Brief for Appellee — Kremens v. Bartley
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MICHAEL ROBAK, JR_CLERS
Supreme Court of the Anited States
OCTOBER TERM, 1976
No. 75-1064
JACK B. KREMENS, et al.,
Appellants,
KEVIN BARTLEY, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR APPELLEES
DAVID FERLEGER
2321 Sansom Street
Philadelphia, Pa. 19103
Counsel for Appellees
— eee wn
Se EE PE SD
Weshington, D.C. © CLS PUBLISHERS « LAW PRINTING CO. « (202) 393-0625
(i)
TABLE OF CONTENTS
Page
TABLE OF CASES AND AUTHORITIES ............ ii
QUESTIONS PRESENTED .... ccc cece cree ccccee l
PEPE coc ccdescccccecccescocss 2
STATEMENT OF THE CASE .......cccccccccccees 5
SUMMARY OF ARGUMENT ..................065:. 18
SE 646566646 6406 404.008 60940046009.0066% 26
I. Prior to Involuntary Indeterminate Mental
Institutionalization by the State Upon Par-
ental Application, Juveniles Are Entitled to
Substantial Procedural Protections ............. 26
A. The General Right to Due Process Prior
to Mental Institutionalization Is Undis-
puted and Not at Issue in This Case ......... 26
B. It Is Undisputed in This Case That
Juveniles Are Protected by the Due
Process Clause of the Fourteenth
ED 6 6:6656-06:06 6000.66005 4606008 30
C. The Disputed Issue Before This Court:
Does Due Process Apply In Mental
Institutionalization of Juveniles by the
State Upon Parental Application? ........... 33
D. Institutionalization Results in Severe
Deprivation of Liberty, Other Dangers,
Social Stigma, Self-Stigmatization and
SN 6 pnd a tah codndseiccexsds 35
1. Children in the Mental Health
DE Kecie even bee a eedeeseeesee 36
a 2. The Mentally Retarded Child ........... 4]
} i I oad a od ead e 608.008 46
4. Stigma and Discrimination ............. 48
E. Parental Powers Are Limited For the
EE ES Oe ee ee 49
TABLE OF CASES AND AUTHORITIES
QUESTIONS PRESENTED
STATUTES INVOLVED
(i)
TABLE OF CONTENTS
Prior to Involuntary Indeterminate Mental
Institutionalization by the State Upon Par-
ental Application, Juveniles Are Entitled to
Substantial Procedural Protections
A.
The General Right to Due Process Prior
to Mental Institutionalization Is Undis-
puted and Not at Issue in This Case ......
It Is Undisputed in This Case That
Juveniles Are Protected by the Due
Process Clause of the Fourteenth
ES eile ere a ba ak oe ie
The Disputed Issue Before This Court:
Does Due Process Apply In Mental
Institutionalization of Juveniles by the
State Upon Parental Application? ........
Institutionalization Results in Severe
Deprivation of Liberty, Other Dangers,
Social Stigma, Self-Stigmatization and
NS ie ee ee ale ang
1. Children in the Mental Health
.60b eds &CAeeE DR eeeae so
2. The Mentally Retarded Child ........
Se 5 areas ene
4. Stigma and Discrimination ..........
Parental Powers Are Limited For the
Protection of Children ...............
a a eS ee ea ees ee ee a ae eS eS eS
Se aeaeeceecen Beet et eee
TT
ooo ae
Tre
(ii)
Page
F. Reliance Upon Psychiatrists Alone to
Authorize Commitments is Misplaced ........ 61
G. Need For and Functions of a Hearing ........ 65
H. The Requisites for a Due Process Hearing...... 67
I. Neither the State’s Regulations Nor the
Revised Statute Affect the Unconstitu-
tionality of Commitment Without
PE GE Cn kk cc ove ec cesescess 75
Il. The District Court Did Not Abuse Its
Discretion in Requiring the Defendant State
Officials to Assure That Juveniles Presently
Committed Receive Constitutional State
Procedures to Determine Whether They Are
Mentally Disabled and in Need of Institu-
Ses’ | -G ES Se Nw os 0 e'ne's 6 60 78
A. Preiser v. Rodriguez Does Not Bar Relief
for Juveniles Presently Committed .......... 78
B. The District Court’s Requirement of
Constitutional State Procedures for Per-
sons Presently Committed Does Not
Violate the Eleventh Amendment .......... 85
Ce 6. o's seabed 6860668660 WO C840 6S 88
I oe ed er ee ee ed eh ee Oe eae’ os oe la
TABLE OF CASES AND AUTHORITIES
Cases:
Ad Hoc Committee on Judicial Administration v.
Massachusetts, 488 F.2d 1241 (Ist Cir. 1973) ....... 87
Argersinger v. Hamlin, 407 U.S. 25 (1972) .......... 71,72
Babcock v. Fisk, 327 Mich. 72 (1950) ...............- 56
Barry v. Hall, 98 F.2d 222 (D.C. Cir. 1938) ......... 27,35
Bartlett v. Bartlett, 221 F.2d 508 (D.C. Cir. 1954) ...... 55
Baxstrom v. Herold, 383 U.S. 197 (1966) .... 18,26,29,62,68
(iii) ,
Page
Bell v. Wayne County, 386 F. Supp. 1085 (E.D.
Dt <Pieecet ena v ed desabedueeeest ss 27
Bellotti v. Baird, __. US. ___, 44 U.S.L.W.
otek ess eee eck wee eee 24,53,69
Bradford v. Weinstein, 519 F.2d 728 (4th Cir.
1974), appeal dismissed on other grounds,
U.S. eS fe} rrr 81
Brown v. Allerton, Civil Action No. 75-0450-R
i es cn oe ob bees 6 06.6 ene ens es 34
€e & se Oe ae 45
Buckholz v. Leveille, 194 N.W.2d 427 (Mich. 1975) ...... 6
Bykofsky v. Borough of Middletown, 401 F. Supp.
ee eae ene ek eee hes 55
Cafeteria Workers Union v. McElroy, 367 U.S. 886
DT <Ctteeticedeek oe hue 664 6% 6-3 4 6.05 6-0 66 68
Chaloner v. Sherman, 242 U.S. 455 (1917) .......... 18,27
Clarke v. Clarke, 178 U.S. 186 (1900) ............... 56
Comm. ex rel. Heston v. Heston, 98 A.2d 477, 173
i 2 ee ii ewe edue cee sees 55
Cornwell v. State Board of Education, 314 F. Supp.
340 (D. Md. 1969), aff'd, 428 F.2d 471 (8th
Cir. 1970), cert. den., 400 U.S. 942 (1970) ......... 55
ee Oe Se ee es ED 6-6 beh % ob é ace ce eeecds 27
Dixon v. Attorney General of the Commonwealth
of Pennsylvania, 325 F. Supp. 966 (M.D. Pa.
DG ¢piiche remands ones Cake ee 27,62,74,76,83
Doremus v. Farrell, 407 F. Supp. 509 (D. Neb.
Ee eee ee Bee eee a oe el te eae 27
Edelman v. Jordan, 405 U.S. 651 (1974) ....... 25,86,87,88
Ellis v. Massenburg, 126 N.C. 129, 35 S.E. 240
ara Lee BAe ree eG ote te ee die la 56
Ex Parte Young, 209 U.S. 123 (1908) ............. 86,87
Francklyn v. Sprague, 121 U.S.215 ...............2. 33
(iv)
Pas
Frazier v. Levi, 440 S.W.2d 393 (Civil App. Tex.
ee Aseret bes cheese . cae 56
Gallegos v. Colorado, 370 U.S. 49 (1962) ........... 31,72
Gerstein v. Pugh, 420 U.S. 103 (1975) ............. 25,81
Gideon v. Wainright, 372 U.S. 335 (1963) ............ 87
Ginsberg v. New York, 390 U.S. 629 (1968) ........... 51
Goldberg v. Kelly, 397 U.S. 254 (1970) ............ 70,87
Goldy v. Beal, ____ F. Supp. ____ (M.D. Pa., July
OR ere er ee yp nnn 82
Gomez v. Milter, 341 F. Supp. 323 (S.D. N.Y. ©
1972), aff'd sub. nom. Miller v. Gomez, 412
RS i errs ee eee 81
Graham v. Richardson, 403 U.S. 365 (1971) ......... 86,87
Grannis v. Ordean, 234 U.S. 385 (1914) ............. 69
Greenwood v. United States, 350 U.S. 366 (1956) ....... 63
Haley v. Ohio, 322 U.S. 596 (1948) ........ 30,3 1,60,72,77
Hans v. Louisiana, 134 U.S. 1 (1890) ............... 86
Hart v. Brown, 289 A.2d 385, 29 Conn. Sup. 368
Re ero ee ge ee eT 56
Hartman v. Scott, 488 F.2d 1215 (8th Cir. 1973) ....... 81
Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968) . . 27,29,59,
72,76
Hills v. Gautreau, ee aD 46.6 wie os cede 84
Holtsclaw v. Mercer, 145 F.2d 388 (D.C. Cir. 1944)... ... 55
Horacek v. Exon, Civil Action No. 72-L-299 (D.
Neb. Memorandum and Order of June 4, 1974) ...... 59
Humphrey v. Cady, 405 U.S. 504 (1972) ............ 18,27
Illinois v. Allen, 397 U.S. 337 (1969) ............... 73
In re Ballay, 482 F.2d 648 (D.C. Cir. 1973) ....... 27,48,74
In re Barnard, 455 F.2d 1370 (D.C. Cir. 1971) ........ 27,72
In re Basso, 299 F.2d 933 (D.C. Cir. 1962) ........... 27
In re Gault, 387 U.S. 1 (1966) ........ 19,23,29,32,46,51,59,
60,67,68,70,71,72.77
(v)
Page
In re Henry G., 28 C.A. 2d 276, 104 C.R. 585
CTD ccc cbs edcesenciveveceessereosecess 58
In re Long, 25 N. Ca. App. 702, 214 S.E.2d 626
SED oh cs cd eb ene sens sdicseeeersesesine 34,61
In re Sippy, 97 A.2d 455 (D.C. Mun. App. 1953) ...-. 11,61
In re Smith, 295 A.2d 238, 16 Md. App. 209
Serre: see? . See ee 55
In re Stuart, 114 F.2d 825 (D.C. Cir. 1940) .......---- 55
In re Wellman, 3 Kan. App. 100, 45 P. 726 (1896) ...... 71
In re Winship, 397 U.S. 358 (1969) .........-+-+: 32,33,74
Inmates v. Eisenstadt, 360 F. Supp. 676 (D. Mass.
Err rrr et. TEL TT See eee eee 87
Insuzance Company v. Bangs, 103 U.S. 435 (1880) ....... 56
J.L. & J.R. v. Parham, 412 F. Supp. 112 (M.D. Ga.
1976), stay granted, us .._., “&
U.S.L.W. 3563 (April 15, 1976) ........---005: 34,61
Jackson v. Indiana, 406 U.S. 715 (1972) .......+.+-- 26,73
Johnson v. Zerbst, 304 U.S. 458 (1938) ..........-- 60,72
Kendall v. True, 391 F. Supp. 413 (W.D. Ky. 1975)... . 27,82
Kent v. United States, 383 U.S. 541 (1966) .........-- 31
Kent v. United States, 401 F.2d 408 (D.C, Cir.
SD ou sake eee ee sie eeueseeds Steen eee 14
Kidd v. Schmidt, 399 F. Supp. 301 (E.D. Wis.,
EE Ae oer erry y eee te ee eee 34,61
Langan v. Langan, 150 F.2d 979 (D.C. Cir. 1945) ......-.- 55
Lemon v. Kurtzman, 411 U.S. 192 (1973) .......--+55 85
Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis.
1972), vacated and remanded, 414 U.S. 473
(1974), on remand, 379 F. Supp. 1376 (E.D.
Wis. 1974), vacated and remanded, 95 S. Ct.
PED CISTED cv cccweseceesecescccccons 27,48, 72,74
(vi)
Logan v. Arafeh, 356 F. Supp. 1265 (D. Conn.
1972), aff'd mem. sub nom., Briggs v. Arafeh,
ee Se ee eee renee oo 28
Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala.
rin, RE nai Rane Piety BP ne Ps 27,72,74
Martarella v. Kelley, 349 F. Supp. 575 (S.D.N.Y.
steaceein hs anand wae waenehe eae ae 87
McKciver v. Pennsylvania, 403 U.S. 528 (1971) .. . 19,24,30,33,
62,69,80
McNeil v. Director, Patuxent Institution, 407 U.S.
EE aie aha teed eed oes oad es de was 27,73
Melville v. Sabbatino, 30 Conn. Supp. 320 (Super.
We WE 66 ORG bee Cid 6 oa eb eee ese 61
Meyer v. Nebraska, 262 U.S. 390 (1923) ........... 34,50
Minnesota ex rei. Pearson v. Probate Court of
Ramsey County, 309 U.S. 270 (1940) ........... 18,28
Miranda v. Arizona, 384 U.S. 436 (1966) ............ 60,85
Mullane v. Central Hanover Trust Co., 339 U.S. 306
eee, EE TE ETE EEC OUET TET RET CE CTE CET 69
New York State Association for Retarded Children
v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y *
OEE Steet Guede abecaenresoteewie ae ea cess 61
Newton v. Burgin, 363 F. Supp. 782 (W.D.N. Ca.
1973), aff'd, 414 U.S. 1139 (1974) .............. 55
O’Connor v. Donaldson, 422 U.S. 563 (1975) .. 18,19,26,35,62
Paul v. Davis, U.S. ___., 44 U.S.L.W. 4337
DEE SEU EOs bee dice eee eke ee wd ae an ae 49
Pennsylvania Association for Retarded Children v.
Commonwealth of Pennsylvania, 343 F. Supp.
ee ee OD 5s ok oe ab ee kee ee kk 48
People ex rel. O’Connell v. Turner, 55 Ill. 280
I ot eh aa da aed St eh ee a a 64
People ex rel. Wallace v. Labrenz, 411 Ill 618, 104
N.E.2d 769 (1952), cert. den., 344 U.S. 824
PE Pay ie eS La A aE EE Re 55
—T
CBee «cls cee
(vii)
Page
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ....... 50,51
Planned Parenthood of Central Missouri v. Danforth,
U.S. __., 44 U.S.L.W. 5197 (July 1,
ED iw dues eddek ss Case eee yees ok 24,53,60
Preiser v. Rodriguez, 411 U.S. 475 (1972) .. 24,78,80,81,82
Prince v. Massachusetts, 321 U.S. 158 (1944) ...... 23,50,51
Rafferty v. Rainey, 292 F. Supp. 152 (E.D. Tenn.
errr eer errrrr?. TT Tere ee eee 55
Republican College Council of Pennsylvania v.
Winner, 357 F. Supp. 739 (E.D. Pa. 1973) ......... 55
Respublica v. Keppele, 2 U.S. 197 (1793) (Pa. Sup.
GAR ccbceseesevdedeseeveceuesesecenveces 56
Rizzo v. Goode, 423 U.S. 362 (1975) ..........-00-: 84
Sarzen v. Gaughn, 489 F.2d 1076 (ist Cir. 1973) ....... 27
Saville v. Treadway, 404 F. Supp. 430 (M.D. Tenn.
Perr rere ree Terre TT e ee TTT ee ak 34,61
Specht v. Patterson, 386 U.S. 605 (1967) ....... 18,26,28,62,
68,73,74
Stanley v. Illinois, 405 U.S. 645 (1972) ...........--. $3
State v. Perricone, 37 N.J. 463, 181 A.2d 751
(1962), cert. den., 371 U.S. 890 (1962) ........... 55
Surrey v. Surrey, 144 A.2d 421 (D.C. Mun. App.
PPP Eee TT eee eT eT eee LECT LTE 55
Suzuki v. Quisenberry, 411 F. Supp. 1113 (D.
SD So i'd bk d 60 Sees inet weviousss CQ
Tinker v. Des Moines Independent School District,
gee fF errr e rr Tree erreeeeeeee 52
United States v. Dunn, 268 U.S. 121 (1925) ........... 56
United States v. Equitable Trust Company of New
WO, Be Ge. PRED. ween seccecssceseses 56
United States ex rel. Johnson v. Chairman of the
New York State Board of Parole, 363 F. Supp.
CI Gea ee CPUEE cee ewer eseeaseeeuucecces 82
(viii)
Page
Ware v. Estes, 328 F. Supp. 657 (N.D. Tex. 1971),
aff'd, 458 F.2d 1360 (Sth Cir. 1972), cert. den.,
ee I es a 55
Washington v. Texas, 388 U.S. 14 (1967) ............. 74
White v. Osborne, 251 N.C. 56, 110 S.E.2d 449
BR ES I One 56
Winegard v. State of North Carolina, 366 F. Supp.
SP ee Os TED Sv ccc kccvencoccccectee 81
Wisconsin v. Constantineau, 400 U.S. 433 (1971) ....... 49
Wisconsin v. Yoder, 406 U.S. 205 (1971) ......... 23,24,52
Wolff v. McDonnell, 418 U.S. 539 (1973) ........ 24,80,81
Wyatt v. Aderholdt, 358 F. Supp. 1382 (M.D. Ala.
RE (Ata ae ei aati yg Ne 76
Texts and Authorities:
Alanen, The Family in the Pathogenesis of Schizo-
Phrenia and Neurotic Disorders, 24 Acta Psychi-
atrica et Neurologica Sc-ndinavica, Supp. 189
SER ee he wee ETE Ps re ee eek kan 57
American Bar Foundation (Brakel & Rock, eds.),
The Mentally Disabled and the Law (1971) ......... 70
Barton, Jnstitutional Neurosis (2d Ed. 1966) ........... 36
Baumeister, Residential Facilities for the Mentally
I Sa rs eae 45
Bazelon, Forward, Symposium: Mental Illness, the
Law and Civil Liberties, 13 Santa Clara Law.
UE ee DE w it ee 65
Beck, Reliability of Psychiatric Diagnoses: A
Critique of Systematic Studies, 119 Amer. J. of
PU PUPEUD vnc cs cvc du ccccuccoccces 63
Belknap, Human Problems of State Mental Hospitals
DE REN OTUs eee yhoo a ous us 36
Blackstone, Commentaries on the Laws of England
(Wendell, ed., 1852)
mes ee oh
Ae ee
(ix)
Braginsky & Braginsky, Hansels and Geetels: Studies
of Children in Institutions for the “Mentally
Retarded” (1971)
Braginsky, et al., Methods of Madness: The Mental
Hospital as a Last Resort (1969) .....--+-e0e005
Burt, Constitutional Rights Of, In and For Children,
39 Law and Contemporary Problems 118 (1975) ....
Cohen, et al., Mental Health Services, in Hobbs, ed.,
Issues in the Classification of Children, Vol. |,
f) Prerrrrrrr rT TTT eT Te ee
Cohen, The Function of the Attorney and the
Commitment of the Mentally Ill, 44 Tex. L.
