Petition — COMMISSIONERS AND MENTAL HEALTH ADMINISTRATION v. TERRELL LEE HALE (Nos. 79-1415, 79-1404)

IN THE

SUPREME COURT OF THE UNITED:

MAR 12 1980

'

™.

October Term, 1979

9 -1415

THE COMMISSIONERS and THE MENTAL

HEALTH/MENTAL RETARDATION

ADMINISTRATORS FOR BUCKS,

CHESTER, DELAWARE and MONTGOMERY

COUNTIES, PENNSYLVANIA, Petitioners,

v.

TERRI LEE HALDERMAN, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Thomas M. Kittredge

Douglas B. Fox

2200 The Fidelity Building

123 South Broad Street

Philadelphia, Pennsylvania 19109

(215) 491-9636

Counsel for Petitioners

Of Counsel:

MORGAN, LEWIS & BOCKIUS

March 12, 1980

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA., PA. 19107 (215) 561-4056 EHD

TES JR., CLERK

TABLE OF CONTENTS

Page

Chation of Citron enw --sces e H e e een 2

PUI ce ae oso es fo eee came 2

ns IN oo ass Fae es ai ee es 2

Statutory Provisions Involved ................. 3

iaemeee Ce Ue Ce sc se es ee ee es 2

Reasons for Granting ae We rs a cp 7

l.

2.

The Decision Of The Court Below Raises

Significant And Novel Questions, Not

Heretofore Addressed By This Court, With

Regard To The Construction Of Federal

Statutes Intended To Aid The Mentally Re-

ROE ete ene aie

A. The court below erroneously held that

the Developmentally Disabled Assis-

tance and Bill of Rights Act, 42 U.S.C.

§$6000 et seqg., has vested, in each of the

6.75 million retarded citizens of the

United States, a right to habilitation in

the least restrictive environment .....

B. The court below erroneously held that

there is an implied private right of action

under the Developmentally Disabled

Assitance and Bill of Rights Act, and

that such an action may be maintained

in toe CONE Slo ve cee

C. The court below clearly and unmistak-

ably misconstrued Pennsylvania law in

holding that the Mental Health and

Mental Retardation Act of 1966, 50 P.S.

$4101 et seg., mandates that the coun-

ties provide habilitative services .....

The Decision Of The Court Below, If Uncor-

rected, Will Require Massive Federal Court

i

~J

12

14

TABLE OF CONTENTS Continued

Page

Intervention Into The States’ And Counties’

Policy Determinations Regarding The Na-

ture, Structure, Fiscal Feasibility, And Even

Locations, Of Services To The Mentally Re-

tarded, And Therefore Raises Important Is-

mee CPE Pemeraem . 2... ces 15

I es Pa i Fo os eae 18

TABLE OF CITATIONS

Cases:

Association of American Railroads v. Costle, 562

pene Ch, At, BT 7). oe i Zee es 10

mee eee, Soe U.0. 4390 (1077)... 6 ec ols 11

Bell v. Wolfish, 441 U.S. 520 (1979) -.......... 15

fee a meee, 422 U.S. 66 (1075) ......6.0 20065 13

Huddleston v. Dwyer, 322 U.S. 232 (1944) ..... 15

Oregon v. Mitchell, 400 U.S. 112 (1970) ........ 13

Rizzo v. Goode, 423 U.S. 362 (1976) ........... 15

Southeastern Community College v. Davis, 442 U.S.

se ic ea ph @ ow ab, dow wo bk 12

Stoner v. New York Life Ins. Co., 311 U.S. 464

UES ASE ED 15

Touche Ross & Co. v. Redington, 442 U.S. 560

re iN k's we aie 6 Oe RE a 12

Transamerica Mortgage Advisors, Inc. v. Lewis,

og eR OG!) a a 13

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

1976), affd, 563 F.2d 112! (4th Cir. 1977) 9,14

Other Autkorities:

H.R. Rep. No. 94-58, 94th Cong., Ist Sess. 10

(1975), reprinted in 1975 U.S. Code Cong. &

a 10,i1

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

THE COMMISSIONERS and THE MENTAL

HEALTH/MENTAL RETARDATION

ADMINISTRATORS FOR BUCKS,

CHESTER, DELAWARE and MONTGOMERY

COUNTIES, PENNSYLVANIA, Petitioners,

VU.

