Petition — Pennhurst State School and Hospital v. Halderman

79-1404 |

in the Supreme Court of the

Ynjted States

October Term, 1979

No.

PENNHURST STATE SCHOOL AND

HOSPITAL, et al.,

Petitioners

v.

TERRI LEE HALDERMAN, et al.,

PENNSYLVANIA ASSOCIATION FOR

RETARDED CITIZENS, et al.

and

UNITED STATES OF AMERICA,

Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ALLEN C. WARSHAW

Deputy Attorney General

Chief, Civil Litigation

ROBERT B. HOFFMAN

Deputy Attorney General

NORMAN J. WATKINS

Special Deputy Attorney

General

EDWARD G. BIESTER, JR.

Attorney General

Attorneys for Petitioners

Dept. of Justice

16th Fl., Strawberry Square

Harrisburg, PA 17120

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 882-0401

TABLE OF CONTENTS

PAGE

Petition for a Writ of Certiorari to the United

States Court of Appeals for the Third Circuit 1

i Se 5 as Se kA eee keke eee 2

Shy, Ce ae as whe ws 2 ee laa eee 2

III. Statement of Questions Presented .......... 3

IV. Statutory and Regulatory Provisions Involved +

¥:. ) SUE OF Te CN os ons vine ans seash c8 5

VI. Reasons for Granting the Writ:

A. This Case Presents Questions of Great

PU COUN 36's 6 va a 9

B. The Decision of the Court of Appeals Is

Sn ee eee Pee ee hr 11

1. The Court below has erroneously held

that the Developmentally Disabled Act

provides respondents with a right to treat-

ment in the least restrictive environment 11

2. The Court below erroneously and unneces-

sarily found that state law provides a right

eT I ME ra eng a) Sa ae 15

3. The order of the Court below exceeds the

proper scope of federal judicial authority 16

C. The Opinion of the Court Below Is in Di-

rect Conflict With Decisions of the Fourth

and Ninth Circuits Regarding the Authority

of the United States To Seek Judicial En-

forcement of the Rights of Mentally Re-

ree Pet. ok 0 2 SA i ee eee 18

CN ri ons vw ae Na ee eee 20

TABLE OF CITATIONS

CASES:

Addington v. Texas, 99 S.Ct. 1804 (1979) ...... 17

Beal v. Broderick, 431 U.S. 933 (1977) ........ 5

on wo epee eae Wo. 4506 (9977) .............; 13

Bell v. Wolfish, 99 S.Ct. 1861 (1979) .......... 9

Commonwealth Edison Co. v. Allis-Chalmers Mfg.

ca, oem wa 904 (7th Cir. 1965) ........ 19

Doran v. Salem Inn, 422 U.S. 922 (1975) ...... 17

Estelle v. Justice, 426 U.S. 925 (1976) ......... 10, 19

In Re Estelle, 516 F.2d 480 (5th Cir. 1975) cert.

Mh, ED EDPO) ook ke ceo 18

Katzenbach v. Morgan, 384 U.S. 641 (1966) .... 11

LaBuy v. Howes Leather Co., 352 U.S. 249 (1957) 17

Murdock v. City of Memphis, 20 Wall. 590 (1875) 15

Oregon v. Mitchell, 400 U.S. 112 (1970) ........ 11

O’Shea v. Littleton, 414 U.S. 488 (1974) ........ 17

peusmeee ¥. 5. B., 99 S.Ct. 2493 (1979) ......... 17

Rizzo v. Goode, 423 U.S. 362 (1976) .......... 10,17

Roe w. Wade, 410 U.S. 113 (1973), .:...4...... 19

Secretary of Public Welfare v. Institutionalized Juve-

Cr SEER C2979) . 2.66 ese ese 9

Southeastern Community College v. Davis, 99 S.Ct.

RE Ee 13, 14

United States v. Mattson, 600 F.2d 1295 (9th Cir.

SSE Fann bess ccvescens 18

United States v. Solomon, 419 F. Supp. 358 (D.

