Kremens v. Bartley

PETITIONER:Kremens
RESPONDENT:Bartley
LOCATION:Charles R. Drew Middle School, formerly Charles R. Drew Junior High School

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

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

ADVOCATES:
Bernard G. Segal –
David Ferleger – for the appellees
Norman J. Watkins – for the appellants by Bernard G

Facts of the case

Question

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:

No.

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.

Norman J. Watkins:

I think the record is very clear Mr. Chief Justice that the court and certainly the dissent exhaustively studied the regulations and considered them in its opinion.

As I recall the Lower Court’s opinion, they rejected the regulations primarily because one, they did not applied to children under 13 and two, they did not provide a time certain when the adversarial hearing would take place.

Potter Stewart:

Because now you have it in statute?

Norman J. Watkins:

There is a new statute that applies only to the mentally ill and as I pointed out, that is approximately 20% of the plaintiff class.

Potter Stewart:

The rest being mentally retarded.

Norman J. Watkins:

That is correct Your Honor.

And the new statute changes in no way whatsoever, the relationship of the child-parent state who is under 14.

So for all intention purposes, a very small portion of the plaintiff class has been affected by the intervening legislation.

The question is, is this statutory and regulatory framework deficient?

Are parents to be limited in the mental health area where they certainly are not in the physical health area?

Surely, if I as a parent seek to admit my child for a serious physical element that may require total incarceration, an Rh-negative problem or something where I have no antibiotic and any ability to ward off diseases, surely, no one would contend that a hearing must proceed that recommendation.

William H. Rehnquist:

Well, is not there a question, Mr. Watkins, before you get to the question what kind of a hearing you have, or as to whether there is any state action here – the stilt is depriving anybody of liberty?

Norman J. Watkins:

The question as I am approaching and I agree with you is whether or not there is a liberty interest involved at all here?

The conflict was the court — lower court failed to perceive and I believe this is what you are getting to Mr. Justice Rehnquist, the conflict is between the parent and child, not between the parent and state.

In effect, there maybe no state action as compared to the Gault situation where you have got a state coming into the family and taking the child.

However, it is clear that the state is treating the patients and the plaintiffs pursuant to state law and the state is in fact holding the plaintiffs.

William H. Rehnquist:

Well, is it that clear, what happens if a child runs away from one of these institutions?

Certainly they do not issue a bench-warrant.

Norman J. Watkins:

Well, there are enough set procedures but that is possible.

First obviously the parents would be notified.

In fact — well, it could run the gamut of calling the police.

William H. Rehnquist:

Is there some in the record about this?

Norman J. Watkins:

I do not believe so.

Warren E. Burger:

Would it stand any different from what it would be if the parents reported missing a child and the police follow their procedures and pick the person up and return him to the family.

Is that about what is done with the institutional —

Norman J. Watkins:

That is correct.

I think it would certainly be an ad hoc procedure.

I am sure that in some counties if a child ran away from the general hospital, the police are called, the parents are called.

The police may well return the child to the hospital especially if the child is in hospital garb for instance.

Warren E. Burger:

In Pennsylvania, if the parents with their private physicians take a child within this age category to a private hospital, private institution.

Warren E. Burger:

Is there a state action?

Norman J. Watkins:

To a private institution?

Insofar as the private institutions are regulated by the Common Wealth of Pennsylvania and must conform their activities, that is they must abide by the regulatory scheme that we have established.

For instance, a private facility such as the Deveraux school under Pennsylvania law must abide by the regulations that were promulgated.

Now, I am not going to stand here and say that, that is the same as a line authority.

There is a great and vast difference, but they certainly must conform to state law and the state has the power of listing a license.

William J. Brennan, Jr.:

What does that mean?

I mean Deveraux as what?

So many physicians, so many nurses, such physical facilities?

Norman J. Watkins:

Well, there are certain qualitative regulations but primarily I appertained with the procedures.

They must follow the procedures that we establish for admission.

They must follow the procedures for admission.

William J. Brennan, Jr.:

Precisely as a public institution?

Norman J. Watkins:

That is correct, that is correct.

Lewis F. Powell, Jr.:

Mr. Watkins, are all of the institutions named in this case, public institutions?

Norman J. Watkins:

No.

There are institutions discussed in the record that are private institutions.

Lewis F. Powell, Jr.:

But are they named bodies?

Norman J. Watkins:

I do not believe they are. Haverford State Hospital is a public institution.

Lewis F. Powell, Jr.:

So the named bodies of public institution.

Norman J. Watkins:

That’s correct, that’s correct.

John Paul Stevens:

You contend that the issue is here any different with respect to a private placement as opposed to a public placement, that is the nature of the institution.

Norman J. Watkins:

With respect to state action or with respect to the company?

John Paul Stevens:

In any respect?

Are they issues the same if the child has placed in Deveraux as if he is placed in a state hospital?

Norman J. Watkins:

I think not.

I think that I must back up and say that it is our contention, the Commonwealth contends that when it is a parental, a joint decision between the parent and the doctor, the parent has the authority to admit anywhere, public — well, let me correct myself.

The constitutional issues certainly are the same. I would view them the same.

The problem with the Lower Court’s decision and the fundamental error that it made, was it in somewhat simplistic fashion I think, applied this Court’s rationale in Gault to a situation where Gault clearly doesn’t doesn’t apply.

Gault analyzed a conflict between the child, the parents and the state which was imposing incarceration upon the child without notice to the parent, yanking the parent and the child, if you will, from the family scene into an institution.

Norman J. Watkins:

There can be nothing that is more close to a criminal proceeding than that.

I don’t want to get hung up on the criminal civil label, that’s not the critical thing here.

What takes place in a delinquency proceeding is a finding of guilt.

The question is did this occur, is it illegal and did the defendant do it or did the juvenile do it.

That’s not at all the issue in a commitment proceeding or admission proceeding.

The critical findings are whether or not this child is indeed mentally ill and whether or not in the professional recommendation of the physicians, this child needs inpatient psychiatric or psychological care.

I fail to see where an intervening hearing is going to fail safe that proceeding.

Thurgood Marshall:

Where do you get at the age 14?

Norman J. Watkins:

That’s very good question.

It’s our view that and I think the cases throughout the country clearly demonstrate this that adults, adults, a competent adult has the right to reject medical treatment.

Thurgood Marshall:

Any of Pennsylvania’s adult 14?

Norman J. Watkins:

Well, for the purposes of Mental Health Act, yes, 14-year olds and above are treated exactly as adults.

