Clark v. Cohen

794 F.2d 79, 55 U.S.L.W. 2044

Opinions

OPINION OF THE COURT

GIBBONS, Circuit Judge:

Walter S. Cohen, Secretary of the Department of Public Welfare of Pennsylvania, Jennifer L. Howse, Deputy Secretary for Mental Retardation of that Department, Russell G. Rice, Jr., Commissioner of Mental Retardation, Southeast Region of that Department, and S. Reeves Power, Superintendent of Laurelton Center (the Commonwealth defendants) appeal from an injunction entered by the district court on June 21, 1985, directing that they release the plaintiff, Carolyn Clark, from Laurel-ton Center and pay for a program of services for Clark outside that state institution. The injunction resolves Clark’s claims for injunctive relief, but not her claims for money damages. We have jurisdiction under 28 U.S.C. § 1292(a)(1) (1982). We affirm.

I.

Clark is a forty-five year old woman who was confined at Laurelton Center, a state-run institution for care of the mentally retarded, from the time she was fifteen years old until she was released as a result of the order appealed, from. In July of 1984 she filed a complaint against the Commonwealth defendants, and several officials of and contractors for the County of Philadelphia (County defendants), alleging that her confinement at Laurelton violated her first and fourteenth amendment rights and her rights under several federal and state statutes. The complaint as amended sought declaratory, injunctive, and monetary relief. Clark contended that she should not have been confined at Laurel-ton, and that as a result of her long confinement she could not immediately function in a completely unstructured environment. Thus she sought short-term placement in a community living arrangement (CLA) supervised by the County defendants.¹

After extensive discovery, the parties filed a 183-paragraph stipulation as to the truth, but not necessarily the relevancy, of certain facts. Prior, to any hearing, the County defendants and Clark reached a settlement under which they agreed to place her in a county CLA within 120 days, provided the Commonwealth defendants paid the cost of such placement. The County defendants also agreed to develop for Clark a community placement best suited to her needs, and to have expert witnesses testify on her behalf as to the appropriateness of the proposed community placement and the necessity for such placement.

On May 28, 1985 the district court commenced a hearing on Clark’s application for preliminary injunctive relief. Her counsel represented to the court that he would present, in addition to the stipulated facts, the testimony of several witnesses, but that the stipulation and those witnesses would comprise Clark’s entire case on in-junctive relief. The court therefore treated the hearing as an application for a permanent injunction. Clark presented her own testimony, and the testimony of her caseworker at Laurelton, of the Superintendent of Laurelton, of the Director of Social and Rehabilitative Services at Laurelton, of the Director of the Bureau of Planning and Resource Allocation of the Department of Public Welfare, and of several expert witnesses. The stipulation of facts executed by the parties was admitted into evidence, together with fifty-six exhibits. The exhibits included the Laurelton records with respect to Clark’s stay there. The attorney for the Commonwealth cross-examined the witnesses offered on Clark’s behalf, but introduced no evidence in opposition to the application for injunctive relief.

On June 21, 1985 the trial court filed detailed findings of fact and conclusions of law. Noting that the parties had entered into a comprehensive stipulation of facts, the trial court wrote that his narrative statement “together with the stipulation constitutes my findings of fact.” Clark v. Cohen, 613 F.Supp. 684, 686 (E.D.Pa.1985). Thus in reviewing the trial court’s findings of fact we must look both to the narrative statement and to the stipulation. Reference to those findings will be made hereafter as relevant to the Commonwealth defendants' legal contentions.

The trial court held that Clark had been deprived of liberty without procedural due process of law and of substantive liberty interests guaranteed by the fourteenth amendment. The court, therefore, determined that she was entitled to injunctive relief. The court entered an order directing the County defendants to take those steps on Clark’s behalf that they had agreed to take in the settlement; namely developing a program of community services for her that would permit her to live in a CLA. The court further instructed the Commonwealth defendants to “immediately commit to Philadelphia Mental Health Mental Retardation those funds necessary to pay for the program of community services” and to “arrange for the transfer of plaintiff to this program.” Joint Appendix at 50. This appeal by the Commonwealth defendants followed.

