# Brief for Appellee — Kremens v. Bartley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for Appellee
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 119

## Text

Sepene Cont, 1.5
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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 * 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. Rodriguez, 411 U.S. 475 (1973), and the neces-
sity that plaintiffs seek state habeas corpus relief.

The District Court ordered the defendant state
Officials to initiate procedures to assure that all
juveniles 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.

Appellants’ assertion that Preiser v. Rodriguez, 411
U.S. 475 (1972), and Wolff v. McDonnell, 418 U.S. 539
(1973), bar such relief is based on a misreading of those
cases and a failure to note other actions of this Court
which support the District Court’s order.

Preiser and Wolff held that litigants could not obtain
from the federal courts, in actions under 42 U.S.C.
§1983, relief affecting “the fact or duration of
confinement” or effecting “immediate or a speedier
release.””'*° Wolff noted that “tan injunction restoring
good time improperly taken is foreclosed” but spe-
cifically permitted federal courts to “fashion appropri-
ate remedies for any constitutional violations ascer-
tained, short of ordering the actual restoration of good
time already cancelled.””'*

The District Court faithfully followed Wolff's
proscription. It did not order “actual restoration” of
liberty to plaintiffs and their class; it simply ordered
that the defendant welfare department officials assure
that proper state proceedings be afforded persons who
had never had them. It would be in these state
proceedings (not in the federal court) that commitment

'Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
'41 Wolff v. McDonnell, 418 U.S. 539, 555 (1974).

81

determinations would be made. The alternative to this
orderly process would have been to allow the possibly
erroneous commitment of thousands of persons to
stand.

This Court’s decision in Gerstein v. Pugh, 420 U.S.
103 (1975), directly supports the District Court and
explains the error in appellants’ argument:

Respondents did not ask for release from state

custody, even as an alternate remedy. They asked

only that the state authorities be ordered to give
them a probable cause determination. This was
also the only relief that the District Court ordered
for the named respondents. 332 F. Supp. at

1115-1116. Because release was neither asked nor

ordered, the lawsuit did not come within the class

of cases for which habeas corpus is the exclusive

remedy. Preiser v. Rodriguez, 411 U.S. 475, 93 S.

Ct. 1827, 36 L.Ed.2d 439 (1973); see Wolff v.

McDonnell, 418 U.S. 539, 554, 94 S. Ct. 2963,

2973, 41 L.Ed.2d 935 (1934).

Id. at n. 6.'4? See Gomez v. Miller, 341 F. Supp. 323
(S.D.N.Y. 1972), aff'd sub. nom., Miller v. Gomez, 412
U.S. 914 (1973) (class action challenging con-
stitutionality of pretrial confinement in state mental
hospital for the criminally insane; relief sought and
upheld was a state “determination of dangerousness as a
prerequisite to retention”).

‘4% Gerstein, as in this case, persons were deprived of their
libert. for a substantial period without a probable cause hearing.
The relief granted in Gerstein, as in this case, assured
constitutional proceedings in a state forum.143

"See Hartman v. Scott, 488 F.2d 1215 (8th Cir. 1973);
Bradford v. Weinstein, 519 F.2d 728 (4th Cir. 1974), appeal
dismissed on other grounds, __. US. —_., 46 L.Ed.2d 350
(1975); Joyce v. Gilligan, 383 F. Supp. 1028 (N.D. Ohio 1974),
Winegard v. State of North Carolina, 366 F. Supp. 983

(continued)

82

Appellants’ reliance on Kendall v. True, 391 F. Supp.
413 (W.D.Ky. 1975), is misplaced. That case did not
consider or discuss the Preiser issue. Also, the plaintiff
mental patients in Kendall were incarcerated under a
statute which provided for a maximum hospital term of
60 days and under which a judicial hearing and counsel
were provided. Here, the plaintiffs are under an
indeterminate term and have had no hearing or counsel.

Defendants further argue that, if it is held that those
plaintiffs covered by Paragraph 15(E) must utilize
habeas corpus, the exhaustion requirements of 28
U.S.C. §2254(b) would apply.