TERRI LEE HALDERMAN, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners, who are the Commissioners and the

Mental Health/Mental Retardation Administrators for

Bucks, Chester, Delaware and Montgomery Counties,

Pennsylvania, respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Third Circuit entered in

this proceeding on December 13, 1979.

2

CITATION OF OPINION BELOW

The opinion of the Court of Appeals for the Third

Circuit, not yet reported, appears in the Joint Appendix

hereto. The opinion of the United States District Court

for the Eastern District of Pennsylvania is reported at

446 F. Supp. 1295 (E.D. Pa. 1977), and appears in the

Joint Appendix hereto.

JURISDICTION

The case was argued before a panel of the Court of

Appeals for the Third Circuit on January 9, 1979.

Reargument en banc took place on September 6, 1979,

and the judgment of the Court of Appeals for the Third

Circuit was entered on December 13, 1979. This petition

for a writ of certiorari was filed within 90 days of the date

judgment was entered by the Court of Appeals for the

Third Circuit. Jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the Developmentally Disabled Assis-

tance and Bill of Rights Act, 42 U.S.C. §6000 et seq., im-

poses upon the states and their political subdivisions a

duty to provide up to 6.75 million mentaily retarded citi-

zens with habilitative services in the least restrictive en-

vironment, without regard to economic feasibility or

state and local public policy.

2. Whether a private right of action under the De-

velopmentally Disabled Assistance and Bill of Rights Act

may be implied, in view of the specific statutory remedy

provided by Congress in the Act, and in view of the detri-

mental impact that an implied right of action would have

upon state and local mental retardation programs.

3

3. Whether the court below committed clear and

unmistakable error when it construed Pennsylvania’s

Mental Health and Mental Retardation Act of 1966, 50

P.S. §4101 et seq., to impose duties upon the counties far

in excess of those provided for by the Act.

4. Whether the district court impermissibly

intruded into state and local affairs, and violated settled

principles of federalism, by crdering wide-ranging in-

junctive relief that preempts state and local control over

mental retardation services and by appointing a special

master to restructure and oversee the mental retardation

services in Southeastern Pennsylvania.

STATUTORY PROVISIONS INVOLVED

Rehabilitation Act of 1973, Section 504,

ee ee ee | we ee (197a)

Developmentally Disabled Assistance and Bill of Rights

Act,

oe Oe. ec a See (198a)

ae ee es i ec (200a)

ae Bra EE oc xe kee (202a)

Ge UR ns ea ee ww (207a)

Mental Health and Mental Retardation Act of 1966,

LS. SOO eke eo ee (227a)

50 PS: $4500NS). 6. cs. oe es (228a)

STATEMENT OF THE CASE

On May 30, 1974, an action was commenced in the

United States District Court for the Eastern District of

Pennsylvania on behalf of Terri Lee Halderman, a re-

4

tarded citizen, by her mother and legal guardian, and on

behalf of others similarly situated (respondents herein),

against the Pennhurst State School and_ Hospital

(“Pennhurst”), the Department of Public Welfare of the

Commonwealth of Pennsylvania, and various officials of

the Department of Public Welfare and_ staff of

Pennhurst. The United States moved to intervene as a

permissive party plaintiff, as did the Pennsylvania Asso-

ciation for Retarded Citizens (“PARC”) (both are also re-

spondents herein). Their motions to intervene were

granted.

