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July 17, 1978

INSTITUTIONALIZED JUVENILES in Pennsylvania institutions for the mentally ill and the mentally retarded et al.
SECRETARY OF PUBLIC WELFARE, Commonwealth of Pennsylvania, et al.

The opinion of the court was delivered by: HUYETT

HUYETT, District Judge.

 Defendants have moved pursuant to Fed.R.Civ.P. 62(c) to stay pending appeal this Court's May 25, 1978 Judgment and Order. In that Order, we declared unconstitutional sections 402(a)(2), 402(c) and 403(a)(2) of the Pennsylvania Mental Health and Mental Retardation Act of 1966 (1966 Act), and sections 201, 206(b), and, to the extent it applied to juveniles under the age of 14, section 205 of the Mental Health Procedures Act of 1976 (1976 Act). We also enjoined the operation of these statutory provisions and ordered defendant Secretary of Public Welfare to initiate procedures to assure that all juveniles unlawfully committed to mental health or mental retardation facilities in Pennsylvania under the provisions declared unconstitutional are discharged, released, or recommitted within 180 days of the date of the Order. The Order provided, however, that an extension of the 180-day period could be granted upon a showing of good cause.

 A hearing was held before me on July 5, 1978 to permit the defendants to present additional testimony to substantiate their contention that a stay should be granted, and to present argument on their behalf. The findings made herein are based upon the entire record of this case, including the record of the initial trial and of the proceedings following remand, in addition to the record made at the July 5th hearing.

 In determining whether or not a stay under Rule 62(c) is warranted, we must consider four factors: a. the likelihood of the movant's success on appeal; b. the likelihood of irreparable injury to the movant if the stay is denied; c. the likelihood of similar injury to plaintiffs if the stay is granted, and d. the public interest. Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5th Cir. 1968); Resident Advisory Board v. Rizzo, 429 F. Supp. 222 (E.D.Pa.1977). In considering each of the factors, we have looked to the record before us to see what facts are revealed therein and whether those facts support or undermine the defendants' position. *fn1" After considering the record before us, we believe that the defendants have not carried their burden of showing that, based upon the above stated factors, a stay should be granted. Therefore, we deny the defendants' motion for a stay.

 Likelihood of Success on Appeal

 Defendants have not demonstrated a likelihood of success on appeal. The two prior opinions of this court in Bartley v. Kremens, 402 F. Supp. 1039 (E.D.Pa.1975) and Institutionalized Juveniles v. Secretary of Public Welfare, Supra at 30 (D.C.1978) provide an analysis of the statutory provisions and state clearly the substantive basis for our belief that these provisions are unconstitutional. We stand by these opinions.

 We are aware that the Supreme Court granted a stay pending appeal of the Order issued on November 17, 1975 which implemented the Bartley decision. 423 U.S. 1028, 96 S. Ct. 558, 46 L. Ed. 2d 402. Defendants contend that the stay represented the Supreme Court's consideration of the applicable standards for granting of a stay and judgment based upon those standards that a stay was necessary. Because our May 25, 1978 opinion in Institutionalized Juveniles Is similar to our Bartley decision, the defendants contend that we should be bound by the prior decision of the Supreme Court and grant a stay pending appeal. Unfortunately, since no opinion accompanied the Supreme Court's grant of the stay, we have no way of knowing what the reasoning of the Court may have been. However, our May 25, 1978 Order is different from our earlier Order in several crucial respects. *fn2" These differences, we believe, are substantial enough to make the Supreme Court's decision not to grant a stay of our prior Order inapposite.

 In sum, we do not believe that the defendants have demonstrated a likelihood of success on appeal.

 Irreparable Injury to Movants

 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 ...

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