Section 2254(b)'* applies only to “persons in
custody pursuant to the judgment of a state court.”’’*

(footnote continued from preceding page)

(W.D.N.C. 1973); United States ex rel. Johnson v. Chairman of
the New York State Board of Parole, 363 F. Supp. 416
(E.D.N.Y. 1973).

A Three-Judge Court in Pennsylvania recently became the first
to address the Preiser issue in the mental health context. Goldy
v. Beal, __. F. Supp. —— (M.D.Pa., July 8, 1976), in enjoining
as unconstitutional the state civil commitment law, held that
Preiser did not bar such relief following the analysis suggested in
the text.

“This statute is reproduced at Brief for Appellants 59, n.61.

41 plaintiffs’ Section 1983 claims went “directly” to the
propriety of their confinement and sought from the federal court
either “immediate release” or a “shortening” of confinement,
then under Preiser they would be fatally “close to the core of
habeas corpus” even though they are not in custody under a
state court judgment. Preiser, 411 U.S. at 489. However, where
no such relief is sought or obtained and where the federal court
specifically defers to the state courts to decide the propriety of
individuals’ confinements, the literal terms of the statute should
be held to apply and exhaustion not required.

83

Plaintiffs were all committed without any involvement
of a state court or other adjudicatory body whatsoever.

Section 2254(b) also exempts from its ambit
situations where there is an “‘absence of available State
corrective process or the existence of circumstances
rendering such process ineffective...” Even if each or
some of the thousands of institutionalized young people
in Pennsylvania could succeed in obtaining counsel to
file state habeas petitions, the petitions would not be
heard because, by its very terms, the state habeas
corpus statute for mental patients does not apply to
plaintiffs. '**

Habeas corpus jurisdiction is limited by the state
statute to persons committed by a court or under two
sections of law not relevant here.'*? 50 P.S. 4426(c).
Thus, there is no state corrective process available and
effective to protect the plaintiffs’ rights; no exhaustion
of remedies is required because there are none to
exhaust.

Principles of federalism were similarly respected by
the District Court. No state proceedings were interfered
with; in fact, the state executive, judicial and legislative
branches are left free to continue commitment of
juveniles, so long as the procedures used do not violate
the Constitution.

The statute, 50 P.S. §4426, is reproduced at Brief for
Appellants 8-9 and referred to ibid at 59. This statute is repealed
by the new Mental Health Procedures Act insofar as it applies to
the mentally ill, not the retarded.

Section 404, held unconstitutional in Dixon v. Attorney
General of the Commonwealth of Pennsylvania, 325 F. Supp.
966 (M.D.Pa. 1971), and Section 405 (emergency “dangerous-
ness” commitments).

84

Contrary to defendants’ aire speculations of “‘a clash
between the federal and state judicial systems,“* Brief
for Appellants at 62, those systems worked in concert
in this case until the Final Order issued.'** While the
District Court never had the opportunity to rule
directly on this federalism issue,’*® ‘it did assure
avoidance of any direct conflict as it issued no
injunctive relief against the state courts. The interim
declaratory relief'S® both respected the integrity of the
state judicial system and comported with the extremely
broad range of remedies proper upon a finding of
constitutional violations, Hills v. Gautreau, _ U. S.
—_._. (1976). Cf. Rizzo v. Goode, 423 U.S. 362 (1975)
(no constitutional violation found).'*!

'8See discussion at 17 supra and letters between the courts
at Appendix infra.

‘497d The entire issue, therefore, is one which should not and
need not be decided by this Court.

‘Paragraph 11 of the Final Order (846a).

