Appendix — Secretary of Public Welfare of Pa. v. Institutionalized Juveniles
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_—_———
Supreme Court, U. S,
FILED
AUG 2 i978
VOLUME I1I—Pages B67 a-1 1 PS MICHAEL RODAK, JR., CLERK
APPENDIX
in the Supreme Court of the
Unjted States
October Term, 1978
No. 77-1715
SECRETARY OF PUBLIC WELFARE, Common-
wealt: of Pennsylvania, ALDO COLAUTTI;
JOHN FONG, Directo’ of Haverford State Hospi-
tal; NICHOLAS D’ALUISIO, Director of Polk
State School and Hospital; C. DUANE YOUNG-
BERG, Director of Pennhurst State School and
Hospital, sued as representative of all others
similarly situated,
Appellants
v
INSTITUTIONALIZED JUVENILES in Pennsyl-
_ vania Inst.tutions for the mentally ill and mentally
retarded, namely, KEVIN S.; RICHARD S.;
JAMES PAUL M.; EDWARD B.; RAYMOND C.;
WILLIAM B.; FRANCIS B.; MARIA L.; THOM-
AS W.; NANCY LOUISE D.; GINA S.; and
GEORGE §., by their next friend and guardian ad
litem, David Ferleger, individually and on behalf
of all others similarly situated,
Appellees
Appeal From the Judgment of the United States
District Court for the Eastern District of
Pennsylvania
—————————————————————————————————————
APPEAL DOCKETED MAY 31, 1978
JURISDICTION NOTED JUNE 19, 1978
TABLE OF CONTENTS
PAGE
Volume I
Relevant Docket Entries ..............2--005- la
Complaint—November 16, 1972 .............. 8a
EEE OTT PET TTT Ts TT 24a
First Set of Interrogatories to Defendants ....... 25a
Motion for Class Action ..................55. 29a
Geter. Dated Agee FT. 1GFS occa ivctvevewcsess 31a
Motion for Sealing of Affidavits and Protection of
Se a's oe end Snu Gh dask Gack abo &rhew? 32a
NS Ac a i a a a Oy 34a
Pre-Trial Oral Examination of Dr. Barbara Arm-
strong:
EEE rr 42a
CMR TEOIIO, onc ccc ccc cceces 108a
Redirect Examination ............... i21a
Recross-Examination ................ 130a
Exhibit A—Class Action Suit ............. 133a
Exhibit B—Individual Patient Summaries ... 135a
Exhibit C—Individual Patients Summaries ... 166a
Hearing, May 10, 1973 ..............000 eee: 18la
Incarcerated Juveniles—Why? The Mental Institu-
tionalization of Juveniles in Pennsylvania .... 210a
Argument on Plaintiffs’ Motion for a Class Action
Determination and on Defendants’ Motion To
Dismiss, April 16, 1974 .................. 232a
Order Dated April 29, 1974 ......--++-eee eee on
Di gs fe tech tabs beth bccn euRwese esas Sams
Final Pre-Hearing Order ......i.24----ee0e0> ~
Summaries of Selected Patients .......---++++++ a
Pre-Trial Oral Examination of Dr, Max Sugar:
Direct Examination .........--+++++5 et
Cross-Examination .......----+++> sees ~
Redirect Examination ...¥..06--4.+6.6% 43
Volume II
Redirect Examination (cont’d.) -....... t naaié os pony
Recross-Examination ......- este aoe a
Deposition of Dr. Joel S. Feiner, M.D.: ) f
: Direct Examination .......----- htt 465a
Cross-Examination ..... ee ae vee 484a
Order Dated August 21, 1974 ......-.. esangess Sane
The Evidence: Beal kchoina®
Evidentiary Hearing, First Day’ Ae . winbe- ‘<9 ae
PLANTIFFS’ EVIDENCE: . . >. '
Dr. Henry O. Kandler: | ; wich
Direct Examination ...... : fee. et a 337a
Cross-Examination ...... BL Sas wed. os 56Oa
Direct Examination ..... Ved ew ae we sae 54la
Cross-Examination ..........24.5...5" 548a
Redirect Examination’ .......<-.#.. <+4: 3808
Recross-Examination ..... 2.4. esate '58la
Examined by the Court ....0. 2. 65. 6?) 582a
ii
Dr. Michael A. Ingall:
Direct Examination ................. 586a
Cross-Examination .................. 597a
Dr. Eli Charles Messinger:
Direct. Examination ..... kt besasesd « 614a
OO eee ee 633a
Examined by the Court ............%. 636a
DEFENDANTS’ EVIDENCE:
Dr. Levon Donald Tashjian:
Direct Examination ................. 643a
Se NE eae 659a
Evidentiary Hearing, Second Day:
DEFENDANTS’ EVIDENCE:
Dr. Levon Donald Tashjian:
REE TOCEE TCO 662a
Redirect Examination ............... 671a
Examined by the Court .............. 672a
Dr. Derek Harry Miller:
Ry I 8 Sion Ane 673a
Cross-Examination .................. 704a
Dr. James F. Masterson:
en PF aes 717a
Cees Cs ee 729a
| Redirect Examination ............... 740a
Evidentiary Hearing, Third Day .............. 743a
Defendants’ Exhibit No. 1—Questionnaire ...... 772a
Defendants’ Exhibit No. 4#—Admission Note of D.D. 774a
Defendants’ Exhibit No. 5—Admission Note of
ee SA Me pens an ee ea RY PORT 780a
Opinion of the United States District Court for the
Eastern District of Pennsylvania .......... 783a
Order, July 24, 1975 ........- eee ee eee eeceees 813a
Dissenting Opinion, District Court ..........-. 814a
Court’s Proposed Order—September 16, 1975 .... 824a
Defendants’ Exceptions to Court’s Proposed
Order—October 17, 1975 .......-.-++ee55 833a
Final Order—November 17, 1975 ........-..++-- 843a
Notice of Appeal to the Supreme Court of the
i CE Sad ke 6a bet eaneteneads 853a
Application for a Stay ........---+eeee cence 856a
Western Union Telegram ...........---+++05: 864a
Onder Granting Stay «2... ccc cccccccccccccees 865a
Volume III
Deets Bates «6 ci cco ci scsda Se sas dSse- 867a
Amended and Supplemental Complaint—November
SE ocecccceueucqatemagnser Shnntes 875a
NN od ks 4 dcbddeahnankae enek na weeet 916a
Motion For Class Actiof 2. ..sccsccccccccuces 926a
Plaintiffs’ Interrogatories to Defendants ........ 930a
Defendants’ Answer to Plaintiffs’ Interrogatories .. 932a
Defendants’ Supplemental Answer to Plaintiffs’ In-
COUDOMIDNEIG is Soe peeve ce nccccesences 936a
Response to Motion For Class Action .......... 941la
Stipulation of Counsel .............----eeeee 943a
Order—Findings of Fact and Conclusions of Law
——Pierch 10; 1978 2c. cit cccwwcwees 955a
Memorandum and Order—Defendant Class—
SE Gs, WEEE oct ccecdecasiseceaccseys 956a
iv
Plaintiffs’ Offer of Proof Request
dentiary Ruling ..... = wadeeias fu _— 960a
PerOUC ARs Un elnednabsdek ca ba ikcs 962a
Docket Entries 867a
DOCKET ENTRIES
C.A. No. 72-2272
CIVIL DOCKET CONTINUATION SHEET
DH (Three Judge Court)
RJB, Gibbons
PLAINTIFF: BARTLEY ET AL.
DEFENDANT: KREMENS ET AL.
Date Nr. Proceedings
1975
123—Dec. 18, Plffs’ response to Court’s Order of 12-12-
75 and certificate of service, filed.
1976
124—Feb. 4, Certified copy received from the Supreme
Court of the US. re filing of petition for a writ of
certiorari on 1-27-76 as No. 75-1064, etc., filed.
125—Mar. 29, Certified copy received from the Supreme
Court of the U.S. re notation of probable jurisdic-
tion, etc., filed.
126—Jun. 24, Letter from Clerk of the Supreme Court
to Clerk of this Court dated 6-23-76 re: transmittal
of record, etc., filed.
868a Docket Entries
127—July 1, Answers of the State Schools and Hospitals,
State Mental Hospitals and Private Licensed facili-
ties to the May 31, 1973 questionnaire of plffs., etc.,
filed.
—July 2, Original record transmitted to U.S. Supreme
Court, Not including papers No. 20, 110, 113-115.
1977
128—June 16, Certified copy of Judgment received from
the Supreme Court that the Judgment of this Court
is VACATED: This cause is remanded to this Court
for further proceedings in-conformity with this Opin-
ion of the Supreme Court, etc., filed.
129—June 21, Plffs’ motion to allow Law Clerks, acting
on behalf of and under supervision of attorney and
the Guardian Ad Litem of the plff. class to examine
medical records of class representatives, certificate
of service and memorandum of law in support, filed.
(129)—June 21, ORDER that the defts., et al. shall
permit David Ferleger, et al. access to the medical
records of members of the plff. class in Penna. state
mental institutions, etc., filed. DH 6-22-77 entered
and copies mailed.
—July 5, Original record returned from the Supreme
Court and forwarded to the U.S.C.A. (Record in-
cludes papers No. 1 thru 105—not papers No. 20,
100 and 102). |
130—July 8, Plffs’ motion to clarify this Court’s Order
of 6-21-77 and certificate of service, filed.
—July 12, First supplemental record transmitted to
U.S.C.A. (Record only includes papers No. 106
thru 129, not including paper No. 113.)
Docket Entries 869a
_— 14, a, response to plffs’ motion to clarify
vice, filed. er of 6-21-77 and certificate of ser-
(130)—July 25, ORDER that the Order of this Court
dated 6-21-77 regardin i
& access is amended, etc.., fi
DH 7-26-77 entered and copies mailed. ae
132—Nov. 2, Plffs’ motion to amend and supplement
complaint, filed. (Amended
plaint attached) . and supplemental com-
133—Nov. 2, Plffs’ interrogatories to the defts, filed.
134—Nov. 2, Plffs’ certificate of service re:
amend, etc., filed. Pe Te, ee
135—Nov. 9, ORDER dated 11-8-77 that plffs’ motion
to amend and supplement the complaint is granted:
further ordered that the deft shall answer the amend-
ed and supplemental complaint within 20 days, filed
DH 11-10-77 entered and copies mailed. )
136—Nov. 9, Amended and Supplement Complaint filed.
137—Nov. 11, Entry of appearance of Norman J. Wat-
kins as counsel for defts., Sec’ i
ps Gory . ty of Public Welfare,
138—Nov. 11, Plffs’ motion for cl ft
cate of corvicn, fled. ass action and certifi-
139—Nov. , —_
oar 30, Defts’ answer and certificate of service,
140—Dec. 5, Brief of Amici Curiae, Pennsylvania As-
sociation for Retarded Citizens, Inc. and National
Center for Law and the Handi
tificate of service, filed. vegtepieattinbens
A
870a Docket Entries
141—Dec. 15, Defts’ answer to plffs’ interrogatories and
certificate of service, filed.
142—Dec 27, Defts’ supplemental answers to plffs’
interrogatories and certificate of service, filed.
1978
143—Jan. 12, Defts’ response to plffs’ motion for class
action and certificate of service, filed.
144—Feb. 13, Pliffs’ brief on Class Action and certifi-
cate of service, filed.
145—Feb. 13, Plffs’ brief on Collateral Estoppel Issue
and certificate of service, filed.
146—Feb. 15, ORDER dated 2-13-78 that counsel shall
advise the Court by 3-1-78 whether they wish to
submit additional evidence, etc., hearing and final
argument on the merits shall be held before the
Three Judge Court on 3-31-78 entered and copies
mailed. DH 2-16-78 entered and copies mailed.
147—Feb. 21, Entry of appearance of Robert B. Hoffman
as counsel for defts, filed.
148—Feb. 27, Defts’ memorandum in opposition to the
United States’ request to participate as “litigating
amicus” and certain evidentiary matters, and certifi-
cate of service, filed.
149—Mar. 1, Piffs’ memorandum on evidentiary ques-
tions relating to admission and medical records, filed.
150—Mar. 10, ORDER that the findings of fact and con-
clusions of law contained in C.A. 74-1345 are in-
admissible on grounds of relevance, etc., that Judge
Gibbons and Judge Broderick have agreed with the
Docket Entries 871a
contents of this Order, filed. DH 3/13/78 entered
& copies mailed.
151—Mar. 15, Plfts’ brief with certificate of service, filed.
152—Mar. 20, Defendants’ pretrial memorandum, filed.
153—Mar. 20, Copy of defts’ pretrial memorandum con-
taining the typographical corrections, filed.
154—Mar. 20, Defts’ motion to file defts’ pretrial memo-
randum one day out of time, and certificate of ser-
vice, filed.
155—Mar. 28, Memorandum, Huyett J., re plffs’ motion
for certification of a deft., class, etc., filed. DH 3/
29/78 entered & copies mailed.
156—Mar. 28, Order, Huyett J., plffs’ motion for cer-
tification of a deft., class is granted, etc., filed. 3/
29/78 entered & copies mailed. DH
(154)—Mar. 29, Order, Huyett J., that defts are per-
mitted to file their pre-trial memorandum one day
out of time, filed. DH 3/30/78 entered & copies
mailed.
157—Mar. 31, Final hearing, Huyett, J., re: argument
to supplement briefs, court gave counsel till 4/13/78
for any additional supplemental briefs, and took is-
sue under advisement, filed.
158—Mar. 31, Plfts’ supplemental brief and certificate
of service, filed.
159—Mar. 31, Plfts’ offer of proof and request for evi-
dentiary ruling, and certificate of service, filed.
160—Apr. 12, Brief of Amicus curiae, United States and
certificate of service, filed.
872a Docket Entries
161—Apr. 13, Deposition of Linda L. Glenn, filed.
162—Apr. 13, Brief of The Devereux Foundation, Amicus
Curiae with certificate of service, filed.
163—Apr. 13, Brief of The Melmark Home Inc., The
Woods School and The Allegheny Valley School for
Exceptional Children as Amici Curiae.
164—Apr. 14, Certificate of Service of Jane B. Porcelan,
filed.
165—Apr. 14, Plfts’ memorandum on need for judicial
hearing, filed.
166—Apr. 14, Plfts’ memorandum in opposition to admis-
sion of “Part A” of medical records exhibits, filed.
167—Apr. 17, Defendants’ supplemental memorandum
with certificate of service, filed.
168—May 25, OPINION, Gibbons Circuit J., Huyett, J.
& ORDER that judgment is entered in favor of plfts.
and against defts. Section 402(a) (2), 402(c),
403 (a) (2) of Penna. Mental Health & Mental Re-
tardation Act of 1966 are unconstitutional on their
face under due process clause of 14th Amendment,
etc., filed. Hon. Raymond J. Broderick dissents &
will file a dissenting opinion. (49 pgs. $12.25).
5/25/78 entered & copies mailed.
169—May 30, Notice of appeal of defendants to the Su-
preme Court of the United States, rec’d. 5/30/78
at 10:05 a.m., filed. 5/31/78 entered & copies to:
David Ferleger, Esq., Thomas B.-Harvey, Jr., Barry
A. Roth, Asst. Atty. General, U.S. Atty. in Phila.,
Louis M. Thrasher, Asst. Atty. General; Herbert B.
Docket Entries 873a
Newberg & Associates; Robert B. Hoffman, Esq.,
Asst. Atty. General.
170—June 2, Letter from David Ferleger, Esq. dated 5/
30/78 to Norman Watkins, Esq., re: Order filed
5/25/78, filed.
171—June 14, Dissenting Opinion, Broderick, J., filed.
($3.50, 14 pgs.)
172—June 19, Defts’ motion for stay memorandum, af-
ag of Gerald F. Radke, and certificate of service,
iled.
173—Jun. 26, Plifts’ notice of deposition of Gerald F.
Radke, filed.
174—Jun. 26, Plfts’ opposition to request for a stay and
plfts’ suggestion of need for hearing, with certificate
of service, filed.
175—Jun. 26, Certified copy of Order, Supreme Court
of U.S. that probable jurisdiction is noted, filed.
176—Jun. 27, ORDER, that a hearing shall be held on
defts’ motion for a stay of the Court’s Order of 5/
25/78, on 7/5/78 at 10 AM, Courtroom 434, Read-
ing Station, American Bank Bldg., 6th & Washington
Sts., Reading Pa., etc., filed. DH 6/27/78 entered
& copies mailed.
177—July 3, Appearance of Kohn, Savett, Marion &
Graf, P.C., by Bayard M. Graf, Esquire, for Harold
S. Barbour, Ed. D., Director of The Woods Schools,
a mental health & retardation facility in Pa. subject
to regulation by the deft., Secretary of Public Wel-
fare, filed.
874a Docket Entries
178—July 3, Appearance of Kohn, Savett, Marion &
Pe P.C., by Bayard M. Graf, Esq., for Paul A.
Krentel, Director of The Melmark Home Inc., a
mental retardation facility in subject to regulation by
the deft., Secretary of Public Welfare, filed.
179—July 5, Hearing on motion for stay order of Court
pending disposition of appeal to supreme court, wit-
nesses sworn, court took issue under advisement,
filed.
180—July 5, Memorandum of Amicus Curiae, United
States, in opposition to defts’ motion for a stay, filed.
Amended and Supplemental Complaint 875a
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
C.A. No. 72-2272
(formerly captioned Bartley v. Kremens)
Institutionalized Juveniles in Pennsylvania institutions for
the mentally ill and the mentally retarded, namely, Kevin
S.; Richard S.; James Paul M.; Edward B.; Raymond C.;
William B.; Francis B.; Maria L.; Thomas W.; Nancy
Louise D.; Gina S.; and George S., by their next friend
and guardian ad litem, David Ferleger, individually and
on behalf of all others similarly situated,
Plaintiffs
v.
