Respondents Brief — City of Revere v. Massachusetts Gen. Hospital

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ON A WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS.

Brief for Respondent.

Questions Presented.

1. Where the Massachusetts Supreme Judicial Court found

that the City of Revere waived any objection to the standing of

the Massachusetts General Hospital (“MCGH”), may Revere

raise the argument for the first time in this Court and, if so,

does MGH have standing under federal law to assert the treat-

ment rights of its patient in the custody of Revere?

2. Does the remedial system developed by the Massachu-

setts Supreme Judicial Court to implement pre-trial detainees’

substantive constitutional right to necessary medical treatment

raise a substantial federal issue for this Court to review?

3. In order to protect the constitutional rights of pre-trial

detainees, may a state require its municipalities to bear, at

least in the first instance, the costs of medical care provided to

the detainees at the municipalities’ request?

I. The Supreme Judicial Court's consideration of

the Eighth Amendment instead of the Fourteenth

is harmless error because both provisions require

the government to care for persons in custody

II. The standing argumeit raised by Revere in this

court is without merit

A. This court may not review the Supreme Judi-

cial Court’s determination that MGH had stand-

ing to proceed in state court

B. If this court were to consider the standing ar-

gument, it should find that MGH has standing

as a matter of federal law

C. If this court were to find that MGH has no

standing under federal law, it should not dis-

turb the Supreme Judicial Court's finding under

state law, but should dismiss the writ

III. Massachusetts’ adoption of a remedial rule to

insure provision of constitutionally required medi-

cal care is a legitimate exercise of the state’s au-

thority to govern its own internal affairs

A. Massachusetts’ effort to implement accepted

constitutional norms presents no federal ques-

tion for review by this court

B. Even if a federal question is intertwined in

Supreme Judicial Court’s decision, this court

should not risk reviewing state law issues by

considering the merits

ii TABLE OF AUTHORITIES CITED.

IV. Even if this court were to review the state's

remedy, it should do so with deference

A. In seeking to insure protection of constitu-

tional rights, Massachusetts may assume for it-

self a broader remedial system than the federal

courts could properly impose

B. The remedial system adopted by the Supreme

Judicial Court reflects that court’s greater

familiarity with Massachusetts laws and con-

cerns

V. Revere’s constitutional obligation to provide

necessary medical care for detainees in its custody

includes, at least in the first instance, the obliga-

tion to pay for that care

Conclusio>

Table of Authorities Cited.

CAsEs.

Abington School District v. Schempp, 374 U.S. 203

(1963)

Air Reduction Company v. Hickel, 420 F.2d 592 (D.C.

Cir. 1969)

Alfred L. Snapp & Son v. Puerto Rico, 73 L.Ed.2d 995

(1982)

Backman v. Secretary of the Commonwealth, 387 Mass.

549 (1982)

Baird v. Attorney General, 371 Mass. 741, 360 N.E.2d

288 (1977)

3ln

TABLE OF AUTHORITIES CITED. iii

Barrows v. Jackson, 346 U.S. 249 (1953) 7n

Bates v. Arizona, 433 U.S. 350 (1977) 19n

Beach v. District of Columbia, 320 F.2d 790 (D.C.

Cir. 1963)

Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967) 24n

Beckwith v. United States, 425 U.S. 341 (1976) 25n

Bell v. Wolfish, 441 U.S. 520 (1979) 3

Bellotti v. Baird, 428 U.S. 132 (1976) l4n

Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144

(D.D.C. 1976) 22n

Betts v. Brady, 316 U.S. 455 (1945) 23

Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971) 21

Board of Education v. Pico, 73 L.Ed.2d 435 (1982) 25n

Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977) 3n, 17n

Boynton v. Virginia, 364 U.S. 454 (1960) 4

Braxton v. West Virginia, 208 U.S. 192 (1908) 9

Brewer v. Hoxie School District No. 46, 238 F.2d 91

(8th Cir. 1956) 7n

Carey v. Piphus, 435 U.S. 247 (1978) 24n

Carlson v. Green, 446 U.S. 14 (1980) 2in, 22, 24, 29

Chandler v. Florida, 449 U.S. 560 (1981) 2in

Chapman v. California, 386 U.S. 18 (1967) 6n

City of Mesquite v. Aladdin’s Castle, Inc., 71 L.Ed.2d

152 (1982) 11n, 13, 15n, 25n

City of Monell v. Department of Social Services, 436

U.S. 658 (1978) 35n

Clearfield Trust Co. v. United States, 318 U.S. 363

(1943) 29n

iv TABLE OF AUTHORITIES CITED.

Coleman v. Miller, 307 U.S. 433 (1939) 8,9

Commissioner of Correction v. Myers, 379 Mass. 255,

399 N.E.2d 452 (1979)

Commonwealth v. Golston, 373 Mass.249, 366 N.E.2d

744 (1977), cert. denied, 434 U.S. 1039 (1978) 27

Commonwealth v. Sheppard, 387 Mass. 488 (1982) 14n

Connor v. Finch, 431 U.S. 407 (1977) 19

Cooper v. Mitchell Brothers, 70 L.Ed.2d 262 (1982) 11, 13n

Costello v. Wainwright, 525 F.2d 1239 (5th Cir. 1976) 30

Crawford v. Los Angeles Board of Education, 73 L.Ed.

2d 948 (1982) 22n

Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053

(1978) 26

Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601

(1982) 26

Davis v. Passman, 442 U.S. 228 (1979) 22n

Department of Mental Hygiene v. Kirchner, 380 U.S.

194 (1965) l4n

DeSylva v. Ballantine, 351 U.S. 570 (1956) 24n

Doremus v. Board of Education, 342 U.S. 429 (1952) 8

Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976) 3n

Durley v. Mayo, 351 U.S. 277 (1956) 13n

Elkins v. United States, 364 U.S. 206 (1960) 23

Engle v. Isaac, 71 L.Ed.2d 783 (1982) 6

Estelle v. Gamble, 429 U.S. 97 (1976) 10

Ex Parte Royall, 117 U.S. 241 (1886) 16n

Fant v. Fisher, 414 F.Supp. 807 (W.D. Okla. 1976) 32n

Fare v. Michael C., 442 U.S. 707 (1979) 24n

Fay v. Noia, 372 U.S. 391 (1963) 6n

TABLE OF AUTHORITIES CITED. v

Federal Energy Regulation Commission v. Mississippi,

72 L.Ed.2d 532 (1982) 9n, 19n, 21n

Finney v. Arkansas Board of Correction, 505 F.2d 194

(8th Cir. 1974) 17n, 30

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) 13

Frothingham v. Mellon, 262 U.S. 447 (1923) 8n

Fullilove v. Klutznick, 448 U.S. 448 (1980) 18

Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) 30

Gideon v. Wainwright, 372 U.S. 335 (1963) §16n, 23, 30, 31

Gomillion v. Lightfoot, 364 U.S. 339 (1960) 12n

Gordon v. Lance, 403 U.S. 1 (1971) 12n

Greenholtz v. Nebraska Penal Inmates, 442 U.S.1(1979) 3

Griffin v. Illinois, 351 U.S. 12 (1956) 19, 22n, 30, 31

Griswold v. Connecticut, 381 U.S. 479 (1965) 6

Guardianship of Roe, Mass. Adv. Sh. (1981) 981, 421

N.E.2d 40 26

Harris v. McRae, 448 U.S. 297 (1982) 7, 16, 31

Harris v. Rivera, 70 L.Ed.2d 530 (1981) 22

Harrison v. NAACP, 360 U.S. 167 (1959) 15n, 25n

Henry v. Mississippi, 379 U.S. 443 (1965) 6n

Herb v. Pitcairn, 324 U.S. 117 (1945) 13, 14

Hills v. Gautreaux, 425 U.S. 282 (1976) 18

Hodel v. Virginia Surface Min. & Recl. Ass’n, 452 U.S.

264 (1981) 9n

Hospital Services, Inc. v. Duman, 297 N.W.2d 320 (N.

Dak. 1980) 28n

Howard v. Warden, 348 F.Supp. 1204 (E.D. Va. 1972),

app. dismissed, 474 F.2d 1341 (4th Cir. 1973) 22n

Hughes v. Superior Court, 339°U.S. 460 (1950) 12

vi TABLE OF AUTHORITIES CITED.

Idaho Department of Employment v. Smith, 434 U.S.

100 (1977) 15n

Imbler v. Pachtman, 424 U.S. 409 (1976) 21n, 24n

Ingraham v. Wright, 430 U.S. 651 (1977) 3

Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754

(3d Cir. 1979) 3n

Inmates of Suffolk County Jail v. Eisenstadt, 360 F.

Supp. 676 (D. Mass. 1973), aff’d 494 F.2d 1196 (1st

Cir.), cert. denied sub nom. Hall v. Inmates of Suf-

folk County Jail, 419 U.S. 977 (1974) 3, 17n, 33n

In Re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d

134 (1978) 27

In Re Moe, 385 Mass. 555, 432 N.E.2d 712 (1982) 26

In re Quinlan, 40 N.J. 10, 355 A.2d 647, cert. denied

sub nom. Gorger v. New Jersey, 429 U.S. 922 (1976) 26n

In re Spring, Mass. Adv. Sh. (1980) 1209, 405 N.E.2d

452 (1979) 26

Isaac v. United States, 490 F. Supp. 613 (S.D. N.Y.

1979) 17n

James v. Strange, 407 U.S. 129 (1972) 31

Jankovich v. Indiana Toll Road Commission, 379 U.S.

487 (1965) 13n

Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied

sub nom. Employee-Officer John v. Johnson, 414

U.S. 1033 (1973) 4n

Johnson v. Harris, 479 F. Supp. 333 (S.D. N.Y. 1979) 17n

Johnson v. Louisiana, 406 U.S. 356 (1972) 2in

Jones v. Wittenberg, 330 F. Supp. 707 (N.D. Ohio

1971), aff'd sub nom. Jones v. Metzger, 456 F.2d 854

(6th Cir. 1972) 17n

TABLE OF AUTHORITIES CITED. vii

Katzenbach v. Morgan, 384 U.S. 641 (1966) 25

Ker v. California, 374 U.S. 23 (1963) 21n, 23

King County v. Seattle, 70 Wash. 2d 988, 425 P.2d

887 (1967) 28n

Klinger v. Missouri, 13 Wall. 257 (1871) 13n

Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498 (1972) 15n

Lane v. Candura, 6 Mass. App. Ct. 377, 376 N.E.2d

1232 (1978) 27

Larson v. Valente, 72 L.Ed. 2d 33 (1982) 15n, 26n

Lutheran Medical Center v. Omaha, 204 Neb. 292, 281

N.W.2d 786 (1979)

28n

McKane v. Durston, 153 U.S. 684 (1894) 20n

McNeal v. Culver, 365 U.S. 109 (1961) 23

Mapp v. Ohio, 367 U.S. 643 (1961) 23

Marshall v. Dye, 231 U.S. 250 (1913) 8

Maryland v. Louisiana, 68 L.Ed.2d 576 (1981) 7n

Memphis Natural Gas Co. v. Beeler, 315 U.S. 649 (1942) 13n

Michigan v. Tucker, 417 U.S. 433 (1974) 2in

Miller v. Carlson, 401 F. Supp. 835 (M.D. Fla. 1975),

aff'd 563 F.2d 741 (5th Cir. 1977) 17n

Milliken v. Bradley, 418 U.S. 717 (1974) 18

Milliken v. Bradley, 433 U.S. 267 (1977) 18

Mills v. Rogers, 73 L.Ed.2d 16 (1982) 15n

Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456 (1981) 12n, 24

Minnesota v. National Tea Co., 309 U.S. 551 (1940) ll,

13, 14

Miranda v. Arizona, 384 U.S. 436 (1966) 20, 22n, 33n, 36

viii TABLE OF AUTHORITIES CITED.

Missouri ex rel. Southern Railway Company v. May-

field, 340 U.S. 1 (1950) ll

Moe v. Secretary of Administration and Finance, Mass.