Md. 1976) aff’d 563 F.2d 1121 (4th Cir.

a, es once waco 00 11, 18,19

CONSTITUTIONAL PROVISIONS:

MN OR a ae ree a! aod caer 19

Fourteenth Amendment ............... 0.0000. 5,6, 11

FEDERAL STATUTES AND REGULATIONS:

Developmentally Disabled Assistance Act and Bill

of Rights Act, 42 U.S.C. §6000, et seq. (1977) 6,9

Oe er I eas eae a ata ole Gh eae 12,14

ae rae Pe IN Dak w 50 hack A ue 12

ee Ce I nln o-w 2h a%e bed ee Vs Be 12

Peg oR | ee ee eee ey 11

0 Re EOD hs coo utes ees 11

OE Rida Wee wikis Secs ce bb sas 12

42 U.S.C. §6063 (b) (5) (A) (22) .......... 12

42 USL: FO0GS OH) COC) icc caves 12

Education For All Handicapped Children Act of

1975, 20 U.S.C. §1401, et seq. (1976) ..... 13

Fed. R. Civ. P.:

eae ee CE BP no 55 es se dws 5

BE Wd rae cae ck Bs pice ek eared eee 17

Rehabilitation Act of 1973, Section 504, 29 U.S.C.

eA RUE if ca wa hk Dee ea ke Ne eek 6, 12, 15

Social Security Act, Title XIX, 42 U.S.C. §1936,

a aa ON ae eae ce ae ee «hla 10, 13

CE res ee ass 4 86 eK eee Re es 14

OS eee. ha 5edak o> tse edanea ees ess 14

OS Saas eo as A 0 oe oe be oe ees 14

STATE STATUTES:

Pennsylvania Mental Health and Mental Retarda-

tion Act, Pa. Stat. Ann. tit. 50 §4101 et seq.

SNS ence owen ae ee ek bok eee 5

Pa, Stat. Am. tt. SO S420) oo cc eles 15, 16

cp ea ae 16

ili

OTHER AUTHORITIES:

Conf. Rep. No. 94-473, 94th Cong., 1st Sess. 43,

reprinted in 2 U.S. Code Cong. & Ad. News,

ee PE So as Ree cose Cee etes

House Rep. No. 94-58, 94th Cong. ist Sess. 10, re-

printed in 2 U.S. Code Cong. & Ad. News,

ROPES Soa tan oye we eee as

iv

12

Petition 1

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Helen O’Bannon, Secretary of the Department of

Public Welfare, Commonwealth of Pennsylvania, et. al.,

hereby petition that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for

the Third Circuit entered in this case on December 13,

1979.

2 Opinions Below and Jurisdiction

I. OPINIONS OF THE COURTS BELOW

The majority and dissenting opinions of the Court

of Appeals, reproduced at 89a to 196a, are not yet re-

ported.

The opinion and order of the District Court is re-

ported at 446 F. Supp. 1295 (E.D. Pa. 1978) and is

reproduced at 6a to 75a.

II. JURISDICTION

The judgment of the Court of Appeals was entered

on December 13, 1979. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1254(1).

Statement of Questions Presented 3

Ill. STATEMENT OF QUESTIONS PRESENTED

1. Does The Developmentally Disabled Assistance

and Bill of Rights Act, 42 U.S.C. §6000 ef seq., grant

residents of a State institution for the mentally retarded

an enforceable right to treatment in the least restrictive

setting when that institution receives no funds under that

Act and when the State receives only minimal funding?

2. Does The Developmentally Disabled Assistance

and Bill of Rights Act require a State to create and fund

community-based mental retardation treatment facilities

irrespective of cost, available resources, or State policy?

3. Does the United States have standing or au-

thority to intervene in this case?

4. Does the District Court’s exercise of detailed

control over the decree of deinstitutionalization and its

subsequent delegation of authority to a special master ex-

ceed the proper scope of federal judicial authority?

5. Did the Court of Appeals properly conclude that

State law grants the mentally retarded a right to treatment,

particularly when that holding is insufficient to impose

liability?

+ Statutory and Regulatory Provisions

Involved

IV. STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The following statutory and regulatory provisions

relevant to this petition are set forth verbatim in the Ap-

pendix hereto:

Developmentally Disabled Assistance and Bill of

Rights Act, 42 U.S.C. §6000, et seg. (1977):

Sections 6000, 6010-11, 6061-63 ...... 198a

45 C.F.R. §§1385.1, 1386.42-.43 ...... 217a

Rule 53, Fed. R. Civ. P., 220a.

