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PENNSYLVANIA EX REL. RAFFERTY v. PHILADELPHIA PSYC

March 27, 1973

COMMONWEALTH OF PENNSYLVANIA ex rel. Linda RAFFERTY et al.
v.
PHILADELPHIA PSYCHIATRIC CENTER et al.


Joseph S. Lord, III, Chief Judge.


The opinion of the court was delivered by: LORD, III

JOSEPH S. LORD, III, Chief Judge.

 This suit, brought pursuant to 42 U.S.C. §§ 1981 and 1983 and 28 U.S.C. §§ 1343, 2201 and 2202, alleges deprivations of constitutional rights in connection with the termination of plaintiff Linda Rafferty's employment at the Community Mental Health Center of the Philadelphia Psychiatric Center. In their complaint filed December 29, 1972, plaintiffs ask for damages and injunctive relief, including Mrs. Rafferty's reinstatement. On January 16, 1973, plaintiffs filed motions for a preliminary injunction and for the immediate reinstatement of Mrs. Rafferty. A hearing was set for February 5, 1973, at which time the parties presented testimony as on final hearing. *fn1"

 I.

 Philadelphia Psychiatric Center ("PPC"), which is funded by various government grants and private gifts, is a comprehensive mental health facility with a number of research and clinical programs. One of its programs is the operation of a Community Mental Health Center ("CMHC") for a catchment area of approximately 200,000 people. Of CMHC's $2 million annual budget, something over $1.5 million comes from federal funds and from state funds administered by the City and County of Philadelphia. The salaries of CMHC employees are paid entirely out of public funds. *fn2" Although CMHC has its own budget, staff and Community Advisory Board, it is very much a creature of PPC. Its employees are hired by PPC for work at CMHC; the source of ultimate authority for its operations is a Joint Executive Committee composed of six members of CMHC's Community Advisory Board and six members of PPC's Board of Directors, and its financial affairs are overseen by defendant Einbinder, the Executive Director of PPC.

 For five years, until August 1972, Linda Rafferty was a psychiatric nurse on the staff of Haverford State Hospital in Haverford, Pennsylvania. She became increasingly disturbed by conditions at Haverford which, in her opinion, violated accepted standards of sound medical and psychiatric practice. The conditions Mrs. Rafferty claims to have observed at Haverford include the staff's failure to protect patients from homosexual abuse by other patients and from sexual exploitation by outside workmen; improper non-psychiatric medical care; allowing patients to keep medication in their rooms; locking up fire extinguishers; leaving blank prescription forms, signed in advance by physicians, in unlocked drawers for nurses to fill out on weekends; and chronic absenteeism on the part of the hospital's medical staff. Mrs. Rafferty repeatedly complained to her superiors, but finally concluded that her protests were falling on deaf ears and resigned from Haverford on August 14, 1972.

 Shortly thereafter she was hired to be Supervisor of Nurses at the in-patient unit of CMHC, at a salary of $10,500 per year. She began working there on August 28. Sometime before that date she had given an interview to a reporter for the Philadelphia Daily News in which she sharply criticized the treatment given to patients at Haverford State Hospital, focusing on the conditions we have just enumerated. On the afternoon of September 5, the Daily News published an article about Haverford based on the Rafferty interview. *fn3"

 The next morning Mrs. Smith and Miss Oberlander, both nurses at CMHC, showed the article to Mr. Paul Lehman, who at the time was Director of Nurses at PPC, *fn4" and told him that they and other staff members were up-set over the publication of the article. Mr. Lehman then discussed the situation with his superiors, including Mr. Einbinder and Dr. Murphy, and told them about his conversation with Mrs. Smith and Miss Oberlander. Mr. Einbinder's immediate reaction was that Mrs. Rafferty had to be fired. Dr. Murphy, who until that time had never met Mrs. Rafferty and in fact was unaware that she had been hired, decided on the basis of a reading of the article and Mr. Lehman's reports of staff anxiety that Mrs. Rafferty would be discharged immediately.

 Mr. Lehman returned to his office and summoned Mrs. Rafferty to tell her of Dr. Murphy's decision. Mrs. Rafferty asked Mr. Lehman if the decision could be reconsidered. When Mr. Lehman replied that the decision was final and that there was no possibility of reconsideration, Mrs. Rafferty left the Center, never again to return.

 Since her dismissal, Mrs. Rafferty has been unable to obtain another job as a supervisor of psychiatric nurses or as a psychiatric nurse. For two and one-half months from October to December, 1972, she worked as a geriatric nurse in a nursing home at a salary of $9,600 per year. She has been unemployed for the rest of the period since her dismissal. Her actual wage loss to date is $3,687.50. She will continue to suffer losses of $213.75 per week until she is reinstated.

