Garrity v. Gallen

Citation522 F. Supp. 171
Decision Date17 August 1981
Docket NumberCiv. A. No. 78-116-D.
PartiesSandra GARRITY, a developmentally disabled citizen, by her parents and guardians, Melton and Arlene Garrity; Nancy Haggerty, a developmentally disabled citizen, by her parents and guardians, Frederick and Eleanor Haggerty; Richard Pond, a developmentally disabled citizen; Debra Roman, a developmentally disabled citizen, by her mother and next friend, Shirley Jenks; Janet Smith, a minor, a developmentally disabled citizen, by her parents and guardians, Harvey and Freda Smith; Thomas Vaillan-court, a minor, a developmentally disabled citizen, by his parent and guardian, Helene Vaillancourt, all of the above individually and on behalf of all others similarly situated; The New Hampshire Association for Retarded Citizens and United States of America, Plaintiff-Intervenor v. Hugh J. GALLEN, Governor of the State of New Hampshire; Edgar J. Helms, Commissioner of the Department of Health and Welfare; Robert M. Brunelle, Commissioner of the Department of Education; Gary E. Miller, M.D., Director of the Division of Mental Health; Richard G. Lacombe, Director of Public Welfare; Maynard H. Mires, M.D., Director of the Division of Public Health Services; Jack E. Melton, Ph.D., Superintendent and Chief Administrator of the Laconia State School and Training Center; Manfred Drewski, Chief of the Offices of Mental Retardation; John Holland, Edward C. Sweeney, Jr., Shirley Ganem, Ivan A. Hackler, George F. Hurt, Betty Anne Lavallee, and Marianne Noyes, Members of the State Board of Education; Bruce Archambeault, Chief of the Division of Vocational Rehabilitation, all of the above in their official capacities only
CourtU.S. District Court — District of New Hampshire




Richard Cohen, John MacIntosh, Alan Cronheim, N. H. Legal Assistance, Concord, N. H., for plaintiffs.

Leonard Rieser, Arthur Peabody, Stephen Mikochik, U. S. Dept. of Justice, Washington, D. C., William Shaheen, U. S. Atty., Concord, N. H., for plaintiff-intervenor United States.

Wilbur Glahn, III, Atty. Gen., Anne Clarke, David Marshall, Donald Perrault, Asst. Atty. Gen., Concord, N. H., for defendants.

Ronald Lospennato, Concord, N. H., for amici curiae Developmental Disabilities Advocacy Center, Inc., and N. H. Society for Autistic Children.


DEVINE, Chief Judge.

The model of democracy adopted for (both federal and state) governance in the United States provides that the legislative branch shall raise and allocate funds necessary for the common good.1 Not unusually, there are more competitors for a share of such funds than there are funds to be divided. When, as in the instant litigation, a defined group perceives it is being deprived of what it believes to be an "entitlement", litigation ensues. This is more particularly true when such group comprises a segment of society which, "because of its position of political powerlessness, is least able"2 to ensure its right to priority upon the legislative fiscal agenda.

This litigation "inhabits the twilight area of developing law concerning the ... rights of the ... mentally retarded".3 The named plaintiffs in this class action are residents of Laconia State School & Training Center (hereinafter "LSS"), the only institution of the State of New Hampshire for the provision of services to the mentally retarded.4 Procedurally the relief sought is injunctive in nature, seeking vindication of the rights of plaintiffs and those of similarly situated mentally retarded citizens of New Hampshire. The substantive relief sought arises in the context of certain federal statutes, including the Developmentally Disabled Assistance and Bill of Rights Act,5 the Nondiscrimination section of the Rehabilitation Act of 1973,6 and the Education for All Handicapped Children Act.7 Plaintiffs additionally claim relief under the New Hampshire statute entitled "Services for the Developmentally Impaired",8 and also claim that the actions complained of have deprived them of their rights pursuant to the Federal Constitution.9

In a trial of approximately forty days before this Court, plaintiffs attacked the conditions at LSS, adducing evidence about numerous specific programs and practices thereat, and calling into question the validity of institutional life itself. To that end, plaintiffs offered the testimony of a bevy of experts on the issue of whether habilitation10 can ever be provided in the traditional institutional setting as opposed to a setting in the "community".11