‘The District Court, in its opinion and final order,
specifically noted its deference to the principles enunciated most
recently by this Court in Rizzo v. Goode, 423 U.S. 362 (1976).
The District Court explained:

As we have already noted, due process is flexible; the
Constitution mandates no specific code of procedures. We
are aware of the problems facing courts when they attempt
to fashion procedures protecting language of the Four-
teenth Amendment and we are sensitive to the claim that
courts are “good at deciding cases, bad at drafting
legislation. .. .”” See, Friendly, J. “Some Kind of Hearing,”
supra. When presented with claims of constitutional
dimension, however, we are constrained, when legislative
bodies have failed to act, to find means of enforcing the
constitutional rights being denied. Our action is not
intended to pre-empt the state which is free to develop its

own safeguards so long as they are as fully effective as
(continued)

85

The alternative to requiring this orderly state
constitutional process would have been to permit the
indefinite and possibly erroneous mental commitments
of thousands of persons, all without a state remedy to
pursue. The solution adopted by the District Court is
well within its power for, “in constitutional adjudi-
cation, as elsewhere, equitable remedies are a special
blend of what is necessary, what is fair, and what is
workable.” Lemon v. Kurtzman, 411 U.S. 192, 200
(1973) (note omitted).'*? ©

B. The District Court’s Requirement of Con-
stitutional State Procedures for Persons
Presently Committed Does Not Violate the
Eleventh Amendment.

The defendants 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. In their analysis, the defendants
claim that the cost of providing this relief to juveniles

(footnote continued from preceding page)
those which we set out. See Miranda v. Arizona, 384 U.S.
436, 490, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966);
Morrissey, 408 U.S. at 490, 92 S. Ct. 2593.

Opinion at 800a, n. 16; 402 F. Supp. at 1048-1049, n. 16. The
legislature is free to develop an alternate constitutional system.
Opinion at 802a, n. 18 and 803a, n. 19; 402 F. Supp. at 1049,
n. 18 and 1050, n. 19.

'S4n that case, the Court noted, “In shaping equity decrees,
the trial court is vested with broad discretionary power, appellate
review is correspondingly narrow.” /d. (citation omitted).

'S3851a - 852a (Paragraph 1 5E).

86

presently incarcerated without hearings may not be
imposed on the state.'** The Eleventh Amendment
dictates no such result.

The Eleventh Amendment bars suits by citizens
against unconsenting states. Hans v. Louisiana, 134 U.S.
1 (1890). However, federal courts have undoubted
authority to entertain suits against state officials where
they act unconstitutionally. Ex Parte Young, 209 U.S.
123 (1908).

In the case at bar, the enforcement of Pennsylvania’s
commitment .%w was found unconstitutional. The
District Court did not award damages or “equitable
restitution” of funds from the state treasury; expendi-
ture of state funds to implement the decree is
incidental to the constitutionally mandated goal of
assuring that persons are not erroneously incarcerated.
This Court has frequently required equitable relief
having substantial fiscal impact on a state. Such impact,
held Edelman v. Jordon, 405 U.S. 651, 667-668 (1974),
is not barred by the Eleventh Amendment:

The injunction issued in Ex parte Young was not

totally without effect on the State’s revenues,

since the State law which the Attorney General
was enjoined from enforcing provided substantial
monetary penalties against railroads which did not
conform to its provisions. Later cases from this

Court have authorized equitable relief which has

probably had greater impact on state treasurics

than did that awarded in Ex parte Young. In

Graham vy. Richardson, 403 U.S. 365 (1971),
Arizona and Pennsylvania welfare officials were

‘Defendants do not assert that any eof the injunctive relief
granted by the District Court as to future commitments violates
the Eleventh Amendment.

87

prohibited from denying welfare benefits to
otherwise qualified recipients who were aliens. In
Goldberg v. Kelly, 397 U.S. 254 (1970), New
York City welfare officials were enjoined from
following New York State procedures which
authorized the termination of benefits paid to
welfare recipients without prior hearing. But the
fiscal consequences to state treasuries in these
cases were the necessary resuit of compliance with
decrees which by their terms were prosective in
nature. State officials, in order to shape their
official conduct to the mandate of the Court’s
decrees, would more likely have to spend money
from the state treasury than if they had been left
free to pursue their previous course of conduct.
Such an ancillary effect on the state treasury is a
permissible and often an inevitable consequence of
the principle announced in Ex parte Young,
supra. '**

415 U.S. at 667-668 (note omitted). Surely “‘equitable
restitution” of funds directly to plaintiffs, held in

Edelman to resemble monetary damages, is a far cry
from requiring compliance with procedural due process.