Thurgood Marshall:

And what other ways it treated as an adult?

Norman J. Watkins:

In most other ways, in most other ways —

Thurgood Marshall:

Can he drive a car?

Norman J. Watkins:

No he can’t, no he can’t.

Thurgood Marshall:

Can he drink liquor?

Norman J. Watkins:

No, he can’t Mr. Justice Marshall.

Thurgood Marshall:

What the adults could do there, you just say for the purpose of put him into institution he is an adult?

Norman J. Watkins:

That’s correct.

The Pennsylvania legislature has decided that and I think on sound expert opinion, that the age of 14 is about when an objection to a certain types of treatment would be reliable.

The record in fact contains testimony that 13, 14, that age is about when a child can determine his own destiny.

Now unfortunately, and some of you may disagree with Pennsylvania legislature, does juvenile will drink, drive and vote, but be that as it may in answer to your question, the determination at an involuntary proceeding, I submit is not whether or not, the judge isn’t determining whether or not this patient needs care.

The judge is determining is this patient able to reject that care.

Does he know what he is doing when he rejects that care?

If he does, that’s his business.

Certainly no one can force me to have my broken leg fixed, if I don’t wish to have it fixed.

That issue doesn’t arise in a juvenile —

Potter Stewart:

On the other hand if you are dealing with either mentally ill people or mentally retarded people, even adults have some question about their ability to make decisions through themselves?

Norman J. Watkins:

That’s correct.

Norman J. Watkins:

Of course that creates a presumption problem.

Warren E. Burger:

That’s right.

Courts have found guardians (Inaudible) in some of the situations, is it not?

Norman J. Watkins:

That’s absolutely correct Mr. Chief Justice.

Warren E. Burger:

I think the subject whether adults or minor is not capable of making the judgments necessarily alone.

Norman J. Watkins:

Absolutely correct!

However in this case, which you have got, is the lower court saying, we are going to presume that parents can’t make this decision.

We are going to presume that a strange lawyer or public defender is better able to make this decision.

We are going to presume that the efficacy process is better able to workout, what is admittedly and concededly an extremely difficult family decision.

This is a decision that many families have to go through.

The lower court’s order has kind of effectively raised an adversarial barrier that I suggest is worthless in terms of its goal.

It’s goal is admittedly to prevent erroneous commitments.

However, the record in this case doesn’t show one erroneous commitment.

The court pointed to not one erroneous commitment.

The court said that it may occur and that the parents may act against the best interest of their child.

Well, the parents may act against the best interest of their children by sending them into a military academy, but that is not necessarily a basis upon which to impose an adversarial proceeding that requires parents deciding on long-term education plans for the children to appoint a lawyer for the child, and let’s flush this out in court of law.

Warren E. Burger:

Or the choice of a private school against the public school or vice versa?

Norman J. Watkins:

Absolutely correct, absolutely correct.

This case differs from what the lower court viewed and I’ll conclude with this remark.

The lower court applied Gault in toto, just slapped the order of Gault right over, right over this fact situation totally ignoring the fact that the parents instituted this proceeding, the parents decided, I want my child in an institution along with a medical recommendation.

The court ignored that and viewed it as if the state had come in and said to the parents your child will be —

Warren E. Burger:

That’s why you say that the appropriate remedy is the case by case treatment by way of a habeas corpus proceeding?

Norman J. Watkins:

Absolutely, absolutely, Pennsylvania clearly provides that.

Warren E. Burger:

But you can’t generalize about such a sensitive problem such as that —

Norman J. Watkins:

Not only can but should.

The lower court’s decision is totally unwise in its breadth and scope.

For instance it lumps mentally retarded and mentally ill together.

There is a tremendous amount of questions the way that was watched.

Thank you.

Potter Stewart:

This case was decided on Fourteenth Amendment?

Norman J. Watkins:

Exclusively.

Potter Stewart:

You just point it out that it was — everything happened was at the behest of the parents.

I was wondering where is the state action because of the Fourteenth Amendment of course applies only as against a state?

Norman J. Watkins:

Well, the parents couldn’t have the effectuated the commitment without the concurrence of the state in a state facility and as the state law pursuant to which the state —

Potter Stewart:

Is parents’ decision to send a child to public school is safe decision?

Norman J. Watkins:

No absolutely not.

However, here you have got state psychiatrist examining the child and recommending the care.

William H. Rehnquist:

Well, there you have state teachers presumably in a public school?

Norman J. Watkins:

Excuse me Mr. Justice Rehnquist, I didn’t —

William H. Rehnquist:

In Justice Stewart’s hypothesis of sending a child to a public school you have got state teachers or county teachers, they may have recommend that the kid go to that school, why is that any different?

Norman J. Watkins:

Well, they may and I assume — possibly if that were a part of the system, if before you could put your child in a public school let’s say, you have to go to the school and school had to say we want your child, your child needs us, that’s a little more state action than the present system which is I am living in this district, I am going to send my child to that school —

Potter Stewart:

You didn’t raise any question, excuse me?

Thurgood Marshall:

Probably still the child comes home?

Norman J. Watkins:

That’s correct, Mr. Justice Marshall.

Potter Stewart:

Where is the state action, did you raise this at all?

Norman J. Watkins:

This issue was not raised at the trial court level.

Potter Stewart:

Or haven’t till I just asked the question?

Norman J. Watkins:

I believe that I recall in one of the early colloquies.

I of course did not try the case, but I believe one of the early colloquies between the courts there was some discussion of it.

The resolution I think was entirely correct.

You’ve got state institution, the state psychiatrist recommending the treatment and in many cases concededly, strongly recommend the treatment.

John Paul Stevens:

Mr. Watkins before you sit down, you started by saying they were two issues you were going to talk about; one was whether there was an impact on liberty as I understand it, I never did understand what the second —

Norman J. Watkins:

The second issue is assuming that there is an impact on liberty, was lower court’s order justified and just briefly there is a checklist which are more fully and I was —

John Paul Stevens:

Was this the proper procedure —

Norman J. Watkins:

That’s correct, I mean, is it unwise in its breadth, its unsound in its scope, thank you very much.

Warren E. Burger:

Very well.

I think Mr. Segal is going to continue with the —

Bernard G. Segal:

Mr. Chief Justice and may it please the Court.

The Supreme Court of Pennsylvania begins the first year of its Third Century in an unprecedented role in appearing this Court.

It is the first time and to that extent unique and perhaps emphasizes the importance.

Bernard G. Segal:

It appears here in its administrative role under Article 5 of our new constitution.