Rev. 424 (1966) once cccccccccccverscccese
Chesler, Women and Madness (1972) ....-.-+++e0085
Dept. of Health, Education and Welfare, NIMH,
Statistical Note 90, Utilization of Psychiatric
Facilities by Persons Under 18 Years of Age,
Ubeload Senses, IDTE 2 ww cc ccccccccscccccccece
Dept. of Health, Education and Welfare, NIMH,
Statistical Note 105, Legal Status of Inpatient
Admissions to State and County Mental Hospi-
pale, Ureltad Senden, 1972 .cccccccveccccccccsens
Dept. of Health, Education and Welfare, NIMH,
Statistical Note 111: Age, Sex, and Color
Variations in the Diagnostic Distributions of
Admissions to Inpatient Services of State and
County Mental Hospitals, United States, ]1972........-.
Dept. of Health, Education and Welfare, NIMH,
Statistical Note 113, State Trends in Resident
Patients — State and County Mental Hospital
Inpatient Services 1967-1973 ... 0.02 0e cece eereee
Dept. of Health, Education and Welfare, NIMH,
Statistical Note 130, Residential Treatment
Centers for Emotionally Distrubed Children
37,38
FOTPTOPE ccc ctccseseacesesenscccceseses 38
(x)
Dept. of Health, Education and Welfare, Mental
Retardation Sourcebook (1972) ............0e05.
Deutsch, The Mentally Ill in America (2d ed. 1949)... ...
Developments in the Law — Civil Commitment of
the Mentally Ill, 87 Harv. L. Rev. 1190 (1974)
Edelman, Goldberg & Werts, The Reliability of
Clinicians’ Judgments: A Multi-Trait — Multi-
Method Approach, 30 J. of Consulting Psy-
I I i oe ee
Edgerton, et al., Mental Retardation System, in
Hobbs, Jssues in the Classification of Children,
e 2 REP 41,44
Edgerton, The Cloak of Competence: Stigma in the
Lives of the Mentally Retarded (1967) ...............
Ellis, Volunteering Children: Parental Commitment
of Minors to Mental Institutions, 62 Cal. L. Rev.
SN ee ra Let eee Ce eae 34,36,65
Ennis & Litwack, Psychiatry and the Presumption
of Expertise: Flipping Coins in the Courtroom,
ee ts Do oS i ee
Eyman, et al., Factors Determining Residential
Placement of Mentally Retarded Children, 76
Amer. J. of Mental Deficiency 693 (1966)
Fleck, Some Basic Aspects of Family Pathology, in
Wolman, ed., Manual of Child Psychopathology
rere RD Sg ees ans T
Goffman, Asylums (1961) .............-00-00-55.
Goldstein, Freud & Solnit, Beyond the Best
Interests of the Child (1973) ...................
Gralicker, et al., A Study of Factors Influencing
Placement of Retarded Children in a State
Residential Institution, 69 Amer. J. of Mental
Deficiency 553 (1965)
aes kh 2 fe £ mw
(xi)
Page
Gralnick, et al., “Mental Patients in Transition” in
Greenblatt, ed., Mental Patients in Transition
CIOBED ccccccccccccceveccccsecsscccveccees 36
Grob, Mental Institutions in America: Social Policy
we OL 5. SPPPTEPTTTT TPCT Cre 36
Harris, Mental Illness, Due Process and Lawyers, 55 1
BMAD GECIGED cccccccccccccceccceecses 72,77
Hobbs, The Futures of Children (1975) ........ 41,44,46,47
Joint Commission on Mental Health of Children,
Crisis in Child Mental Health — Challenge for
Gog PRIDE CTT ccceccccccctsccesecccecesss 4]
Katz, Cole & Lowery, Studies of the Diagnostic
Process: The Influence of Symptom Perception,
Past Experience and Ethnic Background in
Diagnostic Decisions, 125 Amer. J. of Psychiatry
937 (ISEB) onc cccccccccccccesccscsescesess 63
Katz, Goldstein & Dershowitz, Psychoanalysis,
Psychiatry and the Law (1967)... 2... 602-00 ees 36
Kittrie, The Right to Be Different: Deviance and
Enforced Therapy (1971) «2.20 cece eee eee eeee 36
Lee & Temerlin, Social Class, Diagnosis and
Prognosis for Psychotherapy, in Psychotherapy:
Theory, Research and Practice (1970) ............. 63
Lewis, Balla, et al., Psychotic Symptomatology in a
Juvenile Court Clinic Population, 12 J. of the
Amer. Academy of Child Psychiatry 660 (1973)...... 40
Lidz, et a., Schizophrenia and the Family (1966) ....... 57
Lidz, et al., The Intrafamiiial Environment of
Schizephrenic Patients. ll. Marital Schism and
Maritial Skew, 114 Amer. J. of Psychiatry 281 .
(19BD woccecccecsvecsuccaneeeaneeecesees 5
Livermore, Malmquist & Meehl, On the Justifica-
tions for Civil Commitment, 117 U. Pa. L. Rev. sd
i.) Be
(xii)
Meeks, The Fragile Alliance (1971) ...........22006: 39
Miller & Kenney, Adolescent Delinquency and the
Myth of Hospital Treatment, 12 Crime and
COPED 6c ue 66's e686 eb eCeececoces 40
National Association of Superintendents of Public
Residential Services for the Mentally Retarded,
Current Trends and Status of Public Residential
Services for the Mentally Retarded: 1974 (1975) .. 41,42,44
Pasamanik, Divity & Lefton, Psychiatric Orientation
and Its Relation to Diagnosis and Treatment in
a Mental Hospital, 116 Amer. J. of Psychiatry
ARR En 63
Pound, I/ndividual Interests in the Domestic Rela-
tions, 14 Mich. L. Rev. 177 (1916) .............. 54
Rosenhan, On Being Sane in Insane Places, 13 Santa
NE 65
Rosensweig, et al., A Study of the Reliability of the
Mental Status Examination, 117 Amer. J. of
a ee bees 63
Roth, Dayley & Lerner, Into the Abyss: Psychiatric
Reliability and Emergency Commitment
Statutes, 13 Santa Clara Law. 400 (1973) .......... 64
Rothman, The Discovery of the Asylum: Order and
Disorder in the New Republic (1971) ............. 36
Scheff, Being Mentally Ill: A Sociological Theory
i eee ee Oe ee ee ee ee eee 64
Schwartz, Rehabilitation of Mental Hospital
Patients, Public Health Monograph No. 17
ee a ae ee 36
Stanton & Schwartz, The Mental Hospital (1954) 36
Szasz, Civil Liberties and the Mentally Ill 9
Clev-Mar. L. Rev. 399 (1960)
Tizard, The Role of Social Institutions in the
Causation, Prevention and Alleviation of Mental
Retardation, in Haywood, Social-Cultural As-
pects of Mental Retardation (1970) 46
;
4
4
:
;
’
;
(xiii)
Page
Tribe, Childhood, Suspects Classification, and Con-
clusive Presumptions, 39 Law and Contemporary
IEEE 6b. 6 do-e63600-5004660468 00601 34
Vail, Dehumanization and the Institutuional Career
SE, Gectaeendedetearceketesesdeuececdes 36
Weiss & Pizer, Hospitalizing the Young: Is It for
Their Own Good?, 54 Mental Hygiene 498
ST 250k SEC acee dca eek whs 40he 60 40
Wing & Brown, Institutionalization and Schizo-
I ole ad CC eh eee adé es 6044: 36
Wohlman, Children Without Childhood: A Study in
Childhood Schizophrenia (1970) ..........2+005: 57
Wohlman, Family Dynamics and Schizophrenia, 6 J.
of Health and Human Behavior 147 (1965) ......... 57
Wolfensberger, The Origin and Nature of Our
Institutional Models, in Kugel & Wolfensberger,
eds., Changing Patterns in Residential Services
for the Mentally Retarded (1969) ............4-- 45
Constitutional Provisions:
Amendment XI, Constitution of the United
Di ttetdnteadeéedu abegndeavech sees Passim
Amendment XIV, Constitution of the United
DU cviesdndioebes debe aenneennesu< Passim
Statutes and Regulations:
Pennsylvania Mental Health and Mental Retardation
Act of 1966:
SS Se, Ss UE oc cc ccc eseccceceses 5
Sections 402 and 403, 50 P.S. § §4402, 4403 .... passim
Section 404, 50 P.S. §§4404 ..............4-. 5,83
Section 405, SO PS. $4405 .. nn cccccccccccces 5,83
Beetie GER, SOF BOUND ccccccccevcccssves 5,83
Pennsylvania Mental Health Procedures Act, Act No.
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IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1976
No. 75-1064
JACK B. KREMENS, etc., et al.,
Appellants,
KEVIN BARTLEY, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR APPELLEES
QUESTIONS PRESENTED
1. Does the involuntary indeterminate mental institu-
tionalization of juveniles by the state, without notice,
counsel, hearing or other protections but upon parental
application, violate the requirements of the Due Process
Clause of the Fourteenth Amendment?
2. Did the District Court abuse its discretion in
requiring the defendant state officials to assure that
juveniles, presently committed, receive constitutional
state procedures to determine whether they are
mentally disabled and in need of institutionalization?
2
3. Does the District Court’s requirement of constitu-
tional state procedures to continue the confinement of
juveniles unconstitutionally committed violate the
Eleventh Amendment to the Constitution of the United
States?
STATUTES INVOLVED
In addition to the statutes reproduced by appellants,
the following statutes were enacted by Pennsylvania on
July 9, 1976.
Mental Health Procedures Act
Act No. 143
Section 103. Scope of Act.—This act establishes
rights and procedures for all involuntary treatment of
mentally ill persons, whether inpatient or outpatient,
and for all voluntary inpatient treatment of mentally ill
persons. “Inpatient treatment” shall include all treat-
ment that requires full or part-time residence in a
facility. For the purpose of this act, a “facility” means
any mental health establishment, hospital, clinic,
institution, center, day care center, base service unit,
community mental health center, or part thereof, that
provides for the diagnosis, treatment, care or rehabili-
tation of mentally ill persons, whether as outpatients or
inpatients.
Section 201. Persons Who May Authorize Voluntary
Treatment.—Any person 14 years of age or over who
believes that he is in need of treatment and
substantially understands the nature of voluntary
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3
commitment may submit himself to examination and
treatment under this act, provided that the decision to
do so is made voluntarily. A parent, guardian, or person
standing in loco parentis to a child less than 14 years of
age may subject such child to examination and
treatment under this act, and in so doing shall be
deemed to be acting for the child. Except as otherwise
authorized in this act, all of the provisions of this act
governing examination and treatment shall apply.
Section 202. To Whom Application May be Made.—
Application for voluntary examination and treatment
shall be made to an approved facility or to the county
administrator, veterans administration or other agency
of the United States operating a facility for the care
and treatment of mental illness. When application is
made to the county administrator, he shall designate
the approved facility for examination and for such
treatment as may be appropriate.
Section 204. Notice to Parents.—the director of the
facility shall promptly notify the minor's parents,
guardian, or person standing in loco parentis, and shall
inform them of the right to be heard upon the filing of
an objection. Whenever such objection is filed, a hearing
shall be held within 72 hours by a judge or mental
health review officer, who shall determine whether or
not the voluntary treatment is in the best interest of
the minor.
Section 206. Withdrawal from Voluntary Inpatient
Treatment.—(a) A person in voluntary inpatient treat-
ment may withdraw at any time by giving written
notice unless, as stated in section 203, he has agreed in
writing at the time of his admission that his release can
be delayed following such notice for a period to be
specified in the agreement, provided that such period
shall not exceed 72 hours.
4
(b) If the person is under the age of 14, his parent,
legal guardian, or person standing in loco parentis may
effect his release. If any responsible party believes that
it would be in the best interest of a person under 14
years of age in voluntary treatment to be withdrawn
therefrom or afforded treatment constituting a less
restrictive alternative, such party may file a petition in
the Juvenile Division of the court of common pleas for
the county in which the person under 14 years of age
resides, requesting a withdrawal from or modification of
treatment. The court shall promptly appoint an
attorney for such minor person and schedule a hearing
to determine what inpatient treatment, if any, is in the
minor’s best interest. The hearing shall be held within
ten days of receipt of the petition, unless continued
upon the request of the attorney for such minor. The
hearing shall be conducted in accordance with the rules
governing other Juvenile Court proceedings.
(c) Nothing in the act shal! be construed to require a
facility to continue inpatient treatment where the
director of the facility determines such trcatment is not
medically indicated. Any dispute between a facility and
a county administrator as to the medical necessity for
voluntary inpatient treatment of a person shall be
decided by the Commissioner of Mental Health or his
designate.
Section 501. Effective Date and Applicability.—This
act shall take effect 60 days after its enactment and
shall thereupon apply immediately to all persons
receiving voluntary treatment. As to all persons who
were made subject to involuntary treatment prior to the
effective date, it shall become applicable 180 days
thereafter.
J
5
Section 502. Repeals.—(a) The definition of “mental
disability” in section 102, and sections 401, 402, 403,
404, 405, 406, 407, 408, 409, 410, 411, 412, 413,
416, 418, 419, 420 and 426, act of October 20, 1966
(3rd Sp. Sess., P.L. 96, No. 6), known as the “Mental
Health and Mental Retardation Act of 1966,” are
hereby repealed, except in so far as they relate to
mental retardation or to persons who are mentally
retarded. * * *
Section 503. Severability.—If any provision of this
act including, but not limited to, any provision relating
to children or the application thereof including but not
limited to an application thereof to a child is held
invalid, such invalidity shall not affect other provisions
or applications of the act which can be given effect
without the invalid provisions or application and to this
end of the provisions of this act are declared severable.
STATEMENT OF THE CASE
On November 16, 1972, plaintiffs filed this class
action against state officials' challenging those portions
1The defendants included the Secretary of the Department of
Public Welfare of the Commonwealth of Pennsylvania which “has
the power and duty to enforce” the state mental health law, to
“make ali regulations necessary and appropriate,” and to
“operate and assign functions to all state facilities.” and the
Deputy Secretary for Mental Health and Mental Retardation
(277a). The superintendent of Haverford State Hospital, who is -
responsible for receiving applications for admission, commitment
and release under the challenged statutes, was “sued as
representative of the directors of all mental health facilities in
Pennsylvania,” all of which are under the authority of the
defendants Secretary and Deputy Secretary (275a). In Pennsyl-
vania, all mental institutions, public and private, are facilities
subject to the statute and regulations. 50 P.S. §4102.
Department of Public Welfare Regulations, Title 9100 (29 1a).
6
of Pennsylvania mental health statutes which permit the
state to detain persons eighteen years of age or younger
in mental institutions without substantial procedural
protections including, infer alia, notice, counsel and
opportunity for hearing. “In essence, plaintiffs claim
that the present procedures do not adequately assure
against the mistaken commitment of children who are
not mentally ill.” 786a-787a; District Court Oninion,
402 F. Supp. at 1042 - 1043.?
A three-judge court was convened pursuant to 28
U.S.C. §§2281, 2284, and, prior to trial, extensive
factual stipulations were entered into. At a three day
hearing before the three judges, the testimony of six
expert psychiatrists was heard. The depositions of three
other psychiatrists were entered into evidence.
The class on whose behalf this action is maintained *
includes “‘children who allegedly are mentally ill as well
?For convenience, all references to the District Court’s
reported opinion include the official citation thereof, 402 F.
Supp. 1039 (E.D. Pa. 1975), in addition to reference to the
Appendix.
’The defendants agreed to the District Court’s suggestion that
a guardian ad litem be appointed for the plaintiffs pursuant to
Rule 17(c) of the Federal Rules of Civi! Procedure: “With regard
to the technicality involved, I am really at the courts’ pleasure. I
really do not object to the going through with Mr. Ferleger as a
next friend.” (250a). Thus, the issue suggested in an amicus brief
of whether juveniles can ever initiate litigation by a next friend
or guardian ad litem is not raised in this case. Brief of Michigan
Association for Emotionally Disturbed Children amicus curiae.
Regardless, federal courts have uniformly exercised their power
under Rule 17(c) to protect minor litigants’ interests where
potential for parent-child conflict was present. E. g., Roberts v.
Ohio Casualty Insurance Co., 25: F.2d 35 (Sth Cir. 1958).
The law in Michigan is equally clear and adverse to the amicus
which fails to cite the leading case of Buckholz v. Leveille 194
N.W.2d 427 (Mich. 1975).
7
as children who allegedly are mentally retarded” (783a),
402 F. Supp. at 1041, n.1, who “have been, are, or
may be admitted or committed to mental health
facilities in Pennsylvania under the Pennsylvania Mental
Health and Mental Retardation Act (Act)” (7832
784a).*
Named Plaintiffs
The named plaintiffs were five of the twenty-four
juvenile retarded and mentally ill patients confined at
Haverford State Hospital under the challenged statutes
at the time the action was commenced (133a-134a).°
They were confined after a psychiatric examination
which lasted “anywhere from an hour to three quarters
of an hour” (47a) “or shorter.” Jd. The reasons for
admission of these persons (as stated by the hospital)
were varied and included truancy, incorrigibility,
homicidal and suicidal behavior, chaotic family, talking
incoherently, rebellion, aggressive behavior, threats and
assaults to family members, temper tantrums, sexual
acting out, foul language, drug use and hallucinations
(135a-165a). Treatment for the group included drugs,
individual, group and family therapies, confinement to
closed locked units, schooling, and confinement in
seclusion rooms. /d.
‘This inclusive class definition was uncontested by the
defendants although they now undertake to criticize it. Brief for
Appellants at 28, n. 16, 48; (27Sa).
‘Bight additional juveniles were confined there under other
sections of the law (133a - 134a). Children are held as civil
“voluntary patients in the same treatment unit as those on
criminal commitments.” See Deposition of Dr. Barbara Arms-
trong (38a et seq., 135a - 165a).
8
At least ten of the juveniles were recorded as having
objected to institutionalization at the time of admis-
sion; seven more objected after admission (122a-124a).°
One “‘preferred to come rather than go to jail’”’ (122a).
A summary of the commitment experiences of each
of the named plaintiffs illustrates the fact patterns
common to the class.’
