plaintiff's "continued stay assessment" scores over time. This exhibit was admitted to show that plaintiff's scores did not decline over time. The 1985 score was, however, made on the basis of a new test and could not be compared with earlier scores. On cross-examinations, Stewart admitted that the inclusion of this score in C-15 and her reliance on it were "unfair". For these reasons, I find that Stewart's testimony should be given little weight. I do, however, believe that those with the closest ability to observe plaintiff over a long period of time have the best ability to assess any changes in her behavior. I therefore must conclude that there have not been any long term trends in her behavior as a result of her being denied a CLA.
To understand fully the circumstances which have given rise to plaintiff's present plight, it is necessary to sketch briefly the complicated relationship between local and state authority and responsibility in the provision of services to mentally retarded citizens. Both areas of government have some responsibility in this area. The responsibilities of the state include: ensuring the availability of adequate mental retardation services to all those who need them; making and enforcing regulations to implement the Mental Health/Mental Retardation Act; consulting with the various counties and assisting them in carrying out their mental retardation functions; operating state facilities, and supervising mental retardation facilities, services, and programs. The counties (and with respect to this action, Philadelphia County) have the duty to cooperate with the state to ensure that services are available.
In addition, defendant Surles, who is the Mental Health and Mental Retardation Administrator for the County of Philadelphia, is responsible for establishing an organizational unit or units consisting of multi-disciplinary professional staff capable of providing and planning appropriate services for mentally retarded persons in need of such services from the county. These organizational units are known as "Base Service Units" ("BSUs"). The County has contracted with several BSUs each of which serves individuals from a different area of the City of Philadelphia. Defendant Centralized Comprehensive Human Services, Inc. operates the John F. Kennedy Community Mental Health and Mental Retardation Center ("JFK MH/MR") which is the BSU responsible for serving plaintiff. The obligations of JFK MH/MR are described in some detail in the stipulation of facts and I will not recite them here. It is unfortunate, but true, however, that although nominally responsible for the provision of services to plaintiff, JFK MH/MR apparently has no records in its possession concerning plaintiff from the time of her commitment until 1976. Since 1976, however, plaintiff's BSU has been repeatedly advised by Laurelton staff that plaintiff should not be institutionalized and should be placed in a CLA. JFK MH/MR, in fact, attempted to have Philadelphia's mental health and mental retardation program arrange a CLA placement for plaintiff. Like all other attempts to transfer plaintiff from Laurelton, however, this never resulted in any change in plaintiff's treatment.
Although all the available professional opinion strongly favors a CLA for plaintiff, and has for the last nine years, plaintiff remains at Laurelton. The primary forces which have kept her there appear to be bureaucratic ineptitude and insufficient allocations of funds to community residence programs. Mr. Paul Hindman testified at the May 29, 1985 hearing regarding the process by which mental retardation services are funded by the state. He is currently director of the DPW's Bureau of Planning and Resource Allocation. He testified that DPW has allocated approximately $500 million for mental retardation services for the present fiscal year and that over one-half of this money goes to state institutions. Only 23% goes to community residential programs. He also testified that each year some of the money allocated to the counties for community residential programs is not spent. These "carry-over funds" are then reallocated during the next fiscal year to other counties. DPW has the discretion to reallocate this carry-over, at least to some degree. In spite of the fact that plaintiff's plight has been known by those at Laurelton, JFK MH/MR, and the County for many years, Hindman testified that no money has ever been sought or proposed to fund a CLA for plaintiff. Indeed, in the DPW budget for the 1985-1986 fiscal year, there was no increase for non-Pennhurst community placements at all.
Plaintiff makes a number of specific contentions in support of her motion for injunctive relief. She claims that the actions of the defendants have violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). She also claims that she has been deprived of her liberty without due process and that she has had her substantive rights under the due process clause violated. Defendants
deny that plaintiff has been the victim of actionable discrimination under the Rehabilitation Act and contend that no constitutional violations have occurred. In addition, they argue that the relief plaintiff seeks is inappropriate.
At the hearing on this matter, plaintiff requested that her motion for preliminary relief be treated as one for a permanent injunction. Although in most cases I would have given all parties advance notice of my intention to accelerate a hearing on a permanent injunction, defendants did not object to plaintiff's proposal either in court or in their post-hearing supplemental memoranda. I will therefore treat plaintiff's present motion as one for a permanent injunction. See Fed. R. Civ. P. 65(a).
The power to grant a permanent injunction rests with the sound discretion of the trial court. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1966). The court may grant a permanent injunction after a hearing if there are no material issues of fact and the issues of law have been correctly resolved. See Standard Oil Co. of Texas v. Lopeno Gas Co., 240 F.2d 504 (5th Cir. 1957).
Plaintiff states claims on both statutory and constitutional grounds. The federal courts have long been directed to decide whether causes of action can be supported on statutory grounds before they adjudicate constitutional law issues. See Hagans v. Lavine, 415 U.S. 528, 543, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 53 L. Ed. 753, 29 S. Ct. 451 (1909). I will therefore address plaintiff's Rehabilitation Act argument first.
B. Rehabilitation Act
Plaintiff advances a claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Act"). Introduced in the House of Representatives on December 9, 1971 and in the Senate on January 20, 1972, § 504 of the Act was framed initially as an amendment to the Civil Rights Act of 1964. Although it ultimately became part of another act, its language and intent were patterned after other civil rights legislation, especially Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). Section 504 states:
No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.