Bartley v. Kremens, Civ. A. No. 72-2272.

Citation402 F. Supp. 1039
Decision Date15 December 1975
Docket NumberCiv. A. No. 72-2272.
PartiesKevin BARTLEY et al. v. Jack B. KREMENS, Individually and as Hospital Director of Haverford State Hospital, et al.
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)


David Ferleger, Philadelphia, Pa., for plaintiffs.

Barry A. Roth, Deputy Atty. Gen., Harrisburg, Pa., for defendants.

Before GIBBONS, Circuit Judge, and HUYETT and BRODERICK, District Judges.

Stay Granted December 15, 1975. See 96 S.Ct. 558.


HUYETT, District Judge.

Plaintiffs have filed this class action1 on behalf of the named plaintiffs and all persons eighteen years of age or younger who have been, are, or may be admitted or committed to mental health facilities in Pennsylvania under the Pennsylvania Mental Health and Mental Retardation Act (Act). 50 P.S. §§ 4402 and 4403 (§§ 402 and 403).2 Invoking 28 U. S.C. § 1331 and 1343(3) and 42 U.S.C. § 1983, plaintiffs ask us to declare §§ 402 and 403 unconstitutional and to enjoin their enforcement.3

Plaintiffs contend that in violation of the Fourteenth Amendment to the United States Constitution, they are being denied both due process of law and equal protection of law because Pennsylvania allows plaintiffs and their class to be detained — denied their liberty — in mental institutions without substantial procedural safeguards including the: (1) right to notice; (2) right to a pre-commitment hearing; (3) right to counsel and if indigent appointment of counsel; (4) right to present evidence on their own behalf; (5) right to subpoena witnesses and documents; (6) right to confront and cross-examine witnesses against them and those who wish to admit or commit them; (7) right to be involuntarily detained only upon a decision of a judicial officer; (8) right to be involuntarily detained only upon a decision that they are in need of treatment, care, or observation.4 Plaintiffs also contend that the regulations supplementing §§ 402 and 403 do not cure these sections of their constitutional infirmities because they apply only to children 13 years of age or older, require no pre-commitment hearing, and designate no time by which a post-commitment hearing must be held.5 In essence, plaintiffs claim that the present procedures do not adequately assure against the mistaken commitment of children who are not mentally ill.

In support of their claim that §§ 402 and 403 are unconstitutional, plaintiffs have submitted brief summaries of the reasons for the commitment of the named plaintiffs and other members of their class to demonstrate that many decisions to commit involve factual determinations requiring substantial procedures to guard against wrongful or erroneous commitment. We rely for our findings on the summaries contained in the final pretrial order which have been stipulated to and on defendants' exhibit numbered eight (8).

The named plaintiffs were either admitted under § 402 or committed under § 403 to Haverford State Hospital.6 Plaintiff M.W. was admitted to Haverford State Hospital under § 402(a)(2). His mother admitted him allegedly against his wishes when he was fifteen and on December 1, 1972, he informed agents and employees of defendant of his desire to leave Haverford State Hospital. Plaintiffs K.B., S.G. L.L., and V. M. were committed to Haverford State Hospital under § 403(a)(2). Plaintiff K.B. was fifteen when his mother committed him against his wishes. He was and still is critical of some of the hospital's regulations and treatment practices. Plaintiff S.G. was seventeen when his father committed him allegedly against his wishes. Plaintiff L.L. was fifteen when her mother committed her allegedly against her wishes. Her difficulties in relating to her mother resulted in her commitment. Hospital records show that she threatened the lives of her mother and sister and that she has a personality disorder. Her parents are divorced and her father is remarried, living in Florida. At the time of her commitment and the time this action was filed, she would have preferred to have been with her father and when she is with him her behavior is excellent. Plaintiff V.M. was fourteen when her mother committed her allegedly against her wishes.

Members of plaintiffs' class have been institutionalized for various other reasons. Patient number 13,173, a moderately retarded 13 year old child, was institutionalized in Polk State Hospital because of very sudden, explosive, rage reactions during which he attacked others and of which he has no recollection. His behavior rather than his mental retardation was the primary obstacle to his return to the community. Patient number 13,212, an educable mongoloid boy with the capacity to participate in many educable and trainable activities and who can be helped by an active special elementary program in public schools, was institutionalized in Polk State Hospital for a 1 to 2 week period so that the other members of his family could go on a family vacation. Patient number 288, a mentally retarded child, was placed in Western State Hospital because of a poor family situation. The mother of the child did not get along well with the child, and the family was afraid that she would have another nervous breakdown if the child were not placed in Western State Hospital. Patient number 281, a mentally retarded child was placed in a state institution because she had become a management problem to both her parents and the community. Patient number 15, a mentally retarded child, was placed in Western State Hospital because the child interfered with the routine of the household and disturbed family members. The placement was based on a fear that if the child remained in his home, the mother might break down, the marriage of the child's parents might end in separation, the father's health might fail, and an adolescent daughter might be pushed into a premature marriage to escape an unhappy home. Class members have also been committed to mental hospitals for running away, robbing a gas station, stealing in general, chasing and striking a girl, arson, delinquent behavior in general, truancy, physical ailments such as colitis and weight loss, school phobia, and drug overdose.

