brief for appellee — Secretary of Public Welfare of Pa. v. Institutionalized Juveniles
Supreme Court brief1979
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FOR ARGUMENT.
TIteh
IN THE MICRAEL ROBAK, JR_CLERE
SEP 19 978
Supreme Court of the United States
OCTOBER TERM, 1978
No. 77-1715
SECRETARY OF PUBLIC WELFARE
of Pennsylvania, et al.,
Appellants,
V.
INSTITUTIONALIZED JUVENILES in
Pennsylvania institutions for the mentally ill
and mentally retarded, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR APPELLEES
DAVID FERLEGER
2321 Sansom Street
Philadelphia, Pa. 19103
Counsel for Appellees
Washington, D.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-06 2°
(i)
TABLE OF CONTENTS
Page
TABLE OF CASES AND AUTHORITIES ........... iii
QUESTIONS PRESENTED .......... ENE A Ee REO ee ee 1
STATEMENT OF THE CASE ......ccccccccccccccccs 2
I. ORIGINAL PROCEEDING ............. 2
Il. PROCEDURAL HISTORY ON RE-
DEE Cddshcaakcadedauviacenapdbvhendeeussccs 7
Ill. THE HAVERFORD STATE HOSPITAL
PE -dentdddcinthninecsnaninecénecesed 9
IV. PLAINTIFFS COMMITTED UNDER
EEE Ska ndpdendatdwdacddcascccess 17
V. THE DISTRICT COURT’S' DECI-
SE: SUNGEUSUNESEEERSueseenesseetdscecesensce 18
SUMMARY OF ARGUMENT .....................5: 23
PE EE ES OS er en ree 33
I. Prior to Involuntary Indeterminate Mental
Institutionalization Upon Parental Applica-
tion, Young Persons Are Entitled to Substan-
tial Procedural Protections ...................+. 33
A. Institutionalization Results in Severe De-
privation of Liberty, Social Stigma, Self-
Stigmatization and Discrimination ........... 33
B. Liberty Interests Under the Fourteenth
Amendment Are Implicated by the Com-
mitment of Young Persons to Mental
DE icGbucbbskeeecadcsadustcocsevesss 42
C. The Constitutional Rights of Young Per-
sons in the Mental Institutionalization
Process Are Not Overcome by Parental
Application for Commitment ................ 52
D. Reliance Upon Psychiatrists and Other
Professionals to Authorize Commitment is
PEE ccdsnitaxenavsgnedeuvseenbeseecsd 66
(ii)
E. The Requisites of Due Process .............
F. Neither the State’s Statutes Nor Regula-
tions Affect the Unconstitutionality of
Commitment Without Hearing Before an
Impartial Tribunal, Counsel or Other
Trained Representative and Other
SEE <5 cc ddacadberidaesieicekens<oe
II. Indeterminate Confinement of Young Persons
in State-Licensed Institutions Constitutes
“State Action” Where the State Delegates to
Private Entities the Power to Deprive People
of Liberty and, Alternatively, Where Commit-
ment to Institutions in Pennsylvania Is a
Power Traditionally Exclusively Reserved to
I os dterkek us kesddeed ene deedisdcesee
A. “State Action’’ Is Present Where the State
Delegates to Private Entities a Power Not
Possessed by the State, the Power to
Deprive Persons of Liberty Without Min-
imal Due Process Procedural Protec-
BD ovndibhcucsbddoncdsabeeurctre reve vces
B. “State Action” Is Present Where Mental
Commitment Is a Power Traditionally
Exclusively Reserved to the State in
PE dnnuwisebseudsiaudcadesesceese
III. The District Court Did Not Abuse Its
Discretion In Certifying Plaintiff Subclasses
EEE ee ee
Bi, Fe Eo ndvcuccndeveceases
ee ee enen
IV. The District Court Did Not Err in Requiring
the Defendants to Assure that Young Persons
Presently Committed Receive Constitutional
State Procedures to Determine Whether They
Are Mentally Disabled and in Need of
EEE, Sccecoevisscudeaseduceseséees
CET ee ccvescnvavensocncndecdectencvesese
te mr Ne aren cll ate
nea
(iii)
TABLE OF CASES AND AUTHORITIES
Cases: Page
A.L. v. G.R.H., 325 N.E.2d 501 (Ind. App.
GOVE cvnddnccepesdbaddedeceasecsecoosocecees 65
Addington v. Texas, No. 77-5992 (S.Ct.) ........... 84
Anderson v. Martin, 375 U.S. 399 (1964) ........ 93,101
Anderson v. Solomon, 315 F.Supp. 1192 (D. Md.
SPUR ave ceusesdecdueeccoveseceeecoeececeees 104
Argersinger v. Hamlin, 407 U.S. 25 (1972) .......... 80
Arnett v. Kennedy, 416 U.S. 134 (1974) ............ 82
Babcock v. Fisk, 327 Mich. 72 (1950) .............. 48
Barry v. Hall, 98 F.2d 222 (D.C. Cir. 1938) ....... 34,43
Baxstrom v. Herold, 383 U.S. 197 (1966) ....23,42,70,75
Bell v. Wayne County, 386 F.Supp. 1085 (E.D.
BEIOM. FOPE) cwccccccccccccescccccssccvccecees 42
Bellotti v. Baird, 428 U.S. 132 (1976) ....... 27,61,63,94
Breed v. Jones, 421 U.S. 519 (1975) ........... 25,49,50
Buck v. Bell, 274 U.S. 200 (1927) .........eeeeeeeee 37
Bykofsky v. Borough of Middletown, 401
F.Supp. 1242 (M.D. Pa. 1975), cert. den.,
—— U.S. —— (1976) «0. cece e reece eeeeeeeneeees 48
Cafeteria Workers Union v. McElroy, 367 U.S.
SED 66846 cau kids cdeccsawicdeevoscecs coe 74
Carey v. Population Services International, 431
ees UTED odeddedsodsuuasecusswevese 24,49 ,63
Carpenter v. Davis, 424 F.2d 257 (St: Cir. 1970) ....105
Chaloner v. Sherman, 242 U.S. 455 (1917) ........ 23,43
Cae Ge, Be Oe GEE ce secwenccesscvceee 96
Clarke v. Clarke, 178 U.S. 186 (1900) .............. 65
Commonwealth v. Meredith, 14 Wkly Notes
a. Set. Be ee SD denne co eenbecncceses 100
(iv)
Commonwealth v. Spink, 137 Pa. 255 (1890) ........ 97
Comm. ex rel. Draper v. Kirkbride, 3 Brewst.
S05 CP. FR. FEED -cadedecdslpentvscecccess 100
Comm. ex rel. Haskell v. Kirkbride, 3 Brewst.
$06 (C.P. Pilla. 1960) cccccccvcecesccccccccces 99
Comm. ex.rel. Hembold v. Kirkbride, 11 Phila.
OOF CED . Gaerne cb dvcenpecqvensncengeecescecs 98
Comm. ex rel. Heston v. Heston, 98 A.2d 477,
173 Pu.Saper. 260 (1953) .cccccdcccccccsccccces 48
Comm. ex rel. Nyce v. Kirkbride, 2 Brewst.
et ee TTT TT 97,99
Comm. ex rel. Stewart v. Kirkbride, 7 Phila. 8,
BS SUED, GE als GED <Sedetbcccccvesccics 96,97
Congress of Ry. Unions v. Hodgson, 326 F.Supp.
th rere) tery Ore Te Pe errr ee 107
Cornwell v. State Board of Education, 314
F.Supp. 340 (D. Md. 1969), aff'd, 428 F.2d
471 (8th Cir. 1970), cert. den., 400 U.S. 942
CRUE. 9 dndndeeddbcnnedsetancceondéeeceseseves 48
Covington v. Harris, 419 F.2d 617 (D.C. Cir. 1969) .. 85
Danforth v. Christian, 351 F.Supp. 287 (W.D.
DER, FOPED ced ocgedeesesedwepwhowensccacocccce 107
Davidson v. Fry, 11 Lanc. L. Rev. 357 (C.P.
RG, TEE 60 cv swencessusvecescatasctuccescese 100
Davy v. Sullivan, 354 F.Supp. 1320 (M.D. Ala.
SED 9 6b s6¥is te eckabebaecicvcesCeneccnecsees 104
Dexter v. Hall, 82 U.S. 9 (1872) .........2eeeeees 23,43
Dixon v. Attorney General of the Common-
wealth of Pennsylvania, 325 F.Supp. 966
CREE FR. TRVED cewctccsccccsecesesosccccss 43,84
Dixon v. Weinberger, 405 F.Supp. 974 (D. D.C.
EPP EERE er er er Pere | PT PTO TET TT Eee 85
Doremus v. Farrell, 407 F. Supp. 509 (D. Neb.
Peciucbscenunddnntes causnnceecanetiecoscescens 43
a :
-—e
(v)
Ellis v. Massenberg, 126 N.C. 129, 35 S.E. 240
GE: | hGS.60inp 00 che dbhecdncs sdAcendseseceoeds 48
Erznoznik v. City of Jacksonville, 422 U.S.
EE Wh due ddd ccducecddocdésiverecosecs 24,49
Flagg Brothers, Inc. v. Brooks, 98 S.Ct. 1729
PEE Cehbse ob bce ddde delet ss andestecce 93,95,101
Frazier v. Levi, 440 S.W.2d 393 (Civil App. Tex.
SE bs whet ob hehe bub uses Cees ec oe 044s60s , 48
Gallegos v. Colorado, 370 U.S. 49 (1962) ......... 49,81
Gary W. v. Louisiana, 437 F.Supp. 1209 (E.D.
Bh Fe BEN650E56 6h een dda derceesesiccsccers 51
Gerstein v. Pugh, 420 U.S. 103 (1975) ..... 32,82,109,110
Gesicki v. Oswald, 336 F.Supp. 371 (S.D.N.Y.
DOVER. £60deeccdndduveun seseuh bond uh eqns’ 104
Giacco v. Pennsylvania, 382 U.S. 399 (1966) ...... 25,44
Gibson v. Berryhill, 411 U.S. 564 (1973) ............. 82
Ginsberg v. New York, 390 U.S. 629 (1968) ..... 46,50,63
Goldberg v. Kelly, 397 U.S. 254 (1970) ........... 79,82
Goldy v. Beal, 429 F.Supp. 640 (M.D. Pa. 1976). .104,110
Gomez v. Miller, 341 F.Supp. 323 (S.D.N.Y.
1972), aff'd sub nom. Miller v. Gomez, 412
es ED tn Saeso-bdcunnbes @0ne60eecas 32,110
Goss v. Lopez, 419 U.S. 565 (1975) .....ccccccccsecs 49
Grannis v. Ordean, 234 U.S. 385 (1914) ............. 79
Greenwood v. United States, 350 U.S. 366 (1956) ..... 67
Graver Tank & Mfg. Co. v. Linde Air Products
Sig: ee Ge Ne EE. cnddbs kes caves scceeéset 52
Gray v. Sanders, 372 U.S. 368 (1963) ........... 93,101
Halderman v. Pennhurst State School and
Hospital, 446 F.Supp. 1295 (E.D. Pa. 1977) .. 17,37,
38,39,67,85,86
Haley v. Ohio, 332 U.S. 596 (1948) ....... 49,50,60,81,89
(vi)
Hansberry v. Lee, 311 U.S. 32 (1940) ............. 104
Hart v. Brown, 289 A.2d 385, 29 Conn. Sup.
SEB (197E) .~ nccccccccececsecdssbensenenaanene 48
Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968) ...43,
50,59
Hinchman v. Richie, 4 Clark 184, 7 Pa. L. J. 268,
Brightly N.P. 143 (Phila. 1847) ............... 96,97
Hinchman v. Richie, Brightly N.P. 180 (C.P.
Bucks Ciy. 1967) .cccopeccceccnpasaesesicsuses 97
Holtsclaw v. Mercer, 145 F.2d 388 (D.C. Cir.
19OQ) .n.cccccccccesenceseuneunneseauenn 48
Horacek v. Exon, 354 F.Supp. 71 (D. Neb. 1973) ..39,65
Humphrey v. Cady, 405 U.S. 504 (1972) ....... 34,42,51
Illinois v. Allen, 397 U.S. 337 (1969) ............45. 82
In the Matter of Kenton, 5 Binn. 613 (1813) ........ 97
In re Ballay, 482 F.2d 648 (D.C. Cir. 1973) ....... 43,84
In re Barnard, 455 F.2d 1370 (D.C. Cir. 1971) ....43,82
‘In re Basso, 299 F.2d 933 (D.C. Cir. 1962) ...... ... 43
In re Gault, 387 U.S. 1 (1967) .....ccccccvccess passim
In re Henry G., 28 C.A. 2d 276, 104 C.R. 585
(1072) cccccccoccncédcbeeséuensensaennueneaas 53
In re John S., 135 Cal. Rptr. 893 (1977), vacated
as moot, 66 Cal.App.3d 343 (1977) ...........-. 94
In re Linco!n, | Brewst. 392 (C.P. 1867) ............ 97
In re Long, 25 N.Ca.App. 702, 214 S.E.2d 626
(1DTS) cccoccceescenhéenéesenueueneeeennennns 66
In re Roger S., 141 Cal. Rptr. 298, 569 P.2d
12368 (3.C2.Cal. B977) ccccccccceccevcsecudssets 66
In re Smith, 295 A.2d 238, 16 Md.App. 209 (1972) .. 48
In re Stuart, 114 F.2d 825 (D.C. Cir. 1940) ......... 48
In re Weaver, 116 Pa. 225, 9 A. 323 (1887) ......... 97
In re Wellman, 3 Kan.App. 100, 45 P. 726 (1896) .... 80
(vii)
In re Winship, 397 U.S. 358 (1969) ...... 25,49,50,83,84
Ingraham v. Wright, 430 U.S. 651 (1977) ........ 24,49
Insurance Company v. Bangs, 103 U.S. 435
SD Gheaasesesbeceeadcscccccccccccccccces 65
J.L. v. Parham, 412 F.Supp. 112(M.D. Ga. 1976),
prob. juris. noted, 431 U.S. 936 (1977) ....... 66,86
Jackson v. Indiana, 406 U.S. 715 (1972) ......... 42,82
Jackson v. Metropolitan Edison Co., 419 U.S.
DPE S66000Ge60dccceccocceccees 93,95,101,102
Jehovah's Witnesses in State of Washington v.
King County Hospital Unit No. | (Harbor-
view), 278 F.Supp. 488 (W.D. Wash. 1967),
aff'd, 390 U.S. 598 (1968), rehearing den.,
Se ED nce cede cecnceegqncvawcesd 62,65
Jones v. Milwaukee County, 20 F.R.Serv.2d
8 GG et 105
Johnson v. Zerbst, 304 U.S. 458 (1938) ........... 60,81
Kendall v. True, 391 F.Supp. 413 (W.D. Ky.
PED muleeddocceceséeeccecFoccncacece 43,107,110
Kent v. United States, 383 U.S. 541 (1966) ......... 49
Kent v. United States, 401 F.2d 408 (D.C. Cir.
DT SEGRRDEGEESGEORDS SESEKOCeC ENCES cocececces 5
Kidd v. Schmidt, 399 F.Supp. 301 (E.D. Wis. 1975). 51,66
Kremens v. Bartley, 431 U.S. 119 (1977) ............. 6
Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966) .... 85
Langan v. Langan, 150 F.2d 979 (D.C. Cir. 1945) ... 48
Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.
Wis. 1972), vacated and remanded, 414 U.S.
473 (1974), on remand, 379 F.Supp. 1376
E.D. Wis. 1974), vacated and remanded,
421 U.S. 957 (1975), on remand, 413 F.Supp.
1318 (E.D. Wis. 1976) ....... 06. c sec eeeee 40,42,82
( viii)
Logan v. Arafeh, 356 F.Supp. 1265 (D.Conn.
1972), aff'd mem. sub nom., Briggs v. Arafeh,
GBS GE TR Gee che Gece cwtsovepcucseccocess 44
Lynch v. Baxley, 386 F.Supp. 378 (M.D. Ala. 1974) .42,
83,84
M’Elroy’s Case, 6 W. & S. 452 (C.P. Phila. 1843) .... 95
M’Elroy’s Estate, 6 W. & OC k6éecevecees 100
Madden’s Lunacy, 13 D.R. 658, 12 Luz. L. Reg.
BED. TE CURSED cmc yvccccdccccccccccgpeccccsoce 98
Marsden v. Commonwealth, 227 N.E.2d | (Mass.
EE Kusdeusebusedcansaesbandekesensesecece 65
Mathews v. Eldridge, 424 U.S. 319 (1976) ..... 75,84,86
McGinnis v. Comm. ex rel. McGinnis, 74 Pa.
EEE dons de 6ka Ceceeesbiendneeatnde cece 100
McKeiver v. Pennsylvania, 403 U.S. 528 (1971) ...25,49
McNeil v. Director, Patuxent Institution, 407
CD SUPT Cade concéncccdsacencdecccecs 42,82
Meisel v. Kremens, 405 F.Supp. 1253 (E.D. Pa.