'SSSee Ad Hoc Committee on Judicial Administration vy.
Massachusetts, 488 F.2d 1241, 1243, n 2 (1st Cir. 1973):

Courts have noi limited the Ex parte Young doctrine to
“negative” relief, and have often ordered positive govern-
mental action. In cases involving deprivation of constitu-
tionally protected rights, “affirmative” relief has been
granted, notwithstanding the fact that the incidental effect
is that the states will be forced to expend funds from its
treasury. See e.g., Graham v. Richardson, 402 U.S. 365, 91
S. Ct. 1848, 29 L.Ed.2d 534 (1971); Gideon v. Wainwright,
372 US. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963);
Inmates v. Eisenstadt, 360 F. Supp. 676 (D.Mass. 1973);
Martarella v. Kelley, 349 F. Supp. 575 (S.D.N.Y. 1972).

88

Edelman, the only case relied on here by defendants,
held only that a federal court’s remedial power “‘may
not include a retroactive award which requires the
payment of funds from the state treasury.” 415 U.S. at
677. This decision that a governmental cash benefits
program would be disrupted by the drain of additional
unallocated welfare benefit payments cannot be read to
sanction the State’s desire, in this case, to continue to
confine in mental institutions, without hearings,
thousands of juveniles.

CONCLUSION

For the above reasons, appellees respectfully submit
that the judgment of the District Court should in all
respects be affirmed.

Respectfully submitted,

DAVID FERLEGER
Counsel for Appellees

August, 1976

JUOGE

la
APPENDIX
UNITED STATES DISTRICT COURT

EASTCRN OISTRICT OF PENNSYLV/NIA

H. HUYCTT, 3ro 12614 UNITLO STATES COURTHOUSE
INDEPENOFNCE MALL. wetsT
PHILADELPHIA, PENNSYLVANIA 19106

215-597-9644

September 16, 1975

Honorable Alexander F. Barbieri
Court Administrator of Pennsylvania
Room 317, Three Penn Center Plaza
Philadelphia, Pa. 19102

Re: Bartley, et al. vs. Kremens, et al.
(C.A. No. 72-2272)

Dear Judge:

As a follow-up of your call to me of the other day, |
have talked to the other members of the three-Judge
court in the above case and we shall, of course, touch
base with you before we hand down a Final Order.

Our case, of course, concerns all persons eighteen
years of age or younger who have been admitted or
committed to mental institutions in Pennsylvania under
the sections of the Act which concerned our three-
Judge court.

Judge Gibbons suggested that you might wish to talk
to the Administrative Office of the New Jersey Courts
in Trenton because sometime ago Chief Justice Hughes
required the New Jersey Courts to review every file of
every patient of state mental institutions and it may be
that the experience of the New Jersey Administrative

2a

Office in that massive undertaking may be helpful to
you.

In any event, I shall keep in touch with you.

With kindest personal regards.

Very sincerely yours,

/s/ Dan
Daniel H. Huyett, 3rd

DHH/dr

3a

SUPREME Court OF PENNSYLVANIA

ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS
31’ THree PENN CENTER PLAZA
PHILADELPHIA, PENNSYLVANIA !9102

(215) 567-3071 — 686-3578
DEPUTY COURT AL MINISTRATORS
CaRLILE E. KING, ESQUIPE

GERALO W. SPivack, ESQUIRE

Rosert F. Kent, ESQuirRe

ZXANDER F. BARBIERI
JUDGE
SOMINISTRATOR OF PENNSYLVANIA

October 14, 1975

The Honorable Daniel H. Huyett, 3rd
Room 12614

6Cl Market Street

Philedelphia, Pennsylvania 19106

Dear Judge Huyett: “ue ie ,

——

-_S—

A if ¢
Re: Bartley v. Kremens, #72-2272 t? <2L

Many thanks for your kind letter of September 16,
and for efforts on my behalf.

Please thank the other members of your three-judge
court for their thoughtfulness.