Adv. Sh. (1980) 464, 417 N.E.2d 387 11

Moor v. County of Alameda, 411 U.S. 693 (1973) 24n

Mt. Carmel Medical Center v. Board of City Commis-

sioners, 1 Kan. 2d 374, 566 P.2d 384 (1977) 28n

Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590

(1875) 13

Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980) 17n

NAACP v. Alabama, 357 U.S. 449 (1958) 6n

National Ass’n for Advance. of Colored People v. Patty,

159 F. Supp. 503 (E.D. Va. 1958), rev'd on other

grounds sub nom. Harrison v. NAACP, 360 U.S. 167

(1959) 7n

National League of Cities v. Usery, 426 U.S. 833 (1976) 9n,

19n

New State Ice Co. v. Liebman, 285 U.S. 262 (1932) 2in

Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974),

cert. denied, 421 U.S. 948 (1975) 4n, 17n

New York State Association for Retarded Children v.

Carey, 631 F.2d 162 (2d Cir. 1980) 30

North Carolina v. Butler, 441 U.S. 369 (1979) 24n

Oregon v. Hass, 420 U.S. 714 (1975) 14, 15n, 24

O'Sullivan v. Felix, 233 U.S. 318 (1914) 24n

Palmer v. Thompson, 403 U.S. 217 (1971) 22n

Parham v. J.R., 442 U.S. 584 (1979) 31

Parratt v. Taylor, 68 L.Ed.2d 420 (1981) 21n, 36

Patmore v. Carlson, 392 F. Supp. 737 (E.D. Ill. 1975) 22n

Paton v. LaPrade, 424 F.2d 862 (3d Cir. 1975) 22n

TABLE OF AUTHORITIES CITED. ix

Patsy v. Florida Board of Regents, 73 L.Ed.2d 172

(1982) 13n

Pawhuska v. Pawhuska Oil Co., 250 U.S. 394(1919) 9, 12n

People v. Cahan, 44 Cal.2d 434, 282 P.2d 905 (1955) 26n

Picard v. Connor, 404 U.S. 270 (1971) l6n

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 7n

Princeton University v. Schmidt, 70 L.Ed. 2d 855 (1982) 8

Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976) re-

versed on other grounds sub nom. Alabama v. Pugh,

738 U.S. 781 (1978) 16n

Railroad Commission v. Pullman Co., 319 U.S. 496

(1941) 15n, 33n

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) 28n

Reconstruction Finance Corp. v. Beaver County, 328

U.S. 204 (1946) 24n

Rescue Army v. Municipal Court, 331 U.S. 549 (1947) 13

Rhodes v. Chapman, 452 U.S. 337 (1981) 16n

Rinaldi v. Yeagar, 384 U.S. 305 (1966) 31

Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969) 17n

Rizzo v. Goode, 423 U.S. 362 (1976) 19n

Robertson v. Wegmann, 436 U.S. 584 (1978) 24, 29

Rose v. Lundy, 71 L.Ed.2d 379 (1982) 15n

Ross v. Moffitt, 417 U.S. 600 (1974) 28n

Scott v. Illinois, 440 U.S. 367 (1979) 23n, 36

Sailors v. Board of Education, 387 U.S. 105 (1967) 12n

Santosky v. Kramer, 71 L.Ed.2d 599 (1982) 21n, 26n

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.

26 (1976) 7n

Singleton v. Wulff, 428 U.S. 106 (1976) 6

x TABLE OF AUTHORITIES CITED.

Smith v. Indiana, 191 U.S. 138 (1903) 8

Spector Motor Service v. McLaughlin, 323 U.S. 101

(1944) 15n

Spicer v. Williamson, 191 N.C. 487, 132$.E. 291 (1926) 28n

Stanley v. Illinois, 405 U.S. 645 (1972) 4

Stembridge v. Georgia, 434 U.S. 541 (1952) 13n

Stewart v. Kansas City, 239 U.S. 14 (1915) 9

Stimpson v. Hunter, 234 Mass. 61, 125N.E.155(1919) 28n

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) 24n

Superintendent of Belchertown v. Saikewicz, 373 Mass.

728, 370 N.E.2d 417 (1977) 27

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) 18

Terminello v. Chicago, 337 U.S. 1 (1949) 4

Textile Workers of America v. Lincoln Mills, 353 U.S.

448 (1957) 24n

Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977) 17n, 30

Toll v. Moreno, 73 L.Ed.2d 563 (1982) 28n

Trenton v. New Jersey, 262 U.S. 182 (1923) )

Truax v. Raich, 239 U.S. 33 (1915) 7n

Tulsa v. Hillcrest Medical Center, 292 P.2d 430 (Okla.

1956) 28n

Tyler v. Judges, 179 U.S. 405 (1900) 8

U.A.W. v. Hoosier Cardinal Corp., 383 U.S. 696 (1966) 24n

United States v. Allen, 596 F.2d 227 (7th Cir. 1979),

cert. denied, 444 U.S. 871 (1979) 32n

United States v. Mendenhall, 446 U.S. 544 (1980) 31

United States v. Yazell, 382 U.S. 341 (1966) 29n

Upham v. Seamon, 71 L.Ed.2d 725 (1982) 18, 25n

TABLE OF AUTHORITIES CITED. xi

Valley Forge Christian College v. Americans United

for Separation of Church and State, 70 L.Ed.2d 700

(1982) 6

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) 19n

Wainwright v. Sykes, 433 U.S. 72 (1977) 6

Washington v. Seattle School District No. 1, 73 L.Ed.

2d 896 (1982) 9, 12n

Watson v. City of Memphis, 373 U.S. 526 (1963) 3

Webb v. Webb, 68 L.Ed. 2d 392 (1982) 6, 11, 15n,

16n, 25n et seq.

Wellesley College v. Attorney General, 313 Mass. 722,

42 N.E.2d 220 (1943) 8

Welsh v. Likens, 373 F. Supp. 487 (D. Minn. 1974) 30

West v. Keve, 571 F.2d 158 (3d Cir. 1978) 17n

Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976) 17n

Whitcomb v. Chavis, 403 U.S. 124 (1971) 19

Williams v. Mayor, 289 U.S. 36 (1933) 9

Wisconsin v. Constantineau, 400 U.S. 433 (1971) 15n, 25n

Wise v. Lipscomb, 437 U.S. 535 (1978) 18

Wolf v. Colorado, 338 U.S. 25 (1949) 23

Wuchter v. Pizzutti, 276 U.S. 13 (1928) 4

Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) 30, 36

Youngberg v. Romeo, 73 L.Ed.2d 28 (1982) 30, 31

Younger v. Harris, 401 U.S. 37 (1971) 19, 29n

Zant v. Stephens, 72 L.Ed. 2d 222 (1982) l4n

STATUTES.

United States Constitution.

Article III 2,6

xii TABLE OF AUTHORITIES CITED.

First Amendment

Fourth Amendment

Fifth Amendment

Sixth Amendment

Eighth Amendment

Ninth Amendment

Eleventh Amendment

Fourteenth Amendment

42 U.S.C.

§ 291

§ 1983

§ 1988

42 C.F.R.

§ 435. 1008(a)(i)

§ 435.1009

47 Fed. Reg. 43578 et seq.

Massachusetts General Laws

c. 6A, §§ 37-46

c. 29, § 63

ec. 111C

§14

§ 70E(k)

Mass. St. 1979, c. 214

Mass. St. 1980, c. 540

Mass. St. 1981, c. 432

Mass. St. 1982, c. 372

3, 4, 10n, 22n, 28n et seq.

4, 10n, 11, 22n, 32

2in,

gefeek ee FEE F

MISCELLANEOUS.

M. Broad, Federal Common Law: Protecting State

Interests, 37 Fed. Bar J. 1 (1978)

& 8

TABLE OF AUTHORITIES CITED.

Developments in the Law: Section 1983 and Federal-

ism, 90 Harv. L. Rev. 1133 (1977)

Department of Health and Human Services (Health

Care Financing Administration), Medicare Hospital

Manual § 260.3 (Aug. 10, 1982), also appearing in

CCH, Medicare and Medicaid Guide § 4050 (Nov.

1982)

H. Hart, The Power of Congress to Limit the Jurisdic-

tion of Federal Courts: An Exercise in Dialectic,

66 Harv. L. Rev. 1362 (1953)

Y. Kamisar, The Right to Counsel and the Fourteenth

Amendment: A Dialogue on “The Most Pervasive

Right” of an Accused, 30 U. Chi. L. Rev. 1 (1962)

L. King, Public Police and Administrative Aspects of

Prison and Jail Health Services, reprinted in A.C.

L.U. National Prison Project, Representing Prisoners

(1981)

E. Neisser, Is There a Doctor in the Joint: The Search

for Constitutional Standards for Prison Health Care,

63 Va. L. Rev. 921 (1977)

Note, Constitutional Limitations on the Conditions of

Pretrial Detention, 79 Yale L.J. 941 (1970)

Note, 34 Minn. L. Rev. 134 (1950)

L. Sager, Fair Measure: The Legal Status of Under-

enforced Constitutional Norms, 91 N.Y.U.L. Rev.

1212 (1978)

R. Traynor, Mapp v. Ohio at Large in the Fifty States,

1962 Duke L. J. 319

19n

16n

12n

L. Tribe, American Constitutional Law, § 3-5 (1978) 9n, 25n

N. Ward, Massachusetts Body of Liberties (1641) 27n, 28n

No. 82-63.

In the

Supreme Court of the United States.

Ocroser Term, 1982.

CITY OF REVERE,

PETITIONER,

MASSACHUSETTS GENERAL HOSPITAL,

RESPONDENT.

ON A WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTI! OF MASSACHUSETTS.

Brief for Respondent.

Summary of Argument.

The state court’s consideration of substantive rights provid-

ed by the Eighth Amendment is harmless error, since uncon-

victed prisoners have rather than the Fourteenth even greater

rights to medical care under the Fourteenth Amendment.

In this Court, Revere claims for the first time that the Mas-

sachusetts General Hospital (“MGH”) lacks standing. The

Massachusetts Supreme Judicial Court's express finding under

state law that Revere waived this argument is an independent

state ground of decision not subject to review here. If the

Court were to consider the question, it should find that MGH

does have standing under federal law to assert the rights of its

patients in custody so those rights will be vindicated. And

even if the Court were to find no federal standing, it should

dismiss the writ of certiorari, since the state courts are bound

by neither the Article III nor the prudential considerations on

which federal standing rules are based. Moreover, Revere is

but a municipality created by Massachusetts, and so has no

standing itself to challenge a state rule requiring it to assume

certain costs related to its police activities.

The remedial system created by the Supreme Judicial Court

is a matter of state law. State law does not become federalized

merely because it is intended to protect federal rights. Even if

some federal law were intertwined in the decision below, this

Court should take appropriate steps to insure that it is not

passing on questions of state law or rendering an opinion that

may prove to be merely advisory.

Massachusetts has a legitimate interest in protecting the

constitutional rights of pretrial detainees. While a federal

court must minimize its ‘ntrusion into state autonomy, the

state courts are not so constrained. The state, whether

through its legislature or its courts, may do more than is

minimally necessary to prevent constitutional violations and

may do so in a way that furthers other state policies.

Thus, if the Court were to reach the merits, it should give a

measure of deference to the state court’s remedy because

Massachusetts is in the best position to determine the optimal

way to protect the rights of its detainees, and no federal in-

terest requires creation of a uniform national remedy for state

pre-trial detainees.

A person in custody is entitled to receive appropriate care,

not merely to have an opportunity to purchase it. Although

Revere is not precluded from seeking reimbursement from a

third-party payor or even from the detainee himself, in the

first instance the obligation falls directly on the City and not

on MGH. The Supreme Judicial Court's rule insures that de-

tainees will receive necessary medical care as required by the

Constitution.

Argument.

I. Te Supreme Jupicia, Court's CoNnsIpDERATION OF THE

E1GHTH AMENDMENT INSTEAD OF THE FOURTEENTH Is Haam-

Less Error Because Botu Provisions Require THE GOVERN-

MENT TO CaRE FOR Persons In Custopy.

The Supreme Judicial Court based its decision on the need

to protect the Eighth Amendment rights of persons in custody.

385 Mass. 772, 776 (1982). Because Kivlin was a pretrial de-

tainee and not a convicted prisoner when he was brought to

the Massachusetts General Hospital (“MCH”), the Hospital

acknowledges that the relevant federal constitutional provi-

sion is the Due Process Clause of the Fourteenth Amendment.

Bell v. Wolfish, 441 U.S. 520, 545 (1979); Ingraham v.

Wright, 430 U.S. 651, 671-672 & n.40 (1977).'