Penna. Mental Health and Mental Retardation Act of

1966, Pa. Stat. Ann. Tit. 50 §4101, et seg. (Purdon):

Sections 201 (1), 509 (1 and 5) ....... 225a

Statement of the Case 5

V. STATEMENT OF THE CASE

On February 15, 1966, Terri Lee Halderman was

voluntarily admitted by her parents to Pennhurst Center,

one of approximately ten state-run institutions providing

care for the mentally retarded in Pennsylvania. Dissat-

isfied with the services and facilities at Pennhurst, her

mother commenced this action in May 1974 against a host

of state officials from the Secretary of Welfare to Penn-

hurst staff.

On behalf of all other Pennhurst residents,’ she

sought damages and broad equitable relief aimed at up-

grading the conditions at Pennhurst, claiming that those

conditions violated her constitutional “right to treatment”’.

She also alleged violations of the Equal Protection Clause

of the Fourteenth Amendment, and the Pennsylvania Men-

tal Health and Mental Retardation Act of 1966. Pa. Stat.

Ann. tit. 50 §4101 et seg. (Purdon).

Subsequently, the plaintiff was joined in her ef-

forts by the United States,” Pennsylvania Association of

1 A class was certified pursuant to Rule 23(b) (1 and 2), Fed.

R. Civ. P., to include:

All persons who as of May 30, 1974 and at any time sub-

sequent, have been or may become residents of Pennhurst State

School and Hospital (14a).

2Defendants unsuccessfully opposed the United States’ in-

tervention. They also unsuccessfully sought mandamus or prohibi-

tion against the district court judge to prohibit the continued

participation of the United States in the litigation. Beal v.

Broderick, 431 U.S. 933 (1977).

6 Statement of the Case

Retarded Citizens, and other retarded residents of Penn-

hurst. Intervenors raised similar, if not identical, claims.

In early 1976, plaintiffs amended their complaints

and their prayer for relief. Adding claims under the

Developmental Disabilities Assistance and Bill of Rights

Act, 42 U.S.C. §6000 et seg. (hereinafter ‘‘Develop-

mental Disabilities Act”), and Section 504 of the Reha-

bilitation Act of 1973, 29 U.S.C. §794,* plaintiffs con-

tended that Pennsylvania was required to close its institu-

tions such as Pennhurst and provide services to the re-

tarded in small-scale, community-based facilities* instead.

Following thirty-two days of trial, the District Court

issued its opinion and order.’ The court did not address

plaintiffs’ claims under the Developmental Disabilities

Act, but did grant the injunctive relief requested. The

court found that plaintiffs had a constitutional right to

be provided with education, training and care sufficient

to reach their maximum development (57a) in the least re-

strictive environment (62a). ‘“[I]nstitution[s] such as

Pennhurst”’, the court concluded, were by their very na-

ture incapable of providing adequate care (58a). Addi-

tionally, the court held that treatment at Pennhurst was

unlawful segregation under the Fourteenth Amendment

(68a) and Section 504 of the Rehabilitation Act (73a).

Section 504, the court concluded, “‘codified the constitu-

tional right to equal protection” (71a).

3 The United States, although charged with the enforcement

of these statutes, did not join other plaintiffs in these claims.

* These facilities are referred to by the Court as Community

Living Arrangements (‘‘CLAs’’). Neither plaintiff nor the Court

have ever defined the precise nature of these facilities (19la, n.5).

5 The opinion was issued December 23, 1977 and the order

March 17, 1978.

Statement of the Case 7

Implementing that decision, the court ordered sweep-

ing injunctive relief, including the closing of Pennhurst

and its replacement by “suitable community living ar-

rangements”’ and all necessary support services (79a-80a)

for all of the approximately 1,200 residents of Pennhurst

(19a). A Special Master with broad powers over the

detail of implementation was also appointed (79a).

On appeal, the Court of Appeals*® implicitly rejected

the District Court’s holding that Pennhurst was per se

illegal and/or unconstitutional. However, with three

judges dissenting, the court did find that the Develop-

mental Disabilities Act granted a right to treatment in

“the least restrictive environment” (130a-13la). In

reaching that issue, the court determined that the statute

created a private cause of action. It also found a state

statutory right to treatment and affirmed the order of the

District Court permitting the United States to intervene as

a plaintiff.

Based exclusively on its interpretation of the De-

velopmental Disabilities Act, the Court of Appeals af-

firmed the District Court in most material respects.’ Thus,

on remand, the District Court or its appointed Master

must determine the therapeutic needs of each patient at

® The case was first heard by a panel of the court in January

of 1979. That panel issued no opinion; instead, the Court sched-

uled reargument before the Court en Bane, held September 6,

1979. It also requested briefing on specified issues, including the

Developmentally Disabled Act, which had not previously been

briefed to that court or the District Court.

