Petition for Writ of Certiorari — Haas ex rel. Haas v. Wyatt

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Supremé Court, U.S.

FILSD

0 952079 JUN 2-6 1996

No. Q&fice OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

-¢

BRIDGET ANN HAAS, by and through her

father and legal guardian, William E. Haas,

Petitioners,

vs.

RICKY WYATT and CHARLES FETNER

(as acting Commissioner of Mental

Health for the State of Alabama), et al.,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

CHARLES COATSWORTH PINCKNEY

Counsel of Record

J. FRANKLIN OZMENT

LANGE, SIMPSON, ROBINSON

& SOMERVILLE

Attorneys & Counselors

417 20th Street North

Suite 1700

Birmingham, Alabama 35203-3272

Telephone: (205) 250-5000

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2871

QUESTIONS PRESENTED FOR R# VIEW

The State «. Alabama operates Bryce Hospital to care

for mentally ill persons. In 1970, several Bryce employees

and guardians of Bryce residents commenced this action

in the United States District Court for the Middle District

of Alabama. The plaintiffs named various state officials as

defendants and wrayed for a decree prohibiting the dis-

charge of employees and the reduction of medical ser-

vices at Bryce. Plaintiffs sought this relief on behalf of the

class of persons similarly situated to them.

The State also operates William D. Partlow Develop-

mental Center, formerly known as Partlow State School.

Partlow is a relatively large, congregate care facility for

retarded persons. The plaintiffs amended their complaint

to name the superintendent of Partlow as a defendant.

The district court construed this amendment as enlarging

the class to include residents of Partlow, as well as resi-

dents and employees of Bryce.

Bridget Ann Haas is a profoundly retarded woman

who has resized at Partlow since 1990, and Col. William

E. Haas (U.S. Army, ret’d) is her father and legal guard-

ian. In 1994 Ms. Haas, acting through her father and

guardian, moved for leave to intervene in the action. She

alleged that the plaintiffs sought to require the State to

move residents out of large facilities such as Partlow and

into smaller, community based facilities. She further

alleged this relief ran contrary to her interests.

When Ms. Haas moved for leave to intervene, the

class representatives had never included any Partlow

QUESTIONS PRESENTED FOR REVIEW - Continued

resident or other retarded person. At that time, the court

had not even formally certified the class. None of the

named representatives were still active in the litigation.

The class had moved the district court to enter an order

finding that the defendants had violated the Americans

with Disabilities Act by segregating mentally retarded

persons in large facilities, away from the general popula-

tion.

The district court held that existing parties ade-

quately protected Ms. Haas’s interests in the litigation

and denied leave to intervene. The United States Court of

Appeals for the Eleventh Circuit affirmed, holding that

the district court’s finding was not clearly erroneous.

Ms. Haas respectfully petitions this Court to issue a

writ of certiorari to review:

1. Whether the court of appeals erred by employing

a clearly erroneous standard to review the decision of the

district court.

2. Whether the court of appeals erred by failing to

reverse the district courts decision denying intervention.

iil

LIST OF ALL PARTIES

TO THE PROCEEDING BELOW

Eric Boothe

Glenda Brandner

Wolfgang Brandner (as legal guardian of Glenda

Brandner)

Tom Brassell, individually and in his capacity as

Comptroller for the State of Alabama

Brent Bugsh

Kenneth Cook

Charles Fetner, as acting Commissioner of Mental Health

Michael Guins

Annie Laurie Gunter, individually and in her capacity as

Treasurer for the State of Alabama

Bridget Ann Haas

William E. Haas (as guardian and next friend of Bridget

Ann Haas)

Robert Hanna

Amelia B. Heath

William Holden, Jr.

Frankie Hopkins

Adelia Keebler

Diane Martin

Richard Mills

Joseph L. Moudry

Mary Beth Parker

D.A.R. Peyman, Jr.

Stephanie Ramsey

Mrs. W. C. Rawlins, Jr. (as guardian for Ricky Wyatt)

David S. Schoel

J. Fred Schoel (as father and legal guardian of David S.

Schoel)

Kim Smelley

William Smith

Brenda N. Stacy

itil

LIST OF ALL PARTIES

TO THE PROCEEDING BELOW - Continued

Henry Steagall, individually and in his capacity as

Director of Finance for the State of Alabama

Benjamin Stokes

Ken Wallis, as Receiver of the Mental Illness and Mental

Retardation Operation

Gene Washington

Wayne Williams

Gregory Woelke

Ricky Wyatt

TABLE OF CONTENTS

Page

Questions Presented for Review ...........--++++:: i

List of All Parties to the Proceeding Below ........ ili

ce a ee errr rere sere rer eee vi

Citations of Official and Unofficial Reports ........ 1

Statement of Basis of Jurisdiction in this Court .... 2

tee OE Te BA. iciccccn ccec ey ee cde chon angutases Z

SETS OEP OT ETE E TOE Te TT TET CT ERT Te 4

Argument for Allowance of the Writ.......-..----: 8

TABLE OF AUTHORITIES

Page

CASES:

Alameda Water & Sanitation Dist. v. Browner, 9 F.3d

BE Cai Ce: BODE, ivcs Heed e's bie ie Ce Wee as i ode 8

Anderson v. Bessemer City, 470 U.S. 564 (1985) ....... 11

B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995)......... 8

California v. Tahoe Regional Planning Agency, 792

Dae F7e COU A TOG ac ks Sevevevecnasskeavbrcnss 8

Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989)..... 8

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) ..9, 11

Federal Sav. & Loan Ins. Corp. v. Falls Chase Special

Taxing Dist., 983 F.2d 211 (11th Cir. 1993).......... 9

Grubbs v. Norris, 870 F.2d 343 (6th Cir. 1989)......... 8

Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987)...... 8, 10

International Paper v. Town of Jay, Me., 887 F.2d 338

CaaS TEMe BOE 5 vss cp nedansnincacnabap ere keaerns 8, 9

Pierce v. Underwood, 487 U.S. 552 (1988)............. 11

In re Rasbury, 24 F.3d 159 (11th Cir. 1994)........... 12

Salve Regina College v. Russell, 499 U.S. 225 (1991) .... 12

In re Sierra Club, 945 F.2d 776 (4th Cir. 1991)...... 8, 10

Sierra Club v. Robertson, 960 F.2d 83 (8th Cir. 1992)..... 8

Trbovich v. United Mine Workers, 404 U.S. 528 (1972) .... 15

United States v. U.S. Gypsum Co., 333 U.S. 364

| Sa ee anne re mre s Pen re me sen tev ry ey oot 11

United States v. Hooker Chems. & Plastics, 749 F.2d

- Be Be Ee | Perr nn ere sr ram Me nV onirae) 8

vii

TABLE OF AUTHORITIES —- Continued

Page

United States v. Texas Eastern Transmission Corp.,

923 F.2d 410 (5th Cir. 1991).......... eee eee eee eee 8

Wyatt v. Richard E. Hanan, No. 95-6013 (11th Cir.

January 31, 1996) (per curiam) (unpublished)... ... 1, 15

Wyatt v. Richard E. Hanan, No. 95-6013 (11th Cir.

March 28, 1996) (denial of rehearing and rehear-

Ing en DANC)..... 26. cece eee cece e eet eee e eee eeenes 1

Wyatt v. Richard E. Hanan, No. 3195-N (M.D. Ala.

February 15, 1995) (order denying motion to

SMDUWOE) oo cc cc vevrcceseNwbeeureeeerebeserenctdeece 1

Wyatt v. R. Emmett Poundstone, No. 3195-N (M.D.

Ala. October 3, 1995) (order ruling on motion to

recertify the class)..........::--eeeeeeee rere eeeeees 1

Wyatt by and Through Rawlins v. King, 811 F. Supp.

1533 (M.D. Ala. 1993) ......cccccccevsvessascsceces 5

Wyatt by and Through Rawlins v. King, 803 F. Supp.

FF GOUT AMM. TOPE oe cde cascevcsccscssex essences 6

Wyatt, by and Through Rawlins v. King, 793 F. Supp.

TOSS CUED. AIR. TOUR) o cckscdnccenaenevtesecetsnss 1

Wyatt v. Wallis, 1986 WL 29194 (M.D. Ala. 1986) ..... 1

Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).. 1, 5, 6

Wyatt v. Aderholt, 368 F. Supp. 1383 (M.D. Ala.

NOPD cs 5 ssicv ness eon bine ¥a005s 558 os Hare deny scasyaess 1

Wyatt v. Aderholt, 368 F. Supp. 1382 (M.D. Ala.

FESR GSES TS ap ae beeper ae eam 1

Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala.

fs Beep ney a ounndeatpae Pigieen ere rira Fears pep aenanr 4&5

Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972) ...1, 5

Vili

TABLE OF AUTHORITIES - Continued

Page

Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala.

i) PEP Oe Pe ere re ee mee oe ey sry Per Py tay

Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971)..... 1

OTHER AUTHORITIES:

Pe We Ge I NS so spac beubesevacdaberedeseeesns 14

is tn, I es bape eulica 2, 8, 16

Childress, Federal Standards of Review (2nd Ed)

MEE vex cass pith ead bawonweakn bts anes apna Cnet 9

Advisory Committee Notes, Fed. R. Civ. Pro. 24

CR I oi iss cerdeiie es abe rece rh ererees 16

i cn digit aa ile AAPOR St KSA Ged ge OLAS SEALER DLE ARIA

sl a RS Aan a

CITATIONS OF OFFICIAL

AND UNOFFICIAL REPORTS

Wyatt v. Richard E. Hanan, Ne. 95-6013 (11th Cir. January

31, 1996) (per curiam) (unpublished).

Wyatt v. Richard E. Hanan, No. 95-6013 (11th Cir. March

28, 1996) (denial of rehearing and rehearing en banc).

Wyatt v. Richard E. Hanan, No. 3195-N (M.D. Ala. Febru-

ary 15, 1995) (order denying motion to intervene).

Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971).

Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala. 1971).

Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972).

Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972).

Wyatt v. Aderholt, 368 F. Supp. 1382 (M.D. Ala. 1973).

Wyatt v. Aderholt, 368 F. Supp. 1383 (M.D. Ala. 1974).

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

Wyatt v. Wallis, 1986 WL 29194 (M.D. Ala. 1986).

Wyatt, by and Through Rawlins v. King, 793 F. Supp. 1058

(M.D. Ala. 1992).

Wyatt by and Through Rawlins v. King, 803 F. Supp. 377

(M.D. Ala. 1992).

Wyatt by and Through Rawlins v. King, 811 F. Supp. 1533

(M.D. Ala. 1993).

Wyatt v. R. Emmett Poundstone, No. 3195-N (M.D. Ala.

October 3, 1995) (order ruling on motion to recertify the

class).

STATEMENT OF BASIS OF

JURISDICTION IN THIS COURT

The court of appeals entered its unpublished order

on January 31, 1996. Ms. Haas timely moved for rehearing

or rehearing en banc. Under 11th Cir. R. 35-6, all requests

for rehearing en banc are treated as requests for rehearing.

On March 28, 1996, the court of appeals entered its order

denying rehearing and denying rehearing en banc. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

Rule 24. Intervention

(a) Intervention of Right. Upon timely application

anyone shall be permitted to intervene in an action: (1)

when a statute of the United States confers an uncondi-

tional right to intervene; or (2) when the applicant claims

an interest relating to the property or transaction which is

the subject of the action and the applicant is so situated

that the disposition of the action may as a practical mat-

ter impair or impede the applicant’s ability to protect that

interest, unless the applicant’s interest is adequately rep-

resented by existing parties.

(b) Permissive Intervention. Upon timely applica-

tion anyone may be permitted to intervene in an action:

(1) when a statute of the United States confers a condi-

tional right to intervene; or (2) when an applicant's claim

or defense and the main action have a question of law or

fact in common. When a party to an action relies for

ground of claim or defense upon any statute or executive

order administered by a federal or state governmental

officer or agency or upon any regulation, order, require-

ment, or agreement issued or made pursuant to the stat-

ute or executive order, the officer or agency upon timely

application may be pe: nitted to intervene in the action.

In exercising its discretion the court shall consider

whether the intervention will unduly delay or prejudice

the adjudication of the rights of the original parties.

serve a motion to intervene upon the parties as provided

in Rule 5. The motion shall state the grounds therefor and

shall be accompanied by a pleading setting forth the

claim or defense for which intervention is sought. The

same procedure shall be followed when a statute of the

United States gives a right to intervene. When the consti-

tutionality of an act of Congress affecting the public

interest is drawn in question in any action in which the

United States or an officer, agency, or employee thereof is

not a party, the court shall notify the Attorney General of

the United States as provided in Title 28, U.S.C. § 2403.

When the constitutionality of any statute of a State affect-

ing the public interest is drawn in question in any action

in which that State or any agency, officer, or employee

thereof is not a party, the court shall notify the attorney

general of the State as provided in Title 28, U.S.C. § 2403.

A party challenging the constitutionality of legislation

should call the attention of the court to its consequential

duty, but failure to do so is not a waiver of any constitu-

tional right otherwise timely asserted.

STATEMENT

The State of Alabama operates Bryce Hospital to care

for mentally ill cit:zens. R1-1-4. In 1970, several Bryce

employees, along wiih several guardians of Bryce resi-

dents, sued the State and various other defendants.

R1-1-2. The employees sought to represent a class of

similarly situated employees, and the guardians and resi-

dents sought to represent a class cf similarly situated

guardians and residents. R1-1-2. One lawyer represented

both groups of named plaintiffs and both putative

classes. R1-1-7. The complaint prayed for a decree requir-

ing defendants “. . . to insure and [to] direct that no

present course of mental health treatment and services

now being given to plaintiffs who are patients shall be in

any way interrupted, changed, or interfered with.”

R1-1-7. The complaint also sought an injunction prohibit-

ing the defendants from firing Bryce employees. Id.

Plaintiffs requested a preliminary injunction. R1-3-1.

Mrs. W.C. Rawlins submitted an affidavit in support of

the motion. R1-3-11. Mrs. Rawlins was the guardian for

Ricky Wyatt, a mentally ill child who was also one of the

named plaintiffs in the case. R1-3-11. In her affidavit,

Mrs. Rawlins revealed that she was also a Bryce

employee. R1-3-11. Under oath, she stated that Bryce

provided Ricky with good care. R1-3-11. The district

court later found that Bryce was a degrading, humiliating

institution. Wyatt v. Stickney, 334 F. Supp. 1341, 1343

(M.D. Ala. 1971).

Plaintiffs amended their complaint to name the

Superintendent of Partlow State School as a defendant.

R1-13-1. The State operated Partlow to care for mentally

retarded citizens. Wyatt v. Stickney, 344 F. Supp. 387, 389

(M.D. Ala. 1972). Plaintiffs alleged that they or members

of their putative class were in danger of being transferred

to Partlow. R1-13-2.

According to the district court, when the plaintiffs

added the superintendent of Partlow as a defendant, they

expanded their class to include residents of Partlow as mem-

bers of the class they sought to represent. Wyatt v. Stickney,

344 F. Supp. at 389. Thus, mentally ill residents of Bryce

ostensibly came to represent mentally retarded residents

of Partlow. Nonetheless, the district court did not enter

an order formally certifying a class.

For reasons not entirely clear from the record, the

case began to focus on the care that defendants provided

to mentally ill and mentally retarded individuals, rather

than on how the defendants treated Bryce employees.

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

shift in focus of litigation). As noted above, the district

court found that Bryce was inhumane. Wyatt v. Stickney,

334 F. Supp. at 1343. The court also found that Partlow

was grotesquely inadequate. Wyatt v. Stickney, 344 F.

Supp. at 391. To remedy these shortcomings, the court

adopted two sets of standards designed to ensure ade-

quate care. Wyatt v. Stickney, 344 F. Supp. at 379 (adopting

Bryce standards); Wyatt v. Stickney, 344 F. Supp. at 395

(adopting Partlow standards). Eventually known as the

Wyatt standards, one set applied to Bryce and the other

applied to Partlow. The court enjoined the defendants

from failing to comply with the Wyatt standards. Id.

Plaintiffs and defendants began litigating whether

defendants had complied with the Wyatt standards. Wyatt

by and Through Rawlins v. King, 811 F. Supp. 1533, 1535

(M.D. Ala. 1993) (discussing history of litigation over

Wyatt standards). Eventually, plaintiffs began “. . . to

expand the focus of the litigation to the provision of

community placements.” Compare Wyatt by and Through

Rawlins v. King, 803 F. Supp. 377, 385 (M.D. Ala. 1992),

with Wyatt v. Aderholt, 503 F.2d 1305, 1317 (Sth Cir. 1974)

(noting that plaintiffs previously sought “. . . only to

ensure that conditions in the state institutions will be

such that patients confined there will have a chance to

receive adequate treatment”). In 1986, the court approved

a consent decree purporting to end that round of the

litigation. R6-1101-1. The decree required the defendants

to make reasonable progress in placing mentally ill citi-

zens and mentally retarded citizens into facilities based in

the community. R6-1101-3.

In 1991, defendants moved the district court to enter

an order finding that they had complied with the 1986

decree and terminating this litigation. R6-1167-1. In 1993,

plaintiffs requested the district court to find that defen-

dants had violated the 1986 decree. R6-1564-1. Plaintiffs

also alleged that defendants violated the Americans with

Disabilities Act by segregating mentally ill citizens and

mentally retarded citizens from the rest of the general

population. R6-1563-1.