Secretary of Public Welfare, Commonwealth of Pennsyl-
vania, Frank Beal; John Fong, Director of Haverford State
Hospital; Nicholas D’Aluisio, Director of Polk State
School and Hospital; C. Duane Youngberg, Director of
Pennhurst State School and Hospital, sued as represent-
ative of all others similarly situated,
Defendants
AMENDED AND SUPPLEMENTAL COMPLAINT
I. PRELIMINARY STATEMENT
1. Children are persons under the Constitution and
laws of the United States and are entitled to their protec-
tion.
a
876a Amended and Supplemental Complaint
2. Plaintiffs, individually and on behalf of all
others similarly situated, seek declaratory anc injunctive
relief for violations of their civil rights resulting from the
operation of Pennsylvania statutes which permit their in-
determinate confinement in institutions for the mentally ill
and mentally retarded under color of state law with no
right to notice, hearing, counsel and other procedural
safeguards. The statutes are challenged on the ground
that they conflict with the plaintiffs’ rights under the Due
Process Clause of the Fourteenth Amendment to the
United States Constitution.
3. The defendants are those state officials who ac-
cept and receive into involuntary custody the plaintiffs,
minors, upon the request of parents or guardians such as
welfare departments and child care agencies.
4. This case has been before the Court as Bartley
v. Kremens, 402 F.Supp. 1039 (E.D. Pa. 1975), vacated
and remanded, 97 S.Ct. 1709 (1977). This amended
and supplemental complaint substitutes new class repre-
sentatives and informs the Court of recent state statutory
developments.
II. JURISDICTION
5. Jurisdiction is conferred upon this Court by 28
U.S.C. 1331 which provides for original federal question
jurisdiction. The amount in controversy, exclusive of
interest and costs, exceeds $10,000.
6. Jurisdiction is also conferred upon this Court
by 28 U.S.C. 1343(3) which provides for origina! ju-
Amended and Supplemental Complaint 877a
risdiction in all suits authorized by 42 U.S.C. 1983 to
redress the deprivation under color of state law of any
right, privilege or immunity secured by the Constitution
of the United States and by federal law. Defendants
here act under color of state law.
7. Plaintiffs’ action for declaratory and injunctive
relief is authorized by 28 U.S.C. 2201, 2202, 2281, 22-
84, Rules 57 and 65 of the Federal Rules of Civil Pro-
cedure, all of which relate to declaratory judgments, in-
junctions and three-judge courts, and by 42 U.S.C. 1983
and 1988, which relate to civil rights actions.
Ill. THREE-JUDGE COURT
8. This is a proper case for determination by a
three-judge court pursuant to 28 U.S.C. 2281 and 2284
since the plaintiffs seeks an injunction to restrain defend-
ants, state officials, from the enforcement, execution and
operation of portions of state statutes of state-wide ap-
plicability on the ground that said statutes are contrary
to the United States Constitution. This action was filed
prior to the enactment of Public Law 94-381, which
amended the three-judge court statutes.
IV. CLASS ACTION ALLEGATIONS
9. The named plaintiffs bring this action on their
own behalf and, pursuant to Rule 23 (a) , 23 (b) (2) of the
Federal Rules of Civil Procedure, on behalf of all others
similarly situated.
878a Amended and Supplemental Complaini
10. The members of the class of plaintiffs similarly
situated are all persons who are or who may be com-
mitted to institutions for the mentally ill and the mentally
retarded in Pennsylvania upon application of parents or
guardians and without notice, hearing, counsel and other
procedural safeguards.
a. Subclass A of plaintiffs includes all those
persons under 14 years of age committed under Sec-
tion 201 of the Mental Health Procedures Act of
1976.
b. Subclass B of plaintiffs consists of all per-
sons 18 years of age or younger committed under
Sections 402 and 403 of the Mental Health and Re-
tardation Act of 1966.
11. The requirements of Rule 23 are met in that:
the class is so numerous that joinder of all members is
impractical (and the total membership of the class is in-
determinate); there are questions of law and fact com-
mon to the class; the claims of the representative parties
are typical of the claims of the class; the representative
parties will fairly and adequately protect the interests of
the class; and the parties opposing the class have acted on
grounds generally applicable to the class, thereby making
appropriate final injunctive and declaratory relief with
respect to the class as a whole.
12. Defendant John Fong, C. Duane Youngberg
and Nicholas D’Aluisio, directors of the facilities confin-
ing the named plaintiffs, are sued as representative of the
class of directors of all mental health and mental retarda-
tion facilities in Pennsylvania, all of which are subject
to regulation by the defendant Secretary of Public Wel-
fare. All the allegations in Paragraph 11 are met with
Amended and Supplemental Complaint 879a
respect « this defendant class and those allegati
incorporated here by reference. aoe
13. The questions of law and fact involved are:
a. Are the representative parties, and their
class members, committed to mental institutions
pursuant to the challenged statutes and without no-
tice, counsel, hearing and other proced
pad p ural safe-
b. Do the defendants operate, execute and en-
force the challenged statutes?
c. Are the challenged statutes contrary to the
Due Process Clause of the Fourteenth Amendment to
the United States Constitution?
V. . NAMED PLAINTIFFS
14. The named plaintiffs sue by their next friend
and guardian ad litem, appointed by this Court pursuant
to Rule 17 of the Federal Rules of Civil Procedure.
15. Due to the stigma of mental hospitalization and
a desire to minimize any possible intrusions on their pri-
vacy, the named plaintiffs are designated in this com-
plaint by their actual given names and the initial of their
surnames. The full names of the plaintiffs are being dis-
closed to the defendants and their counsel and will, should
the Court desire, be filed with the Court,
16. The first group of plaintiffs, those confined
at Haverford State Hospital under the Mental Health
Procedures Act of 1976, are all the juveniles age 14 and
880a | Amended and Supplemental Complaint
under committed under Section 201 as of October 31,
1977 to that institution.
17. The second group of plaintiffs are persons
with mental retardation confined under the Mental
Health and Mental Retardation Act of 1966, Sections
402 and 403 in two institutions, one near Philadelphia
in the eastern part of Pennsylvania and one near Pitts-
burg in the west.
First Group of Plaintiffs; Those at Haverford State
Hospital
18. Plaintiff Kevin S., born May 2, 1965, is a
citizen of Pennsylvania. He is 12 years old.
19. Plaintiff Richard S. is now 13 years old and
a citizen of Pennsylvania. He was born on September
24, 1964.
20. Plaintiff James Paul M. is 7 years old, having
been born on November 10, 1969. He is a citizen of
Pennsylvania.
21. There is no paragraph 21.
22. Plaintiff Raymond C. was born on September
9, 1964, is a citizen of Pennsylvania, and is 13 years old.
23. Plaintiff William B. was born June 18, 1968,
is 9 years old and is a citizen of Pennsylvania.
24. Plaintiff Eddie B. was born October 26, 1965,
is a citizen of Pennsylvania and is 12 years old.
25. Plaintiff Francis B. was born January 9, 1967,
is 10 years old, and a citizen of Pennsylvania.
26. Maria L., plaintiff in this action, was born Au-
gust 26, 1965, is 12 years old and a citizen of Pennsyl-
vania.
Amended and Supplemental Complaint 881a
27. Thomas W., born February 14, 1966, is 11
years old and a citizen of Pennsylvania.
Second Group of Plaintiffs; Those at Pennhurst and
Polk State Schools and Hospitals
28. Plaintiff Nancy Louise D., born December 10,
1960, is a 16 year old citizen of Pennsylvania.
29. Plaintiff Gina S. was born on July 30, 1961
and is a citizen of Pennsylvania. She is 16 years of age.
30. Plaintiff George S., was born February 10,
1963, is 14 years old, and is a citizen of Pennsylvania.
VI. DEFENDANTS
31. Defendant Secretary of Public Welfare is the
Pennsylvania State official who, in that capacity, has the
power and duty to enforce the challenged statutes and all
regulations necessary and appropriate to the proper ac-
complishment of those provisions and to operate and as-
sign functions to all state facilities. See Sections 201 (2)
and 202(a) of the Mental Health and Mental Retarda-
tion Act of 1966, and Section 105 of the Mental Health
Procedures Act of 1976 (“Treatment Facilities”), and
6 Pa. Bull. 2115 at Section 7100.1.2 (definition of “ap-
proved facility”). Frank Beal currently occupied that of-
fice.
32. Defendant John Fong is the director of Haver-
ford State Hospital and is charged with supervision and
administration of the facility. See Sections 102, 203 and
417 of the Mental Health and Mental Retardation Act
q
882a Amended and Supplemental Complaint
of 1966. It is Fong or his delegate that applications
for admission, commitment or release of the plaintiffs
must be made. Haverford State Hospital is an approved
facility under Section 105 of the Mental Health Proce-
dures Act of 1976.
33. Defendants Nicholas D’Aluisio and C. Duane
Youngberg are, respectively, directors of the Polk State
School and Hospital and the Pennhurst State School and
Hospital, both institutions for persons with retardation.
They are charged with supervision and administration of
those facilities. See Sections 102, 203 and 417 of the
Mental Health and Mental Retardation Act of 1966. It
is to D’Aluisio, Youngberg or their delegates that ap-
plications for admission, commitment or release of the
plaintiffs must be made. See:Sections 402 (b), 403 (b)-
and 403(c) of the Mental Health and Mental Retardation
Act of 1966.
VII. FACTUAL ALLEGATIONS
Haverford State Hospital
34. Haverford State Hospital is an institution for
the mentally ill located in a rural area outside Philadel-
phia, Pennsylvania.
35. The institution’s score of buildings cover a
large hilly area in one corner of which is Building 14,
a building with two large wards. The west ward houses
geriatric patients; the door to it is generally unlocked.
The east ward houses juveniles.
26. As of October 31, 1977, there were a total of
12 juveniles in Building 14. Two were committed by
Amended and Supplemental Complaint 883a
juvenile courts, after hearing; ten were committed under
the challenged statutes, having been “volunteered” into
the institution by parents or guardians.
27. Entry into the Children’s Unit in Building 14
is through a door that is kept locked. When a buzzer
is rung, a worker inside comes to unlock the door. The
door bears a sign which reads, “Visiting Hours—1: 30-
4:30 Weekends and Holidays. No evening visits.
(signed) Dr. Bernard Kanther.”
28. The Unit consists of two hallways which cross
at a glass-walled nursing station. One hallway continues
from the entrance door to a large dormitory area for male
patients. Along that hallway are two bare unfurnished
rooms used for “seclusion” or “time-out” purposes. The
second hall has a large dayroom at one end and, at the
other end, a large dormitory for female patients.
29. In the nursing station is a bank of television
monitors which are used to surveil the patients in all areas
of the Unit, including the halls and dormitories.
30. Adjacent to the building are playing areas
fenced in by chain link fences about 12 feet high.
32. Patients, including the plaintiffs, are punished
for misbehavior and for disobedience to staff, and for
violations of unit rules in a variety of ways including:
restriction to the Unit, “meditation” (an enforced period
of standing or sitting in the hallway, with the person for-
bidden to converse or interact with other patients passing
to and fro), or “time out” (lock-up in a bare unfurnished
room, including overnight periods, alone) .
33. Patients have also been pushed, shoved, slapped
and hit by institutional staff with no justification. Pa-
OP re
884a Amended and Supplemental Complaint
tients have been forcibly medicated with intra-muscular
injections as punishment for “acting out” and for the
convenience of staff. The plaintiffs have been subjected
to these conditions.
34. Aides and attendants are given great power and
discretion to impose restrictions on the plaintiffs. Often
this is done arbitrarily with no opportunity provided for»
appeal or review of such decisions.
35. Privileges (such as the opportunity to exercise
outside) , special events, and even some forms of therapy
may be denied to plaintiffs for violations of Unit rules.
36. Unit rules include, inter alia, prohibitions
against chewing gum, smoking, name-calling, visiting
with parents or others in the dormitories.
37. The admission process includes a pre-admission
contact or interview with a social worker and other staff
(this may be the same day as admission) and an inter-
view of the child by a psychiatrist, recorded in an admis-
sion note on the day of admission. The admission note
summarizes the factual and psychiatric basis thought to
justify the commitment.
Kevin S.
38. Plaintiff Kevin S. was admitted to Haverford
State Hospital on July 18, 1977 pursuant to Section 201.
He was born May 2, 1965. He was brought to the
facility by his mother and the county child care agency.
39. A July 25, 1977 evaluation conducted by the
school at which Kevin S. was in the fifth grade provides
as a “diagnostic impression” of him:
Kevin is a very needy, very angry boy who
needs a supportive and consistent environment.
Amended and Supplemental Complaint 885a
He is not currently seen as psychotic although there
is a tendency toward projection and a lack of con-
trols when anxious. A behavior disorder of child-
hood is snggested. It should be noted, however,
that the emergence of adolesence with its attendant
conflicts and changes will in all likelihood, throw
additional strains upon the defenses of an already
disturbed child.
40. Kevin’s mother is separated from her husband,
who lives in New York. His brother, born in 1963, is in
a foster home.
41. Kevin’s mother has a history of serious mental
illness and hospitalizations. She has also physically
abused Kevin. As a result of these problems, most of
Kevin’s early life (he was born in a mental hospital)
was spent in foster homes. Haverford State Hospital’s
psycho-social history describes the facts in this regard:
She Kevin’s mother has many schizophrenic-
type features, such as tangential thinking, flight of
ideas, inappropriate laughter and illogical statements.
During the pre-admission interview there were sev-
eral times when Kevin’s response was much more
appropriate than was his mother’s. When we told
the Squires that we could set an admission date, Mrs.
Squires covered her face with her hands and made
loud and wracking sobs for several seconds, then
immediately stopped and, with no sign of emotion,
exclaimed that Kevin’s admission should be the
sooner the better! This sort of behavior was rather
inappropriate. However, she does have a caring for
Kevin and expresses hope and a positive attitude
that she and Kevin will be helped.
886a Amended and Supplemental Complaint
Reason for Hospitalization: Kevin was admit-
ted on a voluntary 201a admission, signed by his
mother, S. Kevin has a history of much
instability within the family. He was born in a state
mental hospital, as his mother had requested admis-
sion there because she trusted the doctors. He was
in a foster home for his first five months while his
mother was in the state hospital. He subsequently
was in another foster home for a few weeks, when
he was seven years old (along with his brother),
and again in 1971. He was in another foster home
from August 1974, to May 1975, and in another
home for a period of two years. Mrs. Squires would
place the children because she physically abused
them. She was having emotional and marriage dif-
ficulties and could not handle Kevin properly.
42. Shortly before his commitment to the institu-
tion, school authorities objected to his behavior there; he
was allegedly making wierd noises, refusing to do work,
and talking back to teachers. He was suspended from
school. At home, his mother felt, he was hyperactive,
and spent much time playing by himself.
43. During her fifteen years of marriage, Kevin's
mother was in a mental hospital many many times; she
attempted suicide twice before her children was born.
As with Kevin, she was in a mental hospital when her
elder son was born. When pregnant with Kevin, she re-
turned to the hospital and, she told Haverford State Hos-
pital staff, “lied” to get in again.
44. Kevin’s brother, thirteen months his senior, had
beer: in a foster home but at the time of Kevin’s admission
to Haverford was in a foster home in New York under the
Amended and Supplemental Complaint 887a
custody of a county social services department. He too
had been in a mental hospital.
45. The impression of the institution social worker
was, “It is felt that much of Kevin’s problems come from
living with a schizophrenic mother and having a very un-
stable and confused early life.” The social worker noted
that Mrs. S actively uses social systems “to the point of
abuse.”
46. The decision to admit Kevin S. to the institu-
tion was made at a meeting at the hospital on July 13,
1977 with hospital staff and a representative of the coun-
ty child care agency. An admission date of july 18, 1977
was set. No psychiatric report or evaluation was made
during that pre-admission interview.
47. After he was admitted, on July 18, 1977, Dr.
Mia Marcovici interviewed Kevins S. and filed the fol-
lowing “Admission Note:”
REASON FOR ADMISSION: Difficulties ad-
justing to school and family (mother). Exhibited
bizarre behavior in school that has included making
inappropriate sounds and laughing inappropriately.
MENTAL STATUS: (Use 2d page if necessary)
Kevin is a 12 years, 2 month old boy who was ac-
companied to the hospital by his mother and Yol
Sanders from the Delaware County Child Care Ser-
vice. He was clean in his appearance and was gen-
erally cooperative. He had difficulty sitting still and
concentrating on a topic. He was well oriented and
spoke in short sentences. It appears that he spends
a lot of time in his room building walls or playing
with his cars. He has few friends and has difficul-
888a Amended and Supplemental Complaint
ties relating to peers. No thought disorder was
elicited and denied hallucinations.
The “diagnostic impression” noted after this note was
“Withdrawal Reaction of Childhood. 308.1.”
48. The American Psychiatric Association’s Diag-
nostic and Statistical Manual of Mental Disorders, 2d
Edition (hereafter, “DSM-II’’) defines this diagnosis as
follows:
308.1* Withdrawing reaction of childhood
(or adolescence) *
This disorder is characterized by seclusiveness,
detachment, sensitivity, shyness, timidity, and gen-
eral inability to form close interpersonal relation-
ships.
49. There is no indication in the records of Kevin’s
admission to Haverford State Hospital of his comments
or version of the behaviors he was accused of.
Kichard S.
50. Richard S. is a Black youth, age 12, who was
committed to Haverford State Hospital on June 6, 1966
pursuant to Section 201 by the county child care agency
which had and has legal custody of him. He was born
on September 24, 1964.
51. There had been a previous attempt to have him
admitted to the Adolescent Unit of the same institution
but he had not been accepted because of his size and age.
52. Richard S. did not live with his mother until
he was two years old (he was under an agency’s care)
and lived with her at home only until he was four when
Amended and Supplemental Complaint 889a
he was placed in the child care agency’s Children’s Cot-
tage. He later lived in another institutional home for
children and then at a residential school for difficult
students, at which he was placed immediately prior to
his commitment to the mental hospital.
