decided: February 26, 1982.
TERRI LEE HALDERMAN, A RETARDED CITIZEN, BY HER MOTHER AND GUARDIAN, WINIFRED HALDERMAN; LARRY TAYLOR, A RETARDED CITIZEN, BY HIS PARENTS AND GUARDIANS, ELMER AND DORIS TAYLOR; KENNY TAYLOR, A MINOR, A RETARDED CITIZEN, BY HIS PARENTS AND GUARDIANS, ELMER AND DORIS TAYLOR; ROBERT SOBETSKY, A MINOR, A RETARDED CITIZEN, BY HIS PARENTS AND GUARDIANS, FRANK AND ANGELA SOBETSKY; THERESA SOBETSKY, A RETARDED CITIZEN, BY HER PARENTS AND GUARDIANS, FRANK AND ANGELA SOBETSKY; NANCY BETH BOWMAN, A RETARDED CITIZEN, BY HER PARENTS AND GUARDIANS, MR. AND MRS. HORACE BOWMAN; LINDA TAUB, A RETARDED CITIZEN, BY HER PARENTS AND GUARDIANS, MR. & MRS. ALLEN TAUB; GEORGE SOROTOS, A MINOR, A RETARDED CITIZEN BY HIS FOSTER PARENTS, WILLIAM AND MARION CARANFA, ALL OF THE ABOVE INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; THE PARENTS AND FAMILY ASSOCIATION OF PENNHURST PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS, JO SUZANNE MOSKOWITZ, A MINOR, BY HER PARENTS AND NEXT FRIENDS, LEONARD AND NANCY MOSKOWITZ, ROBERT HIGHT, A MINOR, BY HIS PARENTS AND NEXT FRIENDS, JOHN AND JEANNE HIGHT, DAVID PREUSCH, A MINOR BY HIS PARENTS AND NEXT FRIENDS, CALVIN AND ELIZABETH PREUSCH, AND CHARLES DINOLFI, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-INTERVENORS UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR
PENNHURST STATE SCHOOL & HOSPITAL, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, FRANK S. BEAL, SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE, STANLEY MEYERS, DEPUTY SECRETARY FOR MENTAL RETARDATION, DEPARTMENT OF PUBLIC WELFARE, HELENE WOHLGEMUTH, FORMER SECRETARY, DEPARTMENT OF PUBLIC WELFARE, ALDO COLAUTTI, EXECUTIVE DEPUTY SECRETARY, DEPARTMENT OF PUBLIC WELFARE, WILBUR HOBBS, DEPUTY SECRETARY FOR SOUTHEASTERN REGION, DEPARTMENT OF PUBLIC WELFARE, RUSSELL RICE, JR., COMMISSIONER OF MENTAL RETARDATION FOR SOUTHEASTERN REGION, DEPARTMENT OF PUBLIC WELFARE, C. DUANE YOUNGBERG, SUPERINTENDENT, PENNHURST STATE SCHOOL & HOSPITAL, ROBERT SMILOVITZ, FORMER ASSISTANT SUPERINTENDENT, PENNHURST STATE SCHOOL & HOSPITAL, JOSEPH FOSTER, ASSISTANT SUPERINTENDENT, PENNHURST STATE SCHOOL & HOSPITAL, MARGARET GREEN, BETTY UPHOLD, ALICE BARTON, P.E. KLICK, DR. PAROCCA, HELEN FRANCIS, EMPLOYEES AND AGENT OF PENNHURST STATE SCHOOL & HOSPITAL, JOHN DOCTOR, JAMES NURSE, JANE AIDE, JILL THERAPIST, RICHARD ROE, JOE DOE, UNKNOWN AND UNNAMED STAFF, EMPLOYEES AND AGENTS OF PENNHURST STATE SCHOOL & HOSPITAL, EACH INDIVIDUAL DEFENDANT SUED INDIVIDUALLY AND IN HIS OR HER OFFICIAL CAPACITY, GEORGE METZGER, JOSEPH CATANIA, AND ROGER BOWERS, COMMISSIONERS FOR BUCKS COUNTY, ROBERT STREBL, EARL BAKER, AND LEO MCDERMOTT, COMMISSIONERS FOR CHESTER COUNTY, FAITH R. WHITTLESEY, CHARLES KEELER AND WILLIAM SPINGLER, COMMISSIONERS FOR DELAWARE COUNTY, A. RUSSELL PARKHOUSE, FRANK W. JENKINS AND LAWRENCE H. CURRY, COMMISSIONERS FOR MONTGOMERY COUNTY, MAYOR FRANK L. RIZZO AND THE CITY COUNCIL OF PHILADELPHIA, AS AUTHORITIES FOR PHILADELPHIA COUNTY, PETER BODENHEIMBER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR BUCKS COUNTY, WILLIAM A. MCKENDRY, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR CHESTER COUNTY, P. PAUL BURRICHTER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR DELAWARE COUNTY, HERMANN A. ROETHER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR MONTGOMERY COUNTY, AND LEON