February 26, 1982; As Amended March 11, 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 BETY 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. AND 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 SUPERINTENDENT, PENNHURST STATE SCHOOL & HOSPITAL, MARGARET GREEN, BETTY UPHOLD, ALICE BARTON, P. E. KLICK, DR. PAROCCA, HELEN FRANCIS, EMPLOYEES AND AGENTS OF PENNHURST STATE SCHOOL & HOSPITAL, JOHN DOCTOR, JAMES NURSE, JANE AIDE, JILL THERAPIST, RICHARD ROE, JANE 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 CATANTA, 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 ADMINISTRATION 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 SOFTER, MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR FOR PHILADELPHIA COUNTY HELEN O'BANNON AND THE DEPARTMENT OF PUBLIC WELFARE, APPELLANTS IN NO. 81-2381
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: SEITZ, Chief Judge, and ALDISERT, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges
GIBBONS, Circuit Judge, with whom Judges Aldisert, Weis, Higginbotham and Sloviter join:
The Honorable Helen O'Bannon, Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania, and that Department, appeal from an August 25, 1981, order of the District Court holding them in civil contempt, after a hearing, for failure to comply with the terms of the court's orders of June 4, 1981, and July 14, 1981. Those orders directed that the Commonwealth of Pennsylvania pay into the Registry of the District Court estimated costs for the operation of the Office of Special Master created under the terms of prior orders in this protracted lawsuit. The plaintiffs have moved to dismiss the appeal from the contempt order for want of an appealable order. We conclude that we have appellate jurisdiction, and we affirm.
This civil contempt proceeding arises out of a class action granting injunctive relief against the fact or conditions of confinement in Pennhurst State School and Hospital (Pennhurst) of persons suffering mental retardation. The action was commenced in May of 1974 by Terri Lee Halderman, a minor resident of Pennhurst. A motion by the United States to intervene as a plaintiff was granted in January, 1975, and the Pennsylvania Association for Retarded Citizens (PARC) successfully moved to intervene thereafter. The Commonwealth defendants are the Department of Public Welfare, the Secretary of the Department, and a number of state officials having responsibility for the habilitation of the mentally retarded in Pennsylvania and for the operation of Pennhurst. Additional defendants, not involved in the contempt proceedings, are five counties of southeastern Pennsylvania which, under Pennsylvania law, share responsibility with the Commonwealth for the habilitation of the mentally retarded. After extensive pretrial discovery and a lengthy trial, the District Court in December 1977 made findings of fact and conclusions of law holding that the rights of class members secured to them by the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann. tit. 50, §§ 4101-4704 (Purdon 1969) (MH/MR Act of 1966), by several federal statutes, and by the federal constitution were being violated.*fn1 When the parties were unable to agree on an order which would remedy the continuing violations of law which the district court found, on March 17, 1978 the Court issued a permanent injunction ordering that Pennhurst eventually be closed and that suitable community living arrangements and necessary support services be provided for its residents. Particularly relevant to the contempt proceedings is the provision in the March 17, 1978 order for the appointment of a Splecial Master to supervise the planning and implementation of arrangements for placing Pennhurst residents elsewhere, and for the operation of Pennhurst until such placements were accomplished. Paragraph 8 of the District Court's March 17, 1978 order provided that
[t]he Master shall engage such staff of his or her own as he or she finds necessary, subject to the approval of the Court. The Master and his or her staff shall be compensated by the commonwealth defendants at a rate to be set by the court; the expenses of the mastership to be borne by the commonwealth defendants.*fn2
All defendants appealed from the March 17, 1978 Order. An application to stay that order was denied by the District Court,*fn3 and a panel of this Court denied a stay pending appeal. Before this Court the Commonwealth defendants opposed the March 17, 1978 order in all respects, but in particular because (1) the prospective relief which was ordered required the expenditure of Commonwealth funds, and (2) the appointment of a Special Master was improper. This Court expressly rejected both of those objections.*fn4 For the most part we affirmed the District Court's order. We did, however, conclude that in ordering that Pennhurst be closed and in prohibiting all future admissions to that institution, the judgment went beyond what the law required. Instead, we held individual determinations of need were required for each present resident or future admittee.
[I]nstitutionalization is a disfavored approach to habilitation. Only where the court or the Master finds that an improved Pennhurst is the only appropriate place for individual patients should it be used. For all other patients, CLAs must be provided. We caution both the trial court and the Master that before ordering transfers to CLAs they must have assurances that the sanitary, staffing, and program deficiencies which were found at Pennhurst are not duplicated on a smaller scale in the CLAs.*fn5
Thus both the March 17, 1978 judgment and our opinion and judgment affirming and modifying it, contemplated a significant ongoing role for the Special Master both with respect to the internal conditions at Pennhurst and with respect to returning Pennhurst inmates to a more normal environment. Even those judges who dissented from the provisions of the judgment requiring steps toward normalization of inmates rather than perpetual confinement made no objection to the use of a Special Master to bring about an internal improvement of the intolerable condidions at Pennhurst. The judgment on appeal therefore made no change in the provision in paragraph 8 of the District Court's March 17, 1978 judgment ordering the Commonwealth to pay the expenses of the Master. In that respect this Court was unanimous.
