313 F. Supp. 653 | M.D. Penn. | 1970
OPINION OF THE COURT
The seven named plaintiffs at the time of filing the suit at bar
The plaintiffs have moved for summary judgment on the pleadings and on what are asserted to be admitted facts. A hearing was held on March 13, 1970 which partook to some degree the nature of a pretrial proceeding but argument was also held in respect to the granting or denial of the motion for summary judgment.
The Supreme Court has taken the position that constitutional questions should not be decided except on a full record. See Honeyman v. Hanan, 300 U.S. 14, 25-26, 57 S.Ct. 350, 81 L.Ed. 476 (1937), and Villa v. Van Schaick, 299 U.S. 152, 155-156, 57 S.Ct. 128, 81 L.Ed. 91 (1936). The record here is far from full and there are other difficulties in re
Another issue which immediately comes to mind in the light of Rule 23 is that the complaint itself alleges that the seven plaintiffs and those in whose behalf they bring the suit have been committed to Farview because they are allegedly “mentally disabled and in need of care.” We are aware, of course, that if Section 404 be held unconstitutional, their commitments are void but nonetheless they have been committed, we assume by those whose disciplines are medical or allied thereto, on the bases that the plaintiffs do possess disabilities of mind and do need therapeutic care. Is it not anomalous to have such persons act in a representative
The plaintiffs' view is that Rule 23 does not require any notice to be given to the members of the class whom they seek to represent but, as we pointed out at the argument, there is some strong authority to the contrary. We shall not pass upon this issue now but will defer its consideration to the final hearing. We therefore will make no determination at the present time as to whether or not the suit at bar shall be deemed to be a class action.
We also are much concerned as to whether the doctrine of abstention should be applied here. It is a maxim that equity will not adjudicate an issue where the problems of fashioning a remedy are so difficult as to be almost insurmountable. We have dwelt upon this large consideration at an earlier point in this opinion. There is also a maxim that equity delights to do justice and not by halves. If we hold the statute or its application unconstitutional, we are fearful that we cannot effect a remedy and do justice to the parties. There also may be strong statutory grounds for abstention under 28 U.S.C. Section 2284(5). See for example, Government and Civic Employees Organ. Com. v. Windsor, 116 F.Supp. 354, 357-359 (S.D.Ala.1953, aff’d sub nom. Government and Civic Employees Organization Committee, CIO, et al. v. Windsor, et al., 347 U.S. 901, 74 S.Ct. 429, 98 L.Ed. 1061 (1954). Perhaps this case is one in which this court should stay its hand pending disposition of the matters here involved by the courts of the Commonwealth in order to preserve the desirable harmony between the State and Federal systems. This issue had not been argued nor touched upon insofar as the record shows.
Under the decisions cited earlier in this opinion and until the record is amplified and clarified, we may not decide the issues presently before us.
One further matter concerns us. Notice was not given to the Governor of Pennsylvania nor to the Attorney General of Pennsylvania, as specifically required by 28 U.S.C. Section 2284(2). Notice of the final hearing will be sent to the Governor and Attorney General of Pennsylvania at least five days prior to the final hearing, as required.
An order will be entered denying summary judgment and the case will be set down for final hearing as soon as possible. At that hearing the parties shall submit such further evidence as they may deem necessary or desirable and shall argue the issues referred to in this opinion and any others deemed to be pertinent.
The interim relief sought by the plaintiffs will be denied without prejudice.
. We are informed that only two of the named plaintiffs are confined at Farview at the time of the filing of this opinion, and that five have been transferred to other institutions. Whether they should be stricken from the record or should be permitted to remain as plaintiffs will be a matter for further consideration at the hearing on the merits of the case.
. The number of such persons cannot be accurately estimated on the present record but it is agreed by the parties that it runs to several hundreds. The complaint also alleges that there are subclasses under the main Section 404 class but for the purposes of this opinion it is not necessary to enumerate or describe them.
. A three-judge court was sought by the plaintiffs and ordered by the Chief Judge of this Circuit pursuant to 28 U.S.C. Section 2284(1). An examination of the authorities convinces us that the constituting of the three-judge court was within the purview of the statute for the constitutional issues posed do not seem to be “insubstantial” in the sense of being plainly frivolous or to be patently meritorious. See and compare Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), and Baily v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).
. Can “Care” be equated with “Treatment”? They are not synonyms. The Pennsylvania Mental Health and Mental Retardation Act of 1966, supra, in Section 406, employs the term “care” as if it were quite separate from “treatment”, for subparagraph (a) states: “Whenever a person is believed to be mentally disabled and in need of care or treatment by reason of such mental disability * * (Emphasis added.)
. We will not now attempt to define the scope of the phrase “representative parties” in Rule 23(a). In view of our present disposition such a discourse is unnecessary and may be left for a later occasion.