases have all been attacks upon the pro-
cedures in delinquency proceedings instituted by the state
rather than challenges to parental power. Nevertheless,
the principle of overriding importance in these cases is ap-
plicable and enlightening here.
Juveniles’ rights have been recognized by this Court
in piecemeal fashion in a series of cases beginning in 1948
with Haley v. Ohio, 322 U.S. 596 (1948), and continu-
ing through the decision rendered last year in Breed v.
Jones, 421 U.S. 519 (1974). The clear trend of those de-
cisions has been to require in juvenile proceedings care-
fully selected procedures, which procedures have been
deemed essential to fundamental fairness in criminal pro-
ceedings for adults. McKeiver v. Pennsylvania, 403 US.
528 (1970). This has been a disquieting process, for the
Court has continued to recognize the implications of a
more formal criminal justice system for juveniles. Thus,
this Court in McKeiver v. Pennsylvania, at 545 avoided a
“remake [of] the juvenile proceeding into a fully adver-
sary process ...”. Nevertheless, the harsh realities of the
unfulfilled aspirations of the present system, Breed v.
Jones, supra at 528, and the essentially criminal nature
of juvenile proceedings, Jn Re Gault, supra at 36, 50, have
necessitated these reforms.
This Court has accordingly required that juveniles
be afforded the rights of notice, counsel, confrontation and
cross-examination in delinquency proceedings. In Re
Gault, supra. Moreover, proof of delinquency must not
meet the traditional heavy burden of beyond a reasonable
doubt. In Re Winship, 397 U.S. 358 (1970). Similarly,
in Haley v. Ohio, 332 US. 596 (1948), and in Gallegos
v. Colorado, 370 U.S. 49 (1962), coercive procedures
Argument 39
used in obtaining confessions from juveniles were ruled
unconstitutional. However, this Court has not required
that all rights constitutionally guaranteed adults charged
with a crime be made available to juveniles similarly ac-
cused. In McKeiver v. Pennsylvania, 403 U.S. 528, 533
(1970), the Sixth Amendment right to trial by jury was
not imposed upon the juvenile justice system.
2. The consideration of overriding importance
which is derived from these cases is abundantly clear. ~
Procedures required in the adult criminal process which
go to the integrity of the fact-finding determination, the
‘“‘was it done and did the defendant do it’’ determination,
have been generally imposed on the juvenile justice system.
Thus, confessions elicited under questionable circum-
stances, normally of dubious reliability, became even more
unreliable when extracted from a child. Haley, supra;
Gallegos, supra. It was noted in Gault that “[w]ith re-
spect to juveniles, both common observation and expert
opinion emphasize that the ‘distrust of confessions made
in certain situations’ . . . is imperative in the case of chil-
dren from an early age through adolescence.” Id. at 48.
Similarly, the process by which the facts are determined
in connection with a defendant’s guilt or innocence is ex-
tremely suspect, as is the reliability of those facts found,
if the defendant is denied the right to effectively challenge
those findings through confrontation and cross-examina-
tion, with counsel’s assistance. Gault, supra. And in fur-
ther application of this principle in McKeiver this Court
2° Breed v. Jones, 421 U.S. 519 (1975), and Kent v. U.S., 383
U.S. 541 (1965), dealt with the procedures which ultimately de-
termine if a juvenile will be tried as an adult which is obviously
unique to the juvenile system with no counterpart in the tradi-
tional criminal process for adults.
_
40 Argument
concluded that ‘“‘[t]he imposition of the jury trial on the ju-
venile court system would not strengthen greatly, if at all,
the fact-finding function . . .” Thus, this Court held that
the right to a jury trial was not required in a juvenile
proceeding. Id. at 547.
3. Whether or not these types of fact-finding pro-
cedures are useful, of course, depends upon the types of
facts sought to be determined and ultimately upon the
overall purpose of that proceeding. Notwithstanding its
label as a “civil proceeding’’, the determination in a delin-
quency proceeding is whether or not a particular youth
has broken the law. McKeiver v. Pennsylvania, supra at
541. The question is “was it done’”’ and, moreover, “did
he do it?”’.
What then is the purpose of the juvenile commitment
proceedings sought by the plaintiffs and ordered by the
lower court in this case? The purpose is clearly not to
determine “‘did he do it” as is the case in delinquency pro-
ceedings. Instead, the purpose should be to find out
whether the child has a particular mental condition ne-
cessitating psychiatric in-patient therapy. This fact-finding
process differs radically from that which is required in the
delinquency proceeding.
The decision to institutionalize a child is medical in
nature. *® In Pennsylvania a child must be examined by at
%© The plaintiffs will undoubtedly argue that voluntary com-
mitments are really the resuli of a ‘‘did he do it’’ type of inquiry.
However, in at least one study it was concluded that children were
not hospitalized in order to sanction behavior which may be when
a ‘‘did he do it’’ inquiry would apply, but rather for treatment
of very serious mental conditions. Moreover, that study concluded
that all treatment alternatives were explored before hospitaliza-
tion was ordered. Rabinovitch, Are Inpatient Hospital Services
Argument 41
least two psychiatrists independently of each other, and
both must agree on the need for in-patient institutional
care before the child can be admitted to an institution.
