Amicus Brief — Youngberg v. Romeo

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TABLE OF AUTHORITIES... ccccccsssetee iii

Co „„ „„ „6„6„6„6„ „„ „„ „„ „6 «„ 111

United States constitution. . VII

resse eee e eee eee eee vii

rere eee eee eee eee eee vii

APPLICATION FOR LEAVE TO FILE

AMICI CURIAE BRIEF IN SUPPORT

OP Rö 1

a. Interest of Amici Curiae...... 1

b. Argument Presented.........+++ 4

THE THIRD CIRCUIT COURT OF

APPEALS APPROPRIATELY ORDERED

A REMAND FOR TRIAL WITH A

JURY INSTRUCTION ON QUALIFIED

e , eee ee nae 7

a. The District Court has

. Eighth Amendment.......-.+.+-

a. The State cannot entyinge

E s

8 ng_a_compe ling

s n e „ „% „% „„ „% „% „% „„ „„ „„ „ „„ '„„ç„ðC» ˖,

e. Nicholas Romeo vas Denied

The Protection of the

Fourteenth Amendment in

‘ Three Separate Ways..........

1. A right to be free from

undue bodily restraint...

2. A right to personal

security and protection..

3. Right to Treatment.......

fk. Qualified Immunity...........

F é a noe .. 000060

PROOP OF sees eee

18

25

26

31

33

34

36

38

TABLE OF AUTHORITIES

Cases

ton v. Texas,

441 v. 8. 418 .

v. Secretary of State,

378 9.8. 500 196)