Respondents’ Complaints, as amended, asserted

claims against the Commissioners and Mental

Health/Mental Retardation Administrators of Bucks,

Chester, Delaware and Montgomery Counties (petition-

ers herein). Respondents alleged violations of various

rights of Pennhurst residents arising under the Eighth

and Fourteenth Amendments to the Constitution of the

United States, §504 of the Rehabilitation Act of 1973, 29

U.S.C. §794, the Developmentally Disabled Assistance

and Bill of Rights Act, 42 U.S.C. §6000 et seg., and the

Mental Health and Mental Retardation Act of 1966, 50

P.S. §4101 et seg. Respondents sought to close

Pennhurst, to have all residents transferred to Commu-

nity Living Arrangements (“CLA’s”) (community-based

residential care and treatment centers), and to establish

the right of all retarded citizens to habilitation in the

least restrictive setting.

The district court issued its opinion on December

23, 1977, holding (a) that the due process clause of the

Fourteenth Amendment, and the Pennsylvania Mental

Health and Mental Retardation Act of 1966, guarantee

the mentally retarded a right to care and treatment in

the least restrictive environment sufficient to provide

them with “skills necessary to cope as effectively as

their capacities permit” (57a); (b) that such care and

treatment cannot be provided in an institution such as

Pennhurst (67a); (c) that the mentally retarded in

5

Pennhurst are being denied equal protection of the law

by their continued residency there (68a), and that their

continued residency constitutes discriminatory treat-

ment in violation of section 504 of the Rehabilitation Act

of 1973 (70a); and (d) that petitioners were statutorily

responsible for guaranteeing the rights of the mentally

retarded. (70a)

The district court also ordered wide-ranging injunc-

tive relief against petitioners and the Commonwealth of

Pennsylvania on March 17, 1978. In part, the order re-

quired:

1. Petitioners are permanently enjoined to pro-

vide “suitable community living arrangements and

all necessary support services” to all residents of

Pennhurst and to all mentally retarded citizens on

Pennhurst’s waiting list. (79a).

2. Petitioners are permanently enjoined to

“provide all necessary and proper monitoring

mechanisms” to assure the maintained quality of

the CLA’s. (80a)

3. Petitioners are ordered to “make available to

the {special master appointed by the district court]

“all professional and other resources” of the mental

health facilities in the Commonwealth of Pennsyl-

vania. (81a)

4. Jurisdiction is retained by the district court

“until further order.” (88a).

An appeal from the decision and order of the district

court was noticed, and argument before a panel of the

Court of Appeals for the Third Circuit (Chief Judge Col-

lins J. Seitz, and Judges John J. Gibbons and A. Leon

Higginbotham, Jr.) took place on January 9, 1979. Un-

able to agree on a decision (98a), the court scheduled

rehearing en banc for September 6, 1979. The opinion of

the court, per Judge Gibbons, was filed on December 13,

6

1979, with Chief Judge Seitz, and Judges Aldisert and

Hunter, dissenting. The court approved almost all of the

injunctive relief ordered by the district court, with the

primary exception that it modified the district court’s in-

junction in order to permit Pennhurst to remain open.

(161a) The court below did not, however, follow the rea-

soning of the district court to reach its result, relying in-

stead on establishing petitioners’ liability under the De-

velopmentally Disabled Assistance and Bill of Rights

Act, a statute not even mentioned by the district court in

reaching its holding. Further, the court below found that

there is an implied private right of action under the De-

velopmentally Disabled Assistance and Bill of Rights Act

(114a), and that such an action may be maintained in

federal court. (122a)

Since the order of the district court was entered on

March 17, 1978, in which the district court retained ju-

risdiction over this case, the district court has entered no

fewer than eight supplemental orders, some of which

specifically enjoin petitioners to structure mental retar-

dation programs as they have been formulated by the

special master in conjunction with the district court.

