# Petition — Coughlin v. New York State Ass'n for Retarded Children, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0264%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 836 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0264%3A1. Public record. Not legal advice.