In the midst of the latest round of litigation, Bridget

Haas moved for leave to intervene in this action.

R11-131-1. Ms. Haas made this motion by and through

her father and legal guardian, William E. Haas. Id. Ms.

Haas is a profoundly retarded adult who resides at Part-

low. Id. She alleged that she could not receive adequate

care at a community based facility, and that she needed to

remain at Partlow. R11-131-13. She further alleged that

Partlow should be required to continue to improve its

care.

The district court denied Ms. Haas’s motion to inter-

vene. R16-611-1. The district court concluded that existing

parties adequately protected Ms. Haas’s interests. Id. The

United States Court of Appeals for the Eleventh Circuit

held that the district court’s conclusion was not “clearly

erroneous.” Because the court of appeals believes that it

lacks jurisdiction over appeals from decisions correctly

denying leave to intervene, the court dismissed the

appeal.

Ms. Haas applied for rehearing or, in the alternative,

rehearing en banc. She argued that the court of appeals

had erred by employing a clearly erroneous standard to

review the decision of the district court. She also argued

that the court erred by failing to reverse the decision of

the district court. The court denied her application for

rehearing.

When the court of appeals heard oral argument in

this matter, the court also heard argument on two other

matters arising from the Wyatt litigation. In one matter,

the defendants sought to appeal from an order certifying

the class, which order was entered after Ms. Haas was

denied leave to intervene. In the other matter, the defen-

dants sought a writ of mandamus requiring United States

District Court 'udge Myron Thompson to recuse himself.

As yet, the court of appeals has not entered decisions in

this matter.

ARGUMENT FOR ALLOWANCE OF THE WRIT

A. On the question of whether to apply an abuse

of discretion or a de novo standard of review to

appeals from orders denying intervention as of

right, the decisions of the courts of appeals are

in conflict.

To intervene as a matter of right under Fed. R. Civ.

-Pro. 24(a), a movant must show 1) that her motion to

intervene was timely, 2) that she claims an interest relat-

ing to the transaction which is the subject of the action, 3)

that her situation is such that the disposition of the action

may impair her ability to protect her interest, and 4) that

existing parties may be inadequate to protect her interest.

Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989).

Although they apply an abuse of discretion standard to

determine whether a motion to intervene is timely, sev-

eral courts of appeal have applied a de novo standard of

review to determine whether district courts have erred by

finding that defendants have failed to meet the other

requirements for intervention under Rule 24(a). B.H. v.

McDonald, 49 F.3d 294 (7th Cir. 1995); Alameda Water &

Sanitation Dist. v. Browner, 9 F.3d 88 (10th Cir. 1993); Sierra

Club v. Robertson, 960 F.2d 83 (8th Cir. 1992); United States

v. Texas Eastern Transmission Corp., 923 F.2d 410 (5th Cir.

1991); Grubbs v. Norris, 870 F.2d 343 (6th Cir. 1989). Other

courts of appeal have employed an abuse of discretion

standard to review such decisions. In re Sierra Club, 945

F.2d 776 (4th Cir. 1991); International Paper v. Town of Jay,

Me., 887 F.2d 338 (1st Cir. 1989); Harris v. Pernsley, 820

F.2d 592 (3d Cir. 1987); California v. Tahoe Regional Plan-

ning Agency, 792 F.2d 779 (9th Cir. 1986); United States v.

Hooker Chems. & Plastics, 749 F.2d 968 (2d Cir. 1984).

Prior to this case, it appeared that the United States

Court of Appeals for the Eleventh Circuit employed a de

novo standard of review to determine whether a district

court erroneously denied a motion to intervene as of

right, except when the district court had held that the

motion was untimely. See, e.g., Federal Sav. & Loan Ins.

Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211 (11th

Cir. 1993). However, in this case, the court of appeals

reasoned that the district court had found, as a factual

matter, that existing parties adequately protect Ms.

Haas’s interests. Because the court of appeals could not

say that this supposed factual finding was “clearly erro-

neous,” the court refused to reverse the denial of inter-

vention. We submit there is little, if any, distinction

between the clearly erroneous standard and the abuse of

discretion standard. Cooter & Gell v. Hartmarx Corp., 496

U.S. 384, 401 (1990); Childress, Federal Standards of Review

(2nd Ed) § 4.21. Thus, in this case, the court of appeals

rendered a decision in accordance with those opinions

employing an abuse of discretion standard to review

denials of motions to intervene.

In its per curiam opinion, the court of appeals did not

explain why it employed a clearly erroneous standard in

this case, even though the court had previously employed

a de novo standard in other cases. However, we note that

the Honorable Levin H. Campbell, Senior U.S. Circuit

Judge for the First Circuit, sat by designation on the

panel deciding this case. We further note that then Chief

Judge Campbell wrote the opinion for the court in Inter-

national Paper v. Town of Jay, Me., 887 F.2d 338 (1st Cir.

1989). In International Paper, 887 F.2d at 344, the first

circuit adopted the abuse of discretion standard to review

orders denying leave to intervene.

We submit that the question of adequate representa-

tion is a legal question, notwithstanding the view of the

court of appeals in this case. Even when one considers

the opinions of the courts which employ an abuse of

discretion standard, it seems clear that the question of

whether intervention should be allowed as a matter of

right is a legal question, not a factual one. In In re Sierra

Club, 945 F.2d at 780, the court of appeals held that the

district court committed an abuse of discretion by finding

that the South Carolina Department of Health and Envi-

ronmental Control adequately represented the Sierra

Club in an action involving hazardous waste permits,

because the Department was charged with representing

the interests of the entire State, while the Sierra Club only

represented the interests of environmentalists. In Harris v.

Pernsley, 820 F.2d at 601, the court held that the district

court committed no abuse of discretion by finding that a

judicial decree would fuil to implicate the legal duties of a

district attorney, if the decree required a jail to discharge

prisoners.

Regardless of whether In Re Sierra Club and Harris v.

Pernsley were correctly decided, the issues before those

courts were legal. Absent some evidence of collusion, the

question of whether a State represents the interests of all

of its citizens or only a few does not turn on the inter-

pretation of physical evidence or whether witnesses tell

the truth. The question of whether discharging prisoners

will affect the legal duties of a district attorney would not

likely involve a decision on whether one piece of evi-

dence was more probative than another.

Bail

Although the court of appeals apparently viewed the

finding of adequate representation in this matter as a

finding of fact, the district court did not purport to base

its decision on the weight of the evidence or any other

matter typically associated with a factual finding. Thus,

the district court did not purport to decide that Ms. Haas

really does not live at Partlow or that she would really be

better off residing somewhere else. Instead, the district

court held Ms. Haas was adequately represented by the

existing parties, because the court found that she failed to

raise any issues except those raised by the parties. We

presume the district court reached this decision by refer-

ring to the pleadings, motions, and briefs in the record.

As a general rule, appellate courts review legal ques-

tions de novo. The decision to apply this standard is an

important one. This Court has characterized de novo

review as quite searching and intrusive, justifying review

of the entire record. Pierce v. Underwood, 487 U.S. 552, 560

(1988); Anderson v. Bessemer City, 470 U.S. 564, 574-75

(1985). The phrase “de novo” implies that the reviewing

court will look at the question anew and will decide the

case according to its own views, rather than deferring to

the views of the district court.

In contrast, under an abuse of discretion standard or

a clearly erroneous standard, the court of appeals must

defer to the findings of the district court. Cooter & Gell v.

Hartmarx Corp., 496 U.S. at 404, 405 (1990). In United

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948), the

Court wrote: “A finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.”

Although the distinction between the de novo standard

and the abuse of discretion standard is impossible to

quantify, the choice of which standard to apply can deter-

mine the outcome of an appeal. Salve Regina College v.

Russell, 499 U.S. 225, 239 (1991). In a tax case, the court

below has very clearly stated its own views on this sub-

ject:

Quite frankly, we would have affirmed the dis-

trict court had it reached a different result, and

if we were reviewing this matter de novo, we

may well have decided it differently. By defini-

tion, however, under the abuse of discretion

standard of review there will be occasions in

which we affirm the district court even though

we would have gone the other way had it been

our call. That is how an abuse of discretion

standard differs from a de novo standard of

review. As we have stated previously, the abuse

of discretion standard allows “a range of choice

for the district court, so long as that choice does

not constitute a clear error of judgment.” United

States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989)

(citing Kern v. TXO Prod. Corp., 738 F.2d 968,

970-71 (8th Cir. 1984) (“The very concept of dis-

cretion presupposes a zone of choice within

which the trial courts may go either way.”). We

believe the district court’s decision was within

its range of choice, although perhaps not by a

wide margin, and that no clear error of judg-

ment has been demonstrated. Therefore, we

AFFIRM.

In re Rasbury, 24 F.3d 159, 168-169 (11th Cir. 1994).

In this case, the district court decided that existing

parties adequately protected Ms. Haas’s interests in this

litigation, even though, among other things, 1) she osten-

sibly belonged to a class which had never been certified,

2) the original class representatives had ceased being

active in the litigation, and 3) the “class,” such as it was,

sought relief that she opposed. Had the court of appeals

felt itself free (or obligated) to review the question before

it under a de novo standard, the court may well have

hesitated to reach the same conclusion that the district

court reached.

In summary, we petition the Court to decide whether

courts of appeal should use a de novo standard to review

district court decisions denying intervention as of right,

except when the district denies an application for inter-

vention on grounds of timeliness. With regard to this

issue, the decisions of the courts of appeal are evenly

split. In any given case involving intervention as of right,

this issue could be important, because its answer could

determine the outcome of an appeal. In this particular

case, the issue is unusually important, because the court

of appeals (or, indeed, this Court) may well have decided

to reverse the district court’s decision, if the court had

made its own judgment about the propriety of interven-

tion.

B. The court of appeals sanctioned a substantial

departure from the accepted and usual course

of judicial proceedings.

Ms. Haas ostensibly belongs to the plaintiff class in

this action. That class moved the court to enter an order

finding the defendants have violated the Americans with

Disabilities Act by segregating mentally retarded persons

from the rest of the population. In particular, the class

urges the district court to require defendants to care for

mentally retarded persons in community facilities, rather

than in large congregate care facilities such as Partlow.

Ms. Haas’s guardian firmly believes that Ms. Haas needs

the type of care afforded in congregate care facilities and

that her needs would not be met in a community care

facility.

Despite the clear conflict between the goals of the

class and Ms. Haas, the district court held that existing

parties adequately represent Ms. Haas’s interests. The

court of appeals affirmed that holding as not “clearly

erroneous.” In doing so, the court of appeals sanctioned a

departure from the usual and accepted course of judicial

proceedings, so that the exercise of this Court’s super-

visory power is necessary.

The extent of this departure can be appreciated when

viewed in light of the condition of this action when Ms.

Haas moved for leave to intervene. At that time, the

action had been pending for nearly 25 years. Notwith-

standing Fed. R. Civ. Pro. 23(c)(1), the district court had

yet to enter an order formally certifying the class. The

original named representatives of the class were no

longer active in the action. The named representatives

had never included a profoundly retarded person, much

less a resident of Partlow. The district court thus denied

Ms. Haas the opportunity to intervene, even though her

interests were adverse to the headless, formless class to

which she allegedly belonged.

The court of appeals appeared to go out of its way to

sanction this state of affairs. After the district court

SSN

denied Ms. Haas’s motion to intervene, the district court

entered an order certifying the class and allowing other

persons, including a mentally retarded man, to intervene

as named representatives. Yet the court of appeals

expressly based its holding on the state of the record

when the district court denied Ms. Haas’s motion. Wyatt

v. Hanan, No. 95-6013, p.4 n.2 (11th Cir. 1996) (stating,

“Our holding today is based on the state of the record

before the district court at the moment it denied Haas

leave to intervene.”).

The district court implied that the defendants ade-

quately protected Ms. Haas’s interests. However, it

should be noted that nothing in the law charges the

defendants with the responsibility of protecting Ms.

Haas’s interests. The defendants presumably have an

extraordinary number of interests in this action, which

has consumed over a quarter of a century and which has

involved practically, if not literally, every aspect of defen-

dants’ actions regarding mentally ill and mentally

retarded persons in the defendants’ custody. Assuming

that they are willing to undertake an obligation that they

are unobligated to bear, and further assuming that they

are willing to elevate Ms. Haas’s interests to a status

equal to or greater than their own, one must bear in mind

the early history of this litigation, in which the district

court found that the defendants treated mentally retarded

persons in an unimaginably terrible fashion. Although

defendants have improved their conduct, the district

court still holds a very dim view of them. They are in no

event adequate to protect Ms. Haas’s interests.

In Trbovich v. United Mine Workers, 404 U.S. 528, 539

n.5 (1972), this Court observed that a person should be

allowed to intervene if existing parties “may be” inade-

quate to represent that person’s interests. The Court fur-

ther observed that a person seeking intervention need

only make a minimal showing to demonstrate the possi-

ble inadequacy of representation. Id. The Advisory Com-

mittee Notes on the 1966 Amendment to Fed. R. Civ. Pro.

24 state that a person should be allowed to intervene in a

class action, if the person is a member of the class and if

the class representative inadequately represents him. In

refusing to reverse the decision of the district court, the

court of appeals sanctioned a substantial departure from

these principles. Only an exercise of this Court’s super-

visory power can remedy that departure.

In summary, we ask this Court to decide whether the

district court erred by denying intervention, regardless of

whether the district court’s decision is reviewed for legal

error or for abuse of discretion.

Respectfully submitted,

CHARLES COATSWORTH PINCKNEY

JAMES FRANKLIN OZMENT

Counsel for Petitioner

Of Counsel:

LANGE, SIMPSON, ROBINSON

& SOMERVILLE

Attorneys & Counselors

417 20th Street North

Suite 1700

Birmingham, Alabama 35203-3272

Telephone: (205) 250-5000

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-6013

D. C. Docket No. CV-70-T-3195-N

RICKY WYATT, by and through his Aunt and Legal

Guardian, Mrs. W. C. Rawlins, Jr..GLENDA BRANDNER,

by and through her husband and legal guardian, Wolf-

gang Brandner; DAVIS S. SCHOEL, by and through his

father and legal guardian, J. FRED SCHOEL, Dr., D. A. R.

PEYMAN, JR., JOSEPH L. MOUDRY, BRENDA N.

STACEY, WILLIAM HOLDEN, JR., AMELIA B. HEATH,

for themselves and all others similarly situated,

Plaintiffs,

DIANE MARTIN, MARY BETH PARKER, WILLIAM

SMITH, ADELIA KEEBLER, MICHAEL GUINS, RICH-

ARD MILLS, KIM SMELLEY, FRANKIE HOPKINS, KEN-

NETH COOK, WAYNE WILLIAMS,

Intervenors,

WILLIAM HAAS, as Guardian and next friend of

BRIDGET ANN HAAS,

Movant-Appellant,

versus

RICHARD E. HANAN, as Commissioner of Mental

Health and the State of Alabama Mental Health Officer;

HENRY STEAGALL, individually and in his capacity as

Director of Finance for the State of Alabama; TOM

BRASSELL, individually and in his capacity as Comptrol-

ler of the State of Alabama; ANNIE LAURIE GUNTER,

individually and in her capacity as Treasurer of the State

App. 2

of Alabama; KEN WALLIS, as Receiver of the mental

illness and mental retardation operation,

Defendants-Appellees,

UNITED STATES OF AMERICA,

Amicus.

Appeal from the United States District Court

for the Middle District of Alabama

(January 31, 1996)

Before TJOFLAT, Chief Judge, RONEY and CAMPBELL",

Senior Circuit Judges.

PER CURIAM:

William Haas, as guardian and next friend of Bridget

Ann Haas, appeals the district court’s denial of his

motion to intervene in this long-standing class action

concerning the conditions in Alabama’s institutions for

the mentally ill and the mentally retarded. See

Fed.R.Civ.P. 24(a). We find no error in the court’s refusal

to allow Haas to intervene as a matter of right.! We

therefore dismiss Haas’ appeal for want of jurisdiction.

See Chiles v. Thornburgh, 865 F.2d 1197, 1212 (11th Cir.

1989); EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 637

*Honorable Levin H. Campbell, Senior U.S. Circuit Judge for the

First Circuit, sitting by designation.

1 Alternatively, Haas sought permissive intervention under

Fed.R.Civ.P. 24(b). The district court denied that motion as well.

Haas does not appeal this portion of the district court’s ruling,

and thus we deem the issue abandoned.

App. 3

(11th Cir. 1984) (“If we find that the district court’s dispo-

sition of the petition to intervene was correct, [or within

its discretion,] then our jurisdiction evaporates because

the proper denial of leave to intervene is not a final

decision, and we must dismiss the[ ] appeal[ ] for want of

jurisdiction.”).

In 1972, the district court granted the plaintiffs

injunctive relief that required the officials of the Alabama

Department of Mental Health and Mental Retardation to

bring their facilities into compliance with certain minimal

federal constitutional standards. In 1986, the court

approved a consent decree that resolved conflicts

between the parties over the adequacy of the state’s fund-

ing and administration of facilities under the court-

ordered standards. Most recently, the district court has

held hearings on the defendants’ compliance (or noncom-

pliance) with the decree and for further relief under the

Americans with Disabilities Act of 1990.