Plaintiff K. B. was, and still is, critical of the hospital
and believes that some of the hospital’s regulations are
arbitrary, that the staff played favorites with patients,
that unnecessary punishments were imposed for minor
rule infractions, and that patients were transferred to
locked wards as punishment for mere allegations of
wrong doing (277a-278a).® K. B. was diagnosed as a
person with “Organic Brain Syndrome with epilepsy”
and an “explosive personality.”” The hospital had some
difficulty in its “efforts to work with his mother to
allow her to become more receptive to his return to his
home and community” (180a).
Electro-convulsive treatment (E. C. T.) was adminis-
tered to plaintiff S. G. who was confined due to “his
having become violent and aggressive towards his family
and younger children in his neighborhood.’ He also
received “high dosages of medication”. Despite 61
*Juveniles whom the hospital psychiatrist considered
“incompetent” to intelligently voice an objection are not
included (122a - 124a). A number of these persons were deemed
retarded. |
7The statements are taken from either the parties’ factual
stipulations or hospital-prepared narrative summaries. See 166a et
seq.
®Defendants admit that K. B. was critical as described but
deny the validity of his beliefs (278a).
9
therapy sessions spaced over 15 months, his improve-
ment was only marginal (172a-173a).
Plaintiff L. L.’s parents are divorced; her father is
remarried and living in Florida; she would have (at the
time of her commitment and the time this action was
filed) liked to have been with her father because she
gets along well with him. Every time she visits with her
father, her behavior is excellent. L. L.’s difficulties in
relating to her mother resulted in her commitment.
Hospital records indicate Levine threatened the lives of
her mother and sister and that she has a “personality
disorder.” (278a).
One expert testified that it is typical of many
adolescents that, as in L. L.’s case, they will behave
poorly and need hospitalization in one environment or
with one parent, yet their behavior will be excellent
and they will not need treatment in another environ-
ment or with the other parent (625a-628a). L. L.’s
mother and her two sisters participated with her in
therapy sessions “prior to admission because of family
quarrels” (166a).? Diagnosed “adolescent adjustment
reaction,”” L. L. was discharged to live with her father
in Florida” (168a).
M. W. was transferred to Haverford State Hospital
after an overnight stay at another facility for ingestion
of valium and possible glue sniffing. “‘Past psychiatric
history included the patient having been placed on
probation after a drug abuse charge and a court
°“On the day of admission the patient felt as she stated
‘closed in’ by the mother and she threatened the mother with a
kitchen knife. The mother contacted Dr. Aemowitz who
recommended hospitalization at Haverford State Hospital”
(166a).
10
evaluation....M has a 1% year history of
underachieving, truancy and drug abuse.” (169a).
Treated with drugs and psychotherapy, M. W. was at
one point placed on leave and “brought back by the
police after being questioned due to false accusation of
stealing” (171la). During the months of his commit-
ment, M. W. complained that he was being confined
involuntarily (17Qa).
One plaintiff, 15 year old V. M., had run away from
home (after a psychiatrist advised her family to let her
live away from home) when she was brought to the
mental institution by the police “after being picked up
in the park in an incoherent, assaultive state along with
several young men” (174a). With a background
including runaways and drug use, V. M., the hospital
stated, “vented much hostility towards her family,
particularly her father, ‘My family is screwed up. What
can I do? I tried running away and it just got me in
jail’ ” (17Sa).
The hospital found “no evidence of a thought
disorder” in V. M. and described her “as a frightened
girl, who was attempting to strike out at her
surroundings in self defense.” (175a). V. M.’s family
wanted her outside of the home and the hospital agreed
(176a) noting that “it seemed desirable to remove the
patient from the family setting because the family had
been so rejecting of her and scapegoating her’ (177a).
If the family could not afford a residential institution,
the hospital “recommended that the family take the
patient to court to be declared incorrigible” (177a).
The family succeeded in their desires; V. M. was
‘onsferred to the Devereaux School, a mental health
facility.”®
Under the protection of a court order forbidding
retaliation against them, two juveniles, D. D. and A. M.,
provided the District Court an uncontradicted descrip-
tion of their experiences (34a-37a). |
Prior to his commitment under the challenged
statutes, there was conflict at home between D. D. and
his parents who, due to their own poor physical and
emotional reserve, were thought by the hospital to be
“likely unable to cope with the future demands” D. D.
would make on them. (778a). D. D. was reported to
have been truant from school and to have been an
uncooperative out-patient.
D. D. was on probation from the juvenile court for
truancy. He broke probation but, on recommendation
of someone at the county courthouse, D. D.’s parents
brought him to the hospital:
When I got to the hospital, the doctor, Dr. Kratsa,
wanted me to go to reform school. My parents
kept saying no. They made it sound like if I didn’t
come here I'd be going to reform school. So I said
yes. that’s how they tricked me.
10The Devereaux School’s protestations to the contrary
notwithstanding, see Brief of Devereaux School amicus curiae, it
clearly does not function as a traditional educational facility.
Licensed to provide mental health and mental retardation care, it
serves oily disabled persons and is subject to the state laws
chaliecged here. See In Re Sippy, 97 A.2d 455 (D.C. Mun. App.
1953) (holding that child has right to independent counsel prior
%) commitment to Devereaux School, “a psychiatric school”). In
any case, because Pennsylvania commitment laws apply to all
facilities, public and private, and because of the class defendant
representing all facility directors, see note 1 supra, the issue
suggested in the amicus brief is not before the Court.
12
At the institution, on one occasion, D. D. was restricted
because he “didn’t do clean-up.” For not accepting the
restriction, he was sent for five days “‘up the hill” to a
locked building where he was subject to homosexual
advances. D. D. also got into trouble at the hospital for
possession of phenobarbitol tablets which he—and other
juveniles—obtained in the hospital.
A. M. was committed to Haverford State Hospital
upon transfer from the University of Pennsylvania
Hospital. Age 15, he was depressed and preoccupied
with suicide. A. M.’s uncontradicted description of his
hospital stay is graphic:
When I first got here they pushed me into a room
and told me to take off my clothes and put on
pajamas. Then they took me up to the fifth floor.
I wasn’t expecting to be locked up. It really drives
you crazy. They didn’t explain anything to
me—they put you up there and that’s it. My
mother says if she knew that she wouldn’t have
put me in here. I was up there 3 or 4 days before
I was sent to Building 9.
They threaten you here—that’s the really bad part.
You do what we say or you go up the hill or
something—restrictions. Like me _e and
D D — we'll probably get sent up the
hill again cause we didn’t go to our half hour of
art therapy. D got sent up for five days
because he wouldn’t take his restrictions. They
don’t care—they don’t care about anything. The
evening and late night staff stinks. The only staff
that really cares is the day staff.
I got transferred to Building 4 one night. I cut
myself on purpose. My hands were bleeding and
they said | was going for a tetanus shot. They
didn’t explain what they were doing or tell you
they were taking you up. They should at least
4
13
have told my parents. I would still be there but
my doctor, Dr. Kratsa, got me back the next day.
If you get sent up on a Friday, and your doctor is
only here Tuesday, Wednesday, and Thursday,
you'll be there till next Tuesday at least. Do you
think you can do anything about the restrictions
and us getting sent up the hill? (34a-35a).
The Class
The record before the District Court includes
information regarding the mental institutionalization of
all the thousands of juveniles in Pennsylvania facilities
as of May 31, 1973 (310a-316a)."’
The facts in the following eight numbered paragraphs
are stipulated by the defendants: '?
1. Children have been institutionalized in Pennsyl-
vania mental health facilities for the following reasons
as noted by the institution: “Runaway, incorrigible,”
“Violent episodes,” “Hostile, attacked children, attemp-
ted to set home on fire,” “Robbed gas station,” “Stole
''This information was provided in response to plaintiffs’
interrogatories which were transmitted to all facilities by means
of a questionnaire which called for reports of the “reason” or
“precipitating behavior” for commitment (27a, 773a). The
extensive data are collated and summarized at 210a et seq.
"The stipulation and admission of these facts (522a-523a)
was preceded by the defendants’ objection that additional data
from the juveniles’ medical records should be before the court
(288a). To satisfy this objection, the court and parties agreed
that the records of ten randomly selected juveniles could be
introduced into evidence (317a - 363a). In the listing in the text,
only representative cases are noted with the name of the facility
and patient number eliminated. In each case, the words used are,
verbatim, the words with which the institutions themselves
justified the commitment.
14
truck, car,” “Member of gang which participated in
robbery,” “Delinquent behavior,” “Arson,” “Run-
away,” “Runaway, truancy, delinquent behavior.”
2. Mental health facilities sometimes cooperate with
parents and relatives “farming out their kindred into
mental institutions for motives not always worthy.”
3. Children have wound up at institutions for the
following reasons, in addition to their being mentally
retarded:
“Interim placement while family was on vaca-
tion.” **
A mother placed her child at Western because
“father out of household in the military.”
“Hyperactivity interfered with the routine of
household and disturbed family members.”
Western accepted another child from a mother
because of “‘desertion of father.”
In another case, a mother and a father who
themselves had emotional difficulties institu-
tionalized their child because they held the
“problems of the child...responsible for their
emotional adjustment.”
Also, “Family conflicts,” “Family problems, needed
separation from the family,’ “Unmanageable at home,
attitude of bold indifference, resents all discipline,
'3Kent v. United States, 401 F.2d 408, 416, n. 4 (D.C. Cir.
1968) (Burger, J., dissenting).
More than ten months after this “vacation,” this individual
was reported still at the institution; he was committed on July
20, 1972 for a one to two week expected stay. The facility
reported the individual s*") committed as of May 31, 1973 (355a
- 362a, 773a). The defem@ants incorrectly state that this
commitment was part of a state-encouraged respite care program.
Brief for Appellants at 48.
15
compulsive eating,” “Runaway, conflict with parents,”
“‘Neglect, Social Deprivation,”’ “Neglect, unstable home
environment,” “Mother has tuberculosis,” ‘Emotional
instability of mother,” “Hospitalization of mother is
apparent reason for admission,” “No serious behavior
problem; admitted due to parents’ inability to provide a
satisfactory home environment,” “Sometimes hyper-
active. Illegitimate,” “Illegitimate. Inadequate mother.”
4. One facility accepted a young boy because “He
has no playmates, planned activities, exercise. Presently
he does nothing except sit in school and in front of the
T.V. at home.”
5. Three juveniles were committed to mental institu-
tions because of physical ailments: ulcerated colitis, a
psychosomatic complaint, weight loss.
6. There are five juveniles in one hospital for not
going to school.
7. A number of juveniles are committed for
drug-related activities. One juvenile for a “fake drug
overdose”.
In Pennsylvania, 503 juveniles were committed in
1972 under Sections 402 and 403 to twenty-one state
institutions for the mentally ill; 130 juveniles entered
after a court hearing under Section 406 (315a). That
same year, 317 juveniles entered nine state institutions
for the retarded under the challenged statutes and 39
were committed upon a Section 406 hearing (314a). A
substantial number of juveniles are committed not by
their parents but rather by welfare or social agencies
(310a-3 13a).
16
District Court Decision
The District Court determined that “the state is
required to provide substantial procedures when there is
the possibility of erroneously and wrongfully depriving
persons of their liberty by committing them to mental
institutions.”” 402 F. Supp. at 1045 (citations omitted);
793a. The stigma and incarceration associated with
mental commitments were found to command the
observance of due process. Recognizing that “[i]n
deciding to institutionalize their children, parents, as
well as guardians ad litem or persons standing in loco
parentis, may at times be acting against the interest of
their children,” the District Court held that parents
“may not effectively waive personal constitutional
rights of their children.” 402 F. Supp. at 1047-1048;
798a.
The District Court held that, before they may be
institutionalized, plaintiffs and their class are entitled to
a probable cause hearing, a post-commitment hearing,
written notice, counsel, and if indigent the right to
appointment of free counsel, a finding by clear and
convincing proof that they are in need of institutionali-
zation, and other rights. 402 F. Supp. at 1053;
810a-81 1a.
The court noted that it did not “intend nor expect
that all of these procedures will be required every time
an attempt to institutionalize a child is made.” 81 la, n.
26; 402 F. Supp. at 1053, n. 26. With the exception of
the rights to notice and counsel, these rights may be
waived by the child (or, in some specified circum-
stances, by counsel) upon approval by the unbiased
tribunal. /d.
17
After the opinion in this case issued on July 28,
1975, and while the District Court had under
consideration the parties’ proposed orders, the Pennsyl-
vania Supreme Court initiated contact with the Federal
Court with regard to the necessity of state court
involvement in future hearings.’* The state court did
not seek any formal involvement’® and, in fact,
expressed appreciation for the opportunity to be
‘involved in the drafting of a final Order” in this
case.'7 The Pennsylvania Supreme Court indicated that
it would provide the hearings contemplated by the
proposed order, stating ““We are aware that perhaps five
thousand hearings or more may have to be conducted
within the next several months, and are preparing to
shoulder that hearing responsibility with full coopera-
tion to your Honorable Court.”’'®
The final order of the Three-Judge Court unani-
mously granting injunctive and declaratory relief was
entered on November 17, 1975 and required the
defendants to “refrain from accepting or continuing the
admission or commitment’ of class members without
the opportunity for hearing.
The court also declared that in the interim until “‘an
alternate neutral tribunal’ was created by the legisla-
ture, the facilities of the state court system should be
used to provide due process hearings.
'SThe full correspondence between the courts is reproduced at
the Appendix below.
16We realize that we are not a formal party to these
proceedings and that our involvement must therefore be
peripheral.” Appendix, infra, letter of October 15, 1975 from
Judge Barbieri to Judge Huyett.
a Fr |
'80Op. cit., supra note 16.
18
Revised Statute
On July 8, 1976, Pennsylvania enacted a statute
which affects a small portion of the plaintiff class.'®
About 80% of the class are retarded, Brief for
Appellants at 48, n. 42, and the revised law does not
affect this group at all; they are still subject to the
statute and regulations determined unconstitutional by
the District Court. For the remaining 20%, the new law
lowers the age for parental commitment from 18 to 14,
thus continuing a procedure identical in operation to
that dealt with by the court below, which was aware of
the legislature’s proposals.”°
SUMMARY OF ARGUMENT
1. It is undisputed in this case that the state must
generally provide substantial due process procedures to
protect persons from erroneous commitment to mental
institutions. Baxstrom v. Herold, 383 U.S. 197 (1966);
Specht v. Patterson, 386 U.S. 605 (1967); Humphrey v.
Cady, 405 U.S. 504 (1972). See O'Connor y.
Donaldson, 422 4J.S. 563 (1975); Chaloner v. Sherman,
242 U.S. 455 (1917); Minnesota ex rel. Pearson y.
'9The relevant portions are reproduced supra at 2-5.
The regulations adopted by the state apply to persons 13
and older. See Brief for Appellants at 9-15 and the Dissent,
814a-823a; 402 F.Supp. at 1054-1055. The revised law, like the
regulations, also includes a procedure whereby, at some indefinite
time after commitment, institutionalization may sometimes be
challenged. The legislature’s proposal for reducing the age for
parental commitment from 18 to 14 is discussed with the
District Court at 240a-241a.
19
Probate Court of Ramsey County, 309 U.S. 270
(1940).
2. It is similarly undisputed here that deprivation of
a juvenile’s liberty by the state for the purpose of
treatment and rehabilitation must be accompanied by
due process procedures which assure accurate fact-
finding. In re Gault, 387 U.S. 1 (1967); McKeiver vy.
Pennsylvania, 403 U.S. 528 (1971).
3. The sole disputed question raised on the merits of
this case is whether the recognized due process
protections apply where the state involuntarily and
indeterminately institutionalizes juveniles in mental
hospitals upon parental application and without notice,
counsel or opportunity for hearing.
4. Confinement in a mental institution deprives
persons of their constitutional “right to liberty,”
O’Connor v. Donaldson, 422 U.S. 563 (1975), by
placing them in a “total institution’ in which every
aspect of their lives is regulated by typically impersonal
authority. The dangers and potential negative effects of
institutional treatment programs are well-known; the
process results in what one of the nation’s foremost
child psychiatrists called, in testimony for the defen-
dants, “an emotional deficiency disease.”
5. Institutions are generally underfinanced, under-
staffed and overcrowded. One study notes that the
common practice of moving institutionalized juveniles
and staff from one ward to another can be devastating;
during a 3% year period, at least 99 different day staff
were on duty with the children being cared for by a
total of 246 different adults. The children were each
moved at least twice and some as many as eighteen
times.
20
6. Children of differing age and disability are
affected in varying ways by the mental health system.
Few infants or young children receive specialized
services; when disturbances are noted, one professional
commentary states, “they are often inaccurately
diagnosed.”” School-age juveniles are more likely to
become involved with the mental health system in
which they may be placed in one of the residential
treatment centers which have sprouted across the
country in recent years. The literally dehumanizing
effects of these facilities are described in a study
written for the federally-supported Project on the
Classification of Exceptional Children, created at the
prompting of former Secretary of Health, Education
and Welfare Elliot L. Richardson:
A situation of special danger arises, however, from
the quality of many residential “treatment cen-
ters,” which are in reality end-of-the-road custodial
placements. Thousands of children have been saved
by authentic, intensive residential treatment. Many
more thousands have probably been sent to death
during life in children’s units of large public
institutions.
7. Stormy adolescence often results in a loss of
control by both parents and children. The conflicts
which develop may lead to parental requests for
assistance to the state’s social sanction systems, juvenile
court or mental health. Just as a large proportion of
juveniles seen in juvenile court might more appropri-
ately be referred to the mental health system, many
young people in menta! hospitals would be appropriate
candidates for delinquency proceedings. If reform
school is the chosen option, the child gets a lawyer
and a hearing; the child gets neither if hospitalization is
21
the choice. “The admission of teenagers to the state
hospitals has risen something like 150 percent in the
last decade. Instead of being helped, the vast majority
are the worse for the experience.’ These are the
conclusions of the Joint Commission on Mental Health
of Children, created by Congress in 1965.
8. Despite common stereotypes, it is not simply the
degree of intellectual and physical impairment which
determines whether a mentally retarded person is
institutionalized. Equally crucial are the extent of
family disorganization, parental attitudes toward child-
rearing and mental retardation, demographic charac-
teristics, availability of community resources and the
professional philosophies of those consulted for advice.
Parents of retarded persons are driven to seek
institutionalization by the state as a means of securing
relief from severe physical and emotional burdens and
because of a lack of finances and adequate community
resources.