53. Prior to his admission, a contact was made with
the Haverford State Hospital at which the hospital au-
thorities were told that Richard’s problems included
“running away from Silver Springs, putting glass in eye,
striking resident while asleep, shaving head and break-
ing car windshield.”
54. The staff of the school Richard was in recom-
mended hospitalization to the child care agency which, in
January, 1977, six months before his admission, wrote
to Haverford seeking his commitment.
55. The first psychiatric evaluation recorded for
Richard S. in the hospital records is dated June 6, 1977
by Dr. Miz Marcovicci and states as follows:
REASON FOR ADMISSION: Inability to ad-
just to an open setting. History of self harm and
running away.
MENTAL STATUS: (Use 2d page if necessary)
Ricky is a well developed, 12 year 8 month old boy.
He is clean and neat in his appearance. He is well
oriented in all three spheres. Ricky looks down to
the floor most of the time. His eye contact is limited
and he offers no spontaneous conversation. When
asked questions he replies in short sentences. He is
relevant and coherent. He appears preoccupied.
No bizarre or inappropriate behavior was elicited.
No restlessness or fidgitness was noticed. He has a
890a Amended and Supplemental Complaint
history of low impulse control, self harm, running
away and unpredictable behavior.
The diagnostic impression was “Unsocialized Aggressive
Reaction of Childhood.”
56. This diagnosis is defined in the DSM-II as fol-
lows:
308.4* Unsocialized aggressive reaction of
childhood (or adolescence) *
This disorder is characterized by overt or covert
hostile disobedience, quarrelsomeness, physical and
verbal aggressiveness, vengefulness, and destructive-
ness. Temper tantrums, solitary stealing, lying, and
hostile teasing of other children are common. These
patients usually have no consistent parental accept-
ance and discipline.
57. The admission records at Haverford do not
indicate Richard S’s version of the behaviors of which
he was accused. The only “self harm” indicated is the
unexplained reference to “putting glass in eye.”
58. Within a few days of admission, Richard S.
expressed his desire to leave the institution; no attempt
was made by institution staff to provide him with an at-
torney or to advise him of steps to take to obtain his re-
lease.
59. By October, 1977, his diagnosis was changed to
“Withdrawing reaction of childhood”, defined above.
60. The institution’s dector at Haverford prescribed
the drug Thorazine fo be administered by nurses, with-
out further doctor’s order, for any aggressive behavior.
Amended and Supplemental Complaint 89la
James Paul M.
61. James Paul M. was born November 10, 1969
and was admitted at age 7 to Haverford State Hospital
under Section 201 on October 17, 1977.
62. The admission note by Dr. Elizabeth Cheek
states as follows:
REASON FOR ADMISSION: Uncontro!lable
behavior. Learning disability.
MENTAL STATUS: (Use 2d page if necessary)
This eight year old youngster looked cheerful
in the beginning but was clinging to the father later
on. He was dressed in pair of jeans and a T-shirt.
Speech was clear and understandable. There were
no abnormalities of gait. Patient was sucking his
thumb in the beginning and said, “I am not answer-
ing. My Dad will do.” He used the phrase “Oh
Brother” with a sigh for every sentence. Patient
did not sit on a chair for more than 1 minute and
changed toys very frequently. Patient was oriented
to time, place and person. Pat have vague memories
of past but was able to tell about recent things. He
cannot remember the immediate things which were
asked to repeat. He has short attention span, get
frustrated with the toys very easily. Patient was not
sure of the side? He did not like the idea of sep-
arating from father. Patient gets very anxious if he
hears any voice outside. He feels that he should
punch everybody if he cannot get things done. He
sat very near the father later on.
The diagnostic impression was “Minimal brain dysfunc-
tion, learning disability.” These diagnoses are not de-
fined or listed in the DSM-II.
892a Amended and Supplemental Complaint
63. On his first day at the institution, the doctor
prescribed the use of Thorazine. During Paul’s first
week, he was placed in a locked bare room alone, on an
“‘as is necessary basis,” on the discretion of non-medical
staff.
64. Prior to this admission, Paul had been asked to
leave school. At home all day, his behavior deteriorated.
His mother died about a year ago. His father works all
day.
Edward B.
65. Edward B., born October 26, 1965, was com-
mitted to Haverford State Hospital on May 9, 1977 by
his father. He was referred to the institution by his psy-
chiatrist who, it happens, is also a full-time psychiatrist
in another unit at Haverford State Hospital.
66. Five days before admission, the referring psy-
chiatrist and the parents of Edward B. reported to the
social worker that the child had “acted out” at home and
in the community. The only specific behavior reporied
or alleged was that he had thrown a rock through a “win-
dow that borders the school” in April, 1977.
67. At this pre-admission meeting, the parents fur-
ther reported that
they are policing the boy for fear of his running
away, hurting self or others. They are quite con-
cerned that an admission might be necessary when
he comes for pre-admission 5/9/77 as they live in .
neighborhood, and the children call Haverford State
Hospital a place for “retards or crazies.” Neighbors
are now suggesting that Ed is responsible for in-
cidents of destruction in the neighborhood.
Amended and Supplemental Complaint 893a
68. Edward is an adopted child.
69. The admission note by Ora Smith, M.D. of
May 9, 1977 states:
REASON FOR ADMISSION: _ Hyperactive
with poor behavioral controls; threatens to hurt him-
self; feels depressed.
MENTAL STATUS: (Use 2d page if necessary)
This 11 year old boy is alert, oriented; and anxious
and fearful about hospitalization. Has had a long
history of disruptive behavior which is partially con-
trolled by medications.
The “diagnostic impression” recorded in this note is as
follows: “minimal brain dysfunction, adjustment re-
action of childhood.”
70. Minimal brain dysfunction is not defined in the
DSM-II. Adjustment reaction of childhood is defined as
follows:
307.1* Adjustment reaction of childhood*
Example: Jealousy associated with birth of
patient’s younger brother and manifested by noctur-
nal enuresis, attention-getting behavior, and fear of
being abandoned.
The DSM-II notes that this and certain other diagnoses
are “transient situational disturbances” which “occur in
individuals without any apparent underlying mental dis-
orders and that represent an acute reaction to overwhelm-
ing environmental stress.”’
71. During the many months of his commitment
with a diagnosis indicating a short-term problem, the hos-
894a Amended and Supplemental Complaint
pital records and evaluations continued, each month, to
state an “anticipated discharge date” of “three months.”
Paragraphs 84-86 below refer to this plaintiff.
Raymond C.
72. Raymond C., born September 9, 1964, was
committed by his father to Haverford State Hospital at
age 13 pursuant to Section 201.
73. He was referred to a local mental health clinic
by his school. The mental health clinic referred him to
Haverford State Hospital for res zential treatment evalua-
tion.
74. Raymord C., at the time of his admission, was
under the jurisdiction of the Juvenile Court, with a back-
ground of stealing minibikes.
75. He was admitted to Haverford State Hospital
the day he was first seen at that facility.
76. The admission note, dated September 28, 1977,
and reflecting the examination performed on the day of
Raymond’s admission, states:
REASON FOR ADMISSION: History of un-
cooperative disruptive and aggressive behavior in-
cluding run away from school. Problems in com-
munity with stealing and destroying property. Has
a learning and hearing problem—Admission and
evaluation to assist in future planning to meet his
needs.
MENTAL STATUS: (Use 2d sheet if necessary)
An alert, sad and anxious immature looking 13 year
old. Patient avoids (refuses) any conversation with
adults other than his parents. He does not evidence
Amended and Supplemental Complaint 895a
any overt physical deficits other than hearing. He
does not display anything suggestive or psychosis.
His lack of cooperation at this time prevents doing
a desirable mental status examination.
The diagnostic impression was one of a “behavior dis-
order of childhood” and a non-psychotic organic brain
syndrome with associated speech, hearing and learning
disabilities.
77. Raymond C.’s father had a drinking problem.
He died on or about October 30, 1977.
William B.
78. Nine years old, William B. was born on June
18, 1968 and was committed to Haverford State Hospital
by his father, pursuant to Section 201, on September 21,
1977.
79. William’s parents had separated and divorced
when he was an infant. About two years prior to his
commitment, he began living with his natural father in
a home with his stepmother and two stepbrothers.
80. The admission note by Dr. Mia Marcovicci
States:
REASON FOR ADMISSION: Uncontrollable
behavior; preoccupied with matches, set a rug on fire,
turned the gas burners on in the house, throws things
out the window.
MENTAL STATUS: (Use 2d page if necessary)
This 9 years, 3 months old boy was referred to
Haverford State Hospital by Media Child Guidance
Clinic and Dr. Fittie. He has been in therapy for
the past few months and recently his behavior has
896a Amended and Supplemental Complaint
deteriorated. He turned on gas burners in the house,
smears feces and has taken away and hid his young-
est brother’s injectible medication for allergies (the
desensitize lotion vaccine)
Billy is well developed and neat in his appear-
ance. He exhibited no separation anxiety from his
parents and was spontaneous and talkative. He
talked about the boy in his head who tells him to
do bad “things”. He claims so hear his voice but
did not see him. He was restless, anxious and de-
structible. He exhibited some inappropriate be-
havior in the office. Billy is well oriented and co-
herent.
The diagnostic impression was “overanxious rea*tion of
childhood”.
81. This diagnosis is defined in the DSM-II as fol-
lows:
308.2* Overanxious reaction of childhood (or
adolescence) *
This disorder is characterized by chronic anx-
iety, excessive and unrealistic fears, sleeplessness,
nightmares, and exaggerated autonomic responses.
The patient tends to be immature, self-conscious,
grossly lacking in self-confidence, conforming, in-
hibited, dutiful, approval-seeking, and apprehensive
in new situations and unfamiliar surroundings.
82. William B.’s life with family members subjected
him to a situation of extreme inconsistency, disorganiza-
tion and lack of structure. His natural mother’s lite-
style was erratic and she reportedly abused him. His
grandparents have given him affection but their handling
of him has also been destructive to his development.
Amended and Supplemental Complaint 897a
83. His mother and his grandparents were not told
of the plans for his commitment; they were informed after
he was institutionalized.
Edward B., Further Facts (see paragraphs 65-71
above)
84. Eddie B. was admitted to Haverford State Hos-
pital on May 9, 1977, by his parents, very upset, as he
had been tricked into going by his parents. He was com-
mitted under Section 201.
85. The admission note indicates the facts sur-
rounding his entry into the institution:
From the beginning, Eddie was extremely up-
set and crying. He was totally unprepared for
admission to a hospital. On the way, his parents
told him they were taking him to a new school as
he could not continue in his present one. Mrs. B.
explained that this problem had existed for
some time but that he had not been excluded until
recently because she was a teacher in that setting
and the school had permitted him to remain. To
prevent misunderstanding of why he was here, it was
pointed out that this was a hospital and that school
was a part of the program rather than the primary
reason for the children coming. Because Eddie was
so upset, I suggested that one of the teachers tell
him a little about our school so that he could know
this part of the program. Although this was done,
Eddie heard very little about what was said because
of the way he had been brought for this admission.
Eddie then opened up with many feelings about
being tricked into coming by his parents. He ex-
898a Amended and Supplemental Complaint
pressed feelings about them not caring for him and
wanting to get rid of him. Both parents acknowl-
edge that they had “tricked him” because they were
fearful he would hurt or threaten to hurt himself.
They admitted that they had not told him until that
morning and had omitted the fact that this was a
psychiatric hospital. Eddie’s response to this was
to make promises that he would change if he could
stay home. * * * Eddie continued with his fears
of being in a “crazy” hospital and of getting hurt
by other patients—both adults and children. He
also spoke of the high fences and of being kept in,
like a prisoner. * * *
During this admission interview, Eddie was told he would
not be permitted home for a home visit for three weeks
to a month. He responded, “My God, you’re trying to
kill me.” To comfort him, the doctor suggested that he
could go on a trip the next day with the other children.
His parents interjected that they did not trust that he
would not run away. The doctor then agreed that he
would not go on the trip.
86. Eddie was not told during this admission pro-
cess that the institution would help him obtain a lawyer
or any legal assistance.
Francis B.
87. Francis B., born January 9, 1967, was 942 years
old when he was admitted to Haverford State Hospital
on August 16, 1976 pursuant to Section 403 of the Men-
tal Health and Mental Retardation Act of 1966, 50 P.S.
4403.
88. This admission was at the request of his father
who signed admission forms which were not filled out,
Amended and Supplemental Complaint 899a
which did not list the son’s full name (or, on the Section
403 form, any name at all) or any identifying informa-
tion whatsoever. On September 7, 1976, the father ex-
ecuted a form under the successor statute, Section 201,
asking the hospital to commit Francis B. for care and
agreeing that the hospital need not release Francis B.,
even at the father’s request, without at least 72 hours
89. Francis B. comes from a disorganized famil
vhich has rejected him. is wad Milas 0 non
before his commitment indicates, “One of the most dis-
tressing aspects of this case is the almost total rejection
of Frankie by everyone in his family.” His father has
a drinking problem, the records indicate that the “parents
are in need of help also as there is some question here
of physical abuse” and, at the pre-admission interview
at Haverford, it was apparent that “Frank could no[t] do
right in parent’s eyes.” There are five children in the
family, all boys.
90. The admission note of August 16, 1976 by Dr.
Mia Marcovicci which records the psychiatric justification
for the commitment notes “difficulties adjusting to
school” and that Francis B. “has been described as hy-
peractive . . . clowning in order to get attention.” The
diagnostic impression was of “Unsocialized aggressive re-
action of childhood,” a term the official definition of
which is noted above at Paragraph [56].
91. After Francis B. was committed, the institu-
tion received background an referral material including
a psychiatric evalaticn which indicated that “The school
seems f@ tolerate this boy fairly well” and that, despite
the “hyperactivity” attribution, “I cannot describe him
900a Amended and Supplemental Complaint
as hyperactive. In the first interview his mother seemed
more hyperactive than he did.”
Maria L.
92. Maria L., born August 26, 1965, was committed
to Haverford State Hospital on April 25, 1977 by her
mother pursuant to Section 201.
93. The admission note by Dr. Mia Marcovicci
states as follows:
REASON FOR ADMISSION: Difficulties ad-
justing to school because of aggressive behavior.
Difficulties adjusting within the family.
MENTAL STATUS: (Use 2d sheet if necessary)
Maria is a 11 year 7 month old girl who came today
accompanied by her mother. She speaks freely
about her aggressive behavior in school and de-
scribes the fights she gets into. She does not respond
to limits at home.
She is restless and fidgity. She is well oriented
and relates well to the examiner., No bizarre or in-
appropriate behavior was elicited. She claims that
she will miss her brother Danny (suffers from
muscular dystrophy) because “we get in trouble to-
gether”. She does not appear remorseful about her
behavior.
The diagnostic impression was “Unsocialized Aggressive
Reaction of Childhood. 308.4”
94. Maria L. has resisted the regimentation and
directions imposed upon her by the institutional staff;
one staff note quotes her as saying, during a meeting with
staff and her mother, “I don’t have to listen to these staff
people, they’re not my parents.”
Amended and Supplemental Complaint 901a
Thomas W.
95. Thomas W. was committed to Haverford State
Hospital on an emergency commitment which was later
changed to a commitment under Section 201. He was
institutionalized at that facility on June 2, 1977.
96. Born February 14, 1966, Thomas’ parents have
an unstable marriage. After a severe beating which re-
sulted in his hospitalization in 1975, Thomas’ case came
to the attention to social service agencies and his mother
and stepfather were arrested.
97. The county child care agency, which has cus-
tody of Thomas W., committed him to Haverford from
the County Juvenile Detention Center where he allegedly
broke a large window, assaulted a staff member and set
several small fires.
98. The admission. note for Thomas W. states the
basis the facility used for his commitment:
REASON FOR ADMISSION: Fire setting,
rages of 5-6 hours, during which he is assaultive,
destructive and sets fires.
MENTAL STATUS: (Use 2d page if necessary)
Patient is a good looking 11 year old black male
who is well dressed. He rapidly became angry as I
asked him questions. He admits to fire setting and
destructive behavior “because they get on my nerves
.... they get me mad.” He appeared quite bright
902a Amended and Supplemental Complaint
neighborhood. He denied any sexual behavior except
with a nine year old neighbor girl. He denied
insomnia, anorexia, depression and self-destructive
ideation. He said that the only person he trusted
in his family was his three year old sister.
Child Care Worker says he’s repeatedly run
away, goes into rages of 5-6 hours, has demolished
dresser drawers and several windows, pulled a knife
on a cottage staff member, has repeatedly been as-
saultive and was reported to be grunting and evoking
unintelligible verbage last night at the detention
center. He has repeatedly complained that he has
asthma, chest pain and liver trouble but physical was
negative.
99. Scapegoated in the home, the professionals in-
volved in his case feel, Thomas acts out the marital and
family conflict in his daily life.
100. On May 31, 1977, just two days prior to his
commitment to Haverford, Thomas W. was given a psy-
chiatric evaluation by Dr. John Fong, a defendant in this
action. Dr. Fong evaluated Thomas W. not as superin-
tendent of Haverford State Hospital but, at the request
of a county judge, in his capacity as consultant to the
court. He found the child to be non-psychotic but dan-
gerous. He also found that Thomas W. disputed many
of the behaviors he was accused of and explained thai
some were a response to mistreatment. Dr. Fong recom-
mended family therapy, having been informed that admis-
sion was being arranged to a private facility. Haverford
State Hospital information at the time of Thomas W.’s
commitment, however, erroneously stated that Dr. Fong
recommended admission. Despite the involvement of the
Amended and Supplemental Complaint 903a
juvenile court and its jurisdiction over Thomas, no court
hearing or judicial authorization for the commitment was
ever sought or authorized.
Pennhurst State School and Hospital; Polk State
School and Hospital
101. Pennhurst State School and Hospital is lo-
cated in a rural area of Pennsylvania near Valley Forge.