Arnett v. Kennedy,

416 U.S. 134 $C) 7 ) eee eee

Bates v. Little Rock,

361 U. 8. 516 C2960) . . . . „ 666660

Baxstrom v. Herold,

383 U. S. 107 ei . . . . „ „00500

Bell v. Hood,

327 U.s. 678 C1946). . . . . „0000

Bell v. olf fsh,

441 U. 8. 520 119796999

Bivens v. Six Unknown Federal

Narcotics Agents,

403 U.S. 388 (19717

Dean Milk Co. v. Madison,

340 U.S. 349 (193111

Goldberg v. Kelly,

397 U. 8. 254 ( DFO) cccccceeseose

Pages

20,28,29

19

16

19

13

7,20

12,17,32

9,10,34

21

15

Greenholtz v. Nebraska Penal Inmates,

442 U. 8. 1 11979)

Griswold v. Connecticut,

381 U.S. 479 (1963)

~iii-

28

19,21

Cases

ey v. Cady,

405 U. 8. 304 a. . . . „„ „0

Hutto v. Finney,

437 9. 8. 678 (1976) oc . 6 00

Illinois State Board of Elections

v. Socialist Workers Party,

440 U.S. 173 (1979) /

raham v. Wright,

30 U. 8. 651 646977). 6 6 0 „ 0

In Re Neagle,

135 v. 8. 1 1000) . e 6 „„ 0

In Re Schmidt,

429 A. 2d 631 (1961) ecccccccccecce

In Re Winship,

397 U.s. 358 (1970) ccccccccccoces

Jackson v. Indiana,

406 v. 8. 715 (1972) .. 200%

Joint Anti-Fascist Refugee

Committee v. McCrath,

341 U. 8. 126 (1981)... —.ĩ2 6 „„

Jones v. North Carolina Prisoners

Labor Union,

433 U.S. 119 (19777777

Kent v. Dullas,

357 v. 8. 116 . . . . „„ 60

v. Pontikes,

4 40.8. 31 4197 %) 2 06 „ „ 0

2

Pages

11

32

19,21

16,17,27

15,32,33

13

13,14,15

21

12

19

22

Cases

Lammon v. Feusier,

111 U. 8. 17 118664):

v. Madison,

1 Cranch. 137 (1603333.

Mathews v. Eldridge,

424 U. 8. 319 976). . . „0

er v. Nebraska,

62 U. 8. 390 (1923... . 6 „„ 0

Muriel v. Baltimore City

Municipal Court,

407 U. 8. 335 1932). . w 60 „ 0

Nixon v. Condon,

286 U. 8. 73 1972). . e

Nixon v. Herndon,

273 U. 8. 436 (1927). . 00%

O' connor v. Donaldson,

422 U. 8. 563 41975). e606 „

Parham v. J. R.,

442 v. 8. 584 1979). . 0 „„

Paul v. Davis,

424 U.S. 693 (19760)

Pell v. Procunier,

417 U.s. 817 119714)

Pennhurst v. Halderman,

612 F. 2d 84 (34 Cir. 1979)

V

10

11, 13, 16,

17,22, 23,

24,28, 29,

30,32

14,17

15

12

31

Cases

Price v. Johnston,

334 v. 8. 266 1

Procunier v. Navarette,

434 U. 8. 555 49700. . . . . . . 2 „„

Robinson v. California,

370 U. 8. 660 96. . . . . . „ 00e

Roe v. Wade,

410 U. 8. 113 5 1

Romeo v. Youngberg,

644 7. 24 147 Ga ug

Shapiro v. Thompson,

394 U. 8. 618 (1969) .. . e „00

Shelton v. Tucker,

364 U. 8. 479 ih nes

Skinner v. Oklahoma,

316 U.8. 335 esel

Specht v. Patterson,

386 U. 8. 605 C2967) . . . esse

Speiser v. Randall,

357 U. 8. 513 (195960. .

Swafford v. Templeton,

185 U. 8. 487 CE9O8) . n

9. 8. . Robe l,

389 v. 8. 258 n. ese

Vitek v. Jones,

445 9.8. 480 198) ʒ

-vi-

16

19,20,21

26

19

20,21

19

11

16

10

21

12,13

Cases

West v. Cabell,

153 v. 8. 78 118944)

Wiley v. Sinkler,

17 U.8s. 58 (1900) .ccccccccccese

Williams v. Illinois,

399 U.s. 235 (19700)ʒ )

Wolff v. McDonnell,

418 U. 8. 339 1970) 6 .

United States Constitution

First MWmend nent

Fourteenth Mmend nent.

Statutes

Pa. Stat. Ann. Tit. 50, § 4406...

29 U. 8. Cc. 1 796

42 U. 8. C. 1 1966”...

42 U. 8. C. 6 1997 (aꝶ0ʒ

Treatises

Bastress, The Least Restrictive

Alternative in Constitutional

RAjudication: An Analysis, a

Justification, and Some Criteria,

27 Vand. L. Rev. 971 (19747.

>

-vii-

Pages

10

10

13

12,15,32

18,21

11,25,30,

32

14

22

9,10

22,23

21

Treatises

Katz, The Jurisprudence of

Remedies: Constitutional

Legality and the Law of Torts

in Bell v. Hood, 117 v. pa. L.

Rev. Pee „„ „ „„ „ „„ “««b “„ “„ „„ „ “„ „„ “„ “„

J. Landynski, Search and Seizure

in the Supreme Court, 28 et seq.

(2966) Fo . ...e eee

N. Lasson, History and Development

of the Fourth Amendment to the

United States Constitution 43 et

|i: CPP eee eee eee ee eee ee eee

111

10

10

MO. 80-1429

In THE

SUPREME COURT OF THE UNITED STATES

October term 1980

DUANE YOUNGBERG, Individually and in

His Official Capacity as Superintendent,

Pennhurst State School and Hospital, and

RICHARD MATTHEWS, Individually and in His

Official Capacity as Director of Resident

Life, Pennhurst State School and Hospital,

and MARGUERITE CONLEY, Individually and

in Her Official Capacity as Unit Director,

Unit 9, Pennhurst State School and Hospital,

Petitioners

v.

NICHOLAS ROMEO, an Incompetent, by His Mother

and Next Friend, PAULA ROMEO,

Respondent

APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF

IN SUPPORT OF RESPONDENT

Applicants ask leave of court to file an Amici

Curiae Brief in support of Wicholas Romeo.

a. Interest of Amici Curiae.

Amicus Curiae Mental Health Associa-~

tion in Los Angeles is a non-profit

corporation of 1400 citizens concerned

with the plight of the mentally ill.

