are currently receiving inpatient residential treatment in Pennsylvania: 132 allegedly mentally ill juveniles in state-operated institutions; 250 allegedly mentally ill juveniles in state-licensed institutions; 911 allegedly mentally retarded juveniles in state-operated institutions; and 2,692 allegedly mentally retarded juveniles in state-licensed institutions, 1,892 of whom have their care paid for by the state. The total number of plaintiff class members affected by Paragraph 19C of the May 25, 1978 Order, which provided for release or recommitment of class members already confined under the invalid statutory provisions, amounts to 3,985.
Defendants presented no evidence as to the number of juveniles for whom commitment might be sought in the future under the invalidated statute. Furthermore, since the defendants had no estimates of the number of juveniles who might be released from mental health facilities due to regular turnover, or those who might waive a hearing, there was no way to estimate the number of hearings which might be required in order to comply with Paragraph 19C of the Court's Order. It is reasonable to assume, however, that the total number of hearings would be considerably less than 3,985. In fact, the witness who testified on behalf of the Devereaux Foundation stated that he believed that the majority, if not all, of the 300 class members at Devereaux are content and, given the choice, would choose to remain there. In the case of many of these juveniles, a hearing might be waived.
The Commonwealth defendants were able to give no concrete estimate of the cost of complying with the Order or the manpower needs they might have because of the Order. Additionally, the Commonwealth had no firm estimates of the length of time it would take to comply with the Order, but believed that it would be possible at least to file petitions for recommitment of the children in state-operated institutions within the 180 days provided by the Court Order. Therefore, the only real harm alleged by the Commonwealth amounted to speculative estimates of inconvenience and cost.
The witness from the Devereaux Foundation, speaking on behalf of private institutions, stated his opinion that the diversion of funds and personnel caused by compliance with the Court's Order would irreparably harm the class members confined to his institution. In arriving at his opinion he assumed that hearings would be held for all children; this is clearly not the case. Supra at n. 48. We are able to give little credence to the opinion given by this witness because of his unfamiliarity with our Order and the requirements therein, his personal unfamiliarity with court commitment procedures (Devereaux presently has no court-committed juveniles), and the unfounded estimate he gave of the number of hearings that would actually take place. The remaining portion of the witness' testimony related to the harm and confusion which would be inflicted upon a child by a hearing. This testimony was duplicative of much of the testimony we heard at the original trial and upon remand. See Institutionalized Juveniles v. Secretary of Public Welfare, supra, at 45. We stand by our original conclusion on the merits of such an argument.
Finally, the defendants testified that they were not aware of any juvenile in need of care who was unable to obtain care because of the Court's Order. We conclude that the defendants are unable to make a showing of irreparable harm sufficient to warrant a stay of the Order.
Likelihood of Irreparable Injury to Plaintiffs if Stay is Granted
On the other hand, the potential injury of a stay to plaintiff class members is great. Such injury, which is discussed in detail in our earlier opinions in this case, flows from the dangers inherent in the confinement of plaintiffs without procedural due process: E. g., the danger of wrongful deprivation of liberty resulting in damage to self-image, loss of nonhandicapped role models, imposition of the stigma of institutionalization and so forth. Institutionalized Juveniles v. Secretary of Public Welfare, supra, at 38-40, 45; Bartley v. Kremens, 402 F. Supp. 1039, 1046-47 (1975). There is no way that the plaintiff class members could be compensated for the harm they would suffer should a stay be granted. Therefor we conclude that irreparable harm will befall plaintiff class if a stay is granted.
The Public Interest
Defendants presented no evidence concerning the benefit to the public interest if a stay were to be granted.
In sum, we conclude that the record before us cannot justify the grant of a stay in the instant case.