Petition — Coughlin v. New York State Ass'n for Retarded Children, Inc.

78-1794

Supreme Court, a ae

ED

MAY 30 {979

IN THE

Supreme Court of the United

OCTOBER TERM, 1978

Bona, JR., CLERK

Tuomas A. Covcuurn III, individually and as Commis-

sioner of the New York State Office of Mental Retarda-

tion and Developmental Disabilities, et al.,

Petitioners,

against

New York State ASSOcIATION FOR RETARDED

Cuipren, Inc., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Rosert ABRAMS

Attorney General of the

State of New York

Attorney for Petitioners

Office & P. O. Address

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-3394

SurrLey ADELSON SIEGEL

Solicitor General

Rosert S. HamMER

Assistant Attorney General

of Counsel

——— ——— A. A oa

TABLE OF CONTENTS

PAGE

es Bie oh gis edkw nee ad be ee é 1

NY ee Pa a eee coke cknge oe ee en's 2

ells waln S die i donk cic:ds oveeae 2

Constitutional Provision Involved ................. 3

ee aia ck ids db wceseesevas 3

Reasons for Granting the Writ .................... 8

EROS SS OP ee Sa 12

Appendix A, Opinion, United States Court of Ap-

peals for the Second Cireuit ................. la

Appendix B, Opinion, United States District Court,

Eastern District of New York ................ 34a

TABLE OF AUTHORITIES

Dandridge v. Williams, 397 U.S. 471 (1970) ........ 12

Edelman v. Jordan, 415 U.S. 615 (1974) ............ 8,11

Longshoremen’s Ass’n v. Marine Trade Association,

EE ee eee 12

Pasadena City Board of Education v. Spangler, 427

EE En ee eee 12

N. Y. City Transit Authority v. Bezar, —— U.S. —,

I EE RTD so sre sisciec bc unccnecces 12

ii TABLE OF CONTENTS

PAGE

N. Y. State Ass’n for Retarded Children v. Rocke-

feller, 357 F.Supp. 752 (E.D.N.Y. 1973) ........ 3, 11

N.Y. State Ass’n For Retarded Children v. Carey,

893 F.Supp. 715 (B.D.N.Y. 1975) ......6.2.005: 3,12

N.Y. State Ass’n For Retarded Children v. Carey,

438 F.Supp. 440 (E.D.N.Y. 1977) .......--..-5. 10

N.Y. State Ass’n For Retarded Children v. Carey,

466 F.Supp..474 (E.D.N.Y. 1978) .............. 10

Socialist Workers Party v. Attorney General, ——

F.2d ——, 47 U.S.L.W. 2634, 2635 (2d Cir. 1979) 12

United States v. Armour & Co., 402 U.S. 673 (1971) ..7,8,9

United States v. 1.7.7. Continental Baking Co., 420

U.S. 223 (1975) ..... Scat a ieee cy Nik aie 8 Oe Wk Ok 7,9

United States v. Swift & Co., 286 U.S. 106 (1932) ... 9-10

CoNSTITUTIONAL Provisions, STATUTES AND Rutes Crrep

Eleventh Amendment, U.S. Const. ............... 3, 6, 7,8

Pe RS od nee slay Gere wa eek ha eee ves 2

er SR WE x5 Gs Cas inks ocas a bei Rew os cine 3

et es Ue das Wk wees WN Oa ee 3

N. Y. Mental Hygiene Law,

SABA), Be BOO, OM. BO SS oi cee ie cd ds ae 2

Fed. R. Civ. P.,

re Seah tn oes ect e eek el Vans eee een 9

Se. Re ae ate ina 12

U.S. Sup. Ct. Rules,

ENE CC Gin on. ss nahh kaka ae ee end 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

7

Tuomas A. Covcuurn III, individually and as Commis-

sioner of the New York State Office of Mental Retarda-

tion and Developmental Disabilities, et al.,

Petitioners,

against

New York State ASsociaATION FOR RETARDED

Cuipren, Inc., et al.,

Respondents.*

’%

og

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the Court of Appeals for

the Second Circuit rendered herein on March 1, 1979.

Opinions Below

The opinions of the lower courts are not yet reported.

The opinion of the Court of Appeals for the Second Cir-

*In addition to the parties named in the caption, the peti-

tioners are Hugh L. Carey, Governor of the State of New York,

(footnete continued on following page)

2

cuit is reproduced beginuing at page la of the appendix;

the memorandum and order of the District Court for the

Eastern District of New York is reproduced beginning at

page 34a, thereof.

Jurisdiction

The judgment of the Court of Appeals was rendered and

entered dn March 1, 1979. The jurisdiction of this Court

to review that judgment rests on 28 U.S.C. § 1254(1).

Questions Presented

1. Whether the lower courts violated the rules estab-

lished by this Court for the interpretation of consent

judgments?

(footnote continued from preceding page)

Jennifer L. Howse, Ph.D., Associate Commissioner, Office of

Mental Retardation and Developmental Disabilities, Elin M.

Howe, Director, Philip Ziring, M.D., Deputy Director, Clinical

Services and James Shea, Deputy Director, Institutional Adminis-

tration, Staten Island Developmental Center. The other respond-

ents are Benevolent Society for Retarded Children, Willowbrook

Chapter of the New York State Association for Retarded Chil-

dren; Lara R. Sehneps, by her father Murray B. Schneps; Nina

Galin, by her mother Diana Lane McCourt; Anthony Rios, by his

father Jesus Rios; David Amoroso, by his mother Rosalie Amor-

oso; Rose Evelyn Cruz, by her father Francisco M. Cruz; Barry

Friedman, by his father Melvin Friedman; Lowell Scott Isaacs,

by his father Jerome W. Isaacs; and Antoinette Magri, by her

mother Sandra Magri; Patricia Parisi, by her mother Lena

Steuernagel; Anselmo Clarke, by his mother Estella Clarke; Nel-

son Agosto, by his aunt and next friend Lucilia DeJesus; Frances

Breen, by her sister Mary Morganstern as committee of her per-

son and property; John Duffy, by his next friend Robert L. Feldt,

Esq.; Evelyn Cruz, by her father Francisco Cruz: Bonnie Rose,

by her mother Anne Rose; Mario Narvaez, by his mother Carmen

Narvaez; John Doe, by his mother Jane Doe; Steven Rosepka, by

his father Ben Rosepka; individually and on behalf of all others

similarly situated.

3

2. Whether the relief granted by the lower courts vio-

lated the Eleventh Amendment to the Constitution?

3. Whether the order of the District Court, as affirmed

by the Court of Appeals, is unenforcible for vagueness?

Constitutional Provision Involved

Amendment XI, U. S. Constitution

The judicial power of the United States shall not be con-

strued to extend to any suit in law or equity, commenced

or prosecuted against any one of the United States by

Citizens of another State or by Citizens or Subjects of any

Foreign State.

Statement of the Case

In March, 1975, the State of New York entered into an

agreement designed to settle this action which had been

brought pursuant to 28 USC § 1343; 42 USC § 1983 to cor-

rect conditions of care and treatment of the mentally re-

tarded at Willowbrook State School,* which allegedly

violated the constitutional rights of its residents. This

settlement followed nearly three years of active litigation,

including voluminous discovery, protracted evidentiary

hearings and the issuance of a preliminary injunction,

N.Y. State Ass’n For Retarded Children v. Rockefeller,

357 F.Supp. 752 (E.D.N.Y. 1973). The agreement, for-

mulated after hard bargaining between representatives

of the plaintiffs, the Governor, the Commissioner of Men-

tal Hygiene and the Director of the Budget, was a com-

promise in the classic sense. There was no admission of

liability on the part of the defendants. However, the par-

*Now Staten Island Developmental Center, N.Y. Mental

Hygiene Law § 13.17(b), L. 1978, ch. 23, § 1.

4

ties established in Appendix A to the judgment an

elaborate set of standards, procedures and goals for Wil-

lowbrook which were neither the minimum standards that

defendants viewed as constitutionally permissible, nor the

desired optimum that plaintiffs would have preferred,

N. Y. State Ass’n For Retarded Children v. Carey, 393

F.Supp. 715, 717 (EDNY 1975).

In addition to describing this elaborate plan to improve

conditions at Willowbrook and to eventually reduee the

size of the resident population to 250 (8-9a) the judgment

provided for three bodies to monitor its enforcement (9a).

The seven-member Willowbrook Review Panel consists

of three plaintiffs’ nominees, two defendants’ nominees, all

approved by the court; one expert in the management of

public institutions and one expert in the management of

community facilities for the mentally retarded, either

chosen by agreement of the parties with the approval

of the court or by the court from their nominees (10a).

Under the terms of the judgment the defendants are re-

quired to pay the members of the Review Panel a monthly

compensation for the performance of their duties, reim-

burse them for their expenses and provide them with offices

and a full-time staff (lla).

The defendants and certain supervisory personnel at

Willowbrook are required to report their progress at im-

plementing the judgment to the Review Panel. Its mem-

bers and staff have full access to the institution, its em-

ployees, the members of the plaintiff class, whether still

resident at Willowbrook, transferred to another institution

or to a community facility and to all pertinent records.

Any interference with the Review Panel is punishable as a

contempt of court (11a).

The Review’ Panel is required to make periodic formal

recommendations to the defendants on implementation of

the judgment and for resolution of any disagreements con-

3

cerning the fulfillment of the plan contained in Appendix

A thereto. The Review Panel’s recommendations are bind-

ing upon all parties unless formal objection is made within

fifteen days. In such case, the recommendations are sub-

ject to court review. However, the district court pre-

sumes them to be correct in matters of fact. Anyone ob-

jecting to them has the burden of coming forward to show

that the recommendation is improper at which point the

burden shifts to the Review Panel to establish their cor-

rectness and propriety by a fair preponderance of the evi-

dence (11-13a).

A Professional Advisory Board, as its name implies,

consists of “eminent professionals” in the field of mental

retardation and related disciplines. Its seven members ad-

vise on programs and conditions at the institution (13-l4a).

A Consumer Advisory Board, also of seven members,

“made up of parents or relatives of residents, community

leaders and residents or former residents,’ was designed

to provide lay input; and, in particular, to represent the

interests of “non-correspondent” members of the plaintiff

class, whose interests are not actively protected by a

parent, relative, legal guardian or committee. There are

over 600 non-correspondents (13-14a).

Section S.8 of the Appendix to the judgment provides

that members of the P.A.B. and C.A.B. are reimbursed for

their reasonable expenses and “where appropriate * * *

receive appropriate compensation.” But, most important,

unlike the Review Panel, the judgment does not provide

for staffs for these two advisory bodies: although the de-

fendant Commissioner of Mental Hygiene had voluntarily

provided and paid for a coordinator, a full-time secretary

and funds to pay consultants on a per-diem basis (37-38a).

The instant proceeding arose when the Review Panel

formally recommended that the defendants hire for the

C.A.B. an additional staff of four professionals and one

6

secretary (15a). The Department of Mental Hygiene re-

jected this proposal as unnecessary; beyond the scope of

the consent judgment and in violation of the Eleventh

Amendment (17, 39-40a). A hearing was held before the

district court on these objections. Upon consideration, the

district court approved the Review Panel’s recommenda-

tion, finding that the C.A.B. members were unable to per-

form their assigned function without additional staff (16-

17a). Judge Bartels rejected the defendants’ contentions

that the C.A.B. had an exaggerated view of its functions;

found that its in loco parentis role required it to become

personally familiar with the needs of all non-correspond-

ents; that it was not duplicating the work of other advisory

or advocacy bodies; nor was it overrelying on staff (18-

19a; 40-46a).

The district court justified its decision on the basis that

the cost of additional staffing was an “expense” of the

C.A.B. within the meaning of the judgment. In doing so,

Judge Bartels overruled defendants’ objections that the

consent judgment did not provide for staffing the C.A.B.

and thus the Review Panel lacked the power to recommend

the employment of such staff to the defendants (lda;_

48-5la). The district court was apparently sensitive to the

difficulties inherent in such a ruling and held in the alterna-

tive that the evidence adduced at the hearing justified a

modification of the consent judgment (19a; 51-53a).

The district court also rejected the defendants’ conten-

tion that the Review Panel’s proposal violated the Eleventh

Amendment to the Constitution (53-54a). The defendants

were enjoined to take

all action necessary to secure implementation of the

Review Panel’s recommendation, within their lawful

authority and subject to any: legislative approval that

may be required, and to take all steps necessary to

ensure the full and timely financing of the recom-

mendation including, if necessary, submission of the

"7

‘

appropriate budget requests to the legislature (20a;

doa)

The court of appeals sustained the State’s contention

that the provision of $130,000 per year for the new staff

was not a “reasonable expense”’ of the C.A.B. It did not

reach the issue raised by the district court’s alternative

holding; noting however, that the procedure for modifying

the consent judgment had not been followed (20a). In-

stead, the court of appeals affirmed the judgment of the

district court on the basis that the nature of the consent

judgment and the complex and changing conditions at

Willowbrook required a flexibility in its enforcement that

was permitted under this Court’s rulings in United States

v. Armour & Co., 402 U.S. 673 (1971) and United States v.

