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Halderman v. Pennhurst State School & Hospital

decided: December 13, 1979; As Amended December 19, 1979.

TERRI LEE HALDERMAN, A RETARDED CITIZEN, BY HER MOTHER AND GUARDIAN, WINIFRED HALDERMAN; LARRY TAYLOR, A RETARDED CITIZEN, BY HIS PARENTS AND GUARDIANS, ELMER AND DORIS TAYLOR; KENNY TAYLOR, A MINOR, A RETARDED CITIZEN, BY HIS PARENTS AND GUARDIANS, ELMER AND DORIS TAYLOR; ROBERT SOBETSKY, A MINOR, A RETARDED CITIZEN, BY HIS PARENTS AND GUARDIANS, FRANK AND ANGELA SOBETSKY; THERESA SOBETSKY, A RETARDED CITIZEN, BY HER PARENTS AND GUARDIANS, FRANK AND ANGELA SOBETSKY; NANCY BETH BOWMAN, A RETARDED CITIZEN, BY HER PARENTS AND GUARDIANS, MR. AND MS. HORACE BOWMAN; LINDA TAUB, A RETARDED CITIZEN, BY HER PARENTS AND GUARDIANS, MR. AND MRS. ALLEN TAUB; GEORGE SOROTOS, A MINOR, A RETARDED CITIZEN BY HIS FOSTER PARENTS, WILLIAM AND MARION CARANFA, ALL OF THE ABOVE INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARY SITUATED; THE PARENTS AND FAMILY ASSOCIATION OF PENNHURST; PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS, JO SUZANNE MOSKOWITZ, A MINOR, BY HER PARENTS AND NEXT FRIENDS, LEONARD AND NANCY MOSKOWITZ, ROBERT HIGHT, A MINOR, BY HIS PARENTS AND NEXT FRIENDS, JOHN AND JEANNE HIGHT, DAVID PREUSCH, A MINOR BY HIS PARENTS AND NEXT FRIENDS, CALVIN AND ELIZABETH PREUSCH, AND CHARLES DINOLFI, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-INTERVENORS ; UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR
v.
PENNHURST STATE SCHOOL & HOSPITAL, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, FRANK S. BEAL, SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE, STANLEY MEYERS, DEPUTY SECRETARY FOR MENTAL RETARDATION, DEPARTMENT OF PUBLIC WELFARE, HELENE WOHLGEMUTH, FORMER SECRETARY, DEPARTMENT OF PUBLIC WELFARE, ALDO COLAUTTI, EXECUTIVE DEPUTY SECRETARY, DEPARTMENT OF PUBLIC WELFARE, WILBUR HOBBS, DEPUTY SECRETARY FOR SOUTHEASTERN REGION, DEPARTMENT OF PUBLIC WELFARE, RUSSELL RICE, JR., COMMISSIONER OF MENTAL RETARDATION FOR SOUTHEASTERN REGION, DEPARTMENT OF PUBLIC WELFARE, C. DUANE YOUNGBERG, SUPERINTENDENT, PENNHURST STATE SCHOOL & HOSPITAL, ROBERT SMILOVITZ, FORMER ASSISTANT SUPERINTENDENT, PENNHURST STATE SCHOOL & HOSPITAL, JOSEPH FOSTER, ASSISTANT SUPERINTENDENT, PENNHURST STATE SCHOOL & HOSPITAL, MARGARET GREEN, BETTY UPHOLD, ALICE BARTON, P.E. KLICK, DR. PAROCCA, HELEN FRANCIS, EMPLOYEES AND AGENT OF PENNHURST STATE SCHOOL & HOSPITAL, JOHN DOCTOR, JAMES NURSE, JANE AIDE, JILL THERAPIST, RICHARD ROE, JANE DOE, UNKNOWN AND UNNAMED STAFF, EMPLOYEES AND AGENTS OF PENNHURST STATE SCHOOL & HOSPITAL, EACH INDIVIDUAL DEFENDANT SUED INDIVIDUALLY AND IN HIS OR HER OFFICIAL CAPACITY, GEORGE METZGER, JOSEPH CATANIA, AND ROGER BOWERS, COMMISSIONERS FOR BUCKS COUNTY, ROBERT STREBL, EARL BAKER, AND LEO MCDERMOTT, COMMISSIONERS FOR CHESTER COUNTY, FAITH R. WHITTLESEY, CHARLES KEELER AND WILLIAM SPINGLER, COMMISSIONERS FOR DELAWARE COUNTY, A. RUSSELL PARKHOUSE, FRANK W. JENKINS AND LAWRENCE H. CURRY, COMMISSIONERS FOR MONTGOMERY COUNTY, MAYOR FRANK L. RIZZO AND THE CITY COUNCIL OF PHILADELPHIA, AS AUTHORITIES FOR PHILADELPHIA COUNTY, PETER BODENHEIMBER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR BUCKS COUNTY, WILLIAM A. MCKENDRY, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR CHESTER COUNTY, P. PAUL BURRICHTER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR DELAWARE COUNTY, HERMANN A. ROETHER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR MONTGOMERY COUNTY, AND LEON SOFFER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR PHILADELPHIA COUNTY, COMMONWEALTH OF PENNSYLVANIA DEFENDANTS PENNHURST STATE SCHOOL & HOSPITAL, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, FRANK S. BEAL, STANLEY MEYERS, HELENE WOHLGEMUTH, ALDO COLAUTTI, WILBUR HOBBS, RUSSELL RICE, JR., C. DUANE YOUNGBERG, ROBERT SMILOVITZ, JOSEPH FOSTER, MARGARET GREEN, BETTY UPHOLD, ALICE BARTON, P.E. KLICK, DR. PAROCCA, AND HELEN FRANCIS, APPELLANTS IN NO. 78-1490; GEORGE METZGER, JOSEPH CATANIA, AND ROGER BOWERS, COMMISSIONERS FOR BUCKS COUNTY, AND PETER BODENHEIMBER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR BUCKS COUNTY, ROBERT G. STREBL, EARL M. BAKER, AND LEO MCDERMOTT, COMMISSIONERS FOR CHESTER COUNTY, AND WILLIAM A. MCKENDRY, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR CHESTER COUNTY, FAITH RYAN WHITTLESEY, CHARLES C. KELLER, AND WILLIAM A. SPINGLER, COMMISSIONERS FOR DELAWARE COUNTY, AND P. PAUL BURRICHTER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR DELAWARE COUNTY, AND A. RUSSELL PARKHOUSE, FRANK W. JENKINS, AND LAWRENCE H. CURRY, COMMISSIONERS FOR MONTGOMERY COUNTY, AND HERMANN A. ROETHER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR MONTGOMERY COUNTY, APPELLANTS IN NO. 78-1564; MAYOR FRANK L. RIZZO, THE CITY COUNCIL OF PHILADELPHIA, AND LEON SOFFER, APPELLANTS IN NO. 78-1602



