Developmental Disabilities Advocacy Ctr., Inc. v. Melton

• Citation: 521 F. Supp. 365
• Decision Date: 02 September 1981
• Docket Number: Civ.No. 81-330-D.
• Parties: DEVELOPMENTAL DISABILITIES ADVOCACY CENTER, INC., Harold Tuttle, Alice Graham, Lillian Cooke, Bruce Spinney, by and through their next friend, Freda Smith, and on behalf of all others similarly situated, v. Jack MELTON, in his official capacity as Superintendent of the Laconia State School and Training Center, Gary Miller, in his official capacity as Director of the Division of Mental Health and Developmental Services.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire

521 F. Supp. 365

DEVELOPMENTAL DISABILITIES ADVOCACY CENTER, INC., Harold Tuttle, Alice Graham, Lillian Cooke, Bruce Spinney, by and through their next friend, Freda Smith, and on behalf of all others similarly situated, v. Jack MELTON, in his official capacity as Superintendent of the Laconia State School and Training Center, Gary Miller, in his official capacity as Director of the Division of Mental Health and Developmental Services.

Civ.No. 81-330-D.

United States District Court, D. New Hampshire.

September 2, 1981.

Ronald K. Lospennato, Concord, N.H., Kenneth M. Brown, Nashua, N.H., for plaintiffs.

Peter C. Scott, Asst. Atty. Gen., Concord, N. H., for defendants.

MEMORANDUM OPINION

DEVINE, Chief Judge.

The Developmental Disabilities Advocacy Center, Inc. ("DDAC"), is an entity established pursuant to a section of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq. ("DD Act"). Perceiving that it occupies a "special role" such as to permit it unrestricted access to and review of the records of the mentally retarded residents of Laconia State School and Training Center ("LSS"), it here seeks to challenge certain visitation policies of LSS. The relief sought is injunctive, Rule 65, Fed.R.Civ.P., and declaratory, 28 U.S.C. §§ 2201-2202, in nature. The Court has held a hearing on the preliminary injunctive relief sought and has reviewed the testimony, exhibits, legal memos, and other pertinent documents.

Named as additional plaintiffs (although represented by independent counsel) are four residents of LSS, namely, Harold Tuttle, Alice Graham, Lillian Cooke, and Bruce Spinney. Named as their purported "next friend" is one Freda Smith, a New Hampshire resident who, although unrelated to the named plaintiffs, has for a long time been interested in the rights of the mentally retarded. The named defendants are Jack Melton, Superintendent of LSS, and Gary Miller, Director of the New Hampshire Division of Mental Health and Developmental Services.

DDAC was established in 1979 pursuant to 42 U.S.C. § 6012, which provides in pertinent part:

(a) In order for a State to receive an allotment ... (1) the State must have in effect a system to protect and advocate the rights of persons with developmental disabilities, (2) such system must (A) have the authority to pursue legal, administrative, and other appropriate remedies to ensure the protection of the rights of such persons who are receiving treatment, services or habilitation within the State, (B) not be administered by the State Planning Council, and (C) be independent of any agency which provides treatment, services, or habilitation to persons with developmental disabilities....

At the time of the establishment of DDAC, LSS was engaged in extensive litigation over the rights of its residents, with an almost daily influx of attorneys, experts, and others involved in the preparation and trial of that litigation.¹ Subsequent to the completion of that trial, LSS turned its attention to the traffic flow of such visitors, generally requiring that visitors report to the main administration building, and if they were not parents, relatives, legal guardians, court-appointed representatives, or other official representatives, or lacked documented proof to visit, they were to be denied such visitation. In the event of questioning of denial of access, they were to be referred to the office of the New Hampshire Attorney General. See Plaintiffs' Exhibit 2. At the request of DDAC, subsequently, LSS through conference with the office of said Attorney General sought to issue more detailed visitation regulations (Defendants' Exhibits A, B, C, D), but DDAC contends that these are unsatisfactory, as they contravene both statutorily and constitutionally established rights of the parties whom DDAC seeks to represent.² We commence our review by a brief outline of the facts applicable to each purported plaintiff.