7

REASONS FOR GRANTING THE WRIT

1. The Decision Of The Court Below Raises Sig-

nificant And Novel Questions, Not Heretofore

Addressed By This Court, With Regard To The

Construction Of Federal Statutes Intended To

Aid The Mentally Retarded.

A. The court below erroneously held that the

Developmentally Disabled Assistance and

Bill of Rights Act, 42 U.S.C. §6000 et seg.,

has vested, in each of the 6.75 million re-

tarded citizens of the United States, a right

to habilitation in the least restrictive envi-

ronment.

Judge Gibbons, writing for the court below, found

that the Developmentally Disabled Assistance and Bill of

Rights Act, 42 U.S.C. §6000 et seq. (“DD Act’), vests in

all mentally retarded persons a federal statutory right to

habilitation’ in the least restrictive environment. The

court held that this right is guaranteed by the DD Act,

without regard to the amount of funding received by

each state or county under the DD Act, without regard to

each state or county’s ability to raise funds for programs

for the mentally retarded, and without regard to each

state or county’s public policy with regard to treatment

of the mentally retarded.

This decision has staggering implications for state

and local governments. The court below has trans-

tormed a modest funding statute,” intended only to en-

courage states to improve their mental retardation pro-

grams, into a federally-mandated program of treatment

for the mentally retarded calling for the creation of new

1. The court defined habilitation as “that education, training

and care required by retarded individuals to reach their maximum

development.” (109a)

2. The entire federal allotment for the fiscal year ending Sep-

tember 30, 1980 is $65,000,000. 42 U.S.C. §6061.

8

and expensive facilities, and the hiring of additional per-

sonnel. There are approximately 6.75 million mentally

retarded citizens in the United States today.* In 1976,

over 150,000 mentally retarded citizens resided in public

institutions like Pennhurst. (13a) The decision of the

court below would appear to apply to every institution in

every state that accepts funding under the DD Act.* In

terms of cost alone, the decision of the court below may

well force some states and counties to the verge of insol-

vency.°

In reaching its result, the court below acted in disre-

gard of the provisions and the purpose of the DD Act.

3. The incidence of mental retardation is about 3% in the gen-

eral population. (10a)

4. The court below specifically reserved the question of

whether its holding applies to states that do not accept federal funds

under the DD Act. (118a)

5. The court below asserted that its decision would have little

financial impact on the states and counties, relying on the trial court

finding that the per patient cost in CLA’s is less than the per patient

cost at Pennhurst. (44a) However, the court below failed to take into

consideration the large planning, construction, and implementation

costs that its decision will engender. When these costs are consid-

ered, the court’s decision will almost certainly be a considerable fi-

nancial burden to many of the states and counties that have chosen

to accept federal funding under the DD Act. Moreover, the holding

of the court below goes far beyond merely requiring the closure of

state institutions and the movement of 150,000 current residents

into new community-based facilities. It establishes a right in 6.75

million retarded citizens to receive habilitative services in the least

restrictive setting. Only a tiny fraction of this number is currently

being served, at public expense, in community-based facilities. The

remainder are being cared for by family or friends, or have been

placed in privately licensed facilities or institutions (often at consid-

erable financial sacrifice to their families), or are managing, with

varying degrees of success, on their own. There is no way to deter-

mine how many of those not receiving publicly financed services

will now demand them, as their right, but even if it is only a rela-

tively small fraction the fiscal impact on state and local govern-

ments will be immense.

9

Further, by citing selectively from the DD Act’s legisla-

tive history, the court below portrayed the legislative his-

tory in a manner that is unsupportable when the entire

legislative history of the DD Act is fairly read.®

Although the court below decided that the mentally

retarded have a right to habilitation under the DD Act,

the source of any such right cannot be the DD Act itself.

The DD Act is a funding statute, enacted pursuant to

Congress’s spending power, and was not intended to

create substantive rights. The DD Act simply provides a

financial “carrot” to states to improve their facilities for

the mentally retarded. United States v. Solomon, 419 F.