SOUED ceckcbeccdudens cdentvcowessanenecesses 104
Metz’s Case, 5 Pa. Dist. Rep. 132 (C.P. Dauphin
Ge. BEEP coccnecnconstboseauedaasoeccccecess 98
Meyer v. Nebraska, 262 U.S. 390 (1923) .......... 24,46
Minnesota ex rel. Pearson v. Probate Court of
Ramsey County, 309 U.S. 270 (1940) ........... 43
Miranda v. Arizona, 384 U.S. 436 (1966) ........... 60
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) .. 93
Mullane v. Central Hanover Trust Co., 339 U.S.
nck kcehoddncdeeseenceveesseeor cease: 79
New York State Association for Retarded
Children v. Rockefeller, 357 F.Supp. 752
(E.D.N.Y. 1973), modified, No. 72-C-356/
357 (E.D.N.Y., May 23, 1973), 393 F.Supp.
CE MOU Codd enscccesedeéddecconcees 39
(ix)
Newton v. Burgin, 363 F.Supp. 782 (W.D. N.Ca.
1973), aff'd, 414 U.S. 1139 (1974) ............... 48
Nixon v. Condon, 286 U.S. 73 (1932) ............. 102
Norwood v. Harrison, 413 U.S. 455 (1973) ...... 93,101
O’Connor v. Donaldson, 422 U.S. 563 (1975) 23,42,67,85
Paul v. Davis, 424 U.S. 693 (1976) ...........0eeee 51
Pennsylvania Association fc. Retarded Children
v. Commonwealth of Pennsylvania, 343
F.Supp. 279 (E.D.Pa. 1972) .....ccccccecees 40,106
People ex rel. O’Connell v. Turner, 55 Ili. 280
GED cesencceeccnsnsdecvesscesecedsececcess 69
People ex rel. Wallace v. Labrenz, 411 Ill. 618,
104 N.E.2d 769 (1952), cert. den., 344 U.S.
Be CESEED ccccccccccetsccesccccsseveescccececs 48
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ...24,46
Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52 (1976) ....6,27,61,62,63,70,94
Preiser v. Rodriguez, 411 U.S. 475 (1972) ...32,108,109,
110,111
Prince v. Massachusetts, 321 U.S. 158 (1944) ..... 46,63
Rafferty v. Rainey, 292 F.Supp. 152 (E.D. Tenn.
SEED Soeccccdcnersestccseteteceescecousesced 48
Rakes v. Coleman, 318 F.Supp. 181 (E.D. Va. 1970) 104,
107
Republican College Council of Pennsylvania v.
Winner, 357 F.Supp. 739 (E.D. Pa. 1973) ....... 48
Respublica v. Keppele, 2 U.S. 197 (1793) (Pa.
PD a cccc ccd ctcsocnocoscssecocsovccescesé 64
Roberts v. Ohio Casualty Insurance Co., 256
PE OED oeccccoccccsucecsnwesoces 3
Ruby v. Massey, 452 F. Supp. 361 (D. Conn.
et indcnnnsnmnnnitiimnitind lin inddimdaribeadienned 65
Samuel v. University of Pittsburgh, 56 F.R.D.
SE ED nucicecdscscancsevecaseccs 106
Sarzen v. Gaughan, 489 F.2d 1076 (Ist Cir. 1973) ... 43
(x)
Saville v. Treadway, 404 F.Supp. 430 (M.D.
Teme. 1974) .ccccccvccccccccccccccsecescess 51,66
Shelton v. Tucker, 364 U.S. 479 (1960) ............. 85
Specht v. Patterson, 386 U.S. 605 (1967) ... 23,42,44,70,
75,82,83
Stanley v. Illinois, 405 U.S. 645 (1972) .........+45. 47
Sullivan v. Houston Independent School District,
307 F.Supp. 1328 (S.D.Tex. 1969) ............. 105
Suzuki v. Alba, 438 F.Supp. 1106 (D. Haw. 1977) ... 43
Suzuki v. Quisenberry, 411 F.Supp. 1113 (D.
GERD nwcnveccenccsvncwscesceciesecess 43,84
Tinker v. Des Moines Independent Community
School District, 393 U.S. 503 (1969) ............ 49
Township of Franklin v. The Pennsylvania State
Lunatic Hospital, 30 Pa. 522 (1858) ............. 99
United States v. Dunn, 268 U.S. 121 (1925) ......... 65
United States v. Equitable Trust Company of
New York, 283 U.S. 738 (1931) ...........00-- 65-66
United States v. Guest, 383 U.S. 745 (1966) ......... 93
United States v. United States Gypsum Co.,
353 UB. B66 CUSED ccccccececccccccecccccccses 52
Ware v. Estes, 328 F.Supp. 657 (N.D. Tex. 1971),
aff'd, 458 F.2d 1360 (Sth Cir. 1972), cert.
Gem. GES GE, Tee GSE ocbedescecncceseccccs 48
Washington v. Lee, 263 F.Supp. 327 (M.D. Ala.
1966), aff'd, 390 U.S. 333 (1968) ............ 104,107
Washington v. Texas, 388 U.S. 14 (1967) ........... 83
Welsch v. Likins, 373 F.Supp. 487 (D. Minn. 1974) .. 85
White v. Osborne, 251 N.©. 56, 110 S.E.2d 449
CRRGED cnceccccvccescsscadapeveqeswesedeste . 48
Wisconsin v. Constantineau, 400 U.S. 433 (1971) .... 51
Wisconsin v. Yoder, 406 U.S. 205 (1971) ...... 24,46,47
Wolff v. McDonnell, 418 U.S. 539 (1973) .32,108,109,110
Wyatt v. Aderholt, 358 F.Supp. 1382 (M.D. Ala.
TOTS) ccccccccccccccnccccecccbessousevecseces 88
(xi)
Wyatt v. Stickney, 325 F.Supp. 781 (M.D. Ala.
1971), 334 F.Supp. 1341 (M.D. Ala. 1971),
344 F.Supp. 373 and 387 (M.D. Ala. 1972),
aff'd suo nom. Wyatt v. Aderholt, 503 F.2d
EE en Ghiucecdddesecetceddece 39
Federal Constitutional Provisions and Statutes:
Amendment XIV, Constitution of the United
PE Web dadcuskseeeessceecccécceedeesees passim
Ps ee , OD ccm ccccccsccecncete 3
ee ee SE I ED ccnecccccvecocenccecs 2,6
ee es Oe Ge UA DD co cccccicccecenccces 52
I EE ee hee a a 110
EE ee ee ee 3
EEE Wb bubnl ovaudesisbddcedeucnccndcs 3
Pennsylvania Constitutional Provisions and Statutes:
ee IE Winn ocnccdedcéocnesbencees 96
I, ot hn cote enneedadiuns 96
I i i i 96
EE ne 96
Act of 13 June 1836, P.L. 592, 593, 595, 605 ...... 96,97
RS ee ill, BD kcctcccccccccccscee 100
Pay I ED bcc dcccccccccccéseccess 98
RAR GE Br els Ob diecccedicccdécccccds 98
Act of 20 April 1869, P.L. 79-80 .................. 99
a I EE. eidikdcensccccacécoces 98
RES ES Be PE be bccccccdccsccccces 98
ee SE EE eb bbb dedicsowcovucdecces 98
Ast of 3 Same 0603; PL. BITS? .. cc cccccccccsecs 99
Act of 15 June 1897, P.L. 162-163 ........cccccces 100
(xii)
Act of 16 July 1897, P.L. 301 2.2... cece cree eeeeee 98
“Act of 15 May 1903, P.L. 448 ........cceeeeeeeeees 99
Act of 12 June 1913, P.L. 496 ..... cc cece eeeeeeees 99
Act of 25 July 1913, P.L. 1322 .....ceeeeeeeeeerees 99
Act of 16 July 1919, P.L. 987 .....ccceeeeeeeeeeees 99
Act of 27 April 1925, P.L. 338 ....eeeeeeeeeeeeeees 99
Act of 20 September 1961, P.L. 1527 ....--eeeeeees 98
50 P.S. §41 (1923) 20... cece cece cece creer eeeeeees 98
50 P.S. §§42, 51 (1923) «0... ceeeeeeceeeeneeeeeeees 98
50 P.S. §50 (1925) 21... cece eeeeeeeenerreeeeeeeeee 98
50 P.S. §1181 (1951) 2... cece cece eee e rere eeeeeeees $s
50 P.S. §4101 et seq. (1966) ......- cece eeeeeeee passim
50 P.S. §4102 (1966) ...... ec cece ee eeeeeeeeeeeeeees 3
50 P.S. §§4402, 4403 (1966) ......- cece eeeeees passim
50 P.S. §4404 (1966) 20... cc cece cece ee eeeeeeeeeees 17
Mental Health Act of 1951 .......eeeeeeeeeeceeees 18
Mental Health Procedures Act, 50 P.S. §7101
et seq. (1976) 2... cece cece eee eeeeeeeenece passim
Department of Public Welfare Regulations, Title
BED nc ccntedesececs sovencdssseessesooeve passim
Mental Health Procedures Act, 50 P.S. §7201
CITT cw cccusccccccccecsccccsscosacvedsycasesoceces 3
Other Authorities:
Alanen, The Family in the Pathogenesis of
Schizophrenia and Neurotic Disorders, 24
Acta Psychiatrica et Neurologica Scandina-
vica, Suppl. 189 (1966) .........eeeeeeeeeeeeees 53
American Bar Foundation (Brakel & Rock, eds.),
The Mentally Disabled and the Law (1971) ...... 79
American Psychiatric Association, Diagnostic
and Statistical Manual (2d ed. 1968) ............ 35
Barton, Institutional Neurosis (2d ed. 1966) ......... 34
(xiii)
Baumeister & Butterfield, Residential Facilities
for the Mentally Retarded (1970) ............... 37
Bazelon, Forward, Symposium: Mental Illness,
the Law and Civil Liberties, 13 Santa Clara
UE I ho neat a nine ide alia tn ae 71
Beck, Reliability of Psychiatric Diagnoses: A
Critique of Systematic Studies, 119 Amer. J.
of Psychiatry 210 (1962) ...........cccceccccees 68
Belknap, Human Problems of State Mental
SE EE nneddncnxcucsenetbadhsccbacas, 34
Blackstone, Commentaries on the Laws of England
yo ere ne eee 45,100
Bouliew, Do Institutions .Maintain Retarded
Behavior, 9 Mental Retardation 36 (1971) ....... 41
Braginsky, et al., Methods of Madness: The
Mental Hospital as a Last Resort (1969) ........ 40
Braginsky & Braginsky, Hansels and Gretels:
Studies of Children in Institutions for the
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a
ee --
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1978
No. 77-1715
SECRETARY OF PUBLIC WELFARE
of Pennsylvania, et al.,
Appellants,
v.
INSTITUTIONALIZED JUVENILES in
Pennsylvania institutions for the mentally ill
and mentally retarded, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR APPELLEES
QUESTIONS PRESENTED
1. Mental institutionalization results in severe
deprivation of liberty, social stigma, self-stigmatiza-
tion and discrimination. Are young persons entitled to
substantial Fourteenth Amendment due process
procedural protections prior to involuntary indeter-
2
minate mental institutionalization upon parental
application? If so, what process is due?
2. With reference to state-licensed facilities, is “‘State
action” present for Fourteenth Amendment purposes where
the State delegates to private entities a power not possessed
by the State, the power to deprive persons of liberty without
minimal due process protections, and, alternatively, is
“State action” present where mental commitment in
Pennsylvania is a power traditionally exclusively reserved
to the state from the earliest colonial period continuously to
the present?
3. Did the District Court abuse its discretion in
certifying two plaintiff subclasses and a defendant
class, where each shares essential legal and factual
characteristics and where the requirements of Rule 23,
F. R. Civ. Pro., are met?
4. Did the District Court err in requiring the
defendants to assure that the plaintiff class members,
committed to institutions unconstitutic nally, receive
constitutional! state procedures in a state forum to
determine whether they are mentally disabled and in
need of institutionalization?
STATEMENT OF THE CASE
I. Original Proceeding
On November 16, 1972, plaintiffs in this class action
filed their complaint against state officials' challenging
'The defendants included the Secretary of the Department of
Public Welfare which “has the power and duty to enforce” the
state mental health law, to “make all regulations necessary and
. (continued)
3
those portions of Pennsylvania mental commitment
statutes which permit the involuntary indeterminate
confinement of juvcaniles without substantial proce-
dural safeguards including notice, counsel and
opportunity for hearing.”
A three-judge court was convened pursuant to 28
U.S.C. §§2281, 2284 and, prior to trial, extensive
factual stipulations were entered into. At a three day
hearing before the three judges, the testimony of six
expert psychiatrists was heard. The depositions of
three other psychiatrists were entered into evidence.
The named plaintiffs were confined at Haverford
State Hospital under the challenged statutes (133a-
(footnote continued from preceding page)
appropriate,” and to “operate and assign functions to all state
facilities” and the Deputy Secretary for Mental Health and
Mental Retardation (277a). The superintendent of Haverford
State Hospital, who is responsible for receiving applications for
admission, commitment and release under the challenged
statutes, was “sued as representative of the directors of all mental
health facilities in Pennsylvania,” all of which are under the
authority of the defendants Secretary and Deputy Secretary
(275a). All mental institutions in the state, state-owned or state-
licensed, are required by law to utilize the commitment statutes
and regulations. 50 P.S. §4102. Department of Public Welfare
Regulations, Title 9100 (291a).
2The defendants agreed to the District Court's suggestion that
a guardian ad litem be appointed for the plaintiffs pursuant to
Rule 17(c) of the Federal Rules of Civil Procedure: “With regard
to the technicality involved, I am really at the court's pleasure. I
really do not object to the going through with Mr. Ferleger as a
next friend.” (250a). As here, federal courts uniformly exercise
their power under Rule 17(c) to protect minor litigants’ interests
where potential for parent-child conflict is present. E.g., Roberts
v. Ohio Casualty Insurance Co., 256 F.2d 35 (Sth Cir. 1958).
4
134a).3 They were detained after a psychiatric
examination which lasted “anywhere from an hour to
three quarters of an hour” (47a) “or shorter.” /d. The
reasons for admission of these persons (as stated by the
hospital) included truancy, incorrigibility, homicidal
and suicidal behavior, chaotic family, talking inco-
herently, rebellion, aggressive behavior, threats and
assaults to family members, temper tantrums, sexual
acting out, foul language, drug use and hallucinations
(135a-165a). Treatment for the group included drugs,
individual, group and family therapies, confinement to
closed locked units, schooling and confinement in
seclusion rooms. /d.
Information regarding the mental institutionaliza-
tion of all juveniles in Pennsylvania facilities was
provided to the District Court (310a-316a).4
The facts in the following numbered paragraphs are
stipulated by the defendants:°
3Children at Haverford State Hospital are held as civil
“voluntary patients in the same treatment unit as those on
criminal commitments.” See Deposition of Barbara Armstrong
(38a et seqg., 135a-165a).
‘This information was provided in response to a discovery
questionnaire which requested reports of the “reason” or
“precipitating behavior” for commitment (27a, 773a). The
extensive data are collated and summarized at 210a ef seq.
‘The stipulation and admission of these facts (522a-523a) was
preceded by defendants’ objection that additional data from the
juveniles’ medical records should be before the court (288a). To
satisfy this objection, the court and the parties agreed that the
records of ten randomly selected juveniles could be introduced
into evidence (317a-363a). The random selections confirmed the
representativeness and accuracy of the summaries given by the
institution of the reasons for commitment. See, e.g., the case in
note 7, «fra.
ee
5
1. Children have been institutionalized in Pennsyl-
vania mental health facilities for the following reasons
as noted by the institution: “Runaway, incorrigible,”
“Violent episodes,” “Hostile, attacked children,
attempted to set home on fire,” “Robbed gas station,”
“Stole truck, car,” “Member of gang which partici-
pated in robbery,” “Delinquent behavior,” “Arson,”
“Runaway,” “Runaway, truancy, delinquent be-
havior.”
2. Mental institutions sometimes cooperate with
parents and relatives “farming out their kindred into
mental institutions for motives not always worthy.”
3. Children have wound up at institutions for the
retarded for the following reasons, in addition to
retardation:
“Interim placement while family was on
vacation.”
A mother placed her child because “father out of
household in the military.”
“Hyperactivity interfered with the routine of
household and disturbed family members.”
“An institution accepted a child from a mother
because of “desertion of father.” ,
~ 6Kent v. United States, 401 F.2d 408, 416, n. 4(D.C.Cir. 1968)
(Burger, J., dissenting).
’More than ten months after this “vacation,” this individual
was reported still at the institution for the retarded; he was
committed on July 20, 1972 for what his parents told the facility
would be a one or two week stay. The facility reported the
individual still committed as of May 31, 1973 (355a-362a, 773a).
The District Court’s reference to this case, 790a, is criticized by
the defendants who, erroneously and contra the record, claim
that this commitment was part of a state “respite care” program.
Brief for Appellants at 46, n. 40.
6
Also, “Family conflicts,” “Unmanageable at home,
attitude of bold indifference, resents all discipline,
compulsive eating,” “Runaway, conflict with parents,”
“Neglect, Social Deprivation,” “Neglect, unstable
home environment,” “No serious behavior problem;
admitted due to parents’ inability to provide a satis-
factory home environment,” “Sometimes hyperactive.
Illegitimate,” “Illegitimate. Inadequate mother.”
4. One facility accepted a young retarded boy
because “He has no playmates, planned activities,
exercise. Presently he does nothing except sit in school
and in front of the T.V. at home.”
5. Three juveniles were committed to mental!
institutions because of physical ailments: ulcerated
colitis, a psychosomatic complaint, weight loss.