Harold Tuttle is a seventeen-year-old minor resident of LSS who has been afflicted since birth with spina bifida, a congenital anomaly characterized generally by a defect in the bony encasement of the spinal cord. See Dorland's Illustrated Medical Dictionary, 24th ed., 1965 (W.P. Saunders Company), p. 1418. In his case, it was a causal factor in the loss of function and sensation in the lower extremities, and as a result of this lack of control, young Tuttle has apparently over the years suffered numerous and severe fractures of these portions of his anatomy. A serious medical problem having developed, Tuttle's mother, who is his natural guardian, was called in to consult relative to the opinion of three orthopedic surgeons who had examined Harold and who had recommended bilateral amputation as the most efficacious treatment. All alternatives having been placed before her, Tuttle's mother granted consent to such surgery and, subsequent thereto, Tuttle has demonstrated marked improvement in his adjustment to treatment with the assistance of adaptive equipment.

One of the attorneys involved in the then-pending case of Garrity v. Gallen, n.1, supra, had seen Tuttle both before and after this surgery, and questioned the necessity therefor. Accordingly, he referred the matter to DDAC by a letter of February 3, 1981. Plaintiffs' Exhibit 1. However, DDAC lacked written permission from Tuttle's mother and natural guardian to discuss the matter with him or to review his records, and upon being advised that DDAC wished to act as an advocate in Tuttle's behalf, Tuttle's mother denied, in writing, the right of DDAC to do so. Defendants' Exhibit E. In Tuttle's case, DDAC contends that it (or apparently any other attorney) has the right to override the wishes of the mother and natural guardian and proceed to investigate and determine what it perceives to be in Tuttle's best interest.

Alice Graham is a sixty-two-year-old female resident whose legally-appointed guardian is her brother James Graham. She has previously been (unsuccessfully) placed in a community residence and returned to Laconia, but desires to try placement again. As regards community placement of its residents, it is the policy at LSS that when the interdisciplinary team (IDT) agrees, permission is first sought from the guardian (if such guardian exists), and placement is sought (in 99% of cases) in the community of origin. The IDT having recommended such placement for Alice Graham, opportunity for placement was sought in her home community, but such was unavailable. Additionally, her brother and guardian, feeling that it was best for Alice to remain at LSS, denied her permission for community placement. Plaintiffs' Exhibit 5. It appears that there may well be vacancies in community placements in communities other than that of origin, but in light of the guardian's refusal, LSS has refused to override the guardian's wishes and place Alice in such vacancy.³

Lillian Cooke is another adult female resident of LSS and is the only named plaintiff so resident who is without guardian.⁴ She attempted to initiate contact with DDAC relative to assistance in helping her to gain community placement, but was told and in turn so advised the representative of DDAC that she would be unable to sign any papers seeking the right of DDAC to review her records.

Plaintiff Bruce Spinney is under the guardianship of his sister, and on or about April 1, 1981, spoke briefly with a representative of DDAC who had been granted oral but not written authority to speak to him and review his records. The representative of DDAC was required to carry on this conversation in the presence of a member of the LSS staff, and upon subsequently procuring written authorization of the guardian, was allowed to review the records of Spinney, but in the interim Spinney was transferred to placement in a nursing home.

Freda Smith is the mother of a former resident of LSS who herself has been involved in the rights of the mentally retarded for some time, having been active in the case of Garrity v. Gallen, supra. From her association at LSS, she probably knows the named plaintiffs, although her testimony was to the effect that she could not directly recall having specifically visited with any of them.

Review of the spate of overblown rhetoric advanced both orally and in writing in the course of this litigation might lead one to believe that the associational rights under the First and the right of access to courts under the Fourteenth Amendments are somehow implicated. They are not. Resolution of the legal issues in this case does, however, require review of the more elementary relations involved as between attorney and client and guardian and ward, to which relations we now direct our attention.

1. The Attorney-Client Relation.

The relation between an attorney and client is a personal one, which involves the highest personal trust and confidence, and it cannot be delegated without consent. Alpern v. Hurwitz, 644 F.2d 943 (2d Cir. 1981); 7 Am.Jur.2d, Attorneys At Law § 119, pp. 188-89. While in recent years a perception of consumer demand has led to relaxation of the strict rule governing advertising by attorneys, Bates v. State Bar Of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), even to the extent of permitting the transmission of letters to prospective litigants containing offers to explain their legal rights, In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), direct solicitation of clients by attorneys is still strictly forbidden. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).

The DD Act, 42 U.S.C. § 6000 et seq., as this Court has recently held, Garrity v. Gallen, supra, pp. 195-205, grants to residents of LSS only the limited private right of action against the Secretary of Health and Human Services seeking to require performance by the Secretary of the duties imposed upon him by such statute. The language of § 6012, supra at p. ____,...