The Supreme Judicial Court’s consideration of the Eighth

Amendment, however, does not undermine that court’s deci-

sion. The due process rights of a suspect in custody (and still

presumed innocent) are at least as great as the Eighth Amend-

ment protections available to a prisoner already adjudicated

guilty, and the corresponding governmental obligations are

also at least as great. Bell v. Wolfish, supra at 545; see

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 23 n.1

(1979) (Marshall, J., dissenting). “(T]he conditions for

pretrial detention must not only be equal to, but superior to,

those permitted for prisoners serving sentences for the crimes

they have committed against society.” (Citations omitted.)

Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp.

676, 686 (D. Mass. 1973), aff'd 494 F.2d 1196 (1st Cir.), cert.

denied sub nom. Hall v. Inmates of Suffolk County Jail, 419

U.S. 977 (1974).*

' These decisions were not raised by Revere in the proceedings below, but

were cited for the first time by Revere in its petition for certiorari.

* See also Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754 (3d Cir.

1979) (“anomalous to afford a pretrial detainee less constitutional protection

than one who has been convicted”); Bowring v. Godwin, 551 F.2d 44, 47

(4th Cir. 1977) (medical treatment for serious disease or injury required by

Due Process Clause); Duran v. Elrod, 542 F.2d 998, 999-1000 (7th Cir.

Clearly, the Supreme Judicial Court’s rationale — the

prisoner’s inability to care for himself — applies with equal

force to a person under arrest but not convicted.*? The only

change in argument is purely nominal: the same analysis

under a different constitutional rubric. Moreover, Revere has

fully briefed the Fourteenth Amendment argument, and does

not suggest that the ultimate result in the state court or in this

Court turns on whether the analysis proceeds under the Eighth

or Fourteenth Amendment.

Nor is there any prudential basis for now requiring greater

precision from the Supreme Judicial Court. This Court has

often decided cases on grounds analogous, though not iden-

tical, to those raised by the parties below. In Stanley v. Il-

linois, 405 U.S. 645 (1972), for example, the court converted a

due process claim into equal protection analysis, id. at 658

n.10, over the dissent’s objection that the grounds would come

as a surprise to the prevailing party and the courts below, id.

at 662. See also Boynton v. Virginia, 364 U.S. 454, 464 & n.2

(1960) (Whittaker, J., dissenting) (case decided under Inter-

state Commerce Act rather than the constitutional grounds

consistently urged by petitioner); Terminello v. Chicago, 337

U.S. 1, 10 n.1 (1949) (Frankfurter, J., dissenting) (decision on

constitutional argument never raised in state court); Wuchter

v. Pizzutti, 276 U.S. 13, 25 (1928) (Brandeis, J., dissenting)

(majority permits new line of argument).

Although this Court might choose to remand the case to

allow the Supreme Judicial Court to consider whether pay-

ment in furtherance of Fourteenth Amendment (rather than

1976) (more stringent standard when caring for pre-trial detainees);

Newman v. Alabama, 503 F.2d 1320, 1330 (Sth Cir. 1974), cert. denied, 421

U.S. 948 (1975) (Due Process Clause is “equally satisfactory constitutional

repository of these rights and obligations”); Johnson v. Glick, 481 F.2d 1028,

1032 (2d Cir.) (Friendly, J.) (unconvicted prisoners must be at least as well

cared for), cert. denied sub nom. Employee-Officer John v. Johnson, 414

U.S. 1033 (1973).

*Indeed, in guaranteeing the constitutional rights of unconvicted de-

tainees, the Supreme Judicial Court presumably expected that it was resolv-

ing the issue for convicted prisoners as well. 385 Mass. at 777, 780 n.11.

Eighth Amendment) rights is appropriate,‘ it should be reluc-

tant to do so where there is no reasonable likelihood of a

change in analysis or outcome.

II. THe STANDING ARGUMENT Ralsep BY REVERE IN

Tuts Court ts Wrrnout Menr.

In this Court, Revere argues for the first time that MCH

lacks standing to assert the constitutional rights of its patients

(Pet. Br. 13-17). This section of MGH’s brief first shows that

the Supreme Judicial Court’s finding that Revere waived this

claim as a matter of state law may not be reconsidered by this

Court, and that standing to proceed in the state court has been

conclusively established. MGH next demonstrates that even if

the Court were to consider the standing question under federal

law, it should find that MGH may assert the constitutional

rights of patients who are in pre-trial custody. In the conclu-

sion of this section, MGH argues that the state court was free

to hear this case even if MGH lacked standing as a matter of

federal law, but that review by this Court would then be un-

available.

A. This Court may Not Review the Supreme Judicial Court's

Determination that MGH Had Standing to Proceed

in State Court.

The Supreme Judicial Court found, purely as a matter of

state law, that Revere had waived any objection to MGH's

standing by failing to raise the issue, and accordingly con-

cluded that MGH had standing to proceed in the state judicial

system.* This Court is required to respect that determination.

The state court’s finding of waiver is an independent state

ground barring Supreme Court review of this issue. See Engle

‘It is reasonable to expect that the Supreme Judicial Court would permit

the hospital to argue the Fourteenth Amendment, since otherwise the court

would have been reversed (and the hospital's claim defeated) on the basis of

cases never raised by Revere in the state courts.

5385 Mass. at 776-77 n.7. The court cited the applicable state rule, Mass.

R.App.P. 16(a)(4).

v. Isaac, 71 L.Ed.2d 783 (1982); Webb v. Webb, 68 L.Ed.2d

392, 398-399 & n.4 (1982); Wainwright v. Sykes, 433 U.S. 72,

81 (1977) (contemporaneous objection rule). Accordingly,

this Court may not review the Supreme Judicial Court’s deter-

mination that MGH had standing to pursue its claim in the

Massachusetts courts.

B. If This Court Were to Consider the Standing Argument,

it Should Find that MGH Has Standing as a Matter

of Federal Law.

Revere does not claim that MGH lacks standing under Arti-

cle III, presumably because MGH has suffered actual injury

through Revere’s failure to pay. There is thus an actual con-

troversy between the parties. Valley Forge Christian College

v. Americans United for Separation of Church and State, 70

L.Ed.2d 700, 709 (1982). Revere therefore relies upon the

prudential federal limitations on a plaintiff's right to assert the

interests of the third parties. See id. at 711.

If the Court were to reach the question of standing in this

case, it should conclude that here, much as in other situations

where providers of health care seek to protect the constitution-

al rights of their patients, there is standing. This Court has

held that physicians have a sufficiently concrete injury and a

close enough professional relationship to asse1t constitutional

rights not easily asserted by their pregnant patients. Sixgleton

v. Wulff, 428 U.S. 106, 112-118 (1976) (pluraiity opinion of

Blackmun, J.). Similarly, physicians have standing to raise

their patients’ rights to contraception. Griswold v. Connec-

ticut, 381 U.S. 479, 481 (1965). And this Court never doubted

that doctors had as much standing as their patients may have

* There is no suggestion in this case that the state’s waiver ruic was itself ap-

plied in a way that violates any provision of the Constitution. Compare

NAACP v. Alabama, 357 U.S. 449, 457-458 (1958); see also Fay v. Noia, 372

U.S. 391 (1963); Henry v. Mississippi, 379 U.S. 443 (1965). And even if this

court were to review the question itself, it could not fail to agree that Revere

waived the issue below. See Chapman v. California, 386 U.S. 18 (1967).

to assert a constitutional right to Medicaid funding for abor-

tions. Harris v. McRae, 448 U.S. 297, 318 n.21 (1982).’

In allowing physicians the standing to assert the constitu-

tional rights of their patients seeking contraceptives or abor-

tions, the Court recognized that the people in these categories of

patients would always be changing, and that often none of

them would be in a good position to obtain judicial intervention

before the immediate need had passed and the damage was

done. Because of their professional relationship with these pa-

tients, the physicians (who themselves have an interest in pro-

viding approporiate medical care) are particularly appropriate

litigants to protect the patients’ rights. The same considerations

apply to the class of pre-trial detainees. Those who are both in-

jured and in custody may often be unable to assert effectively

their right to medical treatment at the time the treatment is

needed, and the group of detainees changes rapidly enough that

an individual detainee may have little incentive to assert con-

stitutional rights available to him as a member of the group.

C. If This Court Were to Find that MGH has No Standing

Under Federal Law, it Should Not Disturb the Supreme

Judicial Court’s Finding under State Law, bui Should

Dismiss the Writ.

Even if this Court were to consider the standing question

and conclude, contrary to the analysis above, that MCH lacks

’ For similar conclusions outside the context of medical care, see Maryland v.

Louisiana, 68 L.Ed.2d 576, 589 (1981) (ultimate consumers on whom

statutory tax would finally and inevitably fall); Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 41-42 (1976) (party ultimately bearing burden); Bar-

rows v. Jackson, 346 U.S. 249, 255-258 (1953) (property owner asserts rights of

potential non-white purchasers not parties to the suit); Pierce v. Society of

Sisters, 268 U.S. 510, 535 (1925) (school asserts rights of present and prospec-

tive patrons); Truax v. Raich, 239 U.S. 33 (1915) (employee challenges hiring

law directly applicable only to employer); Air Reduction Company v. Hickel,

420 F.2d 592, 594 (D.C. Cir. 1969) (producers and distributors of helium at-

tack federal regulations applicable to their purchasers); Brewer v. Hoxie

School District No. 46, 238 F.2d 91 (8th Cir. 1956) (school board's suit to pro-

tect pupils’ civil rights); National Ass'n for Advance. of Colored People v. Pat-

ty, 159 F. Supp. 503 (E.D. Va. 1958), rev'd on other grounds sub nom. Har-

rison v. NAACP, 360 U.S. 167 (1959) (organization providing legal assistance

asserts rights of actual or potential clients).

standing as a matter of federal law, it should respect the

Supreme Judicial Court's right to apply its own state law of

standing. The federal limitations reflect a prudential “rule of

self-restraint” applied by the federal courts in cases where par-

ticipation of the federal judiciary is inappropriate. However,

as Professor Tribe succinctly comments:

federal standing requirements, whether dictated by arti-

cle III or suggested by policy, all arise out of institutional

concerns peculiar to the federal judiciary and are there-

fore irrelevant to the question of what more generous

standing rules a state may adopt if it chooses to do so.

L. Tribe, American Constitutional Law, § 3-18 at 81 (1978).

The state courts need not follow federal rules of standing;

they are free to decide questions of federal law even where a

federal court could not do so because of lack of stew ‘ng.

Doremus v. Board of Education, 342 U.S. 429, 434 (°%»).

Massachusetts has not adopted the federal law of standing. See

Backman v. Secretary of the Commonwealth, 387 Mass. 549,

559 n.5 (1982); Wellesley College v. Attorney General, 313

Mass. 722, 731, 42 N.E.2d 220 (1943).*

This Court's jurisdiction, however, is not expanded by a

state court decision rendered under the state’s broader rules of

standing. If a case could not have beer brought initially in

federal court, it does not become a proper matter for federal

review simply because the state court rendered a decision on

the merits. Princeton University v. Schmidt, 70 L.Ed.2d 855,

858 n.* (1982); Doremus v. Board of Education, supra, 342

U.S. at 434; Marshall v. Dye, 231 U.S. 250 (1913); Smith v.

Indiana, 191 U.S. 138 (1903); Tyler v. Judges, 179 U.S. 405

(1900); see also Coleman v. Miller, 307 U.S. 433, 466 (1939)

(Frankfurter, J., dissenting in part).

mental expenditures on constitutional grounds when the federal courts

would be closed under the doctrine of Frothingham v. Mellon, 262 U.S. 447

(1923). See, e.g., Mass. Gen. Laws c. 29, § 63.

Revere’s request that this Court reverse the Supreme Judi-

cial Court on the grounds that MGH lacks federal standing

would impose the federal rules on the states even though the

federal institutional concerns which underly the standing doc-

trine do not necessarily apply in state courts. The Court

should decline to do so. L. Tribe, American Constitutional

Law, § 3-18 at 1 (1978).° Thus Revere’s argument that MGH

lacks federal standing proves too much. If Revere is correct,

this Court should decline to decide the merits of the case, but

should instead dismiss the writ of certiorari.

The Court should be attentive to an additional reason for

dismissing the writ of certiorari: Revere itself, being but a

“creature of the state,” lacks standing to appeal this Court “in

opposition to the will” of its creator. Coleman v. Miller, supra

at 441; Williams v. Mayor, 289 U.S. 36, 40 (1933); Trenton v.

New Jersey, 262 U.S. 182, 186-187 (1923); Pawhuska v.