II.

Because the injunction was not stayed, the County defendants proceeded to develop a plan for Clark’s placement in a CLA, and she was released from Laurelton. On February 2, 1986 reports in the press disclosed that the Commonwealth defendants no longer opposed her release, and would not seek her return if they prevailed on appeal.² This court requested counsel to comment on the possible mootness of the appeal in light of the fact that the Commonwealth defendants no longer sought to have Clark returned to Laurelton.

Both parties contend, and we agree, that the appeal is not moot. A mootness ruling would require that the underlying order be vacated. See United States v. Munsingwear, 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-07, 95 L.Ed. 36 (1950). That might result in the withdrawal of community services now being furnished by the County defendants since Clark’s settlement with them is contingent upon funding by the Commonwealth. The Commonwealth, while it has no intention of seeking her return to Laurelton, is unwilling to continue such funding if it can obtain relief from the funding provision in the injunction. While a vacation of the injunction would accomplish all the relief the Commonwealth now seeks, it would deprive Clark of a significant protection. Thus we must address the merits of the Commonwealth defendants’ appeal.

III.

The appeal presents two independent contentions. The Commonwealth defendants first urge that, assuming they violated Clark’s substantive and procedural rights, the eleventh amendment bars any relief other than an order releasing her from their custody. They contend, alternatively, that no relief was proper because no violations of Clark’s constitutional rights occurred.

A.

The Eleventh Amendment Contention

The district court found that the violation of Clark’s constitutional rights by her long, illegal confinement at Laurelton without proper treatment caused a deterioration in her ability to function at the present time in an unstructured environment. “But for the then well-intentioned intervention of the state,” the court observed, “Ms. Clark could most likely have lived an average life.” 613 F.Supp. at 707. The Commonwealth stipulated that “[i]n the opinion of [James] Pelter and of Elizabeth Raster, [two members of the] Laurel-ton Center social service staff, Carolyn Clark’s need for support services stems primarily from her institutionalization since age 15.” Joint Appendix at 376. No evidence conflicting with that opinion was offered by the Commonwealth defendants. They stipulated further that “[s]ince at least 1976, it has been the recommendation of the team at Laurelton Center that Carolyn Clark be placed in a community living arrangement.” Joint Appendix at 377. It was stipulated that as long ago as 1976 her Laurelton case worker recommended “that she would be most appropriate for a supervised foster home or group placement.” Joint Appendix at 378. It was also stipulated that it was the opinion of Laurelton case worker James Pelter, who was familiar with Clark’s case, “that her major difficulties were in the behavioral area and that these difficulties were largely due to being institutionalized since age 15.” Joint Appendix at 383. Having stipulated that their own professional staff members attributed Clark’s present need for supervision to her long institutionalization and having offered no contrary evidence, the Commonwealth defendants are in no position to question the trial court’s finding that the violations of her rights caused such deterioration of her ability to cope in society that she needs some form of supervised remediation if she is ever to be able to do so.

Indeed the Commonwealth defendants do not seriously dispute that Clark’s need for present remediation is the result of her long confinement. In their initial brief, they argue that she sought, and the trial court recognized, a constitutional right to treatment outside an institution unrelated to any prior violation of her rights. Brief for Appellants at 17-19. Clark’s brief points out, quite correctly, however, that the trial court did nothing of the kind; rather, it ordered a remedy for the past constitutional violations that it found. Brief for Appellee at 37-38.

Subsequently, the Commonwealth defendants brought forth the argument we now address; namely that the supervised community living arrangement that has been ordered, being a form of remediation or compensation for past injuries, is barred by the eleventh amendment, even in a suit against state officers seeking equitable relief. Reply Brief for Appellants at 3-9. The Commonwealth defendants note correctly that the equitable relief that the trial court ordered — the development and implementation of a plan for Clark’s placement in a CLA until she can function in society without supervision — involves the expenditure of Commonwealth funds. They rely on Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), as authority for the proposition that equitable relief requiring the expenditure of state funds to remedy past wrongs is never permissible.

