Petition — MAYOR OF CITY OF PHILADELPHIA v. TERRI LEE HALDERMAN (Nos. 79-1408, 79-1404)

4 Goreme Court, Ui

FILED

INTHE - | MAR 12 1980

SUPREME COURT OF THE UNITED ST} TES aaa

a. + CLERK

Term, 1980

No,

93-1408

MAYOR OF CITY OF PHILADELPHIA,

CITY COUNCIL OF PHILADELPHIA, and

LEON SOFFER, PH.D.,

Petitioners

Vv.

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

Alan J. Davis

City Solicitor

Carl E. Singley

First Deputy City Solicitor

Marc H. Myers

Assistant City Solicitor

Gayle R. Smith

Assistant City Solicitor

1500 Municipal Services Building

Philadelphia, PA 19107

(215) MU 6 5258

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19107 (215) 561-4050 ep65

TABLE OF CONTENTS

Page

NS I i lacaceg > wie ne Rk thse oie RN ee 2

Jurisdictional Statement <...... 6... cee wee. 2

Ne ce be desl ee ew ows 2

Statutory Provisions Involved ................. a

a ee a a eee ee eee 3

Reasons for Granting the Writ ................ 6

II G's corm laaty 5 its @'s,5 ssh. seo eo Reel eae 12

uN I ees bo gee ye ke ee 3

TABLE OF CITATIONS

Cases:

Cafeteria Workers v. McElroy, 367 U.S. 886

CE edo oh gee Ra eda a RR 11

Dayton Board of Education v. Brinkman, 433

Se SE EUPEE? i ticd bors s ae ee 12

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) .. 12

Hoolick v. Retreat State Hospital, 24 Pa. Com.

Se ee EN aa ov keke ices ae pes 8

Irwin v. Dixon, 9 How. 10, 13 L.Ed. 25 .....:.. 11

Rizzo v. Goode, 423 U.S. 362 (1976)......... 8, i

Sampson v. Murray, 415 U.S. 61 (1974) ....... il

Stefanelli v. Minard, 342 U.S. 117(1951) ...... 12

Swann v. Charlotte-Mecklenburg Board of Edu-

eee, Same ae STE?) hee ads areas 1]

i

TABLE OF CITATIONS—(Continued )

Cases: Page

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

tN Nt ne wk bs 6,7

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

(1976); affirmed 563 F. 2d 1121 (4th Cir.,

ie oe ys ws wip oe ee 6

Statutes:

Federal Constitutional and Statutory Provi-

sions

I ee vb wes eas ee ee ees 4

RS ae 4

Rehabilitation Act of 1973, 29 U.S.C. §794 .. 4

aa 4

I oe os pw a iwc be ee ees bes 4

ge tke ck ee eee aes 4

Developmentally Disabled Assistance and Bill

of Rights Act, 42 U.S.C. §6001, et seq. . 6

eee eee 6

aa 4

a 6

Ee 6

Ey ee 7

U.S. Constitution, Amendments I, IV, VIII, IX,

ag inn xk a ala e's oo ee’ 4

TABLE OF CITATIONS—(Continued )

Statutes: Page

State Statutory Provisions

Mental Health and Mental Retardation Act of

Nk SE prety che cs & inka cu. Bie § tae REE

ee ss ee Oe OR ne ee 0s ae 4

Se ee ES AS ch ean dee kes 7, 8,9

ee CEE, oe. 6h eh valbwek kA he 9

te IE cos co SE ary die we 8 8, 9

SE CO NO sk 6 a fren be ete ela to

ee. Gee ns bs op waye hea eae 9

Act No. 256 of the Pennsylvania General As-

sembly gNovember 27,1970 .......... 4

State Regulations

Title 6100 Regulations of the Pennsylvania

Department of Public Welfare, Fiscal Man-

ual for the County MH/MR Program

8 it eee seer re a Leer 10

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 1980

No.

MAYOR OF CITY OF PHILADELPHIA,

CITY COUNCIL OF PHILADELPHIA, and

LEON SOFFER, PH.D.,

Petitioners

Vv.

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

TO: THE HONORABLE, THE CHIEF JUSTICE OF

THE UNITED STATES, AND THE ASSOCIATE

JUSTICES OF THE UNITED STATES SU-

PREME COURT:

Petitioners, Mayor of City of Philadelphia,. City

Council of Philadelphia, and Leon Soffer, Ph.D., respect-

fully pray that a Writ of Certiorari issue to review an

]

2

Opinion and Order of the United States Court of Appeals

for the Third Circuit entered in this matter on December

13, 1979.