I say new, it was adopted in 1968 and we are going to still getting accustomed to some parts of it since it replaced a constitution almost a century old.

Under that constitution, the Supreme Court is completely responsible for and mandate and the constitution mandates it or make to exercise supervisory and administrative authority over all the courts of Pennsylvania.

The constitution is quite specific in listing almost everything at least that I as the draftsman of that provision could think of that courts do.

So that the Supreme Court would become as indeed of this — the administrator of the Courts of Pennsylvania under the constitution that appoints an administrator and has done so and a distinguished former Justice of our Supreme Court who sits in this room.

But, if the appearance of the Supreme Court in this court is unique, even more unique is the action of the District Court in this case, and I think I am safe at least to the extent that the research of my associates and I go in saying that there is no case in which a Lower Court has conceded that there is no constitutional mandate upon it to call upon to command the state courts to take action and nevertheless did so, and did so in a drastic and completely absorbing manner.

The case proceeded through its entire trial, through the entire argument without so much as of unmentioned of the use of the courts, and even when it first appeared in our brief, we said that it first appeared in the proposed order of the plaintiffs that is not correct but appeared shortly before that as a footnote in the opinion of the court without any comment by the court.

The court just blindly said, until the legislature acts, we command, then used those words until a legislature acts, the state court system shall carry on.

They used the words initially and till it creates an unbiased tribunal.

In the final order it says, until the state legislature creates an alternate neutral tribunal and indeed my friend in his complaint simply asked for a disinterested and impartial decision maker.

And then comes this footnote, then comes the order as a complete surprise to anyone.

There is this mandate to the courts and there is no mandate to the legislature indeed.

If there would have been an incentive on the legislature to act.

For example they had followed the accustomed procedure assuming their right substantively of simply saying this is the mandate to the Commonwealth and unless the Commonwealth acts, then all these people would be released.

The public clamor would have made the legislature act.

Today, there can not be any clamor, the District Court in its wisdom has said that this shall be saddled upon the state court system.

Now, it has been said that — may I ask Your Honors after my friend finished, he was asked questions by the court.

I had thought I had ten minutes in my debate.

Warren E. Burger:

You will have ten minutes.

Bernard G. Segal:

Thank you sir.

Because I really think it is a very important matter to the court.

The defendants, the Attorney General in his exceptions to that order made clear to the court his contention that this was outside the jurisdiction of the court.

Now, this court has said so in many opinions.

I refer primarily to Younger against Harris, where this court really pulled together the philosophy, pointed out that comity demands that the Federal Government would never interfere with state court systems unless under constitutional mandate and even then, with a greatest of reluctance.

Now, I just quote one sentence, the most important the notion of comity, that is a proper respect for state functions and then the court later says, and a continuance of the belief that the national government will fair best if the states and their institutions are left free to perform their separate functions in their separate ways.

I said to Your Honors that this is unique, why?

Here is a court that concedes but there is no constitutional mandate that the courts take this up.

Indeed it says until a legislature creates a neutral administrative tribunal and nevertheless it mandates the courts.

I may say mandates them in such a way that if the courts take up this task, they can do nothing else, for months ahead as the telegram from the Chief Justice of Pennsylvania to this court specifically said in describing the overwhelming and disrupting of the judicial system of Pennsylvania as he described it, which this would call us.

Nevertheless, drastic as it is on the Courts of Pennsylvania, I suggest to Your Honors, that it is a more drastic deviation, a more drastic disregard of the mandates of this court, of the preachings of this court almost from its very beginnings at least from Chief Justice Marshall up to this court which has on three different occasions made clear that there will be no change in that rule.

Bernard G. Segal:

Now, I might say to Your Honors that there is a very serious question, whether forgetting the interest of the court system of Pennsylvania, the District Court did not disregard the interest of the people whom it really intended to help.

Whether the order would not create more harm than help for these youngsters.

I may say I happen to agree with Mr. Justice Rehnquist that the talk about 13 and 14 year olds does not represent the 1 and 2 year old anymore than a 14 year old child is represented by a 16 year old child that the question is can you drive when you can drive at 16, or an 18 year old child who can vote represents a 14 year old child who can not vote and so on, in states where 18 has become the voting age.

Now, my view is supported, and I believe this from the beginning when we got the brief of the most distinguished people in America on the subject.

The American Psychiatric Association, the American Society for Adolescent Psychiatry, the American Academy of Child Psychiatry, the American Association of Psychiatric Services for Children, all have said that this kind of adversary proceeding far from providing the ideal forum for such determination has a very great potential for harm to many individuals, particularly the younger individuals.

Warren E. Burger:

Is the state judge under this mandate given any discussion about not requiring the child to be present?

Bernard G. Segal:

No there is nothing said about that.

Warren E. Burger:

Mandated to have the subject of the proceeding present in the courtroom.

Bernard G. Segal:

Yes.

Now, there is a waiver of some provisions permitted provided that counsel joins in it but he must first get counsel and these experts say Your Honors that an administrative model for tribunal that reviews such matters maybe the most effective and it happens, the American Psychiatric Association suggests a psychiatrist, a lawyer and another mental health professional.

The Solicitor General of the United States has filed an amicus in which she takes the same position and suggests an independent board of psychiatrist or other professionals.

But, I submit to Your Honors and I do not draw on my own experience which in this field has been rather considerable with institutions, that I do not think you can find an honest disagreement on the part of the profession, or at least the group of people in the profession.

Now, Your Honors, there are some points made by the defendants I believe, they are answered but we did not seek to become a party, it seems to me crystal clear that I see the white light is on, but I have two minutes according to my stopwatch.

And I think your lights are out of guilt Mr. Chief Justice.

Warren E. Burger:

They seem to be.

Bernard G. Segal:

First, they argue that the Supreme Court did not ask to be a party.

Well, for heaven’s sake, why would they ask to be a party when the plaintiff in its complaint asked for an administrative tribunal when the court never so much has mentioned to District Court that the courts would be involved until the opinion came down.

When the opinion came down, nothing happened, until three months later.

There was communication, almost three months, with the administrator’s office.

Second, they say that the court never really had a chance to rule on this question.

Now that’s not correct of course, because as I said the defendant’s exception specifically raised it and finally they take the wholly unwarranted position and I quote, the Pennsylvania Supreme Court indicated that it would provide the hearings contemplated in the proposed order.

What actually happened is a legal assistant in the administrator’s office wrote a letter in which he said in which he said the courts would cooperate and provide for special masters.