6. Five juveniles were reported in one facility for not
going to school.
7. A number of juveniles are committed for alleged
drug-related activities.
Judgment was entered in favor of the plaintiffs,* the
defendants appealed and this Court noted probable
jurisdiction. While the appeal was pending, the
Pennsylvania legislature enacted the Mental Health
Procedures Act, 50 P.S. §7101 et seq. (hereafter, the
“1976 Act”) which altered commitment procedures for
persons alleged to be mentally ill. In view of the effects
of this statutory change, this Court held that the class
action originally approved no longer met the
requirements of Rule 23(a) and vacated and remanded
“for consideration of the class definition, exclusion of
*Because important changes were made by the District Court
after remand, the 1975 opinion and order (783a et seq., 843a et
seq.) are not summarized at this point.
7
those whose claims are moot, and substitution of class
representatives with live claims.” Kremens v. Bartley,
431 U.S. 119, 135 (1977).
II. Procedural History on Remand
On remand, plaintiffs filed an amended and supple-
mental complaint (875a et seq.). Nine of the twelve
namec plaintiffs included every juvenile committed as
mentally ill under the 1976 Act to Haverford State
Hospital at the time of filing (945a). Three of the
plaintiffs were committed as mentally retarded to other
institutions under the 1966 Act, 50 P.S. 4101 et seq.°
As in the initial proceedings, a defendant class of all
Pennsylvania facility directors was sued, as was the
Secretary of Public Welfare.'!° Unlike some states,
mental health facilities in Pennsylvania are not merely
licensed to provide services; they “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.” (949a). When institution-
alized juveniles object to their confinement, the
defendant facility directors, relying on the state law,
°The defendants again agreed to the maintenance of the
litigation by the guardian ad litem, at no point raising any
objection to single counsel functioning in that capacity. See 94Sa.
Defendants did attempt to restrict the guardian’s access to his
clients and their records. On motion, the District Court ordered
the defendants to permit full access to medical records,
institutional living areas and the plaintiff class members
themselves. Orders of June 21, 1977 and July 25, 1977. On the
guardian ad litem’s functions, see 1073a-1074a, n. 39 and 40.
10See note 1, supra.
8
“do not provide counsel or take action to assure either
discharge or a heartng on the juvenile’s objection. . . .”
(950a). A defendant class was certified.'!
The District Court set March 31, 1978 for the final
hearing on the merits and ordered the parties to advise
the court. whether additional evidence would be
submitted. Plaintiffs offered to submit expert testi-
mony on “possible differing considerations between
the young and very young and between those persons
alleged to be mentally ill and retarded.” (960a, citing
431 U.S. 119, 135). The defendants offered to produce
no testimony.
Welcoming such expert testimony on questions
raised by this Court, the District Court directed that it
be presented by deposition.'? Plaintiffs took the
deposition of the Assistant Commissioner for Mental
Retardation for the Department of Mental Health,
Commonwealth of Massachusetts (972a et seq.). The
defendants provided no expert testimony, or any
factual testimony whatsoever.'? The Commissioner's
testimony stood uncontradicted.
''\For the District Court’s memorandum and order on this
issue, see 956a et seg. Counsel for several state-licensed facilities
who were present at the final hearing made no objection, then or
at any time, to the all-inclusive class definition and did not seek to
present any evidence. Hearing of March 31, 1978.
'2Hearing of March 31, 1978.
''Throughout their brief, defendants repeatedly make “fac-
tual” assertions regarding the differences between the young and
very young and the mentally ill and the mentally retarded. These
assertions, which bear no references to the record, are not based
on any evidence in the case. In fact, the only evidence on these
matters after remand is the expert testimony cited in the text.
S
oon Cee Lb. te me
ee ee ee
Bh OM hoe me, a ee
ne ee Se
9
At the final hearing, an extensive factual stipulation
was entered into evidence (943a ef seg.) as were
portions of the named plaintiffs’ medical records. The
court accepted the parties’ agreement to include in the
evidence on remand “all testimony, depositions,
exhibits, interrogatories, objections and rulings” from
the original proceedings (950a, 1066a, n. 17).
Ill. The Haverford State Hospital Plaintiffs
The score of buildings at Haverford State Hospital,
located in a rural/ suburban area outside Philadelphia,
include Building 14, a structure with two large wards.
The west ward houses geriatric patients; the door to itis
generally unlocked. The east ward houses juveniles
(948a).
Entry into the children’s ward is through a locked
door bearing a sign which reads, “VISITING
HOURS—1:30-4:30 Weekends and Holidays. No
evening visits.” (948a).
The ward 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 (949a).
In the nursing station is a bank of television monitors
which is used to surveil the patients in all areas of the
unit, including the halls and dormitories (949a). A
week before the final hearing, the monitors in the
dormitory area were switched off (Oral stipulation at
10
March 31, 1978 Hearing). Adjacent to the building are
playing areas fenced in by chain link fences about 12
feet high (949a).
The named plaintiffs at Haverford ranged in age
from 7 to 13 years. A county child care agency was
involved in three of the nine commitments.'* All were
committed to the institution simply upon the applica-
tion of a parent or guardian and its acceptance by the
institution pursuant to Section 201 of the 1976 Act.
There is nothing in the record to indicate that anything
more than Haverford’s typically brief psychiatric
examination by a staff doctor preceded these commit-
ments. See Deposition of Barbara Armstrong at 47a,
1059a, n. 11, 106la, n. 15. 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 interview of the child by a
psychiatrist, recorded in an admission note on the day
of admission. The admission note summarizes the
factual and psychiatric basis thought to justify the
commitment.!5
‘Thus, the defendants are in error when they state that “{i}n
this case each of the appellees’ parents sought medical help. . . .”
Brief for Appellants at 30. For the entire class, the record
indicates about 15% are not committed by their parents (933a,
952a at par. 45).
'SParagraph 37 of the Complaint, 884a, admitted by the
defendants at 919a. The single or multiple “independent”
examinations the defendants claim are required and provided,
Brief for Appellants at 44, are not part of the procedure.
Although defendants were given the opportunity to demon-
strate that referral material was used in deciding whether to
confine the plaintiffs, the District Court found that “there is still
(continued)
ee
These admissions notes, and the circumstances of the
named plaintiffs, illustrate the great range of disputed
behavior and facts surrounding the commitments and
the unstable and conflict-ridden family situations of
these young persons.'¢
Kevin S.
Kevin’s mother, who is separated from his father, has
a history of serious mental illness, including suicide
attempts and hospitalizations. She was institutional-
ized when Kevin’s elder brother was born. When
pregnant with Kevin, she returned to the institution
and, she admitted to Haverford State Hospital staff,
“lied” to get in again.
At home with his mother, Kevin was physically
abused. Most of his early life was spent in foster homes.
At the age of 12, Kevin was brought to Haverford
State Hospital by the county child care agency and his
(footnote continued from preceding page)
little evidence showing in what way, if at all, these records were
used during the admissions process.” (106la, n. 15).
State procedures allow the most extreme summary commit-
ment “process.” As the District Court described the experience of
one of the named plaintiffs:
Hospital records show that Edward was not informed that
he was to be admitted to a mental health facility prior to his
admission date, but rather was told that his parents were
taking him to a new school. He was extremely upset by the
admission expressing fears about being in a
hospital with “crazies” and being confined “like a prisoner.”
1064a. In another case, the admission form for Francis B. was
signed in blank. Defendants’ Exhibit 9.
'6The descriptions in the text are from the opinion of the lower
court (1062a-1065a), supplemented by the medical records in
evidence (Defendants’ Exhibits | through !2) and the defendants’
answer to the complaint (916a ef seq.).
12
mother and was committed under Section 201 of the
1976 Act. After he was admitted, a psychiatrist
interviewed Kevin and prepared an admission note
which gives as the “reason for admission:” “Difficulties
adjusting to school and family (mother). Exhibited
bizarre behavior in school that has included making
inappropriate sounds and laughing inappropriately.”
There is no indication in the records of Kevin’s
admission that he was ever asked for his comments or
version of the behaviors he was accused of.
Haverford’s psychosocial history of this plaintiff
notes that his mother actively uses social systems “to
the point of abuse” and concludes:
It is felt that much of Kevin’s problems come from
living with a schizophrenic mother and having a
very unstable and abused early life.
Richard S.
The county child care agency committed Richard S.
to Haverford under Section 201 of the 1976 Act when
he was 12.
Richard S. did not live with his mother until he was
two years old and he stayed with her only until he was
four when he was placed in an agency’s children’s
cottage, later to be cared for in other homes for
children.
The first psychiatric evaluation recorded for Richard
S. in the hospital records was made the day of his
admission and gives as the “reason for admission:”
“Inability to adjust to open setting. History of self harm
and running away.” This evaluation contains no
indication of whether Richard S. was given any
opportunity to respond to the alleged basis for his
institutionalization.
a ee eet Ne et
es
13
James Paul M.; Edward B.; Raymond C.
At age 7, James Paul M. was committed to
Haverford by his father. His mother had died about
one year before. The admission note gives “Uncon-
trollable behavior. Learning disability” as the reason
for admission, with no further detail.
Plaintiff Edward B. was referred to Haverford by his
private psychiatrist, Dr. Carl Hammer, who, it
happens, is also a part-time psychiatrist at the
institution. Edward is an adopted child.
Pursuant to Section 201 of the 1976 Act, Edward’s
parents signed him into the institution, having
admittedly tricked him into accompanying them. The
admission note records the extent to which his parents’
actions and the hospital’s procedures traumatized the
11 year old:
Eddie then opened up with many feelings about
being tricked into coming by his parents. He
expressed feelings about them not caring for him
and wanting to get rid of him. Both parents
acknowledge 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.
Raymond C. was committed to the institution the
day he was first seen at the facility. Under Section 201
of the 1976 Act, he was committed by his father who
14
had a drinking problem, according to the hospital’s
records. Institutionalized for “evaluation” initially, the
admission note states the “reason for admission” as
“History of uncooperative behavior including run
away from school. Problems in community with
stealing and destroying property. Has a learning and
hearing problem.”
William B.; Francis B.
Committed to the institution under Section 201 at
the age of 9, William B. had been born to parents who
separated when he was an infant. Two years prior to the |
commitment, William began living with his father in a
home with a stepmother and two stepbrothers.
The reasons given by the institution for his commit-
ment were “Uncontrollable behavior; preoccupied with
matches, set a rug on fire, turned the gas burners on in.
the house, throws things out the window.”
According to the hospital records, William B.’s life
with family members subjected him to situation of
extreme inconsistency, disorganization and lack of
structure. His natural mother’s lifestyle was erratic and
she reportedly abused him.
Francis B. was about 9 when he was committed to
Haverford, originally under Section 403 of the 1966
Act. This admission was at the request of his father who
signed admission forms which omitted the proposed
patient’s full name and any identifying information.
Francis’ father iater executed a commitment under
Section 201 of the 1976 Act.
This young plaintiff comes from a disorganized
family which has rejected him. As a social history a
month before his confinement observes, “One of the
mee + 5
eS
15
most distressing 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, it was apparent that “Frank could
no[{t] do right in parents’ eyes.”
The admission note contains unamplified allegations
of “difficulties adjusting to school” and states that
Francis B. “has been described as hyperactive ...
clowning in order to get attention.” A psychiatric
evaluation received by the institution in referral
material states, “I cannot describe him as hyperactive.
In the first interview his mother seemed more
hyperactive than he did.”
Maria L.; Thomas W.
Maria L. was committed to the institution by her
mother at the age of 11 pursuant to Section 201 of the
1976 Act. The “reason for admission” was stated by the
psychiatrist to be “Difficulties adjusting to school
because of aggressive behavior. Difficulties adjusting
within the family.”
Relationships between Maria and her parents are
strained in several ways. She is the third of four
children and Haverford’s psychosocial history reports
that
The youngest is given special attention by Mr.
L_. because Mrs. L__’s pregnancy with him
kept her from divorcing Mr. | Mr. L__ does
not want to assume any responsibility in raising
the children or helping with home chores. He
formerly spent a great deal of time away from
16
home, usually drinking, but now stays at home
more, although he still drinks a good deal. Mrs.
L__ does not see the drinking as a problem.
Maria’s mother “has had near mental breakdown
from the strain of the children” and, several times, tried
to choke Maria, according to the same history of the
case.
Thomas W.’s parents have an unstable marriage.
After a severe beating which resulted in the child’s
hospitalization at the age of 9, Thomas’ case came to
the attention of social service agencies and his mother
and stepfather were arrested.
The county child care agency, which has custody of
Thomas W., committed him to Haverford from the
County Juvenile Detention Center, first as an
emergency commitment and then under Section 201 of
the 1976 Act. While at the detention center, shortly
before his commitment, he was given a psychiatric
evaluation by John Fong, superintendent of Haver-
ford, in his capacity as a “consultant.” Haverford’s
stated “reason for admission” is “Fire setting, rages of
5-6 hours, during which he is assaultive, destructive
and sets fires.”
The Haverford State Hospital plaintiffs described
above are not a selection from a larger group; every
juvenile committed to Haverford under Section 201 at
the time the suit was filed is included (945a). Also,
absolutely none of the plaintiffs had ever been insti-
tutionalized before the commitments described above;
it was their first time in the institution (910a, 924a).
17
IV. Plaintiffs Committed Under the 1966 Act
Pennhurst State School and Hospital is located in a
rural area of Pennsylvania near Valley Forge. Built in
the first decade of this century, it is unaccredited by the
Joint Commission on the Accreditation of Hospitals.'’
Plaintiff George S. was committed to Penrthurst
under Section 402 of the 1966 Act by Catholic Social
Services, an agency which was caring for him under
contract with the Philadelphia Welfare Department
which had legal custody of him. George was
abandoned by his parents. From the first year of his
birth until 6 years later (when he was committed to the
institution), he lived with a foster family.
When his foster mother was hospitalized and, for a
time, unable to care for George, he was placed in
another foster home temporarily. Because of crowded
conditions in that home, the placement was termi-
nated; Catholic Social Services then signed George into
Pennhurst.
Built in 1897, Polk State School and Hospital is
located in a rural community about 80 miles from Pitts-
burgh. The remaining two plaintiffs are incarcerated at
Polk.
At the age of 6, in 1967, the year her parents
divorced, Gina S. was placed in a county infants’ home.
Three years later, she was removed by her mother and
taken directly to Polk where she has remained since.
Gina S. was committed under a law, invalidated in
1971, which permitted any two doctors to certify the
''The shocking conditions and total lack of care at this
institution are detailed in Halderman v. Pennhurst State School
and Hospital, 446 F.Supp. 1295 (E.D. Pa. 1977).
indefinite commitment of any person.'* No commit-
ment papers were executed from 1971 until 1975 when
the plaintiffs mother signed an application for
commitment under Section 402 of the 1966 Act.
Nancy Louise D. was born in 1960. Both her parents
were alcoholics and both were mentally retarded. In
1961, Nancy Louise was placed under the guardianship
of the county welfare department which placed her in
foster care until 1968 when she was taken to Polk.
“Her application form for admission shows that she
was admitted under the authority of the Mental Health
Act of 1951, rather than the 1966 Act then in effect.”
(Opinion at 1065a, n. 16). No commitment forms have
ever been executed under the 1966 Act. Polk’s director,
however, purports to maintain her confinement under
Section 402 of the 1966 Act.
George S., Gina S. and Nancy Louise D. are all
mentally retarded to some degree. There is nothing in
their medical records indicating that their mental
condition required institutional care, rather than the
non-institutional care they had been receiving prior to
commitment.
V. The District Court’s Decision
Holding that the plaintiffs’ constitutional! liberty
interests are implicated by institutionalization, and
that parents and guardians cannot waive young
persons’ constitutional rights, the District Court, with
one judge dissenting, mandated certain due process
'®Section 404 of the 1966 Act, 50 P.S. §4404. This statute was
declared unconstitutional in 1971 in Dixon v. Attorney General
of the Commonwealth of Pennsylvania, 325 F.Supp. 966
(M.D.Pa. 1971) (Three-Judge Court).
19
procedures to protect against erroneous commitments
and to assure the least restrictive alternative form of
care.
Brief descriptive reference to the District Court’s
decision is necessitated by the defendants’ repeated
misleading and deficient characterization of the
judgment now before this Court. Defendants miscon-
strue the relief that was granted. Further, defendants
totally ignore (and, significantly, do not challenge) the
detailed factual findings below.
The District Court did not order that every child
committed “be provided two separate adversary
hearings.” Brief for Appellants at 20. The District
Court did not order “a court hearing to check the
accuracy of the mother’s reports or the doctor’s
diagnosis and recommended treatment. . . .” Brief for
Appellants at 42. The District Court did not order
procedures “to enhance the diagnostic process.” Brief
for Appellants at 45.
The only procedures absolutely required in every
case are notice!? and “counsel or other trained repre-
sentative.” (1093a). The court explained the need and
function of the child advocate in this way:
It may not always be necessary to appoint a lawyer
so long as a substitute procedure adequately
protects the child’s interest. For example, it may be
sufficient to appoint a guardian, trained in the
'9Notice is not required prior to confinement in the institution.
The order specifically declares that parents and guardians “may
initiate the temporary detention” of young persons (1092a) and
that a probable cause hearing need not be held for three days after
the commitment (1094a). Notice must be received 48 hours
before the hearing (1093a).