OPINION BELOW

The opinion and order of the Court of Appeals for

the Third Circuit and the order of the United States Dis-

trict. Court for the Eastern District of Pennsylvania ap-

pear in the Appendix hereto.

JURISDICTIONAL STATEMENT

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Whether the Court of Appeals misconstrued the

Developmentally Disabled Assistance and Bill of Rights

Act, a purely funding measure, in ruling that the Phila-

delphia County Defendants had violated its provisions

despite the fact that they received no funds pursuant to

the statute?

2. Whether the Court of Appeals erred in affirming

the order of the District Court enjoining the Philadelphia

County Defendants to provide community living ar-

rangements to the plaintiff class without setting forth as

a condition precedent the provision of adequate funding

by the Commonwealth as required by state law?

3. Whether the Court of Appeals violated the prin-

ciples of federalism in its extensive grant of power to the

District Court and its Master over the mental retardation

program in Philadelphia?

3

STATUTORY PROVISIONS INVOLVED

Developmentally Disabled Assistance and Bill of Rights

Act, 42 U.S.C. §6001, et seq.

Mental Health and Mental Retardation Act of 1966, 50

Purdon’s Statutes §4101, et seq.

Act 256 of the 1970 Pennsylvania General Assembly,

November 27, 1970.

The texts of the pertinent sections of these provisions

are set forth in the Appendix hereto.

STATEMENT OF THE CASE

This action was commenced in the United States

District Court for the Eastern District of Pennsylvania by

the filing of a complaint on or about May 30, 1974, on

behalf of Terri Lee Halderman, a retarded person, by her

mother and guardian, Winifred Halderman, others

similarly situated, and the Parents and Family Associ-

ation of Pennhurst, as a class action against the

Pennhurst State School and Hospital, the Pennsylvania

Department of Public Welfare, and certain officials and

staff of the Commonwealth of Pennsylvania. On or about

July 29, 1974, the Halderman Plaintiffs filed an

Amended Complaint. The Halderman Plaintiffs alleged

that the conditions at Pennhurst violated several consti-

tutional and statutory provisions. The United States

joined the Halderman Plaintiffs on or about November

18, 1974, by repeating the earlier allegations against

Pennhurst.

On or about June 3, 1975, the Pennsylvania Associ-

ation for Retarded Citizens (hereinafter referred to as

“PARC”) and certain retarded persons, by their parents

or next friends, moved to intervene. PARC filed an

Amended Complaint in Intervention on or about January

8, 1976, which, for the first time, added as defendants

the Mayor of the City of Philadelphia, the City Council of

Philadelphia, and Leon Soffer, Ph.D., Mental Health/

Mental Retardation Administrator for Philadelphia

4

County, along with other defendants from Bucks, Ches-

ter, Delaware and Montgomery Counties. PARC’s con-

stitutional claims included the First, Fourth, Fifth,

Eighth, Ninth and Fourteenth Amendments to the Con-

stitution of the United States. They also claimed viola-

tions of the Rehabilitation Act of 1973 (29 USC §794),

42 USC §§1983, 1986, 1988 and 6010 as weil as the

Pennsylvania Mental Health and Mental Retardation

Act of 1966, 50 Purdon’s Statutes §4101, et seq. The

District Court’s jurisdiction was based on 28 U.S.C.

§1331 and 1343.

The case went to trial before the District Court sit-

ting without a jury on April 18, 1977, and concluded on

June 13, 1977. On December 23, 1977, the Court issued

its Opinion finding that the defendants had violated the

rights of the plaintiffs under the Rehabilitation Act of

1973, the MH/MR Act of 1966, and the Constitution.

On March 17, 1978, the District Court permanently

enjoined the Philadelphia County Defendants, along

with the Commonwealth and Suburban County Defen-

dants, to replace Pennhurst State School and Hospital by

providing community living arrangements for all those

presently residing at Pennhurst and all those on its wait-

i \g list, together with community services necessary to

provide “minimally adequate habilitation.” The District

Court further enjoined the Philadelphia County Defen-

dants to develop and provide members of the plaintiff

class a written individualized program plan; to provide to

each an individualized habilitation program; to provide

annual periodic review thereof, and the opportunity to be

heard thereon; to provide “all necessary and proper”

monitoring mechanisms to assure that community liv-

ing arrangements and other community services pro-

vided are of the necessary quantity and quality; to imple-

ment with dispatch Act 256 of the 1970 Pennsylvania

General Assembly (providing for the creation and ren-

ovation by the Pennsylvania Department of General

Services of buildings for supportive services for the men-

5

tally retarded); and to cease from advancing in any man-

ner applications of mentally retarded individuals for

placement at Pennhurst. The court further ordered that

a “Special Master” be appointed. Among his duties were

determination of the nature and extent of required com-

munity services and monitoring systems; and planning

the interim operation and closing of Pennhurst.

