# Appendix — New York State Ass'n for Retarded Children, Inc. v. Carey

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0215%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 915

## Text

some

No. s&% 3 ~ 2 Olfice- Supreme Court, U.S,

LED

IN THE AUE 8 1993
Supreme Court of the United Htatesoc>. 5
OCTOBER TERM, 1983 VLERK

>

NEW YORK STATE ASSOCIATION FOR
RETARDED CHILDREN, INC.,, et al.,

—and—
PATRICIA PARISI, et al.,

Petitioners,
—_—)V—
HUGH L. CAREY, individually and as Governor
of the State of New York, et al.,
Respondents.

UNITED STATES OF AMERICA,
Amicus Curiae

APPENDIX TO PETITION FOR A WRIT OF
CERTIORARI TO THE COURT OF APPEALS
FOR THE SECOND CIRCUIT

ARCHIBALD R. MURRAY
KALMAN FINKEL

JOHN E. KIRKLIN
RICHARD F. BRAUN

HELEN HERSHKOFF

Legal Aid Society

11 Park Place

New York, New York 10007
(212) 227-2755

Of Counsel:

PAUL, WEISS, RIFKIND,
WHARTON & GARRISON

By: Jonathan D. Siegfried

Elisa M. Rivlin

345 Park Avenue

New York, New York 10154

(212) 644-8277

CHRISTOPHER A. HANSEN
(Counsel of Record)

ROBERT M. LEVY

New York Civil Liberties Union
84 Fifth Avenue

New York, New York 10011
(212) 924-7800

MICHAEL S. LOTTMAN
MURRAY B. SCHNEPS

299 Broadway

Suite 805

New York, New York 10007
(212) 267-0760

WALTER C, REDFIELD

1290 Avenue of the Americas
Suite 4150

New York, New York 10104
(212) 977-9500

TABLE OF CONTENTS

APPENDIX A: Opinion of
the Court of Appeals,
March 31, 1983

APPENDIX B: Denial of
Petition for Rehearing,
May 9, 1983

APPENDIX C: Opinion and
Order of the District
Court, April 28, 1982

APPENDIX D: Relevant
Sections of Final
Judgment on Consent,
April 30, 1975

APPENDIX E: Order of the
District Court, October
22, 1979 (Flower Order)

[CORRECTED COPY]

APPENDIX A
Opinion of the Court
of Appeals, March 31, 1983

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

oe

Nos. 305, 821—-August Term, 1982
(Argued December 16, 1982 Decided March 31, 1983)
Docket Nos. 82-7441, 82-7591

—————

Netw YORK STATE ASSOCIATION FOR
RETARDED CHILDREN, INC., et al,
—and—
PATRICIA PARISI, et al.,
Plaintiffs-Appellees,

—_—Vo—

HUGH L. Carey, individually and as
Governor of the State of New York, et al.,

Defendants-Appellants.

UNITED STATES OF AMERICA,
Amicus Curiae.

Before:

FRIENDLY and NEWMAN, Circuit Judges,
and WyZanskl, District Judge.*

>

Appeal by the Governor of the State of New York and
officials of its Office of Mental Retardation and Develop-
mental Disabilities from orders of the District Court for
the Eastern District of New York, John R. Bartels,
Judge, entered on April 28 and July 13, 1982. The orders
found appellants not to be in compliance with a Consent
Judgment entered on April 30, 1975, between appellants
and a class consisting of residents of Willowbrook State
School, granted modification of the Consent Judgment
more limited than appellants had sought, and appointed a
Special Master to oversee compliance with the Consent
Judgment. Affirmed in part and reversed and remanded
in part,

+

CHRISTOPHER A, HANSEN, New York, NY,
New York Civil Liberties Union, New
York, NY (Robert M. Levy, Diana_ T.
Tanaka), Legal Aid Society, New York,
NY (Archibald R. Murray, Kalman
Finkel), Paul, Weiss, Rifkind, Wharton
& Garrison, New York, NY (Jonathan D.
Siegfried, Helen Hershkoff, Elisa M.
Rivlin), Michael S. Lottman, Murray B.

. United States District Court for the District of Massachusetts, sitting
by designation,

A=-3

Schneps, New York, NY, for Plaintiffs-
Appellees other than New York State As-
sociation for Retarded Children, Inc.

WALTER REDFIELD, New York, NY, for Plain-
tiff New York State Association for Re-
tarded Children, Inc.

TAYLOR R. BricGs, New York, NY, LeBoeuf,
Lamb, Leiby & MacRae, New York, NY
(Richard C, Cole, Kim Hoyt Sperduto,
Joy Feigenbaum, Lawrence W. Pollack),
Robert Abrams, New York State Attor-
ney General (Frederick K. Mehlman,
Assistant Attorney General), for Defen-
dants-Appellants.

EDWARD R. KORMAN, United States Attorney
for the Eastern District of New York,
Wm. Bradford Reynolds, Assistant
Attorney General, J. Harvie Wilkinson,
Deputy Assistant Attorney General,
Brian K. Landsberg, Louise A. Lerner,
Attorneys, Department of Justice, Wash-
ington, D.C., for Amicus Curiae United
States.

FRIENDLY, Circuit Judge:
The present appeal and a companion case, Docket No.
82-7531, are the latest in a long series of decisions'

y Previous reported decisions include New York State Ass'n for
Retarded Children, Inc. v, Rockefeller, 387 F. Supp, 782 (E.D.N.Y.

A-4

spawned by a complaint filed on March 17, 1972, by the
New York State Association for Retarded Children, Inc.
(NYSARC), other voluntary organizations, and individ-
ual mentally retarded persons on behalf of a class of
mentally retarded children and adults residing at what
was then Willowbrook State School for the Mentally
Retarded and is now Staten Island Developmental Center
(Willowbrook), alleging that inhuman conditions there
violated constitutional rights protected by 42 U.S.C.
§ 1983. We provide here only so much background as is
necessary to our decision.

1. FACTUAL BACKGROUND

At the commencement of the action, the resident popu-
lation of Willowbrook was 5,700, or 65% over its official
capacity, reduced from a peak of 6,200 in 1969, and the
facility’s overcrowding, understaffing, and physical
squalor amounted to what one state defendant admitted
was a “major tragedy”, NYSARC v. Carey, 596 F.2d 27,
29-30 (2 Cir.), cert. denied, 444 U.S. 836 (1979). On April
10, 1973, after five days of hearings and a personal
inspection of Willowbrook, the late Judge Orrin G. Judd
held that state officials had violated plaintiffs’ constitu-
tional right to protection from harm in a state institution,
357 F. Supp. 752, 764-65, and granted preliminary relief
ordering immediate hiring of additional staff and im-

1973); New York State Ass’n for Retarded Children, Inc. v. Carey, 393
F. Supp. 715 (E.D.N.Y. 1975); 409 F. Supp. 606 (E.D.N.Y. 1976); 438
F. Supp. 440 (E.D.N.Y. 1977); 456 F. Supp. 85 (E.D.N.Y. 1978); 466 F.
Supp. 479 (E.D.N.Y. 1978), aff'd, 612 F.2d 644 (2 Cir. 1979); 466 F.
Supp. 487 (E.D.N.Y. 1979); 596 F.2d 27 (2 Cir.), cert. denied, 444 U.S.
836 (1979); 492 F. Supp. 1099 (E.D.N.Y. 1980); 492 F. Supp. 1110
(E.D.N.Y.), rev’d, 631 F.2d 162 (2 Cir. 1980); 544 F. Supp. 330
(E.D.N.Y. 1982).

A-5

provement of conditions to attain minimal standards of
health and safety, id. at 768-69. Subsequently plaintiffs,
joined by the United States Department of Justice as
amicus curiae, moved to have several state officials held
in contempt. Settlement negotiations were pursued during
a trial on the issue of noncompliance in late 1974 and
were resumed in 1975 under a new state administration.
These led to the Consent Judgment of April 30, 1975,
which Judge Judd approved, 393 F. Supp. 715.

The 1975 Consent Judgment, reproduced at | Mental
Disability L. Rep. 58 (1976), specified “steps, standards
and procedures necessary to secure the constitutional
right to protection from harm” for members of plaintiff
class, including reduction of Willowbrook’s resident pop-
ulation to 250, all remaining residents to be from Staten
Island homes,* by April 30, 1981. It ordered and enjoined
state officials, “{w]ithin their lawful authority” and “sub-
ject to any legislative approval that may be required” to
“take all actions necessary to secure implementation of”
the detailed “steps, standards and procedures” incorpo-
rated in a lengthy appendix to the Consent Judgment and
to “ensure the full and timely financing of this judg-
ment”. Consent Judgment at 3-4. The court created a
Review Panel to monitor implementation of the Consent
Judgment, as well as a Professional Advisory Board and
a Consumer Advisory Board to assist the Review Panel
and state administrators. Jd. at 5-11. The court retained
jurisdiction to entertain applications for orders constru-

ts

This requirement has been elaborated by the Office of Mental
Retardation and Developmental Disabilities (OMRDD) into a self-im-
posed “County of Origin” Policy by which each class member is placed
in the borough or county from which he or she was originally
committed to Willowbrook.

A-6

ing, implementing, or enforcing compliance with the
provisions of the Consent Judgment. /d. at 11-12.

The Consent Judgment ordered that the plaintiff class
be provided with “the least restrictive and most normal
living conditions possible”. Consent Judgment, Appendix
A at 1. Included among the requirements implementing
this standard were provisions for “clean, adequate and
seasonally appropriate clothing”, “accessible, private and
easily usable toilets and bathing facilities”, and “clean,
odorless, and insect-free” living quarters. Jd. at 1-2.
Residents were to receive individualized care, opportuni-
ties for education and recreation, and adequate medical
services. Jd. at 5-16. Restrictions were placed on use of
physical restraints, experimentation on residents, and
exaction of residents’ labor for the upkeep of the institu-
tion. Jd. at 17-19.

Reduction of Willowbrook’s population from 5700 to
250 was to be achieved by relocation of its residents to
“community placements” designed “to ready each resi-
dent, with due regard for his or her own disabilities and
with full appreciation for his or her own capabilities for
development, for .:2 in the community at large.” Jd. at
28. A “community placement” was defined in the Con-
sent Judgment as

a non-institutional residence in the community in a
hostel, halfway house, group home, foster care
home, or similarly residential facility of fifteen or
fewer beds for mildly retarded adults, and ten or
fewer beds for all others, coupled with a program
element adequate to meet the resident’s individual
needs.

Id. at 27. This restriction placed on the size of community
placements, which we shall call for simplicity’s sake the

A-7

“15 bed/10 bed limitation”, would contribute to the
“normalization” of the lives of plaintiff class members by
approximating as nearly as possible the housing situations
of non-retarded children and adults.

The road to compliance has not been easy and has by
no means reached its end.’ A prior opinion of this court,
596 F.2d 27, 31-36 (2 Cir. 1979), gives a detailed account
of the elaborate enforcement mechanisms set up by the
district court. From 1975 to 1980, the Willowbrook Re-
view Panel issued periodic audit reports on the degree of
compliance with the Consent Judgment and some 25
formal recommendations for the closing of certain facili-
ties, hiring of medical and psychiatric personnel, provi-
sion of educational programming, and similar matters.
Judge Bartels, succeeding Judge Judd in the case, em-
bodied many of these recommendations in orders to the
defendants and conducted hearings on plaintiffs’ motions
of November 11, 1976, and September 9, 1978, for
findings of civil contempt against state officials.

In one such enforcement proceeding, the Willowbrook
Review Panel recommended on May 24, 1979, that in
order to comply with the Consent Judgment, the defen-
dants should provide a group of multiply handicapped
class members transferred to Flower Fifth Avenue Hospi-
tal (Flower Hospital) with “community placements” of
no more than three beds each. Defendants refused to
implement the recommendation unless a court order com-
pelled them to do so. After an evidentiary hearing, “the
parties having agreed in open court on September 11,

One rough measure of the time and energy devoted thus far by the
parties and the district court to the enforcement of the Consent
Judgment is the district court's docket sheet. Twelve pages of closely
= entries precede the notation of final judgment in 1975; 39 pages
ollow it.

A-8

1979, to a resolution of said issue,” the court ordered that
the Flower Hospital group be placed in residential facili-
ties of six beds or less, with the more severely disabled
half of this group placed in facilities of three beds or less
(the “6 bed/3 bed limitation”).

The Willowbrook Review Panel has effectively ceased
to monitor compliance with the Consent Judgment since
the state legislature in March, 1980, refused to appropri-
ate funds necessary to continue its operations. This court
subsequently held that the district court could not compel
the Governor of New York and its comptroller to rein-
state funding for the Review Panel in defiance of the
legislature and of state law, 631 F.2d 162, 166 (2 Cir.
1980). With the demise of the Review Panel, counsel for
the plaintiff class brought charges of noncompliance
directly to the district court’s attention. As of August 31,
1981, 1369 members of the original class remained at
Willowbrook awaiting placement and 999 had been trans-
ferred temporarily to other large institutions. Of the level
of sanitation, resident care, and maintenance at Wil-
lowbrook revealed by audits in March and September,
1981, we shall have more to say hereafter.

Plaintiffs moved on May 22, 1981, for an order de-
claring that the defendants were not in compliance with
provisions of the Consent Judgment relating to clothing,
nutrition, environment, staffing, programs and services,
and community placement, and for an order referring
further issues of compliance with the Consent Judgment
to a Special Master. On the same day, defendants moved
pursuant to F.R.Civ.P 60(b) to modify the 15 bed/10 bed
limitation in the Consent Judgment and the 6 bed/3 bed
limitation in the Flower Hospital Order to a 50 bed
limitation. After extensive discovery and 25 days of
testimony, the district court on April 28, 1982, issued the
decision prompting the present appeal.