20
mental health field, who would advocate the
child’s interests or alternatively, have the power to
retain a lawyer to do so. The important point is
that the child must have a capable advocate who
has the sole responsibility of advancing the child’s
best interests. However, until alternative proce-
dures are designed which will adequately protect
the child’s interests, we adhere to our conclusion
that counsel is required. |
Opinion at 1079a, n. 47. Once the juvenile and his or
her representative has notice of an intention to prolong
the institutionalization, the decision is made whether to
waive or insist upon the hearings and further rights
recognized by the court (i.e., presence at hearing,
confrontation, standard of proof). See 8lla, n. 26
(original opinion), 1079a, n. 48 (current opinion),
1094a (current order).
Contrary to the defendants’ claims, the District
Court was crystal clear that “we neither intend nor
expect that all of these procedures will be required
every time an attempt to institutionalize a child is
made.” (81 1a, n. 26). In its recent memorandum on the
motion to stay, the court noted the major likely
practical effects of the flexibility inherent in the
procedures:
In fact, the witness who testified on behalf of the
Devereaux Foundation stated that he believed
that the majority, if not all, of the 300 class
members at Devereaux are content and, given the
choice, would choose to remain there. In the case
of a of these juveniles, a hearing might be
waived.
Memorandum of July 17, 1978 at 4.
21
Regarding the nature of the forum for hearings
which are held, the lower court explicitly chose to
“state only that the tribunal must be neutral and
unbiased.” (1082a). The state is left “free to develop its
own safeguards (1079a) to protect plaintiffs’ rights. The
order does not decide “[w]Jhether the tribunal should be
judicial or administrative.” (1082a and id. at n. 53).
If a hearing occurs in a particular case, the neutral
tribunal will determine the factual questions which
arise inevitably. The decision-maker will resolve
“whether, in fact, the child is mentally ill or mentally
retarded. If this determination is affirmative, the
tribunal should proceed to determine if commitment is
necessary, if it will be beneficial to the child, and if it is
the least restrictive alternative.” (108la). “While the
tribunal should make findings to support its deter-
mination, these findings need not necessarily be made
formally.” /d.
On remand, the District Court refined and set forth
the factual findings which are the foundation of its legal
conclusions. The defendants have not challenged these
factual findings on appeal. Some of the major findings
of the court are summarized below:
1. A serious and injurious stigma attaches to
institutional commitment whether the juvenile is
classified as mentally ill or mentally retarded
(1067a). This stigma may be “a more lasting
abridgement of personal freedom than imprison-
ment for the commission of a crime.” (795a).
2. Both mental illness and mental retardation (in
part, for different reasons) are subject to error in
diagnosis and identification (1067a-1068a) “sub-
stantially different from the treatment of other
medical conditions.” (1077a-1078a).
22
3. Conflicts between the interests of parents and
juveniles frequently arise respecting commitment
and parents often institutionalize their children for
reasons unrelated to the young — needs and
best interests (798a, 1068a- 106
4. Deprivation of liberty is inherent in institu-
tionalization and its serious, isolating and dehu-
manizing effects which apply to both the mentally
ill and mentally retarded, regardless of whether the
institution is state-operated or state-licensed
(1069a-1070a).
5. The dangers of misclassification and the stigma
of institutionalization fall more ueavily on the
younger child.
6. With respect to the mentally retarded, the
decision to institutionalize is often a long-term or
even life decision (1078a, n. 45).
7. The effects of a hearing—on both children and
parents—would not be traumatic but would be
beneficial (108 1la-1082a, detailing benefits).
8. Any potential trauma due to the hearing
process can be avoided by waiver of the person’s
presence. Also, “any danger of trauma pales beside
the potential severity of the deprivation of liberty
— by a child needlessly institutionalized.”
( )
9. Institutional staff have a conflict of interest in
making decisions to commit (1083a-1084a).
The District Court entered judgment for the
plaintiffs on May 25, 1978, granting declaratory and
injunctive relief to assure that persons presently
deprived of liberty under the invalidated statutes and
persons who might be committed in the future receive
the benefit of minimal due process procedures in a
state-created forum. This appeal followed.
UE A ee .
23
SUMMARY OF ARGUMENT
1. Mental institutions are generally underfinanced,
understaffed and overcrowded. Commitment to sucha
residential facility necessarily entails a massive curtail-
ment of liberty as persons are placed in a “total
institution” in which every aspect of their lives is
regulated by impersonal authority.
A powerful long-term effect on the individual's life
reverberates long after release from the facility. Severe
social stigma, self-stigmatization, job and license
discrimination also resuit from the commitment to
mental institutions for the mentally ill and the retarded.
It is the fact of institutionalization, not the procedures
used, which stigmatizes.
2. Mental commitment is generally considered a
deprivation of liberty under the Fourteenth Amend-
ment and the states are required to provide substantial
procedures to protect persons from erroneous commit-
ments. O’Connor v. Donaldson, 422 U.S. 563 (1975);
Baxstrom v. Herold, 383 U.S. 197 (1966); Specht v.
Patterson, 386 U.S. 605 (1967). See also Chaloner v.
Sherman, 242 U.S. 455 (1917); Dexter v. Hall,82 U.S.9
(1872). The pervasive concern has been that no person
may be caused to suffer a loss of liberty—for whatever
reason—without stringent decision-making require-
ments designed to minimize the ever-present risk of
error and to assure proper disposition of the case.
3. The defendants, invoking the “family’s right of
privacy” and “the sanctity of parental responsibility,”
maintain that a young person’s constitutional right to
liberty is not implicated at all in mental institutionali-
24
zation under parental commitment laws. This conclu-
sion misconceives the applicable constitutional doc-
trine.
Two controlling principles emerge from the Court's
decisions regarding parents and children. Where the
state unreasonably intrudes into the family’s domain
and thereby jeopardizes the family’s function and
strength as the primary socialization mechanism, the
state’s intrusion will be struck down. See Meyer v.
Nebraska, 262 U.S. 390 (1923); Pierce v. Society of
Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406
U.S. 205 (1971). In precisely parallel fashion, where
parental decisions unreasonably jeopardize the young
person’s opportunities for growth into well-developed
individuals, governmental intrusions into the family
will be upheld. Prince v. Massachusetts, 32 U.S. 158
(1944); Wisconsin v. Yoder, supra.
The extent of control over juveniles by parents and
guardians is broad enough to provide appropriate
deference to the importance of the family but narrow
enough to protect the independent personal interests of
the most powerless of the family’s members.
4. In other cases where constitutional rights of
young persons have been at stake, but where family
interests were not implicated, this Court has recognized
minors’ liberty claims, although the extent of such
claims has been subject to possible limitation. E.g.,
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975);
Ingraham v. Wright, 430 U.S. 651 (1977); Carey v.
Population Services International, 431 U.S. 678
(1977).
One liberty interest of young persons which has
repeatedly been identified by this Court as implicated
25
by the Fourteenth Amendment is the right to be free
from physical confinement, for whatever purpose, in
an institution. See In re Gault, 387 U.S. 1 (1967); In re
Winship, 397 U.S. 358 (1970); McKeiver v. Pennsyl-
vania, 403 U.S. 528 (1971); Breed v. Jones, 421 U.S. 519
(1975). See also Giacco v. Pennsylvania, 382 U.S. 399
(1966). A constitutional liberty interest is discerned
even if the purpose of the confinement is “clinical”
treatment or “to save the child.” There is no suggestion
in any decision of this Court that parental endorse-
ment of a decision to separate the young person from
the home and confine him or her in an institution
nullifies the juvenile’s Fourteenth Amendment rights.
5. As the lower court’s unchallenged factual findings _
and the record in this litigation shout forth, applica-
tions for commitment of young persons are not the
expression of calm, conflict-free, rational, informed,
reliable parents and guardians. On the contrary, the
expert witnesses for all parties agreed that families
seeking commitment are characterized by severe stress,
disharmony and dislocation. The family structure is
weakened. Parents will seek to institutionalize children
for improper reasons. This stems from honest
mistakes, ignorance, lack of awareness of alternatives
to institutionalization, lack of community resources, or
sometimes from malice or ill will.
Parents are not particularly good observers of
children’s behavior and symptoms in the context of the
high feelings that run in these situations. They cannot
be objective reporters of the behavioral background of
the child; they often exaggerate and misinterpret the
actions of their children. When these family dynamics
are viewed in the framework of the alleged behavior
26
which precipitates the request for commitment,
conflicts between the concerns and interests of the
parents and the best interests of the child are apparent.
6. Stereotypes regarding the retarded and their
mental institutionalization are tragically hardened and
erroneous. A person’s level of retardation, for example,
does not predetermine his or her need for institutionaliza-
tion. Many factors are more important in determining
institutionalization of retarded persons, including
family disorganization, demographic characteristics,
parental attitudes toward childrearing and mental
retardation, availability of community resources, and
the professional philosophies of those consulted for
advice. Inappropriate and unneeded institutionaliza-
tion is often the unintended result. The only evidence
on the family situation of the retarded, the expert
testimony for the plaintiffs by the head of retardation
for the Commonwealth of Massachusetts, confirms the
trying situation faced by such families and the fact
(found by the lower court) that no identity of interests
may be presumed, no matter how well-motivated the
parents might be.
7. The legal test to be applied is found in Planned
Parenthood of Missouri v. Danforth, 428 U.S. 52
(1976), where the Court examined “whether there is
any significant state interest in conditioning an
abortion on the consent of a parent or person in loco
parentis that is not present in the case of an adult.” A
direct and persuasive response to Danforth is that the
constitutional interest in freedom from physical
confinement without due process admits of no excep-
tions applicable here and that no asserted state interest
ee eS eee eee
ae
EADS CE acne AMR nib Tie et he
27
in other juvenile cases has overcome this liberty, no
matter how rehabilitative or treatment-oriented the
institution of confinement has been.
8. Previous cases, however, have not involved a
parent or guardian acting to assure confinement. The
only interest asserted here by the state is parental
autonomy expressed by medically-advised deprivation
of a person’s liberty. Such an argument was expressly
rejected in Danforth where the “conflict” situation “has
already fractured the family structure.” As in Dan-
forth, any parental right to obtain mental health care
for a child is no more weighty than the liberty right of a
child proposed for institutionalization. The parental
interest cannot act as an absolute limitation on the
child’s right. Danforth, supra; Bellotti v. Baird, 428
U.S. 132 (1976). Under Danforth, a countervailing
State interest must be established by more than the
unsubstantiated declaration of its existence; .ere, the
record provides no support for any claim that “parental
autonomy” is preserved or protected by commitment
of young persons to institutions without due process
protections. Other possible rationales for differenti-
ating between the rights of young persons and adults
are neither asserted by the defendants nor present in
this case.
9. The critical question raised by Danforth is not
“when rights conflict; which are paramount?” but
“when presumed common interests in fact diverge, how
can each be accommodated and protected?” There is a
continuum of decisions made by parents and guardians
regarding their wards. At one end are constitutionally
trivial and intra-familial issues in which there is little, if
28
any, potential harm to the child. Along the continuum,
parental powers are met with limits as their interests
and desires diverge from those of young persons, in
whom the state has an interest. As the parents’ claims
threaten to risk or unduly interfere with the child's, the
divergence becomes so great that the parents’ assertion
of rights is not permitted to overshadow the social
necessity of protecting young persons’ independent
interests. When viewed in terms of its nature and
potential for harm, mental institutionalization—
whether the commitment is erroneous or not—is an
event near the end of the continuum at a point where
the “parental autonomy” claims are properly muted to
the extent necessary to protect the “liberty” claims of
the child who is being removed from the home and
placed in an institution.
10. The involvement of psychiatrists, physicians or
other professionals cannot act as a fail-safe in the
commitment process. The field of psychiatry is beset
with uncertainty of diagnosis and tentativeness of
judgment. In addition to the factual disputes which
crop up in every commitment, the very existence of
mental illness and the need for institutional care are
facts not amenable to purely medical termination.
Institutional psychiatrists have multiple conflicts of
interest in making commitment decisions. The situa-
tion is mirrored for mental retardation, although the
reasons for mistakes in identifying the retarded are
somewhat different (e.g., confusion with physical
characteristics, testing problems, incorrect develop-
mental speculations). Parents of the retarded receive
consultation- from physicians which is typically
29
uninformed, without reasonable basis, and inappro-
priately and excessively oriented toward institution-
alization. Professionals at retardation institutions and
in the community are unable to make conflict-free
referral recommendations or to sort out the inevitable
factual disputes.
11. What process is due? The lower court’s mandate
is extremely narrow and limited. With the exception of
notice of prolonged commitment and counsel or other
trained representative, all rights may be waived,
including presence at the hearings. It is expected that
hearings will not be required in every case; a large
number will be waived. The forum for any hearings
which are held would be an “impartial tribunal”
created by the state where the perspective and concerns
of the parents or guardians could be fully aired. Many
states already provide such hearings for young persons
facing commitment.
12. The lower court found asa fact that any hearings
would not be unduly traumatic for juveniles but would
be beneficial, to the juvenile and his or her parents. The
opportunity for hearings would result in agencies
performing more effectively, the avoidance of many
commitments, reduced use of institutionalization, and
provision of more appropriate care in particular cases.
13. The requisites of due process found by the lower
court to be appropriate are notice of prolonged
commitment; counsel or other trained representative
(for example, a guardian who would have the power to
retain counsel, if legal assistance was required); a
hearing before an impartial tribunal within a reason-
able time after commitment (a probable cause hearing
30
after three days and, if necessary, a full hearing after
two weeks); the right to be present; the right to confront
and cross-examine witnesses and to present evidence; a
clear and convincing standard of proof.
14. These procedures would significantly reduce the
risk of error. They would also assure protection of the
young person’s right to care in the least restrictive
alternative appropriate to the person’s needs. The state
has no significant interest in avoiding these procedures.
Any cost is outweighed by the private interests and risk
of error. Avoidance of institutional care and diversion
of some cases to community-based programs will result
in substantial cost savings to the state. The state has no
interest in the erroneous or unnecessary confinement of
any of its citizens, regardless of age.
15. The state statutes and regulations permitting
parents to volunteer their children into mental
institutions fail to protect the rights and interests of the
plaintiffs. Referral systems and evaluations are faulty
and provide a skimpy professionally unacceptable (and
legally unacceptable) basis for commitment. The
mentally retarded, who are limited in capacity to
understand technical legal forms and procedures, are
not assisted in any real way by the state’s regulations.
Young persons committed as mentally ill receive no
effective protections under the state’s present system.
16. “State action” is present in commitment of
young persons to state-licensed facilities which are
required to utilize and act in conformity with the
challenged statutes and regulations. This is so on two
alternative grounds:
31
a. The state has delegated to parents, guardians
and institutions a power not possessed by the state,
the power to deprive persons of liberty without
minima! due process procedural protections. This is
not a private commercial dispute and does not
involve mere regulation of private business activities.
b. A detailed examination of the legal history of
mental commitment in Pennsylvania demonstrates
beyond peradventure that, beginning with the
earliest colonial period of Pennsylvania history,
through the Revolution and the State’s first
Constitution, and continuing through the 19th
Century and into the 20th Century, mental commit-
ment has been a sovereign power strictly under the
control and perogative of the State. Although
procedures shifted and varied, any commitment to
any institution, whether “public” or “private,” was a
matter of exclusive and paramount state concern.
Mental commitment has never been simply a private
matter. Like education, elections, tax collection, fire
and police protection, commitment of citizens to
mental institutions in Pennsylvania has been a power
traditionally exclusively reserved to the State.
17. On the propriety of the plaintiff subclasses, the
defendants raise objections that were not raised at any
point in the litigation below. Defendants should not be
permitted to sit silent through a lawsuit, and give no
hint of opposition to proposed subclasses, and then to
claim error for the first time on appeal. In any event, on
their merits, the objections must be rejected. After
careful and reflective analysis, the lower court
determined that plaintiff subclasses including all ages
32
of juveniles with common legal and factual connection
with the state are proper. In addition, all persons
subjected to institutionalization’s dangers, whether for
a month or for long term care are properly members of
the same class where due process protections are held
to apply to the very deprivation of liberty itself; the
lower court balanced the length of commitment factor
in determining what process is due. There was no abuse
of discretion in certifying the plaintiff subclasses.
18. Nor is there any abuse of discretion in the
certification of a class of defendant institutional
directors where each is adequately represented by the
Attorney General of Pennsylvania and where each of
the 400 members of the class, as a practical matter and
by operation of state law, would be bound by the result,
and where none of the participating institutions
objected to going forward.
19. The District Court’s order that all young persons
committed without hearings or counsel or other
trained representative receive the benefit of the
minimal process discussed above was proper and
consistent with the mandate of Preiser v. Rodriguez,
411 U.S. 475 (1972), and Wolff v. Mc Donnell, 418 U.S.
539 (1973). The federal court did nothing to order or to
speed any inmate’s release. The court simply required
the state to hold state proceedings where a state
tribunal would make all individual determinations.
This approach has been endorsed by this Court.
Gerstein v. Pugh, 420 U.S. 103 (1975). See Gomez v.
Miller, 341 F.Supp. 323 (S.D.N.Y. 1972), aff'd sub
nom. Miller v. Gomez, 412 U.S. 914 (1973).