Built in the first decade of this century, it is a over-
crowded and understaffed institution, unaccredited by the
Joint Commission on Accreditation of Hospitals. Resi-
dents generally receive little habilitative programming.
Institutional life for Pennhurst residents is regimented and
unpersonalized. The facility houses about 1200 people.
The institution and its staff are defendants in Halderman
v. Pennhurst State School and Hospital, Civil Action
Number 74-1345 (E.D. Pa., Tried April-June, 1977, pend-
ing decision) .
102. Polk State School and Hospital is located in
the rural community of Polk, Pennsylvania, approximately
80 miles from Pittsburgh. It is not served by any public
transportation. Now housing about 1700 residents, its
rated bed capacity is 1321. Polk was built 80 years ago
in 1897; those ancient buildings continue to house the
plaintiffs in large dormitory areas, residents sleeping
head to head. The institutional conditions are regimented
and unpersonalized.
Gina S.
103. Gina S. was committed to Polk State School
and Hospital on October 20, 1970 by her mother pursuant
to Section 404 of the Mental Health and Mental Retarda-
tion Act of 1966, which permitted any two doctors to
commit any person upon the certification of said doctors.
904a Amended and Supplemental Complaint
_ 104. This statute, Section 404, was declared uncon-
stitutional in 1971 in Dixon v. Attorney General of Penn-
sylvania, 325 F. Supp. 966 (M.D. Pa. 1971) (Three-
Judge Court) .
105. No legal commitment papers were executed
from 1971 until November 25, 1975 (during which time
Gina S. remained at Polk) when the plaintiff’s mother
applied to the defendant director of the institution for
plaintiff’s commitment under Section 402 of the Mental
Health and Mental Retardation Act of 1966.
106. At the age of 6, in 1967, the year her parents
were divorced, Gina S. was placed in a county “infants’
home.” Three years later, in 1970, she was removed by
her mother and taken directly to Polk where she has re-
mained since.
107. The certificates of the doctors certifying the
need for commitment stated as follows:
a. Certificate No. 1:
(History of illness) Mongolism since birth with
moderate retardation.
. (Physical and Mental Findings at Time of Ex-
amination) Px as noted. Has limited speech. Child
can handle most personal care. She has (illegible)
heart disease.
b. Certificate No. 2:
(History of illness) Down’s Syndrome—moder-
ate retardation. Fair speech and recognition.
' (Physical and Mental Findings at Time of Ex-
saree Typical mongoloid features with high
palate, small fifth digit; also with gingival hyper-
trophy, loud systolic m. we aa
Amended and Supplemental Complaint 905a
108. The report of the psychologist which accom-
panied the doctor’s reports reported the facts of her con-
dition as follows: .
(Maturation) Gina is an affectionate and alert
little girl of moderate mongoloid appearance. Mo-
tor development appears adequate, and she was able
to deal with all tasks presented from this standpoint.
(Social Adjustment) Gina was cooperative in
the test setting, sitting quietly but responsive to the
examiner’s questions. Her speech was hard to
understand although some single words were very
distinct.
(Names of Tests and Results) Stanford-Binet,
form L-M: CA: 9-2; MA: 3-4; IQ: 35.
Gina is functioning in the moderately mentally
retarded range of intelligence. She can respond well
to concrete verbal direction, and is able to use lan-
guage denotively.
(Diagnosis) Mongolism, AAMD Classification:
64.
Nancy Louise D.
109. Nancy Louise D. was born in 1960, Both her
parents were alcoholics. Both her parents were mentally
retarded. )
110. In 1961, Nancy Louise war adjudicated a
neglected child and placed under the guardianship of the
county welfare department which placed her in foster
care until May 22, 1968 when she was taken directly from
foster care to Polk State School and Hospital.
906a Amended and Supplemental Complaint
111. On April 12, 1968, the county welfare di-
rector executed an application to the defendant director
of Polk for the commitment of Nancy Louise to Polk.
This was done under the Pennsylvania Mental Health
Act of 1951 (not the 1966 Act). The child was com-
mitted on May 22, 1968.
112. No commitment forms have ever been ex-
ecuted under the Mental Health and Mental Retardation
Act of 1966 by the guardian or by anyone else.
113. The defendant director of Polk purports to
maintain the confinement of the plaintiff pursuant to
Section 402 of the Mental Health and Mental Retardation
Act of 1966.
114. The basis for commitmeft, as described in a
physician’s certificate attached to the 1968 application is
as follows: |
(History of Illness) At age 3% there was
marked retardation—did not walk or talk—began
walking at about 41 years.
(Physical and Mental Findings at Time of Ex-
amination) Psych. reports will be submitted—ob-
viously retarded—Physical examination essentially
neg. except for poor muscular coordination.
George S.
115. George S., abandoned by his parents, was
placed at an early age in the custody of the Philadelphia
Welfare Department which, by contract, arranged for
Catholic Social Services to provide for his care.
116. Catholic Sccial Services placed him from the
first year of bis birth until 6 years later (when he was
Amended and Supplemental Complaint 907a
committed to Pennhurst) with a foster family, Mr. and
Ms. C.
117. In 1969, the foster mother was hospitalized
and, after her discharge, was temporarily not able to re-
sume care of George. As a temporary measure, George
was placed in another foster home; however, because of
the crowded conditions in that home, the placement could
not be maintained. Catholic Social Services, on behalf
of the county welfare department, then applied for and
was granted commitment to Pennhurst for a short-term
period of 90 days.
118. The days lengthened into years; no placement
outside Pennhurst was arranged or obtained despite the
fact that George could function in a non-institutional
setting.
119. George’s foster mother, Ms. S., has maintained
continual contact with him, and attempted to regain care
of him, only to be rebuffed by the institution and the
welfare department, for no proper reason.
120. During his commitment at Pennhurst, George
has suffered numerous bites, scratches and other injuries.
On one ward where he lived, he was frequently tied to
a bench; he would attempt to walk anyway, dragging the
bench after him. Until the last year before the lawsuit
referred to in Paragraph 121 was filed, George was con-
stantly naked or wearing cloihes that were not his; he
never wore shoes or stocks on the bare concrete floors
of the ward. Pennhurst officials told the foster mother
that they medicated George to keep him quiet. On
medication, he would sit and rock, his eyes glassy and
his attitude sleepy. Off drugs, he is fine and plays and
relates to the world.
908a Amended and Supplemental Complaint
121. George S. is a plaintiff in Halderman v. Penn-
hurst State School and Hospital, C.A. No. 74-1345,
brought to trial in April-June, 1977.
The Statutory Scheme for the Mentally IIl
122. Subclass A, plaintiffs alleged to be mentally
ill, are confined to institutions pursuant to Section 201
of the Mental Health Procedures Act of 1977, hereafter,
“Section 201.” This law became effective September 7,
1976.
123. Section 201, in relevant part, states:
A parent, guardian, or person standing in loco
parentis to a child less than 14 years of age may sub-
ject such child to examination and treatment under
this act, and in so doing shall be deemed to be acting
for the child. |
124. There is no time limitation on the length of
a commitment under Section 201.
The Statutory Scheme for the Mentally Retarded
125. The members of Subclass B are confined to
institutions pursuant to Sections 402 and 403 of the Men-
tal Health and Mental Retardation Act of 1966, hereafter,
Sections 402 and 403, under a scheme described and dealt
with by the Court in the earlier phase of this litigation.
126. Sections 402 and 403 provides that applica-
tions for admission/commitment may be made by:
A parent, guardian or individual standing in loco
parentis to the person to be admitted, if such person
is eighteen years of age or younger.
Section 402 (a) (2); Section 4C3(a) (2) (identical lan-
guage in both sections) .
Amended and Supplemental Complaint 909a
127. There is no time limitation on the length of
commitments under Sections 402 and 403.
Commitments of Other Persons in Pennsylvania
128. Aside from the members of the plaintiff class,
other persons committed to Pennsylvania institutions for
the mentally ill and the mentally retarded do so either
voluntarily on their own personal volition or for short-
term emergency care or after a judicial hearing at which
they have the rights to notice, appointed counsel, pre-
sentation of testimony in their own behalf, confrontation
and cross-examination of adverse witnesses, expert as-
sistance, court-ordered outpatient or partial hospitaliza-
tion instead of in-hospital commitment. Many juveniles
are committed under the statutory provisions guaranteeing
such procedural protections, including juveniles in plain-
tiffs’ situations.
Department of Public Welfare Regulations
129. On September 1, 1973, during the pendency
of this lawsuit, the defendants adopted regulations re-
garding the commitment of juveniles, published in vol-
ume 37, Pennsylvania Bulletin (Sept. 1, 1973). These
regulations continue to apply to Subclass B, the plaintiffs
who are persons with retardation. These regulations do
not apply to Subclass A, those persons committed under
Section 201, as allegedly mentally ill.
130. The three plaintiffs technically subject to these
regulations are totally unable to benefit thereby, as they
are unable to understand the rights stated therein or to
exercise them. The applicants for admission (two wel-
fare agencies and a parent) have not and will not utilize
those provisions to secure these plaintiffs’ rights.
910a Amended and Supplemental Complaint
Previous Hospitalization
131. Absolutely none of the named plaintiffs in this
actiom have received mental hospitalization prior to the
commitments to the institutions in which they are now
confined.
Family Disorganization
132. Families seeking commitment of allegedly
handicapped children are characterized by severe stress,
dislocation and disharmony. The problems of children
are a function of intrafamilial problems and exist in a
context of a weakened family structure, with conflict
overtly expressed.
133. The juvenile behavior which precipitates in-
stitutionalization may be provoked by the parents; there
are also many cases where the child may be driven to
such behavior by the conflicts in the home.
134. Parents will often seek to institutionalize
children for improper reasons. This stems from honest
mistakes or ignorance or sometimes from malice or ill
will. In a significant number of cases, the parental pur-
pose of bringing a child to residential treatment has been
to accuse, punish and separate the child from the home.
The motivation is not always good.
135. Parents are not particularly good observers of
children’s behavior and symptoms and, especially in the
context of the high feelings that run in situations of con-
flict, parents are not reliable sources of factual informa-
tion about the child and his or her behavior.
136. Parents who bring their children to psy-
chiatrists for care cannot be objective reporters of the be-
Amended and Supplemental Complaint 9ila
havioral background of the child. They often exaggerate
and misinterpret the actions of their children and may
often react antagonistically to their children.
Effects of Institutionalization
137. Institutionalization is a severe deprivation of
one’s liberty and may be extremely harmful, resulting in
what one of the state’s witnesses at trial called “an emo-
tional deficiency disease.”’ Barton, Institutional Neurosis
(2d Ed. 1966); Goffman, Asylums (1961); Belknap,
Human Problems of State Mental Hospitals (1956);
Stanton and Schwartz, The Mental Hospital (1954);
Wing and Brown, /nstitutionalization and Schizophrenia
(1970); Vail, Dehumanization and the Institutional
Career (1966) .
138. Institutionalization for mental handicap re-
sults in severe social stigma, self-stigmatization, employ-
ment and license discrimination and liabilities.
139. In a practical sense, institutionalization may
make treatment difficult because of the difficulty in in-
volving the family in treatment and the fact that an in-
stitutional setting is less likely to be oriented toward fam-
ily pathology. As one expert testified on the general ill
effects of institutions, “We have to be cognizant of the
enormous social toll that institutionalization brings.”
Reliance on Psychiatrists Would Be Misplaced
140. The mentally retarded should not be in institu-
tions at all.
141. Psychiatrists can and do err and disagree in
making diagnoses and recommendations for institution-
alization of plaintiffs.
912a Amended and Supplemental Complaint
142. As children who are most likely to be institu-
tionalized are in the lower class, the psychiatrists who
evaluate them are at a great distance culturally, class-wise
and geographically from the situation in which the chil-
dren are living, and thus the psychiatrists misperceive be-_
havior.
143. Psychiatric evaluations for commitment are
short and not conducted over a sufficient period of time.
Children are often referred for hospitalization without
exploration of less restrictive alternatives. Over crowded
clinics may overrecommend institutionalization.
144. In the stress of the admission interview, a
juvenile may not present an accurate picture of his or her
mental status and may appear in worse condition than is
actually the case.
145. There is pressure on the institutional doctor
to agree with any referring psychiatrist’s recommendation
for institutionalization; the needs of the institution will
inevitably affect admission decisions of institutional doc-
tors; the information that largely influences the doctor’s
decision to commit comes from the parents and any
146. Some psychiatrists may start with a presump-
tion that the person before them is mentally disturbed,
thereby leading to a skewed interpretation of the picture
presented.
147. Improper evaluations may result from counter-
transference due to which the psychiatrist may become
unable to recognize or to explore the patient’s conflict in
some situations.
Amended and Supplemental Complaint 913a
148. There is a tremendous conflict of interest
created when psychiatrists are permitted to make institu-
tionalization decisions.
149. Present law permits parents to doctor-shop
for doctors who will agree to commit their child.
150. The considerations detailed above apply as
well to the mentally retarded.
Factual Basis of Need for Hearing
151. Because of their immaturity and lack of ex-
perience, it is even more important that juveniles receive
the protection of a hearing than adults. This is especially
true of those persons under 14, who are severely limited
in their ability to speak for themselves and of the retarded
18 and under.
152. Assistance of counsel is essential and can help
treatment of juveniles and can in no significant way
hinder such treatment.
153. Hearings would not be unduly traumatic for
juveniles and would not interfere with treatment or the
parent-child relation. To the contrary, a hearing would
encourage more appropriate resolution of problems and
would have a positive and beneficial effect on the child.
154. The opportunity for hearings would not dis-
courage people from seeking treatment for juveniles, but
would result in agencies and psychiatrists performing
more effectively and in the avoidance of the necessity of
hearings in many cases.
9i4a Amended and Supplemental Complaint
VIII. CAUSE OF ACTION
155. By operation of Section 201 and Sections 402
and 403, plaintiffs and their class are detained and in-
carcerated involuntarily in mental institutions without
the right to notice, the right to a hearing or hearings, the
right to counsel and, if indigent, appointment of coun-
sel, the right to present evidence and testimony on their
own behalf, the right to subpoena witnesses and docu-
ments, the right to confront and cross-examine witnesses
against them and those who wish them to be committed,
the right to independent expert examination and assist-
ance, the right to be involuntarily detained only upon the
decision of a disinterested and impartial decision-maker,
the right to appeal, other procedural safeguards.
156. By operation of the said statutes, and by de-
fendants’ actions in operating, enforcing and executing
the same, plaintiffs and their class are deprived of their
life, liberty and property without Due Process of Law
in violation of the Fourteenth Amendment to the United
States Constitution.
IX. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray, on be-
half of themselves and all others similarly situated, that
this Honorable Court:
1. Continue jurisdiction of this cause, and the
already-convened three-judge court, and set this case
promptly for an expedited hearing;
Amended and Supplemental Complaint 915a
2. Determine by order, pursuant to Rule 23(c) (1)
that this action be maintained as a class action;
3. Enter a final judgment, pursuant to 28 U.S.C.
2201 and 2202 and Rule 57 of the Federal Rules of Civil
Procedure declaring that the challenged statutes are in-
valid, void and of no effect on the ground that they violate
the Fourteenth Amendment to the United States Constitu-
tion;
4. Enter preliminary and final injunctions enjoining
defendants from enforcing and executing such statutory
provisions;
5. Allow plaintiffs and the guardian ad litem their
costs herein and reasonable attorney and guardian ad
litem fees;
6. Grant such additional and alternative relief as
may be deemed by the Court appropriate, just, proper and
equitable.
Respectfully submitted,
(s) David Ferleger
David Ferleger, Esquire
2521 Sansom Street
Philadelphia, Pa. 19103
215-735-8409, 567-2828
Attorney and Guardian ad Litem
for Plaintiffs
November 2, 1977
916a Answer
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing ]
ANSWER
First Defense
1. PARAGRAPH ONE (1) contains legal con-
clusions to which NO RESPONSES are required. How-
ever, if they are deemed factual in nature they are denied.
2. PARAGRAPH TWO (2) is ADMITTED to
the extent that it characterizes the form of the action and
the manner in which it is brought; all remaining aver-
ments are denied.
3. PARAGRAPH THREE (3) is ADMITTED to
the extent that it avers that the defendants are responsible
for the custody of the piaintiffs. The characterization of
the custody as “involuntary” is a LEGAL CONCLUSION
to which NO RESPONSE is required. However, if it is
deemed factual in nature, it is denied.
4. PARAGRAPH FOUR (4) is ADMITTED.
5. PARAGRAPH FIVE (5) is ADMITTED to
the extent that it purports to characterize the jurisdic-
tional base of this action.
6. PARAGRAPH SIX (6) is ADMITTED to the
extent that it purports to characterize the jurisdictional
base of the action. The remaining averment, that de-
fendants acted under c»lor of state law, constitutes a
LEGAL CONCLUSION to which no response is required.
However, if it is deemed factual in nature, it is DENIED.
Answer 917a
7. PARAGRAPH SEVEN (7) is ADMITTED to
the extent that it purports to set forth the statutes and
Federal Rules authorizing plaintiffs’ claims for relief.
8. PARAGRAPH EIGHT (8) constitutes a LE-
GAL CONCLUSION to which NO RESPONSE is re-
quired.
9. PARAGRAPH NINE (9) is ADMITTED to
the extent that it purports to characterize the form of this
action.
10. PARAGRAPH TEN (10) is ADMITTED to
the extent that it purports to describe the proposed plain-
tiff class.
11. PARAGRAPH ELEVEN (11) is DENIED.
12. PARAGRAPH TWELVE (12) is DENIED.
13. PARAGRAPH THIRTEEN (13) is ADMIT-
TED to the extent that it purports to set forth the ques-
tions of law and fact involved in this action.
14. PARAGRAPH FOURTEEN (14) is ADMIT-
TED.
15. PARAGRAPH FIFTEEN (15) is ADMITTED
to the extent that it avers the manner in which the plain-
tiffs bring this action, all remaining factual averments are
DENIED. .
