Appendix — Cohen v. Clark

(2)

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S6-486 [5

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upreme Court, U.S,

= ¢ FILE D

IN THE SUPREME COURTYQF THE

JOSEPH F.

UNITED STATES SPANIQ

7 tee L, UR.

OCTOBER TERM, 1986

NO

~~

” Wb -~'ap

WALTER S. COHEN, et al.,

Petitioners

Vv.

CAROLYN CLARK,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

APPENDIX

Le ROY S. ZIMMERMAN

Attorney General

BY: *JOHN G. KNORR, III

Senior Deputy Attorney

General

ANDREW S. GORDON

Chief Deputy Attorney

General

ALLEN C. WARSHAW

Executive Deputy Attorney

General

Office of Attorney General

15th Fl., Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

-la-

VO ee Oe eg ee ee ee seer p= rire y; 2. rt? oa

TABLE OF CONTENTS

PAGE

OPINION OF THE COURT Ba

OF Pigg OLS errs ee Te ee ee

OPINION AND ORDER OF Gg

THE DISTRICT COURT...... eaves /2

AGREED STIPULATION OF

ET

-2a-

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 85-1452

CAROLYN CLARK

Vv.

WALTER S. COHEN, Individually

and in his official capacity as

Secretary of the Department of Public

Welfare, Commonwealth of Pennsylvania,

JENNIFER L. HOWSE, Individually and

in her official capacity as Deputy

Secretary for Mental Retardation of

the Pennsylvania Department of

Public Welfare, Commonwealth of

Pennsylvania, RUSSELL G. RICE,

JR., Individually and in his official

Capacity as Commissioner of Mental

Retardation, Southeast Region,

Department of Public Welfare,

Commonwealth of Pennsylvania,

S. REEVES POWER, Individually and

in his official capacity as

Superintendent of Laurelton Center,

RICHARD C. SURLES, Individually and

in his official capacity as the

Mental Health and Mental Retardation

Administrator of Philadelphia County,

C. EVERETT CORNMAN, CENTRALIZED

COMPREHENSIVE HUMAN SERVICES, INC.,

JAMES F. WOOD, in his official

capacity as the Acting Director

of the JFK Community Mental Health/

Mental Retardation Program,

SCOTT McBRIDE and FLORENCE KIRSHHEIRMER

Walter S. Cohen, Jennifer L. Howse,

Russell Rice and S. Reeves Power,

Appellants

-3a-

(D.C. Civil NO. 84-3383)

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

Argued: March 3, 1986

Before: GIBBONS, SLOVITER an

BECKER,

Circuit Judges

(Opinion Filed: June 26, 1986)

LeROY S. ZIMMERMAN

Attorney General

JOHN G. KNORR, III (ARGUED)

Senior Deputy Attorney

General

ANDREW S. GORDON

Chief Deputy Attorney

General

ALLEN C. WARSHAW

Executive Deputy Attorney

General

Office of Attorney General

15th Fl., Strawberry Square

Harrisburg, PA 17120

Attorneys for Appellants

-4a-

STEPHEN F. GOLD, ESQUIRE

(Argued)

1315 Walnut St.

Suite 1632

Philadelphia, PA 19107

ILENE W. SHANE, ESQUIRE.

CARYL ANDREW OBERMAN, ESQUIRE

2100 Lewis Tower Building

Philadelphia, PA 19102

Attorneys for Appellee

THOMAS K. GILHOOL, ESQUIRE

JUDITH A. GRAN, ESQUIRE

TIMOTHY A. COOK, ESQUIRE

PUBLIC INTEREST LAW CENTER

OF PHILADELPHIA

1315 Walnut Street,

Suite 1632

Philadelphia, PA 19107

Attorneys for Amicus Curiae

~~

OPINION OF THE COURT

GIBBONS, Circuit Judge:

Walter S. Cohen, Secretary of

the Department of Public Welfare of

Pennsylvania, Jennifer L. Howse, Deputy

Secretary for Mental Retardation of that

Department, Russell G. Rice, Jr., Com-

missioner of Mental Retardation, South-

east Region of that Department, and S.

Reeves Power, Superintendent of Laurel-

ton Center (the Commonwealth defendants )

appeal from an injunction entered by the

district court on June 21, 1985, di-

recting that they release the plaintiff,

Carolyn Clark, from Laurelton Center and

pay for a program of services for Clark

outside that state institution. The

injunction resolves Clark's claims’ for

-6a-

injunctive relief, but not her claims

for money damages. We have jurisdiction

under 28 U.S.C. § 1292(a)(1)(1982). We

affirm.

I.

Clark is a forty-five year old

woman who was confined at Laurelton

Center, a state run institution, for

care of the mentally retarded from the

time she was fifteen years old until she

was released as a result of the order

appealed from. In July of 1984. she

filed a complaint against the Common-

wealth defendants, and several officials

of and contractors for the County of

Philadelphia (County defendants), al-

leging that her confinement at Laurelton

violated her first and fourteenth amend-

ment rights and her rights under several

—

federal and state statutes. The com-

plaint as amended sought declaratory,

injunctive, and monetary relief. Clark

contended that she should not have been

confined at Laurelton, and that as a

result of her long confinement she could

not immediately function in a completely

unstructured environment. Thus she

sought short-term placement in a

community living arrangement (CLA)

1

supervised by the County defendants.

After extensive discovery, the

parties filed a 183-pargragraph stipu-

lation as to the truth, but not neces-

sarily the relevancy, of certain facts.

lthe relationship between the

counties and the Commonwealth with re-

spect to community living arrangements

is described in detail in Halderman v.

Pennhurst State School & Hosp., 612 F.2d

84, 92-93 (3d Cir. 1979)(en banc), rev'd

and remanded on other grounds, 451 U.S.

1 (1981).

-8a-

Prior to any hearing the County defen-

dants and Clark reached a_ settlement

under which they agreed to place her in

a CLA within 120 days, provided the Com-

monwealth defendants paid the cost of

such placement. The County defendants

also agreed to develop’. for Clark a

community placement best suited to her

needs, and to have expert witnesses

testify on her behalf as to the appro-

priateness of the proposed community

placement and the necessity for. such

placement.

On May 28, 1985 the district

court commenced a hearing on Clark's

application for preliminary injunctive

relief. Her counsel represented to the

court that he would present, in addition

=9a=

to the stipulated facts, the testimony

of several witnesses, but that the stip-

ulation and those witnesses would com-

prise Clark's entire case on injunctive

relief. The court therefore treated the

hearing as an application for a perma-

nent injunction. Clark presented her

own testimony, the testimony of her

caseworker at Laurelton, of the Super-

intendent of Laurelton, of the Director

of Social and Rehabilitative Services at

Laurelton, of the Director of the Bureau

of Planning and Resource Allocation of

the Department of Public Welfare, and of

several expert witnesses. The stipu-

lation of facts executed by the parties

was admitted into evidence, together

with fifty-six exhibits. The exhibits

included the Laurelton records with

respect to Clark's stay there. The

attorney for the Commonwealth cross-

-10a-

examined the witnesses offered on

Clark's behalf, but introduced no

evidence in opposition to the appli-

cation for injunctive relief.

On June 21, 1985 the trial

court filed detailed findings of fact

and conclusions of law. Noting that the

parties had entered into a comprehensive

stipulation of facts, the trial court

wrote that his narrative statement "to-

gether with the stipulation constitutes

my findings of fact." Clark v. Cohen,

613 F. Supp. 684, 686 (E.D. Pa. 1985).

Thus in reviewing the trial court's

findings of fact we must look both to

the narrative statement and to the stip-

ulation. Reference to those _ findings

will be made hereafter as relevant to

the Commonwealth defendants' legal con-

tentions.

-lla-

The trial court held that Clark

had been didi of liberty without

procedural due process of law and of

substantive liberty interests guaranteed

by the fourteenth amendment. The court,

therefore, determined that she was en-

titled to injunctive relief. The court

entered an order directing the County

defendants to take those steps on

Clark's behalf which they had agreed to

take in the settlement; namely devel-

oping a program of community services

for her which would permit her to live

in a CLA. The court further instructed

the Commonwealth defendants to "“immedi-

ately commit to Philadelphia Mental

Health Mental Retardation those _ funds

necessary to pay for the program of

community services" and to "arrange for

-12a-

the transfer of plaintiff to this

program." Joint Appendix at 50. This

appeal by the Commonwealth defendants

followed.

Ii.

Because the injunction was not

stayed, the County defendants proceeded

to develop a plan for Clark's placement

in a CLA, and she was released from

Laurelton. On February 2, 1986 reports

in the press disclosed that the Common-

wealth defendants no longer opposed her

release, and would not seek her return

if they prevailed on appeal.” This

court requested counsel to comment on

the possible mootness of the appeal in

2The Philadelphia Inquirer,

February 2, 1986, §$ I, at 1, col. l.

-l3a-

light of the fact that the Commonwealth

defendants no longer sought to have

Clark returned to Laurelton.

Both parties contend, and we

agree, that the appeal is not moot. A

mootness voxiin would require that the

underlying order be vacated. See United

States v. Munsingwear, 340 U.S. 36, 39-

40 (1950). That might result in the

withdrawal of community services now

being furnished by the County defen-

dants, since Clark's settlement with

them is contingent upon funding by the

Commonwealth. The Commonwealth, while

it has no intention of seeking her

return to Laurelton, is unwilling to

continue such funding if it can obtain

relief from the funding provision in the

injunction. While a vacation of the

injunction would accomplish all the

relief the Commonwealth now seexs, ‘t

-l4a-

would deprive Clark of a = significant

protection. Thus we must address the

merits of the Commonwealth defendants'

appeal.

III.

The appeal presents two inde-

pendent contentions. The Commonwealth

defendants first urge that, assuming

they violated Clark's substantive and

procedural rights, the eleventh amend-

ment bars any relief other than an order

releasing her from their custody. They

contend, alternatively, that no relief

waS proper because no violations of

Clark's constitutional rights ever

occurred.

A.

The Eleventh Amendment Contention

-l5a-

The diffrict court found that

the violation of Clark's constitutional

rights by her long, illegal confinement

at Laurelton without proper treatment

caused a deterioration in her ability to

function at the present time in an un-

structured environment. "But for the

then well-intentioned intervention of

the state," the court observed, "Ms.

Clark could most likely have lived an

average life." 613 F. Supp. at. 707.

The Commonwealth stipulated that "[iJn

the opinion of [James] Pelter and Eliza-

beth Kaster, [two members’ of the]

Laurelton Center social service staff,

Carolyn Clark's need for support ser-

vices stems primarily from her insti-

tutionalization since age 15." Joint

Appendix at 376. No evidence - con-

flicting with that opinion was offered

-l6a-

by the Commonwealth defendants. They

Stipulated further that "CsJince at

least 1976, it has been the recom-

mendation of the team at Laurelton

Center that Carolyn Clark be placed in a

community living arrangement." Joint

Appendix at 377. It was stipulated that

as long ago as 1976 her Laurelton case

worker recommended "that she would be

most appropriate for a supervised foster

home or group placement." Joint Appendix

at 378. It was also stipulated that it

was the opinion of Laurelton case worker

James Pelter, who was’7 familiar with

Clark's case, "that her major difficul-

ties were in the behavioral area and

that these difficulties were largely due

to being institutionalized since age

SP Joint Appendix at 383. Having

Stipulated that their own professional

staff members attributed Clark's present

need for supervision to her long insti-

tutionalization, and having offered no

contrary evidence, the Commonwealth de-

fendants are in no position to question

the trial court's finding that the

violations .of her rights caused_ such

deterioration of her ability to cope in

society that she needs some form of

supervised remediation if she is ever to

be able to do so.

Indeed the Commonwealth defen-

dants do not seriously dispute that

Clark's need for present remediation is

the result of her long confinement. In

their initial brief, they argue that she

sought and the trial court recognized a

constitutional right to treatment out-

side an institution unrelated to any

prior violation of her rights. Appel-

lants' Brief at 17-19. Clark's brief

points out, quite correctly, however,

-18a-

that the trial court did nothing of the

kind; rather, it ordered a remedy for

the past constitutional violations which

it found. Appellee's Brief at 37-38.

Subsequently, the Commonwealth

defendants brought forth the argument we

now address; namely that the supervised

community living arrangement which has

been ordered, being a form of remedia-

tion or compensation for past injuries,

is barred by the eleventh amendment,

even in a suit against state officers

seeking equitable relief. Appellants'

Reply Brief at 3-9. The Commonwealth

defendants note, correctly, that the

equitable relief which the trial court

ordered--the development and imple-

mentation of a plan for Clark's place-

ment in a CLA until she can function in

society without supervision--involves

the expenditure of Commonwealth funds.

-19a-

They rely on Edelman v. Jordan, 415

U.S. 651 (1974), as authority for the

proposition that equitable relief re-

quiring the expenditure of state funds ©

to remedy past wrongs is never permis-

sible.

The precise contention made by

the Commonwealth defendants has_ been

rejected by the Supreme Court. In

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

(Milliken II), the governor and other

state officials of Michigan, who had

been found to have participated in the

maintenance of an unconstitutionally

segregated school eten in Detroit,

were ordered to fund one-half of the

remedial educational programs ordered

for the purpose of undoing the harm done

to black pupils by prior’ segregated

schooling. Id. at 275-77. Relying on

Edelman, the state officials argued that

-20a-

the eleventh amendment barred such "com-

pensatory" relief. The

Court resound-

ingly, and in this respect unanimously,

rejected that contention,

writing:

The decree to share

the future costs

of edu-

cational components in

this case fits

squarely

within the prospective-

compliance exception re-

affirmed by

That exception,

had its genesis

Edelman.

which

in Ex

parte Young, 209 U.S.

123 (1908), permits fed-

eral courts to enjoin

state officials to con-

form their conduct’ to

requirements of federal

law, notwithstanding a

direct and substantial

impact on the State

treasury. 4i3. U.8 at

667. The order’ chal-

lenged here does no more

than that. The decree

requires state offi-

Ccials, held responsible

for unconstitutional

conduct, in findings

which are not chal-

lenged, to eliminate a

de jure segregated

school - system. More

precisely, the burden of

state officials is that

set forth in Swann ([v.

Charlotte-Mecklenburg

Board of Education, 402

U.S. 1 (1971)J--to take

the necessary steps "to

eliminate from the public

schools all vestiges of

state-imposed segrega-

tion.” 2 U.@. at i135.

The educational compo -

nents, which the District

Court ordered into effect

prospectively, are plain-

ly designed to wipe out

continuing conditions of

inequality produced by

the inherently unequal

dual school system long

maintained by Detroit.

These programs were

not, and as a practical

Matter could not be, in-

tended to wipe the slate

clean by one bold stroke,

as could a_ retroactive

award of money in Edel-

man. Rather, by the

nature of the antecedent

violation, which on this

record caused signifi-

cant deficiencies in

communications skills--

reading’ and speaking--

the victims of Detroit's

de jure segregated sys-

tem will continue to

experience the effects

of segregation until

such future time as

the remedial programs can

-22a-

help dissipate the con-

tinuing effects of past

misconduct. Reading and

speech deficiencies can-

not be eliminated by

judicial fiat; they will

require time, patience,

and the skills of spe-

cially trained teach-

ers. That the programs

are also "compensatory"

in nature does not change

the fact that they are

part of a plan that op-

erates prospectively to

bring about the delayed

benefits of a unitary

school system. We there-

fore hold that such

prospective relief is

not barred by the Elev-

enth Amendment.

Id. at 289-09 (footnotes omitted).

Milliken II is therefore controlling

unless, as the Commonwealth urges, it

has since been overruled. Somewhat

obliquely the Commonwealth suggest that

Milliken II was overruled in Pennhurst

State School & Hospital v. Halderman,

465 U.S. 89 (1984). To the contrary,

that case reconfirmed that "the federal

-23a-

court may award an injunction that

governs the official's futur conduct,

but not one that awards retroactive

monetary relief." Id. 102-03 (emphasis

supplied). No monetary relief has thus

far been awarded to Clark.

Given the square holding in Milliken

II that a federal court may order state

officials to fund from the state

treasury remedial measures found

|

necessary to undo the harmful effects of

ie)

past constitutional violations, we ho

that the Commonwealth defendants elev-

enth amendment argument is meritless.

B.

The Violations

Having rejected their eleventh

amendment contention, we must iddress

the Commonwealth je fendants' "ontention

that Clark's constitutional riahts were

-24a-

not vislete.* The trial court held

that she had been confined at Laurelton

3Clark suggests that the relief

afforded to her was required by section

504 of the Rehabilitation Act of 1973,

29 U.S.C. §794 (1984). The trial court

rejected this contention. See 613 F.

Supp. at 690-96. Section 504 prohibits

discrimination against the handicapped

in federally funded programs. It im-

poses no affirmative obligations on the

states to furnish services. See South-

eastern Community College v. Davis, 442

U.S. 397, 411 (1979); Kentucky Ass'n for

Retarded Citizens v. Conn., 674 F.2d

982, 32955 (6th Cir. 1982), aff'g, 510 F.

Supp. 1233, 1243-44 (W.D.Ky. 1980) ;

Halderman v. Pennhurst State School &

Hosp., 612 F.2d 84, 120-21 (3d Cir.

1979)(en bwbanc)(Seitz, Jr., dissenting),

rev'd and remanded on other grounds, 451

U.S. 1 (1981); Sabo v. O'Bannon, 586 F.