A-9

Judge Bartels, while not doubting “the good faith of
the defendants in attempting to comply with the Judg-
ment”, Opinion at 33, found that they had failed to attain
its standards for sanitation, maintenance, clothing, pro-
gramming, special therapies, recreation, nutrition, and
staffing. He ordered defendants to comply in these re-
spects “with all deliberate speed”, but extended the dead-
line for finding community placements for plaintiffs to
April 1, 1985, Opinion at 70. The decision further pro-
vided that a Special Master be appointed, in place of the
defunct Review Panel, to monitor compliance with the
Consent Judgment. Finally, Judge Bartels ordered modi-
fication of the Flower Hospital Order’s 6 bed/3 bed
limitation to a 6 bed/4 bed limitation, but denied defen-
dants’ motion to modify the 15 bed/10 bed limitation in
the Consent Judgment. By order dated July 13, 1982,
Judge Bartels named Dr. Rudy Magnone as Special Mas-
ter and enumerated his duties and powers.

I]. FINDINGS OF NONCOMPLIANCE

Defendants attack the district court’s findings of non-
compliance with the Consent Judgment on two grounds.
First, they charge that the district court’s findings were
based on inadmissible evidence obtained pursuant to a
discovery order so fundamentally unfair to defendants
that it amounted to an abuse of the court’s discretion.
Second, they attack the findings themselves as “clearly
erroneous”. Neither ground warrants reversal of the dis-
trict court’s findings of noncompliance.*

4 Appellants do not challenge this portion of the judgment on the
basis of the Supreme Court's decision in Youngberg v. Romeo, 73
L.Ed. 2d 28, decided on June 18, 1982, subsequent to the district
court's decision. We discuss the effect of Youngberg below.

A-10

The district court’s order of July 7, 1981, made over
defendants’ objection, permitted plaintiffs’ counsel, con-
sultants, and experts to inspect the Willowbrook facili-
ties, “take photographs, make observations, take notes,
form conclusions and interview any class member, staff
member or employee desired outside the presence of
defendants,” their counsel and representatives.° Plain-
tiffs’ representatives were instructed to minimize disrup-
tion of defendants’ operation and to limit the number of
observers On any one inspection to four. Defendants were
instructed to allow their employees to answer all ques-
tions put to them by the visitors. Defendants now charge
that as a result of this order, hearsay statements of
unidentified Willowbrook staff members, unsubstan-
tiated observations of plaintiffs’ expert witnesses, and
prejudicial photographs were admitted into evidence and
were expressly relied upon in the district court opinion.

In challenging the propriety of the discovery order,
defendants rely principally on Belcher v. Bassett Furni-

‘

At the hearing on plaintiffs’ motion for the discovery order, defen-
dants objected especially to plaintiffs’ counsel questioning defendants’
employees without defendants’ counsel present. The circumstances
here, however, are similar to those in Vega v. Bloomsburgh, 427 F.
Supp. 593, $95 (D. Mass. 1977), wherein this practice was approved.

6 Plaintiffs pointed out at the hearing that similar discovery orders
were granted by Judge Johnson in Wart v. Hardin, C/A No, 3193-N
(M.D. Ala., June 21, 1978).

Defendants object particularly to a footnote in Judge Bartels’
opinion, n. 10, mentioning that Dr. Clements observed in the lunch-
room a class member sitting in a puddle of urine and testified to an
out-of-court statement by an unnamed employee that it was not her
job to clean up urine. Dr. Clements then saw the class member drop his
spoon into the puddle, retrieve it, and continue to eat. It is clear,
however, that Judge Bartels relied not upon the truth of the hearsay
statement but upon Dr. Clements’ observation that while he was in the
lunchroom the employee noticed the situation and did nothing to
remedy it.

A-11l

ture Industries, Inc., 588 F.2d 904 (4 Cir. 1978), an
employment discrimination case in which an order per-
mitting inspection of defendant’s plant and questioning
of its employees by the plaintiff's expert was reversed.
That decision correctly states the standard to be used in
deciding whetner, under F.R.Civ.P. 26(c), a discovery
order such as this one is unduly burdensome: “Under this
subsection, the degree to which the proposed inspection
will aid in the search for truth must be balanced against
the burdens and dangers created by the inspection.” 588
F.2d at 908. The danger, there as here, was that “interro-
gation of the employees, conducted informally” could
amount to “a roving deposition, taken without notice,
throughout the plants, of persons who were not sworn
and whose testimony was not recorded, and without any
right by the defendant to make any objection to the
questions asked. Presumably, on the basis of such interro-
gations, the expert would base his testimony.” Jd. at 907.
The Fourth Circuit found that this danger, combined with
the burden of disruption of defendant's operations, out-
weighed the speculative gains to be derived, in light of the
facts that the complaint in Belcher had alleged no specific
instances of discrimination, the motion for the discovery
order mentioned no specific areas of inquiry, and the
expert witness’s special field of expertise was not
described.

A different balance must be struck in the present case.
Here plaintiff counsel’s claims of noncompliance were
quite specific and their inspections were meant to fill a
gap left by the demise of the Review Panel provided for
in the Consent Judgment. Judge Bartels, calling on his
years of experience with the case, was well able to
determine the value this form of discovery would have in
resolving the controversy then before him. In many re-

A-12

spects the inspection procedure here resembles the place-
ment of experts within Texas Youth Council facilities
permitted in Morales v. Turman, 59 F.R.D. 157, 159
(E.D. Tex. 1972). Mindful of the unique difficulties
presented in post-judgment compliance efforts of the sort
here in question, we do not consider the district court’s
discovery order of July 7, 1981, to have been an abuse of
discretion. Almost all the out-of-court statements by
unnamed Willowbrook employees provisionally admitted
were received for the purpose of enabling plaintiffs’
experts to express an Opinion as permitted by F.R.E. 703.
Moreover, the eyewitness observations to which plaintiffs’
experts testified and the documentary and photographic
exhibits afforded ample basis for the district court's
findings. _

Defendants further attempt to show that the findings of
noncompliance in Judge Bartels’ Opinion and Order of
April 28, 1982, (Opinion) were clearly erroneous. They do
this in the face of a Compliance Report (Report) prepared
by defendant officials of OMRDD in March 1981 admit-
ting noncompliance with 137 of 385 standards embodying
the mandates of the Consent Judgment. Report at 15.
Details of these findings and defendants’ charges of error
follow.

Judge Bartels found that “sanitation at Willowbrook is
totally unsatisfactory and presents a serious health hazard
to the resident population.” Opinion at 10. Rodents and
cockroaches infest the kitchens and dining rooms. Hu-
man feces and urine pollute bathrooms and living areas.
The district judge also found that “[t]he most glaring
maintenance inadequacies,” included blocked plumbing,
broken furniture, and lack of curtains for privacy, “stem
from present, not past neglect.” Opinion at 13. Defen-
dants argue that the judge should have ignored testimony

A-13

of Willowbrook Review Panel chairman Dr. James Clem-
ents and plaintiffs’ photographic evidence in favor of his
own observations during a tour of Willowbrook on the
first day of trial. We find no error in the district court's
reliance on the repeated visists of Dr. Clements. Defen-
dants’ own Compliance Report revealed noncompliance
with 22 of 39 applicable standards in this area, including
those specifying absence of “offensive, irritating odors”
and of food, dirt, and trash of more than one day’s
accumulation. Report at 41-42.

Judge Bartels found that “[s]ome residents at Wil-
lowbrook are partially clothed, others go nude, and many
wear clothes that are ill-fitting, badly torn and stained.”
Opinion at 15. The court noted that toilet training of class
members cannot proceed when they are pinned or tied
into their clothing and thus cannot remove it themselves.
Defendants point to testimony describing improvements
in this area but, despite these hopeful signs, their Com-
pliance Report records that the clothing supply is insuffi-
cient and that clothes are frequently ill-fitting and in
disrepair. Report at 10.

Delivery of programming, that is, formal training or
instruction for the mentally retarded person’s individual
needs, was found seriously deficient. Some residents, due
to lack of transportation or lack of clothing, never arrive
at their programming sessions. Even for those residents
who attend, the court found, “[djefendants have been
remiss in developing and implementing individual devel-
opment treatment plans.” Opinion at 19. Here conflicting
expert testimony permitted the court te conclude, in
accordance with defendants’ Compliance Report, that
“[mJjany recommended programs and services . . . were
not being implemented”; residents instead “were observed
sitting inactively in program areas.” Report at 6.

A-14

Defendants on appeal do not mention the court's
findings on the absence and misuse of equipment for
residents requiring special therapies, enforced idleness
due to lack of any recreation equipment, and failure to
provide special diets for residents who need them. Opin-
ion at 20-22. Defendants do, however, contest vigorously
Judge Bartels’ finding of “serious staff shortages” due to
chronic tardiness, absences, and inefficient deployment of
what would otherwise be adequate numbers of employ-
ees. Opinion at 23-24, Defendants insist that the court
improperly relied upon plaintiffs’ figures based on work-
sheets that did not provide complete records of staff
attendance. Yet defendants’ February 198] Compliance
Report on staffing (Staff Report) revealed the same
conclusions, Full compliance could be shown among
direct staff, at least on weekdays, when all buildings and
shifts were averaged, but “the range of surpluses and
deficits varied considerably among buildings.” Staff Re-
port at 2. Among mid-level supervisors, even the average
attendance in all buildings of the Willowbrook facility
during all shifts, including paydays, did not amount to
full compliance. Staff Report at 3. Neither this nor any of
the findings previously mentioned constitutes the clear
error that would be required for us to reverse the judge's
findings on conditions at Willowbrook.

II]. APPOINTMENT OF A SPECIAL MASTER

Defendants seek to have the district court's appoint-
ment of a special master set aside as an abuse of discre-
tion. Their argument that the present case fails to show
the requisite “exceptional condition” under F.R.Civ.P.
§3(b) is wholly lacking in merit. The monitoring of a
Consent Judgment that mandates individualized care for

A-15

thousands of class members and that entails balancing of
the interests of parties with third-party employees,* school
authorities,” and community groups" is just the sort of
“polycentric problem that cannot easily be resolved
through a traditional courtroom-bound adjudicative
process” for which Judge Weinstein found a Special
Master appropriate in Hart v. Community School Bd. of
Brooklyn, 383 F. Supp. 699, 766 (E.D.N.Y. 1974), aff'd,
$12 F.2d 37 (2 Cir. 1975). See also Gary Wi v. Louisiana,
601 F.2d 240, 244-45 (5 Cir. 1979); Halderman v. Penn-
hurst State School & Hospital, 612 F.2d 84, 111 (3 Cir.
1979)’ and cases cited in these opinions,

*

See NYSARC v, Care), 438 F Supp. 440 (E.D.N.Y, 1977) Goining
the Civil Service Employees Association, Inc. for an ancillary proceed-
ing determining whether a proposed contract between the Department
of Mental Hygiene and United Cerebral Palsy “would infringe on any
rights of the employees at Willowbrook"); 486 F. Supp. 8§ (E.D.N.Y.
1978) (concluding the ancillary proceeding)

9 See NYSARC ¥ Cares, 466 F. Supp. 479 (E.D.N_Y. 1978) (enjoining
city board of education from excluding mentally retarded children
from regular school classes because they carried serum hepatitis),
aff'd, 612 F.2d 644 (2 Cir. 1979)

10 See, ¢.g., People of the State of New York v. 1] Cornwell Co., slip
Ops, at $569 (2 Cir., Nov, 30, 1982) (state suit on behalf of its mentally
retarded citizens against partnership formed by neighbors seeking to
prevent OMRDD from purchasing house as community residence for
the retarded)

NW We are mindful of Justice White's disapproval of use of a Special
Master in the Pennhurst proceeding “to decide which of the Pennhurst
inmates should remain and which should be moved to community-
based facilities", Pennhurst State School ». Halderman, 45\ U.S. |, $4
(1981) (White, J., dissenting in part). A decision presenting that issue
is now before the Supreme Court, Halderman \. Pennhurst Siate
School & Hospital, 673 F.2d 647 (3 Cir.) (en banc) (reinstating judg-
ment on state law grounds), cert, granted, 102 S. Ct. 2986 (1982). The
Special Master in this case has power to monitor and to make
recommendations concerning placement of individuals, but is not
given power to decide

A-16

Underlying defendants’ objection to the appointment js
the apprehension that the Special Master would become
Willowbrook's de facto administrator, intervening at
every decision-making stage and rewarding the exposure
of deficiencies in ways that would be disastrous to staff
morale. An order appointing a special master to oversee a
city’s compliance with the Fair Housing Act, a remedy)
opposed by defendants and plaintiffs, was reversed in
United States v. City of Parma, 661 F.2d 562, 579 (6 Cir.
1981), cert. denied, 102 S. Ct. 1972 (1982), on the ground
of intrusiveness. The limited powers of this Special Mas-
ter, as set forth in Judge Bartels’ Order of July 13, 1982,
assure that this spectre of usurpation is unlikely to mate-
rialize,

Provisions of the July 13, 1982, Order allowing the
Master access to Willowbrook records and buildings,
permitting him to interview class members and defen-
dants' employees, requiring his staff to compile periodic
reports on compliance, and permitting inspection and
copying of such reports by all parties, Order at 3-4, are
taken practically word-for-word from the powers and
duties of the Review Panel set forth in the 1975 Consent
Judgment at 7, as is the provision punishing as contempt
of court any interference with the Special Master or his
staff by any person with notice of the Order. The Order
also reproduces the mechanism by which the Review
Panel made recommendations regarding compliance with
or interpretation of the Consent Judgment, which became
binding on all parties unless written objections are filed
seeking resolution by the court. Order at 4-5; Consent
Judgment at 9. As this court stated in an earlier opinion
dealing with Willowbrook, “the parties knowingly and
intentionally delegated to a panel of chosen experts the
power to make the initial determination on importan’

A-17

matters involving the meaning and interpretation of the
Consent Judgment”, 596 F.2d at 32-33. “[T]hey created
continually evolving enforcement and supervisory mecha-
nisms” thought necessary to “meet evolving conditions
and to resolve differences”, id. at 37. The powers of the
Special Master to inspect, to interview, and to make
recommendations go no further than those agreed to in
the Consent Judgment.