Bridget Ann Haas, the daughter of William Haas, is a

resident of the Partlow Development Center in

Tuscaloosa, Alabama. She is thirty years old, but has the

mental ability of an eighteen-month-old child. Haas

asserts in his moving papers that Bridget is entitled “to

continue to receive, at Partlow, care of the type currently

provided by Partlow . . . subject to reasonable improve-

ments as indicated by medical science.” He contends that

the class plaintiffs in this case are urging the court “to

decrease the services offered at Partlow or to close Part-

low.” He has therefore asked the district court, after

granting him intervention, to order the defendants to

keep Partlow open and to continue to provide needed

individual care to Bridget at that institution and, further,

A ii

App. 4

to continue to improve Partlow’s facilities and programs

as long as Bridget resides there. In short, Haas wants the

court to ensure that Partlow will not be closed and that

his daughter will be allowed to remain there indefinitely.

We cannot say that the district court’s finding of fact

— that Haas’ and his daughter’s interests are being ade-

quately protected — is clearly erroneous. Given that inad-

equacy of representation (of the putative intervenor’s

interest) is an indispensable element of a claim of inter-

vention as a matter of right, Chiles v. Thornburgh, 865 F.2d

1197, 1213 (11th Cir. 1989), and that Haas’ motion fails on

that point, the district court’s denial of intervention as of

right must be affirmed and the appeal dismissed.?

APPEAL DISMISSED.

2 In affirming the district court’s decision to deny

intervention, we are mindful of the fact that Haas and his

daughter have yet to suffer the untoward consequences they

fear may result in due time. Accordingly, if in the future the

plaintiffs are not adequately representing the Haas’ interests,

the Haases may once again seek leave to intervene in this case.

Our holding today is based on the state of the record before the

district court at the moment it denied Haas leave to intervene.

App. 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-6013

RICKY WYATT, by and through his Aunt and Legal

Guardian, Mrs. W. C. Rawlins, Jr.,GLENDA BRANDNER,

by and through her husband and legal guardian, Wolf-

gang Brandner; DAVIS S. SCHOEL, by and through his

father and legal guardian, J. FRED SCHOEL, Dr., D. A. R.

PEYMAN, JR., JOSEPH L. MOUDRY, BRENDA N.

STACEY, WILLIAM HOLDEN, JR., AMELIA B. HEATH,

for themselves and all others similarly situated,

Plaintiffs,

DIANE MARTIN, MARY BETH PARKER, WILLIAM

SMITH, ADELIA KEEBLER, MICHAEL GUINS, RICH-

ARD MILLS, KIM SMELLEY, FRANKIE HOPKINS, KEN-

NETH COOK, WAYNE WILLIAMS,

Intervenors,

WILLIAM HAAS, as Guardian and next friend of

BRIDGET ANN HAAS,

Movant-Appellant,

versus

RICHARD E. HANAN, as Commissioner of Mental

Health and the State of Alabama Mental Health Officer;

HENRY STEAGALL, individually and in his capacity as

Director of Finance for the State of Alabama; TOM

BRASSELL, individually and in his capacity as Comptrol-

ler of the State of Alabama; ANNIE LAURIE GUNTER,

individually and in her capacity as Treasurer of the State

App. 6

of Alabama; KEN WALLIS, as Receiver of the mental

illness and mental retardation operation,

Defendants-Appellees,

UNITED STATES OF AMERICA,

Amicus.

Appeal from the United States District Court

for the Middle District of Alabama

Before TJOFLAT, Chief Judge, RONEY and CAMPBELL’,

Senior Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the Mid-

dle District of Alabama, and was argued by counsel;

UPON CONSIDERATION WHEREOF, it is now

hereby ordered and adjudged by this Court that the

appeal in the above-styled and numbered cause be and

the same is hereby DISMISSED;

It is further ordered that movant-appellant pay

defendants-appellees the costs on appeal to be taxed by

the Clerk of this Court.

“Honorable Levin H. Campbell, Senior U. S. Circuit Judge for

the First Circuit, sitting by designation.

App. 7

Entered: January 31, 1996

For the Court: Miguel J. Cortez, Clerk

By: /s/ Mathew Davidson

Deputy Clerk

ISSUED AS MANDATE: 4-5-96

App. 8

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-6013

RICKY WYATT, by and through his Aunt and Legal

Guardian, Mrs. W. C. Rawlins, Jr... GLENDA BRANDNER,

by and through her husband and legal guardian, Wolf-

gang Brandner, DAVIS S. SCHOEL, by and through his

father and legal guardian, J. FRED SCHOEL, Dr., D. A. R.

PEYMAN, JR., JOSEPH L. MOUDRY, BRENDA N.

STACEY, WILLIAM HOLDEN, JR., AMELIA B. HEATH,

for themselves and all others similarly situated,

Plaintiffs,

DIANE MARTIN, MARY BETH PARKER, WILLIAM

SMITH, ADELIA KEEBLER, MICHAEL GUINS, RICH-

ARD MILLS, KIM SMELLEY, FRANKIE HOPKINS, KEN-

NETH COOK, WAYNE WILLIAMS,

Intervenors,

WILLIAM HAAS, as Guardian and next friend of

BRIDGET ANN HAAS,

Movant-Appellant,

versus

RICHARD E. HANAN, as Commissioner of Mental

Health and the State of Alabama Mental Health Officer,

HENRY STEAGALL, individually and in his capacity as

Director of Finance for the State of Alabama, TOM

BRASSELL, individually and in his capacity as Comptrol-

ler of the State of Alabama, ANNIE LAURIE GUNTER,

individually and in her capacity as Treasurer of the State

App. 9

of Alabama, KEN WALLIS, as Receiver of the mental

illness and mental retardation operation,

Defendants-Appellees,

UNITED STATES OF AMERICA,

Amicus.

On Appeal from the United States District Court

for the Middle District of Alabama

(Filed Mar. 28, 1996)

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

(Opinion __, 11th Cir, 19__, ___ F.2d __).

BEFORE: TJOFLAT, Chief Judge, RONEY and CAMP-

BELL*, Senior Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of

this panel nor other Judge in regular active service on the

Court having requested that the Court be polled on rehear-

ing en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing

En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Gerald Bard Tjoflat

CHIEF JUDGE

*Honorable Levin H. Campbell, Senior U.S. Circuit Judge for the

First Circuit, sitting by designation.

App. 10

IN THE DISTRICT COURT OF THE

UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

RICKY WYATT, by and through

his aunt and legal guardian, Mrs.

W. C. Rawlins, Jr., et al.,

Plaintiffs,

DIANE MARTIN, et al.,

Plaintiff-Intervenors,

RICHARD E. HANAN, as

Commissioner of Mental Health

and Mental Retardation, and the

State of Alabama Mental Health

Officer, et al.,

Defendants,

UNITED STATES OF AMERICA,

Amicus Curiae.

ORDER

This lawsuit is before the court on a motion to inter-

)

CIVIL

ACTION

NO. 3195-N

(Filed

Feb. 15, 1995)

vene filed by William Edward Haas, as next friend and

legal guardian of his daughter, a mentally incompetent

woman who is now a resident of one of the State of

Alabama’s institutions for the mentally retarded and

mentally ill. For the reasons that follow, the court con-

cludes that Haas’s motion should be denied.

App. 11

I. BACKGROUND

The plaintiffs filed this class-action lawsuit in 1970

claiming that conditions in Alabama’s institutions for the

mentally ill and the mentally retarded violated the

patients’ constitutional rights. In 1972, the court found in

favor of plaintiffs and entered injunctions requiring offi-

cials of the Alabama Department of Mental Health and

Mental Retardation to bring their facilities into compli-

ance with certain minimal constitutional standards. Wyatt

v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972) (standards

for mentally ill), aff'd in relevant part, 503 F.2d 1305 (Sth

Cir. 1974); Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala.

1972) (standards for mentally retarded), aff'd in relevant

part, 503 F.2d 1305 (5th Cir. 1974). Fourteen years later, on

September 22, 1986, the court approved a consent decree

that resolved the plaintiffs’ and the defendants’ contin-

ued conflicts over the adequacy of the state’s funding and

administration of facilities under the court-ordered stan-

dards.' In 1991, a new round of litigation began. On

January 18, 1991, the defendants filed a motion for a

finding that they have met their obligations under the

1986 consent decree and for an order terminating this

lawsuit. On January 22, 1993, the plaintiffs responded by

filing a motion to enforce the 1986 consent decree and for

further relief based on the consent decree and the Ameri-

cans with Disabilities Act of 1990, 42 U.S.C.A.

' The consent decree is reproduced at Wyatt v. Wallis, No.

3195-N, 1986 WL 69194 (M.D. Ala. Sept. 22, 1986). Modifications

of the court-ordered standards have also been approved. See,

e.g., Wyatt v. King, 793 F. Supp. 1058 (M.D. Ala. 1992).

App. 12

§§ 12101-12213. The motions are set for trial in March

1995.2

It is within this context, after 24 years of litigation

and court involvement with the Alabama Mental Health

and Mental Retardation Systems, that Haas seeks to inter-

vene on behalf of his daughter.*

II. DISCUSSION

Haas seeks to intervene as a matter of right and,

alternatively, as a matter of discretion, based on Rule 24

of the Federal Rules of Civil Procedure. Under subsection

(a)(2) to Rule 24, a party seeking to intervene as a matter

of right must meet the following requirements: (1) the

application must be timely; (2) the interest asserted must

relate to the property or transaction that is the subject of

the action; (3) the applicant must be situated such that

disposition of the action may impede or impair the appli-

cant’s ability to protect that interest; and (4) the interest

asserted must be represented inadequately by the existing

2 These motions were previously set for trial in January

1995.

3 Haas seeks to represent his daughter pursuant to Rule

17(c) of the Federal Rules of Civil Procedure, which provides

that, “Whenever an infant or incompetent person has a

representative, such as a general guardian, committee,

conservator, or other like fiduciary, the representative may sue

or defend on behalf of the infant or incompetent person.”

App. 13

parties to the lawsuit.* Chiles v. Thornburgh, 865 F.2d 1197,

1213 (11th Cir. 1989). If these four requirements are all

met, intervention must be granted. Id. at 1213. If any of

these requirements is not met, the intervention as of right

is not proper. Bush v. Viterna, 740 F.2d 350, 354 (5th Cir.

1984). Because Haas has failed to satisfy the fourth

requirement — that is, he has not proved that the interests

he seeks to assert are not already adequately represented

~ the court discusses only this requirement and does not

reach whether the other requirements are satisfied.

The requirement that an intervenor not be adequately

represented by existing parties “is satisfied if the appli-

cant shows that representation of his interest ‘may be’

inadequate; and the burden of making that showing

should be treated as minimal.” Trbovich v. United Mine

Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10

(1972). “However ‘minimal’ this burden may be, it cannot

be treated as so minimal as to write the requirement

completely out of the rule.” Bush, 740 F.2d at 355. “ ‘When

the party seeking intervention has the same ultimate

objective as a party to the suit, a presumption arises that

its interests are adequately represented, against which the

4 Subsection (a)(2) to Rule 24 provides:

“Upon timely application anyone shall be permitted

to intervene in an action: . . . when the applicant

claims an interest relating to the property or

transaction which is the subject of the action and the

applicant is so situated that the disposition of the

action may as a practical matter impair or impede the

applicant's ability to protect that interest, unless the

applicant’s interest is adequately represented by

existing parties.”

App. 14

petitioner must demonstrate adversity of interest, collu-

sion, or nonfeasance.’ ” Id. (quoting Commonwealth of Vir-

ginia v. Westinghouse Electric Corp., 542 F.2d 214, 216 (4th

Cir. 1976)) (intervening citations omitted). The party

seeking intervention must “contribute” something to the

“lawsuit beyond underlining the positions already taken”

by the current parties. Bush, 740 F.2d at 357.

Haas’s daughter is a profoundly mentally retarded

resident of the William D. Partlow Developmental Center

in Tuscaloosa, Alabama. She is 30-years old and has the

mental ability of an 18-month-old child. Haas asserts in

his proposed complaint-in-intervention that, under both

federal and state law, his daughter is entitled “to continue

to receive, at Partlow, care of the type currently provided

by Partlow,”> “subject to reasonable improvements as

indicated by medical science.”© He concludes his com-

plaint-in-intervention with the allegation that “certain

organizations and entities styled as parties-plaintiffs have

urged this court to decrease the services offered at Part-

low or to close Partlow.”” Haas is essentially asking that

the defendants be enjoined (1) to keep Partlow open and

to continue to provide needed individual care to his

daughter at that facility and (2) to continue to make the

necessary improvements of the facility and programs at

Partlow as long as she is a resident there.®

> Haas’s proposed complaint-in-intervention {J 14 & 15

(attached to his motion to intervene filed on September 21, 1994,

(Doc. no. 131)).

7 Id. at { 16.

8 Haas’s brief filed on October 7, 1994, at 11 (Doc. no. 197).

e--F

App. 15

The court acknowledges and the parties do not chal-

lenge that Haas’s daughter has a “direct, substantial,

legally protectible interest” in this litigation, Chiles, 865

F.2d at 1214, as do all residents of the Alabama Mental

Health and Mental Retardation System. The critical ques-

tion instead is whether this interest is not being already

adequately pursued and litigated by the current parties to

this lawsuit. Haas divides his interest - which, of course,

he asserts on behalf of his daughter — into the following

three parts: (1) his daughter’s interest in remaining a

resident at the Partlow facility, because only Partlow can

provide effective and adequate habilitation for her and

similarly situated profoundly retarded and mentally

incompetent persons; (2) her interest in having the defen-

dants maintain and improve the Partlow facility and

habilitation programs; and (3) her right to participate

directly in the decision-making process that materially

affects her own future.

It is apparent from Haas’s brief in support of his

motion to intervene that his principal concern is that the

defendants not be allowed to close Partlow and that his

daughter be allowed to remain a patient there indefi-

nitely. Haas challenges the “overall course of conduct”

required of the defendants by the 1986 consent decree

and by some of the Wyatt standards reaffirmed by that

decree.’ He criticizes the defendants for having entered

into the 1986 decree and for having acquiesced to certain

court orders rejecting the defendants’ efforts to have

some of the Wyatt standards modified or eliminated.'°

9 Id. at 9.

10 Id. at8&9nn.7 & 8.

App. 16

See, e.g. Wyatt v. King, 811 F. Supp. 1533 (M.D. Ala. 1993);

Wyatt v. King, 803 F. Supp. 377 (M.D. Ala. 1992). In

particular, he takes issue with that provision in the 1986

consent decree that requires the defendants “to continue

to make substantial progress in placing members of the

plaintiff class in community facilities and programs,”!!

and with those Wyatt standards that require that patients

receive treatment in the “least restrictive conditions nec-

essary.”!? The validity of any earlier decree or order is

11 Wyatt v. Wallis, No. 3195-N, 1986 WL 69194, at *7 (M.D.

Ala. Sept. 22, 1986).

12 Haas takes issue with the following standards governing

the mentally retarded:

(a) the requirement that “no person shall be

admitted to the institution unless a prior

determination shall have been made that residence in

the institution is the least restrictive habilitation

setting feasible for that person” (Standard II-3(a));

(b) the requirement that “no mentally retarded

person shall be admitted to the institution if services

and programs in the community can afford adequate

habilitation to such person” (Standard II-3(b));

individualized treatment plan shall contain “a

statement of the least restrictive setting for

habilitation necessary to achieve the habilitation

goals of the resident” (Standard III-9(d)), and

“criteria for release to less restrictive settings for

habilitation” (included in Standard III-9(f)); and

(d) the requirement that the staff member

supervising implementation of the treatment plan

“shall also be responsible for ensuring that the patient

is released when appropriate to a less restrictive

habilitation setting” (included in Standard III-11).

Wyatt, 344 F. Supp. at 396-98.

ee Se, EE ee ee ee aCe ee ee ae ee aT

App. 17

simply not at issue in the upcoming litigation. Haas

therefore has no right to intervene to challenge these

earlier orders.

Haas contends next that the plaintiffs and the defen-

dant “may or may not” take the position that Partlow is

the “least restrictive setting” for his daughter.'* Admit-

tedly, the plaintiffs and the defendants are now engaged

in a dispute over the defendants’ obligation to place

patients in the “least restrictive environment” and, where

appropriate, in “community facilities.” But as to this dis-

pute, Haas has not shown that he has “has anything to

contribute to this lawsuit beyond underlining the posi-

tions already taken by” the current parties. Bush, 740 F.2d

at 357. He suggests that he has “both general and specific

proposals with regard to the operation of Partlow by the

Defendants, proposals that other Plaintiffs may neither

imagine nor support,” but he has not identified these

proposals.!4 He has therefore not identified a single issue

that would not be litigated or single position that would

not be advanced in his absence.

This is therefore “not a suit in which no existing

party has voiced applicant’s concerns,” Bush, 740 F.2d at

357; “this is not a case where the applicant has a defense

not available to the present defendant,” id.; “this is not a

suit in which it is clear that the applicant will make a

more vigorous presentation of arguments than existing

parties,” id.; “this is not a suit in which no party views

the applicant’s claims favorably,” id.; “this case is more

13 Haas’s brief filed on October 7, 1994, at 9 (Doc. no. 197).

14 Id. at 11.

App. 18

closely aligned with those cases in which courts have

determined that the burden of showing inadequacy of

representation has not been met.” Id. Indeed, a review of

the record in this lawsuit indicates that the ongoing battle

between parties over the issues of “least restrictive envi-

ronment” and “community placement” is detailed, sin-

cere, and vigorously adversarial; these issues are, if

anything, being over-litigated.