The ultimate relief which the plaintiffs herein seek is a ruling to the effect that their right to habilitation requires that such be effected in the least restrictive alternative, i. e., community placement. As put by plaintiffs' counsel:

the relief which these parties seek is the creation of a network of community-based services which will provide for and be available to Laconia residents. The reason this case has gone through a prolonged trial is because the parties disagree on one major point: the responsibility on the part of the State of New Hampshire to affirmatively create these community programs.12

The Court has accordingly been required to review the volumes of depositions, exhibits, and other evidence in an effort to arrive at a just resolution of these contentions. Institutional reform cases of this type require courts to venture into areas foreign to their traditional expertise — including the fields of medicine, sociology, psychiatry, and education — an excursion which this Court undertakes with some trepidation. However, the important constitutional and statutory rights invoked by the parties require that such concerns be addressed.

I. The Parties

This action was commenced on April 12, 1978, by six mentally retarded residents of LSS (whose backgrounds will be briefly summarized below), joined by the New Hampshire Association for Retarded Citizens ("NHARC"), a non-profit corporation whose members include developmentally disabled persons and parents, guardians, relatives, and friends of mentally retarded citizens in New Hampshire. On November 29, 1978, over the objection of defendants, the Court granted the United States of America leave to intervene in this lawsuit pursuant to Rule 24, Fed.R.Civ.P.; the United States filed its Complaint in Intervention on December 1, 1978.13 Following extensive discovery by the parties on the issue of class certification,14 the Court granted plaintiffs' motion to certify this as a class action, defining said class as follows:

(1) Class
Developmentally disabled persons who are presently residing at LSS or who in the future may be institutionalized or reinstitutionalized at LSS.
(a) Subclass
Persons between the ages of three and twenty-one years who are or in the future may be confined at LSS, and whose rights under the Education of the Handicapped Act, 20 U.S.C. § 1401, et seq., may be violated.

In the above class certification Order dated February 22, 1980, the Court emphasized that it construed plaintiffs' Complaint to challenge only the conditions at LSS itself in an effort to make this lawsuit more manageable and as a signal to the parties that the Court would not entertain a generalized assault on the State of New Hampshire's mental health and education systems. The above class is represented by six named plaintiffs, whose profiles the Court has set out below.15

1. Sandra Garrity is an eighteen-year-old resident of LSS who was admitted to the School in 1966 at the age of eight by order of the Hillsborough County Probate Court,16 upon petition by her parents and legal guardians. Although the etiology of her mental retardation is in question, it appears that at the age of nine months she had her first seizure, which was associated with the measles.17 Since then she has had a history of convulsive seizures, psychiatric impairment, behavioral disorder, and speech impediment, and has been diagnosed as "moderately mentally retarded"18 as late as May 14, 1976, and more recently as "severely mentally retarded".19 Ms. Garrity resides in Floyd I and takes frequent vacations with her family.

Plaintiffs allege that since her commitment to LSS, Ms. Garrity has lost communication skills and some of her self-care and toileting skills; that she now walks badly and rocks constantly; that she has sustained numerous bodily injuries because of lack of supervision; that she has been given inappropriate drugs by untrained ward attendants; and that she has been placed in physical restraints, all of which have caused her to regress and deteriorate.

2. Nancy Haggerty is a thirty-two-year-old resident of LSS admitted by court order in 1962 at the age of 17 after having spent two years at the New Hampshire Hospital. Her parents are her legal guardians. Although as a child she walked at age nine months and talked at thirteen months, she shortly thereafter developed spinal meningitis and convulsions.20 She resides at Keyes Building, and visits regularly with her family. Ms. Haggerty's medical record, which is one of the more inadequate records21 at the School, reflects that she has been diagnosed as "severely mentally retarded". As with Sandra Garrity, Ms. Haggerty's primary problem is maladaptive behavior. Although plaintiffs admit that Ms. Haggerty had maladaptive behavioral problems prior to her commitment to LSS, they allege that defendants have exacerbated the problem by indiscriminately administering psychotropic22 drugs. The effect of the ingestion of drugs plus a lack of habilitative programs has allegedly caused her to become self abusive as well as unmotivated. Plaintiffs also claim that she has sustained many injuries, either accidentally or otherwise, for which no causes have been documented.

3. Richard Pond has lived almost one half of his life at LSS, having been committed by court order in 1961 at the age of 19 when he reportedly had a dramatic change of personality....

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