16. PARAGRAPH SIXTEEN (16) is ADMIT-
TED. ~
17. PARAGRAPH SEVENTEEN (17) is ADMIT-
TED.
18. PARAGRAPHS EIGHTEEN (18) through
THIRTY-FIVE (35) are ADMITTED.
918a ‘ Answer
26. (Numbered incorrectly in Complaint) PARA-
GRAPH TWENTY-SIX (26) (page 7 of Complaint) is
ADMITTED except that it is DENIED that the plain-
tiffs’ parents “volunteered” the plaintiffs into Haverford
State Hospital.
27. (Numbered incorrectly in Complaint) PARA-
GRAPH TWENTEY-SEVEN (27) (page 7 of Com-
plaint) is ADMITTED.
28. (Numbered incorrectly in Complaint) PARA-
GRAPH TWENTY-EIGHT (28) (page 7 of Complaint)
is ADMITTED except that it is DENIED that “[a]long
the hallway are two bare unfurnished rooms. . . .”.
29. (Numbered incorrectly in Complaint) PARA-
GRAPH TWENTY-NINE (29) (page 7 of Complaint)
is ADMITTED.
30. (Numbered incorrectly in Complaint) PARA-
GRAPH THIRTY (30) (page 8 of Complaint) is AD-
MITTED.
32. (Numbered incorrectly in Complaint) PARA-
GRAPH THIRTY-TWO (32) (page 8 of Complaint) is
DENIED.
33. (Numbered incorrectly in Complaint) PARA-
GRAPH THIRTY-THREE (33) (page 8 of Complaint)
is DENIED.
34. (Numbered incorrectly in Complaint) PARA-
GRAPH THIRTY-FOUR (34) (page 8 of Complaint)
is DENIED.
35. (Numbered incorrectly in Complaint) PARA-
GRAPH THIRTY-FIVE (35) (page 8 of Complaint) is
DENIED.
Answer 919a
36. PARAGRAPH THIRTY-SIX (36) is ADMIT-
TED.
37. PARAGRAPH THIRTY-SEVEN (37) is AD-
MITTED.
38. PARAGRAPH THIRTY-EIGHT (38) is AD-
MITTED.
39. PARAGRAPH THIRTY-NINE (39) is AD-
MITTED.
40. PARAGRAPH FORTY (40) is ADMITTED
except it is DENIED that Kevin’s brother is in a foster
home.
41. PARAGRAPH FORTY-ONE is DENIED.
42. PARAGRAPHS FORTY-TWO (42) = and
FORTY-THREE (43) are ADMITTED only to the extent
that they accurately summarize certain portions of Kevin
S’s official records at Haverford State Hospital.
44. PARAGRAPH FORTY-FOUR (44) is AD-
MITTED.
45. PARAGRAPH FORTY-FIVE (45) is DE-
NIED as it is an incomplete and therefore inaccurate
reference to certain portions of Kevin S.’s official records
at Haverford State Hospital.
46. PARAGRAPH FORTY-SIX (46) is ADMIT-
TED to the extent that it avers that the decision to admit
Kevin S. to Haverford was made on July 13, 1977, and
that an admission date of July 18, 1977 was established.
All remaining averments are DENIED.
47. PARAGRAPH FORTY-SEVEN (47) is AD-
MITTED.
EE Se ee —
r
920a Answer
48. PARAGRAPH FORTY-EIGHT (48) is DE-
NIED as being incomplete and therefore inaccurate.
49. PARAGRAPH FORTY-NINE (49) is DE-
NIED.
50. PARAGRAPH FIFTY (50) is DENIED.
51. PARAGRAPH FIFTY-ONE (51) is DENIED.
52. PARAGRAPH FIFTY-TWO (52) is ADMIT-
TED only to the extent that it accurately summarizes cer-
tain portions of Richard S.’s official records at Haver-
ford State Hospital.
53. PARAGRAPH FIFTY-THREE (53) is DE-
NIED.
54.-55. PARAGRAPHS FIFTY-FOUR (54) and
FIFTY-FIVE (55) are ADMITTED.
56. PARAGRAPH FIFTY-SIX (56) is DENIED
as being incomplete and therefore inaccurate.
57.58. PARAGRAPHS FIFTY-SEVEN (57) and
FIFTY-EIGHT (58) are DENIED.
59. PARAGRAPH FIFTY-NINE (59) is ADMIT-
TED. : ;
60. PARAGRAPH SIXTY (60) is DENIED.
61.62. PARAGRAPHS SIXTY-ONE (61) and
SIXTY-TWO (62) are ADMITTED.
63. PARAGRAPH SIXTY-THREE (63) is DE-
NIED.
64. PARAGRAPH SIXTY-FOUR (64) is AD-
MITTED only to the extent that it accurately summarizes
Answer 921a
certain portions of Richard S.’s official records at Haver-
ford State Hospital.
65. PARAGRAPH SIXTY-FIVE (65) is ADMIT-
TED except that it is DENIED that Edward B.’s psy-
chiatrist is “also a full-time psychiatrist in another unit
at Haverford State Hospital”.
66.67. PARAGRAPHS SIXTY-SIX (66) and
SIXTY-SEVEN (67) are DENIED as incomplete and
therefore inaccurate summaries of certain portions of
Edward B.’s official records at Haverford State Hospital.
68.69. PARAGRAPHS SIXTY-EIGHT (68) and
SIXTY-NINE (69) are ADMITTED.
70. PARAGRAPH SEVENTY (70) is DENIED as
being incomplete and therefore inaccurate.
71. PARAGRAPH SEVENTY-ONE (71) is DE-
NIED except that it is ADMITTED that paragraphs 84-86
refer to this plaintiff.
72. PARAGRAPH SEVENTY-TWO (72) is AD-
MITTED except that it is DENIED that Raymond C. was
committed by his father to Haverford State Hospital.
73. PARAGRAPH SEVENTY-THREE (73) is
ADMITTED.
74. PARAGRAPH SEVENTY-FOUR (74) is DE-
NIED.
75.-76. PARAGRAPHS SEVENTY-FIVE (75)
and SEVENTY-SIX (76) are ADMITTED.
77. PARAGRAPH SEVENTY-SEVEN (77) is DE-
NIED.
922a Answer
78.80. PARAGRAPHS SEVENTY-EIGHT (78)
through EIGHTY (80) are ADMITTED.
81. PARAGRAPH EIGHTY-ONE (81) is DE-
NIED as being incomplete and therefore inaccurate.
82. PARAGRAPH EIGHTY-TWO (82) is AD-
MITTED only to the extent that it accurately summarizes
certain portions of William B.’s official records at Haver-
ford State Hospital.
83. PARAGRAPH EIGHTY-THREE (83) is DE-
NIED in that the defendants are without knowledge or
information sufficient to form a belief as to the truth of
the averments contained therein.
84.-85. PARAGRAPHS EIGHTY-FOUR (84) and
EIGHTY-FIVE (85) are DENIED.
86.87. PARAGRAPHS EIGHTY-SIX(86) and
EIGHTY-SEVEN (87) are ADMITTED.
88. PARAGRAPH EIGHTY-EIGHT (88) is DE-
NIED.
89.90. PARAGRAPHS EIGHTY-NINE (89) and
NINETY (90) are ADMITTED only to the extent that
they accurately summarize certain portions of Francis
B.’s official records at Haverford State Hospital.
91. PARAGRAPH NINETY-ONE (91) is DE-
NIED.
92.93. PARAGRAPHS NINETY-TWO (92) and
NINETY-THREE (93) are ADMITTED.
94. PARAGRAPH NINETY-FOUR (94) is DE-
NIED as being incomplete and therefore inaccurate.
Answer 923a
95. PARAGRAPH NINETY-FIVE (95) is AD-
MITTED.
96.97. PARAGRAPHS NINETY-SIX (96) and
NINETY-SEVEN (97) are ADMITTED only to the ex-
tent that they accurately summarize certain portions of
Thomas W.’s official records at Haverford State Hospital.
98. PARAGRAPH NINETY-EIGHT (98) is AD-
MITTED.
99. PARAGRAPH NINETY-NINE (99) is DE-
NIED.
100. PARAGRAPH ONE HUNDRED (100) is
DENIED.
101. PARAGRAPH ONE HUNDRED AND ONE
(101) is DENIED except that it is ADMITTED that
Pennhurst State School and Hospital is located in a rural
area of Pennsylvania near Valley Forge, and that it
originated in the first decade of this century and is cur-
rently unaccredited by the Joint Commission on Accredita-
tion of Hospitals.
102. PARAGRAPH ONE HUNDRED AND TWO
(102) is ADMITTED to the extent that it avers that Polk
State School and Hospital is located in the rural com-
munity of Polk, Pennsylvania, approximately 80 miles
from Pittsburgh and originated in 1897. All remaining
averments are DENIED.
103.-116. PARAGRAPHS ONE HUNDRED AND
THREE (103) through ONE HUNDRED AND SIX-
TEEN (116) are ADMITTED only to the extent that
they accurately summarize certain portions of the speci-
fied plaintiffs’ official records at Polk State School and
Hospital.
ee ee ee
et ee
924a Answer
117. PARAGRAPH ONE HUNDRED AND SEV-
ENTEEN (117) is ADMITTED only to the extent that
it accurately summarizes certain portions of George S.’s
official records at Pennhurst State School and Hospital
except that it is denied that Catholic Social Services was
granted a “commitment to Pennhurst for a short-term pe-
riod of 90 days.”
118. PARAGRAPH ONE HUNDRED AND
EIGHTEEN (118) is DENIED.
119.-120. PARAGRAPHS ONE HUNDRED AND
NINETEEN (119) and ONE HUNDRED AND TWEN-
TY (120) are DENIED.
122.-129. PARAGRAPHS ONE HUNDRED AND
TWENTY-TWO (122) through ONE HUNDRED AND
TWENTY-NINE (129) constitute legal conclusions and
therefore require NO RESPONSES.
130. PARAGRAPH ONE HUNDRED AND
THIRTY (130) is DENIED.
131. PARAGRAPH ONE HUNDRED AND
THIRTY-ONE (131) is ADMITTED.
132.-156. PARAGRAPHS ONE HUNDRED AND
THIRTY-TWO (132) through ONE HUNDRED AND
FIFTY-SIX (156) constitute legal conclusions and there-
fore require NO RESPONSE, if however, they should be
deemed factual in nature, they are DENIED.
Second Defense
Plaintiffs’ claims must be dismissed inasmuch as
there is not sufficient “state action” to implicate the Due
Process Clause of the Fourteenth Amendment.
Answer 925a
Third Defense
Plaintiffs have failed to state a claim for which re-
lief may be granted.
Fourth Defense
This Court lacks jurisdiction over the subject matter
of this action.
Fifth Defense
The classes proposed by plaintiff should not be al-
lowed in that juveniles who have been admitted by pub-
lice welfare agencies cannot adequately represent those
unnamed juveniles who have been admitted by their par-
ent or parents.
Sixth Defense
This case should not be maintained as an action
against a class of defendants.
Seventh Defense
Plaintiffs have failed to exhaust adequate statutory
remedies available to them under state law.
WHEREFORE, defendants request that the com-
aang be dismissed and that judgment be entered in their
avor.
(s) Norman J. Watkins
NORMAN J. WATKINS
f Deputy Attorney General
ROBERT B. HOFFMAN
Assistant Attorney General
J. JUSTIN BLEWITT, JR.
Deputy Attorney General
Chief, Civil Litigation
ROBERT P. KANE
Attorney General
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926a Motion for Class Action
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing]
MOTION FOR CLASS ACTION
Plaintiffs, by their attorney and guardian ad litem, :
hereby move the Court to declare this a class action, pur-
suant to Rule 23(a) and 23(b) (2) of the Federal Rules
of Civil Procedure and to allow it to be maintained on
behalf of the following class and subclasses of plaintiffs
and against the following class of defendants:
Plaintiff Class and Subclasses:
The members of the class of plaintiffs are all
persons who are or who may be committed to insti-
tutions for the mentally ill and the mentally retarded
in Pennsylvania upon application of parents or
guardians and without notice, hearing, counsel and
other procedural safeguards.
Subclass A of plaintiffs includes all those per-
sons under 14 years of age committed under Section
201 of the Mental Health Procedures Act of 1976.
Subclass B of plaintiffs consists of all persons 18
years of, age or younger committed under Sections
402 and 403 of the Mental Health and Mental Re-
tardation Act of 1966.
Motion for Class Action 927a
Defendant Class:
, The defendant class are al! directors of all men-
tal health and mental retardation facilities in Penn-
sylvania, all of which are subject to the challenged
statutes and all of which are subject to regulation by
the defendant Secretary of Public Welfare.
For the purposes of this motion and the proposed
classes, “‘facilities” refers to those institutions for residen-
tial care defined in Section 102 of the Mental Health and
Mental Retardation Act of 1966 and in Section 105 of the
Mental Health Procedures Act of 1976.
The requirements of Rule 23 are met in that: the
class is so numerous that joinder of all members is im-
practical (the plaintiffs number in the thousands, the de-
fendants include scores of facility directors); there are
questions of law and fact common to the class (see para-
graph 13 of Amended and Supplemental Complaint) ; the
claims of the representative parties are typical of the
claims of the class (true as to both defendants and plain-
tiffs) ; the representative parties will fairly and adequate-
ly protect the interests of the class; and the parties oppos-
ing the class have acted on grounds generally applicable
to the class, thereby making appropriate final injunctive
and declaratory relief with respect to’the class as a whole.
One important word with respect to the class repre-
sentation and adequacy thereof. The Supreme Court’s ad-
monition to this Court that it “stop, look and listen” be-
fore certifying a class, noting the state’s regulations and
the potential distinction between younger and older chil-
dren, Kremens v. Bartley, Slip Opinion at 14-15, should
and must be responded to by emphasizing that this case
deals with the minimum due process required for all com-
we ——_
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(we.
enue a Gm a
rete ee
opener
-
928a Motion for Class Action
mitments, of whatever age the child, and whatever the
alleged “disability.” Thus, the facts of the case require
no further counsel or further subclasses for a proper and
adequate disposition. The Court might also wish to note
that present counsel has properly and competently main-
tained this action as guardian ad litem and the Court
might specifically make a finding of no conflict of inter-
est among members of the plaintiff class.
There can be no doubt that a class action is an ap-
propriate vehicle for determination of due process claims
of mental patients. E.g., Meisel v. Kremens, 405 F. Supp.
1253 (E.D. Pa. 1975) (invalidating summary revocation
of mental patients’ long term leave); Goldy v. Beal, 429
F. Supp. 640 (M.D. Pa. 1976) (Three-Judge Court) (in-
validating civil commitment statute) ; Bell v. Wayne Coun-
ty General Hospital, 384 F. Supp. 1085 (E.D. Mich.
1974) (civil commitment); Lessard v. Schmidt, 349 F.
Supp. 1078 (E.D. Wis. 1972) (civil commitment) ;
Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974).
No further memorandum will be submitted in sup-
port of this motion, except at the Court’s direction or in
response to any filing by the defendants.
For the convenience of the Court, and should the
Court not file a memorandum on this issue, plaintiffs have
attached a draft proposed order for class action determi-
nation.
Respectfully submitted,
(s) David Ferleger
David Ferleger, Esquire
2321 Sansom Street
Philadelphia, Pa. 19103
Motion for Class Action 929a
Certificate of Service
David Ferleger, Esquire, hereby certifies that on the
8th day of November, 1977, he mailed true and correct
copies of the foregoing to all counsel for the defendants
herein and to counsel for the amici, by U.S. Mail, first
class postage pre-paid.
(s) David Ferleger
930a Interrogatories To Defendants
IN THE UNITED STATES DISTRiCT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing]
INTERROGATORIES TO THE DEFENDANTS
Pursuant to Rule 33 of the Federal Rules of Civil
Procedure, plaintiffs request the defendants to answer,
under oath, the following interrogatories:
1. How many juveniles, mentally ill and mentally
retarded, were confined in state owned and operated in-
stitutions for the mentally ill as of October 31, 1977,
(1) under Section 201 of the Mental Health Procedures
Act of 1976, (2) under 302, 303, 304 and 305 of that
Act, (3) under Sections 402, 403, 405 and 406 of the
Mental Health and Mental Retardation Act of 1966. For
sections (1) and (2), “juvenile” means a person under
14; for section (3), juvenile means a person between 0
and 18.
2. How many juveniles (defined as a person be-
tween 0 and 18) were confined in state owned and op-
erated state schools and hospitals for the retarded as of
October 31, 1977, under Sections 402, 403, 405 and 406
of the Mental Health and Mental Retardation Act of 1966.
3. How many juveniles were confined as of Octo-
ber 31, 1977 in licensed facilities in Pennsylvania pursu-
Interrogatories To Defendants 931a
ant to the categories in interrogatory No. 1 and accord-
ing to the definitions in that interrogatory.
4. For each juvenile identified in interrogatories 1
through 3 above, obtain the identity and nature of rela-
tionship of the applicant for admission/commitment, and
specify in aggregate form that information (e.g., parent,
foster parent, county welfare department, police, other
relative, juvenile court official, neighbor) .
Please reply within 30 days to David Ferleger, coun-
sel for:plaintiffs, at the address below.
(s) David Ferleger
David Ferleger, Esquire
2321 Sansom Street
Philadelphia, Pa. 19103
215-567-2828, 735-8409
Counsel for Plaintiffs
C22 oo ela eee
ewe ee
932a Answer to Interrogatories
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing]
DEFENDANTS’ ANSWER TO PLAINTIFFS’
INTERROGATORIES
Pursuant to Rule 33 of the Federal Rules of Civil
Procedure, Defendants here submit the following An-
swers to Plaintiffs’ Interrogatories.
