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August 25, 1981

Terri Lee HALDERMAN, et al., Plaintiffs,
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants, United States of America, Plaintiff-Intervenor, Pennsylvania Association For Retarded Citizens, et al., Plaintiffs-Intervenors

The opinion of the court was delivered by: BRODERICK


On July 24, 1981, this Court held a hearing on a Rule to Show Cause why the Commonwealth defendants should not be held in civil contempt in connection with the Commonwealth's failure to comply with this Court's Order of June 4, 1981 to pay $ 67,746.08 into the Registry of this Court on or before July 1, 1981 for the purpose of defraying the costs of the Special Master and the Hearing Master.

 In an opinion filed on December 23, 1977, this Court made findings of fact and conclusions of law in which it found that the defendants were violating the constitutional and statutory rights of the members of the plaintiff class by failing to provide them with minimally adequate habilitation in the least restrictive environment. By "adequate habilitation" we mean such education, training, and care as will better enable a retarded person to cope with life as effectively as his or her capacities will permit. As the trial record in this case reveals, all parties to this litigation admitted that the residents of Pennhurst were not receiving minimally adequate habilitation. The average stay of a resident at Pennhurst is 21 years, and the testimony showed that a majority of them had regressed in that their level of functioning had declined when compared to the skills which they possessed at the time of admittance to Pennhurst. On many occasions since the trial, all parties have agreed with the many experts who testified at the trial that normalization is now universally accepted as the most beneficial method of habilitating a retarded person. Normalization is the antithesis of institutionalization and is based upon the fact that the education, training and care of a retarded person should be accomplished in a community living arrangement. This Court found that Pennhurst as an institution is inappropriate and inadequate as a place to habilitate the retarded. At the trial, the Commonwealth represented that it intended to close Pennhurst in the early 1980's.

 On January 6, 1978, this Court held a further hearing for the purpose of determining the relief which should be granted. The parties were asked to attempt to reach an agreement on the appropriate relief. When the parties informed the Court that they could not agree on an order, the Court requested that they submit separate proposed orders. Finally, on March 17, 1978, the Court issued an Order directing the County and Commonwealth defendants to provide adequate community living arrangements and services for the residents of Pennhurst and the other retarded persons who were awaiting admission to Pennhurst. This Court further ordered that individual habilitation plans be developed for each member of the plaintiff class, that appropriate community monitoring mechanisms be designed and implemented, and that a Special Master be appointed to monitor defendants' planning for and the providing of community living arrangements and services in addition to monitoring living conditions at Pennhurst. The primary function of the Special Master in this case is to monitor the actions of the Commonwealth and County defendants in an effort to make certain that the retarded residents of Pennhurst receive such treatment, care, and education in an unsegregated environment as this Court found they had a right to under the United States Constitution. That a Master is needed to monitor compliance with the Court's Orders is apparent from the fact that the defendants, when not faced with contempt proceedings during a period of more than two years from the entry of this Court's Order of March 17, 1978 through the end of August 1980, transferred only 122 of approximately 1,200 residents of Pennhurst to community living arrangements.

 The defendants appealed and on December 13, 1979, the Court of Appeals issued an Order substantially affirming this Court's Order of March 17, 1978, and remanded the matter to this Court for further proceedings. As pointed out by our Circuit Court, the defendants contended that this Court's appointment of a Master was improper under Fed.R.Civ.P. 53(b). The Circuit Court, in rejecting this contention, stated:

It is abundantly clear that providing the 1,200 Pennhurst residents with a right to habilitation in the least restrictive environment will be a complex and lengthy process, probably involving monitoring, dispute resolution, and development of detailed enforcement mechanisms. Were we to preclude the trial court from resorting to a master, we would help make self-fulfilling the frequently made prophecy that courts are institutionally incapable of remedying wholesale violations of legally protected rights.
In this case, moreover, the court's resort to use of a master is particularly appropriate. After the decision on liability was announced, the appellants were afforded an opportunity to devise and present their own remedies for conditions at Pennhurst. They failed to do so. At that point, having received insufficient assistance from the officials directly involved, the court was faced with the choice of massive personal participation in devising a complex scheme for remedying the violations that were found, or of proceeding with the assistance of a master, whose functions would be supplementary to and supervisory over those of the Commonwealth and County defendants. We hold that the trial court chose correctly in ordering the appointment of a master.

 Halderman v. Pennhurst, 612 F.2d 84, 111-12 (3d Cir. 1979).

 The Third Circuit also upheld this Court's "determination that, for the retarded class members as a whole, Pennhurst cannot be an appropriate setting in which to provide habilitation." (612 F.2d at 114). The Circuit Court in remanding the matter to this Court also directed that an individual hearing should be held for any Pennhurst resident who contends that the living arrangements and services available at Pennhurst are more beneficial to his or her habilitation than those made available in the community.

 In light of the Third Circuit's opinion, this Court, on April 24, 1980, issued an Order incorporating and amending its prior Orders, including the March 17, 1978 Order. In its April 24, 1980 Order, this Court established an impartial hearing procedure and appointed a Hearing Master to provide an individual hearing for any resident of Pennhurst who claims that the living arrangements and services available at Pennhurst are more beneficial to habilitation than those made available in the community.

 This Court's Orders provide that the Special Master and the Hearing Master shall be compensated by the Commonwealth defendants. (Orders of March 17, 1978, July 27, 1978, April 24, 1980, and June 10, 1980). For the fiscal years 1978-79, 1979-80, and 1980-81, the costs of the Masters have been paid by the Commonwealth. Funds for these payments were included in the Commonwealth's budget for Pennhurst. The Commonwealth defendants did not appeal any of the payment Orders for those fiscal years, nor did they ever question the amounts of those payment Orders. For fiscal year 1981-82, however, the Department of Public Welfare ("DPW") requested a separate appropriation to pay the amounts ordered by the Court to defray the expenses of the Masters. In its 1981-82 Budget Briefing Book, DPW stated that "the Special Master's responsibilities duplicate the authority and responsibility of either DPW/OMR or the counties funded by the Commonwealth for the purposes of service provision." It was further stated in the Budget Briefing Book:

To meet the monthly Court Orders for payment to each Master, DPW/OMR has requested $ .9 million. Although the dollars will not provide for the maintenance or expansion of client services in the community or Pennhurst itself, the dollars are sought pursuant to Court Orders regarding funding of the Master's Offices.

 The Honorable Helen O'Bannon, the Secretary of DPW, in testifying on March 4, 1981, before the House of Representatives Committee on Appropriations, made the following statements concerning the budget request for funds to pay the expenses of the Masters' offices as ordered by the Court:

REPRESENTATIVE COHEN: I'm just curious as to what power we have here, if any. Suppose we cut it to 450,000? What would happen? We would be ordered to increase it to $ 900,000.00?
SECRETARY O'BANNON: No. Because you're not defendants on the suit.
REPRESENTATIVE COHEN: You as the Department?
SECRETARY O'BANNON: I have no authority to increase it. I do not appropriate money.
REPRESENTATIVE COHEN: So therefore, you are saying we do have the authority to cut or increase?
SECRETARY O'BANNON: Yes. And you always have that authority. Judge Broderick cannot take that away from you.
REPRESENTATIVE COHEN: And Judge Broderick has no reasonable means of recourse?
SECRETARY O'BANNON: Judge Broderick is a very clever jurist. I would not like to guess his means of recourse.
REPRESENTATIVE COHEN: I am curious as to who would go to jail.
REPRESENTATIVE ARTY: I will take you in to protective custody.
REPRESENTATIVE COHEN: To what degree is the $ 900,000.00 ...

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