# Appellants Reply Brief — Kremens v. Bartley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2178%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Reply Brief - **Published:** January 1, 1977 - **Citation:** 431 U.S. 119 ## Text ——! >... 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: EE iS ve f sb daniaccdeweees dake 2,4,9 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2178%3A08. Public record. Not legal advice.