Pawhuska Oil Co., 250 U.S. 394, 397 (1919); Stewart v. Kan-

sas City, 239 U.S. 14, 16 (1915) (local governments “are in-

struments of the state, created to carry out its will”); Braxton

v. West Virginia, 208 U.S. 192, 197 (1908) (regulation of

municipal corporation is peculiarly within the domain of state

control); compare Washington v. Seattle School District

No. 1, 73 L.Ed.2d 896 (1982) (municipal body asserting con-

stitutional rights of is constituents).'"° As MGH demonstrates

in the following section, the state’s apportionment of the costs

of medical care among itself and its municipalities, private in-

stitutions and citizens is a matter of state law raising no federal

question for this Court.

* Naturally, the state determination of federal law which is not subject to

Court review because of lack of standing will carry little preceden-

tial value outside the state’s own judiciary. L. Tribe, American Constitu-

tional Law, § 3-18 at 81 n.11 (1978).

'° The allocation of fiscal responsibility among the various branches of the

state is an exercise of state sovereignty in an area of integral

Mississippi, 72 L.Ed.2d 532, 549-550 n.28 (1982); Hodel v. Virginia Surface

Min, & Recl. Ass'n, 452 U.S. 264, 287-288 (1981); National League of Cities v.

Usery, 426 U.S. 833, 845, 852-854 (1976). See Section III(A), below

III. Massacuusetts’ ApopTriONn OF A RemMepIAL RUu_e To IN-

SURE PROVISION OF CONSTITUTIONALLY REQUIRED MEDICAL

Care 1s A LEGITIMATE EXERCISE OF THE STATE'S AUTHORITY

To Govern its Own INTERNAL AFFAIRS.

If this Court finds sufficient federal standing, it must then

proceed to the merits. The merits, however, do not involve

the broad question Revere seeks to present to the Court:

whether the Constitution requires a municipality to pay for

medical services rendered to pre-trial detainees. Rather, the

issue is a considerably narrower one requiring appropriate

recognition of the states’ role in our system of federalism:

whether the state court’s order directing municipalities to pay

hospitals for the medical care provided to pre-trial detainees

was a reasonable exercise of Massachusetts’ authority to

regulate its own internal affairs in implementing accepted

constitutional norms. Thus, framed, the state court decision

raises no substantial federal question for review by this Court.

A. Massachusetts’ Effort to Implement Accepted Consti-

tutional Norms Presents No Federal Question for Review

by This Court.

In its decision below, the Supreme Judicial Court noted

that, having shot and arrested Kivlin, the City of Revere was

under “a legal duty to supply him with necessary medical

care.”"' The court then concluded that “to ensure Kivlin’s

right to medical care, Revere must be heid liable to the

hospital for the medical services it rendered.” This imple-

menting rule was designed by the court to insure that constitu-

tional rights of individuals in custody would not be neglected

because of their possible inability to pay. The court apparent-

ly felt that if health care providers are assured payment for the

" That constitutional right has been recognized in too many decision to re-

quire extensive citation. See, e.g., Estelle v. Gamble, 429 U.S. 97 (1976).

Revere concedes “Kivlin’s right not to be denied prompt access to medical

care.” Pet. Br. at 12, 18. The scope of that right is considered in more detail

at n.22, below, and its constitutional sources (the Eighth and Fourteenth

Amendments) are discussed in Section I, above.

care of persons in custody, treatment is more likely to be pro-

vided. Compare Moe v. Secretary of Administration and

Finance, Mass. Adv. Sh. (1980) 464, 478, 417 N.E.2d 387 (lack

of Medicaid reimbursement would discourage providers from

performing abortions) .

The burden is on Revere, as petitioner, to establish the ex-

istence of a constitutional issue to give this Court its jurisdic-

tion. Webb v. Webb, 68 L.Ed.2d 392, 396 (1982); 28 U.S.C.

§ 1257(3). The city has not satisfied its burden. In holding

Revere liable to MGH to insure Kivlin’s constitutional right to

medical care, the Supreme Judicial Court cited no federal

cases and discussed no federal law."* There is no suggestion

that the court believed itself bound by federal law to reach

that particular result, or that it believed the same remedy

should necessarily be applied in every state.'"* See Cooper v.

Mitchell Brothers, 70 L.Ed.2d 262, 268 (1982) (Stevens, J.,

dissenting); Missouri ex rel. Southern Railway Company v.

Mayfield, 340 U.S. 1, 5 (1950); Minnesota v. National Tea

Co., 309 U.S. 551, 554-555 (1940). Rather, the Supreme

Judicial Court adopted the payment remedy only after review-

ing other relevant state law and concluding that it was insuffi-

cient to guarantee the provision of medical care.'*

The court’s determination that this remedy was appropriate

in Massachusetts to protect detainees’ rights does not of itself

present a federal question for review by this Court. Had the

payment rule been adopted by Massachusetts through its state

legislature, Revere could have brought no colorable claim to

this Court. The fact that a different branch of Massachusetts

government — here, the judiciary — adopted the same

remedy raises no federal issue for Supreme Court considera-

tion. As this Court has frequently observed, “the Fourteenth

"Compare City of Mesquite v. Aladdin's Castle, Inc., 71 L.Ed.2d 152,

167 (1982) (Powell, J., dissenting in part).

'* Indeed, other states have adopted other remedies under their own law.

See n.45, below.

“Tt can also be assumed the state court was mindful of its other developments

in the area of patients’ rights, and was aware of the tight system of controlling

hospital costs in Massachusetts See Section IV(B) and Section V, below.

Amendment leaves the States free to distribute the powers of

government as they will between their legislative and judicial

branches.” Hughes v. Superior Court, 339 U.S. 460, 467

(1950). So long as Massachusetts does not violate individuals’

constitutional rights, it may select any allocation of authority

and may exercise plenary power over its instrumentalities of

government, free from federal judicial review." A state

remedy is not federalized simply because it is adopted by the

state to prevent possible constitutional violations. This is not

to suggest that the states may adopt any remedial schemes they

see fit in the name of protecting constitutional rights. But

where a remedial rule’s burden falls only upon municipal cor-

porations created by the state, no constitutional interest is im-

plicated.

B. Even if a Federal Question is Intertwined in the Su-

preme Judicial Court's Decision, this Court Should Not

Risk Reviewing State Law Issues by Considering the

Merits.

In the preceding section, MGH has argued that the Supreme

Judicial Court sought to deter violations of the substantive

* See Washington v. Seattle School District No. 1, 73 L.Ed.2d 896, 911 &

n.18 (1982); Id. at 921 & n.7 (Powell, J., dissenting); Minnesota v. Clover

Leaf Creamery Co., 449 U.S. 456, 461 n.6 (1981); Id. at 479-480 & nn.3-4

(Stevens, J., dissenting); Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960);

see Gordon v. Lance, 403 U.S. 1, 6 (1971); Pawhuska v. Pawhuska Oil Co.,

Gate te “teao to Gest cacti of consume to be Sesto ot Oo Sate,

rather than local, level of government. Washington v. Seattle School

District No. 1, 73 L.Ed.2d 896, 919 (1982) (Powell, J., dissenting, on a point

with which the majority was in apparent agreement, id. at 911 n.18); Sailors

v. Board of Education, 387 U.S. 105 (1967).

within the state’s authority and presents no federal question.

Revere, on the other hand, argues that this Court must act to

correct an alleged error of federal law. In this section, MGH

suggests that any doubts as to the source of the law applied by

the Supreme Judicial Court should be resolved by declining to

review the state court’s decision.

This Court’s power over state courts is limited to correcting

errors in adjudication of federal rights. 28 U.S.C. § 1257(3);

see Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 626,

633 (1875) (dicta). Because of the prohibition on advisory

opinions, the Court has consistently refused to consider

judgments of state courts which rest on both federal grounds

and on adequate and independent state grounds. Herb v. Pit-

cairn, 324 U.S. 117, 125-126 (1945); Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935). Where the federal bases for

the state decision are constitutional grounds, this approach

also finds support in the policy of avoiding unnecessary deci-

sion of constitutional issues. See Rescue Army v. Municipal

Court, 331 U.S. 549, 584 (1947) (constitutional issue must be

“clean-cut,” “concrete” and “unclouded”).

If it is not clear whether the decision below rests on state

law, federal law, or both, this Court should dismiss the case

because the petitioner has not sustained the burden of estab-

lishing jurisdiction,'’ or should vacate the decision and re-

mand it to the state court “for the elimination of obscurities

and ambiguities.” Minnesota v. National Tea Co., 309 U.S.

551, 557 (1940); City of Mesquite v. Aladdin’s Castle, Inc., 71

L.Ed.2d 152, 163 & n.19 (1982)."* Regardless of the particular

" See, e.g., Jankovich v. Indiana Toll Road Commission, 379 U.S. 487

(1965) (despite the state court’s extensive use of federal authority, case dis-

missed because the extent of possible state law grounds was unclear); Durley v.

Mayo, 351 U.S. 277, 281 (1956) (petitioner must show that state court decision

could not possibly rest on non-federal grounds); Stembridge v. Georgia, 434

U.S. 541, 547-548 (1952) (no jurisdiction where possibility of adequate state

ground is even debatable); Memphis Natural Gas Co. v. Beeler, 315 U.S. 649

(1942); Klinger v. Missouri, 13 Wall. 257 (1871); Patsy v. Florida Board of

Regents, 73 L.Ed.2d 172, 193 & n.10 (1982) (Powell, J., dissenting).

‘* Dismissal is the more appropriate action unless the Court finds a par-

ticular interest in further clarification and development of law in the area.

Cooper v. Mitchell Brothers, 70 L.Ed.2d 262, 269 (1982) (Stevens, J., dis-

disposition, the Court should adhere to its policy of not con-

sidering the merits if the source of the law applied below is un-

clear. As the Court has observed, caution in this regard

is not merely a technical rule nor a rule for our conven-

ience. It touches the division of authority between state

courts and this Court and is of equal importance to each.

Only by such explicitness can the highest courts of the

states and this Court keep within the bounds of their

respective jurisdictions.

Minnesota v. National Tea Co., 308 U.S. 551, 557 (1940). Ac-

cordingly, in doubtful cases

it seems consistent with the respect due the highest courts of

the states of the Union that they be asked rather than told

what they have intended. If this imposes an unwelcome

burden it should be mitigated by the knowledge that it is to

protect their jurisdiction from unwitting interference as

well as to protect our own from unwitting renunciation.

Herb v. Pitcairn, supra, 324 U.S. 128; Oregon v. Hass, 420

U.S. 714, 727 (1975) (Marshall, J., dissenting).

In the present case, the Supreme Judicial Court clearly

recognized the federal Constitution as the underlying source of

Kivlin’s right to medical treatment. As argued above, it is

reasonable to read the state court’s opinion as fashioning a

state remedy to implement that constitutional right — as an

exercise of the state’s discretion to adopt its own procedures to

insure the substantive rights provided by the Constitution.'®

But insofar as this Court may be unsure of the extent to which

senting); Department of Mental Hygiene v. Kirchner, 380 U.S. 194, 200-201

(1965) (most states had statutes similar to the one at issue). Alternatively, this

Court might certify questions to the state court. See Supreme Judicial Court

Rule 3:21, 359 Mass. 790 (1971); cf. Zant v. Stephens, 72 L.Ed.2d 222, 227

(1982); Bellotti v. Baird, 428 U.S. 132, 151 (1976).

“*When the Supreme Judicial Court has acted strictly under the compul-

sion of federal law, it has known how to say so. E.g., Commonwealth v.

Sheppard, 387 Mass. 488, 489 (1982) (“We conclude that, solely on the basis

of the opinions of the Supreme Court of the United States, the exclusionary

rule requires the suppression of the evidence . . .”) (emphasis added).

the Supreme Judicial Court believed itself to be fashioning

Massachusetts law rather than simply stating an inexorable

command of the federal Constitution, a decision on the merits

would be inappropriate.”

IV. Even Ir Tus Court wene to Review THe State's

Remepy, rr SHoutp Do So Wirn Dererence.

In the preceding section, MGH suggests that the remedy

adopted by the Supreme Judicial Court does no more than

place financial responsibility, at least in the first instance, on

municipal corporations as a matter of state law in order to pro-

tect constitutional rights of pre-trial detainees. Now MGH

argues that Massachusetts is free to carry out the mandate of

the Constitution within broad limits and with particular at-

tention to its own structural and legal principles, and that

even if this Court were to review the state’s remedy it should

do so with considerable deference to the state’s interests.

