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New York State Association for Retarded Children Inc. v. Carey

decided: March 1, 1979.


Appeal from an order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, approving Review Panel's request, pursuant to its power to make recommendations under a consent judgment between the parties, for staff for supervisory board at state facility for the mentally retarded. Held, the flexibility inherent in the enforcement mechanism and the Review Panel's authority to make recommendations to implement the consent judgment required court to enforce request. Judgment affirmed.

Before Mansfield and Oakes, Circuit Judges, and Pollack, District judge.*fn*

Author: Oakes

This appeal, on first view, might be thought to involve the power of a federal court to order a state facility for the retarded to hire additional staff at expense to the public fisc in order to meet court-imposed requirements. Upon further analysis, however, the appeal is from a limited order appurtenant to a rather complex organizational structure for the operation of the facility. The structure itself was established by the parties in a Consent Judgment settling the original proceeding in this litigation after a preliminary injunction granted by the United States District Court for the Eastern District of New York, the late Orrin G. Judd, Judge.*fn1 That court approved the Consent Judgment*fn2 after trial had commenced on a claim under Section 1983 of the Civil Rights Act,*fn3 brought as a class action on behalf of mentally retarded children and adults residing at Willowbrook Developmental Center (Willowbrook), formerly the Willowbrook State School for the Mentally Retarded and now the Staten Island Developmental Center. In the close to seven years that the litigation has been pending, neither party has sought appellate review of the many determinations made by the district court. Here the state officials*fn4 responsible for the operation of Willowbrook bring the first appeal, involving the question whether the State should provide funding for a few additional staff for the Consumer Advisory Board, one of the advisory bodies established by the Consent Judgment. The state officials challenge the propriety of the order for such provision on the basis that it is contrary to the express terms of the Consent Judgment or constitutes an unreasonable interpretation or modification thereof, is vague and otherwise unenforceable, and requires additional appropriations from the State's treasury in violation of the Eleventh Amendment. We find the arguments unavailing and affirm the judgment of Judge John R. Bartels below.

In order properly to put the order appealed from in perspective, it is necessary to review the history of the litigation, the scope of the Consent Judgment, the operational structure under the judgment, and the district court's factual determinations as to the necessity for the staff.


The complaint was filed under Section 1983 on March 17, 1972, the plaintiffs being a group of parents, volunteer organizations, and individual residents at Willowbrook, which at that time had a population of approximately 5,700, officially 65% Over capacity, and was the largest institution of its kind in the country. The suit alleged that the conditions at the institution were physically so inadequate and the environment so destructive and dehumanizing that many of the residents had regressed and their condition deteriorated after their admission. The plaintiffs, who are here appellees, requested preliminary injunctive relief involving the hiring of more medical and supporting staff, prohibitions against the use of seclusion and physical restraints, separate bedroom and day areas for the residents, appropriate clothing, and comprehensive medical and hospitalization facilities. In New York State Association for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752, 756 (E.D.N.Y.1973), Judge Judd, after five days of hearings and on the basis of "a sheaf of exhibits, a folder of photographs, and hundreds of pages of affidavits considered as part of the record," as well as the court's visit to Willowbrook, found that Willowbrook consisted of approximately forty-three buildings with a resident population of 4,727 on December 10, 1972, reduced from 5,700 at the beginning of the action and a high of 6,200 in 1969. Id. at 755. Over three-quarters of the residents he found to be profoundly or severely retarded, having intelligence quotients below 35, with approximately one-third suffering from epileptic seizures and over half having been in Willowbrook for more than twenty years. Twenty-seven percent of the residents he found to be there voluntarily, and their treatment did not differ from that given to those there under court order. On the testimony of parents and the affidavits of others, the judge found numerous failures to protect the physical safety of the children and deterioration rather than improvement of their condition, with poor physical maintenance and in effect "conditions . . . hazardous to the health, safety, and sanity of the residents." Id. at 756.*fn5 In a very careful opinion, Judge Judd held that plaintiffs had no constitutional right to treatment based on due process or equal protection but that plaintiffs' constitutional right to protection from harm in a state institution meant that the Willowbrook residents were "entitled to at least the same living conditions as prisoners." Id. at 764. The judge found that the plaintiffs did not have such conditions; accordingly, he granted preliminary relief including:

