Lelsz v. Kavanagh

Decision Date21 January 1987
Docket Number86-1166,Nos. 85-2485,s. 85-2485
Citation807 F.2d 1243
PartiesJohn LELSZ, et al., Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. John J. KAVANAGH, M.D., et al., Defendants-Appellants, and Parent Association For the Retarded of Texas, Intervenor-Appellant. John LELSZ, By and Through his parents and guardians, Mr. and Mrs. John LELSZ, et al., Plaintiffs-Appellees, v. John J. KAVANAGH, M.D., Individually and as Supt. of Denton State School, and his successors in office, Defendant-Appellant, and PARENTS ASSOCIATION FOR THE RETARDED OF TEXAS, Intervenor-Appellant, v. ASSOCIATION FOR RETARDED CITIZENS OF TEXAS and Advocacy, Inc., Intervenors- Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Paul Smith, Joel I. Klein, Washington, D.C., Toni Hunter, Asst. Atty. Gen., Austin, Tex., for Parents Ass'n.

Philip Durst, Austin, Tex., for Kavanagh, et al.

David Ferleger, Barbara Hoffman, Philadelphia, Pa., for Lelsz.

Janice L. Green, Austin, Tex., for Association for Retarded Citizens.

Diane Shisk, Austin, Tex., for Advocacy, Inc. Appeals from the United States District Court for the Eastern District of Texas.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This saga began in 1974 when a class action was filed against officials of the Texas Department of Mental Health and Mental Retardation (MHMR) 1 alleging widespread abuses of mentally retarded patients and advocating their habilitation in the "least restrictive alternative" setting as a minimum standard of care. Simultaneously, a class represented by the same counsel were pursuing the same relief in Pennsylvania. The fortunes of the class in Texas waxed and have now waned according to the fate of the Pennsylvania litigation. Pennhurst State School v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). (Pennhurst II ). 2 In this appeal, we VACATE the district court's order dated June 5, 1985, which purports to enforce a consent decree between the class and the State by requiring the State to furlough no less than 279 class members from institutional to "community care" centers by September 1, 1986. For reasons elaborated upon below, the district court was without jurisdiction to award such state-law-based relief.

I. PROCEDURAL HISTORY

The class certified by the district court comprised approximately 2,400 residents of the Austin, Denton and Fort Worth state schools for the mentally retarded, representing approximately 26% of the "clients" of the State's thirteen institutional centers which care for the mentally retarded. In May, 1983, following at least two years of negotiations, a consent decree (the "Resolution and Settlement" or "R & S") was worked out between the parties. After giving appropriate notice and conducting an extensive hearing, the trial court approved the R & S. The court issued a lengthy opinion outlining the background of and legal basis for the consent decree. Order of July 21, 1983. The R & S is 21 pages long, consisting of 45 paragraphs of both specific and general guidelines and directives for the improvement of treatment of the mentally retarded. 3

The R & S set no timetable for developing community treatment centers, nor did it require the State to do more than exert its "best efforts" to provide such centers. Despite the lack of a timetable, the class representatives determined to press state officials for creation of community care centers by filing a "Motion for Community Placement" in February, 1985, less than two years after the R & S was entered. The motion requested that 779 class members, nearly one-third of those housed in the three state schools, be transferred immediately into the community. According to the class representatives, such a measure was necessary to fulfill the R & S. Further, the class contended that individualized habilitation profiles prepared for the class members by an interdisciplinary team of experts selected pursuant to the R & S reflected that 279 members of the class would be best served by transfer to community facilities. The State responded that it was in good faith complying with the R & S. Specifically, it had developed a comprehensive plan whereby 900 individuals from the thirteen state schools would be placed into community facilities during the 1985-87 biennium. Out of this figure, 300 were to come from the registry of those on waiting lists for the state schools. Obviously, a certain percentage of these statewide placements would be of class members, but the state was unable to estimate the number.

