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-

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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

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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

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Mental Health Procedures Act of 1976 MA/HR Act of 1966

Sections Sections

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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.

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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

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Appendix — Secretary of Public Welfare of Pa. v. Institutionalized Juveniles · 442 U.S. 640 | Frix