Other powers and duties of the Special Master are more
narrowly circumscribed than those previously possessed
by the Review Panel. The Special Master is directed to
review, integrate, and harmonize the audits conducted by
the many existing monitoring groups, Order at 3, and
may require the defendants to submit “any reports neces-
sary to assist the Master in performing his duties”, Order
at 4, but he and his staff do not have the Review Panel's
blanket power to “conduct any additional inquiries they
deem necessary or appropriate.” Consent Judgment at 8.
The Order contemplates a role for the Special Master at
once less formal and more facilitative than that of the
former Review Panel. While the Consent Judgment
placed little emphasis on the Review Panel’s power to
make “informal suggestions”, Consent Judgment at 8,
the Order in several of its provisions directs the Special
Master to provide assistance and advice to the parties,
report to the parties, consult with the parties informally,
and conduct informal working sessions. Order at 4-5, 7.
Correspondingly, “[djefendants and all of their agents, as
well as public agencies of the State of New York, are
directed to cooperate fully with the Master in order to
accomplish the purposes of this order”. Jd. at 8. The
following provision of the Order had no counterpart in
the Consent Judgment:

A-18

The Master shal] have no authority to exercise any
contro] or management over the operation of any
facility operated or licensed by the State of New
York, but he shall have authority to monitor the
location and acquisition of community placement
facilities in order to meet the placement goals of the
Consent Judgment, and to make a report to the
parties with respect thereto.

The powers granted to the Special Master here comport
with those granted in similar cases by other courts. See
Gary Wi, supra, 601 F.2d at 245 and cases cited therein.
As limited by the letter and spirit of Judge Bartels’ Order
of July 13, 1982, the Special Master’s role does not
threaten usurpation of state functions.’

What we have said largely answers the appellants’
arguments on this aspect of the case based on Youngberg
v. Romeo, 73 L. Ed. 2d 28, decided by the Supreme
Court on June 18, 1982, nearly two months after the
decision here. That case, as it reached the Supreme Court
on certiorari to the Third Circuit, 644 F.2d 147, was a suit
for damages under 42 U.S.C. § 1983 against Pennsylva-
nia state officials by a retarded man who, at his mother’s

12 Defendants also contend that the provision of Judge Bartel’s Order
which taxes them with the necessary expenses for carrying out the
Special Master's duties, Order at 6, violates principles of federalism
The appointment of a Specia] Master clearly was meant to fill the void
left by the state legislature's refusal to fund the Willowbrook Review
Panel, which the district court was powerless to undo. See NYSARC 1
Care), 631 F.2d 162 (2 Cir. 1980). This fact does not itself detract from
the legitimacy of the district court's allocation of costs to defendants
under F.R.Civ.P. $3(a). See Gary WU’, supra, 601 F.2d at 245-46;
Morgan \. Kerrigan, $30 F.2d 401, 427 () Cir.), cert. denied, 426 F.2d
935 (1976). See also Halderman vy. Pennhurst State School & Hospital.
$26 F. Supp. 428 (E.D. Pa. 1981) (proceeds from contempt fines paid
to special master). The federal court in awarding costs may treat the
state “like any other litigant”, Hutto v. Finney, 437 U.S. 678, 696
(1978).

A-19

request, had been committed to the Pennhurst State
School and Hospital. The damages sought were for inju-
ries received as a result of Romeo’s own violence and the
reactions of other residents to him, for unduly prolonged
physical restraints, and for failure to provide Romeo with
appropriate treatment for his mental retardation. The
Court upheld Romeo’s claims to safe conditions and to
freedom from unnecessary bodily restraints. It found his
claim to a “constitutional right to minimally adequate
habilitation” to be “more troubling”, 73 L. Ed. 2d at 37.
Because of what it thought to be a disavowal of broader
claims, 73 L. Ed. 2d at 38-39 & n.23, the Court consid-
ered that Romeo was asserting only a constitutional right
to “minimally adequate or reasonable training to ensure
safety and freedom fromi undue restraint.” 73 L. Ed. 2d
at 39. It sustained this claim and, because of the dis-
avowal, found it unnecessary to consider “the difficult
question whether a mentally retarded person, involuntar-
ily committed to a state institution, has some general
constitutional right to training per se, even when no type
or amount of training would lead to freedom.” Jd. How-
ever, in what for us is the most important passage in the
opinion, the Court endorsed the standard articulated by
Chief Judge Seitz of the Third Circuit as that to be
applied in reviewing state action for the protection of the
involuntarily committed. This was that, 644 F.2d at 178:

the Constitution only requires that the courts make
certain that professional judgment in fact was exer-
cised. It is not appropriate for the courts to specify
which of several professionally acceptable choices
should have been made.

Justice Powell went on to say, 73 L. Ed. 2d at 41-42:

A-20

In determining what is “reasonable’—in this and in
any case presenting a claim for training by a state—
we emphasize that courts must show deference to the
judgment exercised by a qualified professional. By so
limiting judicial review of challenges to conditions in
State institutions, interference by the federal judi-
ciary with the internal operations of these institutions
should be minimized. Moreover, there certainly is no
reason to think judges or juries are better qualified
than appropriate professionals in making such deci-
sions. . . . For these reasons, the decision, if made
by a professional, is presumptively valid; liability
may be imposed only when the decision by the
professional is such a substantial departure from
accepted professional judgment, practice or stan-
dards as to demonstrate that the person responsible
actually did not base the decision on such a judg-
ment.

We are unable to agree with appellants that Youngberg
automatically leads to reversal of what would otherwise
have been an appropriate exercise of the judge’s discre-
tion to appoint a Special Master. What it does do is
Supply a standard that will be relevant to any further
attempts that might be made to modify the terms of the
consent decree, as we hold it to be with respect to this
one. To the extent that the decree leaves room for in-
terpretation, that standard will also have relevance for the
Special Master in making recommendations and for the
district court in ruling upon them. Time may show tha!
because of Youngberg’s restrictive effect upon the scopé
of the review, the Special Master is unnecessary. In tha!
event the defendants are free to move that the appoint:
ment be terminated.

A-21

IV. MODIFICATION OF THE CONSENT
JUDGMENT

Although we have rejected the foregoing challenges to
the action of the district court, we take a different view
with respect to its refusal to modify the Consent Judg-
ment’s 15 bed/10 bed limitation on the size of community
placement facilities for the Willowbrook class and to do
more than slightly modify its Flower Hospital Order from
a 6 bed/3 bed limitation to one of 6 bed/4 bed.

At the hearing before the district court, defendants
made a strong showing that only by modifying the 15
bed/10 bed limitation to one of community placements
up to 50 beds in size'’ could they expeditiously relocate
the remaining 1369 residents of Willowbrook and the 999
class members temporarily residing in other large institu-
tions. They presented testimony of state officials and
expert witnesses that some class members would be better
cared for and better adjusted in facilities of intermediate
size. Defendants also showed that the 6 bed/3 bed limita-
tion on placements for the multiply handicapped residents
of Flower Hospital effectively denied those individuals
the proper medical supervision they require.

In the first place, New York City’s extremely tight
housing market has slowed down OMRDD’s placement
of class members in community residences within their
home boroughs. OMRDD’s past and present directors of

3 If modification were granted, OMRDD proposed to construct in
fiscal year 1983:

18 community residences of 4-10 beds each;
18 residences of 11-24 beds each;

2 residences of 25-34 beds each; and

3 residences of 35-50 beds each.

Defendants’ Post-Trial Memorandum at 85-86.

A-22

community placement testified to the difficulties encoun-
tered in finding residences of more than 3 or 4 beds in the
city and the greatly increased costs per class member
when residences of such small size are acquired and
adapted for mentally retarded persons. To obtain commu-
nity placements of 8 to 10 beds, OMRDD often must
purchase vacant sites that could accomodate group homes
above the 15 bed/10 bed limit at little additional cost.

Some of the placement difficulties encountered by
defendants can be traced to the time-consuming proce-
dures for dealing with neighborhood opposition, see note
9, supra, under New York Mental Hygiene Law § 41.34
(McKinney Supp. 1982-83). Another obstacle, defen-
dants’ “County of Origin” policy of relocating most
Willowbrook residents in the boroughs in which their
families still reside, represents a further attempt to defuse
neighborhood opposition to “outsiders”. Finally,
OMRDD has had to rule out many 3 to 4 bed apartments
because in order to qualify for federal Medicaid contribu-
tions, community facilities housing individuals incapable
of responding to emergency situations must be adapted to
meet the National Fire Protection Association Life Safety
Code, 42 C.F.R. 442.507-442.508 (1981).

The district court took “judicial notice of the current
housing shortage in New York City” as a temporary
phenomenon but found that “this year 57 new commu-
nity residences designed to accommodate approximatels
450 persons will become available in the New York City
area alone, and another 88 units, housing approximately
700 persons, are anticipated for fiscal year 1982-83”,
Opinion at 57-58. The court based its finding on testi-
mony of OMRDD Special Assistant Cora Hoffman and
Facilities Development Corporation employee Edward R.
Matthews that some 80 sites were “in the pipeline” for the

A-23

coming year. In response to questioning by the court,
however, Hoffman explained that sites “in the pipeline”
had been located but had not been approved or acquired.
“Some of them,” she stated, probably more than half,
“we won't ever get”. This evidence did not warrant the
district court’s converting OMRDD’s sanguine hopes into
realizable facts.

Judge Bartels also found that delays and abandonment
of placement sites due to compliance with the “County of
Origin” policy, New York Mental Hygiene Law § 41.34,
and the federal Life Safety Code were among the “self-
imposed” obstacles making defendants’ placement diffi-
culties largely a problem of their own creation. By
adopting this perspective, however, the district court lost
sight of the interests of third parties and the complex
environment in which OMRDD must operate. On a less
narrow and adversarial view of the evidence, OMRDD’s
difficulties in stemming neighborhood resistance and se-
curing federal funding take on a real and formidable
aspect.

Next to be mentioned is the plethora of expert testi-
mony on the size of the residential facility as a factor
bearing on the care received by mentally retarded persons
and their opportunities for development. Defendants pro-
duced OMRDD Acting Commissioner Sygmond Slezak,
New York State Department of Social Services Commis-
sioner Barbara Blum, former Willowbrook Director of
Medical Services Dr. Philip Ziring, Associate Director of
the Illinois Department of Developmental Disabilities Dr.
Richard Blanton, Harvard Psychiatry Professor and for-
mer Texas Commissioner of Mental Retardation Dr. Sher-
vert Frazier, Boston University Professor of Special
Education Dr. Sue Allen Warren, and Marc Brandt of the
Sullivan County Association for Retarded Children, all of

A-24

whom were in general agreement that a range of facilities
of different sizes up to 50 beds would best serve the
Willowbrook class. The quality of care and relationships
between staff and residents, it was testified, would not
suffer in facilities of larger size. Moreover, community
placements of less than 10 beds, according to Dr. Ziring
and Dr. Frazier, could not each be staffed with physicians
and therapists necessary for disabled class members and
those with special health risks. In particular, Dr. Ziring
considered that ‘he limited access to proper medical care
that multiply handicapped residents of Flower Hospital
would have in community placements of 3 to 6 beds
would amount to “malpractice.”

Against this testimony, plaintiffs’ and amicus curiae’s
expert witnesses, including Massachusetts Assistant Com-
missioner for Mental Retardation Kathleen Schwaninger,
Arizona Assistant Deputy Director Brian Lensink, Chair-
man of the Willowbrook Review Panel Dr. James Clem-
ents, University of Alabama Professor of Medicine Dr.
Andrew Lorincz, and Gerald Provencal aid Lyn Rucker,
both of whom run small group homes in other states,
joined in contending that the size of a residential facility
is the single most important factor in the development of
mentally retarded individuals. Facilities of 10 beds or less,
these experts testified, provide consistency of program-
ming and care as well as the warmth of personal relation-
ships. Plaintiffs’ medical experts concluded that the
medical problems of Willowbrook class members were
exaggerated by defendants’ experts. Even the Flower
Hospital residents, according to Dr. Lorincz, were medi-
cally stable and posed no risks that adequately trained
staff could not handle.

The district court rejected the evidence of defendants’
witnesses and remained convinced “that the needs of the

A-25

Willowbrook class members are better met in small group
homes than in facilities ranging in size from 11 to 50
beds”, Opinion at 47.'* The court noted that defendants
had agreed in 1975 to the 15 bed/10 bed limitation and
thus would have to argue “either that professional knowl-
edge has changed or that practical experience has shown
that the quality of care is the same in facilities sized from
1 to $0 residents”, Opinion at 47-48. In so holding, the
district court allowed one provision of the Consent Judg-
ment, that requiring 15 bed/10 bed community place-
ments, to override the more comprehensive goal of
transferring the population of Willowbrook, whose
squalid living conditions this court has already recited, to
facilities of more human dimension as quickly as pos-
sible.

