United States v. Solomon

• Decision Date: 08 July 1976
• Docket Number: Civ. A. No. N-74-181.
• Citation: 419 F. Supp. 358
• Parties: UNITED STATES of America v. Dr. Neil SOLOMON, Secretary of Health and Mental Hygiene of the State of Maryland, et al.
• Court: U.S. District Court — District of Maryland

419 F. Supp. 358

UNITED STATES of America v. Dr. Neil SOLOMON, Secretary of Health and Mental Hygiene of the State of Maryland, et al.

Civ. A. No. N-74-181.

United States District Court, D. Maryland.

July 8, 1976.

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Edward H. Levi, Atty. Gen., J. Stanley Pottinger, Asst. Atty. Gen., Civil Rights Div., Louis M. Thrasher, Director of Office of Special Litigation, Civil Rights Div., Washington, D.C., Jesse H. Queen, Michael S. Lottman, Mickey A. Steiman, Susan Lentz, Attys., Dept. of Justice, Washington, D.C., and Jervis S. Finney, U.S. Atty. for the District of Maryland, Baltimore, Md. (Louis M. Thrasher, Washington, D.C., presenting oral argument at hearing), for plaintiff.

Francis B. Burch, Atty. Gen. of Maryland and Paul Walter, Paul M. Vettori, Stephen Sfekas and Judith K. Sykes, Asst. Attys. Gen., Baltimore, Md. (Paul Walter, Stephen Sfekas and Judith K. Sykes, Baltimore, Md., participating in presentation of oral argument), for defendants.

Robert P. Kane, Atty. Gen. of Pennsylvania, J. Justin Blewitt, Jr., Chief, Civ. Litigation, Harrisburg, Pa., Norman J. Watkins, Jeffrey Cooper, Deputy Attys. Gen., Harrisburg, Pa., on amicus curiae brief in behalf of the Commonwealth of Pennsylvania.

John L. Hill, Atty. Gen. of Texas, Austin, Tex., David M. Kendall, Thomas W. Choate, and Richel Rivers, Asst. Attys. Gen., Austin, Tex., on amicus curiae brief in behalf of the State of Texas.

NORTHROP, Chief Judge.

The Attorney General of the United States has brought this suit on behalf of the United States seeking to enjoin certain practices and policies of the officials of the State of Maryland primarily charged with the responsibility of administering Maryland's programs for the care and training of mentally retarded citizens. The Complaint alleges that the defendants' policies and practices have resulted in severe and widespread deprivation of the rights guaranteed by the eighth, thirteenth, and fourteenth amendments of the Constitution to residents of Rosewood State Hospital, Maryland's major facility for the residence of the mentally retarded.

The defendants have filed a Motion to Dismiss, contending that the Attorney General has no authority or standing to bring this action on behalf of the United States. The states of Pennsylvania and Texas have filed amicus curiae briefs in support of the defendants' position. Plaintiff, of course, sharply disputes the contention that it does not have the authority and standing to prosecute this action.

The issue of executive authority which has thus been joined by this Motion to Dismiss has far-reaching implications for the functioning of a system of constitutional, democratic government based on a balance of powers. See Estelle v. Justice, 426 U.S. 925, 929, 96 S.Ct. 2637, 49 L.Ed.2d 380 (1976) (Rehnquist, J., dissenting from a denial of certiorari). After exhaustive consideration of the relevant arguments and authorities, this Court has reached the emphatic conclusion that the power of the executive branch of government does not extend to bringing a suit such as this one and that defendants' Motion to Dismiss should therefore be granted.

Before detailing the reasons for this conclusion, this Court wants to emphasize that it is expressing no opinion on the merits of the underlying issue regarding the care and treatment of the mentally retarded in Maryland. The proper habilitation of mentally retarded citizens is a matter of acute concern to this Court, as indeed it should be to all decent and civilized persons. This Court has no doubt that the instant lawsuit stems from a benevolent desire on the part of officials of the Department of Justice to improve the lot of the mentally retarded. Important and compelling as a charitable aspiration for helping the mentally retarded achieve a meaningful existence may be, however, it must not be allowed to impel a procedural result which by implication, if not by direct effect, would threaten the delicate balance of power which the Constitution conceives among the various branches of the federal government and between the federal and state governments. This conclusion does not leave the mentally retarded without remedy for violations of their constitutional rights; it simply means that lawsuits aimed at protecting these rights must be brought by proper plaintiffs. It is noteworthy that several such lawsuits have been brought in recent years in Maryland. See Maryland Association for Retarded Citizens, Inc. v. Solomon, Civ. No. N-74-228 (D.Md., filed Mar. 6, 1974); Maryland Association for Retarded Citizens v. Maryland, Civ. No. 72-733-M (D.Md., filed July 19, 1972); Bauer v. Mandel, Docket 30, Folio 61, File 22871 (Circ.Ct. of Anne Arundel County, filed Sept. 11, 1975); Maryland Association for Retarded Citizens v. Department of Health & Mental Hygiene, Docket 100, Folio 182, File 77676 (Circuit Court of Baltimore County, Maryland; decided for plaintiff, May 3, 1974).