Supp. 1132, List (Beus Pa. 1984);

Manecke Vv. School Bd. of Pinellas

County, Fla., 553 F. Supp. 787, 790 n. 4

(M.D. Fla. 1982); Garrity v. Gallen, 522

F. Supp. 171, 209 (D.N.H. I981). The

district court found that Clark failed

to prove that she was’ discriminated

agalnst On the basis of her handicap.

That finding is not clearly erroneous.

Thus section 504 does not provide a

statutory ground for affirmance which

would avoid the necessity of reaching

the constitutional law issues on which

she prevailed.

-25a-

in violation of substantive liberty in-

terests and procedural due process

rights.

In 1956 Clark, a fifteen-year

old Philadelphia resident, was involun-

tarily and indefinitely committed to

Laurelton as a result of a petition

filed pursuant to section 326 of the

Mental Health Act of 1951. See Pa.

Stat. Ann. tit. 50, § #1201 #£=(Purdon

1952), repealed by Mental Health and

Mental Retardation Act of 1966, 1966 Pa.

Laws 96 (codified at Pa. Stat. Ann.

tit. 50, §§ 4101-4704 (Purdon 1969).

The petition was filed on November 8.

1956 and approved by a state court the

next day. Clark received no notice of

the petition, and no hearing was held on

it. On November 11, 1956 she was trans-

ported to Laurelton, in Union County,

-26a-

Pennsylvania, at least four, hours away

from her Philadelphia home. Laurelton

is an institution housing severely

mentally retarded persons. Although the

petition which resulted in her incar-

Ceration described her as "severely

defective, “ tests administered at

Laurelton shortly after her arrival

revealed that she was in the mild range

of mental retardation with an IQ of

roughly 60. Her IQ tests have re-

Mained fairly constant since. Her IQ is

much higher than the overwhelming number

of Laurelton residents, and she has

always functioned at a higher level than

most of the other Laurelton inmates.

The 1956 test and all subsequent tests

differ significantly from the "severely

defective" diagnosis in the petition

which resulted in her commitment.

-27a-

The trial court found that soon

after Clark was sent to Laurelton she

expressed to the officials in charge of

her custody her displeasure at being

committed there against her will. The

court found that she continued to pro-

test her detention up to the time of the

hearing, a period of over twenty-eight

years. Despite her continuing protests,

the court found, she never en a

hearing regarding the propriety of ei-

ther her initial commitment or her con-

tinued detention.

In 1962, when she had been held

at Laurelton for six years, Clark

reached the age of majority. Her

commitment was not reviewed at that

time. In 1966 the statute under which

she had been committed was’ repealed.

Her commitment was not reviewed under

-28a-

the provisions of the new statute. In

1976, when Clark had been detained at

Laurelton for twenty years, the

commitment provisions of the 1966

statute were held to be unconstitu-

tionally vague. See Goldy v. Beal, 492

F. Supp. 640 (M.D. Pa. 1976) (three-

judge court). The Goldy court issued an

order establishing new- and stricter

standards for involuntary commitments.

Id. at 649-50. Clark's commitment was

not reviewed under these court-ordered

standards. Neither the Commonwealth

defendants nor the County defendants

have any established procedure for

initiating judicial review of indef-

inite, involuntary commitment, either

when the committed person requests such

review, Or when members of institutional

-29a-

staffs conclude that the person 0»no

longer needs institutionalization. Both

Clark and members of the institutional

staff periodically requested judicial

review of her commitment, but such

review never occurred.

The professional | staff at

Laurelton, including Clark's Ledetenne

team, has agreed, at least since 1976,

that Clark did not belong there, but

should have been transferred to a com-

munity residential facility where_- she

could learn to live independently. The

stipulation of facts details the various

steps that have been taken since 1976 by

staff members to convince the Common-

wealth defendants to place Clark in a

less restrictive environment than

Laurelton and to obtain a hearing on her

commitment. All of those efforts were

in vain. The trial court found,

-30a-

Although all the avail-

able professional opin-

ion strongly favors a

CLA for plaintiff, and

has for the last nine

years, plaintiff remains

at Laurelton. The pri-

mary forces which have

kept her there appear to

be bureaucratic inepti-

tude and insufficient

allocations of funds to

community residence pro-

grams.

613 F. Supp. at 689.

Thus we are dealing with a

plaintiff who was committed without

notice or a hearing as the result of a

petition containing an incorrect diag-

nosis, and who was retained against her

will without a hearing for over twenty-

eight years. Moreover we are dealing

with a plaintiff who repeatedly request-

ed that the persons in charge of her de-

tention arrange for such a hearing, re-

quests which were endorsed by the pro-

fessional staff of the institution.

-3la-

Finally, we are dealing with a plaintiff

as to whom the professional staff of the

institution recommended against the kind

of treatment to which she was_) sub-

jected. The trial court concluded that

Clark's continued commitment at Laurel-

ton violated procedural due process in

that she never received an adequate

hearing as to the propriety of her con-

tinued confinement. See 613 F. Supp. at

701. The trial court also concluded

that Clark's substantive rights not to

be unnecessarily institutionalized and

to receive the minimally adequate train-

ing which was the onty purpose for her

commitment were violated. Id. at 705.

(1) Procedural Due Process

Clark contends that her initial

commitment in 1956 violated due _ pro-

cess. The trial court did not rely on

-32a-

any process deficiency in the original

commitment. See 613 F. Supp. at 698.

The court concluded, however, and we

agree, that due process required period-

ic reviews of her continuing need for

institutionalization. Id. at 698-701.

Periodic reviews are required because if

the basis for a commitment ceases to

exist, continued confinement violates

the substantive liberty interest in

freedom from unnecessary restraint. See

O'Connor v. Donaldson, 422 U.S. 563,

574-75 (1975). As the Supreme Court has

declared, "due process reguires that the

nature and duration ed commitment bear

some reasonable relation to the purpose

for which the individual is committed."

Jackson v. Indiana, 406 U.S. 715, 738

(1972). See also McNeil v. Director,

Patuxent Institution, 407 U.S. 245, 249-

50 (1972); Rennie v. Klein, 653 F.2d

-33a-

636, 845: (34 Cir. 1981), vacated on

other grounds, 458 U.S. 1119 (1982) on

remand, 720 F.2d 266 (3d Cir. 1983). In

Parham Vv. ‘a 442 U.S. 584, 607

(1979), the Court confirmed that the

need for commitment must be reviewed

periodically by a neutral factfinder.

The Commonwealth conceded in

the district court that Clark was en-

titled to periodic review of her com-

mitment. See 613 F. Supp. at 700. It

contended, however, that the review

process afforded to Clark within the

walls of Laurelton satisfied due pro-

cess. That process conaiated of medical

and psychological reviews. As the trial

court found, however, since at least

1976 those reviews have consistently

recommended that Clark be released from

Laurelton, but the reviewers lacked the

authority to implement their recommenda-

tions. The hearing required by the due

-34a-

process clause is not a moot court exer-

cise. The hearing tribunal must have

the authority to afford relief. See

Parham, 442 U.S. at 607.

Thus the trial court did not

err in holding that Clark has been de-

prived of her liberty to be free from

commitment without procedural due pro-

cess. Over the course of more _ than

twenty-eight years she was never afford-

ed a hearing before any decisionmaker

with authority to resolve her dispute

with those who were confining her.

(2) petiiniiklc ti Due Process

The trial court also held that

Clark‘s confinement at Laurelton since

at least 1976 in the face of unanimous

professional opinion that she should be

placed in a far less restrictive envi-

ronment violated her substantive liberty

-35a-

right to appropriate treatment. See 613

F.Supp. at 706. This holding is consis-

tent with Youngberg v. Romeo, 457 U.S.

307, 321 (1982), which sets forth "the

proper balance between the interests of

the State and the rights of the involun-

tarily committed to reasonable condi-

tions of safety and freedom from unrea-

sonable restraints." Romeo requires that

restraints be imposed only to the extent

required by the judgment of profession-

als in charge of the involuntarily com-

mitted, and that the involuntarily com-

mitted receive minimally adequate train-

ing. Id. at 321-25. See also Thomas S.

v Morrow, 781 F.2d 367 (4th Cir. 1986).

The stipulated facts establish

that Clark was confined at Laurelton

rather than released to a CLA, and was

deprived of the training for community

living which’ she could have received at

-36a-

lai elaeeeanelll

a CLA, despite professional judgment,

unanimous since 1976, that she should be

released from Laurelton and receive such

training. Based on these findings, we

agree with the district court and hold

that her substantive liberty right to

appropriate treatment under Romeo was

violated.

IV.

This appeal is not moot. The

eleventh amendment does not bar the re-

lief which was- ordered. The trial

court's findings of fact amply support

the legal conclusion that Clark's

procedural and substantive due process

rights were violated. The judgment

appealed from will therefore be affirmed.

-3/a-

BECKER, Circuit Judge, concurring:

I agree with the majority that

this case is not moot; hence, I join in

part II of its opinion. I also agree

that 29 U.S.C. § 794 (1984) does not

afford Ms. Clark the relief she seeks.

See Maj. Op. 13-14 n. 3 (29 U.S.C.

§ 794). I believe, however, that the

majority's eleventh amendment analysis,

Maj. Op. at 8-13, is incorrect, and

that the eleventh amendment '- prevents

Ms. Clark from receiving compensation

for alleged violations of her constitu-

tional rights occurring during her 29-

year confinement at Laurelton center.+

I would, nevertheless, grant Ms. Clark

l Because of my position on the

eleventh amendment, I do not reach the

merits of Ms. Clark's allegations of

unconstitutional deprivations while at

Laurelton, discussed by the majority in

part III.B of its opinion.

-38a-

the relief she seeks on a different

ground: not as compensation for

historical constitutional depri-

vations, but on account of her present

constitutional right to treatment. I

therefore concur in the judgment affirm-

ing the district court's order.

In part I of this concurrence,

I shall explain my difference with the

majority's eleventh amendment analysis.

In part II, I shall identify Ms. Clark's

right to treatment, describe its extent

and limits, and explain its relevance in

this case.

I.

The majority holds that Ms.

Clark is entitled to relief now because

of violations of her rights to proce-

dural due process over. the past 29

years, Maj. Op. at 17-19, and violations

-39a-

of her substantive due process rights

since 1976, Maj. Op. at 19-20. I be-

lieve that this analysis, which pre-

dicates relief on historical violations

of Ms. Clark's constitutional rights, is

barred by the eleventh amendment.

A. The Prospective-Retrospective

Distinction in the Eleventh

Amendment Jurisprudence

Al though there is currently

much scholarly debate about the origin

and meaning of the eleventh amend-

ment,“ the Supreme Court has_~ spoken

clearly on the matter. Ever since Ex

Parte Young, 209 U.S. 123 (1908), the

rule has been that the.eleventh amendment

2See, e.g., Fletcher, A Historical

Interpretation of the Eleventh Amend-

ments: A Narrow Construction of an

Affirmative Grant of Jurisdiction Rather

(FOOTNOTE CONTINUED)

-40a-

does not permit federal courts to enter-

tain suits against states in which the

complainants seek compensation for

historical violations of federal rights,

but that the federal courts do have the

(FOOTNOTE CONTINUED)

than a Prohibition Against Jurisdiction,

35 Stan. L. Rev. 1033 (1983); Gibbons,

The Eleventh Amendment and State Sover-

eign Immunity: A _ Reinterpretation, 83

Colum. L. Rev. 1889 (1983) C. Jacobs,

The Eleventh Amendment and Sovereign

Immunity (1972); Field, The Eleventh

Amendment and Other Immunity Doctrines,

126 U. Pa. L. Rev. 515, 1203 (1978);

Nowak, The Scope of Congressional Power

to Create Causes of Action Against State

Governments and the History of _the

Eleventh and Fourteenth Amendments, 75

Colum. L. Rev. 1413 (1975); Orth, The

Interpretation of the Eleventh Amend-

ment, 1798-1908: A Case Study of

Judicial Power, 1983 U. Ill. L. Rev.

423; Shapiro, Wrong Turns: The Eleventh

Amendment and the Pennhurst Case, 98

Harv. L. Rev. 61 (1984) ; Engdahl,

Immunity and Accountability for Positive

Governmental Wrongs, 44 JU. Colo. L.

Rev. 1 (1972).

-4la-

power to protect against states > con-

tinuing violations of federal rights.

See, e.d., Green Vv. Mansour,

iF ’ 106 S. ct. 423, 425-26

(1985); - Pennhurst State School &

Hospital v. Halderman, 465 U.S. 89,

102-03 (1984); Quern v. Jordan, 440 U.S.

332, 337 (1979); Edelman v. Jordan, 415

U.S. 651, 668 (1974). The Supreme Court

has summarized its interpretation by

saying that prospective relief is

permitted whereas retrospective relief

is not. See Quern v. Jordan, 440 U.S.

at 337.

The distinction between pro-

spective and retrospective relief "will

not in many instances be that between

3youn insisted that the

complainant sue the responsible state

official rather than the state itself.

We are unconcerned with that legal

fiction here.

-42a-

night and day," Edelman v. Jordan, 415

U.S. at 667, and the Court has thus

enunciated a standard for determining

wh@iher relief is prospective or ret-

rospective: it is retrospective, and

hence barred by the eleventh amendment,

if it is "measurable in terms of a

monetary loss resulting from a past

breach of a legal duty on the part of

the defendant state officials." Id. at

668. Application of this standard to

the majority's solution in the instant

case raises two questions: (1) is the

relief sought -- placement in the com-

munity living arrangement (CLA) --

“measurable in terms of a monetary

loss,"? and (2) does it (according to

the majority's theory of the case)"

result{] from a past breach of a legal

duty" by the state?

-43a-

The answer to both questions is

"yes." I do not see Ms. Clark's loss of

liberty, albeit tragic and outrageous,

as different in kind from any of the

other losses of liberty for which courts

regularly recompense victims. -In her

demand for relief in this case, Ms.

Clark seeks two million dollars to

remedy the alleged violations of her

substantive and procedural due process

rights. Ms. Clark's desired remedy is

thus "measurable in terms of a monetary

loss." As to the second question, the

Majority clearly holds that Ms. Clark

must be placed in the CLA because her

due process rights have, for the past 29

years, been violated by the officials at

Laurelton. See Maj. Op. at 10. There is

therefore no doubt that the remedy is on

account of a past breach of the state's

legal duty to Ms. Clark. Because the

-44a-

answer to both of these questions is in

the affirmative, the majority's theory

of the case is thus foreclosed by the

eleventh amendment.

This conclusion comports’ with

the Eighth Circuit's decision in Miener

v. Missouri, 673 F.2d 969 (8th Cir.),

cert. denied, 459 U.S. 909 (1982), in

which the plaintiff, a sufferer of

"serious learning disabilities and

behaviorial disorders," id. at 972,

requested compensatory educational

services from the state defendants on

the ground that she had been unconsti-

tutionally denied a free education on

account of here condition. The court

held the plaintiff's suit barred by the

eleventh amendment.

-45a-

An award of tuition

reimbursement would

clearly be barred as an

award of damages for

past breach of legal

duty under this test.

Riley v. Ambach, 508 F.

Supp. 1222, 1248

(E.D.8.Y. 1980). We

view the request for

compensatory services as

practically indistin-

guishable from a request

for such reimbursement.

Compensatory services,

like the award of a

money judgment, would be

measurable against past

educational deprivation.

The expenditure of state

monies to provide com-

pensatory services would

not, in other words,

ensure “compl iance in

the future with a

substantive federal

question determination."

Edelman w. Jordan,

supra, 415 U.S. at 668,

94 S. Ct. at 1358 (en-

phasis added). We con-

clude that the eleventh

amendment bars the award

of such compensatory re-

lief as appellant has

requested. [Citations

omitted].

Miener v. Missouri, 673 F.2d at 982.

See also Max M. v. Thompson, 566 F.

Supp. 1330, 1336-37 (N.D. I11. 1983)

-46a-

| |

(relying on Miener to deny claim for

compensatory educational services).

The Ninth Circuit has recently adopted

the Miener analysis in Alexopulos v.

Riles, 784 F.2d 1408, 1412 (9th Cir.

1986). I believe that the Miener analy-

sis is correct and fully applicable in

this case.

B. The Meaning of Milliken II

The majority relies on Milliken

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

II) in finding that the Eleventh Amend-

ment is not a bar to Ms. Clark's suit.

Because Milliken II is’7 critical to the

4The district court later reversed

itself on this point, explaining that it

was constrained by dictum in Timms v.

Metro. Sch. Dist. of Wabash County Ind.,

722 F.2d 1310 (7th Cir. 1983), which had

been decided after the first Max M.

decision. See Max M. v. Thompson, 585

FP. Supp. 317, 324 (N.D. Ill. 1984).

-47a-

majority's position, and because’ the

lessons to be drawn from it are not

entirely clear, it is necessary to

review that decision at some length.

In Milliken II, the district

court found that the City of Detroit had

practiced de jure segregation for many

years. The district court therefore

ordered a busing program and a remedial

education program, funded by the state

defendants, for those children who had

attended the worst schools in the sys-

tem. The Supreme Court upheld the plan

against an eleventh amendment challenge

on the grounds that the remedial plan

was necessary to "“‘eliminate from the

public schools all vestiges of state-

imposed segregation.'" Milliken II, 43

U.S. at 290 (quoting Swann v. Char-

lotte-Mecklenburg Board of Education,

4602 U.8 i, 3235 €297i 33. The Court went

ons:

-48a-

|

[Bly the nature of the

antecedent violation,

which on this record

caused significant defi-

ciencies in communica-

tion skills -- reading

and speaking -- the vic-

tims of Detroit's de jure

segregated system. will

continue to experience

the effects of segre-

gation until such future

time as the remedial

programs can help dis-

sipate the continuing

effects of past miscon-

duct. Reading and

speech deficiencies can-

not be eliminated by

judicial fiat; they will

require time, patience,

and skills of specially

trained teachers. That

the programs are also

"compensatory" in nature

does not change the fact

that they are part of a

plan that operates ro-

spectively to bring

about the delayed ben-

efits of a unitary

school system.