9. Across the country, there are thousands of
instances in which it is shocking that institutionalization
was resorted to or in which it was done not to benefit
the child but to benefit the parent or parents. There is
little support for a blanket presumption of proper
medical or parental action.
10. Many children in institutions are there because
of difficulties adjusting to the norms of our society.
The psychiatric diagnosis often applied is “adjustment
reaction” of infancy, childhood or adolescence; this is
attributed to the greater fluidity of all behavior in
juveniles and is characterized by such symptoms as
overactivity, inattentiveness, shyness, feelings of rejec-
tion, oOveraggressiveness, timidity and delinquency.
Difficulty in school, problems with peers, drug use,
22
hostility and temper tantrums are frequent reasons
given for institutionalization of juveniles. The factual
allegations supporting such descriptive conclusions are
often in dispute and, the way the system of parental
commitment operates, there is no available mechanism
to resolve such disputes. Many children are committed
for “delinquent” non-“insane” behavior, or because
parents don’t care, or simply because someone didn’t
know what else to do with them. In a large proportion
of cases, it is not even the parent who initiates the
“voluntary” commitment process. An overworked social
welfare agency, a juvenile court, a relative or others
place dozens of juveniles in institutions acting, in the
language of the statute, in loco parentis.
11. It is clear that some screening process is
necessary. Neither parents nor institutions, much less
welfare agencies, are presently acting to protect the
rights of children in any effective way. It is not
possible, in the mental commitment process, for them
to act in a conflict-free manner.
12. Most juveniles entering the institutional mental
commitment system have never received any psychiatric
treatment before, inpatient or outpatient. Once hospi-
talized, juveniles stay longer than adults; a large
proportion of juveniles are not considered by psychia-
trists to suffer from any major illness. While adults have
benefitted from a national decline in institutionali-
zation, juveniles have not. In 1967, 3% of all persons in
state and county mental hospitals were under 18; in
1973, the under-18 group accounted for 4% of the
total. The percentage drop in total population was 42%
for all ages from 1967 to 1973; for people under 18,
the drop was only 12%. The situation is little better for
the retarded. Of the nearly 200,000 people in
23
residential institutions for the retarded, more than 40%
are minors. Most of these committed persons could
leave the institutions if community services were
available.
13. The United States Constitution protects the
“primary role of the parents in the upbringing of their
children.”’ Wisconsin v. Yoder, 406 U.S. 205, 232
(1971). The law presumes that parents generally act in
good faith for the benefit of their children and, except
in such instances as abuse or neglect, the law will not
interfere with the authority of parents to direct the
rearing of those for whom they are responsible. The
state, as representative of the structure of our society,
asserts an interest in maintaining the integrity of the
family unit and protecting it against limits on the
independence of its functioning. Where parents seek to
use their authority in conjunction with the state and its
laws to institutionalize a child, the child’s right to
liberty conflicts with the parent-state right to control
the child, Whatever powers parents have, they do not
negate the personal constitutional rights — such as the
right to liberty — of children. The constitutional
guarantees familiar in civil commitment proceedings
extend to juveniles.
14. This conclusion is the proper one as this Court,
in cases beginning in 1923, has confirmed that the
Constitution protects all persons, regardless of age, see
In re Gault, 387 U.S. 1 (1967), and has impressed a
constitutional endorsement upon the proposition that
parental authority may be restricted for the benetit of
the child. E.g, Prince v. Massachusetts, 321 U.S. 158
(1944). The Court has approved limitations on parental
powers “if it appears that parental decisions will
jeopardize the health or safety of the child, or have a
24
potential for significant social burdens.” Wisconsin v.
Yoder, 406 U.S. 205, 234 (1971).
15. Most recently, the Court refused to permit
parents an “absolute veto’ over a child’s abortion
decision; in such conflict situations, an impartial forum
to resolve the dispute might be appropriate. Planned
Parenthood of Central Missouri v. Danforth, U.S.
, 44 U.S.L.W. 5197 (July 1, 1976). See also
Bellotti v. Baird, ___._~US. , 44 U.S.L.W. 5221
(July 1, 1976). Other courts have uniformly agreed
that, in the parent-child context, the law must protect
the welfare of children, an interest to which the rights
of parents must yield. Among the many situations in
which parental power has been held properly restricted
are juvenile curfews, drinking age laws, sex education,
blood transfusions, corporal punishment, visitation,
approval of personal injury settlements, organ trans
plants, sterilization and various monetary matters. The
key consideration in all these cases is that society has
an interest — independent of parents — in assuring the
welfare of children. Parents cannot be permitted any
absolute decision-making authority which vitiates their
child’s constitutional rights or results in a potential for
great physical, emotional or social harm to the child.
16. The District Court ordered the defendant state
officials to assure that all juveniles presently committed
without hearings or counsel under the unconstitutional
statutes receive the benefit of “‘accurate fact-finding,”
McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971), in
a state forum. This was a proper order which did not
violate Preiser v. Rodriguez, 411 U.S. 475 (1972) or
Wolff v. McDonnell, 418 U.S. 539 (1973), as the
District Court did not order “actual restoration” of
liberty to plaintiffs but simply required that proper
25
state proceedings be afforded persons who never had
them. This is identical to the relief upheld by this
Court in Gerstein v. Pugh, 420 U.S. 103 (1975).
17. There was no requirement in this case that state
remedies be exhausted prior to plaintiffs seeking federal
relief. Even if there was, there were no state remedies
to exhaust as the state habeas corpus statute relied on
by appellants, on its face, does not apply to the
plaintiff-appellees.
18. Principles of federalism were similarly respected
by the District Court. No state proceedings were
interfered with; the state executive, judicial and
legislative branches are explicitly left free to continue
commitment of juveniles, so long as the procedures do
not violate the Constitution.
19. The appellants argue that the District Court
violated the Eleventh Amendment when it ordered that
persons presently incarcerated unconstitutionally be
provided state procedures to determine whether they
require commitment. The District Court did not award
damages or award “equitable restitution” of funds from
the state treasury; expenditure of funds to implement
the procedural requirements of the decree is incidental
to the constitutionally mandated goal of assuring that
persons are not erroneously incarcerated. Such impact,
held 2delman v. Jordan, 405 U.S. 651, 667-668 (1974),
is not barred by the Eleventh Amendment. “Equitable
restitution’”” of funds directly to plaintiffs, held in
Eldelman to resemble monetary damages, is a far cry
from requiring compliance with procedural due process.
ARGUMENT
PRIOR TO INVOLUNTARY INDETER-
MINATE MENTAL _INSTITUTIONALF
ZATION BY THE STATE UPON PAREN-
TAL APPLICATION, JUVENILES ARE EN-
TITLED TO SUBSTANTIAL PROCEDURAL
PROTECTIONS.
A.The General Right to Due Process Prior to
Mental Institutionalization is Undisputed and
Not at Issue in this Case.
The defendants do not dispute that the state must
generally provide substantial procedures to protect
persons from erroneous commitment to mental institu-
tions:
There can be no doubt that involuntary commit-
ment 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. Specht v.
Patterson, 386 U.S., at 608, 18 L.Ed.2d 527, 87 S.
Ct. 1428 (1967). Commitment must be justified
on the basis of a legitimate state interest, and the
reasons for committing a particular individual must
be established in an appropriate proceeding.
O’Connor v. Donaldson, 422 U.S. 563, 45 L.Ed.2d at
410 (1975) (Chief Justice Burger, concurring). This
Court, in recent years, has consistently upheld claims
by inmates of mental institutions to hearing and other
procedures protective of their constitutional rights.
Baxstrom yv. Herold, 383 U.S. 197 (1966); Specht v.
Patterson, 386 U.S. 605 (1967); Jackson vy. Indiana,
27
406 U.S. 715 (1972); Humphrey v. Cady, 405 U.S. 504
(1972); McNeil v. Director, Patuxent Institution, 407
U.S. 245 (1972).”?
This Court’s deep concern that due process be
afforded to the mentally disabled is by no means newly
conceived. Nearly sixty years ago, in Chaloner y.
Sherman, 242 U.S. 455 (1917), a challenge was made
to state mental incompetency procedures. Speaking for
a unanimous Court, Justice Brandeis declared:
As the plaintiff had notice and opportunity to be
heard at each stage of the proceedings, the
essential elements of due process of law were fully
met, and the court had jurisdiction to enter that
orcer.
242 U.S. at 455. See also Dexter v. Hall, 82 U.S. 9, 25
(1872) (“...a lunatic needs more protection than a
“The lower federal courts have uniformly upheld the
application of due process to mental commitments, mandating
procedures similar or identical to those required by the District
Court here. E. g., Lessard v. Schmidt, 349 F. Supp. 1078 (E.D.
Wis. 1972). (Three-Judge Court), vacated and remanded on other
grounds, 414 U.S. 473 (1974), on remand, 379 F. Supp. 1376
(E.D. Wis. 1974), vacated and remanded on other grounds, 95 S.
Ct. 1943 (1975); Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala.
1974) (Three-Judge Court); Bell v. Wayne County, 386 F. Supp.
1085 (E.D. Mich. 1974) (Three- Judge Court); Dixon v. Attorney
General of the Commonwealth of Pennsylvania, 325 F. Supp.
966 (M.D. Pa. 1971); Heryford v. Parker, 396 F.2d 393 (10th
Cir. 1968); Jn Re Ballay, 482 F.2d 648 (D.C. Cir. 1973); Jn Re
Basso, 299 F.2d 933 (D.C. Cir. 1962); In Re Barnard, 455 F.2d
1370 (D.C. Cir. 1971); Sarzen v. Gaughan, 489 F.2d 1076 (Ist
Cir. 1973); Kendall v. True, 39! F. Supp. 413 (W.D. Ky. 1975)
(lhree-Judge Court); Barry v. Hall, 98 F.2d 222 (DC. Cir.
1938); Doremus v. Farrell, 407 F. Supp. 509 (D. Neb. 1976);
Suzuki v. Quisenberry, 411 F. Supp. 1113 (D. Hawaii 1976).
28
minor.”’ “Both such classes of persons are regarded as
under the protection of the law.’’)
In an attack on Minnesota mental commitment
procedures, this Court, per Chief Justice Hughes, upheld
a statute which provided for a hearing, counsel,
confrontation, a record and the right to appeal,
explaining:
We fully recognize the danger of a deprivation of
due process in proceedings dealing with persons
charged with insanity or, as here, with a
psychopathic personality as defined in the statute,
and the special importance of maintaining the
basic interests of liberty in a class of cases where
the law though “‘fair on its face and impartial in
appearance” may be open to serious abuses in
administration and courts may be imposed upon if
the substantial rights of the persons charged are
not adequately safeguarded at gvery stage of the
proceedings. But we have no occasion to consider
such abuses here, for none have occurred.
Minnesota ex rel. Pearson v. Probate Court of Ramsey
County, 309 U.S. 270, 276-277 (1940).??
In Specht v. Patterson, 386 U.S. 605 (1967), the
Court rejected the notion that individual rights can be
22See Logan v. Arafeh, 356 F. Supp. 1265 (D. Conn. 1972),
aff'd mem. sub nom. Briggs v. Arafeh, 411 U.S. 911 (1973),
where the district court upheld a statute noting that a “judicial
decision after receiving evidence from a general physician and a
psychiatrist in an adversary hearing is fully adequate to safeguard
against involuntary commitment through mistake or abuse.” 346
F. Supp. at 1270. The timing of the hearings in Logan was
justified because of a certification that the committed persons
were “dangerous.” The statutes in the case at bar require only a
finding of “in need of care or observation.” 50 P.S. 4402, 4403.
The recent Mental Health Procedures Act similarly requires a
finding of “in need of treatment.” Section 201, supra at 2.
29
bypassed by labelling a procedure “civil” rather than
“criminal”. Discussing mental commitment proceedings
under the Colorado Sex Offender Act, the Court held,
“These commitment proceedings whether dominated
civil or criminal are subject both to the Equal
Protection Clause of the Fourteenth Amendment as we
held in Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct.
750, 15 L.Ed.2d 620, and to the Due Process Clause.”
Specht, 386 U.S. at 608. See Jn re Gault, 387 U.S. 1
(1967).??
The due process required in mental commitments
today is not unlike that noted by Blackstone in his
Commentaries. Before a person could be declared
retarded (“an idiot’), a writ de idiota inquirendo would
be filed and “tried by a jury of twelve men?’ a
declaration that one was mentally ill (a “lunatic”’) did
not occur until after the lord chancellor, “upon petition
or information, grants a commission in nature of the
234 case strikingly on point is Heryford v. Parker, 396 F.2d
393 (10th Cir. 1968), where a nine year old child was committed
to a training school for the feeble-minded and epileptic. While
the court recognized that this was a different juvenile situation
than in Gault, it reasoned:
But, like Gault, and of utmost importance, we have a
situation in which the liberty of an individual is at stake,
and we think the reasoning in Gault emphatically applies.
It matters not whether the proceedings be labelled “civil”
or “criminal” or whether the subject matter be mental
instability or juvenile delinquency. It is the likelihood of
involuntary incarceration—whether for punishment as an
adult for a crime, rehabilitation as a juvenile for
delinquency, or treatment and training for a feeble-minded
or mental incompetent—which commards of the con-
stitutional safeguards of due process.
396 F.2d at 396.
30
writ de idiota inquirendo, to inquire into the party’s
state of mind.’’*
The pervasive concern has been that no person may
be caused to suffer a loss of liberty—for whatever
reason, including possible psychiatric care—without
stringent decision-making requirements designed to
minimize the ever-present risk of error.?5
B. It Is Undisputed In This Case That Juveniles Are
_ Protected By The Due Process Clause Of the
Fourteenth Amendment
Over the past quarter century, this Court has
developed the thesis that deprivation of a juvenile’s
liberty for the purpose of treatment and rehabilitation
must be accompanied by due process procedures which
assure “‘accurate factfinding.” McKeiver v. Pennsylvania,
403 U.S. 528, 543 (1971). The defendants do not
dispute the correctness of this development.
Haley v. Ohio, 332 U.S. 596 (1948), reversed the
murder conviction of a 15 year old boy who was
arrested at midnight and signed a confession after five
hours of police interrogation. The Court held that
“Neither man nor child can be allowed to stand
*Blackstone, Commentaries on the Laws of England 305
(Wendell, ed., 1852). Just as in Pennsylvania and other states, in
Blackstone’s day, “The legislature, to prevent all abuses incident
to such private custody, hath thought proper to interpose its
authority, by statute [citation omitted] for regulating private
mad-houses.” /d.
For discussion of the special difficulties of reliance. on
psychiatric opinion in this context, see 61-65 infra.
31
condemned by methods which flout constitutional
requirements of due process of law,” 332 U.S. at 601,
and noted: ;
What transpired would make us pause for careful
inquiry if a mature man were involved. And when,
as here, a mere child —. an easy victim of the
law — is before us, special care in scrutinizing the
record must be used.
332 U.S. at 599.
Referring to the unstability and uncertainity of
adolescence, the opinion in Haley explained:
He needs counsel and support if he is not to
become the victim first of fear, then of panic. He
needs someone on whom to lean lest the
overpowering presence of the law, as he knows it,
crush him.
332 U.S. at 600. See Gallegos v. Colorado, 370 U.S. 49,
54 (1962).
The beneficent objectives of juvenile courts provide
no justification for arbitrary denial of procedural rights:
The objectives are to provide measures of guidance
and rehabilitation for the child and protection for
society, not to fix criminal responsibility, guilt and
punishment. The State is parens patriae rather than
prosecuting attorney and judge. But the admoni-
tion to function in a “parental’’ relationship is not
an invitation to procedural arbitrariness.
Kent vy. United States, 383 U.S. 541, 554-555 (1966)
(note omitted). Kent held in no uncertain terms that
juveniles are entitled to vigorous counsel and to
hearings in important matters:
The right to representation by counsel is not a
formality. It is not a grudging gesture to a
ritualistic requirement. It is of the essence of
justice. Appointment of counsel without affording
32
an opportunity for hearing on a “critically
important” decision is tantamount to a denial of
counsel.
383 U.S. at 561.
In In re Gault, 387 U.S. 1 (1967), the Court
observed that the purpose of juvenile facilities was for
the “child to be ‘treated’ and ‘rehabilitated’ and the
procedures, from apprehension through institutionali-
zation, were to be ‘clinical’ rather than punitive.” 387
U.S. at 16. The non-legal benefits of a non-paternalistic
procedure were cited by the Court as it referred to
certain studies relevant to juveniles with difficulties:
They suggest that the appearance as well as the
actuality of fairness, impartiality and orderliness —
in short, the essentials of due process — may be a
more impressive and more therapeutic attitude so
far as the juvenile is concerned.
387 U.S. at 26.
The reasonable doubt standard was extended to
juveniles when /n re Winship, 397 U.S. 358 (1970), was
decided. The Court found, as is urged here, that:
The same considerations that demand extreme
caution in fact finding to protect the innocent
adult apply as well to the innocent child.
Id. at 365.
The Court went on to hold that it matters not that
the purpose of the proceeding is “to save the child”
where a possibly lengthy deprivation of liberty is
involved. 397 U.S. at 365-366. Concurring, Justice
Harlan explained that the need for due _ process
protections resulted from the juvenile’s “‘complete loss
of liberty through a state-imposed confinement away
from his home, family, and _ friends,” and _ the
stigmatization which was involved. 397 U.S. at 374.
on eee
See weet
33
In McKeiver v. Pennsylvania, 403 U.S. 528 (1971),
the Court applied the familiar due process doctrine of
“fundamental fairness” and, referring to Gault and
Winship. stated:
As that standard was applied in those two cases,
we have an emphasis on factfinding procedures.
The requirements of notice, counsel, confronta-
tion, cross-examination, and standard of proof
naturally flowed from this emphasis.
403 U.S. at 543. The result in McKeiver is not so much
a restriction on juvenile rights as a finding that a jury
trial is not “a necessary component of accurate
factfinding.”’ /d.
C. The Disputed Issue Before This Court: Does
Due Process Apply In Mental Institutionaliza-
tion of Juveniles by the State Upon Parental
Application?
