Vaughan v. Bower

• Decision Date: 14 May 1970
• Docket Number: No. Civ-70-10 Phx.,Civ-70-10 Phx.
• Citation: 313 F. Supp. 37
• Parties: William Price VAUGHAN, for himself, and Miriam I. Vaughan, for herself, and all others similarly situated, Plaintiffs, v. Willis H. BOWER, Superintendent, Arizona State Hospital, State of Arizona, Defendants.
• Court: U.S. District Court — District of Arizona

313 F. Supp. 37

William Price VAUGHAN, for himself, and Miriam I. Vaughan, for herself, and all others similarly situated, Plaintiffs, v. Willis H. BOWER, Superintendent, Arizona State Hospital, State of Arizona, Defendants.

No. Civ-70-10 Phx.

United States District Court, D. Arizona.

May 14, 1970.

Anthony B. Ching, Chief Trial Counsel, Tucson, Ariz., for plaintiffs.

Gary K. Nelson, Atty. Gen., State of Arizona, Phoenix, Ariz., for defendants.

Before TRASK, Circuit Judge, and CRAIG and COPPLE, District Judges.

JUDGMENT

CRAIG, District Judge.

This is an action brought under 42 U. S.C. § 1983 and 28 U.S.C. §§ 1343 and 2201 by plaintiffs for themselves and all others similarly situated seeking injunctive relief and a declaration that Arizona Revised Statutes, § 36-522, Subd. B, is unconstitutional in light of the recent decision of the Supreme Court in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).¹

The statute in question, A.R.S., Section 36-522, provides that:

A The Superintendent may return a nonresident of this state admitted to the state hospital to the home of known relatives or friends or to proper authorities in the state of his residence.

B For the purpose of this section, a nonresident is a person who has not resided in this state continuously for at least one year immediately preceding his admittance to the state hospital or other designated facility.

Shapiro held that a statutory prohibition of welfare benefits to residents of less than a year creates a classification which constitutes an invidious discrimination touching on the fundamental right of interstate movement and which, in the absence of a compelling state interest, denies them equal protection of the laws.

Plaintiffs William Price Vaughan, age 74, and Miriam I. Vaughan, age 62, migrated to Arizona on or about May 30, 1969. Prior to that time they resided in West Virginia where Mrs. Vaughan had previously spent some time in a state mental hospital. She was apparently on a trial home visit at the time the Vaughans moved to Arizona.

On October 16, 1969, Mrs. Vaughan was ordered to be committed to the Arizona State Hospital pursuant to a hearing in Superior Court of Pima County, Arizona. Subsequent to her commitment, Mrs. Vaughan was examined by the hospital and found to be suffering from arteriosclerosis and senile dementia. On December 8, 1969, Mr. Vaughan was informed by state hospital personnel that Mrs. Vaughan would be returned to West Virginia shortly after Christmas because she was a non-resident within the meaning of A.R.S. § 36-522, Subd. B.

Seeking to avoid the return of Mrs. Vaughan to West Virginia, this action was filed on December 15, 1969. On December 23 and 30, 1969, psychiatric examination and interviews of Mrs. Vaughan were made by doctors at the state hospital, and it was concluded that custodial psychiatric hospitalization was inappropriate. In accordance with these medical opinions, defendant Superintendent determined that Mrs. Vaughan was subject to discharge. Said discharge was to be complete on or before February 23, 1970. At the time oral argument was heard in this case on March 30, 1970, Mrs. Vaughan was still at the hospital, officially discharged, but awaiting her husband to resume custody over her.

ABSTENTION

Defendant contends that this is a proper case for abstention. The Court disagrees. The doctrine of abstention should not be applied simply to afford state courts the first opportunity to pass on federal constitutional claims.² Zwickler v. Koota, 389 U.S. 241, 248, 251, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Abstention is not appropriate where the state statute is not susceptible of "a construction by the state courts that would avoid or modify the constitutional question." 389 U.S. at 248, 88 S. Ct. at 396. The statute in question, A. R.S. § 36-522, is not challenged as being unconstitutionally "vague." The only construction which would avoid or modify the constitutional question raised herein would be one that either eliminated the waiting period in Subd. B entirely, changed it to a lesser period of time, or held that the Superintendent had no discretionary authority under Subd. A to return patients to their home states or to the homes of known friends or relatives. Such an interpretation would be legislation, not construction.

MOOTNESS

Defendant further contends that the case has become moot because of the discharge of Mrs. Vaughan from the State Hospital.

