Appellants Reply Brief — Kremens v. Bartley

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Coat, U.S

ILED

NOV 22 1976

MICHAEL RODAK, JR.,CLERK

in the Supreme Court of the

Unjted States

No. 75-1064

JACK B. KREMENS, Individually and as Hospital Director

of Haverford State Hospital; FRANK S. BEAL, Individually

and as Secretary of Public Welfare of the Commonwealth

of Pennsylvania; WILLIAM B. BEACH, JR., Individually

and as Deputy Secretary for Mental Health and Mental

Retardation of the Department of Public Welfare of the

Commonwealth of Pennsylvania,

Appellants

v.

KEVIN BARTLEY; STEVE GENTILE; LESLIE LEVINE;

VICKI MATHEWS; MARK WEAND; Minors, Through

Their Next Friend, Individually and on Behalf of All Others

Similarly Situated,

Appellees

Appeal From the Judgment of the Uniwd States District

Court for the Eastern District of Pennsylvania.

REPLY BRIEF FOR APPELLANTS

NORMAN J. WATKINS

Deputy Attorney General

BARRY A. ROTH

Assistant Attorney General

J. JUSTIN BLEWITT, JR.

Deputy Attorney General

ef, Civil Litigation

ROBERT P. KANE

Attorney General

Department of Justice

Capitol Annex Bldg.

Harrisburg, Pa. 17120

HE TI,

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

TABLE OF CONTENTS

PAGE

REPLY BRIEF FOR APPELLANTS:

Argument:

I. This case should be decided on the merits 1

Il. The merits: Admission of children to Penn-

sylvania mental health facilities ........ 4

III. The remedy of habeas corpus is available

SC coc cute des 6 oh eewenes6n 9

ee ee a tid a 11

TABLE OF CITATIONS

CASES:

Allen v. Likins, 517 F.2d 532 (8th Cir. 1975) .... 3

Board of School Commissioners of the City of Indi-

anapolis v. Jacobs, 430 U.S. 128 (1975) .. 3

Com. ex rel. Levine v. Fair, 394 Pa. 262, 278

oe a hog Bieeie oni eek te elie 6 dicts © tid 11

Doe v. Mundy, 514 F.2d 1179 (7th Cir. 1975) .. 3

Dunn v. Blumstein, 405 U.S. 330 (1972) ...... 3

Franks v. Bowman Construction Co., Inc., 424 U.S.

rt Cn ide shane n bee eek ORS 0ke ROS 2,3

Frost v. Weinberger, 515 F.2d 57 (2nd Cir. 1975) 3

Gerstein v. Pugh, 420 U.S. 103 (1974) ........ 3

Hall v. Beals. 396 U.S. 45 (1969) ............ 3

Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975) 3

National Broadcasting Co. Inc. v. F.C.C., 516 F.2d

i eS | NST rrr eee 3

National Independent Coal Operators Association

v. Kleppe, 423 U.S. 388 (1975) .......... 4

Preiser v. Rodriguez, 411 U.S. 475 (1973) ...... 11

Ramer v. Saxbe, 522 F.2d 695 (D.C. Cir. 1975) 3

Richardson v. Ramirez, 418 U.S. 24 (1973) .... 3

Sosna v. lowa, 419 U.S. 393 (1975) .......... 2,3

Taylor v. St. Vincent’s Hospital, 523 F.2d 75 (9th

Sk Sn. cceccees cass seated eateries ae

Troy v. Shell Oil Co., 519 F.2d 403 (6th Cir. 1975) 3

Valentino v. Howlett, 528 F.2d 975 (7th Cir.

SE 5 ch obo ends Ake ereewe ees eae 3

Weinstein v. Bradford, 423 U.S. 147 (1975) .... 3

Williamson v. Lewis, 39 Pa. 9 (1861) ........ 11

STATUTES:

Act of May 25, 1951, P.L. 415, §1 ............ 10

Act of July 9, 1976, P.L. ——, No. 143 (The Men-

tal Health Procedures Act) .............. 1,3,4

Mental Health and Mental Retardation Act of

1966, Act of Oct. 1966, P.L. 96:

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EE $x 4 446660040N600000 00080 2,4,9

sé ibs ph okeeees eared hkeke 9

EE in. os dauvéusddebumedada te 9

DOC SGD cc ccccccccecscsesegcececs 9,10

OTHER AUTHORITIES:

Department of Health, Education and Welfare,

NIMH, Statistical Note 113, State Trends In

Resident Patients—State and County Mental

Hospital In-Patient Services 1967-1973 (Feb.,

DE. dcop ttisadebecensse taabeeveneses

National Association of Superintendents of Public

Residential Facilities for the Mentally Retard-

ed, Current Trends and Status of Public Resi-

dential Services for the Mentally Retarded:

PEE chisecsnanesosentewnedoes

Presidents’ Committee on Mental Retardation,

Changing Patterns in Residential Services for

the Mentally Retarded (1969) ............