Haas further complains that the plaintiffs and the

defendants may in the future enter into a settlement that

is adverse to the interest of his daughter. He states that it

is “by no means impossible that the Defendants

and... the Plaintiffs may at some time concur — albeit for

significantly different reasons - in denying the desir-

ability (or even the propriety) of maintaining persons in

residence at Partlow.”!5 “However, the mere possibility

that a party may at some future time enter into a settle-

ment cannot alone show inadequate representation.”

Bush, 740 F.2d at 358.

Similarly, Haas has not shown that the current parties

are inadequately pursuing his daughter’s interest in hav-

ing the defendants maintain and improve the Partlow

facility and habilitation programs. Again, he has not

identified a single issue that would not be litigated or

single position that would not be advanced in his

absence.

Finally, Haas’s interest in participating directly in the

decision-making process that materially affects his

daughter’s own future begs the question as to whether

1S Id. at 11.

App. 19

the current parties are adequately representing his

daughter’s interest as to the issues now before the court.

As already shown above, the parties are adequately rep-

resenting her interests.'¢

As stated, Haas also seeks to intervene as a matter of

the court’s discretion pursuant to subsection (b)(2) of

Rule 24.!7 The court has discretion to allow intervention if

an applicant can show that (1) the application to inter-

vene is timely and (2) the claim or defense to be asserted

and the main action have a question of law or fact in

common. Chiles, 865 F.2d at 1213. The litigation before the

court is a complex class-action lawsuit involving the

16 Haas suggests that he should be allowed to intervene

because none of the named class representatives is a resident of

Partlow. Nevertheless, he has still not shown that his daughter’s

interests are not be adequately pursued; and, at an in-chambers

conference on January 6, 1995, he voiced no desire to be a class

representative. In any event, the issues of the need for new class

representatives and whether the current class representatives

need to be replaced are now being separately addressed in

motions filed by the defendants. See defendants’ motion to

recertify or modify the plaintiff class, filed on December 22,

1994 (Doc. no. 417), and their supplement to said motion, filed

on January 18, 1995 (Doc. no. 456).

'7 Subsection (b)(2) of Rule 24 provides in part:

“Upon timely application anyone may be permitted

to intervene in an action: . . . when an applicant's

claim or defense and the main action have a question

of law or fact in common... . . In exercising its

discretion the court shall consider whether the

intervention will unduly delay or prejudice the

adjudication of the rights of the original parties.

—

App. 20

entire Alabama Mental Health and Mental Retardation

System. To allow representatives of all residents who

have an interest in this litigation — that is, all representa-

tives — to intervene would render this lawsuit more

unmanageable and unnecessarily confusing than it

already is.

It is apparent that the real concern behind Haas’s

motion is that, in light of past agreements entered into

between the parties, he is unwilling to continue to rely on

the plaintiffs or the defendants to protect the interests of

his daughter, and that he essentially wants to “be able to

monitor effectively” for himself the actions of the par-

ties.‘ The court finds no fault with Haas’s concern. As

this court has previously stated, the plaintiff class mem-

bers whose interests are at stake in this litigation are

unlikely to be able to “voice” those interests themselves.

Wyatt v. Horsley, 793 F. Supp. 1053, 1056 (M.D. Ala. 1992).

In order to recognize and give due consideration to those

interests, the court and the parties must look to “such

secondary sources as public interest organizations, for-

mer mental patients, and family members and caregivers

who have day-to-day contact with class members in the

state’s institutions.” Id. Therefore, although it is not feas-

ible that Haas and other similarly concerned family mem-

bers, caregivers, and guardians all be made parties to this

18 Haas’s brief filed on October 7, 1994, at 10 (Doc. no. 197).

a eee ee en ee ee ae

one Bee aed = aun

Steere

App. 21

litigation, their close monitoring of this litigation, includ-

ing the actions of the plaintiffs and the defendants, is

encouraged and welcomed by the court.

Accordingly, it is ORDERED that the motion for leave

to intervene, filed on September 21, 1994, by William

Edward Haas, as next friend and legal guardian of his

daughter, is denied.

DONE, this the 15th day of February, 1995.

/s/ Myron H. Thompson

UNITED STATES DISTRICT

JUDGE

App. 22

Ricky WYATT, By and Through his aunt and legal

guardian Mrs. W. C. Rawlins, Jr., et al., etc.,

Plaintiffs-Appellees,

Charles ADERHOLT, as Commissioner of Mental Health,

et al., Defendants, The Alabama Mental Health Board, an

Agency of the State of Alabama, and George C. Wallace,

as Governor of Ala., Defendants-Appellants.

No. 72-2634.

United States Court of Appeals, Fifth Circuit.

Nov. 8, 1974.

Charles M. Crook, Montgomery, Ala., for Gov. Wal-

lace.

William Baxley, Atty. Gen., George Beck, Deputy

Atty. Gen., Montgomery, Ala., for Ala. Mental Health

Board.

George W. Dean, Jr., Destin, Fla., Shelly Mercer, Nat'l.

Health & Environmental Program, School of Law, UCLA,

Los Angeles, Cal., Jack Drake, Tuscaloosa, Ala., Morton

Birnbaum, Brooklyn, N.Y., for plaintiffs-appellees.

Paul Friedman, Patricia M. Wald, Mental Health Law

Project, Washington, D.C., for Nat. Council on the Rights

of the Mentally Impaired.

Bruce Ennis, New York City, for NCRMI & Am. Psy.

Assoc., and others.

Stanley Herr, NLADA, Nat. Law Office, James F.

Fitzpatrick, Jeffrey Bauman, Washington, D.C., Ira

DeMent, U.S. Atty., Kenneth E. Vines, Asst. U.S. Atty.,

Montgomery, Ala., Edward Lynch, President’s Committee

on Mental Retardation, Washington, D.C., for United

States.

AL be il eA 1, Fig ae ee ee ee i ae ees

ee ee oe

eden eA iin Sin adie take Syn Fn Tee ARS ee

App. 23

Robert H. Johnson, Atty., Civil Rights Div., U.S. Dept.

of Justice, Louis M. Thrasher, Associate Director, Wash-

ington, D.C., for United States, amicus curiae.

Charles R. Halpern, Center for Law & Social Policy,

Washington, D.C., for Mental Health Law Project, amicus

curiae.

Warren E. Magee, Washington, D.C., for Amer. Psy-

chiatric Association, amicus curiae.

Sheridan Neimark, Washington, D.C., for NSAC,

amicus curiae.

Before WISDOM, BELL and COLEMAN, Circuit

Judges.

WISDOM, Circuit Judge:

In this case, we must decide whether federal district

courts have the power to order state mental institutions

to provide minimum levels of psychiatric care and treat-

ment! to persons civilly committed to the institutions.

1 ‘Treatment’ means care provided by mental health

professionals and others that is adequate and appropriate for

the needs of the mentally impaired inmate. Treatment also

encompasses a humane physical and psychological

environment. The term ‘habilitation’, used by the parties and

amici in the district court and by the district court in its order of

April 13, 1972 (Partlow State School and Hospital) is a term used

to describe that treatment which is appropriate to the condition

of the mental retardate. For convenience, in this opinion we

group ‘habilitation’ and ‘treatment’ under the single term

‘treatment’, and to include those instances where rehabilitation

is impossible in which event the requirement is minimally

adequate habilitation and care, beyond the subsistence level

App. 24

The guardians of patients civilly committed to three

Alabama facilities for the mentally handicapped brought

this class action on behalf of their wards and other civilly

committed patients at those institutions. The Honcrable

Frank M. Johnson, trial judge, held that mentally ill

patients ‘have a constitutional right to receive such indi-

vidual treatment as will give each of them a reasonable

opportunity to be cured or to improve his or her mental

condition’. Wyatt v. Stickney, M.D.Ala.1971, 325 F.Supp.

781, 784. In a later order, Judge Johnson held that the

mentally retarded patients have a constitutional right to

‘such individual habilitation as will give each of them a

realistic opportunity to lead a more useful and meaning-

ful life and to return to society’. Wyatt v. Stickney,

M.D.Ala.1972, 344 F.Supp. 387, 390. The district court

found that conditions at the three facilities deprived the

plaintiffs of these constitutional rights, and ordered the

defendants-appellants, Alabama officials responsible for

the administration of the state’s mental health programs,

to implement a detailed set of standards designed to

ensure the provision of minimally adequate treatment

and habilitation at the institutions. From this order, the

Alabama Mental Health Board and Alabama’s Governor

George C. Wallace bring separate appeals.

Together, the Mental Health Board and the Governor

advance six major contentions on appeal. They contend

(1) that the district court erred in holding that civilly

committed mental patients have a constitutional right to

treatment; (2) that the court lacked jurisdiction because

custodial care that would be provided in a penitentiary.

Donaldson v. O’Connor, 5 Cir., 1974, 493 F.2d 507, 522.

ies ee, ee ee See

App. 25

the suit was in effect a suit against the state proscribed by

the eleventh amendment; (3) that the case involves rights

and duties not susceptible to determination by judicially

ascertainable and manageable standards, and therefore

presents a non-justiciable controversy; (4) that the order

of the district court invades a province of decision-mak-

ing exclusively reserved to the state legislature; (5) that

the plaintiffs were not entitled to equitable relief because

they had adequate remedies at law to protect the rights

they asserted; and (6) that the district court erred in

awarding plaintiffs a reasonable attorneys’ fee.

Neither in the district court nor on appeal to this

Court have the defendants challenged the detailed set of

standards articulated by the district court. They have

conceded that if there is a constitutional right to treat-

ment enforceable by a suit for injunctive relief in federal

court, those standards accurately reflect what would be

required to ensure the provision of adequate treatment.

A. The proceedings below

This case began innocuously enough, when a cut in

the Alabama cigarette tax forced the state to fire 99 pro-

fessional, subprofessional, and intern employees? at the

2 The 99 employees included 41 who were assigned duties

such as food service, maintenance, typing and other mechanical

duties not involving direct patient care; 26 persons involved in

planning social and other recreational activities for the patients;

nine persons from the department of psychology; eleven from

the social service department; three registered nurses, two

physicians, one dentist, and six dental aides.

App. 26

Bryce Hospital, a state-run institution for the mentally ill

at Tuscaloosa. The plaintiffs filed their complaint October

23, 1970. The complaint named two classes as plaintiffs.

One, represented by Ricky Wyatt and two other named

plaintiffs, appellees here, consisted of the patients at

Bryce. The other, represented by five of the then recently

terminated employees, consisted of the employees who

had been dismissed for budgetary reasons. The defen- —

dants were Stonewall B. Stickney, then Executive Officer

of the Alabama State Mental Health Board; Dr. John V.

Hottel, his Chief Deputy; the members of the Board; then

Governor Albert P. Brewer, both in his capacity as Gover-

nor and in his capacity as a member of the Board; and

Judge Perry O. Hooper, Probate Judge of Montgomery

County, both individually and as a representative of the

class consisting of all probate judges in Alabama.

The complaint alleged that the defendants had effec-

ted the staff reductions purely for budgetary reasons; that

the discharges of the 99 employees had been accom-

plished without notice and a hearing, and violated the

employees’ rights under the due process clause; and that

as a result of the discharges the patients at Bryce would

not receive adequate treatment. The complaint sought

injunctive relief requiring the defendants to insure that

treatment programs then being administered at Bryce

would not be interrupted or altered, and requiring the

defendants to rescind the terminations of the 99

employees.

The original complaint did not allege that treatment

levels at Bryce had been inadequate before the termina-

tions. For reasons not entirely clear from the record

before us, however, the focus of the litigation soon shifted

App. 27

from the effects of the October 1970 terminations to ques-

tions of the overall adequacy of the treatment afforded at the

Alabama state mental hospitals. On January 4, 1971, the

plaintiffs amended the complaint to add prayers that the

defendants be enjoined from operating Bryce ‘in a manner

that does not conform to constitutional standards of deliver-

ing adequate mental treatment to its patients’; that the Court

order defendants to prepare a ‘comprehensive constitu-

tionally acceptable plan to provide adequate treatment in

any state mental health facility’; and that the court declare

that patients confined to a state mental helath [sic] facility

are entitled to ‘adequate, competent treatment’.

On March 12, 1971, the district court ruled on the plain-

tiffs’ motion for a preliminary injunction. 325 F.Supp. 781.

The court’s opinion reflected the shift in the focus of the case.

In its opinion, the court declared that patients ‘involuntarily

committed through noncriminal procedures and without the

constitutional protections that are afforded defendants in

criminal proceedings’ are ‘committed for treatment pur-

poses’ and so ‘unquestionably have a constitutional right to

receive such individual treatment as will give each of them a

relaistic opportunity to be cured or to improve his or her

mental condition’. 325 FSupp. at 784. The court found that

the treatment programs in effect before the institution of a

staff reorganization then in progress were ‘scientifically and

medically inadequate’, failing to ‘conform to any known

minimums established for providing treatment for the men-

tally ill’. Id. The court stated that it was not at that time in a

position to determine whether the treatment which would be

provided after the reorganization was completed would be

adequate. Accordingly, the court allowed the defendants

ninety days to report progress made in the reorganization

App. 28

plan, and to file with the Court a ‘specific plan’ for the

provision of adequate treatment at Bryce. Also in the March

12 order, the court invited the United States, through the

Department of Justice and Health, Education and Welfare, to

appear as amicus.

On August 4, 1971, the plaintiffs amended their com-

plaint to allege that the Search [sic] Hospital at Mount

Vernon, Alabama, the one other state hospital for the

mentally ill in Alabama, and the Partlow State School and

Hospital, Alabama’s state Mcility for the mentally

retarded, were being operated in a constitutionally

impermissible manner.

On September 13, 1971, six months after the March 12

order, the defendants filed their report on proposed stan-

dards of adequate treatment and their implementation.

Objections to the report were later filed by the plaintiffs

and by the United States, as well as by several interested

private organizations which had been granted leave to

appear as amici.*

3 By order entered August 20, 1971, the district court

granted the motion filed by the American Civil Liberties Union,

the American Orthopsychiatric Association, the American

Psychological Association, and the American Association on

Mental Deficiency, for leave to appear as amici. In this Court,

these amici have been joined by the National Association for

Mental Health, the American Psychiatric Association and the

National Association for Retarded Children. The seven have

filed a joint brief in this Couirt [sic].

The district court expressed its gratitude to these

organizations for their valuable assistance in this

difficult and complex case, 344 F.Supp. 375, 390, and

we do so, too.

App. 29

The court announced its conclusions upon review of

the report and the objections to it in an opinion issued

December 10, 1971. 334 F.Supp. 1341. In this opinion, the

district court held that there are three ‘fundamental con-

ditions for adequate and effective treatment’: a ‘humane

physical and psychological environment’; qualified staff

‘in numbers sufficient to administer adequate treatment’;

and individualized treatment plans. The court held that

the reports before it showed ‘rather conclusively’ that the

treatment programs at Bryce did not meet any of these

conditions. It also noted that conditions at Searcy and

Partlow seemed little better. It concluded that the defen-

dants had failed to ‘formulate minimum medical and

constitutional standards for the operation of these institu-

tions’. The court scheduled a formal hearing to take evi-

dence necessary to establish standards, and said that after

the hearing it, the court, would itself ‘establish standards

and in due course order their implementation’.

The court postponed the hearings to give the defen-

dants another opportunity to formulate proposed mini-

mum standards. On January 17, 1972, the parties and

amici met in Atlanta, Georgia, where they undertook

extensive discussions concerning the proper standards of

treatment at the Alabama hospitals. Out of these discus-

sions came two Memoranda of Agreement stipulating

certain of the standards necessary to define what would

constitute minimally adequate mental treatment at a state

psychiatric institution. One of the Memoranda covered

standards for treatment at the mental hospitals, Searcy

and Bryce; the other covered standards to be imposed at

the school for the mentally retarded, Partlow. These

Memoranda were filed with the district court at the times

App. 30

for the hearings set for determining the proper standards.

The hearing concerning Bryce and Searcy was held Feb-

ruary 3 and 4, 1972; the hearing concerning Partlow was

held February 28-March 2.4

The district court announced its orders granting per-

manent injunctive relief in two opinions issued April 13,

1972. One of the opinions concerned Partlow, the other,

Bryce and Searcy. 344 F.Supp. 373 (Bryce-Searcy), 390

(Partlow). In Partlow, Judge Johnson held that ‘because the

only constitutional justification for civilly committing a

mental retardate . . . is habilitation, it follows ineluctably’

that civilly committed retardates ‘have a constitutional

right to receive such individual habilitation as will give

each of them a realistic opportunity to lead a more useful

and meaningful life and to return to society’. The Bryce-

Searcy opinion summarized the court’s earlier opinions,

noting its holding that the civilly mentally ill have a

constitutional right to treatment. Beyond this, the two

4 At the conclusion of the Partlow hearing, the district court

entered an emergency order requiring the defendants to take

certain immediate actions at Partlow. These included the

installation of an emergency light system and procedures for

emergency evacuation; revision of sanitation measures in the

kitchen; revamping of its program for the use of drugs;

conducting appropriate immunizations; and employing three

hundred additional resident care workers. In its order filed

March 2, 1972, the court said it was taking these steps ‘to protect

the lives and well-being of the residents’, because it found

Partlow to be a ‘warehousing institution . . . wholly incapable of

furnishing treatment to the mentally retarded and . . . conducive

only to the deterioriation and debilitation of the residents’, and

because it found conditions at Partlow ‘substandard to the point

of endangering the health and lives of the residents’.