When viewed against the background of the undis-
puted legal concepts noted above, it would seem
evident that a due process hearing is required where the
state confines juveniles in mental institutions on
application of their parents. This Court has recognized
that a “lunacy” action against a juvenile is not barred”®
261n Francklyn v. Sprague, 121 U.S. 215 (1887), where a
“lunacy proceeding” was brought in court against a juvenile, this
Court recognized that such actions were proper:
In Shelford on Lunacy it is said: “It seems, that a
commission of lunacy may issue against an infant; but as
the court of chancery has power over infant wards of court
and their estates, such a proceeding seems unnecessary
during the minority of the ward, except under particular
circumstances when the more ample powers given in lunacy
may be required for managing their estates.” In Stock on
Non Compos Mentis, it is also said, that, “infancy is not a
ground for withholding a [commission of lunacy], except in
so far as it renders such a proceeding unnecessary, by
subjecting the infant to another protective power of the
Chancellor.
121 U.S. at 229 (brackets in original).
34
and other courts?” and commentators**® have agreed
that such proceedings are necessary to protect against
27See, e.g., Saville v. Treadway, 404 F. Supp. 430 (M.D. Tenn.
1974); Kidd v. Schmidt, 399 F. Supp. 301 (E.D. Wis. 1975) held
that juvenile mental patients are entitled to preliminary injunction
against parental commitment statutes); J. L. & J. R. v. Parham,
412 F Supp. 112 (M.D. Ga. 1976), stay granted, U.S... 44
U.S.L.W. 3563 (April 5, 1976); Brown v. Allerton, Civil Action
No. 75-0450-R (filed September 12, 1975) (case dismissed on
stipulation that state had amended its statute to provide hearings
in juvenile commitments); Jn re Long, 25 N. Ca. App. 702, 214
S.E.2d. 626 (1975).
22 g., Ellis, Volunteering Children: Parental Commitment of
Minors to Mental Institutions, 62 Cal. L. Rev. 840 (1974); Burt,
Constitutional Rights Of, In, and For Children, 39 Law and
Contemporary Problems 118, 138 (1975):
These constitutional norms call into question any state
program that relies on large-scale, geographically remote,
full-time residential institutions for children, even when
parents agree to such institutionalization. Constitutional
challenges have been mounted, with some success, regarding
conditions in these institutions—essentially to establish a
“right to treatment” in them. But from the perspective
proposed here, the constitutional wrong is not so much the
state’s failure to deliver promised services as the totality of
the state’s claim over every aspect of the lives of children
in these institutions. These institutions—whether for
mentally retarded or seriously emotionally-disturbed or
homeless children—are totalitarian, in both the descriptive
and the pejorative senses of that word. They are
quintessentially the institutions described by Plato and
condemned by the Supreme Court in Meyer: “the offspring
of the inferior, or of the better when they chance to be
deformed, will be put away in some mysterious, unknown
place, as they should be.”
See Tribe, Childhood, Suspect Classification, and Conclusive
Presumptions, 39 Law and Contemporary Problems 8, 11 (1975):
This much, at least, the three puzzles have in common: all
seem easiest to solve when the issue clearly involves the
(continued)
ee ee
35
errors and abuse. What makes this case “difficult and
unique”’?® is the involvement and acquiescence of
parents in the state-imposed confinement of juveniles.
The sole disputed and important question raised here
is whether the recognized Due Process protections apply
equally when the State (and parents) seek institutionali-
zation as when the state seeks institutionalization
without supportive parental involvement. This is the
question raised by the appellants: whether due process
applies at ail, nor the extent of due process.
D. Institutionalization Results in Severe Depriva-
tion of Liberty, Other Dangers, Social Stigma,
Self-Stigmatization and Discrimination.
Institutional commitment to a mental institution
deprives persons of their “right to liberty,” O'Connor vy.
Donaldson, 422 U.S. 563 (1975), by placing them in a
“total institution” in which every aspect of their lives is
regulated by impersonal authority.*°
(footnote continued from preceding page)
exercise of a right we have come to regard as
constitutionally “fundamental,”’ such as the right to bodily
liberty or the right to be heard in one’s own defense.
Childhood need not be destroyed, dissolved, or ignored in
order to recognize that when such a right is at stake, the
general fact of youth alone cannot automatically justify the
right’s abridgement. (emphasis in original)
District Court Opinion, 796a; 402 F. Supp. at 1047.
Goffman, Asylums (1961). As early as 1938, a federal
appellate court recognized the similarities between the situation
of a patient and that of a prison inmate. Barry v. Hall, 98 F.2d
222 (D.C. Cir. 1938). A detailed comparison of the conditions in
a psychiatric treatment center and a state prison—demonstrating
the restrictiveness of the mental institution—is provided in “Brief
(continued)
36
The dangers and potential negative effects of
institutional treatment programs are well-known?’ the
process results in what one of the defendants’ own
witnesses calis ‘an emotional deficiency disease”
(715a). Children classified both “‘retarded’’ and “men-
tally ill’ are subjected — in differing ways — to these
dangers.
1. Children in the Mental Health System.
While adults have benefitted from a national decline
in institutionalization, juveniles have not. In 1967, 3%
(footnote continued from preceding page)
of Donald McEwan, Pro Se” in Katz, Goldstein & Dershowitz,
Psychoanalysis, Psychiatry and the Law 700-702 (1967). See In
re Gault, 387 U.S. 1, 27 (1967). For further discussion of the
nature of mental treatment in the United States, both today and
in the past, see Developments in the Law—Civil Commitment of
the Mentally Ill, 87 Harv. L. Rev. 1190, 1316-1376 (1974);
Deutsch, The Mentally Ill in America (2d ed. 1949); Grob,
Mental Institutions in America: Social Policy to 1875 (1973),
Rothman, The Discovery of the Asylum: Social Order and
Disorder in the New Republic (1971), Kittrie, The Right to Be
Different: Deviance and Enforced Therapy (1971). See also Ellis,
Volunteering Children, supra note 28, 62 Cal. L. Rev. at
841-844.
"Barton, Institutional Neurosis, (2d Ed. 1960); Belknap,
Human Problems of State Mental Hospitals (1956), Gralnick, et
al., “Mental Patients in Transition” in Greenblatt (Ed.), Mental
Patients in Transition, (1961), Schwartz, “Rehabilitation of
Mental Hospital Patients,” Public Health Monograph, No. 17
(1953); Stanton and Schwartz, The Mental Hospital (1954), Wing
and Brown, /nstitutionalization and Schizophrenia, (1970), Vail,
Dehumanization and the Institutional Career, (1966). The trial
testimony herein describes some of the harmful effects of
institutionalization. See testimony of Dr. Ingall at 596a; Dr.
Feiner at 474a - 47Sa.
37
of the 426, 309 persons in state and county mental
hospitals were under 18. In 1973, the under 18 group
accounted for 4% of the 248,518 total. The percentage
drop in tota! patient population was 42% for all ages
from 1967 to 1973; for people under 18, the drop was
only 12%. Dept. of Health Education and Welfare,
NIMH, Statistical Note 113, State Trends in Resident
Patients — State and County Mental Hospital Inpatient
Services 1967-1973, Tables 2, 2a and 4.
Most juveniles entering the institutional mental health
system have never received any psychiatric treatment
before, stay longer than adults,®? and a large proportion
do not suffer from any major “‘illness.”*? While about a
third of juvenile commitments are pursuant to an
involuntary civil commitment, 14% appear to be
admitted under the procedures challenged here>* more
Most juveniles admitted to mental hospitals (53% in 1969)
never before received psychiatric treatment; the figure for all age
admissions is only 38.7%. Dept. of Health, Education and
Welfare, NIMH, Statistical Note 90, Ufilization of Psychiatric
Facilities by Persons Under 18 Years of Age, United States 1971,
Table 9. Once in a public or private mental hospital, juveniles
stay longer than adults. /d. at Table 8.
In 1972, the leading primary diagnosis of juveniles admitted
to state and county mental hospitals was “transient situational
disorders and behavior disorders of childhood and adolescence.”
38% of the 24,677 admissions received this diagnosis. Dept. of
Health, Education and Welfare, NIMH, Statistical Note 111; Age,
Sex, and Color Variations in the Diagnostic Distnixtion of
Admissions to Inpatient Services of State and County Mental
Hospitals, United States 1972, Tables 1a and |b.
“Nationally, 14% of mental hospitals admissions of persons
under 18 are applied for by another person on the minor’s
behalf; 33.4% of the juveniles are admitted by means of an
involuntary civil commitment. Dept. of Health, Education and
Welfare, NIMH, Statistical Note 105: Legal Status of Inpatient
Admissions to State and County Mental Hospitals, United States
1972, Table 1b.
38
non-white juveniles than whites are confined without
the benefit of a civil commitment.**
Few infants or young children are seen in the mental
health system; few specialized services exist for this age
range.*® A major problem in the mental health diagnosis
of very young children is that “When disturbances are
noted, they are often inaccurately diagnosed.’’*”
School-age juveniles are more likely to become
involved with the mental health system in which they
may be placed in one of the residential treatment
centers which have sprouted across the country in
recent years.** The literally devastating effects of these
facilities are described in a study written for the Project
on the Classification of Exceptional Children, created at
the prompting of then Secretary of Health, Education
and Welfare Elliot Richardson:
While 38.2% of white juveniles are admitted under
involuntary civil commitments, only 19% of non-white juveniles
are. White juveniles signed in by another acting in their behalf
are 11.7% of admissions while the percentage for non-whites is
20.8%. Statistical Note 105, supra note 34, at Table ib.
*Cohen, et al., Mental Health Services, in Hobbs (ed.), /ssues
in the Classification of Children, Vol. 1, 88, 91 - 98 ( 1975).
377d. at 97.
*Residential treatment centers (RTC’s) provide inpatient
(residential) psychiatric services for persons under 18 years
diagnosed as emotionally disturbed. Some retarded children may
also be served. “As of January 1974, there were 340 RTC’s in
the United States which maintained a total of more than 19,000
beds....” Dept. of Health, Education and Welfare, NIMH,
Statistical Note 130, Residential Treatment Centers for Emo-
tionally Disturbed Children 1973 - 74 at 2. “The nearly 30,000
children under care in RTC’s during 1973 received over 6.3
million days of care.” Jd. at 3.
39
A situation of special danger arises, however, from
the quality of many residential “treatment cen-
ters,” which are in reality end-of-the-road custodial
placements. Thousands of children have been saved
by authentic, intensive residential treatment. Many
more thousands have probably been sent to death
during life in children’s units of large public
institutions. For example, in custodial mental
hospitals, children with severe developmental
disabilities such as childhood autism often have a
rapid downhill course marked by increasing
isolation, disorganization, and deterioration. Sep-
arated from parents and familiar surroundings,
these children lose their liveliness and apparent
intelligence and succumb to the regimentation and
trauma and lack of care and education. As another
example, children with borderline personalities and
borderline intelligence are often placed in residen-
tial centers because of their aggressive or antisocial
behavior at home. With punitive treatment, peer
socialization into deviance, lack of education, and
the absence of incentives toward normal develop-
ment in many residential institutions, such children
often become incapable of ever fully resuming a
healthy social role.*®
Stormy adolescence often results in a loss of control by
both parents and children.*® The conflicts which
develop*! may result in parental requests for assistance
to the state’s social sanction systems, juvenile court or
%Op. cit., supra, note 36 at 106.
“See Meeks, The Fragile Alliance (1971).
“The defendants’ own witnesses spoke most directly of these
conflicts: Testimony of Dr. Tashjian at 651a-652a, 656a-657a,
668a-669a; Dr. Masterson at 727a-728a (“every parent of every
patient we see can be called unstable”), 732a-734a; Dr. Miller at
785a (“conflict of interests’).
40
mental health. Just as a large percentage of juveniles
seen in juvenile court might more appropriately be
referred to the mental health system,‘? many young
people in mental hospitals would be appropriate
candidates for delinquency proceedings.**
The Joint Commission on Mental Health of Children
described the failure of hospitalization for adolescents:
The admission of teenagers to the state hospitals
has risen something like 150 percent in the last
decade....Instead of being helped, the vast
majority are the worse for the experience. The
usual picture is one of untrained people working
within the framework of long-abandoned theory
(where there is any consistent theory), attempting
to deal with a wide variety of seriously sick
“Lewis, Balla, et al., Psychotic Symptomatology in a Juvenile
Court Clinic Population, 12 Journal of the American Academy of
Child Psychiatry 660 (1973).
“The record herein provides numerous examples. See pages
8-16 supra for descriptions of the delinquent or crimina! bases
for juvenile mental commitments as well as the familiar “status
offenses” such as truancy and incorrigibility. The mental
commitments described took place for both the retarded and for
the mentally ill under the challenged statutes. One study of
adolescents admitted to inpatient psychiatric services over three
years demonstrated that—for the two groups into which the
admissions could be divided, nondelinquent and delinquent—the
first group’s admission to the hospital was judged appropriate.
The delinquent group was judged inappropriately hospitalized
and not “requiring or benefiting from psychiatric intervention, at
least in an inpatient hospital setting.” Weiss & Pizer, Hospitali-
zing the Young: Is it for their Own Good? 54 Mental Hygiene
498 (1970), citing the study, Miller & Kenney, Adolescent
Delinquency and the Myth of Hospital Treatment, 12 Crime and
Delinquency 38 (1966).
41
youngsters and producing results . .. measured by a
recidivism rate that is often 30 to 50 percent, and
occasionally higher.
What we have, in effect, is a state of quiet
emergency, unheralded and unsung, silently build-
ing up its rate of failure and disability and
seemingly allowed to go its way with an absolute
minimum of attention from the public, and
legislators, or the clinical professionals.**
2. The Mentally Retarded Child
Most mentally retarded persons are not confined to
institutions for the retarded; about 75 percent are not
in institutions at all.** It is estimated that more than
200,000 persons, 10 percent of all the retarded, are in
institutions for the retarded.*® Of these, 42 percent are
“Joint Commission on Mental Health of Children, Crisis in
Child Mental Health - Challenge for the 1970's 6 (1970), as
quoted in Hobbs, The Futures of Children 131 (1975). The Joint
Commission on Mental Health of Children was established by the
U. S. Department of Health, Education and Welfare pursuant to
Social Security Amendments, July 30, 1965, Pub. L. No. 89-97,
§231(a){d), 79 Stat., 360. It was composed of “representatives
of leading national, medical, welfare, educational, and other
professional associations, organizations, and agencies active in the
field of mental health of children.” /d. at §213(c).
“SEdgerton, et. al, Mental Retardation System, in Hobbs, ed.,
Issues in the Classification of Children, Vol. 11, 63-64 (1975).
“U.S. Department of Health, Education and Welfare, Mental
Retardation Sourcebook (1972). In 1974, it was estimated that
the total number of residents of public residential facilities was
approximately 176,000. National Association of Superintendents
of Public Residential Facilities for the Mentally Retarded,
Current Trends and Status of Public Residential Services for the
Mentally Retarded: 1974 13 (1975) (hereafter cited “Current
Trends”). This source provides estimates barud on a national
survey of facilities.
42
aged between 3 and 21 years and 3% are under 2.*’
While degree of intellectual and physical impairment
is a factor in determining institutionalization of
retarded individuals, it clearly does not stand alone nor
is it necessarily the most important. Other factors are
the degree of family disorganization, demographic
characteristics, parental attitudes toward childrearing
and mental retardation, availability of community
resources, and the professional philosophies of those
consulted for advice.** “Professional philosophies influ-
ence decisions because patient oriented clinicians are
more likely to give first priority to factors they
consider advantageous to the child, whereas family
oriented clinicians are more likely to base their
recommendations on those which they assume to be
best for the family.’’*®
The record in this case vividly illustrates how the
retarded often find themselves in institutions through
fortuitous and avoidable circumstances. For example,
one institution explained a commitment in this way:
Since maternal grandparents have come to live
with the family, this has presented serious
problems. The maternal grandmother needs con-
stant care but the maternal grandfather has been
unable to help and acts as if he hates everyone.
*7Current Trends, supra note 46, at 7.
“Eg, Eyman, et al, Factors Determining Residential
Placement of Mentally Retarded Children, 76 Amer. J. of Mental
Deficiency 693 (1966); Gralicker, et al, A Study of Factors
Influencing Placement of Retarded Children in a State
Residential Institution, 69 Amer. J. of Mental Deficiency 553
(1965).
Eyman, supra, note 48, at 697.
43
The older sister, , has also had problems in
adjusting to the situation. Mother was said to be
close to a nervous breakdown and could no longer
cope with both and the maternal grand-
mother (35 1a).
Here, no commitment was even contemplated until two
grandparents added to the burden of caring for a
retarded child. It is no wonder that the mother was
close to a breakdown and also no wonder that the
helpless child was institutionalized rather than the
grandparents who would have been entitled to a lawyer
and a hearing for their protection.
Another case:
The father described her as hyperactive, but the
mother said that she was only active. Though the
parents stated that she was well accepted at home,
they felt that now that she is entering pubescence,
it will be better for her to be admitted at this
time. The maternal aunt who had been caring for
her was away and since she was the one against
placement, the parents felt that this was the time
to arrange for placement. The brothers, though
they love , are uncomfortable in her
presence (353a).
Thus, in order to avoid providing their child with birth
control, and in order to evade a responsible relative
who opposed the chiid’s commitment, the hospital and
parents chose to confine their child in an institution.
Parents of retarded persons often resort to seeking
institutionalization by the state as a means of securing
relief from severe physical and emotional strains and
44
because of a lack of finances and adequate community
resources: *°
However, if these parents are “given honest
information about residential and community
alternatives and time to reflect,” most of them
“come to realize that the placement in most
institutions means placing a lid on the child’s
potential by consigning him to custodial care —
sometimes humane but often inhumane by any-
one’s standards. Most good residential schools
(offering education and training as well as care) are
extremely expensive. Most state institutions are
still little more than warehouses which ‘store’
people.’’*!
The particular dangers of institutionalization for the
retarded include a high rate of mortality (generally
higher, especially for the young, than in the com-
munity), an adverse effect on intelligence and an
abnormally high prevalence of personality disorders.**
After the emergence of the first institutions for the
retarded in the United States 120 years ago in an
See, e.g., Justice, et al., Problems Reported by Parents of
Mentally Retarded Children - Who Helps?, 75 Amer. J. of Mental
Deficiency 685 (1971). Lack of community services was the
reason for 50 percent of readmissions to institutions for the
retarded in 1973-1974. Current Trends, supra, note 46, at 20.
“Community rejection” was found to be the cause for 22
percent of such readmissions. /d. If appropriate community
services were available, 52 percent of the retarded in institutions
could leave according to superintendents’ own estimates. The
percentages are higher for the borderline (98%), mild (86%) and
moderate (81%) levels of retardation. Current Trends, supra, at
23.
‘'Hobbs, The Futures of Children 142 (1975) (citation
omitted).
*2Studies discussed in Edgerton, et al., supra, note 45.