Shade, R. H., Parental Resistance to Hospital Treat-

ment of Adolescents, 4 Adolescence 512

en "ore Coes ce easeeb ake cede es

Sonis, M., “Residential Treatment’’, Freedman, ed.,

Comprehensive Textbook of Psychiatry, Wil-

liams and Wilkins, Baltimore (1967) ......

ili

Argument |

REPLY BRIEF FOR APPELLANTS

ARGUMENT

I. This Case Should Be Decided on the Merits

On July 9 of this year the Mental Health Procedures

Act was enacted, ' establishing revised procedures for the

commitment of emotionally ill persons in Pennsylvania.

However, this act does not apply to the mentally retarded

and therefore affects only a small portion of the plaintiff

class. * Moreover, with respect to the mentally ill, the only

change in the law relevant to this appeal is that the age

below which a mentally ill child can be voluntarily admit-

ted by his parents has been lowered from vighteen years

to fourteen. *

' Act of July 9, 1976, P.L. ——, No. 143 (hereafter referred

to as the “new act”, or “Act 143”). The relevant portions of this

Act have been set out in Appellees’ Brief (hereafter “App. Br.”’)

at pages 2-5.

2 Approximately 80% of the plaintiff class is comprised of

mentally retarded children. In fact, as of June 30, 1976, of the

4996 juveniles receiving inpatient treatment in Pennsylvania in-

stitutions, as the result of voluntary placements, only 1209 were

mentally ill (310a et seq.—-current census).

* There has been no real change in the law with respect to

who is authorized to challenge the validity of a mentally ill

child’s commitment, 50 Pa. Stat. Ann, §4426(a) authorizes the

child “. . . or anyone acting on his behalf...” to challenge the

commitment, and the Mental Health Procedures Act provides

2 Argument

1. This appeal is not moot. On April 29, 1975,

the lower court properly certified this as a class action.

The plaintiff class was defined as comprising “. . . all per-

sons eighteen years of age or younger who have been, are

or may be admitted to mental health facilities in Pennsyl-

vania pursuant to the challenged provisions of the state

mental health law (i.e., 50 P.S. §§4402 and 4403)”

(270a).* When the class was certified the named plain-

tiffs were all under eighteen years of age and receiving in-

patient treatment in a mental health facility pursuant to

the specified provisions of the 1966 Act. Thus, these in-

dividual plaintiffs were in fact members of the class when

it was certified, and therefore remain proper representa-

tives of that class, despite the fact that their individual

claims may have become moot by the subsequent enact-

ment of this legislation. Franks vy. Bowman Construction

Co., Inc., 424 U.S. 747 (1976). Sosna v. lowa, 419 U.S.

393 (1975).

Sections 402 and 403 of the Mental Health and Men-

tal Retardation Act of 1966 presently apply, and in fact

are being applied, to the vast majority of the unnamed

plaintiffs. And, those who are still subject to the chal-

lenged portions of the 1966 Act obviously continue to have

a live controversy with the defendants. Franks v. Bow-

‘hat “. . . any responsible party” may contest the child’s place-

ment, See, 206(b) (App. Br. 4), Nor have any additional pro-

cedural protections been supplied by the new act for mentally ill

children under fourteen years of age.

* No issue has been raised in this appeal regarding the pro-

priety of that class certification.

* Moreover, certain mentally retarded piaintiffs specifically

identified by the court are not affected in the least by the new

law (789a-790a).

Argument 3

man Construction Co., Inc., supra, Sosna v. lowa, supra,

Gerstein v. Pugh, 420 U.S. 103 (1974), Richardson vy.