I.T.T. Continental Baking Co., 420 U.S. 223 (1975) (21a).

The court of appeals further held that the powers vested

in the Review Panel under the judgment to make recom-

mendations were sufficient to keep it within the “four

corners” doctrine articulated in the Armour case (21-23a).

Defendants’ arguments that the order was impermissibly

vague and that it violated the Eleventh Amendment were

also rejected. The court agreed that the district court

properly left the specifics of implementation to the State

defendants (24-25a). The Eleventh Amendment was not

transgressed because the order simply provided for

prospective injunctive relief, despite its fiscal impact; and,

that the consent judgment, under which the Review Panel

made its recommendation was itself, a waiver of the State’s

sovereign immunity (26a).

Reasons for Granting the Writ

I.

The judgment of the court of appeals substantially

deviates from the “four corners” rule articulated by this

Court in United States v. Armour & Co., 402 U.S. 673, 681-

682 (1971), and represents an infringement on state

sovereignty not permitted under the Eleventh Amendment

as construed by Edelman v. Jordan, 415 U.S. 615, 673

(1974). If permitted to stand, this ruling will substantially

inhibit the settlement of public litigation.

The rule for construing a consent judgment was de-

seribed by Mr. Justice Marshall as follows:

Consent decrees are entered into by parties to a case

after careful negotiation has produced agreement on

their precise terms. The parties wave their right to

litigate the issues involved in the case and thus save

themselves the time, expense, and inevitable risk of

litigation. Naturally, the agreement reached normally

embodies a compromise; in exchange for the saving of

cost and elimination of risk, the parties each give up

something they might have won had they proceeded

with the litigation. Thus the decree itself cannot be

said to have a purpose; rather the parties have pur-

poses, generally opposed to each other, and the re-

sultant decree embodies as much of those opposing

purposes, as the respective parties have the bargain-

ing power and skill to achieve. For these reasons, the

scope of the consent decree must be discerned within

its four corners and not be reference to what might

satisfy the purposes of one of the parties to it. Be-

cause the defendant has, by the decree, waived his right

to litigate the issues raised, a right guaranteed to him

by the Due Process Clause, the conditions upon which

he has given that waiver must be respected, and the

9

instrument must be construed as it is written, and not

as it might have been written had the plaintiff estab-

~ lished his factual claim and legal theories in litigation.

(emphasis in original, footnote omitted)

United States v. Armour & Co., supra.

Yet the lower courts clearly went beyond this “four

corners” rule. Nowhere does the judgment provide for a

staff for the C.A.B. as it does for the Review Panel. Ap-

plying a judicial figleaf and labelling it “construction”

cannot hide the fact that the court of appeals sanctioned a

modification of the judgment. Even the resort to the con-

text and circumstances under which the judgment was en-

tered, United States v. 1.T.T. Continental Baking Co., 420

USS. 233, 238 (1975), cannot alter the plain language of the

judgment.

The prejudice to the petitioners is obvious. Had the

courts below required that paragraph 9 of the judgment,

which authorizes modification pursuant to Fed.R.Civ.P.

Rule 60(b) be followed, petitioners could have received

proper notice of the relie* sought. Moreover, instead of

the petitioners being required to overcome the presump-

tion in favor of the Review Panel’s recommendations, the

burden would have been on the party seeking modifica-

tion. Yet the lower courts ignored this and in doing so

eviscerated the doctrine stated by Mr. Justice Cardozo that,

[t]here is a need to keep in mind steadily the limits of

inquiry proper to the case before us. We are not

framing a decree. We are asking ourselves whether

anything has happened that will justify us now in

changing a decree. The injunction, whether right or

wrong, is not subject to impeachment in its application

to the conditions that existed at its making. We are

not at liberty to reverse under the guise of readjusting

* * *&

10

The inquiry for us is whether the changes are so

important that dangers, once substantial, have become

attenuated to a shadow. No doubt the defendants will

be better off if the injunction is relaxed, but they are

not suffering hardships so extreme and unexpected as

to justify us in saying that they are the victims of op-

pression. Nothing less than a clear showing of

grievous wrong evoked by new and unforeseen condi-

tions should lead us to change what was decreed after

years of litigation with the consent of all concerned

* * * Wisely or unwisely, they submitted to these re-

straints upon the exercise of powers that would

normally be theirs. They chose to renounce what they

might otherwise have claimed, and the decree of a

court confirmed the renunciation and placed it beyond

recall. (emphasis supplied)

United States v. Swift & Co., 286 U.S. 106, 119 (1932).

The error committed by the lower courts is compounded

by the fact that apart from third parties brought into the

action in aid of the enforcement of the judgment, see, e.g.

N.Y. State Ass’n For Retarded Children v. Carey, 438

F, Supp. 440 (E.D.N.Y. 1977) and 466 F. Supp. 479, 486

(E.D.N.Y. 1978), the defendants are state officials and that

the real party in interest is the State of New York. The

settlement of this action by the State was a waiver of its

sovereign immunity, made only after protracted negotia-

tions between plaintiffs’ representatives, the Attorney Gen-

eral, the Governor, the Commissioner of Mental Hygiene

and the Director of the Budget, the latter being necessary

to the bargaining process because of the requirement to

allocate and appropriate funds to earry out the terms of

any consent judgment. Unfortunately, the court of ap-

peals lost sight of the political nature of settlements of

public litigation. Despite paying lip service to the ‘four

corners’’ doctrine (21a) what it did, in fact, was to retro-

spectively alter the terms of the consent decree in the name

11

of ‘‘flexibility of enforecement’’ (22a). In partial justifica-

tion, the lower court refetred to the relatively small sum

involved and the acquiescence in prior recommendations of

the Review Panel (14-15; 19a). However, regardless of

the amount of money involved the result of susi‘uing a

recommendation beyond the Review Panel’s power is to

destroy the basis of the State’s waiver of its sovereign im-

munity; indeed, the result is to further infringe upon state

sovereignty, despite this Court’s admonition that a waiver

of sovereign immunity will be found only by the most ex-

press language or by such overwhelming implications from

the text as will leave no room for any other reasonable

construction, Edelman v. Jordan, 415 U.S. 615, 673 (1974).

Thus, the court of appeals has written a blank check to the

respondents, particularly the Willowbrook Review Panel to

unilaterally change the terms of the settlement; and has

served notice to the State of New York and the other states

in the Second Cireuit that if they settle public litigation,

they are subject to retrospective modifications by the courts

on the basis of newly perceived conditions contrary to their

legitimate expectation. Under these circumstances it is

hard to imagine that state governments would be inclined

to settle such cases in the future. This is a most undesir-

able if not dangerous prospect.

The settlement of civil litigation is indispensable to our

legal system. Without the compromise of nearly 90% of

all lawsuits, the courts would be hopelessly clogged and

unable to function. Apart from the promotion of judicial

economy, the public interest is served by the voluntary

resolution of disputes and tends to promote the interest of

the parties by minimizing the risks of further litigation.

These considerations, generally favoring the settlement

of cases, apply with particular force to complex public

litigation such as the instant case. As Judge Judd ex-

pressed it in approving the settlement:

During the three-year course of this litigation, the

12

fate of the mentally impaired members of our society

has passed from an arcane concern to a major issue

both of constitutional rights and social policy. The

propose | consent judgment resolving this litigation is

partly a fruit of that process.... Had this case been

finally submitted for determination on the merits, the

court would have faced a substantial burden in

analyzing the briefs and the mass of testimonial and

documentary evidence which was submitted by both

sides and which bears on the right to relief and the

formulation of the various categories of relief.

Happily, the parties have relieved the court of this

task and have brought to bear on the forging of relief

their evident expertise. The court has reviewed the

proposed judgment and each of the Steps, Standards

and Procedures, and finds them neither impractical

nor beyond the scope of the complaint.

N.Y. State Association For Retarded Children v. Carey,

supra, at 393 F.Supp. 718.

With the recent proliferation of lawsuits brought against

state officials that seek broad relief to correct alleged denial

of legal and constitutional rights in state institutions

and in society at large, a decision such as rendered by

the court of appeals can only result in a greater reluctance

on the part of the states, which must bear in mind a multi-

tude of demands upon the public treasury, Dandridge v.

Williams, 397 U.S. 471, 455-456 (1970), to settle these cases

when they cannot be assured that the settlement will be

binding and that they will not be exposed to additional

demands by the plaintiffs.

The court of appeals very candidly stated in its decision

(25a) that the power of the defendants to comply with

the district court’s order was limited by the willingness of

13

the Legislature to appropriate the necessary funds (24-

25a). But neither the district court nor the court of ap-

peals indicated whether the petitioners would be exculpated

if the Legislature refused to budget the item. Accordingly,

the district court’s order was unenforceable under Fed.R.

Civ.P. Rule 65(d), Pasadena City Board of Education v.

Spangler, 427 U.S. 424, 488-439 (1976); Longshoremen’s

Ass’n v. Marine Trade Association, 389 U.S. 64, 76 (1967).

The failure of the lower courts to explicitly spell out the

extent of petitioners’ obligations herein is a particularly

acute problem in the instant case, where the plaintiffs and

the Review Panel, have on a number of occasions threatened

or actually moved to hold the petitioners, including the

Governor, in contempt of court. Even if such motions are

denied, the public spectacle of a high government official

being forced to justify his official conduct in a contempt

proceeding is most unfortunate and is to be avoided, see

Socialist Workers Party v. Attorney General, —— F2d

: 47 U.S.L.W. 2634, 2635 (2d Cir. 1979).

The court of appeals has thus decided substantial federal

questions contrary to the applicable decisions of this Court.

The public interest, we submit, calls for its review and cor-

rection, U.S. Sup.Ct. Rules, Rule 19(1)(b); N.Y. City

Transit Authority v. Bezar, —— U.S. —, 59 L.Ed. 2d 587,

593-94 (1979).

14

CONCLUSION

Certiorari should be granted.

Dated: New York, New York

May 30, 1979

Respectfully submitted,

Ropert ABRAMS

Attorney General of the

State of New York

Attorney for Petitioners

SHIRLEY ADELSON SIEGEL

Solicitor General

Rosert S. HAMMER

Assistant Attorney General

of Counsel

oe

la

Appendix A - Opinion, Unites States Court

Of Appeals for the Second

Circuit.

UNITED STATES COURT OF APPEALS

For THE Seconp Cixccit

>

No. 417—August Term, 1978.

(Argued December 13, 1978 Decided March 1, 1979.)

Docket No. 78-6072

>

New York State AssuctaTioN FoR Retarvep CHILDREN,

Inc., et al., and Patricia Parisi, et al.,

Appellees,

_—V—

Hucu L. Carey, individually

and as Governor of the State of New York, et al.,

Appellants,

Unitep States oF AMERICA,

Amicus Curiae.

Before:

MansFiELp and Oaxes. Circuit Judges,

and Pottack, District Judge. *

>

Appeal from an order of the United States District

Court for the Eastern District of New York, John R. Bar-

Of the United States District Court for the Southern District

of New York, sitting by designation.

1497

2a

Appendix A

tels, Judge, approving Review Panel's request, pursuant to

its power to make recommendations under a consent judg-

ment between the parties, for staff for supervisory board

at state facility for the mentally retarded. Held, the flexi-

bility inherent in the enforcement mechanism and the

Review Panel’s authority to make recommendations to

implement the consent judgment required court to enforce

request. Judgment affirmed.

>

Rosert S. Hammer, Assistant Attorney General

(Louis J. Lefkowitz, Attorney General of

the State of New York, Samuel A. Hir-

showitz, First Assistant Attorney General,

William A. Carnahan, Deputy Commis-

sioner and Counsel, Paul F. Stavis, Deputy

Counsel, Margaret M. Corcoran, Attorney,

Paul Litwak, Deputy Counsel, New York

State Department of Mental Hygiene, Clar-

ence J. Sundram, Assistant Counsel to the

Governor, of counsel), for Appellants.

MicuatL S. Lotrmax, Willowbrook Review

Panel, New York, N.Y. (Murray B.

Schneps, of counsel), for Appellee Willow-

brook Review Panel.

Jack Bernstein, Protection and Advocacy Sys-

tem for Developmental Disabilities, Inc.,

New York, N.Y., for Appellee New York

State Association for Retarded Children,

Inc.