45
atmosphere of optimism, the facilities failed to fulfill
their expectations for cure or rehabilitation. By 1880,
the earlier prevention model was succeeded by a “pity
model” which supported the provision of custodial care.
By the turn of the century and with the development
of the eugenics movement,** a societal image of the
retarded as a danger and a menace to society become
fixed.** As one commentator notes:
...Many of our institutions, to this very day,
operate in the spirit of 1925 when inexpensive
segregation of the scarcely human retardate was
seen as the only feasible alternative to combat a
social menace. I am not proposing that this view is
still held; | am proposing that most institutions
function as if this view were still held.**
This brief exposition demonstrates the invalidity of the
defendants’ view that the institutionalized retarded
should somehow be treated differently from the
mentally ill.**
3Sée Buck v. Bell, 274 U.S. 200(1927), upholding a statute
growing out of this movement.
“For an analysis of this historical development, see
Baumeister, The American Residential Institution: Its History
and Character in Baumeister and Butterfield, eds., Residential
Facilities for the Mentally Retarded (1970); Kugel & Wolfens-
berger, eds., Changing Patterns in Kesidential Services for the
Mentally Retarded (1969).
‘SWolfensberger, The Origin and Nature of Our Institutional
Models, in Kugel and Wolfensberger, supra, note 54, at 129
(emphasis in original).
Brief for Appellants at 48. The defendants state that in
Pennsylvania, “approximately eighty percent of institutionalized
juveniles are mentally retarded.” Jd. Note that the new statute
does not apply at all to this portion of the plaintiff class. See
Section 502, at 5 supra.
46
3. Institutional Life
Institutions are generally underfinanced, understaffed,
and overcrowded.*’ One study notes that the practice
of moving institutionalized juveniles and staff from one
unit to another can be devastating; during a 3% year
period, at least 99 different day staff were on duty
with the children being cared for by a total of 246
different adults. The children were moved at least twice
and some as many as 18 times.*®
*"Hobbs, supra, note 51, at 127-128. Provost Nicholas Hobbs
notes in his report:
Most public institutions are grossly and chronically
underfinanced (Kugel, 1969). During 1966 and 1967 the
per diem costs in United States institutions (except in
Alaska) ranged from about $3 to $12 per person (U.S.
Department of Health, Education, and Welfare, 1968). In
stark contrast, five of the largest United States zoos were
spending, in a comparable period, an average of over $7 for
their large animals (Kugel, 1969, p. 3). Further, in 1966,
general hospital care cost more than $40 per day
(Butterfield, 1969, p. 18).
Overcrowding is commonplace. Many residential facilities
have as many as 25 to 50 percent more residents than they
were intended to serve. Buildings that are old and poorly
designed also create problems. For instance, lavatory and
toilet facilities are often poorly maintained and may even
be nonfunctioning. Ancient facilities may make it difficult
if not impossible to prepare food in a sanitary fashion; and
climate control may be so inadequate as to leave buildings
either too hot or too cold (Kugel, 1969, pp. 405; Blatt and
Kaplan, 1967). Equally inadequate are modem complexes
of steel, chrome, and glass, when human caring is absent.
Tizard, The Role of Social Institutions in the Causation,
Prevention and Alleviation of Mental Retardation, in Haywood,
Social-Cultural Aspects of Mental Retardation (1970). See In re
Gault, 387 U.S. 1 (1967).
47
Nicholas Hobbs, in his report volume of the
HEW-sponsored Project on Classification of Exceptional
Children, describes how the process of institutionali-
zation can “make children sick:”
Go to a big state mental hospital in almost any
state and ask to visit the children’s ward. If you
are allowed to visit, you will find people, children
and staff alike, caught up in a no-exit game.
Patients and staff play their roles, each defined by
the other, both prescribed by elaborate regulations
and procedures that serve one purpose: to
maintain the stability of the institution. Most of
these institutions are so large, so unwieldy, so
antiquated in design, so poorly staffed, so
burdened with the miseries of man that everyone
involved must devote most of his energies to
maintaining a steady-state situation. The metaphor
of illness rules. Change in or deviation from role
requirements cannot be tolerated. Apathy goes
unnoticed. Precise adherence to role expectation is
praised and rewarded, while deviations and serious
efforts to change the system are punished. In such
a setting, hospitals can indeed make children
sick.*?
As the discussion above indicates,®° institutionalization
is an extreme deprivation of liberty for both the
retarded and the mentally ill It is typically dehu-
manizing and often dangerous. The consequences of a
mistaken commitment of a child are enormous. As the
District Court noted, “‘Neither the state nor plaintiffs
have an interest in committing to mental institutions
children not in need of institutionalization.” 402 F.
Supp. at 1050; 803a.
° Hobbs, supra note 51, at 130.
See pages 35-47 supra.
48
4. Stigma and Discrimination
Severe social stigma, self-stigmatization, job and
license discrimination also result from the experience of
commitment to a mental institution.*' This is no less a
probelm simply because a parent volunteered the child;
parental commitment requires a certification of the
juvenile as mentally disabled just as does an adminis-
trative or judicial commitment. It is the fact of
institutionalization, rather than the manner, which
stigmatizes.*°?
The “stigma associated with civil commitment”
found by the District Court, 795a; 402 F. Supp. at
1046, affects both the mentally ill®* and the retarded.“
“See Testimony of Dr. Kandler at 574a-575a and Dr.
Messinger at 622a. See also Lessard v. Schmidt, infra note 63.
*?Unfortunately, there is a stigma being attached to being in
a hospital, which would be another reason why all care ought to
be taken before this type of drastic step be taken. I never heard
the fact that a judge or attorney being involved in a proceeding
increases that stigma.’ Testimony of Dr. Kandler at 574a-57Sa.
Seg, In re Ballay, 482 F.2d 648, 668 (D.C. Cir. 1973);
Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated
and remanded, 414 U.S. 473 (1974), on remand, 379 F. Supp.
1376 (E.D. Wis. 1974), vacated and remanded 95 S. Ct. 1943
(1975); Braginsky, et al, Methods of Madness: The Mental
Hospital as a Last Resort (1969). See Testimony of Dr. Ingall at
596a and Dr. Miller at 70Sa.
“Pennsylvania Association for Retarded Children v.
Commonwealth of Pennsylvania, 343 F. Supp. 279, 293-295
(E.D. Pa. 1972); Edgerton, The Cloak of Comnetence: Stigma in
the Lives of the Mentally Retarded (1967), Braginsky &
Braginsky, Hansels and Gretels: Studies of Children in Institu-
tions for the “Mentally Retarded” (1971). The defendants’
assertion in their brief that the mentally retarded are somewhat
insulated from stigma is totally without foundation.
49
The Due Process Clause protects the plaintiffs here
because the injury to their standing and reputation does
not stand alone but is associated with the deprivation
of liberty and other harms which flow from mental
commitment. See Wisconsin v. Constantineau, 400 U.S.
433 (1971). Cf Paul v. Davis, U.S. _._., 44
U.S.L.W. 4337 (1976).
E Parental Powers Are Limited for the Protection
of Children.
Under Pennsylvania law, while a parent or guardian
on behalf of a juvenile may apply for commitment,
only the institutional representative can commit.**
Counsel for defendants has emphasized that, regardless
of the parents’ wishes, “the institution still will have
the ultimate say in whether or not that child is
institutionalized based upon their independent deter-
mination — psychiatric determination” (243a).
The defendants argue that this involvement of
parents or guardians is sufficient ground to negate the
otherwise conceded right of juveniles to due process in
mental commitment proceedings. The parental powers
authorized by law are so encompassing, it is argued,
that the juveniles’ rights must yield. The rationale of
numerous decisions of this Court indicates otherwise.
A significant number of juvenile commitments are initiated
not by their parents but rather by social welfare agencies,
relatives or courts (310a-313a). The recent statute still permits
such parental involvement with state commitment. As the
defendants’ counsel told the District Court, under the revision,
“under age 14, he would again be admitted or committed by his
parent or the person standing in locus parentis” (241a).
50
In cases beginning in 1923, this Court has examined
the extent to which the Constitution affects the rights
of children and the triangular relationship of parent-
child-state. The Court has confirmed that the Consti-
tution protects all persons, regardless of age, and has
impressed a constitutional endorsement upon the
proposition that parental authority may be restricted
for the benefit of the child.
Meyer v. Nebraska, 262 U.S. 390 (1923), involved
what the Court later called “children’s rights to receive
teaching in languages other than the nation’s common
tongue.” Prince v. Massachusetts, 321 U.S. 158, 166
_ (1944). In Meyer, a state law restricting the use of
foreign languages in schools was struck down and the
Court declared the familiar principle that state interests
must often yield to individual rights:
That the State :nay do much, go very far, indeed,
in order to improve the quality of its citizens,
physically, mentally and morally, is clear; but the
individual has certain fundamental rights which
must be respected.
262 U.S. at 401.
Two years later, when a criminal law requiring
parents to send children to public schools was
challenged, it was only after noting the contention that
the law violated “the right of the child to influence the
parents’ choice of a school,” Pierce v. Society of
Sisters, 268 U.S. 510, 532 (1925), that the familiar
gloss was made that the law
unreasonably interferes with the liberty of parents
and guardians to direct the upbringing and
education of children under their control.
Id. at 534-535.
$1
However, the possible breadth of this language in
Pierce was substantially limited in Prince v. Massachu-
setts, 321 U.S. 158 (1944), when the Court upheld
restrictions on the rights of guardians and supported
certain regulation of family interests:
But the family itself is not beyond regulation in
the public interest, as against a claim of religious
liberty. [citations omitted] And neither rights of
religion nor rights of parenthood are beyond
limitation. Acting to guard the general interest in
youth’s well-being, the state as parens patriae may
restrict the parent’s control by requiring school
attendance, regulating or prohibiting the child’s
labor and in many other ways.
Id, at 166 (notes omitted). Thus, in upholding a child
labor law against the Jehovah’s Witness guardian of a
nine year-old girl, the Court in Prince expressed the
very interest that plaintiffs herein seek recognition of:
It is the interest of youth itself, and of the whole
community, that children be both safeguarded
from abuses and given opportunities for growth
into free and independent well-developed men and
citizens.
321 U.S. at 165.%
“The case of Ginsberg v. New York, 390 U.S. 629 (1968),
upholding the constitutionality of a New York criminal obscenity
law prohibiting the sale to minors under 17 of material obscene
to minors, is not contrary authority. First, Ginsberg dealt with
obscenity which is not constitutionally protected; the liberty of
the juveniles in the case at the bar, on the other hand, is subject
to constitutional protection. Second, the Court recognized the
narrowness of the issue before it when it declared that it was not
considering
the impact of the guarantees of freedom of expression
upon the totality of the relationship of the minor and the
State, cf. In re Gault, 387 U.S. 1, 13.
(continued)
52
In Tinker v. Des Moines Independent School District,
393 U.S. 503, 506-507 (1969), young persons were
held protected by the First Amendment in their school
protest against the Vietnam War. The Court declared:
Students in school as well as out of school are
“persons” under our Constitution. They are
possessed of fundamental rights which the State
must respect, just as they themselves must respect
their obligations to the State.
393 U.S. at 511.
Wisconsin v. Yoder, 406 U.S. 205 (1971), held that
Amish parents could not constitutionally be convicted
of violating a compulsory school attendance law when
children 14 and 15 years old did not attend until age
16 as the law required. Although indirectly supporting
parental interests in the upbringing of children, the
Court specifically did not reach the question of what
would happen if the state and parents were aligned
against the child. 406 U.S. at 231-232 (opinion by
Chief Justice Burger) and 406 U.S. at 237 (Justice
Stewart, with Justice Brennan concurring). Limitations
on parental powers continued to receive approval; such
regulation is proper
if it appears that parental decisions will jeopardize
the health or safety of the child, or have a
potential for significant social burdens.
406 U.S. at 234.
(footnote continued from preceding page)
390 US. at 630. Third, the Court held only that the
Constitution supports the parental “claim to authority in their
own household” to direct the rearing of children, 390 U.S. at
639 (emphasis added); this cannot be read as authority for
absolute discretion outside the household and, indeed, the Court
held that the state must protect children from abuses, 390 U.S.
at 640.
53
The extent of control over juveniles granted by the
law to parents and guardians is broad enough to provide
appropriate deference to the “importance of the
family,’ Stanley v. Illinois, 405 U.S. 645, 651 (1972),
in our society, but narrow enough to protect the
independent personal interests of the most powerless of
the family’s members.°’
In the recent abortion decisions, parental “absolute
power” to overrule an abortion decision was found
improper where the juvenile and parent ‘are so
fundamentally in conflict and the very existence of the
pregnancy already has fractured the family structure.”
Planned Parenthood of Central Missouri v. Danforth,
U.S. , 44 U.S.L.W. 5197, 5204 (July 1,
1976). The state’s interest in safeguarding the family
unit and parental authority do not outweigh the rights
of the juvenile. /d. It is the “absolute limitation on the
minor’s right,” /d., 44 U.S.L.W. at 5208 (Concurring
opinion of J. Stewart, with J. Powell), with no
provision for “judicial resolution of any disagreement,”
Id., which causes the greatest risk of harm to the
juvenile and involves the least benefit to legitimate state
interests. See Bellotti v. Baird, U.S. , 44
U.S.L.W. 5221 (July 1, 1976).
While the above cases may be seen as supporting a
presumption in favor of parental prerogatives,®* this
*’Dr. Joel S. Feiner testified that “...the child has some
intrinsic vulnerability based upon the fact the child is dependent
to begin with, the child is more controllable in certain ways, the
child is also often a newcomer to the setting, the last to be
present in this little system. . .” (472a).
“See generally Burt, Developing Constitutional Rights Of, In
and For Children, 39 Law and Contemporary Problems 118
(1975). In none of the cited cases except Bellorti and Danforth
was there any indication that the parents’ and children’s views
were in conflict or that the state was acting with the parent in
ways that might be detrimental to the child.
54
presumption is overcome where the state acts with
parents to impose serious deprivations upon juveniles.
As our law has developed, despite legitimate hesita-
tion,®® society’s interest in the protection of children
has necessitated narrowly-drawn limitations on the
individual interests of parents.’°
Other courts have uniformly agreed that, in the
parent-child context, the law as parens patriae must
protect the welfare of children, an interest to which the
Tenderness of the individual interests of parents, since legal
interference in family relations touches individuals in a
particularly sensitive spot, has induced hesitation in changing the
established rules, even where reasons for change were evident.”
Pound, /ndividual Interests in the Domestic Relations, 14 Mich.
L. Rev. 177, 187 (1916) (note omitted).
In 1916, Roscoe Pound described the historical process
referred to:
Mere statement of the claims which parents may make with
respect to or against children makes it evident that certain
other interests must be weighed against these individual
interests of parents. Under more primitive social conditions
the group interests of the family or kindred largely dictated
the legal delimitation of parental and filial interests. In
modern times the individual interests of the child came to
be given greater weight. Today certain social interests are
chiefly regarded. These are on the one hand a social
interest in the maintenance of the family as a social
institution and on the other hand a social interest in the
protection of dependent persons, in securing to all
individuals a moral and social life and in the rearing and
training of sound and well-bred citizens for the future. The
parent’s claim to custody of the child and to control over
its bringing up has come to be greatly limited in order to
secure these interests.
Id. at 182 (note omitted).
55
rights of parents must yield.”’ Among the many
situations in which parental “‘rights’’ and “powers” have
been held properly restricted are juvenile curfews,”
drinking age laws,” sex education,” blood trans
fusions,”* corporal punishment,”* visitation,’’ approval
of personal injury settlements, abortion,” organ
™The issue arises most often in custody cases. F.g., Holtsclaw
v. Mercer, 145 F.2d 388 (D.c. Cir. 1944); Langan v. Langan, 150
F.2d 979 (D.C. Cir. 1945); Bartlett v. Bartlett, 221 F.2d 508
(D.C. Cir. 1954). See In re Stuart, 114 F.2d 825 (D.C. Cir.
1940) (right of parents to control upbringing of children not
absolute); Newton v. Burgin, 363 F. Supp. 782 (W.D. N. Ca.
1973) (Three-Judge Court), affd, 414 US. 1139 (1974)
(parental constitutional right to control children can be limited
by statute).
"Bykofsky v. Borough of Middletown, 401 F. Supp. 1242
(M.D. Pa. 1975).
Republican College Council of Pennsylvania v. Winner, 357
F. Supp. 739 (E.D. Pa. 1973) (Three- Judge Court).
™Cornwell v. State Board of Education, 314 F. Supp. 340
(D.Md. 1969), affd., 428 F.2d 471 (8th Cir. 1970), cert. den.
400 U.S. 942 (1970).
People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d
769 (1952), cert. den., 344 U.S. 824 (1952); State v. Perricone,
37 NJ. 463, 181A.2d 751 (1962), cert. den., 371 U.S. 890
(1962).
Ware v. Estes, 328 F. Supp. 657 (N.D. Tex. 1971), affd.,
458 F.2d 1360 (Sth Cir. 1972), cert. den., 409 U.S. 1027
(1972).
™Comm. ex rel. Heston v. Heston, 98 A.2d 477, 173 Pa.
Super. 260 (1953); Surrey v. Surrey, 144 A.2d 421 (D.C. Mun.
App. 1958).
Rafferty v. Rainey, 292 F. Supp. 152 (E.D. Tenn. 1968).
In re Smith, 295 A.2d 238, 16 Md. App. 209 (1972)
(mother cannot compel daughter to submit to abortion).
56
transplants,®° sterilization,* and monetary matters.*?
The key consideration in all these cases is that society
has an interest — independent of parents — in assuring
the welfare of children. Where the state is involved and
there is a potential for conflict in the interests of
parents and children, the law provides independent
representation for the child.**
When viewed in terms of its nature and potential for
harm, application for mental institutionalization of a
child (whether the commitment is erroneous or not) is
an event at an extreme end of the continuum of
decisions made by a parent or guardian.** The pressured
S°Hart v. Brown, 289 A.2d 385, 29 Conn. Sup. 368 (1972).
8! Frazier v. Levi, 440 S.W.2d 393, 394 (Civil App. Tex.
1969).
S2Filis vy. Massenburg, 126 N.C. 129, 35 S.E. 240 (1900)
(action to set aside deed); White v. Osborne, 251 N.C. 56, 110
S.E.2d 449 (1959); Babcock yv. Fisk, 327 Mich. 72 (1950)
(control of publicly raised funds).