Philadelphia County Defendants timely filed a no-

tice of appeal from the above order, and the matter was

argued before a panel of the Court of Appeals on January

9, 1979. Re-argument before the Court of Appeals en

banc took place on September 6, 1979.

On December 13, 1979, the Court of Appeals

rendered its decision in this matter, and affirmed the

judgment and order of the trial court with certain limited

exceptions. The Court of Appeals held that the Develop-

mentally Disabled Assistance and Bill of Rights Act, as

well as the MH/MR Act of 1966, imposes a duty upon

the Philadelphia County Defendants, as well as the

Commonwealth and Suburban County Defendants, to

provide mentally retarded citizens with treatment or ha-

bilitation in the least restrictive environment.

6

REASONS FOR GRANTING THE WRIT

The Court of Appeals misconstrued the Develop-

mentally Disabled Assistance and Bill of Rights Act, a

purely funding measure, in ruling that the Philadelphia

County Defendants have violated its provisions despite

the fact that they received no funds pursuant to the stat-

ute.

In passing the Developmentally Disabled Assis-

tance and Bill of Rights Act, 42 U.S.C. §6001, et seq.,

(D.D. Act) the Congress provided for grants-in-aid to the

states for construction of new programs for the mentally

retarded. The D.D. Act sets forth a scheme so that in or-

der for

“... a state to receive federal funds for construction

of new facilities and provision of new services for

the mentally retarded, it must agree to abide by

qualitative standards for habilitative care prescribed

in regulations promulgated by the Secretary of

Health, Education and Welfare. 42 U.S.C. §6008,

6063. A state’s funds may be discontinued . . . if the

Secretary finds that the standards prescribed by the

regulations are no longer being met. 42 U.S.C.

$6064. Thus, Congress has devised what it hopes

will be an effective carrot-and-stick method of im-

proving the lot of the mentally retarded in America.”

United States v. Solomon, 419 F. Supp. 358, 370

(1976); affirmed 563 F. 2d 1121 (4th Cir., 1977).

This statute is, therefore, strictly a funding statute.

Thus, failure to abide by its strictures is not to have acted

illegally, but simply to have placed the recipient in a po-

sition in which it is forced to forego federal funding.

This view of the D.D. Act is also shared by the

United States Court of Appeals for the Ninth Circuit. In

United States v. Mattson, the Ninth Circuit stated:

“.., the provisions (of the D.D. Act) themselves pro-

vide that the only power wielded by the Federal gov-

ernment is the threat of withholding funds should

7

the states not comply with all procedural require-

ments. 42 U.S.C. §6065.” 600 F. 2d 1295 at 1299

(1979).

No evidence was presented at trial that the Philadel-

phia County Defendants received any funds under the

D.D. Act. For this reason alone, the Philadelphia County

Defendants cannot be held to have violated any duty

owed Pennhurst residents under the D.D. Act.

Nor was any evidence presented at trial that

Pennhurst received any funding under the D.D. Act.

However, even if the Commonwealth Defendants ac-

cepted such funds for use at Pennhurst, then any viola-

tion of the provisions of the statute would have been

committed by the Commonwealth Defendants alone. A

breach on the part of the Commonwealth does not create

a duty on the part of the Philadelphia County Defen-

dants to remedy that breach. Therefore, the Court of Ap-

peals erred in ruling that the Philadelphia Defendants

violated their duty to Pennhurst residents under the

D.D. Act.

Il. The Court of Appeals erred in affirming the order

of the District Court enjoining the Philadelphia

County Defendants to provide community living

arrangements to the plaintiff class without set-

ting forth as a condition precedent the provision

of adequate funding by the Commonwealth as re-

quired by state law.

The Court of Appeals declared that the MH/MR Act

of 1966, 50 Purdon’s Statutes §4201, created a state stat-

utory right to adequate habilitation (Opinion, pp. 32,

39). The Court of Appeals held that the Philadelphia

County Defendants violated this state statutory duty to

provide habilitation to the residents of Pennhurst; and

on that basis affirmed the order of the District Court per-

manently enjoining the Philadelphia County Defen-

dants to provide suitable community living arrange-

8

ments for members of the plaintiff class. (Opinion, pp.