An injunction, as a final ju gment with prospective
application, may be modified by the court upon motion
by a party and a showing that continuation of the
injunction would be inequitable. F.R.Civ.P. 60(b)(5) ex-
pressly authorizes a district court to relieve a party from a
final judgment if “it is no longer equitable that the
judgment should have prospective application.” The
power of a court of equity to modify a decree of injunc-
tive relief is long-established, broad, and flexible. “A
continuing decree of injunction directed to events to come

14 One of the reasons given by the district court for rejecting defen-
dants’ expert testimony was defendants’ failure to identify specific
individuals within the Willowbrook class whose medical or develop-
mental needs would be better served by placement in facilities of 11 to
$0 beds, Opinion at $52 & n.27. With so many other problems pressing,
defendants could not fairly be expected to devote time and resources to
an assessment of the adaptability of several thousand individuals to
facilities of a size defendants were yet barred from employing. The
modification requested by defendants would not relieve them of the
further duty imposed by the Consent Judgment to evaluate “the
community alternative best suited for each resident”.

A-26

is subject always to adaptation as events may shape the
need. . . . The distinction is between restraints that give
protection to rights fully accrued upon facts so nearly
permanent as to be substantially impervious to change,
and those that involve the supervision of changing con-
duct or conditions and are thus provisional and tenta-
tive.”, United States v. Swift & Co., 286 U.S. 106, 114
(1932) (Cardozo, J.). “Familiar equity procedure assures
opportunity for modifying or vacating an injunction
when its continuance is no longer warranted”, Milk
Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S.
287, 298 (1941) (Frankfurter, J.).

In denying defendants’ motion for modification of the
limitation on the size of community placement facilities,
Judge Bartels relied on other language of Justice Cardozo
in United States v. Swift & Co., supra, 286 U.S. at 119,
quoted here in extfenso:

There is need to keep in mind steadily the limits of
inquiry proper to the case before us. We are not
framing a decree. We are asking ourselves whether
anything has happened that will justify us now in
changing a decree. The injunction, whether right or
wrong, is not subject to impeachment in its applica-
tion to the conditions that existed at its making. We
are not at liberty to reverse under the guise of
readjusting. Life is never static, and the passing of a
decade has brought changes to the grocery business
[the subject of the decree] as it has to every other.
The inquiry for us is whether the changes are so
important that the dangers, once substantial, have
become attenuated to a shadow. No doubt the defen-
dants will be better off if the injunction is relaxed,
but they are not suffering hardship so extreme and

A-27

unexpected as to justify us in saying that they are the
victims of oppression. Nothing less than a clear
showing of grievous wrong evoked by new and un-
foreseen conditions should lead us to change what
was decreed after years of litigation with the consent
of all concerned.

This apparent hardening of the usual standard for mod-
ifying decrees of injunctive relief did not stem from the
fact that in Swift the Court was dealing with a consent
decree. Justice Cardozo explicitly ruled that “[t]he result
is all one whether the decree has been entered after
litigation or by consent” and rejected the argument that
for purposes of modification by the court, “a decree
entered upon consent is to be treated as a contract and
not as a judicial act. . . . The consent is to be read as
directed toward events as they then were. It was not an
abandonment of the right to exact revision in the future,
if revision should become necessary in adaptation to
events to be”, 286 U.S. at 114, 115.'° Rather, the consid-
erations underlying the language just quoted from Swift
were based on the specific facts then before the Court.
The consent decree at issue in Swift had been entered
into by the United States and five major meatpackers in
February, 1920, enjoining the meatpackers from violating
the antitrust laws and from holding any interest in several
lines of business, including the wholesale and retail provi-
sion of other foodstuffs such as fish, vegetables, fruit and

Is This position was reaffirmed in System Federation v. Wright, 364

U.S. 642, 680-52 (1961). Resort to a contractual analogy would be
particularly inappropriate in the present case. This court has noted in a
previous decision with respect to Willowbrook that even for purposes
of interpretation, the “Consent Judgment is no mere contract,” 596
F.2d at 37.

A-28

groceries, as to which the market power arising from
defendants’ domination of the meatpacking business was
thought to give them unfair competitive advantages and
to encourage practices violative of the antitrust laws, 286
U.S. at 111, 115-16. The ink had hardly become dry on
the decree when the meatpackers began to assail it, see
Swift & Co. v. United States, 276 U.S. 311 (1928); United
States v. California Cooperative Canneries, 279 U.S. 553,
555 (1929), the latter of which attempts led to a suspen-
sion of the decree for several years. Not daunted by the
adverse results in these cases, several of the meatpackers
within a year sought major modification in the decree,
which the lower court granted to the extent of eliminating
the prohibitions mentioned above. The modification on
which the Supreme Court passed in Swift would have
robbed the 1920 consent decree of so much of its force
that the Court considered it “revers[al] under the guise of
readjusting”, 286 U.S. at 119.

The Swift decision was analyzed by the Supreme Court
in Chrysler Corp. v. United States, 316 U.S. 556, 562
(1942) and, more particularly, in United States v. United
Shoe Machinery Corp., 391 U.S. 244 (1968). There the
United States, rather than the defendant, sought modifi-
cation of an antitrust decree. The district court read Swift
as limiting its power to modify to cases involving “(1) a
clear showing of (2) grievous wrong (3) evoked by new
and unforeseen conditions”, 226 F.Supp. 328, 330 (D.
Mass. 1967). The Supreme Court held the district court
had read Swift too rigidly. The language we have quoted
in extenso must, the Court said, be read in the light of
context. “Swift teaches that a decree may be changed
upon an appropriate showing, and it holds that it may nor
be changed in the interest of the defendants if the pur-
poses of the litigation as incorporated in the decree (the

A-29

elimination of monopoly and restrictive practices) have
not been fully achieved.” 391 U.S. at 248 (emphasis in
Original).

Our case differs from both Swift and United Shoe
Machinery. Here, as in Swift, the modification is pro-
posed by the defendants. But it is not, as in Swift, in
derogation of the primary objective of the decree, namely,
to empty such a mammoth institution as Willowbrook;
indeed defendants offered substantial evidence that, again
in contrast to Swift, the modification was essential to
attaining that goal at any reasonably early date. To be
sure, the change does run counter to another objective of
the decree, namely, to place the occupants of Wil-
lowbrook in small facilities bearing some resemblance to
a normal home, but any modification will perforce alter
some aspect of the decree. An analogy closer than either
Swift or United Shoe is King-Seeley Thermos Co. v.
Aladdin Industries, Inc., 418 F.2d 31 (2 Cir. 1969). We
there considered a district court’s refusal to modify a
1962 consent decree between two manufacturers regard-
ing use by one, Aladdin Industries, of the generic term
“thermos” in labels and advertising. Aladdin had sought
modification of the decree insofar as it applied to adver-
tising. We noted that the heavy burden applied in Swift
must be read in the context of that case, in which, for
reasons previously outlined, the meatpackers were obliged
“to stake their claim on drastic changes in conditions”,
418 F.2d at 34. When a case involves drawing the line
between legitimate interests on each side, modification
will be allowed on a lesser showing:

While changes in fact or in law afford the clearest
bases for altering an injunction, the power of equity
has repeatedly been recognized as extending also to
cases where a better appreciation of the facts in light

A-30

of experience indicates that the decree is not properly
adapted to accomplishing its purposes.

418 F.2d at 35. We therefore remanded in King-Seeley for
consideration whether, “in the light of experience, the
detailed provisions of the decree seriously and needlessly
impeded [Aladdin’s] exploitation of the generic term and
that modification was necessary to achicve the results
intended, even though this would take the form of reduc-
ing the restrictions imposed upon it”, id. See also SEC v.
Warren, 583 F.2d 115, 119-20 (3 Cir. 1978) (commentary
on Swift and King-Seeley).'®

Two other considerations reinforce our conclusion that
the district court imposed far too drastic a standard upon
defendants’ request for modification. It is well recognized
that in institutional reform litigation such as this judi-
cially-imposed remedies must be open to adaptation when
unforeseen obstacles present themselves, to improvement
when a better understanding of the problem emerges, and
to accommodation of a wider constellation of interests
than is represented in the adversarial setting of the court-
room. In one of the earliest scholarly explications of
institutional reform litigation, Professor Abram Chayes
recognized as its most important characteristic that “the
trial judge has increasingly become the creator and man-

16 Some cases have steadfastly hewed to the Swift line. See, e.g.,
Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 813 (8
Cir.) (Blackmun, J.), cert. denied, 395 U.S. 905 (1969); United States
v. Work Wear Corp., 602 F.2d 110, 112 n. 6 (6 Cir. 1979); Holiday
Inns, Inc. v. Holiday Inn, 645 F.2d 239, 240 (4 Cir.), cert. denied, 454
U.S. 1053 (1981); Roberts v. St. Regis Paper Co., 653 F.2d 166, 174 (5
Cir. 1981).

Other circuits have distinguished the Swift standard in different
ways. See Tobin v. Alma Mills, 192 F.2d 133, 136-37 (4 Cir. 1951);
United States v. City of Chicago, 663 F.2d 1354, 1359-60 (7 Cir. 1981)
(en banc).

A-31

ager of complex forms of ongoing relief, which have
widespread effect on persons not before the court and
require the judge’s continuing involvement in administra-
tion and implementation”, Chayes, The Role of the
Judge in Public Law Litigation, 89 Harv. L. Rev. 1281,
1284 (1976).' A principal advantage of the use of injunc-
tive relief in such cases, Chayes added, is that “[o]ver
time, the parties may resort to the court for enforcement
or modification of the original order in light of changing
circumstances”, id. at 1292.

As experience with this type of litigation increases, a
consensus is emerging among commentators in favor of
modification with a rather free hand. According to one,
the judge who declines to remain involved and to respond
flexibly will fail to “respond to the need, present in most
institutional reform cases, for phased implementation and
small alterations in strategic objectives as new knowledge
is acquired”, Note, Implementation Problems in Institu-
tional Reform Litigation, 91 Harv. L. Rev. 428, 436
(1977).'* Another states that “[g]iven the detail of these

7 Professor Chayes has recently reaffirmed his view that injunctions in
institutiona! reform cases “are not so much peremptory commands to
be obeyed in terms, as they are future-oriented plans designed to
achieve broad public policy objectives in a complex, ongoing fact
situation”, Chayes, The Supreme Court—1981 Term—Foreword:
Public Law Litigation and the Burger Court, 96 Harv. L. Rev. 4, 56
(1982).

18 This commentator goes so far as to suggest that full compliance with
the court's decree as it is initially framed will rarely be achieved. /d. at
431. The writer’s conclusion is that:

when a court determines that the vindication of legal rights of
mental patients requires a mental health system to triple its budget,
double its staff, reduce its institutional population by seventy
percent, and restructure internal administrative patterns and inter-
agency relationships in a few years. . . success on all fronts should
not be expected.

Id. at 434.

A-32

decrees and the lack of judicial expertise, substantive
modification and adjustment are unavoidable and should
willingly be undertaken”, Special Project, The Remedial
Process in Institutional Reform Litigation, 78 Colum. L.
Rev. 784, 818 (1978). Another observer notes that
“liJmplementation is an incremental, cyclical process of
small steps, each followed by assessment or reaction and
further adjustment. Courts must revise decrees repeatedly
to cc. « unforeseen impediments or adverse conse-
quences , Diver, The Judge as Political Powerbroker:
Superintending Structural Change in Public Institutions,
65 Va. L. Rev. 43, 63 (1979). See also Fletcher, The
Discretionary Constitution: Institutional Remedies and
Judicial Legitimacy, 91 Yale L.J. 635, 640 (1982). The
best statement we have found with respect to the appro-
priate legal standard for evaluating a defendant’s motion
for modification of a consent judgment in institutional
reform litigation is that of Professor Owen Fiss:

The judge must search for the “best” remedy, but
since his judgment must incorporate such open-
ended considerations as effectiveness and fairness,
and since the threat and constitutional value that
occasions the intervention can never be defined with
great precision, the intervention can never be de-
fended with any certitude. It must always be open to
revision, even without the strong showing tradi-
tionally required for modification of a decree,
namely, that the first choice is causing grievous
hardship. A revision is justified if the remedy is not
working effectively or is unnecessarily burdensome.
Citation omitted.]

Fiss, The Supreme Court—1978 Term—Foreword: The
Forms of Justice, 93 Harv. L. Rev. 1, 49 (1979). This

A-33

view has found judicial expression in Philadelphia
Welfare Rights Organization v. Shapp, 602 F.2d 1114,
1120-21 (3 Cir. 1979), cert. denied, 444 U.S. 1026 (1980).
Faced with “a complex ongoing remedial [consent] de-
cree”, the Third Circuit upheld a modification sought by
the defendants, saying:

Where an affirmative obligation is imposed by court
order on the assumption that it is realistically
achievable, the court finds that the defendants have
made a good faith effort to achieve the object by the
contemplated means, and the object nevertheless has
not been fully achieved, clearly a court of equity has
power to modify the injunction in the light of experi-
ence.

Applications to modify a decree such as that in this case
should thus be viewed with generosity.