App. 31

opinions were substantially identical. Both ordered the

defendants (1) to implement an elaborate set of standards

of treatment set forth in appendices to the opinions; (2) to

establish human rights committees at the institutions to

review all research and treatment programs ‘to ensure

that the dignity and human rights of the residents are

preserved’; (3) to prepare and file reports within six

months of the orders on the implementation of the stan-

dards; and (4) to pay court costs and a reasonable attor-

neys’ fee to the plaintiffs. The Partlow order also required

the defendants to hire a qualified administrator for the

School within sixty days.5

Governor Wallace and the Mental Health Board filed

separate notices of appeal May 12, 1972. On May 22,

Governor Wallace filed a motion for modification and for

a stay pending appeal. On June 1, the district court issued

an opinion fixing the amount due plaintiffs as attorneys’

fees at $36,744.62. 344 F.Supp. at 408-411. On June 26, the

district court denied the motions for modification and for

° In both orders, the court refused requests made by

plaintiffs and amici to appoint a master and professional

advisory committee to oversee implementation of the standards

on grounds that ‘federal courts are reluctant to assume control

of any organization, but especially one operated by a state’. 344

F.Supp. at 377, 392-393. The court also, in both orders, reserved

ruling on various motions by the plaintiffs to ensure adequate

financing for the implementation of the standards. These

included a motion that the Mental Health Board be directed to

sell or encumber its extensive land holdings, and a motion for

an injunction against the expenditure of state funds on any

‘nonessential’ functions until the standards were fully

implemented.

App. 32

a stay pending appeal. This Court also denied a motion

for a stay pending appeal.

B. The conditions in the Alabama hospitals

There has not been any significant dispute, in this

Court or in the district court, about the conditions that

prevailed in the Alabama hospitals at the time this suit

was instituted. The defendants have pitched their defense

on their argument that the Constitution does not guaran-

tee a right to treatment; they have virtually conceded that

if such a constitutional right exists, the conditions in the

hospitals were such that the state’s constitutional obliga-

tion to provide adequate treatment could not be met.

There is therefore little reason for an extended discussion

of the conditions that prevailed at the hospitals. Some

discussion, however, is essential to understanding this

case. We therefore note briefly how far short the hospitals

fell of meeting the three ‘fundamental conditions of ade-

quate and effective treatment’ defined by the district

court.

First, it is clear that the environment at the hospitals

was a far cry from the ‘humane psychological and physi-

cal environment’ the district court envisioned as sine qua

non of rehabilitative treatment. Bryce Hospital was built

in the 1850’s; it had 5000 inmates of whom 1500 to 1600

were geriatrics, 1000 were mental retardates, and there

were allegedly other non-mentally ill persons. Patients in

the hospitals were afforded virtually no privacy: the

wards were overcrowded; there was no furniture where

patients could keep clothing; there were no partitions

between commodes in the bathrooms. There. were severe

App. 33

health and safety problems: patients with open wounds

and inadequately treated skin diseases were in imminent

danger of infection because of the unsanitary conditions

existing in the wards, such as permitting urine and feces

to remain on the floor; there was evidence of insect

infestation in the kitchen and dining areas. Malnutrition

was a problem: the United States described the food as

‘com(ing) closer to ‘punishment’ by starvation’ than

nutrition. At Bryce, the food distribution and preparation

systems were unsanitary, and less than 50 cents per day

per patient was spent on food. Dr. Donald L. Clopper,

Associate Commissioner for Mental Retardation for the

Alabama Department of Mental Health, testified that

Partlow was a ‘stepchild’ in the State of Alabama; that the

physical environment was inadequate for treating

inmates; that ‘we don’t have the staff we don’t have the

facilities, nor do we have the financial resources’. Accord-

ing to Dr. Clopper, at least 300 Partlow inmates could be

discharged immediately, and about 70 percent of the

inmates should never have been committed: yet it was 60

percent over-crowded. Patients at Partlow were forced to

perform uncompensated labor. Aides frequently put

patients in seclusion or under physical restraints, includ-

ing straitjackets, without physicians’ orders. One resident

had been regularly confined in a straitjacket for more

than nine years. The Evaluation Report on Partlow by the

American Association on Mental Deficiency stated that

nine working residents would feed 54 young boys ground

food from one very large bowl with nine plates and nine

spoons; ‘since there were no accommodations to even sit

down to eat,’ it was impossible to tell which residents

had been fed and which had not been fed with this

App. 34

system. Seclusion rooms were large enough for one bed

and a coffee can, which served as a toilet. The patients

suffered brutality, both at the hands of the aides and at

the hands of their fellow patients; testimony established

that four Partlow residents died due to understaffing,

lack of supervision, and brutality.®

The hospitals failed to meet the second condition,

adequate staffing. The defendants’ chief witness on stan-

dards maintained that treatment could be delivered with

the ratio of one psychiatrist, one graduate level psycholo-

gist, and one masters level social worker for every 125

patients, and the district court ultimately adopted this

recommendation. The organizations appearing as amici

had recommended higher ratios — one psychiatrist, one

psychologist, and one social worker for every 30-50

patients. But at the time this suit was instituted there

were ratios of only one medical doctor with some psychi-

atric training for 5,000 patients, one Ph.D. psychologist

for every 1,670 patients, and one masters level social

worker for every 2,500 patients at Bryce. The parties and

amici agreed completely on the minimums necessary for

treatment of the mentally retarded. They agreed that

adequate treatment could be delivered at Partlow with

ratios of one masters level psychologist and one masters

level social worker for every sixty patients, and one phy-

sician for every two hundred patients. Yet at Partlow

into his rectum for five minutes by a working patient who was

cleaning him; one died when a fellow patient hosed him with

scalding water; another died when soapy water was forced into

his mouth; and a fourth died from a self-administered overdose

of drugs which had been inadequately secured.

SSS Te ee

App. 35

there were only one psychologist with masters level train-

ing or above for every 1,200 patients; one masters level

social worker for every 730 patients; and one physician

for every 550 patients. Of the four physicians at Partlow,

two were not licensed to practice in Alabama.

A severe shortage of nonprofessional staff paralleled

the inadequacies of professional staff. After a tour of

Bryce, defendants’ own consultants noted that:

Aide staff is spread very thin, creating extreme

stresses for individual aides, who at times must cover one

or two or three wards, housing as many as 100 or 200

patients. Obviously, it is impossible under such circum-

stances to provide anything more than a cursory observa-

tion and the hope of avoiding disturbing incidents. An

aide under these circumstances is hard pressed to meet

even minimum patient needs.

The institutional staff was inadequate not only in

sheer numbers but also in training; there was no effective

‘inservice training’ program for, or even any regular

supervision over, the nonprofessionals.

Finally, the evidence established that the hospitals

failed to meet the third condition, individualized treat-

ment programs. According to one consultant's testimony,

care of patients at Partlow was not suited to the needs of

particular individuals, but was instead ‘geared primarily

to housekeeping functions - cleaning floors, cleaning

beds, cleaning patients — and to a continuation of work

assignments’. Experts testified that the patient records

kept at the hospital were wholly inadequate; that they

were written in such a way as to be incomprehensible to

the aide level staff that had prime responsibility for

App. 36

patient care; and that they were kept where they were not

accessible to the direct care staff particularly in need of

them.

Il.

The appellants’ first and principal contention on

appeal is that the Constitution does not guarantee per-

sons civilly committed to state mental institutions a right

to treatment.” This contention is largely foreclosed by our

decision, issued since the institution of this appeal, in

Donaldson v. O’Connor, 1974, 493 F.2d 507. In Donaldson,

we held that civilly committed mental patients have a

constitutional right to such individual treatment as will

help each of them to be cured or to improve his or her

mental condition. We reasoned that the only permissible

justifications for civil commitment, and for the massive

abridgments of constitutionally protected liberties it

7 In raising the issue in this Court, the appellants contend

that, because there is no constitutional right to treatment, the

district court lacked jurisdiction over the suit. In so arguing the

issue, the appellants are following, on this point as one the other

four of their first five contentions, the decision of the Northern

District of Georgia in Burnham v. Department of Public Health,

1972, 349 F.Supp. 1335, appeal docketed, No. 72-3110, 5 Cir., Oct.

4, 1972. In Burnham, the court held that the Constitution does

not guarantee a right to treatment. It then held that the

consequence of this conclusion was that it was without

jurisdiction over the suit, because 28 U.S.C. 1343(3), the asserted

basis of jurisdiction, confers jurisdiction only over

‘action(s) . . . to redress the deprivation’ of a ‘right, privilege, or

immunity’ secured by the Constitution or by an Act of Congress

providing for equal rights.

—

App. 37

entails, were the danger posed by the individual commit-

ted to himself or to others, or the individual’s need for

treatment and care. We held that where the justification

for commitment was treatment, it offended the funda-

mentals of due process if treatment were not in fact

provided; and we held that where the justification was

the danger to self or to others, then treatment had to be

provided as the quid pro quo society had to pay as the

price of the extra safety it derived from the denial of

individuals’ liberty.

Our discussion in Donaldson, briefly summarized

here, answers most of the arguments made by the appel-

lants on this appeal against the recognition of a constitu-

tional right to treatment. Governor Wallace, however,

makes one argument not answered by our discussion in

Donaldson, and it is appropriate that we address that

argument here. Governor Wallace challenged the assump-

tion, made by the district court in this case and by this

Court in Donaldson, that the only permissible justifica-

tions for confinement are danger to self or others or need

for treatment. Instead, the Governor suggests, the princi-

pal justification for commitment lies in the inability of the

mentally ill and mentally retarded to care for themselves.

The essence of this argument is that the primary function

of civil commitment is to relieve the burden imposed

upon the families and friends of the mentally disabled.

The families and friends of the disabled, the Governor

asserts, are the ‘true clients’ of the institutionalization

system.8

8 Governor Wallace borrows the term ‘true clients’ from the

work of Professor Erving Goffman. E. Goffman, Asylums -

App. 38

From this premise the Governor proceeds to the con-

clusion that is the crux of his argument. If ‘need for care’

is a justification for commitment - or is the justification -

then it follows that the mere provision of custodial care is

constitutionally adequate to justify continued confine-

ment. ‘The providing of custodial care alone is a tremen-

dously important consideration to patients, their families,

and the public-at-large’, the Governor writes in his brief.

There are two answers to this line of argument. The

first, and more limited, is that even accepting the Gover-

nor’s premise that ‘need for care’ is a constitutionally

adequate justification for confinement, it does not follow

that we must accept the conclusion — that the kind of care

that was provided at the Alabama hospitals is sufficient

to make continued confinement constitutional. The asser-

tion that ‘need for care’ justifies confinement implies that

the state has an affirmative obligation to provide a certain

minimum quality ‘care’, no less than the assertion that

‘need for treatment’ justifies confinement implies that the

state has an affirmative obligation to provide a certain

Essays on the Social Situations of Mental Patients and Other

Inmates 384 (1961). Governor Wallace in his brief praises

Professor Goffman as a ‘realistic writer’. Be that as it may, it is

fairly clear that Professor Goffman’s intent, in calling ‘relatives,

police, and judges’ the ‘true clients of the mental hospitals’ was

critical, indeed harshly so, and that Professor Goffman was

insinuating by that statement an embarrassing, though rarely

admitted, truth about the institutionalization system in the

United States. What Professor Goffman implied was morally

unacceptable — that the convenience of relatives and law

enforcers justifies stripping away all of the liberties of the civilly

committed we hold today is constitutionally unacceptable.

App. 39

minimum quality ‘treatment’. And it is clear that, how-

ever that obligation might specifically be defined, it was

not being met in the Alabama hospitals. Dr. Gunnar Dyb-

wad, Professor of Human Development at the Graduate

School for Advanced Studies in Social Welfare at Brandeis

University, and a one time presidential consultant in the

field of mental retardation, made essentially this point

when he testified about conditions at Alabama’s Partlow

State School and Hospital:

The situation which exists and obviously has existed

in Partlow for a long time is one of storage, of persons. |

am using that word because I would not use care, which

involves — has a certain qualitative character, and I would

not even use the word, ‘custodial,’ because custody, in

my term, means safekeeping. And, as is visible to the

visitor at the present time, employees at Partlow are not

in a position to effect safekeeping, considering the

number of people they have to take care of; so I would

Say it is a storage problem at the moment.

Indeed, many of the standards established by the

district court in this case - notably those required for

what the district court called a ‘humane psychological

and physical environment’ - might have to be met for the

state to be able legitimately to claim it was providing

adequate ‘care’ to its mental patients. At least where the

right to a ‘humane environment’ is concerned, then if it is

irrelevant whether the right be viewed as a facet of a

‘Tight to treatment’, or of a ‘right to care’. It is likewise

irrelevant for those purposes whether the state interest

imputed to the civil commitment system be called the

need ‘to treat’ the mentally ill, or the need ‘to care’ for

them.

App. 40

But beyond this, we find it impossible to accept the

Governor’s underlying premise that the ‘need to care’ for

the mentally ill — and to relieve their families, friends, or

guardians of the burdens of doing so — can supply a

constitutional justification for civil commitment. At stake

in the civil commitment context, as we emphasized in

Donaldson, see 493 F.2d at 520, are ‘massive curtailments’

of individual liberty. Against the sweeping personal

interests involved, Governor Wallace would have us

weigh the state’s interest, and the interests of the friends

and families of the mentally handicapped in having pri-

vate parties relieved of the ‘burden’ of caring for the

mentally ill. The state interest thus asserted may _ be,

strictly speaking, a ‘rational’ state interest. But we find it

so trivial beside the major personal interests against

which it is to be weighed that we cannot possibly accept

it as a justification for the deprivations of liberty

involved.

The other arguments against recognition of a consti-

tutional right to treatment for civilly committed mental

patients advanced by the appellants are, as we noted

above, answered by our discussion in Donaldson. Follow-

ing Donaldson, we hold that the district court here did not

err in finding that civilly committed mental patients have

a constitutional right to treatment. Our express holding in

Donaldson and here rests on the quid pro quo concept of

‘rehabilitative treatment, or, where rehabilitation is

impossible, minimally adequate habilitation and care,

beyond the subsistence level custodial care that would be

provided in a penitentiary.’ 493 F.2d at 522.

App. 41

III.

The second, third, fourth, and fifth issues raised by

the appellants are also substantially affected by our deci-

sion in Donaldson, and present little difficulty except as to

some aspects of remedy which will be discussed in Part

IV, infra. The argument that this suit is barred by the

eleventh amendment is based largely upon Burnham v.

Department of Public Health, N.D.Ga. 1972, 349 F.Supp.

1335, appeal docketed, No. 72-3110, 5 Cir., Oct. 4, 1972,a

case consolidated for argument on appeal with this case.

In Burnham, the court held that, because the right to

treatment was a right arising only, if at all, under state

law, a suit by citizens of the state against state officials to

enforce the right was barred by the eleventh amendment.

Our holding in Donaldson, however, vitiates this argu-

ment, of course, for we have now established that the

right to treatment arises as a matter of federal constitu-

tional law under the due process clause of the Fourteenth

Amendment.

In Donaldson, we addressed and rejected the argu-

ment that a constitutional right to adequate treatment

would present questions not susceptible to ‘judicially

manageable or ascertainable standards’. We held that the

judiciary was competent to determine, at least in individ-

ual cases, whether psychiatric treatment was medically or

constitutionally adequate. And we said in dictum that

even in cases such as this one, ‘when courts are asked to

undertake the more difficult task of fashioning institu-

tion-wide standards of adequacy’, 493 F.2d at 526, the

courts would be able to formulate workable standards. In

Donaldson, we took note of the substantial agreement

| ii mma ia i a

App. 42

reached in this case among parties and amici in develop-

ing standards during the course of the proceedings in the

lower court. We cited that development as evidence sup-

porting our view that workable standards could be fash-

ioned. We remain mindful of that development here, in

reaffirming our belief that the right to treatment can be

implemented through judicially manageable standards.

The appellants’ fourth contention is that the order of

the district court invades a province of decision-making

exclusively reserved for the state legislature. Governor

Wallace argues that the order will require heavy expendi-

tures of state funds; that these funds will have to come

from other state programs; and that the duty of compro-

mising and allocating funds among the many programs

competing for them is a duty which must be discharged

by the state governor and legislature alone. Governor

Wallace concedes in his brief that he is not contending

that ‘the financial cost of complying with an established

constitutional right is a valid reason for failure to com-

ply’. He ‘suggest(s) that before the Court decides to adopt

a new constitutional right it should consider all of the

consequences of its action, financial and social, and its

effect on our federal form of government’. The Mental

Health Board makes the point in a related way, by sug-

gesting that the district court’s order here is in effect an

order requiring the state to furnish a particular service,

and by citing cases establishing the general proposition

that ordinarily it is not for the federal courts to say

whether or in what amounts a state shall provide any

particular government benefit or service. E.g., Fullington

v. Shea, D.Colo.1970, 320 F.Supp. 500, aff'd, 404 U.S. 963,

92 S.Ct. 345, 30 L.Ed.2d 282.

App. 43

We find these arguments unpersuasive. It goes with-

out saying that state legislatures are ordinarily free to

choose among various social services competing for legis-

lative attention and state funds. But that does not mean

that a state legislature is free, for budgetary or any other

reasons, to provide a social service in a manner which

will result in the denial of individuals’ constitutional

rights. And it is the essence of our holding, here and in

Donaldson, that the provision of treatment to those the

state has involuntarily confined in mental hospitals is

necessary to make the state’s actions in confining and

continuing to confine those individuals constitutional.