Well, it so happens first of all, that special masters would be invalid under the constitution of Pennsylvania, if they were given decisional authority and second, when it came to the Supreme Court, they just dismissed that out of hand and when you put in that special masters, the administrator had a commitment from Judge Hewitt, that Judge Hewitt would call him and would discuss these matters with him.

Instead of that Judge Hewitt called him one day and said “my order is being entered today, I am sorry but I have got to enter it so that people can appeal and I am sending you my order”, and the administrator wrote to him saying, “In view of that, we simply can’t handle it in the court of Pennsylvania” That is the whole story, Your Honors.

I suggest that the District Court acted without precedent.

It acted unwisely, it acted unnecessarily.

Its own opinion shows that administrative tribunal would have done.

If I were the judge, what I would simply have said is, assuming I was correct in a substance, that it is up to the Commonwealth of Pennsylvania to provide the hearings and if it does not, I would give what the results would have been.

I submit to Your Honors that at least in this respect, the order must be reversed.

Thank you.

Byron R. White:

What was wrong in saying that the procedures reported were inadequate?

Bernard G. Segal:

I do not think it was, I mean.

Byron R. White:

A declaratory judgment aspect of the case, was this Due Process holding wrong or what?

Bernard G. Segal:

Well, it happens I think it is wrong but I am not arguing that point but I said if it were right, Mr. Justice.

Byron R. White:

Well, I understand that but what is your position, what is the Supreme Court position on the Due process for it?

Bernard G. Segal:

Well, I would hesitate to talk about that.

I could only give my position because it is a court and it may come up do it in some other form.

My own position Mr. Justice White is very clear that the.

(Inaudible)

Bernard G. Segal:

Well, thank you.

Warren E. Burger:

Mr. Ferleger.

David Ferleger:

Mr. Chief Justice and may it please the court.

The general issue in this case of whether the state may upon parental application institutionalize involuntarily and indeterminably juveniles in mental institution is a very great one and I think if the importance and implications of any rule in this matter demand that the court be aware of what is not before it and how narrow the issues in this case actually are.

This case does not involve the issue of whether private facilities which are truly private, even if the mental health facilities must have hearings before a child is committed.

Pennsylvania law cited at page five with the one of my opinion makes it clear that on your Pennsylvania law of private facilities are required to use the provisions of the statutes that are involved here.

This case is unlike the Jackson versus Metropolitan, the electric case where all you had was a general state regulation and no action by the state regarding requirements or hearings before electricity terminations.

This case does also not involve the standard of commitment where they have to be dangerous, severely, mentally ill to be committed.

The court made that very clear in footnote 4 of its opinion.

The case does not involve the self incrimination issue, kind of potential mental patient be forced to testify against him or herself.

John Paul Stevens:

Mr. Ferleger, Let me just interrupt a second.

Did you say it does not involve the private placement question but if as you say they are required by state law to follow the procedure which you say is inadequate.

Would they not be acting under color of state law and accepting a challenge?

David Ferleger:

Yes.

John Paul Stevens:

And therefore are we not necessarily, if we decided one way or the other necessarily deciding the private question as well?

David Ferleger:

With regard to Pennsylvania as well, I do agree that private facilities in Pennsylvania are acting under color of state law.

There are others so.

John Paul Stevens:

We are already deciding that question in Pennsylvania in this case.

David Ferleger:

That is correct.

There are other states, however, in which private institutions function just as any mental hospital, or any general hospital that is public, that’s private.

So that in some states, private institutions in affirmance, in this case would not affect those states at all.

William H. Rehnquist:

Well, you say you agree that they are acting on a color of state law, actually you are contend that they are acting under color of state law, don’t you?

When you wanted them embraced in the decree.

David Ferleger:

That is correct.

Your Honor, the facilities that are covered by the Pennsylvania Mental Health Statute, the word facility itself is defined in the act as including private as well as public facilities.

No person can enter any hospital, mental hospital in Pennsylvania except under the statutes that are challenged in this case.

William H. Rehnquist:

And you contend that makes the action of the private facilities when they follow the state law, state actions.

David Ferleger:

That is correct.

Potter Stewart:

I did not understand maybe I misunderstood.

I thought your point, simply was that as a matter of state law Pennsylvania requires a private facilities, provide the same procedures as do public facilities, got therefore any decision in this case, respecting public facilities, were as a matter of state law affect the private facilities in Pennsylvania.

It is not unlike — it is not a matter of acting under color of state law, they are just simply bound as a by a state law or behave the same way.

Is not that?

David Ferleger:

Justice Stewart, I would agree I think that both are alternative grounds that end up with the same result.

Potter Stewart:

But the only way a private organization can hold a present against his will is by virtue of state he is already in?

David Ferleger:

That is correct.

Potter Stewart:

He cannot get out.

In other words it is same by virtue of state law.

It is not merely requirement but it is a protection for the private institution from a supra false imprisonment something like that.

David Ferleger:

Yes.

Another issue that I submit is not involved in this case is whether a judicial hearing as opposed to administrative hearing is required.

The lower court contrary to Mr. Segal’s suggestion, never reached that issue.

The complaint which was filed four years ago, before the blossoming of mental health cases in the lower courts, did not request the judicial hearing and the entire issue which is in part an Equal Protection issue of whether a judicial hearing is required as opposed to administrative hearing was not specifically decided by the lower court.

Another issue that is not —

John Paul Stevens:

But again it is decided until the legislatures acts.

Paragraph 11 of the order says that you got to use state board system.

David Ferleger:

That is correct but that result Mr. Justice Stevenson and it was discussed in the early argument, is one that was inevitable by the declaratory judgment that the Lower Court entered.

Once the declaratory judgment is entered, the children could not be placed upon parental application.

The only way that a child could get into a mental hospital involuntarily except an emergency, would be through a court action.

The state courts through the declaratory judgment would have been holding all these hearings for new commitments in any case.

There was no additional burden that was placed upon the state courts, once the declaratory judgment entered and parents could no longer apply and have the state accept their children.

The state courts would have been holding all these hearings for children in any case and on the Pennsylvania law, children would have no less.

Byron R. White:

The legislature might provide a different hearings scheme.

David Ferleger:

That is correct.

Byron R. White:

Or could there be a hearing scheme in just without the legislation outside the court.

David Ferleger:

There could not have been a hearing scheme in my opinion without legislation.

Byron R. White:

You mean a mental health facility in Pennsylvania could not itself in responding to a judgment of a District court institute an administrative hearing on its own, that would satisfy Due Process.

David Ferleger:

That would satisfy the opinion in this case.