OL BS AO I Be le A, Be Oe eee
33
ARGUMENT
PRIOR TO INVOLUNTARY INDETER-
MINATE MENTAL INSTITUTIONALI-
ZATION UPON PARENTAL APPLICA-
TION, YOUNG PERSONS ARE EN-
TITLED TO SUBSTANTIAL PROCE-
DURAL PROTECTIONS.
A. Institutionalization Results in Severe Depri-
vation of Liberty, Social Stigma, Self-
Stigmatization and Discrimination.
Mental institutions are generally underfinanced,
understaffed and overcrowded.2° Commitment to such
20Hobbs, The Futures of Children 127-128 (1975). Provost
Hobbs describes the familiar physical and fiscal realities in his
report:
Most public institutions are grossly and chronically under-
financed (Kugel, 1969). During 1966 and 1967 the a diem
costs in United States institutions ranged from about $3 to
$12 per person (U.S. Department of Health, Education and
Welfare, 1968). In stark contrast, five of the largest United
States zoos were Laren 4 in a comparable period, an
a of ae for mae rge animals (Kugel, 1969, p. 3).
urther, in , general hospital care cost mo
per day (Butterfield, 1969, > 18). —
>
Overcrowding is commonplace. Many residential facilities
have as many as 25 to 50 percent more than they were
intended to serve. Buildings that are old and poorly
designed also create problems. For instance, lavoratory and
toilet facilities are often poorly maintained and may even be
nonfunctioning. Ancient facilities may make it difficult if
not impossible to prepare food in a sanitary fashion; and
climate control may be so inadequate as to leave buildings
either too hot or too cold (Kugel, 1969, p. 405; Blatt and
Kaplan, 1967). Equally inadequate are modern complexes
of steel, chrome, and glass, when human caring is absent.
Id.
ee ee
34
a residential facility necessarily entails a “massive
curtailment of liberty,” Humphrey v. Cady, 405 U.S.
504, 509 (1972), as persons are placed in a “total
institution” in which every aspect of their lives is
regulated by impersonal authority.?! The dangers and
negative effects of institutional treatment programs are
well-known.”? The process results in what one of the
21Goffman, Asylums (1961). As early as 1938, a federal
appellate court recognized the similarities between the depriva-
tions of liberty of people in mental institutions and those in
prisons. Barry v. Hall, 98 F.2d 222 (D.C. Cir. 1938). A detailed
comprison of the conditions in a psychiatric treatment center and
a state prison—demonstrating the restrictiveness of the mental
facility—is provided in “Brief of Donald McEwan, Pro Se” in
Katz, Goldstein & Dershowitz, Psychoanalysis, Psychiatry and
the Law 700-702 (1967). For discussion of the nature of mental
treatment in the United States, see Note, Developments in the
Law— Civil Commitment of the Mentally Ill, 87 Harv. L. Rev.
1190, 1316-1376 (1974); Deutsch, The Mentally Illin America (2d
ed. 1949); Grob, Mental Institutions in America: Social Policy to
1875 (1973); Rothman, The Discovery of the Asylum: Social
Order and Disorder in the New Republic (1971); Kittrie, The
Right to Be Different: Deviance and Enforced Therapy (1971);
Rosen, et al., The History of Mental Retardation: Collected
Papers (1976).
22Barton, Institutional Neurosis (2d ed. 1966); Belknap,
Human Problems of State Mental Hospitals (1956); Gralnick, et
al., “Mental Patients in Transition” in Greenblatt, ed., Mental
Patients in Transition (1961); Stanton and Schwartz, The Mental
Hospital (1954); Wing and Brown, /nstitutionalization and
Schizophrenia (1970); Vail, Dehumanization and the Institu-
tional Career (1966); Klaber, Retardates in Residence: A Study
of Institutions (Project RD-i816-P, Social and Rehabilitation
Service, HEW, State of Connecticut, University of Hartford).
See testimony of Dr. Ingall at 596a, Dr. Feiner at 474a-475a,
Commissioner Glenn at 985a-990a.
a ee ee ee ae
35
defendants’ own expert witnesses calls “an emotional
deficiency disease” (715a). The “institution extracts,
takes away liberties and opportunities in all areas once
a person is placed there.” Testimony of Commissioner
Glenn at 986a.
Most juveniles entering the institutional mental
health system have never received any psychiatric
treatment before, stay longer than adults,” and a large
proportion do not suffer from any major “illness.”4
Nevertheless, all are subjected to the process of
institutionalization which can “make children sick,”
according to Nicholas Hobbs in his report volume for
the HEW-sponsored Project on Classification of
Exceptional Children:
23Most juveniles admitted to mental hospitals (53% in 1969)
never before received psychiatric treatment; the figure for all age
admissions is only 38.7%. Dept. of Health, Education and
Welfare, NIMH, Statistical Note 90, Utilization of Psychiatric
Facilities by Persons Under 18 Years of Age, United States, 1971,
Table 9. Once in a private or public mental institution, juveniles
stay longer than adults. /d. at Table 8.
4In 1975, the leading primary diagnosis of juveniles admitted
to state and county mental institution was “transient situational
disorders and behavior disorders of childhood” which accounted
for 54.3% of all juvenile admissions. Dept. of Heatth, Education
and Welfare, NIMH, Statistical Note 138, Diagnostic Distribu-
tion of Admissions to Inpatient Services of State and County
Mental Hospitals, United States, 1975. Most of the nine
Haverford plaintiffs here have been given such diagnoses. These
relatively minor “transient situational disturbances” are those
that “occur in individuals without any apparent underlying
mental disorders and that represent an acute reaction to
overwhelming environmental stress.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders at 48 (2d ed. 1968).
36
Go to a big state mental hospital in almost any
state and ask to visit the children’s ward. If youare
allowed to visit, you will find people, children and
staff alike, caught up in a no-exii game. Patients
and staff play their roles, each defined by the other,
both prescribed by elaborate regulations and
procedures that serve one purpose: to maintain the
stability of the institution. Most of these institu-
tions are so large, so unwieldly, so antiquated in
design, so _ staffed, so burdened with the
miseries of man that everyone involved must
devote most of his energies to maintaining a steady-
state situation. The metaphor of illness rules.
Change in or deviation from role requirements
cannot be tolerated. Apathy goes unnoticed.
Precise adherence to role expectation is praised
and rewarded, while deviations and serious efforts
to change the system are punished. In such a
setting, hospitals can indeed make children sick.?5
The particular dangers of institutionalization for the
retarded include a high rate of mortality (generally
higher, especially for the young, than in the commu-
nity); an adverse effect on intelligence and an
abnormally high prevalence of personality disorders.”6
25Hobbs, supra note 20, at 130. Institutional care during early
childhood is especially to be avoided. There is strong evidence
that one institutional admission of longer than a week or
repeated admissions before the age of 5 are associated with
increased behavior disturbances and instability in adolescence.
Douglas, Early Hospital Admissions and Later Disturbances of
Behavior and Learning, 17 Dev. Med. Child Neurol. 456 (1975);
Quinton, Early Hospital Admissions and Later Disturbances of
Behavior: An Attempted Replication of Douglas’ Findings, 18
Dev. Med. Child Neurol. 447 (1976).
6Studies collected in Edgerton, et a/., “Mental Retardation
System,” in Hobbs, ed., /ssues in the Classification of Children,
Vol. II, 63-64 (1975).
a
37
Harmful stereotypical “institutional” behaviors (such
as biting and head banging) are learned by the retarded
who live in institutions.’
After the emergence of the first institutions for the
retarded in the United States 120 years ago in an
atmosphere of optimism, the facilities failed to fulfill
their expectations for cure or rehabilitation. By 1880,
the earlier prevention model was succeeded by a “pity
model” which supported the provision of custodial
care. By the turn of the century and with the develop-
ment of the eugenics movement,”* a societal image of
the retarded as a danger and a menace to society
became fixed.2? As one commentator explains the
effect today of this history:
... Many of our institutions, to this very day,
operate in the spirit of 1925 when inexpensive
segregation of the scarcely human retardate was
seen as the only feasible alternative to combat a
social menace. I am not proposing that this view is
still held; I am proposing that most institutions
function as if this view were still held.*°
27Testimony of Commissioner Glenn at 987a-988a.
28 See Buck v. Bell, 274 U.S. 200 (1927), upholding a statute
growing out of this movement.
2For analysis of this development, see Baumeister, The
American Residential Institution: Its History and Character in
Baumeister and Butterfield, eds., Residential Facilities for the
Mentally Retarded (1970); Kugel and Wolfensberger, eds.,
Changing Patterns in Residential Services for the Mentally
Retarded (1969); Halderman v. Pennhurst State School and
Hospital, 446 F.Supp. 1295 (E.D.Pa. 1977).
30Wolfensberger, The Origin and Nature of Our Institutional
Models, in Kugel and Wolfensberger, supra note 29, at 129
(emphasis in original).
38
Institutions for the retarded are known to subject
their inmates to regimented, impersonal and ware-
house-like conditions.2! For example, this is the way
one federal court d»icribes the daily routine in the
institution to which plaintiff George S. has been
committed for the past eight years:
These institutions are the most isolated and
restrictive settings in which to treat the retarded.
Pennhurst is almost totally impersonal. Its
residents have no privacy—they sleep in large,
overcrowded wards, spend their waking hours
together in large day rooms and eat in a large
group setting. They must conform to the schedule
of the institution which allows for no individual
flexibility. Thus, for example, all residents on Unit
7 go to bed between 8:00 and 8:30 p.m., are
awakened and taken to the toilet at 12:00-12:30
a.m. and return to sleep until 5:30 a.m. when they
are awakened for the day, which begins with being
31 See Halderman v. Pennhurst State School and Hospital, 446
F.Supp. 1295 (E.D. Pa. 1975). When institutionalized retarded
children experience adult contact, it is almost exclusively for
management, custodial or child-care purposes; only 4% of ward
attendants’ time is devoted to training and habilitation. Velt,
Interpersonal Interactions Between Institutionalized Retarded
Children and Their Attendants, 80 Am.J. Mental Defic. 535
(1976). One study notes that the practice of moving institu-
tionalized juveniles and staff from one unit to another can be
devastating; during a 3'4 year period, at least 99 different day
staff were on duty with the children being cared for by a total of
246 different adults. The children were moved at least twice and
some as many as 18 times. Tizard, The Role of Social Institutions
in the Causation, Prevention and Alleviation of Mental
Retardation, Haywood, Social-Cultural Aspects of Mental
Retardation (1970). See Klaber, supra note 22.
— a aii
39
toileted and then ang to wait for a 7:00 a.m.
breakfast.*?
The “deprivation of now inherent in institution-
alization” for young persons classified as mentally ill
and mentally retarded is accurately summarized by the
District Court:
One expert testified to the “derailment from the
usual course of one’s life, the dreary regimen even
in the most progressive hospitals, the extreme
deprivation and limits” which are the effects of
institutionalization. Institutions prevent persons
from being exposed to normal communit y
experiences and prevent individual growth. Wit
respect to mentally retarded persons, these
conditions may be rendered even more acute by
the person’s inability to protect himself against the
dehumanizing effects of institutionalization. Fi-
nally, these effects appear to be the same regardless
of whether the institution is state-operated or
privately-operated; the crucial variable is size.>?
The “powerful long-term effect on the individual's
life” (990a) of institutionalization reverberates long
after release from the facility.
32 Halderman v. Pennhurst State School and Hospital, supra
note 31, 446 F.Supp. at 1303 (citations omitted). Many other
courts have found similar regimented and depersonalized
conditions in institutions for the retarded across the country.
E.g., New York State Association for Retarded Children v.
Rockefeller, 357 F.Supp. 752 (E.D.N.Y. 1973), modified, No.
72-C-356/357 (E.D.N.Y., May 23, 1973), 393 F.Supp. 715
(E.D.N.Y. 1975) (approving consent order); Horacek v. Exon,
354 F.Supp. 71 (D. Neb. 1973); Wyatt v. Stickney, 325 F.Supp.
781 (M.D.Ala. 1971), 334 F.Supp. 1341 (M.D. Ala. 1971), 344
F.Supp. 373 and 387 (M.D. Ala. 1972), aff'd sub nom. Wyatt v.
Aderholt, 503 F.2d 1305 (Sth Cir. 1974).
3Opinion at 1070a.
40
Severe social stigma, self-stigmatization, job and
license discrimination also result from the experience
of commitment to mental institutions for the mentally
ill and the retarded.» It is the fact of institutionaliza-
tion, not the procedures used, which stigmatizes.** As
Opinions at 795a, 1067a, 1077a-1078a. On stigma generally,
see Goffman, Stigma: Notes on the Management of Spoiled
Identity (1963). Regarding stigma and the mentally ill, see, e.g.,
Testimony of Dr. Kandler at 574a-575a, Dr. Messinger at 622a,
Dr. Feiner at 475a, Dr. Ingall at 596a and Dr. Miller at 705a; Jn re
Ballay, 482 F.2d 648, 668 (D.C. Cir. 1973); Lessard v. Schmidt,
349 F.Supp. 1078 (E.D. Wis. 1972), vacated and remanded, 414
U.S. 473 (1974), on remand, 379 F.Supp. 1376 (E.D. Wis. 1974),
vacated and remanded, 421 U.S. 957 (1975), on remand, 413
F.Supp. 1318 (E.D.Wis. 1976); Braginsky, et al., Methods of
Madness: The Mental Hospital as a Last Resort (1969). On the
mentally retarded and stigma, see Pennsylvania Association for
Retarded Children v. Commonwealth of Pennsylvania, 343
F.Supp. 279, 293-295 (E.D.Pa. 1972); Edgerton, The Cloak of
Competence: Stigma in the Lives of the Mentally Retarded
(1967); Braginsky & Braginsky, Hansels and Gretels: Studies of
Children in Institutions for the “Mentally Retarded” (1971);
Severance & Gasstrom, Effects of the Label“ Mentally Retarded”
on Causal Explanations for Success and Failure Outcomes, 81
Am. J. of Mental Def. 547 (1977). In one study of school children
in the community, school teachers were found to have low
expectancies of students labeled retarded; the teachers maintained
these expectancies even when confronted with normal behavior and,
in fact, misinterpreted actual behavior in response to their bias.
Foster et al, Expectancy and Halo Effects os a Result of
Artificially Induced Teachers Bias, 1 Contemporary Educational
Psychology 37 (1976).
3“ Unfortunately, there is a stigma being attached to beingina
hospital, which would be another reason why all care ought to be
taken before this type of drastic step be taken. I never heard the
fact that a judge or attorney being involved in a proceeding
increases that stigma.” Testimony of Dr. Kandler at 574a-575a.
(continued)
4)
the lower court found, this “stigma is imposed both
outwardly, in that juveniles who have been in
institutions encounter substantial obstacles in the
community, and inwardly in that the self-image of the
juvenile is almost severely damaged.”26
(footnote continued from preceding page)
Non-institutional mental health care is not viewed in the same
highly negative way as is institutional care:
The lay public seems to adhere to a single operational
definition of the mental patient. To the average man, a
person becomes a mental patient only when he enters a
psychiatric hospital.
Rabkin, Public Attitudes Toward Mental Illness: A Review of
the Literature, 10 Schizophrenia Bull. 9 (1964). This deprecating
label, which applies for an indefinite period after discharge from
the institution, is not in general used for psychiatric patients seen
only in private consultation or clinics. /d.
Opinion at 1067a (notes omitted). The public fears, distrusts,
dislikes and excludes those persons labeled “mental patients.”
Rabkin, supra note 35. The prejudice against mental illness
results not simply from an ignorant or biased public but, in part,
from the activities of psychiatrists. Schwartz & Schwartz,
Reducing the Stigma of Mental Iliness, 38 Diseases of the
Nervous System 101 (1977). Numerous studies document the
self-stigmatization which lowers self-esteem and encourages
aberrant behavior in both mentally ill and mentally retarded
institutionalized persons. E.g., Lindsey, Patient Inquiry Into
Mental Hospitalization: A Quantitative Analysis, 10 Ado-
lescence 337 (1975); Bouliew, Do Institutions Maintain Retarded
Behavior, 9 Mental Retardation 36 (1971). Commissioner Glenn
testified that, with regard to those persons committed as
retarded, “the stigma really hurts the person’s later integration
into the community. * * * The discrimination that is placed on
these people is quite traumatic.” (991a). See also authorities cited
supra at note 34. eer yes
42
B. Liberty Interests Under the Fourteenth
Amendment Are Implicated by the Commit-
ment of Young Persons to Mental Institutions.
Mental commitment is generally considered a
deprivation of liberty under the Fourteenth Amend-
ment and the states are required to provide substantial
procedures to protect persons from erroneous commit-
ment to mental institutions:
There can be no doubt that involuntary commit-
ment to a mental hospital, like involuntary
confinement of an individual for any reason, is a
deprivation of liberty which the state cannot
accomplish without due process of law. Specht v.
Patterson, 386 U.S., at 608, 18 L.Ed.2d 527, 87
S.Ct. 1428 (1967). Commitment must be justified
on the basis of a legitimate state interest, and the
reasons for committing a particular individual
must be established in an appropriate proceeding.
O’Connor v. Donaldson, 422 U.S. 563, 580 (1975)
(Chief Justice Burger, concurring). This Court has
consistently upheld claims by inmates of mental
institutions to hearing and other procedures protec-
tive of their constitutional rights. Baxstrom v. Herold,
383 U.S. 197 (1966); Specht v. Patterson, 386 U.S. 605
(1967); Jackson v. Indiana, 406 U.S. 715 (1972);
Humphrey v. Cady, 405 U.S. 504 (1972); McNeil v.