The precise contention made by the Commonwealth defendants has been rejected by the Supreme Court. In Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II), the governor and other state officials of Michigan, who had been found to have participated in the maintenance of an unconstitutionally segregated school system in Detroit, were ordered to fund one-half of the remedial educational programs ordered for the purpose of undoing the harm done to black pupils by prior segregated schooling. Id. at 275-77, 97 S.Ct. at 2754-55. Relying on Edel-man, the state officials argued that the eleventh amendment barred such “compensatory” relief. The Court resoundingly, and in this respect unanimously, rejected that contention, writing:

The decree to share the future costs of educational components in this case fits squarely within the prospective-compliance exception reaffirmed by Edelman. That exception, which had its genesis in Ex parte Young, 209 U.S. 123, [28 S.Ct. 441, 52 L.Ed. 714] (1908), permits federal courts to enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury. 415 U.S. at 667, [94 S.Ct. at 1357]. The order challenged here does no more than that. The decree requires state officials, held responsible for unconstitutional conduct, in findings which are not challenged, to eliminate a de jure segregated school system. More precisely, the burden of state officials is that set forth in Swann [v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ] — to take the necessary steps “to eliminate from the public schools all vestiges of state-imposed segregation.” 402 U.S. at 15 [91 S.Ct. at 1275]. The educational components, which the District Court ordered into effect prospectively, are plainly designed to wipe out continuing conditions of inequality produced by the inherently unequal dual school system long maintained by Detroit.

These programs were not, and as a practical matter could not be, intended to wipe the slate clean by one bold stroke, as could a retroactive award of money in Edelman. Rather, by the nature of the antecedent violation, which on this record caused significant deficiencies in communications skills — reading and speaking— the victims of Detroit’s de jure segregated system will continue to experience the effects of segregation until such future time as the remedial programs can help dissipate the continuing effects of past misconduct. Reading and speech deficiencies cannot be eliminated by judicial fiat; they will require time, patience, and the skills of specially trained teachers. That the programs are also “compensatory” in nature does not change the fact that they are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school system. We therefore hold that such prospective relief is not barred by the Eleventh Amendment.

Id. at 289-90, 97 S.Ct. at 2761-62 (footnotes omitted). Milliken II is therefore controlling unless, as the Commonwealth urges, it has since been overruled. Somewhat obliquely the Commonwealth suggests that Milliken II was overruled in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). To the contrary, that case reconfirmed that “the federal court may award an injunction that governs the official’s future conduct, but not one that awards retroactive monetary relief.” Id. 102-03, 104 S.Ct. at 909 (emphasis supplied). No monetary relief has thus far been awarded to Clark.

Given the square holding in Milliken II that a federal court may order state officials to fund from the state treasury remedial measures found necessary to undo the harmful effects of past constitutional violations, we hold that the Commonwealth defendants’ eleventh amendment argument is meritless.

B.

The Violations

Having rejected their eleventh amendment contention, we must address the Commonwealth defendants’ contention that Clark’s constitutional rights were not violated.³ The trial court held that she had been confined at Laurelton in violation of substantive liberty interests and procedural due process rights.

