# Petition — MAYOR OF CITY OF PHILADELPHIA v. TERRI LEE HALDERMAN (Nos. 79-1408, 79-1404) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2216%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2216%3A1. Public record. Not legal advice.