Among its members are prople who have

recovered, as well as people who are

presently suffering, from mental ill-

ness. In many circumstances Develop-

mentally Disabled people also are

mentally disabled. Amicus Curiae is,

therefore, involved in both areas. The

Mental Health Association has actively

advocated and litigated in representing

its members and their concerns. Among the

issues Litigatea is a claim of right to

treatment in the least intrusive manner

based upon California state statutes

(the Lanterman-Petris-Short Act which

reguires such treatment), the U.S.

Constitution and the California Constitu-

tion.

Amicus Curiae Mental Health Advocacy

Services is a non-profit corporation incor-

porated under the laws of California and

sponsered by the Los Angeles County Bar

Association, the Beverly Hills Bar

Association as well as the Mental Health

Association in California. The purpose

of Mental Health Advocacy Services is

to represent and litigate the interests

of the mentally and developmentally

disabled citizens of California. The

organization has been in existence since

1977 solely for the purpose of providing

services to the mentally ill and develop-

mentally disabled patients.

Both Amici are intensely concerned

with the issues of this case as it will

impact upon their members and the people

they represent.

b. Argument Presented

Amici will argue that the nature

of the deprivations are so fundamental

that they require a compelling ‘

state interest or substantial necessity

before they can be limited. Because

42 U.S.C. § 1983 exists to allow such

Claims for relief, the district court

appropriately assumed jurisdiction to

hear these claims based upon both

federal and state created due process

rights.

The plaintiff was properly confined

for care and treatment under the appropriate

Pennsylvania statutes. He was not confined

to be beaten, shackled and denied treatment.

This failure to provide for protection of

Mr. Romeo's liberty interests is compensable.

The Third Circuit's decision should be

upheld in these areas.

.

The defendants request for qualified

immunity is not appropriately before this

court. It was neither argued nor decided

by the court below and should not be

decided in the Supreme Court for the

first time.

Respectfully submitted,

Le

Counsel for Amici

BO. 80-1429

‘IN THE

SUPREME COURT OF THE UNITED STATES

October term 1980

DUANE YOUNGBERG, Individually and in

His Official Capacity as Superintendent,

Pennhurst State School and Hospital, and

RICHARD MATTHEWS, Individually and in His

Official Capacity as Director of Resident

Life, Pennhurst State School and Hospital,

and MARGUERITE CONLEY, Individually and

in Her Official Capacity as Unit Director,

Unit 9, Pennhurst State School and Hospital,

Petitioners

v.

NICHOLAS ROMEO, an Incompetent, by his Mother

and Next Friend, PAULA ROMEO,

Respondent

AMICI CURIAE BRIEF IN SUPPORT OF RESPONDENT

THE THIRD CIRCUIT COURT

OF APPEALS APPROPRIATELY

ORDERED A REMAND FOR

TRIAL WITH A JURY INSTRUC-

TION ON QUALIFIED IMMUNITY.

a. The District Court has

jurisdiction to hear

Mr. Romeo's damage claims

for constitutional depriva-

tions.

"The very essence of civil liberty

certainly consists in the right of every

‘individual to claim the protection of

the laws whenever he receives an injury.”

Marbury . Madison, 1 Cranch. 137, 163

(1803). If a federal statute provides

@ general right to sue for an invasion

of a protected right, federal courts may

use any “available remedy to make good the

wrong done." Bell v. Hood, 327 U.S. 678,

684 (1946) 42 U.S.C.§1983 provides

Mr. Romeo with the vehicle for suit and

the federal court with the authority to

hear his claims that he was denied due

process protections ä under

the U.S. Constitution. A state

cannot limit federal authority

1/ 42 u. s. c. Section 1983: Every

person who, under color of any

statute, ordinance, regulation,

custom, or usage, of any state or

territory, subjects or causes to be

subjected any citizen of the United

States or other person within the

jurisdiction thereof to the depriva-

tion of any rights, privileges, or

immunities assured by the constitu-

tion and laws, shall be liable to

the party injured in an action at

law, suit in equity, or other proper

proceeding for redress.

when legitimate constitutional claims

are made. Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S.

388, 395 (1971); In Re Neagle, 135 U.S. 1

(1889). Because 42 U.S.C. § 1983 is

available “[T)he federal question...

(becomes) . .. an independent claim

both necessary and sufficient to make

out... (a) .. . cause of action.”

Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388, 395 (1971).

In seeking relief a plaintiff

is entitled to receive damages for

constitutional deprivations because

"damages have been regarded as the

ordinary remedy for an invasion of

personal interests in liberty.”

Bivens vy. Six Unknown Federal

Narcotics Agents, supra, 403 U.S. at

-9-

ws.

As will be shown, the Third Circuit

rightfully found that violations of the

Fourteenth Amendment were wrought upon

Nicholas Romeo. A proper claim for

relief in federal court is provided by

42 U.S.C. § 1983. The district court

and subsequent appellate courts

appropriately assumed jurisdiction.

2/ In Bivens the court set forth a

ist of authority for this proposi-

tion: Nixon v. Condon, 286 U.S. 73

(1932); Nixon v. Herndon, 273 U.S.

536, 540 (1927); Swattord v. Templeton,

185 U.S. 487 (1902); Wiley v. Ae

179 U.S. 58 (1900); N Landynski, Search

and Siezure in the Supreme Court, 28

et - (1966); *. Lasson, History and

Beve of the Fourth Amendment to

the ted States Constitution, 43 et

„ (1937); Katz, The Jurisprudence

Remedies: Constitutional Legality

and the Law of Torts in Bell v. Hood,

117 U. Pa. L. Rev. 1, 8-33 (1568) ; cf.

West v. Cabell, 153 U.S. 78 (1894);

F. Feusier, 111 U.S. 17 (1884).

-10-

4.

to the method, reasons,

‘ terms and conditions of

confinement.

Involuntary confinement of an

individual entails a “massive cur-

tailment of liberty.” Humphrey v.

Cady, 405 u. s. 304, 509 (1972).

As this court said in O'Connor v.

Donaldson, 422 U.S. 563, 580 (1975):

{[T)here can be no doubt that

involuntary commitment to a

mental hospital like involun-

tary confinement of an indivi-

dual for any reason, is a

deprivation of liberty which

the state cannot accomplish

without due process of law.

Specht v. Patterson, 386 U.S.

605, 608 (1967).

In Vitek v- Jones. 445 U.S. 480,

487 (1980) this court cated that

"(t)he loss of liberty produced by

an involuntary commitment is more

than a loss of freedom from confine-

. Because of the substantial

impact that involuntary confinement

for mental health reasons has upon

those so confined, due process rights

necessarily are implicated. Absent

procedural compliance, “protected

3/ The rights of prisoners are even

more severly curtailed than the in-

voluntaril — because “Lawful

incarceration brings about the necessary

withdrawal or limitation of many pri-

vi s and rights, a retraction justified

by considerations underlying our penal

system.” Price v. Johnston, 334 U.S. 266

ne the same proposition see

North Carolina Prisoners! Leper unten. 473

, 418 U.S.

539 (1974) 2211 v e 777 U. s.

e

-12-

liberty interests would be ln

tionally infringed.“ Id. at 487.

Even though state law may

permit confinement of the mentally

411 that, by itself, does not establish

a constitutionally adequate purpose

for confinement. O'Connor v. Donaldson, supra,

422 U.S. at 574. “Due process requires

that the nature and duration of commit-

ment bears some reasonable relation to

the purposes for which the individual is

committed.” Jackson v. Indiana, 406 U.S.

8. See also Baxstrom v. Herold, 383

-8. 107, 113 (1966); In re Winship,

397 U.S. 358, 363 (1970); Williams v.

. Baltimore City Municipal

7 „8 ‘

ing similar due process

interests.

-13-

715, 738 (1972).

A person has a substantial

liberty interest in not being con-

fined unnecessarily for treatment.

Parham v. J.R., 442 U.S. 584 (1979).

‘Nicholas Romeo was committed under

| 27

Pa. Stat. Ann. Tit. 50, § 4406.

37 Pa. Stat. Ann. Tit. 50 § 4406:

(a) Whenever a person is believed

to be mentally disabled, and in need of

care or treatment by reason of such

mental disability, and examination of

such person has been made by a physician

or physicians, or for ary reason the

examination of such person cannot be

made, a petition may be presented to

the court of common pleas of the county

in which a person resides or is, for

his immediate examination or commitment

to an opriate facility for examina-

tion, observation and diagnosis.