That being the case, the state may not fail to provide

treatment for budgetary reasons alone. ‘Humane consid-

erations and constitutional requirements are not, in this

day, to be measured or limited by dollar considerations’.

Jackson v. Bishop, 8 Cir. 1968, 404 F.2d 571, 580 (Blackmun,

J.), quoted, Rozecki v. Gaughan, 1 Cir. 1972, 459 F.2d 6, 8.

‘Inadequate resources can never be an adequate justifica-

tion for the state’s depriving any person of his constitu-

tional rights’. Hamilton v. Love, E.D.Ark.1972, 328 F.Supp.

1182, 1194. ‘The obligation of the Respondents (prison

officials) to eliminate unconstitutionalities does not

depend upon what the Legislatures may do’. Holt v. Sar-

ver, E.D.Ark.1970, 309 F.Supp. 362, 385, aff'd, 8 Cir. 1971,

442 F.2d 304. See also Hawkins v. Town of Shaw, 5 Cir. 1971,

437 F.2d 1286, 1292.

This conclusion is not novel. In the context of state

penal institutions, the federal courts have repeatedly

intervened to assure that the conditions of confinement

do not invade the constitutional rights of those confined.

E.g., Cruz v. Beto, 1972, 405 US. 319, 92 S.Ct. 1079, 31

App. 44

L.Ed.2d 263; Johnson v. Avery, 1968, 393 U.S. 483, 89 S.Ct.

747, 21 L.Ed.2d 718; Campbell v. Beto, 5 Cir. 1972, 460 F.2d

765; Landman v. Royster, E.D.Va.1971, 333 F.Supp. 621; Holt

v. Sarver, E.D.Ark.1970, 309 F.Supp. 362, aff'd, 8 Cir. 1971,

442 F.2d 304. This Court has recognized that ‘our consti-

tutional duties require that the courts be ever vigilant to

assure that the conditions of incarceration do not over-

step the bounds of federal constitutional limitations’.

Campbell, 460 F.2d at 767-768. In discharging these duties,

the federal courts have in some cases entered decrees

requiring substantial restructuring of state prison sys-

tems, but the courts have not hesitated to enter such

decrees when necessary to safeguard the constitutional

rights of prisoners. As the court said in Holt v. Sarver:

Let there be no mistake in the matter; the obliga-

tion of the Respondents to eliminate existing

unconstitutionalities does not depend upon

what the Legislature may do, or upon what the

Governor may do, or, indeed, upon what

Respondents may actually be able to accom-

plish. If Arkansas is going to operate a Peniten-

tiary System, it is going to have to be a system

that is countenanced by the Constitution of the

United States.

309 F.Supp. at 385.

Similar developments have occurred in the field of

institutions for the detention of juveniles. Nelson v. Heyne,

7 Cir. 1974, 491 F.2d 352, aff’g, N.D.Ind.1972, 355 F.Supp.

451; Martarella v. Kelley, S.D.N.Y.1972, 359 F.Supp. 479,

enforcing, 349 F.Supp. 575; Inmates of Boys’ Training School

v. Affleck, D.R.1.1972, 346 F.Supp. 1354; Morales v. Turman,

E.D.Tex.1973, 364 F.Supp. 166.

App. 45

The appellants’ fifth contention, that the plaintiffs

had adequate remedies at law, is also unpersuasive. In

the Burnham case, the court held that the legal remedies

of ‘habeas corpus, medical malpractice, and ordinary tort

actions’ would supply adequate remedies to mental

patients who claimed to have been denied a right to

treatment. 349 F.Supp. at 1343. It found the plaintiffs’

arguments to the contrary ‘inconsistent with plaintiffs

argument that each individual patient should have his

particular therapy or treatment personalized’. Id. Gover-

nor Wallace and the Mental Health Board urge here the

argument that damage and habeas corpus actions provide

adequate legal remedies to the plaintiffs. The [sic] also

point to the plaintiffs’ argument that treatment must be

individualized, and to the tension between that argument

and the plaintiffs’ insistence that injunctive relief on

behalf of the plaintiff class is appropriate in this case.

We are unable to agree that injunctive relief is inap-

propriate merely because damages or habeas corpus relief

may be available to some or all individual plaintiffs.

While habeas corpus and tort remedies should play a

valuable, indeed essential, role in enforcing the constitu-

tional rights we recognized in Donaldson, those remedies

are not capable of ensuring what the plaintiffs seek to

ensure in this case. In the first place, habeas corpus relief

and tort damages are available only after the fact of a

failure to provide individual treatment. Here the plain-

tiffs seek preventive relief, to assure in advance that

mental patients will at least have the chance to receive

adequate treatment by proscribing the maintenance of

conditions that foredoom all mental patients inevitably to

inadequate mental treatment. Moreover, there are special

App. 46

reasons why reliance upon individual suits by mental

patients would be especially inappropriate. Mental

patients are particularly unlikely to be aware of their

legal rights. They are likely to have especially limited

access to legal assistance. Individual suits may be pro-

tracted and expensive, and individual mental patients

may therefore be deterred from bringing them. And indi-

vidual suits may produce distortive therapeutic effects

within an institution, since a staff may tend to give espe-

cially good — or especially harsh — treatment to patients

the staff expects or knows to be litigious.’

We see no inconsistency between this conclusion and

the position taken by the plaintiffs, and by the district

court, that treatment must be individualized. The plain-

tiffs here do not seek to guarantee that all patients will

receive all the treatment they need or that may be appro-

priate to them. They seek only to ensure that conditions

in the state institutions will be such that the patients

confined there will have a chance to receive adequate

treatment. This requires only the establishment of a pro-

gram, institution-wide in scope, for developing and for-

mulating individual treatment plans; it of course does not

require the formulation, in this suit, of each individual

plan. The question of what is necessary to the establish-

ment of such a program is better resolved in a class action

brought on behalf of all patients than it would be in a

series of individual suits.

9 See 86 Harv.L.Rev. 1282, 1305 (1973).

App. 47

IV.

We pretermit decision as to the remedy decreed by

the district court to the extent herein stated. As we have

held, the legislative power may not be used to deprive

appellees of their constitutional right to treatment, but a

substantial question is presented as to the scope of judi-

cial power in implementing this right. The ultimate ques-

tion will be, if all else fails, the method of effecting the

financial outlay which will be necessary for the judiciary

to give meaning to judicially precribed minimum consti-

tutional standards for adequate treatment of the mentally

ill.

Prior to the entry of the court’s orders on April 13,

1972, 344 F.Supp. 373; 344 FSupp. 387, the parties and

amici stipulated to a number of specific conditions they

agreed were necessary for a constitutionally acceptable

minimum treatment program.!° Because of these stipula-

tions, we need not and do not reach decision as to

whether the standards prescribed by the district court are

constitutionally minimum requirements, or whether it is

within the province of a federal district court, three-judge

10 The parties and amici submitted in two Memoranda of

Agreement stipulations of standards of adequate care. Virtually

all of the specifics of the district court’s April 13, 1972 orders

were taken from these stipulations. These standards have not

been challenged on appeal. Indeed, Governor Wallace’s brief to

this court begins with the affirmation: ‘We wish to emphasize at

the outset that this appellant, Governor George C. Wallace, is in

full and complete agreement with the ultimate achievement of

the standards and goals for mental health facilities which are set

forth in the District Court’s order(s) of April 13, 1972.’ Brief of

Appellant, p. 1.

App. 48

or single judge, to prescribe standards as distinguished

from enjoining the operation of such institutions while

constitutional rights are being violated.

Governor Wallace contends such stipulations are not

binding on him or the Alabama legislature. As a party to

the stipulations, through counsel, we hold the Governor

has for his part agreed that these standards are minimally

acceptable under the Constitution. The Alabama legisla-

ture presents a different problem. Clearly the Governor is

without authority to agree to the expenditure of funds

required to implement such a broad spectrum of stan-

dards when such a decision under Alabama law is

reserved to the legislature. That the legislature was not a

party to the stipulations in question or to this law suit

reenforces this manifest principle of governmental orga-

nization. It is the Governor’s role to propose relief to the

legislature and, having stipulated the standards, to use

his best efforts to accomplish the relief.

With respect to judicial accomplishment of the rem-

edy, profound questions are presented regarding the

scope of substantive due process and the role of federal

courts in matters affecting the management of state insti-

tutions. Here we are concerned with the operation of

state mental institutions within the parameters of sub-

stantive due process."

11 As noted, supra, however rare they may be, federal

decrees mandating affirmative action expenditures by state

governing authorities to ensure constitutional guarantees are

not unprecedented in cases involving equal protection and also

cruel and unusual punishment. E.g., Griffin v. County School Bd.,

1964, 377 U.S. 218, 233, 84 S.Ct. 1226, 12 L.Ed.2d 256, 266; Swann

App. 49

The governor argues that the prescribed remedy will

entail the expenditure annually of a sum equal to sixty

per cent of the state budget excluding school financing,

and a capital improvements outlay of $75,000,000. This is

contested by appellees. However that may be, we regard

as premature any issue as to whether the district court

should appoint a Special Master for the purposes of sell-

ing or encumbering state lands to finance these stan-

dards, or should enjoin certain state officials from

authorizing expenditures for nonessential state functions,

and thereby alter the state budget, or by other means

order a particular mode of financing the implementation

of the stipulated standards.

Such remedial propositions are by the terms of the

district court’s April 13, 1972 not present orders; they lie

in the uncertain future. The district court wrote:

v. Charlotte-Mecklenburg Md. of Educ., N.D.N.C., 1970, 311

F.Supp. 265, 268, vacated and remanded on other grounds, 4 Cir. (en

banc), 431 F.2d 138, order reinstated, 1971, 402 U.S. 1, 91 S.Ct.

1267, 28 L.Ed.2d 554; United States v. Plaquemines Parish School

Bd., E.D.La., 1967, 291 F.Supp. 841, aff'd as modified, 5 Cir., 1969,

415 F.2d 817; Cruz v. Beto, 1972, 405 U.S. 319, 92 S.Ct. 1079, 31

L.Ed.2d 263; Holt v. Sarver, 8 Cir., 1971, 442 F.2d 304; Nelson v.

Heyne, 7 Cir., 1974, 491 F.2d 352; Gautreaux v. Chicago Housing

Auth., N.D.Il1., 1969, 296 F.Supp. 907, aff'd, 7 Cir., 1970, 436 F.2d

306, cert. denied, 1971, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661.

See also cases cited Note, Right To Treatment, 1973, 86

Harv.L.Rev. 1282, 1300, nn. 98-104; Development in the Law,

Civil Commitment of the Mentally II!, 1974, 87 Harv.L.Rev. 1338,

n. 96; Comment, Enforcement of Judicial Financing Order;

Constitutional Rights in Search of a Remedy, 1970 59 Geo.L.J.

393.

App. 50

‘... this Court has decided to reserve ruling also

upon plaintiffs’ motion that defendant Mental Health

Board be directed to sell or encumber portions of its land

holdings in order to raise funds. Similarly, this Court will

reserve ruling on plaintiffs’ motion seeking an injunction

against the treasurer and the comptroller of the State

authorizing expenditures for nonessential State functions,

and on other aspects of plaintiffs’ requested relief

designed to ameliorate the financial problems incident to

the implementation of this order. . . . The responsibility

for appropriate funding ultimately must fall, of course,

upon the State Legislature and, to a lesser degree, upon

the defendant Mental Health Board of Alabama. For the

present time, the Court will defer to those bodies in

hopes that they will proceed with the realization and

understanding that what is involved in this case is not

representative of ordinary governmental functions such

as paving roads and maintaining buildings. Rather, what

is so inextricably intertwined with how the Legislature

and Mental Health Board respond to the revelations of

this litigation is the very preservation of human life and

dignity. . . . In the event, though, that the Legislature fails

to satisfy its well-defined constitutional obligation, and

the Mental Health Board, because of lack of funding or

any other legally insufficient reason, fails to implement

fully the standards herein ordered, it will be necessary for

the Court to take affirmative steps, including appointing

a master, to ensure that proper funding is realized and

that adequate treatment is available for the mentally ill in

Alabama.’ 344 F.Supp. at 377-378. See also 344 F.Supp. at

393-394. (These separate orders cover the three institu-

tions involved.)

App. 51

To the latter statement, the district court added in a

footnote, 344 F.Supp. at 378, n. 8:

‘The Court understands and appreciates that the Leg-

islature is not due back in regular session until May, 1973.

Nevertheless, special sessions of the Legislature are fre-

quent occurrences in Alabama, arid there has never been

a time when such a session was more urgently required.

If the Legislature does not act promptly to appropriate

the necessary funding for mental health, the Court will be

compelled to grant plaintiffs’ motion to add various State

officials and agencies as additional parties to this litiga-

tion, and to utilize other avenues of fund raising.’ See

also 344 F.Supp. at 394, n. 14.

The district court ordered that defendants file within

six months a detailed report on the implementation of the

stipulated standards.

The serious constitutional questions presented by

federal judicial action ordering the sale of state lands, or

altering the state budget, or which may otherwise arise in

the problem of financing, in the event the governing

authorities fail to move in good faith to ensure what all

parties agree are minimal requirements, should not be

adjudicated unnecessarily and prematurely. See Ash-

wander v. Tennessee Valley Authority, 1936, 297 U.S. 288,

346-348, 56 S.Ct. 466, 80 L.Ed. 688, 710-712 (Brandeis, J.,

concurring); cf. Hawkins v. Town of Shaw, 5 Cir. (en banc),

1972, 461 F.2d 1171; Holt v. Sarver, 8 Cir., 1971, 442 F.2d

304, 309. Since we have now affirmed that part of the

district court’s orders recognizing the constitutional right

to treatment, determination of good faith efforts by state

App. 52

authorities to ensure these rights should be made in the

first instance in the district court.

In any event, as a jurisdictional matter dictated by

federal statute, remedies of the type contemplated in the

district court order of April 13, 1972 are required to be

determined by a district court of three judges. Any fed-

eral decree that state lands be sold or legislative appro-

priations be reallocated or enjoined would involve state

laws of statewide significance within the purview of 28

U.S.C.A. 2281. The federal injunctive decree which might

be entered in such circumstances is required to be that of

a three-judge district court. Sands v. Wainwright, supra,

491 F.2d 417. We of course make no prejudgment as to the

appropriateness of any such remedial order. Moreover,

depending on the improvements made or in progress,

such remedies may be unnecessary.

This court views as serious a state’s failure to ensure

the fulfillment of appellees’ constitutional rights, but the

interests of all concerned, and the sensitivities of our

federal system, will be best served by the parties, amici,

and court moving together to meet the constitutional

requisites. This is the nature of the remedy ordered by

this court in Hawkins v. Town of Shaw, supra, 461 F.2d at

1174. This appears to be the meaning and intent of the

district court’s recognition of the function of the Alabama

legislature within the Alabama governmental framework,

and the court’s orders of April 13, 1972 requiring reports

on compliance with the stipulated standards.

This approach should hasten the day when the dis-

trict court can be reasonably assured that appellees’ con-

stitutional rights are no longer being violated, and when

App. 53

ultimate control over the institutions in question can be

returned to the state. Cf. Holt v. Sarver, supra, 442 F.2d at

309.

We reserve decision on the issue presented by the

awards of attorneys’ fees to plaintiffs pending decision in

No. 73-1790, Gates v. Collier; No. 73-2033, Newman v. State

of Alabama; and Named Individual Members of the San An-

tonio Conservation Society v. Texas Highway Department, en

banc, argued and submitted on October 2, 1974. See 28

U.S.C.A. 2106 for the authority to reserve decision.

Affirmed in part; remanded in part for further pro-

ceedings not inconsistent herewith; and decision reserved

in part.

App. 54

IN THE DISTRICT COURT OF THE

UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

RICKY WYATT, by and through

his aunt and legal guardian,

Mrs. W. C. Rawlins, Jr., et al.,

Plaintiffs,

DIANE MARTIN, et al.,

Plaintiff-Intervenors, CIVIL ACTION

NO. 3195-N

R. EMMETT POUNDSTONE, as

Commissioner of Mental Health (Filed

and Mental Retardation, and Oct. 3, 1995)

the State of Alabama Mental

Health Officer, et al.,

Defendants,

UNITED STATES OF AMERICA,

Amicus Curiae.

me ee ee ee ee ere eee eee ee ee ee ee”

ORDER

In this ongoing lawsuit, the plaintiffs, who are resi-

dents of facilities in the Alabama Mental Health and

Mental Retardation System, claim that defendant state

officials are violating their rights under a 1986 consent

decree, the United States Constitution, and the Americans

with Disabilities Act, 42 U.S.C.A. §§ 12101-12213 (West

App. 55

Supp. 1995).' Now before the court are two motions filed

by the defendants pursuant to Rule 23 of the Federal

Rules of Civil Procedure: (1) a motion to recertify or

modify the plaintiff class? and (2) a supplemental motion

to recertify or modify the plaintiff class and alternative

motion to decertify the plaintiff class. The court also has

before it (3) a motion filed by Robert Hanna, Gregory

Wolke, Jean Washington, Brent Bugsch, Benjamin Stokes,

Stephanie Ramsey, and Eric Boothe seeking to intervene

as plaintiffs pursuant to Rule 24 of the Federal Rules of

Civil Procedure.* By order entered on March 14, 1995, the

court conditionally granted the last motion and allowed

the “Hanna plaintiffs” to intervene subject to reconsidera-

tion and briefing by the parties.5

For the reasons that follow, the defendants’ two

motions will be granted to the extent they seek recer-

tification of the class, and the court will reaffirm its

earlier order granting the Hanna plaintiffs’ motion to

intervene.

