to pay for services for particular individuals severely disrupts the Department's ability to plan and to coordinate the equitable distribution of services to the mentally retarded throughout the state. Compliance with such orders requires redistribution of available funds which the Department accomplished by reducing the allocation to all other counties. This reduction in turn, results in diminishing the counties' abilities to maintain existing services to their current clients.
The tragic issue before the Court is whether the Commonwealth of Pennsylvania must use its scarce resources to provide appropriate residential treatment for a profoundly retarded and blind woman.
For eight years plaintiff made progress at the Royer-Greaves School for the Blind ("Royer-Greaves School"). When she reached the age of twenty-one, however, Ms. Alessi's educational entitlement ended and she was sent home. Although the Royer-Greaves School is willing and able to provide continuing services for Ms. Alessi, the Commonwealth of Pennsylvania has refused to pay for them. Since her removal from the facility that was helping her, Ms. Alessi has continued to suffer horrible degeneration.
All available professional assessments demonstrate Ms. Alessi's critical and immediate need for institutionalization of the type provided by such institutions as the Royer-Greaves School or the Elwyn Institute. Unless she receives the care that she so desperately needs, Ms. Alessi will withdraw completely and spend her days endlessly rocking herself back and forth. When provided with appropriate care, in contrast, Ms. Alessi is able to perform useful activities such as dressing and feeding herself, finding her way around and actually working at simple vocational tasks involving skills such as sorting.
The state courts consistently have turned away plaintiff's claims. Commonwealth v. Alessi, 105 Pa. Commw. 453, 524 A.2d 1052 (1987); Commonwealth v. Alessi, 119 Pa. Commw. 160, 546 A.2d 157 (1988). Her last state court rejection occurred on November 28, 1988; Ms. Alessi now turns to this Court for relief.
Eleventh Amendment Immunity
Before reaching the substantive issues presented in this case, I will address the defendants' claim of sovereign immunity under the Eleventh Amendment. The Eleventh Amendment prohibits suits in federal court in which the State itself is named as a defendant. See, e.g., Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). Under Ex Parte Young, 209 U.S. 123, 160, 52 L. Ed. 714, 28 S. Ct. 441 (1908), however, a suit challenging the constitutionality of a state official's action is not one against the State and thus may be brought in federal court, although the court's power to grant relief is limited. See also Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). "When a plaintiff sues a state official alleging a violation of federal law, the federal court may award an injunction that governs the official's future conduct, but not one that awards retroactive monetary relief." Pennhurst II, 465 U.S. 89 at 102-03. Finally, the Eleventh Amendment prohibits a federal court from granting any form of relief, whether it is retroactive or prospective, against a state for violations of state law. Pennhurst State School and Hospital v. Halderman ("Pennhurst II"), 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984).
In the case at bar, Cynthia Alessi has alleged a violation of federal law; specifically, she claims that the Commonwealth of Pennsylvania and its officials have deprived her of a protected property interest in adequate treatment without the due process of law required by the Fourteenth Amendment. Ms. Alessi requests that this Court grant prospective injunctive relief directing both the Commonwealth of Pennsylvania and John White, the Secretary of the Department of Public Welfare, to refrain from violating her federal due process rights. I find that Ms. Alessi's claim against the Commonwealth is barred by the Eleventh Amendment;
her claim against John White, Secretary of the Department of Public Welfare, however, is not barred.
Defendants further argue that I must abstain from deciding this case under the doctrines of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). I will not abstain.
First, "under Younger, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests." United Services Auto Ass'n v. Muir, 792 F.2d 356, 365 (3d Cir. 1986), cert. denied, 479 U.S. 1031, 93 L. Ed. 2d 830, 107 S. Ct. 875 (1987) (quoting Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 237-38, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984)). In the case currently pending between plaintiff and defendants in the Delaware County Court of Common Pleas, the court has sustained defendants' jurisdictional objections and dismissed plaintiff's claims for declaratory and injunctive relief; only plaintiff's damage claim remains. Plaintiff thus cannot assert her federal claim for injunctive relief in the pendent state court proceeding. As a result, Younger abstention is inapplicable.
Second, "federal courts need not abstain on Pullman grounds when a state statute is not 'fairly subject to an interpretation which will render unnecessary' the federal constitutional question." Ky. West Virginia Gas Co. v. Pa. Public Utility Co., 791 F.2d 1111, 1118 (3d Cir. 1986) (quoting Hawaii Housing Authority, 467 U.S. at 236). In the case sub judice, the meaning of the state statute involved is clear both from the statutory language itself and from the definitive interpretations provided by the Pennsylvania Supreme Court. Therefore, Pullman abstention also is inapplicable. I now will consider the merits of plaintiff's motion for a preliminary injunction.
Due Process of Law
When a plaintiff alleges a deprivation of life, liberty or property without due process of law, the court must apply the two-step analysis set forth by the Supreme Court. E.g., Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 56 L. Ed. 2d 30, 98 S. Ct. 1554 (1978). First, the court must determine whether the plaintiff has a constitutionally cognizable life, liberty or property interest that is threatened by government action. Id. Second, if a protected right is found, the court must determine what protective procedure is due before the state may deprive the plaintiff of that right. Id.
Property interests do not exist in the constitution itself, but are created and defined by existing rules that stem from an independent source such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. She must, instead, have a legitimate claim of entitlement to it." Id.