Director, Patuxent Institution, 407 U.S. 245 (1972).%”
37The lower federal courts have uniformly held that due
process mandates procedures similar or identical to those
required by the District Court here. E.g., Lessard v. Schmidt,
supra note 34; Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.
1974); Bell v. Wayne County, 386 F.Supp. 1085 (E.D. Mich.
(continued)
43
The Court’s deep concern that due process be
afforded to the mentally disabled is by no means newly
conceived. Sixty years ago, in Chaloner v. Sherman,
242 U.S. 455 (1917), a challenge was made to state
mental incompetency procedures. Speaking for a
unanimous court, Justice Brandeis declared:
As the plaintiff had notice and opportunity to be
heard at each stage of the proceedings, the
essential elements of due process of law were fully
— and the court had jurisdiction to enter that
order.
242 U.S. at 455. See also Dexter v. Hall, 82 U.S. 9, 25
(1872) (“...a lunatic needs more protection than a
minor.” “Both such classes of persons are regarded as
under the protection of the law.”).
In an attack on Minnesota mental commitment
procedures, this Court upheld a statute which provided
for a hearing, counsel, confrontation, a record and the
right to appeal. Minnesota ex rel. Pearson v. Probate
Court of Ramsey County, 309 U.S. 270, 276-277 (1940)
(“We fully recognize the danger of a deprivation of due
process in proceedings dealing with persons charged
(footnote continued from preceding page)
1974); Dixon v. Attorney General of the Commonwealth of
Pennsylvania, 325 F.Supp. 966 (M.D. Pa. 1971); Heryford v.
Parker, 396 F.2d 393 (10th Cir. 1968); In re Ballay, supra note 34;
In re Basso, 299 F.2d 933 (D.C. Cir. 1962); In re Barnard, 455
F.2d 1370 (D.C. Cir. 1971); Sarzen v. Gaughan, 489 F.2d 1076
(Ist Cir. 1973); Kendall v. True, 391 F.Supp. 413 (W.D. Ky.
1975); Barry v. Hall, supra note 21; Doremus v. Farrell, 407
F.Supp. 509 (D. Neb. 1976); Suzuki v. Quisenberry, 411 F.Supp.
1113 (D. Hawaii 1976); Suzuki v. Alba, 438 F.Supp. 1106 (D.
Hawaii 1977).
44
with insanity or, as here, with a psychopathic
personality as defined in the statute.”).**
In Specht v. Patterson, 386 U.S. 605 (1967), the
Court rejected the notion that individual rights can be
bypassed by labeling a procedure “civil” rather than
“criminal.”3? Discussing mental commitment pro-
ceedings under the Colorado Sex Offender Act, the
Court held, “These commitment proceedings whether
denominated civil or criminal are subject both to the
Equal Protection Clause of the Fourteenth Amend-
ment as we held in Baxstrom v. Herold, 383 U.S. 107,
86 S.Ct. 750, 15 L.Ed.2d 620, and to the Due Process
Clause.” Specht, 386 U.S. at 608.
3% See Logan v. Arafeh, 356 F.Supp. 1265 (D. Conn. 1972),
aff'd mem. sub nom. Briggs v. Arafeh, 411 U.S. 911(1973), where
the district court upheld a statute noting that a “judicial decision
after receiving evidence from a general physician and a
psychiatrist in an adversary hearing is fully adequate to safeguard
against involuntary commitment through mistake or abuse.” 346
F.Supp. at 1270. Logan permitted a delay in hearings for people
certified as “dangerous;” the Pennsylvania statutes here require
only a finding of “in need of care or observation,” 1966 Act, or “in
need of treatment.” 1976 Act.
The irrelevance of civil-criminal labels was the basis for the
decision in Giacco v. Pennsylvania, 382 U.S. 399 (1966), where an
acquitted criminal defendant challenged a state law permitting a
jury to assess costs against him. Pennsylvania courts charac-
terized the statute as “of a civil character.” Noting that it
“provides the State with a procedure for depriving an acquitted
defendant of his liberty and his property,” the Court held that
Fourteenth Amendment “protection is not to be avoided by the
simple label a State chooses to fasten upon its conduct or
statute.” 382 U.S. at 402.
“The due process required in mental commitments today is
not unlike that described by Blackstone. Before a person could be
(cortinued)
45
The pervasive concern has been that no person may
be caused to suffer a loss of liberty—for whatever
reason—without stringent decision-making require-
ments designed to minimize the ever-present risk of
error and to assure proper disposition of the case.*!
The defendants, invoking the “family’s right of
privacy” and “the sanctity of parental responsibility,”4?
maintain that a young person’s constitutional right to
(footnote continued from preceding page)
declared retarded (“an idiot”), a writ de idiota inquirendo would
be filed and “tried by a jury of twelve men;” a declaration that one
was mentally ill (a “lunatic”) did not occur until after the lord
chancellor, “upon petition or information, grants a commission
in the nature of the writ de idiota inquirendo, to inquire into the
party’s state of mind.” Blackstone, Commentaries on the Laws of
England 305 (Wendell, ed., 1852). In Blackstone’s day, “The
legislature, to prevent all abuses incident to such private custody,
hath thought proper to interpose its authority, by statute
[citation omitted] for regulating private mad-houses.” Jd. As
discussed more fully below, infra at §11.B., from its earliest
Constitution and laws until recently, Pennsylvania required
judicial proceedings for mental commitments of all persons,
regardless of age, to mental institutions, whether publicly owned
or not.
‘'Discussing mental commitments, Wigmore declares, “In
such proceedings, nothing can excuse the judge from personally
hearing and examining the party to be committed” (emphasis in
original) because of the extreme risk of an improper
commitment:
No greater cruelty can be committed in the name of the law.
And any statute which makes such a result possible, by
refusing to let a sane person appear before the judge and plead
his own case ana hear the witnesses against him, is a thor-
oughly bad statute.
5 Wigmore, Evidence §1400 (3d ed., 1940) (footnote omitted).
“Brief for Appellants at 28.
46
liberty is not implicated at all in mental institutionali-
zation. Finding no support in any previous decision of
this Court, this conclusion misconceives constitutional
doctrine which full recognizes the applicability of the
central meaning of liberty—freedom from physical
confinement—to young persons, while setting variable
limits on other asserted liberties of minors under the
Fourteenth Amendment.
The “power of the state to control the conduct of
children reaches beyond the scope of its authority over
adults.” Prince v. Massachusetts, 321 U.S. 158, 170
(1944). For example, young persons may be required to
receive a basic education in school, Wisconsin v.
Yoder, 406 U.S. 205, 213 (1972), and may be limited in
their access to objectionable material. Ginsberg v. New
York, 390 U.S. 629 (1968). In addition, parents and
guardians have the right to direct the upbringing of
their children in their early and formative years. E.g.,
Pierce v. Society of Sisters, 268 U.S. 510 (1925).
Two controlling principles emerge from the Court’s
decisions regarding parents and children. Where the
state unreasonably intrudes into the family’s domain
and thereby jeopardizes the family’s function and
strength as the primary socialization mechanism, the
state’s intrusion will be struck down. See Meyer v.
Nebraska, 262 U.S. 390 (1923); Pierce v. Society of
Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406
U.S. 205 (1971). In precisely parallel fashion, where
parental decisions unreasonably jeopardize the young
person’s “opportunities for growth into free and inde-
pendent well-developed men and citizens,” govern-
mental intrusions into the family will be upheld. Prince
v. Massachusetts, 321 U.S. 158, 165 (1944). In Prince,
47
the Court upheld restrictions on the rights of guardians
and supported certain regulation of family interests,
explaining:
But the family itself is not beyond regulation in the
_— interest, as against a claim of religious
berty. [citations omitted] And neither rights of
religion nor rights of parenthood are beyond
limitation. Acting to guard the general interest in
youth’s well-being, the state as parens patriae may
restrict the parent’s control by requiring school
attendance, regulating or prohibiting the child’s
labor and in many other ways.
Id. at 166 (notes omitted). And more recently, in
Wisconsin v. Yoder, 406 U.S. 205 (1972), limitations on
parental powers continued to receive approval; such
regulation is proper “if it appears that parental
decisions will jeopardize the health or safety of the
child, or have a potential for significant social
burdens.” /d. at 234.
The extent of control over juveniles by parents and
guardians is broad enough to provide appropriate
deference to the “importance of the family,” Stanley v.
Illinois, 405 U.S. 645, 651 (1972), but narrow enough to
protect the independent personal interests of the most
powerless of the family’s members.*? The presence of
“family interests” in a case does not efface the interests
of the child as an individual.
Other courts have uniformly agreed that, in the
parent-child context, the law as parens patriae must
“Dr. Feiner testified that “...the child has some intrinsic
vulnerability based upon the fact the child is dependent to begin
with, the child is more controllable in certain ways, the child is
also often a newcomer to the setting, the last to be present in this
little system . . .” (472a).
, 48
protect the welfare of children, an interest to which that
of parents must yield.“* The key consideration in all
these cases is that society has an interest—independent
of parents—in assuring the welfare of children.
“The issue arises most often in custody cases. E.g., Holtsclaw
v. Mercer, 145 F.2d 388 (D.C. Cir. 1944); Langan v. Langan, 150
F.2d 979 (D.C. Cir. 1945). See In re Stuart, 114 F.2d 825 (D.C.
Cir. 1940) (right of parents to control upbringing of children not
absolute); Newton v. Burgin, 363 F.Supp. 782(W.D.N.Ca. 1973)
(Three-Judge Court), affd, 414 U.S. 1139 (1974) (parental
constitutional right to control children can be limited by statute).
Among the many situations in which parental “rights” and
“powers” have been held properly restricted are juveniles
curfews, Bykofsky v. Borough of Middletown, 401 F.Supp. 1242
(M.D. Pa..1975), cert. den., __ U.S. __ ; drinking age laws, Repub-
lican College Council of Pennsylvania v. Winner, 357 F.Supp. 739
(E.D.Pa. 1973); sex education, Cornwell v. State Board of
Education, 314 F.Supp. 340 (D. Md. 1969), aff'd, 428 F.2d 471
(8th Cir. 1970), cert. den., 400 U.S. 942 (1970); blood
transfusions, People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104
N.E.2d 769 (1952), cert. den., 344 U.S. 824 (1952); corporal
punishment, Ware v. Estes, 328 F.Supp. 657 (N.D.Tex. 1971);
visitation, Comm. ex rel. Heston v. Heston, 98 A.2d 477, 173
Pa.Super. 260 (1953); approval of personal injury settlements,
Rafferty v. Rainey, 292 F.Supp. 152(E.D. Tenn. 1968); abortion,
In re Smith, 295 A.2d 238, 16 Md.App. 209 (1972) (mother
cannot compel daughter to submit to abortion); organ
transplants, Hart v. Brown, 289 A.2d 385, 29 Conn.Sup. 368
(1972); sterilization, Frazier v. Levi, 440 S.W.2d 393, 394 (Civil
App. Tex. 1969); and monetary matters. Ellis v. Massenberg, 126
N.C. 129, 35 S.E. 40 (1900) (action to set aside deed); White v.
Osborne, 251 N.C. 56, 110 S.E.2d 449 (1959); Babcock v. Fisk,
327 Mich. 72 (1950) (control of publicly raised funds).
The contrary assertion of defendants that, except in life-or-
death situations, parental wishes always prevail over asserted
interests of children, is totally unsupported in law or reason and
must be rejected.
49
Where constitutional rights are at stake, and family
interests are not implicated, this Court has recognized
claims by young persons asserting liberties in various
substantive and procedural realms. E.g., Goss v.
Lopez, 419 U.S. 565 (1975) (suspension from public
school); Tinker v. Des Moines Independent Com-
munity School District, 393 U.S. 503, 506-507 (1969)
(First Amendment right to political expression);
Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-
214 (1975) (First Amendment interest in flow of
communicative material); Ingraham v. Wright, 430
U.S. 651, 672-674 (1977) (Due Process right to be free
from unjustified intrusions on personal security);
Carey v. Population Services International, 431 U.S.
678 (1977) (access to contraceptives). In these cases,
while the extent of minors’ liberty interests was held
subject to possible limitation, the existence and nature
of those liberty interests, similar to those of adults, was
nevertheless recognized.
One liberty interest of young persons which has
repeatedly been identified by this Court as implicated
by the Fourteenth Amendment is the right to be free
from physical confinement. See Haley v. Ohio, 332
U.S. 596, 601 (1948); Gallegos v. Colorado, 370 U.S.
49, 54 (1952); Kent v. United States, 383 U.S. 541
(1966); In re Gault, 387 U.S. 1 (1967); In re Winship,
397 U.S. 358 (1970); McKeiver v. Pennsylvania, 403
U.S. 528 (1971); Breed v. Jones, 421 U.S. 519 (1975).
These cases do not admit of any question as to the
extent of the juvenile’s liberty interest in not being
confined, for whatever purpose, in an institution.
4SThe students’ ages in Tinker were 8, 11, 13, 15 and 16. 393
U.S. at 516.
50
There is no suggestion in these decisions that parental
endorsement of a decision to separate the young person
from the home and to confine him or her in an
institution somehow nullifies the minor’s Fourteenth
Amendment interests.*
The Haley-Gault-Breed line of cases are emphatic
that a constitutional liberty is discerned even if the
purpose of the confinement is “clinical”*’ treatment or
“to save the child:”48
Regardless of the purposes for which the incar-
ceration is imposed, the fact remains that it is
incarceration. The rehabilitative goals of the
system are admirable, but they do not change the
drastic nature of the action taken.
Breed v. Jones, supra, 421 U.S. at 530, n. 12.4
46In Ginsberg v. New York, 390 U.S. 629 (1968), the Court held
that the Constitution supports the parental “claim to authority in
their own household” to direct the rearing of children. Jd. at 639
(emphasis added). This suggests that parental authority may not
be absolute when the young person is excluded from the
household.
47JIn re Gault, 387 U.S. 1, 16 (1967).
In re Winship, 397 U.S. 358, 365-366 (1970).
494 case strikingly on pointis Heryford v. Parker, 396 F.2d 393
(10th Cir. 1968), where a nine year old child was committed to a
training school for the feeble-minded and epileptic:
Bui, like Gault, and of utmost importance, we have a
situation in which the liberty of an individual is at stake, and
we think the reasoning in Gault emphatically applies. It
matters not whether the proceedings be labelled “civil” or
“criminal” or whether the subject matter be mental
instability or juvenile delinquency. It is the likelihood of
involuntary incarceration—whether for punishment as an
adult for a crime, rehabilitation as a juvenile for
delinquency, or treatment and training for a feeble-minded
(continued)
tp tes -—— -—
51
It would have made no constitutional difference if
Gerald Gault’s mother had favored his confinement for
making an obscene telephone call or if Gary Steven
Jones’ mother had preferred that he be tried as an adult
for robbery.
The deprivation of liberty and other harms which
flow from commitment are accompanied by the serious
and irreparable stigma described above. Such injury to
standing, reputation and one’s future functioning as a
citizen, coupled with the deprivation of physical
freedom, implicates the young persons’ liberty interests
under the Fourteenth Amendment. See Wisconsin v.
Constantineau, 400 U.S. 433 (1971); Paul v. Davis, 424
U.S. 693 (1976).%°
Without question, the Fourteenth Amendment
liberty interests of young persons are affected when
(footnote continued from preceding page)
or mental incompetent—which commands of the consti-
tutional safeguards of due process.
396 F.2d at 396. See Saville v. Treadway, 404 F.Supp. 430
(M.D.Tenn. 1974); Kidd v. Schmidt, 399 F.Supp. 301 (E.D. Wis.
1975).
0 See Note, Developments in the Law, supra note 21, 87 Harv.
L. Rev. at 1198-1201. In Gary W. v. Louisiana, the court
concluded:
Involuntary institutional confinement of any person, adult
or child, entails a “massive curtailment of liberty,”
Hum hrey v. Cady, 1972, 405 U.S. 504, 509. Such institu-
tionalization stigmatizes those confined and may at times
exceed even criminal incarceration in its destructive impact
on an individual's personal freedom.
437 F.Supp. 1209, 1216(E.D. La. 1976) (commitment of children
to mental institutions).
52
they are indeterminately confined in mental institu-
tions.>!
C. The Constitutional Rights of Young Persons
in the Mental Institutionalization Process are
not Overcome by Parental Application for
Commitment.
The Facts Regarding Families Seeking
Commitment of “Mentally Ill” Minors
As the lower court’s unchallenged factual findings*?
and the record in this litigation shout forth, applica-
tions for commitment of young persons to mental
institutions are not the expression of calm, rational,
reliable, informed conflict-free parents and guardians.
On the contrary, the expert witnesses for all parties
$1 This conclusion is reached in a persuasive recent analysis of
the question. Teitelbaum & Ellis, The Liberty Interest of
Children: Due Process Rights and Their Application, 12 Family
Law Quarterly 153 (Fall, 1978). (mae
Defendants raise the spectre of application of the decision in
this case to provision of services in the community in non-
institutional home-like settings. Brief for Appellants at 34, n. 17.
The complaint, the lower court’s opinions, findings and order,
however, deal only with institution-based residential care as
distinguished from community-based care. Plaintiffs make no
claim regarding non-institutional care in this case.