Here especially great generosity is mandated by the
decision in Youngberg which we have discussed above. In
System Federation No. 91 v. Wright, 364 U.S. 642 (1961),
the Supreme Court held that a consent decree prohibiting
certain acts must be modified when the statutory require-
ment on which the decree was based was amended so as
to permit them. Justice Harlan noted that “the District
Court’s authority to adopt a consent decree comes only
from the statute which the decree is intended to enforce”;
hence the court must “be free to modify the terms of a
consent decree when a change in law brings those terms in
conflict with statutory objectives”, 364 U.S. at 651.
Justice Harlan took as undisputed the proposition that “a
sound judicial discretion may call for the modification of
the terms of an injunctive decree if the circumstances,
whether of law or fact, obtaining at the time of its
issuance have changed, or new ones have arisen”, 364

A-34

U.S. at 647. We can see no reason for a different view
when the requirement is constitutional and a subsequent
decision of the Court has made clear that the court
entering the decree interpreted the requirement too
broadly. Theriault v. Smith, 523 F.2d 601 (1 Cir. 1975).
As his opinion discloses (pp. 47 ef seq.), the district
judge felt free to choose between the different views of
plaintiffs’ and defendants’ experts with respect to the
value of the limitations on the size of the units to which
the residents of Willowbrook were to be transferred. We
now know, as a result of Youngberg, that this was not the
appropriate inquiry. Once the defendants had established,
as they unquestionably did, that abandoning the 15/10
and 6/3 bed limitations in favor of a 50 bed limitation
would facilitate the emptying of Willowbrook and like
institutions, the question was whether, in Chief Judge
Seitz’s phrase, “professional judgment in fact was exer-
cised” or, in Justice Powell’s formulation, “the decision
by the professional is such a substantial departure from
accepted professional judgment, practice or standards as
to demonstrate that the person responsible actually did
not base the decision on such a judgment.” 73 L. Ed. 2d
at 41, 42. We see no merit in the argument of the United
States as amicus curiae (Brief, p. 38) that defendants
irrevocably exercised their professional judgment when
they agreed to the consent here; defendants’ agreement
was premised on their belief, now shown to have been
untenable, that they could find enough small facilities to
empty Willowbrook within a reasonable time. As said in
Swift, supra, 286 U.S. at 115, “[t]he consent is to be read
as directed to things as they were.” Since there is no
suggestion that defendants’ experts testified in bad faith,
we very likely could simply reverse the denial of the
defendants’ request for modification and direct that it be

A-35

granted. However, since Youngberg was not available to
the parties at the time of the hearing or to the district
judge at the time of his decision, fairness seems to make
preferable a remand on the narrow issue whether the
views expressed by defendants’ experts as to the propriety
of the 50 bed limitation constituted “professionally ac-
ceptable choices” or were “such a substantial departure
from accepted professional judgment, practice or stan-
dards as to demonstrate that the person responsible ac-
tually did not base the decision on such a judgment.”"”

The district court’s findings of noncompliance with the
Consent Judgment and its appointment of a Special
Master to monitor future compliance are affirmed. The
district court’s denial of modification of the Consent
Judgment and limited modification of the Flower Hospi-
tal Order are reversed and remanded for further proceed-
ings consistent with this opinion. No costs.

9 In this connection we note that defendants are by no means alone in
contending that placement in small community facilities is not appro-
priate for all mentally retarded persons. Recent decisions in Kentucky
Ass'n for Retarded Citizens v. Conn, §10 F. Supp. 1233, 1250 (W.D.
Ky. 1980), aff'd, 674 F.2d $82, 585 (6 Cir. 1982), and Garrity v. Gallen,
$22 F. Supp. 171, 198 (D.N.H. 1981), recognize the growing perception
among professionals in this field that placement in small group homes
in the community may prove neither the “least restrictive” nor the
safest alternative for some severely and profoundly retarded persons.
See also Diver, supra, 68 Va. L. Rev. at 62; Frohboese & Sales,
Parental Opposition to Deinstitutionalization: A Challenge in Need of
Attention and Resolution, 4 Law & Human Behavior | (1980).

APPENDIX B

Denial of Petition for
Rehearing, May 9, 1983

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

At a stated term of the United
States Court of Appeals, in and for the
Second Circuit, held at the United States
Courthouse, in the City of New York, on
the ninth day of May, one thousand nine
hundred and eighty-three.

NEW YORK STATE ASSOCI-
ATION FOR RETARDED
CHILDREN, INC., et al., $

and :
PATRICIA PARISI, et al., :
Plaintiffs- :

Appellees,

Vv. 82-7591
HUGH L. CAREY, indi-
vidually and as :
Governor of the State
of New York, et al., :
Defendants- $
Appellants.

UNITED STATES OF AMERICA,

Amicus
Curiae. :

B-2

A petition for rehearing
containing a suggestion that the action
be reheard in banc having been filed
herein by counsel for the plaintiffs-
appellees,

Upon consideration by the
panel that heard the appeal, it is

Ordered that said petition
for rehearing is DENIED.

It is further noted that the
suggestion for rehearing in banc has been
transmitted to the judges of the court in
regular active service and to any other
judge on the panel that heard the appeal
and that no such judge has requested that
a vote be taken thereon.

A. Daniel Fusaro, Clerk
by

Francis X. Gindhart,
Chief Deputy Clerk

APPENDIX C

Opinion & Order of the
District Court, April 28, 1982

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NEW YORK STATE $
ASSOCIATION FOR
RETARDED CHILDREN, $
INC., et al.

and

PATRICIA PARISI,
et al., $

Plaintiffs, :
: 72 Civ. 356/357
-against- :

HUGH L. CAREY, :
individually and

as Governor of the :
State of New York,

et al., :

Defendants. :
UNITED STATES OF :
AMERICA,

Amicus Curiae.

Appearances:

For Plaintiffs:

NEW YORK CIVIL LIBERTIES UNION
84 Fifth Avenue
New York, N.Y. 10011
CHRISTOPHER A. HANSEN, ESQ.
ROBERT M. LEVY, ESQ.
DIANA T. TANAKA, ESQ.
Of Counsel

PAUL, WEISS, RIFKIND, WHARTON &
GARRISON, ESQS.

345 Park Avenue

New York, N.Y. 10154
JONATHAN D. SIEGFRIED, ESQ.
HELEN HERSHKOFF, ESQ.
ELIZABETH KOLTUN, ESQ.
Of Counsel

MORTON B. DINKER, ESQ.

THE LEGAL AID SOCIETY

11 Park Place

New York, N.Y. 10007
JAMES M. BESLITY, ESQ.
Of Counsel

HENRY WEINTRAUB, ESQ.
THE LEGAL AID SOCIETY
189 Montague Street
Brooklyn, N.Y. 11201

MURRAY 6B. SCHNEPS, ESQ.
MICHAEL S. LOTTMAN, ESQ.
299 Broadway

New York, N.Y. 10007

WALTER REDFIELD, ESQ.
1290 Avenue of the Americas
New York, N.Y. 10104

For Defendants:

LeBOEUF, LAMB, LEIBY & MacRAE, ESQS.
140 Broadway
New York, N.Y. 10005
TAYLOR R. BRIGGS, ESQ.
RICHARD C. COLE, ESQ.
KIM HOYT SPERDUTO, ESQ.
LAWRENCE POLLACK, ESQ.
JOY FEIGENBAUM, ESQ.
Of Counsel

HON. ROBERT ABRAMS
Attorney General of the State of
New York

Two World Trade Center

New York, N.Y. 10047
CAREN S. BRUTTEN, ESQ.
FREDERICK K. MEHLMAN, ESQ.
Of Counsel

Amicus Curiae: UNITED STATES OF
AMERICA

LEONARD RIESER, ESQ.
TIMOTHY COOK, ESQ.
TERISA E. CHAW, ESQ.

Of Counsel
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
Washington, D.C. 20530

BARTELS, District Judge:
This is a motion by plaintiffs to

declare the defendants in non-compliance

C-4

with the 1975 Consent Judgment and to
appoint a Special Master, and a counter-
motion by the defendants to modify the
Consent Judgment and vacate the court's
Order of October 22, 1979.

In 1972 plaintiffs in this action
instituted a suit against the State of New
York alleging that living conditions and
treatment programs at Willowbrook State
School for the Mentally Retarded, now
known as Staten Island Developmental
Center, ("Willowbrook") violated their
constitutional and statutory rights and
seeking at the same time preliminary in-
junctive relief to restrict certain
abuses and to require improved care. In
April 1973 Judge Orrin G. Judd granted
relief to the plaintiffs by means of a
preliminary injunction against the defen-

dants directing certain enumerated items

C=-5

of relief in an attempt to correct
deficiencies in order to protect the
residents from serious physical harm.

NYSARC v. Rockefeller, 357 F. Supp. 752

(E.D.N.Y. 1973). Subsequently, the
United States of America, through its
Civil Rights Division, entered the case

as amicus curiae. Thereafter extensive

negotiations were had between the parties
and after the remaining points of conten-
tion were settled a consent judgment,
approved by the court, was entered in
April 1975. NYSARC v. Carey, 393 F.
Supp. 715 (E.D.N.Y. 1975).

The thrust of the Consent Judgment
provided that defendants would reduce
Willowbrook to an institution housing
no more than 250 residents by April 1,
1981, and that they would transfer class

members into community facilities of no

C-6

more than 10 or 15 beds, depending upon
the particular class member's level of
functioning. The Judgment also required
defendants to make extensive reforms at
Willowbrook with regard to environment,
staffing, programming, and various
types of therapies. The Agreement
included an Appendix A entitled "Steps,
Standards and Procedures" which delin-
eated in detail acceptable institutional
living conditions and community place-
ments, to which reference is hereby
made. As explicated in the Judgment:

[t]he steps, standards and

procedures contained in

Appendix "A" hereto are

not optimal or ideal stand-

ards, nor are they just

custodial standards. They

are based on the recognition

that retarded persons, regard-

less of the degree of handi-

capping conditions, are capable

of physical, intellectual, emo-

tional and social growth, and

upon the further recognition
that a certain level of affirma-

C-7

tive intervention and program-

ming is necessary if that capa-

bility for growth and develop-

ment is to be preserved and

regression prevented.

Subsequently, in October 1979,
Plaintiffs and defendants entered into
an agreement requiring the placement of
half of the multiply handicapped resi-
dents of Flower Fifth Avenue Hospital,
now known as Flower Hospital, into
community facilities of no more than 3
beds and half into residences of no more
than 6 beds.

In the six years since entry of the
Consent Judgment litigation between the
parties has revolved around questions
of interpretation, implementation and
enforcement of the Consent Judgment. On
several previous occasions the parties

have appeared before the court because

the defendant had failed to live up to

C-8

their obligations under the Consent
Judgment ./
The motions presently before the
court once again involve implementation
of the Consent Judgment. Plaintiffs
seek an order holding the defendants in
non-compliance with the Consent Judgment,
specifically those provisions of Appendix
A relating to environment (§§ B, R);
clothing (§ A(7)); programs and services
(§§ B(7), D( 1), (2) (5)- F(1), (8), G1),
(2), J(1), K(1), (2))3 staffing (§§ C(1),
(3), (7), (8), L(1))% nutrition (§ H);
and community placement (§§ A(1), V(2),
(3), (9)). They seek an order demanding
compliance, with all deliberate speed,
with the community placement provisions
of the Judgment, compliance with the
other provisions within six months, and

the appointment of a Special Master who

C-9

would monitor compliance and for whom the
defendants would be ordered to provide
necessary funding.

Simultaneously, defendants seek an
order pursuant to Rule 60(b) of the Fed-
eral Rules of Civil Procedure, modifying
§§ V(1), V(4), and V(7) of Appendix A of
the Consent Judgment and vacating the 3
bed/6 bed Order stipulated to and entered
in this action on October 22, 1979. The
proposed motion for modification would
eliminate the requirements that all class
members who are mildly retarded be placed
in residential facilities of no more than
15 beds, all those who are more than
mildly retarded be placed in residential
facilities of no more than 10 beds, and
that at least half of those class members
residing at Flower Hospital be placed in

community residences of no more than 3

C-10

residents and the remainder in facilities
of no more than 6 residents. Instead the
modification would permit defendants to
develop a range of community~baseec
facilities housing up to 50 residents.

Of a total original class size of
5343 Willowbrook residents, 1108 have
been placed in community residences of
the size mandated by the Consent Judg-
ment, 580 have been placed in family
care, 557 have died, and 730 have been
discharged from state supervision. Of
the remainder awaiting placement, 1369
live at Willowbrook (including the Karl
D. Warner complex) ,2/ and 999 have been
transferred from Willowbrook to other
institutions managed by the State or
Private agencies. Such institutions
include Brooklyn Developmental Center,
a 500-bed institution (including the

50-bed Williamsburg annex) which houses

C-11

383 class members: Bronx Developmental
Center, a 200-bed institution where 57
class members live; Manhattan Develop-
mental Center, in which 107 of its 150
residents are class members; and Bernard
Fineson Developmental Center, which
houses 288 class members and which is
comprised of three units, Corona, Howard
Beach, and Glen Oaks. United Cerebral
Palsy manages two facilities in which
class members reside: Nina Eaton Center,
a 48-bed facility which houses 46 class
members and Castle Hill School, a 53-bed
institution. In addition about 115
multiply-handicapped class members live
at Flower Hospital. The focus of the
plaintiffs' motion is living conditions
at Willowbrook, but evidence of living
conditions at the other above-named
institutions was also presented. The

defendants' proposed modification affects

C-12

class members in any institutional

3/

setting— including the above institu-
tions.

The Court has heard 25 days of
testimony on these two motions. Both
parties and amicus have called upon
an impressive array of experienced
experts and others. Thirty-nine wit-
nesses in all have testified. Plain-
tiffs called as expert witnesses Dr.
James Clements, Chairman of the Willow-
brook Review Panel, member of the Joint
Commission on Accreditation of Hospitals’
Council on Services for the Retarded and
Developmentally Disabled, past Director
of the Georgia Retardation Center and
past president of the American Associa-
tion on Mental Deficiency; Kathleen
Schwaninger, Assistant Commissioner for
Mental Retardation in the Commonwealth

of Massachusetts and former Executive

C-13

Director of the Willowbrook Review Panel;
Lyn Rucker, Executive Director of Region
V Mental Retardation Services in Lincoln,
Nebraska; and Gerald Provencal, Director
of the Macomb-Oakland Regional Center in
Mt. Clements, Michigan. 4/ Just as impor-
tant, the plaintiffs introduced photo-
graphs of the conditions they found when
they visited Willowbrook and related
institutions.