Byron R. White:

Yes, except for the paragraph that, except for the order that you are holding in the courts.

David Ferleger:

In my opinion not because with the declaratory judgment, the only provisions left for admission to mental hospitals where those under the statute and regulations and the Pennsylvania laws was clear that otherwise any mental facility could not admit anyone.

Thurgood Marshall:

Would have mentioned the original prayer–

David Ferleger:

Excuse me.

Thurgood Marshall:

With your original prayer, that’s all you are asking.

David Ferleger:

That is correct but that issue is not presented by the briefs or the facts in this case.

Warren E. Burger:

Do you agree with the state of Pennsylvania that referees could not be appointed by the state courts to perform the function mandated by the Federal court.

David Ferleger:

The state courts could certainly appoint the masters or referees to hold hearings.

As a matter of fact, in Pennsylvania under section 406, the court committed a law of section of this act.

In 1971 after Dickson versus Attorney General, that’s Pennsylvania Mental Health decision, the Supreme Court of Pennsylvania promulgated a specific rule allowing common pleas courts, trial courts in Pennsylvania, to appoint masters to hold mental health hearings.

When Dickson declared physician certification commitment provision unconstitutional, there were 14,000 people in Pennsylvania mental hospitals who needed hearings and who had to get reprocessed.

In this case there are about 8,000 or 9,000 presently committed children who need hearings.

Warren E. Burger:

Must they be reprocessing as they don’t want to be reprocessed?

David Ferleger:

No, Your Honor, I wanted to reply to that and to the question you ask Mr. Segal about presence of person.

The Lower Court is very clear in its opinion, and repeats a number of times that they do not expect a full hearing to take place every time a child was committed.

The lower court is very clear that the only things that cannot be waived are notice and counsel, however, a hearing can we waived, right across examine can be waived, the presence of person can either be waived by the child if the child knows what he or she is doing, or the court can say, and it is mentioned specifically in the opinion if the child is too ill to attend the proceedings, the children do not have to be taken to each of these hearings.

Potter Stewart:

No, the idea that anything can be waived is certainly nothing that this District court judge had to say, that is just a generally accepted laws, is not it?

David Ferleger:

The generally accepted law is, as I understand the laws that in criminal cases with exception of an unruly or disrupting —

Potter Stewart:

As long as knowing and expressed, you can waive anything.

David Ferleger:

That is correct.

Warren E. Burger:

How does a mentally ill 15 year old child consternate on a valiant waiver?

You said that the lawyer can waive for that child?

David Ferleger:

I will explain.

According to the Lower court’s opinion, the procedure for waiver is this.

David Ferleger:

If the court finds or the unbiased tribunal finds that the child is competent to make the waiver with counsel there, then the child can make the decision, however, if the court finds that the child is not able to make the decision, the counsel that has been appointed by the court is permitted to make the waiver.

Warren E. Burger:

That is actually quite a substantial hearing process to make just that preliminary determination might it not?

David Ferleger:

It could in some–

Warren E. Burger:

Psychiatric testimony?

David Ferleger:

It could in some cases.

Warren E. Burger:

Testimony of the parents?

David Ferleger:

But those questions are present Mr. Chief Justice, when an adult is committed, when a 35 year old severely retarded person is committed, when a husband attempts to commit a wife, those questions of competency to waive counsel or waive other procedure protections are all present and do not–

Warren E. Burger:

Do not the the psychiatrist indicate that there may be a difference between the traumatic impact on young children as against other mentally or emotionally disturbed?

David Ferleger:

I believe that the record indicates very strongly otherwise, and the briefs of the American Orthopsychiatric Association and American Psychological Association, I think, mostly indicate otherwise.

The experience in this kind of process–

Warren E. Burger:

Otherwise?

Do you mean that there is no traumatic–

David Ferleger:

No, what I mean is that the–

Warren E. Burger:

…impact on a 15 year old child that goes through a hearing process?

David Ferleger:

What I mean is that the trauma is no greater than that on anyone who goes through a mental commitment process, and what I mean is that whatever trauma there is, the trauma is less than being placed indeterminately in a mental institution with no process at all.

Lewis F. Powell, Jr.:

May I ask this question, are you defending that full range of procedural Due Process described by a District court?

David Ferleger:

At this point, Mr Justice Powell, and I was about to get to that, I am not to decide — I do not believe that that question is before this court.

The appellants in their brief did not discuss at all whether each and everyone of the requirements that the Lower court required are in their views proper.

The Lower court’s decision on whether parents have that power to make their kids without a hearing.

Lewis F. Powell, Jr.:

It is that not before us, what you perceive to be the central issue?

David Ferleger:

The central issue is whether some kind of hearing, hearing in counsel and notice, those very basic requirements whether that is necessary before a child can be committed.

Whether it’s 72 hours, or 48 hours, or two weeks, or a month, that is not before the court, whether the specifics of the waiver issue that is not before the court, all these issues are not before the court–

William J. Brennan, Jr.:

In paragraph 11, before us?

Paragraph 11 until a legislature establishes, orders an ultimate note to tribunal, declared that the present facilities, the commonwealth court system be used, is that before us?

David Ferleger:

Mr. Justice Brennan, I do not believe it is for the reason that I will explain.

In Page 8A in the appendix to my brief, the letter that Mr. Segal referred to–

William J. Brennan, Jr.:

Now give me a minute.

Well, you have so many briefs in this case?

David Ferleger:

It is a white brief.

Warren E. Burger:

What page you are going to?

David Ferleger:

One of the white briefs Mr. Justice.

Warren E. Burger:

What page again?

David Ferleger:

At Page 8A at the appendix, is a letter that Mr. Segal referred to as being from an administrative system.

This is part of a correspondence between a District court and a state court administrator.

There was every attempt to be cooperative and you will note that the date of this letter which begins at Page 5A is October 15th, a month and two days before the final order was entered.

And at Page 8A, the court administrator told the three-judge federal court, we are where that perhaps 5,000 hearings or more may have to be conducted within the next several months, and are preparing to shoulder that hearing responsibility with full cooperation from Your Honorable Court, on Page 10A, the federal court responded, and in the third paragraph said, I know that you said in your letter, you are preparing to implement our opinion.

Now, the order in that paragraph that you refered to Mr. Justice Brennan was entered with no intervening communication from the Pennsylvania Courts.

Pennsylvania Courts had told he federal court–

Lewis F. Powell, Jr.:

After this correspondence?

David Ferleger:

That is what.