 At the time of Mrs. Rafferty's discharge PPC had no formal grievance procedures. *fn5" The Joint Executive Committee, with Dr. Murphy present ex officio, met to discuss (perhaps among other topics of interest) the firing of Mrs. Rafferty. *fn6" At this meeting the Committee drew up formal grievance procedures which were published and apparently distributed to the employees the following day. The Committee also directed Dr. Murphy to contact Mrs. Rafferty and explain the newly adopted procedures to her. This he never did. The reason for his silence, according to his testimony, was that in spite of the Committee's explicit directive, he simply assumed that once a matter had reached the level of the Joint Executive Committee, it was out of his hands.

 Nothing was done about Mrs. Rafferty until the Joint Executive Committee met again in early October. The Committee, apparently abandoning its faith in Dr. Murphy's skills as a messenger, instructed Mr. Frederick N. Sass, Chairman of the Personnel Committee of CMHC's Community Advisory Board, to write to Mrs. Rafferty about the remedies that had become available to her. He did so on October 17. In his letter he informed her that "avenues of appeal" were available to her and briefly outlined the new grievance mechanism. He instructed Mrs. Rafferty to notify him in writing within 15 days of her intention to avail herself of the appeal procedure and said that if he did not hear from her within 15 days, he would conclude that she did not "wish to pursue this matter any further." Mr. Sass gave his home and office telephone numbers and asked that Mrs. Rafferty call him if she had any questions.

 II.

 The Commonwealth of Pennsylvania has sued the defendants on behalf of itself, including officials and employees in state-funded programs; citizens and residents of the Commonwealth who receive treatment for mental illness in facilities supported by the Commonwealth; and Linda Rafferty. It claims an interest in this matter because of its "affirmative obligation to protect free speech and assure the adequate flow of ideas and information including the flow of information critical of state or state supported facilities for the mentally ill," as well as a statutory goal of providing adequate mental health services for all who need them. (Complaint, P3).

 We find the Commonwealth's position unpersuasive. It is true that the doctrine of parens patriae has been broadened considerably since the days when it comprehended only the state's guardianship, as sovereign, of persons under legal disabilities to act for themselves. A state may now sue as parens patriae and recover damages for injuries to its "quasi-sovereign" interests, including harm to the health and welfare of its inhabitants. Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S. Ct. 885, 31 L. Ed. 2d 184 (1972); State of West Virginia v. Chas. Pfizer and Co., 440 F.2d 1079 (C.A. 2, 1971); Note, State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 Colum. J.L. & Soc. Prob. 411 (1970).

 However, although to have standing as parens patriae a state need not be affected by the acts of the defendants in the same way that an individual plaintiff must be, it nevertheless must be able to show (i) that a substantial number of the state's inhabitants have been injured, and (ii) that the state's injury is somehow separate and distinct from the injury to the individual plaintiff. Note, 18 Vill. L. Rev. 79 (1972). We think the Commonwealth has shown neither here.

 Any chilling of any individual's freedom of speech is bound to result in pernicious side effects, including an increased timidity on the part of other persons in similar positions and a decrease in the flow of certain kinds of information or opinion. This is one of the many reasons why any deprivation of rights guaranteed by the First Amendment must be carefully scrutinized and quickly remedied. However, merely because more than one Pennsylvanian may have been indirectly affected by Mrs. Rafferty's firing does not mean that Mrs. Rafferty's injury is an injury to all. Deprivations of an individual's First Amendment rights, whatever the secondary consequences, normally constitute an injury only to the individual. Neither existing law nor sound policy justifies viewing the deprivation of one person's freedom of expression as a fortiori a deprivation of the constitutional rights of the citizenry at large.

 There was testimony at the hearing to the effect that the Department of Welfare, which is charged with the operation of the Commonwealth's mental health programs, is affected by newspaper articles and publicity concerning state-funded programs and facilities. *fn7" We assume this to be true, just as we may assume that the Department's decision-making process is also influenced by a host of other factors. However, we do not accept the Commonwealth's argument that its desire for a free flow of information critical of state-operated mental health programs is a quasi-sovereign interest which may properly be asserted in a parens patriae action.

 In support of its contention, the Commonwealth refers us to Commonwealth of Pennsylvania v. Brown, 260 F. Supp. 323 (E.D. Pa. 1966) and Gibbs v. Titleman, (Civil No. 72-2165, E.D. Pa. Jan. 9, 1973). In Brown we determined, inter alia, that the Commonwealth had standing to sue as parens patriae because the education of its citizens is a state function of paramount importance, and therefore "a state has a sufficient interest in the elimination of discrimination for which it would be responsible to enable it to maintain an action in federal court." 260 F. Supp. at 338. In Gibbs, the Commonwealth was granted leave to intervene in an action attacking the constitutionality of the Pennsylvania statutory scheme of non-consensual repossession of motor vehicles. The Commonwealth's interest in each of these cases was direct, immediate ...


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