The opinion of the court was delivered by: BRODERICK
On March 2, 1981, this Court issued an order which, inter alia, provided that the defendants in this action should, on or before June 30, 1982, provide community living arrangements together with all the services required by the retarded person's Individual Habilitation Plan for 100 residents of Pennhurst whose home counties are outside the Southeast Region of Pennsylvania. On March 10, 1981, defendants Department of Public Welfare of the Commonwealth of Pennsylvania and its Secretary, Helen O'Bannon (hereinafter "Commonwealth defendants") filed a motion asking this Court to alter or amend this portion of its March 2 Order. On February 4, 1982, the Commonwealth defendants filed a Supplemental Motion to Amend and/or Alter this Court's Order of March 2, 1981. A hearing was held on April 16 and 19, 1982 in connection with the motion filed on February 4, 1982. For the reasons hereinafter set forth, the Court will deny the motion of the Commonwealth defendants.
The history of this case is well-known to the litigants, but must again be reiterated in order to describe the situation now confronting the Court and the parties to this case.
During 1977, this case, which began in 1974, was tried before the Court, sitting without a jury, over a period of 32 days. At trial, all parties, including the Commonwealth defendants as well as the other defendants, agreed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of mentally retarded citizens, and that the retarded should be educated, trained, and cared for in community living arrangements. The defendants insisted, however, that they be permitted to accomplish the community placement of Pennhurst residents pursuant to their own schedule. The Court found this "schedule" to be vague and indefinite. On December 23, 1977, this Court issued Findings of Fact and Conclusions of Law (446 F. Supp. 1295) which found that the defendants were violating the constitutional and statutory rights of the members of the plaintiff class by failing to provide them with adequate habilitation in the least restrictive appropriate environment.
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 suitable community living arrangements and services for the residents of Pennhurst and the other retarded members of the plaintiff class (446 F. Supp. at 1325). 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, that a friend-advocate system be established to represent some class members and to participate in monitoring the provision of community living arrangements and services, and that a Special Master be appointed to monitor the defendants' planning and implementation activities and report to the Court on the defendants' compliance with the Court's Orders.
The Order of March 17, 1978 was appealed to the Third Circuit. During the pendency of the appeal, this Court issued three major Orders in this case. One of these, the Order of June 8, 1979, set forth a specific timetable for the transfer to the community by September 1, 1979 of the approximately 55 school-age residents of Pennhurst. This Order was necessary because only three school-age residents of Pennhurst had been placed in community living arrangements between March 17, 1978, the date of the Court's original injunctive Order, and June 8, 1979. As of April 22, 1982, 14 of the school-age residents covered by the Order of June 8, 1979 still had not been transferred to community living arrangements (Report of the Special Master, April 22, 1982).
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, 3 Cir., 612 F.2d 84. This Court, pursuant to the remand order, established an impartial hearing procedure and appointed a Hearing Master to provide the individual determinations mandated by the Circuit Court for Pennhurst residents being placed into the community, and for other retarded members of the class being recommended for admission to State facilities for the mentally retarded.
The United States Supreme Court granted certiorari in this case on June 10, 1980, and on June 30, 1980 entered a limited stay order which, in effect, allowed only "voluntary" transfers of Pennhurst residents to the community pending final disposition of the matter. On July 14, 1980, this Court ordered the Hearing Master to hold a hearing for each Pennhurst resident for whom a community living arrangement had been prepared, for the purpose of determining whether the proposed transfer from Pennhurst to the community was "voluntary." On December 1, 1980, the Supreme Court declined to disturb this Court's interpretation and application of its stay order.
On February 26, 1982, the Third Circuit, pursuant to the Supreme Court's remand, issued its second en banc decision in this case. The Third Circuit again affirmed, holding that Pennsylvania's Mental Health/Mental Retardation Act of 1966, 50 Pa.Stat.Ann. §§ 4101-4704 (Purdon 1969), granted Pennsylvania's retarded citizens the right to adequate habilitation in the least restrictive environment. Although the Commonwealth defendants are once again petitioning for certiorari to the Supreme Court, there is no stay of this Court's Orders mandating the community placement of those Pennhurst residents whose individual habilitation plans require community living arrangements in order to provide for their adequate habilitation. (Orders of March 17, 1978; June 8, 1979; April 24, 1980; March 2, 1981).
