PARHAM v. J. R.

Transcript: 

Argument of R. Douglas Lackey

Chief Justice Warren E. Burger: We will hear arguments next in 1690, Parham against J.L. and J.R. minors.

Mr. Lackey I think you may proceed, but before you proceed in case you were not in hearing when I announced that Mr. Justice Brennan is unavoidably detained for parts of these cases, but will participate in consideration and decision on the record of course, you may proceed.

Mr. R. Douglas Lackey: Mr. Chief Justice, may it please the Court.

This case comes to this Court from the United States District Court for the Middle District of Georgia.

At issue is the constitutionality of the Georgia Statute, which recognizes the right of parents and guardians to make application for admission of their minor children to State Mental Health facilities.

This law suit is predicated upon two grounds, the first ground is that these children have a constitutionally protected right to challenge their parent's medic decisions as to what medically indicated treatment will be provided to children and that the challenge statute here which provides for neither notice nor hearing before hospitalization deprives them of that right with that due process of law.

The second ground is that mentally ill children have a constitutional right when they receive state treatment from the State, to receive that treatment only in the treatment setting which is most appropriate to their condition.

This law suit was brought by two boys age 12 and 13 at the time of this litigation.

Each had been in state mental health facility for over five years, each had been admitted under the Challenge Code Section one by his parents, the other by his guardian and State Agency.

At the time of the trial of the litigation we admitted that these two boys as well as 44 other children who were then in the mental health facility could be treated for their condition in other facilities which we considered more appropriate.

Two facts which do not appear in the record, but which I want to bring to Court's attention is that one of the plaintiffs is now deceased J.L. the other is that, some of these children are still in the hospital.

The District Court in essence agreed with appellees on both grounds, finding that in fact the children have a liberty interest and that they were deprived of it by the operation of this statute and finding that the children had a substantive due process right which was violated by the operation of the statute.

There are in essence two issues before the Court then, the first is whether these children are entitled to procedural due process rights and whether they receive it under statue and the second is whether the children have a right if they are to receive treatment from the State to receive that treatment only in the best facility, turning to the first issue --

Chief Justice Warren E. Burger: I thought earlier you had said something to the effect that the request, the demand was for treatments suitable to their needs or something that effect, now you mean that to be the same as the best treatment available?

Mr. R. Douglas Lackey: The language that the District Court used was the treatment setting most appropriate to the child's condition and we interpret that to being the best, that anything less than the best would not be the most appropriate.

Chief Justice Warren E. Burger: Do you read the District Court's decree as to the 46 individuals with whom it entered specific instructions as to placement to foreclose this State from simply releasing them entirely.

Mr. R. Douglas Lackey: No sir, I do not.

Chief Justice Warren E. Burger: I maybe getting this case confused with preceding case, is there any claim for damages on the behalf of the children against the parents.

Mr. R. Douglas Lackey: Yes sir, the complaint asked for $10,000 damage for each child, the District Court did not address that issue.

Chief Justice Warren E. Burger: From the parents?

Mr. R. Douglas Lackey: No from State, from the State employees.

Chief Justice Warren E. Burger: But they are not asking for damages against their parents for the decisions and actions of the parents?

Mr. R. Douglas Lackey: No sir, the parents are not parties to this law suit.

They are in essence with respect to the procedure due process issue, three sub issues, one of which the Court itself advanced that being the question of State Action here.

The other two are the question of whether a child in fact has a liberty interest in this situation and if a child does have liberty interest there is State Action what processes do.

Turning first to the liberty interest we look to the District Court's analysis of the case the District Court said in essence that children have a liberty interest for the Supreme Court of United States said so in its decision in the case of Henry Goll (ph).

Hospitalization is a massive curtailment of that liberty for again the Supreme Court said so in Humphrey versus Cady.

The District Court then put the two together and concluded that these children were deprived of liberty interest or that due process of law.

Our position is, is that the District Court's analysis is flawed because the District Court focused on the wrong interest.