Milliken II, 433 U.S. at 290.

After reviewing Milliken II and

quoting extensively from it, the major-

ity asserts that Milliken II stands for

the proposition that a federal court may

-49a-

|"

order states to fund programs to remedy

historical violations of federal rights

so long as the measures are necessary to

undo those harmful effects of the his-

torical violations that continue into

the future. Maj. Op. at 13. The major-

ity thus reads Milliken II as imposing

what I will call a “continuing effects"

exception on the traditional prosective-

retrospective eleventh amendment dichot-

omy. The continuing effects exception

works as-_ follows: regardless of when

the constitutional violation at issue

occurs, the state is liable for any

effects of the violation that are felt

after the time of the institution of the

suit. Applying the continuing effects

exception to the instant case, the

majority has no difficulty concluding

that Ms. Clark's placement in a CLA was

-50a-

intended to remedy the continuing

effects of her improper detention at

Laurelton, i.e., to prepare her to live

in the general community with no, or

minimal, assistance.

Although a literal reading of

Milliken II may support the continuing

effects exception, I believe, for two

reasons, that the exception is an

unwarranted extension of the eleventh

amendment jurisprudence. First, the

exception would effectively obliterate

Timms Vv. Metro. Sch. Dist. of

Wabash County, Ind., 722 F.2d 1310,

1315-16 (7th Cir. 1983) raised, but did

not unequivocally endorse or rely upon,

an argument similar to the majority's in

the case of a severely handicapped young

woman seeking educational services. The

Timms court decided the case on entirely

separate grounds. See Id. at 1316.

-5la-

the prospective-retrospective distinc-

tion: almost all wrongdoing has con-

tinuing effects, and a continuing

effects exception would thus virtually

emasculate the current, prevailing

interpretation of the eleventh amend-

ment. Virtually anyone who has a

colorable argument of wrongdoing by the

state will assert consequential damages;

even if the claims eventually fail, the

plaintiffs will have forced the state to

defend itself in court -- an often ex-

pensive and risky undertaking. There is

no indication in Milliken II itself that

the Court intended to cut back so sub-

stantially on the long-standing - pro-

Spective-retrospective distinction, and,

in the several Supreme Court cases

following Milliken II that involved the

prosepctive-retrospective distinction,

the distinction has been continually re-

asserted without extensive discussion of

-52a-

Milliken II or any mention of a contin-

uing effects exception, see, e.g., Green

V. Mansour, supra; Pennhurst State

Hospital v. Haldeman, supra; Quern v.

Jordan, supra. Without some stronger

indication from the Supreme Court, I

cannot believe that Milliken II cuts so

broad a swath as the majority perceives

in the Eleventh Amendment jurisprudence.

Second, the exception is com-

pletely at odds with the reasoning un-

derlying the prospective-retrospective

distinction, which is that it is a

greater affront to the sovereignty of

the states to force them to pay for prior

illegal acts (the illegality of which the

states were presumably unaware) than to

enjoin them from doing certain acts in

the future. See Scott v. Plante, 691

F.2d 634, 637 (3d Cir. 1982)(Gibbons,

J.)("Obviously the problem of hindsight

-53a-

interference with decisions made by

hard-pressed professional staff members

of state mental institutions is a more

serious one than that of assisting them

in directing prospective injunctive

relief against appropriate state

officials."). The majority ignores this

point, however for its continuing

effects exception imposes’ potentially

significant costs for’ states' prior

acts. The incursion on state sover-

eignty is the same whether the _ state

pays for continuing effects or past

effects, for in either case the state is

forced to pay for its _ acts.

The recent case of Green v. Mansour,

supra, supports my position. In Green,

recipients of federal funds (AFDC) sued

the state official responsible for the

administration of the funds, alleging

violations of various federal statutes.

-54a-

Before the suit was decided, Congress

amended the relevant federal statutes,

and it was undisputed that the program

was properly run from then on. Plain-

tiffs nevertheless sought relief in the

form of (1) a declaratory judgment

stating that the official's conduct had

violated federal law and (2) a notice

sent by the state to all members of the

class advising them that there were

state administrative procedures avail-

able to determine whether they were

eligible for past benefits.

The Supreme Court held that the

requested relief eine barred by the

eleventh. amendment. The Court began its

analysis by restating and strongly re-

affirming the prospective-retrospective

distinction. Green Vv. Mansour, 106

S.Ct. at 426. Then, ‘the Court made clear

-55a-

i call

that as a consequence of the dis-

tinction the eleventh amendment barred

all but the erevention of ongoing

violations of federal laws: "Because

‘notice relief' is not the type of

remedy designed to prevent ongoing

violations of federal law, the Eleventh

Amendment limitation on the Art. III

power of federal courts prevents them

from ordering it as an independent form

of relief." Id. at 427. The Court's

reliance on such well-entrenched

eleventh amendment doctrine in a case

where no more was sought by way of

arguably eetrosgect ive relief than an

order that the state provide notice is

suggestive of the weakness of the major-

ity's position here, for, as explained

above, the majority's position severely

limits and undermines the conceptual

underpinnings of the doctrine.

-56a-

F

‘In addition, what the Green

Court did not say may be as important as

what it did. Cf.A. Doyle. The Silver

Blaze (dog that did not bark provides >

key to case), in The Complete Sherlock

Holmes (1938). The Green dissent criti-

cized the Court's reliance on the pro-

spective-retrospective distinction in

the eleventh amendment context, and in

so doing adopted a position similar :to

the majority's in this case. The Green

dissent stated that "[{tJhe distinction

is hardly so neat as the majority

implies," 106 S.Ct. at 432 n. (Marshall

J., dissenting), and _— supported its

charge be quoting portions of Milliken

I relied upon by the majority in this

case. Compare id. with Maj. Op. at

11-12. The Green dissent may thus

fairly be read as at least exploring a

continuing effects exception derived

-57a-

from Milliken II. The fact that this

line of argument was noted by the Green

dissent and not answered by the majority

implies that the majority was aware of

it, but unpersuaded.

We are left, then, with an

anomaly in the Supreme Court's eleventh

amendment jurisprudence. The majority

deals with the anomaly by ignoring it.

The mawtority simply focuses on Milliken

II and does not consider it in context

with the Supreme Court's other eleventh

amendment cases. By refusing even to

acknowledge the tension between Milliken

II and those other cases, and by blindly

following Milliken MII, the majority

reaches a holding that effectively

overrules, or at least severely limits,

the rest of the cases.

-58a-

As I have indicated above, I

think that this takes Milliken II much

too far. When one decision is so

completely at odds with a whole body of

law as Milliken II is with the rest of

the eleventh amendment cases, the most

appropriate reading is to limit that

case to its facts perhaps more severely

than we would otherwise be inclined to

do. This interpretive rule is derived

from our role as inferior judges in the

federal system: we cannot overturn the

decisions of the Supreme Court, but must

always attempt to harmonize them. When

the harmony is on the whole strong and

clear, as I believe it is in the ele-

venth amendment context, we should make

Sure that any discordant notes are muted.

-59a-

The limitations must be princi-

pled, not arbitrary: it must draw its

essence from the historical context in

which the case arose. In the case of

Milliken II, the historical context is

rich and significant. Milliken II was

part of a long line of Supreme Court

cases dealing with racial desegregation,

and long before Milliken II the Supreme

Court had made clear that racial segre-

gation was a unique blight on our nation

that would be combatted by extraordinary

measures. See e.g. Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S.

1 (1971); Brown v. Bd. of Ed. of Topeka,

347 U.S. 483 (1954). The pronouncements

aan decisions that the Court made during

the fight against school segregation

should not automatically be applied to

Other situations that may not share the

same historical factors that went into

-60a-

the Court's desegregation decisions.

The Court was aware when it was deciding

the school desegregation cases that che

history of Blacks in this country was

unique, and subsequent courts cannot

ignore that fact in interpreting those

cases.

In light of Milliken II's

variance with the rest of the eleventh

amendment jurisprudence, and in light of

the striking historical factors under-

lying Milliken II, I believe that Mil-

liken II should be read as adopting a

continuing effects exception applicable

to racial desegregation cases only, or,

even more narrowly, school desegregation

cases. I admit that no such limitation

is to be found on the face of Milliken

II, but I believe that my reading is

faithful to the spirit of the opinion

-6la-

and the context in which it was writ-

ten. This is not to say, of course,

that every judicial decision concerning

racial matters cannot have precedential

effect beyond the area of race, but

merely, as stated above, that when one

decision is completely at odds with a

whole body of law, as Milliken II is

with the rest of the eleventh amendment

cases, a limited but principled reading

of the case is to be preferred.

Given this reading of Milliken

II, it is clear that the continuing

effects exception does not apply to this

case. The main body ‘of the eleventh

amendment jurisprudence controls, and,

for the reasons stated above, mandates

that Ms. Clark cannot’ predicate her

claim for relief on the historical mis-

treatment that she suffered while at

Laurelton.

-62a-

Ei.

Because I believe that the

eleventh amendment bars Ms. Clark from

receiving the injunctive relief - she

seeks as a remedy for any historical

violations of her due process rights, if

Ms. Clark is entitled to such relief, it

must be because she has a present con-

stitutional entitlement to it, indepen-

dent of any mistreatment she suffered in

the past. I believe that the existence

vel non of such a constitutional en-

titlement, and the extent of such an

entitlement i¢ it exists, are the

central questions on this appeal.

A. Historical Foundation for the

Right to Habilitation

The right to habilitation® of

©Technically, one refers to

“training” or “habilitation" of the

mentally retarded, and "treatment" of

(FOOTNOTE CONTINUED ON NEXT PAGE)

-63a-

the involuntarily ’ Civilly committed

(FOOTNOTE CONTINUED)

the mentally ill. See Youngberg v.

Romeo, 457 U.S. 307, 309 n. 1 (1982);

Note, Beyond Youngberg: Protecting the

Fundamental Rights of the Mentally

Retarded, 51 Fordham L. Rev. 1064, 1074

n.53 (1983). Although the .terms are

frequently used interchangeably, see,

eg., Youngberg, I respect the distinc-

tion and will limit my discussion here

to the right to habilitation.

7Ms. Clark was involuntarily

committed, and I therefore limit this

discussion to the right of the involun-

tarily committed. At least one court

has stated that whether a person was

voluntarily oor involuntarily committed

may influence his or her right to treat-

ment. Doe v. Public Health Trust of Dade

County, 696 F.2d 901, 903 (ilth Cir.

1583) (per curiam). Others, however,

noting the frequent significant mental

deficiencies of the voluntarily civilly

committed, have questioned whether their

consent to confinement was informed, and

therefore whether there is any basis for

treating them differently from those in-

voluntarily civilly committed. See

Association for Retarded Citizens “of

North Dakota _v. Olson, 561 F. Supp.

473, 484 (D.N.D. 1982); Note, The

Constitutional Right to Treatment in

Light of Youngberg v. Romeo, 72 Geo.

L.J. 1785, 1791 (1984).

-64a-

has been the subject of numerous opin-

ions and scholarly articles.° Although

(FOOTNOTE CONTINUED)

8See, e.g., Society for Good Will

to Retarded Children v. Cuomo, 737 F.2d

1239 (2d Cir. 1984); Phillips v. Thomp-

son, 715 F.2d 365 (7th Cir. 1983); Doe

v. Public Health Trust of Dade County,

696 F.2d 901 (11th Cir. 1983) (per

curiam); Scott' v. Plante, 691 F.2d 634

(3d Cir. 1982); Donaldson v. O Connor,

493 F.2d 507 (5th Cir. 1974), vacated

and remanded, 422 U.S. 563 £(1975);

Association of Retarded Citizens of

North Dakota v. Olson, 561 F. Supp. 473

(D.N.D. 1982); Evans v. Washington, 459

F. Supp. 483 (D.D.C. 1978); Gary v.

State of Louisiana, 437 F. Supp. 1209

(E.D.La. 1976); Welsch v. Likins, 373 F.

Supp. 487 (D.Minn. 1974); Stachulak v.

Coughlin, 364 F. Supp 686, 687 (S.D.

Ill. 1973); Davy v. Sullivan, 354 F.

Supp. 1320, 1324-30 (M.D. Ala. 1973) (per

curiam); Wyatt v. Stickney, 325 F. Supp.

781 (M.D. Ala. 1971), aff'd, remanded,

and reversed in part sub. nom. Wyatt v.

Aderhalt, 503 F.2d 1305 (5th Cir. 1974);

Slovenko, The Past and Present of the

Right to Treatment: A Slogan Gone

Astray, 9 J. Psych. & Law 263 (1981);

Spece, Preserving the Right to Treat-

ment: A Critical Assessment and Con-

structive Development of Constitutional

Right to Treatment Theories, 20 Ariz. L.

Rev. 1 (1978); Mason & Menolascino, The

(FOOTNOTE CONTINUED ON NEXT PAGE)

-65a-

the cases and articles have not coa-

lesced into a unanimous”~ position, a

consensus has developed among the lower

courts that the involuntarily civilly

committed do have a right to habilita-

tion. There are two principal theories

concerning that right, the quid pro quo

theory and the parents partrice

theory.” I shall describe them both

here.

(FOOTNOTE CONTINUED)

Right to Treatment for Mentally Retarded

Citizens: An Evolving Legal and Scien-

tific Interface, 10 Creighton L. Rev.

124 (1976); Birnbaum, The Right to

Treatment, 46 A.B.A.J. 499 (1960); Note,

72 Geo. L.J. 1785; Note, 51 Fordham L.

Rev. 1064; Note, Developments in the Law

- Civil Commitment of the Mentally Ill,

87 Harv. L. Rev. 1190 (1974). See

enerall 31 Stan. L. Rev. 541-825

11575) _ am on mental retardation

and the law).

°9There are two other theories of

the right to habilitation that I do not

consider here. First, the least re-

strictive alternative theory, relied

upon by the court in Rone v. Fireman, 473

(FOOTNOTE CONTINUED ON NEXT PAGE)

-66a-

(FOOTNOTED CONTINUED)

F. Supp. 92, 125 (N.D. Ohio 1979) and

endorsed in Spece, Justifying

Invigorated Scrutiny and the Least

Restrictive Alternative As a _ Superior

Form of Intermediate Review: Civil

Commitment and the Right to Treatment As

a Case Study, 21 Ariz. L. Rev. 1049

(1979), requires treatment on the

grounds that the involuntarily civilly

committed have a right to live in the

least restrictive setting possible and

treatment is necessary to effectuate

that goal. This argument has_ been

effectively foreclosed by this court's

decision in Rennie v. Klein, 720 F.2d

266 (1983)(en banc) in which six judges

endorsed the view that Youngberg v.

Romeo, 457 U.S. 307 (1982), made least

alternative analysis inapplicable to the

involuntarily civilly committed. I

discuss Youngberg briefly infra at 23.

Second, the incarceration due to

status theory holds that, unless they

are afforded treatment, the involun-

tarily civilly committed would be

indistinguishable from criminals incar-

cerated for no crime; mental illness or

impairment would be effectively status

crimes, which violate the eighth amend-

ment, see Robinson _v. California, 370

U.S. 660, 666-67 (1962). See Welsch v.

Likins, 373 F. Supp. at 496 (endorsing

this theory); Martarella v. Kelly, 349

(FOOTNOTE CONTINUED)

-67a-

1. The Quid Pro Quo Theory --

At the outset, it is important to

distinguish the two sowers pursuant to.

which a state may involuntarily civilly

commit a person. The state may commit

someone to involuntary civil confinement

using its police power or its power of

parens patriae. See Herman, Barriers to

Providing Effective Treatment: A Cri-

tique of Revisions in Procedural, Sub-

F. Supp. 575, 599 (S.D.N.Y. 1972)

(same). The two problems with this

theory are (1) it is -doubtful that the

eighth amendment has any force outside

of the criminal context, see Ingraham v.

Wright, 430 U.S. 651, 664-71 (1977);

Youngberg v. Romeo, 644 F.2d 147, 156

(3d. Cir. 1980)(en banc), vacated and

remanded, 457 U.S. 307 (1982); and (2)

even if the eighth amendment does extend

beyond the’ criminal context, | eS

doubtful that failure to treat is “pun-

ishment" proscribed by that amendment.

See Garvey, Freedom and Choice in

Constitutional Law, 94 Harv. L. Rev.

1756, 1708-89 n.140 (1981).

-68a-

Stantive, and Dispositional Criteria in

Involuntary Civil Commitment, 39 Vand.

L. ow. 83, 85 (1986). Under the police

power, the state may confine people who

are dangerous to others. The parens

patriae power, by contrast, allows the

state to confine people who, although

not dangerous to others, are in need of

care or treatment. The quid pro quo

theory applies to any involuntarily

civilly committed person; the parens

patriae theory applies, as its name

would suggest, only when the_~= state

involuntarily civilly commits someone

pursuant to its parens patriae power.

The premise of the quid pro quo

theory is that any involuntary com-

mitment, civil or criminal, entails a

“massive curtailment of liberty."