™The Court of Appeals affirmed the District Court except

insofar as it directed the closing of Pennhurst, barred all future

admissions to Pennhurst and required defendants to find alter-

native employment for all Pennhurst employees (161la).

8 Statement of the Case

Pennhurst. “Only where the court or the Master finds

that an improved Pennhurst is the only appropriate place

for individual patients should it be used. For all other

patients, CLAs must be provided.” (160a)

It is from this decision that the defendants, herein-

after referred to as petitioners, seek a writ of certiorari.

Reasons for Granting Writ 9

VI. REASONS FOR GRANTING THE WRIT

A. This Case Presents Questions of Great Public

Importance

The court below decided at least two novel and

important federal statutory issues. Breaking entirely new

ground, the court held that the Developmentally Disabled

Assistance and Bill of Rights Act, 42 U.S.C. §6000, ef

seq. (hereinafter ‘Developmentally Disabled Act’’), (1)

applies to programs such as Pennhurst which receive no

funds under its provisions and (2) grants mentally re-

tarded persons a right to treatment “‘in the least restrictive

environment”, which requires a state to create new, less

restrictive facilities for persons residing in state institu-

tions.

Accordingly, each state which, like Pennsylvania,

accepts the minimal funding available under the Develop-

mentally Disabled Act must, regardless of cost, available

resources, or state policy, create whatever new facilities

are necessary to provide services to the mentally retarded

in the least restrictive environment. Moreover, that hold-

ing judicially mandates one method of caring for the men-

tally retarded to the exclusion of others, seriously intrud-

ing into areas properly reserved for professional expertise

and state legislative and executive judgment. Secretary

of Public Welfare v. Institutionalized Juveniles, 99 S.Ct.

2523 (1979); Bell v. Wolfish, 99 S.Ct. 1861 (1979).

10 Reasons for Granting Writ

In 1976, there were over 150,000 mentally retarded

persons in the United States residing in institutions sim-

ilar to Pennhurst (13a-14a, n.7). The reasoning of the

court below applies with equal force to each of those per-

sons, each of those institutions, and each state of the

Union.* In short, the Court of Appeals effected a total

federal preemption in the area of services for the develop-

mentally disabled. Indeed, the decision raises grave

doubts as to many other programs in which states receive

federal funding but in which state discretion has been

long recognized. See, e.g., Title XIX of the Social Secu-

rity Act, 42 U.S.C. §1396, et seq.

In addition, instead of stating the appropriate legal

standards and enjoining the Petitioners to implement re-

lief, the District Court has maintained direct supervisory

power over the detail of implementation through appoint-

ment of a master. This raises grave questions concerning

the power and capabilities of federal courts to intervene

into the daily activities of state and local governments.

See Rizzo v. Goode, 423 U.S. 362 (1976).

Finally, the participation of the United States in this

action, affirmed by the court below, presents significant

questions regarding “‘case or controversy” requirements.

The expansion of executive authority approved in this

case has broad impact. Estelle v. Justice, 426 U.S. 925,

929 (1976) (Rehnquist j. dissenting) .

Because this case involves issues of great public

importance, this Court should grant review in this case.

8 All fifty states presently accept funds under the Act. Presi-

dent’s Budget, 1979, Developmentally Disabled Basic State For-

mula Grant. Thus, this case has a direct bearing on every public

institution in the United States serving the mentally retarded.

Reasons for Granting Writ 11

B. The Decision of the Court of Appeals Is

Erroneous

1. The court below has erroneously held that the

Developmentally Disabled Act provides Respondents with

a right to treatment in the least restrictive environment.

a. The court below held that the Developmentally

Disabled Act provides rights to mentally retarded persons

residing at Pennhurst, notwithstanding the absence of any

finding that the institution receives any funds whatsoever

under the statute. Thus, the court below found that by

accepting any funds under that Act, Pennsylvania con-

sented to comply with the statutory guidelines in each of

its many programs providing services to the develop-

mentally disabled (118a-119a) .°

The Court of Appeals overlooked, however, the ob-

vious fact that the Developmentally Disabled Act is ex-

clusively a funding statute, providing federal grants to

states electing to participate in the program. 42 U.S.C.