It is a fundamental or a threshold issue that in any litigation where what is challenged or what is alleged is a deprivation of a constitutionally protected interest that you must look to the interest itself to see whether in fact it can be fairly said as in this case to fall within the diameter of the Fourteenth Amendment.

Well we suggested the Court that the interest is here is the interest in the child to challenge his parent's medically indicated decision, for that is exactly what the District Court is allowing the child to do by asserting that the child is deprived of the liberty interest by being hospitalized.

It is our position that this analysis is inconsistent with the inferences that can be drawn from this Court's opinions, State Court decisions as well as the history of western civilization.

In our civilization in our society we have determined that children cannot make certain decision for themselves.

One of these decisions that we -- one of these area in which we have made this determination is in the area of selecting medically indicated treatment both at common law and in case law of this country, we have said that parents select medically indicated treatment for there children, their children do not select that treatment themselves.

Justice Thurgood Marshall: There is a difference between mental and ordinary hospitals.

Unknown Speaker: Is there a difference?

Mr. R. Douglas Lackey: Yes sir, there is a difference.

Justice Thurgood Marshall: For example in the mental hospital you are restrained.

Mr. R. Douglas Lackey: Yes sir, you are restrained in a sense there is no denying that.

I think the record in this case discloses --

Justice Thurgood Marshall: That the parent has right to restrain the child.

Mr. R. Douglas Lackey: Well a parent has the right to restrain a child independent of this case, but I think what the record discloses here --

Justice Thurgood Marshall: For how long?

Mr. R. Douglas Lackey: I suppose parents restrain children until they reach their majority.

Justice Thurgood Marshall: You could not restrain the child entering the school.

Mr. R. Douglas Lackey: No that is correct, you could not.

Justice Thurgood Marshall: So it is not that broad, is it?

Mr. R. Douglas Lackey: It is not absolute, of course not --

Justice Thurgood Marshall: Of course you do recognize the difference between the families right to see that a child's tonsils are taken out, as contrasted to being committed for rest of his life.

Mr. R. Douglas Lackey: I can see a difference in those two extremes certainly Your Honor.

I would suggest that what I am -- the point I am trying to make here, quite honestly Sir is that if there is a liberty interest in the child at all to challenge his parent's decision to hospitalize him.

That liberty interest must cut completely across the whole spectrum.

It is not plausible to say that a constitutional right exist in a child when the child's parents wants to place him in a mental hospital.

Unknown Speaker: Well you do not suggest -- I take it you do not suggest maybe you do, the parent's consent or decision is sufficient in itself.

Mr. R. Douglas Lackey: I am sorry Sir, I did not understand your question.

Unknown Speaker: Your submission that the child that the lacks liberty interest to such an extent that the parent's decision standing alone is enough.

Mr. R. Douglas Lackey: No in this circumstance the parent's decision standing alone is not enough in actuality in any case where what we are speaking of is medically indicated treatment the parent's decision is not enough the State --

Unknown Speaker: What else must there be besides the parent's decision to hospitalize the child?

Mr. R. Douglas Lackey: In this specific case there must be the concurrence of a physician that what the parent desire for the child is actually what is in the child's best interest.

Unknown Speaker: So somebody should look over the shoulder of the doctor and the parent or not?

Mr. R. Douglas Lackey: Our position is that no one should look over the shoulder of the doctor and the parent or the doctor.

Unknown Speaker: Together, if they act together.

Mr. R. Douglas Lackey: Pardon me Sir.

Unknown Speaker: If they act together.

Mr. R. Douglas Lackey: If they act together.

Justice Thurgood Marshall: And this physician could be an obstetrician?

Mr. R. Douglas Lackey: Yes Sir.

The law in Georgia and in most of the States makes no difference between different practitioners of medicine, it simply defines them as physicians.

Justice Thurgood Marshall: So I mean obstetrician can say this child is dangerous and needs mental treatment.