This, then, is not in any sense a decision about the rights and needs of the mentally retarded. It is a decision about the proper limitation of the power of the executive branch of the United States Government.

Basic to the philosophy of the American Constitution is the notion that the branches of the federal government have no "natural" power, but only such power as is provided by the Constitution itself. See generally Hamilton, Madison, and Jay, The Federalist, included in Scott, The Federalist and Other Constitutional Papers (2 vol. ed. 1894; 1 vol. ed. 1898). So central was this concept in the thinking of the founders of our country that they went to the trouble of making it explicit by means of the ninth and tenth amendments of the Bill of Rights. Thus, the discussion of executive power in this case must start from the premise that the executive branch of the federal government has no power and therefore no legal standing to bring this suit unless such authority can be found, either explicitly or implicitly, in the scheme of government laid out by the Constitution.

The Constitution says nothing explicitly about the power of the executive to bring a suit before the judiciary.¹ Despite this, there has never been much question that the Congress, in exercise of its delegated powers (particularly the "necessary and proper" powers of Article I, Section 8), can authorize the executive to sue. See, e. g., United States v. Raines, 362 U.S. 17, 27, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Indeed, such legislative authorization abounds.

In the instant case, the government contends that Congress, by means of Sections 516 and 518 of Title 28 of the United States Code, has explicitly authorized the Attorney General to bring this suit. Section 516 is entitled "Conduct of litigation reserved to Department of Justice" and provides as follows:

Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.

Section 518 is entitled "Conduct and argument of cases" and provides in pertinent part as follows:

When the Attorney General considers it in the interests of the United States, he may personally conduct and argue any case in a court of the United States in which the United States is interested, or he may direct the Solicitor General or any officer of the Department of Justice to do so.

These sections, however, do not grant authority to the Attorney General to bring an action concerning any matter in which he thinks that the United States might be "interested." United States v. Daniel, Urbahn, Seelye and Fuller, 357 F.Supp. 853, 858 (N.D.Ill.1973); see Allen v. County School Board of Prince Edward County, 28 F.R.D. 358, 362-63 (E.D.Va. 1961). The sections tell us nothing about the nature of "interest" which will activate the Attorney General's discretion to act. These sections, therefore, constitute no authority on which to base a conclusion that Congress has explicitly authorized the executive to bring suits generally under the thirteenth and fourteenth amendments.

The Supreme Court long ago made it clear that the executive does have authority to bring suit in some situations even though the Constitution says nothing explicitly concerning such power and even though Congress has not expressly granted such power. The first of such situations recognized by the Court involved the proprietary and contractual interests of the federal government. Dugan v. United States, 16 U.S. (3 Wheat.) 172, 4 L.Ed. 362 (1818) (suit on a bill of exchange); United States v. Tingey, 30 U.S. (5 Pet.) 115, 8 L.Ed. 66 (1831) (suit for breach of contract); Cotton v. United States, 52 U.S. (11 How.) 229, 13 L.Ed. 675 (1850) (suit for trespass). Broadly speaking, the Supreme Court concluded that the power to bring suit was a logical and necessary adjunct to the executive's power to oversee the national government's proprietary and contractual interest. See also United States v. California, 332 U.S. 19, 27, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947).

This limited view of the executive's power to sue was expanded somewhat in United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747 (1888), to allow suit to set aside a land patent based on alleged fraud. Accord, Kern River Co. v. United States, 257 U.S. 147, 155, 42 S.Ct. 60, 66 L.Ed. 175 (1921). San Jacinto Tin seemed to require that the government have some "pecuniary interest in the remedy sought," 125 U.S. at 286, 8 S.Ct. at 857, but such a limitation was apparently abandoned in United States v. American Bell Telephone Co., 128 U.S. 315, 9 S.Ct. 90, 32 L.Ed. 450 (1888), where a right of action was granted to the executive to protect the government from fraud in the issuance of a patent of invention. The Court in Bell Telephone concluded that, despite the lack of any...