The March 17, 1978 order in relevant respects has been in place and unstayed at all times since. It was the clear understanding of the Court and all parties that the costs of the Special Master's office be borne by the Commonwealth. This clear understanding is confirmed by the fact that beginning in 1978, each of the District Court's periodic orders for payment of the cost of the Master was directed to the Commonwealth as such. In compliance with the mandate of this Court, the scope of the Master's duries was modified by a District Court order of April 24, 1980, which established an impartial hearing procedure and appointed a Hearing Master to provide an individual hearing for Pennhurst residents who desired to live in the community. No appeal was taken from the April 24, 1980 order, which modified the March 17, 1978 injunction. After the April 24, 1980 modification, the Court continued the prior practice of issuing periodic payment orders to the Commonwealth. No appeal was ever taken by the Commonwealth from any of these periodic payment orders. They all were honored by payment until the order of June 4, 1981.
On June 10, 1980 the Supreme Court granted certiorari from the prior judgment of this Court.*fn6 Prior thereto no stay of our mandate had been sought.Thus the modification of the March 17, 1978 judgment by the April 24, 1980 District Court order establishing a Hearing Master was plainly within the District Court's jurisdiction and complied with our mandate. On June 30, 1980 the Supreme Court entered a partial stay of the judgment of the Court of Appeals "to the extent that the judgment mandates the movement of residents of the Pennhurst facility to 'appropriate community living arrangements'" but denied a stay in all other respects.*fn7 Among the requests to the Supreme Court for a stay which were considered and denied were several addressed to the operation of the Office of Special Master.*fn8 When advised of the Supreme Court's action on the application for a stay, the District Court on July 14, 1980 further modified the injunction only to the extent of directing the Hearing Master, provided for in the April 24, 1980 order, to determine whether transfers out of Pennhurst were voluntary. All involuntary transfers to community living arrangements were terminated pending a further ruling by the Supreme Court.*fn9 No appeal was taken from this order, which enlarged the role of the Masters slightly.*fn10 After entry of the July 14, 1980 order, the Commonwealth continued to make payments in compliance with the Court's periodic payment orders, until June of 1981.
On April 20, 1981 the Supreme Court reversed the judgment of this Court and remanded with a direction for further proceedings in conformity with the opinion of the Court.*fn11 The Supreme Court's judgment did not affect the District Court's March 17, 1978 judgment as modified by the April 24, 1980 and July 14, 1980 orders. Insofar as those orders deal with the expense of the Special Master's office, those orders have been in effect at all relevant times. Moreover, the Court's periodic payment orders of June 4, 1981 directing he Commonwealth to pay $67,746.08 have not been appealed by anyone, and the Commonwealth as such has not appealed the July 14, 1981 periodic payment orders. In the opinion on remand from the Supreme Court, filed simultaneously herewith, we again substantially affirm the March 17, 1978 judgment, including its provisions for use of a Special Master. The civil contempt, therefore, is of the orders of June 4, 1981 and July 14, 1981 which do no more than fix the amount and time of payment of the unreversed provision in paragraph 8 of the March 17, 1978 order that the expenses of the Masters' offices shall be borne by the Commonwealth.
The Commonwealth of Pennsylvania appropriates funds annually for the Department of Public Welfare, of which Pennhurst is a part. For the fiscal years 1978-79, 1979-80 and 1980-81 general appropriations were made for State Centers for the Mentally Retarded, and from those appropriations payments were routinely made for the support of the Masters' offices. Sometime in late 1980 or early 1981 someone in the Department of Public Welfare conceived the idea of separating out from the general appropriation for State Centers for the Mentally Retarded a distinct appropriation for the operation of the Masters' offices. Secretary O'Bannon decided to depart from the prior practice, and was successful in having a separate item for the Masters' offices included in the Governor's budget requests. In testimony before the legislature O'Bannon voiced strong objections to the use of the Masters.*fn12 She explained that the anticipated cost was $900,000, and this colloquy took place:
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 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 who would go to jail.
REPRESENTATIVE ARTY: I will take you in to protective custody.
REPRESENTATIVE COHEN: And we have to pay the salaries?
SECRETARY O'BANNON: I have been ordered to send a check every month.
REPRESENTATIVE COHEN: We have no recourse other than to slash the budget from $900,000.00? If we don't want you to go to jail?
SECRETARY O'BANNON: You have all the recourse and power at your command and we will see what we will see. I am a risk taker. I ...
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