Humphrey v. Cady, 405 U.S. 504, 509

(1972). Although the infringement on

-69a-

=

liberty is the same in criminal and

civil commitment, the circumstances sur-

rountins the two situations are quite

different. When people are incarcerated

for criminal acts, the curtailment of

liberty is not unconstitutional because

(1) the curtailment is attended by ex-

tensive procedural safegaurds mandated

by the Constitution, and (2) the cur-

tailment is for a specific offense for

which the incarcerated person was

responsible; there is thus some sense in

which he or she deserves, or has con-

sented to, the curtailment of his or her

liberty. |

By contrast, those who are civilly

committed have usually not been pro-

tected by the panoply of procedural

safeguards found in the criminal system,

-70a-

and they have not committed any acts

that could justify their confinement.

Civil involuntary commitment is there-

fore constitutionally problematic, and

to justify it the state must give the

Civilly committed persons something in

exchange for their loss of liberty. As

explained by Judge Alvin B. Rubin in

Gary W. v. State of Louisiana, 437 PF,

Supp. 1209, 1216 (E.D. La. 1976), aff'd

on other grounds, 601 F.2d 240 (Sth Cir,

1979):

Long-term detention of

an individual is ordi-

narily a denial of due

process except when he

has been proved, in a

proceeding subject to

the rigorous constitu-

tional limitations of

the due process clause

and the Bill of Rights,

to have committed a

Specific act defined

as an offense against

the state, and for which

-7la-

incarceration is per-

mitted for a fixed term

only. If an individual,

adult or child, healthy

or ill, is confined by

the government for some

reasons other than his

commission of a criminal

offense, the state must

provide some _ benefit to

the individual in return

for the deprivation of

his liberty.

(emphasis added).

According to the guid pro quo

theory, due process dictates that the

benefit to which the involuntarily

civilly committed are entitled is

habilitation to enable them to leave

their commitment. Just as one confined

for civil contempt of court must have

the keys to- the jailhouse in his

pocket," so those involuntarily civilly

committed must be provided with the

means to end their commitment, otherwise

civil commitment would be equivalent to

placement in “a penitentiary where one

-72a-

could be held indefinitely for no

convicted offense." Ragsdale v. Over-

holser, 281 F.2d 943, 950 (D.c. Cir.

1960) (Fahy, > concurring). Habil-

itation is the constitutionally required

guid pro quo for civil confinement,

hence the name of the theory. See Note,

72 Geo.L.J. at 1790-93 (identifying and

discussing the quid pro quo theory of

right to treatment). )°

10 see also Donaldson v. O'Connor, 49

3 F.2d at 522:

[W]hen the .. ,

limitations on the

government's power to

detain [that constrain

the government in the

criminal context] are

absent, there must be a

quid pro quo extended by

the government to just-

ify confinement.

(FOOTNOTE CONTINUED ON NEXT PAGE)

-73a-

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2. The Parens Patriae Theory

-- The derivation of the right under the

parens patriae theory is quite

straight-for-ward. Simply put, the

argument is that it violates the tenets

of fundamental fairness embodied in the

due process clause for the state to

deprive a person of her or his liberty

for the stated purpose of training that

person, and then to fail even to attempt

to give training. As eloquently

explained by Judge Frank M. Johnson,

Jr.: "To deprive any citizen of his or

her liberty upon the altruistic theory

And the quid pro quoO most commonly

recognized is the provision of rehabil-

itative treatment, or, where rehabilita-

tion is impossible, inimally adequate

habilitation and care, beyond the

subsistence level custodial care that

would be provided in a penitentiary.

(footnotes spetied).

-74a-

that the confinement is for humane

therapeutic reasons and _ then fail to

Provide adequate treatment violates the

very fundamentals of due process,"

Wyatt v. Stickney, 325 F. Supp. at 785.

Judge John Minor Wisdom made

the same point in the first decision by

a Court of Appeals to adopt the parens

Patriae theory:

[Where] the rationale

for confinement is the

“parens patriae" ration-

ale that the patient is

in need of treatment,

the due process clause

requires that minimally

adequate treatment be in

fact provided. This in

turn requires that, at

least for the nondan-

gerous patient, consti-

tutionally minimum stan-

dards of treatment be

established and enforced.

Donaldson vy. O'Connor, 493 F.24 at Fei.

See also Woe v. Cuomo, 729 F, 24a 96, 105

-75a-

(9a. Cir.}{*if “tne justification for

commitment rests, even in part, upon the

need for care and treatment, .. . then

a State which commits must also treat."),

cert. denied, U.S. , 4105 SCE.

339 (1984); Johnson v. Solomon, 484 F.

Supp. 278, 300 (D.Mad., 1979) ("The right

to treatment, then, is but the corres-

ponding obligation of the state in light

of its right to exercise its parens

patriae power over its citizens.")

(footnote omitted); Welsch v. Likins,

373 F. Supp. at 499 ("civil commitment

for reasons of mental retardation [must]

be accompanied by minimally adequate

treatment designed to give each committed

person a realistic opportunity to be

cured or to improve his or her mental

condition’ Wyatt v. Stickney, supra, 325

F. Supp. at 784.").

-76a-

Although the Supreme Court has

not had occasion Specifically to address

this theory of a state's obligations tio

those it commits Pursuant to its parens

Ppatriae power, in Jackson v. Indiana,

406 U 715, 738 (1972), the Court enun-

Clated a rule that gives strong support

to the theory. In Striking down a state

law that permitted the state to confined

indefinitely a mentally deficient deaf

mute adjudged incompetent to stand

trial, the Court Said: "At the least,

due process requires that the nature and

duration of commitment bear some reason-

able relation to the purpose for which

the individual is committed." This logic

Supports the parens patriae theory, for,

as Judge Wisdom explained, "[{iJf the

‘purpose' of commitment is treatment,

and treatment is not Provided, then the

-77a-

'nature' of the commitment bears no

reasonable relation’ to its ‘purpose, '

and the constitutional rule of Jackson

tg violated." Donaldson, 493 F.2d at

521. See also Youngberg v. Romeo, 45/7

U.S. 307, 325-26 (1982)(Blackmun, J.,

concurring).

3. Ms. Clark's Right to Habil-

itation -- Ms. Clark was involuntarily

civilly committed, and the quid pro quo

theory therefore applies to her case.

In addition, as there is no indication

in the record that Ms. Clark was, at the

time of her initial ‘confinement or at

any time thereafter, a threat or danger

to anyone in society, the state must

have been acting at all times under its

parens patriae authority in detaining

her. The parens patriae theory is

therefore also applicable. I thus

conclude that, at all times when she was

-78a-

or will be! involuntarily committed,

Ms. Clark had and will continue to have

a constitutional right to habilitation

under both the guid pro quo and the

Parens patriae theories.

B. The Extent of the Right to

Habilitation

Like all constitutional rights,

the right to habilitation of involuntar-

ily Civilly committed persons is not

absolute. The courts’ must therefore

determine how strong a right it is. I

shall not Propose a comprehensive answer

llas f explain below, even though

she is Currently at the CLA, Ms. Clark

is still involuntarily committed.

Because it is the mere fact of invol-

untary civil commitment that creates the

right to treatment, Ms. Clark has a

right to habilitation whether she is at

Laurelton or at a CLA.

-79a-

to that question here, for I believe

that the answer will come about only as

a result of case-by-case analysis and

development. Rather, I shall propose

and defend a limited right to treatment,

based on Justice Blackmun's concurring

opinion in Youngberg v. Romeo, 457 U.S.

307, 325 (1982), that is sufficient to

decide the case at hand.

Le Jus ice Blackmun's Con-

currence: The Non- Deterioration Prin-

ciple -- Before considering Justice

Blackmun 's concurring opinion in

Youngberg v. Romeo, supra, it would be

best to summarize the majority's opinion

in that case. In Youngberg, the Supreme

Court held that a severely retarded,

involuntarily civilly committed man had

a due process right to such training or

habilitation as was required in light

of [his] liberty interests in safety and

-80a-

freedom from unreasonable restraints."

457 U.S. at 322. This is "such training

aS an appropriate professional would

consider reasonable to ensure [the

patient's] safety and to facilitate his

ability to function free from bodily

restraints." Id. at. 324. Youngberg

dealt exclusively with training related

to physical restraints; the Court

expressly stated that it was neither

considering nor ruling on any broader

right to habilitation. Id. at 316 & n.

19; id. at 318 & n.23.

Justice Blackmun, in a concurrence

joined by Justices Brennan and O'Connor,

agreed that no broader right to habili-

tation was before the Court. Id. at

326-27 (Blackmun, Jr., concurring). He

suggested, however, that an involun-

tarily civilly committed person might

-8la-

have a due process right to such train-

ing as is necessary to preserve his or

her self-care skills, i.e., to prevent

them from deteriorating during the

person's commitment.

If a person could demon-

strate that he entered a

state institution with

minimal self-care skills,

but lost those skills

after commitment because

of the State's unreason-

able refusal to provide

him training, then, it

seems to me, he has

alleged a loss of

liberty quite distinct

from -- and as_ serious

as -- the loss of safety

and freedom from un-

reasonable -restraints.

For many mentally re-

tarded people, the

difference between the

capacity to do things

for themselves within an

institution and total

dependence on the insti-

tution for all of their

needs is as much liberty

as they ever will know.

-82a-

Id, at 327 (Blackmun, J., concurring).

I shall refer to this as the non-deteri-

oration principle. Although Justice

Blackmun merely suggested the non- —

deterioration principle and did not

definitively endorse it, id. ‘at 329

(Blackmun, J., concurring), other courts

have endorsed the principle. See

Society for Good Will to Retarded

Children v. Cuomo, 737 F.2d 1239, 1250

(2d Cir. 1984); Lelsz v. Kavanaugh, (N.D.

Tex. March 4, 1986) (No. 3-85-2462-H

Civ.); Association for Retarded Citizens

of North Dakota v. Olsen, 561 F. Supp.

at 487.

I, too, would endorse the non-

deterioration principle. Liberty is

more than merely the absence of physical

-83a-

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confinement; as the Supreme Court's

privacy cases make clear, the right of

liberty is a right to personal autonomy,

see, e.g-, Carey V- Population Servs.

tt'l, 431 U.S. 678, 693 n.15 (1977);

Whalen v. Roe, 429 U.S. 589, 599-600 &

n.26 (1977); Roe v. Wade, 410 U.S. 113,

153 (1973). See also Garvey, Freedom

and Choice in Constitutional Law, 94

Harv. L. Rev. 1756, 1760 (1981). The

mentally disabled cannot have meaningful

autonomy, and hence meaningful liberty,

without basic skills; therefore, for the

State to allow disabled persons' skills

to deteriorate is as sure a denial of

their liberty as is their confinement to

an institution. It is indeed a sad fact

that for many mentally disabled people

self-care skills are “as much liberty as

-84a-

they ever will know. " Youngberg y,

Romeo, 457 U.S. at 327 (Blackmun, J.,

concurring). The right to habilitation

would be a nullity if that right did not

extend even to prevent the deterioration

Of people's skills.

Re The Modified Non-Deter ioration

Principle -- I am concerned by a poten-

tial limitation raised by one aspect of

the non-deterioration Principle, and

therefore I wish to set forth my under-

Standing of the contours of the

principle. Consider a patient who is

committed at an early age, who remains in

confinement for a Significant period of

time, but whose self-care skills might

have improved even if she had never been

committed. (This example is not merely

hypothetical; as will be seen below, it

pertains to the case before us.) Under a

-85a-

restrictive interpretation of the non-

deterioration principle, the state would

be bound merely to assure that that

person's skills did not deteriorate

below the level at which they were when

she or he entered the state insti-

tution. It seems to me, however, that

the state should be required to provide

such a person with at least such train-

ing as would match the improvement that

she or he would have experienced if

never committed. The reasoning behind

this position is analogous to the

reasoning supporting the non-dete-

rioration principle: by committing

people and preventing them from

developing self-care skills, the state

is effectively depriving them of the

opportunity to develop and exercise

their autonomy. This is a deprivation

of their due process right to liberty.

-86a-

I thus endorse a modified non-deterio-

ration principle: involuntarily civilly

committed persons have a right to

treatment sufficient to develop their

self-care skills to at least the level

at which they would be if the. persons

had not been institutionalized.

3 Application of the Modified

Non-Deterioration Principle -- As the

majority notes, the district court found

that "“[b]Jut for the then well-intention-

ed intervention of the state, Ms. Clark

would most likely have lived an average

life," 613 F. Supp. at 707 (quoted in

Maj. Op. at 8-9). That finding was not

clearly erroneous. The majority also

points to the stipulation that according

to the very experts at the Laurelton

Center, the barriers to Ms. Clark's

entering society without supervision

arose primarily on account of her long

institutionalization. Maj. Op. at 9.

-87a-

ee

The conclusion to be drawn from these

observations is that if Ms. Clark had

not been institutionalized, she would

have developed into a functioning member

of society who would need no, or

minimal, supervision. Because her

institutionalization has led to her

debilitation, the modified non-deterio-

ration principle requires the state to

provide Ms. Clark, who remains involun-

tarily committed, albeit to a CLA, see

infra, with training and treatment

sufficient tc put her in the position in

which she would have been had she never

been institutionalized. Because it

appears from the numerous, uncontra-

dicted doctors' reports in the record

that placement in a CLA is the only or

best way for Ms. Clark to receive the

training that she is due, I believe that

she has a right to placement in the CLA,

until she had acquired the skills_ she

-88a-

would have had she never been institu-

tionalizea, }?

l2muy conclusion is at odds with

that of the Seventh Circuit in Phillips

Vv. Thompson, 715 F.2q 365, 367 (1983),

Which held that involuntarily Civilly

committed mentally disabled People had

no due process right to live in a con-

munity program, like the CLA at issue

here. (Although only voluntarily

Civilly committed persons were involved

in Phillips, the court analyzed the case

as 1f they had the same rights’ as

involuntarily committed Persons.) The

Phillips court based its conclusion on

an incorrect reading of Youngberg vy.

Romeo according to which Youngberg meant

that involuntarily committed people had

a right to treatment Only insofar as the

treatment was necessary to support their

freedom from Physical constraints. See

7U5 F.2d 367-68. as f[ pointed out,

supra at » this position is simply

incorrect; Youngberg expressly stated

that it was not concerned with the

to treatment. 457 U.S. at 316 ¢ n.19;

id. at 318 & n.23. Also worthy of note

Is Society for Good Will to Retarded

Children _v. Cuomo, 737 F.2d 1239 (24

Cur s 1984), which adopted Justice

Blackmun 's nondeterioration Principle,

see supra at —_.. but vacated that part

( FOOTNOTE CONTINUED ON NEXT PAGE)

-89a-

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Because this is such a complicated

area of law, I wish to make clear three

questions I am not addressing in this

opinion. First, I do not decide whether —

the right to habilitation survives the

release of the involuntarily committed.

This issue is irrelevant to Me. Clark,

for although the CLA is far less

restrictive than Laurelton Center, it

(FOOTNOTE CONTINUED)

of the district court's order requiring

the community placement of certain

patients. 737 F.2d at 1251. That por-

tion of Society for Good Will is dis-

tinguishable from this case, for _ the

Society for Good Will court expressly

found that “Linstitution] residents are

not unduly restrained by residing at

[the institution]." Id. at 1251. Here,

by contrast, the uncontradicted evidence

is that Ms. Clark cannot reach the level

she would have reached had she never

been institutionalized -- that is, she

cannot enjoy her full right to liberty

-- without placement in the CLA. That

crucial difference distinguishes Society

for Good Will ‘from this case. To the

extent that Society for Good Will is not

distinguishable, I think it wrongly

decided.

-90a-

appears from the record that Ms. Clark

is still involuntarily committed even

while at the CLA. The district court's

order compelling the state to fund Ms.

Clark's CLA placement made no change in

her status as an involuntarily Civilly

committed person. The ‘record reveals

that Ms. Clark cannot leave the CLA

permanently without permission, and that

she is not free to enjoy all lawful

activities. Ms. Clark has therefore not

been released. It is not clear, how-

ever, whether persons have rights to

habilitation once they are released.

The reasons they might not is seen from

the justification for the right’ to

habilitation: because’ the right to

habilitation is derived from the liberty

infringement caused by involuntary

confinement, once a person is no longer

in the state's custody, he or. she may

-9la-

ae

FE have no more right to habilitation.

Furthermore, the eleventh amendment

would prevent him or her from suing in

federal court to vindicate the right

that he or she had before release, for

that would be a suit for vindication of

an historical violation of rights. See

supra part I.

Despite its apparent logic,

this position may work a very unfair

result. Were it to prevail, the state

could release someone to whom it owed a

grave obligation, and then hide behind

its eleventh amendment shield to avoid

that obligation. One sokneson may be to

hold that although the right to habili-

tation derives from the involuntarily

committed person's deprivation of

liberty, it survives the termination of

* that deprivation. Thus, for example,

one might argue that one has the right

-92a-

conferred by the modified non-deterio-

ration principle until that right is

satisfied, regardless of where the

right-holder may be. I need not

consider here the ultimate success of

such an argument .+3

Second, in enunciating the

modified non-deterioration principle, I

leave open the question whether’ the

involuntarily Civilly committed have a

right to even greater habilitation than

the modi fied non-deterioration principle

would allow. It might be argued, for

example, under the theories discussed

13t also leave Open whether. the

continuing right would Obtain pursuant

to both the parens patriae and guid pro

quo theories. Whereas’ the continuing

right to habilitation is clearly com-

patible with the parens patriae theory,

it would appear that by its very nature

the guid pro quo theory supports a right

to habilitation Only during the time of

actual civil involuntary commitment.