This inexorably leads to the conclusion that the critical
“fact-finding” in the process is a medical diagnosis rather
than an adjudication of guilt or innocence. If judicial eval-
uation of a recommended medical treatment plan is the
underlying purpose for which the adversary proceeding
ordered below is intended—and surely it is—then the
timeless description of the juvenile court system rendered
sixty years ago by Roscoe Pound will equally befit the
courts that participate in this venture. After exainining
the system of juvenile justice Professor Pound found it to
be “. . . an enterprise originally designed to use power
and authority of law to achieve ends not amenable to le-
gal means.” ™
With a medical diagnosis in the mental health area,
the key findings are not whether a particular event actual-
ly occurred and whether a certain person “did it”. Rather
the key is a medical determination predicated upon pro-
for Children Obsolete?, 5 Michigan Mental Health Research Bul-
letin 3 (1971) ; see also Rabiner, Laurie, The Case for Psychiatric
Hospitalization, 131 Am. J. Psychiatry 761 (July 1974).
Finally, the record in this case indicates that each patient was
admitted on the basis of medical need and not as punishment for
errant behavior. And in this regard the expert testimony of Dr.
Derek Miller points out that psychiatrists and not lawyers and
judges are best suited to define the medical needs of the patient
(689a).
*! Lemert, E., Instead of Courts, Crime and Delinquency:
National Institute of Mental Health at 5 (1971) citing Roscoe
Pound, the ‘‘Limits of Effective Legal Action’’, Twenty-Second
Annual Report of the Pa. Bar Association, XXII, 1916, pp. 221-
239.
ao
42 Argument
fessional observations of behavior. This may or may not
involve some factual determinations. *” But just as courts
do not insist upon second-guessing a medical diagnosis in
the area of physical medicine, courts should be equally
loath to do so in the area of psychiatry. Factual determi-
nations are a part of the diagnostic practice in physical
medicine no less than is the case in psychiatry. Thus,
when a mother brings her two year old child to a doctor
and explains the child’s symptoms—mental, physical or
both—a court hearing to check the accuracy of the doc-
tor’s diagnosis and recommended treatment is unwise, un-
warranted, and without precedent.
4. Two factors have been generally regarded as a
basis for treating the psychiatric recommendation for in-
stitutional care different than all other medical treatment
plans, physical or psychiatric: First, the tenativeness of
psychiatric conclusions, and secondly the nature and con-
sequeices of some treatments such as long-term institution-
al care, along with the stigma of being diagnosed mentally
ill.
32 These factual determinations in some cases may even in-
volve the accuracy of reports of various conduct that could be
classified as delinquent or criminal (790a). And this conduct, or
even reports of this conduct, may have been the impetus for a
child’s parents to seek psychiatric help. But that is not to say
that the child is hospitalized because of these reports, .or mani-
festations of mental illness or retardation are sought and detected
in many ways by those who possess the proper psychiatric training.
Thus the lower court’s statement that children were institu-
tionalized for truancy may be no more accurate than the statement
that a person had heart surgery for chest pains—surely the chest
pains brought the patient to the doctor and such a notation would
undoubtedly appear on his admission note—but that of course is
not the whole picture (See testimony of Dr. Tashjian at 650a-
652a).
Argument 43
The relative uncertainty of diagnosis in the area of
psychiatry, is often exaggerated and sensationalized.” This
relative uncertainty, however pervasive, only serves to
emphasize the questionable wisdom of having judges, com-
pletely untrained in the field of psychiatry, issuing diag-
noses, prescribing treatment, or even choosing between
two conflicting diagnoses which might be created by con-
flicting expert opinions. The questionable value, if not
harm, of this type of judicial prescription of treatment is
aptly demonstrated in a recent study where it was noted,
after observing many commitment proceedings, that the
independent fact-finder never disagreed with the psychia-
tric opinions and recommendations.”
It will of course be argued that plaintiffs are not
really seeking a medical diagnosis from the courts, but
rather they only seek to make it more difficult to institu-
tionalize a child. And they will further urge that their aim
53 See Roth, L.. M.D., Some Comments on Labeling. Bulletin
of the American Academy of Psychiatry and the Law at 7-8 (in
press) which strongly criticizes Rosenhan’s, On Being Sane in
Insane Places, 179 Science 250 (1973), which is generally offered
as proof of the total uncertainty of psychiatric diagnosis. O’Con-
nor v. Donaldson, 422 U.S. 563, 584 (1975) (Concurring Opinion,
Chief Justice Burger), notes these persistent difficulties in the
area of psychiatric medicine.
34 Wengler & Fletcher, The Effect of Legal Counsel on Ad-
missions to a State Mental Hospital: A Confrontation of Profes-
sions, 10 J. of Health & Social Behavior 66, 68 (1969). Moreover,
Dr. Barbara Armstrong, a psychiatrist at Haverford State Hos-
pital, testified that in her experience at Haverford she had seen
only one real error in a medical diagnosis for institutional treat-
ment, and that followed a complete judicial hearing (95a-96a).
Most of the witnesses who testified in this proceeding agreed that
interruption of the treatment process for the required hearing
would be potentially harmful (95a-96a, 655a, 698a-699a, 543a-
5d44a).
44 Argument
is to assure that other alternatives have been examined
before commitment is ordered.** And finally, it is con-
tended that a judicial hearing minimizes the possibility of
a child being ‘“‘railroaded” into an institution by ill-inten-
tioned parents. ** Wengler and Fletcher, supra, at 43,
found that the presence of counsel at mental commitment
proceedings increased the length of those proceedings and
reduced the number of commitments. Thus, it is obvious
that requiring a hearing and counsel will have an even
greater effect along those lines. Studies have also shown
that the more intervening evaluation procedures of any
type that are required before admission generally result in
a decreased institutionalization.“’ Those who would ap-
plaud that result, and there are no doubt some, would none-
theless misuse the judicial process to accomplish a social
policy deemed by them to be desirable (de-institutional-
ization) through judicial rather than legislative means.