Mr. R. Douglas Lackey: No Sir he would not have to say that the child is dangerous, all he had to say is that the child is mentally ill and suitable for treatment.

Justice Thurgood Marshall: And he therefore got to -- well he is in still an obstetrician.

Mr. R. Douglas Lackey: Yes, Sir he could be an obstetrician.

Chief Justice Warren E. Burger: What is done in practice as a matter of fact do they use obstetricians for this propose?

Mr. R. Douglas Lackey: No Sir, they do not.

Chief Justice Warren E. Burger: Going back to this dichotomy between the mental and other disease.

If a parent puts a nine year old child in the hospital to have his appendix or tonsils taken out.

Do you suggest that, that child could be released from the hospital by anyone except the consent of the parents on the hospital.

Mr. R. Douglas Lackey: No Sir and I do not think that, that surgery could be authorized by anyone other than the parents or if the Court found that the parents were acting bad faith and denying the child the treatment he needed of course the Court could.

Chief Justice Warren E. Burger: And if the hospital let the child out on the child's request, while still under care in the recuperative stages from the surgery, the hospital would surely be exposed to malpractice suit, will they not?

Mr. R. Douglas Lackey: Yes, Your Honor, I would excepted that they would lose.

Chief Justice Warren E. Burger: The hospital does not release any minor without the signature of the parent when the child has been in the hospital for treatment is it not that so?

Mr. R. Douglas Lackey: I believe so.

Justice Thurgood Marshall: Do you know the law in Georgia is on that --

Mr. R. Douglas Lackey: The law in Georgia requires -- I am sorry I do not have this specific cite I think it is 8819 Federal 88 Chapter 19, has a consent law and requires the consent of the parents before medical treatment can be rendered to children.

Georgia Code Section 74 --

Justice Thurgood Marshall: And before they can be released from the hospital.

Mr. R. Douglas Lackey: Georgia Code Section 74 of 104 makes parents explicitly responsible for the welfare and care of their children and I -- there is no law that says before a hospital can release a patient.

I am sorry I am going around your question Sir --

Justice Thurgood Marshall: I do not want you to get out of what you did not know what you are talking about you could say.

Mr. R. Douglas Lackey: There is no question that I cannot say and I do not believe that there is a law that says, that with respect to any facility a hospital has to have parent's permission, there is a law here that says that if the child wants to leave his leaving can be conditioned upon the consent of his parents.

In this law suit there is actually --

Justice Thurgood Marshall: That is the mental law.

Mr. R. Douglas Lackey: That is correct Sir.

Justice Thurgood Marshall: Which is the one that is before us.

Mr. R. Douglas Lackey: That is correct and I am not familiar with any similar requirement in a State -- medical treatment area.

Let me get back to your question or your point Mr. Chief Justice.

What our point is, is if we say that there is a liberty interest here, then similarly there is a liberty interest in that child who is going to have his tonsils taken out.

I think we perhaps used a really gruesome example in our reply brief, but I think it is appropriate and that is a situation where a parent takes a child to a physician and a physician says your child is exhibiting signs of cancer the treatment for which is the removal of his leg.

Under the very liberal definition of liberty that the District Court applied, clearly the consequence is that parental decision is going to be to deprive the child of his liberty again as the District Court has defined it and as the United States noted in its amicus brief it would be unprecedented to argue that the child has a liberty right.

A right to due process in that situation and in fact no one argues that, there are simply arguing that in this particular case mental illness.

This child has a right to due process.

No one argues that he would have that right in any other area and we suggest that, that is simply inconsistent with the way constitutional rights have been defined.

Unknown Speaker: Well to put it strictly, everybody has a right to due process do they not?

If they are going to be denied a liberty of property interest, you never reach a conclusion that the due process clause is not applicable or something, you can say that what was done did not deprive them of any liberty or property.

Mr. R. Douglas Lackey: That is correct Sir, but at the point we are and the argument right now, it is our position that a child does not have a liberty right at all.