Experts testifying for defendants
included Dr. Richard Blanton, Associ-
ate Director of the Illinois Department
of Developmental Disabilities; Barbara
Blum, Commissioner, New York State
Department of Social Services and former
Director of the Manhattan Placement
Unit; Marc Brandt, Executive Director,
Sullivan County Association for Retarded
Children; Dr. Ella Curry, Director of

Willowbrook; Dr. Shervert Frazier, Pro-

C-14

fessor of Psychiatry at Harvard Univer-
sity and former Texas Commissioner of
Mental Retardation; Dr. Meredith Harris,
Director, Nina Eaton Center; Helen
Kaplan, Executive Director, Nassau
Chapter of New York State Association
for Retarded Children ("NYSARC"); Frank
Padaven, State Senator and Chairman of
the State Senate Committee on Mental
Hygiene; Dr. Sue Allen Warren, Professor
of Special Education at Boston Univer-
Sity; and Zygmond Slezak, Acting Com-
missioner, Office of Mental Retarda-
tion and Developmental Disabilities
("OMRDD" ).2/ Experts called by the

United States of America, amicus curiae,

included George Gray, architect; Dr.
Walter Hillabrant, psychologist; Brian
Lensink, Assistant Deputy Director of
the Arizona Department of Economic

Security in charge of Arizona programs

C-15

for the mentally retarded; Dr. Andrew
Lorincz, physician and Professor of
Medicine at the University of Alabama;
and Raymond Watts, Registered Sanitarian
and environmental health consultant.
Pretrial depositions and hundreds of
exhibits, including illustrative photo-
graphs, have been entered as part of

the record, and affidavits, briefs, and
memoranda of law have been submitted.

The record raises four main issues which
the court will address seriatim: (1)
Non-compliance with the Consent Judgment;
(2) appointment of a Special Master; (3)
modification of the Consent Judgment; and
(4) Vacation of the 3 bed/6 bed Order

of October 22, 1979.

I
The non-compliance charge against

the defendants involves a number of

C- 16

vital areas enumerated below with
respect to which the court, after due
consideration, has made the findings

set forth in the following subheadings.

Sanitation

Section B(3) of the Consent Judg-
ment requires that the living quarters
and program areas be kept clean, odor-
less and insect-free at all times. £/
Contrary to that provision, sanitation
at Willowbrook is totally unsatisfactory
and presents a serious health hazard to
the resident population. Of particular
concern is the filthy condition of the
kitchens and bathrooms. Both the main
kitchen, where the residents' food is
prepared, and the satellite kitchens,
where the residents' food is served,

are filthy and infested with rodents

and cockroaches. Cups, bowls,

C-17

Silverware. and pots and pans are
improperly cleaned and often caked with
food from past meals. Food is served to
residents at inappropriate temperatures
that encourage food spoilage and the
growth of microorganisms, and food
storage areas are dirty and foul-
smelling. (See, e.g., T. 2034-2089,
2091-92, 2095-96; P. Exs. 143, 146,
148).

Sanitation of the bathrooms in
virtually every residential building
at Willowbrook is grossly inadequate.
Human feces and urine commonly soil
bathroom floors, walls, toilets and
shower stalls. Non-operational and
unflushed toilets filled with human
excrement are frequent occurrences,
as are cracked and missing toilet
seats and bathrooms without toilet

tissue, towels and soap. Mold and

C-18

mildew, indicative of long-term neg-
lect, grow on many shower surfaces and
none of the shower areas are being

properly sanitized.// (See, e€.g.,

T. 90, 113, 127-130, 1311, 1850-51,
2124, 2133, 2181; P. Exs. 70A-2, 70A-3,
70A-14, 70C-167, 123, 153, 154, 156,
158).

These types of unsanitary condi-
tions permeate the residents' entire
living space. 2/ Residents, many of
whom are nonambulatory, must eat in
dining rooms infested with insects and
rodents, sit and lie on floors that are
dirty, not uncommonly with human excre-
ment, and sleep in bedrooms reeking of
urine. Lo/ Their clean clothes and
dirty laundry are intermingled, and
trash, food, and clothing litter the

floors. (See, e.g., T. 97-100, 116-

130, 2107, 2132-33, 4914, 4918; P. Exs.

C-19

1, 153, 154, 161, 165, 258, 70A-4,
70A-9).

Defendants have made some efforts
to improve sanitation. During her 14-
month tenure, Dr. Curry has closed six
buildings and increased in-service
training efforts. Clearly, however,
defendants have not done enough. The
evidence shows that during the last
two years at Willowbrook, sanitation
in the remaining buildings, rather than
improving, has steadily deteriorated.

(See, e.g., T. 109, 494, 3368-72,

5675).

Sanitation at other related
facilities where class members have
been transferred is not markedly better
than that at Willowbrook. The Bronx
Developmental Center has a serious
infestation problem, and bedrooms,

dining rooms and bathrooms there are

C=-20

dirty. At Brooklyn Developmental Cen-
ter the most serious sanitation prob-
lems result from its location next to

a dump. Smells from the dump waft over
the institution, debris floats onto the
grounds and flies swarm throughout the
buildings. Moreover, the residential
areas there are unclean. The level of
Sanitation in residential areas at Glen
Oaks and Nina Eaton Center is also

unsatisfactory. (See, e.g., T. 131-34,

151-52, 161, 500-502, 540, 1204-1209,
5813; P. Exs. 70A-15, 70OA-16, 70A-95,
70C-142, 70C-145, 82, 97, 98).

Maintenance-//

Part of the maintenance problems
at Willowbrook, a 50-year-old complex,
results from the fact that for years
virtually no capital was poured into

the physical plant, and until recently

C-21

no preventive maintenance measures were
taken. The most glaring maintenance
inadequacies, though, stem from present,
not past, neglect. For instance,
throughout the institution shower fix-
tures lack vacuum breakers which are
easy to install and necessary to pre-
vent the transmission of contaminated
water. Water control boxes are left
open, allowing residents access to the
control of the facility's water tem-
perature. Most of the sleeping areas
lack curtains, wall decorations, and
other personalizing touches. In almost
every building there are numerous exam-
ples of torn and broken furniture,
ripped and broken screens, missing
bathroom tiles, nonworking toilets and
walls with gaping holes. In many resi-
dential areas furniture is sparse and

the noise level piercing. (See, e.g.,

C-22

T. 312, 648, 1262, 1544, 2099, 2125-27,
5666, 5673; P. Exs. 70B-101, 160, 258).
According to the state's own audit-
ing teams, Willowbrook's maintenance
deficiencies are extensive. The March
1981 audit conducted by OMRDD's Audit
Compliance Task Force indicated that
the level of compliance with the Con-
sent Judgment's "physical environment"
requirements was 43.6%. Deficiencies
included lack of privacy in bedroom and
bathroom areas, poor lighting, a dearth
of decorations, curtains and furniture,
and broken water faucets. (P. Ex. 1).
Six months later the deficiencies, as
measured by the September 1981 audit
conducted by Willowbrook's Quality of
Life Committee, were even more wide-
spread. A greater number of areas
lacked decorations and bedspreads,

fewer soap dispensers were available,

C-23

and insects and rodents, reportedly
under control in March, infested 75% of
the buildings. in addition, there was
an absence of bathroom safety devices
in 68.75% of the buildings, 75% of the
buildings had windows and screens that
were dirty, broken, and in disrepair,
68.75% of the buildings provided
inadequate lighting and 62% had broken
sinks. (P. Ex. 253).

Maintenance at Brooklyn and Bronx
Developmental Centers, Glen Oaks and
Williamsburg presents a similar
scenario. The most common problems
are poorly maintained and nonworking
bathrooms, holes in the walls and
barren living spaces. Many of the
residents' rooms at Nina Eaton
Center are decorated, and it is a
pleasanter atmosphere, but there

too room repairs are not kept current.

C-24

(See, €.ge, Te 158-160, 175-81, 500-01,

536-43, 668, 722, 1077, 1126, 1598-99,
4936; P. Exs. 70A-17, 70A-22, 70A-33,

70A-35, 82, 98).

Clothing

It is overwhelmingly evident that
defendants have not fulfilled their
agreement to provide class members with
"clean, adequate and seasonally appro-
priate" clothing. +2/ Some residents
at Willowbrook are partially clothed,
others go nude, and many wear clothes
that are illfitting, badly torn and
Stained. Shoes are broken and torn,
and in winter many of the residents
are outfitted in summer attire. In
most of the residential buildings
clothing is inadequately stored and
sorted, residents are not provided

with individualized dress, and the

C-25

clothing supply is chronically short.

(See, O.ge, T. 218-225, 494-95, 508,

1819, 3249-3258, 3433-3439, 5666; P.
Exs. 70A-45, 70A-46, 70A-49, 70A-62,
70A-63, 70A-66, 70A-68, 135).

The insufficient supply of cloth-
ing has an adverse effect on residents'
programming. The court adopts the con-
clusions of Mary Sullivan, Manhattan
Borough Representative of the Consumer
Advisory Board ("CAB"), that a major
programming problem at Willowbrook is
residents not attending programming
because they have nothing to wear.

The court also accepts the testimony

of Albert Pfadt, the Administrator of
the Willowbrook toilet-training pro-
gram, that his efforts are seriously
hampered by the frequent unavailability
of clothing changes and illfitting

clothes that are pinned shut so resi-

C-26

dents cannot take off their clothes
independently.

Certain difficulties are endemic
to the population at Willowbrook .+2/
Some residents tear their clothing and
disrobe. Incontinent class members need
frequent changes, and a few with neu-
rological problems cannot be toilet-
trained. Most residents, though, can
be taught not to disrobe or rip their
clothes and most can be trained to use
the toilet. In any event, as Dr. Curry,
the Director of Willowbrook, acknowl-
edged, the task of providing enough
Clean, decent clothing to the popula-
tion at Willowbrook is not insurmount-
able. (T. 3260).24/ The fact that
a job is difficult does not excuse its
nonperformance.

Residents of the Brooklyn Develop-

mental Center, the Bronx Developmental

C-27

Center and Nina Eaton Center are also
improperly dressed. At the Bronx
Developmental Center there often is not
enough underwear, so residents go to
programs without it. Outer clothing is
in short supply, so residents either go
Out in public in inappropriate or frayed
clothing or have to remain on their
unit. For example, in January 1981 one
class member, J.D., missed participat-
ing in the New York State Special Olym-
pic Games because he lacked winter

clothing. (See, e.g., T. 217-218,

241, 521-22, 1117-1119, 1875-76; P.
Exs. 70A-56, 70A-57, 70A-59, 70A-60,
70C-141, 82, 132, 135).

Programming

Mentally retarded individuals,
even those severely and profoundly

retarded, are capable of growth. If

C-28

a mentally retarded individual is to
develop, though, he must be provided
with programming that is geared to meet
his individual needs at his own level of
development. To that end the Consent
Judgment requires the formulation of an
individual program plan for each class
member and the provision of six hours of
formal programming each weekday .1>/
There are four major program areas
at Willowbrook. In the Elizabeth
Connelly Center (Building 8) the lowest
functioning residents receive program-
ming in the areas of sensory stimuli,
body awareness, personal hygiene and
activities of daily living. Those
clients who do not need basic skills
training are taught conceptual skills
in the Education Building (Building 3).
In the Work Activity Center (Building

61) the highest functioning resi-

C-29

dent s+6/ work on contracts, in five
different work areas of varying dif-
ficulty, in exchange for compensation.
In addition, 39 residents who suffer
from both visual and aural deficiencies
participate in the Deaf-Blind Program
(Building 2), the goal of which is to
help them become as self-sufficient as
possible.

Although the Willowbrook adminis-
tration has constructed a commendable
framework in which to provide program-
ming, serious deficiencies exist in the
delivery of programs. Residents rarely
receive six hours of appropriate pro-
gramming. Often they arrive late at
the program area or do not arrive at all
because of lack of transportation or
clothing. At least five residents in
Building 21 do not attend any program-

ming outside of their residence, and

C-30

there is no indication that their resi-
dence provides them with any structured
activity. Even when residents do arrive
at the programs, they receive little
actual instruction. Residents sit idly,
walk about aimlessly, self-stimulate

and sleep. They are frequently left
unattended, and even when staff is
present, interaction between staff and
residents is minimal. While some pro-
gramming at Willowbrook, notably the
Deaf-Blind program, is first rate, pro-
gramming compliant with the Consent
Judgment is the exception rather than

the rule. (See, e.g., T. 259-60, 274-

75, 1416-25, 5533-43; P. Exs. 1, 70A-
78, 70A-80, 70D-158, 70D-160, 117, 118,
119, 123).

A contributing factor to the low
quality of programming at Willowbrook

is deficiencies in program design.

C-31

Defendants have been remiss in develop-
ing and implementing individual develop-
ment treatment plans, as prescribed by
the Consent Judgment. The individual
plans, developed at case conferences by
an interdisciplinary team, are dependent
upon written staff evaluations and staff
participation at the meetings. Written
evaluations are consistently missing,
and staff attendance at the conferences
is deplorably low. Because of
inadequate staff input, the interdisci-
Plinary team is unable to develop an
accurate assessment of clients' needs
and cannot establish effective program
goals. Often the resultant program
plans are neither comprehensive nor
accurate. They do not address the whole
range of the residents' needs, and they
prescribe goals that are inappropriate

Or have already been attained. Even

C-32

when program plans are up-to-date and
complete, direct care staff is often
unaware of what the treatment plan and
goals are and fails to implement the
program prescribed by the treatment com-
mittee.