The words of Professor Pound are well remembered at
this point.
Undoubtedly, there are cases where parents have been
successful in placing their child in an institution for the
35 Dr. Henry Kandler, a psychiatrist and an expert witness
for plaintiffs, felt that a hearing would make everyone ‘‘do a bet-
ter job’’ and it may yield a ‘‘compromise’’ in treatment plans
(543a-544a).
36 Dr. Kandler testified that a hearing would militate against
the ‘‘railroading’’ of a child into an institution by his parents
(544a). This of course overlooks the required independent psy-
chiatric examinations as well as the availability of habeas corpus
and the present right to a hearing upon demand by a child over
13 years of age.
37 Marsden, G., Selection of Children for Residential Treat-
ment: A Study of the Process, 9 J. Am. Acad. Child Psychiatry,
332-46 (1970).
Argument 45
wrong motives. But is that the fault of the process or the
parents? Assuming that the true motives of these un-
scrupulous parents would surface in a judicial hearing—
what then? Surely the family relationship had long since
broken down. Thus, the child’s victory at the hearing is
truly a pyrrhic one and the real problem has only been
exacerbated.”
The second ground for urging that this type of an
adversarial hearing is proper, notwithstanding the diffi-
culties already alluded to, is the drastic consequences of
institutional therapy.” Thus, the argument goes that be-
cause in-patient psychiatric therapy in an institution is
accompanied by stigma and such a massive loss of liberty,
all medical recommendations for such treatment must be
scrutinized in a full adversary hearing. Likewise, the mo-
tives of the parent for concurring in this recommendation
must also be judicially scrutinized, say the plaintiffs. First,
the consequences of institutional treatment are surely less
drastic than the course of tr:atment which was recom-
mended in the celebrated case of Matter of Quinlan, 355
A.2d 647 (1976). Yet in that case the Supreme Court of
New Jersey found that judicial second-guessing of that
medical recommendation ‘. . . would generally be inap-
propriate, not only because that would be a gratuitous
encroachment upon the medical profession’s field of com-
38 There can be little doubt that such an adversarial proceed-
ing would only heighten the obvious intra-family hostilities in a
situation where parents would abandon their children. Recognition
and Protection of the Family Interests in Child Abuse Proceed-
ings, 13 J. of Fam. Law 803 (1973-74).
89 No one would advocate judicial scrutiny of the role of a
psychiatrist in prescribing medicine or psychotherapy for his pa-
tient in an out-patient setting.
46 Argument
petence, but because it would be impossibly cumbersome.”
Id. 669. Without minimizing the consequences of institu-
tional care, and without drawing undue conclusions from
a case that is in all likelihood, sui generis, the New Jersey
Supreme Court’s unanimous refusal to require judicial
scrutiny of a medical recommendation with those drastic
consequences is instructive. Moreover, it should again
be pointed out that, in deference to this concern Penn-
sylvania has a mechanism whereby a child over the age of
thirteen can at any time question, with counsel the pro-
priety of his continued hospitalization.
A variety of assumptions underlie the argument that
the psychiatric recommendation of institutional care, albeit
prompted by parental concern, should be reinforced by a
full judicial hearing. First is the notion that all mental
institutions are primarily warehouses for the unfortunate,
and exist for society’s convenience rather than for the
treatment of the mentally ill. Although the record in this
case contains absolutely no evidence of the conditions at
any of Pennsylvania’s institutions, there no doubt may
be some institutions in this country which arguably fit
that definition. But as a result of the great influx of addi-
tional public funds in this area“’ and because of a height-
ened social awareness of these problems, this type of in-
stitution is rapidly becoming a thing of the past. The
inescapable fact of the matter is that there are mental
illnesses in today’s world requiring institutional care. Any
deficiencies in those institutions should be remedied by
legislative and executive action, not by injecting purpose-
4° In Pennsylvania legislative appropriations for mental health
and mental retardation have more than doubled in the past six
years ($210,182,757—-1970, Act of March 4, 1971, P.L. 809, No.
3-A ; $445,632,000—1976, Act of June 4, 1976, P.L. , No. 7-A.)
Argument 47
less judicial proceedings into the treatment process where
none is required. Moreover, while it is unfortunately true
that society still has not completely shed its unenlightened
attitudes toward these unfortunate citizens," this alone is
not a sufficient basis to pre-empt parental decision-making
authority in this important area. Put quite simply, substan-
tive changes in the health delivery system should not be
attempted through the means of requiring inappropriate
legal procedures in the treatment process.
On the strength of these assumptions—that a medical
recommendation for institutional care is more akin to a
finding of guilt than it is a prescription for treatment, and
that any doctor’s order for institutional care is uniquely
suspect in validity because of the envisioned consequences
of such treatment—the lower court ordered severe intru-
sions into the decision-making authority traditionally re-
served to parent and doctor, Roe v. Wade, 410 U.S. 113
(1972), all in the name of due process. Beyond the fact
that the decision of the lower court is predicated upon an
crroneous extension of the Due Process Clause, the order
intended to implement that decision is, by its sweeping
nature, fraught with difficulties (833a-842a) .