CuristopHer A. Haxsex, New York Civil Liber-

ties Union, New York, N.Y. (Kalman

Finkel, Legal Aid Society, Civil Division,

1498

3a

Appendix A

John Kirklin, Director of Litigation, Carol

Kellerman, Legai Aid Society, Civil

Appeals and Law Reform Unit), for Men-

tal Health Law Project.

>

Oakes, Circuit Judge:

This appeal, on first view, might be thought to involve

the power of a federal court to order a state facility for

the retarded to hire additional staff at expense to the

public fisc in order to meet court-imposed requirements.

Upon further analysis. however. the appeal is from a

limited order appurtenant to a rather complex organiza-

tional structure for the operation of the facility. The

structure itself was established by the parties in a Con-

sent Judgment settling the original proceeding in this

litigation after a preliminary injunction granted by the

United States District Court for the Eastern District of

New York, the late Orrin G. Judd, Judge.' That court ap-

proved the Consent Judgment? after trial had commenced

on a claim under Section 1983 of the Civil Rights Act,’

brought as a class action on behalf of mentally retarded

children and adults residing at Willowbrook Developmen-

tal Center (Willowbrook), formerly the Willowbrook State

School for the Mentally Retarded and now the Staten

Island Developmental Center. In the close to seven years

that the litigation has been pending, neither party has

sought appellate review of the many determinations made

1 New York State Ass'n for Retarded Children, Inc. v. Rockefel-

ler, 357 F. Supp. 752, 756 (E.D.N.Y. 1973).

2 New York State Ass'n for Retarded Children, Inc. v. Carey.

393 F. Supp. 715 (E.D.N.Y. 1975).

3 42 U.S.C. § 1983.

1499

4a

Appendix A

by the district court. Here the state officials‘ responsible

for the operation of Willowbrook bring the first appeal,

involving the question whether the State should provide

funding for a few additional staff for the Consumer Ad-

visory Board, one of the advisory bodies established by

the Consent Judgment. The state officials challenge the

propriety of the order for such provision on the basis

that it is contrary to the express terms of the Consent

Judgment or constitutes an unreasonable interpretation or

modification thereof, is vague and otherwise unen-

forceable, and requires additional appropriations from the

State’s treasury in violation of the Eleventh Amendment.

We find the arguments unavailing and affirm the judg-

ment of Judge John R. Bartels below.

In order properly to put the order appealed from in

perspective, it is necessary to review the history of the

litigation, the scope of the Consent Judgment, the opera-

tional structure under the judgment, and the district

court’s factual determinations as to the necessity for the

staff.

History Or Tue Litigation

The complaint was filed under Section 1983 on March

17, 1972, the plaintiffs being a group of parents, volun-

teer organizations, and individual residents at Willow-

brook, which at that time had a population of approxi-

mately 5,200, officially 65% over capacity, and was the

4 Appellants include the Governor of New York; the New York

State Department of Mental Hygiene: the Commissioner, Deputy

Commissioner, and Second Deputy Commissioner of the Division

of Mental Retardation and Children’s Services of that Depart-

ment; the Director and Deputy Directors of Willowbrook itself:

and others. All are collectively referred to as the “state officials”

or “the State” herein.

1500

5a

Appendix A

largest institution of its kind in the country. The suit

alleged that the conditions at the institution were physi-

cally so inadequate and tne environment so destructive

and dehumanizing that many of the residents had \ zress-

ed and their condition deteriorated after their admission.

The plaintiffs. who are here appellees, requested prelimi-

nary injunctive relier involving the hiring of more medical

and supporting staff, prohibitions against the use of seclu-

sion and physical restraints, separate bedroom and day

areas for the residents. appropriate clothing, and compre-

hensive medical and hospitalization facilities. In New York

State Association for Rezarded Children, Inc. v. Rockefel-

ler, 357 F. Supp. 752, 756 (E.D.N.Y. 1973), Judge Judd.

after five days of hearings and on the basis of “a sheaf

of exhibits, a folder of photographs, and hundreds of

pages of affidavits considered as part of the record,” as

well as the court’s visit to Willowbrook, found that

Willowbrook consisted of approximately forty-three build-

ings with a resident population of 4,727 on December 10,

1972, reduced from 5,700 at the beginning of the action

and a high of 6,200 in 1969. Jd. at 755. Over three-

quarters of the residents he found to be profoundly or

severely retarded, having intelligence quotients below 35,

with approximately one-third suffering from epileptic

seizures and over half having been in Willowbrook for

more than twenty years. Twenty-seven percent of the

residents he found to be there voluntarily, and their

treatment dia not differ from that given to those there

under court order. On the testimony of parents and the

affidavits of others, the judge found numerous failures to

protect the physical safety of the children and deteriora-

tion rather than improvement of their condition, with

poor physical maintenance and in effect “conditions

_.. hazardous to the health, safety, and sanity of the

1501

6a

Appendix A

residents.” Jd. at 756.° In a very careful opinion, Judge

Judd held that plaintiffs had no constitutional right to

treatment based on due process or equal protection but

that plaintiffs’ constitutional right to protection from

harm in a state institution meant that the Willowbrook

residents were “entitled to at least the same living condi-

tions as prisoners.” Jd. at 764. The judge found that the

plaintiffs did not have such conditions; accordingly, he

granted preliminary relief including:

1. A prohibition against seclusion. . ..

2. Immediate hiring of additional ward attendants....

3. Immediate hiring of at least 85 more nurses . .

4. Immediate hiring of 30 more physical therapy

personnel....

5. Immediate hiring of 15 additional physicians... .

6. Immediate hiring of sufficient recreational staff ....

7. Immediate and continuing repair of all inoper-

able toilets....

8. Consummation within a reasonable time of a

contract with an accredited hospital....

9. Periodic reports [to the court] concerning the

progress of the defendants in meeting these require-

ments....

Id. at 768-69. All requirements were based on achieving

conformity with the minimum standards of the Accredita-

tion Council for Facilities for the Mentally Retarded.

Subsequent to the intervention of the United States

Department of Justice as amicus curiae in support of the

plaintiffs, the latter moved to have several state officials

held in contempt, a motion that Judge Judd denied;

5 For additional findings, see Judge Judd’s memorandum opin-

+ alge granting plaintiffs a preliminary injunction, 357 F-

1502

7a

Appendix A

although he found that the defendants had not complied

with his earlier order, he felt unable to allocate blame for

the noncompliance. Trial commenced on October 1, 1974;

and eight expert witnesses, numerous parents, and ana-

lysts from the Department of Justice testified in support

of the plaintiffs’ case. The case was almost but not quite

settled midtrial; trial ended on January 6, 1975, with the

defendant Thomas A. Coughlin’s predecessor, Robert W.

Hayes, the Deputy Commissioner of the New York State

Department of Mental Hygiene in charge of Willowbrook,

having described the institution as no longer a “major

tragedy,” as he had previously characterized it, but as

still a “moderate tragedy.” Settlement negotiations were

renewed after a change of administration in state govern-

ment and continued until April 1975 when both sides

signed a Consent Judgment. Judge Judd approved the

consent judgment on April 30, 1975, in a short memoran-

dum opinion. New York State Association for Retarded

Children, Inc. v. Carey, 393 F. Supp. 715 (E.D.N.Y.

1975).

Scope Or Consent JUDGMENT

The Consent Judgment governs the operation of

Willowbrook and the care and treatment of all mentally

retarded members of the plaintiff class, that is, all per-

sons who were residents of Willowbrook on the date that

the lawsuit was filed. The judgment expressly incorporates

an appendix of “steps, standards and procedures” (herein-

after Appendix <A) covering twenty-nine single-spaced

pages and dealing with twenty-three topics, all designed

to secure the constitutional rights of Willowbrook resi-

dents to protection from harm. The judgment recites that

these

1503

8a

Appendix A

“are not optimal or ideal standards, nor are they just

custodial standards. They are based on the recogni-

tion that retarded persons, regardless of the degree

of handicapping conditions, are capable of physical.

intellectual, emotional and social growth, and... that

a certain level of affirmative intervention and pro-

gramming is necessary if that capacity for growth is

to be preserved, and regression prevented.”

393 F. Supp. at 717, Consent Judgmen: at 3. The state

officials agreed that “‘within their lawful authority’” and

“subject to any legislative approval that may be re-

quired,” they would “‘take all actions necessary to secure

implementation of” Appendix A as well as “‘all steps

necessary to ensure the full and timely financing of this

judgment,’” all in a prompt and orderly manner. /d., Con-

sent Judgment at 3-4.

Appendix A of the Consent Judgment describes the

phasing in of various improvements with a thirteen-month

period for implementation of many of the steps, stand-

ards, and procedures. These steps, standards, and proce-

dures relate basically to programming, staff, and environ-

ment and mandate an “individual plan of care, develop-

ment and services” for each resident, prepared by an

interdisciplinary professional staff after comprehensive

testing and evaluation, Consent Judgment at 5; at least

six hours of programmed activity per week day, “individu-

ally designed and structured to increase the resident's

physical, social, emotional or intellectual growth and

development,” each program including education, recrea-

tion, physical therapy, and speech pathology and audiol-

ogy services,* Appendix A at i; regulation of potentia!

6 Many of these retarded individuals have serious physical han-

dicaps. including blindness or deafness and inability to walk.

talk. care for themselves. or request care from others

1504

eee

9a

Appendix A

abuse su as restraints, labor. aversive techniques, behav-

ior modification, research, and medication, Appendix A,

Sections N, P, and Q; specific ratios of attendants, super-

visors, and clinical staff to residents, depending upon the

condition of the resident, the type of building, and the

time of day, id. Section C; and living facilities that will

afford the residents “privacy, dignity, comfort and sanita-

tion.”’ Id. Section B(1).

But beyond the guidelines and requirements for the

operation of the institution. Appendix A in Section V(9)

provides: “The primary goa! of Willowbrook and of the

Department shall be to ready each resident, with due

regard for his or her own disabilities and with full appre-

ciation for his or her own capabilities for development,

for life in the community at large.” Moreover, Appendix

A specifically calls for the deinstitutionalization of the

residents of Willowbrook and their placement in more

normal and less restrictive living situations in the commu-

nity. It is thus provided that “[w]ithin six years from the

date of this judgment, Willowbrook shall be reduced to an

institution of 250 or fewer beds.” Jd. Section V(1).

OPERATIONAL STRUCTURE OF WILLOWBROOK

The Consent Judgment established an elaborate organi-

zational structure, said to be unique in the country, for

the purpose of ensuring that the defendants complied

with the Consent Judgment; the structure specifically

reflected the undesirability of requiring court intervention

on every issue relating to the enforcement of the judg-

ment, even though the court retained jurisdiction for the

7 It is significant that Willowbrook was so overcrowded and

undermaintained that many of its toilet facilities were inoper-

able.

1505

10a

Appendix A

purposes of construing, implementing, enforcing. or con-

sidering motions to amend the Consent Judgment.

The first and most important body established under

the Consent Judgment is the Willowbrook Review Panel

(the Review Panel). Approximately one-half of the provi-

sions of the final judgment itself. as opposed to Appendix

A, relate to the composition, duties, and operation of the

Review Panel. The Review Panel consists of seven per-

sons, three chosen by the plaintiffs and approved by the

court, two chosen by the defendants and approved by the

court, and two recognized experts in the field of mental

retardation, one of whom is experienced in the manage-

ment and operation of public institutions for the mentally

retarded and the other in the establishment and operation

of community facilities and care and placement of men-

tally retarded persons in them,’ chosen by agreement of

the parties and approved by the court or appointed by

the court from the parties’ nominations in the absence of

agreement. Broad responsibility for monitoring compliance

with the terms of Appendix A is delegated to the Review

Panel. It is to have a staff; and the Review Panel mem-

bers and the staff are to have monthly compensation plus

reimbursement for “reasonable out of pocket expenses in-

x The Review Panel members are Dr. James D. Clements. Direc-

tor of the Georgia Retardation Center (Atlanta. Georgia) and

member of the President's Committee on Mental Retardation.

Chairman: Murray B. Schneps. New York City attorney and

father of a named plaintiff. Vice Chairman. Dr. William L. Bit.

ner. III. president of a bank in Glens Falls. New York. and for-

mer Associate Commissioner. New York State Department of

Education, James Forde. Deputy Administrator, San Tnego Coun

ty (California) Health Care Agency and former official in the

New York State Department of Mental Hygiene: Linda L. Glenn.

Assistant Commissioner for Mental Retardation Services, Massa-

chusetts Department of Mental Health: Michael S. Lottman

Director of the Education Law Center, Inc. (Newark and Phila-

Set ne Dae — Interim Director, Plymouth (Michigan)

enter for Human velopment, and A i ini

Michigan Department of be Health. or ee

1506

lla

Appendix A

curred in performing the duties of the Review Panel.”