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. CIVIL NO. 74-1345)

Before Seitz, Chief Judge, and Gibbons and Higginbotham, Circuit Judges. Argued Jan. 9, 1979. Reargued en banc Sept. 6, 1979. Before Seitz, Chief Judge, and Aldisert, Gibbons, Rosenn, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

This is an appeal from an order granting class action injunctive relief against the continued maintenance of Pennhurst State School and Hospital (Pennhurst), a facility for the care and training of persons suffering mental retardation. Located in Spring City, Pennsylvania, Pennhurst is operated under the direction of the Pennsylvania Department of Public Welfare. The appellants are Pennhurst, its superintendent and various other officials of the Commonwealth of Pennsylvania responsible for the operation of Pennhurst (the Commonwealth defendants), and five counties in southeastern Pennsylvania from which mentally retarded persons are admitted to Pennhurst (the County defendants).*fn1 The appellees are the original and intervening plaintiffs, described more fully below. We affirm the trial court's finding of liability, and modify in part the court's decree.

I. PROCEEDINGS BELOW

The action commenced on May 30, 1974, when Terri Lee Halderman, a minor retarded resident of Pennhurst, for herself and all other Pennhurst residents, filed a complaint against the Commonwealth defendants. The complaint alleged that the residents, all of whom are mentally retarded, live in inhumane and dangerous conditions, are subjected to unnecessary physical restraints, are given unnecessary and dangerous medication, are consigned to lives of idleness because of lack of habilitative programs, and are subjected to numerous physical injuries resulting from a lack of adequate supervision. The complaint further charged that the regimen of Pennhurst caused Halderman and her class to deteriorate and regress emotionally, intellectually, and physically. The conditions to which residents were subjected, she claimed, denied the class members due process and equal protection of the law, and inflicted on them cruel and unusual punishment. Halderman sought both injunctive relief against the conditions at Pennhurst and money damages for past injuries.

In November 1974, the United States moved pursuant to Rule 24, Fed.R.Civ.P. 24, to intervene as a plaintiff. Its complaint sought injunctive relief against the Commonwealth defendants, citing the same conditions about which Halderman had complained. The Commonwealth defendants opposed intervention by the United States, but it was granted on January 17, 1975.*fn2

On June 3, 1975, the Pennsylvania Association for Retarded Citizens (PARC) and several additional mentally retarded residents of Pennhurst moved to intervene. Like the United States, PARC and the additional individual plaintiffs sought only injunctive relief and proceeded only against the Commonwealth defendants.

Thereafter PARC and Halderman amended their complaints to seek relief, not only against the Commonwealth defendants, but also against the County defendants, who it was alleged, were responsible for the commitment of the mentally retarded to Pennhurst and also for the lack of local community facilities, access to which the class members were entitled. In the amended complaint the PARC and Halderman plaintiffs alleged violations of various rights arising under the eighth and fourteenth amendments of the United States Constitution; under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976); under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976); under the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969). The district court, on November 29, 1976, denied motions to dismiss filed by the various defendants, and entered an order determining that the action should be maintained as a class action, the class consisting of "all persons who as of May 30, 1974, and at any time subsequent, have been or may become residents of Pennhurst. . . ." This included, besides current residents of the institution, all mentally retarded residents of the five counties of southeastern Pennsylvania who might in the future be placed in Pennhurst.

After extensive pretrial discovery, trial of the action commenced on April 18, 1977, and continued until June 13, 1977. On December 23, 1977, the trial judge made findings of fact and conclusions of law holding that the defendants were violating the rights of members of the mentally retarded class secured to them by section 504 of the Rehabilitation Act of 1973, by the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969), by the due process and equal protection clauses of the fourteenth amendment, and by the eighth amendment prohibition against cruel and unusual punishment.*fn3 The court held that the mentally retarded have a federal statutory right to nondiscriminatory habilitation, a Pennsylvania statutory right to minimally adequate habilitation, and federal constitutional rights to nondiscriminatory habilitation, freedom from harm, and adequate treatment by the least restrictive means. Each of these rights was found to have been violated by the conditions of confinement at Pennhurst. Thereafter, on January 6, 1978, the court held a separate hearing on relief. The court requested that the parties meet and attempt to agree upon an order satisfactory to all the litigants. After meeting, the parties informed the court that they could not, and would not be able to, agree on an order. The court then asked the parties to submit separate proposed orders.