83See, e.g, cases cited at notes 71-82 supra. One authority has
observed that parents, the state and childcare agencies do not
have a “conflict-free interest in representing the child.”
Goldstein, Freud & Solnit, Bevond the Best Interests of the
Child 66 (1973).
This Court has had frequent experience with cases in which
the property rights of minors have been protected by
representation independent of the guardian. /nsurance Company
v. Bangs, 103 U.S. 435 (1880); United States v. Dunn, 268 U.S.
121 (1925); Clarke v. Clarke, 178 U.S. 186, 193-195 (1900). See
also United States v. Equitable Trust Company of New York,
283 U.S. 738 (1931) (in lower courts, one court-appointed
guardian acted to protect mentally incompetent person from
actions of wife and another court-appointed guardian).
“But see Respublica v. Keppele, 2 U.S. 197 (1793) (Pa. Sup.
Ct.), for a more extreme situation, holding that a parent could
not bind a child as a servant.
57
context in which such a decision is made and the
tremendous implications of such a decision combine to
make imperative strict limits on any exercise of
‘absolute power” by any authority.
The expert witnesses for all parties agreed that
families seeking commitment of allegedly handicapped
children are characterized by severe stress, disharmony
and dislocation.** The problems of children are a
function of intrafamilial problems and exist in the
context of a weakened family structure with conflict
overtly expressed.*® The juvenile behavier which
precipitates institutionalization may be provoked b_ the
parents; there are also many cases where the child may
be driven to such behavior by the conflicts at hormie.*®’
See Testimony of Dr. Kandler at 543a, 553a-5S4a,
$70a-571a; Dr. Ingall at 588a-590a (intrafamilial conflict; child as
scapegoat), 60la; Dr. Messinger at 616a-619a; Dr. Tashjian at
651a-652a, 656a-657a; Dr. Masterson at 727a-728a, 733a-734a.
E.g., Alanen, The Family in the Pathogenesis of Schizophrenia
and Neurotic Disorders, 24 Acta Psychiatrica et Neurologica
Scandinavica, Suppl. 189 (1966); Lidz, et al., Schizophrenia and
the Family (1966); Lidz, et al., The Intrafamilial Environment of
Schizophrenic Patients. II. Martial Schism and Marital Skew, \14
Amer. J. of Psychiatry 281 (1957). See generally Fleck, Some
Basic Aspects of Family Pathology, in Wolman, ed., Manual of
Child Psychopathology 189 (1972). For similar findings regarding
the retarded, see authorities cited at notes 45, 48 and 50 supra.
*See Testimony of Dr. Ingall at 588a, 610a; Dr. Messinger at
616a-619a; Dr. Masterson at 733a-734a; Dr. Tashjian at
668a-669a; Dr. Feiner at 467a-469a, 471a-472a, SOla-502a. See
authorities cited note 85 supra; Wohlman, Family Dynamics and
Schizophrenia, 6 J. of Health and Human Behavior 147 (1965);
Wohlman, Children Without Childhood: A Study in Childhood
Schizophrenia (1970).
®7See Testimony of Dr. Masterson at 733a; Dr. Feiner at
468a. One court which noted the possibility that a “breakdown
in parental control” of a child could result from failings in the
(continued)
58
The record in this case indicates that parents will
often seek to institutionalize children for improper
reasons. This stems from honest mistakes, ignorance,
lack of community resources or sometimes from malice
or ill will.** In a significant numbers of cases, the
parental purpose of bringing a child to treatment “has
been to accuse him, to punish him, to separate him
from the home. The motivation is not always good.”’*®
Experts for both plaintiffs and defendants were in
agreement that parents are not particularly good
observers of children’s behavior and symptoms and,
especially with the high feelings that run in conflict
situations, parents are not reliable sources of factual
information about the child and his or her behavior.*°
Parents who bring their child to psychiatrists seeking
care “‘can’t be objective reporters” of the behavioral
background of the child.?! Parents often exaggerate and
(footnote continued from preceding page)
parent rather than in the minor, required inquiry into
“intra-family parent-child conflict.” In re Henry G., 28 C.A.2d
276, 284-285, 104 C.R. 585 (1972), describes the issue in this
way:
The Fourth Commandment is still an integral part of the
beliefs of our society. It is one thing, however, to say that
a teen-age minor has struck the parent—it is another thing
if that striking is done in self-defense and in response to
traumatic situations initiated by the parent.
88See Testimony of Dr. Kandler at 543a, 553a-554a; Dr.
Miller at 685a (“conflict of interest between adolescents and
their parents”). See notes 45, 48 and 50 supra.
Testimony of Dr. Ingall at 60la.
See Testimony of Dr. Masterson at 733a; Dr. Kandler at
543a; Dr. Ingall at 592a, 601a; Dr. Sugar at 401a.
"Testimony of Dr. Feiner at 478a. See Testimony of Dr.
Messinger at 623a-624a.
59
misinterpret the actions of their children and may often
react antagonistically to their children.”?
The decision of the lower court that parents’
interests do not negate the rights of their children in
the mental commitment context was manifestly cor-
rect.°? Where parents in this conflict situation apply to
See Testimony of Dr. Sugar at 404a-408a. For the particular
pressures on parents of the retarded, see authorities cited at
notes 45, 48 and 50 supra. See also notes 85-87 supra.
401 F. Supp. at 1048; 798a. The District Court and the
defendants approach the issue as one of parental power to
“waive” children’s rights. While the result is the same, plaintiffs
do not believe that the constitutional concept of waiver is
relevant in this conflict situation. There is no case in which
parents have been found to have waived the constitutional rights
of their children or not to have waived them. Gault discussed the
issue of waiver with the Court noting that problems might arise
“depending on the age of the child and the presence and
competence of th» parents.” 387 U.S. at 55. See Heryford v.
Parker, 396 F.2d 393, 396 (10th Cir. 1968) (issue described but
not decided).
In plaintiffs’ view, the critical question is whether juveniles
can be deprived of their rights by the state, acting on parental
application. As Judge Urbom held in Horacek v. Exon, Civil
Action No. 72-L-299 (D. Neb., Memorandum and Order of June
4, 1974), cited by the District Court at 797a:
Equating the plaintiffs with their parents will not do. Such
an elementary example as parental child abuse is enough to
illustrate that a child has rights a parent cannot take away.
Without detailed explanation, I simply hold that parents
cannot deprive their children of constitutional rights—rights
of the children vis-a-vis the state.
This approach is consistent with that followed by this Court
in the parental consent to abortion cases where the effect of
parental powers on children’s rights was assessed without the
(continued)
60
the state for confinement of their children in residential
mental institutions,** the “fundamental fairness’”’ of due
(footnote continued from preceding page)
need to inquire into parental competence to “waive” the rights
involved. See Danforth and Bellotti, supra at 53.
Should the Court undertake to consider the waiver issue,
plaintiffs submit that parental application for state commitment
without more cannot be considered a valid waiver of a child’s
rights to counsel and an opportunity to be heard. A waiver of
constitutional rights must be made “voluntarily, knowingly and
intelligently.” Miranda v. Arizona, 384 U.S. 436 (1966). There
must be an “intentional relinquishment or abandonment’ of a
fully known right.” Jn re Gault, 387 U.S. 1, 42, quoting Johnson
v. Zerbst, 304 U.S. 458, 464 (1938).
A valid waiver may not be presumed from the silence of the
person involved. Miranda v. Arizona, supra; In Re Gault, supra,
387 US. at 34. In cases involving juveniles, even apparent
waivers have been invalidated. E.g., Halev v. Ohio, 332 U.S. 596,
601 (1948).
Most parents would no doubt prefer not to institutionalize
their children if they had the means to actualize alternatives.
Where the desire to institutionalize is formulated, it is by no
means certain (as defendants assume) that parents would oppose
a due process hearing to protect their child. In the case at bar,
the District Court suggested that parents’ views be represented by
the involvement of an organization of “parents of either retarded
or mentally disturbed children...[as] an appropriate class
action defendant” (234a). The state defendants initially opposed
such parental representation arguing that it is the mental
institution that has “the ultimate say in whether or not that
child is institutionalized” (243a). In view of the Court’s request,
the defendants agreed to cooperate with the plaintiffs and dozens
of contacts resulted in only one parent group joining the
litigation. The Pennsylvania Association for Retarded Citizens
filed a brief supporting the plaintiffs (4a).
61
process requires, at the least, notice, counsel and an
opportunity to be heard.**
F. Reliance Upon Psychiatrists Alone to Au-
thorize Commitments is Misplaced.
The state defendants argue that the decision to
confine a person in a mental institution is a medical
one, accomplished for the benefit of the child, and that
therefore a due process hearing is not required; mere
approval by psychiatrists should suffice.*®
Accord, J.L..& J.R. v. Parham, 412 F. Supp 112, (M.D. Ga.
1976), stay granted, ___ U.S. ___ , 44 U.S.L.W. 3563 (April 5,
1976); Kidd v. Schmidt, 399 F. Supp. 301 (E.D. Wis. 1975) Guve-
nile mental patients held entitled to preliminary injunction against
parental commitment statute); Saville v. Treadway , 404 F. Supp.
430 (M.D. Tenn. 1974); Jn re Long, 25 N.Ca.App. 702, 214 S.C.2d
626 (1975). See Jn ze Sippy, 97 A.2d 455 (D.C. Mun. App. 1953,
in which a mother sought to have her teenage daughter committed
to a psychiatric facility, the Devereaux School, an amicus herein.
The court found that the mother’s interests were “antagonistic or
at least sharply opposed” to the daughter’s and held that it was
error to permit the mother’s attorney to represent the child. See
also New York State Association for Retarded Children v.
Rockefeller, 357 F. Supp. 752, 762 (E.D.N.Y. 1973); Melville v.
Sabbatino, 30 Conn. Supp. 320 (Super. Ct. 1973).
While the defendants at times appear to argue that parental
discretion is unfettered in the institutionalization context, they
rely on the institution’s acceptance of the commitment
application as the “fail-safe” to protect the juvenile’s rights.
Thus, the defendants appear to have fully abandoned their .
argument to the District Court that due process does not apply
at all to this situation. 791a-793a, 402 F. Supp. at 1044-1045.
62
A mental commitment authorized by state law is
without question a variety of deprivation which falls
within the “liberty” clause of the Fourteenth
Amendment, O'Connor v. Donaldson, 422 U.S. 563
(1975), and substantial procedural protections must
accompany such a deprivation.*” The magnitude of the
state action, taken together with both the dangers
inherent in commitment and the risks of error, demand
a rigorous “emphasis on fact-finding procedures.”
McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971).”
See Specht yv. Patterson, 386 U.S. 605 (1967);
Baxstrom v. Herold, 383 U.S. 107 (1966).
Mere approval by two psychiatrists®® cannot support
a commitment to a mental institution. Dixon vy.
Attorney General of the Commonwealth of Pennsyl-
vania, 325 F. Supp. 266 (M.D. Pa. 1971). —
Certainly, the state of the art of psychiatry is not
such that the confinement of tens of thousands of
persons should be left to the judgement of these
practitioners alone. This field is beset with “‘uncertainty
of diagnosis’”’ and “tentativeness of professional judge-
*7See cases cited supra at note 21.
This case does not involve “second-guessing a medical
diagnosis” or interference with the provision of standard medical
care to juveniles. Brief for Appellants at 42. It is only when
medical recommendations result in a deprivation of liberty,
non-medical risks and imposition of stigma that, as in the case at
bar, the protections of due process are triggered.
This is what is required by the regulations supported by the
defendants and rejected by the District Court.
63
ment.” Greenwood vy. United States, 350 U.S. 366
(1956).'*
Mental illness is defined by the user of the term and
that definition depends upon the norms empleyed by
the definer:
And, because of the unavoidably ambiguous
generalities in which the American Psychiatric
‘One important study showed that diagnoses of psychiatric
residents were highly influenced by the imagined socio-economic
status of the patient and by the perceived diagnosis of other
psychiatrists independent of the clinical picture presented. Lee &
Temerlin, Social Class, Diagnosis and Prognosis for Psycho-
therapy, in Psychotherapy: Theory, Research and Practice \8|
(1970). See Ennis & Litwack, Psychiatry and the Presumption of
Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693
(1974), for a full review of the literature and the legal
implications. Among the studies which support the above
proposition include: Beck, Reliability of Psychiatric Diagnoses: A
Critique of Systematic Studies, 119 Amer. J. of Psychiatry 210
(1962); Chesler, Women and Madness, (1972) (Chapter 2
“Asylums”’); Edelman, /ntra-Therapist Diagnostic Reliability, 25
J. of Clin. Psychology 394 (1969); Goldbert & Werts, The
Reliability of Clinicians’ Judgements: A Multi-Trait—Multi-
Method Approach, 30 J. of Consulting Psychology 199 (1966);
Katz, Cole & Lowery, Studies of the Diagnostic Process: The
Influence of Symptom Perception, Past Experience and Ethnic
Background in Diagnostic Decisions, 125 Amer. J. of Psychiatry
937 (1966) (44 experienced psychiatrists viewed a filmed
interview with a patient. 17 saw the person as psychotic, 26 saw
the patient as nonpsychotic. When British and American
psychiatrists were compared, the British saw less pathology),
Pasamanik, Divity & Lefton, Psychiatric Orientation and Its
Relation to Diagnosis and Treatment in a Mental Hospital, 116
Amer. J. of Psychiatry 127 (1959); Rosensweig, et al, A Study
of the Reliability of the Mental Status Examination, 117 Amet.
J. of Psychiatry 1102 (1961).
64
Association describes its diagnostic categories, the
diagnostician has the ability to shoehorn into the
mentally diseased class almost any person he
wishes, for whatever reason, to put there.
Livermore, Malmquist and Meehl, On the Justifications
for Civil Commitment, 117 U. Pa. L. Rev. 75, 80
(1968).?°
Institutional psychiatrists are faced with conflicts of
interest — with their facilities,'°? with their patients and
their patients’ families'*® — and have great difficulty in
‘See Roth, Dayler and Lerner, Into the Abyss: Psychiatric
Reliability and Emergency Commitment Statutes, 13 Santa Clara
Law. 400, 403 (1973). More than a hundred years ago, a court
noted that commitment of children to reform school was based
on differing perceptions of the status of “poor parental care:”
... there is not a child in the land who could not be
proved, by two or more witnesses, to be in this sad
condition.
People ex rel. O'Connell v. Turner, 55 Ill. 280 (1870). The
situation is the same today with regard to who can be proved in
the “sad condition” of mental disturbance.
‘See Testimony of Dr. Messinger at 629a-630a (pressures on
psychiatrists to confirm colleagues’ opinions and meet institu-
tional needs) and Dr. Ingall at 599a (overcrowded clinics may
overrecommend institutionalization).
"See Scheff, Being Mentally Ill: A Sociological Theory
148-149 (1966) (family request cases are generally automatic).
Scheff also discusses a case in which a psychiatrist recommended
a commitment for a young patient who was not thought
mentally ill but who was having difficulties with his parents. /d.
at 147. Where parents seek commitment of their child, the
medical authority is forced to wear two hats:
While the goal of the psychiatrist will be expressed—and
perceived as the best welfare of the child-patient, it is the
parent who has come to seek help, whose situation seems
(continued)
65
telling the sane from the insane, tending toward an
overdiagnosis of mental illness."°* Psychiatry, asked to
adjudicate interpersonal and societal conflicts, is often
called upon to be the agent of the state’s police powers
in ways that carry it beyond its expertise.’®*
G. Need For and Functions of a Hearing.
One expert cogently listed the issues to be faced and
decided at a mental commitment hearing for juveniles:
I think first of all, an agreement on what are the
facts.
Secondly, some assessment of how severe the
pathology or disturbance of the child is.
(footnote continued from preceding page)
the most desperate, who seems the most reliable source of
information about what is wrong, who is the closest to the
psychiatrist in age and social outlook, and who is paying
the psychiatrist's fee.
Ellis, Volunteering Children, supra note 28, 62 Cal. L. Rev. at
868 (note omitted). This view is confirmed by the expert
testimony herein for both plaintiffs and defendants. See
Testimony of Dr. Feiner at 472a, 478a-479a; Dr. Sugar at 381a;
Dr. Masterson at 732a-733a; Dr. Kandler at 542a; Dr. Ingall at
593a-594a; Dr. Messinger at 637a-638a.
10'See Rosenhan, On Being Sane in Insane Places, 13 Santa
Clara Law. 379 (1973), discussed in District Court Opinion at
804a, n. 20; 402 F. Supp. at 1050, n. 20. Indicative of this
approach is the testimony for the defendants of Dr. Masterson
who asserted that psychiatrists should first assume that the
person before them is mentally ill (739a). See testimony at
737a-738a.
105See Bazelon, Forward, Symposium: Mental Iliness, the Law
and Civil Liberties, 13 Santa Clara Law. 367 (1973); Szasz, Civil
Liberties and the Mentally Ill, 9 Clev-Mar. L. Rev. 399, 407
(1960).
66
Thirdly, how dangerous the situation is, or might
become.
Fourthly, what else has been tried or might be
tried.
Fifth, what the adolescent himself says about the
matter and what he thinks might be best for him
and six, what the family thinks would be best for
the boy [or girl] .’°
This is what the plaintiffs seek.
A pre-commitment judicial hearing for juveniles is
proper and necessary in non-emergency situations.!°’
Because of their immaturity and lack of experience, it
is even more important that juveniles receive the
protection of a hearing than adults.'®* This is especially
true for those very young persons whom the state law
totally neglects.
Assistance of counsel is essential! and can help
treatment of juveniles and can in no significant way
hinder such treatment.’°? A hearing would not be
unduly traumatic for juveniles and would not interfere
with treatment or the parent-child relation; to the
contrary, a hearing would encousage more appropriate
‘Testimony of Dr. Messinger at 640a. The manner in which
these hearing functions affirmatively benefit the child is
documented in the brief amicus curiae of the State of New
Jersey, Department of the Public Advocate.
‘See Testimony of Dr. Kandler at 542a - 545a, 566a, 57a -
572a, 573a - 574a; Dr. Ingall at 596a - 597a, 606a; Dr.
Messenger at 622a - 623a, 625a, 630a - 631a; Dr. Feiner at 479a
- 480a.
‘See Testimony of Dr. Kandler at 562a; Dr. Ingall at 589a -
590a; Dr. Messinger at 630a - 631a.
'See Testimony of Dr. Kandler at 542a - $43a; Dr. Ingall at
597a; Dr. Messinger at 633a.