*"' Regarding the stigma that is assumed to exist as a result
of institutionalization see MacMillan, The Mentally Retarded La-
bel: A Theoretical Analysis and Review of Research, 79 American
Journal of Mental Deficiency, 241 (1974), where it was noted that
there is generally no real conclusive evidence in the scientific com-
munity on the effects of labeling the retarded. Moreover, in that
same issue it was pointed out that labeling is really only a contro-
versy with the marginally retarded as opposed to the more severe-
ly retarded. Id. at 253. See also, Rowitz, A Sociological Perspec-
tive on Labeling, 79 American Journal of Mental Deficiency, 265
(1974).
48 Argument
5. Notwithstanding the fact that most of the as-
sumptions which give rise to the lower court’s suspicion
of medical and parental recommendations for institutional
care apply even less to the severely retarded,” the order
here applies to that group as well. In this connection the
plaintiffs’ own witness pointed out that most of his con-
cerns regarding institutional care did not apply to the
severely retarded (605a). Moreover, as has already been
pointed out at n. 41 supra, the stigma effect of institution-
alization is really not a concern for the severely retarded.
Beyond the generalized negative effects of the order
appealed from, its application will for all practical pur-
poses put an end to at least one very valuable program
for the mentally retarded. In Pennsylvania, as in many
other states there exists a program of respite care for fam-
ilies with retarded children (840a). This program allows
families to institutionalize their retarded child for a speci-
fied time to allow them to take a vacation from the con-
stant need for attention and care that such a disabled child
requires.** Thus, the Court in Saville v. Treadway, 404 F.
Supp. 430 (M.D. Tenn. 1974) , while also erroneously find-
ing Due Process rights for children in this situation, at least
excepted respite admissions from its order.“* Jd. at p. 437.
42 In Pennsylvania approximately eighty percent of institu-
tionalized juveniles are mentally retarded (310a et seq., current
estimate D.P.W.).
8 The lower court’s reference to a family institutionalizing
their child so they could take a vacation is misleading until it is
realized that such short term commitments are actually encouraged
as part of an overall program in Pennsylvania discouraging long
term institutional eare (790a).
44 In Saville v. Treadway, 404 F. Supp. 430 at 437 (M.D.
Tenn. 1974), a case similar to this case, also excepted the severely
retarded from the requirement of a full judicial hearing.
Argument 49
Ironically the net effect of this could quite conceivably be
an increase in the long term institutionalization of mentally
retarded children.
Secondly, the order in this case makes absolutely no
distinctions based upon the age of the children. To a
one year old child the value of a lawyer, hearing and all
of the other trappings of due process ordered in this case
is very questionable. Be that as it may, and notwithstand-
ing the expert testimony to the contrary, the lower court
has required the defendants to ignore the realities and
blindly treat the one year old exactly as the seventeen year
old is treated. Again, in Saville, the court’s order distin-
guished between children sixteen and over for whom a
judicial hearing might be required and those younger than
sixteen who would only be entitled to a hearing before
what amounts to a professional panel.” Saville v. Tread-
way, supra, at 437.
6. Finally it should be noted that while the over-
all theories of Saville and the opinion in this case are
similar in their errant reasoning, the process found due in
Saville arguably does not even rise to the level of pro-
tection being provided in Pennsylvania and found to be
unconstitutional by the lower court. Thus in Saville the
error Of assuming the legal similarity between a delin-
quency proceeding and a commitment proceeding was not
*® The testimony of Drs. Tashjian and Miller—defendants’ ex-
pert psychiatrists—agree that the area of thirteen years of age is
a good dividing line for psychologically distinguishing between
children too young to responsibly assert their rights and those
whose objections might very well be reliable (672a). Compare
Pennsylvania’s regulations which provide counsel and a hearing
for children over the age of thirteen upon their objection to con-
tinued care in the institution.
50 Argument
exacerbated by requiring judicial second-guessing of psy-
chiatric diagnoses and recommended therapy.”
7. Since the underlying principle of Gault and its
predecessors—assuring the integrity of the fact-finding
process—is not applicable in this case, an obvious question
is raised. Has too much been proven? Do not the same
reasons which have been advanced to demonstrate the in-
appropriateness of a judicial hearing in juvenile commit-
ments also apply to adult proceedings?*’
The reason the two positions are not contradictory
is the same reason that underlies the fact that an adult may
consent to, or refuse recommended medical treatment for
himself and a juvenile cannot. In this country an element
of freedom is the freedom of a competent adult to accept
or reject health services Winters v. Miller, 446 F.2d 65
(2d Cir. 1971). Accordingly, it has been noted that none
6 Compare J.L. & J.R. v. Parham, F. Supp. , No. 75-
163 M.A.C. (M.D. Ga. February 26, 1976) ; stay granted, Parham
v. J.L.. 96S. Ct. 1503 (1976).
E.g., Heryford v. Parker, 396 F. 2d 393 (10th Cir. 1968) ;
In Re Ballay, 482 F. 2d 648 (D.C. Cir. 1973); Bell v. Wayne
County, 384 F. Supp. 1085 (E.D. Mich. 1974); Lynch v. Bazley,
386 F. Supp. 378 (M.D. Ala. 1974); Dizon v. Attorney General
of Pa., 325 F. Supp. 966 (M.D. Pa. 1971). Moreover, in Specht
v. Patterson, 386 U.S. 605 (19), this Court noted that ‘| those}
commitment proceedings whether denominated civil or criminal are
subject both to the Equal Protection Clause of the Fourteenth
Amendment as we held in Baztrom v. Herold, 383 U.S. 107, and
to the Due Process Clause.’’ Jd. at 608. Also note the concurring
opinion of Mr. Chief Justice Burger in O’Connor v. Donaldson,
at p. 580 where it is noted that ‘‘. . . involuntary commitment to
a mental hospital, like involuntary confinement of an individual
for any reason is a deprivation of liberty which the State cannot
accomplish without due process of law.”’