I like your idea of contacting the New Jersey
Administrative Office. Judge Simpson, the judge who
manages the New Jersey court systems, is a friend of
mine, and we frequently discuss our mutual adminis-
trative problems.

4a

Again, many thanks to all of you, and I will await
your advices.

Sincerely yours,

/s/ Alex
Alexander F. Barbieri
Court Administrator of Pennsylvania

AFB:ek

Sa

‘SUPREME COUPT OF PENNSYLVANIA

ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS
317 THrRee Penn CENTER PLAZA
PHILADELPHIA, PENNSYLVANIA !19!O2
(215) 567-3071 — 686-3578

.
XANDER F. BARBIERI DEPUTY COURT ADMINISTRATORS
JUDGE Carauice E. Kinc. Esou re
DMINISTRATOR OF PENNSYLVANIA GERALO W. Spivack. Csouire

.~RopEeRT F. Kent, Esquire

October 15, 1975

The Honorable Daniel H. Huyett, 3rd
United States District Court

Eastern District of Pennsylvania
United States Courthouse

Sixth and Market Streets
Philadelphia, Pa. 19107

Dear Judge Huyett:

Re: Bartley, et al. v. Kremens
Civil Action No. 72-2272

As you know, the Administrative Office of Pennsyl-
vania Courts is extremely concerned about, and
sensitive to, Federal Court decisions which impose
substantial new hearing burdens on an already over-
taxed state judiciary. We deeply appreciate your
diligence and cooperation in permitting the Pennsyl-
vania Judicial System, by the Court Administrator, to
be involved in the drafting of a final Order in the above

6a

matter, because of the large potential hearing
responsibility which the decision places upon our state
trial system.

We have talked frequently with the Office of the
Attorney General of Pennsylvania, principally through
_ Lawrence Silver, Esquire, and Barry Roth, Esquire,
concerning a proposed final Order submitted by them,
as well as the draft Order circulated by your Honor
within the past several weeks. We understand that all!
interested parties, including this office, have been
requested to submit comments or exceptions to the
proposed drafts on or before October 17, 1975 to the
Court and to ali parties. In compliance with your
request, we therefore submit our exceptions to you for
your early consideration.

We realize that we are not a formal party to these
proceedings and that our involvement must therefore be
peripheral. We are anxious to have the Court review our
reactions to the Bartley Opinion and its practical thrust,
and to appreciate some of the administrative difficulties
faced by the Pennsylvania Judicial System in gearing up
for this newly imposed hearing responsibility. We refer
to the concern expressed by the Attorney General of
Pennsylvania in his letter to you dated August 21,
1975, wherein at page three it is stated the burden
imposed on the Pennsylvania court system is potentially
substantial and that our advice should be entertained.
We wish to be supportive of the exceptions taken by
the Attorney General and add our own as of particular
concern to us.

We shall refer to the particular sections of your
proposed Order by page and number.

7a

Page 2, No. 3: The provision for notice to the child’s
attorney at least forty-eight (48) hours prior to the
initial detention hearing may not give counsel
adequate preparation and evaluation time so as to
advise fully the Court or “neutral tribunal’ of the
circumstances of the child’s condition and need for
admission or, conversely, lack of need for con-
finement. We suggest that the initial hearing might
better be held after several days rather than just
three to permit a fuller hearing.

Page 2, No. 4: The right to free counsel for indigents
must be based upon some objective standard of
indigency, that is, whose assets are to be counted,
those of parents, or others? Also, Philadelphia
County is not included in the statewide Public
Defender program as are the other sixty-six counties.
Some standard for the entire state might best be
written into the Order.

Page 3, No. 7: The probable cause hearing after
seventy-two (72) hours may not provide sufficient
time for preparation and therefore sufficient evidence
for proper evaluation by the Court or “neuisal
tribunal.”” There may be no opportunity for judicial
“thinking time’ as to probable cause for institu-
tionalization. We are unsure as to the standard of
proof, labeled as “clear and convincing,” set forth at
No. 6 and the role of the factfinder with respect to
it. We would request clarification of this point.