37-39). This holding and order is insupportable.

Among the primary functions of the MH/MR Act of

1966 is the delineation of responsibilities between the

Commonwealth and the Counties. Article II of the Act,

50 P.S. §4201 et. seq., sets forth the “Responsibilities of

the State.” Section 4201 states:

“The department [of Public Welfare] shall have

power, and its duty shall be:

(1) to assure within the State the availability and

equitable provision of adequate mental health and

mental retardation services for all persons who need

them, regardless of religion, race, color, national ori-

gin, settlement, residence, or economic or social

eG

The “Responsibilities of Counties” are set forth in

Article III of the Act, 50 P.S. §4301, et seq. Section

4301(d) sets forth the nine services which the counties

are required to provide. Among these nine services are

neither community living arrangement nor institutional

services.

As the Pennsylvania Commonwealth Court noted in

Hoolick v. Retreat State Hospital:

“The State, through the Department of Wel-

fare, is responsible for the overall supervision and

control of the program to assure the availability of

and equitable provision for adequate mental health

and mental retardation facilities; and the counties,

separately or in concert, are assigned responsibil-

ities as to particular programs.” (emphasis added)

24 Pa. Com. Ct. 218, 222 (1976).

Those “particular programs” are, of course, the nine

mandated programs described in §4301(d).

Nevertheless, the Court of Appeals concluded that

the Counties, as well as the Commonwealth, violated

their statutory duty to provide adequate habilitation to

9

the retarded residents at Pennhurst. With regard to the

Commonwealth, the Court referred to the earlier noted

50 P.S. §4201. As to the counties, the Court referred

only to 50 P.S. §4301(a) wherein it is set forth, in gen-

eral terms, that the counties shall “establish a mental

health and mentai retardation program.” Upon the basis

of this section, the Court stated:

“Thus, although section 4301(d) specifies cer-

tain facilities for whicii Counties will be principally

responsible, the Act as a whole contemplates

County participation in «ii facets of the state’s provi-

sions of services.” (Opinion, p. 39).

This view is without basis in the law. Section

4301(a) is simply a general provision directing creation

of the county MH/MR program. Section 4301(d) follows

logically from 4301(a) in that it provides specificity with

respect to what county program responsibilities will en-

tail. See Hoolick, supra. With regard to facilities such as

Pennhurst, the Act of 1966 is clear. Section 4202(a)

states: “The department (of Public Welfare) shall oper-

ate all State facilities and shall assign such functions to

each as the secretary shall prescribe.” (See also Section

4201(4)). Undoubtedly, then, the County responsibil-

ities are limited to the nine mandated programs of

§4301(d); and the responsibility for Pennhurst rests

with the State. No evidence was presented at trial that

the Philadelphia County Defendants failed to provide

any of the nine serv.-es listed in Section 4301(d).

Assuming arguendo that community living arrange-

ment services are listed among the nine mandated of

Section 4301(d), the obligation of the county to provide

these services is subject to the provisions of Title 50 P.S.

§4509(5). Section 4509, entitled “State Grants and Pay-

ments”, sets forth the duty of the Pennsylvania Depart-

ment of Public Welfare to fund the counties’ programs.

Subsection (5) provides that if the Pennsylvania Legisla-

ture fails to appropriate sufficient funds, then the finan-

10

cial obligations of the counties are accordingly reduced

. and the counties shall be required to provide only

those services for which sufficient funds are available.”

Furthermore, Title 50 P.S. §4507(2) requires the

Commonwealth to pay for all obligations ‘as may arise

under any new program established by the department

lof Public Welfare]”. The Pennsylvania Department of

Public Welfare established the community living ar-

rangements program in 1972. As this program was be-

gun some six years after the enactment of the MH/MR

Act of 1966, it is undoubtedly such a “new” program for

which the Commonwealth is fully responsible. More-

over, Pennsylvania DPW itself has recognized its 100%

responsibility for this program in its legally promulgated

regulations. See Section 6111, Pa. DPW Regulations.

Therefore, it is clear that the Court of Appeals erred in

affirming the order of the District Court enjoining the

Philadelphia County Defendants to provide community

living arrangements to the plaintiff class without setting

forth as a condition precedent the provision of adequate

funding by the Commonwealth.

