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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2219%3A1. Public record. Not legal advice.