Page 3, No. 3: The full commitment hearing after
two weeks gives us more reassurance in terms of
preparation time and evaluation of evidence, although
we are not sure how much more can be adduced in
an additional eleven (11) days. Perhaps, the second

8a

hearing should be held two weeks after the first
hearing to provide a longer evaluation period. Then,
is the standard of proof stricter at this second, more
conclusive hearing? If so, how is such a second
standard determined?

Page 4, No. 11: The use of the state courts is clearly
required by the Order, in general terms, until the
Legislature designates an “‘alternate neutral tribunal.”
The Court Administrator of Pennsylvania has pro-
posed for adoption by the Supreme Court of
Pennsylvania a Rule providing for the appointment of
a master at each institution, where possible, to hear
these matters promptly and efficiently. A copy of
the draft Rule is attached.*

Page 5, No. 14: The provision for waiver of certain
rights by the child to be instutionalized may be too
broad, in that informed waiver by children is still an
interpretative area of the law. We urge the Court to
be aware of, and sensitive to this concern, so that
too broad waiver powers are not here granted.

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 cooperation to your Honorable
Court. We do wish, however, to make the burden as
administratively and financially palatable as possible for
our statewide court system.

We look forward to meeting with you further, if you
deem it appropriate, and thank you for your courtesy
to date. We earnestly hope that this effort will mark
the beginning of formal communication between the

*The draft has not yet been approved by the Supreme Court,
and will follow shortly.

9a

Court Administrator on behalf of the Pennsylvania
Judicial System and the Federal Court system.

With best regards,

JV:ml

Enclosure

Very truly yours,

Alexander F. Barbieri
Court Administrator of

Pennsylvania

i;
By: Jonothafy Vipond, ill
Legal Assistant to the
Court Administrator

10a
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

DANIEL Ht. HUYCTT, Sao . 12614 UNITEO STATES COURIH
JUDGE INDEPENOCNCE MALL Wwesr

PHILADELPHIA, PENNSYLVANIA 1
215-597-9644

November 11, 1975

Jonathan Vipond, III, Esquire
Legal Assistant to the
Court Administrator
Administrative Office of
Pennsylvania Courts
317 Three Penn Center Plaza
Philadelphia, Pa. 19102

Re: Bartley, et al. v. Kremens, et al.
(C.A. No. 72-2272)

Dear Mr. Vipond:

I appreciate very much your October 15, 1975 letter.

1 have conferred with Judge Gibbons and Judge
Broderick, the other members of the three-Judge court,
and I have suggested to them a number of changes in
the final Order which they now have under considera-
tion.

I note that you state in your letter that the
Pennsylvania judicial system is preparing to implement
our opinion and you advise me that the Supreme Court
of Pennsylvania has under consideration a rule for the
appointment of a master at each institution. The master
system, I believe, will be most helpful and certainly
expedite the entire procedure in an efficient manner.

lla

I make the following response to the specific
comments on pages 2 and 3 of your letter.

Page 2, No. 3: The initial detention hearing is only a
probable cause hearing that could be conducted by a
master or even by a local District Justice. A probable
cause hearing involves only a low-level decision and
Pennsylvania District Justices as well as attorneys
generally throughout the commonwealth have had
vast experience in probable cause hearings. The fuller
hearing that you suggest is not required at that stage
of the proceedings. Also, to modify the 48-hour
notice requirement would necessitate an amendment
to our opinion which would not appear to be
required considering the nature of a probable cause
hearing.

Page 2, No. 4: You mention that there is a
statewide Public Defender program and also, of
course, Philadelphia County has its own defender
organization. These defender organizations certainly
have clear standards as to what constitutes indigency.
I respectfully suggest that there is no problem as to a
determination for purposes of implementation of our
opinion of the meaning of indigency and we as a
Federal Court certainly would be extremely reluctant
to lay down a standard for ‘he entire state as you
suggest, particularly where it does not appear to be
required.