The transfer of retarded citizens from confinement at Pennhurst to habilitation in the community proceeded at snail's pace from 1978 through 1980. For that reason, this Court, on May 27, 1980, held a hearing on a Rule to Show Cause and after that hearing determined, among other things, that the Commonwealth defendants, based on the evidence presented at the hearing and upon their own representation, were capable of placing 100 Pennhurst residents from counties outside the Southeast Region of Pennsylvania in community arrangement during the fiscal year commencing July 1, 1981 and ending June 30, 1982. In its Order of March 2, 1981, the Court ordered the Commonwealth defendants to effectuate 100 such transfers on or before June 30, 1982.
In early 1978, when this Court entered the injunctive order designed to provide to the retarded residents of Pennhurst their state statutory, federal statutory, and federal constitutional rights, the Court hoped and expected that the defendants would provide these rights to the retarded with a minimum of supervision and an absence of coercion. However, the intervening years have shown that the defendants have failed to act diligently and with steadfast purpose to comply with the Court's Orders in this case. In fact the defendants have acted as though this Court never entered its decision but merely approved the defendants' trial position of community placement according to the defendants' own vague and uncertain schedule. Faced with this apparent disregard for the Court's Orders and the rights of the retarded, the Court entered the Order of March 2, 1981 specifically directing the defendants to transfer to the community certain numbers of retarded persons by certain dates. The Order required the defendants to transfer: 61 retarded Pennhurst residents from the Southeast Region by June 30, 1981; 150 additional Southeast Region Pennhurst residents by June 30, 1982; 100 retarded persons from the Southeast Region including members of the plaintiff class by June 30, 1982; and 100 Pennhurst residents from outside the Southeast Region by June 30, 1982. As the Court noted in its Memorandum of March 2, 1981:
In formulating its implementation Order, the Court has arrived at the numbers of individuals to be placed in the community from the defendants' own proposals. The Commonwealth's letters of fund allocation to the defendant Counties for the fiscal year ending June 30, 1981, although making provision for less than half the number of placements proposed to the Court in May, 1980 (111, as opposed to 250), clearly indicate that the implementation Order is well within the capabilities of the defendants and the Court so finds. Likewise, on the basis of the defendants' proposals to the Court in May, 1980, the Court finds that the number of retarded individuals to be provided for in the community within the Southeast Region of Pennsylvania in the fiscal year ending June 30, 1982 (a total of 250) is well within the capabilities of the defendants. In addition, the transfer of Pennhurst residents from Counties outside the Southeast Region should not be further delayed. As heretofore pointed out, community placements have been proceeding much more rapidly in other areas of the state and on this basis the Court finds that its implementation Order directing the transfer of 100 Pennhurst residents to community facilities in counties outside the Southeast Region during the fiscal year ending June 30, 1982 is well within the Commonwealth's capabilities.
Memorandum of March 2, 1981 at 13.
The Commonwealth defendants have contended that the portion of the March 2, 1981 Order regarding the community placement of 100 Pennhurst residents outside the Southeast Region exceeds the Court's jurisdiction in that the Pennsylvania counties outside the Southeast Region are not parties to this action. Indeed, the Commonwealth defendants have made this contention since the inception of this litigation and this Court has repeatedly rejected their argument, beginning with its decision on the merits. See 446 F. Supp. at 1322-23. At trial, the Commonwealth defendants and the Southeast Region county defendants disputed their coordinate responsibilities under the Mental Health/Mental Retardation Act of 1966 to provide minimally adequate habilitation to the retarded citizens of Pennsylvania. This Court, in 1977, determined that both "the Commonwealth and the counties have been charged under the (1966) Act with the responsibility of providing such minimally adequate habilitation to the retarded." 446 F. Supp. at 1322. The Court then noted that the 1966 Act
envisions "a comprehensive cooperative State-county (or multi-county) program for the care, treatment and rehabilitation of persons who are ... mentally retarded .... The State, through the Department of Welfare, is responsible for the overall supervision and control of the program to assure the availability of and equitable provisions for adequate ... mental retardation facilities, ...