-93a-

ay

here or some other theory of habili-

tation, that the involuntarily civilly

committed have a right to as much

habilitation as their capacity will

allow. Alternatively, one might argue

that all involuntarily civilly committed

persons are entitled to treatment up to

an absolute level, regardless of their

status upon entrance to the institu-

tion. Because Ms. Clark was only

slightly retarded, I need not consider

these questions in her case.

Third, and integrally related

to the second question, is the question

of cost. How much should the state be

forced to pay on behalf of each person's

habilitation? Must the state pay exor-

bitant costs, even if they are greatly

in excess of the value of any improve-

ment? Such a requirement might create a

significant burden on state treasuries.

-94a-

Once again, I need not address this

issue, for one of the perversities of

this eaee is the district court's

non-clearly erroneous finding that it -

would have cost the state less to put

Ms. Clark in a CLA than to keep her at

Laurelton.

ete

I believe that that eleventh

amendment prevents Ms. Clark from

receiving compensation for any alleged

violations of her constitutional rights

during her confinement at Laurelton

Center, and that the ma jority therefore

erred in finding to the contrary. I

further believe that the due Process

clause affords Ms. Clark a right, for as

long as she is involuntarily committed,

to at least as much treatment as is

necessary to assure’ that her self-care

-95a-

q skills develop as well as_ they would.

have if she had never been committed.

This right mandates her placement in the

CLA. I therefore concur in the judgment

of the court.

A True Copy:

Teste:

Clerk of the United States

Court of Appeals

for the Third Circuit

-96a-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CAROLYN CLARK CIVIL ACTION

vs.

WALTER COHEN,

et al. No. 84-3383

OPINION

HUYETT, J. JUNE 20, 1985

Presently pending before me is

Plaintiff's motion for equitable re-

lief. For the reasons set forth in the

following findings of fact, discussion,

and conclusions of law, this motion will

be granted.

-97a-

I. FINDINGS:OF FACT

Because the parties have

entered into a very comprehensive

stipulation of the facts of this tragic

case, I will provide only a brief

summary of the relevant fact. The

following narrative together with the

stipulation constitute my findings of

facts.

Plaintiff is forty-four years

old. She has spent her entire adult

life at Laurelton Center ("Laurelton"),

a state institution for the mentally

retarded, after she whe committed there

in 1956 at the age of fifteen. At the

time of her commitment plaintiff had

been taken from the custody of her

family. There are suggestions in the

record and among the documents from her

-98a-

file at Laurelton that Plaintiff's

family life prior to her commitment was

tempestous and disruptive to her devel-

opment. A petition for plaintiff's

commitment tnians to § 326 of the

Mental Health Act of 1951, as amended,

70 6PLB. 6 6 6§ «(1071 et seg., repealed by

Mental Health and Retardation Act of

1966, 1966 Pa. Laws 96 (codified at 50

Pa. Stat. Ann. $§ 4101-4704 (Purdon

1969)), was filed on November 8, 1956

and approved by the court the next day.

Plaintiff did not have a hearing in

connection with her commitment nor did

she receive notice of — petition.

On November 11, 1956 plaintiff

was transported to Laurelton, a residen-

tial institution located in Union County,

Pennsylvania which houses approximately

350 mentally retarded persons. It is at

least four hours from Philadelphia. At

-99a-

the time of her commitment, plaintiff

was a resident of Philadelphia and still

has family there. She has not seen them

for approximately six years.

Although plaintiff was de-

scribed as "severely defective" in the

commitment petition in 1956, tests

administered to her soon after her

admittance at Laurelton revealed that

she is in the mild range of mental

retardation with an IQ of roughly 60.

Her IQ tests have remained fairly

constant since that time. Her IQ is

much higher than the vast number of

Laurelton residents and plaintiff

functions at a much higher level than

most of her companions at Laurelton.

Soon after she was’ sent to

Laurelton, plaintiff expressed her

displeasure with being committed there

-100a-

against her will. She has continued to

protest her detention there up to the

present time. Despite these protests,

plaintiff never received a hearing ©

regarding the propriety of either her

initial commitment or her’ continued

residence at Laurelton. Her efforts,

however, to obtain a hearing have been

unstinting at least since 1981.

Durind her almost thirty years

at Laurelton, the law regarding the

treatment and rights of mentally ill and

mentally retarded people has changed

dramatically. The statute under which

plaintiff was ox tetaaie committed was

repealed and replaced in 1966. Plain-

tiff's commitment was then deemed by the

Commonwealth to be equivalent to one

under the new statute. In 1976, a three

judge panel declared § 406 of the 1966

-10la-

Act--the section dealing with involun-

tary commitments--unconstitutional. In

spite of these events and in spite of

the fact that plaintiff reached maturity

in 1962, plaintiff never received a

hearing. It appears from the testimony

of James Pelter that the Commonwealth's

Department of Public Welfare ("DPW") has

no formal procedure under which persons

committed indefinitely are given

hearings to review their commitments.

An average hearing pursuant to § 406 of

the 1966 Act held in Union County costs

approximately $132.

In April, 1984, Elizabeth

Keister a Laurelton employee, prepared a

petition requesting authority to detain

plaintiff pursuant to § 406 of the 1966

Act. In that petition, Keister stated:

-102a-

“Carolyn was admitted to Laurelton

Center on November 15., 1956, under

section 326 of the MH/MR Act of 1951, as

amended in 1954, This commitment has _

never been reviewed in Ms. Clark's 28

years at Laurelton Center. Ms. Clark is

mildly retarded, possesses all self-care

skill and basic academic skills. Ms .

Clark is requesting placement in a com-

munity residential facility or a review

of her commitment. The least restric-

tive environment for Ms. Clark would be

a structured community living arrange-

ment and day program. Due to her long

institutionalization she could not live

independently at this time." This

petition was never filed.

Although plaintiff has remained

at Laurelton since her commitment in

1956, the staff at that facility, in-

cluding piaintiff's treatment team, has

-103a-

Oe oN eee ee Ce ley) ee

ee oe ee ee ee oY

agreed, at least since 1976, that she

should be placed in a community living

arrangement ("CLA"). All of the _ pro-

fessionals who testified at the hearing

on this matter voiced this same opinion.

The stipulation details the various

steps that have been taken in order to

convince those in power to place plain-

tiff in a CLA. All of these efforts

were to no avail.

A CLA consists in most general

terms of a small residential group

composed of mentally retarded people who

function at similar levels. These

individuals live in a house within the

community and receive intensive super-

vision and training in ‘those behaviors

and skills necessary to function inde-

pendently within the community. A CLA

1s designed to allow a mentally retarded

person to live in a setting which is as

-104a-

close to a "normal" one as possible.

They are also designed to allow for more

community interaction and interaction

with nonretarded persons than is an

isolated institution such as Laurelton.

Plaintiff has continually sought places

ment in some form of CLA since at least

1976. She continues to want such a

placement very much.

James McFall testified on be-

half of plaintiff at the May 28, 1985

hearing. McFall is qualified as an

expert in the field of psychology.

Although he does not possess a doctoral

degree in that field, he has completed

all of his degree requirements. except

for his dissertation. In addition, he

has extensive work experience in the

treatment of mentally retarded persons.

-105a-

In his opinion, there are no contradici-

tions to a placement in a CLA for plain-

tiff. He testified that in his expe-

rience, plaintiff functions at a higher

level than many of those currently plac-

ed in CLAs in Philadelphia. He de-

scribed plaintiff as at "the highest

functioning levels of any of my clients."

Dr. Paul Spangler also testi-

fied on behalf of plaintiff. He holds a

doctoral degree in psychology and has

extensive experience in the treatment of

the mentally retarded. I find him to be

qualified as an expert in the field of

psychology. Spangler opined that plain-

tiff should be placed into a CLA as soon

as possible. He noted that many people

who function at a level below plain-

tiff's are already either in a struc-

tured CLA or in some other form of

community residence. He stated that in

-106a-

1985 it was unusual to see someone like

plaintiff in a large institution like

Laurelton.

Spangler also described a CLA

program that has been developed by

de fendant County of Philadelphia. !

This program, known as a Teaching Family

Home, would allow plaintiff to share a

home with a small number of other men-

tally retarded people and a husband and

wife team of trained psychologists. fThis

lBefore the hearing was held on

this matter, plaintiff reached a set-

tlement with those defendants employed

by the County of Philadelphia and the

private defendants concerning her motion

for preliminary relief. Under this set-

tlement, the County has planned and de-

veloped a CLA placement for plaintiff

which could be implemented within 120

days of the date of an order from this

court if the Commonwealth provides funds.

-107a-

a

team would be augmented by one or two

other staff members from time to time,

thus bringing the staff to patient ratio

to approximately one to one. This is a

much higher ratio than is available at

Laurelton. Spangler stated that in his

opinion, plaintiff would spend approx-

imately two years in such a placement,

then two years at a minimal supervision

CLA, and then live independently with

some backup support. The costs of this

program would be $56,000 per year for

the Teaching Family Home, $20,000 to

$25,000 per year for the minimal super-

vision CLA, and approximately $4,000 per

year for the necessary backup support

after that. By contrast, it costs the

Commonwealth approximately $40,000 to

$48,000 per year to maintain plaintiff

at Laurelton.

-108a-

Spangler and McFall also testi-

fied that the Opportunities for growth

and training at a CLA far exceeded those

avallable at Laurelton. Although some

aspects of these opinions were disputed

by witnesses for the defendants, I find

that Spangler and McFall were credible

expert witnesses’ and I credit their

Opinions regarding the relative merits

Of life at a CLA and Laurelton. It is

unconiroverted that certain aspects of

CLA life Simply cannot be duplicated at

Laurelton. For example, because of its

remote setting, the degree of community

involvement at Laurelton will never be

as great as that in a CLA. Neither will

Plaintiff be able to practice the food

Preparation she would be able to prac-

tice in a CLA.

-109a-

GRRE,

Indeed, many attributes of a

CLA make it far superior in every way to

institutionalization for someone 1ike

plaintiff. At Laurelton, plaintiff

shares a "room" with two other women.

This room is actually a small part of a

much larger room that has been divided

into small bedroom areas with partitions

that are three-quarters of the height of

the ceiling. Plaintiff testified that

there are no doors in her cottage at

Laurelton, even on the bathroom. Plain-

tiff has little ability to structure her

sleeping time at Laurelton. She testi-

fied that there was a "curfew" imposed

with a strict eleven o'clock "lights

out" policy. In addition, she testified

that she would like to be able to shop

for her own clothes in the community and

-110a-

ee

to do her own food shopping and prepara-

tion. Mr. McFall testified that plain-

tiff cannot do any of these things while

she remains at Laurelton. At the very

least, she is unable to engage in the

full range of these activities while at

Laurelton.

In addition, although work

activities are available at Laurelton,

it is obvious that they are not of the

Same variety as those available to her

in the community. Plaintiff stated her

strong desire to work and earn money

which she obviously enjoys spending.

This motivation was considered a strong

factor by both McFall and Spangler in

their conclusions that Plaintiff would

make a good candidate for a CLA.

Plaintiff obviously desires to

be placed in a CLA very much. Indeed,

both McFall and Spangler testified that

-llla-

¥

s

es

ie

4

a

a

Bi

is *

2

5

a

the failure to place her in such a pro-

gram has made her so frustrated that her

behavior has deteriorated. McFall

testified that plaintiff's self-esteem

has been adversely affected by her

continued stay at Laurelton especially

in light of the fact that many of her

former friends who functioned at similar

levels as she does have left for CLAs.

There was additional testimony that

plaintiff's behavior is in a "downward

spiral" as a result of her continued

frustration at remaining at Laurelton.

This testimony was, however, strongly

contested by staff members of

Laurelton. The Superintendent of

Laurelton, defendant S. Reeves Powers,

testified that plaintiff's behavior has

always been variable and that she

frequently became more aggressive for

periods of time. He stated that her

-112a-

behavior has not gotten consistently

worse over the _ years. He admitted,

however, that a continued stay at

Laurelton would cause her emotional harm. ©

Kay Stewart, who is employed at

Laurelton as a Psychological services

associate, supported Powers's view of

Plaintiff's behavior. Indeed, she

testified that plaintiff's behavior has

gotten better since 1981. I believe,

however, that Stewart's testimony does

not deserve much weight. She does not

hold a degree in psychology per se and

is not licensed in that field. She

professed that she did not have deep

background in the Psychological

literature, Moreover, I found that her

testimony was. often self-serving and

that at times it Was not forthright.

For example, she relied on Exhibit C-15

which is a bar graph showing Plaintiff's

-~ll3a-

EE EEE,

“continued stay assessment" scores over

time. This exhibit was admitted to show

that plaintiff's scores did not decline

over time. The 1985 score was, however,

made on the basis of a new test and

could not be compared with earlier

scores. On cross-examinations, Stewart

admitted that the inclusion of this

score in C-15 and her reliance on it

were "unfair". For these reasons, I

find that Stewart's testimony should be

given little weight. I do, however,

believe that those with the closest

ability to observe plaintiff over a long

period of time have in best ability to

assess any changes in her behavior. I

therefore must conclude that there have

not been any long term trends in her

behavior as a result of her being denied

a CLA.

-114a-

To understand fully the

circumstances which have given rise to

plaintiff's present Plight, it is

necessary to sketch briefly the >

complicated relationship between local

and state authority and responsibility

in the provision of services to mentally

retarded citizens, Both areas of

government have some responsibility in

this area. The responsibilities of the

state include: ensuring the availability

Of adequate mental retardation services

to all those who need then; making and

enforcing regulations to implement the

Mental Health/Mental Retardation Act;

consulting with the various counties and

assisting them in Carrying out their

mental retardation functions; Operating

State facilities, and Supervising mental

-115a-

FARES Se LS Ee ache a Ati dal aca Aa ee Bak

5 ee

La

retardation facilities, services, and

programs. The counties (and with

respect to this action, Philadelphia

County) have the duty to cooperate with

the state to ensure that services are

available.

In addition, defendant Surles,

who is the Mental Health and Mental

Retardation Administrator for the County

of Philadelphia, is responsible for

establishing an organizational unit or

units consisting of multi-disciplinary

professional staff capable of providing

and planning appropriate services’ for

mentally retarded persons in need of

such services from the county. These

organizational units are known as "Base

Service Units" ("BSUs"). The County has

contracted with several BSUs each of

which serves individuals from a different

-116a-

LS et oo ean meme Senne eee ee

area of the City of Philadelphia.

De fendant Centralized Comprehensive

Human Services, Inc. Operates the John

F. Kennedy Community Mental Health and

Mental Retardation Center ("JFK MH/MR")

which is the BSU responsible for serving

Plaintiff. The obligations of JFK MH/MR

are described in some detail in the

Stipulation of facts and I will not

recite them here. It is unfortunate,

but true, however, that although

nominally responsible for the provision

of services to plaintiff, JFK MH/MR

apparently has no records in its pos-

session concerning Plaintiff from the

time of her commitment until 1976.

Since 1976, however, plaintiff's BSU has

been repeatedly advised by Laurelton

staff that plaintiff should not be

institutionalized and should be placed

-1l17a-

in a CLA. JFK MH/MR, in fact, attempted

to have Philadelphia's mental health and

mental retardation program arrange a CLA

placement for plaintiff. Like all other

attempts to transfer plaintiff from

Laurelton, however, this never resulted

in any change in plaintiff's treatment.

Although all the available

professional opinion strongly favors a

CLA for plaintiff, and has for the last

nine years, plaintiff remains at

Laurelton. The primary forces’ which

have kept her there appear to be

bureaucratic ineptitude and insufficient

allocations of funds to community

residence programs. Mr. Paul Hindman

testified at the May 29, 1985 hearing

regarding the process by which mental

retardation services are funded by the

state. He is currently director of the

DPW's Bureau of Planning and Resource

-118a-

a

Allocation. He testified that DPW has

allocated approximately $500 million for

mental retardation services for the

present fiscal year and that over

one-half of this money goes to state

institutions. Only 23% goes to

community residential Programs. He also

testified that each year some of the

money allocated to the counties for

community residential Programs is not

spent. These “Carryover funds" are then

reallocated during the next fiscal year

to Other counties, DPW has the

discretion to reallocate this Carryover,

at least to some degree. In spite of

the fact that Plaintiff's Plight has

been known by those at Laurelton, JFK

MH/MR, and the County for many years,

Hindman testified that no money has ever

-119a-

en eens eee

rarer Se fe ee Ba ee ep oe eee er o ee eee ee ae a ae a ee _ ‘ *

-cateielecteataciens " DLE K, e AREOMEG A AREAS, TE ais PBN NBs ies eh i an i ip gE a an ital tala

been sought or proposed to fund a CLA

for plaintiff. Indeed, in the DPW

budget for the 1985-1986 fiscal year,

there was no increase for non-Pennhurst

2

community placements at all.

II. DISCUSSION

A. Introduction

Plaintiff makes a number of

specific contentions in support of her

motion for injunctive relief. She

claims that the actions of the

defendants have violated § 504 of the

2Apparently the state and counties

have been struggling with providing

community placements for former

residents of the Pennhurst State

School. Defendant Jennifer Howse wrote

to defendant Richard Surles on July 20,

1984, to inform him that the state would

provide funding for 27 community

placements for non-Pennhurst clients.

Exhibit P-13. This money was never

allocated to Philadelphia, however.

-120a-

Rehabilitation Act of 1973, 29 U.S.C.

§ 794(a). She also claims that she has

been deprived of her liberty without due

process- and that she has had her

substantive rights under the due process

clause violated. De fendants > deny

that plaintiff has been the victim of

actionable discrimination under the

Rehabilitation Act and contend that no

constitutional violations have

occurred. In addition, they argue that

the relief plaintiff seeks is

inappropriate.