(b) If, upon examination, it is

Getermined that such person is in need

of care at a facility, the examining

physicians or director, as the case

ae shall immediately r t to

court which may order commit~-

ment of such person for care and treatment.

(Emphasis added.)

214

The statute clearly requires care

and treatment. Likewise the

Pennsylvania Supreme Court has

required that those committed

as mentally disabled must be provided

care and treatment. In re Schmidt,

Pa. , 429 A. 2d 631 (1981).

This state created right provides

a constitutionally protectable liberty

interest which is enforcible if the

state does not provide such treatment.

Jackson v. Indiana, supra, Paul v. Davis,

424 U.S. 693, 710 (1976); Goldberg v.

Kelly, 397 U.S. 254 (1970); Wolff v.

McDonnell, 418 u. s. 539 (1974).

-15-

*

Due process also attaches because

freedom from confinement is an “elemental

liberty" Arnett v. Kennedy, 416 U.S. 134,

157 (1974). The terms and conditions of

confinement must be for a legitimate

purpose. O'Connor v. Donaldson, supra. A

person who has not committed any crime

may lose certain rights if confined as

a result of mental illness or retardation;

however, confinement solely for care is

no different than the confinement for the

status of being a narcotics addict found

unconstitutional in Robinson v. California,

370 U.S. 660 (1962).

If the confinement does not pro-

vide proper care and treatment then that

confined person has a due process “right

to be free from, and to obtain judicial

relief for, unjustified entrusions on

personal security." Ingraham v.

Wright, 430 U.S. 651, 673 (1977).

A In iser v. Randall, 357 U.S. 513,

5 115887 liberty was described as an

interest transcending value."

16

If requested it is the obligation

of the courts to view the confinement

to see if constitutional terms

and conditions are being met, as was done

in O'Connor v: Donaldson, supra.

The protections of the Fourteenth

Amendment apply to both the commitment pro-

cess and the conditions of confinement once con-

mitted. Judicial relief may be sought

and obtained for failures to abide by the

mandates of due process.

c. Eighth Amendment.

Neither petitioner nor the res-

pondent are contesting the Third

Circuit's interpretation of Ingraham

v. Wright, 430 U.S. 651 (1977) and

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

as precluding application of the

Eighth Amendment.

217

a.. The State cannot enfringe

upon fundamental rights

absent showing a compelling

tate interest.

Involuntary civil commitment of

mentally disabled individuals in

locked state institutions

not only involves the obvious cur-

tailment of freedoms of movement and

travel but also massive infringement

upon the First Amendment rights of

free association and expression. An

involuntarily committed mentally

disable® individual's connections with

the outggde world are greatly restricted,

if 0 severed. me individual is often

subjected to treatment modalities, such

as psychotropic medication, which affect

thought processes and expression. Further,

commitment may infringe upon the rights of

marriage, procreation and voting.

-18-

‘The Supreme Court has found all of

these rights fundamental for purposes

of the due process clause and has

strictly scrutinized state action which

infringes these rights. See e.g.,

Meyer v. Nebraska, 262 U.S. 390, 399%

(1923) (marriage); Skinner v. Oklahoma,

316 U.S. 535, 541 (1942) (procreation) ;

Griswold v. Connecticut, 381 U.S. 479

(1965) (privacy); Roe v. Wade, 410 U.S.

113 (1973) (decision to bear children);

Kent v. Dullas, 357 U.S. 116 (1958);

Apthekcer v. Secretary of State, 378

U.S. 500 (1964); Shapiro v. Thompson,

394 U.S. 618 (1969) (travel); Bates v.

Little Rock, 361 U.S. 516 (1960)

(association); Illinois State Board

of Elections v. Socialist Workers

Party, 440 U.S. 173 (1979) (voting).

This court has also recognized that

constitutional rights arise because

-19-

of the severe social stigma arising

from commitment for mental disability.

Addington v. Texas, 441 U.S. 418, 425,

426 (1979).

When fundamental rights are in-

fringed strict scrutiny demands that

the state action be justified by a

showing of compelling state interest.

