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September 11, 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


Commencing on July 23, 1981, this Court held a hearing on a Rule to Show Cause why the Commonwealth defendants and Bucks, Delaware, Montgomery and Philadelphia Counties should not be held in civil contempt for their failure to comply with Paragraph 1 of this Court's Order of March 2, 1981.

 Paragraph 1 of the Court's Order of March 2, 1981 provides:

Defendants shall provide community living arrangements with all the services required by the retarded person's Individual Habilitation Plan for at least 61 Pennhurst residents (not covered by the School-Age Order)-8 from Bucks County, 11 from Chester County, 9 from Delaware County, 15 from Montgomery County, and 18 from Philadelphia County-and for at least 29 other retarded persons in the Southeast Region of Pennsylvania including members of the plaintiff class during the period commencing with the date of this Order and closing June 30, 1981.

 The Court issued this specific implementation order because by March 2, 1981 the movement of Pennhurst residents to appropriate community living arrangements had almost come to a standstill, despite the fact that on March 17, 1978 the defendants were ordered to provide adequate community living arrangements and services for all the residents of Pennhurst and the other retarded members of the plaintiff class.

 This case, which began in 1974, was tried before the Court, sitting without a jury, over a period of 32 days, ending on June 13, 1977. At the trial all the parties, including the defendants, agreed that institutions like Pennhurst were inappropriate and inadequate for habilitation of mentally retarded persons, and that the retarded should be educated, trained, and cared for in normalizing community settings. The defendants did not dispute this view, but insisted that they wished to accomplish the community placement of Pennhurst residents pursuant to their own schedule, which the Court found to be vague and indefinite. On December 23, 1977, this Court issued its 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" is meant such education, training, and care as will 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 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 can only 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 all residents of Pennhurst and the other retarded members of the plaintiff class. This Court further ordered that an individual habilitation plan must 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 and implementation activities.

 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 remanding the matter to this Court for further proceedings. Halderman v. Pennhurst State School and Hospital, 612 F.2d 84. The Third Circuit sitting en banc 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), but remanded the case for individual determinations by the Court or a master concerning the appropriate placement for each Pennhurst resident. The Third Circuit stated that such individual determinations should be guided by a presumption in favor of a community living arrangement. (612 F.2d at 115).

 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 Order of March 17, 1978. The April 24, 1980 Order provided for the continuation of the individual planning and assessment process, with full participation by the Pennhurst resident, family, and advocates, established in prior Orders of this Court. The Court also 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.

 In March, 1978, when this Court issued its initial remedial Order, the population of Pennhurst was 1,156. Despite this Court's Orders, and despite the representations by the defendants of their intentions to comply with this Court's Orders, the retarded population of Pennhurst had been reduced by only 184, to a total of 972, as of the end of August, 1980-and not all of that reduction was due to the transfer of Pennhurst residents to community living arrangements. The school-age residents of Pennhurst, the subject of two specific Court Orders, had not all been placed in the community by an extended deadline of June 30, 1980, and indeed not all have been transferred even as of the present date. That only 122 Pennhurst residents had been transferred to community living arrangements in the more than two years since this Court's original Order of March 17, 1978, up to the end of August, 1980, necessitated the issuance of the Order of March 2, 1981.

 In the spring of 1980, when the Court learned that the pace of community placements was more sluggish than in the previous year, it scheduled a hearing on May 27, 1980, at which defendants were directed to show cause why the Court should not adopt the implementation order proposed by the Court. In conference with this Court in chambers prior to the May 27, 1980 hearing the Commonwealth expressed its intention to fully comply with this Court's Orders to provide community placements for the persons in the plaintiff class. The Commonwealth, however, at those conferences took the position that it preferred to accomplish this without intervention from the Special Master's Office and pursuant to its own timetable which it presented to the Court. The Commonwealth's timetable, which is attached to the Court's Memorandum of March 2, 1981 as Appendix A, provided that 150 Pennhurst residents and 100 other retarded persons would be placed in community living arrangements in the Southeast Region of Pennsylvania during the 1980-81 fiscal year. On the basis of these commitments which were reiterated by the Commonwealth defendants at the May 27, 1980 hearing, the Court delayed issuing an Order so that the defendants would have their opportunity to proceed on the basis of their own commitment. However, the commitment of the Commonwealth defendants was not fulfilled, in that only four Pennhurst residents were placed in community living arrangements in the Southeast Region from the start of the 1980-81 fiscal year on July 1, 1980 to March 2, 1981. Therefore, the Court on March 2, 1981 issued a specific implementation order. In formulating the specific implementation order of March 2, 1981, the Court arrived at the number of Pennhurst residents to be placed in the community on the basis of the Commonwealth's letters of fund allocation to the defendant Counties for the fiscal year ending June 30, 1981. These letters made provision for less than half the number of placements proposed to the Court in May, 1980 (111, as opposed to 250). The requirements of Paragraph 1 of the Order of March 2, 1981, were determined by the Court to be well within the capabilities of the defendants.

 It was evident that if the goals of the Court's original Order were to be realized, and if the numerical requirements imposed by the March 2, 1981 Order were to be accomplished, the defendants should be required to immediately undertake the planning necessary to comply with the March 2, 1981 Order. The Order required that the defendants submit detailed and meaningful implementation plans to the Court. Paragraph 4 of the March 2, 1981 Order provides:

 The Court warned in its Memorandum of March 2, 1981, that in the event of an unacceptable failure to comply with the Court's Order of March 2, 1981, it would become necessary to consider contempt proceedings. The Court stated in its Memorandum of March 2, 1981 that although reluctant to consider contempt proceedings, it could not permit the defendants to continue their failure to provide the residents of Pennhurst with adequate habilitation in the least restrictive environment.

 Defendants filed motions to amend, alter and/or stay this Court's Order of March 2, 1981. However, without providing the Court with an opportunity to rule on its motion, the defendants advised this Court on April 16, 1981 that they had filed an application for a stay with the Court of Appeals. The Court of Appeals denied defendants' motion to stay the Order on May 26, 1981. At a conference in chambers on May 28, 1981, the Court asked the defendants whether they wished to proceed with their motions to alter or amend and they stated that they did not wish to pursue the motions at that time.

 The validity vel non of this Court's Order of March 2, 1981, is not a defense to failure to obey the Order in that a Court's Order may not be attacked collaterally in a contempt proceeding. Pasadena City Board of Education, 427 U.S. 424, 439-40, 96 S. Ct. 2697, 2706, 49 L. ...

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