In 1956 Clark, a fifteen-year old Philadelphia resident, was involuntarily and indefinitely committed to Laurelton as a result of a petition filed pursuant to section 326 of the Mental Health Act of 1951. See Pa. Stat.Ann. tit. 50, § 1201 (Purdon 1952), repealed by Mental Health and Mental Retardation Act of 1966, 1966 Pa.Laws 96 (codified at Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969). The petition was filed on November 8, 1956 and approved by a state court the next day. Clark received no notice of the petition, and no hearing was held on it. On November 11, 1956 she was transported to Laurelton in Union County, Pennsylvania, at least four hours away from her Philadelphia home. Laurelton is an institution housing severely mentally retarded persons. Although the petition that resulted in her incarceration described her as “severely defective,” tests administered at Laurelton shortly after her arrival revealed that she was in the mild range of mental retardation with an IQ of roughly 60. Her IQ tests have remained fairly constant since. Her IQ is much higher than the overwhelming number of Laurel-ton residents, and she has always functioned at a higher level than most of the other Laurelton inmates. The 1956 test and all subsequent tests differ significantly from the “severely defective” diagnosis in the petition that resulted in her commitment.

The trial court found that soon after Clark was sent to Laurelton she expressed to the officials in charge of her custody her displeasure at being committed there against her will. The court found that she continued to protest her detention up to the time of the hearing, a period of over twenty-eight years. Despite her continuing protests, the court found, she never received a hearing regarding the propriety of either her initial commitment or her continued detention.

In 1962, when she had been held at Laurelton for six years, Clark reached the age of majority. Her commitment was not reviewed at that time. In 1966 the statute under which she had been committed was repealed. Her commitment was not reviewed under the provisions of the new statute. In 1976, when Clark had been detained at Laurelton for twenty years, the commitment provisions of the 1966 statute were held to be unconstitutionally vague. See Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa.1976) (three-judge court). The Goldy court issued an order establishing new and stricter standards for involuntary commitments. Id. at 649-50. Clark’s commitment was not reviewed under these court-ordered standards. Neither the Commonwealth defendants nor the County defendants have any established procedure for initiating judicial review of indefinite, involuntary commitment, either when the committed person requests such review or when members of institutional staffs conclude that the person no longer needs institutionalization. Both Clark and members of the institutional staff periodically requested judicial review of her commitment, but such review never occurred.

The professional staff at Laurelton, including Clark’s treatment team, has agreed, at least since 1976, that Clark did not belong there, but should have been transferred to a community residential facility where she could learn to live independently. The stipulation of facts details the various steps that have been taken since 1976 by staff members to convince the Commonwealth defendants to place Clark in a less restrictive environment than Lau-relton and to obtain a hearing on her commitment. All of those efforts were in vain. The trial court found:

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.

613 F.Supp. at 689.

Thus we are dealing with a plaintiff who was committed without notice or a hearing as the result of a petition containing an incorrect diagnosis, and who was retained against her will without a hearing for over twenty-eight years. Moreover we are dealing with a plaintiff who repeatedly requested that the persons in charge of her detention arrange for such a hearing, requests which were endorsed by the professional staff of the institution. Finally, we are dealing with a plaintiff as to whom the professional staff of the institution recommended against the kind of treatment to which she was subjected. The trial court concluded that Clark’s continued commitment at Laurelton violated procedural due process in that she never received an adequate hearing as to the propriety of her continued confinement. See 613 F.Supp. at 701. The trial court also concluded that Clark’s substantive rights not to be unnecessarily institutionalized and to receive the minimally adequate training that was the only purpose for her commitment were violated. Id. at 705.

(1) Procedural Due Process

Clark contends that her initial commitment in 1956 violated due process. The trial court did not rely on any process deficiency in the original commitment. See 613 F.Supp. at 698. The court concluded, however, and we agree, that due process required periodic reviews of her continuing need for institutionalization. Id. at 698-701. Periodic reviews are required because if the basis for a commitment ceases to exist, continued confinement violates the substantive liberty interest in freedom from unnecessary restraint. See O’Connor v. Donaldson, 422 U.S. 563, 574-75, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975). As the Supreme Court has declared, “due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972). See also McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249-50, 92 S.Ct. 2083, 2086-87, 32 L.Ed.2d 719 (1972); Rennie v. Klein, 653 F.2d 836, 845 (3d Cir.1981), vacated on other grounds, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 (1982) on remand, 720 F.2d 266 (3d Cir.1983). In Parham v. J.R., 442 U.S. 584, 607, 99 S.Ct. 2493, 2506, 61 L.Ed.2d 101 (1979), the Court confirmed that the need for commitment must be reviewed periodically by a neutral factfinder.