(See Roe v. Wade, 410 U.S. 113 (1973)).

Further, even if the state can demon-

strate a compelling state interest

which justifies infringing the

fundamental rights of involuntarily

committed patients, infringements

upon such rights must be carried

out in the least drastic manner.

The classic statement of the principle

was made in Shelton v. Tucker, 364 U.S.

479, 488 (1960); even though the govern-

mental purpose is legitimate and

-20-

substantial, that purpose cannot be

pursued by means which broadly stifle

fundamental personal liberties when

the end can be more narrowly achieved.

This principle has been part of the

U.S. Supreme Court's analysis in

almost every field of constitutional

law, including substantive due process,

’ Griswold x. Connecticut, supra, Roe v.

Wade, supra; procedural due process,

Joint Anti-Fascist Refugee Committee v.

McCrath, 341 U.S. 126, 163 (1951), the

. Commerce clause, Dean Milk Co. v. Madison,

340 U.S. 349 (1951); and the First

Amendment ‘Overbreadth" cases, e.g., U.S.

v. Robel, 389 U.S. (1967); Shelton v.

Tucker, supra. See Bastress, The

Least Restrictive Alternative in

Constitutional Adjudication: An

Analysis, a Justification, and Some

Criteria, 27 Vand. L. Rev. 971 (1974).

The principle was recently restated by

—21—

the U.S. Supreme Court in Illinois

State Board of Elections v. Socialist

Workers Party, 440 U.S. 173, 185

(1979):

Our previous opinions have

emphasized that ‘even when pur-

suing a legitimate interest, a

state may not choose means that

unnecessarily restrict constitu-

tionally protected liberty,

Kusper v. Pontikes, 414 U.S. 31,

58-59 (1973), and we have required

that state adopt the least drastic

means to achieve their ends.

That this applies in the context of

civil commitment was accepted by the U.S.

Supreme Court in O“ connor v. Donaldson,

7

422 U.S. 503, 575 (1975) The Court

reasoned that “the state has a proper

interest in providing care and assistance

to the unfortunate” but rejected the

idea that commitment for care alone was

sufficient grounds because commitment

is “rarely if ever a necessary condition

for raising the living standards of those

capable of surviving safely in freedom,

on their own, or with the help of family or

friends.“ There must be a greater reason

for confinement than a desire to better the

situation of the committed person in order

for confinement to be constitutional. The

confinement must further a substantial

government interest. Treatment is clearly

such an interest.

congress has reaffirmed this principle

of full citizenship in § 504 of the Rehabili-

tation Act of 1973, 87 Stat. 394 as amended

29 U.S.C. § 794. Congress has also provided

the United States Attorney General with the

authority to bring actions on behalf of

institutionalized citizens who are being sub-

jected to conditions which “deprive such

(footnote con'd on next page)

-23-

In O'Connor this court reviewed

the terms and conditions of involuntary

confinement; analyzing them in light of

the due process protections which apply

to the institutionalized mentally dis-

abled. It recognized that the Fourteenth

Amendment applies equally to the conditions

of confinement as to the process by which

someone is confined.

A fundamental interest can only

be limited by a compelling state

interest. Even if the state has a

legitimate goal ("providing care and

treatment") it will be denied the

power to achieve that goal by using

means which unnecessarily encroach

upon fundamental rights.

The actions of the officials at

Pennhurst hospital do not meet these

Constitution or laws of the 9 States.

42 U.S.C. 1997(a), Public Law 96-247.

3

e. Wicholas Romeo was Denied

‘ The Protection of the

‘ Fourteenth Amendment in Three

Separate Ways.

The Court of Appeals appropriately

defined Romeo's claims in traditional due

process terms: 1) a right to be free from

undue bodily restraint; 2) a right to

personal security and protection; and 3)

a right to adequate treatment. The Court

found that:

The first two are undiluted

legal concerns relating to pro-

tected liberty interests, as

such, they are entitled to

heightened judicial scrutiny.

The third entails mixed questions

of law and medical judgment, and

thus requires a more flexible

standard of judicial review and

suitable deference to informed

-25-

medical opinion. Romeo v. X ’

644 F.24 147, 159 (1980).

The court, in reviewing the due process depriva-

tion claims applied the tri-partate balancing

inguiry set forth in Mathews v. Eldridge,

424 U.S. 319, (1976).

In accepting certiorari 2 court

changed the questions 3 however,

these are also reviewable under the

traditional analysis.