Consent Judgment at 6, appropriate office space, clerical

staff, and other support services and equipment. The Con-

sent Judgment requires the responsible officials and

department heads or supervisors at Willowbrook to sub-

mit written reports to the Director of Willowbrook and to

the Review Panel showing in detail the progress toward

implementation of the judgment within the building unit

or department supervised. The Review Panel staff is peri-

odically to compile written reports showing the degree of

progress. The Review Pane! is allowed access to all infor-

mation and buildings. as well as to all employees and

members of the class; and interference with the Review

Panel is punishable as contempt.

It is important to note that the Review Panel is re-

quired, by majority vote, periodically to make “written

recommendations to defendants of steps deemed necessary

to achieve or maintain compliance with the provisions of

this judgment,” including recommendations as to time-

tables as well as substantive recommendations: Jd. at 8.

The Review Panel is also to recommend resolution of dis-

agreements concerning the interpretation or application of

the steps. standards. and procedures in Appendix A. It is

provided that “all parties to this judgment shall be bound

by and shall implement the recommendations of the

Review Panel” unless within fifteen days a party objects

in writing to the recommendations and serves the objec-

tions upon other parties to the litigation. It is further

provided that upon receipt of written objections the

Review Pane! may apply to the court for an order imple-

menting the recommendations to which objection has been

taken. Indeed, the very recommendation here involved is

one that the Review Panel made, to which the state offi-

cials objected, and for the implementation of which the

1507

l2a

Appendix A

Review Panel applied to the court for an order allowing it

to proceed.

Thus it can be seen that the parties knowingly and

intentionally delegated to a panel of chosen experts the

power to make the initial determination on important

matters involving the meaning and interpretation of the

Consent Judgment and Appendix A and more particularly

the power to apply for enforcement of such recommenda-

tions.” The record indicates that the Review Panel has

made twenty-two recommendations since its inception.

Acting upon a request of the Review Panel, the district

court issued one order particularly construing the recom-

mendatory provisions of the Consent Judgment even as it

also ordered the implementation of certain substantive

Review Panel recommendations regarding the removal of

140 persons from educational programming, the extension

of psychiatric services, the development of a medical serv-

ices plan, and the inclusion as class members of those

nonresident individuals already placed in the community

as of the commencement of the litigation. This order,

issued by Judge Bartels, provided that

9s Appendix A gives the Review Panel serious other sibil)

ties and duties: Section [4) requires Review Panel eae

in the establishment of procedural mechanisms for appeal by a

resident, parent. or guardian who disagrees with a resident's

individual development plan: Section W(3), approval of hearing

pesos for transfers from Willowbrook to another seahiann:

tion E(2). review and approval of a staff orientation and

training program; Sections Si2) and S(4), nomination of the

members of the Professional and Consumer Advisory Boards

which under Sections S{1) and S(3) are Periodically to submit

written reports to the Review Panel: Section W(5). evaluation of

and recommendations concerning the appropriateness of usin

one particular state facility as a residence for class anita

and Section V(6), preparation of and recommendation for imple-

mentation by defendants of a detailed. comprehensive the ee

nity placement plan” to meet the needs of class members for

= yap wes residential settings. Appellees ad-

is court ew

bells Poy at the Review Panel has fulfilled all of these

1508

13a

Appendix A

the formal recommendations of the Review Panel. ex-

cept on issues dealing with points of law only, shall

be deemed prima facie proper and correct, and the

party objecting to all or any part of a formal recom-

mendation must, simultaneously with such objection,

demand in writing a hearing before the Court, at

which such objecting party shall have the burden of

coming forward and showing that such formal recom-

mendation is improper.

Neu York State Association of Retarded Children, Inc. t.

Carey, No. 72 Civ. 356 (E.D.N.Y. Feb. 8, 1977). If the

objector meets the burden of coming forward, the Review

Panel has the burden of establishing by a preponderance

of the evidence the correctness and propriety of the rec-

ommendation.

The Consent Judgment, as elaborated on in Appendix

A. also sets up a Consumer Advisory Board (CAB) and a

Professional Advisory Board (PAB). The CAB, the staff of

which is the subject of this appeal, is intended to provide

input from the perspective of the residents and their fam-

ilies, persons not professionally involved in the operation

of retardation programs. It consists of seven members

including “parents or relatives of residents, community

leaders. and residents or former residents.”'® Consent

Judgment at 23. The CAB participates in the develop-

ment of Willowbrook’s philosophy, goals, and long-range

10. The CAB presently consists of Elliot Aronin, Chairman. a cer-

tified public accountant who is a past president of the New York

State Association of Retarded Children: Jerome Isaacs. a busi-

ness executive and father of a named plaintiff; Anthony Pinto. a

retired fire captain and president of the Benevolent Society, the

parents’ group at Willowbrook: Ida Rios, a teacher and parent of

a named plaintiff; Hugh O'Donnell. a retired court official and a

member of the board of the Benevolent Society, and Richard

Surpin. codirector of a community organizing and planning pro)-

ect. At the time of this appeal, the CAB was one member short.

1509

l4a

Appendix A

plans; evaluates allegations of dehumanizing practices or

other violations of individual or legal rights of the resi-

dents; and designates a member of the committee that

passes upon requests to conduct aversive conditioning,

behavioral research, or experimentation. The CAB's most

important function is to act in loco parentis on behalf of

residents whose interests are not actively represented by

a parent, relative, legal guardian, or committee. These

residents, known as “noncorrespondents,” have no one to

protect their interests or to represent them in connection

with the various steps. standards, and procedures under

Appendix A, especially the creation of an_ individual

developmental plan and community placement. The CAB

or its designee thus acts as the noncorrespondent's parent

or relative. There are approximately six or seven hundred

noncorrespondents who now reside in all parts of the

state, and it is in order to carry out these in loco paren-

tis duties that the CAB requested the additional staff

assistance that is the subject of this appeal.

The PAB is also a source of outside input to the state

officials operating Willowbrook, but it consists obviously

of people who are “eminent professionals in relevant

fields." Appendix A, Section S(4). Their duties include

advising on professional programs and plans, budget re-

quests and objectives, and investigation of alleged dehu-

manizing practices and violations of human or legal!

rights. The PAB must approve exceptions to certain of

the required standards, steps, and procedures and like the

CAB must approve aversive conditioning, behavioral

research, and experimentation.

It is interesting to note that of the Review Panel's

twenty-two forma! recommendations and interpretations

since it was fully constituted in July 1975, four have

involved closing or keeping closed certain institutions as.

1510

15a

Appendix A

for example, the closing within about two years of the

Keener facility on Ward’s Isiand, which housed exclusively

members of the plaintiff class; the closing within fifteen

days of the Hillcrest Unit of the Wassaic Developmental

Center, which housed eight class members; and the imme-

diate closing of the Gouvernour Unit of Manhattan Devel-

opmental Center, which housed about 160 class members.

The Review Panel also recommended prohibiting the use

of the Bronx Developmental! Center as a residential center

for members of the Willowbrook class. Other Review

Panel recommendations included the hiring of a medical

director at Willowbrook. the provision of educational pro-

gramming for 140 residents, and the like, all significant

matters pertaining to the operation of Willowbrook. Based

upon fourteen major audits by the Review Panel of the

degree of compliance by defendants, the plaintiffs-appel-

lees filed a motion for civil contempt against three state

officials on November 9, 1976; the parties settled the

motion by a stipulation, which recited that there was non-

compliance and a need for increased efforts to achieve

compliance, and an order which prescribed new duties for

defendants such as reviewing all municipal and state

building codes and contracting with a private agency to

take over five Willowbrook buildings.

The foregoing discussion is necessary to appreciate the

limited nature of the order made below. It requires the

hiring of five staff persons for the CAB (four profes-

sionals, i.e., nonclerical, and one secretary), two of whom

have already been retained as “consultants” but are actu-

ally working fulltime for the CAB.

District Court FInpDINGs

At the hearing before the district court and in a sup-

porting affidavit, Kathleen McKaig, the CAB’s coor-

1511

l6a

Appendix A

dinator, éstimated at 699 the number of nom srrespond«n.:

class members for whom the CAB must act in loco paren:

tis as above described, including 377 at Willowbrook. 46

at other facilities in Staten Island, 178 in other boroughs,

and 98 outside the New York City area. plus 300 other

class members whose parents are either out of the state

or the country. At the time of the hearing the members

of the CAB included one member of the plaintiff class,

three parents of class members, two community leaders.

and an individual who had just been appointed. With the

exception of one member who is retired and thus able to

spend forty hours a week at Willowbrook, the members

are able to devote only five to fifteen hours per week to

CAB activities because they all have full-time jobs. The

CAB meets as a body once a month, and its subcommit-

tees also meet on a monthly basis. But according to the

district court’s findings, “as a practical matter the seven

members of the Board... cannot be expected to carry out

the functions entrusted to them without considerable

assistance.” New York State Association for Retarded

Children, Inc. v. Carey, No. 72 Civ. 356 (E.D.N.Y. Mar.

23, 1978), at 12. The coordinator reviews reports of abuse

and neglect at Willowbrook, but there is no one to do the

same for class members at facilities in other boroughs or

upstate. Twelve to fourteen hours of staff time is

required for each transfer to community placement,

amounting to about ninety hours per month for a total of

eighty-six transfers so far proposed; but as the number of

community transfers increases this figure will increase.

An additional 180 hours per month of staff time is spent

following up on the community placement of noncorre-

spondent class members, the goal being to visit each non-

correspondent once every three months and to spend two

to four hours per visit with the resident unless there are

2

1512

“ £8 PEELS ILE

a ES

17a

Appendix A

serious problems requiring more time. The staff of three

is presently available to visit about twenty residents per

month each.

Moreover, on a daily basis the CAB should be attend-

ing an average of four individual development plan con-

ferences, but as presently constituted the CAB is actually

able to attend only a third of the conferences and has not

been able to serve at all the class members residing up-

state; even at Willowbrook itself the CAB is able to at-

tend only half of the conferences, and there was evidence

that preparation for the conferences was not as thorough

as it should be. Two typical case reviews are appended

hereto as an appendix to indicate the nature and scope of

each person's problems. Judge Bartels found that “[t]he

basic responsibilities of the additional staff would be to

permit the CAB to carry out its in loco parentis responsi-

bilities with respect to all of the roughly 700 noncorre-

spondent class members.” Id. at 6.

The Department of Mental Hygiene rejected the Review

Panel’s recommendation for additional CAB staff alleging

that the CAB had an inflated view of its functions under

the Consent Judgement, that the staff would duplicate

the efforts of other supervisory bodies, that the Consent

Judgment did not require the State to provide staff for

the CAB, that the Review Panel had no authority to rec-

ommend staff because the Consent Judgement did not

provide for CAB staff, and that court enforcement of the

recommendation would go beyond the scope of the State's

consent to the judgement and require expenditures from

the state treasury in violation of the Eleventh Amend-

ment.

Judge Bartels found that the argument that the CAB

had an exaggerated view of its general .unctions had

“very little persuasive force” because the CAB’s jurisdic-

1513

18a

Appendix A

tion is “quite extensive.” /d. at 7-8. He particularly cited

the power of the CAB to evaluate dehumanizing practices

and violations of civil rights which necessarily included

the power to investigate as well as to coordinate. In any

case he found undisputed the testimony of the CAB coor-

dinator that the CAB and its present staff are not com-

pletely performing even the precisely specified in loco

parentis functions. He found in this connection that the

CAB is trying to do what the court “would require of it

under any circumstances,” id. at 9, involving a thorough

job knowing the individual noncorrespondent and his or

her developmental plan. The State argued that the CAB

had failed in its “‘mission...to organize local parent

advocacy groups,” id., such as the one that has worked

well at the Rome Development Center; but Judge Bartels

found that there was no such mission under the terms of

the Consent Judgment, although the CAB’s authority to

develop and rely on volunteer groups could be inferred.

Under Appendix A, in fact, Willowbrook itself was to ex-

pand the volunteer programs, and the state officials were

to apply for federal funding for a foster grandparent pro-

gram. Although the CAB would appropriately assist in

developing these programs, Judge Bartels noted that the

CAB’s lack of reliance on volunteer groups was not a

ground for denying additional staff. As to the State's

complaint that the CAB members overrely on staff, doing

very little of the investigation themselves and delegating

the responsibility for attending individual case conferences

instead of themselves attending. the judge found that the

members, all but one of whom are employed fulltime,

could not be expected to carry out the CAB functions

without considerable assistance. The judge also rejected

the state officials’ argument that the various other legisla-

tive bodies that have supervisory duties over the condi-

1514

ie taut cthe: &

19a

Appendix A

tions at Willowbrook would make any expansion of the

CAB staff unnecessary; because none of these bodies has

the specific in loco parentis responsibilities of the CAB

and none of them is responsible to the court, Judge Bar-

tels found that there was no duplication of effort.