Argument 51
of the states have laws which compel a physically ill in-
dividual to be involuntarily hospitalized solely because he
needs treatment to protect his own welfare. Developments
In the Law: Civil Commitment of the Mentally Ill, 87
Harv. L.R. 1190, 1216 n. 84 (1974). Moreover, no court
has ever ordered a competent adult to accept such hos-
pitalization and medical treatment solely for his own bene-
fit. Compare Application of President and Directors of
Georgetown College, 331 F.2d 1000 (D.C. Cir. 1964),
with Winters v. Miller, supra. This freedom, like so many
others, is unique to competent adults, and before it can
be taken there must be due process of law. Accordingly,
an adult must be given a hearing before this freedom is
involuntarily surrendered. The necessary counterpart to
this freedom to refuse treatment is the power to authorize
or consent to treatment. And as noted above, this power
is also unique to adults. Eg. Bonner v. Moran, 126 F.2d
121, 75 U.S. App. D.C. 156 (1941). Similarly regulation
of reading materials clearly protected by the First Amend-
ment is permitted with respect to juveniles where such
regulation would not be constitutionally permissible were
it applied to adults. Ginsberg v. New York, 340 U.S. 629
(1969).
** Some have raised the question of why mental illness is the
only type of illness for which treatment is forcibly imposed, De-
velopments in the Law, supra, at 1201-1228. The competence of
the individual to refuse the treatment (the determination of which.
it should be pointed out, is within the traditional adjudicatory role
of courts) is surely paramount in the underlying rationale. See
Winters v. Miller. supra. Be that as it may, and leaving aside the
question of why competency is not the proper standard for com-
mitment, it is sufficient to note that children have no claim to
freedom to refuse needed and authorized medical care.
52 Argument
8. With all this in mind, we are confronted with
the lower court’s finding of a deprivation of due process
in this case. Relying primarily on the rational of Gault
the district court found a right that, as has been shown
above, does not exist. That court read Gault and its pro-
geny to require a hearing in this case to “enhance the
possibility that truth will emerge from the confrontations
of opposing versions and conflicting data’ (793a-794a),
quoting /n Re Gault, supra, at 21. But in Gault this Court
was trying to make a hearing procedure, essentially crim-
inal in its purpose and effect, more fair to the accused.
Here however, the court is creating the hearing to assure
what it conceives to be a more socially acceptable medical
diagnosis and mode of treatment. Gault never intended
such a result. Medical treatment cannot be prescribed on
the basis of one lawyer’s presentation or another’s cross-
examination. This Court should heed the words of Profes-
sor Pound and not create an “*. . . enterprise . . . designed
to use the power and authority of law to achieve ends not
amenable to legal means’. Accordingly this Court should
reverse the decision of the lower court.
Il. The Order in This Case Violates the Eleventh Amend-
ment and Alternatively, Violates the Rule of Preiser v.
Rodriguez”
A. 1. The lower court, concluding that children
were entitled to due process protections prior to hospital-
ization in a mental facility, ordered a full complement of
*° This argument is made in the alternative and assumes that
plaintiffs prevail on the merits of the case.
Argument 53
procedural protections.” In addition to this prospective
injunctive relief the Court also ordered that children pres-
ently being treated in any of the state’s mental facilities be
discharged, released or recommited pursuant to the newly
ordered procedures within four months.” The validity
of this portion of the lower court’s order is questioned
here.
2. The Eleventh Amendment™ was proposed and
ratified in the wake of this Court’s opinion in Chisholm
v. Georgia, 2 Dal. 419 (1793) which held that the State
of Georgia was not immune from a contract action in
federal court by a citizen of another state. There were
generally two reasons for this Amendment. First the
states were fearful that they would become fiscally un-
sound and unstable if their creditors’ could sue and obtain
judgments against them in the federal courts. Secondly,
the notion of federal courts having this type of broad juris-
diction was contrary to commonly held beliefs of the states’
sovereignty.”
Since its ratification two years after Chisholm there
have been a variety of interpretations of the Eleventh
Amendment “and the difference between the type of relief
barred by the Eleventh Amendment and that permitted by
Ex Parte Young will not in many instances be that be-
* This order is fully set forth at 843a-852a of the appendix.
5! See paragraph 15E of the final order at 851a-852a.
52 The Eleventh Amendment provides: ‘‘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 Citizens or Sub-
jects of any Foreign State.’’
58 Attorneys’ Fees and the Eleventh Amendment, 88 Harv.
L. R. 1875, 1877-78 (June 1975).
54 Argument
tween day and night”. Edelman v. Jordan, 415 US. 651,
667 (1973). The Court’s decision in Ex Parte Young, 209
U.S. 123 (1908), marks a significant development in this
area. In that decision it was held that the Eleventh Amend-
ment did not preclude injunctive actions against state of-
ficials. There the Attorney General of Minnesota relied
upon the Eleventh Amendment and ignored an injunction
restraining him from enforcing certain criminal statutes
that were allegedly unconstitutional. In sustaining the
lower court’s jurisdiction and contempt citation, the Court
held:
If the act which the state Attorney General 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
Constitution, and be in that case stripped of his of-
ficial or representative character and is subjected in
his person to the consequences of his individual con-
duct. The State has no power to impart to him any
immunity from responsibility to the supreme authority
of the United States. 209 U.S. at 159-60.