Following a hearing on the plaintiffs' motion, the district court ordered 279 class members to be transferred to community centers on or before September 1, 1986. Order of June 5, 1985. Because the individualized treatment profiles identified approximately 300 class members as suitable for community placement, and the State had at the time of the hearing neither so placed those individuals nor guaranteed their transfer, the court found the State in breach of the R & S. The court chastised the State for foot-dragging and delay in implementing community placement, and the court insisted that the "feasible" plan for such furloughs developed by an expert retained in consequence of the class action was more "convincing" than the rationale adduced by the State. In response to the State's argument that it could not discriminatorily favor class members over residents of other institutions when making community placements, the court concluded that "if defendants wish to see in the court's obligation to enforce the Resolution and Settlement as to class members the creation of a 'two-tier' system in Texas, they may so name it...." Record at 1084 (Vol. IV). 4 The court also by its own account "overrode" state law procedures detailing the rights of parents in the determination of community placement, and replaced that law with a complex scheme designed by a court-appointed attorney. The Order of June 5 is the principal subject of this appeal. The State also appeals the denial of its motion to modify the June 5 Order to obtain similar relief.

II. JURISDICTION TO ENTER THE JUNE 5, 1985 ORDER

The district court asserted that its Order of June 5 is based on "the inherent power possessed by federal courts to enforce agreements entered into in settlement of litigation." The district court summarized its view of its jurisdiction and authority to furlough specific numbers of mentally retarded patients as follows:

In sum, the Resolution and Settlement guarantees that class members will receive habilitation in the setting least restrictive of their liberty.... The defendants are not now meeting their obligations under the Resolution and Settlement.... The court has both the right and the duty to enforce the provisions of the Resolution and Settlement, as a matter of law and directly through the provisions of the Resolution and Settlement itself. Record at 1085-86 (Vol. IV).

There is a certain inconsistency in this language, which simultaneously suggests either that the R & S compels specific community placements, or that defendants' violation of the R & S enables the court to decree specific placements as a remedy. Appellees contend that the June 5 Order furthers the goals of the R & S "by requiring defendants to make a genuine effort to provide such [least restrictive alternative] services." The June 5 Order, in appellees' view, is a remedy to enforce the R & S, which, since it is not in conflict with constitutional law, federal statutes, or rights secured by state law, must be upheld.

We summarize our conclusions as follows. Whether the district court's Order of June 5 springs from legitimate enforcement of the R & S or as a court-created remedy for its violation is ultimately of no moment if the relief ordered, in effect, requires state officials to comply with state law. The Supreme Court's decision in Pennhurst II unequivocally held that, without a state's consent, the Eleventh Amendment denies jurisdiction over such an action to the federal courts, and the Court added that "neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment." Id. at 121, 104 S.Ct. at 919 (emphasis added).

The consent decree in this case was entered prior to, but in the shadow of, the grant of certioriari in Pennhurst II by the Supreme Court. The district court's Order of July 21, 1983, approving the decree painstakingly elicits the constitutional or statutory basis for relief afforded in every significant paragraph of the R & S. That order readily demonstrates that any rights the class members may have with regard to community placement were understood by the district court to originate in, and do in fact exist, in state law. Moreover, considerable case law authority rejects a federal constitutional right to treatment in a least restrictive alternative setting. 5 Because the State has not waived its Eleventh Amendment defense, and because only state law undergirds the Order of June 5, 1985, Pennhurst II precludes its enforcement to the extent of requiring the State to create community facilities for 279 class members. Finally, the fact that this order derives from a consent decree rather than from an order entered at the conclusion of litigation does not change our view of the case.

III. THE STATE LAW BASIS FOR PROVISIONS OF THE RESOLUTION AND SETTLEMENT

Juxtaposing paragraphs 7 and 8 of the Resolution and Settlement, on which the district court rested its Order of June 5, 1985, with applicable state law reflects the congruence between them.

II. Obligations of Defendants

7. The defendants will provide to each member of the plaintiff class habilitation tailored to the person's individual needs. In meeting the habilitation needs of members of the plaintiff class, the individual's particular circumstances, including...

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