At this point vis-a-vis his parents not vis-a-vis the State.

Constitutional rights, I believe you can say do not exist in the abstract they exist because of relationships.

You might say that there is a constitutional rights when you got the parents or the Child versus State as in the case of Henry Goll, we are talking about the parent and the child and the parent making the decision for the child, we say that there is no liberty interest and that is where the Court should have focused first and did the District Court.

Justice Thurgood Marshall: But general-- why not to narrow it, the child still has some liberty rights.

You just talked about the one liberty that is involved here.

Mr. R. Douglas Lackey: Yes Sir, that is correct.

Justice Thurgood Marshall: You keep broadening it out and I would not broaden it too much.

Mr. R. Douglas Lackey: I certain would not intend to say that the child does not have any liberty interest.

Only a liberty interest not to challenge his parents medically indicated decisions, that is how nearly I want to define it and I do not mean to broaden it any more.

However even if the Court decides that in fact there is a liberty interest here that could be protected, the second question is the one that was advanced by the Court itself and that is why there is, whether or not some State Action involved in this case.

Now the best way to address the State Action question from our perceptive is to consider what this Court said Burton versus Wilmington Parking Authority and that is that you have to look at the case and set the facts and circumstances to determine will there be a State Action here.

What we can say is that the challenge statute here does not authorize parents to provide medically indicated treatment for their children.

It does not encourage it, we do not go out and seek the children.

The best characterizations of what we do is we provide a resource and that is it.

We provide resource just as any private hospital would be a resource.

We simply are fulfilling a proprietary function in this case and as I said our position is, is that it ought to be looked at from a practical stand point it seemed impractical --

Unknown Speaker: But, you would not take the child just on the say-so of the parent and the parent's doctor.

Mr. R. Douglas Lackey: That is correct Sir, we will not.

Unknown Speaker: So you go through still a further procedure.

Mr. R. Douglas Lackey: The way we have characterized it is, that we do in fact have a gatekeeper.

We do in fact have a gatekeeper.

But what we do is we decide that --

Unknown Speaker: And you decide that is how that is medically indicated to or that treatment is indicated.

Mr. R. Douglas Lackey: That is correct.

We decide that the child meets the criteria of being mentally ill and suitable for the treatment, but of course that is the same function that any doctor provides in any hospital and what we are saying is that it seems illogical to say that if a parent has money, if he has assets, if he has resources, he can go to a private facility and if the psychiatrist or the physician or the whatever agrees with him, he can put his child in that hospital without going to a Juvenile Court proceeding.

Without going through an adversarial hearing, but if he does not have the money, if he does not have the assets, we are going to make him go to an adversarial proceeding.

If he has to go to a Juvenile Court get a lawyer, get a lawyer for his child or the Court will point him of course.

Unknown Speaker: Ask to your gatekeeper, he can say no as to admission to a State facility for the parents and their doctors have said yes.

But he can not say yes if the parents or their doctors say no.

Mr. R. Douglas Lackey: That is correct.

That is really follows from what the Court said in Jackson versus Metropolitan Edison what we are doing is we are allowing a choice, that the parent has to initiate.

The parent has to initiate the action or the guardian has to initiate the action that leads child to the hospital.

Chief Justice Warren E. Burger: What due process protection does the child have in your view, if the parents are affluent and simply take the child to their own private psychiatrist or child specialist and that doctor recommends commitment and the commitment takes place in a private hospital.

Any hearing --

Mr. R. Douglas Lackey: That child receives absolutely nothing. He does what his parents tell him, and the parents of course decide what to do based on the doctors advise.

I think that is our main point that if in that case that parent can put that child in that hospital, but here he is going to have go through an adversarial process to achieve the same result which is simply to get mental health treatment for his mentally ill child.

The set --

Justice Thurgood Marshall: In the private hospital, it also a subject to Habeas Corpus, is it not?