SOFFER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR PHILADELPHIA COUNTY, COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS PENNHURST STATE SCHOOL & HOSPITAL, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, FRANK S. BEAL, STANLEY MEYERS, HELENE WOHLGEMUTH, ALDO COLAUTTI, WILLIAM HOBBS, RUSSELL RICE, JR., C. DUANE YOUNGBERG, ROBERT SMILOVITZ, JOSEPH FOSTER, MARGARET GREEN, BETTY UPHOLD, ALICE BARTON, P.E. KLICK, DR. PAROCCA, AND HELEN FRANCIS, PENNHURST PARENT-STAFF ASSOCIATION, INTERVENOR COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS, PENNHURST STATE SCHOOL & HOSPITAL, ET AL., APPELLANTS IN NO. 78-1490; GEORGE METZGER, JOSEPH CATANIA, AND ROGERS BOWERS, COMMISSIONERS FOR BUCKS COUNTY, AND PETER BODENHEIMBER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR BUCKS COUNTY, ROBERT G. STREBL, EARL M. BAKER, AND LEO MCDERMOTT, COMMISSIONERS FOR CHESTER COUNTY, AND WILLIAM A. MCKENDRY, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR CHESTER COUNTY, FAITH RYAN WHITTLESEY, CHARLES C. KELLER AND WILLIAM A. SPINGLER, COMMISSIONERS FOR DELAWARE COUNTY, AND P. PAUL BURRICHTER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR DELAWARE COUNTY, AND A. RUSSELL PARKHOUSE, FRANK W. JENKINS, AND LAWRENCE H. CURRY, COMMISSIONERS FOR MONTGOMERY COUNTY, APPELLANTS IN NO. 78-1564; MAYOR FRANK L. RIZZO, THE CITY COUNCIL OF PHILADELPHIA, AND LEON SOFFER, APPELLANTS IN NO. 78-1602
HEARING EN BANC ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before Seitz, Chief Judge, and Aldisert, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
This appeal is before us on a remand from the Supreme Court, which on April 20, 1981, reversed our judgment upholding in part and modifying the permanent injunction ordered by the district court.*fn1
The Supreme Court's judgment remanded to this court "for further proceedings in conformity with the opinion of the Court." Accordingly it is necessary to examine that opinion, in the light of our prior opinion, to determine what issues must now be addressed. Our judgment, now reversed, rested upon a federal statute and a Pennsylvania statute.
The federal statute we relied upon is the "bill of rights" provision of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010 (1976). Proceeding on the assumption that Congress had constitutional authority under Section 5 of the Fourteenth Amendment to enact that section of the Act, we held that a private cause of action for the enforcement of the rights it defined should be implied.*fn2 That holding was predicated upon our belief that it was inappropriate for courts faced with a statute which fell within any of several constitutional grants of Congressional lawmaking authority to reject any source of such authority.*fn3 The Supreme Court, however, adopted a different standard, stating:
Although this Court has previously addressed issues going to Congress' power to secure the guarantees of the Fourteenth Amendment, ... we have had little occasion to consider the appropriate test for determining when Congress intends to enforce those guarantees. Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment.... The case for inferring intent is at its weakest where, as here, the rights asserted imposed affirmative obligations on the States to fund certain services, since we may assume that Congress will not implicitly attempt to impose massive financial obligations on the States.