Page 3, No. 7: As I stated above, the initial
detention hearing is only a probable cause hearing
and not a full hearing and State Court personnel have
had considerable experience with probable cause
hearings which generally take place on short notice.
In respect to the standard of proof “clear and

12a

convincing’, I respectfully suggest that the law of
Pennsylvania is clear as to the meaning of these
words and that the judicial officer who conducts the
full commitment hearing would have no problem.

Page 3, No. 8: The initial detention hearing, of
course, is only a probable cause hearing. The full
commitment hearing is another matter and the
standard of proof there is “clear and convincing’. |
believe the standard of proof at the two different
hearings is clear from our opinion and again your
suggestion would require an amendment of our
opinion which would not seem desirable.

Page 4, No. 11: As I mentioned above, I believe
that the adoption of a master system would be most
helpful and I would hope that the Pennsylvania
Supreme Court would adopt the proposed rule.

Page 5, No. 14: We have reconsidered our opinion
in respect to waiver and your suggestion would
require us to amend our opinion in a substantive way
which we decline respectfully to do.

I hope that these comments to your suggestions are
helpful and certainly I wish to be as cooperative as
possible with the Administrative Office of the Pennsyl-
vania Courts.

The fact that a stay has been granted by the Court
of Appeals will give you more time to prepare for all
that is necessary to implement our opinion and this, of
course, may ease the strain on the State judicial system.

Again, | appreciate very much your letter and your
suggestions and | intend to call Judge Barbieri to make

13a

sure that he is satisfied that I have covered all of the
points which require discussion at this time.

With kindest personal regards.

Very sincerely yours,

/s/ Daniel H. Huyett, 3rd

Daniel H. Huyett, 3rd
DHH/dr

cc to Hon. John J. Gibbons
Hon. Raymond J. Broderick

14a

1Sa
UNM7IED STATES DISTRICT COURT
EASTERN DisTRICT OF PENNSYLVANIA cannot act without a final order of the three-Judge
DAKIFL it, MUYETT, 3a ; 12614 UNITED STATES COUNTHOUS: a.
suvee INDEPENDENCE MALL WEST I shall, of course, keep you fully advised.
PHILADELPHIA, PENNSYLVANIA 19106
215-597-9644
Very sincerely yours,
November 17, 1975
Honorable Alexander F. Barbieri /s/ Dan
Judge, Court Administrator of Daniel H. Huyett, 3rd
Pennsylvania | . DHH/dr
317 Three Penn Center Plaza Enclosures
Philadelphia, Pa. 19102 cc to Honorable John J. Gibbons

Honorable Raymond J. Broderick
Re:Bartley, et al. vs. Kremens, et al.

(C.A. No. 72-2272) P.S. to Judges Gibbons and Broderick: Enclosed are two

fully conformed copies of our November 17,

1975 Order.
Dear Judge Barbieri: D.H.H

As you and I discussed by telephone today, I enclose
a copy of the Order of the three-Judge court which was
handed down today along with a copy of a stay of
October 30, 1975 of the Court of Appeals for the
Third Circuit which appears to stay our Order pending
action by the United States Supreme Court.

Also, as I mentioned to you in our conversation,
counsel for plaintiff called my office today and said
that he believes that the stay of the Court of Appeals is
ambiguous and he will seek a clarification from the
Court of Appeals.

It is necessary for the three-Judge court to hand
down its Order since the United States Supreme Court

ALEXANDER F. BARBIERI

Court AOMINISTS ATOR OF PENNSYLVANIA

16a

Aurreme Court OF PENNSYLVANIA

AOMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS
317 THree PENN CENTER PLAZA
PHILADELPHIA, PENNSYLVANIA [9102
(215) 567-3071 — 686-3576

OEPUTY COURT ADMINISTRATORS
CARLILE E. KinG. ESOuirRe
GERALD W. SPIVACK, ESQUIRE
Roesert F. Kent, Es Quire

JUDGE

November 20, 1975

The Honorable Daniel H. Huyett, 3rd
United States District Court

Eastern District of Pennsylvania
12614 United States Courthouse
Independence Mall West

Philadelphia, Pa. 19106

NOV 2 4 137g

Dear Judge Huyett:

Re: Bartley, et al. v. Kremens, et al.
(C.A. No. 72-2272)

I very much appreciate your comprehensive response
to my letter of October 15, 1975 setting forth various
comments and suggestions with respect to a proposed
Order in the above matter. Both Judge Barbieri and I
do appreciate your extreme courtesy and earnestly hope
that this marks the beginning of a fully cooperative
relationship between the Federal Court system and the
Administrative Office of Pennsylvania Courts.