On March 17, 1978, the court issued the order from which these appeals were taken.*fn4 The court ordered that Pennhurst eventually be closed and suitable community living arrangements and necessary support services provided for all Pennhurst residents (approximately 1200); that individualized program plans be developed for each resident with the participation of each class member or his next friend at the formulation and implementation stages; and that plans for the removal of Pennhurst residents to appropriate community based mental retardation programs, meeting individual needs and structured in the least restrictive, most integrated setting, be developed and submitted to the court. The order also provided for the appointment of a Special Master to supervise the planning and implementation of arrangements for placing Pennhurst residents elsewhere, and for the operation of Pennhurst until such placements were accomplished. It enjoined the County defendants from recommending future commitments of mentally retarded persons to Pennhurst, and forbade the Commonwealth defendants from placing additional persons there. It also established a "friend-advocate" program to represent the class members in monitoring the provision of community living arrangements. During the period of gradual phase-out of Pennhurst as a home for the mentally retarded, the Commonwealth defendants were ordered to take steps to prevent any recurrence of some of the more egregious abuses of residents which the court found to have occurred in the past. The order further empowered the Master to establish a plan to provide alternative employment for all Pennhurst employees. An application for a stay of the March 17, 1978 order was denied by the district court,*fn5 and a panel of this court denied a stay pending appeal.

A panel of this court heard argument in the case on January 9, 1979. When no single opinion could command majority support, the case was set down for en banc disposition. Thereafter, renewed motions for a stay pending appeal were considered by the court en banc and on August 6, 1979, the court reserved judgment thereon, except that the order appealed from was "stayed to the extent that it shall not apply to transfers out of Pennhurst of any resident whose parents or guardian fails to sign a written consent to such transfer." In other respects, its implementation has gone forward pending appeal.

II. UNITED STATES INTERVENTION

The Commonwealth defendants, relying on United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977), contend that the court erred in permitting the United States to intervene as a plaintiff. In Solomon the United States filed a complaint charging the State of Maryland with violating the rights of mentally retarded residents of the Rosewood State Hospital. The district court dismissed the action, holding that the United States lacked authority to bring it. The Fourth Circuit affirmed. In the instant case, equating intervention under Rule 24 with the original action in Solomon, the Commonwealth defendants urge that Solomon be followed and intervention by the United States disapproved. Of course, since the Halderman and PARC appeals defend the order appealed from on all the same grounds that the United States does, the resolution of the federal government's right to participate has no effect on the merits of the appeal. But its standing as an intervenor would determine the standing of the United States to seek or oppose Supreme Court review. Thus it is appropriate that we address that question.

In Solomon the Fourth Circuit acknowledged the numerous federal statutes evidencing a federal interest in, concern for, and activity with respect to the mentally retarded.*fn6 It pointed out that no statute expressly authorized the United States to bring suit to challenge the alleged deprivation of the rights of the retarded. Reviewing and purporting to distinguish numerous cases sustaining the authority of the United States to sue in the absence of such express statutory authorization,*fn7 the court said:

(W)e decline to hold that in the absence of specific authority the United States may sue in the instant case. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (, 72 S. Ct. 863, 96 L. Ed. 1153) (1952) the so-called "Steel Seizure Case" is one of the reasons for our decision. It raised the question of whether the President had the authority to seize the nation's steel industry in an effort to prevent a crippling steel strike during the Korean War. Because the President had no statutory or constitutional authority to seize the mills, the Court held that the seizure was illegal and improper.

The case is important here because of the light that it sheds on the doctrine of separation of powers.

563 F.2d at 1128.

We do not find persuasive the Solomon court's analogy between President Truman's nonjudicial seizure of the steel mills by military force and a judicial proceeding to obtain injunctive relief enforcing legislative policies in aid of the mentally retarded. There is all the difference in the world for separation of powers purposes between a naked exercise of executive power and executive branch resort to the judicial branch for relief which Congress has not expressly prohibited. The President is, after all, charged with the responsibility to "take Care that the Laws be faithfully executed . . ." U.S.Const. art. II, § 3. When, in an effort to do so, he resorts to an Article III court under a recognized grant of federal jurisdiction such as 28 U.S.C. § 1345, and that court finds no legislative prohibition against that resort, the lawsuit cannot reasonably be seen as an invasion of the powers of Congress. Before relief can be given in such a suit, one branch, the executive, must seek it, while a second branch, the judiciary, must agree that it is authorized by the law promulgated by a third branch. If the judiciary has, in an individual case, misconstrued the law, Congress can, constitutional pronouncements aside, change the rule for the future. If Congress wishes to withhold from the executive branch the civil remedies available under the Federal Rules of Civil Procedure, it can by specific legislation say so. Thus, we find unconvincing the separation of powers argument invoked by the Solomon court to reject executive branch enforcement of federal law.*fn8

In this case, however, we need not decide whether absent the Halderman action the United States could independently have sued. The suit was already pending. Moreover, in its constitutional dimensions the suit was expressly authorized by 42 U.S.C. § 1983. We hold that the initial plaintiffs have standing to enforce federal statutory claims as well. See p. 95 Infra. Thus Congress has made the decision that someone could seek the injunctive relief in question. Intervention presented no danger that the federal executive would be initiating a lawsuit that Congress somehow never intended. Intervention was sought pursuant to Rule 24, Fed.R.Civ.P. 24, and there was ample justification for permitting it. Under Rule 24(b)(2), a district court may allow intervention when an applicant's claim or defense and the main action have common questions of law or fact. Rule 24(b) makes specific provision for intervention by governmental agencies interested in statutes, regulations, or agreements relied upon by the parties in the action. Here, as noted below, there is extensive federal legislation directed toward the well-being of the mentally retarded. Several executive branch agencies, especially the Department of Health, Education and Welfare (HEW), have important responsibilities under that legislation. Large amounts of federal funds flow to Pennsylvania from the federal government, and the United States is vitally interested in the enforcement of the conditions on which those grants are made. One such condition is compliance with governing federal law. Had the United States sought to do so, it could have brought suit to enforce the conditions attached to its grants.*fn9 Clearly, then, the district court did not abuse its discretion in permitting intervention under Rule 24.