§6063; United States v. Solomon, 419 F. Supp. 358, 369-

70 (D. Md. 1976), aff'd 563 F.2d 1121 (4th Cir. 1977).

Accordingly, a state seeking funds under the Act must have

a plan approved by the Secretary of Health, Education and

®In dicta, the court below suggested that the Act was an

exercise of congressional power under the Fourteenth Amendment

(117a-118a, n. 20). In the absence of a decision by this Court

recognizing a constitutional right to treatment in the least re-

strictive environment, such a holding would raise serious questions

concerning the congressional power to define the parameters of

the Fourteenth Amendment. Cf. Oregon v. Mitchell, 400 U.S.

112 (1970) ; Katzenbach v. Morgan, 384 U.S. 641 (1966).

12 Reasons for Granting Writ

Welfare, 42 U.S.C. §6063(a), based upon compliance

with the conditions outlined in 42 U.S.C. §6063 (b).

By their terms, the conditions of participation apply

only to programs receiving funds under the Act. See,

e.g., 42 U.S.C. §6063 (b) (5) (A) (22). Protection of the

rights enunciated in 42 U.S.C. §6010 is limited to “all

persons . . . receiving treatment, services, or habilitation

under programs assisted under this chapter... .” 42

U.S.C. §6063(b) (6) (C). Even the basic requirement

of a habilitation or treatment plan was intended to ap-

ply only to treatment programs funded by the Act. 42

U.S.C. 6011(a). See alsc, Conf. Rep. No. 94-473, 94th

Cor, 1st Sess. 43, reprinted in 2 U.S. Code Cong. & Ad.

News, 919, 963 (1975).

Moreover, the lower court’s broad reading of the

Act ignores the practicalities of providing services to the

many thousands of developmentally disabled persons in

Pennsylvania. For example, the cost in 1976 of operating

Pennhurst alone was $27.8 million (44a), itself but a

small part of Pennsylvania’s expenditures on behalf of the

mentally retarded. In contrast, Congress authorized ap-

propriations under the Act totaling only $55 million for

the fiscal year ending September 30, 1979, 42 U.S.C.

§6061, of which Pennsylvania received approximately

$1.6 million. Surely Congress did not intend that this

minimal funding to Pennsylvania would require a total

restructuring at substantial cost of programs receiving no

funding under the Act.

In those instances when Congress has intended to

impose federal standards on all activities conducted by a

recipient of federal funding, it has done so clearly. See

e.g., Section 504 of the Rehabilitation Act of 1973, 29

Reasons for Granting Writ 13

U.S.C. §794 (1976); The Education for All Handicapped

Children Act of 1975, 20 U.S.C. §§1401, et seg. (1976).

Certainly, such an intent may not be lightly inferred. Cf.

Southeastern Community College v. Davis, 99 S.Ct. 830

(1979) .”° :

b. The Court of Appeals discerned in the Act a

legislative ‘“‘preference” for treatment in ‘“‘the least re-

strictive environment”? (97a, 141a). The court then ele-

vated that “preference” to a mandatory duty to provide

less restrictive treatment, regardless of cost of available

funds. On that basis it affirmed the District Court’s or-

der requiring the creation of community-based facilities.”

In so doing, it exceeded even the broad statutory mandate

which it had established.

Even if the Developmentally Disabled Act applies to

those persons residing at Pennhurst and, in addition, pro-

vides those persons a right to treatment while there, it

certainly imposes no duty on Pennsylvania to create new

facilities. Nowhere does the Act mandate the provision

of services to the developmentally disabled. Rather, at

most, it sets forth standards which must be met by those

services which are offered. Thus, even assuming that the

10Under the reasoning in this case, because Pennhurst re-

ceives funds under the Medical Assistance Program, Title XIX

of the Social Security Act, 42 U.S.C. §1396, et seg. every state

program eligible for funding under that statute would be required

to comply with its standards, whether or not such programs wished

to receive such funding. See Beal v. Doe, 432 U.S. 438 (1977).

11 Even as interpreted by the court below, state law provides

no basis for that order since the court acknowledged that all state

law requires ‘‘is that to the extent Pennsylvania maintains fa-

cilities for the mentally handicapped, those facilities must provide

adequate treatment or habilitation.’’ (127a) (emphasis added).

14 Reasons for Granting Writ

Act bars Pennsylvania from providing services in a “‘more”’

restrictive environment, it does not require Pennsylvania

to create new, less restrictive facilities.