The judge further found that the cost of compliance by

the State would be approximately $130,000 per year. This

figure is about one-third of one percent of Willowbrook’s

annual budget of $41 million. although still not a com-

pletely insignificant amount when viewed in light of New

York State's overall budgetary problems of recent years.

A recitation of the above findings, none of which the

State argues is not supported by sufficient evidence, leads

us to a review of the judge's legal rulings. Judge Bartels

ruled on alternative grounds, limiting himself on the first

to construction of the Consent Judgment as written under

the “four corners” rule enunciated in United States v.

Armour & Co., 402 U.S. 673, 681-82 (1971); see also

United States v. ITT Continental Baking Co., 420 USS.

223, 238 (1975). The judge thus held that the provision

of the Consent Judgment requiring the State to pay the

CAB’s “reasonable expenses” included reasonable expenses

necessary for carrying out the CAB functions and that

because he found the staff necessary to the CAB's carry-

ing out its functions “reasonable expenses” included staff

expenses. He held alternatively, however, that the

evidence adduced would justify a modification of. the Con-

sent Judgment if appellees had properly brought a motion

to modify; the judge relied upon a court’s inherent power

under System Federation No. 91, Railway Employes’

Department v. Wright, 364 U.S. 642 (1961), and United

States v. Swift & Co., 286 U.S. 106 (1932), to modify the

Consent Judgment because of the court’s continued super-

vision over the implementation of the judgment. See also

1515

20a

Appendix A

King-Seeley Thermos Co. v. Aladdin Industries, Inc., 418

F.2d 31 (2d Cir. 1969).

The judge also rejected the defense that the Eleventh

Amendment barred the relief that the plaintiffs sought.

He ordered and enjoined the state officials to take all

action necessary to secure implementation of the Review

Panel’s recommendation, within their lawful authority and

subject to any legislative approval that may be required,

and to take all steps necessary to ensure the full and

timely financing of the recommendation including, if nec-

essary, submission of appropriate budget requests to the

legislature.

DISCUSSION

The State first argues that the court misinterpreted the

Consent Judgment by treating expenses for staff as “rea-

sonable expenses” of the CAB for which reimbursement is

required. The plaintiffs-appellees do not seriously dispute

the State's argument in this respect, and we incline to

accept it: the reasonable expenses contemplated are the

expenses of the individual members in carrying our their

own functions and do not involve the hiring of staff. Nor

do we reach the trial court's alternative holding that (1)

the Review Panel's recommendation can be treated as a

motion to amend the Consent Judgment and (2) the find-

ings at the hearing would satisfy the requirement of a

hearing on such modification. The Consent Judgment

spells out the procedure for modifying the judgment

itself, and that method was not followed here.

Rather, we rely on an interpretation of the Consent

Judgment itself but one that is broader than the State's.

This Consent Judgment was, as we have attempted to

explicate above, complex and ongoing in nature. The judg-

ment contemplated changing conditions. It was inevitable

1516

ROMEO diate

IY a Sa aS

2la

Appendix A

that situations would arise that the terms of the judg-

ment, however specific, did not address and that imple-

mentation of the judgment would require further refine-

ment of the terms. But the parties did not contemplate

frequent resort to the court to interpret the meaning of

and ensure compliance with the Consent Judgment.

Instead, they created continually evolving enforcement

and supervisory mechanisms, including the Review Panel,

the CAB, and the PAB, in order to take such changed

conditions into account and to assure respect for the con-

stitutional rights of the Willowbrook residents and non-

correspondents. The elaborate system established to meet

evolving conditions and to resolve differences, together

with the supervisory and recommendatory role of the

Review Panel, requires a degree of flexibility in enforce-

ment of the judgment that does not result in a modifica-

tion; the flexibility is within “the four corners” rule of

Armour, supra, because the Consent Judgment itself pro-

vides for it. The Consent Judgment is no mere contract,

even though reference to contract principles may be use-

ful. United States v. Swift & Co., supra, at 115. We may

look at “the circumstances surrounding the order and the

context in which the parties were operating,” United

States v. ITT Continental Baking Co., supra, 420 U.S. at

243, without in any way departing from the “four cor-

ners” rule of Armour, see id. at 238.

The “steps, standards and procedures” language in the

Consent Judgment specifically permits the Review Panel

to recommend additional steps where necessary to achieve

or maintain compliance with the provisions of the Con-

sent Judgment. The authority to make recommendations

appears to us to be a well-constructed mechanism for flex-

ible yet orderly and effective implementation and dispute

resolution. These recommendations are especially appropri-

1517

: 22a

Appendix A

ate where, as here, at the time that the parties signed

the judgment it would have been extremely difficult to

know the scope of the CAB’s duties, the number of resi-

dents on whose behalf they would have to act, and how

effective the CAB would be. Under the express findings

of the district court, the CAB in order to function accord-

ing to the terms of the Consent Judgment must have this

limited amount of staff. We believe that the Consent

Judgment authorized the Review Panel's recommendation

as an exercise of the prospective, independent, and

creative powers that the judgment accorded to the Review

Panel. Even if the provision requiring the State to pay

the reasonable expenses of the CAB members does not in-

clude expenses for staff, the provision authorizing the

Review Panel to recommend steps to implement the judg-

ment does include such expenses; and we can thus derive

our construction of the Consent Judgment as requiring

the payment of these expenses strictly from within the

four corners of the judgment itself.

It is interesting that the parties have also construed

the Consent Judgment to permit wide-ranging Review

Panel recommendations and flexibility in the interpreta-

tion of the means of compliance. Not only has the Review

Panel made formal recommendations and interpretations,

but it has made a number of informal ones also; yet the

threat of the contempt power has been used in aid of

enforcement hardly at all. The advice, intervention, and

assistance of the Review Panel has been of utmost impor-

tance in the ongoing attempt to implement the Consent

Judgment. Indeed, in terms of the CAB itself, as its

responsibilities were more precisely defined and expanded

by experience, the State agreed (albeit under protest) to

pay the salaries for a coordinator and a secretary; it later

agreed to allow the CAB to hire two consultants. See also

1518

b Le DR UERRBI IEE UB cat hee 6 Sm

as a a ea

23a

Appendix A

United States v. Atlantic Refining Co., 360 U.S. 19, 22

(1959); Sanchez v. Maher, 560 F.2d 1105 (2d Cir. 1977).

We agree with the district court that the absence of an

explicit reference to “staff” in the provisions of the Con-

sent Judgment relating to the CAB is not fatal to the

recommendation: rather the absence indicates. as Judge

Bartels found, that the parties did not have a “fully com-

prehensive conception of how to deal with the problems

the CAB would face.”'' The evolutionary and creative

powers of the Review Pane! agreed upon the Consent

Judgment. coupled with the affirmative acts of the par-

ties defining the role of the CAB that made staffing nec-

essary, mandate enforcement of the Review Panel’s recom-

mendation for CAB staff. In short, we treat the organiza-

tional structure established under the Consent Judg-

ment—a Review Panel with the power to recommend

interpretations of the judgment and methods of imple-

menting it—as analogous to the powers granted. say, to

Congress under Section 5 of the Fourteenth Amendment

to effectuate the matters of substance and procedure con-

tained in the first four sections of that amendment. Fitz-

patrick v. Bitzer, 427 U.S. 445, 452-56 (1976). That is to

say, there is a self-executing mechanism for flexibility

built into the Consent Judgment, the operation of which,

as the court below found. was clearly reasonable in this

case and is entitled to be upheld. Judge Bartels’ order

enforcing the recommendations of the Review Panel was,

in this light, certainly not clearly erroneous. The fact that

we reached the same result through somewhat different

reasoning does not preclude us from affirming his deci-

11 The State's contention that the Consent Judgment obligates

the members of the CAB to carry out their guardianship respon-

sibilities personally is rebutted by Section W(7) of Appendix A,

which recognizes that the CAB may discharge its duties as in

loco parentis through “designees.”

1519

24a

Appendix A

sion. Helvering v. Gowran, 302 U.S. 238, 245 (1937);

Lum Wan v. Esperdy, 321 F2d 123, 125-26 (2d Cir.

1963). Under Judge Bartels’ earlier interpretive order,

when the Review Panel so recommended, it established a

prima facie case of such need. Without indicating express-

ly that the State had failed to produce sufficient evidence

to meet that prima facie case, the district court never-

theless made it quite clear that the Review Panel had sus-

tained its burden of persuasion in showing that the CAB

needed the staff in order to implement the judgment and

secure the constitutional rights of hundreds of retarded

persons.

The State’s second objection on appeal is that the dis-

trict court’s order is vague and unenforceable and lacks

compliance with Fed. R. Civ. P. 65(d). See also Pasadena

City Board of Education v. Spangler, 427 US. 424

(1976). The state officials are concerned, they allege,

because the district court has provided no guidance as to

what specific actions they are to take after their request

to the legislature for appropriations and whether, if the

request is unsuccessful, what further action would be suf-

ficient. But at the same time the State points out that a

number of options appear to be available to comply with

the order, including requests in the supplemental budget

under New York Constitution Article 7, Sections 3 and 4.

Moreover, the State claims that their are only three

potential sources of funds available that it may use to

fund CAB staff: the budgets of the other twenty-one

developmental centers in the state, funds already

designated for programs for the developmentally disabled,

or funds from the executive management budget.

We do not think the order lacks specificity. It compels

appellants to assure approval and funding for four full-

time professional staff positions and one full-time secre-

1520

25a

Appendix A

tarial position for the CAB. The order leaves it to the

state officials themselves to determine the exact means by

which to implement the order, appropriately wary of

superfing staeofficials’ in the proper performance of

their governmental functions. Newman v. Alabama, 559

F.2d 283 (5th Cir. 1977), revd on other grounds sub

nom. Alabama v. Pugh, 98 S.Ct. 3144 (1978).* In our

view, Judge Bartels properly deferred to the state offi-

cials and legislature in the hope that they will meet their

constitutional obligations by whatever methods necessary

and desirable. The order compels the state officials to use

their best efforts to accomplish the injunctive relief

granted. See Brown v. Board of Education, 349 U.S. 294

(1955); Wyatt v. Stickney, 344 F. Supp. 373 (N.D. Ala.

1972), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305

(5th Cir. 1974).

Of course, as the district court warned, the defendants

may not obtain compliance through the sacrifice of other

programs and services for the mentally retarded; but it

does not appear conclusively from this record that all

moneys in the New York State Office of Mental Retarda-

tion and Developmental Disabilities’ budget are devoted to

the provision of direct services and care for clients, nor

does it necessarily appear that reallocating $130,000 from

program or facility budgets would inevitably decrease the

level or quality of services. The Governor, moreover, who

is a defendant, has substantial flexibility in the use of

transfer of money from the state treasury and is appar-

ently not limited under New York State Finance Law § 51

12 Unlike the “Human Rights Committee” that the Fifth Circuit

dissolved in Neuman v. Alabama, 559 F.2d 283 (5th Cir. 1977),

revd on other grounds sub nom. Alabama v. Pugh, 98 S.Ct

3144 (1978), the Review Panel was not a creature of the district

court, rather, the parties in settlement of pending litigation

agreed to its creation, duties, powers, and responsibilities.

1521

26a

Appendix A

in reallocating funds. Finally. the operative language of

the court order is essentially a verbatim recitation of por-

tions of the Consent Judgment itself, which the State has

to date construed as providing sufficient guidance with

respect to implementation and which indeed is language

that the State itself helped to draft. ;

The State’s argument based on the Eleventh Amend-

ment as applied in Edelman v. Jordan, 415 US. 651

(1974), to bar an award of monetary damages directly out

of the state treasury for the purpose of compensating

past wrongs is not applicable to this case. Here involved

is purely prospective relief applied to meet the require-

ments of constitutional law. The order challenged here

requires no more qualitatively, and a good deal less quan-

titatively, than the order in Milliken v. Bradley, 433 U.S.

267 (1977), see id. at 289-90. See also O. Fiss, The Civil

Rights Injunction (1978) (passim). To bar a federal court

decree of this nature because of its incidental fiscal conse-

quences would immunize state officers from the duty of

prospective adherence to federal statutory and constitu-

tional requirements. Cf. Hutto v. Finney, 98 S.Ct. 2565

(1978) (award of attorney's fees not prohibited by

Eleventh Amendment although payable out of a state

departmental budget). See also, e.g., Todaro v. Ward,

565 F.2d 48 (2d Cir. 1977). Moreover, the consent judg-

ment itself would constitute a waiver of Eleventh Amend-

ment immunity if we are correct, as we believe that we

are, in our construction of it as itself requiring the State

to provide CAB staff in accordance with a Review Panel

recommendation for staff as necessary to implement the

Consent Judgment.