III. FACTUAL FINDINGS

Neither the Commonwealth nor the County defendants take serious issue with the court's findings of fact respecting the abominable conditions to which Pennhurst residents have been subjected. They do contend, however, that despite those findings there was no legal basis for the grant of any injunctive relief, and, alternatively, that the scope of the relief ordered was broader than was warranted by the facts or the law.

At the time of trial Pennhurst housed 1230 mentally retarded individuals, some of whom also suffered from physical disabilities. The residents are not mentally ill, have broken no laws, and are not a danger to others, although, in severe cases, some are unable to care for themselves. Mental retardation is an impairment in learning capacity and adaptive behavior, and is not treatable, like mental illness, by means of drugs or psychotherapy. While the mentally retarded do suffer educational difficulties, the level of their functioning can be improved by individualized training.

Residents come to Pennhurst either because of a commitment order from a state court, or by a "voluntary" admission initiated by a parent or guardian. In either case, the admission is arranged through Base Service Units, operated by the County defendants pursuant to the Pennsylvania Mental Health and Mental Retardation Act.*fn10 The Base Service Units are responsible for evaluating the needs of retarded individuals and determining the appropriate habilitative services.

In addition to large residential institutions like Pennhurst, Pennsylvania operates smaller and less isolated programs referred to as Community Living Arrangements (CLAs). The latter programs reflect a recognition of the principles of normalization for the habilitation of the retarded.*fn11 Under normalization principles, retarded persons are treated as much as possible like nonretarded persons. The purpose of such treatment is remediation of the delayed learning process so as to develop maximum potential in self-help, language, personal, social, educational, vocational, and recreational skills. These remediation efforts, the trial court found, are in general, much more likely to succeed in smaller living units which are closer to and more reflective of the normal society. In large separate isolated institutions like Pennhurst, however, the retarded generally suffer apathy, stunted growth, and even regression in the skills referred to. The effective result is the imposition or facilitation of increased retardation. Such large institutions, the court also determined, are more expensive to operate than community based alternatives. Perhaps for those and other reasons, it had been the current intention of the Department of Public Welfare to transfer residents from Pennhurst to community residential facilities, supported by specialized services, by some time in the early 1980's. In the five county area, 530 retarded persons already live in CLAs, including 186 former Pennhurst residents.

The district court also found that the environment at Pennhurst is not merely inconsistent with normalization principles, but is actually hazardous to residents. Because of the inadequacies in programming attributable to staff shortages, residents were found to have lost skills already learned. Organized programs of appropriate education and training were found to be inadequate or unavailable. Evaluations of resident progress do not meet minimum professional standards, and record keeping is inadequate.

Moreover, the Pennhurst environment was found to be unsanitary. There is often urine and excrement on the ward floors. Infectious diseases are common. Obnoxious odors and excessive noise permeate the institution. Most toilet areas do not have towels, soap or toilet paper. Injuries to residents by other residents or through self-abuse are common. Serious injuries inflicted by staff members, including sexual assaults, have occurred. Physical restraints, which may be physically harmful and which have caused injuries and at least one death, are resorted to more frequently than appropriate because of shortages of staff. Dangerous psychotropic drugs are used for purposes of behavior control and staff convenience, rather than for legitimate treatment needs. Such drug misuse produces lethargy, hypersensitivity to sunlight, inability to maintain gait, and other disabilities. Seclusion in solitary confinement has been used to punish aggressive behavior which might not have occurred if a proper regimen of training were available. Diet control is not possible because residents dine in large group eating areas without adequate staff supervision.

The federal government is a substantial partner in the Commonwealth's and Counties' provision of services generally available, although not always provided, to the mentally retarded. The Commonwealth Department of Welfare receives federal grants under both the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976), and the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-1461 (1976). The Commonwealth, in turn, makes funds available to the Counties for purposes of developing and maintaining their CLAs. Thus it is clear that there are county based programs open and available to the mentally retarded which receive federal financial assistance. The trial court found that the Counties have made an insufficient effort to provide community based services to the retarded.*fn12 The population of Pennhurst has thus remained high, effectively precluding the residents from taking advantage not only of federally funded programs expressly intended for the care of the retarded, but also of various other federally funded facilities such as education and transportation.

The court held that the isolation at Pennhurst is attributable, across the board, to state action. It found that about half of the Pennhurst residents had been committed there by order of a Pennsylvania court, while the other half had been admitted upon application of a parent or guardian. Although the latter group of residents are referred to in some of the briefs as voluntary admittees, theoretically free to leave when of age, the court found that when a resident wishes to leave and the Pennhurst staff determines that there is no place for him in the community, or that he is not ready for community living, a petition for involuntary commitment is made. The court found, moreover, that many residents do not understand the available alternatives to institutionalization, or are physically unable to express an interest in leaving, or have no adequate alternative living arrangement. Thus the notion of voluntariness in admission and retention was found to be illusory.