As correctly noted by Chief Judge Sietz in dissent,

“Congress intended the Act to be no more than an in-

centive to deinstitutionalization, not an imposition of a

mandatory requirement regardless of fiscal concerns.”

(168a) Regulations implementing the Act, e.g., 45 C.F.R.

§§1385.1, 1386.42-.43, confirm its modest purposes. See

also House Rep. No. 94-58, 94th Cong., Ist Sess. 10, re-

printed in 2 U.S. Code Cong. & Ad. News, 919, 928

(1975).

Similarly, the court’s heavy reliance on Section 6010,

providing a “Bill of Rights”, is clearly misplaced. As

Chief Judge Sietz properly stated:

I do not believe especially with a funding stat-

ute such as the one here, that general findings and

declarations should be used as a charter for the crea-

tion of absolute obligations where Congress felt the

states should be free to choose on their own as to

the proper allocation of funds. ... In sum, where

Congress establishes a funding scheme designed to

encourage a course of conduct, that is no license to

federal courts to make that conduct mandatory.

(168a-169a)

Cf. Southeastern Community College v. Davis, supra.

In short, the Developmentally Disabled Act imposes

no affirmative duty to create services and facilities regard-

less of cost, but rather encourages the states to utilize

their resources in a manner which recognizes the prefer-

ability of community placement. The decision of the

Court of Appeals misconstrues this purpose in violation

Reasons for Granting Writ 15

of principles clearly established by this Court and in a

manner which affects every state of the Union and thou-

sands of their citizens. Accordingly, this Court should

grant review of that decision.

2. The court below erroneously and unnecessarily

found that state law provides a right to treatment.

After finding a federal statutory right to treatment,

the court below examined state law and found that it too

provides a right to treatment. It did not, however, find

in state law, as it had in the Developmentally Disabled

Act, a requirement or “preference” that treatment be pro-

vided in the least restrictive environment. Thus, this

state law holding was unnecessary and insufficient to

support affirmance. See Murdock v. City of Memphis,

20 Wall. 590 (1875).

Even if the court properly considered state law, it

misconstrued that law. The court below relied on Section

201 of the Pennsylvania Mental Health and Mental Re-

tardation Act which provides in pertinent part:

The department shall have power and its duty

shall be: (1) to assume within the State the avail-

ability and equitable provision of adequate mental

health and mental retardation services for all persons

who need them...

Pa. Stat. Ann. Tit. 50 §4201 (Purdon). The court con-

cluded that treatment was a mandated service.

However, the Court of Appeals stopped short of

finding an “unconditional” state right to treatment

(126a). Rather, the court held only “that to the extent

16 Reasons for Granting Writ

Pennsylvania maintains facilities for the mentally handi-

capped those facilities must provide adequate treatment

or habilitation’” (127a).

This limited holding is not supported by any deci-

sion of any court of state-wide jurisdiction. Moreover,

in going even that far, the court completely ignored the

legislative mandate that the Department of Public Wel-

fare ‘‘assure .. . the availability and equitable provision

of . . . adequate mental retardation services for all per-

sons who need them.” Pa. Stat. Ann. Tit. 50 §4201 (1)

(Purdon) (emphasis added). See also, Pa. Stat. Ann.

Tit. 50 P.S. §4509 (Purdon).

In short, in deciding this difficult issue unnecessarily

and without the assistance of meaningful state court

precedent, the court wholly misinterpreted state law. For

this reason, this Court should review the actions of the

court below.

3. The order of the court below exceeds the proper

scope of federal judicial authority.

The Court of Appeals has vested in the District Court

and its appointed master plenary discretion over the

massive and sensitive task of developing community ser-

vices for the retarded. Individual placement and treat-

ment decisions are subject to the District Court’s control

(161a). The Master currently has complete authority

to determine the community services to be provided,

staffing needs, and monitoring systems, as well as to

supervise the interim operation of Pennhurst (148a). In

short, Petitioners have been stripped of their sovereign

power.

Reasons for Granting Writ 17

The court’s usurpation of state authority conflicts

squarely with principles of comity repeatedly announced

by this Court. See, e.g., Rizzo v. Goode, 423 US. 362,

377-380 (1976); Doran v. Salem Inn, 422 U.S. 922, 998

(1975). The “‘special delicacy” between ‘‘federal equi-

table power and state administration of its own law’,

O’Shea vy. Littleton, 414 U.S. 488, 500 (1974), has been

roughly cast aside. As it did in Rizzo v. Goode, the

Court of Appeals has sanctioned an overly broad judicial

intrusion into the internal affairs of state government.