At the time this action was filed defendants were all Pennsylvania officials with specific duties under the Act. Defendant Jack B. Kremens as Hospital Director of Haverford State Hospital was charged under 50 P.S. §§ 4102 and 4203 with supervision and administration of Haverford State Hospital. It was to Kremens or his delegates that application for admission and commitment under §§ 402(b) and 403(b) of the Act had to be made. Defendant Helene Wohlgemuth as Secretary of Public Welfare of the Commonwealth of Pennsylvania (Secretary) had the power under 50 P.S. §§ 4201 and 4202(a) to enforce the Act, to make all regulations necessary and appropriate to the proper accomplishment of the Act, and to operate and assign functions to all state facilities. Defendant William B. Beach as the Deputy Secretary for Mental Health and Mental Retardation of the Department of Public Welfare of the Commonwealth of Pennsylvania had the general authority to supervise and regulate mental health facilities in Pennsylvania.

At the outset, defendants contend that since the purpose of the Act is to meet the child's needs through treatment and rehabilitation rather than to punish the child by incarceration for what he has done, the requirements of due process do not apply to the institutionalizing of children under §§ 402 and 403.7 Defendants proceed to argue that if we determine that due process applies, we should find that in light of Pennsylvania's interest in protecting the child, preserving the family unit, maintaining the rights of parents to the custody, care, and upbringing of their children, and protecting society, the present statutes and regulations satisfy any due process requirements. Finally, defendants argue that since under §§ 402 and 403 the parents, guardians ad litem, or persons standing in loco parentis must set into motion the commitment machinery, these persons effectively waive any due process rights of plaintiffs and their class.


Under the constitutional guarantee of procedural due process, we have developed a system whereby a person who may be subjected to a grievous loss of liberty is entitled to adequate procedural safeguards. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Generally, the state is required to provide substantial procedures when there is the possibility of erroneously and wrongfully depriving persons of their liberty by committing them to mental institutions. See, concurring Opinion of Chief Justice Burger in O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Lynch v. Baxley, 386 F.Supp. 378 (M.D. Ala.1974); Lessard v. Schmidt, D.C. Wis., 349 F.Supp. 1078, remanded, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), redecided 379 F.Supp. 1376 (1974), remanded 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975); Dixon v. Attorney General Commonwealth of Pennsylvania, 325 F.Supp. 966 (M.D. Pa.1971). These safeguards attempt to protect persons from an arbitrary or erroneous deprivation of liberty or property, whether that deprivation be imposed for benevolent or punitive reasons. They are "our best instruments for the distillation and evaluation of essential facts from the conflicting welter of data that life and our adversary methods present." They "enhance the possibility that truth will emerge from the confrontations of opposing versions and conflicting data." In re Gault, 387 U.S. 1, 21, 87 S.Ct. 1428, 1440, 18 L.Ed.2d 527 (1966). As Mr. Justice Frankfurter has said: "The history of American freedom is, in no small measure, the history of procedure." Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945) (separate opinion) cited by the majority in In re Gault, 387 U.S....

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32 cases
  • Donahue v. Rhode Island Dept. of Mental Health, Civ. A. No. 84-0411-S.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
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    ...411 F.Supp. 1113, 1125-26 (D.Hawaii 1976); Coll v. Hyland, 411 F.Supp. 905, 910 (D.N.J.1976) (three-judge court); Bartley v. Kremens, 402 F.Supp. 1039, 1049 (E.D.Pa.1975) (three-judge court), vacated, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977); Lynch v. Baxley, 386 F.Supp. 378, 387 ......
  • Parham v. J.R.
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    • December 6, 1977 this. That some parents "may at times be acting against the interests of their children" as was stated in Bartley v. Kremens, 402 F.Supp. 1039, 1047-1048 (ED Pa. 1975), vacated and remanded, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977), creates a basis for caution, but is hardly a ......
  • French v. Blackburn, C-76-52-WS.
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    • United States District Courts. 4th Circuit. Middle District of North Carolina
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    ...held that the presence of one subjected to an involuntary commitment hearing could be waived or excluded. See, e. g., Bartley v. Kremens, 402 F.Supp. 1039 (E.D. Pa.1975), prob. juris. noted, 424 U.S. 964, 96 S.Ct. 1457, 47 L.Ed.2d 731 (1975); Bell v. Wayne County General Hospital, 384 F.Sup......
  • Institutionalized Juveniles v. Secretary of Public Welfare, 83-1696
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    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 26, 1985
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2 books & journal articles
  • Identifying the Unidentifiable: How Washington's Public Education System Can Aid in the Prevention and Detection of Childhood Mental Illness
    • United States
    • Seattle University School of Law Seattle University Law Review No. 33-01, September 2009
    • Invalid date
    ...Parham, 442 U.S. at 618; see also CHEMERINSKY, supra note 109, at 811. 131. Parham, 442 U.S. at 602-03 (quoting Bartley v. Kremens, 402 F. Supp. 1039, 1047-1048 (E.D.Pa. 1975), vacated, 431 U.S. 119 (1977)); see also CHEMERINSKY, supra note 109, at 811. 132. Parham, 442 U.S. at 584; Yoder, ......
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    • Colorado Bar Association Colorado Lawyer No. 7-2, February 1978
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    ...clearly has an interest within the contemplation of the liberty and property language of the Fourteenth Amendment. [Bartley v. Kremens, 402 F.Supp. 1039, 1046-7 (1975).] Assessing how much process is due, the court held that the statute must provide a probable cause hearing within 72 hours ......

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