Supp. 358, 370 (D. Md. 1976), affd, 563 F.2d 1121 (4th

Cir. 1977). It is true that states that choose to accept fed-

eral funding under the DD Act must comply with certain

statutory conditions.’ None of the specific statutory pro-

6. Although the decision of the court below states that the par-

ties supplied the court with “detailed briefings” on the construction

of the DD Act (109a), this issue was never fully presented to the

court. The district court did not rely on the DD Act for its holding,

and the original briefs of the parties on appeal did not argue the

point. After the court of appeals panel was unable to agree on a basis

for its decision, reargument was scheduled for the court en banc

and supplemental briefs were filed by the parties. Even then, how-

ever, the applicability of the DD Act was not extensively briefed by

the parties, The supplemental brief for the United States did not

even argue that the DD Act provides a distinct ground for relief, say-

ing only that the district court's decision was “in accord with the

objective” of the DD Act. Supplemental Brief for the United States,

p. 10.

7. 42 U.S.C. §6009 (states must submit a plan to evaluate serv-

ices provided to “persons . . . through programs assisted under this

chapter”); 42 U.S.C. §6011 (states must assure Secretary of HEW

that “each program... which receives funds” under the Act pro-

vides a habilitation plan to persons receiving services under such

program); 42 U.S.C. §6012 (states must provide a system to advo-

cate the rights of the developmentally disabled); 42 U.S.C. §6063

(states must submit a state plan fulfilling requirements of that sec-

tion).

Statutory provisions which mandate that certain conditions

must be complied with in order to obtain federal funding should not

be construed to give rise to substantive rights. See Rogers v. Frito-

Lay, Inc, No. 77-2443 (Sth Cir., February 15, 1980).

10

visions setting forth the conditions with which states

must comply, however, mandates that states and their

political subdivisions accepting the limited funding pro-

vided by the DD Act must provide habilitative services to

all mentally retarded persons, whether or not those per-

sons are enrolled in a program receiving federal funds

under the DD Act. Nor can a general right to habilitation

be discerned either from the DD Act itself or from its leg-

islative history. The court below erred when it held that

such a right exists.

The court below further erred when it held that the

DD Act mandates that all habilitation of mentally re-

tarded persons must take place in the least restrictive

environment. While the DD Act provides some financial

incentive for deinstitutionalization and thus indicates a

congressional preference for community-based services,

the DD Act does not mandate that all habilitative serv-

ices to the mentally retarded take place in the least re-

strictive environment. 42 U.S.C. §6010, primarily relied

upon by the court below for its holding, is merely

declarative of the congressional policy favoring

deinstitutionalization, and cannot be construed to im-

pose on the states and counties an obligation to provide

all habilitation in the least restrictive environment, re-

gardless of cost, feasibility or local policy to the contrary.

In so holding, the court below disregarded the well-set-

iled principle of statutory interpretation that congres-

sional findings, incorporated into a statute, are merely

declarative of congressional purpose and do not give rise

to substantive rights. See Association of American

Railroads v. Costle, 562 F.2d 1310 (D.C. Cir. 1977).

The legislative history of the DD Act indicates that

deinstitutionalization is merely one goal of the DD Act.

and is not a mandatory duty. The House Report to the

DD Act, H.R. Rep. No. 94-58, 94th Cong., Ist Sess. 10

(1975), states that:

|T|he Committee has chosen to include a specific

requirement that state programs plan for as much

11

deinstitutionalization as is feasible, and earmark

monies for this purpose. Knowing that this may re-

quire some increase in expenditures, the Commit-

tee has also increased the authorizations of appro-

priations.