The Pennsylvania Mental Health and Mental Retardation Act of 1966 (the "Act") mandates that the Department of Public Welfare ("Department") "assure within the State the availability and equitable provision of adequate . . . mental retardation services for all persons who need them.. . ." 50 Pa. Stat. § 4201(1). In In re Schmidt, 494 Pa. 86, 98, 429 A.2d 631 (1981), the Pennsylvania Supreme Court made clear that the Act requires the Department to "to provide adequate mental retardation services for persons in need of them" and that where a mentally retarded plaintiff clearly demonstrates her need for services, the State must respond.
The Pennsylvania Supreme Court has further held that the Department of Public Welfare is required to allocate funds to county mental retardation programs for placement of mentally retarded persons in community based residences. In re Sauers, 68 Pa. Commw. 83, 447 A.2d 1132 (1982) (en banc), aff'd, 500 Pa. 342, 456 A.2d 987 (1983).
The mandatory language of the Act, together with its interpretation by the state Supreme Court, demonstrate that Cynthia Alessi has more than a mere expectation of adequate services. I find that Cynthia Alessi has a legitimate expectation, and thus a protectible property interest, in mental retardation services adequate for her needs.
Once it is determined that Ms. Alessi has a protectible property interest in receiving adequate treatment, this Court must determine "what process is due." E.g., Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972); Ransom v. Marrazzo, 848 F.2d 398, 409 (3d Cir. 1988). "The touchstone of due process is the protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).
The Commonwealth need not create a system of benefits for the mentally retarded. Having chosen to extend the right to adequate treatment to persons in Ms. Alessi's position, however, it may not be withdrawn in the absence of procedures that are fundamentally fair. E.g., Goss v. Lopez, 419 U.S. 565, 574, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975); Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980); Winsett, 617 F.2d 996 (3d Cir. 1980) (en banc); Hixon v. Durbin, 560 F. Supp. 654, 661 (E.D. Pa. 1983). "While the legislature may elect not to confer a property interest, . . . it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards." Vitek v. Jones, 445 U.S. 480, 490 n.6, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980) (quoting Arnett v. Kennedy, 416 U.S. 134, 167, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974) (Powell, J., concurring)).
I find from the testimony a substantial likelihood that the system utilized by the Secretary to obtain and distribute funds for the mentally retarded is an irrational one. The testimony established that it is the policy and practice of the Secretary of the Department of Public Welfare to intentionally close his eyes to reality and knowingly request a total annual budget of less funding than is necessary for the adequate residential care of mentally retarded persons in Pennsylvania. In reliance on the Secretary's understated request, the Governor requests insufficient funds from the Legislature for care of the mentally retarded. Thus, the Secretary's practice necessarily precludes the mentally retarded from receiving the funding they desperately need and I find that it is arbitrary.
The testimony further established that the Secretary utilizes an arbitrary method of allocating the budgeted funds among the counties. Essentially, funding allocation is based on each county's past expenditures (plus an arbitrary increase for all counties), rather than on an individual determination of each county's current needs for the particular fiscal year. In effect, the Secretary's methodology, policy and practice is to deny adequate provision for Cynthia Alessi's needs without giving her case any meaningful consideration.
I will provide the parties with a full opportunity to develop a complete factual record as to the Secretary's policy and practice of requesting and distributing benefits to the mentally retarded by issuing a ninety (90) day discovery order, and I will grant the plaintiff leave to amend her complaint to join Delaware County as a defendant.
The narrow question presently before this Court is whether to grant a preliminary injunction.
If I refuse to grant relief, Cynthia Alessi will suffer the irreparable injury of continuing to regress from a human being to a body incapable of much more than rocking itself back and forth. Cynthia's family cannot afford the expense of residential care, and without it she may regress to the point where she will never be able to regain basic skills.
In addition, I credit Mr. Alessi's testimony that Cynthia may injure herself if I fail to grant relief. If I grant relief, the Secretary of the Department of Public Welfare will have to allocate scarce resources to her care. Although the likelihood of plaintiff's success on the merits is difficult to evaluate, it is sufficiently high to justify preliminary relief. Where the injury that would stem from a refusal of relief is as devastating as the one presented here, the likelihood of ultimate success on the merits need not be a certainty. If plaintiff ultimately wins her case, what will it avail her if she regresses so far that she can no longer function as a person? In addition, a strong public interest, recognized by the Commonwealth, exists in preserving the humanity of retarded persons. Balancing the factors discussed above, I will issue a preliminary injunction so that if Cynthia Alessi ultimately wins her case she may continue to exist as a human being.
An appropriate order follows.
AND NOW, this 27th day of March, 1989, upon consideration of the plaintiff's Motion for a Preliminary Injunction and the defendants' response and after a hearing, it is hereby ORDERED that John White, Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania, shall facilitate the immediate appropriate residential mental retardation treatment of Cynthia Alessi at either the Royer-Greaves School for the Blind or the Elwyn Institute, contingent upon the admission of Ms. Alessi to one of the above-listed institutions and contingent upon Delaware County's identification of Ms. Alessi as a county resident to receive such treatment, by paying additional funds from an annual grant forthwith to Delaware County to defray those costs. This Order shall continue in full effect until modified by further Order of this court.
This Preliminary Injunction shall issue upon the applicant's providing security in the sum of $ 12,500 for the payment of such costs and damages as may be incurred or suffered by defendants if they are found to have been wrongfully enjoined.