1. A prohibition against seclusion. . . .

2. Immediate hiring of additional ward attendants . . . .

3. Immediate hiring of at least 85 more nurses . . . .

4. Immediate hiring of 30 more physical therapy personnel . . . .

5. Immediate hiring of 15 additional physicians . . . .

6. Immediate hiring of sufficient recreational staff . . . .

7. Immediate and continuing repair of all inoperable toilets . . . .

8. Consummation within a reasonable time of a contract with an accredited hospital . . . .

9. Periodic reports (to the court) concerning the progress of the defendants in meeting these requirements . . . .

Id. at 768-69. All requirements were based on achieving conformity with the minimum standards of the Accreditation Council for Facilities for the Mentally Retarded.

Subsequent to the intervention of the United States Department of Justice as amicus curiae in support of the plaintiffs, the latter moved to have several state officials held in contempt, a motion that Judge Judd denied; although he found that the defendants had not complied with his earlier order, he felt unable to allocate blame for the noncompliance. Trial commenced on October 1, 1974; and eight expert witnesses, numerous parents, and analysts from the Department of Justice testified in support of the plaintiffs' case. The case was almost but not quite settled midtrial; trial ended on January 6, 1975, with the defendant Thomas A. Coughlin's predecessor, Robert W. Hayes, the Deputy Commissioner of the New York State Department of Mental Hygiene in charge of Willowbrook, having described the institution as no longer a "major tragedy," as he had previously characterized it, but as still a "moderate tragedy." Settlement negotiations were renewed after a change of administration in state government and continued until April 1975 when both sides signed a Consent Judgment. Judge Judd approved the consent judgment on April 30, 1975, in a short memorandum opinion. New York State Association for Retarded Children, Inc. v. Carey, 393 F. Supp. 715 (E.D.N.Y.1975).


The Consent Judgment governs the operation of Willowbrook and the care and treatment of all mentally retarded members of the plaintiff class, that is, all persons who were residents of Willowbrook on the date that the lawsuit was filed. The judgment expressly incorporates an appendix of "steps, standards and procedures" (hereinafter Appendix A) covering twenty-nine single-spaced pages and dealing with twenty-three topics, all designed to secure the constitutional rights of Willowbrook residents to protection from harm. The judgment recites that these

"are not optimal or ideal standards, nor are they just custodial standards. They are based on the recognition that retarded persons, regardless of the degree of handicapping conditions, are capable of physical, intellectual, emotional and social growth, and . . . that a certain level of affirmative intervention and programming is necessary if that capacity for growth is to be preserved, and regression prevented."

393 F. Supp. at 717, Consent Judgment at 3. The state officials agreed that " "within their lawful authority' " and " "subject to any legislative approval that may be required,' " they would " "take all actions necessary to secure implementation of' " Appendix A as well as " "all steps necessary to ensure the full and timely financing of this judgment,' " all in a prompt and orderly manner. Id., Consent Judgment at 3-4.

Appendix A of the Consent Judgment describes the phasing in of various improvements with a thirteen-month period for implementation of many of the steps, standards, and procedures. These steps, standards, and procedures relate basically to programming, staff, and environment and mandate an "individual plan of care, development and services" for each resident, prepared by an interdisciplinary professional staff after comprehensive testing and evaluation, Consent Judgment at 5; at least six hours of programmed activity per week day, "individually designed and structured to increase the resident's physical, social, emotional or intellectual growth and development," each program including education, recreation, physical therapy, and speech pathology and audiology services,*fn6 Appendix A at i; regulation of potential abuse such as restraints, labor, aversive techniques, behavior modification, research, and medication, Appendix A, Sections N, P, and Q; specific ratios of attendants, supervisors, and clinical staff to residents, depending upon the condition of the resident, the type of building, and the time of day, Id. Section C; and living facilities that will afford the residents "privacy, dignity, comfort and sanitation."*fn7 Id. Section B(1).