At that correspondence, we are preparing to implement your opinion, and the order was entered and then after the order was entered, the objections came in a letter that was used later.

William H. Rehnquist:

Well, you said several things are not before us in response to questions from my brothers Brennan and Powell, yet you are asking the court to affirm the judgment of the District Court across the board, are you not?

Warren E. Burger:

That is all.

David Ferleger:

We are asking the court to affirm the judgment across the board with the caveat that the court is not deciding the very detailed specifics of Due Process.

I think that this court can say that the Due Process–

William H. Rehnquist:

And how can we affirm the judgment of the District court which contains details specifics of Due Process without deciding that those are required by the constitution?

David Ferleger:

I think the reason is that the jurisdictional statement and the issue raised by the appellants in this case was not whether all those specifics apply, but whether the parents-state-child relationship allows a commitment without any kind of hearing at all.

Byron R. White:

What’s in the jurisdictional statement is whether or not the retroactive injunctive relief granted by the Lower court is improper?

David Ferleger:

Right that, that–

Byron R. White:

That is pretty gentle, pretty general question.

David Ferleger:

I think that if you — an examination of the arguments that are made with regard to that question are not with regard to the specifics, but with regard to the Preiser v. Rodriguez issue.

That question did not involve–

Byron R. White:

You say that however far this question might reach it should be interpreted by reading the briefs?

David Ferleger:

Not, what I am saying is that the issue that is presented by that question with regard to the retro-activity is only in my reading of it with regard to the Preiser v. Rodriguez issue and the retro-activity issue.

Byron R. White:

Well, do you think the question is here is whether or not the Pennsylvania procedures comport with Due process?

Do you think that question is here?

David Ferleger:

Yes.

Byron R. White:

Where?

In what question?

David Ferleger:

The first question I believe it is.

Byron R. White:

The first question is whether the parents may waive the constitutional rights of juveniles.

David Ferleger:

That is right.

William H. Rehnquist:

Is not it necessary in answering that question to decide what the constitutional rights of juveniles are?

David Ferleger:

Yes but I think it is not necessary, maybe this will clarify it to go further than saying that a juvenile is entitled to some kind of hearing, and not I do not think it is necessary to go into everything that the hearing involvsd.

William H. Rehnquist:

Well then, I do not see how you can affirm the District court.

David Ferleger:

Well, one alternative would be to simply — I think that this court can state that the District court’s requirements are a hearing that would be permissible under the constitution without deciding whether or not the hourly requirements and the days and the presence –.

William H. Rehnquist:

But the District Court has no business imposing its standards on the state of Pennsylvania unless they were mandated by the constitution.

It is not just a question of discretion or reasonable choice.

David Ferleger:

Well, our position is of course those are mandated by the constitution in my — what I was–

William H. Rehnquist:

We would have to so hold that we affirm the judgment?

David Ferleger:

I am not certain of that.

I think that the court can make it clear that as in Jackson versus Indiana, where the court said that you cannot commit the deaf-mute retarded person for some indeterminant term until he becomes competent.

The court specifically said that no specific time requirements would be imposed.

William H. Rehnquist:

But there, we were reversing a judgment that said there were no requirements.

That is different than affirming a judgment which says there are a number of requirement.

David Ferleger:

I see that there is a difference.

Thurgood Marshall:

What are you going to say, we have supervisory powers with the courts of Pennsylvania or something.

David Ferleger:

No I don’t, I don’t really —

Thurgood Marshall:

Where do we get the authority?

David Ferleger:

The authority in the paragraph Mr. Justice Brennan referred to just say that the courts should hold the hearings into legislature acts.

I don’t think that that issue is before the court, if the issue —

Thurgood Marshall:

Well within the judgment?

David Ferleger:

Yes.

Thurgood Marshall:

And is the judgment here?

David Ferleger:

Yes, the judgement is here.

Thurgood Marshall:

For review.

David Ferleger:

But that was an issue not decided by the Lower court because the Lower court at the time that that provision was entered understood that the state courts were going to hold the hearings. And there was no issue or controversy about that.

Thurgood Marshall:

Well, why didn’t they say that?

They didn’t say that.

David Ferleger:

That’s not in the opinion.

Thurgood Marshall:

That’s right and it’s not before us.

Warren E. Burger:

If we affirm this judgment, the state of Pennsylvania must do everything that is stipulated in the judgment and the only way that I see of avoiding that would be to affirm it in part and strike down parts of it, do you disagree with that?

David Ferleger:

I think that the court could strike down or at least vacate for reconsideration, certain parts of this argument.

Byron R. White:

What if a judgment below is attacked only on one or two points, this court has no authority to vacate any other other parts of the judgment.

And we are entitled to adjudicate only the questions that are raised here, aren’t’ we?

David Ferleger:

I think, that the question with regard to the commitment issue that procedures of commitment, the question raised by the jurisdictional statement is whether parents can give up children’s rights and in this case, what we are asking for is what this court is upheld in mental health cases, since 1917 and what every court has upheld that has considered it, which is the basic right to a chance to tell your side of the story before you are put into a mental hospital.

And it’s our position that the rights that the state grants parents to apply for institutionalization and it’s always the state facility that makes the decision about institutionalization.

The parents cannot put any child into an institution, unless the facility says they will accept the child, those rights cannot be upheld where the child is incarcerated for an indeterminant time in a situation which is potentially very dangerous and where there is great stigma and effect, address effect on the child.

That involuntary, indeterminant kind of institutionalization, we feel brings this case within the Gault line of cases as well as the mental health cases that this court has decided and we feel further that parents cannot be granted the absolute right to make that decision as a in the Danport’s case, we submit that the rights of the parents whatever those constitutional right might be cannot be such as to deprive the child of liberty in that kind of way.

Those parental rights or whatever that maybe, do not outway the child’s right to counsel and a chance to tell his or her side of the story.

John Paul Stevens:

Mr. Ferleger, would you address the argument that one of the briefs makes that the procedures that are specified with great and additional stigma to the institutionalization that does not now necessarily exist and to that extent counter productive?

David Ferleger:

As one of our expert witnesses Mr. Justice, even said that, he has never seen that having an attorney or a hearing adds to the stigma.

What it stigmatized he said, is the fact of being a mental patient, the fact of being in a hospital.

There is because of the admissions process, a declaration they give mentally disabled, whether you go in by your parents or whether you go in through the court, the hospital still has to agree you are in need of mental care in order to accept it.

So we feel that the stigma is the same, the effects as many ex-patients know are the same as well.