Judicial intervention into the therapeutic process,

as here, is especially troubling. The deference that must

be accorded mental health professionals, Parham v. J.R.,

99 Sup. Ct. 2493 (1979); Addington v. Texas, 99 Sup.

Ct. 1804 (1979), has not been recognized by the Court

of Appeals. This error is accentuated by the District

Court’s finding that Petitioners are dedicated and quali-

fied professionals (75a).

Finally, the court below ignored the limitations im-

posed by Rule 53, Fed. R. Civ. P. That rule authorizes

reference to a master only in three narrow areas—matters

of account, difficult computation of damages, and ‘“‘upon

a showing that some exceptional condition requires it”’.

The latter phrase is narrowly construed. LaBuy v. Howes

Leather Co., 352 U.S. 249 (1957).

The exercise of “federal equitable power” and its

subsequent delegation to a Master present an important

issue concerning the power of federal courts to intrude

into the actual operation of state government. Accord-

ingly this Court should grant review of this case.

18 Reasons for Granting Writ

C. The Opinion of the Court Below Is in Direct Conflict

With Decisions of the Fourth and Ninth Circuits Regard-

ing the Authority of the United States To Seek Judicial

Enforcement of the Rights of Mentally Retarded Persons

The issue presented by the United States’ participa-

tion in this lawsuit has previously been addressed by the

Fourth Circuit in United States v. Solomon, 563 F.2d 1121

(4th Cir. 1977), and the Ninth Circuit in United States

v. Mattson, 600 F.2d 1295 (9th Cir. 1979). The holding

of the court below conflicts with both those decisions.

See also, In Re Estelle, 516 F.2d 480, 487 (5th Cir.

1975), cert. den. sub. nom, Estelle v. Justice, 426 U.S.

925 (1976).

In Solomon, the United States brought an action

charging the State of Maryland with violating the rights

of mentally retarded residents of Rosewood State Hospital.

The district court dismissed the action, holding that the

United States lacked authority and, therefore, standing to

bring it. The Fourth Circuit affirmed.

In so doing, the Fourth Circuit exhaustively examined

both the relevant statutes and cases. The court found no

express or implicit statutory authority for the government

to sue, Jd. at 1126, and rejected the argument that the

lawsuit fell within the ambit of the rule that in certain

limited areas the United States may sue without any ex-

press or implied statutory authority. Jd. at 1129. The

Ninth Circuit reached an identical result in United States

v. Mattson, supra, expressly rejecting the government’s

argument that the Developmentally Disabled Act provides

such approval.

Reasons for Granting Writ 19

The court below expressly considered and rejected

the reasoning of the Fourth Circuit in Solomon (99a-

102a). The lower court also attempted to distinguish

Solomon, by relying on the fact that the United States had

intervened in this action, rather than initiating suit as in

Solomon.”

This ruling, however, overlooks the mandate of Ar-

ticle III, §2. Whether termed authority, standing or in-

terest, the concept is the same: the United States has

no legally cognizable stake in the operation of Pennhurst

and thus no right to participate in this action. Estelle

v. Justice, 426 U.S. 925, 929 (1976) (Rehnquist, J. dis-

senting); Roe v. Wade, 410 U.S. 113, 126-27 (1973);

Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co.,

315 F.2d 564, 567 (7th Cir. 1963). There is a clear

division between the Circuits. Accordingly, review of

this case is respectfully requested.

12 The court concluded that intervention was proper because

plaintiffs had raised federal statutory claims. Ironically, the

United States’ complaint asserted no violation of any federal

statute.

20 Reasons for Granting Writ

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that a writ of certiorari issue to review the judg-

ment of the Court of Appeals for the Third Circuit in this

case.

ALLEN C. WARSHAW

Deputy Attorney General

Chief, Civil Litigation

ROBERT B. HOFFMAN

Deputy Attorney General

NORMAN J. WATKINS

Special Deputy Attorney Gen-

eral

EDWARD G. BIESTER, JR.

Attorney General

Attorneys for Petitioners

Dept. of Justice

16th Fl. Strawberry Sq.

Harrisburg, PA 17120

(717) 783-1471