1) A right to be free from

undue bodily restraint.

Nicholas Romeo was shackled to his

bed for long hours every day for at least

7/ “First, the private interest that will be

affected by the official action; second, the

risk of an erroneous deprivation of such

interest through the procedures used and

the probable value, if any, of additional

or substitute procedural safeguards; and

finally, the Government's interest, includ-

the function involved and the fiscal

administrative burdens that the addi-

tional or substitute requirement would entail.”

Id. 424 U.S. at 334-34.

8/ Whether an institutionalized mentally

person has a substantive due pro-

cess right,

(footnecte con d on next page)

-26-

one year. The shackling was not

aimed at any treatment -- rather it

was merely an administrative con-

venience. The record appears to be

bereft of any evidence that attempts

were made to use a less harsh, severe

and physically damaging res-

traint.

ven after committment a

person has a due process right to

be free from unreasonable physical

restraint. Parham v. Z. R., 442

U.S. 584, 600-601 (1979); Ingraham

Vv. Wright, supra, 430 U.S. at 673-674.

(footnote cont'd from previous page)

(a) to receive treatment that is

both acceptable in light of pre-

sent medical or other scientific

know e and that is least

instrusive treatment available

under circumstances; (b) to be

free of restraints, whether for

treatment or protection, absent

show of compelling necessity,

and (c) to be protected from harm,

however caused, absent showing of

substantial necessity?

-27-

Even prisoners, who suffer the

curtailment of their liberty

as a valid function of punish-

ment, (see footnote /) have a

right to be free from unnecessary

bodily restraints. Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1,

18-19 (1979). Certainly defendants

would not contend that committment

can be used punitively. Addington

Vv. Texas, supra, 441 U.S. at 428,

makes it very clear that punishment

is not a permissible reason for con-

finement of the mentally disabled.

Defendants might claim that the

shackling was a form of treatment;

however, it looks suspiciously like

the “milieu therapy” offered the

plaintiff in O'Connor v- Donaldson,

Supra. In that case the treatment

offered was the “milieu” of a mental

~28-

hospital and nothing more. 14.

422 U.S. at 569. Like the “milieu

therapy” found unacceptable in

O'Connor the shackling of Nicholas

Romeo is nothing more than

administrative convenience cloaked

in the guise of the “milieu of

treatment by shack I ing.

If the shackling was a form of

punishment as part of the committment

process it would be unconstitutional.

Addington v. Texas, supra. If it was

treatment there has to be more than a

bald assertion that an obviously

major encroachment on physical liberty

is treatment. O'Connor v. Donaldson,

supra. Finally, if it was mere

administrative convenience this

violates the substantive due pro-

tections created by the Fourteenth

Amendment and the requirements of care

and treatment of Pennsylvania statutes.

The plaintiff's liberty interests

can only be limited upon a showing of

a compelling state interest. The record

is empty of any substantial or compelling

state interest requiring such inhumane

treatment.

The Third Circuit's opinion should

be upheld in this area also.

-30-

2) A right to personal

security and protection.

In a four year period Nicholas

Romeo suffered seventy-seven injuries.

Some of these were self-inflicted; the

rest were the results of attacks by

others. These were the recorded

injuries in a institution so beset by

administrative and operational problems.

One can fairly reliably infer that there

were many more injuries that went n

Mr. Romeo has done nothing

other than to be born into this world

developmentally disabled. His only

crime is that he needs care and

treatment. Yet defendants seem to

feel that whatever you are subjected

to at Pennhurst is exactly that to

which you are entitled, because the

state's only obligation is, seemingly,

9/ See Pennhurst v. Halderman, 612 F.2d

4 3d Cir. (1979) for a description of the

decrepit facilities at Pennhurst State

Hospital.

-31-

to keep you there. This court would

never allow such treatment of prisoners.

Hutto v. Finney, 437 U.S. 678 (1978);

Bell v. Wolfish, supra, 441 U.S. at 520;

Wolff v. McDonnell, supra. The Fourteenth

Amendment will simply not allow such denials

of a liberty interest (personal safety).