S2Opinion at 1060a-1070a. The defendants do not challenge
any factual findings on appeal as clearly erroneous. See Fed. R.
Civ. Pro. 52(a); United States v. United States Gypsum Co., 333
U.S. 364, 394-395 (1948) (stating rule); Graver Tank & Mfg. Co.
v. Linde Air Products Co., 336 U.S. 271, 274-275 (1949)
(application of “clearly erroneous” test to findings based largely
on expert testimony).
$3
agreed that families seekir z commitment of allegedly
handicapped children are characterized by severe
stress, disharmony and dislocation.*} The problems of
children are a function of intrafamilial problems and
exist in a context of a weakened family structure with
conflict overtly expressed.*4 The juvenile behavior
which precipitates institutionalization may be pro-
voked by the parents; there are also many cases where
the child may be driven to such behavior by the
conflicts at home.°5
53 See testimony of Dr. Kandler at 543a, 553a-554a, 570a-57 la;
Dr. Ingall at 588a-590a, 601a; Dr. Messinger at 616a-619a; Dr.
Tashjian at 65la-652a, 656a-657a; Dr. Masterson at 727a-728a,
733a-734a. Eg., Alanen, The Family in the Pathogenesis of
Schizophrenia and Neurotic Disorders, 24 Acta Psychiatrica et
Neurologica Scandinavica, Suppl. 189 (1966); Lidz, ef al.,
Schizophrenia and the Family (1966); Lidz, et al., The Intra-
familial Environment of Schizophrenic Patients. Il. Marital
Schism and Marital Skew, 114 Amer. J. of Psychiatry 281 (1957).
See generally, Fleck, Some Basic Aspects of Family Pathology,
in Wolman, ed., Manual of Child Psychopathology 189 (1972).
‘4See testimony of Dr. Ingall at 588a, 610a; Dr. Messinger at
616a-619a; Dr. Masterson at 733a-734a; Dr. Tashjian at 668a-
669a; Dr. Feiner at 467a-469a, 47 la-472a, 501a-502a; Wohiman,
Family Dynamics and Schizophrenia, 6 J. of Healthand Human
Behavior 147 (1965); Weeks & Mack, The Child, in Nicholi, ed.,
The Harvard Guide to Modern Psychiatry (1978).
5SSee testimony of Dr. Masterson at 733a; Dr. Feiner at 468a.
One court which noted the possibility that a “breakdown in
parental control” of a child could result from failings in the
parent rather than in the minor, required inquiry into “intra-
family parent-child conflict.” Jn re Henry G., 28 C.A.2d 276, 284-
285, 104 C.R. 585 (1972), describes the issue in this way:
The Fourth Commandment is still an integral part of the
beliefs of our society. It is one thing, however, to say that a
teen-age minor has struck the parent—it is another thing if
that striking is done in self-defense and in response to
traumatic situations initiated by the parent.
54
Parents will often seek to institutionalize children for
improper reasons. This stems from honest mistakes,
ignorance, lack of awareness of alternatives to
institutionalization, lack of community resources or
sometimes from malice or ill will.5* In a significant
number of cases, the parental purpose of bringing a
child to treatment “has been to accuse him, to punish
him, to separate him from the home. The motivation is
not always good.”*’
Experts for both plaintiffs and defendants were in
agreement that parents are not particularly good
observers of children’s behavior and symptoms and,
especially with the high feelings that run in these
situations, parents are not reliable sources of factual
information about the child and his or her behavior.**
Parents who bring their child to professionals seeking
care “can’t be objective reporters” of the behavioral
background of the child.5? Parents often exaggerate
and misinterpret the actions of their children and may
often react antagonistically to their children, in these
cases.
- S6See testimony of Dr. Kandler at 543a, 553a-554a; Dr. Miller
at 685a.
‘Testimony of Dr. Ingall at 60la.
58 See testimony of Dr. Masterson at 733a; Dr. Kandler at 543a;
Dr. Ingall at 592a, 60la; Dr. Sugar at 40la.
Testimony of Dr. Feiner at 478a. See testimony of Dr.
Messinger at 623a-624a.
Testimony of Dr. Sugar at 404a-408a. Young persons are
often committed not to resolve problems but to avoid them:
From the point of view of the family, the primary function
of scapegoating is that it permits the family to maintain its
solidarity. In all the disturbed families, there were very
(continued)
55
The roster of Haverford State Hospital plaintiffs
committed under the challenged statute is a complete
one as of the time suit was filed; no selection, random
or otherwise, was made (945a). Every one of these
young persons comes from a disrupted, chaotic or
conflicted home. For example, Kevin S. was physically
abused by his schizophrenic mother who had lied to
obtain her own admission to a mental hospital to give
birth to him. Richard S.’ mother did not have him
home until he was two and he stayed with her only two
years. James Paul M. lived with just his father, his
mother having died not long before his commitment.
Edward B.’s parents admitted tricking him into the
hospital. Richard C.’s father had a drinking problem.
William B’s parents separated during his infancy; he
was committed after he began living with his father,
stepmother and stepbrothers. According to hospital
records, his life with family members subjected him to
extreme inconsistency, disorganization and lack of
structure. Similarly, Francis B. comes from a disor-
ganized family which rejected him (the records refer to
“the almost total rejection of Frankie by everyone in his
(footnote continued from preceding page)
severe strains which continuously threatened to disrupt the
family. . . . By focusing on one particular child, the families
were able to encapsulate problems and anxieties which
could potentially disrupt various family processes. There
see to be an added solidarity between the parents who
stood united against the problem child. The fact that it is a
child who is disturbed permits the parents to continue to
perform the tasks necessary for household maintenance.
Vogel & Bell, The Emotionally Disturbed Child as the Family
Scapegoat, in A Modern Introduction to the Family 125 (1968).
See also, Laing & Esterson, Sanity, Madness and the Family
(1964).
56
family”). There is a question of physical abuse in his
case; this plaintiff “could no[t] do right in parents’
eyes.”
Maria L.’s parents were saved from divorce only by
the birth of a new child. Her father drinks and won’t
assume any responsibility for the four children in the
family. Her mother, on the brink of mental breaddown,
several times tried to choke Maria.Thomas W.’s mother
and stepfather, involved in an unstable marriage, were
arrested after a severe beating of Thomas which
resulted in his hospitalization. Social service agencies
have cared for him since.
When these family dynamics are viewed in the
context of the alleged behaviors which precipitate the
request for commitment, “conflicts between the
concerns and interests of the parents, and the best
interests of the child frequently arise. . . .”°!
The Facts Regarding Families Seeking
Commitment of “Retarded” Minors
Stereotypes regarding the retarded and their mental
institutionalization are tragically hardened and erro-
neous. A person’s level of retardation does not
predetermine his or her need for institutionalization.
61Opinion at 1068a. See authorities cited supra at notes 53, 54
and 60. In a recent study of 587 inpatient psychiatric admissions
of children over a five year period, it was found that low
functioning psychotic children are admitted to psychiatric
hospitals not because of a change in the child’s behavior but
because of the particular stress on the family. Hagamen, Family
Support Systems: Their Effect on Long-Term Psychiatric
Hospitalization in Children, 16 J. Amer. Acad. Child Psychiatry
53 (1977).
62Testimony of Commissioner Glenn at 997a.
57
While degree of intellectual and physical impairment
is a factor in determining institutionaiization of
retarded individuals, it clearly does not stand alone nor
is it necessarily the most important. Other factors are
the degree of family disorganization, demographic
characteristics, parental attitudes toward childrearing
and mental retardation, availability of community
resources, and the professional philosophies of those
consulted for advice.®? “Professional philosophies
influence decisions because patient oriented clinicians
are more likely to give first priority to factors they
consider advantageous to the child, whereas family
oriented clinicians are more likely to base their recom-
mendations on those which they assume to be best for
the family.”
Parents of retarded persons often resort to seeking
institutionalization as a means of securing relief from
severe physical and emotional strains and because of a
lack of finances and adequate community resources:®
However, if these parents are “given honest
information about residential and community
alternatives and time to reflect,” most of them
SEg., Eyman, et al., Factors Determining Residential
Placement of Mentally Retarded Children, 76 Amer. J. of
Mental Deficiency 693 (1966); Gralicker, et al., A Study of
Factors Influencing Placement of Retarded Children in a State
Residential Institution, 69 Amer. J. of Mental Deficiency 553
(1965).
**Eyman, op. cit. supra note 63, at 697.
*5 See, e.g., Justice, et al., Problems Reported by Parents of
Mentally Retarded Children—Who Helps?, 75 Amer. J. of
Mental Deficiency 685 (1971). For a sensitive discussion of what
parents face, see testimony of Glenn at 100la-1005a. See also
Teitelbaum and Ellis, supra note 51.
58
“come to realize that the placement in most
institutions means placing a lid on the child’s
potential by consigning him to custodial care—
sometimes humane but often inhumane by
— standards. Most good residential schools
(offering education and training as well as care) are
extremely expensive. Most state institutions are
still little more than warehouses which ‘store’
people.”
Inappropriate and unneeded institutionalization is
often the unintended result.
The three named plaintiffs committed as retarded
include two who are only moderately retarded. George
S., abandoned by his parents, was institutionalized
after a foster mother became ill and a second foster
home became too crowded. Gina S., was placed out of
the family home when her parents divorced and, three
years later, was taken by her mother directly from the
county infants’ home to the mental institution. Both
parents of Nancy Louise D. were alcoholic and
mentally retarded; the county welfare department.
placed her first in foster care and then into the
institution.
The only evidence on these matters is the expert
testimony of Linda Glenn, Assistant Commissioner for
Mental Retardation, Department of Mental Health,
Commonwealth of Massachusetts (972a-1049a). Her
testimony, unchallenged by the defendants, confirms
the trying situation faced by families of the retarded
and those classified as retarded. The District Court was
surely correct in these factual findings and conclusions:
Hobbs, The Futures of Children 142 (1975) (citation
omitted).
*’Testimony of Commissioner Glenn at 997a-1004a.
59
Similarly, parents of mentally retarded children
are frequently subject to community pressure to
institutionalize their children. Other personal
pressures, such as the parents’ own emotional
difficulties in dealing with the mentally retarded
child, as well as the financial problems of
providing necessary care, may cause a parent to
institutionalize a mentally retarded child although
that course is not in the child’s best interests.
Finally, the parents simply may not be aware of
less drastic alternatives to institutionalization
(1069a, notes omitted).
In the case of the mentally retarded and their
parents, when the question is institutionalization, there
is no identity of interests which may be presumed.
The Test in the Danforth Case
Accommodates the Interests Involved
The decision of the lower court that parents’ and
guardians’ interests do not negate the rights of young
persons in the mental commitment context is manifest-
ly correct.6 Where parents and guardians seek
The District Court and defendants approach the issue as one
of parental power to “waive” minors’ rights. While the result is
the same, plaintiffs do not believe that the constitutional concept
of waiver is relevant here. There is no case in which parents have
been found to have waived or not to have waived the
constitutional rights of their children. Gault discussed the issue of
waiver with the Court noting that problems might arise
“depending on the age of the chiid and the presence and
competence of the parents.” 387 U.S. at 55. See Heryford v.
Parker, 396 F.2d 393, 396 (10th Cir. 1968) (issue described but
not decided).
In plaintiffs’ view, the critical question is whether juveniles can
be deprived of their rights where parents and guardians assert
(continued)
60
confinement of young persons in mental institutions,
there are no significant interests which overcome the
right to minimal due process protections.
The factual and legal status of parent-child relations
in mental commitment is summarized by the District
Court in these telling words:
There may be instances where the congruence
between the parents’ interests and those of the
child assure that the parents will arrive at a
decision based upon the best interests of the child.
The evidence in this case overwhelmingly demon-
strates that, due to the substantial potential for
conflict between the interests of the parent and the
child, this is not such a situation.
(footnote continued from preceding page)
contrary and divergent rights. As discussed in the text infra, this
approach is consistent with that followed by this Court in the
parental consent to abortion cases where an inquiry was not made
into parental competence to “waive” the rights involved.
Should the Court undertake to consider the waiver issue,
plaintiffs submit that parental application for state commitment
without more cannot be considered a valid waiver of a young
person's rights to counsel and an opportunity to be heard. A
waiver of constitutional rights must be made “voluntarily,
knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436
(1966). There must be an ‘intentional relinquishment or
abandonment’ of a fully known right.” Jn re Gault, 387 U.S. 1, 42,
quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
A valid waiver may not be presumed from the silence of the
person involved. Miranda v. Arizona, supra; In re Gault, supra,
387 U.S. at 34. In cases involving juveniles, even apparent
waivers have been invalidated. E.g., Haley v. Ohio, 332 U.S. 596,
601 (1948).
**Opinion at 1077a (note and citations omitted). As the District
Court indicates, id. at n. 44, this case does not present the difficult
question of whether parents would have the right to “waive” the
constitutional rights of their children, absent seriously con-
flicting and divergent interests.
61
The required constitutional analysis refutes defen-
dants’ argument that parents must be “in control of the
situation” and permitted to waive young persons’
Fourteenth Amendment rights. Brief for Appellants at
38.
In Planned Parenthood of Missouri v. Danforth, 428
U.S. 52 (1976), finding a protected liberty interest for
minors, the Court proceeded “to examine whether
there is any significant state interest in conditioning an
abortion on the consent of a parent or person in loco
parentis that is not present in the case of an adult.” Jd.
at 75. This is the test which must be applied in the case
at bar.
A direct and persuasive response to Danforth is that,
as demonstrated above, the constitutional interest in
freedom from physical confinement without due
process admits of no exceptions. No asserted state
interest in any previous decision of this Court has
overcome this “liberty,” no matter how rehabilitative
or treatment-oriented the institution of confinement
has been. Those cases, however, did not involve a
parent or guardian acting to secure confinement.”
The state here, citing no decision of this or any other
court, makes a succinct argument that the state’s
interest is parental autonomy, expressed by medically-
The concurrence of a doctor or hospital in the action is of no
constitutional significance under the Danforth test. Under
Danforth and Bellotti v. Baird, 428 U.S. 132 (1976), agreement
by a doctor to perform a medical procedure does not diminish or
negate the asserted constitutional interest (in those cases, the
interest of the parents). Further, as the decisions of this and other
courts demonstrate, reliance on medical certification to justify
mental commitment, absent a hearing and other protections, will
not satisfy due process.
62.
advised deprivation of young persons’ liberty. Brief for
Appellants at 37-38.
Such an argument was expressly rejected in
Danforth where the young person and parent “are so
fundamentally in conflict and the very existence of the
pregnancy already has fractured the family structure.”
428 U.S. at 75. “Any independent interest the parent
may have ... is no more weighty than the right ot
privacy of the competent minor mature enough to have
become pregnant.” /d. Likewise, any parental right to
obtain mental health care for a child’! is no more
weighty than the liberty right of a child proposed for
™'Mental institutionalization . »u: hardly be considered run-of-the
mill general medical care. No court or legislature has ever
considered it such. See, e.g., discussion of Pennsylvania legal .
history, infra at §11.B., and cases cited at 36-38 supra. The lower
court explained:
Unlike other kinds of medical treatment, a substantial
stigma attaches to institutionalize. This stigma coupled with
the substantial danger of error in the diagnosis of mental
illness and mental retardation, and the greater potential for
long-term loss of liberty create a situation substantially
different from the treatment of other parent-child medical
conditions. Furthermore, we perceive little or no parent-
child conflict in the decision to give or withhold other kinds
of medical treatment since a parents’ interests are more
likely to be similar to the best interests of the child.
1077a-1078a. To the extent that mental health care is considered
similar to other medical care, the right of parents to impose it
must be considered in light of the risks to the child. See, e.g.,
Jehovah's Witnesses in State of Washington v. King County
Hospital Unit No. 1 (Harborview), 278 F.Supp. 488 (W.D.
Wash. 1967), aff'd, 390 U.S. 598 (1968), rehearing den., 391 U.S.
961 (1968) (parents sued on “right to decide what medical
treatment they will accept for their children;” blood transfusion
case). See also cases cited supra at n. 44.
63
institutionalization. It is the “absolute limitation on the
minor’s right,” 428 U.S. at 90 (Stewart, J. and Powell,
J., concurring), with no provision for “judicial
resolution of any disagreement,” id., which causes the
greatest risk of harm to the juvenile and involves the
least benefit to legitimate state interests. See Bellotti v.
Baird, 428 U.S. 132 (1976).
Under the Danforth test, a countervailing significant
state interest must be established by more than the
unsubstantiated declaration of its existence. Carey v.
Population Services International, 431 U.S. 678
(1977). Here, the record provides no support whatso-
ever for the bare assertion of a “parental autonomy”
interest in appellants’ brief.
Other possible rationales for differentiating between
the rights of young persons and adults are neither
asserted by the defendants nor present in these
circumstances. 72
The critical question raised by Danforth is not “when
rights conflict, which are paramount?” but “when
presumed common interests in fact diverge, how can
each be accommodated and protected?” There is a
For example, the Court has on occasion looked to minors’
vulnerability to harm and their lack of mature judgment in
making decisions for themselves. See, Prince v. Massachusetts,
321 U.S. 158, 169 (1944); Ginsberg v. New York, 390 U.S. 629,
636-637, 649-650 (1968); Danforth, supra, 428 U.S. at 102
(Stevens, J., concurring in part and dissenting in part); Carey,
supra, 431 U.S. at 693, n. 15.