67
resolution of problems, and would have a positive and
beneficial affect on the child." See Jn re Gault, 387
U.S. at 26.'"? a
Establishment of a due process forum for a decision
to institutionalize lifts the heavy responsibility from the
parents'!? and reduces the possibility that the therapist
will be seen by the juvenile as an adverse party.’’* A
hearing does not interfere with therapy and has the
further effect of encouraging a juvenile’s cooperation
with a treatment plan.'**
The opportunity for hearings would not discourage
people from seeking treatment for juveniles, but would
result in agencies and psychiatrists performing more
effectively and in the avoidance of the necessity for
hearings and of institutionalization.'’*
H. The Requisites for a Due Process Hearing.
As the defendants cast their appeal, the only issue
raised on the merits is the proper extent of parental
110See Testimony of Dr. Kandler at 543a - 545Sa, 565a - 566a,
574a; Dr. Ingall at 591a, 596a - 597a, 61 1a - 61 3a.
‘One expert, Dr. Feiner, testified that “... it has been said
that some children would rather be fair than be loved. So, there
is a sense that a judicial hearing responds to in children” (483a).
See Testimony of Dr. Messinger at 624a.
''2Testimony of Dr. Feiner at 481a, 495a.
'"'3Pestimony of Dr. Messinger at 624a - 625a; Dr. Ingall at
61 2a - 613a.
'4Pestimony of Dr. Kandler at 561a, 574a; Dr. Ingall at 597a;
Dr. Messinger at 633a.
'\SSee Testimony of Dr. Kandler at 574a; Dr. Messinger at
638a - 640a; Dr. Feiner at 494a - 495a.
72 eeeEeEeEeEeEeEeEeEeEeEeee
68
authority in the context of state institutionalization.''®
No claim is made—if the District Court correctly
determined that parental rights do not negate children’s
commitment rights—that the District Court erred in its
prescription of notice, counsel, hearing and a “clear and
convincing’ standard of proof. Thus, this appeal does
not raise any question regarding the extent of due
process that applies in mental commitments.
The requirements of due process are flexible and
depend upon an evaluation of the effect of government
action on the private interest involved. Cafeteria
Workers Union v. McElroy, 367 U.S. 886, 895 (1961).
Notice, counsel, and an opportunity to be heard are
fundamental requirements where a deprivation of
liberty—for whatever reason—is involved. E.g., Specht v.
Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold,
383 U.S. 107 (1966); In re Gault, 387 U.S. 1 (1967).
In this case, the District Court narrowly shaped
plaintiffs’ relief, requiring only a hearing before ‘“‘an
unbiased tribunal” (rather than a judicial hearing)''’
and other procedures following, in the main, Gault and
similar cases. The right to a jury trial was rejected''® as
"This was not the defendants’ position in the court below,
where they maintained that “the requirements of due process do
not apply to the institutionalizing of children... .”’ 791a; 402 F.
Supp. at 1044-1045.
"The court below did not decide whether a judicial hearing
is required on either Due Process or Equal Protection grounds;
the issue is not before this Court on appeal. Note that the new
Mental Health Procedures Act provides juveniles who challenge
commitments with judicial hearings. Supra at 4.
69
was the right to a pre-commitment hearing.''® All the
procedures save notice and counsel, declared the
District Court, may be waived upon approval by the
unbiased tribunal; a full hearing need not take place
every time a juvenile is institutionalized.'”®
Because the defendants have not briefed, argued or
challenged the rudiments of due process the District
Court required, the plaintiffs will merely summarize
them to demonstrate that the procedures are well
within the range of those suggested by decisions of this
Court and the lower federal courts.'?' |
1. Notice
Without advance notice, the District Court correctly
held, the fundamental “right to be heard has little
significance.”'** In mental commitment cases, notice is
'18See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
1194 major justification for denial of an invariable right to a
pre-commitment hearing was the state's “interest in the
immediate detention of children who may be dangerous to
themselves or others.” 800a-801a; 402 F. Supp. at 1049. Thus,
the decision does not threaten to foreclose proper expeditious
procedures in emergency situations.
12We neither intend nor expect that all of these procedures
will be required every time an attempt to institutionalize a child
is made.” 81la, n. 26; 402 F. Supp. at 1053, n. 26.
'21See cases cited at note 21 supra.
1228024; 402 F. Supp. at 1050, citing, inter alia, Grannis v.
Ordean, 234 U.S. 385, 394 (1914); Jn re Gault, 387 US. |
(1967); Mullane v. Central Hanover Trust Co., 339 U.S. 306
(1950).
70
at least as essential, if not more so, than in proceedings
which do not result in deprivation of liberty. Cf,
Goldberg v. Kelly, 397 U.S. 254 (1970). Where a
proceeding will be held which will determine whether a
person is indeterminately and involuntarily institu-
tionalized, advance notice is imperative.
The speculative fear of an unspecified trauma flowing
from notice cannot justify abandonment of this first
step in providing a process which is due under the
circumstances. Jn re Gault, 387 U.S. 1 (1967). In its
recent comprehensive study, the American Bar Founda-
tion noted:
The humanitarian desire to eliminate or curtail the
use of notice in such cases raises certain questions,
however. It may be, for example, that the
experience of receiving notice would prove no
more traumatic for the patient than the experience
of suddenly finding himself detained in a mental
institution.'?5 *'
The record in the case at bar supports the conclusion
that this element of due process would not traumatize
the juveniles involved. See references at notes 107-111
supra.
Requiring written notice of the date, time and place
of the hearing and a statement of the grounds for the
proposed commitment,'** the District Court acted to
“protect children not in need of institutionalization
from wrongful commitment and improper deprivation
‘American Bar Foundation (Brakel & Rock, eds.), The
Mentally Disabled and the Law 51 (1971).
'24803a; 402 F. Supp. at 1050.
71
of their liberty.”'?5 Notice is one of the two rights (the
other is the right to counsel) which were held to be
unwaivable. 81la, n. 26; 402 F. Supp. at 1053, n. 26.
This makes good sense. “Since effective notice is a
prerequisite to the exercise of an individual's other due
process rights, mandatory notice should itself be a
requirement of due process” in mental health cases.
Note, Developments in the Law—Civil Commitment of
the Mentally Ill, 87 Harv. L. Rev. 1190, 12741275
(notes omitted) (1974) (hereafter cited ‘“Develop-
ments”’).??6 °
2. Counsel
In criminal proceedings, Argersinger v. Hamlin, 407
U.S. 25 (1972), and in juvenile proceedings, /n re
Gault, 387 U.S. 1 (1967), the guiding hand of counsel
is a right which assures that no person is deprived of
liberty without the aid of an expert able to “cope with
problems of law, to make skilled inquiry into the facts,
‘281d, Eighty years ago, in a landmark and often-cited case,
the Kansas Court of Appeals explained the logic of requiring
notice in mental commitment proceedings:
Notice and opportunity to be heard lie at the foundation
of all judicial procedures. They are fundamental principles
of justice which cannot be ignored . . . it will not do to say
that it is useless to serve notice on an insane person; that it
would avail nothing because of his inability to take
advantage of it. His sanity is the very thing to be tried.
In re Wellman, 3 Kan. App. 100, 103, 45 P. 726, 727 (1896).
'26Because some juveniles may not understand the notice, the
juvenile’s attorney must receive it as well. 803a, n. 19; 402 F.
Supp. at 1050, n. 19.
72
to insist upon regularity of the proceedings and to
ascertain whether he [or she] has a defense and to
prepare and submit it.”” Gault, 387 U.S. at 36.!27'
Without counsel, a juvenile would be helpless; the
right to be heard would be of little avail. Argersinger,
supra, 407 U.S. at 31. Mandatory appointment of
counsel in juvenile commitments assures that a child has
the full support necessary to avoid pressures of family
and institutions and to assist in making the critical
decision whether to waive an evidentiary hearing. See
Gallegos v. Colorado, 370 U.S. 49, 54 (1962); Haley vy.
Ohio, 332 U.S. 596, 599-601 (1948). See also Harris,
Mental Illness, Due Process and Lawyers, 55 A.B.A.J.
65 (1969) (danger that young persons will be induced
to commit selves to mental institution unless their
rights are explained to them by lawyers). With parents,
doctors and psychiatric workers all urging commitment,
and with no independent confidant, it is unlikely that a
child can make an “intentional relinquishment or
abandonment” of a fully known right. Johnson y.
Zerbst, 304 U.S. 458, 464 (1938).
3. Hearing
Both a probable cause hearing and a full hearing
must occur within a reasonable period of time in order
to support an indefinite mental commitment. /n re
Barnard, 455 F.2d 1370 (D.C. Cir. 1971); Lessard y.
Schmidt, supra note 21. In order to determine if “the
nature and duration of confinement bear some
—'2Other recent mental health cases support the right to
counsel. E.g., Lessard v. Schmidt; Lynch v. Baxley; Heryford v.
Parker, all supra at note 21.
73
reasonable relation to the purpose for which the
individual is committed,” Jackson v. Indiana, 406 U.S.
715, 738 (1972), a hearing is indispensable. See McNeil
y. Director, Patuxent Institution, 407 U.S. 245 (1972).
Because of the inadequate record in this regard, and
because of the need to permit states the flexibility to
experiment with various time frames, there is no need
for the Court in this case to specify the times by which
hearings must be held.
4. Presence of Person
While the right to be present is not absolute, //linois
vy. Allen, 397 U.S. 337 (1969), there can be no doubt
that persons subject to civil commitment have a right to
be present, Specht v. Patterson, 386 U.S. 605 (1966),
and that the right has value to others beside the subject
of the proceedings. The individual’s appearance provides
the factfinder with an opportunity to observe his or her
demeanor and to compare observations with those of
the psychiatrists, parents and other witnesses. See Note,
Developments, supra at 71, 87 Harv. L. Rev. at
1282-1283. This “day in court” permits the juvenile to
challenge the accuracy of reports of alleged conduct
which prompted the initiation of the proceedings.
5. Rights at the Commitment Hearing
The District Court held that “because of the
tremendous personal as well as societal loss error might
cause,” juveniles facing involuntary indeterminate
mental institutionalization are entitled to “the rights to
74
confront and to cross-examine witnesses against him, to
offer evidence in his own behalf and to offer testimony
of witnesses....” 810a; 402 F. Supp. at 1053. These
traditional factfinding tools are essential in the
commitment process so that conflicts may be resolved
and the true state of affairs ascertained. Specht v.
Patterson, supra, 386 U.S. at 610; Lynch v. Baxley, 386
F. Supp. 378, 394 (M.D. Ala. 1974), citing, Washington
v. Texas, 388 U.S. 14, 19 (1967).
6. Standard of Proof
The dangers of erroneous commitment must be
weighed against the dangers of not committing those
who may be said to require institutionalization; this is
the analysis required to determine the appropriate
standard of proof. While in juvenile proceedings, this
Court has required a reasonable doubt standard, /n re
Winship, 397 U.S. 358 (1969), lower courts are divided
on the standard to be utilized in the similar mental
health context. See Jn re Ballay, 482 F.2d 648 (D.C.
Cir. 1973) (reasonable doubt); Lessard v. Schmidt,
supra at note 21 (reasonable doubt); Suzuki ».
Quisenberry, 411 F. Supp. 1113 (D. Hawaii 1976)
(reasonable doubt); Lynch v. Baxley, 386 F. Supp.
378 (M.D. Ala. 1974) (clear, unequivocal and con-
vincing); Dixon vy. Attorney General of the Com-
monwealth of Pennsylvania, 325 F. Supp. 966 (M.D.
Pa. 1971) (clear, unequivocal, convincing). Because both
the delinquency and the mental health processes involve
a “complete loss of liberty through a state-imposed
confinement” and severe social stigma, /n re Winship,
supra, 397 U.S. at 374 (Harlan, J.), the plaintiffs
submit that the District Court erred in not requiring the
higher standard of proof.
75
The District Court here adopted the clear and
convincing standard, choosing not to follow Winship
because the undeveloped state of psychiatry “creates
too great a risk of erroneously releasing children in
need of institutionalization.” 809a; 402 F. Supp. at
1053.
Although clearly sustainable, the District Court’s
decision on the standard of proof need not and ought
not be addressed by this Court in the absence of any
argument on the issue by the defendants and in light of
the conflict among the courts, a conflict not present on
the other issues discussed above.
I. Neither the State’s Regulations nor the Revised
Statute Affect the Unconstitutionality of Com-
mitment without Hearing and Counsel
After the filing of this lawsuit, the defendants
adopted regulations'?* ‘which would apply to juveniles
in commitments upon parental application. A referral to
the institution is required and, only for persons at least
thirteen, notice is given that, if objection is made, legal
counsel can be called. After at least two days of
institutionalization, a court proceeding may be
instituted against the objecting juvenile. There is no
requirement that the hearing be held at any particular
time after commitment—it may take one week, two
weeks, a month or more, for all the regulations neglect
'8Reproduced at Brief for Appellants 9-15.
76
to say, until due process is afforded that small portion
of the class between 13 and 18. There is no provision
at all for persons under 13 who are at least equally in
need of protection.
The referral body’s psychiatric or psychological
evaluation, confirmed by the institution, is not a proper
legal basis for commitment. It is unconstitutional for
persons to be placed in mental facilities solely on the
basis of medical certifications. Dixon v. Attorney
General of the Commonwealth of Pennsylvania, supra;
Heryford v. Parker, supra; see cases cited at note 21
supra. See also Wyatt v. Aderholdt, 358 F. Supp. 1382
(M.D.Ala.1973) (three-judge court) (sterilization of
retarded “‘cannot be left to the unfettered discretion of
any two officials or individuals”). The regulations here
codify exactly what the law condemns.
With regard to those over thirteen, the regulations
apply only after commitment. Any due process must
occur before an indefinite institutionalization and must
provide notice and counsel as well as hearing. See
discussion and cases cited supra at 67-75. After the
child is brought to the hospital, or has been diagnosed
by the referring agency, it is unlikely the juvenile will
be released.'??
The regulations do not protect the susceptible
juvenile from succumbing to pressures and involuntarily
acquiescing in the commitment:
129
Once the psychiatrist has made a “diagnosis,” the patient is
considered “sick.” The psychiatrist does not have to prove
his allegation (in court or outside of it). But the patient
must now prove, as it were, that he is “not sick.”
Szasz, Civil Liberties and the Mentally lil, 9 Clev-Mar. L. Rev.
399, 407 (1960).
77
The fact that a new “patient” may act in a passive
manner and not protest should not be taken “to
be a meaningful acceptance of commitment.”
Cohen, The Function of the Attorney and the
Commitment of the Mentally Ill, 44 Tex L. Rev. 424.
447 (1966). See Haley v. Ohio, 322 U.S. 596 (1948);
In re Gault, 387 U.S. 1 (1966).
There must be a consultation with an attorney before
the juvenile is asked to sign the complex waiver the
regulations provide:
Because young persons usually are more sus-
ceptible to persuasion than are older persons, there
is a greater danger that they will be more easily
induced to commit themselves voluntarily to
mental hospitals unless their rights are carefully
explained to them by lawyers.
A. Harris, Mental Illness, Due Process and Lawyers, 55
A.B.A.J. 65 (1969).'% '
It would be harmful and counter-therapeutic to
follow the state’s regulations and allow only a
post-commitment hearing. As one expert testified:
I think it is a most inadequate provision and it is
closing the barn door after the horse is out. |
think it is disastrous to hospitalize a child and
then find out, by golly, it wasn’t necessary. That is
playing with a child’s life.’*"
Pennsylvania has revised its commitment law with
respect to a portion of the plaintiff class. While persons
18 and younger alleged to be retarded are still
'%See Testimony of Dr. Messinger at 631a-632a; Dr. Miller at
702a (unauthorized punishment for juvenile requesting attorney).
'31Dr. Messinger at 63la. See Testimony of Dr. Feiner at 482a
and Dr. Ingall at 5°oa.
78
committed under the original law and _ regulations,
persons 13 and younger alleged to be mentally ill are
committed in a simular fashion’’’ under the revised law.
Thus, the revised law continues the procedures without
change for the great majority of the plaintiff class.'*?
Il.
THE DISTRICT COURT DID NOT ABUSE
ITS DISCRETION IN REQUIRING THE
DEFENDANT STATE OFFICIALS TO
ASSURE THAT JUVENILES PRESENTLY
COMMITTED RECEIVE CONSTITUTIONAL
STATE PROCEDURES TO DETERMINE
WHETHER THEY ARE MENTALLY DIS-
ABLED AND IN NEED OF INSTITU-
TIONALIZATION.
A.Preiser v. Rodriguez Does Not Bar Relief for
Juveniles Presently Committed.
The complaint herein requested injunctive and
declaratory relief'** to assure constitutional state
procedures in the hospitalization of children in mental
institutions. Seeking only the guarantee of a state
forum in which to have the claims against them
determined, the plaintiffs sought from the federal court
‘The new procedure for the mentally ill is remarkably
identical to the former procedure under the regulations.
'33See note 20 supra.
'4An initial prayer for damages was voluntarily withdrawn
early in the litigation.
79
neither release nor any order with regard to their
custody.!%5 '
The class defined by the complaint and by the
District Court!** ‘included all juveniles ‘“‘who have been,
are, or may be” committed upon parental application
(emphasis added). Thus, ab initio, the plaintiffs have
sought relief for those persons presently institu-
tionalized as well as those who may be institutionalized
in the future.
In Paragraph 15(E) of its Final Order,'*’ the District
Court enjoined the defendants to “initiate procedures,
commencing immediately, to assure that all children
eighteen years of age or younger already admitted or
committed” under the challenged laws be provided with
the procedures required by the decision.
The defendants object'* ‘to this portion of the
order'*® and argue that it is barred by the principle of
See Complaint at 22a-23a. Individual plaintiffs did allege
that they objected to their commitments.
'%Complaint at 10a-11a; Order of April 29, 1974 at 270a;
Opinion, 402 F. Supp. at 1041; 783a; Final Order at 844a.
‘Paragraph 15(E) is reproduced at 851a.
'3Despite lengthy prior notice of the broad class definition,
and the presence of defendants’ counsel in open court when the
definition was drafted (255a-256a), the defendants did not object
to the possibility of relief for presently confined persons until
the very end of the litigation (838a-839a). The District Court
never directly ruled on this belated objection but merely issued
its Final Order reasserting Paragraph 15 (E) as it appeared in the
Proposed Order with certain additions. Cf{ 832a with 851a-852a.
The argument made here in the text presupposes that this Court
reaches this issue.
‘The defendants do not appear to object to any portion of
Declaratory Relief granted (844a-848a).
80
Preiser v.
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