SAlthough, defendants employed by

the County of Philadelphia and _ those

employed by JFK MH/MR have settled for

the purposes of this motion, I will not

limit the term defendant in this

discussion solely to the Commonwealth's

employees.

-l2la-

— a = deat

ae oe ee ee

At the hearing on this matter,

plaintiff requested that her motion for

preliminary relief be treated as one for

a permanent '§ injunction. Although in

most cases I would have given all

parties advance notice of my intention

to accelerate a hearing on a permanent

injunction, defendants did not object to

plaintiff's proposal either in court or

in their post-hearing supplemental

memoranda. I will therefore treat

plaintiff's present motion as one for a

permanent injunction. See Fed. R. Civ.

P. 65(a).

The power to grant a permanent

injunction rests with the sound

discretion of the trial court. Abbott

Laboratories v. Cardner, 387 U.S. 136,

148 (1966). The court may grant a

permanent injunction after a hearing if

-122a-

there are no material issues of fact and

the issues of law have been correctly

resolved. See Standard Oil Co. of Texas

v. Lopeno Gas Co., 240 F.2d 504 (5th

Cic. 1957).

Plaintiff states claims on both

statutory and constitutional grounds.

The federal courts have long been.

directed to decide whether causes of

action can be supported on statutory

grounds be fore they adjudicate

constitutional law issues. See Hagans

v. Lavine, 415 U.S. 528, 543 (1974);

Silver v. Louisville & Nashville R.R.

Co... 223 U8... 176. (Cigeei, I will

therefore address plaintiff's Reha-

bilitation Act argument first.

-123a-

B. Rehabilitation Act

Plaintiff advances a claim

under the Rehabilitation Act of 1973, 29

U.S.C. § 794 ("Act"). Introduced in the

House of Representatives on December 9,

1971 and in the Senate on January 20,

1972, §$§ 504 of the Act was’ framed

initially as an amendment to the Civil

Rights Act of 1964, Although »

ultimately became part of another act,

its language and intent were patterned

after other civil viet legislation,

especially Title VI of the Civil Rights

Act of 1964, 42 0U0.8.C. § 20004, and

Title IX of the Education Amendments of

1972, 26 8.8.¢.. $166i(a). Section 504

states:

No otherwise quali-

fied handicapped

individual in the

United States, as

defined in section

706(7) of this

title, shall, sole-

ly by reason of his

-124a-

handicap be excluded

from participation in,

be denied the benefits

of, or be subjected to

discrimination under any

program or activity re-

ceiving federal finan-

cial assistance.

29 U.S.C. § 794.

Senator Humphrey, the primary

Senate sponsor of the bill, said when

introducing it:

I introduce ... a bill

ome to insure equal

opportunities for the

handicapped by prohi-

biting needless discrim-

ination in programs re-

ceiving Federal finan-

cial assistance ... The

time has come when we

can no longer tolerate

the invisibility of the

handicapped in America

sas I am calling for

public attention to

three-fourths of the

Nation's institution-

alized mentally retard-

ed, who live in public

and private residential

facilities which are

more than 50 years old,

functionally inadequate,

-125a-

118 Cong.

and designed simply to

isolate these persons

from society --.-These

people have the right to

live, to work to the

best of their ability -

to know the dignity to

which every human being

is entitled But too

often we keep children,

whom we regard as

"different" or a "dis-

turbing influence”™ out

of our schools and com-

munity activities al-

together .... Where is

the cost-effectiveness

in consigning them to

--- “terminal“” care _ in

an institution? These

are people who can and

must be helped to help

themselves. That this

is their constitutional

right is clearly affirm-

ed in a number of recent

decisions in various

judicial jurisdictions.

Rec 525 (1972).

Unfortunately, Congress

appar-

ently assumed that § 504 would _ be

en forced

as had previous civil

-126a-

rights

legislation and provided no- specific

authorization for rule-making in the

statute. This situation was remedied

when President Ford signed Executive

Order No. 11,914 on April 28, 1976 which

required the secretary of the Department

of Health, Education, and Welfare (now

the department of Health and 4Human

Services) to promulgate regulations for

the enforcement of §$ 504. It was not

until 1977, however, that such regula-

tions were published. See Cherry v.

Mathews, 419 F. Supp. 922 (D.D.C. 1976).

At the Supreme Court has

recognized, these ‘regulations are

especially helpful in interpreting the

congressional intent in passing § 504.

This is true because the _ responsible

congressional committees participated in

-127a-

their formation and both those - com-

mittees and Congress as whole endorsed

the final product. See Consolidated

Rail Corp. v. Darrone, 104 S. Ct. 1248,

1254-55 & n.15 (1984). Plaintiff relies

in particular on 45 C.F.R. §§ 84.4(b) (1)

(i)-(iv) which state:

(b) Discriminatory ac-

tions prohibited. (1) A

recipient, in providing

any aid, benefit, or

service, may not, di-

rectly or through con-

tractual, licensing, or

other arrangements, on

the basis of handicap:

(i) Deny a qual-

ified handicapped person

the opportunity to par-

ticipate in or benefit

from the aid, benefit,

or service;

(ii) Afford a

qualified handicapped

person an opportunity to

participate in or ben-

efit from the aid, ben-

efit, or service that is

not equal to that af-

forded others;

-128a-

(iii) Provide a

qualified handicapped

person with an aid,

benefit, or service that

is not as effective as

that provided to others;

(iv) Provide dif-

ferent or separate aid,

benefits, or services to

handicapped persons- or

to any class of handi-

capped persons unless

such action is necessary

to provide qualified

handicapped persons with

aid, benefits, or serv-

ices that are as effec-

tive as those provided

to others;

The term “equally effective" is defined

in the regulations as:

(2) For purposes of this

part, aids, benefits and

services, to be equally

effective, are not re-

quired to produce the

identical result or

level of achievement for

handicapped and non-

handicapped persons, but

must afford handicapped

persons equal opportu-

nity to obtain the same

result, to gain the same

-129a-

benefit, or to reach the

same level of achieve-

ment, in the most inte-

grated setting appro-

priate to the person's

needs.

45 cC.F.R. § 84.4(b)(2). These reg-

ulations emphasize that, "although

separate services must be required in

some instances, the provision of

unnecessarily separate or different

services is discriminatory." 20 C.F.R.

Part 84, Appendix A, 6.

With these general consid-

erations in mind, I will now turn to the

specifics of plaintiff's Rehabilitation

Act claim.

Plaintiff alleges that the

provision of services to her at

Laurelton discriminates against her in

-130a-

violation of the act. She alleges

that because other similarly situated

people are provided services in more

integrated settings such as in CLAs, her

retention at Laurelton constitutes

unnecessarily separate or different

treatment which the regulations declare

discriminatory.

In order to state a claim under

§ 504,> plaintiffs must prove that 1) ‘

4Plaintiff does not assert that

§ 504 requires deinstitutionalization as

a general matter. I note that this

claim has not been warmly received by

the courts. See, e.g., Kentucky Ass'n

for Retarded Citizens v. Conn, 510 F.

Supp. 1233, 1243-44 (W.D. Ky. 1980),

aff'd, 674 F.2d 582 (6th Cir.), cert.

denied, 103 S. Ct. 457 (1982).

SAlthough the Supreme Court has

assidiously avoided this question, see,

Consolidated Rail Corp. v. Darrone, 104

S. Ct. 1248, 1252 n.7 (1984), I believe

that it is well established that

Plaintiff possesses a private cause of

action under § 504. Doe v. Coluatti.

592 F.2d 704, 708 n.8 (3d Cir. 1979).

-l3la-

they are handicapped within the meaning

of the Act, 2) that they are "otherwise

qualified" for the services sought, 3)

that they were excluded from the

services sought solely by reason of

these handicaps, and 4) that the program

in question receives federal financial

assistance. Strathie v. Department of

Transp., 716 F.2d 227, 230 (3d Cir.

1983); Doe v. New York University, 666

F.2d 761, 774-75 (2d Cir. 1981).

It is beyond dispute that

plaintiff is a handicapped person within

the meaning of the Act. Doe v. Region

13 Mental Health Mental Retardation,

304 F.2d 1402 (5th Cir. 1983). I also

believe that the parties do not dispute

that plaintiff is "otherwise qualified”

for the services she contends are being

denied to her: a CLA. Indeed, given

the record developed in this case, I

-132a-

would have no hesitancy finding plain-

tiff to be so qualified even if I did

believe that it was disputed.

Defendants do contest, however,

the other two requirements set forth

above. Defendants argue that plaintiff

has not been the victim of discrimina-

tion solely on the basis of her handi-

cap. They also argue that she had not

made the necessary showing that’ the

“federal funding" requirement of the Act

has been wet.”

6 Defendants make two preliminary

arguments regarding plaintiff's claim

that they have violated the Rehabilita-

tion Act. They argue that the Act does

not reach discrimination among groups of

handicapped persons. The only authority

cited in support of this theory is

dictum from Colin K. v. Schmidt, 715

F.2d 1, 9 (lst Cir. 1983). At least in

this circuit, however, the cases have

(FOOTNOTE CONTINUED)

-133a-

FOOTNOTE CONTINUED

allowed claims under the Act involving

assertions of discrimination between

classes of handicapped persons. See Doe

v. Coluatti, 592 F.2d 704 (3rd Cir.

1979) (challenging a Pennsylvania

statute which discriminated against

mentally handicapped persons’ vis-a-vis

physically handicapped persons) see also

45 cC.F.R. § 84.4(b)(1) (iv) (discrimi-

nation can be found in provision of

unnecessarily different or separate

services "to any class of handicapped

persons.").

Defendants also argue that the

Rehabilitation Act does not require

“affirmative actions" such-= as those

sought by plaintiff. They rely on

language to that effect in a number of

Supreme Court cases construing the Act.

See, e.g., Smith Vv. Robinson, 52

U.S.L.W. 5179, 5186 (July 5, 1984) (case

involving reconciliation of 42 U.S.C.

§ 1983, § 504, and the Education of the

Handicapped Act, 260 « 6U48.C. 5 415) :

Southeastern Community College v. Davis,

442 U.S. 397, 411 °#£(1979). This

reliance is misplaced. As the Court

explained in Alexander v. Choate, 105

S. Ct. 712, 721 n.20 (1985) the Act

requires elimination of existing

obstacles to the participation of the

FOOTNOTE CONTINU™D ON NEXT PAGE

-134a-

Defendants argue that the

reason that plaintiff has been detained

for twenty-nine years at Laurelton has

nothing to do with her handicap, but is

merely a result of inadequate funding.

They argue that funds are simply not

adequate to provide CLAs for all those

who could benefit from them and that the

available funds are disbursed in a

nondiscriminatory fashion. I do not

believe that defendant's argument is

correct in all of its implications. I

handicapped in federally funded

programs. The Act does not, however,

require "“'changes,' ‘adjustments,' or

‘modi fications’ to existing programs

that would be ‘substantial’ ... or that

would constitute ‘fundamental altera-

tions in the nature of a program’ ...

rather than ... those changes that would

be reasonable accommodations."

Plaintiff's requested relief in this

case does not seek the widespread

institutional changes or the dramatic

changes in program organization that

Alexander v. Choate held were beyond the

scope of the Act.

-135a-

do believe, however, that plaintiff has

failed to show that she has been

discriminated against solely on the

basis of her handicap as required by the

Act.

Plaintiff is mildly retarded.

She lives at Laurelton with individuals

of varying levels of retardation. There

are also people with varying levels of

retardation already placed in CLAs. I

cannot explain the reason that plaintiff

has not been given a CLA, and defendants

could not offer any real explanation

either, aside from a chronic lack of

funds or bureaucratic misplacement of

plaintiff over the years. Although I do

not find these explanations satisfying,

I cannot conclude that plaintiff has

been detained at Laurelton solely

because of her handicap as required by

the Act.

-136a-

The Act prohibits discrim-

ination against those who are _ hand-

icapped based on that handicap where the

person is otherwise qualified for the

receipt of the funds or the services in

question. The statute makes clear,

however, that this discrimination must

be based "solely" on the existence of a

handicap. Plaintiff is alleging that

she has been the victim of discrim-

ination vis-a-vis other handicapped

people. More precisely, she alleges

that other mentally retarded people

receive services for which she is also

qualified and that she is harmed as a

result. There is no allegation, how-

ever, that plaintiff is denied a CLA

because she is mildly retarded as

opposed to severely or borderline

retarded. If plaintiff had alleged and

proved that she was denied a CLA because

-137a-

of her handicap and that the provision

of services was operating to deny her e

benefit on the basis of that handicap,

she would have stated a claim under the

Act. She has not, however, proved this

theory.

There are painfully few cases

which address this issue. In Plummer v.

Branstad, 731 F.2d 574 (8th Cir. 1984),

plaintiffs challenged the state's deci-

sion to shift them from a federally

funded treatment program to ae state

funded institutional program. The court

concluded that the plaintiffs had not

stated a claim under the Rehabilitation

Act because they had not been excluded

from services solely by reason of their

handicap. The court stated "the cri-

terion upon which the plaintiffs were

-138a-

excluded from Title xXx funding, [the

federal program] ... on its face had

nothing to do with their individual

abilities, backgrounds, or circum-

stances." Id. at 578. The court found

that the basis of the transfer was that

the plaintiffs received twenty-four hour

a day treatment and care in a state run

facility which provided substanti- ally

the same services as those obtained from

the federally funded agency. Id. The

court concluded that the basis of the

distinction drawn between plaintiffs and

those who continued to receive’ the

federally funded services was not the

plaintiffs' handicaps per se, but rather

their residence at a facility which

provided essentially the same services

to them at state expense. I recognize

that Plummer rested on a magistrate's

finding that the services available to

-139a-

plaintiffs were substantially the same

as those available to them in_ the

federally funded program. Indeed, the

court went on to state that were it not

for this fact, "[sJection 504 would

prohibit a distinction based solely on

ee. residence, given that persons live

in [Linstitutions] only because of their

handicapped status.” Id. at 579.

Although this language would seem _ to

Suggest that plaintiff in the instant

case would be entitled to relief under

the Act, a careful review of the facts

of Plummer reveals that it is suffi-

ciently different from the instant case

to make this language inapposite here.

Plaintiffs in Plummer were

persons who were institutionalized in

facilities known as an intermediate care

-140a-

~

facilities ("ICFs"). These facilities

were designed to provide twenty-four

hour a day care for persons who required

such care for medical reasons. The

state also operated other facilities

that did not house those in need of

constant medical care. Thus the

plaintiffs in Plummer who all lived in

ICFs were housed in those facilities

Only because of certain aspects of their

handicaps. By contrast, plaintiff has

been housed at Laurelton, not because of

any particular aspect of her handicap,

but simply because she is handicapped.

There arc people at tewreiton who are

more profoundly retarded than plaintiff

and who function at lower intellectual

and social levels. There may be in-

dividuals there who function at a higher

levels as well. Unlike the plaintiffs

-14la-

in Plummer, therefore, Laurelton resi-

dents cannot be classified solely on the

basis of their handicap’ relative to

other mentally retarded people who are

in CLAs. That is, the same general mix

of mentally retarded people live in CLAs

as live in Laurelton. Thus to say that

plaintiff resides at Laurelton is not

the same as saying that she has any

particular form of handicap other that

mental retardation and plaintiff only

contends that she is discriminated

against vis-a-vis other mentally

retarded persons. See also Vickers v.

Veterans Administration, 549 F. Supp.

85, 87, (W.D. Wash. 1982) (employee of

Veterans Administration could not prove

that he was a victim of discrimination

at work solely by reason of his handicap

where he had received good job reviews

in spite of his complaints regarding the

-142a-

adverse health effects of his work); cf.

Coates v. Illinois State Bd. of Educ.,

559 F.2d 445, 449 (7th Cir. 1977)

(plaintiffs had not stated a claim under

Title VI, 42 U.S.C. § 2000d, where they

had only alleged that a school district

had provided equal services to racially

imbalanced school population).

I wish to emphasize that my

decision here does not apply to a

Situation in which a plaintift files

suit under the Act alleging that she or

he has been discriminated against

vis-a-vis other handicapped persons and

where that person omit point to some

trait related to his or her handicap as

defining the class of persons

discriminated against. For example, if

a plaintiff alleged that he or she was

kept in an institution and denied a CLA

-143a-

because of the level of his or her

handicap and that person were otherwise

qualified for the CLA, my decision in

this case would not control.

I also wish to emphasize that I

have not assumed that the Act reaches

only to intentional discrimination. In

Alexander v. Choate, 105 ‘S. Ct. 712

(1985), the Court held that not all

actions under the Act required proof of

intentional discrimination. In at least

some circumstances, the court held that

proof of disparate impact was all that

was required. My decision here is not

that the actions of the defendants do

not violate the Act because they did not

choose to keep plaintiff at Laurelton

out of a conscious desire to discrim-

inate against her on the basis of her

handicap, but rather that the basis of

-144a-

the discrimination (whether intentional

or unintentional) was not a factor

related to the handicap plaintiff claims

forms the basis or the discrimination.

Plaintiff relies on a number of

cases to support her clain that she has

been the victim of prohibited

discrimination. In Halderman Vs

Pennhurst State School & Hospital, 446

F. Supp. 1295, 1323-1324 (E.D. Pa.

1977), aff'd on other grounds, 612 F.2d

84 (3d Cir. 1979) (en banc), rev'd, 451

U.S. 1 (1981); on remand 673 F.2d 647

(34 Cir. 1982) (en banc), rev'd, 104 S.