IV. PREFERRED LEGAL BASES FOR RELIEF

Appellants, as we noted above, do not quarrel with the facts; they dispute only the legal significance of those facts. They reject both the court's conclusion that the mentally retarded have a legal right to treatment or habilitation and its conclusion that treatment or habilitation must be provided in the least restrictive environment. Moreover, even assuming that these rights exist, appellants challenge the court's injunctive order as overbroad. We consider in turn each of these objections.

The district court's determination that appellees have a right to treatment was predicated upon constitutional, federal, and state statutory grounds. The federal courts have long been directed to decide whether causes of action can be supported on statutory grounds before they adjudicate constitutional law issues.*fn13

Moreover, while federal courts can interpret federal legislation definitively, subject only to Supreme Court review, their interpretation of a state statute arguably supporting the judgment might be rejected by the state's courts. The preferred order, therefore, is to turn first to the federal statutory issues. Thereafter, we will consider state statutory grounds for the trial court's decision.

V. THE RIGHT TO TREATMENT OR HABILITATION*fn14

A. Federal Statutory Law

In their second amended complaint, appellees asserted a cause of action under the Developmentally Disabled Assistance and Bill of Rights Act, Pub.L.No. 94-103, 89 Stat. 486 (1975), Codified at 42 U.S.C. §§ 6001-6081 (1976) (hereinafter "the Act"). The trial court did not reach the question of defendants' possible liability under this statute. The parties have nevertheless supplied this court with detailed briefing on the statute. We are persuaded that the Act provides the mentally retarded with a right to treatment.

The Act was passed in 1975 as an amendment to the Developmental Disabilities Services and Facilities Construction Act. It established particular rights and benefits for the developmentally disabled, a class of persons which included the mentally retarded. 42 U.S.C. § 6001(7)(A)(i). Among those was a right to the least restrictive environment, about which we will have more to say in Section VI A below. In addition, however, the Act expressly provided that the developmentally disabled have a right to treatment or habilitation. In the so-called Bill of Rights section, 42 U.S.C. § 6010, Congress made plain its intention to establish a right to treatment.*fn15 Congress found that "persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities." 42 U.S.C. § 6010(1). Moreover, both "(t)he Federal Government and the States . . . have an obligation to assure that public funds are not provided to any institutional or other residential program for persons with developmental disabilities that (A) does not provide treatment, services, and habilitation which is appropriate to the needs of such persons . . . ." 42 U.S.C. § 6010(3)(A). It is hard to see how Congress could have been any more precise in revealing its intention to confer a right to treatment or habilitation.

Another section of the Act reaffirms the right to treatment. Section 6063 provides that any state which wishes to take advantage of the subchapter must submit a plan to the Secretary of HEW. That plan must contain a program designed, Inter alia, "to improve the quality of care and the state of surroundings of persons for whom institutional care is appropriate. . . ." 42 U.S.C. § 6063(b)(20)(B). While this section was deleted in the 1978 revision of the Act, it did apply until that date and retains legal significance for purposes of this litigation. Moreover, the revised statute contains a section requiring states to conform their plans to the dictates of the Bill of Rights provision, section 6010. See 42 U.S.C. § 6063(b)(5)(C) (Supp.1979).

The legislative history of Pub.L.No. 94-103 also supports the recognition of a statutory right to treatment for the mentally retarded. Congressman Carter, in introducing H.R. 4005 (later enacted as Pub.L.No. 94-103) in the House, stated that among its many purposes "(t)his legislation . . . directs that States should devote attention to improving the facilities and surroundings of institutions where people have been appropriately institutionalized." 121 Cong.Rec. 9976 (1975). The bill was introduced in the Senate as S. 462. 121 Cong. Rec. 16,470. Senator Stafford, discussing the purpose of Title II the Bill of Rights stated "Title II was added to the bill to assist in the protection of the rights guaranteed under our Constitution for those individuals that will require institutionalization. . . ." Id. at 16,516. Senator Javits added that "Congress should reaffirm its belief in equal rights for all citizens including the developmentally disabled. Congress should provide the leadership to change the tragic warehousing of human beings that has been the product of insensitive Federal support of facilities providing inhumane care and treatment of the mentally retarded." Id. at 16,519. Senator Cranston observed that while the bill endorsed deinstitutionalization, it "recognize(d) that the need for some long-term residential programs will remain. The bill specifically provides that where institutional programs are appropriate, adequate support should be planned for them so that necessary treatment and habilitation programs can be given residential patients to develop their full potential." Id. at 16,520. Senator Schweiker described one of the requirements of the proposed legislative Bill of Rights as "humane care, treatment, rehabilitation, and protection in residential facilities. . . ." Id. at 16,522.

The bill went to conference, in part because the Senate bill contained an expanded version of Title II specifying in great detail the standards for appropriate care with which the House did not concur. The Conference Committee compromised on details, and produced the more general, yet equally forceful Bill of Rights provisions, now codified in section 6010. A right to treatment was, as we noted above, specifically proclaimed. Thus, the Conference Report for the bill states that "the developmentally disabled have a right to appropriate treatment, services and habilitation . . . ." H.R.Conf.Rep. No. 94-473, 94th Cong., 1st Sess. 42 (1975), Reprinted in (1975) U.S.Code Cong. & Ad. News, 943, 961. In addition, Senators Javits, Schweiker and Williams, in approving the Conference Report, all called attention to the critical role of the right to treatment. 121 Cong.Rec. 29,820-21. We therefore hold that the Developmentally Disabled Assistance and Bill of Rights Act grants to the mentally retarded a right to treatment and habilitation.