' For purposes of this opinion, the court considers

mentally-ill to refer both to individuals with mental-illness and

those with an emotional disturbance. However, the court does

not reach whether mental illness and emotional disturbance are

the same phenomena medically. See Wyatt v. Hardin, No. 3195-N

(M.D. Ala. Feb. 28, 1975) (defining mentally-ill portion of class

as consisting of individuals with mental illness or an emotional

disturbance).

* Filed December 22, 1994 (Doc. no. 417).

* Filed January 18, 1995 (Doc. no. 456).

* Filed March 10, 1995 (Doc. no. 702).

> Doc. no. 717.

App. 56

I. BACKGROUND

This lawsuit began in 1970. Although no party has

been able to locate in the record a formal order certifying

the class, the court and all of the parties have treated this

lawsuit as a class action for almost 25 years. See, e.g.,

Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972) (order-

ing relief as to class of mentally-ill plaintiffs), aff'd in

relevant part, 503 F.2d 1305 (5th Cir. 1974); Wyatt v. Stick-

ney, 344 F. Supp. 387 (M.D. Ala. 1972) (ordering relief as

to class of mentally-retarded plaintiffs), aff'd in relevant

part, 503 F.2d 1305 (5th Cir. 1974); Wyatt v. Stickney, No.

3195-N (M.D. Ala. Aug. 12, 1971) (enlarging plaintiff

class); Wyatt v. Hardin, No. 3195-N (M.D. Ala. Feb. 28,

1975) (enlarging plaintiff class); Wyatt v. Wallis, No. 3195-

N, 1986 WL 69194 (M.D. Ala. Sept. 22, 1986) (approving

proposed consent decree as meeting requirements of Rule

23 regarding class actions); Wyatt v. Horsley, No. 3195-N

(M.D. Ala. Aug. 3, 1989) (concluding that residents of

Kidd facility are subject to Wyatt mental-illness standard

nine); Wyatt v. Horsley, 793 F.Supp. 1053 (M.D. Ala. 1991)

(rejecting proposed consent decrees because parties did

not meet requirements of Rule 23 regarding class actions);

Wyatt v. Horsley, 793 F.Supp. 1058 (M.D. Ala. 1992)

(approving proposed consent decrees as meeting require-

ments of Rule 23 regarding class actions).

Because, among other reasons, none of the named

class members remain in state institutions under the

supervision or control of the Alabama Department of

Mental Health and Mental Retardation, the defendants

moved for recertification or modification of the class in

December 1994 and supplemented this motion by moving

App. 57

for decertification in January 1995. At a telephone confer-

ence held on january 6, 1995, the court expressed its

concern over the absence of named class members with

live interests in the lawsuit and suggested that new

named plaintiffs with live interests intervene.6 On March

10, 1995, the Hanna plaintiffs moved to intervene. As

previously stated, the court conditionally granted the

motion subject to reconsideration and briefing by the

parties.

II. DISCUSSION

With their two motions, the defendants argue that the

plaintiff class in this lawsuit should be decertified, recer-

tified, or modified. They further oppose reaffirmation of

intervention by the Hanna plaintiffs. The court agrees

with the defendants that the class needs to be recertified

to the extent that its parameters need clarification and its

named class members’ interests have become moot due to

the passage of time. The court disagrees, however, that

the plaintiff class should be decertified or modified. The

® Counsel for the plaintiffs have questioned defense

counsel’s motives in waiting until now to challenge the

treatment of this litigation as a class action. Plaintiffs’ brief filed

on February 6, 1995 (Doc. no. 516), at 2-3. The plaintiffs contend

that the defendants have not only waited for years to make this

challenge, they have done so in the midst of the plaintiffs’

extensive trial preparation, adopting what the plaintiffs

characterize as “a strategy of diverting as much of plaintiffs’

time from trial preparation as possible.” Id. at 2. Irrespective of

the motive behind the defendants’ timing, the issue is important

and demands immediate attention.

App. 58

court also concludes that the Hanna plaintiffs should be

allowed to continue as parties to this litigation.

A. Decertification

The defendants advance three arguments in support

of their contention that the plaintiff class should be

immediately decertified.

1. Lack of a Formal Certification Order

The defendants argue that the class should be decer-

tified because there is no formal order of certification.

Where a lawsuit has proceeded to trial as a class action,

the class has been clearly defined and redefined over the

years, injunctive relief has been ordered as to the class, all

parties and the court have treated the lawsuit as a class

action, and for over 20 years no party has suggested that —

certification was an issue, as is all true in this lawsuit, the

case is for all intents and purposes a class action even

though no formal certification order has been entered,

and neither certification, recertification, nor decertifica-

tion is required. As the former Fifth Circuit Court of

Appeals wrote in Graves v. Walton County Bd. of Educ., 686

F.2d 1135, 1139-40 (1982) (Unit B), “despite the lack of a

formal order certifying this case as a class suit, this case

was in fact a class action and was specifically described

and treated as such by the parties and the trial court. ...

[T]he district court’s implicit determination of the class

action question sufficed in a suit in which all the parties

and the court proceeded off the assumption that the

action was a class action, despite the fact that there

existed no formal order of certification by the district

App. 59

court.”” See also Lockett v. Board of Educ., 976 F.2d 648, 649

(11th Cir. 1992) (per curiam) (reaffirming Graves); Johnson

v. General Motors Corp., 598 F.2d 432, 435 (5th Cir. 1979)

(class action may exist in absence of formal certification

order if litigation was conducted as class action); Bing v.

Roadway Express, Inc., 485 F.2d 441, 447 (5th Cir. 1973)

(same); Cf. Vaughter v. Eastern Air Lines, Inc., 817 F.2d 685,

689 (11th Cir. 1987) (failure to designate class in judgment

may be corrected where lawsuit has been maintained and

treated as a class action).® Here, the lack of a formal order

certifying a plaintiff class does not require decertification.

2. Mootness

The defendants contend that decertification is

required because of mootness of the former named plain-

tiffs’ claims. Where the court is confronted with named

plaintiffs who no longer have live interests, the appropri-

ate course is to substitute new named class members.

Again, as the appellate court stated in Graves, “It is firmly

established that where a class action exists, members of

the class may intervene or be substituted as named plain-

tiffs in order to keep the action alive after the claims of

7 In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.

1982), the Eleventh Circuit Court of Appeals adopted as binding

precedent all of the post-September 30, 1981, decisions of Unit B

of the former Fifth Circuit.

8 In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)

(en banc), the Eleventh Circuit adopted as binding precedent all

of the decisions of the former Fifth Circuit handed down prior

to the close of business on September 30, 1981.

App. 60

the original named plaintiffs are rendered moot.” 686 F.2d

at 1138.

3. Class Conflict

The defendants contend that the class should be

immediately decertified because of a conflict of interest

within the plaintiff class. The defendants argue that the

class is divided between those who advocate community

placement of residents and those who oppose it. The

defendants’ argument lacks merit.

It appears that any conflict within the plaintiff class

may have resulted at least in large part from misinforma-

tion disseminated by the defendants. The defendants have

sent letters to class members, their guardians, caregivers,

and next-of-kin informing them that the plaintiffs and

their attorneys are seeking to have services for all class

members reduced and full deinstitutionalization of the

mentally-retarded, that is, to have all mentally-retarded

class members now residing in the defendants’ develop-

mental centers moved into the community. The defendants

failed to state in their letters that the plaintiffs advocate

that the defendants be required to develop more extensive

and greater community services and that institutionalized

residents be given the choice between institutionalization

and community placement. With this omission, the defen-

dants left the important misimpression that the plaintiffs

App. 61

seek to close the state’s facilities and force patients out

without any support services.®

° The defendants sent a letter to guardians of mentally-

retarded residents in the state’s developmental centers stating:

“This letter shall serve as notice that the Department

of Mental Health and Mental Retardation is currently

involved in a lawsuit involving your ward, [name], at

the [name] Developmental Center. The plaintiffs’

attorneys in this lawsuit claim to represent your

ward. One of the Plaintiffs’ objectives in this case is to

close the state’s mental retardation facilities,

including [name] Developmental Center.”

Plaintiffs’ brief filed on February 6, 1995 (Doc. no. 516) (exh. C).

The defendants failed to add that the plaintiffs advocate the

development of more extensive and greater community services

and want to give institutionalized residents the choice, where

appropriate, between institutionalization and community

placement.

Other letters were sent to family members and guardians of

class members, including the mentally-ill patients, stating:

“This letter shall serve as notice that the Department

of Mental Health and Mental Retardation is currently

involved in a lawsuit involving your ward/ relative at

[name of institution]. The Plaintiffs’ attorneys in this

lawsuit claim to represent your ward/relative as

counsel for the Plaintiff’s class members. One of the

Plaintiffs’ objectives in this case is to substantially

reduce the state’s mental health facilities.”

Plaintiffs’ brief filed on February 6, 1995 (Doc. no. 516) (exh. D).

Again, with their omission, the defendants presented a false

picture of the plaintiffs’ position in this litigation.

App. 62

To acquiesce to the defendants’ contention and con-

clude that the plaintiff class is in conflict and due to be

decertified, when that conflict may have largely resulted

from misinformation spread by the defendants, would

not only be illogical, it would be manifestly unjust. Also,

because of the dissemination of this misinformation, it is

now almost impossible to determine at this time the

- degree and nature, if any, of true conflict within the class.

In any event, the remedy for the so-called conflict at this

point should be to provide the class with correct informa-

tion and continually to reevaluate any expressions of

conflict within the class.

The court emphasizes that, although it appears that

the defendants may have misinformed the plaintiff class

regarding the named plaintiffs’ contentions in this litiga-

tion, the court should not be understood to have agreed

that these contentions have legal merit. As will be

explained later, the legal merit, if any, in the named

plaintiffs’ contentions are not before the court at this

time. Nor should the court be understood to imply that

the defendants may not themselves express to the public,

including class members.and their representatives, the

These letters went on to state that the Department was

objecting to producing class members’ records to plaintiffs’

attorneys and encouraged the guardian or family member to

contact the Department if he or she objected to counsel having

access to their ward’s records. These letters were sent to

guardians after the Magistrate Judge specifically cautioned the

defendants not to “encourage” plaintiffs and their guardians to

object to producing the class members’ records without explicit

approval of the district court - approval which was not

obtained. Transcript of July 21, 1994 proceedings before United

States Magistrate Judge McPherson at 69.

App. 63

defendants’ views on how this litigation should proceed.

Indeed, irrespective of the outcome of the issues now

before this court, open and public debate of these issues

among all concerned can only be healthy.

ii.

In addition, the fact that there are some plaintiff class

members who, though correctly informed of the named

plaintiffs’ position on community placement in this litiga-

tion, still do not agree with it, does not necessarily war-

rant decertification at this point. First of all, in large and

complex litigation such as this one, potentially involving

thousands of-class members and scores of legal issues,

many of them convoluted and difficult, it would be

impossible to obtain and maintain 100% agreement

within the class as to all matters. To impose such a

requirement would, in effect, preclude the use of the class

action device in many of the very cases that it could be

most advantageous.

Therefore, the question should not be whether there

is a 100% concurrence of interests within the class but

rather whether the class as a whole and as to some

primary issues being litigated is being adequately repre-

sented. Rule 23 “does not require that all questions of fact

and law be common, but only demands that a question of

law or fact be presented which is shared in the grievances

of the prospective class as defined.” 3B James W. Moore

et al., Moore’s Federal Practice | 23.06-1 at 23-159 (2d ed.

1995). See also Weiss v. York Hospital, 745 F.2d 786 (3rd Cir.

1984), cert. denied, 470 U.S. 1060, 105 S.Ct. 1777 (1985);

Ventura v. New York City, 125 F.R.D. 595 (S.D.N.Y. 1989);

App. 64

Wilcox v. Petit, 117 F.R.D. 314, 317 (D.Me. 1987); In re Gulf

Oil/Cities Serv. Tender Offer Litigation, 112 F.R.D. 383

(S.D.N.Y. 1986). The issue of community placement is

only one of many important, complex and difficult issues

confronting the court. Although class certification may

not be proper when the class includes “members who

disagree about the propriety of relief” generally, Miles v.

Metropolitan Dade County, 916 F.2d 1528 (11th Cir. 1990),

the fact that there :.ay be class members who disagree

with the named class on one issue does not warrant

dispensing with the utility of the class device as to all

other important issues. See Horton v. Goose Creek Ind. Sch.

Dist., 690 F.2d 470, 487 (5th Cir. 1982) (value of class

action device and availability of corrective procedures

outweighs danger of antagonism within class), cert.

denied, 463 U.S. 1207, 103 S.Ct. 3536 (1983).

Moreover, there are many procedural safeguards

available under the Federal Rules of Civil Procedure that

can be brought into play if a clear conflict develops. See

Social Services U., Local 535 v. Cty. of Santa Clara, 609 F.2d

944, 948 (9th Cir. 1979) (“If at any time before, during, or

after trial it appears that . . . [the representatives] no

longer fairly and adequately protect the interests of the

class. . . . [o]ne or more of the many available procedural

safeguards can be brought into play to protect the

absentees”). For example, Rule 23(c)(4) allows for certi-

fication of a class “with respect to particular issues.”

Therefore, if a class member differs with how the named

plaintiffs are pursuing a particular issue and wishes to

pursue that issue as a representative of a subclass, that

member may seek to intervene to represent a subclass as

to that issue. No class member has sought intervention to

App. 65

represent the class, or a subclass, as to an issue at this

point.'° The court would certainly consider such a motion

if it were brought and might even initiate the formation

of a subclass on a specific issue if it appeared necessary to

assure adequate representation of plaintiffs.

Finally, decertification is not warranted at this time

because it appears that the position of those class mem-

bers who might oppose named plaintiffs on community

placement issues is already being adequately - indeed,

aggressively — advanced in this litigation by the defen-

dants. See Horton, 690 F.2d at 487 (although some plaintiff

class members approved of school drug searches in case

challenging the searches’ constitutionality, class was

appropriate where approving students’ interests were

aggressively represented by defending school district);

Dierks v. Thompson, 414 F.2d 453, 457 (1st Cir. 1969)

(although not all plaintiff class members agreed with

every goal pursued by named plaintiffs, plaintiff class

was appropriate because the interest of the disagreeing

10 Admittedly, William Edward Haas sought to intervene in

this cause as next friend and legal guardian of his daughter, a

mentally incompetent woman who is now a resident of one of

the state’s institutions for the mentally retarded and mentally

ill. He took issue with how the named plaintiffs were pursuing

certain issues. The court rejected Haas’s effort because he

wanted to pursue only individual relief on behalf of his

daughter and not class relief as to these issues. Wyatt v. Hanan,

No. 3195-N (M.D. Ala. Feb. 15, 1995). The court explained that to

allow all guardians and other similar representatives to

intervene to pursue only individua! relief “would render this

lawsuit more unmanageable and unnecessarily confusing than

it already is.” Id. at 11.

App. 66

plaintiffs was adequately represented by defendants in

the litigation)."

Of course, if the defendants were to abandon their

strong opposition to the named plaintiffs’ position in this

litigation, and if it appeared that there was still credible

opposition within the plaintiff class to the named plain-

tiffs’ position, the court would seriously have to consider

taking measures to assure that opposition from within the

class was being adequately addressed in the litigation.

The consideration of the views of class members opposed

to positions taken by the named plaintiffs and their coun-

sel would not be new to this litigation. In 1991, the court

sustained an objection from parts of the plaintiff class to

several proposed consent decrees even though the

decrees had the support of counsel for both plaintiffs and

defendants. Wyatt v. Horsley, 793 F.Supp. 1053, 1056 (M.D.

Ala. 1991).

B. Modification or Recertification

The defendants argue, in the alternative, that the

class should be modified or recertified. They request that

the court do the following: appoint new class representa-

tives and new class counsel; explicitly state who is in the

class; clarify whether this is a Rule 23(b)(2) or (b)(3) class

action; permit the plaintiffs to opt out of the class pur-

suant to Rule 23(b)(3) if they wish; and issue notice to

1! The court similarly found with regard to Haas, see supra

note 10, that his intervention was not necessary because the

issues he sought to pursue were already being adequately

pursued in the litigation. Wyatt v. Hanan, No. 3195-N (M.D. Ala.

Feb. 15, 1995), at 9-10.

App. 67

class members pursuant to Rule 23(d)(2). The court

agrees that the class should be recertified to the extent

that its parameters should be clarified and new named

representatives, with live interests, brought in to repre-

sent the class. The court concludes that current class

counsel are providing excellent representation to the

plaintiff class and that to appoint new class counsel

would be pointless and, more than likely, hurt the class’s

interests. The court further concludes that this lawsuit is

a Rule 23(b)(2) class action. As to notice, the court will

require that the parties establish procedures for provid-

ing regular notice to the class and for allowing plaintiffs’

counsel regular access to class members.