1. As of October 31, 1977, there were in state-
owned and operated institutions for the mentally ill:
100 juveniles under Section 201;
0 juveniles under Section 302;
0 juveniles under Section 303;
8 juveniles under Section 304;
2 juveniles under Section 305;
0 juveniles under Section 402;
0 juveniles under Section 403;
0 juveniles under Section 405;
1 juvenile under Section 406.
2. As of October 31, 1977, there were in state-
owned and operated centers for the retarded:
984 juveniles under Section 402;
1 juvenile under Section 403;
0 juveniles under Section 405;
66 juveniles under Section 406.
3. As of October 31, 1977, there were in licensed
facilities in Pennsylvania:
Answer to Interrogatories 933a
juveniles under Section 201;
juveniles under Section 302;
juveniles under Section 303;
juveniles under Section 304;
juveniles under Section 305;
2052 juveniles under Section 402;
3 juveniles under Section 403;
0 juveniles under Section 405;
47 juveniles under Section 406.
4. The juveniles identified in paragraph one
through three above were admitted/committed to these
institutions by persons or agencies as follows:
2689 by natural parent;
5 by foster parent;
300 by county welfare agencies;
0 by police;
21 by other relatives;
119 by Juvenile Court;
0 by neighbor;
10 by guardian;
120 by others.
Respectfully submitted,
(s) Norman J. Watkins
NORMAN J. WATKINS
Deputy Attorney General
ROBERT B. HOFFMAN
Assistant Attorney General
J. JUSTIN BLEWITT, JR.
Deputy Attorney General
Chief, Civil Litigation
ROBERT P. KANE
Attorney General
934a Answer to Interrogatories
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[ Caption Omitted in Printing]
AFFIDAVIT
I, MARGARET UNDERKOFFLER, being duly
sworn according to law, hereby depose and say that:
1. The foregoing answer on behalf of Defendants to
Plaintiffs’ Interrogatories are true and correct to the best
of my knowledge, information and belief.
(s) Margaret Underkoffler
Margaret Underkoffler
Subscribed and sworn to before me this 8th day of
December, 1977.
My Commission Expires May 13, 1978.
(Seal)
Answer to Interrogatories 935a
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing]
AFFIDAVIT
I, KATHLEEN M. ETZWEILER, being duly sworn
according to law, hereby depose and say that:
1. The foregoing answers on behalf of Defendants
to Plaintiffs’ Interrogatories are true and correct to the
best of my knowledge, information and belief.
(s) Kathleen M. Etzweiler
Kathleen M. Etzweiler
Subscribed and sworn to before me this 8th day of
December, 1977.
Eva R. Hartman
Notary
Notary Public
My Commission Expires May 13, 1978.
(Seal)
Ws ae ee
.
:
936a § Supplemental Answers to Interrogatories
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[ Caption Omitted in Printing]
DEFENDANTS’ SUPPLEMENTAL ANSWERS TO
PLAINTIFFS’ INTERROGATORIES
Pursuant to Rule 33 of the Federal Rules of Civil
Procedure, Defendants here submit the following Supple-
mental Answers to Plaintiffs’ Interrogatories. The Sup-
plemental Answers provide information on the number of
juveniles in licensed mental health facilities and the man-
ner of their placement, in response to questions three (3)
and four (4) of Plaintiffs’ Interrogatories.
3. As of October 31, 1977, there were in licensed
facilities in Pennsylvania:
250 juveniles under Section 201
0 juveniles under Section 302
0 juveniles under Section 303
0 juveniles under Section 304
0 juveniles under Section 305
4. The juveniles identified in paragraph three (3)
above were admitted/committed to these institutions by
persons or agencies as follows:
249 by natural parent
O by foster parent
Supplemental Answers to Interrogatories 937a
1 by county welfare agency
0 by police
0 by other relatives
0 by Juvenile Court
0 by neighbor
0 by guardian
0 by others
Respectfully submitted,
(s) Norman J. Watkins
Norman J. Watkins
Deputy Attorney General
Robert B. Hoffman
Assistant Attorney General
J. Justin Blewitt, Jr.
Chief, Civil Litigation
Robert P. Kane
Attorney General
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing]
AFFIDAVIT
I, Margaret Underkoffler, being duly sworn accord-
ing to law, hereby depose and say that:
1. The foregoing answers on behalf of Defendants
to Plaintiffs’ In tories are true and correct to the
best of my know , information, and belief.
(s) Margaret Underkoffler
Margaret Underkoffler
938a § Supplemental Answers to Interrogatories
Subscribed and Sworn to before me this 19th day of
December, 1977.
Eva R. Hartman
Notary
Notary Public
My Commission Expires May 13, 1978.
(Seal)
Certificate of Service
AND NOW, this 22nd day of December, 1977, I,
Norman J. Watkins, Deputy Attorney General for the
Commonwealth of Pennsylvania, counsel for Defendants,
hereby certify that on Thursday, December 22, 1977, I
served Defendants’ Supplemental Answers to Plaintiffs’
Interrogatories by depositing said document in the United
States Mail, postage prepaid, addressed to:
David Ferleger, Esquire
2321 Sansom Street
Philadelphia, PA 19103
(s) Norman J. Watkins
NORMAN J]. WATKINS
Deputy Attorney General
iid
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aS ot suvesy anstitucauns aS Or uctoper 31, 1977 | 939a
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Mental Health Procedures Act of 1976 MA/HR Act of 1966
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Response to Motion 941a
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing ]
DEFENDANTS’ RESPONSE TO PLAINTIFFS’
MOTION FOR CLASS ACTION
Defendants hereby respond and object to Plaintiffs’
Motion for Class Certification as follows:
1. The factual and legal considerations for children
who have been institutionalized at the behest of a public
service agency differ significantly from those who are in-
stitutionalized by his or her parent(s). Accordingly, it is
inappropriate for one group to represent the interests of
the other, as has been proposed by the plaintiffs.
2. The case is inappropriate for certification of a
defendant class in that the legal and factual considera-
tions with respect to directors of state-owned and operat-
ed facilities differ significantly from those involved with
respect to directors of private licensed facilities.
3. The proposed defendants are not so numerous
as to make joinder impractical as required by F.R.C.P.
23.
WHEREFORE, defendants respectfully request that
the plaintiff class be certified only in accordance with
Paragraph 1 above. Further, defendants request tha: the
. ans
942a Response to Motion
Court refuse to certify a defendant class for the reasons
set forth in Paragraphs 2 and 3 above.
Respectfully submitted,
NORMAN J. WATKINS
Deputy Attorney General
ROBERT P. HOFFMAN
Assistant Attorney General
J. JUSTIN BLEWITT, JR.
Deputy Attorney General
Chief, Civil Litigation
ROBERT P. KANE
Attorney General
Stipulation of Counsel 943a
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing]
STIPULATION OF COUNSEL
I. Stipulation of Facts
The following facts are stipulated to by and between
the plaintiffs and the defendants through their counsel,
subject to the objections noted at paragraphs 47 and 48
below:
1. In this action, plaintiffs, individually and on be-
half of all others similarly situated, seek declaratory and
injunctive relief for violations of their civil rights result-
ing from the operation of Pennsylvania statutes which
permit their indeterminate confinement in institutions for
the mentally ill and mentally retarded under color of
state law with no right to notice, hearing, counsel and
other procedural safeguards. The statutes are challenged
on the ground that they conflict with the plaintiffs’ rights
under the Due Process Clause of the Fourteenth Amend-
ment of the United States Constitution.
2. The defendants are those state officials who ac-
cept and receive into custody the named plaintiffs, minors,
upon the application of parents or guardians such as wel-
fare departments and child care agencies.
ie eal
Ay
944a Stipulation of Counsel
3. This case has been before the Court as Bartley
vy. Kremens, 402 F. Supp. 1039 (E.D. Pa. 1975), vacated
and remanded, 96 S.Ct. 1709 (1977). This amended
and supplemental complaint substitutes new class repre-
sentatives and informs the Court of recent state statutory
developments.
4. Jurisdiction is asserted under 28 USC. 1331
which provides for original federal question jurisdiction.
The amount [claimed] in controversy, exclusive of inter-
ests and costs, exceeds $10,000.
5. Jurisdiction is also asserted under 28 USC.
1343(3) which provides for original jurisdiction in all
suits authorized by 42 U.S.C. 1983 to redress the depriva-
tion under color of state law of any right, privilege or
immunity secured by the Constitution of the United
States and by federal law.
6. The federal statutes and rules under which
plaintiffs’ claim relief are 28 U.S.C. 2201, 2202, 2281,
2284, Rules 57 and 65 of the Federal Rules of Civil Pro-
cedure (all of which relate to declaratory judgments, in-
junctions and three-judge courts) and 42 U.S.C. 1983 and
1988 (which relate to civil rights actions) .
7. This is a proper case for determination by a
three-judge court pursuant to 28 U.S.C. 2281 and 2284
since the plaintiffs seek an injunction to restrain defend-
ants, state officials, from the enforcement, execution and
operation of portions of state statutes of state-wide appli-
cability on the ground that said statutes are contrary to
the United States Constitution. This action was filed prior
to the enactment of Public Law 94-381 which amended
the three-judge court statutes.
Se ae
Stipulation of Counsel 945a
8. The named plaintiffs bring this action in their
own behalf and, pursuant to Rule 23(a), 23(b) (2) of
the Federal Rules of Civil Procedure, on behalf of all
others similarly situated.
9. The questions of law and fact involved are:
a. Are the representative plaintiff parties, and
their class members admitted/committed to mental
mae pee pursuant to the challenged statutes and
without notice, counsel, hearing and other procedural
safeguards?
b. Do the defendants operate, execute and en-
force the challenged statutes?
c. Are the challenged statutes contrary to the
Due Process Clause of the Fourteenth Amendment
to the United States Constitution?
10. The named plaintiffs sue by their next friend
and guardian ad litem, appointed by the Court pursuant
to Rule 17 of the Federal Rules of Civil Procedure.
11. The parties agree that the named plaintiffs may
be designated by their actual given names and the initial
of their surnames. Their full identities have been made
known to the defendants.
12. The first group of plaintiffs, those confined at
Haverford State Hospital, under the Mental Health Pro-
cedures Act of 1976, are all the juveniles under 14 years
of age admitted/committed under Section 201 as of Oc-
tober 31, 1977, to that institution.
13. The second group of plaintiffs are persons with
mental retardation confined under the Mental Health
and Mental Retardation Act of 1966, Sections 402 and
tiie cccieiiniaal
946a Stipulation of Counsel
403, in two institutions, one near Philadelphia in the
eastern part of Pennsylvania and one near Pittsburgh in
the west.
First Group of Plaintiffs; Those at Haverford
State Hospital
14. Plaintiff Kevin S., born May 2, 1965, is a citi-
zen of Pennsylvania. He is 12 years old.
15. Plaintiff Richard S. is now 13 years old and a
citizen of Pennsylvania. He was born September 24, 1964.
16. Plaintiff James Paul M. is 7 years old, having
been born on November 10, 1969. He is a citizen of Penn-
sylvania.
17. Plaintiff Raymond C. was born on September
9, 1964, is a citizen of Pennsylvania, and is 13 years old.
18. Plaintiff William B. was born June 18, 1968,
is 9 years old and is a citizen of Pennsylvania.
19. Plaintiff Eddie B. was born October 26, 1965,
is a citizen of Pennsylvania, and is 12 years old.
20. Plaintiff Francis B. was born January 9, 1967,
is 10 years old and a citizen of Pennsylvania.
21. Maria L., plaintiff in this action, was born Au-
gust 26, 1965, is 12 years old and a citizen of Pennsyl-
vania.
22. Thomas W., born February 14, 1966, is 11
years old and a citizen of Pennsylvania.
Second Group of Plaintiffs; Those at Polk and Pennhurst
State School and Hospitals
23. Plaintiff Nancy Louise D., born December 10,
1960, is a 16 year old citizen of Pennsylvania.
Stipulation of Counsel 947a
24. Plaintiff Gina S. was born on July 30, 1961, and
is a citizen of Pennsylvania. She is 16 years of age.
25. Plaintiff George S. was born February 10, 1963,
is 14 years old, and is a citizen of Pennsylvania.
Defendants
26. Defendant Secretary of Public Welfare is the
Pennsylvania state official who, in that capacity, has the
power and duty to enforce the challenged statutes and all
regulations necessary and appropriate to the proper ac-
complishment of those provisions and “to operate and as-
sign functions to all State facilities.” See Sections 201 (2)
and 202 (a) of the Mental Health and Mental Retardation
Act of 1966, and Section 105 of the Mental Health Pro-
cedures Act of 1976 (“Treatment Facilities”), and 6 Pa.
Bull. 2115 at Section 7100.1.2 (definition of “approved
facility”). Aldo Colautti currently occupies that office;
Frank Beal, who was Secretary at the time this action
was filed, left office on February 15, 1978.
27. Defendant John Fong is the director of Haver-
ford State Hospital and is charged with supervision and
administration of the facility. See Sections 102, 203 and
417 of the Mental Health and Mental Retardation Act of
1966, 50 P.S. 4102, 4203 and 4417. It is to Fong or his
delegate that applications for admission, commitment or
release of the plaintiffs must be made. Under Section 202
of the 1976 Act, application for examination and treat-
ment may also be made to the county mental health/men-
tal retardation administrator who designates an approved
facility for examination and for such treatment as may
be appropriate. Haverford State Hospital is an approved
facility under Section 105 of the Mental Health Proce-
dures Act of 1976.
948a Stipulation of Counsel
28. Defendants Nicholas D’Aluisio a ek —
Youngberg are, respectively, directors of
School and Hospital and the Pennhurst State School and
Hospital, both institutions for persons with mental retarda-
tion. They are charged with supervision and administra-
tion of those facilities. See Sections 102, 203 and 417 of
the Mental Health and Mental Retardation Act of 1966,
50 P.S. 4102, 4203 and 4417. It is to D’Aluisio, Young-
berg or their delegates that applications for admission,
commitment or release of the plaintiffs must be made. See
sections 402(b), 403(b) and 403(c) of the Mental
Health and Mental Retardation Act of 1966.
Haverford State Hospital
29. Haverford State Hospital is an institution for
the mentally ill located in a rural/suburban area outside
Philadelphia.
30. The institution’s score of buildings cover a
large hilly area in one corner of which is Building 14, a
building with two large wards. The west ward houses
geriatric patients; the door to it is generally unlocked.
The east ward houses juveniles.
31. As of October 31, 1977, there were a total of
12 juveniles in the Children’s Unit in Building 14. Three
were committed by juvenile courts, after hearings; 9 were
admitted/committed under the challenged statutes, upon
application to the institution by parents or guardians.
32. Entry into the Children’s Unit in Building 14
is through a door that is kept locked. When a buzzer is
rung, a worker inside comes to unlock the door. The
door bears a sign which reads, “VISITING HOURS—
1:30-4:30 Weekends and Holidays. No evening visits.
(signed) Dr. Bernard Kanter.”
Le
Stipulation of Counsel 949a
33. The Unit consists of two hallways which cross
at a glass-walled nursing station. One hallway continues
from the entrance door to a large dormitory area for male
patients. Along that hallway are two carpeted unfurnished
rooms used for “seclusion” or “time-out” purposes. The
second hall has a large dayroom at one end and, at the
other end, a large dormitory area for female patients.
34. (Modified drally) In the nursing station is a
bank of television monitors which are used to surveil the
patients in all areas of the Unit, including the halls and
dormitories.
35. Adjacent to the building are playing areas
fenced in by chain link fences about 12 feet high.
36. Dr. Carl Hammer is a part-time psychiatrist in
a unit other than the Children’s Unit at Haverford State
Hospital.
37. All mental health and mental retardation facili-
ties in Pennsylvania which are not state-owned and oper-
ated must be licensed and/or approved by the Depart-
ment of Public Welfare. As part of the approval/licens-
ing, such facilities have been required and are required
to utilize and act in conformity with the commitment and
admission procedures in both the 1966 Act and the 1976
Act.
38. Since the effective date of the 1976 Act, the
regulations adopted by the Department of Public Welfare
in 1973 (reproduced at 786a, footnote 5 of the July 24,
1975 Opinion of the District Court) are used by the de-
fendants and apply only to juveniles admitted/committed
as mentally retarded under Sections 402 and 403 of the
1966 Act. The regulations do not apply to juveniles ad-
950a Stipulation of Counsel
mitted/committed as mentally ill under Section 201 of the
1976 Act.
39. Except as may be provided in the 1973 regu-
lations referred to above, when institutionalized juveniles
object to their confinement or express a desire to leave
the institution, as the named plaintiffs have through their
guardian ad litem and as some have done personally, the
defendants do not provide counsel or take action to as-
sure either discharge or a hearing on the juvenile’s objec-
tions because the defendants believe, as a matter of law,
that they are not required to do so.
Il. EVIDENCE
40. The evidence which was admitted in the ini-
tial proceeding, including all testimony, depositions, ex-
hibits, interrogatories, objections and rulings shall be
deemed included in the record in these proceedings. Fur-
ther, for the convenience of the parties and the Court,
the printed Appendix, which was used in the Supreme
Court, No. 75-1064, with permission of this Court shall
be used in these proceedings.
41. As used in this stipulation, the following terms
have the following meanings and references:
a. “Juveniles” mean persons 18 years of age
or younger admitted/committed under Sections 402-3
and 405-6 of the Mental Health and Mental Retarda-
tion Act of 1966, and those persons under 14 years
of age admitted/committed under Sections 201, 302-5
of the Mental Health Procedures Act of 1976.
b. “Mental Health and Mental Retardation
Act of 1966’, “MH/MR Act of 1966’, “1966 Act”
and “‘66” refer to 50 P.S. §4101 et seq.