Warren E. Burger:

Did that expert say anything about the trauma of 14 year old, 13 year old going through a contested hearing of this kind?

David Ferleger:

Yes the opinion of the experts was that in fact as the court noted in Gault, the trauma, excuse me, the hearing process can be very therapeutic to whatever extent it is traumatic, it is no more traumatic than it is for adults who have the hearing and whatever trauma there is, it is insignificant compared to the trauma of being locked up in a hospital with no chance to have some fair procedure to determine that.

Lewis F. Powell, Jr.:

Mr. Ferleger, assuming we reach the issue, what process is due, what do you think of the suggestion that an independent board of psychiatrists would be appropriate to make the independent decision like you suggest is necessary.

David Ferleger:

I think that an independent tribunal of some sort, and it is my own personal opinion, might be appropriate and might withstand constitutional scrutiny of this court should ever be faced with that issue.

I am not certain whether I agree that the board should be composed simply of psychiatrists.

The courts have made it very clear that a deprivation of liberty in the mental health area is not a medical decision and is not the kind of thing that should be left simply to the medical profession.

Lewis F. Powell, Jr.:

You are not insisting on a judicial decision maker?

David Ferleger:

My own feeling is that the constitution if it was ever presented ought to require and would have required such a hearing, but I have not —

Lewis F. Powell, Jr.:

Did you say would or would not?

David Ferleger:

Would, but I am not aware of any decision that has faced that question, every other mental health decision in the country in the federal court as well as the state courts requires a judicial hearing, there is the Saville versus Treadway case in Tenesse which in some cases allows an administrative process followed I think by appeal to a court of Judge Gibbons, one of the members of the panel in one hearing in this case raised this a possibility tribunal that was administrative followed by Court of Appeal.

Warren E. Burger:

What’s the authority of the United States circular District Judge to attempt to that kind of specificity as distinguished from saying the procedure you have is bad because it violates the constitution?

David Ferleger:

I think that the courts have the power to specify some limits to the powers of the states in this regard, I think that, the federal courts can say, I am here with some extreme range, of course, can say that one year in a mental hospital without a hearing is not proper, I think the court’s —

Potter Stewart:

We can’t say it’s not proper, they have to decide whether or not it violates the constitution.

David Ferleger:

That’s what I meant.

And in order to set up the limits of the Due Process rights, I think the courts can order counsel, I think the court’s can order certain kinds of notice, I think the courts can adopt for example a 72 hour provision in this case as consistent with the American Bar Associations provisions, is consistent with the Juvenile court laws in Pennsylvania, it’s consistent —

Warren E. Burger:

But none of those are constitutional standards per say, are they?

David Ferleger:

No, they are not.

Warren E. Burger:

They are merely rogatory suggestions by ut I think those who are interested in the subject matter, are they not?

David Ferleger:

That’s correct.

Lewis F. Powell, Jr.:

But in your regard, the opinion of the District court is requiring an attorney in every case.

David Ferleger:

Yes, the two things —

Lewis F. Powell, Jr.:

As a constitutional request.

David Ferleger:

Yes, a notice and a hearing and I think that those are the issues that this Court should reach and maybe that as in Gerstein versus Pew this Court may choose to say that the very detailed specifics either were not properly considered or should be left to the states to experiment in the wisdom of the states.

And simply require the probable cause along the hearing counsel.

Warren E. Burger:

Do the states need the benediction of the Federal Court in order to engage in experimentation?

David Ferleger:

Not at all.

Warren E. Burger:

Suppose the court might observe, the Federal court might observe that that’s the system of federalism that they have no authority to tell them to experiment, have they?

David Ferleger:

Certainly not Mr. Chief Justice.

John Paul Stevens:

Let me ask you two questions before you sit down.

First, would you comment briefly on the argument that imposing the attorney requirement particularly in the private sector adds a significant element of the cost and the whole business is so expensive already that may actually deter the number of children who need care, who will actually be placed.

And secondly would you comment on the suggestion that the proper disposition now is to remand for consideration in the light of the statute.

David Ferleger:

Certainly Mr. Justice Steven.

The final pre-hearing order in this case contains tables regarding the number of people committed to hospitals, the pages are a little obscure but 314-316 of the appendix indicates that the numbers of people committed each year to state institutions which are those that are listed here, are not all the great on a yearly basis.

The number of people now in hospitals is very large but the number of people who come in is not so great in my opinion that the cost of providing counsel or hearing provides too great administrative burden.

John Paul Stevens:

I am not talking only about the cost in the public facilities but the private as well.

Do those figures relate to that or that’s really probably not as far as the records is concered?

David Ferleger:

Those figures don’t discuss the number of people that came in in to the private facilities.

John Paul Stevens:

Since one of the arguments was that this inevitably the private placements would be governed by this and the cost of the private placement will be affected by the need to hire the counsel and everything.

David Ferleger:

It will be a public cost to counsel for the child.

John Paul Stevens:

Even if the parents are not indigent.

David Ferleger:

The court did not address that issue.

Pennsylvania —

Potter Stewart:

As I say that the court is absolutely required, non-waivably that counsel be provided but that’s going to be provided at the cost of the parents unless they are indigent, isn’t it?

David Ferleger:

Well, not necessarily true, for this reason.

It is not clear that the law would require that parents pay for counsel for a child in any of these cases, either —

Potter Stewart:

They would pay for his meals at least, that is the matter of state law.

David Ferleger:

They do but the question about whether a counsel for a child in a possibly adverse situation should be paid by the parents is not clear at all.

William J. Brennan, Jr.:

That’s a (Inaudible) – there may be an adversary relationship between child and parent as to commitment.

David Ferleger:

Correct.

William J. Brennan, Jr.:

Not all the child have independent —

David Ferleger:

That’s correct.

In Pennsylvania and I believe, although I am not certain now their the legal service —

Potter Stewart:

Serves the needs of the child and this court held that it was a constitutional need of a child, then I suppose as a matter of State law that the parents would be required to pay for the child’s needs, would they, wouldn’t the father or mother?

David Ferleger:

I do not believe that that is expressed at all in Pennsylvania law.

Also, Pennsylvania law specifically states that people in commitment proceedings shall be represented by public defenders without specifying child or adult and without defining the standards for —

Potter Stewart:

But they are generally available, and they are indigent aren’t they?

David Ferleger:

Yes.

Warren E. Burger:

Do you not see any risk at all of the overdose of Due Process might be just as dangerous as an overdose of insulin shot treatment on a mental patient?

David Ferleger:

Not when the Due Process involves procedures that go to the very essence of the fact finding procedure.