This case does not concern the question of whether Revere

was under a constitutional obligation to insure that Kivlin

received prompt medical treatment. Revere agrees that it

* Refusal to reach the merits of the case would have several significant vir-

tues. It might allow this Court to avoid unnecessary constitutional decision.

City of Mesquite v. Aladdin's Castle, Inc., 71 L.Ed.2d 152, 163 (1982);

Lake Carriers’ Ass'n v. MacMullan, 406 U.S. 498, 510-511 (1972); Spector

Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); see Larson v.

Valente, 72 L.Ed.2d 33, 65 (1982) (Rehnquist, J., dissenting). It would

acknowledge that the state court is in the best position to express the “com-

plete product” of its legal system, Harrison v. NAACP, 360 U.S. 167, 178

(1959); Wisconsin v. Constantineau, 400 U.S. 433 (1971) at 439 (Burger,

C.]., dissenting) and 443-445 (Black, J., dissenting), and to resolve the essen-

tially local problem of balancing costs of providing medical treatment

without federal intrusion and possible disruption of the state system through

an erroneous construction of the opinion below, Railroad Commission v.

Pullman Co., 312 U.S. 496, 500 (1941); see Rose v. Lundy, 71 L.Ed.2d 379,

387 (1982). And, given the likelihood that the Supreme Judicial Court

would reach the same conclusion under the state constitution, see 385 Mass.

776 n.6, a decision of this Court on the merits may thereafter prove to have

been purely advisory, Mills v. Rogers, 73 L.Ed.2d 16, 25-27 (1982); see

Oregon v. Hass, supra at 726 (Marshall, J., dissenting), and a needless im-

position on the Court's workload, see Webb v. Webb, 68 L.Ed.2d 392, 399

(1982); Idaho Department of Employment v. Smith, 434 U.S. 100, 104

(1977) (per curiam) (Stevens, J., dissenting in part).

was. Nor does the state court decision raise the general issue of

whether the government has an affirmative obligation to pro-

vide funds for individuals’ exercise of their constitutional

rights. Compare Harris v. McRae, 448 U.S. 297 (1980)

(government may not interfere with right to abortion but is

not required to pay). Clearly, most constitutional provisions

limit the government’s coercive power without imposing af-

firmative requirements of financial support. But the govern-

ment’s obligations become correspondingly greater when it has

already taken affirmative steps to exert control over a person

and limit his freedom of movement and personal autonomy.

Similarly, the ability of a court (and especially a state court) to

fashion relief that protects constitutional rights increases as

well.

As a matter of federalism, the state courts have a legitimate

interest in protecting individuals’ constitutional rights within

the state judicial system so that resort to the federal courts is

unnecessary."' The institutional litigation of the past decade

clearly shows that many federal courts have ordered improve-

ment in jails and prisons, including improved delivery of

medical care.** These same concerns need not always be ad-

*! The state courts have the “front-line responsibility for the enforcement of

constitutional rights.” Gideon v. Wainwright, 372 U.S. 335, 351 (1963)

oe. 2 concurring); they are as bound as the federal courts to “guard

and protect rights secured by the Constitution,” Ex Parte Royall, 117 U.S.

241, 251 (1886), and this Court presumes that the states will be attentive to

constitutional requirements, Rhodes v. Chapman, 452 U.S. 337 (1981).

“[I}n the scheme of the Constitution, [state courts) are the primary guaran-

tors of constitutional rights, and in many cases they may be the ultimate

ones.” H. Hart, The Power of Congress to Limit the Jurisdiction of Federal

Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1401 (1953). Com-

menting specifically on the protection of prisoners’ constitutional rights, this

Court has observed that “federal-state comity” reflects “an accommodation

of our federal system designed to give the State the initial ‘opportunity to pass

upon and correct’ alleged violations of its prisoners’ federal rights.” Webb v.

Webb, 68 L.Ed. 2d 392, 399 (1982), quoting Picard v. Connor, 404 U.S. 270,

275 (1971).

* Alabama has been ordered to identify the physical and mental health-

care requirements of its inmates and to hire a specified number of mental

health professionals. Pugh v. Locke, 406 F. Supp. 318, 329, 333 (M.D. Ala.

1976) reversed on other grounds sub nom. Alabama v. Pugh, 738 U.S. 781

dressed after the constitutional right has been violated. A

state is permitted to adopt, on its own initiative, a remedial

rule designed to reduce substantially the likelihood that de-

tainees’ constitutional rights would be violated in a foreseeable

class of occasions: when ill or injured detainees are brought to

a hospital for necessary treatment. The remedy selected, here

(1978); see also Newman v. Alabama, 503 F.2d 1320 (Sth Cir. 1974), cert

denied, 421 U.S. 948 (1975). Arkansas has been instructed to create a plan

“ensuring that every inmate in need of medical attention will be seen by a

physician when necessary.” Finney v. Arkansas Board of Correc-

tion, 505 F.2d 194, 204 (8th Cir. 1974). Florida has been “sid to care for the

minor injuries and illnesses of its prisoners and detainees, as well as their ma-

v. Wittenberg, 230 F. Supp. 707, 718 (N.D. Ohio 1971), aff'd sub nom.

Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). Florida has also been

directed to give a physical examination to each new pre-trial detainee, and to

hire dermatologists and opthamologists. Miller v. Carlson, 401 F. Supp. 835

(M.D. Fla. 1975), aff'd 563 F.2d 741 (Sth Cir. 1977).

Massachusetts has received constitutionally-based instructions from the

federal courts regarding medical care of pre-trial detainees. In Inmates of

Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff'd

494 F.2d 1196, cert. denied, sub nom. Hall v. Inmates of Suffolk County

Jail, 419 U.S. 977 (1974), the district court examined the overall level of care

provided at the jail used by Boston (as well as by Revere and other surround-

ing municipalities) for holding prisoners awaiting trial. The court imposed

many specific orders, including the requirement that inmates and pre-trial

detainees remaining over seven days must receive complete physicals and

those in solitary confinement must get a daily physica: xamination.

In addition to those cases imposing overall! structural remedies on state

prison systems, numerous cases have affirmed the prisoner's right to bring an

action for damages (or for an injunction ordering treatment) as a result of in-

adequate or improper medical attention. The two approaches demonstrate

that the possible remedies are not mutually exclusive. See, e.g., Murrell v.

Bennett, 615 F.2d 306 (5th Cir. 1980) (bleeding ulcer and urological prob-

lems); West v. Keve, 571 F.2d 158 (3d Cir. 1978) (deliberate indifference to

pain of varicose veins and swollen ankle); Todaro v. Ward, 565 F.2d 48, 52

(2d Cir. 1977) (Kaufman, C.J.) (denials of medical care “which cause or

perpetuate pain”); Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977)

(psychological or psychiatric treatment); Westlake v. Lucas, 537 F .2d 857 (6th

Cir. 1978) (special diet, medication and medical care for bleeding ulcer); Riley

v. Rhay, 407 F.2d 496 (9th Cir. 1969) (treatment for tuberculosis); Johnson v.

Harris, 479 F. Supp. 333 (S.D.N.Y. 1979) (special diet for diabetic); see also

Isaac v. United States, 490 F. Supp. 613 (S.D.N.Y. 1979) (medical care for

federal prisoner's stomach disorder). As these cases also show, necessary

medical treatment includes more than just emergency care.

the requirement that a municipality pay (at least in the first in-

stance) its detainees’ medical bills, is well within the range of

reasonable options available to a state and should be respected

by this Court.”

A. In Seeking to Insure Protection of Constitutional

Rights, Massachusetts May Assume for Itself a Broader

Remedial System than the Federal Courts Could Properly

Impose.

A measure of deference to state-created remedies designed

to protect constitutional rights is well established and consistent

with principles of federalism. When a federal court imposes

its own remedy on a state or its subdivisions to redress specific

constitutional violations, the court “must take into account the

interests of the state and local authorities in managing their

own affairs, consistent with the Constitution.” Méilliken v.

Bradley, 433 U.S. 267, 281 (1977) (“Milliken II”). The scope

of the remedy is limited by the “nature and extent of the con-

stitutional violation,” so that federal intrusion into state affairs

is minimized. Milliken v. Bradley, 418 U.S. 717, 744 (1974)

(“Milliken I”), quoting Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1, 16 (1971); Fullillove v. Klutz-

nick, 448 U.S. 448, 483 (1980); Hills v. Gautreaux, 425 U.S.

282, 293 (1976).

If the remedy is merely damages, the state’s control of its in-

ternal affairs is undiminished. But when the relief is struc-

tural — a general implementing rule to deter or prevent future

constitutional violations by a state or its subdivisions —

federalism demands that the remedy not intrude on the

legitimate discretion of the state government to structure its

own internal affairs. Upham v. Seamon, 71 L.Ed.2d 725,

830-831 (1982); Wise v. Lipscomb, 437 U.S. 535, 540 (1978)

"The municipality is free, of course, to choose instead to hire its own

physicians or to operate its own public hospital. Financial concerns ex-

pressed by the City of Boston in its amicus brief in support of the petition for

certiorari could presumably be alleviated it Boston brought its detainees to

Boston City Hospital rather than to one of the non-governmental facilities

(such as MGH) within the city. See n.44, below.

(stricter review of remedy imposed on state by federal court);

Connor v. Finch, 431 U.S. 497, 414 (1977) (recognition of

state’s policy goals); Whitcomb v. Chavis, 403 U.S. 124,

160-161 (1971) (federal courts must minimize rejection of

state’s policy choices).“* When this Court writes of “Our

Federalism,” it has in mind

a system in which there is sensitivity to the legitimate in-

terests of both State and National Governments, and in

which the National Government, anxious though it may

be to vindicate and protect federal rights and federal in-

terests, always endeavors to do so in ways that will not un-

duly interfere with the legitimate activities of the States.

Younger v. Harris, 401 U.S. 37, 44 (1971)." Thus, even

where the Court is firm in announcing a constitutional man-

date, it has been careful to leave the states a certain flexibility

to implement that rule.

An example is Griffin v. Illinois, 351 U.S. 12 (1956), which

considered whether the Constitution required Illinois to pro-

vide indigent criminal defendants with free trial transcripts

for appeal. The Court concluded that criminal defendants

may not be disadvantaged in their defense solely because of in-

digency, but, having found a constitutional shortcoming, was

scrupulously careful to leave Illinois the flexibility to fashion a

remedy: “We do not hold, however, that Illinois must pur-

* Even outside the realm of constitutional remedies, this Court has shown

“increasing solicitude for the interests and prerogatives of states.” Develop-

ments in the Law: Section 1983 and Federalism, 99 Harv. L. Rev. 1133,

1135 (1977). See, e.g., National League of Cities v. Usery, 426 U.S. 833

(1976) (wages of state employees); Rizzo v. Goode, 423 U.S. 362 (1976)

(misconduct of local police); Village of Belle Terre v. Boraas, 416 U.S. 1

(1974) (zoning ordinance).

*5“[ T]he authority to make . . . fundamental . . . decisions is perhaps the

attribute of sovereignty.” National League of Cities v. Usery,

426 U.S. 833, 851 (1974). The power to make decisions and set policy gives

the states their sovereign nature. Bates v. Arizona, 433 U.S. 350 (1977). And

“each State is sovereign within its own domain, governing its citizens and

providing for their general welfare.” Federal Energy Regulation Commis-

sion v. Mississippi, 72 L.Ed.2d 532, 558 (1982) (O'Connor, J., dissenting).

chase a stenographer’s transcript in every case where a defend-

ant cannot buy it. The [state] Supreme Court may find other

means of affording adequate and effective appellate review to

indigent defendants.” Id. at 20. In other words, although I]-

linois was required by the Constitution to provide indigent

defendants with reasonable access to the criminal appeals

system,* this Court would not intrude into state affairs to the

extent of mandating the particular way in which the constitu-

tional infirmity must be remedied: “It is not for us to tell Il-

linois what means are open to the indigent and must be

chosen. Illinois may prescribe any means that are within the

wide area of its constitutional discretion.” Jd. at 24

(Frankfurter, J., concurring).