Stipulation of Counsel 95la
c. “Mental Health Procedures Act of 1976”,
“MHP Act of 1976”, “1976 Act” and “76” refer to
50 P.S. §7101 et seq.
d. Sections 201, 302, 303, 304 and 305 refer
to the corresponding sections of the 1976 Act.
e. Sections 402, 403, 405 and 406 refer to
the corresponding sections of the 1966 Act.
f. “Licensed mental health facilities” refers to
those residential menta’ institutions not operated by
the State and which are licensed or approved by the
Department of Public Welfare to provide mental
health and retardation services. See Section 102, 201,
202 (a), 203 and 417 of the 1966 Act; Section 105
of the 1976 Act (this section applies as well to state
operated mental institutions); 6 Pa. Bull. 2115 at
Section 7100.1.2 (definition of “approved facility”) .
42. The Defendants’ Answer to Plaintiffs’ Inter-
rogatories attached as Exhibit A hereto, and the Defend-
ants’ Supplemental Answers to Plaintiffs’ Interrogatories,
attached as Exhibit B hereto, indicate the number of per-
sons in Pennsylvania admitted/committed under the chal-
lenged statutes and the applicants for their admission/
commitment as of October 31, 1977. The information
teferred to in paragraphs 42, 43, and 44 is substantially
accurate at this date.
43. Exhibit C is a table indicating, for all juveniles
in state-owned and operated institutions, the age ranges
and statutory provisions under which they were admitted /
committed, by institution.
44. Exhibit D is a table indicating all juveniles in
state-owned and operated institutions, by institution, and
indicating the identity and nature of relationship of the
“ve
a |
952a Stipulation of Counsel
applicant for admission/commitment by various specified
categories.
45. Of the 119 juveniles listed in Exhibit A, para-
graph 4, as having been admitted/committed by “Juvenile
Court”, 114 were committed by the Court under Section
406 and 5 were admitted/committed by the Court under
Section 201.
46. Defendarts have not been precluded from offer-
ing any additional evidence over and above that which
has been offered and admitted or excluded by a specific
order of this court. The same is true of plaintiffs.
[Further offers of proof may be made at the hearing of
this matter. ]
Ill. OBJECTIONS
47. Defendants object to the admission of the facts
stipulated at paragraphs 29, 30, 32, and 36 above on
grounds of relevance and on the basis that they [fail to
provide a complete or accurate depiction of Haverford
State Hospital. ]
48. Plaintiffs object to the admission of Part A of
the Exhibits 1 through 12, described below, on two
grounds: first, their relevance because they are preadmis-
sion material, and second, that [some portions] of this
material [were] not received by the institution until some
time after the admission/commitment process was con-
cluded.
IV. RECORDS OF NAMED PLAINTIFFS
49. Exhibits 1 through 12 which are to be submit-
ted into evidence are portions of the official records of
the named plaintiffs at their respective institutions, re-
ferred to as “the Records Exhibits”’.
Stipulation of Counsel 953a
50. Each of the “Records Exhibits” includes a
Part A and a Part B.
51. Part A is pre-admission material including such
things as background referral material, school and out-
patient records. It is specifically noted by the parties that
there is no stipulation that all of the material in Part A
was received by the institution prior to the completion of
the admission process.
52. Part B on Haverford State Hospital patients
consists of the institution’s Admission Note.
Psychosocial history, psychological evaluation and a
New Case Conference note, all developed shortly after
admission/commitment. Part B also includes the statu-
tory admission/commitment forms. For plaintiffs at Polk
and Pennhurst, Part B consists of the reports of various
examinations conducted shortly after admission. Part B
also includes the statutory admission/commitment forms.
53. The parties will finalize and present to the
Court at the March 31, 1978 hearing the contents of Ex-
hibits 1 through 12.
NORMAN J. WATKINS,
ESQUIRE
ROBERT B. HOFFMAN,
ESQUIRE
Department of Justice
Capitol Annex
Harrisburg, PA 17120
Attorneys for Defendants
DAVID FERLEGER, ESQUIRE
2321 Sansom Street
Philadelphia, PA 19103
Attorney for Plaintiffs
52
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Order, March 10, 1978 - 955a
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[ Caption Omitted in Printing ]
ORDER
The parties to the above-captioned matter have re-
quested that we rule on two preliminary evidentiary mat-
ters in order to facilitate the process of stipulating to facts
prior to the hearing. NOW, March 10, 1978, upon con-
sideration of the memoranda of law submitted by the
parties, IT IS ORDERED:
1. The findings of fact and conclusions of law con-
tained in Halderman v. Pennhurst State School and Hos-
pital, Civil Action No. 74-1345 (E.D. Pa., Dec. 23, 1977),
are inadmissible on grounds of relevance. However, evi-
dence generally relating to the deprivation of liberty in-
herent in confinement in institutions and exposure to in-
stitutional environment is admissible.
2. Portions of the plaintiffs’ medical records relat-
ing to the process of admission to the institutions are
relevant and admissible. The remaining portions of the
medical records are not relevant to this action and are
therefore not admissible.
Judge John J. Gibbons and Judge Raymond J.
Broderick have advised me by telephone that they agree
with the contents of this Order.
Daniel H. Huyett,
J.
3/13/78
956a Memorandum and Order
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing ]
MEMORANDUM AND ORDER CERTIFYING
DEFENDANT CLASS
HUYETT, J., March 28, 1978:
Plaintiff has moved for certification of both plaintiff
and defendant classes pursuant to F.R.C.P. 23. The pro-
posed defendant class is defined as “directors of all men-
tal health and mental retardation facilities in Pennsylva-
nia which are subject to regulation by the defendant Sec-
retary of Public Welfare.” Representatives of the class
are the Secretary of Public Welfare and directors of three
state-owned and operated facilities. Plaintiffs propose
that this class be certified pursuant to F.R.C.P. 23(a) and
23 (b) (1) (B) or 23 (b) (2).
Although we are, at this point, reserving our decision
on certification of a plaintiff class, we see no reason to
delay certification of a defendant class. For the reasons
stated below, we certify the defendant class as defined by
plaintiff.
Two of the requirements of Rule 23 (a), numerosity
and the existence of common questions of law and fact,
clearly are met. With respect to numerosity, there are 30
state-owned and operated institutions in Pennsylvania and
Memorandum and Order 957a
more than 400 state-licensed facilities. The question of
law common to all of these defendants is the validity of
the challenged state statutes and regulations governing
voluntary commitment of mentally ill and mentally retard-
ed juveniles.
The most important area of inquiry when consider-
ing the propriety of a defendant class is to assure that the
class representatives will adequately represent the inter-
ests of the absent class members. This is assured by re-
quiring that the interests of the class representative be
typical of those of absent class members, that the class
be conflict-free, and that the class representative have a
personal interest in the issues so that the defense mounted
will be vigorous. Note, Defendant Class Actions, 91 Harv.
L. Rev. 630, 639-40 (1978).
Those requirements are met here. The Secretary of
Public Welfare, the named class defendant, has a strong
interest in defending the validity of the challenged stat-
utes and regulations. In Commonwealth v. Rizzo, 530 F.
2d 501 (3d Cir. 1976), the Third Circuit, in discussing
the adequacy of representation problem in the context
of a motion to intervene as of right, stated:
[A] presumption of adequate representation
arises when the representative is a governmental
body or officer charged by law with representing the
interests of the absentee. . . . Where official policies
and practices are challenged, it seems unlikely that
anyone could be better situated to defend than the
governmental department involved and its officers.
Id. at 505. See Pennsylvania Ass’n. for Retarded Children
v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972).
958a Memorandum and Order
The same could be said here. The Secretary of Pub-
lic Welfare is charged with enforcing the statutes and regu-
lations being challenged by the instant lawsuit. Further-
more, we see no possible conflict within the class, since
the challenged statutes and regulations are applicable to
all of Pennsylvania’s mental health institutions, whether
state-owned and operated, or privately owned. Thus, we
conclude that the Secretary of Public Welfare is an ade-
quate representative of the class.
In conclusion, we certify pursuant to F.R.C.P. 23 (a),
and 23 (b) (2)' the following class:
The directors of all mental health and mental
retardation facilities in Pennsylvania which are sub-
ject to regulation by the defendant Secretary of Pub-
lic Welfare.
Since this is a 23(b) (2) class, no notice need be given
to absent class members.
Honorable John J. Gibbons and Honorable Raymond
J. Broderick advise me that they are in accord with this
Memorandum and Order and authorize me to issue the
Memorandum and Order on behalf of the three judge
court.
Daniel H. Huyett,
J.
1 The defendant class also qualifies for certification pursuant
vo F.R.C.P. 23(b)(1)(B). In view of the binding effect of the
statute and the Department of Public Welfare’s regulations on
all mental health and retardation facilities, ‘‘adjudication with
respect to individual members of the class . . . would as a practi-
cal matter be dispositive of the interests of the other members not
parties to the adjudications. ”’
Memorandum and Order 959a
IN THE UNITED STATES DIST
RICT COURT F
THE EASTERN DISTRICT OF PENNSYLVANIA. ;
[Caption Omitted in Printing]
ORDER
“ Now, March 28, 1978, upon consideration of plain-
: s’ motion for certification of a defendant class, and for
the reasons stated in the accompanying memorandum. IT
IS ORDERED that the plaintiffe’ my
plaintiffs’ mot G T
The defendant class is defined as ne
The directors of all mental health
e direc! and retarda-
tion facilities in Pennsylvania which are atin nd
regulati
—- ation by the defendant Secretary of Public Wel-
Daniel H. Huyett,
J.
960a Offer of Proof
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[ Caption Omitted in Printing]
OFFER OF PROOF AND REQUEST FOR
EVIDENTIARY RULING
In its opinion remanding this case, the Supreme Court
noted that this Court could consider in any further pro-
ceedings possible differing considerations which exist be-
tween the young and very young and between those per-
sons alleged to be mentally ill and retarded. 431 U.S. 119,
135.
Plaintiffs hereby offer to present expert testimony
and factual testimony to the effect that—for the purposes
of the minimum due process safeguards declared by the
Court in its 1975 Opinion and sought by the plaintiffs
now—there are no relevant differences between the men-
tally ill and the retarded or among juveniles of all ages.
Plaintiffs believe that such evidence (to the extent
to which it would not be redundant) is unnecessary and
irrelevant and that, as a matter of constitutional law, the
minimum due process procedures are the same for all
plaintiffs, although, of course, some subgroups might be
entitled to a greater amount not at issue in this case.
However, should the Court wish to hear such evi-
dence and find it relevant, plaintiffs will prepare and pre-
sent it in whatever manner the Court directs.
(s) David Ferleger
David Ferleger, Esquire
Attorney and Guardian Ad
Litem for Plaintiffs
Offer of Proof 961a
CERTIFICATE OF SERVICE
David Ferleger, Esquire, hereby certifies that on the
31st day of March, 1978, he served a true and correct copy
of the foregoing Offer of Proof and Request for Eviden-
tiary Ruling upon the counsel for defendants, Norman J
Watkins, in open court.
David Ferleger
962a Supplemental Memorandum
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing ]
DEFENDANTS’ SUPPLEMENTAL MEMORANDUM
I. Introduction
On March 31, 1978, the final hearing was held in
this matter. However, several points arose on which the
court requested additional briefing.’ Specifically, the de-
fendants were requested to address the relevance of Part
A? of the individual plaintiffs’ hospital records and the
question of what type of hearing should be ordered if one
is required.
Il. Relevance of Part A of the Individual Plaintiffs’
Hospital Records
Professor Moore has noted that the test of relevance
“_. depends mainly upon logic . . .” 10 Moore’s Federal
Practice 1400.01, at IV-2 (3rd Ed. 1976). Thus the
1 Both plaintiffs and defendants filed comprehensive pre-trial
briefs covering all of the major issues.
2 These hospital records were separated into Parts ‘‘A’’, ‘‘B”’,
and ‘‘C’’. Part ‘‘A’’ concerns all pre-admission material. Part
‘*B’’ covers records from and including the actual admission note
through the first staff conference regarding the patient. Part
‘“B”’ has been accepted into evidence without objection. Finally,
Part ‘‘C’’ of these contained all of the treatment records—how-
ever, these were excluded by the court (Order, 3-13-78).
Supplemental Memorandum 963a
vagueries of the definition of relevance provided in the
rules’ must be resolved logically. While the admissibility
provisions of Rule 43(a) have now been superseded by
the Federal Rules of Evidence, cases decided under Rule
43 are still instructive for the concept of relevance has
not changed significantly. 10 Moore’s Federal Practice
$400.01 at IV-4 (3rd Ed. 1976). And these cases coun-
sel that the contested records are indeed relevant and
therefore admissible.*
Initially, it should be noted that the decisions are uni-
form in favoring admissibility over exclusion on relevance
grounds. Caton v. Hardamon, 496 F.2d 6 (7th Cir.
1974) ; Hasson v. Stafford, 472 F.2d 88 (3rd Cir. 1973);
Courtland v. Walston & Co., 340 F. Supp. 1076 (S.D.
N.Y. 1972). Thus, if there is doubt regarding the rele-
vance of a particular piece of evidence, it should be ad-
mitted. United States v. Lykes Bros. Steamship Co., 432
F.2d 1076 (5th Cir. 1970); 10 Moore’s Federal Practice
§400.12[2] at IV-18 (3rd Ed. 1976).
Defendants offered the entire file for each plaintiff
for several reasons. The first and foremost of these was
to insure that the court has the whole picture. The fact
that plaintiffs have repeatedly excerpted portions of these
records in their complaint® highlights their relevance to
5 Rule 401 provides:
“*Relevant evidence’’ means evidence having any tenden-
cy to make the existence of any fact that is of consequence
to the determination of the action more probable or less prob-
able than it would be without the evidence. Fed. R. Evid. 401.
* Plaintiffs’ sole objection to these records is on grounds of
relevance.
* See e.g. Paragraphs 39-40, 42, 44, 51-54, 66-67, and 73-74 of
the complaint.
7
964a Supplemental Memorandum
this action. Plaintiffs have used portions of these very
records to prove their claim—surely the defendants may
use the remainder as defense.
Under the rules it is clear that background material
such as this should be admitted. Thus, even if the ex-
cerpts from the records were not in controversy—further
background material tending to clarify the issue is cer-
tainly relevant to the action. 10 Moore’s Federal Practice
§401.06[2] at IV-§1 (3rd Ed. 1976). In fact, this
Court’s Order dated March 13, 1978, explicitly recognizes
the relevance of evidence concerning the admissicn proc-
ess, which of course, is the sum and substance of this ma-
terial. This material is necessary to accurately show what
the admission process was for each of the plaintiffs. In-
asmuch as it is this very process which the plaintiffs claim
violates the Constitution, the relevance of these records
is clear beyond peradventure. These records, substantially
all of which were possessed by the defendants prior to the
actual admission,’ demonstrate the care and scrutiny given
to each case prior to admission.
Finally, the attached affidavits emphatically under-
score the relevance of these records. Substantially, all of
these materials were in the hands of the admitting facili-
ty’s staff prior to admission, and those few that weren’t
related to evaluations and the like that preceded the ad-
mission. These records, to a great extent, reflect the pro-
®See affidavits of Ellen N. Lynch, Marcia Murtagh and
Mary Thompson, which are attached, regarding the plaintiffs at
Haverford State Hospital. Regarding the three mentally retarded
plaintiffs—Nancy Louise D., Gina S. and George S.—cover letters
in the records reflect that all of that material was received prior
to admission.
Supplemental Memorandum 965a
fessional bases of the recommendation for inpati
; patient care—
which recommendation the plaintiffs so vigorously attack.
Thus, on the basis of the foregoing, it is strongly urged
that these records are relevant to thi
reared ogc 7 oO this matter, and should
II. TYPE OF HEARING
At the outset defendants reassert their positi
nothing in addition to that which is hh ene
by state law in the way of due process in the admission
process for children is mandated by the Fourteenth
Amendment. Nevertheless, and on the assumption that
this Court finds the present scheme wanting in that re-
gard, defendants recommend the follow;
ed Ollowing elersents be
er 4 vp mare Laqgomyse should be nonjudi-
al, taking place one o :
in the field. r more professionals
(b) Counsel should not be mandatory.
(c) the hearing should be informal, and not
of record.
(d) the normal administrative a
101 ppellate proc-
ess should be utilized. 71 Pa. Stat. Ann. 171041.
(e) the hearing should not be required to be
0 oem but rather within a reasonable time
As the foregoing makes clear, the defendants strong-
ly urge that imposition of a rigid adversary juidicial. pre-
commitment hearing would indeed be counter-productive.
To the extent the due process clause may apply in the ad-
mission of a child to a mental health facility—the process
966a Supplemental Memorandum
due should be administrative and informal. See cape =
Curators v. Horowitz, US. , 46 US.L.W.
(March 1, 1978).
(s) Norman J. Watkins
NORMAN J. WATKINS
Deputy Attorney General
J. JUSTIN BLEWITT, JR.
Deputy Attorney General
Chie}, Civil Litigation
ROBERT P. KANE
Attorney General
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
[ Caption Omitted in Printing |
AFFIDAVIT
MARY THOMPSON, being duly sworn in accord-
ance with law, does state and affirm as follows:
1. I am a Psychological Associate il and work
part-time as a staff psychologist in the Children’s Unit,
Haverford State Hospital. I have worked at Haverford
State for approximately 11 years and have worked in the
Children’s Unit since December 1976.
2. In that capacity, I provide psychological services
to patients and review prior to admission psychological
Supplemental Memorandum 967a
examinations submitted by the referring agency to insure
their accuracy and timeliness.
3. Part A of the records of Raymond C. (Defend-
ants’ Exhibit 5) includes a two page psychological report
prepared by Anthony J. Mannino, District Psychologist on
March 8, 1977.
4. Attached to that report is a note handwritten by
me stating “Attached Psychological from Leedum School
(3/77) will serve as psychological requirement for this
hospitalization.”
5. My note is undated and I am uncertain of the
precise date on which it was written or on which the psy-
chological report was received.
6. Based upon policies and procedures in the Chil-
dren’s Unit, which requires a report of a psychological ex-
amination to be submitted prior to a voluntary admission,
I am certain that the report was received and my note
written prior to admission.