But beyond the guidelines and requirements for the operation of the institution, Appendix A in Section V(9) provides: "The primary goal of Willowbrook and of the Department shall be to ready each resident, with due regard for his or her own disabilities and with full appreciation for his or her own capabilities for development, for life in the community at large." Moreover, Appendix A specifically calls for the deinstitutionalization of the residents of Willowbrook and their placement in more normal and less restrictive living situations in the community. It is thus provided that "within six years from the date of this judgment, Willowbrook shall be reduced to an institution of 250 or fewer beds." Id. Section V(1).


The Consent Judgment established an elaborate organizational structure, said to be unique in the country, for the purpose of ensuring that the defendants complied with the Consent Judgment; the structure specifically reflected the undesirability of requiring court intervention on every issue relating to the enforcement of the judgment, even though the court retained jurisdiction for the purposes of construing, implementing, enforcing, or considering motions to amend the Consent Judgment.

The first and most important body established under the Consent Judgment is the Willowbrook Review Panel (the Review Panel). Approximately one-half of the provisions of the final judgment itself, as opposed to Appendix A, relate to the composition, duties, and operation of the Review Panel. The Review Panel consists of seven persons, three chosen by the plaintiffs and approved by the court, two chosen by the defendants and approved by the court, and two recognized experts in the field of mental retardation, one of whom is experienced in the management and operation of public institutions for the mentally retarded and the other in the establishment and operation of community facilities and care and placement of mentally retarded persons in them,*fn8 chosen by agreement of the parties and approved by the court or appointed by the court from the parties' nominations in the absence of agreement. Broad responsibility for monitoring compliance with the terms of Appendix A is delegated to the Review Panel. It is to have a staff; and the Review Panel members and the staff are to have monthly compensation plus reimbursement for "reasonable out of pocket expenses" incurred in performing the duties of the Review Panel, Consent Judgment at 6, appropriate office space, clerical staff, and other support services and equipment. The Consent Judgment requires the responsible officials and department heads or supervisors at Willowbrook to submit written reports to the Director of Willowbrook and to the Review Panel showing in detail the progress toward implementation of the judgment within the building unit or department supervised. The Review Panel staff is periodically to compile written reports showing the degree of progress. The Review Panel is allowed access to all information and buildings, as well as to all employees and members of the class; and interference with the Review Panel is punishable as contempt.

It is important to note that the Review Panel is required, by majority vote, periodically to make "written recommendations to defendants of steps deemed necessary to achieve or maintain compliance with the provisions of this judgment," including recommendations as to timetables as well as substantive recommendations. Id. at 8. The Review Panel is also to recommend resolution of disagreements concerning the interpretation or application of the steps, standards, and procedures in Appendix A. It is provided that "all parties to this judgment shall be bound by and shall implement the recommendations of the Review Panel" unless within fifteen days a party objects in writing to the recommendations and serves the objections upon other parties to the litigation. It is further provided that upon receipt of written objections the Review Panel may apply to the court for an order implementing the recommendations to which objection has been taken. Indeed, the very recommendation here involved is one that the Review Panel made, to which the state officials objected, and for the implementation of which the Review Panel applied to the court for an order allowing it to proceed.