Similarly, this Court was careful to stress that the states (as

well as the federal government) must give “Miranda

warnings” if they wish to use statements stemming from

custodial interrogation “unless other fully effective means are

devised to inform accused persons of their right to remain

silent.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). The

court stressed that its concern was to deter violations of the

Fifth Amendment, not to create and impose a particular reme-

dial system as the exclusive method of insuring compliance:

It is impossible for us to foresee the potential alternatives

for protecting the privilege which might be devised by

Congress or the States in the exercise of their creative

rule-making capacities. Therefore, we cannot say that

the Constitution necessarily requires adherence to any

particular solution .... Our decision in no way creates a

constitutional straightjacket which will handicap sound

efforts to reform, nor is it intended to have this effect. We

encourage Congress and the States to continue their

laudable search for increasingly effective ways of pro-

tecting the rights of the individual while promoting effec-

tive enforcement of their criminal laws.

* At least where Illir.ois had chosen to create such a system. See McKane

v. Durston, 153 U.S. 684, 687-688 (1894).

Id. at 467.*" Thus the court once again recognized that the

states may try, if they wish, to create remedies which protect

substantive constitutional rights, and yet are suited to the

states’ own individual preferences and needs.”

Such flexibility is possible because there is more than one

way to achieve the important goal of preventing or deterring

constitutional violations. Unless an existing remedy is in-

tended to have been exclusive, other alternative remedies are

permitted. For example, this Court has allowed a direct

cause of action for damages to redress a violation of the Fourth

Amendment, even though “other quite adequate remedies”

may exist. Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 392-393 (1971) Black-

"See Michigan v. Tucker, 417 U.S. 433, 444 (1974) (Miranda’s “pro-

compulsory self-incrimination.”).

™ See New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis,

]., dissenting); see also Santosky v. Kramer, 71 L.Ed.2d 599, 619 (1982)

(Rehnquist, J., dissenting); Johnson v. Louisiana, 406 U.S. 356, 376 (1972)

(Powell, J., concurring); Chandler v. Florida, 449 U.S. 560, 579 (1981); Ker

v. California, 374 U.S. 23, 32 (1963).

This state innovation is no judicial myth. When Wyomiug became

a State in 1890, it was the only State permitting women to vote. That

novel idea did not bear national fruit for another thirty years. Wis-

consin pioneered unemployment insurance, while Massachusetts in-

itiated minimum wage laws for women and minors. After decades of

academic debate, state experimentation finally provided an opportuni-

ty to observe no-fault automobile insurance in operation. Even in the

Federal Energy Regulation Commission v. Mississippi, 72 L.Ed.2d 532,

565-566 (1982) (O’Connor, J., dissenting) (footnotes omitted).

* See Carlson v. Green, 446 U.S. SAG iny ConED RENO IT gD TIDE

constitutional remedies). Deterrence is “precisely the proposition”

ing one of the best-known constitutional remedies, 42 U.S.C. § 1983. Imbler

v. Pachtman, 424 U.S. 409, 442 (1976) (White, J., concurring).

* Compare Parratt v. Taylor, 68 L.Ed.2d 420 (1981) (declining to permit

action under 42 U.S.C. § 1983 for minimal deprivation of property where

state’s system of tort remedies provides adequate redress and thus satisfies due

process) .

mun, J., dissenting).*' Similarly, in Carlson v. Green, 446

U.S. 14 (1980), the spouse of a prisoner who allegedly died of

medical neglect and mistreatment was allowed to pursue a

constitutional remedy because the Federal Tort Claims Act

was not intended to be exclusive. Id. at 19.

A state court has even more flexibility than a federal court to

choose among alternative remedies, because the state may

assume on its own initiative more extensive burdens than the

constraints of federalism would permit a federal court to im-

pose.** See Harris v. Rivera, 70 L.Ed.2d 530, 537 (1981)

(“Constitution does not prohibit state judges from being ex-

cessively lenient”). In fact, a state may create remedial

schemes which offer surer and more complete protection of

federal constitutional rights.”

*! Indeed, the Court’s conclusion was wholly independent of whether the

state would prohibit or permit such an action. Id. at 392-393. Courts have

also allowed direct actions under other provisions of the Constitution. See,

e.g., Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment); Paton v.

LaPrade, 524 F.2d 862 (3d Cir. 1975) (First Amendment); Berlin

Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976) (Sixth

Amendment); Patmore v. Carlson, 392 F. Supp. 737 (E.D. Ill. 1975) (Eighth

Amendment); Howard v. Warden, 348 F. Supp. 1204 (E.D. Va. 1972)

(Ninth Amendment), app. dismissed, 474 F.2d 1341 (4th Cir. 1973).

%* Also, the Eleventh Amendment does not act as a limitation on remedies

which a state court may adopt.

* Griffin v. Illinois, 351 U.S. 12 (1956), and Miranda v. Arizona, 384 U.S.

436 (1966), implicitly recognized that a state may elect to do more than pro-

vide just the minimum protection required by the Constitution. Other opin-

ions of this Court suggest that it is desirable, in a federal system, for the states

to do so. In Crawford v. Los Angeles Board of Education, 73 L.Ed.2d 948

(1982), the Court considered whether a state which had gone beyond the

constitutional minimum to remedy segregation could subsequently withdraw

its extra state remedies. “[C]ertainly the purposes of the Fourteenth Amend-

ment would not be advanced by an interpretation that discouraged the States

from providing greater protection to racial minorities.” Jd. at 957. Thus the

Court not only presumed California could properly have provided the

greater remedy but clearly believed it desirable that a state should do so as a

matter of its own law. See Palmer v. Thompson, 403 U.S. 217, 228 (1971)

(“locking in” state to more expansive remedy “would plainly discourage the

expansion and enlargement of needed services in the long run.”) (Burger,

C.J., concurring).

Indeed, states will frequently adopt a remedial rule before

the Court imposes it under the Constitution — sometimes even

in the face of express pronouncements that the remedy is not

constitutionally required. Despite the holding of Wolf v. Col-

orado, 338 U.S. 25 (1949), finding the states free to use

evidence resulting from an illegal search and seizure, more

than half the states had already adopted some form of exclu-

sionary rule on their own initiative, and several states first

adopted their exclusionary rule after Wolf held the rule was

constitutionally unnecessary. Mapp v. Ohio, 367 U.S. 643,

651 (1961); Elkins v. United States, 364 U.S. 206, 219 (1960)

(collecting state citations in Appendix, Table Ii, at 226-232).

This Court did not object to individual states adopting pro-

cedural stafeguards that were beyond the minimum require-

ments of the Constitution as then interpreted; indeed, when

Mapp v. Ohio finally extended the Fourth Amendment to the

states through the Fourteenth, the Court “commended”

California on its voluntary adoption of the exclusionary rule.

See Ker v. California, 374 U.S. 23, 31 (1963).

Before Gideon v. Wainwright, 372 U.S. 355 (1963), finally

overruled Betts v. Brady, 316 U.S. 455 (1945), more than

thirty-five states were already “unnecessarily” providing

counsel to indigent defendants in felony cases regardless of

“special circumstances.” McNeal v. Culver, 365 U.S. 109,

119-122 (1961) (appendix to concurring opinion of Douglas,

J.). See Y. Kamisar, The Right to Counsel and the Fourteenth

Amendment: A Dialogue on “The Most Pervasive Right” of

an Accused, 30 U. Chi. L. Rev. 1, 17 (1962) (updating the

McNeal data and surveying local practice in states that did not

formally provide for assigned counsel in all felony cases, id. at

20 and 67-70).*

And even when federal law is imposed upon them, the states

frequently retain at least some lawmaking authority. In

* A more current example is that although this Court holds that the Con-

stitution does not require appointment of counsel in cases where imprison-

ment is authorized but not actually imposed, a substantial number of states

go further and assign counsel whenever a criminal sentence is possible. Scott

v. Illinois, 440 U.S. 367, 386-388 & nn. 18-22 (Brennan, J., dissenting) (1979).

determining the scope of remedies for violation of constitu-

tional rights, this Court often looks to the law of the state in

which the violation occurred. In Robertson v. Wegmann, 436

U.S. 584, 594 (1978), the Court incorporated state survivor-

ship law to determine whether a § 1983 action was abated by

the death of the plaintiff.** “Federal courts routinely refer to

State law to fill the procedural gars in national remedial

schemes.” Carlson v. Green, 446 U.S. 14, 29 (1980) (Powell,

J., concurring).*

The conclusion is clear: although the states’ remedial ef-

forts may not lag behind constitutional requirements, they

may well run ahead. That is not to say that the state courts

may decide a case contrary to the underlying substantive man-

dates of the Constitution. See Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 461 n.6 (1981); Oregon v. Hass,

420 U.S. 714, 719 (1975). In order to insure that the sub-

** Similarly, this Court has found in the common law of torts the general

rules for damages in constitutional torts, Carey v. Piphus, 435 U.S. 247,

257-258 (1978), and for immunities under § 1983, Imbler v. Pachtman, 424

U.S. 409, 417-419, 424 (1976), and has looked to the law of the forum state to

determine the limitations period in suits brought in federal court under the

Civil Rights Statutes, O'Sullivan v. Felix, 233 U.S. 318 (1914); see also, e.g.,

Beard v. Stephens, 372 F.2d 685, 688 (Sth Cir 1967). 42 U.S.C. § 1988 in-

structs the courts “to look to the principles of the common law, as altered by

state law,” as the basis for remedies. Moor v. County of Alameda, 411 U.S.

693, 702-703 (1973); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969).

* The proposition is even more familiar outside the constitutional sphere.

See, e.g., U.A.W. v. Hoosier Cardinal Corp., 383 U.S. 696 (1966); Textile

Workers of America v. Lincoln Mills, 353 U.S. 448, 457 (1957); DeSylva v.

Ballentine, 351 U.S. 570 (1956); Reconstruction Finance Corp. v. Beaver

County, 328 U.S. 204 (1946).

*"In Hass, the state court imposed greater “restrictions as a matter of

federal constitutional law when this Court specifically refrained from impos-

ing them.” Oregon v. Hass, 420 U.S. 714, 719 (1975) (emphasis in original).

See also Fare v. Michael C., 442 U.S. 707, 717 (1979); North Carolina v.

Butler, 441 U.S. 369 (1979). The case at hand is much different. The state

court decision does not impose any restrictions; it simply adopts a remedy

designed to decrease the likelihood of violations of an accepted constitutional

norm. It is suggested that Hass not be extended so as to preclude all such

remedial experimentation on the part of the states, particularly where there

is no risk that a particular remedy “would cut this Court's holdingfs] . . .

stantive command is heeded, however, the state may fashion a

remedial rule to implement the constitutional requirement.”

See Katzenbach v. Morgan, 384 U.S. 641 (1966) (Congress

may adopt a more expansive remedy than the minimum re-

quired under the Equal Protection Clause). This flexibility af-

forded to the states is grounded in principles of federalism and

in a practical recognition that in choosing among available

alternatives (which is the essence of fashioning a remedy), a

state is often in a better position to decide. The applicability

of this general principle to the present case is discussed next.

B. The Remedial System Adopted by the Supreme Judicial

Court Reflects that Court's Greater Familiarity with

Massachusetts Laws and Concerns.

As a general matter, the courts sitting within a state are like-

ly to be more familiar than this Court with the “legal and

practical factors” affecting the state.** The state’s highest

completely loose from (their) explicitly stated rationale.” Beckwith v. United

States, 425 U.S. 341, 345 (1976).

Furthermore, Hass has not escaped criticism on the ground that the Con-

stitution is “a fundamentally democratic document, open to competing inter-

pretations” which may vary slightly from state to state, and a state should not

necessarily be considered “in error” if it chooses to take a broader view of a

constitutional provision. L. Tribe, American Constitutional Law, § 3-5 at

33 (1978).

* In some situations, the state's interest in creating its own remedial struc-

ture appropriately tailored to its own needs and circumstances will conflict

with a countervailing federal interest. In these cases, federal law is supreme

and will clearly prevail. See pp. 28-29, below.

* See Upham v. Seamon, 71 L.Ed.2d 725, 731 (1982) (greater familiarity

court is often in the best position to evaluate the potential of a

particular remedy in preventing violations of constitutional

rights. In the present case, the extra familiarity of the

Supreme Judicial Court with relevant Massachusetts law and

policy concerns is not just a platitude of state judicial com-

petence. The appellate courts of Massachusetts have vigorous-

ly sought to resolve many of the important (and often extreme-

ly complex) relationships between patients, providers and

society." E.g., Custody of a Minor, 385 Mass. 697, 434

N.E.2d 601 (1982) (allowing potentially life-prolonging treat-

ment to be withheld from terminally ill child); In Re Moe, 385

Mass. 555, 432 N.E.2d 712 (1982) (procedures for deciding

whether to permit sterilization of incompetent woman);

Guardianship of Roe, Mass. Adv. Sh. (1981) 981, 421 N.E.2d

40 (limiting forcible administration of antipsychotic drugs to

noninstitutionalized ward); In Re Spring, Mass. Adv. Sh.