Ramirez, 418 U.S. 24 (1973), Dunn v. Blumstein, 405

U.S. 330 (1972).°

2. This case should not be re:nanded to the district

court for consideration of the Mental Health Procedures

Act. Over three-fourths of the plaintiff class, mentally re-

tarded juveniles, are subject to the very statutes which

the lower court examined, declared unconstitutional, and

enjoined. '

Additionally, the due process issue has not changed

in the least for emotionally ill children under fourteen

years of age. In Act No. 143 the Pennsylvania General

Assembly, in disagreement with the majority below, has

provided those children with none of the protections man-

* Lower courts, as well, have uniformly recognized that a case

does not become moot simply because the class representative

may have had his claim settled, provided that a live controversy

exists between unnamed members of the class and the defend-

ants; Valentino v. Howlett, 528 F.2d 975 (7th Cir. 1976); Allen

v, Liking, 517 F.2d 582 (8th Cir. 1975); Ramer v. Sarbe, 522

F.2d 695 (D.C. Cir. 1975); Troy v. Shell OW Co,, 519 F.2d 403

(6th Cir. 1975) ; Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975) ;

Doe v. Mundy, 514 F.2d 1179 (7th Cir. 1975); Frost v. Wein-

berger, 515 F.2d 57 (2nd Cir. 1975); Taylor v. St. Vincent's

Hospital, 523 F.2d 75 (9th Cir. 1975) ; National Broadcasting

Co. Ine. v. F.C.C., 616 F.2d 1101 (D.C, Cir. 1974).

Compare: Hall v. Beals, 396 U.S. 45 (1969), Board of

School Commissioners of the City of Indianapolis v. Jacobs, 420

U.S. 128 (1975), and Weinstein v. Bradford, 423 U.S. 147

(1975) ; each of which was either not brought, or not effectively

certified as a class action.

™ The stay granted on December 16, 1975 allows the contin-

ued use of Sections 402 and 403 of the 1966 Act, as well as the

regulations promulgated thereunder, 423 U.S. 1028-9 (1975).

4 Argument

dated in this case. Juveniles, whether by §402 and §403

of the 1966 Act, or §201 of Act 143, may still be commit-

ted to a Pennsylvania mental health facility solely on the

basis of the joint decision of the parent and physician.

Thus, in all relevant respects both Acts are identical, and

the district court has already clearly expressed its view

that this scheme is unconstitutional. * There is, therefore,

nothing additional in the way of procedural protections

for children in the new act for the lower court to consider

on remand. National Independent Coal Operators Asso-

ciation v. Kleppe, 423 U.S. 388, 393-4 n. 4 (1975).

Il. The Merits: Admission of Children to Pennsylvania

Mental Health Facilities

It is relatively difficult to secure in-patient psychi-

atric services in a Pennsylvania mental health facility.

And, in some respects the difficulties are compounded

when parents seek these services for their children.” For

* Appellees correctly point out that the district court was in

fact made aware of the possibility that the Legislature might re-

duce the age for voluntary admissions from eighteen years to

fourteen (240a-24la, 654a), However, this change with respect

to the emotionally ill obviously did not satisfy the court's objec-

tions to the procedure, Similarly, the court specifically analyzed

and rejected the regulations set out at pages 9-15 of Appellants’

Brief (236a-250a, 504a, 556a-558a, 598a).

* The record in this case shows that, with respect to the men-

tally retarded, the admission process for children is usually ini-

tiated by the child’s parents or other responsible family member.

Of the total admissions, nearly 75% were sought by the parents

or, where appropriate, another relative (224a, 225a).

= #

Argument 5

example, the defendants’ regulations require an additional

medical examination prior to a child’s admission as com-

pared to the admission of an adult. The regulations also

impose a broad array of procedural measures for chil-

dren over age thirteen (Appellants’ Brief, pp. 12-15). For

these and other obvious reasons parents are generally re-

luctant to seek inpatient psychiatric care for their chil-

dren. *° Nonetheless, like other public health delivery sys-

tems, the need for these services is much greater than the

supply. ™

Notwithstanding these considerations, the plaintiffs

have argued that children are often whimsically admit-

“Parents are often even more frightened than their teen-

age child by the prospect of admission.” Shade, R. H., Parental

Resistance to Hospital Treatment of Adolescents, 4 Adolescence

512, 514 (1969).