We further hold that retarded persons have a private right of action under the Act. To date, only one other court has considered whether private litigants may enforce the rights granted under the Act. In Naughton v. Bevilacqua, 458 F. Supp. 610 (D.R.I.1978), Judge Pettine concluded that there was a private right of action. Plaintiffs in Naughton were a mentally retarded, schizophrenic patient and his father. They brought suit for injunctive relief and damages, alleging that the child had sustained injuries as a result of drugs administered to him in a Rhode Island institution. Among their several causes of action, plaintiffs asserted a claim under 42 U.S.C. §§ 6001-6081.

The court, reviewing the statute, concluded that it intended to convey a private right of action. Judge Pettine offered several arguments supporting his view of Congressional intent. First, he noted, section 6010, the Bill of Rights provision, has two sections: the first "declares the right to appropriate treatment"; the second "provides that federal funds are available only to programs that meet certain basic minimum standards and offer "appropriate' treatment." 458 F. Supp. at 616. "This dichotomy in sec. 6010," the court reasoned, "suggests that denial of funds is not the only mechanism to enforce the declared statutory rights." Id. In addition, the court noted that the Conference Report expressly states that " "this right the Conference Report expressly states that " "this right (to receive appropriate treatment) should be protected and assured by the Congress and the courts.' " Id. (quoting (1975) U.S.Code Cong. & Ad. News 961). Furthermore, participating states are required under the Act "to establish an independent agency "to protect and advocate the rights of persons with developmental disabilities, and . . . to pursue Legal, administrative, and other appropriate remedies to insure the protection of the rights of such persons who are receiving treatment, services or habilitation within the State . . . .' " Id. (quoting 42 U.S.C. § 6012(a)). As the court observed, "(t)he enforcement of individual rights . . . cannot be achieved solely by withholding federal funds; not only is the Secretary incapable of investigating every violation, but the Secretary may quite properly be unwilling to withhold funds for a single violation. Thus, the advocacy agency and a private right of action are crucial to protect the rights secured by the Act." Id. Finding that the developmentally disabled were the "especial beneficiaries " of the Act, that private suits would effectuate the policies of the statute, and that they would not infringe traditional state prerogatives, the Naughton court concluded that there was a private right of action under 42 U.S.C. §§ 6001-6081.

We find the Naughton Court's analysis persuasive. A private right of action eminently satisfies the standards articulated in Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975).*fn16 As developmentally disabled persons, the mentally retarded undoubtedly qualify as "especial beneficiaries" of the section 6010 grant of a right to treatment. In addition, the Conference Report recognized the desirability of enforcement of the Act, in part, by the courts. Moreover, a private right of action would surely further the purposes of the Act. By permitting private suits, courts would facilitate improvements in the delivery of services to the disabled without forcing the federal government to resort to the drastic remedy of a cut-off of funds.

It may be argued, however, that while the first three Cort v. Ash Criteria are satisfied, the implication of a private right of action would infringe basic state prerogatives, and transgress the bounds of federal law making competence, inasmuch as mental health policies have always been within the states' traditional police power authority. We are unpersuaded by that argument. While providing for the health and well-being of the citizenry is surely a legitimate state function, Congress' recognition of a right to treatment in section 6010 is not a simple displacement of that admittedly basic state concern.

In Ingraham v. Wright, 430 U.S. 651, 673, 97 S. Ct. 1401, 1413, 51 L. Ed. 2d 711 (1977), the Supreme Court said that among the liberties protected by the fourteenth amendment is "a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security." Section 5 of the fourteenth amendment vests Congress with authority "to enforce, by appropriate legislation, the provisions of this article." In Section 6010, Congress has legislated with respect to the state intrusions on personal security of the developmentally disabled.*fn17 Thus, in providing specific guarantees for a particular affected group, Congress' action is consistent with the Supreme Court's recognition of the broad underlying right protected against impairment by the state through the fourteenth amendment. Section 6010 does not go beyond what has been judicially declared to be the limits of the fourteenth amendment but clearly is within those bounds.*fn18 Since the rights described in section 6010 are specified pursuant to section 5 of the fourteenth amendment, implication of a private cause of action from that statute rests upon the same constitutional footing. Thus we are not dealing with the implication of a private cause of action from a congressional enactment justified only by the spending power of the federal government, and we need not address the question whether such a statute could ever provide the predicate for private substantive rights. As the Supreme Court acknowledged in another context, Congress may, under section 5, establish certain restrictions that might otherwise implicate the prerogatives of the states.*fn19

We also note that any suggestion that private enforcement of the Act usurps basic state concerns is vitiated by the structure of the Act itself. For example, section 6063(b)(20)(B), which until 1978 required states to produce a plan providing for improved quality of care, was applicable to all those states "desiring to take advantage of this subchapter." 42 U.S.C. § 6063(a). Congress thus invoked its spending clause powers to condition the grant of federal monies on the provision by the states of adequate care. Pennsylvania has accepted federal funds provided pursuant to the Act.*fn20 Whatever argument it might otherwise have had were it faced with an unexpected set of federal obligations is refuted by its obvious willingness to accept the benefits of the Act.*fn21

Finally, we have recently decided that a private right of action exists for the enforcement of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976) another statute designed to improve the lives of handicapped persons. National Association for the Advancement of Colored People v. The Medical Center, Inc., 599 F.2d 1247, 1258-59 (3d Cir. 1979).*fn22 We did not feel, in that case, that the traditional police power duties of the states foreclosed a private right of action. In view of these considerations, then, we hold that appellees have standing to sue to enforce the Bill of Rights provisions of the Act.