It is anticipated that these requirements will

prompt some movement of patients from State insti-

tutions back into their communities. (Emphasis

added. )

1975 U.S. Code Cong. & Ad. News 928. That same re-

port states that the purpose of the federal funding is to

permit “deinstitutionalizing as many of those with devel-

opmental disabilities as is possible.” Id. at 933. As Chief

Judge Seitz noted in his dissent:

I do not believe, especially with a funding statute

such as the one here, that general findings and dec-

larations should be used as a charter for the creation

of absolute obligations where Congress felt the

states should be free to choose on their own as to the

proper allocation of funds. Cf. Beal v. Doe, 432 U.S.

438 (1977) (Title XIX gives states latitude as to

whether to spend federal funds on abortion). 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)

Thus, the court below construed the DD Act in a

manner inconsistent with the DD Act’s language, pur-

pose and legislative history. Review by this Court is nec-

essary to correct the error below, and to provide an au-

thoritative construction of the DD Act, so that the states

and their political subdivisions will have some guidance

as to whether they may structure their programs for

treatment of the mentally retarded with due regard to

their own fiscal resources, public policy, and competing

priorities.

12

B. The court below erroneously held that there is

an implied private right of action under the

Developmentally Disabled Assistance and Bill

of Rights Act, and that such an action may be

maintained in federal court, issues not hereto-

fore addressed by this Court.

The court below concluded that an implied private

right of action exists under the DD Act, and that this im-

plied private right of action may be maintained in federal

court. (121la) This Court has not yet had occasion to de-

cide whether a private action may be maintained under

the DD Act.®

This Court has expressed reluctance to imply a pri-

vate right of action where Congress has not specifically

provided for such a right. See Touche Ross & Co. v.

Redington, 442 U.S. 560 (1979). Under the ruling of the

court below, each resident of Pennhurst and each resi-

dent of similar institutions for the mentally retarded has

recourse to the federal courts to redress alleged viola-

tions of the DD Act. If each plaintiff in such a suit could

obtain wide-ranging relief similar to that ordered by the

district court in this case, under penalty of contempt, the

states’ and counties’ mental retardation programs would

most certainly be in chaos due to conflicting judgments

and uncertainty as to the future.

It is unimaginable that Congress could have in-

tended that the DD Act, a modest funding statute,

should give rise to private enforcement actions. Before

such a result is permitted by this Court, congressional

intent to provide a private right of action should be un-

mistakable. Such an intent is simply not shown here.

8. In Southeastern Community College v. Davis, 442 U.S. 397

(1979), this Court declined to decide whether there is an implied

private right of action under section 504 of the Rehabilitation Act of

1973, 29 U.S.C. §794, another statute designed to aid the handi-

capped.

13

In part, the court below decided that an implied pri-

vate right of action exists under the DD Act because of

what it saw as a “dichotomy” in 42 U.S.C. §6010. First,

42 U.S.C. §6010 declares a “right to appropriate treat-

ment.” Then, that same section declares that federal

funds are available “only to programs that meet certain

basic minimum standards.” This “dichotomy,” the court

stated, demonstrates that denial of funds is not the only

mechanism Congress intended to enforce the rights de-

clared in the statute. (114a) The court’s reasoning is, at

best, circular, for there would be no “dichotomy” at all if

the court had not decided, wrongly, that 42 U.S.C.

$6010 declares any substantive rights at all.

Further, if Congress had intended a second remedy

for violations of the DD Act, it would have spoken as

clearly as it did when it expressly provided that funds are

to be terminated to states that do not comply with the

provisions of the DD Act. 42 U.S.C. §6065. This Court

has noted that “where a statute expressly provides a par-

ticular remedy, or remedies, a court must be chary of

reading others into it.” Transamerica Mortgage Advi-

sors, Inc. v. Lewis, 100 S.Ct. 242, 247 (1979). In addi-

tion, 42 U.S.C. §6065 provides that complete termina-

tion of funds is not the only option available to the

Secretary of HEW. The Secretary may “limit further

payment... to such state to activities in which there is

no such failure |to comply|.” Thus, the Secretary has at

his command a graduated enforcement mechanism

which is completely compatible with the nature of a

funding statute. The court below erred when it fash-

ioned its own remedy to enforce the DD Act.”