[-

17a

Judge Barbieri and I have subsequently received your
Final Order and have reviewed it. The Supreme Court
has not yet formulated a rule to implement your Order
and is most concerned about the gargantuan burden
about to be placed on the court system of Pennsyl-
vania. I believe that my earlier letter to you merely
recognized the potential responsibility which your
opinion and Order place on the State Judiciary and did
not set forth our willingness or practical ability to
shoulder the burden. A rule may yet be adopted but
the Supreme Court simply does not have the present
manpower and fiscal resources to conduct between five
and eight thousand hearings. We wish to be cooperative
to the maximum extent, but cannot perform the
impossible.

We look forward to continued discussions with you
in the further disposition of this case.

With best regards.

Very truly yours,

Alexander F. Barbieri
Court Administrator of
Pennsylvania

—_ j{) 2

— ——-

pat Aa) LY Tete. Fi

By: Jonathan VApond, III
Legal Assistant to the
Court Administrator
JV:ml

cc: Norman J. Watkins, Esq.
The Honorable Alexander F. Barbieri

18a 19a
UNITED STATES DISTRICT COURT SUPREME Court CF PENNSYLVANIA:

EaAstcrkn District OF PENNSYLVANIA

DANITL if, HUYETT, 3ro 12614 UNITTO STATES COURTHOUSE: af zs
, . - . -
HIPrPENDENCE MALL WEST ok 2
voce -
° PHILADELPHIA, PENNSYLVANIA 19106

21%-597-0G644

ADMINISTRATIVE OFFICE OF PENNSYLVANIA CourRTS
317 THREE PENN CENTER PLAZA
PHILADELPHIA, PENNSYLVANIA 19102
(215) 567-3071 — 686-3578

November 25, 1975

OEPUTY COURT AOMINISTRATORS
CaRuiLce E. KinG, Esouirc
GERALDO W. Spivack, Esouire
_Rasert F. Kent, Esouire

. ALEXANDER F. BARBIERI
Jonathan Vipond, III, Esquire JUDGE

Legal Assistant to the Court cou AominisT@atoR OF PENNSYLVANIA
Administrator

Administrative Office of
Pennsylvania Courts

317 Three Penn Center Plaza

Philadelphia, Pa. 19102

November 26, 1975

The Honorable Daniel H. Huyett, 3rd
Room 12614, 601 Market Street
Philadelphia, Pennsylvania 19106

Re: Bartley, et al. vs. Kremens, et al.

(C.A. No, 72-2272) Dear Judge Huyett:

Dear Mr. Vipond:

I have just read over the file in this matter, and find
that Jon Vipond has expressed the view that a rule of
court might be requested of our Supreme Court by this

Very sincerely yours, Office.

I think it only fair to advise you that no such rule
has been authorized or is presently being contemplated

I appreciate very much your November 20, 1975
letter.

/s/ Daniel H. Huyett, 3rd
Daniel H. Huyett, 3rd
DHH/dr

by the Supreme Court. It was a cooperative suggestion
of Mr. Vipond, and one that I had considered a possible
expedient, if any effort was to be made to implement
your order.

Since your order is on appeal, and since our study of
your recent order indicates that it contains directives

20a

”°

which would require judicial or other action “y <
courts, which would be contrary to law in Pennsylvania,
it will be necessary for this Office to join in the appeal.
We will also join in objections advanced by the
Attorney General, adding others of our own that stem
from the incapability of the judicial system of
Pennsylvania to comply.

Very truly yours,

/s/ A. F. Barbieri

Alexander F. Barbieri
Court Administrator of Pennsylvania

AFB:ek

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2178%3A07. Public record. Not legal advice.