One court, we note, has held that claims under the Act must be brought in state court. United States v. Solomon, 563 F.2d at 1125. The Solomon court acknowledged that the Conference Report on the Act stated that the right to treatment "should be protected and assured by the Congress and the courts." 563 F.2d at 1124. It held, however, that this language "manifestly refers to a state judicial forum and not to a federal judicial forum where the United States customarily sues." Id. at 1125.

With deference to the Fourth Circuit, we see nothing manifest in the Conference Report supporting that court's interpretation. If anything, the legislative history reflects a Congressional belief that States were not spending funds for the disabled effectively. The Developmentally Disabled Assistance and Bill of Rights Act sought to change the traditional spending habits of the states. It is most unlikely that Congress intended those changes to be enforceable only in state courts.*fn23 We would find it quite anomalous in the absence of a clear congressional expression to hold that a federal statute created a cause of action arising under federal law, but enforceable only in the state courts and not under 28 U.S.C. § 1331 (1976).

Accordingly, we hold that appellees have a federal statutory right to habilitation, that they may sue to enforce that right, and that such suit is properly lodged in federal court.

B. State Law

As an alternative ground for a right to adequate habilitation, appellees point to sections 101-704 of Pennsylvania's Mental Health and Mental Retardation Act of 1966 (hereinafter MH/MR Act of 1966), Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969). The trial court accepted this contention, relying principally upon section 201 of the Act. That section, which establishes the responsibilities of the Department of Public Welfare, provides in pertinent part:

The department shall have power, and its duty shall be:

(1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them . . . .

Pa.Stat.Ann. tit. 50, § 4201. The court held that this section grants retarded persons an affirmative right to minimally adequate habilitation. 446 F. Supp. at 1322. Moreover, it noted, the County defendants share in this statutory duty to supply adequate treatment. Id. at 1322-23.

Section 201 refers to the state's "duty" to "assure" the "availability . . . of adequate mental health and mental retardation services for all persons who need them. . . ." Pa.Stat.Ann. tit. 50, § 4201(1). That language is broad and determined: the obligation to provide services to the mentally handicapped on the basis of need. Had the Commonwealth intended to offer only confinement without more, it would hardly have spoken in terms of "adequate . . . services." Id.

Our reading of the statutory language is amply supported by the legislative history of the MH/MR Act of 1966. Speaking on behalf of the Act in the Pennsylvania Senate, Senator Pechan elaborated its fundamental habilitative purposes.

The object of this legislation is to make it possible for every mentally disabled person to receive the kind of treatment he needs, when and where he needs it. It will make those services available to every citizen in every community which are now available only to a lucky few, in the more progressive communities. It will open more beds in the local general hospitals. It will make available the services of psychiatrists and psychologists, of psychiatric nurses and social workers, of specially trained occupational therapists, of speech and hearing therapists, of activities directors and of child care workers. It will supplement the benefits of therapy with daytime and evening programs of activity which will call back to reality the erring mind, which will re-create and strengthen the ties which bind one human being to another and make us comfortable in each others' company. It will provide productive activity for those who can work only in a sheltered situation, and for those who are able, it will prepare them to go back to the customary world of business and industry, or to go forth into it for the first time, as the case may be. For those in acute distress, service will be available twenty-four hours a day, and the violent will find protective care instead of the harsh custody of jail.

1966 Pa.Legis.J., 3d Spec.Sess. No. 33, 76 (Sept. 27, 1966). The Act, Senator Pechan declared, "will (make) it . . . easy for a mentally disabled person to find the treatment he needs. . . ." Id. Senator Sesler concurred, Id. at 77, and added:

When you realize that practically one out of ten of every Pennsylvanian has some problem in mental health, you will realize how vast the scope of this problem is. However, I think, we now have sketched in broad, general terms the framework of a program which can provide a continuum of services out-patient, in-patient, diagnostic treatment, evaluation and research, a procedure of commitment under almost all conceivable types of circumstances.

Id.

Those few courts which have previously considered the MH/MR Act of 1966 have also gleaned from it a right to treatment for the mentally handicapped. In In re Joyce Z., 123 Pitt.L.J. 181 (1975), the Common Pleas Court for Allegheny County held that a profoundly retarded child had, under section 201 of the Act, a right to treatment. 123 Pitt.L.J. at 187. The court quoted the relevant language of section 201 and declared, "These are brave words. We mean to see that the State, acting through the Department of Public Welfare, abides by them." Id. In view of the statutory right to treatment, the court held that Pennsylvania was obliged to provide casework services to the child, her parents, and her foster parents, together with financial assistance to meet the child's physical needs. Id. at 190. Joyce Z establishes, as well, that the statutory right to treatment is under Pennsylvania law judicially enforceable in a private action.

To like effect was Chief Judge Lord's decision in Eubanks v. Clarke, 434 F. Supp. 1022 (E.D.Pa.1977). There, relying in part on section 201 of the MH/MR Act of 1966, Chief Judge Lord held that the plaintiff, an involuntarily committed schizophrenic, had a "state law right to treatment or release." 434 F. Supp. at 1027. Similarly, in Hoolick v. Retreat State Hospital, 24 Pa.Cmwlth. 218, 354 A.2d 609 (1976), Aff'd 476 Pa. 317, 382 A.2d 739 (1978), a Pennsylvania court described the MH/MR Act of 1966 as envisioning a "comprehensive program for the care, treatment and rehabilitation of mentally disabled and mentally retarded persons . . ." 24 Pa.Cmwlth. at 220, 354 A.2d at 611.*fn24

Despite the apparent meaning of section 201, and the plain intentions of the state legislature,*fn25 several of the appellants object to the trial court's reliance on the MH/MR Act of 1966. The Commonwealth and the Counties contend that section 509(5) of the Act belies any duty on their part to provide treatment. Section 509(5) empowers the Department of Public Welfare to distribute grant monies to the Counties where sufficient funds have not been appropriated by the state.