(1980) 1209, 405 N.E.2d 115 (procedure for discontinuing

medical therapy and mechanical support of incompetent pa-

tient); Commissioner of Correction v. Myers, 379 Mass. 255,

399 N.E.2d 452 (1979) (government may compel prisoner to

submit to necessary medical treatment over his objections);

Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978)

deference to state and local authorities in management of local school

affairs); Larson v. Valente, 72 L.Ed.2d 33, 59 (1982) (White, J., dissenting);

Santosky v. Kramer, 71 L.Ed.2d 599, 621 n.4 (1982) (Rehnquist, J., dissent-

ing) (important to look to full body of state law).

“See, e.g., People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905, 911-912

(1955) (noting the failure of remedies other than an exclusionary rule to

secure police compliance with the Constitution); see also R. Traynor, Mapp

v. Ohio at Large in the Fifty States, 1962 Duke L. J. 319, 321, 332 (“My

misgivings about [illegally obtained evidence’s} admissibility grew as |

observed that time after time it has been offered and admitted as a routine

procedure .. .. It hed become all to obvious that unconstitutional police

methods of obtaining evidence were not being deterred in any other way.”).

“Many of the decisions have achieved national recognition, and some

Quinlan, 40 N.J. 10, 355 A.2d 647, cert. denied sub nom. Gorger v. New

Jersey, 429 U.S. 922 (1976).

(“Chad Green” case — state interest in protecting child’s life

overrides parents’ preference for laetrile over chemotherapy);

Superintendent of Belchertown v. Saikewicz, 373 Mass. 728,

370 N.E.2d 417 (1977) (authority of judiciary to impiement in-

competent patient’s right to refuse treatment); Common-

wealth v. Golston, 373 Mass. 249, 366 N.E.2d 744 (1977),

cert. denied, 434 U.S. 1039 (1978) (determination of death via

Harvard “brain death” criteria); Baird v. Attorney General,

371 Mass. 741, 360 N.E.2d 288 (1977) (right to abortion); In

Re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978)

(interpretation and refinement of the doctrine of Saikewicz,

supra); Lane v. Candura, 6 Mass. App. Ct. 377, 376 N.E.2d

1232 (1978) (competent patient’s right to refuse life-saving

treatment) .*

In addition, Massachusetts has placed considered emphasis

on the government's (as opposed to just the individual's) in-

terest in adequate medical care for prisoners. In fact, the

Supreme Judicial Court cited Commissioner of Correction v.

Myers, 379 Mass. 255, 399 N.E.2d 452 (1979), where a

prisoner was compelled to submit to kidney dialysis treatment

because a contrary result would have undermined the legiti-

mate institutional concerns of the prison. 385 Mass. at 778

(“[H]ad Kivlin refused the proffered care, he could have been

compelled to submit to treatment”). For these same reasons,

the Supreme Judicial Court may have felt reluctant to allow a

municipality simply to deposit a critically injured detainee at

the hospital, leaving the decisions of treatment and payment

up to private parties, here the MGH and Kivlin. Although the

perceived weight of a state’s interest in such matters may well

vary, Massachusetts’ resolve to avoid any doubt or confusion in

hospital emergency rooms should be respected.”

“ Presumably the state court was also mindful of Massachusetts’ efforts to

control hospital costs through state regulation. See Section V, below.

“ Massachusetts also has a long tradition of concern for the rights of pris-

oners. The Eighth Amendment prohibition on “cruel and unusual punish-

ment” was taken verbatim from the English Declaration of Rights of 1688.

Even before that formal recognition of the prohibition in England, however,

it had already appeared in Nathanial Ward's Massachusetts Body of Liberties

The Supreme Judicial Court began its analysis in this case

with a detailed review of the state law of contract and quan-

tum meruit. Only after concluding that Massachusetts law

provided no basis for recovery under these theories did the

court find it necessary to fashion a remedy to implement

substantive constitutional rights.“* Other states have found in

their own laws different solutions to the same problem.* Just

as this Court has often been reluctant to require states to adopt

a specific, invariable approach to protect constitutional

rights,“ it should be still more hesitant to prevent an in-

dividual state from adopting whatever remedy the state finds

most appropriate in light ot its own needs and experiences.’

No federal law preempts the state’s selection.’ Nor is there

a federal interest in a national law of prisoners or detainees

(1641). Ward's formulation was incorported into the Massachusetts Code of

1648, and was repeated in the Colonial Laws of Massachusetts of 1660 and

1672. Note, 34 Minn. L. Rev. 134, 135-136 (1950).

The premise that Massachusetts has a strong interest in the well-being of its

prisoners draws in another thread of state common law. Under Massachu-

setts law, parents have the duty to provide and guarantee adequate medical

care for their children. See Stimpson v. Hunter, 234 Mass. 61, 125 N.E. 155

(1919). A provider of medical services can look to parents in the first in-

stance, even though others may be ultimately liable.

“The Supreme Judicial Court presumably also recognized that, like the

City of Boston, virtually all large Massachusetts municipalities (where most

of these cases are likely to arise) already have public supported acute care

hospitals capable of providing necessary medical services for detainees.

“E.g., Hospital Services, Inc. v. Duman, 297 N.W.2d 320 (N. Dak.

1980); Mt. Carmel Medical Center v. Board of City Commissioners, 1

Kan. 2d 374, 566 P.2d 384 (1977); Tulsa v. Hillcrest Medical Center, 292

P.2d 430 (Okla. 1956); Spicer v. Williamson, 191 N. C. 487, 132 S.E. 291

(1926) (all under common law); King County v. Seattle, 70 Wash. 2d 988,

425 P.2d 887 (1967) (en banc) (statute); but see Lutheran Medical Center v.

Omaha, 204 Neb. 292, 281 N.W.2d 786 (1979) (Eighth Amendment).

See Section IV(A), above.

“ Whatever consideration the Court might give to state fiscal constraints

when imposing a remedy, see, ¢.g., Ross v. Moffitt, 417 U.S. 600, 618

(1974), is irrelevant when the remedy is voluntarily adopted by the state.

“Even a conflicting federal law would displace state policies only to the

extent of the actual conflict. Ray v. Atlantic Richfield Co., 435 U.S. 151,

158 (1978); see Toll v. Moreno, 73 L.Ed.2d 563, 588-589 (1982) (Rehnquist,

]., dissenting); cf. M. Broad, Federal Common Law: Protecting State In-

terests, 37 Fed. Bar. J. 1 (1978).

that would require a uniform rule. Compare Carlson v.

Green, 446 U.S. 14, 24 & n.11 (1980) (federal law determines

survivorship of federal prisoner’s action against prison of-

ficials) with Robertson v. Wegmann, 436 U.S. 584, 594 (1978)

(state survivorship law applies to state prisoners).

In the present case, Massachusetts has not violated any

federal requirement or defaulted in its obligation to protect

constitutional rights; rather, the state has been fully attentive

in fashioning a remedial structure which effectively deters

violation of those rights. In seeking to protect well established

constitutional rights, the state court can also make and imple-

ment a policy determination that the costs of police protection,

including the costs of caring for injured suspects in custody,

should be borne by residents of the municipality rather than

by patients of the hospital. The state’s creation of a remedy

appropriately tailored to its own policies and needs is entitled

to substantial deference from this Court.”

V. Revere’s ConstiTruTIONAL OBLIGATION TO ProvipE Nec-

essary Mepicat Care ror Derainegs In its Custopy IN-

CLUDES, AT LEAST IN THE First INSTANCE, THE OBLIGATION

To Pay ror THat Care.

In the preceding sections of the brief, MGH has argued that

this Court ought not review the merits of the state court's rul-

ing in any detail, but should affirm the state’s authority to

structure an appropriate remedial system to protect constitu-

tional rights or, in the alternative, should dismiss the writ of

certiorari or vacate the judgment below and remand the case

for clarification or further proceedings. The hospital now

“Compare also Clearfield Trust Co. v. United States, 318 U.S. 363

(1943), with United States v. Yazell, 382 U.S. 341 (1966).

*“As a sovereign entity, a State is entitled to assess its needs and decide

which concerns of its citizens warrant its protection and intervention. I

know of nothing — except the Constitution or overriding federal law — that

might lead a federal court to superimpose its judgment for that of a State

with respect to the substantiality or legitimacy of a State’s assertion of

sovereign interest.” Alfred L. Snapp & Son v. Puerto Rico, 73 L.Ed.2d 995,

1011 (1982) (Brennan, J., concurring). See Younger v. Harris, 401 U.S. 37,

44 (1971), quoted in Webb v. Webb, 68 L.Ed.2d 392, 399 (1982).

demonstrates that even if the Court finds in the opinion below

a determination of substantive constitutional rights rather

than merely a creation of state procedures to implement rights

already established, the judgment should be affirmed.

When the Constitution requires the government to take af-

firmative steps and provide a particular service, providing

generally means paying for. Providing a trial transcript

means paying for one if the appellant cannot do so. See Grif-

fin v. Illinois, 351 U.S. 12 (1956). Providing counsel means

paying if the defendant cannot. See Gideon v. Wainwright,

372 U.S. 335 (1963).

Nowhere is this principle — the equation of provision of en-

titlements with payments — clearer than in the institutional

litigation of which the present case is but one example. When

courts have ordered the states to provide certain services to in-

mates or detainees as required by the Constitution, that means

spending state money. Providing better medical care in a

prison means actually providing the care, not just giving in-

mates an opportunity to purchase care themselves if they have

the money or can find a provider willing to treat them. Were

the rule otherwise, the prison and state institution cases would

not repeatedly assert that a shortage of state funds or lack of

legislative appropriation is no excuse for failing to provide the

necessary care. E.g., New York State Association for Retard-

ed Children v. Carey, 631 F.2d 162 (2d Cir. 1980); Todaro v.

Ward, 565 F.2d 48, 54 & n.8 (1977); Costello v. Wainwright,

525 F.2d 1239, 1252 (5th Cir. 1976); Finney v. Arkansas Board

of Correction, 505 F.2d 194, 201-202 (8th Cir. 1974); Wyatt v.

Aderholt, 503 F.2d 1305, 1313-1315 (5th Cir. 1974); Gates v.

Collier, 501 F.2d 1291, 1319 (5th Cir. 1974); Welsch v. Likins,

373 F. Supp. 487, 499 (D. Minn. 1974); see Watson v. City of

Memphis, 373 U.S. 526, 537 (1963).

The same equation of providing and paying underlies the

Court’s decision last term in Youngberg v. Romeo, 73 L.Ed.2d

28 (1982). In that case, Pennsylvania acknowledged its

obligation to provide committed persons with adequate food,

shelter, clothing, and medical care;*' this Court held that the

Constitution required the state “to provide minimally ade-

quate or reasonable training to insure safety and freedom from

undue restraint.” Id. at 39. In reaching this conclusion, the

court was mindful of the potential fiscal impact on the state,

Id. at 40; see Parham v. J.R., 442 U.S. 584, 599-600 (1979),

clearly showing again the expectation that the government

would be paying for these services. Indeed, if “providing” did

not mean “paying” it is doubtful the various governments

would have opposed the relief sought in most of these cases.

This is not to say that the government must fund the exercise

of every constitutional right. Youngberg v. Romeo, supra, 73

L.Ed.2d at 38. The government need not make Medicaid

funds available for abortions because the state has no affirm-

ative obligation to provide abortions, merely the duty not to

interfere with a woman's right to arrange one for herself. Har-

ris v. McRae, 448 U.S. 297 (1980). Here, by contrast, Revere

had already assumed control of Kivlin by shooting him and

placing him under arrest (A. 11, 13). See United States v.