This court has required when facts need to be found as they do in a mental health area, that some Due Process needs to be required.

I do not see that a procedure that assures that people are not erroneously committed or committed when they could be in community care, I don’t see that that procedure can harm someone in the way that an overdose of insulin shot.

Potter Stewart:

In any of the these occasions were they – did the court find that anybody has been wrongly committed?

David Ferleger:

The court — I will answer your question and then conclude.

The court discussed in the opinion, a number of cases where children were committed for simply running away from home, for colitis, or weight loss, or all kinds of physical problems and where children were commitment for stealing, for setting fires, those kinds of things which require a fact finding process.

Warren E. Burger:

These were hypothetical cases, were they not?

David Ferleger:

No, no.

Warren E. Burger:

Were they findings on evidence relating to particular members of this class?

David Ferleger:

They were findings on evidence that was submitted in response to interrogatories regarding the reasons of commitment of particular individuals.

Those reasons as stated by the hospitals themselves.

The issue of did this child run away, did this child set the fire, did this child act in a crazy way that he is accused of, is this retarded person going to benefit for being in an institution?

Those are questions that need some forum to the side —

William H. Rehnquist:

Were these named plaintiffs?

Didn’t you describing 1:04:28 for running away or colitis?

David Ferleger:

The named plaintiffs, their facts are discussed in a brief.

One of the named plaintiffs parents are divorced, her father in Florida, her mother in Pennsylvania, which is with her father, she does fine, never in a mental hospital, never any behavioral problems.

David Ferleger:

When she is with her mother, she gets in to fight with her mother and gets admitted s in to a hospital.

William H. Rehnquist:

The District court found that that should not have happened?

David Ferleger:

The District court did not discuss whether that should happen or not.

The District Court did noticed that those were facts should have been presented in some kind od hearing for.

John Paul Stevens:

Mr. Ferleger, you haven’t had a chance to answer my second question.

David Ferleger:

I have realized that.

You repeat the question – I have had trouble with remembering —

John Paul Stevens:

The question is what is your reaction to the suggestion in a view the new statute would be a remand statute?

David Ferleger:

I don’t believe that the new statute is before this court at all.

The only statute that is before the court is the mental health, the Mental Retardation Act of 1966, the majority of the substantial portion of the class that is still in mental hospitals as of today are covered under that statute.

The new statute is not at all before this court.

This is unlike Fusari versus Steinberg where there were major issues in the law that affected the entire class.

I don’t think this court needs to the decide or discuss in anyway, the new statute because the members of the class whom I represent are before the court only with regard to the statute, with regard to which we bothered the complaint.

Thank you.

Warren E. Burger:

Does the state have anything further?

You have about four minutes left.

William J. Brennan, Jr.:

I may ask just you the questions presented to a jurisdictional state at page nine, don’t seem to be the same questions presented in your brief at page 16.

Norman J. Watkins:

That’s correct Mr. Justice Brennan, however I believe that the questions covered stated in a jurisdictional statement are sufficiently broad to cover.

The statements says they are framed in the —

William J. Brennan, Jr.:

You mean all three in the jurisdictional statements are subsumed in the two at page 16 of your brief?

Norman J. Watkins:

Yes.

Mr. Justice Brennan.

William J. Brennan, Jr.:

I must say, I have a little trouble reading in that way but and also as I read your brief, you did not attach your prospectus assuming that some hearing is necessary.

Assuming that the Pennsylvania procedures do not satisfy Due Process.

I don’t see anything in the briefs, in fact, individually, the prospective relations.

Norman J. Watkins:

I did not go to each of the elements of the board or anything —

Byron R. White:

Your attack on the injunction, that one should get passed the declaratory aspect of it, is only with respect to the retrospective impact.

Norman J. Watkins:

That’s correct Mr. Justice White, however I agree with Mr. Justice Rehnquist that in this case particularly it is extreme very difficult to separate the elements —

Byron R. White:

But your only point on retroactive is that it violates Eleventh Amendment or or that it’s powered by Prieser.

Norman J. Watkins:

That’s correct.

Byron R. White:

You don’t say that the court misread Due Process.

Norman J. Watkins:

Not with respect to the retroactive application.

Byron R. White:

The individual or prospective —

Norman J. Watkins:

Yes, it’s our contention and I think the brief makes it entirely clear that the present system of Pennsylvania meets the requirements.

Therefore, I would as a necessary corollary of that position, anything over and above that must be erroneous.

Byron R. White:

Every item is erroneous.

Norman J. Watkins:

Anything over and above, is erroneous as a matter of constitutional law.

I would like to address the question of reasons for placement.

This has been discussed in the briefs and I discussed it a little more pointedly in my reply brief.

There is no doubt that the administrators of these institutions unfortunately for the litigators filed the documents which said reasons for placement that had a cursory statement, insurance or what have you.

But what the District Court ignored and what the plaintiff didn’t bring to your attention just now is that in the most complete part of record, there are also medical diagnosis of the patients.

Those were ignored in the opinions.

These diagnosis and I don’t prefer to be able to analyze and I think they are clearly relevant to whether or not, the child needed the care that was alternately ordered and I would just urge that the record most completely is reflected in the 10 patient summaries where you have not only the court reason for placement which is, for example, if I have a stomach ache and go to the doctor and the doctor ultimately ends up removing my gall bladder.

Obviously, it’s going to show on my admission note that I came in for a stomach ache but it’s not fair to conclude that surgery was performed on me for a stomach ache.

It was performed on me because I had an infected or what have you, gall bladder which would show up in the medical records.

Secondly, I agree with the Chief Justice that an overdose of Due process can be very dangerous. In fact it’s lethal to one very valuable program in Pennsylvania.

That’s the program the respite care.

This order entirely forecloses that program.

Potter Stewart:

Program of what?

Norman J. Watkins:

Respite care, and that allows a parent of a severely retarded juvenile to place his child in an institution for say, four or weeks a year to allow the parent, the necessary respect go on.

The ironic effect of this is going to possibly be total commitment of that juvenile rather than the partial commitment that had here been the case.

I would also like to address the point that Pennsylvania, the present rules in Pennsylvania allow for a master.

It’s quite true that they do allow for a master but that master as I understand the rules would have no decisional authority and therefore under this court’s order, the judge would have to be involved.

The experts in this case–

Warren E. Burger:

Your time is up.

Norman J. Watkins:

Thank you Mr. Chief Justice.

Thank you.

Warren E. Burger:

Thank you Gentlemen.

The case is submitted.