3. The principle of Ex Parte Young has undergone
some refinements” culminating in the decision of this Court
** Larson v. Domestic & Foreian Corp., 337 U.S. 682 (1948),
held that an injunctive action brought against a state officer is
barred if the action of the officer is not alleged to be either un-
constitutional or beyond his statutory authority. Even then if
the relief requested would require ‘‘affirmative action by the
sovereign or the disposition of unquestionably sovereign property’’
the action ‘‘. . . may fail, as one against the sovereign.’’ Id. at
691, n. 11. See generally, Mahon, M., The Eleventh Amendment
and Retroactive Welfare Benefits, 36 U. of Pitt. L. R. 78, 91,
n. 55 (Fall, 1974), for other cases dealing with the Eleventh
Argument 55
.
in Edelman v. Jordan, 415 U.S. 651 (1974). And it is
the proper construction of that opinion that will ultimately
resolve the present issue. In Edelman the plaintiffs alleged
that certain of Illinois’ public welfare regulations violated
federal law and resulted in undue delay in eligible appli-
cants’ receipt of benefits. After finding the State’s regu-
lations to be in violation of federal law the District Court
prospectively enjoined use of the regulations. In addition
the trial court ordered that the defendant state officials
“release and remit . . . benefits wrongfully withheld” dur-
ing the period in question. Edelman, supra, at 656. It
was this retroactive relief that the Court found offensive
to the Eleventh Amendment. And, defendants contend
that the same principles which formed the basis of that
conclusion in Edelman exist any apply in this case.
This Court in Edelman found two aspects of that
retroactive relief offensive to the Eleventh Amendment.
First it was noted that the funds to satisfy the award
would inevitably come from the general revenues of the
state rather than from the individual defendants. Edelman
supra, at 664-665. And secondly, it was noted that the
fiscal impact of this award was not merely ancillary to,
and the necessary result of “. . . compliance with [a] de-
cree which by [its] terms was prospective in nature.”’ Jd.
at 668. After noting these characteristics of the retroactive
aspects of the relief this Court held that “. . . a federal
court’s remedial power, consistent with the Eleventh
Amendment, is necessarily limited to prospective injunc-
tive relief (cite omitted) and may not include a retroactive
Amendment barring relief of an affirmative nature. Affirmative
action on the part of the defendants was definitely ordered in this
case.
56 Argument
award which requires the payment of funds from the state
treasury.”’” Edelman, at 677 (emphasis added) .
As in the Edelman case there can be little doubt that
compliance with the retroactive order in this case will re-
quire substantial sums of public funds, and will severely
disrupt the fiscal structure of the state in this area.™
Moreover it is obvious that the state treasury will be the
source of the moneys to carry out this order.
In Edelman the order of the court was both retro-
active” and injunctive as is the case here. It is true, of
course, that in Edelman the defendants were retroactively
required to provide monetary benefits wrongfully with-
5° Edelman, supra, id. at 666, n. 11, reflects this Court’s con-
cern for the disruptive effects of awards of retroactive relief:
It is not necessarily true that ‘‘[w]hether the decree is
prospective only or requires payments for the weeks or months
wrongfully skipped over by the state officials, the nature of
the impact on the state treasury is precisely the same.’’ Post
at 682. This argument neglects the fact that 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 processing 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 pay-
ments for the continuing obligations of the public aid system.
56 Any arguments that Paragraph 15E of the order below is
somehow not retroactive can also be made with respect to the
order in Edelman. Thus it has been argued in commenting in
Edelman that ‘‘the federally-imposed retroactive payments [c]ould
be seen as an ancillary effect of the prospective order to the offi-
cer to conform his conduct to federal law.’’ The same strained
assertion could and probably will be made in this case—that the
fiscal impact of the requirements for those children already com-
mitted is only ancillary to a prospective order.
Argument 57
held whereas in this case the defendaius were retroac-
tively required to provide procedural safeguards to those
who had previously not received them.
The question then becomes whether a retroactive in-
junction against a state violates the Eleventh Amendment
only if it involves specific monetary relief. Such a narrow
holding would ignore the bases for the Eleventh Amend-
ment. First, most state programs involve the dispensation
of services rather than funds to the public, and if this dis-
tinction is to control then the bulk of state governmental
activity would be completely vulnerable to this type of
severe disruption as a result of sweeping retroactive in-
junctions issued by a federal court.’ Secondly and more
importantly the disruptive effects, fiscally and govern-
mentally, of broad retroactive injunctive relief is no less
drastic than a straight monetary award.“ Attorneys’ Fees
and the Eleventh Amendment, 88 Harv. L.R. 1875, 1880,
n. 36 (June, 1975). In many cases such relief would be
more disruptive than a “lump sum” damage award. No
better example of this can be found than the instant
case.
Moreover the principle of Ex Parte Young is not
forsaken by reversing this portion of the lower court’s
57 The lower court also gave the state the ‘‘alternative’’ to
release or discharge all of the children and cease all voluntary ad-
missions. This is no alternative for to do so would be nothing short
of total abdication of the Commonwealth’s responsibilities to those
children and their families.
58 If this type of retroactive relief is permitted to stand then
in a successful suit, for example in the medicaid area, the state
could then be ordered to approve services retroactively regardless
of the plaintiffs’ current eligibility for those services. This type
of relief is essentially the same as that ordered here and its ob-
vious disruptive effects need not be elaborated upon.
