# Petition for Writ of Certiorari — Haas ex rel. Haas v. Wyatt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1547%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 824 ## Text 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 il 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 iv 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 vi 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 ae 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. (c) Procedure. A person desiring to intervene shall 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 10 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 11 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.” 12 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 13 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 14 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 15 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 16 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 ii 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, v. 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 A. 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.” x 2 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)). © Id. at p. 4. 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)); (c) the requirement that each resident’s 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.'¢ B. 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. c. 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). i 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 EE App. 22 Ricky WYATT, By and Through his aunt and legal guardian Mrs. W. C. Rawlins, Jr., et al., etc., Plaintiffs-Appellees, v. 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 i 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. I. 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 © One of the four died after a garden hose had been inserted 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 v. 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. EE 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1547%3A1. Public record. Not legal advice.