III. The Court of Appeals violated the principles of

federalism in its extensive grant of power to the

District Court and its Master over the mental re-

tardation program in Philadelphia.

The Court of Appeals in its decision affirmed the

grant of power made by the District Court to the Office

of the Special Master which the lower court created. As

the Court of Appeals noted, the Master was given the au-

thority.

‘“., . to prepare and present to the court for its ap-

proval various plans for the transfer of Pennhurst

residents to CLA’s and for the provision of services

to the class members ‘in the least separate, most in-

tegrated, least restrictive community setting’... .”

(Opinion, p. 55).

11

These “various plans” include, inter alia, the au-

thority to specify the quantity and type of community liv-

ing arrangements and all other residential program and

staffing patterns necessary; to delineate responsibility

for their creation, maintenance, and setting deadlines

for compliance; to specify resources, procedures, and

schedules for individual evaluations and formulation of

individual exit and community program plans and for

their periodic review; to recruit, hire, and train person-

nel to carry out these plans; and to plan for the creation

and maintenance of a monitoring mechanism to oversee

the continued compliance of defendants without time

limitation. [District Court Order of March 17, 1978,

paragraph G6(a)(1)]. Moreover, the Court of Appeals

granted the District Court, or the Master, the authority

to determine, on an individual basis, the most appropri-

ate setting for treatment of members of the plaintiff class

(Opinion, pp. 62, 64). In sum, the District Court and its

Master have been granted almost complete control of the

mental retardation program in Philadelphia.

It is the settled rule that the scope of the remedy

must be determined by the nature of the violation.

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971). It has long been held that an injunc-

tion is “to be used sparingly, and only in a clear and plain

case.” Irwin v. Dixion, 9 How 10, 33 (13 L. Ed. 25)

(1850); quoted in Rizzo v. Goode, 423 U.S. 362 (1976).

Where plaintiffs seek to enjoin the actions of a state

agency, even within the state court system, they must

overcome “the well-established rule that Government

has traditionally been granted the widest latitude in the

dispatch of its own internal affairs.” Cafeteria Workers

v. McElroy, 367 U.S. 886 (1961); quoted in Sampson v.

Murray, 415 U.S. 61 (1974). When such an injunction

of the activities of an agency of state or local government

is sought in federal courts, great consideration must be

given to the principles of federalism in determining the

availability and scope of relief. Rizzo v. Goode, supra;

12

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975). See also

Dayton Board of Education v. Brinkman, 433 U.S. 406

(1977). Where the exercise of authority by state and lo-

cal officials is attacked, federal courts must be con-

stantly mindful of the “special delicacy of the adjust-

ment to be preserved between federal equitable power

and state administration of its own law.” Stefanelli v.

Minard, 342 U.S. 117 (1951), quotea in Rizzo v. Goode,

supra.

The Court of Appeals here has engaged in an un-

warranted intrusion into the affairs of the City of Phila-

delphia in significantly revising the internal procedures

and diminishing the authority of its Office of Mental

Health and Mental Retardation. The Court of Appeals

has, therefore, violated the principles of federalism.

IV. CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the judgment and order of the Court of Appeals

for the Third Circuit.

Respectfully submitted,

a

Alan J. Davis

City Solicitor

Carl E. Singley

First Deputy City Solicitor

Marc H. Myers

Assistant City Solicitor

Gayle R. Smith

Assistant City Solicitor

13

CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of March,

1980, three true and correct copies of the Petition for

Writ of Certiorari were served by First Class Mail, Post-

age Prepaid, to each of the following:

David Ferleger, Esq.

37 S. 20th St.

Philadelphia, PA 19103

Robert Hoffman, Esq.

Deputy Attorney General

Department of Justice

16th Floor, Strawberry Square

Harrisburg, PA 17120

Frank D. Allen, Jr., Esq.

Department of Justice

Washington, D.C. 20503

James D. Crawford, Esq.

1719 Packard Bldg.

Philadelphia, PA 19102

Thomas Gilhool, Esq.

1315 Walnut Street

16th Floor

Philadelphia, PA 19107

Thomas M. Kittredge, Esq.

2107 Fidelity Building

Philadelphia, PA 19109

Joel I. Klein, Esq.

1730 Rhode Island Ave., N.W.

Washington, D.C. 20036

Richard Kirschner, Esq.

1500 Walnut St.

Philadelphia, PA 19102

14

I further certify that all parties required to be served

have been served.

Alan J. Davis

City Solicitor