Certainly this court cannot allow such

atrocities to be concealed beneath

the cloak of so-called treatment“

O'Connor v. Donaldson, supra.

The plaintiff has both an indepen-

dent constitutional right to personal

safety and treatment and a state-created

right. In re Schmidt, supra. This

liberty interest cannot be limited absent

some substantial necessity. No such necessity

has been shown. Financial concerns can

be considered, but, they must be viewed

in the light of the interest involved. No

financial concerns have been offered in

the record as it presently appears which

can justify 77 personal injuries in a

four year period. The Third Circuit

opinion should be upheld.

3) Right to Treatment.

This issue has been briefed

extensively and very adequately by

plaintiff as well as amici represented by

the Mental Health Law Project.

Present Amici will only note that

the terminology used by defendants

simply is an attempt to create an

issue which is not present. The

Pennsylvania statutes are very clear,

as is the law,In re Schmidt, supra; i.e.,

an institutionalized person has a

right to care and treatment. Those

requirements alone can resolve this

portion of the case. The district

court could certainly review the denial

of that state created due process right

based upon traditional due process

analysis.

+33-

k. Qualified Immunity.

"In order for an issue to be

properly before the Court it must

have been raised below.” Procunier

v. Navarette, 434 U.S. 555, 567

(1978), (Burger, C.J., dissenting).

The defendants did not argue that they

had a qualified right to immunity

in the Court of Appeals. in Bivens

v. Six Unknown Federal Narcotics

Agents, this court determined that

an issue not raised below could not

be considered on appeal. As stated

by Justice Brennen for the court,

"this question was not passed

upon by the Court of Appeals, and

accordingly we do not consider it

here." Id., 403 U.S. at 397, 398.

Unlike in Procunier v. Navarette,

supra, where the defendants claimed

a good faith defense, and where

they could not reasonably have

known that their actions were

unlawful and, further, there was

a record upon which to make this

determination, in this case there

was no such record nor were there

any such claims of immunity by the

defendants even though there was a

full trial on the merits. For the

court to consider the claims at this

late date simply runs counter to the

purpose of the Supreme Court. These

issues should have been raised and

briefed in a lower court based upon

the factual presentations. Determina-

tion by the Supreme Court at this

time is not appropriate.

CONCLUSION

The due process reasoning

applied by the circuit court is

simply a traditional analysis of

fundamental liberty interests.

It's findings may be in language

which implies new constitutional

standards; however, a rational

examination clearly shows that the

state, under traditional due process

constraints, cannot confine someone

for care and treatment and let that

person be beaten, go untreated and

be shackled, for days on end, to his

bed. There was no showing of any

compelling state interest, or any sub-

stantial need to confine the plain-

tiff in such an inhumane manner.

-36-

The Third Circuit's opinion

should be upheld in its entirety.

Respectfully submitted,

DAN STORMER

MARY BURDICK

Western Center on Law

and Poverty, Inc.

3535 W. 6th Street

Los Angeles, Calif. 90020

(213) 487-7211

JAMES PREIS

Mental Health Advocacy

Services

650 S. Spring St., Suite 807

Los Angeles, Calif. 90014

(213) 623-1419

Attorneys for Amici Curiae

-37-

PROOF OF SERVICE

I, DAN STORMER, certify

that on this day, September 23,

1981, true and correct copies

of the foregoing were mailed,

pursuant to Rule 28, Rules of the

Supreme Court of the United States,

by United States mail, to:

Edmond A. Tiryak

Community Legal Services

Law Center Northeast

3156 Kensington Avenue

Philadelphia, Pa. 19124

David H. Allshouse

Deputy Attorney General

Office of Attorney General

1641 Strawberry Square

Harrisburg, Pa. 17120

DATED: September 23, 1981

EA

“DAN STORMER

Attorney of Record

for Amici Curiae

EFSKI

BARSH

* CALIFOR

AL SEAL

— OFFICI

RY STEPHANIE

$A: NOTARY bel

2

-38-

Subscribed and sworn to before me

this 23rd day of September , 1981.

8 easels 2