451 U.S. at 15-16, 101 S. Ct. at 1539. Applying this newly announced rule of statutory interpretation*fn4 to Section 6010, the Court held that it was not passed pursuant to Section 5 of the Fourteenth Amendment, but was merely a funding clause enactment. As such, the statute was subject to another rule of statutory interpretation: "if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously," for "by insisting that Congress speak with a clear voice, we enable the States to exercise their choice (of participating in a federally funded program) knowingly, cognizant of the consequences of their participation." 451 U.S. at 17, 101 S. Ct. at 1540. Applying this clear statement requirement, the Court held:
We would be attributing far too much to Congress if we held that it required the States, at their own expense, to provide certain kinds of treatment. Accordingly, we reverse the principal holding of the Court of Appeals and remand for further proceedings consistent with this opinion.
451 U.S. at 31-32, 101 S. Ct. at 1547. The "principal holding" referred to is our holding that Section 6010 conferred substantive rights.*fn5 The precise holding in the Supreme Court's opinion is that we erred in that single respect.
Turning to our alternative state law grounds for affirming, to the extent we did, the relief ordered by the district court, the Supreme Court observed:
Respondents contend that, even if we conclude that relief is unavailable under federal law, state law adequately supports the relief ordered by the Court of Appeals. There are, however, two difficulties with that argument. First, the lower court's finding that state law provides a right to treatment may well have been colored by its holding with respect to § 6010. Second, the court held only that there is a right to "treatment," not that there is a state right to treatment in the "least restrictive" environment. As such, it is unclear whether state law provides an independent and adequate ground which can support the court's remedial order. Accordingly, we remand the state law issue for reconsideration in light of our decision here.*fn24
451 U.S. at 31, 101 S. Ct. at 1547. Thus the Supreme Court has expressed no view on the question whether state law provides an independent and adequate ground which can support the district court order. We are directed to consider that question in light of the decision in In re Joseph Schmidt, announced by the Pennsylvania Supreme Court after our decision but prior to that of the Supreme Court. Implicit in that direction is a holding that the plaintiffs' federal law claims are of sufficient substance to support the exercise of pendent jurisdiction over that Pennsylvania law claim.
Finally, the Court addressed legal contentions advanced by the plaintiffs in support of the district court order which this court found it unnecessary to decide. Respecting the contention that Section 6063 of the Developmentally Disabled Assistance and Bill of Rights Act, which requires that state plans comply with several specific federal conditions, may be enforceable in a private action, the Court noted that the contention raised a number of issues, but concluded:
These are all difficult questions. Because the Court of Appeals has not addressed these issues, however, we remand the issues for consideration in light of our decision here.
451 U.S. at 30, 101 S. Ct. at 1546. The Court also said:
For similar reasons, we also remand to the Court of Appeals those issues it did not address, namely, respondents' federal constitutional claims and their claims under § 504 of the Rehabilitation Act (of 1973, as amended in 1974, 1976, and 1978, 29 U.S.C. § 701 et seq.)
451 U.S. at 31, 101 S. Ct. at 1547. We do not understand the remand on these issues as directions that this court must consider and decide either constitutional or statutory supremacy issues which, in light of state grounds independent and adequate to support the district court order, may not have to be reached. Rather, we construe the Court's remand as leaving open for our reconsideration, to the extent we find it necessary for such a purpose, any grounds of decision which might support the order appealed from, except our previous holding that Section 6010 was enacted pursuant to Section 5 of the Fourteenth Amendment and thus conferred substantive rights.