Defendant cannot, by his own voluntary conduct, moot the case and thereby deprive the Court of jurisdiction. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1952); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.1968); Cypress v. Newport News General & Nonsectarian Hospital Ass'n., 375 F.2d 648 (4th Cir.1967); Walling v. Alaska Pacific Consol. Min. Co., 152 F.2d 812 (9th Cir.1945), cert. den. 327 U.S. 803, 66 S. Ct. 960, 90 L.Ed. 1028; Gaddis v. Wyman, 304 F.Supp. 713, 716 (S.D.N.Y. 1969); Kelly v. Wyman, 294 F.Supp. 887, 890 (S.D.N.Y.1968); Heilberg v. Fixa, 236 F.Supp. 405, 407 (N.D.Cal. 1964), aff'd. sub nom.; Lamont v. Postmaster General of United States, 381 U. S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398.

Even were the case moot as to plaintiff Mrs. Vaughan, the suit would not be moot as to the other members of the class. Jenkins v. United Gas Corp., supra; Kelly v. Wyman, supra, and Gaddis v. Wyman, supra. See also Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 207, 24 L.Ed.2d 209 (1969) (per curiam). Defendant cites Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 202, 24 L.Ed. 2d 214 (1969), for the proposition that plaintiff cannot represent a class of whom she is not a member. Hall indicates that the plaintiff therein was never a member of the class he purported to represent. In Brockington, decided the same day as Hall, the Supreme Court suggests that defendant's interpretation of Hall is incorrect.

"Rather, in view of the limited nature of the relief sought, we think the case is moot because the congressional election is over. The appellant did not allege that he intended to run for office in any future elections. He did not attempt to maintain a class action on behalf of himself and other putative independent candidates, present or future. He did not sue for himself and others similarly situated as independent voters, as he might have under Ohio law. Ohio Rev.Code Ann. 2307.21 (1953). He did not seek a declaratory judgment, although that avenue too was open to him. Ohio Rev. Code Ann. 2721.01-2721.15 (1953)." 396 U.S. 45, 90 S.Ct. at 207.

The fact that at the time of oral argument there was no one in the class Mrs. Vaughan purports to represent should have no bearing on the mootness question. The record indicates that in recent years thirty to thirty-five patients are returned each year to their respective states of origin pursuant to A. R.S. § 36-522. At least two patients were so returned subsequent to the filing of this action. It is the very administrative action challenged herein which produces the short life of the class plaintiff wishes to represent. What is involved here is a problem "`capable of repetition, yet evading review.'" Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). It is an appropriate time for a determination to be made.

THE RIGHT TO TRAVEL

In Shapiro v. Thompson, supra, the Supreme Court held that a statutory prohibition of welfare benefits to residents of less than one year's duration constitutes an invidious classification which penalizes the exercise of the right to travel, and which, in the absence of a compelling state interest, clearly violates the Equal Protection Clause. Plaintiffs argue that Shapiro is dispositive of the situation herein. We agree.

The effect of A.R.S. § 36-522 is to create two classes of mental patients indistinguishable except on the basis of the length of their residency in Arizona. A statutory scheme which allows a state official to withhold fundamental public benefits to residents of that state on the basis of whether or not they have resided therein for the duration of one year constitutes an "invidious classification." 394 U.S. at 627, 89 S.Ct. 1322. The classification has a particularly onerous effect on patients who are indigent or financially needy since they are without the means to obtain alternative treatment. They must acquiesce in the Superintendent's decision to be returned to the state of their former residence, or be deprived of essential mental health care.

Given the existence of an invidious classification, the crucial question posed by the reasoning of the Shapiro case is whether the classification in this case penalizes the exercise of the right to travel. In Shapiro the Supreme Court made it clear that the prospect of receiving no welfare benefits for a period of one year effectively deterred indigents from migrating. However, Shapiro did not result in wholesale demolition of all residence or waiting-period requirements. The Court noted that it implied:

"* * * no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel." 394 U.S. at 638, n. 21, 89 S.Ct. at 1333.

Thus, Shapiro did not hold that residence or waiting-period requirements per se penalized the exercise of the right to travel. The Court was more specifically concerned with the effect of residence requirements on the denial of public benefits "upon which may depend the ability of the families to obtain the very means to subsist — food, shelter, and other necessities of life." 394 U.S. at 627, 89 S.Ct. at 1327. The Court seemed to imply that the denial of these essential benefits was...