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November 18, 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


In March 1981, the Honorable Helen O'Bannon, Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania, made public allegations that the Special Master appointed by this Court was duplicating services being performed by the Commonwealth and County defendants in this litigation. Since it was never the Court's intention that the Special Master's Office should duplicate any services being performed by the defendants, the Court entered an Order (Order of August 26, 1981) that a hearing be held for the purpose of determining what, if any, services being performed by the defendants are or were duplicating work being performed by the Special Master. On October 19, 1981, that hearing took place. Based on the evidence produced at the hearing, for the reasons set forth herein, the Court finds that the Special Master is not now duplicating and has not in the past duplicated services performed by any defendant.

 The History of the Litigation

 As is now well-known to the litigants, this Court, in an opinion filed December 23, 1977, made findings of fact and conclusions of law holding that defendants were violating the constitutional and statutory rights of the residents of Pennhurst, as well as the other members of the plaintiff class (hereinafter referred to as the Pennhurst residents), by failing to provide them with minimally adequate habilitation in the least restrictive environment. 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 Court found that Pennhurst as an institution was inappropriate and inadequate to habilitate its retarded residents. At trial, the Commonwealth represented that it intended to close Pennhurst in the early 1980's. This it has not done.

 On January 6, 1978, this Court held a hearing to determine the injunctive order necessary to remedy the Constitutional and statutory violations. The parties were asked to attempt to agree on the terms of the Court's Order, but no agreement was forthcoming. On March 17, 1978, the Court issued an injunction which, among other things, created the Office of the Special Master. The Special Master was appointed to monitor defendants' planning for and the providing of community living arrangements and services in addition to monitoring living conditions at Pennhurst, as well as in the community facilities to which Pennhurst residents would be transferred. The Commonwealth defendants, when not faced with contempt proceedings during a two and a-half year period from the entry of this Court's Order on March 17, 1978 through the end of August, 1980, transferred only 122 of approximately 1,200 Pennhurst residents to community living arrangements. The Commonwealth defendants' failure to comply diligently with this Court's Orders during that period has underscored the need for a Special Master.

 On December 13, 1979, the Court of Appeals approved this Court's appointment of the Special Master, and its "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).

 This Court's Orders provide that the Special Master shall be compensated by the Commonwealth defendants (Orders of March 17, 1978; April 24, 1980; and June 10, 1980). The funds required for the operation of the Office of the Special Master are costs of litigation under Federal Rules of Civil Procedure 53 and 54 and were assessed against the Commonwealth defendants as losing parties in this litigation. The Commonwealth defendants did not appeal these Orders. They complied with these Orders and paid the Masters' costs during fiscal years 1978-79, 1979-80 and 1980-81. Funds for those payments were included in the Commonwealth's budget for Pennhurst. In fiscal year 1981-82, however, the Department of Public Welfare and Secretary Helen O'Bannon took steps which this Court found to have been designed to thwart the Court's Orders mandating funding for the Masters' offices. The Court found the Department and Secretary O'Bannon in contempt of court and imposed a compensatory, coercive civil contempt fine upon the Commonwealth for each day that the Masters' offices remained unfunded after September 2, 1981 (Order of August 25, 1981).

 On September 3, 1981, United States Supreme Court Justice William J. Brennan, acting as Circuit Justice for the Third Circuit, issued a temporary stay of this Court's contempt Order pending full review of the Commonwealth's application for a permanent stay pending appeal to the Third Circuit. The Third Circuit had already denied a stay. On September 17, 1981, Circuit Justice Brennan denied the application for a stay and vacated his temporary stay Order. The Commonwealth defendants, pursuant to Supreme Court rules, resubmitted the matter to Justice Rehnquist, who referred the application to the full Court, which denied the application for a stay on October 5, 1981.

 As of this date, $ 490,000 in civil contempt fines has been paid into the Registry of the Court by the Commonwealth defendants. On October 20, 1981, the Court transferred $ 87,314 of these funds to the Special Master for the purpose of resuming the full-scale operation of the Master's office. On October 21, 1981, the Special Master resumed full-scale operation. Currently, the Special Master submits weekly proposed expenditures to the Court which the Court must approve before the Master disburses the sums transferred from the Registry of the Court.

 The Function of the Special Master

 From its inception, the Office of the Special Master was charged with the primary task of monitoring the defendants' compliance with the injunctive relief ordered by the Court. All the activities of the Special Master were necessitated by this mandate.

 The Court's original relief order (Order of March 17, 1978) and subsequent relief orders (see, e.g., Order of March 5, 1979) have specifically directed the defendants to provide the relief to which this Court found the plaintiff Pennhurst residents entitled to receive under the Constitution of the United States, as well as state and federal statutes. The Special Master was appointed with "the power and duty to plan, organize, direct, supervise and monitor the implementation of ... Orders of the Court." (Orders of March 17, 1978 and April 24, 1980). This grant of authority is specifically limited to the Orders of the Court and was never intended as authorizing the Special Master to operate Pennhurst or any community living arrangement.

 One primary task of the Special Master is to regularly monitor the community living arrangements to which Pennhurst residents are being transferred. This function of the Special Master is essential for the purpose of assuring that the Pennhurst residents are transferred to community facilities that are safe, sanitary, and beneficial to their habilitation. The Court has always been vitally concerned that no Pennhurst resident or any member of the plaintiff class be transferred to any community facility that is not beneficial to his or her habilitation. In particular, it is the function of the Special Master to make certain that the poor sanitation, the dangers to life and limb, and the lack of training programs which this Court found to exist at Pennhurst are not duplicated on a smaller scale in community living arrangements. This function of the Special Master is particularly necessary in that the Commonwealth defendants have been operating without rules, regulations or policies designed to make certain that the community living arrangements for the retarded are safe and sanitary, and that the programs and services necessary for habilitation are being provided.

 Another primary function of the Special Master is to review individual habilitation plans for each retarded member of the class in order to ensure that the plan for each of the retarded residents provides for such care and services as will enable them to cope with life as effectively as their capacities will permit. This function of the Special Master is essential in light of the Court's finding that individual habilitation plans had not been prepared for the Pennhurst residents. The orders of this Court require the defendants to provide an individual habilitation plan for each ...

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