58 Argument
order. Clearly if the plaintiffs’ theory of constitutional
law is correct in this case then the prospective injunctive
award entered by the lower court completely assures the
supremacy of that law in Pennsylvania. Cf. Linkletter v.
Walker, 381 U.S. 618, 625 (1965). But what such pro-
spective relief does not do is require the state to expend
vast amounts of finite resources to provide certain proce-
dural rights retroactively, regardless of the actual desires
of the child involved.” Whatever the lower court’s ra-
tionale™ for such an order it runs afoul of the Eleventh
Amendment.
5® As will be discussed more fully in the next section every
child hospitalized in a Pennsylvania mental facility always has the
right to contest the validity of his confinement by way of habeas
corpus, and as noted previously, children over thirteen years of
age need only object to their continued hospitalization and they
will be provided counsel and a hearing. See 9-15, supra.
°° In view of the lower court’s heavy reliance on Jn Re Gault
for its conclusion tha! the due process clause applied in this case,
it is probable that the retroactive relief was premised upon a theory
of retroactivity drawn from the area of criminal law. This Court
has pointed out that where the primary purpose or effect of a new
constitutional doctrine is to rectify the truth-finding function and
the accuracy of the guilt determination it will be applied retro-
actively. Williams v. Un d States, 401 U.S. 646, 653 (1970).
There are two problems with this approach here, first the medical
determination of need for hospitalization is not an adjudication
of guilt and therefore is not likely to be affected by new proce-
dural rights. Secondly the medical determination is always open
to appropriate scrutiny as opposed to a finding of guilt in a ecrimi-
nal ease. See generally, Argument 1(B), supra. See also, Lemon
v. Kurtzman II, 411 U.S. 192 (1973) where this court declined to
give retroactive effect to its earlier decision declaring a state law
unconstitutional. This Court emphasized that ‘‘the effect of a
given constitutional ruling on prior conduct is subject to no set
Argument 59
B. The Retroactive Aspects of the Lower Court’s Order
Violates the Principle of Preiser v. Rodriguez
1. Any person, regardless of age, has a specific
statutory right to petition for a writ of habeas corpus to
test the validity of his confinement in a mental facility in
Pennsylvania. “ 50 Pa. Stat. Ann. §4426, supra at pp. 8-9.
The plaintiffs in this case chose not to utilize this remedy
but rather elected to institute this federal action under 42
U.S.C. §1983. The single issue in this regard is whether
this was proper under the principle laid down by this
Court in Preiser v. Rodriguez, 411 U.S. 475 (1973), or
whether the plaintiffs were required to pursue their state
remedy. It is defendants’ position that while plaintiffs’
claims for prospective injunctive relief may have been
appropriate in a §1983 action Gerstein v. Pugh, 420 US.
103, 107, n. 6 (1974), their request for a retroactive in-
junction to apply to children then hospitalized was im-
proper and the court’s order to that effect should be
reversed. See e.g. Kendall v. True, 391 F. Supp. 413
(W.D. Ky. 1975).
principle of absolute retroactive invalidity .. .” Id. at 198-199.
The Court further stated that this modern approach to the ques-
tion was applicable in both civil and criminal] contexts.
*! If the plaintiffs were required to utilize the remedy of ha-
beas corpus then 28 U.S.C. §2254(B), requiring exhaustion of state
remedies, would apply. That section provides as follows:
An application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the State,
or that there is either an absence of available State corrective
process or the existence of circumstances rendering such proc-
ess ineffective to protect the rights of the prisoner.
60 Argument
In Preiser several state prisoners brought a §1983
action alleging that they were unconstitutionally deprived
of good conduct-time credits. They sought injunctive re-
lief to compel the restoration of these credits which would
have resulted in their release from prison. After noting
various examples where habeas corpus was the appro-
priate remedy the Court noted that “in each case [the
petitioner’s] grievance is that he is being unlawfully
subjected to physical restraint...” Id. at 486.
Since it was clear that the plaintiffs’ complaint in
Preiser challenged the legality of their physical restraint,
Id. at 487, the only remaining determination was whether
or not habeas corpus was the exclusive remedy by which
they could proceed. This Court held that it was, and that
therefore the plaintiffs’ §1983 claims were barred for
failure to exhaust their state remedies.
2. The federal exhaustion requirements apply to all
cases where habeas corpus is an appropriate remedy. Thus
section 2254(b) merely refers to “. . . a person in custody
pursuant to the judgment of a state court.” This clearly
includes mental patients. Moreover, the fact that the plain-
tiffs in this case were technically not in custody “pursuant
to the judgment of a State court’’ does not render the ex-
haustion requirement inapplicable. In Preiser this Court
rejected a similar contention noting that an attack upon a
state’s administrative procedures by one seeking release is
no less within the “core of habeas corpus” than an attack
upon a prisoner’s conviction “. . . for it goes directly
to the constitutionality of his physical confinement it-
self ....’ Id. at 489. Moreover habeas corpus was avail-
able to the plaintiffs in this case and in fact, would have
been a complete remedy. E.g. Heryford v. Parker, 396
Argument 61
F.2d 313 (10th Cir. 1968); Hartmann v. Scott, 488 F.2d
1215 (8th Cir. 1973).
The plaintiffs in this case were attacking the legality
of their confinement. The complaint sought to enjoin the
continued enforcement of the sole statute from which the
defendants derived their authority to confine the plaintiffs
(22a-23a). Moreover their claims were predicated upon
their expressed desire to be released from confinement
12a, 14a-16a).° The plaintiffs were not challenging the
conditions of their confinement, Preiser, supra at 498, nor
did they seek damages.”