'' The President's Committee on Mental Retardation has not-

ed that “. . . since most public institutions operate at or above

capacity, the delay between applying for and gaining admission

is usually great, Often it is more than three years.” President's

Committee on Mental Retardation, Changing Patterns in Resi-

dential Services for the Mentally Retarded, at 17 (1969).

Nationally there has been a decrease in the number of resi-

dents under age eighteen receiving inpatient services in state and

county mental hospitals each year since 1971, Department of

Health, Education and Welfare, NIMH, Statistical Note 113, State

Trends in Resident Patients—State and County Mental Hospital

In-Patient Services 1967-1973, 1 (Feb., 1975). A similar decrease

has been noted in Residential treatment of retarded juveniles,

National Association of Superintendents of Public Residential Fa-

cilities for the Mentally Retarded, Current Trends and Status of

Public Residential Services for the Mentally Retarded; 1974, 53

(1975).

6 | Argument

ted to mental health facilities. The mentally retarded,

they asserted “. . . often find themselves in institutions

through fortuitous and avoidable circumstances” (App.

Br., p. 42).

The plaintiffs discussed two specific cases in support

of this contention, and selected portions of the patients’

records were relied upon (App. Br., pp. 42-43). How-

ever, in these purported examples of inappropriate admis-

sions, the plaintiffs looked only to the “reason for place-

ment” and did not note the medical diagnoses of these

children.

For example, the plaintiffs correctly noted that the

first child’s records indicated that the additional familial

burdens which were created by the arrival of infirm

grandparents on the family scene was noted a “reason for

placement” (351a). But, plaintiffs chose to ignore the

medical condition of this child:

Diagnosis (October 1, 1963):

AAMD

Mental Retardation associated with Encephalo-

pathy due to anoxemia at birth

Visual handicap

12 However, it has been noted that “[o]f all referrals made

to residential centers, only 15 to 20% are accepted, with the ma-

jority of referrals not accepted, interestingly enough, on the basis

that residential treatment is not indicated. Other reasons for

nonacceptance of the referral are unavailable space, center pol-

icy, and inappropriate age.” Sonis, M, “Residential Treatment”,

Freedman, ed. Comprehensive Textbook of Psychiatry, Williams

and Wilkins, Baltimore (1967) at 1475.

—___ —_ —— @-

Argument 7

Hearing handicap

Major motor seizures

Choreoathetosis

Spastic quadriplegic

APA

Chronic Brain Syndrome associated with birth

trauma (anoxemia due to cord being wrapped

around neck)

Mental deficiency (x ‘) —Severe

(Patient No. 00067-382a)

In their second case, the plaintiffs conjectured that

the parents sought inpatient care for their child “. . . to

avoid providing their child with birth control, and in or-

‘der to evade a responsible relative who opposed the child’s

commitment ...” (App. Br., p. 43). Plaintiffs’ grim ac-

count once again failed to consider the medical condition

of that child.

Diagnosis (December 27, 1963) :

AAMD

Mental retardation associated with encephalo-

pathy due to anoxemia at birth

Spastic paraplegia

Level Il—Adaptive Behavior—Trainable

APA

Chronic Brain Syndrome due to unknown cause

without qualifying phrase

Mental deficiency (x *) —Severe

8 Argument

Reevaluated diagnosis (March 18, 1974):

AAMD

Trauma or physical agent—perinatal hypoxia

Hydrocephalus, secondary

Spasticity with paraplegia, moderate

Adaptive Behavior—Level III (1973 Revised

Classification)

(Patient No. 00144—353a) *

The point of all this is quite obvious. The propriety

of inpatient psychiatric care for a child must be measured

primarily against the medical needs of that child. The

various concerns the child’s parents have expressed

during the admission process may be of some importance

to the physician in determining how best to treat those

needs—but they clearly are not, and should not alone be

controlling.

This seemingly self-evident proposition was made

very clear by Dr. Levon D. Tashjian in testimony given

in this case (650a). Unfortunately, however, the lower

13 In this example, as with the first, the plaintiffs relied ex-

clusively on the section of the summarized patient records enti-

tled “reasons for placement”.

00144 (Patient number)—Reason for Placement:

“The father described her as hyperactive, but the motlier

disagreed and said that she was only active. Though the par-

ents 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).

Argument 9

court, like the plaintiffs, chose to rely on a distorted pic-

ture of the facts surrounding the admissions of these chil-

dren to Pennsylvania facilities. ** This error in large part

provided the basis for the opinion in this case and there-

fore necessitates its reversal.