Ct. 900 (1984) (The iliac portion of

the original district opinion has not

been addressed by the appellate

decisions), Judge Broderick of this

court. held that the segregation of the

handicapped in an isolated institution

-145a-

such as Pennhurst without' minimally

adequate habilitation constituted a

violation of the Rehabilitation Act. He

stated:, "Cwle hold... that under

Section 504 unnecessarily separate and

minimally inadequate services are

discriminatory and unlawful." Id. at

1323-24. Pennhurst, of course, involved

a broad challenge to the very existence

of Pennhurst State School based on a

variety of different legal theories. [In

their Rehabilitation Act claims, plain-

tiffs therein argued that the segrega-

tion of mentally retarded persons into

an institution like Pennhurst was

actionable discrimination under the Act.

In determining that defendants

had violated the Rehabilitation Act, the

Pennhurst court concluded that in enact-

ing the Act, Congress had effectively

codified the constitutional right to

-146a-

equal protection. Id. at 1323. Because

the court had already determined that

the segregation of mentally retarded

persons at Pennhurst violated the equal

protection clause, it concluded that the

Rehabilitation Act had also been vio-

lated. Id. Judge Broderick's conclu-

sion was based on Pennsylvania Ass'n for

Retarded Children v. Pennsylvania, 343

F. Supp. 279 (E.D. Pa. 1972). He held,

in effect, that the equal protection

clause prohibited the segregation of the

mentally retarded in an isolated insti-

tution where habilitation does not

measure up to minimally adequate

standards. Id. The court did not,

however, detail this theory and did not

state whether the basis of its decision

was a finding that the mentally retarded

-147a-

were a suspect class or whether educa-

tion was a fundamental right. There is

also no discussion of the equal weotec=

tion analysis used to evaluate these

claims. Although other aspects of

Pennhurst received large amounts of

appellate discussion, this particular

aspect of the district court decision

was not reviewed because the Third

Circuit felt compelled to rest its

decision on statutory rather than

constitutional grounds and therefore did

not reach this holding. See 612 F.2d at

94. Three dissenting judges of the en

banc court did, however, reach this

holding. They concluded that the state

had a rational basis for the classi-

fication chosen. See id. at 130 (Seitz,

Ch. J., Aldisert and Hunter JJ., dis-

senting).

-148a-

Similarly, in Association for

Retarded Citizens of N.D. v. Olson, 561

F. Supp. 473, 493 (D.N.D. 1982), aff'd

on other grounds, 713 F.2d 1384 (8th

Cir. 1983), the court held that the Act

mandates that a state give the mentally

retarded equal educational opportunity.

Id. In Olson, plaintiffs challenged

treatment and conditions at two state

hospitals. They sought alternatives to

treatment at those facilities. The

court held that as between mentally

retarded people and those who are not

mentally retarded, the equal protection

clause of the four teenth amendment

required the state to justify its

discrimination against the mentally

retarded by at least showing that

"disparities in educational opportunity

which exist between the mentally re-

tarded and other citizens’ substantially

-149a-

furthers important state interests." Id.

at 490.’ The court also concluded

that plaintiffs claims of discrimination

among classes of mentally retarded

people (those in institutions nae those

who live in community placements) were

best evaluated under a rational basis

test. Id. The court's holding under the

Act was expressly predicated upon a

conclusion that the Act and the equal

protection clause were essentially the

same in terms of prohibiting certain

forms of discrimination against the

handicapped. Assuming that the court's

/The decision that mentally

retarded persons are a suspect class

deserving of at least intermediate

scrutiny appears to be inconsistent with

the present law of this circuit. See

Doe v. Coluatti, 592 F.2d 704, 710-11

(Jra Cir. i197F) «

-150a-

analysis of the plaintiffs' equal

protection claims was correct, I believe

that its conclusion that the rational

basis test applies to claims of

discrimination between classes of

mentally retarded people effectively

means that it would have had to find

virtually all such discrimination

permissable. I have read the Olson

decision carefully and find no holding

therein which suggests that the court

invalidated, or meant to enjoin, any

discrimination between those in

institutions and those in community

placements.

Finally, plaintiffs relies on

Garrity v. Gallen, 522 F. Supp. 171,

205-218 (D.N.H. 1981) a case similar to

Pennhurst in which plaintiff challenged

the conditions at a state school for the

mentally retarded. The court rejected

-15la-

the conclusion reached by Judge

Broderick in Pennhurst'- and concluded

that the Act does not provide a broad

mandate for deinstitutionalization per

se. id. at 213. The court did,

however, conclude that the defendants

had violated the Act in a number of

ways. For example, the court held that

the defendants' decision to deny to some

residents a individualized service plan

was discriminatory. 7 plans were

only developed for some of the residents

of the institution and the distinction

drawn was based on residence in certain

of the buildings “ the institution.

Some of the buildings at the institution

housed disproportionate numbers of

severely and profoundly retarded

persons. Id. at 184. Thus the decision

to deny services to residents of these

buildings was, in effect, a decision to

-152a-

deny services to disproportionate

numbers of severely and profoundly

retarded persons. The court also held

that it was a violation of the Act for

the administrators of the institution to

make decisions regarding the suitability

of treatment based on general assess-

ments of classes of institutionalized

mentally retarded persons. In other

words, it was impermissible to deny

treatment to severely or profoundly

retarded persons based on aé_=e general

conclusion that persons functioning at

that level could not benefit from the

treatment. Rather, the court concluded

that the Act required individual

assessments of the residents. Id. at

214-218.

Each of these three cases is

distinguishable from the present one on

a number of grounds. Pennhurst and Olson

-153a-

both involved claims that the plaintiffs

therein were discriminated against vis-

a-vis other nonhandicapped petbhe.

Moreover, both rest on 1) the assumption

that the Rehabilitation Act was meant to

codify the equal protection clause, and

2) the conclusion that plaintiffs'

rights under that clause had been vio-

lated. Moreover Olson does not express-

ly state that the discrimination between

classes of handicapped persons at issue

there violated the equal protection

clause or the Act. Similarly, Garrity

involved distinctions between classes of

handicapped persons based on the

severity of their handicaps.

I have already concluded that

plaintiff has not been discriminated

against solely by reason of her hand-

icap. I believe that this conclusion

-154a-

renders Garrity inapposite. The fact

that Pennhurst and Olson involve claims

of discrimination between handicapped

persons and non-handicapped persons

renders those decisions equally § in-

apposite. Furthermore, although I _ do

not reach this question, I question the

correctness of the equal protection

analysis employed in those cases which

forms the basis of the Rehabilitation

Act holdings in both.

For the foregoing reasons, I

must reject plaintiff's claim under the

Rehabilitation Act of 1973.°

8Recause I have determined that

plaintiff has failed to show that she

has been the victim of discrimination

based "solely on her handicap," I need

not reach defendant's second argument

that she has failed to prove that the

program she is.’ alleging is discrim-

inatory is a recipient of federal funds

as required by the Act. Defendants rely

FOOTNOTE CONTINUED ON NEXT PAGE

-155a-

C. Constitutional Claims

Plaintiff contends that the

defendants' treatment of her over the

years has deprived her of her consti-

tutional rights in a number of ways. She

FOOTNOTE CONTINUED

on Grove City College v. Bell, 52

U.S.L.W. 4283 (Feb. 28, 1984). In that

case brought under Title IX, the Court

held that receipt of federal student aid

by some college students did not trigger

institution-wide coverage under Title

IX. Rather, the Court concluded that

only the college's financial aid

programs were covered by virtue of the

limited nature of federal aid received.

During the hearing on this7~ matter,

plaintiff demonstrated that the

Commonwealth receives federal funds for

mental retardation services and_ for

community residential programs in

general. Although plaintiff did not

prove that the specific CLA program she

desires is federally funded, I do not

think that such specific proof of

federal funding is necessary even under

Grove City College. I note that at

least two bills are presently pending

before the Subcommittee on Education of

the Senate Labor and Human resources

Committee which seek to "clarify" the

meaning of Title IX in light of Grove

City College. See S. 272 & S.431, 99th

Cong. lst Sess. (1985).

-156a-

contends that her initial commitment

deprived her of liberty without due

process; that the failure to node any

hearing over the course of her twenty- |

nine years at Laurelton constituted a

Similar deprivation without due process;

that her substantive due process rights

have been violated, and that she has

been denied access to the courts through

the failure of the defendants to respord

to her repeated requests for a hearing

or for legal assistance. This case

presents many difficult legal issues and

I have considered plaintiff's constitu-

tional claims with great care. I have

concluded that plaintiff is entitled to

the relief she seeks in order to remedy

the present, On-going actions taken by

defendants in derogation of plaintiff's

-157a-

rights. Plaintiff's claims can be

grouped into three areas: procedural

due process, substantive due process,

and denial of access to the courts.”

1. Procedural Due Process

"There can be no doubt

that involuntary commitment to a mental

hospital, like involuntary confinement

of an individual for any reason, is a

deprivation of liberty which the state

cannot accomplish without dae process of

law." O'Connor v. Donaldson, 422 U.S.

563, (1975) (Burger, C.J., concurring).

Plaintiff alleges that her initial

commitment as a eeace was accomplished

without sufficient protections and that

she was denied due process as a result.

9Because of my decision concerning

plaintiff's due process claims, I need

not reach her claims of denial of access

to the courts.

-158a-

The starting point for an

analysis of this claim is Parham v.

J.R., 442 U.S. 584 (1979) a case in

which the Supreme court examined the

process required by the constitution an

the commitment of a minor. In Parham,

the plaintiffs were minors who were

committed by their parents or by the

state as their legal guardian. They

challenged the procedures under which

they were committed as well as several

substantive aspects of the state's

treatment of voluntarily committed

minors. The district court held that

the state's procedures were defective in

that they did not require that

commitment take place only after notice

and hearing. The Supreme Court reversed.

The Court found that a

child, like an adult, has a substantial

liberty interest in not being confined

-159a-

against his or her will for treatment in

a mental hospital. Id. at 600. (Citing

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

(1979); In Re Gault, 387 U.S. 1, 12-13

(1967); Specht v. Patterson, 386 U.S.

605 (1967)). The Court assumed that

this interest stemmed from both the

child's interest in being free from

bodily restraint and from the child's

interest in not being stigmatized by the

label attached to one who has been

committed. The. court found, however,

that parents retain "a substantial, if

not dominant" role in decisionmaking for

their children and that it could be

assumed that they act in the best

interests of their children. Id. at 604.

The Court concluded that

although parents "retain plenary

authority to seek, [commitment] for

their children," id., the risk of error

-160a-

inherent in this parental decision

required "that some kind of inquiry

should be made by a ‘neutral factfinder'

to determine whether the statutory

requirements for ‘testenions3 are

satisfied." Id. at 606. The court went

on to hold that this factfinder need not

be trained in the law and that the

"factfinding" need not be a formal or

“quasi-formal" hearing. Due process,

the Court concluded, is not violated by

reliance on formal medical investigative

techniques. Id. at 607. Thus, com-

mitment of a child by his or her parents

or guardians comports with due process

if there is some form of inquiry into

the underlying facts of the case,

conducted by a neutral factfinder who

may or may not be a judicial officer. A

medically trained specialist in the

field of mental health will suffice.

-l16la-

Plaintiff alleges that she has

been denied liberty without due proc-

ess. She alleges that her initial

commitment was defective because it

failed to provide her with any notice or

hearing prior to the commitment. It

appears from the stipulated facts of

this case that plaintiff was ordered to

be committed to Laurelton on November 9,

1956 on the basis of a petition filed

the day before by the Deputy Commis-

sioner cf Public Welfare for the City of

Philadelphia. This petition was based

on the certification of Dr. Donald

Davidson, who examined plaintiff on June

22, 1956 and found her to have a "mental

de fect -severe." Plaintiff Exhibit

Two days after the commitment order was

signed, plaintiff was sent to Laurelton.

-162a-

At the time of her commitment, plaintiff

was a resident of the Youth Study

Center, a juvenile detention center in

Philadelphia.

Based on the record developed

at the hearing on May 28, 1985 and May

29, 1985, I cannot say that the

requirements of Parham have not been

met. The record as it stands now simply

does not contain enough information

concerning the circumstances surrounding

plaintiff's initial commitment to

Laurelton. For example, although she

was a resident of the Youth Study Center

at the time of her re there is

no solid evidence in the documentary

material produced by the parties

concerning her legal status at that

time. In addition, there is no real

evidence concerning the nature of the

inquiry made into plaintiff's condition

-163a-

before she was committed. Because the

record at this point is deficient in

these crucial areas, I cannot determine

whether the minimal due process required

under Parham was provided at plaintiff's

initial commitment .!°

After her initial commitment,

plaintiff was taken to Laurelton where

she has remained to this day. Dur ing

the twenty-nine years since her com-

mitment, a number of events have

occurred which plaintiff claims should

lOplaintiff argues ‘that Parham is

inapplicable because it does not apply

to commitment made without '- parental

consent. Parham does, however, apply to

commitments made at request of the state

acting as ward. See 442 U.S. at 617-

620. The Court concluded that’ the

differences between the roles of parents

and the state acting as guardian were

not sufficient to require a change in

the required procedures.

-164a-

have triggered a review of her commit-

ment. These events include: her

reaching maturity in 1962; the repeal of

the Mental Health Act of 1951 under

which plaintiff was committed in 1966,

and a court decision which held certain

relevant aspects of the Mental Health

Retardation Act of 1966 ("1966 Act")

unconstitutional in 1976. I will now

examine these claims.

Plaintiff reached ‘tee age of

twenty-one in 1962, six years after she

was sent to Laurelton. She argues that

the defendants were under an obligation

to review her commi tnent at that time.

Although she cites no explicit authority

for this argument, I agree with her

conclusion.

Plaintiff was committed without

notice or hearing. This lack of the

usual accoutrements of due process may

not be a constitutional violation in the

-165a-

context of the commitment of a minor by

a parent oor guardian; that is the

teaching of Parham. There can be no

question, however, that an adult cannot

be involuntarily committed without

substantially more of the guarantees

traditionally associated with the

concept of due process.

Although I will not discuss

them at length, the courts have long

considered the commitment of an adult

such a massive curtailment of liberty as

to require a wide range of procedural

protections. For example in Common-

wealth ex rel. Finken v. Roop, 233 Pa.

Super. 762, 339 A.2d 764 (1975), the

court held that civil commitment under

§ 406 of the 1966 Act requires at the

minimum: notice, a hearing, the

exclusion of hearsay evidence at that

hearing, and evidence sufficient to prove

-166a-

the state's case by "clear, unequivocal,

and convincing" evidence. See also

Dixon v. Attorr ’ Gen'l of Pennsylvania,

325 F. Supp. 966 (M.D. Pa. = 1971)

(declaring § 404 of the 1966 Act

unconstitutional on its face; relief

ordered included a ‘broad range of

procedural protections). The full scope

of these decisions is not really

relevant to the present case, however,

because plaintiff has never been

accorded any significant review of her

commitment at any time.

Defendants argue, however, that

they have don2 all eo due process

requires in terms of periodic review.

They contend that Parham requires only a

medical review by a neutral factfinder

and that plaintiff has had such reviews

in the past and continues to have them.

This argument is unpersuasive.

-167a-

Parham dealt only with the

commitment of minors by their parents or

legal guardians. The Court's decision

rested very heavily on the assumptions

that both parents and guardians act in

the best interests of the child and that

both have traditional authority over the

raising of minors in their care. This

aspect of Parham makes it inapposite to

a situation involving someone who is not

a minor. Once someone becomes an adult,

one's parents lose that degree of

authority found so crucial in Parham.

Moreover, as even the Parham Court

found, there is a possibility (born out

by this case) that a “ward" of the state

who is committed may become “lost in the

shuffle." 442 U.S. at 61 ° This

possibility lead the court to conclude

that there might be a basis for re-

quiring that the review of such persons

be subjected to more stringent require-

-168a-

ments then review of those committed _

their parents.

The Commonwealth's argument in

this area is far too broad. It argues,

essentially, that if someone is commit-

ted by a parent or guardian after the

minimal due process required by Parham,

there need never be anything more than

periodic medical reassessment of the

committed person. This | éteneent

certainly sweeps too broadly.?+

11A comparison with Vitek v.

Jones, 445 U.S. 480 (1980) reveals the

overbreadth of this argument. In Vitek,

the Supreme Court held that a prisoner

serving sentence had sufficient residual

liberty interests to require ae full

panoply of due process procedures before

he or she could be transferred involun-

tarily to a mental hospital. In Young-

ber v. Romeo, 457 U.S. 307, 315-16

1982), the Court implied that the

rights of an institutionalized person

should be at least as great as those of

a convicted prisoner serving sentence.

The institutionalized mentally retarded

must have at least as great an interest

in their liberty as a prisoner serving

sentence.

-169a-

Plaintiff also argues that the

state was obligated to review her

commitment in 1966 when the 1951 Act was

repealed and replaced by the 1966 Act.

With that event, the only legal basis

for commitments such as plaintiff's

became § 406 of the 1966 Act, 50 P.S.

§ 4606. Indeed, the defendants treated

plaintiff's commitment as equivalent to

one under § 406. Stipulation 170. The

differences between § 326 of the 1951

Act under which plaintiff was committed

and § 406 of the 1966 Act were, however,

largely procedural. The standards for

commitment were left relatively un-

changed. Plaintiff never received a

hearing under the 1966 Act. Indeed the

kon have stipulated that there is no

procedure in force under which persons

-170a-

with indefinite commitments are petri-

odically reviewed, although James Pelter

testified that those who are not

committed for an indefinite period are

reviewed.