The judgment accordingly is affirmed.

>

1522

27a

Appendix A

APPENDIX

Included in the record on appeal are 35 individual

habilitation plans and 27 case reviews for residents of the

Rome Developmental Center. We attach as an appendix to

this opinion two case reviews as typical of those in the

record and, we suspect, of the residents at Willowbrook.

FOR'! 67 MED 2-75 “

State of New York—Dept of Mental Hygiene

INTER-DISCIPLINARY NOTES

Name of Facility: Rome Developmental Center

Name of Resident: Richard 225

Consecutive No.: 020 621

D.O.B.: 12/16/61 D.9O.A.: 8/17/65

December 14, 1977 CASE REVIEW

PRESENT: Dr. Wilkie, Mrs. Evans, Mr. Beatty, Mrs. Bara-

nowski, Mr. Diorio, Mrs. Curtacci, Mrs. DiAcunto, Mrs.

Frick, Mrs. Duell, Mrs. Shortell, and Mr. Premo

ABSENT: Mr. Shortell, Mr. [illegible], and Mrs. Smith

Medical: Current Medications: Phenobarbital and Pheny-

toin for seizures—no seizures recorded since 9/30/77. Hal-

dol—behavior problems—occasionally gets upset and self-

abusive according to TA I

Illnesses or medical disorders in past 6 months: 10/77—

Possible TM perforation, 19/77—traumatic lesions in ear

canal, 9/30/77—LOMAC, 9/30/77—status epilepticus,

9/77—behavior problem, 8/77—superficial scratches on left

sole, 8/77—laceration

Recommendations: Continue present medications

1523

28a

Appendix A

Living Unit: Richard enjoys attention and is usually well

behaved. However he does at times become very self

abusive. He crawls around the dayroom, appearing to ex-

plore his environment. During this exploration he does

climb in and out of chairs, thereby, exhibiting some

motor refinement. He appears to be a happy child within

his own world and occasionally interacting with other

children.

Jon Premo, TA

Social Service: Richard is a 15, almost 16, year old boy

who was admitted to RDC in 1965 at the age of 3

years—8 months from. Washington County. Legal status is

Non-objecting. Mental Retardation Diagnosis is 314.60:

Profound Retardation, Associated with Prematurity.

Dickie’s mother, Mrs. Patricia , continues to live in

Massachusetts. She does not visit her son or correspond

with Building 22. Mrs. has been made aware of

the possibility of an Interstate transfer as well as the

possibility of re-settlement at Wilton and has not respond-

ed to related correspondence. The latter move would ap-

pear to no longer appear to be a possibility due to the

fact that no relatives remain in the Wilton area (see Jan.

1976 correspondence in record from Dale E. Harro, M.D.,

Deputy Director of the Wilton facility). Worker has the

opportunity to visit Dickie frequently. He is a legally

blind boy who is unable to walk although he gets around

quite well by crawling. He has no speech but will “parrot”

a few words and/or sounds. Dickie has a minimal aware-

ness of his environment and he exhibits very little inter-

est in people, objects or occurances. He continues to have

occasional periods when he is distressed and self-abusive.

This behavior is never intentionally directed at others. He

1524

PA era ee a we

29a

Appendix A

is included in all Living Unit Program and Activities and

is receiving SSI Benefits.

Discharge Plan: Richard requires medical care and nabili-

tative programming to a degree not presently available in

the community. Worker feels that, given these cir-

cumstances, Richard is appropriately placed on Living

Unit 225.

(Sgd.) Patsy Evans, Social Worker

Recreation: I have stopped seeing Richard on an individ-

ual basis. He is still involved in Unit recreation activities

and recreation bus rides. Will continue Richard’s present

programs.

Charlene Baranowski, Rec. Therapist

Food Service: Diet—soft; height: 150 cm; weight: 37 Kg.

Supplement—Poly-Vi-Flor; anti-constipation #2

- Richard is a dependent eater. His eating skills have not

improved a great deal. His height and weight have chang-

ed very little. There was a loss of .2 Kg. since the last

review. There are no recommendations.

Margaret Curtacci, Dietician

School: Richard's play and social behaviors usually in-

volve balls or noise making activities. He throws a ball

(but not aimed at anyone because he is blind). He also en-

joys playing with toys that he can hit on the flcor or

shelves to make noise. Richard “bounces” a ball by drop-

ping it and catching it. Richard likes tactile stimulation

such as sand play. Richard can remove all his clothing

and can pull up his underpants and slacks from the knee.

Richard has a small imitative vocabulary but words usual-

ly must be shouted at him and he shouts them back in a

1525

30a

Appendix A

definite rhythm and pitch. Richard will respond to other

children only when they touch him. He responds well to

adults but does not seek attention. He is non-ambulatory,

but gets around well by sliding or crawling. He occa-

sionally throws tantrums during which he throws things

and is self-abusive.

Recommendations: Richard should attend school in Bldg.

54 as soon as there is an opening for him.

Karen Shortell, Teacher IV

Recommendations: Continue present medications. Con-

tinue present programs.

FORM 67 MED 2-75

State of New York—Dept of Mental Hygiene

INTER-DISCIPLINARY NOTES

Name of Facility: Rome Developmental Center

Name of Resident: Diane 221

Consecutive No.: 019 525

D.O.B.: 12/7/57 D.O.A.: 5/28/62

December 14, 1977 CASE KEVIEN

PRESENT: Dr. Wilkie, Mrs. Frick, Mrs. Evans, Mrs.

DiAcunto, Mrs. Curtacci, Mr. Beatty, Mrs. Comito, Mr.

Nadeau, Mr. Dhalle, Mr. Diorio, Mrs. McGregor

ABSENT: Mr. Shortell, Mr. Gifford, and Mrs. Smith

Medical: Current Medications: Phenobarbital and Pheny-

toin for seizures—last recorded seizure 11/16/77.

Ascorbic Acid for gingivitis—reportedly gums. still

bleed, Mellaril for behavior—behavior good sometimes and

not good other times, Chloral Hydrate—sleeping—LPN has

not heard recent complaints about her not sleeping.

1526

3la

Appendix A

Illnesses or medical disorders in past 6 months: 8/77—

hair loss, 7/77—gingival hypertrophy and inflammation,

Edema of cheeks, etio?

Recommendations: Continue present medications. Increase

H.S. medication—Chloral Hydrate.

Living Unit: Diane is a profoundly retarded 20-year-old

female who is legally blind and non-ambulatory. She is in-

cluded in all activities with minimal awareness. Diane’s

feeding program has improved through the use of tongue

walking, used to eliminate tongue thrust. She is in a

range of motion program daily with O.T/P.T. and Unit

staff and has shown little improvement but maintained

present status.

Diane frequently appears to be very sleepy during the

day and when awake, she often makes noises with loud

outbursts.

Helen Smith. 7A

Social Service: Diane is a 20 year old female who was

admitted to RDC in 1962 at the age o: 4 years—6

months from Herkimer County. Legal status is Non-object-

ing. Mental Retardation Diagnosis is 314.40: Profound

Retardation, Associated with Diseases and Conditions Due

to Unknown Prenatal Influence, Not further specified.

Diane’s mother, Mrs. George continues to live in

Old Forge, N.Y. She does not visit her daughter or main-

tain contact with Building 22. Worker has the opportuni-

ty to visit Diane on a regular basis. She is a multiply

handicapped girl who was declared legally blind in 1975.

Diane remains very inactive exhibiting very little aware-

ness of her surroundings. She does not respond to her

name or individual attention nor is there any peer inter-

action. Drowsiness during the day, with wakeful nights,

1527

32a

Appendix A

continues to be a problem. Diane is :ncluded in all Living

Unit Programs and Activities. She continues to receive

Social Security Benefits as well as V.A. Benefits.

Discharge Plan: Diane’ requires medical care and

habilitative programming to a degree not presently avail-

able in the community. Worker feels that, given these cir-

cumstances, Diane is appropriately placed on Living Unit

221.

(Sgd.) Patsy Evans, Social Worker

Recreation: Diane participates in bus and van_ rides,

music and mat therapy, picnics, recreation activities on

the ward and recreation room.

Goals—To get response to vestibular stimulation.

Method—use of glider, swing, air flow mattress. Increase

awareness of tactile stimulation: Method—play with tex-

tured objects such as snow, water play, shaving cream

and play doe.

Ralph Nadeau, Sr. Recreation Therapist

Food Service: Diet—fine ground; height—137 cm.; weight

—34 Kg. Supplement—Poly-Vi-Flor, anti-constipation pro-

gram #2.

Diane is a dependent eater. The tongue walking tech-

nique is used in feeding her with a zylon spoon. She has

gained 2 Kg. since her last review 6/21/77. There are no

recommendations.

Margaret Curtacci, Dietician

School: Progress is minimal. Diane is extremely lethargic

and unresponsive to program intervention.

Recommendations: Continue in progvam.

Paul Dhalle, Teacher

1528

33a

Appendix A

O.T/PT.: Diane was evaluated on 12/9/77 for reflex,

gross and fine motor development.

Reflex—Diane exhibits a negative supporting reaction in

standing at the brain stem level and body righting acting

on the body and labyrinthine righting acting on the head

at the midbrain level. She has no protective extension in

sitting but has cortical equilibrium reactions in prone,

supine, and sitting.

Gross Motor—Basic posture and alignment—Diane has a

slight curvature of the spine to the left in the lumbar

area. She sits with both legs externally rotated and

flexed. Diane is able to raise her head from a prone and

supine position (7 mos.) She has head control in sitting.

She can roll from prune to supine toward the right (5

mos.) She can maintain a prone on elbows position with

stability in bilateral weight bearing, but cannot assume

this position. She can get from lying to sitting (10 mos.),

sitting to lying and can maintain a tailor and ring sitting

position. She can sit steadily for ten minutes, can lean

forward and recovers her balance (9 mos.).

Fine Motor—Diane is blind—has no blink response, focus-

ing, etc. No grasp reflex is present in the hands; hands

are predominantly open (3 mos.). She does not hold any-

thing in her hands.

Diane is positioned in her wheelchair for meals and

other activities. In the feeding program we are working

to decrease her tongue thrust and get lip closure. She is

in the range of motion program.

Judith Belile, O.7-/P.T.

Recommendations: Increase H.S. medication (Chloral

Hydrate). Continue other medications. Continue present

programs. .

1529

34a

Appendix B - Opinion United States

District Court, Eastern

District of New York

Re CEIVED

BY MAIL

UNITED STATES DISTRICT COURT MAR 2 7 1978

EASTERN DISTRICT OF NEW YORK EPARTMENT OF LAW

NEW YORK STATE ASSOCIATION FOR ~~ ~~ nw YORK CITY OFFICE

RETARDED CHILDREN, INC., et al. :

and a ty

PATRICIA PARISI, et al.,

Plaintiffs, 72-C-356

-against- : 72-C=-357

HUGH L. CAREY, individually and as ;

Governor of the State of New York, f

et al.,

Defendants.

UNITED STATES OF AMERICA,

Amicus Curiae :

e ee @ @ @ @& S28 8 ese Bees es 8» 8s « & x

Appearances:

FOR DEFENDANTS

Counsel's Office

Department of Mental Hygiene

44 Holland Avenue

Albany, N. Y. 11229

PAUL STAVIS, ESQ.

MARGARET CORCORAN, ESQ,

Of Counsel

FOR THE WILLOWBROOK REVIEW PANEL

MICHAEL LOTTMAN, ESQ,

MURRAY B. SCHNEPS, ESQ.

Willowbrook Review Panel

Two World Trade Center, Room 6325

New York, N. Y. 10047

FOR PLAINTIFFS:

JACK BERNSTEIN, ESQ. ae

Protection & Advocacy System for

Dev’ lopmental Disabilities, Inc.

175 Fifth Avenue, Suite 1308

New York, N. Y. 10010

35a

Appendix B

KALMAN E, FINKEL, ESQ.

Legal Aid Peay 7

Civil Appeals & Law Reform Unit

11 Park Place

New York, N. Y. 10007

CAROL KELLERMAN, ESQ.

Of Counsel

NEW YORK CIVIL LIBERTIES UNION

84 Fifth Avenue

New York, N. Y. 10011 /

CHRISTOPHER A, HANSEN, ESQ.