While programming at Flower Hos-
pital and Nina Eaton Center appears to
be satisfactory, programming efforts at
the Bronx, Brooklyn, and Manhattan
Developmental Centers mirror those at

Willowbrook. (See, e.g., T. 528, 1459,

1870-72, 5688-89, 5706-07; P. Exs. 70-

C-151, 82, 98, 135).

Special Therapies+8/

Many Willowbrook residents diag-
nosed as needing recreational, occupa-
tional, physical, speech and psycholog-
ical therapy are not receiving these

services. Although a large number of

C-33

residents have serious behavior dis-
orders, no behavior modification pro-
gram was established at Willowbrook
until September 1981, and then it was
only made available to four residents.
Adaptive and positioning equipment is
critical for many Willowbrook class
members. If used correctly, it can
prevent the progression of such debili-
tating conditions as scoliosis, curva-
ture of the spine and other severe
orthopedic handicaps. If the equipment
is not used, though, or if it is mis-
used, individuals who require it can
suffer further deformities and can
develop acute medical problems. The
lack of and misuse of adaptive and
positioning equipment at Willowbrook

is widespread. Dr. Lorincz, a physi-
cian who toured Willowbrook for amicus,

testified that he did not see one

C-34

instance of appropriately used adaptive
equipment. The court adopts his char-
acterization of Willowbrook's misuse
of adaptive and positioning equipment

as a medical emergency. (See, e.g.,

Recreat ion2/

Life in the residential units
of Willowbrook, Bronx Developmental
Center, Brooklyn Developmental Center,
Manhattan Developmental Center, Nina
Eaton Center and Glen Oaks is sterile,
dreary and one of enforced idleness.
Contrary to the Consent Judgment's
requirement of two hours of recreation
daily, most class members, when not in
their program areas, have nothing to
do. There is virtually no recreation
equipment, toys or games on their units,

and very little organized leisure-time

C-35

activity occurs. In fact, the high
incidence of behavior problems among
institutionalized class members is

at least partially attributable to the
residents' long hours of idleness.

The residents' idleness is also
counterproductive to their learning of
new skills. In order for profoundly
and severely retarded individuals to
benefit from programming, the skills
they learn must be constantly reenforced.
Staff on residential units must support
and provide continuity for daytime pro-
gram efforts, such as teaching residents
to brush their teeth, to toilet and
dress themselves and to refrain from
self-abuse. Regrettably, however, on
none of the residential units does there
appear to be any carryover of daytime

skills training. (See, e.g., T. 1544,

C- 36

1821-22, 5629-30, 5545-46; P. Exs.

1, 128).

Nutrition20/

The Willowbrook diet card system,
established to ensure that residents who
require special diets receive them, is
not being properly administered. Most
residential buildings lack current diet
cards, and when they are available,
staff does not always consult them.
Consequently, residents who need special
diets do not consistently receive them.
At least one Willowbrook resident choked
to death as a result of being served an
improper aiet.21/

Only two residential buildings at
Willowbrook provide residents with
feeding programs, as prescribed by the
Consent Judgment. Moreover, the only
utensils given to most residents,

regardless of their functioning level,

C-37

are spoons, and often there are not
even enough of them to go around. The
Bronx Developmental Center, Brooklyn
Developmental Center and Nina Eaton
Center similarly fail to provide resi-
dents with feeding programs and ade-

gQuate utensils. (See, e.g., T. 538-40,

694, 1121-23, 5691-92, 5701, 5787; P.

Ex. 102).

Staffing Ratios

The Consent Judgment mandates mini-
mum staffing requirements for direct
care staff and mid-level supervisors .+4/
The aggregate number of staff employed
at Willowbrook is sufficient to comply
with the staffing requirements of the
Consent Judgment. Yet, defendants con-
sistently fail to provide class members

with the required level of supervision.

Part of the problem is lack of staff

C-38

training. lack of staff dedication, and
staff negligence. Even when enough
employees are on duty, residents are
frequently left unattended or attended
by fewer than the mandated number of
employees. Even when sufficient staff
members are present, they often ignore
residents, depriving class members of
the "appreciable and appropriate atten-
tion by direct care staff" as required
by the Consent Judgment. The difficulty
in terminating civil service employees
could be one explanation. Another ex-
planation is the failure of management
to provide direct care staff consistent
enough supervision. Moreover, because
of absenteeism and lateness, which are
chronic problems at Willowbrook, many
employees must work overtime. Working
long tours with severely retarded

clients creates a considerable strain

C-39

on employees and contributes to their
poor attention to residents' needs.

Staff deployment at Willowbrook is
also deficient. As defendants note,
Willowbrook is compliant with direct
care and mid-level staffing requirements
measured on a weekly and institution-
wide basis. The Consent Judgment, how-
ever, requires compliance by building.
Just because sufficient staff is on duty
on an institution-wide basis does not
mean that employees are properly deployed
to each building, so that all class
members receive adequate care. Moreover,
measuring compliance on a weekly basis is
misleading, and it does not adequately
further the Consent Judgment's goal of
providing class members with appropriate
care. If the institution has a shortage
of staff some days of the week and a

Surplus other days of the week - such as

C-40

often occurs on paydays - the average
for the week may come out even and the
days out-of-compliance may be hidden,
and the problem of understaffing ignored.
Measured on a daily, building-by-
building basis defendants do not con-
sistently provide class members with
the direct care and mid-level staffing
ratios mandated by the Consent Judgment.
Plaintiffs introduced a series of charts
showing defendants' level of non-com-
pliance for direct care staff for the
day and evening shifts at Willowbrook,
Bronx Developmental Center, Glen Oaks,
Brooklyn Developmental Center and the
Corona unit of the Bernard Fineson
Developmental Center and showing mid-
level staffing on the day and evening
shifts at Willowbrook and the Bronx
Developmental Center. (P. Ex. 61).

These charts show serious staff short-

C-41

ages. For example. out of a total
of 665 shifts on a building basis at
Willowbrook, on only 26 shifts were
all of the buildings in compliance.

The defendants challenged the
plaintiffs' findings of Willowbrook
direct care staffing deficiencies on
the ground that the underlying data,
the "Daily Compliance with Staffing
Ratios" forms, which were prepared by
Willowbrook staff, cannot be used to
measure staffing compliance unless
three adjustments are made. (1) the
factoring out of level of staffing
compliance in the so-called shared-
staff buildings, managed for the state
by United Cerebral Palsy; (2) an adjust-
ment of staffing requirements to account
for residents who are away from their
buildings, who are "on leave;" (3) an

adjustment for the availability on a

C-42

building-wide basis for staff members
assigned on a one-to-one basis to par-
ticular class members. James Walsh,
Willowbrook Deputy Director of Institu-
tional Administration, interpreted
Section C(4) of the Consent Judgment

as permitting that type of averaging.
That section provides for lower ratios
in certain living units within a build-
ing to provide higher staff-to-resident
ratios in another living unit in the
same building "provided that such
deviation is not regular, chronic or
permanent... ."

The court agrees that in order to
accurately measure Willowbrook's direct
care staffing levels, plaintiffs' charts
must be adjusted to account for residents
on leave. If residents are absent from
a building, naturally the number of staff

required in that building decreases pro-

C-43

portionately. The defendants' other
adjustments, though, clearly lack merit.
The first adjustment, that the staffing
deficiencies in the shared-staff build-
ings must be ignored, is invalid. Defend-
ants cannot avoid accountability under
the Consent Judgment by contracting for
services with private agencies. More-
over, in the buildings at Willowbrook
managed by United Cerebral Palsy, direct
care staff are state employees, and
although United Cerebral Palsy schedules
shifts, the state is responsible for
staff assignments there and for sending
the shared-staff buildings "pool" employ-
ees to cover staff shortages.

Defendants' contention that they
should not be penalized for providing
enriched, i.e., more intensive, staffing
than is required by the Consent Judgment

is also unpersuasive. As defendants

C-44

acknowledge, Willowbrook residents are
generally assigned one-to-one staffing
because they have severe behavior prob-
lems. Willowbrook's enriched staffing
program appears to the court to be a
diluted form of behavior modification
program prescribed by the Consent Judg-
ment. In any event, it is clear that
employees assigned to enriched staffing
are not available to supervise other
residents. The result of defendants'
Suggested adjustment to the staffing
requirements would suggest approval of
inadequate staffing for many class mem-
bers not on enriched staffing. Section
C-4 of the Consent Judgment does not
condone that type of statistical jug-
gling. Its purpose is merely to permit
defendants some flexibility in dealing
with unusual staffing demands that are

not "regular, chronic or permanent."

C-45

The one appropriate adjustment to
defendants' compliance forms - to com-
pensate for residents on leave - does
modify plaintiffs' claims. However,
even after making this adjustment, the
court must conclude that defendants
generally are not in compliance with
the Consent Judgment staffing require-
ments. In particular, on the evening
shift and on weekends few residents are
on leave, and the charts' showing of
consistent noncompliance with respect
thereto remains virtually unaltered.
For example, on the August 1, 1981 day
shift, which was a Saturday, the adjust-
ment for residents on leave does not
change staff requirements, as measured
by the plaintiffs' chart, in any build-
ing, except two, whose requirements are

reduced by one employee.

C-46

Accordingly, the direct care staff defi-
cit on that date is 27 as opposed to a
deficit of 29, as claimed by plaintiffs.
Defendants also challenge the mid-
level staffing deficits at Willowbrook as
submitted by plaintiffs. They contend
that plaintiffs should have counted on-
duty nurses as supervisors in order to
offset mid-level supervisory shortages.
Section C(7) of the Consent Judgment
does contemplate nurses serving as mid-
level supervisors under certain circum-
stances. Defendants' forms which plain-
tiffs utilized in preparing their charts
indicate those tours when a nurse is
so utilized. Since the plaintiffs did
count Willowbrook nurses as supervisors
when defendants' forms indicated that
that was their function, this objection

by defendants is groundless.

C-47

Another inadequacy in staffing is
the failure of the defendants to provide
class members with an adequate number of
case managers. On September 9, 1980 the
court issued an order requiring the
state to provide one case manager for
every 20 class members. The state has
not complied with this order. Eight
case managers in the Bronx with class
members on their caseload carry more
than 20 clients; in Manhattan one case
manager carries more than 20 clients
and. moreover, 9 class members have no
case manager: and in Queens County 9
case managers have caseloads greater
than 20. The state made no effort to
obtain a stay of this order but instead
flagrantly disregarded it until the
order was affirmed by the Court of

Appeals on June 30, 1981.

C-48

Based upon the foregoing, the court
finds non-compliance by the defendants
with the provisions of the Consent

Judgment above mentioned.

II

In 1975, when Judge Judd signed
the Consent Judgment, it was apparent
to all that some type of monitoring of
the state's obligations was necessary.
Accordingly, the parties agreed to the
appointment of a Review Panel (Consent
Judgment #4 9 et seq.). The record shows
that the progress made by the defendants
in the first four and a half years after
the entry of the 1975 Consent Judgment
was in no small degree due to the moni-
toring, reporting and recommendations
of the Review Panel. In 1979, however,
the New York State Legislature deleted

from the budget the funding provision

c-49

for the Review Panel in the Consent
Judgment and thereby for all intents
and purposes removed the Review Panel
from its monitoring position. Since
that time, as might have been expected,
conditions at Willowbrook have materi-
ally deteriorated. Consequently, the
crucial issue which is now presented to
the court is how can the court fashion
a remedy to enforce compliance with its
decree.

The court has always had the equity
power to fashion the relief necessary to
protect its judgment against future vio-

lations. Cooper v. Aaron, 358 U.S. 1

(1958); Brown v. Board of Education, 349

U.S. 294 (1955); Hart v. Community School

Board of Brooklyn, 383 F.Supp. 699, 755

(E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d
Cir. 1975). This power arises equally

from consent judgments as well as final

c-50

judgments following trials. Beloit

Culligan Soft Water Service, Inc. v.

Culligan, Inc., 274 F.2d 29 (7th Cir.

1960), Aspira v. Board of Education

of City of New York, 423 F.Supp. 647

(S.D.N.Y. 1976). As stated by this
Circuit: "(T]he district court [has]
not only the power but the duty to en-
force a settlement agreement which it

[has] approved..." Meetings & Expo-

sitions, Inc. v. Tandy Corporation, 490

F.2d 714, 717 (2d Cir. 1974). Accord-
ingly, plaintiffs now move for the
appointment of a special master to
guarantee future compliance with the
Consent Judgment.

Rule 53 of the Federal Rules of
Civil Procedure expressly authorizes
this procedure by the appointment of a
special master as an exception to the

general rule. Similar to the case at

C=-51

bar is Gary W. v. State of Louisiana

601 F.2d 240 (5th Cir. 1979), involving
the level of care the State of Louisiana
was providing its developmentally dis-
abled citizens who found themselves in
Texas institutions. In approving the
district court's subsequent appointment
of a Rule 53 special master, the court
remarked that the appointment of a
special master was not extraordinary,
citing many cases involving similar
facts and problems. Finally, the court
observed:

These proceedings have now been

pending for over four years and

a significant number of the

children involved still have

not been accorded the relief

ordered. These two unfortunate

facts belie the appellants'

claim that the District Court

abused its discretion in

ordering the appointment of

a Special Master.
Id. at 245. We have an almost identical

Situation here. Considering the past

C-32

violations of the Consent Judgment
there is more than ample precedent to
find exceptional circumstances justi-
fying the appointment of a special
master to protect the class members
from harm.