Plaintiff argues that a review

is mandated when there is some change in

the legal basis or circumstances under-

lying the commitments. In Jackson v.

Indiana, 406 U.S. 715 (1972), the

Supreme Court invalidated a state

statute which allowed for indefinite

commitment of a criminal defendant

solely because he was incompetent to

stand trial. The court found that this

indefinite commitment violated due

process. The court held that such a

person could not be held “more than the

reasonable period of time necessary to

determine whether there is a substantial

probability that he will attain" the

Capacity to stand trial in the future.

-l7la-

Id. at 738. The Court stated:, "[a]t

the least, due process requires that the

nature and duration of commitment bear

some relation to the purpose for which

the individual is committed." Id. See

also McNeil v. Director, 407 U.S. 245

(1972).

Similarly, in O' Connor Vv.

Donaldson, 422 U.S. 563 (1975), the

Court held that the state cannot hold,

without more, a nondangerous individual

who poses no danger to himself or to the

community based simply on a

determination that the person is

mentally ill. In reaching this holding,

the court stated:

The fact that state law

may have author ized

confinement of the

harmless mentally ill

does not itself estab-

lish a constitutionally

adequate purpose for

that confinement eee

[nJor is it enough that

-172a-

Donaldson's original

commitment was founded

upon a constitutionally

adequate basis, ss - Sn

fact it was, because

even if his’ involuntary

confinement was initial-

ly permissible; it could

not constitutionally

continue after that

basis no longer ex-

isted. 75.

Id. at 574-(citations omitted)

Plaintiff has cited no

compelling caselaw in support of her

argument that is more directly on

point. The Commonwealth defendants in

their brief opposing plaintiff's motion

for preliminary relief, however, admit

that plaintiff is entitled to periodic

review of her commitment. Common-

wealth's brief in opposition to plain-

tiff's motion for preliminary relief at

12. They dispute only the nature of the

review. Once again, they argue that

only the limited due process required

under Parham is required.

-173a-

Although the Supreme Court has

repeatedly emphasized that due process

is a flexible concept which’ varies

according to the particular nature of

the interest at stake and the facts of

the particular case, this truism is not

a sufficient basis for a conclusion that

the minimal requirements of Parham

should apply to this situation. I do

not believe that Parham should _ be

extended beyond the sila meiiid ti which it

arose: the voluntary commitment of

minors at the request of a parent or

guardian. I have already concluded

Parham should not he applied to a

commitment of an adult. I see no reason

to change that view simply because the

event triggering the review is-~ the

repeal of the legal authority under

which a person is committed.

-174a-

Moreover, although plaintiff

has received some form of medical or

psychological review periodically, the

results of these reviews have been a

nullity. Since at least 1976, these

reviews have consistently recommended

that plaintiff be removed from Laurelton

and placed in a CLA. Defendants point

to this as sufficient under their

interpretation of the due process

clause. In reality these *‘~seatensingal

reviews" have been a meaningless

exercise. Although transfer has been

consistently recommended, it has never

taken place. It has — taken place

because the various entities responsible

for plaintiff, who act in defendants'

view as her parents, have never been

able to agree on how to fund plaintiff's

CLA. I cannot see how due process is

-175a-

served when all that takes place are

periodic professional reviews whose

recommendations are then ignored.

Plaintiff also alleges that she

was entitled to review in 1976 when a

three judge panel in the Middle District

of Pennsylvania struck down § 406 of the

1966 Act. That section, of course,

formed the only legal basis for the

detention of plaintiff. In Goldy v.

Beal, 429 F. Supp. 640 (M.D. Pa. 1976),

the court held that the standard for

commitment found in § 406 was

unconstitutionally vague and stayed the

further application ue § 406. It later

medi fied this stay to permit the

commitment of persons under § 406, but

required that those to be committed be

evaluated under a rigorous standard that

cured the deficiencies in the original

section. This standard, which was later

incorporated into DPW regulations stated:

-176a-

Oot (2 oooooooooeeoOoOoOnRrereeeae

“the Secretary of DPW

and his agents and

assigns, those under his

direction, and all in-

stitution directors

shall not receive ees

[persons pursuant to

section 406 of the MH/MR

Act of 1966] except upon

judicial determination

that the following

standard 1s met:

rons the person is

impaired in adaptive

behavior to aie signif-

icant degree and is

functioning at an

intellectual level two

standard deviation

measurements below the

norm as determined by

acceptable psychological

testing techniques.

"(2) the impairment and

the resultant disability

were manifested before

the person’ 18th birth-

day and are likely to

continue for indefinite

period; and

"(3) the person, because

of his retardation pre-

sents a substantial risk

of physical injury to

himself or physical

debilitation as demon-

strated by behavior with-

in 30 days of the peti-

tion which shows that he

-177a-

is unable to provide

for, and is not provid-

ing for his most basic

need for nourishment,

personal and medical

care, shelter, self-pro-

tection and safety and

that provision for such

needs is not available

and cannot be developed

Or provided in his’ own

home or in his own con-

munity without residen-

tial placement."

Plaintiff argues that Goldy

destroyed the only legal basis for her

commitment and that the defendants were

obliged to review her commitment pur-

Suant to the new standard. Defendants

contend, however, that Goldy did not

establish any obligation on their part

to undertake a review of her commitment.

Goldy struck down the only

legal authority under which plaintiff

could have been deemed to have been

-178a-

committed. Although the Goldy court

recognized that its decision did not

require release of those previously

committed under § 406, it must mean an a

minimum that those who have been com-

mitted under that section were entitled

to have their commitment reviewed under

the new, constitutional standard.

Defendants cling to a passage in Goldy

which in their view means that Goldy

imposed no affirmative obligation upon

them: "Cplaintiffs] merely seek a

declaration that the statute under which

they were committed is unconstitutional

and an injunction enjoining defendants

from enforcing and executing the statute

in its present version; if this court

rules in their favor, they will then

seek release in state court.” Id. at

645. This language cannot be read as

-179a-

broadly as suggested by defendant.

First, it was taken from the court's

discussion of defendants' argument there

that plaintiff's appropriate action in

Goldy should have been a petition for a

writ of habeas corpus action rather than

suit for declaratory and injunctive

relief. Second, although plaintiff

might have been a member of the

plaintiff class in Goldy, she was

committed at that time to the care of

defendants. A mildly retarded person

who lives in a state institution can

hardly be expected to know about the

decision in Goldy. risukiv; plaintiff

did, in fact, request a review of her

commitment and has continued to do so

since at least 1981. No hearing was

ever arranged and her requests for legal

assistance went unanswered. Indeed, the

-180a-

parties have stipulated that plaintiff

requested judicial review of her

commitment even before Goldy.

Stipulation 1974.

It is somewhat disingenous and

ironic for defendants to argue, in

essence, that plaintiff should have

arranged her own hearing and at the same

time to place such great reliance on

Parham, a case which rests on the

assumption that the state as guardian

acts in the best interests of its

wares.”

l2pefendants contend in connection

with all of plaintiff's claims that she

was entitled to periodic review, that

the review need only satisfy the minimal

standards of Parham. As I have

previously stated, I consider this

argument to be without merit, at pp.

36-37.

-18la-

For the foregoing reasons, dW

conclude that plaintiff's rights to

procedural due process have been

violated by defendants' | failure to

provide her with any notice or hearing

whatsoever during the course of her

confinement in spite of the many changes

both in the law and in facts of

plaintiff's case which mandated that

such hearings be held.

2 Substantive Due Process

Although the courts have been

slow to recognize them,institutionalized

persons have a number of substantive

rights which are —e under the due

process clause of the United States

Constitution. Plaintiff argues that her

substantive due process rights have been

violated in a number of ways. First she

alleges that Goldy creates the substan-

tive right not to be institutionalized

-182a-

unless the standards set out by the

Goldy court have been met. Second,

plaintiff argues that state caselaw

construing the Pennsylvania statutes and

regulations in this area also creates a

substantive right to deinstitutionaliza-

tion. Finally, although plaintiff has

not argued this matter, I believe that

this case implicates substantive due

process rights identified in Youngberg

v. Romeo, 457 U.S. 307 (1982).

Plaintiff argues in conjunction

with her procedural due process argu-

ments that Goldy mandated not only that

she be given a hearing in 1976, but that

she be transferred to a CLA. Plaintiff

argues that the Goldy standard for com-

mitment recognizes a right not be in-

stitutionalized unnecessarily if a com-

munity placement could not be developed.

-183a-

Plaintiff alleges that a CLA could be

developed for her and that she his

therefore been committed to Laurelton

improperly. There is no @eegresnnt

that there has never been a judicial

determination that plaintiff meets these

standards. One of the defendants '

witnesses, Kay Stewart, testified that,

in her opinion, plaintiff did meet the

standards. She did not elaborate on the

basis of this opinion a on cross

examination it became apparent ' that

Stewart did not have a full working

familiarity with the complete Goldy

standard. Neither did she have a

familiarity with CLAs in Philadelphia.

She did state, however, that plaintiff

could live in one if one were provided

or available.

-184a-

Defendants argue that in any

event, plaintiff meets the standards for

institutional commitment contained in

the modified Goldy stay. They argue

that “provisions, [for plaintiff's

needs] are not available and cannot be

developed without residential

placement." Defendants argue that this

language allows’ institutional plecemmnt

whenever there are insufficient funds or

resources available to provide for

non-residential services. This

interpretation would effectively allow

defendants to render the Goldy standard

meaningless. The aatiiniitis could

simply refuse to allocate funds for any

community placements and institutional-

ize all mentally retarded persons if I

were to accept the prefferred reading of

Goldy. I decline to do so.

Soliay

-185a-

Re jection of defendant's

argument is not equivalent to saying

that there is a "right" to a CLA. The

Goldy court struck down § 406 because

the standard it contained which governed

commitment of the mentally retarded was

too vague to pass constitutional

muster. This decision, by its nature,

rests on the substantive conclusion that

commitment was unconstitutional unless

the person to be committed met certain

basic requirements.

The Supreme Court has also held

that the fact that a person is mentally

retarded is, standing alone, not enough

to warrant commitment: "[{a] finding of

‘mental illness' alone cannot justify a

State's locking a person up against his

will and keeping him indefinitely in

simple custodial confinement. Assuming

that the term can be given ae reasonably

-186a-

precise content and that the ‘mentally

ill' can be identified with reasonable

accuracy, there is still no

constitutional basis for confining such ©

persons involuntarily if they are

dangerous to no one and live safely in

freedom." O'Connor v. Donaldson, 422

U.8. 5863, S78 (2978). The Goldy

standard articulates this same concern.

Although I recognize that only

a thin line separates oitinee that

plaintiff has a right not to be placed

in an institutional setting if it is

possible to create a CLA for her, and

saying that she has a wr to a CLA, it

is meaningful line. Whatever the merits

to defendants' argument that plaintiff

has no right to a CLA, Goldy requires

that she not be placed in an institu-

tional setting unless a community

placement cannot be developed. This

-187a-

standard is rooted in substantive due

process. Defendants have, moreover,

acceded to this requirement when they

incorporated it into their regulations.

Whatever its origins, it is now a legal

requirement for commitment. Moreover, I

believe that the reading given to this

language by defendants distorts its

plain meaning.

The standard states that a

person cannot be committed to

residential placement if provision for

his or her needs is not “available and

cannot be developed or provided" in the

community. There is _ facial require-

ment that funding for such community

Orplacement be available or developed.

Defendant would read this requirement

into the words “cannot be developed or

-188a~

provided." It is more correct, however,

to read those words in light of the

other requirements set forth by the

Goldy court. These requirements pertain

to the innate abilities and characteris-

tics of the person to be evaluated, not

to the resources of DPW. Read in this

light the words "cannot be developed or

provided" mean that the characteristics

and needs of the person under evaluation

are such that no community placement

would be able to provide for them. For

example, a person might be so severely

handicapped both physically and mentally

that no community — could be

developed which would meet his or her

needs. It is beyond dispute that no

such innate characteristic of plaintiff

prevents her from living in a CLA.

-189a-

Plaintiff also argues that a

number of decisions of the Pennsylvania

state courts create a substantive right

to deinstitutionalization. See In Re

Schmit, 494 Pa. 86, 429 A.2d 631, 635-66

(1981); In Re Savers, 68 Pa. Commw. 83,

447 A.2d 1132 1135-36 (Pa. Commw. Ct.

1982) (en banc). Both of these cases

construe Pennsylvania state statutes and

regulations promulgated pursuant to

them. Plaintiff seems ie: argue that

these constructions give rise to the

creation of a substantive right under

the due process clause. She does not

argue, by contrast, oe these cases

create a state liberty interest which

cannot be taken without procedural due

process. See Perry v. Sinderman, 408

U.S. 599 (1972). Defendants have not

-190a-

‘res ponded to this novel argument.

Because the rights that plaintiff claims

arise from these cases are essentially

coterminous with those which arise under

Goldy, I need not reach the merits of

this novel argument.

Finally, I believe that

defendants’ treatment of plaintiff

violates interests adumbrated in

Youngberg. That case was an individual

action in which the plaintiff, who was a

profoundly retarded resident of the

Pennhurst State School, alleged injury

due to his own behavior, attack by

others, and excessive physical restraint

by the staff. He argued that his pro-

tected liberty interests in safety,

freedom of movement, and training within

the institution had been violated. The

Court had little difficulty in deciding

that plaintiff had cognizable liberty

-19la-

interests and valid claims to safe con-

ditions and freedom from bodily re-

straints. 457 U.S. at 315-16.

The Court had more difficulty

in evaluating plaintiff's claims’ for

"minimally adequate training." After

canvassing the available precedent the

Court held that’ plaintiff's liberty

interests required the state to provide

minimally adequate or reasonable

training to ensure safety and freedom

from undue restraint.

In determining what treatment

may be required in a given case, the

Court mandated that analysis should

start with the generalization that there

is a right to minimally adequate

training. "The basic requirement of

adequacy, in terms more familiar to the

courts, may be stated as that training

-192a-

which is reasonable in light of

identifiable liberty interests and the

circumstances of the case." Id. at 319

n.25.

In assessing the reasonability

of training, the court “must show

deference to the judgment exercised by a

qualified professional." Id. at 322.

The majority elaborated:

CtJhe Ctraining]

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 standard as

to demonstrate that the

person responsible

actually did not base

the decision on such a

judgment.

Id. at 323. "The question suggested by

Youngberg, then, is not what treatment

was actually provided, but whether’ the

-193a-

treatment decision was professionally

made and falls within the scope of

professional acceptability." Woe Vv.

Cuomo, 729 F.2d 96, 105 (2d Cir. 1984),

cert. denied, 105 S Ct. 339 (1985).

Although the definition of

"professional" is by its nature somewhat

broad, the Court did offer some guidance:

By "“professional"™ deci-

sionmaker, we mean a

person competent,

whether by training or

experience, to make that

particular decision at

issue. Long-term treat-

ment decisions normally

should be made by per-

sons with degrees in

medicine or nursing or

with appropriate train-

ing in areas such. as

psychology, physical

therapy, or the care and

training of the retarded.

Youngberg, 457 U.S. at 323 n.30. The

Supreme Court's discussion of the

deference to be paid to such _ profes-

sional judgment makes it clear that the

decision has to be one based on medical

-194a-

or psychological criteria and not on

exigency, administrative convenience, or

; , ; 13

other non-medical criteria.

137 do not believe that the

Youngberg court meant to include

decisions motivated out of budgetary

constraints in the category of

“professional judgments." In the

majority opinion, however, the Court

explicitly recognizes that budgetary

constraints which prevent the imple-

mentation of professional treatment

recommendations may provide the factual

predicate for a defense of good-faith

immunity. See 457 U.S. at 323. This

statement does not mean, however, that

such considerations should provide a bar

to prospective equitable relief. In

Scott v. Plante, 691 F.2d 634, (3d Cir.

1983), the Third Circuit noted that

different concerns inform the shaping of

equitable and legal relief:

[W]e note that Youngberg

v. Romeo involved only

a claim for money dan-

ages for past infringe-

ments of the right to

treatment which is a

component of fourteenth

FOOTNOTE CONTINUED ON NEXT PAGE

-195a-

FOOTNOTE CONTINUED

amendment personal 1ib-

erty. The Court's deci-

sion does not inform at

all as to the appro-

priate reach of injunc-

tive relief for the

protection of liberty

interests established by

state law, and the

holding is not necessar-

ily dispositive of the

scope of prospective

relief for the protec-

tion of the fourteenth

amendment liberty in-

terests which it - rec-

ognized. Obviously the

problem of hindsight in-

ter ference with deci-

sions made by hard-

pressed professional

staff members of state

mental institutions is a

more serious. one than

that of assisting them

in directing prospective

injunctive relief against

appropriate state offi-

cials. See Edelman _v.

Jordan, 415 U.S. 651,

667, 94 S. Ct. 1347,

1337, 39 L.Ed.2d 662

(1974).

691 F.2d at 637.

-196a-

In the present case,

plaintiff has been retained at Laurelton

since at least 1976 in the face of

unanimous pro fessional opinion that ©

should should be transferred to a CLA.

The parties have stipuiated to this

fact. There is also no doubt in my mind

that a CLA constitutes a far _ less

restrictive environment chen does

Laurelton. Although such a restrictive

environment may be professionally

indicated in some cases, it has not been

in plaintiff's case since at least

1976. Indeed, both the staff at

Laurelton and at her BSU considered her

trausfer to a CLA to be an “emergency”

matter by 1984. Stipulation 49919132,

135, 136.

In spite of these continual

pro

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