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March 30, 1971

Donald DIXON et al., Plaintiffs,

The opinion of the court was delivered by: BIGGS

As appears from our opinion in Dixon v. Attorney General of Commonwealth of Pennsylvania, 313 F. Supp. 653 (M.D. Pa. 1970), the proceeding at bar is a class suit brought by the seven named plaintiffs, individually and on behalf of all inhabitants of Farview State Hospital (Farview) situated like unto them. The complaint, *fn1" filed July 25, 1969, alleges the unconstitutionality of the confinement at Farview of the named plaintiffs and of all persons committed to and confined at Farview on July 25, 1969 pursuant to Section 404 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S., Section 4404, after the original authority for their confinement predicated on criminal convictions or charges had terminated, within the provenance of Rule 23, Fed. R. Civ. Proc., 28 U.S.C. *fn2" While the complaint alleges there are subclasses of the class of persons just designated, *fn3" it is not necessary to designate or describe them here for the purposes of Rule 23.

The named plaintiffs and those situated like unto them, constituting the single class as described, were committed to Farview pursuant to Section 404 in the following manner: (a) The applications for these recommitments were not made by a relative or guardian or person standing in loco parentis to these people. (b) The applicant for recommitment was the Director of Social Services of Farview or another member of the Farview staff. (c) The applications were supported by certificates of two physicians who were members of the staff of Farview. (d) The applications were submitted to the Superintendent of Farview who "received" the persons named in the application. (e) The persons thus committed were not consulted concerning their wishes about continued confinement or given notice of the filing of the applications by the Director of Social Services or others on the staff at Farview. (f) No relative, guardian or friend was consulted by the Director of Social Services or others on the staff at Farview concerning the continued confinement of these persons. (g) The persons thus committed were not represented by counsel in the proceedings leading to their recommitments. (h) These persons had no independent psychiatric diagnosis or psychological evaluation in connection with either the decision of the Director of Social Services to apply for commitment or the certifications by physicians that they were mentally disabled and in need of care. (i) No court made a finding that these recommitted persons required inpatient care. (j) There is no period fixed by the statute after which persons committed under Section 404 must be released.

 At the time the complaint was filed the medical staff at Farview consisted of the Superintendent, who is a psychiatrist, and five physicians, none of whom had had psychiatric experience before joining the Farview staff and none of whom have attained professional recognition as a psychiatrist. At the time the complaint was filed, the remainder of the Farview staff, housekeeping personnel excepted, consisted of two psychologists, two social workers with master's degrees, and two case workers, one of whom held a bachelor's degree, one recreational therapist, five registered nurses and twelve licensed practical nurses.

 At the time the answer was filed there were at Farview approximately four hundred psychiatric security aides who functioned primarily as guards, and the regimen for inmates of Farview consisted almost entirely of custodial care, the prescribing and administering of drugs, a modicum of recreation and, for a small number of inmates, assignment to jobs at Farview which were in substance housekeeping positions.

 We cannot avoid the conclusion that medical-psychiatric treatment of inmates at Farview was grossly inadequate not because of lack of willingness or competency of the Superintendent, Dr. John Shovlin, or of his staff, but because of the woeful inadequacy of the funds made available by the Commonwealth of Pennsylvania or its agencies to Farview for its maintenance and staffing. It is conceded that only three per cent of the inhabitants of Farview received any therapeutic-psychiatric treatment.

 Some of the evidence given at the hearing of July 22-23, 1970, concerned "Operation Baxstrom" in New York, which entailed the transfer of all inmates of the two maximum security mental hospitals in New York having backgrounds essentially similar to those of the plaintiffs in this case. Almost one thousand inmates of the two New York hospitals referred to were transferred in 1966 to various non-maximum security state mental hospitals in New York. The socalled " Baxstrom Operation " was undertaken because of the decision of the United States Supreme Court in Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966). *fn4" There was testimony by the plaintiffs' medical witnesses that the inmates who had been transferred in the Baxstrom Operation had been considered too dangerous for transfer by the staffs of the two maximum security hospitals where they had been confined. It was feared that many patients transferred in Operation Baxstrom would create problems for the non-maximum security mental hospitals to which they were transferred. These fears were not realized. Only seven of approximately one thousand inmates transferred in the Baxstrom Operation were returned to maximum security institutions approximately one year after the transfers had taken place. The remainder of the approximately one thousand inmates transferred in Operation Baxstrom were readily integrated into the populations of the hospitals to which they were transferred. As of July, 1970, more than one-third of the Baxstrom Operation patients had been discharged from the receiving hospitals. It would appear that the judgments of the staffs at Dannemora and Matteawan were incorrect and that many of the patients did not require confinement in a maximum security institution. The plaintiffs' psychiatric witnesses in the case at bar testified that it was their considered judgment that a similar successful result could be obtained with Farview patients if they were transferred from Farview to institutions of lesser maximum security or were in some instances allowed to work at jobs outside of any mental institution. One witness for the plaintiffs is now actually engaged in useful work outside any mental institution. He had been incarcerated at Farview because of a crime of a very serious nature.

 The consensus among the psychiatrists testifying for the plaintiffs, who were well qualified in the opinion of the court as experts, was to the effect that it is unnecessary to have special maximum security facilities for civil patients; that confinement in a maximum security institution is adverse to rehabilitation; and that, at worst, a comparatively small proportion of criminally insane persons should be committed to maximum security institutions such as Farview.

