Dr. John Shovlin, the Superintendent at Farview, whom we find well qualified as an expert, testified however that during the past year, i.e., 1969-70, the Farview staff had been augmented by eight college-level ward counselors through a federal grant running for two years. He pointed out there was a full time chaplain with pastoral training and three part time chaplains.
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,
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.
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.
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
but had not been sentenced under it. Later he was sentenced under the Colorado Sex Offenders Act
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
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 the Court of Appeals of Kentucky in Denton v. Commonwealth, 383 S.W. 2d 681 (Ky. 1964).
The issue as to whether Section 404 has been unconstitutionally applied to the plaintiffs need not detain us long. An examination of the transcript of the hearing of March 13, 1970 shows that the process of "recommitment" concededly was by way of a "paper notation", without any formal hearing or process whatsoever. Counsel for the defendant stated very candidly to the court in respect to the processing of individuals for "recommitment" under Section 404 the following:
"Mr. Work: When I used the word 'paper notation' Your Honor, I mean that the procedure as used, and as quite appropriately pointed out by plaintiffs in their brief and in their complaint, was a mere certification usually by two staff physicians of the facility.
"Judge Biggs: Well, was this a report by the physician or was it an oral report simply noted, or of that can't you inform us?