Kremens v. Bartley

LOCATION: Charles R. Drew Middle School, formerly Charles R. Drew Junior High School

DOCKET NO.: 75-1064
DECIDED BY: Burger Court (1975-1981)

CITATION: 431 US 119 (1977)
ARGUED: Dec 01, 1976
DECIDED: May 16, 1977

Bernard G. Segal -
David Ferleger - for the appellees
Norman J. Watkins - for the appellants by Bernard G

Facts of the case


Media for Kremens v. Bartley

Audio Transcription for Oral Argument - December 01, 1976 in Kremens v. Bartley

Warren E. Burger:

We will hear arguments next in 1064 Kremens against Bartley.

Mr. Watkins, you may proceed whenever you are ready.

Norman J. Watkins:

Mr. Chief Justice, may it please the court.

With the court's indulgence I would like to initially note that I intend to submit the jurisdictional issues that I raised, however, I of course will answer the questions, the court might have that includes the Habeas Corpus issue and the Eleventh Amendment issue.

I intend to devote my entire argument time to the merits.

William H. Rehnquist:

Do you intend to discuss the way you now have your argument plan, the question of the class that was before the court?

Norman J. Watkins:

I had not intended to discuss it, in connection with the mootness issue?

William H. Rehnquist:


what I am interested in is this and if you don't intend or plan to discuss, just really do not feel obliged to -- as I read the District Court's opinion, at no time since the beginning of this litigation have any of the plaintiffs in the action have been less than 13 years of age and as I read the District Court's opinion, now their Pennsylvania regulations which provide for treatment of 13 olds in a much different manner than those under 13.

Norman J. Watkins:

That is correct.

However, I believe that members of the class clearly are under the age of 13.

William H. Rehnquist:

Well, but can named plaintiffs all of whom are over 13 represent a class which includes people under 13, if in fact the law treats one differently than the other.

Norman J. Watkins:

Well, I think it can in this case Your Honor because the court when defining the class, also noted certain unmentioned individuals but patient numbers I believe some of those in the record were under the age of 13.

William H. Rehnquist:

But there was no named individual.

Norman J. Watkins:

That is correct, that is correct.

This suit was commenced in 1972 when the five named plaintiffs challenged their admission to Haverford State Hospital which was initiated under sections 402 and 403 of Pennsylvania's Mental Health Act and allowed generally parents to admit their children upon the advise of a recommending psychiatrist or physician whichever was appropriate.

The lawsuit basically challenged under the Due Process Clause of Fourteenth Amendment, the authority of their parents and the physician to commence and effectuate this admission without the full panoply of Due Process.

In Pennsylvania under sections 402 and 403, a parent may admit his child provided that medical recommendations are concurrent with that desire. Shortly after the litigation was commenced as Mr. Justice Rehnquist was alluding to earlier, regulations were adopted by the defendants which greatly expanded the rights of children under the Mental Health and Mental Retardation Act.

Generally those regulations and they are set out in full provide that a child over 13 is given elaborate notice and upon objection either written or oral, is automatically appointed counsel if he is unable to afford counsel and is provided a full adversarial hearing within which to contest both a parental recommendation and the medical recommendation.

The notice which is provided to child and must be explained to the child its extremely detail, provides the name of the physician who is recommending the commitment and provides the name of the applicant, the counsel, how to get a hold of counsel and various other procedural protections.

Moreover, in Pennsylvania now and shortly after the lawsuit, an admission of a child may not proceed on the basis of one medical recommendation alone.

It must be independently concordant by a second medical recommendation, plus it's under statement to say that in Pennsylvania, there are certain legal impediments for a parent who is intent on dumping a child in an institution.

The Lower Court view extensively both the statute and the regulations and held that both together fail to meet constitutional muster.

There was one judge dissenting holding basically that the regulations when viewed in the proper context of parent-child relationship involved in this case did indeed meet constitutional muster.

For this court, there are primarily two issues on the merits of this case.

First, does the liberty interest that is involved in this involved the child's liberty interest, in the proper context warrants further protection under the constitution of this country.

If the statutory and regulatory --

Warren E. Burger:

Further in relation to what?

The old procedures or the new ones?

Norman J. Watkins:

The new procedures and the old procedures, taken together, the statute and the regulation.