*2 Compare Gerstein v. Pugh, supra at 106, 107, n.6, where
the plaintiffs did not seek release from custody and, perhaps more
importantly, the state law specifically precluded the use of habeas
corpus to challenge that type of confinement.
*§ The complaint in this matter did originally request dam-
ages, however that claim was dropped midway in the litigation
(23a). Even if the damage claim had not been abandoned this
Court’s holding in Wolff v. McDonnell, 418 U.S. 539 (1973),
would also render the retroactive portions of the lower court’s or-
der invalid. In Wolff the Cou i noted that since damage claims
were not available within a habeas corpus action, a prisoner’s
claim for damages was properly maintained under §1983 even if
the determination of that claim required ancillary determination
of claims that, standing alone, would be required to be brought
by way of habeas corpus. The Court’s opinion in Wolff makes it
quite clear that any injunctive relief granted as a result of such
an ancillary consideration must be prospective only, thus at 554-5
this Court held:
The complaint in this case sought restoration of good-time
credits, and the Court of Appeals correctly held this relief
foreclosed under Preiser. But the complaint also sought dam-
ages; and reiser expressly contemplated that claims properly
brought under §1983 could go forward while actual restora-
tion of good-time credits is sought in state proceedings. 411
62 Argument
The primary purpose for requiring exhaustion of sta.e
remedies is the concept of federal-state comity which is
fundamental to “Our Federalism.”’ Younger v. Harris, 401
U.S. 37, 44 (1971); Preiser, supra at 491. The lower
court’s order in this case ignored that principle by requir-
ing complete retroactive application of its order.
3. Quite apart from the considerations of Preiser,
without any constitutional necessity therefore, and with-
out ever making the Pennsylvania judicial system a party
to this action, the lower court ordered that the Pennsyl-
vania Court system conduct the several thousand hearings
necessitated by its retroactive order (838a-839a) .
There can be no question that such a massive imposi-
tion upon the Pennsylvania Judicial System will cause
a clash between the federal and state judicial systems.”
U.S., at 499, n. 14. Respondent’s damages claim was there-
fore properly before the District Court and required deter-
mination of the validity of the procedures employed for im-
posing sanctions, including loss of good time, for flagrant or
serious misconduct. Such a declaratory judgment as a predi-
cate to a damages award would not be barred by Presser; and
because under that case only an injunction restoring good time
improperly taken is foreclosed, neither would it preclude a
litigant with standing from obtaining by way of ancillary re-
lief an otherwise proper injunction enjoining the prospective
enforcemeni of invalid prison regulations. (Emphasis added.)
64 The Supreme Court of Pennsylvania, though not a party to
this action, was so adversely affected by the retroactive aspects of
the order in this case that the Chief Justice of the Pennsylvania
Judicial System joined defendants’ request for a stay of that or-
der by telegram to each member of this Court. Moreover, the Su-
preme Court of Pennsylvania is presently seeking to leave to par-
ticipate as amicus curiae in these proceedings to vindicate the
state judiciary’s interests in this matter. Fortunately the requested
Argument 63
Such a clash can only be justified in limited cases. State
law and procedure must obviously conform to the require-
ments of the Constitution, Miranda v. Arizona, 384 US.
436 (1966). But in this case the lower court did not find
that the constitution required a judicial hearing but rather
that it required only a “‘hearing before an unbiased tribu-
nal” (801a). A second possible justification for creating
such friction between the two systems of government is
equally inapplicable. Since no federal statutes are in-
volved here this order was certainly not required by the
Supremacy Clause. Thus it was clearly inappropriate for
the lower court to order such a massive imposition upon
the Commonwealth’s Judicial System absent a basis found-
ed upon a substantive constitutional violation. Rizzo v.
Goode, 423 U.S. 362 (1975). Cf. Lemon v. Kurtzman
11, 411 U.S. 192 (1973).
stay was granted by this Court. This has temporarily alleviated
the undesirable result which could have arisen had the Pennsyl-
vania Supreme Court—a non party—refused to so drastically dis-
rupt its allocation of judicial resources to gratuitously accommo-
date this order.
64 Argument
CONCLUSION
On the basis of the arguments and authorities con-
tained in Argument I, defendants seek reversal of the deci-
sion of the lower court. In the alternative, defendants
request that this Court vacate those portions of the lower
court’s order which require retroactive application for the
reasons advanced in Argument II.
Respectfully submitted,
NORMAN J. WATKINS
Deputy Attorney General
BarRRY A. ROTH
Assistant Attorney General
J. JUSTIN BLEWITT, JR.
Deputy Attorney General
Chief, Civil Litigation
ROBERT P. KANE
Attorney General
Certification of Service 65
IN THE SUPREME COURT OF THE UNITED STATES
No. 75-1064
Jack B. Kremens, et al.,
Appellants
Vv.
Kevin Bartley, et al.,
Appellees
CERTIFICATION OF SERVICE
And Now, this 7th day of June, 1, Norman J. Watkins,
Deputy Attorney General for the Commonwealth of Penn-
sylvania, Counsel for Appellants, hereby certify that on
June 7, 1976, I served the Brief for Appellants by placing
one typed copy of that document in the United States Mail,
postage prepaid, in Harrisburg, Pennsylvania, addressed
to David Ferleger, Esquire, 1315 Walnut Street, Philadel-
phia, Pennsylvania, 19107. I further certify that I served
all parties required to be served.
NORMAN J. WATKINS
Deputy Attorney General
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