The Supreme Court found no fault with the district court's findings of fact, or with the standing of the United States as an intervening plaintiff. Thus there is no need for a repetition of the discussion in Parts II and III of our prior opinion.*fn6 Moreover the Court did not address those issues respecting scope of relief which are discussed in Part VII of our prior opinion.*fn7 Thus, assuming the propriety of some legal standard upon which relief could be predicated, there is no occasion, for purposes of this appeal, for a reconsideration of our discussion of the Commonwealth's Eleventh Amendment contention,*fn8 of objections to the definition of the class,*fn9 of objections to the use of a master,*fn10 or of other specific objections to provisions of the injunction which we rejected.
When our prior decision was announced, the highest court of Pennsylvania had not yet definitively construed the effect on the habilitation of mentally retarded persons of that state's Mental Health and Mental Retardation Act of 1966 (hereinafter MH/MR Act of 1966), Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969). We held that the MH/MR Act of 1966 provides a state statutory right to habilitation for such persons, that the plaintiffs could sue to enforce that right and that a federal court has pendent jurisdiction over such a claim, which was properly exercised in this instance.*fn11 Because the Supreme Court of Pennsylvania had not yet considered whether habilitation under the MH/MR Act of 1966 required the choice by the state of the least restrictive environment, while in our (mistaken) view Section 6010 did, we found it unnecessary to speculate about how that Court would construe the state statute in this respect.*fn12 Since our decision, however, In re Joseph Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), has been decided, and the state court has spoken definitively.
Joseph Schmidt, a mentally retarded adult resided and received treatment from the age of eight at the expense of Allegheny County in a privately operated residential school for mentally retarded children. After 14 years of support for Schmidt in that school, the county petitioned the Court of Common Pleas of Allegheny County for his involuntary commitment to Western Center, a state-operated residential facility. The Commonwealth of Pennsylvania intervened as a respondent, contending that Schmidt's commitment to the Western Center facility would not be appropriate under the MH/MR Act of 1966. The parties did not dispute that neither Allegheny County nor the Commonwealth's Western Center provided a program which would enable Schmidt to receive adequate habilitation. The dispute was over which governmental unit, under the Pennsylvania statutory scheme, was primarily responsible in cases such as his for developing a plan for his habilitation. As in this case, the County contended that it had no obligation under the MH/MR Act of 1966 to provide supportive services which would eliminate the necessity for institutionalization. The Court of Common Pleas rejected the County's contention and ordered it to develop for Schmidt an individual practical life-management plan suitable to his needs. The Pennsylvania Supreme Court reversed, holding that under the MH/MR Act of 1966 the state rather than the county was responsible for developing a suitable placement for a mental patient so severely retarded that there is no alternative for his habilitation less restrictive than long term institutional residential placement. In deciding the allocation of responsibilities between the County and the Commonwealth, however, the Court made it clear that under Pennsylvania law both were bound by the same requirement of normalization. The opinion of the Court states:
We fully agree with the court below that the legislative scheme was designed to require the county to provide those supportive services where they would eliminate the necessity of institutionalization, even where those services would be required on a long term basis.
With the acceptance of the principle of "normalization" and the resultant legislation, it is clear that the restrictive view urged by the county as to its obligations in the area is out of step. The concept of normalization envisions that the mentally retarded person and his or her family shall have the right to live a life as close as possible to that which is typical for the general population. Consistent with this concept is the requirement that the least restriction consistent with adequate treatment and required care shall be employed.
429 A.2d at 635-36. Addressing the regulations of that Pennsylvania Department charged with the responsibility for administering the MH/MR Act of 1966, the Court observed:
This (least restrictive alternative) approach to the problem of mental retardation was reflected in the regulations promulgated by the secretary pursuant to § 301 of the Act, 50 P.S. § 4301, on February 10, 1973. Regulations 5200 Appendix IV County Mental Health and Mental Retardation Program-Service Content of the Program. The following pertinent excerpts from these regulations are most instructive in the instant inquiry.