The state interest in assuring emergency mental health care for
young persons is protected by the District Court’s denial of a pre-
commitment hearing and allowance of temporary detention
initiated by parents or guardians without a hearing (800a-801a,
1092a).
64
continuum of decisions made by parents and guardians
regarding their wards. At one end are constitutionally
trivial and intra-familial issues (what color shirt to
wear, what friends to allow into the home) in which
there is little, if any, potential harm to the child. Along
the continuum, parental! powers are met with limits as
their interests and desires diverge from those of young
persons, in whom the state has an interest (e.g.,
compulsory school attendance, vaccinations, First
Amendment limits). As the parents’ claims threaten to
risk or unduly interfere with the child’s (abortion,
blood transfusions), the divergence becomes so great
that the parents’ assertion of rights is not permitted to
overshadow the social necessity of protecting young
persons’ independent interests. At the extreme end of
the continuum are actions which society prohibits
entirely as between parents and children (incest,
physical abuse, neglect).”
When viewed in terms of its nature and potential for
harm, mental institutionalization—whether the com-
mitment is erroneous or not—is an event near the end
of the continuum ai a point where the “parental
autonomy” claims are properly muted to the extent
necessary to protect the “liberty” claims of the child
who is being removed from the home and placed in an
institution. Therefore, following the reasoning in other
cases where the independent rights of minors have been
protected in the absence of a guardian with common
73For another extreme situation, in which parents were limited
in their right to remove a child from the home, see Respublica v.
Keppelle, 2 U.S. 197 (Pa.Sup.Ct.), holding that a parent could
not bind a child out as a servant.
65
non-divergent interests,’* the District Court held that
74 See, e.g., cases cited supra at note 44; Jehovah's Witnesses in
State of Washington v. King County Hospital Unit No. 1
(Harborview), 278 F.Supp. 488 (W.D. Wash. 1967), aff'd, 390
U.S. 598 (1968), rehearing den., 391 U.S. 961 (1968) (court
rejected parental “right to decide what medical treatment they
will accept for their children” and “right to decide what medical
treatment they will accept for their children” and “right to family
privacy” in class action by parents); Marsden v. Commonwealth,
227 N.E.2d 1 (Mass. 1967) (child does not have adequate
independent representation from parent where parent is
complainant in stubborn child proceeding, although parent may
have child’s best interests in mind); A.L. v. G.R.H., 325 N.E.2d
501 (Ind.App. 1975) (parent lacks power to secure sterilization of
son, despite sincere belief in benefits of procedure). In a recent case
holding that parents may not admit retarded children to a private
hospital for sterilization, absent a hearing, the Danforth analysis
suggested here was made. Ruby v. Massey, 452 F.Supp. 361 (D.
Conn. 1978). A court’s comments in a civil rights suit by
institutionalized retarded children illustrates the approach in these
cases:
I cannot be insensitive to the probability that the interests of
the parents may conflict with those of the children residing
at the Beatrice State Home. While the parents in all good
conscience may desire one remedy, ora specific type or style
of treatment for their children, it would not necessarily be in
the best interests of the children. Therefore, it seems to me
that a discreet course would be to provide for the appoint-
ment of a guardian ad litem, who would not displace the
parents as representatives of the plaintiffs but would be alert
to recognize potential and actual differences in positions
asserted by the parents and positions that need to be
asserted on behalf of the plaintiffs.
Horacek v. Exon, 354 F.Supp. 71, 74 (D. Neb. 1973).
This Court has had experience with cases in which the property
rights of minors have been protected by representation
independent of the guardian. /nsurance Company v. Bangs, 103
U.S. 435 (1880); United States v. Dunn, 268 U.S. 121 (1925);
Clarke v. Clarke, 178 U.S. 186, 193-195 (1900). See also United
(continued)
66
“parents may not waive the constitutional right of their
child not to be deprived of liberty without due process
of law.” (1086a).’°
D. Reliance Upon Psychiatrists and Other Pro-
fessionals to Authorize Commitment is Mis-
placed.
Although maintaining that parents must be “in
control” of the commitment of young persons to
mental institutions, defendants point to the “joint
decision” by parents and physicians as a fail-safe that
sufficiently protects the interests of the plaintiffs.
Examination of the relevant law and facts reveals the
phantom character of this asserted protection.
(footnote continued from preceding page)
States v. Equitable Trust Company of New York, 283 U.S. 738
(1931) (in lower courts, one court-appointed guardian acted to
protect mentally incompetent person from actions of wife and
another court-appointed guardian).
18 Accord, J.L. v. Parham, 412 F.Supp. 112 (M.D. Ga. 1976),
prob. juris. noted, 431 U.S. 936 (1977); Kidd v. Schmidt, 399
F.Supp. 301 (E.D. Wis. 1975); Saville v. Treadway, 404 F.Supp.
430 (M.D. Tenn. 1974); In re Long, 25 N.Ca.App. 702, 214
S.E.2d 626 (1975); In re Roger S., 141 Cal.Rptr. 298, 569 P.2d
1268 (S.Ct.Cal. 1977). These issues have been discussed in the
literature. Wilson, The Rights of Adolescents in the Mental
Health System (1978); Ellis, Volunteering Children: Parental
Commitment of Minors to Mental Institutions, 62 Calif. L. Rev.
840 (1974); Teitelbaum & Ellis, op. cit. supra note 51.
67
Mere approval by psychiatrists cannot support a
mental health commitment to an institution. See
discussion and cases cited at 36-39 supra. Certainly, the
state of the art of psychiatry is not such that the
confinement of tens of thousands of persons should be
left to the judgment of these practitioners.” This field is
beset with “uncertainty of diagnosis” and “tentative-
ness of professional judgment.” Greenwood v. United
States, 350 U.S. 366 (1956); O’Connor v. Donaldson,
422 U.S. 563, 579 (1975) (Burger, C.J., concurring).”’
Mental illness is defined by the user of the term and
that definition depends upon the norms employed by
the definer:
"This case does not involve second-guessing a “medical
_ diagnosis” or interference with the provision of standard medical
care to juveniles. First, with regard to the retarded, retardation is
not a medical problem and is not treated medically. See 979a-
982a; Halderman v. Pennhurst State School and Hospital, supra
note 31 (differences between mental illness and mental
retardation, and their treatments, described). Second, with
regard to both mental retardation and mental illness, it is only
when medical and other recommendations result in a deprivation
of liberty, non-medical risks and imposition of stigma that, as in
the case at bar, the protections of due process are triggered. See
note 71 supra. For a detailed review of the literature, see Morse,
Crazy Behavior, Morals, and Science: An Analysis of Mental
Health Law, 51 S. Calif. L. Rev. 527 (1978).
77One important study showed that diagnoses by psychiatric
residents were highly influenced by the imagined socio-economic
status of the patient and by the perceived diagnosis of other
psychiatrists independent of the clinical picture presented. Lee &
Temerlin, Social Class, Diagnosis and Prognosis for Psycho-
therapy, in Psychotherapy: Theory, Research and Practice 181
(1970); Ennis & Litwack, Psychiatry and the Presumption of
(continued)
68
And, because of the unavoidably ambiguous
generalities in which the American Psychiatric
(footnote continued from preceding page)
Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev.
693 (1974) (full review of the literature and legal implications);
Beck, Reliability of Psychiatric Diagnoses: A Critique of
Systematic Studies, 119 Amer. J. of Psychiatry 210 (1962);
Chesler, Women and Madness (1972) (Chapter 2, “Asylums”);
Edelman, Inter- Therapist Diagnostic Reliability, 25 J. of Clinical
Psychology 394 (1969); Goldberg & Werts, The Reliability of
Clinicians’ Judgments: A Multi-Trait—Multi-Method Ap-
proach, 30 J. of Consulting Psychology 199 (1966); Katz, Cole &
Lowery, Studies of the Diagnostic Process: The Influence of
Symptom Perception, Past Experience and Ethnic Background
in Diagnostic Decisions, 125 Amer. J. of Psychiatry 937 (1966)
(44 experienced psychiatrists viewed a filmed interview with a
patient. 17 saw the person as psychotic, 26 saw the patient as non-
psychotic. When British and American psychiatrists were
compared, the British saw less pathology); Pasamanik, Divity &
Lefton, Psychiatric Orientation and Its Relation to Diagnosis
and Treatment ir.a Mental Hospital, 116 Amer. J. of Psychiatry
127 (1959); Rosensweig, et al., A Study of the Reliability of the
Mental Status Examination, 117 Amer. J. of Psychiatry 1102
1961).
| oat as serious obstacles to the diagnostic and therapeutic
process arise within the patient, they also arise within the
therapist.” Nicholi, The Therapist-Patient Relationship, in
Nicholi, The Harvard Guide to Modern Psychiatry 3, 12 (1978).
These obstacles, which can become “destructive” to the sensitive
relationship between the therapist and the patient or prospective
patient, include anxiety within the therapist (which may cause
“blind spots” in hearing or understanding the patient’s story),
professional insecurity, fatigue, impatience “involving excessive
eagerness to make the diagnosis,” inattentiveness, restlessness,
daydreaming, inappropriately intense feelings toward the
patient. /d. at 12-16.
69
Association describes its diagnostic categories, the
diagnostician has the ability to shoehorn into the
mentally diseased class almost any person he
wishes, for whatever reason, to put there.
Livermore, Malmquist & Meehl, On the Justifications
for Civil Confinement, 117 U. Pa. L. Rev. 75, 80
(1968).78
The defendants’ extraordinary claim that mental
commitments involve no determinative factual ques-
tions or disputes flies in the face of every mental
commitment decision of this or any other court, the
*See, Roth, Dayley & Lerner, Into the Abyss: Psychiatric
Reliability and Emergency Commitment Statutes, 13 Santa
Clara Law. 400, 403 (1973). More than a hundred years ago a
court noted that commitment of children to reform school was
based on differing perceptions of “poor parental care:”
... there is not a child in the land who could not be proved,
by two or more witnesses, to be in this s2d condition.
People ex rel. O'Connell v. Turner, 55 Ill. 280 (1870). The
situation is the same today regarding young persons who can be
proved to be in the “sad condition” of mental disturbance. See
Duehn, The Effect of Practice Orientations on Clinical
Assessment, 46 Amer. J. of Orthopsychiatry 629 (1974) (extent of
negative mental health labeling is determined, in part, by factors
extraneous to patients’ behavior); Rosenhan, The Contextual
Nature of Psychiatric Diagnosis, 84 J. Abn. Psychology 462
(1975):
Despite the DSM-II’s attempts to elaborate symptomology
associa’~d with each disorder, behaviors are too variable
and their meanings too dependent on contextual perception
for them to be captured under the rubrics proposed by the
DSM-II. The very ambiguity of behavior, the fact that its
meanings are not automatically transparent, defeats such
attempts at classification from the onset, at least within the
psychiatric hospital.
70
histories of the named plaintiffs,”? the record in the
case,®° and the voluminous medical literature.*! The
very existence of “mental illness” and the need foi
institutional care are, as the lower court found, facts
which are subject to dispute and not amenable to
purely medical determination. See Specht v. Patterson,
386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107
(1966). See also, Danforth, supra, 428 U.S. at 104
(Stevens, J., concurring in part and dissenting in part)
(“Similarly, even doctors are not omniscient. ... In
each individual case factors much more profound than
a mere medical judgment may weigh heavily in the
scales.”).
Institutional psychiatrists are faced with conflicts of
interest—with their facilities,*? with their parents and
their patients’ families**—and have great difficulty
79What brought each named plaintiff to the institution and
what suggested to the parent and professional a need for
institutional treatment was not internal disturbances in thought
or feeling but external behaviors and expressions which might or
might not have actually occurred and which might or might not
have a “normal” explanation. See notes 77 and 78 supra; LeBow,
Evaluating the Seriousness of Adolescent Adjustment Reactions,
2 Primary Care 281 (1975). See Morse, op. cit. supra note 76.
80 See notes 53-60 supra.
8! See notes 75-78 supra.
82 See testimony of Dr. Messinger at 629a-630a (pressures on
psychiatrists to confirm colleagues’ opinions and meet institu-
tional needs) and Dr. Ingall at 599a (overcrowded clinics may
overrecommend institutionalization).
83 See Scheff, Being Mentally Ill: A Sociological Theory 148-
149 (1966) (commitment is generally automatic where family
requests it). Scheff also discusses a case in which a psychiatrist
recommended a commiitment for a young person who was not
(continued)
71
telling the sane from the insane, tending toward an
overdiagnosis of mental illness.** Psychiatry, asked to
adjudicate interpersonal and societal conflicts, is often
called upon to be the agent of the state’s police powers
in ways that carry it beyond its recognized expertise.*5
What is said above for psychiatry and menta! illness
is mirrored for mental retardation. The uncontradicted
testimony and unchallenged factual findings reflect that
“there are many mistakes” in identifying the retarded
(981la) through confusion with physical characteristics
or handicaps, testing problems, incorrect develop-
(footnote continued from preceding page)
thought mentaily ill but who was having difficulties with his
parents. /d. at 147. Where parents seek commitment of their
child, the medical a -hority is forced into a conflict situation:
While the goal of the iatrist will be expressed
perceived—as the best oe of the child-pationt, it ry -
parent who has come to seek help, whose situation seems the
most desperate, who seems the most reliable source of
information about what is wrong, who is the closest to the
psychiatrist in age and social outlook, and who is paying the
psychiatrist's fee.
Ellis, Volunteering Children, supra note 75, 62 Calif. L. Rev. at
868 (note omitted). This view is confirmed by the expert
testimony for all parties. See testimony of Dr. Feiner at 472a,
478a-479a; Dr. Sugar at 381a; Dr. Masterson at 732a-733a; Dr.
— at 542a; Dr. Ingall at 593a-594a; Dr. Messinger at 637a-
“See Rosenhan, On Being Sane in Insane Places, 13 Santa
Clara Law. 379 (1973), discussed in original opinion at 804a, n.
20. Indicative of this approach is the testimony for the defendants
by Dr. Masterson who asserted that psychiatrists should first
assume that the person before them is mentally ill (739a). See
testimony at 737a-738a.
85 See, Bazelon, Forward, Symposium: Mental Iliness, the Law
and Civil Liberties, 13 Santa Clara Law. 367 (1973); Szasz, Civil
Liberties and the Mentally Ill, 9 Clev-Mar. L. Rev. 399, 407
(1960).
72
mental speculations, and the like (979a-983a, 1068a).*°
“{I]n many cases, people grow out of being retarded.”
(983a). Therefore, a history of mental retardation is not
an infallible indicator or present retardation (982a).
Parents of retarded children receive consultation
from professionals they consult, typically physicians
other than psychiatrists. The physicians’ advice is
critical in the decision to institutionalize the child and,
tragically, that advice is typically uninformed, without
8¢Mental retardation, by definition, consists of subaverage
intellectual performance combined with behavioral maladap-
tation (979a). Grossman, ed., Manual on Terminology and
Classification in Mental Retardation (1973). An assessment of
behavior is thus a sine qua non of a finding of retardation. /d. On
the intellectual aspect of the definition, serious questions have
been raised regarding the accuracy of the tests used. See, e.g.,
Mercer, Labeling the Mentally Retarded (1973). Erroneous
diagnoses of mental retardation are not unusual. See Meno-
lascino, Emotional Disturbance and Mental Retardation, 70
Amer. J. of Mental Deficiency 248 (1965). A web of
circumstance, not intellectual functioning level, determines who
is committed and who is not:
Q. Well, isn’t there, as I think many people believe, some
relationship between a person's IQ or level of retardation
and whether or not they are found in an institution?
A. No, notatall. The people you find in institutions 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.* * * It is circumstantial as to whether or not they
have ended up in institutions.
Testimony of Commissioner Glenn at 980a-98la. Factual
disputes arise in grounds asserted as the basis for commitment of
the retarded (998a).
73
reasonable basis, and inappropriately and excessively
oriented toward institutionalization.®’
In some ways more than in the mental health area,
mental retardation professionals who work in institu-
tions are subject to pressures and conflicts of interest
which make it impossible for them to independently
evaluate people’s need for commitment.** This occurs
*’ Literature collected in Teitelbaum & Ellis, op. cit. supra note
51. See Turnbull & Turnbull, eds., Parents Speak Out: Views
from the Other Side of the Two-Way Mirror (1978) (accounts by
retarded children’s parents who are mental retardation profes-
sionals themselves); Kelly & Menolascino, Physicians’ Aware-
ness and Attitudes Toward the Retarded, 13 Mental Retardation
10 (1975); Testimony of Commissioner Glenn at 1004a, 1009a.
*8Several pressures and conflicts are described in Com-
missioner Glenn’s testimony at 1007a-1008a:
First, there is a basic conflict of interest for somebody in the
institution to make a decision about whether or not a person
ought to go to that institution. That would be sort of like a
store owner deciding whether or not a customer ought to
come into his store or somebody else’s store. Institutions, as
I indicated earlier, are sort of —s to prove their
necessity and justify their existence. All the research in the
st 35 years has shown that institutions are not appropriate
or the developmental growth of mentally retarded persons,
but there are a lot of people that continue to try to justify
their existence and the only way they can do that is by
having a a. With the move Federally and by states
and professions that recognize the inadequacy of this
historic institutionalization having a dramatic move toward
deinstitutionalization, there is a real conflict where
institutions have to have people to prove
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