Of Counsel

BARTELS, District Judge

This is a motion by the Department of Mental

Hygiene sigma to reject a formal recommendation by

the Willowbrook Review Panel issued pursuant to 4 8(b) of the

Consent Judgment of April 30, 1975, that the Department approve

and fund four professional staff positions and “yg secretarial

position for the Consumer Advisory Board ‘aia The recom-

mendation is supported by all of the plaintiffs and by the

United States as amicus curiae. A hearing on the Department's

objections to the recommendation was held on January 27,

February 1 and February 8, 1978, at which four witnesses for

the Department and three witnesses for the Review Panel

testified.

I

A brief preliminary description of the Willowbrook

Review Panel and the Professional Advisory Board (PAB), the

other bodics established by the Consent Judement, is neces-

36a

Appendix B

sary to place the instant dispute and the role of the CAB

into context. The Willowbrook Review Panel is a seven member

body with prime responsibility for investigating and report-

ing on the degree of the defendants’ compliance with the

Consent Judgment and for making recommendations, formal and

informal, to the defendants as to the implementation of the

Judgment. The PAB also consists of seven members, and pro-

vides a consultant resou™:» on technical matters to the

various entities invo: > sa the action. It has the respon-

sibility of investigating ‘“ehumanizing practices and viola-

tions of civil rights and is to review research proposals

and projects, advise the director of Willowbrook Develop-

mental Center, and submit quarterly reports.

The focus of the disputc, the CAB, is a seven

member panel made up of parents or relatives of residents,

community leaders and residents and former residents of

Willowbrook. Its responsibilities include evaluation of

alleged dehumanizing practices and/or violations of individ-

ual or legal rights. It shall participate in the developuent

of Willowbrook's philosophy, goals and lony-range plans,

advise the Director, submit quarterly reports, and, along

with the Director, is to prepure a list of the civil and

legal rights of the residents, ‘The CAB is also to act in

37a

Appendix B

4

3/

loco parentis for residents such as orphans whose interests

are not actively represented by a parent or guardian ("non-

correspondent residents") with respect to certain provisions

of the Consent Judgment. In carrying out its responsibilities,

the CAB has access to living and program areas and, in

cooperation with the defendants, to resident care records.

The CAB is to coordinate its efforts with both visitor and

parent organizations.

In January 1976 the CAB adopted a statement of its

rights, duties and responsibilities prepared for it by

counsel for one of the plaintiffs herein, This statement

included a list of staff and supply requirements deemed

necessary to carry out such functions and was forwarded to

the Commissioner of Mental Hygiene. Shortly thereafter, the

Department, although pointing out that the Consent Judgment

made little or no provision for the Department to provide

the services requested, informed the CAB that it would con-

sider its request and make appropriate recommendations to

the Division of the Budget, In May 1976 Commissioner of

Mental Hygiene Coughlin stated that the state was prepared

to provide a full-time coordinator, consultants, office

space and a secretary to the CAB. The CAB accordingly hired

38a

Appendix B

a coordinator, Ms. Kathleen McKaig, a secretury, and two

"who are actually working as full-time staff

“consultants,'

to the CAB rather than as occasional consultants.

Ms. McKaig testified that one of the CAB members

spent about 40 hours per weck monitoring conditions of life

at Willowbrook and working with the administration there to

. correct harmful conditions. Ms. McKaig also spent about 4

hours per week reviewing abuse and neglect reports at

Willowbrook, and she indicated that a similar time commitment

could well be made at state facilities in other boroughs as

well aes where a number of Willowbrook class members

reside. | Some 12 to 14 hours of staff time, she continued,

must be spent for each transfer to a community placement,

amounting to about 90 hours per month for a total of 86 non-

correspondent class members to date. She anticipated that

this figure would increase as the rate of community transfers

increased. Ms. McKaig also indicated that about 180 hours

per month of staff time was spent following up on the commu-

nity placements of non-correspondent class members. The goal

was to visit each non-correspondent once every three months,

spending 2-4 hours per visit with the resident, unless there

were transitional problems, where significantly more time had

39a

Appendix B 6

to be devoted to the resident. The staff of three is presently

able to visit about 20 residents per month each.

On a daily basis, Ms. McKaig indicated, the CAB

should be attending an average of four individual development

plan i saledalies © Nee in actuality the CAB is able to attend

only a third of the conferences and has been able to do

nothing for the class members residing upstate. According to

Ms. McKaig, even at Willowbrook itself only half of the con-

ferences could be attended, and preparation for the confer-

ences was not as thorough as it should be. The basic

responsibilities of the additional staff would be to permit

the CAB to carry out its in loco parentis responsibilities

with respect to all of the roughly 700 non-correspondent class

members.

Il

The Department of Mental Hygiene rejected the

Review Panel's recommendation that the additional staff for

the CAB be approved and funded, giving five reasons: (1) the

CAB's request for additional staff reflected an inflated view

of its functions under the Consent Judgment; (2) additional

staff would be unnecessary and would result in duplication

of efforts by the CAB, the PAB and the Review Panel; (3) the

40a

Appendix B

7

Consent Judgment does not require the state to provide staff-

ing for the CAB; (4) the Review Panel had no authority to make‘

the recommendation because there is no provision for staff in

the Consent Judgment; and (5) court enforcement of the recom-

mendation would go beyond the scope of the state's consent to

the decree and cause a drain on the state treasury in viola-

tion of the Eleventh Amendment. These objections will be

reviewed below, although not necessarily in the above order.

Scope of CAB Functions

The Department's claim that the CAB has an inflated

view of its functions is based in large part on the statements

in Ms. McKaig's affidavit that she spends 75-80% of her time

making sure people in the institution are kept alive and

protected from harm, and helping people to muke successful

transitions out of the institutions and into community place-

ment. The Department also introduced into evidence a few

letters which the CAB had written on behalf of two depart-

mental employees and one by Dr. Clements, chairman of the

Review Panel, which suggest that the CAB was involving itself

in matters falling outside its specific parameters.

Arguments that the CAB has an cxagserated view of

its general functions have very little persuasive force, for

4la

Appendix B

the jurisdiction of the CAB is quite extensive, as Steps,

Standards and Procedures S.1 and S.5 indicate. In particular,

the court believes that the power of the CAB to "evaluate"

dehumanizing practices and violations of civil rights neces-

sarily includes the power to investigate such practices where

necessary, although it will not normally be the function of

the CAB to undertake such investigations in the first in-

stance. Of course, in the exercise of its functions, the CAB

must coordinate its activities with the other judicially and

legislatively established bodies which have jurisdiction over

various aspects of the Willowbrook class and in general exer-

cise a reasonable discretion in the use of its necessarily

¢

limited resources)

In any case, Ms. McKaig's testimony that the CAB

and its present staff are not completely performing even the

precisely specified in loco parentis functions is undisputed.

However, the Department argues that this is not caused by a

shortage of staff but rather results from (1) the CAB's efforts

to perform too many tasks under these provisions; (2) the

practice of the CAB to have its staff, and not its members,

do most of the LLeldwork; and (3) the failure of the CAB to

have adequately developed and utilized parent and voluntecr

groups in the cxereise o£ these functions.

42a

Appendix B

The evidence does not persuade us that the CAB is

guilty of attempting too much in the exercise of its in loco

sapearie functions. Instead it appears to the court that the

CAB is doing what the court would require of it under any

circumstances--a thorough job knowing the individual non-

correspondent resident involved and his developmental plan or,

as the case may be, becoming familiar with the facility to

which he is to be transferred. We also do not believe it is

improper for the Board to devote additional time to non-

correspondents who are having difficulties in adapting to the

transfer, if such attention is deemed necessary and an appro-

priate utilization of its resources,

Parent and Volunteer Groups

The Department focussed a good deal of attention on

its claim that the CAB has failed in its "mission . . . to

organize local parent advocacy groups" whose members would be

able to assist in the representation of non-correspondent

members of the class. The testimony showed that such a parent

group is working well upstate at the Rome Developmental Center,

with volunteer parent advocates appearing at all important

conferences on behalf of non-correspondent residents there.

However, under the terms of the Consent Judgment, the CAB has

rT core eI

43a

Appendix B 10

no explicit mandate to develop and rely on parent or volunteer

groups, although authority to do so can be inferred from its

duty to coordinate activities with such groups. In fact,

under Steps, Standards and Procedures S.6 and S.7, it is

incumbent on Willowbrook to expand its own volunteer program

and on the defendants to apply for federal funding for a

foster daneicisiecais program for Willowbrook which, to this

date, is not yet fully developed. While it would be appro-

priate for the CAB to assist in development of parent and

volunteer organizations, the CAB cannot be denied additional

staffing on the ground that it has failed to rely on such

groups.

Moreover, the testimony revealed that efforts have

been made to establish relations between the CAB and other

parent groups but that instead of being of assistance to the

CAB, these parent groups more often needed and relied on

assistance from the CAB. One of the problems with using

parental groups is that parents understandably are more in-

terested in concentrating on the problems of their own child.

It does appear, however, that the Benevolent Socicty for

Retarded Children is very active at Willowbrook and that

perhaps more efforts should be made by the CAB to establish

working relations with this organization. The court recog-

44a

Appendix B

11

nizes the accomplishments of the Parent Advocates at Rome

Developmental Center, but the court does not believe that

the conditions at Rome are comparable to the conditions

affecting the non-correspondent Willowbrook class members,

who are scattered in facilities throughout New York City and

in a number of institutions aide We further note from

Ms. McKaig's testimony that otherwise valuable services or

clinical social work students had *o be rejected because she

was unable to provide supervision.

Overreliance on Staff by the CAB

Not only does the CAB underutilize community and

parent resources in carrying out its functions, the Department

complains, it also overrelies on its staff, especially in

carrying out its in loco parentis functions, which results in

inefficiency, overprofessionalization and a loss of the point

of view of the concerned layman the CAB is supposed to |

represent. The evidence shows that except for Mr. Pinto |

members of the CAB actually do very little of the investiga: |

tion, attendance at individual case conferences, etc., and :

delegates this work almost entirely to Ms. McKaig and the

other staff members, More staff would not be needed, the

Department argues, if the members thomselves did more of the

work,

we wees haments > Ama

75S IP IOP I TS NET Bet Tes

.

45a

Appendix B 12

While the court is of the opinion that all members

of the Board should have as much personal contact with the

Willowbrook class members as possible, it recognizes that as

a practical matter the seven members of the Board, six of

whom have full-time jobs, cannot be expected to carry out the

functions entrusted to them without considerable assistance,

The magnitude of the problem makes this self-evident. When

and if parent and other voluntary groups are able to take over

some of the in loco parentis and other duties of the CAB, the

necessity for additional staff may be proportionally reduced.

In the meantime, the obligations must still be fulfilled, and

if the resources of volunteer organizations are not available,

which the court finds to be the case now, recourse must of

necessity be had to professional staff.

Duplication of Efforts

The Department also points out that in addition to the

supervisory bodies established by the consent decree, there

are a number of legislative bodies which supervise the quality

of care of Willowbrook residents: the Mental Health Informa-

tions Service (N.Y. Ment. Hyg. L. § 29.09); the Board of

Visitors (N.Y. Ment. Hyg. L. § 7.19); the Commission on the

Quality of Care (N.Y. Ment. Hyg. L. § 45.07); the Division of

46a

Appendix B 13

Post Institution Service of the Department of Social Services

(N.Y. Soc. Serv. L. § 62); and the Protection and Advocacy

System for Developmental Disabilities (42 U.S.C. § 6012).

This plethora of supervisory bodies, the Department argues,

makes an expansion of the CAB's staff unnecessary. lowever,

none of these bodies has the specific in loco parentis re-

sponsibilities of the CAB which demand so much of the CAB's

time. Moreover, none of these bodies are responsible to the

court, nor is their efficacy known to the court. Insofar as

other functions of the CAB overlap with those of the Boards

of Visitors or the Mental Health Information Service, which

existed prior to the signing of the Consent Judgment, and

with those of the Review Panel and the PAB, the overlap was —

obviously intended by the parties. Indeed, sone overlap,

especially in the area of investigation and remedy of resident

abuse, is apparent in the legislative structure itself, Of

course, redundancy of effort--of which there appears to be

little, if any--should be avoided by coordination, as dis-

cussed above. However, if the Department sincerely feels

that the activities of the CAB are superfluous, it is re-

mitted to a frontal attack upon the problem by moving for a

modification of the Consent Judgment rather than an Indirect

attack upon the CAB's functions. We note in passing that the

47a

Appendix B 1.

newly created State Commission on Quality of Care for the

Mentally Disabled will, effective April 1, 1978, have the

power to provide staff and other necessary assistance upon

request to Boards of Visitors, the state body most similar

to the CAB, N.Y. Ment. Hyg. L. § 45.02(e)(2).

Ill

With this background in mind we turn now to those |

provisions of the Consent Judgment most closely related to

funding of the CAB and to the law to be applied in construing

or modifying consent decrees.