9. Phe court below found an implied right of action by applying

the factors set forth by this Court in Cort v. Ash, 422 U.S. 66 (1975).

In its discussion, the court below suggested that the DD Act was

chacted pursuant to Section 5 of the Fourteenth Amendment, and

not pursuant to Congress’ spending power, (117a) This suggestion

is completely unsupported by the legislative history of the DD Act.

Further, such a holding would raise serious constitutional ques-

tions. Cf, Oregon vo. Mitchell, 4G0 U.S. 112 (1970).

14

By implying a private right of action maintainable in

the federal courts, the court below has placed itself in

conflict with the decision of the Court of Appeals for the

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

1121 (4th Cir. 1977), where the court held that a private

action under the DD Act was maintainable, if at all, in

State court only:

The language in the conference committee report

referring to the right to resort to a judicial forum for

the protection of the right to treatment manifestly

refers to a state judicial forum and not to a federal

judicial forum where the United States customarily

sues. 563 F.2d at 1125.

Thus, this Court should accept review of this case in

order to decide, first, whether there is an implied private

~ «ht of action under the DD Act, and second, if there is

an implied private right of action, whether that action

may be maintained in federal court.

C. The court below clearly and unmistakably

misconstrued Pennsylvania law in holding

that the Mental Health and Mental Retarda-

tion Act of 1966, 50 P.S. §4101 et seqg., mandates

that the counties provide habilitative services.

The court below held that the counties of the Com-

monwealth of Pennsylvania have a statutory obligation

under the Mental Health and Mental Retardation Act of

1966, 50 P.S. §4101 et seg. (“MH/MR Act”), to provide

habilitative services to the mentally retarded. In so hold-

ing, the court ignored the provision of the MH/MR Act

which limits the duties of the counties to those expressly

set forth in section 301(d) of the MH/MR Act, which du-

ties are “|s|ubject to the provisions” of section 509(5) of

the MH/MR Act, which provides:

In the event that sufficient funds to pay the full

amount of the grants to which the counties may be

entitled under the provisions of this section have not

15

been appropriated, [the Department of Public Wel-

fare shall] distribute State funds among the coun-

ties by a formula reasonably designed to achieve the

objectives of this act, provided, however, that in

such event the counties’ financial obligations under

this act shall be reduced in accordance with the

same formula and the counties shall be required to

provide only those services for which sufficient

funds are available. (Emphasis added. )

Despite this explicit statutory directive that condi-

tions the level of county services on the level of funding

received from the Commonwealth, the court below held

that petitioners were as responsible as the Common-

wealth for providing habilitative services.

While petitioners recognize that this Court is hesi-

tant to review the determination of state law questions

by the courts of appeals, see Huddleston v. Dwyer, 322

U.S. 232 (1944), the court below committed clear and

unmistakable error in its application of state law. This

Court should therefore accept review of the decision of

the court below. Cf. Stoner v. New York Life Ins. Co.,

311 U.S. 464 (1940).

2. The Decision Of The Court Below, If Uncor-

rected, Will Require Massive Federal Court

Intervention Into The States’ And Counties’

Policy Determinations Regarding The Nature,

Structure, Fiscal Feasibility, And Even Loca-

tions, Of Services To The Mentally Retarded,

And Therefore Raises Important Issues Of

Federalism.

This Court has already had occasion to express its

strong disapproval of federal court intervention into the

affairs of state-run institutions. See Bell v. Wolfish, 441

U.S. 520 (1979): Rizzo v. Goode, 423 U.S. 362 (1976).

The reasoning implicit in those recent pronouncements

has equal application here. The court below has ordered

that the Commonwealth of Pennsylvania and its coun-

ties pursue one method of treatment of the mentally re-

16

tarded, to the exclusion of all other alternatives. In so

holding, the court below has preempted state and local

control of their own institutions and programs, in viola-

tion of these settled principles of federalism.