Mendenhall, 446 U.S. 544, 553-554 (1980). As a result,

Revere did have an affirmative obligation to provide necessary

medical care.™

Nor must the government in every case bear the ultimate, as

opposed to the initial, responsibility for payment. This Court

has already noted that many states make criminal defendants

ultimately liable for the cost of representation provided at

public expense, James v. Strange, 407 U.S. 128, 132-133 & n.8

(1972), or for the cost of trial transcripts in criminal appeals,

Rinaldi v. Yeagar, 384 U.S. 305 (1966). Viewed this way, the

remedial rules of Gideon v. Wainwright, 372 U.S. 335 (1963),

and Griffin v. Illinois, 351 U.S. 12 (1956), are only initial

ack 36-37 and 42. Twenty-one other states apparently agreed. Id. at

n.17.

“The government's obligation to its citizens is heightened when those

citizens are in . See, e.g., Abington School District v. Schempp, 374

U.S. 203, 297 & n.72 (governments’ provision of chaplains for prisoners)

(dicta) (1963).

allocations of fiscal obligations,* not preventing the govern-

ment from seeking reimbursement for its expenditures.™

Nothing in the Supreme Judicial Court’s opinion prevents

Revere from seeking reimbursement from the detainee himself

or third-party payors, if any.» See Beach v. District of Col-

umbia, 320 F.2d 790, 793 (D.C. Cir. 1963) (secondary obliga-

tion on father to pay for incompetent child’s treatment in

public hospital).

When it imposed the initial obligation for payment upon the

government, the Supreme Judicial Court no doubt recognized

that pre-trial detainees as a class tend to be poor and might be

expected to have less Blue Cross or private insurance

® Although these cases only require government payment on behalf of in-

digent defendants, it is generally easier to make an accurate determination of

indigency in the relative calm of an arraignment than in the excitement of a

busy hospital emergency room or intake center Even if the Eighth or Four-

teenth Ame..cments did not require that medical care he furnished without

charge to non-indigent prisoners, see Fant v. Fisher, 414 F. Supp. 807 (W.D.

Okla. 1976), constitutional rights will be most fully :rotected if the hospital

is assured of payment from the municipality, with the municipality able to

recover in turn from a solvent prisoner or detainee. See United States v.

Allen, 596 F.2d 227 (7th Cir. 1979), cert. denied, 444 U.S. 871 (1979) (de-

fendant who misrepresented his financial status ordered to reimburse govern-

ment for costs of legal services).

Revere does not argue that the state court's decision is too broad because it

requires initial payment without regard to indigency. Whether the Con-

stitution requires the municipality to make initial payment in all instances

need not be decided in this case. It may be, for example, that when a de-

tainee clearly has sufficient resources, his financial status alone is sufficient

guarantee that required medica] treatment will be delivered. It should be

noted here that in all likelihood Kivlin was indigent; Revere assumes as much

* Revere implicitly recognized this fact when it filed its cross-claim against

Kivlin for reimbursement. Revere also sued the Commonwealth of Massa-

chusetts, claiming that ultimate financial responsibility lay there. Having

failed to cross appeal the dismissal of this third-party claim, Revere is now in

no position to complain if the ultimate burden in this case rests with it.

> Under Massachusetts law, the policeman escorting Kivlin to the hospital

would not be personally liable for the costs of medical care. Mass. Gen.

Laws c. 1LIC, § 14.

coverage.” By guaranteeing that the provider will be paid,

the Supreme Judicial Court’s rule insures prompt provision of

necessary medical care.

Revere tries to shift its own constitutional obligation to pro-

vide care onto MGH by arguing that detainees will receive

necessary medical attention regardless of payment. The argu-

ment is flawed in several respects. First, the “patient's rights”

act on which Revere relies was not enacted until the year after

Kivlin’s hospitalization and thus does not apply. Mass. Gen.

Laws c. 111, § 70E(k), added by St. 1979, c. 214.”

Moreover, the patient’s rights statute refers only to emer-

gency treatment, while the government's obligation extends to

significant non-emergency treatment as well. See n.22, supra.

“Many persons [in custody], such as diabetics, asthmatics,

epileptics, hypertensives, and cardiacs, require daily medica-

tion or immediate access to medical attention at the onset of

symptoms.” E. Neisser, Is There a Doctor in the Joint: The

Search for Constitutional Standards for Prison Health Care, 63

Va. L. Rev. 921, 939 (1977).

Revere also seeks to imply that MGH is required under the

Hill-Burton Act, 42 U.S.C. § 291, and other federal funding

statv'tes to provide free care to persons in Kivlin’s position.

* This Court has acknowledged reports of 50% to 90% indigency among

felony defendants. Miranda v. Arizona, 384 U.S. 428. 472 n.40 (1966). The

primary occupants of American jails are untried defendants too poor to pur-

chase their freedom with bail. Note, Constitutional Limitations on the Con-

ditions of Pretrial Detention, 79 Yale L. J. 941, 941 (1970). There are about

100,000 pretrial detainees in United States jails; depending on the jurisdic-

tion, the average period of detention ranges from six weeks to eight months.

Id. at 942. Massachusetts is in the middle of the range. See Inmates of Suf-

folk County v. Eisenstadt, 360 F. Supp. 676, 687 (D. Mass. 1973), aff'd 494

F.2d 1196 (1st Cir.), cert. denied sub nom. Hall v. Inmates of Suffolk County

Jail, 419 U.S. 977 (1974) (two to six months or more at Charles Street Jail —

where Revere brings its detainees, A. 14).

* Because this statute was not raised below and this provision of the statute

has never been interpreted by the state supreme court, this Court should in

any case decline to base its decision on that ground. It is for the Supreme

Judicial Court to say whether the remedy applied in the next case should be

changed in light of the legislative action. Railroad Commission v. Pullman

Co., 312 U.S. 496, 500 (1941).

Because this claim was never raised in the state courts, MGH

presented no evidence on the issue, but now represents to this

Court that the hospital’s Hill-Burton obligations had been

fulfilled before Kivlin’s hospitalization and that MGH had no

obligation to provide such care pursuant to any federal enact-

ment. What Revere fails to mention is the tremendous finan-

cial pressure that has been brought to bear on Massachusetts

hospitals. Massachusetts is one of the few states to regulate

directly hospital charges. Mass. Gen. Laws c. 6A, §§ 37-46,

instructs the state’s Rate Setting Commission to fix the rates

paid to providers.” In addition, since 1980 special statutory

enactments have established overall ceilings on a hospital’s

total revenue increases. See Mass. St. 1980, c. 540; St. 1981,

c. 432; and St. 1982, c. 372. Taken together, the two sets of

laws restrict a hospital's ability to raise its rates or to increase

its total revenues.”

Because of these statutes, MGH anticipates revenue of ap-

proximately $17 million less than its projected need for the

% The federal government takes the position that Medicare payments “may

not be made for items or services rendered to prisoners, since the state (or

other government component which operates the prison) is responsible for

their medical and other needs. For this purpose, the term ‘prisoner’ means a

person who is in the custody of the police, penal authorities, or other agency

of a governmental entity.” Department of Health and Human Services

(Health Care Financing Administration) , Medicare Hospital Manual § 260.3

(Aug. 10, 1982), also appearing in CCH, Medicare and Medicaid Guide

§ 4050, at p. 1419 (Nov. 1982).

Similarly, Medicaid is not available for inmates. 42 C.F.R.

§435.1008(a)(i), § 435.1009. See L. King, Public Police and Administrative

Aspects of Prison and Jail Health Services, reprinted in A.C.L.U. National

Prison Project, Representing Prisoners, at 377 n.10 (1981) (noting exclusion

of jail and prison health service from public and private reimbursement pro-

grams). Even without these exclusions, of course, a prisoner will not be eligi-

ble for Medicare or Medicaid unless he satisfies the particular requirements

of the program.

® The rates thus set are maximum charges; only commercial insurance car-

riers and self-pay patients pay charges. Reimbursement under Medicaid,

Medicaid and Blue Cross is lower.

“If adopted, proposed regulations of the Department of Health and

Human Services curtailing compensation for the services of “physicians prac-

ticing in the institutional setting” will exacerbate the fiscal problem. See 47

Fed. Reg. 43578 et sg. (Oct. 1, 1982).

current fiscal year.*' As a result MGH, like most Boston area

hospitals, has had to take drastic action to deal with the an-

ticipated shortfall. The hospital adopted a budget reduction

program, including a self-imposed hiring freeze effective July

26, 1982, pursuant to which new personnel may not be hired

and vacant positions may not be filled without special permis-

sion of the newly created Resource Allocation and Position

Review Committees. The hospital eliminated its traditional

policy of providing annual raises on employees’ service an-

niversary dates. And MGH is currently in the process of revis-

ing its free care policy to reduce the circumstances in which it

will provide medical services without regard to ability to pay.

For all these reasons, it cannot be asserted with any con-

fidence that Massachusetts prisoners and detainees will

automatically receive all necessary hospital care regardless of

financial resources. Governmental policies are forcing Massa-

chusetts hospitals to reevaluate all their services, and their free

services most of all. In the present financial climate, it is

reasonable to expect that many hospitals in the state will

decline to provide free care whenever possible. As Revere

demonstrates by its position in this litigation, hospitals in

Massachusetts cannot rely on municipalities to pay voluntarily

for treatment provided to detainees.”

Under these circumstances, the rule adopted sy the

Supreme Judicial Court is an important step toward protect-

ing the constitutional rights of those in custody. Other possi-

ble prisoners’ remedies, such as tort damages or habeas corpus,

“ This estimate assumes essentially no expansion of hospital services, since

in most cases the revenue cap prevents the hospital from increasing its ag-

gregate revenues enough to cover the added cost of new services.

** Because of the revenue cap, an increase in free care will not be reim-

bursed by the third-party charge payors.

® Any fiscal constraints imposed on Revere by St. 1980, c. 580 (“Proposi-

tion 2%”) may be overridden by vote of the City’s residents. The

Massachusetts “revenue cap,” by contrast, does not permit an override by the

hospitals. Although Revere makes no showing that an override would be

needed, the City has in any case no right to be free of costs of insuring that

constitutional rights are respected. City of Monell v. Department of Social

Services, 436 U.S. 658 (1978).

are inadequate because they are available only after a failure

to provide treatment has occurred. The ultimate goal of the

Fourteenth Amendment is to prevent constitutional violations

from occurring, not merely to provide monetary redress after

the fact. See Parratt v. Taylor, 68 L.Ed.2d 420, 435 (1981)

(Blackmun, J., concurring) (greater concern over deprivations

of life and liberty); Wyatt v. Aderholt, 503 F.2d 1305, 1316

(5th Cir. 1974) (Wisdom, J.).

The remedial rule adopted by the Supreme Judicial Court

also has the virtue of simplicity. This Court has on occasion

felt the burden of “recurrent inquiry into special cir-

cumstances” of individual cases. Miranda v. Arizona, 384

U.S. 436, 469 n.38 (1966); Scott v. Illinois, 440 U.S. 367, 378

(1979) (Brennan, J., dissenting). Where the right is as impor-

tant as physical well-being and the remedy as simple as the one

adopted here, there is no excuse for choosing instead to engage

in ex post facto inquiry into the detainee’s medical needs and

his financial situation. See Miranda v. Arizona, supra at 373

n.43.

Conclusion.

If this Court reaches the question of constitutional inter-

pretation, it should hold that the Constitution requires

municipalities to bear in the first instance the costs of

necessary medical care for detainees to insure the care is in fact

provided. Alternatively, the Court should not disturb the

state’s allocation of fiscal responsibility for costs of medical

care furnished to pre-trial detaineees because the state remedy

is a permissible one under the Constitution.

Indeed, the Court should decline to reach the merits

because the Supreme Judicial Court’s choice of remedy to

deter constitutional violations is a matter of state law not prop-

erly reviewable by the federal courts. If the Court is con-

cerned that the federal and state law may be intertwined in the

decision below, it should find that Revere has not met its

burden of establishing the existence of a fundamental federal

question or should remand the case to permit clarification and

further action by the Supreme Judicial Court.

The Court need not consider any of these questions,

however, for Revere is a creature of the state and thus is not a

proper party to challenge fiscal obligations assigned to it by the

state. And although MGH believes it is a proper party to

assert the rights of detainee patients to necessary medical care,

if this Court disagrees and concludes that the federal rules of

standing are not satisfied, it should dismiss the writ of cer-

tiorari rather than impose the federal rules upon the siates.

Respectfully submitted,

ERNEST M. HADDAD,

General Counsel,

MICHAEL BROAD,

Assistant General Counsel,

Counsel of Record,

Massachusetts General Hospital,

55 Fruit Street,

Boston, Massachusetts 02114.

(617) 726-8624

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.