The Commonwealth conceded in the district court that Clark was entitled to periodic review of her commitment. See 613 F.Supp. at 700. It contended, however, that the review process afforded to Clark within the walls of Laurelton satisfied due process. That process consisted of medical and psychological reviews. As the trial court found, however, since at least 1976 those reviews consistently recommended that Clark be released from Laurelton, but the reviewers lacked the authority to implement their recommendations. The hearing required by the due process clause is not a moot court exercise. The hearing tribunal must have the authority to afford relief. See Parham, 442 U.S. at 607, 99 S.Ct. at 2506.

Thus the trial court did not err in holding that Clark has been deprived of her liberty to be free from commitment without procedural due process. Over the course of more than twenty-eight years she was never afforded a hearing before any decisionmaker with authority to resolve her dispute with those who were confining her.

(2) Substantive Due Process

The trial court also held that Clark’s confinement at Laurelton since at least 1976 in the face of unanimous professional opinion that she should be placed in a far less restrictive environment violated her substantive liberty right to appropriate treatment. See 613 F.Supp. at 706. This holding is consistent with Youngberg v. Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28 (1982), which sets forth “the proper balance between the interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints.” Romeo requires that restraints be imposed only to the extent required by the judgment of professionals in charge of the involuntarily committed, and that the involuntarily committed receive minimally adequate training. Id. at 321-25, 102 S.Ct. at 2461-63. See also Thomas S. v. Morrow, 781 F.2d 367 (4th Cir.1986).

The stipulated facts establish that Clark was confined at Laurelton rather than released to a CLA, and was deprived of the training for community living that she could have received at a CLA, despite professional judgment, unanimous since 1976, that she should be released from Laurelton and receive such training. Based on these findings, we agree with the district court and hold that her substantive liberty right to appropriate treatment under Romeo was violated.

IV.

This appeal is not moot. The eleventh amendment does not bar the relief that was ordered. The trial court’s findings of fact amply support the legal conclusion that Clark’s procedural and substantive due process rights were violated. The judgment appealed from will therefore be affirmed.

Footnotes

1

. The relationship between the counties and the Commonwealth with respect to community living arrangements is described in detail in Hald-erman v. Pennhurst State School & Hosp., 612 F.2d 84, 92-93 (3d Cir.1979) (en banc), rev'd and remanded on other grounds, 451 U.S. 1,101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).

2

. The Philadelphia Inquirer, February 2, 1986, § I, at 1, col. 1.

3

. Clark suggests that the relief afforded to her was required by section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1984). The trial court rejected this contention. See 613 F.Supp. at 690-96. Section 504 prohibits discrimination against the handicapped in federally funded programs. It imposes no affirmative obligations on the states to furnish services. See Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979); Kentucky Ass’n for Retarded Citizens v. Conn., 674 F.2d 582, 585 (6th Cir.1982), aff’g, 510 F.Supp. 1233, 1243-44 (W.D.Ky.1980); Halderman v. Pennhurst State School & Hosp., 612 F.2d 84, 120-21 (3d Cir.1979) (en banc) (Seitz, J., dissenting), rev’d and remanded on other grounds, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); Sabo v. O'Bannon, 586 F.Supp. 1132, 1137 (E.D.Pa.1984); Manecke v. School Bd. of Pinellas County, Fla., 553 F.Supp. 787, 790 n. 4 (M.D.Fla.1982); Garrity v. Gallen, 522 F.Supp. 171, 209 (D.N.H.1981). The district court found that Clark failed to prove that she was discriminated against on the basis of her handicap. That Ending is not clearly erroneous. Thus section 504 does not provide a statutory ground for affirmance which would avoid the necessity of reaching the constitutional law issues on which she prevailed.