Paragraph W.8 of the Steps, Standards and Procedures

is the only provision which deals with funding for the CAB.

It reads: "Members of the . . . Consumer Advisory [Board]

shall be reimbursed by defendants for their reasonable

expenses . . . . and, where appropriate, members of the Con-

sumer Advisory Board shall receive appropriate compensation."

This paragraph may be contrasted with 44% 7(b) & (c) of the

Consent Judgment with respect to the Review Panel which

explicitly provide not only for reimbursement and compensa-

tion for Panel members but also for office space, equipment

and supplies, and for the hiring of staff.

In evaluating the effect of the above provisions,

we recognize that a consent decree is a hybrid legal creature,

48a

Appendix B 15

treated as a contract for purposes of interpretation and as a

judicial act for the purpose of modification. Johnson

Products Co, v, F,T.C,, 549 F.2d 35 (7th Cir, 1977). In view

of the differences between interpretation and modification of

consent decrees, the nature of this proceeding must be made

clear. The court is not passing on a motion by one of the

parties under ¥ 9 of the Consent Judgment and Fed.R.Civ.P.

60(b) for a modification of the Consent Judgment. Instead,

it is passing on a formal recommendation of the Willowbrook

Review Panel and, since the Panel does not have power to

recommend modifications of the Consent Judgment, tie court

must limit itself to construction of the Consent Judgment

as BPR

In construing a consent decree, we are sulded by the

"four corners" rule enunciated in United States v. Armour &

Co., 402 U.S. 673, 681-82 (1971) as follows:

Consent decrees are entered into by partics

to a case after careful negotiation has produced

agreement on their precise terms. -*The. parties

waive their right to litigate the issues involved

in the case and thus save themselves the time,

expense, and inevitable risk of litigation.

Naturally, the agreement reached normally embodies

a compromise; in exchange for the saving, of cost

and elimination of risk, the parties cach give up

something they might have won had they proceeded

with the litigation, Thus the decree itself cannot

Va vebete & Oe An ee ee

49a

Appendix B

be said to have a purpose; rather the parties

have purposes, generally opposed to each other,

and the resultant decree embodies as much of

those opposing purposes as the respective

parties have the bargaining power and skill

to achieve. For these reasons, the scope of

a consent decree must be discerned within its

four corners, and not by reference to what

might satisfy the purposes of one of the parties

to it. Because the defendant has, by the decree,

waived his right to litigate the issues raised, a

right guaranteed to him by the Due Process Clause,

the conditions upon which he has given that waiver

must be respected, and the instrument must be con-

strued as it is written, and not as it might have

been written had the plaintiff established his

factual claims and legal theories in RAE Agaeioe.

[Footnote omitted, ]

(1959).

The above principles were explicated in United

States v. ITT Continental Baking Co., 420 U. S. 223, 238

(1975), where the Court stated:

Since a consent decree or order is to be

construed for enforcement purposes basically as

a contract, reliance upon certain aids to con-

struction is proper, as with any other contract,

Such aids include the circumstances surrounding

the formation of the consent order, any technical

meaning words used may have had to the parties,

and any other documents expressly incorporated in

the decree, Such reliance does not in any way

depart from the ‘four corners' rule of Armour.

[Footnote omitted, ] as

16

Accord, United States v. Atlantic Refining Co., 360 U. S. 19

As we have pointed out above, the functions of the

CAB are clear, cspecially with respect to its in loco

parentis capacity. It goes without saying that these func-

50a

Appendix B 7

tions must be performed fully, for all the non-correspondents,

and not simply for less than half of the non-correspondent

class members. In passing on this application, the court has

always kept in mind the plight of these members of the

Willowbrook class, who are mentally retarded, usually multiply

handicapped, and who by definition have no parent, friend or

relative to visit them in the institution or facility to

whose care they have been ecu While there is nothing

in the Consent Judgment with respect to how these functions

are to be performed, it is obvious that they must be performed

by the CAB members acting alone, the CAB members with the

asistance of parent groups, or the CAB members with the

assistance of staff. The evidence established that neither

of the first two alternatives are practicable, Resorting to

the principles of contract interpretation as the above cases

require, we recognize that a construction which renders the

performance of a contract possible will be adopted rather

than one which renders its performance’ imp»ssible. Ludwig

Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969);

4 S. Williston on Contracts § 620, at 748 (3d ed. 1961). We

believe that the reasonable expenses which the Department is

required to pay to members of the CAB must be interpreted to

include reasonable expenses necessary for carrying out its

5la

Appendix B 18

functions, If the staff requested by the CAB is necessary to

carry out its functions--which the court finds to be the case

now--then reasonable expenses must include staff expense’. We

do not believe the absence of reference to "staff" in

Steps, Standards & Procedures S. 8 to be fatal to this con-

struction, cf, Bruce v. Lumbermens Mutual Casualty Co., 222

F.2d 642 (4th Cir. 1955); its absence indicates rather that

the parties did not have a fully comprehensive — of

how to deal with the problems the CAB would —

Even if this construction of the Consent Judgment

were perceived as stepping over the bounds of construction and

entering into the realm of modification, the evidence adduced

at the hearing would probably justify such a modification if a

motion to modify had been properly brought. This follows from

the fact that this court has inherent power, in addition to the

explicit reservation of jurisdiction in 4 9 of the Consent

slide a to modify the Judgment because of the’ necessity

of continuing judicial supervision over its implementation.

System Federation No. 91, Ry. Employes’ Dep't, AFL-CIO v.

Wright, 364 U.S. 642 (1961); United States v. Swift & Co., 286

U.S. 106 (1932). In Swift, where defendant sought a relaxa-

tion of an antitrust consent decree, Justice Cardozo stated

me

52a

-Appendix B

19

that "[t]he inquiry for us is whether the changes are so

important that dangers, once substantial, have become

nenanneet to a shadow. .. . Nothing less than a clear

showing of grievous wrong evoked by new and unforeseen condi-

tions should lead us to change what was decreed after years

of litigation with the consent of all concerned." 286 U. S.

at 119. Ten years later, the Court stated that the test of

whether the district court had abused its discretion in

modifying an antitrust consent decree in favor of the govern-

ment was whether the change served to effectuate or to thwart

the basic purposes of the consent decree. Chrysler Corp. v,

United States, 316 U.S. 556 (1942). More recently, in United

States v. United Shoe Machinery Corp., 391 U. S. 244 (1968),

the Court held that the strict language of Swift had to be

read in context and that an antitrust decrce entered after

litigation could be changed in favor of the government on an

appropriate showing but could not be changed in favor of a

defendant if the purposes of the litigaticn incorporated

into the decree had not beon fully achieved.

We recognize that the above cases concern the

modification of antitrust decrees, but the same principles

have been liberally interpreted and applied in other areas

53a

Appendix B 20

of the law. For instance, in King-Seeley Thermos Co. v.

Aladdin Industries, Inc., 418 F.2d 31 (2d Cir. 1969), a

trademark case, the Second Circuit held there was power to

modify a decree entered after litigation even in the absence

of changed circumstances, although this power should be

exercised sparingly in the interest of firmness and stability.

In particular, the court stated that "the power of equity has

repeatedly been recognized as iikeudiion also to cases where

a better appreciation of the facts in light of experience

indicates that the decree is not properly adapted to accom:

plishing its purposes." Id. at 35. This holding was recently

reaffirmed in Chance v. Bd. of Examiners, 561 F.2d 1079 (2d

Cir. 1977), a civil rights case where a edniaius decree was

negotiated after entry of a preliminary injunction, as was

the case here. The court in Chance added that some sort of

hearing would generally be required to make so vital a deter-

mination. If we were to modify the Consent Judgment in this

case, the hearing heretofore held would satisfy this require-

ment.

IV

Concerning the Department's defense of the Eleventh

Amendment, the court is not barred from ordering the relief

54a

Appendix B 21

requested on the ground that to do so would impose a drain on

the state treasury beyond that which the defendants consented

to. At the outset, it is not clear that the power of this

court to proceed with this action in the face of the Eleventh

Amendment is grounded solely on consent, see N.Y.S.A.R.C.,

Inc. v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y¥. 1973);

Edelman v. Jordan, 415 U.S. 651 (1974); Stebbins v. Weaver,

396 F.Supp. 104 (W.D. Wis. 1975), aff'd, 527 F.2d 939 (7th

Cir. 1976), cert. denied, 429 U.S. 1041 (1977), crupon con-

sent at all. Compare Ford Motor Co. v. Dep't of Treasury,

323 U.S. 459 (1945), with Sosna v. Iowa, 419 U. S. 393, 396

n.2 (1975), and Niagara Falls Power Co. v, White, 292 N.Y.

472 (1944). Insofar as the power of this court depends on a

waiver of the Eleventh Amendment immunity by consent to the

decree, the scope of the consent is not limited by the de-

fendants' unilateral determination as to what the decree

means; it is the function of the court to construe the scope

of the decree to which the defendants consented. Consequently

the Department's defense of immunity under the Eleventh Amend-

ment must be rejected,

V

In conclusion, we hold that the recommendation of

the Review Panel must be sustnined and enforced as follows:

55a

Appendix B 22

Within their lawful authority, including the State

constitution and applicable State laws, and subject to any

legislative approval that may be required, the defendants

are hereby ordered and enjoined to take all action necessary

to secure implementation of the Review Panel recommendation

that four full-time professional staff positions and one full-

time secretarial position for the CAB be approved and funded.

Defendants shall take all steps necessary to ensure the full

and timely financing of this recommendation, including, if

necessary, submission of appropriate biistgat requests to the

12/

legislature.

Dated: Brooklyn, New York

March 23, 1978.

fey

} c

Bi A') cm JZ

“__-~ _United'States District Judge

a?

56a 57a

Appenaix B Appendix B (ii)

(i)

4/ The following are CAB figures representing the distribu-

tion of non-correspondent clasc tmembers:

FOOTNOTES

Staten Island

The authority of the court to pass on objections to iiracme “epoarig "a

Review Panel recommendations is set out in 44 8(e), rine r ag 36

8(f) & 9 of the Consent Judgment and in the Order of —e 423

Feb. 7, 1977, construing 4 8 of the Consent Judgment.

Manhattan

Sheridan 15

The cost to the Department of compliance is estimated a

at approximately $130,000 per year. Community 20

87

The in loco parentis functions of the CAB consist of: Brook’yn Cc k 20

(a) assisting the interdisciplinary team in aes eae “an 4

preparing and evaluating the non-correspondent en rn ies 21

resident's development plan on at least an annual eamorernd “GS

basis, and in reviewing such plans on a quarterly basis; Queens

(b) appealing if necessary the content of the pee AR (2) 7

development plan; "

Howard Park 4

(c) being informed on at least a quarterly basis ne a

of the non-correspondent resident's progress, includ- eesti

ing access to the resident's records (unless objected omens here Hill 3

R !

to by the resident); Community ye

(d) receiving notices whenever restraints are Other |

used on a non-correspondent resident; ~~ Wassaic 11

(e) granting or withholding permission to use oo 4

aversive conditioning or to engage in behavorial re- | O.D. Heck 8

search or modification. In this respect the CAB also Ma ‘as ste Ch 8.

has an ex-officio seat on a committee which must also | “chia atime 42

pass upon requests for such treatment of any resident; | West Seneca 2

1

(f) consulting with the interdisciplinary team eS 98

in its development of programming for the non-correspon-

dent resident's normalization, which includes placement

in the community; and 5/ See note 2, supra.

| |

(2) appearing at conferences on behalf of non- | 6/ See note 4, supra,

correspondent residents with respect to transfers,

requested or proposed, to other institutions or to | 7/ See note 1, supra.

‘

the community.

~~

=

~s

58a

Appendix B (iii)

Sec note 2 and accompanying text, supra.

This court is determined that at the end of the

Willowbrook class' long journey through state institu-

tions the class members shall attain the normalization

which is promised to them in the Consent Judgment.

According to counsel for the plaintiffs, the parties had

no idea of the number of non-correspondent class members

at the time the Consent Judgment was signed,

Paragraph 9 of the Consent Judgment provides in part:

Jurisdiction is retained by the Court until further

order, for the purpose of enabling any party to apply

at any time for an order pursuant to Rule 60 of the

Federal Rules of Civil Procedure, or for such further

orders as may be necessary or appropriate for the con.

struction of, implementation of, or enforcement of

compliance with this judgment or any of the provis:ons

thereof.

The Department pointed out at the hearing that the CAB

budget was presently a part of the Willowbrook Develop-

mental Center budget, and stated that to grant additional

staff to the CAB would be to rob Peter to pay Paul. We

therefore stress the fact that any reduction in the level

of services provided the class members in complying with

this order will be wholly unacceptable to the court.

See 9 W.4 of the Steps, Standards & Procedures.