 Shortly after the commencement of the suit at bar the Administration at Farview began the transfer of patients to other institutions of lesser maximum security or placed some of the inmates at liberty in the community. On January 8, 1971, at the time of a post-trial hearing, *fn5" it was agreed that only fifteen persons of the class of the plaintiffs were then present at Farview, and that one of these insisted on staying at Farview and did not desire to be transferred to any other institution or to be set at large.

 Further facts must be stated in order that the record in this case may be clear. Motions by the plaintiffs for summary judgment and for interim relief were heard on March 13, 1970. As appears in 313 F. Supp. 653, these motions were denied without prejudice, the court stating there would be a final hearing on all issues, including the nature of relief in the event that the court found the commitments of the plaintiffs unconstitutional. Because substantial constitutional issues were involved the court appointed the Honorable Henry W. Sawyer, III, a distinguished member of the Bar of Pennsylvania as amicus curiae to aid the court. His services have been of great value to us. The court was also of the view that since most of the plaintiffs and the members of their class were of a disturbed mentality, there was an issue as to whether or not they could serve in a representative capacity for their class. It was decided that a guardian ad litem should be appointed. *fn6" The court appointed the Honorable Marvin Comisky, a distinguished Philadelphia lawyer, to serve in the capacity of guardian ad litem. His services also have been of great value to the court. Mr. Sawyer and Mr. Comisky have attended all hearings, formal or informal, since their appointment. Mr. Comisky stated to the court at the informal hearing on January 8, 1971 that he was of the opinion that guardian ad litem should be appointed for the plaintiffs in each of the three federal districts of Pennsylvania. The court agreed with the position of Mr. Comisky and accordingly revoked the order of February 9, 1970 which appointed him as guardian ad litem, so to speak, at large, and entered another order immediately thereafter designating Mr. Comisky as guardian ad litem for the plaintiffs in the Eastern District of Pennsylvania, the Honorable Joseph F. Gallagher, a member of the Bar of Pennsylvania, as guardian ad litem for plaintiffs in the Middle District of Pennsylvania, and the Honorable James C. McCreight, a member of the Bar of Pennsylvania, as guardian ad litem for plaintiffs in the Western District of Pennsylvania. The court desires to express its thanks to the two new guardians ad litem for their willingness to serve and to thank Mr. Comisky and Mr. Sawyer for their willingness to continue to aid the court in their respective capacities.

 The plaintiffs contend that Section 404 is unconstitutional on its face and also as applied to plaintiffs. We agree. As indicated earlier, see note 1, supra, the constitutional challenge to Section 404 is substantial. *fn7" Indeed, the defendant does not contend otherwise. There is no need for abstention here even under the strict standard of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971), for there are no relevant state proceedings pending.

 We entertain no doubt that Section 404 of the Pennsylvania Mental Health and Mental Retardation Act of 1966 (50 P.S., Section 4404) is unconstitutional on its face when viewed in the light of such decisions as Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967), and Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). In Specht, the petitioner-defendant had been convicted of "indecent liberties" under a Colorado statute that carried a maximum sentence of ten years *fn8" but had not been sentenced under it. Later he was sentenced under the Colorado Sex Offenders Act *fn9" to an indeterminate term of from one day to life without notice and full hearing. Mr. Justice Douglas, 386 U.S. 605, 609-610, 87 S. Ct. 1209 at 1212, 18 L. Ed. 2d 326, quoted with approval from Circuit Judge Freedman's lucid opinion in United States ex rel. Gerchman v. Maroney, 355 F.2d 302, 312 (3 Cir. 1966), analogizing the proceedings based on the two Colorado statutes to the proceedings in Gerchman on two comparable sections of the Pennsylvania Barr-Walker Act *fn10" dealing with sex offenses, as follows: "'It [the Pennsylvania Barr-Walker Act proceeding permitting incarceration from one day to life] is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing before the magnified sentence was imposed. At such a hearing the requirements of due process cannot be satisfied by partial or niggardly procedural protections. A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial, including the right to confront and cross-examine the witnesses against him.'"

 In the later case of Gault the defendant, fifteen years of age, was taken into custody because of lewd telephone calls. After hearings in a juvenile court, Gault, defined as a delinquent child under Ariz. Rev. Stat., Section 8-201-6(d), was committed to a state industrial school in Arizona without: "1. Notice of the charges; 2. Right to counsel; 3. Right to confrontation and cross-examination; 4. Privilege against self-incrimination; 5. Right to a transcript of the proceedings; and 6. Right to appellate review." 387 U.S. at 10, 87 S. Ct. at 1435. Juvenile delinquency proceedings were generally considered not to be in the nature of criminal prosecutions and in Gault, Arizona argued that due process protections did not apply for the proceedings were intended to help and rehabilitate a youthful offender and not to punish him; that the State was acting in substance parens patria. We are unimpressed by the parens patria argument and strong courts have not been persuaded by it. See Heryford v. Parker, 396 F.2d 393 (10 Cir. 1968), and Bolton v. Harris, 130 U.S. App. D.C. 1, 395 F.2d 642 (1968).

 We find Section 404 to be almost completely devoid of the due process of law required by the Fourteenth Amendment. That at least one high state tribunal takes the position that committing procedures and rules of commitment should be the same in a civil proceeding as in a criminal or quasi criminal one is demonstrated by the decision of ...

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