But the court need not rely solely
on Rule 53 for its equity power to pro-
vide itself with the appropriate instru-
ment to enforce its decree. In the

early case of Ex Parte Peterson, 253

U.S. 300, 312-13 (1920), the Supreme
Court, through Mr. Justice Brandeis,
pointed out that this power derives
from the courts'
inherent power to provide them-
selves with appropriate instru-
ments required for the perform-
ance of their duties...
and
to aid judges in the performance

of specific judicial duties, as
they may arise in the progress of

a cause. From the commence-
ment of our Government, it
has been exercised by the
federal courts, when sitting
in equity, by appointing,
either with or without the
consent of the parties,
special masters, auditors,
examiners and commissioners.

To the same effect is Schwimmer v.

United States, 232 F.2d 855, 865

(6th Cir.), eert. Genied, 352 U.S.

833 (1956), where the court said:

Beyond the provisions of

Rule 53, Federal Rules of
Civil Procedure, 28 U.S.C.A.,
for appointing and making
references to Masters, a
Federal District Court

has "the inherent power

to supply itself with

this instrument for the
administration of justice
when deemed by it essential.”
(Citations omitted. )

Consequently, either under Rule 53 or in
accordance with the court's inherent
power to provide equitable relief, this
court is able to appoint a special master

to ensure compliance with its judgment.

C-54

The defendants offer many argu-
ments why a special master should not
be appointed predicated upon (i) their
good faith and substantial performance;
(ii) impossibility of performance
because of changed conditions; (iii)
creation of adversary relationships;
(iv) duplication of efforts since
Willowbrook is already monitored by
fourteen separate agencies; and (v)
violation of established principles
of federalism.

The court has no doubt about the
good faith of the defendants in attempt-
ing to comply with the Judgment, but the
court does not find substantial perform-
ance. Good faith and efforts, however,
are no excuse for failure to comply
with provisions so necessary for the
protection of the handicapped clients.

Rozecki v. Gaughan, 459 F.2d 6, 8

C-55

(1st Cir. 1972); Gautreaux v. Chicago

Housing Authority, 384 F.Supp. 37, 38

(N.D. Ill. 1974). Defendants cite

Panitch v. State of Wisconsin, 451

F.Supp. 132, 133-34 (E.D. Wis. 1978),
in support of their contention. Panitch
presents an entirely different factual
pattern than the situation here. In
that case, involving an injunction
compelling education of handicaped
children, the School District had
eliminated the backlog of handicapped
students awaiting placement and also
reduced the number of such students
awaiting evaluation. In other words,
there was substantial improvement and
progress. In all events, such progress
and improvement does not exist in this

case. See Welsch v. Likins, 373 F.Supp.

487 (D.Minn. 1974); United States v.

Dothard, 373 F.Supp. 504 (M.D. Ala. 1974).

C-56

As discussed under heading III
below, performance is not impossible
becaue of changed conditions. The claim
of adversary relationships resulting
from the appointment of a special master
is simply not supported by evidence or
experience.

It is true that Willowbrook is now
monitored by fourteen different agencies,
five of which existed before the entry
of the Consent Judgment. The only two
bodies which perform any monitoring
against the decree, the Willowbrook
Quality of Life Monitors ("QLM") and
OMRDD's Consent Decree Office Audit
Compliance Task Force ("CDO") consist
entirely of defendants' employees. QLM
monitors only Willowbrook, not the other
facilities or homes, and CDO performs
its monitoring function only once a

year. Moreover, despite the existence

C-57

of these fourteen monitoring groups,
they have failed to adequately super-
vise or in any way enforce full compli-
ance with the Consent Judgment. What
is needed is an independent body for
compliance purposes which can orient
and co-ordinate the reports and programs
of the present agencies. In the suc-
cessful performance of his services the
special master would hasten the day
when the Consent Judgment will be fully
implemented. The role of the master
would be to act "as an arm and as the

eyes and ears of the court." Palmigiano

v. Garrahy, 443 F.Supp. 956, 986 (D.R.I.
1977). His duties would go beyond those
of the present monitoring agencies. As
a matter of fact, if the special master
were satisfied with the accuracy and
objectivity of the data now collected by

OMRDD and the other monitoring bodies,

C-58

there would be no necessity for him to
engage in their particular activities.
His task would be to integrate and
harmonize that data for the purpose of
implementing and enforcing compliance
with the Consent Judgment, a task which
none of the other bodies monitoring
Willowbrook and related facilities can
accomplish. Predicated upon her experi-
ence with a special master in Massachu-
setts, Commissioner Schwaninger recom-
mended the appointment of a special
master for the purpose of enabling the
New York Commissioner to "respond to
the needs of our mentally retarded popu-
lation in a more timely way." (T. 5822).
Finally, defendants charge that the
appointment of a special master under
these circumstances would violate certain
fuindamental precepts of federalism, thus

rendering such appointment unconstitu-

C-59

tional. This argument may be divided
into two contentions: the appointment
would unconstitutionally interfere with
New York State's right to direct its own
affairs; and a mandate to New York to
assume responsibility for compensating
such a master would unconstitutionally
interfere with New York's sovereign
right to allocate its own tax dollars.

As to the first part of the argu-
ment, Rule 53, as heretofore pointed
out, specifically authorizes the appoint-
ment of a special master and the cases
are clear that such powers of monitor-
ing by a special master are within the
limitations of Rule 53. Taylor v.
Perini, 413 F.Supp. 189 (N.D. Ohio 1976);

Costello v. Wainwright, 387 F.Supp. 324

(M.D. Fla. 1973), aff'd, 489 F.2d 1311

(Sth Cir. 1974). See Gary W. v. Louis-

iana, Supra; Amos v. Board of School

C-60

Directors of Ccity of Milwaukee, 408

F.Supp. 765 (E.D.Wis.), aff'd sub nom.

Armstrong v. Brennan, 539 F.2d 625 (7th

Cir. 1976), vacated on other grounds,

433 U.S. 672 (1977); Pennsylvania Ass'n

for Retarded Children v. Pennsylvania,

334 F.Supp. 1257 (E.D.Pa. 1971), modi-
fied, 343 F.Supp. 279 (1972). See also
Note, 91 Har.L.Rev. 428 (1977).

The court, of course, recognizes the
delicate balance between the judiciary,
Legislature and the Executive. Dimarzo
v. Cahill, 575 F.2d 15 (ist Circ. 1976).
Since the effect of the appointment of a
special master would be prospective, it
is not forbidden by the Eleventh Amend-
ment. In fact, since the defendants
have consented to this Judgment, it is
difficult to see how they can interpose
that bar. Indeed, Edelman v. Jordan,

415 U.S. 651, 667-68 (1974), recognizes

C-61

that such relief is available without a
violation of the Eleventh Amendment even
though the decree imposes financial bur-
dens and will have fiscal consequences
to a state treasury as the necessary

result of compliance. See Vecchione v.

Wohlgemuth, 558 F.2d 150, 158 (3d Cir.),

cert. denied, 434 U.S. 943 (1977). By

appointing a special master the court
does not control, manage or supervise
the operation of Willowbrook. It simply
seeks a tool by which it may monitor and
enforce the state's performance of its
obligations.

As for the second aspect of defen-
dants' challenge, the court is aware of
the fact that the specific allocation of
state resources among its conflicting
needs is a political matter to be

resolved by the Legislature. Jefferson

v. Hackney, 406 U.S. 535 (1972); New York

State Association for Retarded Children

v. Carey, 631 F.2d 162 (2d Cir. 1980),
Evans v. Buchanon, 582 F.2d 750 (3d Cir.
1978). It does not follow from this
principle, however, that plaintiffs'
constitutional rights or their right

to full compliance with a consent judg-
ment can be violated or ignored. If
compliance requires the expenditure of
funds the court thereby does not allo-
cate the state's resources. It is the
duty of the court to attempt to enforce
its judgments. There are innumerable
cases supporting the proposition that
permits the assessment of costs against
defendants for compensating a special

master. Milliken v. Bradley, 433 U.S.

267 (1977); Rhem v. Malcolm, 507 F.2d
333 (2d Cir. 1974); Welsch v. Likins,

C-63

Supra; Hart, Supra; Gary W., Supra.

Moreover, Rules 53 and 54, F.R.Civ.P.,
specifically authorize the assessment
of such costs against the defendants
in these circumstances.

The court has decided to appoint a
special master with full powers afforded
under Rule 53, F.R.Civ.P. The appoint-
ment will not permit the special master
to assume the operation of the Office
of Mental Retardation and Developmental
Disabilities nor to decide disputes
between the parties. However, the
master's efforts will be directed to
the development of a plan to eliminate
widespread violations of the Consent
Judgment at Willowbrook and related
facilities; to report periodically non-
compliance with the provisions of the

Consent Judgment; to assist in the

C-64

accomplishment of the community place-
ment provisions of the Consent Judgment;
and finally, to monitor the implementa-
tion of the provisions of the Consent
Judgment. Before such appointment, how-
ever, the court invites both parties to
submit on or before the 14th day of May,
1982, two (2) names each of eligible
persons for the appointment of a special
master and to file with the court a plan
suggesting the delineation of the duties
and obligations of the special master
and the funding necessary for his compen-
sation and for an adequate staff and an

adequately equipped office.

C-65
III
A
Defendants have moved for modifi-
cation of paragraphs V(1), V(4) and V(7)
of the Consent Judgment on the ground
that such modification is necessary in
order to realize the goal of community
placement for Willowbrook class members.
In support of their motion they rely on
Rule 60 of the Federal Rules of Civil
Procedure. Rule 60(b) provides that the
court may relieve a party from a final
judgment, order, or proceedings for the
reasons set forth in subdivisions (5) and
(6) as follows:
(5) the judgment has been
satisfied, released, or
discharged, or a prior judg-
ment upon which it is based
has been reversed or otherwise
vacated, or it is no longer
equitable that the judgment
should have prospective
application; or (6) any other

reason justifying relief from
the operation of the judgment.23/

C-66

Defendants claim that the above
sections of the Consent Judgment are no
longer adapted to accomplish their
purpose because of the housing shortage
in New York City and the other obstacles
mentioned by them which militate against
community placement of non-ambulatory,
non-self-preserving Willowbrook clients.
The issue is whether “it is no longer
equitable that the judgment should have
prospective application.”

The defendants' argument for modi-
fication is two-pronged. They contend,
first, that size limitation is not that
important a consideration for the Willow-
brook population and that class members
can be served as well - and in some cases
better - in facilities that accommodate
between 11 and 50 residents. Second,
they argue that the interplay of current

housing conditions in New York City with

C-67

the Consent Judgment's rigid size re-
strictions has caused Willowbrook class
members to remain in an institutional
environment an unnecessarily long time.
Consequently, they say, §§ V(4) and V(7)
24/

of the Consent Judgment— are not
properly adapted to accomplishing their
purpose of providing class members with
the least restrictive and most normal
living conditions possible, and they
should be abandoned.

We turn first to the argument
that facilities accommodating between 11
and 50 residents provide as good - and in
some instances better care - than the
smaller community facilities presently
mandated by the Consent Judgment and by
the 3 bed/6 bed Order. The thrust of
most of defendants' testimony was that

size is not a critical factor in deter-

mining the best community placement for

C-68

profoundly retarded persons. Professor
Sue Allen Warren expressed the opinion
that the compassion of staff, not the
size of a facility, is the significant
factor and that a mentally retarded
person's developmental needs can be cared
for as well in a 50-bed facility as ina
10-bed facility. In fact, in her opin-
ion, a larger facility has important
advantages: it can more easily obtain
the necessary professional staff, there
is less professional isolation, and
mentally retarded individuals there have
greater opportunities to develop friend-
ships than they do in small facilities.
Citing the work of Professor Landesman-
Dwyer, she concluded that there is not
enough clinical data to support the ef-
ficacy of the court's present size limi-
tations, and that a range of community-

based facilities should be developed.

C-69

Dr. Blanton stated that a range of
facilities housing up to 100 mentally
retarded individuals would be appropri-
ate. He testified that while size is one
factor to consider in developing commun-
ity placements, location, availability of
services and orientation of the community
are more important. Commissioner Slezak
concurred that a range of facilities
should be developed. He testified that
mental health practitioners should not
force individuals into small units
because of an illfounded preconception
that smaller units are less restrictive,
and that facilities larger than 10 beds
are particularly appropriate placements
for severely handicapped individuals who
require nursing care or who have special
disabilities such as behavior problems.
In his opinion, residences housing up to

50 individuals can be home-like and can

C-70

provide excellent care.

Ms. Blum agreed that a range of
facilities should be considered for
certain individuals. She continued that
for those who are multiply handicapped or
severely emotionally disturbed, both
small and moderate-sized facilities are
appropriate placements. Moreover,
because intermediate-sized facilities are
vastly superior to Willowbrook, diffi-
cult-to-place clients should be sent to
them rather than just left to deteriorate
at Willowbrook. Transitional placements
in intermediate-sized facilities are also
useful for assessing residents' abilities
and needs before their final placement.
Such assessments, she believes, cannot be
done as expeditiously in the community as
in intermediate-sized facilities, and they
are not done adequately at Willowbrock.

Marc Brandt also endorsed the view

C-71

that 35- and 50-bed facilities can be
very humane and therapeutic. He stated
that as transitional facilities they
provide excellent alternatives to the
institutionalized environment of Willow-
brook, and they are good permanent homes
for individuals who have such severe
medical problems that they need continu-
ous monitoring in a specialized facility.
Two of defendants' witnesses empha-
sized the medical barriers to placement
in small facilities. Dr. Philip Ziring
testified that the approximate 300
multiply handicapped residents at Willow-
brook and the 115 residents at Flower
Hospiral require 24-hour access to
medical experts. He opined that commun-
ities are not presently c

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0215%3A2. Public record. Not legal advice.