In the event that sufficient funds to pay the full amount of the grants to which the counties may be entitled under the provisions of this section have not been appropriated, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties' financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available.

Pa.Stat.Ann. tit. 50, § 4509(5). The Commonwealth contends that since services to the retarded can be reduced in light of insufficient funding, there cannot be "an unconditional right to those services." Brief for Commonwealth Appellants at 31. The Counties, on the other hand, rely on this section in making their argument that any duty to provide treatment rests solely on the state, and not them. Brief for Suburban County Appellants at 24-25.

We reject these contentions. Section 509(5) hardly relieves the Commonwealth of its statutory duties under section 201. Section 509(5) delineates nothing more than the method by which insufficient funds are to be distributed. It states the apparent truism that where the state has failed to provide Counties with full funding, the Counties need not supply a constant level of services. This may, to be sure, imply that the right to treatment is not "unconditional." But no right is without some limitations. All that section 201 promises, and all that we hold, is that to the extent Pennsylvania maintains facilities for the mentally handicapped, those facilities must provide adequate treatment or habilitation.

Nor do we agree with the Counties that section 509(5) absolves them of any duty to provide treatment. The MH/MR Act of 1966 contemplated a joint venture between the Commonwealth and its subdivisions, the Counties, in the provision of services to the mentally handicapped. As Senator Sesler stated, in supporting the Act:

We want to make it clear, for the record, that we are giving this responsibility to our County Governments, and we are giving them a great deal of money. One of the amendments just adopted today has provided that the State will have to reimburse the counties for ninety per cent of the cost of the program. We are giving them a certain degree of freedom. However, we must remind them that the counties had a program of control for taking care of the mentally ill, prior to 1937, when they failed to do an adequate job. It may be that they lacked the finances at that time, and that they lacked the public's support. However, today, I think that the public's support is there. I trust that the Commonwealth will be there with the adequate finances.

I hope that we can focus attention on the local level, because if there was ever an example of a cooperative effort, which involves so many citizens and private groups as this legislation, I do not know what it is. We are going to give it control down on the local level; we are giving it a flexible degree of control. So, I am saying today at least, I, speaking for myself that we are charging County Governments with this tremendous responsibility. We hope that they will take these words to heart . . . .

1966 P.Legis.J., 3d Spec.Sess. No. 33, 77 (Sept. 27, 1966). Section 509(5) in no way undercuts the intended partnership of the Counties and the Commonwealth.

The Counties contend, however, that while they may have Some responsibilities under the Act to provide habilitation to the retarded, those responsibilities are exhaustively specified in section 301(d), and no other duties such as habilitation at institutions or community living arrangements can be imposed upon them.*fn26 We reject this suggestion. It is true that section 301(d) sets forth specific duties for the Counties. Nevertheless, the Counties' mandate under the Act is much broader. Section 301(a), for example, states, in pertinent part:

The local authorities of each county separately or in concert with another county or counties, as the secretary may approve, shall establish a county mental health and mental retardation program for the prevention of mental disability, and for the diagnosis, care, treatment, rehabilitation and detention of the mentally disabled and shall have power to make appropriations for such purposes.

Pa.Stat.Ann. tit. 50, § 4301(a). This section directs that local authorities establish a "mental health and mental retardation program for the . . . . treatment, rehabilitation and detention of the mentally disabled. . . ." Id. Thus, although section 4301(d) specifies certain facilities for which the Counties will be principally responsible, the Act as a whole contemplates County participation in all facets of the state's provision of services. Indeed, in the case of Pennhurst itself, the Counties have joined inextricably in the state's provision or lack of provision of treatment. As we noted in Part III above, the Counties arrange for admission to Pennhurst through their operation of Base Service Units. Often, the district court found, the County Base Service Units fail to investigate alternatives to institutional placements, thereby consigning the mentally retarded to inadequate living conditions. 446 F. Supp. at 1313. Having thus participated for so long in the institutional practices at Pennhurst, the Counties cannot at this late date escape by pointing the finger of responsibility elsewhere the statutory duty to provide adequate habilitation.

Accordingly, we hold that the appellees have a state statutory right to habilitation, that they may sue to enforce that right, and that a federal court has pendent jurisdiction, which was properly exercised in this instance, to enforce that right.

VI. THE RIGHT TO THE LEAST RESTRICTIVE ENVIRONMENT

Having concluded that appellees have a right to treatment, we turn to a consideration of the setting in which that treatment must be provided. Plaintiffs contend that the state is obligated to provide habilitation in an environment that infringes least on the personal liberties of the mentally retarded. The trial court agreed, predicating the decision exclusively upon constitutional grounds. The court reasoned that because "(a)ll admissions to state facilities . . . entail an infringement on fundamental rights and freedoms . . .(,) due process demands that if a state undertakes the habilitation of a retarded person, it must do so in the least restrictive setting consistent with that individual's habilitative needs." 446 F. Supp. at 1319. While there is substantial caselaw support for the trial court's constitutional position,*fn27 our resolution of the present controversy on statutory grounds obviates the necessity for consideration of this constitutional issue. Two federal statutes were relied upon in the district court as ...


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