Thus it can be seen that the parties knowingly and intentionally delegated to a panel of chosen experts the power to make the initial determination on important matters involving the meaning and interpretation of the Consent Judgment and Appendix A and more particularly the power to apply for enforcement of such recommendations.*fn9 The record indicates that the Review Panel has made twenty-two recommendations since its inception. Acting upon a request of the Review Panel, the district court issued one order particularly construing the recommendatory provisions of the Consent Judgment even as it also ordered the implementation of certain substantive Review Panel recommendations regarding the removal of 140 persons from educational programming, the extension of psychiatric services, the development of a medical services plan, and the inclusion as class members of those nonresident individuals already placed in the community as of the commencement of the litigation. This order, issued by Judge Bartels, provided that

the formal recommendations of the Review Panel, except on issues dealing with points of law only, shall be deemed prima facie proper and correct, and the party objecting to all or any part of a formal recommendation must, simultaneously with such objection, demand in writing a hearing before the Court, at which such objecting party shall have the burden of coming forward and showing that such formal recommendation is improper.

New York State Association of Retarded Children, Inc. v. Carey, No. 72 Civ. 356 (E.D.N.Y. Feb. 8, 1977). If the objector meets the burden of coming forward, the Review Panel has the burden of establishing by a preponderance of the evidence the correctness and propriety of the recommendation.

The Consent Judgment, as elaborated on in Appendix A, also sets up a Consumer Advisory Board (CAB) and a Professional Advisory Board (PAB). The CAB, the staff of which is the subject of this appeal, is intended to provide input from the perspective of the residents and their families, persons not professionally involved in the operation of retardation programs. It consists of seven members including "parents or relatives of residents, community leaders, and residents or former residents."*fn10 Consent Judgment at 23. The CAB participates in the development of Willowbrook's philosophy, goals, and long-range plans; evaluates allegations of dehumanizing practices or other violations of individual or legal rights of the residents; and designates a member of the committee that passes upon requests to conduct aversive conditioning, behavioral research, or experimentation. The CAB's most important function is to act In loco parentis on behalf of residents whose interests are not actively represented by a parent, relative, legal guardian, or committee. These residents, known as "noncorrespondents," have no one to protect their interests or to represent them in connection with the various steps, standards, and procedures under Appendix A, especially the creation of an individual developmental plan and community placement. The CAB or its designee thus acts as the noncorrespondent's parent or relative. There are approximately six or seven hundred noncorrespondents who now reside in all parts of the state, and it is in order to carry out these In loco parentis duties that the CAB requested the additional staff assistance that is the subject of this appeal.

The PAB is also a source of outside input to the state officials operating Willowbrook, but it consists obviously of people who are "eminent professionals in relevant fields." Appendix A, Section S(4). Their duties include advising on professional programs and plans, budget requests and objectives, and investigation of alleged dehumanizing practices and violations of human or legal rights. The PAB must approve exceptions to certain of the required standards, steps, and procedures and like the CAB must approve aversive conditioning, behavioral research, and experimentation.

It is interesting to note that of the Review Panel's twenty-two formal recommendations and interpretations since it was fully constituted in July 1975, four have involved closing or keeping closed certain institutions as, for example, the closing within about two years of the Keener facility on Ward's Island, which housed exclusively members of the plaintiff class; the closing within fifteen days of the Hillcrest Unit of the Wassaic Developmental Center, which housed eight class members; and the immediate closing of the Gouvernour Unit of Manhattan Developmental Center, which housed about 160 class members. The Review Panel also recommended prohibiting the use of the Bronx Developmental Center as a residential center for members of the Willowbrook class. Other Review Panel recommendations included the hiring of a medical director at Willowbrook, the provision of educational programming for 140 residents, and the like, all significant matters pertaining to the operation of Willowbrook. Based upon fourteen major audits by the Review Panel of the degree of compliance by defendants, the plaintiffs-appellees filed a motion for civil contempt against three state officials on November 9, 1976; the parties settled the motion by a stipulation, which recited that there was noncompliance and a need for increased efforts to achieve compliance, and an order which prescribed new duties for defendants such as reviewing all municipal and state building codes and contracting with a private agency to take over five Willowbrook buildings.

The foregoing discussion is necessary to appreciate the limited nature of the order made below. It requires the hiring of five staff persons for the CAB (four professionals, I. e., nonclerical, and one secretary), two of whom have already been ...

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