In order to represent a class of allegedly similarly

situated individuals, the proposed named plaintiffs must

demonstrate that “(1) the class is so numerous that join-

der of all members is impracticable, (2) there are ques-

tions of law or fact common to the class, (3) the claims or

defenses of the representative parties are typical of the

claims or defenses of the class, and (4) the representative

parties will fairly and adequately protect the interests of

the class.” Fed.R.Civ.P. 23(a). Additionally, a class must

meet one of three conditions stated in Rule 23(b) which

make a class action the preferable mode of handling the

lawsuit. If the four requirements of Rule 23(a) and one of

the conditions of Rule 23(b) are met, then the class may

be certified. See General Telephone Co. of Southwest v. Fal-

con, 457 U.S. 147, 156, 102 S.Ct. 2364, 2370 (1982).

Before addressing these five criteria, however, the

court examines the parameters of the class that is to be

recertified because the parties are not in agreement over

its exact contours.

App. 68

1. Class Definition

The parties are in agreement over the definition of

the mentally-retarded portion of the class, but disagree

over who comprises the mentally-ill portion of the class.

The mentally-retarded portion of the class consists of all

mentally-retarded residents who live in the Alabama

Department of Mental Health and Mental Retardation’s

developmental centers, or any home or facility, public or

private, to which an individual has been assigned or

transferred to by the Department.!? The parties’ disagree-

ment as to the mentally-ill portion of the class is over

whether this class consists of only involuntarily commit-

ted or both voluntarily and involuntarily committed

patients who reside in the Department's hospitals, or any

other centers, homes, or facilities, public or private, to

which an individual is assigned or transferred for resi-

dence by the Department. The defendants contend that

the Wyatt orders and the law apply only to involuntarily

committed mentally-ill patients and do not apply to the

voluntarily committed.

The plaintiffs correctly observe that the parties and

the court have historically treated the voluntarily-com-

mitted mentally-ill patients as part of the class. The class

originally consisted of mentally-ill patients at Bryce Hos-

pital. In 1971, the court expanded the class to include

mentally-ill patients at Searcy Hospital and mentally-

retarded residents at the Partlow State School and Hospi-

tal. Wyatt v. Stickney, No. 3195-N (M.D. Ala. Aug.

12 See Wyatt v. Hardin, No. 3195-N (M.D. Ala. Feb. 28, 1975)

(expanding and defining class); court’s exh. 2 (agreed upon

standards for mentally-retarded class members).

(A TE NDEI nee eT |

App. 69

12, 1971). In 1975, the court held that it was “necessary

and proper to extend to all facilities in which the men-

tally ill and emotionally disturbed are cared for and

treated by the state the minimal constitutional standards

for adequate treatment of the mentally ill which ha{d]

previously been established for Bryce and Searcy Hospi-

tals.” Wyatt v. Hardin, No. 3195-N (M.D. Ala. Feb. 28,

1975). Thus, the court expanded the class to include all

mentally-ill patients at any facility or hospital operated

by the Department. This has been repeatedly interpreted.

by the court and parties to include voluntarily and invol-

untarily committed patients. For example, in 1989 the

court required the parties to adhere to the Wyatt stan-

dards regarding electro-convulsive treatment at its Kidd

facility. Wyatt, No. 3195-N (M.D. Ala. Aug. 3, 1989). The

patients at the Kidd facility are predominantly geriatric

patients and many, if not all, are considered by the defen-

dants to be “voluntarily committed” patients. As previ-

ously indicated, when the parties and court have treated

a group as a class and ordered relief as to that group as a

class, they are, in fact, a class, even in the absence of a

formal certification order. See Graves, 686 F.2d at 1136-40;

Johnson, 598 F.2d at 435; Bing, 485 F.2d at 447.15

13 The court notes that many “voluntary” patients are not

exactly voluntary. To be a voluntary patient, an individual must

be able to leave the institution if he or she so desires. “To the

extent that patients might be prevented from leaving,” whether

they entered voluntarily or not, “they become involuntary

patients.” Doe v. Public Health Trust of Dade County, 696 F.2d 901,

903 n.10 (11th Cir. 1983) (per curiam). For example, the status of

many patients who are admitted as involuntary civil

commitments is nominally changed to “voluntary” when the

patient no longer meets the criteria for commitment, but the

App. 70

The defendants respond that a 1992 order by this

court approving several consent decrees superseded prior

definitions of the class and narrowed the mentally-ill

portion of the class to include only involuntarily commit-

ted patients. Wyatt v. King, 793 F. Supp. 1058 (M.D. Ala.

1992). The plaintiffs counter that the intent behind the

change in certain definitions was to clarify that “that the

standards for treatment of people with mental illness

apply not only to ‘hospitals’ but to all state-operated

‘facilities,’ ” id. at 1063, and it was not to redefine the

class to exclude the voluntarily committed. The plaintiffs

note that at no time during the Rule 23 approval process

of the decrees was the impact of the decrees on the

interests of voluntarily committed patients considered by

the parties or, more importantly, by the court in making

its required determination that the decrees were “fair,

adequate and reasonable” as to the class. Id. at 1061.

Whether voluntarily committed patients are due

relief in this lawsuit is not, however, an issue for resolu-

tion at this time. The definition of the class for certifica-

tion purposes is a procedural question distinct from the

merits of the lawsuit. “[T]he question is not whether the

plaintiff or plaintiffs . . . will prevail on the merits, but

rather whether the requirements of Rule 23 are met.”

defendants are unable to find a suitable community placement.

Additionally, the majority of patients who reside at the Kidd,

Allen, and Box nursing facilities are incompetent. The

adniission and continued stay of an incompetent individual in a

locked facility cannot be considered voluntary in any true sense

of the word. See, e.g., Zinermon v. Burch, 494 U.S. 113, 133-34, 110

S.Ct. 975, 987-88 (1990); Doe v. Austin, 848 F.2d 1386, 1392 (6th

Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495 (1988).

App. 71

Eisen v. Carlisle & Jacgelin, 417 U.S. 156, 178, 94 S.Ct. 2140,

2153 (1974); see also Love v. Turlington, 733 F.2d 1562, 1565

(11th Cir. 1984); Jordan v. Swindall, 105 F.R.D. 45, 46-47

(M.D. Ala. 1985). Therefore, the question before the court

is not whether the plaintiffs, voluntarily or involuntarily

committed patients, will prevail or be entitled to relief,

but whether the requirements of Rule 23 are met - that is,

whether the proposed class of plaintiffs, both the volun-

tarily and involuntarily committed, meet the numerosity,

commonality, typicality, and representativeness require-

ments of Rule 23. Indeed, if together they do, it is essen-

tial that the interests of the voluntarily committed be

adequately represented in this litigation when the court

does ultimately reach the issue of whether the 1992 con-

sent decrees narrowed the reach of the Wyatt mental-

illness standards to apply to only the involuntarily com-

mitted.

2. Numerosity

The numerosity requirement of Rule 23(a)(1) is satis-

fied if joinder of all plaintiff class members would be

impracticable. In this case the class is so numerous that

joinder is impracticable. There are approximately 1,000

mentally-retarded individuals in the defendants’ institu-

tions and well over 1,000 mentally-ill patients in their

institutions. This requirement is therefore met.

3. Commonality and Typicality

Rule 23(a)(2) & (3)’s requirements of commonality

and typicality “tend to merge.” Falcon, 457 U.S. at 157

App. 72

n.13, 102 S.Ct. at 2370 n.13. Both requirements serve to

ensure that the “maintenance of a class action is economi-

cal” and that “tne named plaintiff’s c'aim and the class

claims are so interrelated that the interests‘ of the class

members will be fairly and adequately protected in their

absence.” Id.

These requirements are also met. The named plain-

tiffs share multiple interests and claims identical to the

class members’ claims. The mentally-ill named plaintiffs

claim, among other things, that they do not receive ade-

quate treatment, that their safety is threatened, and that,

if appropriate, they would like to live in the community.

For example, several of the named class members con-

tend that there is no reason for their continued institu-

tionalization other than a lack of community services.

One also alleges that when he has been released in the

past, he has not received adequate transitional and com-

munity care. The mentally-retarded named plaintiffs

claim, among other things, that they are denied a safe

environment and, in fact, have been physically abused

while in the defendants’ care. They also claim that they

receive inadequate habilitation and have been denied the

opportunities to reach their potential because the defen-

dants have not given them an informed choice to live in

the community. These claims are all common to and

typical of the class.

4. Adequate Representation

The adequacy inquiry is two-fold. First, the cour‘

must assure itself that the named representative will

adequately and diligently represent the class members’

App. 73

interests and that no potential conflicts in interest will

interfere with this representation. Due process requires

this. Hansberi. v. Lee, 311 US. 32, 42-43, 61 S.Ct. 115,

118-19 (1940). Second, the court must determine that the

class’s attorneys will adequately represent the class’s

interests.

The inquiry into the adequacy of the named repre-

sentative tends to merge with the commonality and typ-

icality requirements, because the extent of the identity of

interests bears on the adequacy of the representative. See

Nelson v. United States Steel Corp., 709 F.2d 675, 679 n.10

(11th Cir. 1983); Wynn v. Dixieland Food Stores, Inc., 125

F.R.D. 696, 700 (M.D. Ala. 1989). As discussed previously,

if a group of persons has suffered injuries at the hands of

the same policy or action, then they have a commonality

of interests. The plaintiffs’ claims therefore are coexten-

sive with the class as a whole. In addition to the coexten-

siveness of interests, several other factors are relevant to

the adequacy of representation issue: whether the named

members’ interests are antagonistic in any way to the

interests of those whom they seek to represent, the pro-

portion of those made parties to the total class member-

ship, and any other facts bearing on the ability of the

named party to speak for the rest of the class. Jordan, 105

F.R.D. at 48. The court finds that these additional factors

all weigh in favor of certification. As explained earlier in

rejecting the defendants’ motion for decertification, there

are no apparent conflicts of interest that warrant rejection

of class certification. Although the class is very large,

there are enough named plaintiffs to enable adequate

representation. And finally, the named plaintiffs are effec-

tive representatives. The mentally ill plaintiffs were all

App. 74

able to speak eloquently and forcefully at trial about their

experiences on behalf of the members of the class. The

mentally-retarded plaintiffs both have very active parents

who were able to speak for them at trial. These factors

strengthen the proposed named plaintiffs’ ability to rep-

resent the plaintiff class. The named plaintiffs are ade-

quate representatives of the class.

There can be no question that class counsel have

provided excellent representation and zealous advocacy

to their clients. They secured a preliminary injunction

regarding conditions of safety for children at the Eufaula

Adolescent Center, Wyatt v. Poundstone, 892 F.Supp. 1410

(M.D. Ala. 1995); negotiated improvements to the Wyatt

standards, e.g., Wyatt v. Poundstone, No. 3195-N, 1995 WL

430939 (M.D. Ala. July 11, 1995); Wyatt v. King, 793 F.

Supp. 1058 (M.D. Ala. 1992); defeated the defendants’

efforts to vacate important and crucial Wyatt standards,

Wyatt v. King, 803 F.Supp. 377 (M.D. Ala. 1992); Wyatt v.

King, 811 F.Supp. 1533 (M.D. Ala. 1993); and have assem-

bled an able team of lawyers to defend the plaintiffs’

intere*’ 3

Nevertheless, the defendants contend that the plain-

tiffs’ attorneys have not been adequate class representa-

tives because they examined clients’ records without first

obtaining the guardians’ permission. However, both the

United States Magistrate Judge and this court upheld

plaintiffs’ counsel’s right to do so. The defendants con-

tend that the plaintiffs’ counsel were negligent for not

issuing a notice to all class members and their families

and guardians concerning the status of the case. How-

ever, the plaintiffs’ counsel must rely on the defendants

to post their notices in state facilities and to provide the

App 75

names and addresses of al’ guardians, next-of-kin, and

caregivers. This has been a psint of deep conflict between

counsel for plaintiffs and covmsel for the defendants, and

t. the extent that the plaintiff class has received inade-

quate notice, the defendants are not blameless. Plaintiffs’

counsel’s failure to communicate effectively with the

class is not a basis for a finding of inadequate representa-

tior as this time. In any event, the issue of notice is

adaressed later in this order.

Finally, borrowing language from an earlier opinion

in which the court refused to approve a proposed consent

decree submitted by both plaintiffs and defendants, the

defendants contend that class counsel has become “ ‘the

dominus litus,’ that is, the true master of the lawsuit.”

Wyatt v. Horsley, 793 F.Supp. 1053, 1056 (M.D. Ala. 1991).

In that opinion, the court did not say that the plaintiffs’

counsel had become the master in this litigation, but

rather cautioned all parties (both plaintiffs and defen-

dants) that this was a risk unless, “to the extent plaintiffs’

counsel cannot receive input from class members,

he . . . seek[s] it from such secondary sources as public

“nterest organizations, former mental patients, and family

members and caregivers who have day-to-day contact

with class members in the state’s institutions.” Id. The

court recognized the “difficulties class counsel faces in

endeavoring to solicit the views of . . . persons” who “are

unlikely to be able to . . . voice their comments.” Id. The

plaintiffs’ counsel heeded this caution, and counsel for

both the plaintiffs and defendants subsequently submit-

ted a new proposed decree which was approved by the

court. Wyatt v. King, 793 F.Supp. 1058 (M.D. Ala. 1992).

App. 76

The attorneys from the Bazelon Mental Health Center

have been representing the plaintiff class for several

years, and the lead attorney, Mr. Ira Burnim, has been

representing the plaintiffs since at least October 1982. The

court has thus had a great deal of time and many oppor-

tunities to observe plaintiffs’ attorneys and to assess their

representation of the plaintiff class. It is no easy task to

represent such a plaintiff class in a lawsuit that has been

ongoing for so many years and in which there are multi-

ple and complex legal issues. It is also quite difficult to

represent a class of plaintiffs who are unlikely to be able

to “voice” their interests themselves. Wyatt, 793 F. Supp.

at 1056. Yet, as this court has previously noted, counsel

for the plaintiff class, Mr. Ira Burnim, “is to be strongly

commended for the sensitive and effective manner” in

which he has represented the plaintiff class, Wyatt, 793 F.

Supp. at 1062 n.7.

The defendants further contend that the named

plaintiffs and plaintiffs’ counsel are not adequate because

of a conflict of interest. The court has already rejected this

contention. The court therefore finds the defendants’ alle-

gations of inadequate representation to be baseless.

5. Rule 23(b)(2) or (b)(3) Class

The plaintiffs contend that the class should be certi-

fied under Rule 23(b)(2), which is appropriate when “the

party opposing the class has acted or refused to act on

grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding

declaratory relief with respect to the class as a whole.”

The defendants contend that the class should be certified,

App. 77

if at all, under Rule 23(b)(3), which is appropriate when

the court find “that the questions of law or fact common

to the members of the class predominate over any ques-

tions affecting only individual members, and that a class

action is superior to other available methods for the fair

and efficient adjudication of the controversy.” Under Rule

23(b)(3), notice must be sent to all class members and

they must be given the opportunity to opt in or opt out of

the class. Fed.R.Civ.P. 23(c)(2).

The court disagrees with the defendants. In this law-

suit, Rule 23(b)(2) is more applicable to the class. The

defendants have acted on grounds generally applicable to

the class, “thereby making appropriate final injunctive or

corresponding declaratory relief with respect to the class

as a whole.” Fed.R.Civ.P. 23(b)(2). As the commentary to

Rule 23 states, subdivision (b)(2) is generally applicable

to civil-rights lawsuits, although it is not limited to them.

Subdivision (b)(3) is meant to apply to situations where a

class action is “not clearly called for” by subdivisions

(b)(1) or (b)(2). Because subdivision (b)(2) applies, the

court need not apply subdivision (b)(3). See Bing v. Road-

way Express, Inc., 485 F.2d 441, 447 (5th Cir. 1973) (Rule

23(b)(2) actions are generally preferred over (b)(3) actions

where (b)(2) is applicable).

For the reasons stated above, the plaintiff class

should be recertified pursuant to Rule 23(a) & (b)(2) of

the Federal Rules of Civil Procedure as a class of men-

tally-ill and mentally-retarded individuals who live in

hospitals, centers, facilities, or homes, public or private,

to which the individual has been assigned or transferred

to by the Department.

App. 78

C. Notice to and Contact with the Plaintiff Class

Because the plaintiff class will be recertified pursuant

to Rule 23(a) & (b)(2), notice need not be sent to class

members and class members need not be given the

opportunity to opt out. However, counsel for both plain-

tiffs and defendants agree that notice should be given to

class members regarding issues in and the status of this

litigation. In addition, the court believes that, in light of

‘past conflicts between counsel for defendants and coun-

sel for plaintiffs over access to members of the plaintiff

class, a structure should be established in which plain-

tiffs’ counsel could have regular and adequate access to

the plaintiff class. The court will therefore require that the

United States Magistrate Judge, with input from counsel

for both plaintiffs and defendants, fashion the following

within 45 days:

A procedure by which plaintiffs’ counsel may give

the plaintiff class (including their guardians, caretakers,

next-of-kin, and attorneys) immediate notice of the issues

in and status of this litigation.

A procedure which will allow plaintiffs’ counsel to

give to the plaintiff class (including their guardians, care-

takers, next-of-kin, and attorneys) regular and adequate

notice of the issues in and status of this litigation.

A procedure by which plaintiffs’ counsel may have

regular and adequate access to the plaintiff class (includ-

ing their guardians, caretakers, next-of-kin, and attor-

neys).

App. 79

D. Intervention

For the reasons previously stated, the Hanna plain-

tiffs’ motion to intervene should be granted. Rule 24 of

the Federal Rules of Procedure governs intervention. A

party may intervene as of right or with pe

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