The County Program is the means by which minimum services as described in the act shall be readily available to promote the social, personal, physical and economical habilitation or rehabilitation of mentally retarded person with all due respect for the full human, social and legal rights of each person. This means that the health, social, educational, vocational, environmental and legal resources that serve the general population shall be marshalled and coordinated by the County Program to meet the personal development goals of mentally retarded persons, in accordance with the principle of normalization....
In keeping with this principle of normalization, the County is responsible to utilize county program funds for the mentally retarded to accomplish the following objectives:
4. shaping and maintaining an environment most productive of basic human personality qualities involving parent-child and sibling relationships, environmental adaptation, self-awareness and learning motivation and ability;
5. specific training and learning situations designed and implemented to develop all potential;
6. community development and restructuring to achieve the maximum normalization for the mentally retarded person wherever he is.
I. Responsibility for Planning, Direction and Coordinated Delivery of Services-The Base Service Unit:
The County Administrator shall be responsible to provide for the establishment of an organizational unit consisting of multidisciplinary professional and non-professional services for persons who are mentally retarded and in need of service from the County Program .... The Base Service Unit shall be responsible to perform the following functions in such a way as to carry out the objectives of the County Program as stated above.
D. Provide for comprehensive diagnosis and evaluation services to:
3. Develop a practical life-management plan for the individual and his family and provide the necessary counseling and following-along services; ....
These regulations make it clear that the legislative grant of power to the counties under § 301(e)(3) of the Act, 50 P.S. § 4301(e)(3), empowering them to establish additional services and programs "designed to prevent ... the necessity of admitting or committing the mentally disabled to a facility" was intended to be utilized by the counties to minimize the necessity of institutionalization. It was more than a mere grant of power to be used at the county's option. The power of the department to issue the regulations in question and to require the counties to assume the responsibilities set forth therein was clearly within the purview of section 201 of the Act, 50 P.S. § 4201, which charges the department to create a comprehensive and coordinate program in conjunction with the county governments. Moreover, any question as to the legislative recognition of the concept of normalization and the adoption of the doctrine of least restrictive alternatives in matters relating to the mentally retarded has been removed by the enactment of the Mental Health Procedures Act, Act of 1976, July 9, P.L. 817, No. 143, § 101; 50 P.S. § 7101.
In the course of announcing that the MH/MR Act of 1966 embodied the least restrictive alternative means standard for achieving habilitation of the mentally retarded, the opinion of the Pennsylvania Supreme Court makes passing reference to the fact that the least restrictive alternative doctrine was first articulated by Chief Judge Bazelon in Lake v. Cameron, 124 U.S. App. D.C. 264, 364 F.2d 657 (D.C.Cir.1966), and subsequently adopted in a series of commitment and treatment related cases.*fn13 From the context, it is clear that the Court did not suggest that it was giving to the MH/MR Act of 1966 an interpretation not, perhaps, intended by the Pennsylvania legislature, but instead compelled by the federal constitution. Indeed the Attorney General does not suggest that the statutory interpretation of the MH/MR Act of 1966 announced in Schmidt is other than independent of federal law.*fn14
The Pennsylvania law ground of decision being entirely independent of federal law, the sole remaining state law question is whether that ground of decision is adequate to support the order appealed from. Except to the extent that we previously required modification of the order, we hold that it is.
This case, unlike Schmidt, is a class action. In our prior decision we held that because for some members of the plaintiff class institutionalization might well be the least restrictive available means of habilitation, it was error to order the complete closing of Pennhurst without individualized determinations of need. Addressing the Pennsylvania legislation we observed that
we do not think that the Pennsylvania legislature, in providing a right to treatment in the Mental Health and Mental Retardation Act of 1966, intended to foreclose all institutionalization. In section 102 of that Act, for example, the legislature expressly included "institution(s)" within the category of "facilities" for which the Department of Welfare was responsible. Pa.Stat.Ann. tit. 50, § 4102. Thus, we see in the MH/MR Act of 1966 exactly the intent ascribed to it by Senator Pechan when he spoke in support of the measure.
The object of the legislation is to make it possible for every mentally disabled person to receive the kind of treatment he ...
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