Ill. The Remedy of Habeas Corpus Is Available

to the Plaintiffs

The right of a mental patient to seek release from

custody by habeas corpus is firmly established in Penn-

sylvania. Section 4426 of the Mental Health and Mental

Retardation Act of 1966 provides that the remedy is avail-

able to “[e]very person committed or detained in a facil-

ity by reason of the provisions of this act .. .” 50 Pa.

Stat. Ann. §4426 (set out at pp. 8-9 of Appellants’ Brief) .

Nevertheless, plaintiffs argue that this broad language

does not extend to admissions of juveniles under Sections

402 or 403 of the Act (App. Br., p. 83). The argument

is based upon a misreading of the statute. The plaintiffs

contend that the inclusion in §4426(c) (1) of specific

jurisdiction and venue requirements for challenging com-

mitments under Sections 404. and 405 of the Act makes

habeas corpus unavailable to test admissions pursuant to

other sections of the Act.

™ Rather than examining the medical records of all juveniles

as suggested by the defendants (288a-289a) the lower court chose

only to admit the medical records of ten randomly selected pa-

tients (522a, 650a). After having done this, however, the court

then apparently ignored these records and ba-ed its conclusions

on the “reasons for placement” alone (789a-790a).

10 Argument

The inclusion of specific jurisdiction and venue pro-

visions in §4426 is an exception to the general habeas

corpus jurisdiction and venue rules which are set out in

the Act of May 25, 1951, P.L. 415; 12 Pa. Stat. Ann.

§1901. Thus, the Legislature provided in §4426 that

“. . . except as hereinafter provided, said petition [for

writ of habeas corpus] shall be filed in accordance with

the provisions of the Act of May 25, 1951 (P.L. 415).”

Therefore, sections challenging any admissions or commit-

ments other than those specified in §4426 must be filed

pursuant to the general rules set forth in the 1951 Act:

“Any judge of a court of common pleas within

this Commonwealth shall have jurisdiction at any

time, to issue a writ of habeas corpus upon applica-

tion by, or on behalf of, any person (hereafter called

the relator) alleged to be unlawfully imprisoned or

detained in any penitentiary, prison, reformatory,

house of detention, mental institution, or other place,

(a) within the judge’s judicial district, or (b) out-

side of his judicial district, if the relator was commit-

ted by action of any court of the judge’s judicial dis-

trict: Provided, That when relator’s detention or con-

finement is by virtue of sentence after conviction for

a criminal offense, only a judge and the judicial dis-

trict of conviction and sentencing shall exercise such

jurisdiction.” 1951, May 25, P.L. 415, §1. (Empha-

sis added.)

Finally, the Supreme Court of Pennsylvania has noted

that, over and above this statutory remedy, a very broad

common-law right of habeas corpus has always existed in

Pennsylvania.

*.. . ‘It (common law habeas corpus ad sub-

jiciendum) has a much broader scope than that form

ee

Argument 11

of it which is secured by the Habeas Corpus Act;

for it may issue in all sorts of cases where it is shown

to the court that there is probable cause for believ-

ing that a person is restrained of his liberty unlaw-

fully or against the due course of law’”. Com. ex

rel. Levine v. Fair, 394 Pa. 262, 278 (1958); quot-

ing Williamson v. Lewis, 39 Pa. 9, 29 (1861).

The plaintiffs had both a statutory and common-law

right to test the legality of their confinement by seeking

a writ of habeas corpus. They chose to ignore this rem-

edy seeking redress instead under the Civil Rights Act.

Therefore, at a minimum, this Court’s holding in Preiser

v. Rodriguez, 411 U.S. 475 (1973), requires reversal

of the retroactive portions of the lower court’s order al-

ternatively requiring the plaintiffs’ release.

CONCLUSION

On the basis of the foregoing arguments and authori-

ties, as well as those contained in the main brief for Ap-

pellants, defendants seek reversal of the decision of the

lower court.

Respectfully submitted,

NoRMAN J. WATKINS

Deputy Attorney General

BarrY A. ROTH

Assistant Attorney General

J. JUSTIN BLEWITT, JR.

Deputy Attorney General

Chief, Civil Litigation

ROBERT P. KANE

Attorney General