7. The information set forth above is true and cor-
rect to the best of my knowledge, information and belief.
(s) Mary W. Thompson
Mary Thompson
Subscribed and sworn to before me this 11th day of
April, 1978.
Mary C. Jarrell
Notary
[Notary Stamp Illegible]
Te
a
968a Supplemental Memorandum
RT FOR
IN THE UNITED STATES DISTRICT COU
THE EASTERN DISTRICT OF PENNSYLVANIA
[Caption Omitted in Printing]
AFFIDAVIT
MARCIA MURTAGH, MSS., being duly sworn in
accordance with law, does state and affirm as follows:
1. Iam the Chief Social Worker in the Children’s
Unit at Haverford State Hospital and have served in that
capacity since May 9, 1977.
2. Prior to that, I was a Social Worker at Embree-
ville State Hospital.
3. In my present capacity, I serve as a member of
the treatment team for patients in the Children’s Unit and
am involved in the admission process for many of them.
4. I am familiar with all of the nine (9) plaintiffs
who were, as of October 31, 1977, patients in the Unit.
5. 1 was directly involved in the admission of Ray-
mond C., James Paul M., Kevin S., and Richard S., De-
fendants’ Exhibits 6, 7, and 8 respectively.
6. I have reviewed the material contained in Part
A of the records presented to the Court regarding these
three patients to determine which particular records were
received by the Children’s Unit prior to the child’s admis-
sion. In doing this, I have reviewed correspondence
from referring agencies not presently included in Part A
Supplemental Memorandum 969a
and my own independent recollectio. of the admission
processes of these three children. Based upon them, I am
able to state with certainty, as described individually be-
low, which records were received prior to admission.
James Paul M. (Defendants’ Exhibit 6)
7. James Paul M. was seen in a pre-admission in-
terview on October 14, 1977 and admitted October 17,
1977.
8. All material included in Part A of his records
was sent to me by letter of August 30, 1977 from Mr.
Francis Baird, Life Guidances Services (Base Service
Unit II). A copy of that letter, not presently in Part A,
is attached hereto as Exhibit A.
Kevin S. (Defendants’ Exhibit 7)
9. Kevin S. was seen in a pre-admission interview
on July 13, 1977 and was admitted July 18, 1977.
10. Psychological and Psychiatric Evaluations in
Part A were received by Mrs. Ellen Lynch, by letter of
June 30, 1977, from Mrs. Virginia C. Long, Director of
Special Education, William Penn School District. This
letter is presently included in Part A.
11. All other material in Part A including records
from Delaware County Child Care and Base Service Unit
II were received prior to pre-admission, according to the
pre-admission note prepared by me on July 13, i977, al-
though I am uncertain of the precise date.
Richard S. (Defendants’ Exhibit 8)
12. Richard S. was seen in a pre-admission inter-
view on June 1, 1977 and admitted June 6, 1977.
970a Supplemental Memorandum
13. Certain materials in Part A pre-dating January
12, 1977, were received by Mrs. Lynch, attached to a let-
ter of that date from Luana C. Goodwin, Child Care Ser-
vices. See Affidavit of Ellen Lynch.
14. Additional material in Part A, prepared by Sil-
ver Springs-Martin Luther School subsequent to January
12, 1977, were also received prior to the pre-admission
interview of June 1, 1977.
15. Although I am uncertain of the precise date on
which this material was received, I recall having seen and
reviewed this material shortly after I began work in the
Children’s Unit on May 9, 1977.
16. The only document in Part A which was not
received prior to admission is a one page, handwritten
School Report dated June 15, 1977.
Raymond C. (Defendants’ Exhibit 5)
17. Raymond C. was seen in a pre-admission inter-
view on September 28, 1977.
18. In addition to those records in Part A received
by Mrs. Lynch prior to admission, records from Delaware
County Court, Juvenile Division were sent to me attached
to a letter of September 14, 1977, from Janet Smith, In-
take Officer. A copy of that letter, not presently included
in Part A, is attached hereto as Exhibit B.
Tom W. (Defendants’ Exhibit 12)
19. I was not involved in the actual admission of
Tom W., which occurred on June 2, 1977.
20. On June 6, 1977, however, I received from Mr.
Lutz, Child Care Services, all documents in Part A other
Supplemental Memorandum 971a
than those identified as having been received prior to ad-
mission in the Affidavit of Ellen Lynch.
21. The information set forth above is true and
correct to the best of my knowledge, information, and
belief, and the letters attached as Exhibits A and B are
true and correct copies of official records at the Children’s
Unit.
(s) Marcia Murtagh, M.S.S.
Marcia Murtagh, M.S.S.
Subscribed and sworn to before me this 11th day of
April, 1978.
Mary C. Jarrell
Notary
['Notarial Stamp IIlegible]
972a Linda L. Glenn—Direct
UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF PENNSYLVANIA
Case No. 72-2272
Institutionalized Juveniles, et al.
vs.
Secretary of Public Welfare, et al.
DEPOSITION of LINDA L. GLENN, a wit-
ness called on behalf of the Plaintiffs, taken pursuant
to notice before Cindy Marie Hansen, a Notary Pub-
lic in and for the Commonwealth of Massachusetts
at 190 Portland Street, Boston, Massachusetts on
April 7, 1978, at 4:00 p.m.
Appearances:
David Ferleger, Esquire, 2321 Sansom Street, Phila-
delphia, Pennsylvania, on behalf of the Plaintiffs.
Robert B. Hoffman, Esquire, Deputy Attorney Gen-
eral, Department of Justice, on behalf of the Defendants.
(2) STIPULATION
It is stipulated and agreed by and between coun-
sel for the respective parties that the reading and
signing of the deposition by the witness be waived.
Linda L. Glenn—Direct 973a
LINDA L. GLENN, a witness called on behalf of the
plaintiffs, first having been duly sworn, on oath
deposes and says as follows:
Direct Examination
BY MR. FERLEGER:
Q. Miss Glenn, what is your current occupation?
A. Assistant Commissioner for Mental Retardation
for the Department of Mental Health, Commonwealth of
Massachusetts.
Q. And are you the administrative head of Mental
Retardation in Massachusetts?
A. Yes.
Q. So the Assistant Commissioner title involves a
commissioner who covers more than Mental Retardation?
A. Right, the Commissioner of Mental Retardation,
Mental Health, Drugs, Childrens Services, whole thing,
under the commissioner as an Assistant Commissioner
for each program area.
(3) Mr. FERLEGER: I'd like to have this
marked as Exhibit A, Vita.
(Exhibit A, for identification, VITA of Linda
L. Glenn.)
Q. (By Mr. Ferleger) I’m showing you Exhibit
A. Can you identify that for the record, please?
A. This is my resume, March of ’77. It is not
totally up to date.
Q. As of that date, does this resume reflect gen-
erally your employment and experience in the area of
mental retardation?
A. Yes, it does.
974a Linda L. Glenn—Direct
Q. Could you just briefly review that for us, your
general employment and experience and we'll let the re-
sume speak for the details?
A. Yes, okay. You want educational experience,
or just employment—
Q. Yes.
A. I have a Masters in Special Education for the
mentally retarded, a Doctorate without dissertation com-
pleted, everything else is completed in educational admin-
istration and business administration. I have worked
about ten years in the field of mental retardation, first
full time after part-time jobs while in school was the
(4) Director of Research and Management for the Greater
Omaha Association for Retarded Citizens. There |
helped develop one of the first comprehensive community-
based agency for the mentally retarded. Second full time
job was the same position, Director of Research and
Management for the Eastern Nebraska Community Office
of Retardation, which was an agency that grew out of
the Greater Omaha Association, a larger five-county com-
prehensive program for the mentally retarded, and all of
Eastern Nebraska.
I returned to school and worked as a co-Director of
Technical Assistance Unit attached to the University of
Kansas and the University Affiliated Facility at the Uni-
versity of Kansas which provided technical assistance to
all programs in Kansas that served the mentally retarded,
all the community programs as well as institutional pro-
grams.
Q. When you returned to school, you didn’t mean
as a student?
A. No, I was a student in a doctoral program there
and working as a co-Director on the Technical Assistance
Linda L. Glenn—Direct 975a
Project. From there, in 1974, I became i
Executive Director of the Eastern =e Mrsswiom
—" ne rage back in Omaha again.
n 1976, I came
come Assistant Ries ih ean aa
Q. Could you describe
Se in your present Feel sag ahs de
A. I am responsible for the develo
eration of all programs that are Recon soy
by the Commonwealth of Massachusetts for the mentally
retarded. This includes eight large state operated faci/i-
ties for the mentally retarded; it includes a system of com
munity programs that are operated by 40 area offices that
are part of seven regions. We have the state divided into
that is, developing into a comprehensive system of com-
munity residential programs and have a variety of dif-
ferent types, so individuals can move along and continue
services, day programs for adults, sheltered worksho
activity centers, early intervention programs, respite wa
programs, :
5 a and other support services for the mentally re-
The responsibilities include, well jecti
’ , the object
to not only develop comprehensive sinneuniites oct am
at each of the areas for any mentally retarded person who
needs service, but also returning people from the institu-
tions of the state to those community programs.
(6) In addition, I have res ibili icensi
‘ ponsibility for licens
all programs, private or public, that are for the stan
retarded, and for insuring compli i :
' Be. pliance in all th itu-
tional services to Federal regulations. —
Q. What is the approximate bud
oe et of :
the Division of Mental Retardation. 2 ial esa
A. This year, it is a little over $100 million.
976a Linda L. Glenn—Direct
Q. Are you familiar with or do you have any ex-
perience with mental retardation and mental retardation
administrative systems in other states besides Nebraska
and Massachusetts?
A. Yes, I do.
Q. What way have you gained that background?
A. I’ve consulted with many other states in various
categories or various reasons, both state-wide planning
efforts, local planning efforts, the development of systems
to get people out of institutions, the development of com-
prehensive systems of community services, technical as-
sistance as well as involvement in those plans. I’m a
member of the Willowbrook Review Panel, appointed
Page which oversees the Department of Mental Hygienes
activities in the state of New York relative to their con-
sents agreement for Willowbrook institution which effects
the entire state of New York. The class members from
that 5,300-bed institution are now in almost every facility
in (7) the state, so we oversee the services in that state.
I have been a consultant for several years for the Na-
tional Institute on Mental Retardation in Toronto and
helped them devise systems in Canada for the develop-
ment of programs.
Q. And in the states that you referred to and men-
tioned in your resume, have you visited institutions and
community facilities for the retarded in those areas?
A. Yo.
Q. Would that include Pennsylvania as well?
A. Yes.
Q. You visited community facilities in Pennsyl-
vania?
A. Yes, I’ve done a lot of work in Pennsylvania.
In fact, one of the things that brought me in contact with
Linda L. Glenn—Direct 977a
a lot of institutions as well as a lot of co
grams is I helped devise an evaluation sesons ned cis
now throughout Canada and the United States, and in
the six years of development of that system, we've evalu-
ated, and I personally evaluated, hundreds of different
programs to refine that instrument as an evaluation tool
Q. That is—off the record. 3
(An off-the-record discussion was held.)
Q. (By Mr. Ferleger) That’s the PASS system?
(8) A. Yes, it stands for the Program and Analysis
of Services Systems and I have evaluated quite a few
services in Pennsylvania on that system. In fact th
use it widely. I trained, I had three different iar rt
training workshops in Pennsylvania several years ago >
train ~y the Pennsylvania staff. ae
. The Department i i
vania uses that PASS nancies witalipianeeninn —
a Yes, they do.
. Do the i iliti
ek teh har - to evaluate facilities for the re-
A. Community residential programs, right, yeah.
MR. FERLEGER: Mr. Hoffman, we would
submit that Linda Glenn is qualified as an expert
in the area of mental retardation, care and rehabilita-
tion of retardation institutions and community care
for the retarded in the United States. Do you have
any objections to her qualifications?
MR. HOFFMAN: Without admitting all those
areas are necessarily relevant to this court case. |
would certainl ifi
hint | inly agree she qualifies as an expert in
Q. (By Mr. Ferleger) Miss Glenn, could you tell
us please generally who are the mentally retarded
etl
978a Linda L. Glenn—Direct
in the United (9) States? What kind of people are they,
how many are there, just what kind of people are we
talking about?
A. The commonly used prevalence rate for how
many people are mentally retarded in the United States
is about 3 percent. That is, that has been used histori-
cally from some incident studies, prevalence studies —
years ago and it still has not been challenged. T
percent, I guess, of the population of the United States
right now would be two or three million people, so ~~
are talking about a very large number of people. T _
3 percent, however, is made up of a variety of needs 0
individuals and severe levels of retardation. The large
bulk within that 3 percent are the more moderately hand-
icapped persons.
Q. How many is that large bulk?
A. Oh, at least 80 to 85 percent of the mentally
retarded are more mildly handicapped persons that don’t
need a lot of special services. They can live in the com-
munity typically without anybody knowing they were
mentally retarded unless somehow in some system they =
gotten labeled or institutionalized for some reason. Only
about 5 percent of the mentally retarded are in the cate-
gories of what the professions call severely and profound-
ly retarded. .
(10) Q. And the remainder are typically called
moderately retarded?
A. Yeah, moderately retarded.
Q. And what proportion, if you know, of the
mentally retarded are in institutions? |
A. A little under 200,000 people are, I think, in
public institutions right now.
Linda L. Glenn—Direct 979a
Q. Are people of all retardation levels to be found
in institutions would be defined moderately retarded?
MR. HOFFMAN: Objection.
Q. (By Mr. Ferleger) Would we find moderately
retarded, mildly retarded people in institutions?
MR. HOFFMAN: Objection, the case focuses
on Pennsylvania, and in addition, I don’t they we’ve
been given any foundation from Miss Glenn’s in-
formation on that point.
Q. (By Mr. Ferleger)
please?
A. Yes, there are mildly retarded people in all in-
stitutions.
Q. Including Pennsylvania, as far as you know?
A. As far as I know, yes.
Q. What is the procedure that professions use gen-
erally for identifying who the retarded are?
A. Well, unfortunately, they still—the main test is
an IQ test that the professionals use to diagnose some-
body as (11) retarded or to talk about what level of re-
tardation they are. That, however, is not appropriate.
The definition of mental retardation takes into account
three different factors, IQ being only a factor that can-
not be used alone. IQ has to be looked at in conjunc-
tion with the adaptive behavior of an individual as well
as what stage in that person’s life did he develop a prob-
lem in both the IQ and adaptive behavior. The stan-
dard definition used by the American Association on
Mental Deficiency is a person would have to have sub-
stantial intellectual subnormally as well as impairments
in adaptive behavior that originated in the developmental
period. Person’s live, in other words, it couldn’t be an
Answer the question,
980a Linda L. Glenn—Direct
adult that had a car accident at age 20. He wouldn’t
be considered mentally retarded because he may have be-
come brain damaged. He would be considered a per-
son that had been injured.
Q. Could you tell us, to help us learn some of these
terms, what years that developmental period includes and
what adaptive behavior means?
A. It is commonly considered the developmental
period being birth to approximately age 16. Adaptive
behavior is whether or not that person has learned to
manipulate his own environment. Can he get along in
society, does he (12) know how to care for himself and
to socially be accepted in society by his behavior, has
he adapted to the demands of his environment. It is very
often that a person with a low IQ can get along in so-
ciety. You do not have to have a high intellectual quo-
tient as measured on standarized tests to be able to live
in the community even by yourself, to navigate that com-
munity, to be able to hold a job and be self sufficient.
Q. Well, isn’t there, as I think many people be-
lieve, some relationship between a person’s IQ or level
of retardation and whether or they not are found in an
institution?
A. No, not at all. The people you find in institu-
tions now, the reasons range from the parents don’t want
to let them come out or inappropriate reasons that they
have been put in there.
Q. So we would find severely and profoundly re-
tarded people living in the community as well as living
in institutions?
A. You’d have the same people living in institu-
tions living in the community, too, exact same people
with the same needs and same impairments. It is cir-
Linda L. Glenn—Direct 981a
cumstantial as to whether or not they have ended up in
institutions.
Q. Regarding this process of identifying the re-
tarded, you said IQ would be an insufficient indication
by itself of (153A) the mental retardation. Could you
describe whether and how mistakes are made in identify-
ing whether someone is mentally retarded?
A. Well, there are many mistakes. The most com-
mon one historically has stemmed from the fact they have
been associated with certain characteristics of individuals
who are thought to have mental retardation. For ex-
ample, at birth, it used to be if a child was born with a
physical characteristic of a Down’s syndrome child,
mongoloidism, which can be noted at birth, the person
has been assumed by many pediatricians and other pro-
fessionals as automatically meaning mental retardation.
That’s been found not to be true. The fact that people
have not had experience with individuals that have been
allowed to live in the community that have Down’s
syndrome, that are allowed to have developmental pro-
grams and meet their needs, they hadn’t seen that it is
not necessary that Down’s syndrome people are mentally
retarded. They have to be given that opportunity.
Q. What other kinds of mistakes are made and
how?
A. A lot of other handicapping conditions can
cause the person to test on tests lower than their in-
tellectual capability. Deafness is a good example. They
have evaluated a lot of people on standardized tests and
(13) thought they were severely mentally retarded and
found out years later the problem was deafness.
Other problems are physical handicaps. Some peo-
ple are born with multiple physical involvements that
982a Linda L. Glenn—Direct
don’t allow them to have normal motor movement, nor-
mal speech patterns, normal capability to communicate
and since they haven’t been able to communicate or to
walk like other kids or behave like other kids physically,
they have been labeled as mentally retarded.
Q. If I recall correctly, as reasons for mistakes or
errors in identification of the retarded, we have inap-
propriate use of IQ tests without consideration of other
factors, which define mental retardation, physical prob-
lems such as deafness or other physical handicaps, as-
sumptions that are made about somebody at birth or some
early point—
A. Developmental speculations that are wrong.
Q. Have we generally covered that area?
A. Well, treating it that way makes it sound like
IQ i
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.