Petitioners do not argue that the deinstitu-

tionalization ordered by the district court, as affirmed by

the court of appeals, is not, in general, a desirable policy.

The issue is far broader than the correctness of the men-

tal retardation services policy embraced by the court be-

low; the issue is whether the federal courts, rather than

the states and their counties, should be making medical,

legislative, and fiscal decisions concerning how best to

care for their mentally retarded citizens. Under the deci-

sion below, it is the federal courts which will ultimately

determine what habilitative services are required for

each retarded citizen’s “maximum development,” what

that “maximum” is, and what constitutes the “least

restriction setting” for such habilitation.'° The policy-

making prerogatives of state and local governments in

these areas have been eliminated.

The district court has retained jurisdiction of this

case in order to implement its decision. (88a) Since the

decision of the district court was rendered on December

23, 1977, the district court has issued no less than eight

supplemental orders,'' some of which enjoin the peti-

10. Judge Gibbons found that the district court “did not ade-

quately canvass the discreet needs of individual patients” (156a) in

reaching the “wholesale judgment” that Pennhurst was unfit, and

could not be made fit, for all retarded persons. He therefore ordered

that, on remand, the district court or the master canvass “the spe-

cial needs and desires of individual patients.”. (159a) Judge Gib-

bons further cautioned that the trial court and the master should

ensure that “the sanitary, staffings, and program deficiencies which

were found at Pennhurst are not duplicated on a smaller scale in the

CLA’s”. (161a) Lastly, Judge Gibbons ordered: “No matter how it is

accomplished, however, an assessment of each class member's

needs must be carried out.” (162a)

11. Orders of the district court of March 17, 1978; October 16,

1978; March 5, 1979; April 26, 1979; May 29, 1979; June 8, 1979;

February 22, 1980; and February 25, 1980.

17

tioners and the Commonwealth of Pennsylvania to un-

dertake elaborate and detailed programs devised by the

special master and by the court. The special master was

appointed by the district court to oversee its injunctive

relief, and that special master is still functioning, over

two years later. It is not beyond the realm of possibility

that the special master may eventually become a perma-

nent adjunct to the district court, continually overseeing

the care of the mentally retarded in Southeastern Penn-

sylvania.

The district court’s orders are as intrusive into the

fiscal affairs of the Commonwealth and its counties as

they are intrusive into the ability of the Commonwealth

and its counties to run their own mental retardation pro-

grams. The district court’s order requires that the Com-

monwealth and the counties:

|s|hall make available to the master all profes-

sional and other resources of the Department of

Public Welfare, the Pennhurst State School and

Hospital, the County Offices of Mental Retardation

and the Base Service Units as may be necessary to

execute this Court’s Orders. (81a)

The district court and the court of appeals have

completely preempted state and county regulation of

treatment and care of their mentally retarded citizens.

Further, by ordering that the Commonwealth and its

counties make virtually all of their resources available to

the special master to implement the district court’s or-

ders, the courts below have dictated a set of social

priorities to the Commonwealth and its counties, com-

pletely bypassing their political processes. Such an in-

trusion by the federal judiciary into the mental retarda-

tion programs of the state and its counties ought not to

be permitted; thus, this Court should grant review of

this case.

18

CONCLUSION

For all of the foregoing reasons, this Honorable

Court should issue a writ of certiorari to review the judg-

ment and opinion of the Court of Appeals for the Third

Circuit.

Respectfully submitted,

° Thomas M. Kittredge

Douglas B. Fox

2200 The Fidelity Building

123 South Broad Street

Philadelphia, Pennsylvania 19109

(215) 491-9636

Counsel for Petitioners

Of Counsel:

MORGAN, LEWIS & BOCKIUS

March 12, 1980