Mr. R. Douglas Lackey: Yes Sir, and I think that the law would allow you to challenge the place and the reason for your attention even in a private facility.

Chief Justice Warren E. Burger: And if apart from that what would you think about the claim of the child, that he was wrongfully committed for wrongful, improper reasons in a malpractice suit against the physician.

Mr. R. Douglas Lackey: He would certainly have a false imprisonment suit against the physician.

He could not sue his parents in Georgia.

Chief Justice Warren E. Burger: Even if he did not have one against his parents.

Mr. R. Douglas Lackey: That is correct.

Unknown Speaker: Because of the existence of that possible liability do not the private institutions follow precisely the same procedure as the State institutions does.

Do not they examine before they admit.

Mr. R. Douglas Lackey: Yes Sir --

Unknown Speaker: So what it the discrimination?

Mr. R. Douglas Lackey: The discrimination that I was addressing if it exist at all is one based on wealth of course and it is simply the --

Unknown Speaker: But the wealthy person must have -- the wealthy parent can commit the child if the parent of the committing institution -- I mean if the doctor of the committing institution will receive the child.

That is exactly what happens here, but you are saying that will continue to be the case whereas the District Court changed the rule for the Court.

Mr. R. Douglas Lackey: If the District Court orders stands unchanged that will be not be the instance with respect to the public hospitals, they will continue to be so with the private hospitals.

There would be no reason for them to change the as they are (ph).

The second issue with the respect to State Action of course is what happens once the child is in.

I just want to briefly touch that and make the point that we made in our brief that our position is, is that once that child is in the facility as long as he continues to meet the minimum criteria, we simply act as does any custodian of the child, that the parents has entrusted his child to, we release the child when the parents wants the child.

We do not release the parent -- assuming these minimal conditions are met with the child, if parent wants the child to stay in.

Even if the Court finds that there is a liberty interest in State Action here of course, we still got the issue of what process is due.

Unknown Speaker: Now, one of these named plaintiffs; now I realize one of the them is now deceased, but some members of this class were committed at the behest of the State as guide --

Mr. R. Douglas Lackey: That is correct sir.

Unknown Speaker: And in that category, it clearly is State Action I suppose, the State initiates it.

Mr. R. Douglas Lackey: I concede State Action.

Unknown Speaker: You did concede it.

Mr. R. Douglas Lackey: Yes Sir.

Unknown Speaker: So really your argument is at a moot is it not?

Mr. R. Douglas Lackey: Well Sir, If I lose the argument on the children who are placed by State Agencies and prevail on the State Action on those children that are not I would have succeeded since the vast majority are admitted by their parents.

Chief Justice Warren E. Burger: Right, well even when the parents bring the child to the hospitals as soon as the State employed physician, psychiatrists enters the and participates in the commitment would you say that is or is not State Action.

Mr. R. Douglas Lackey: I would say that, that is of course State Action.

I would say that it does not rise to the level necessary to implicate the Fourteenth Amendment.

Chief Justice Warren E. Burger: But if it is a State Action of that stage.

Mr. R. Douglas Lackey: I cannot deny, that a State Action of the State --

Chief Justice Warren E. Burger: In the same way that a State Action and if the State was proceeding as a guardian Ad litem for the child.

Mr. R. Douglas Lackey: There is a different level a different quantum of State Action, but yes sir, State Action --

Unknown Speaker: But it is part of your position and that participation by the State namely the doctor of the institution takes a look at the child.

That is an essential condition to the deprivation of liberty, assuming it is a deprivation, assuming it is a liberty --

Mr. R. Douglas Lackey: Assuming it is a deprivation it cannot be accomplished without the physician's approval.

Unknown Speaker: And if it is essential because it is part of the regular procedure and are you still arguing it is not State Action?

Mr. R. Douglas Lackey: I am saying that all – it is not a progression, the parent has already decided that the child needs to be in the hospital.

Unknown Speaker: But he cannot get in the hospital unless the State examines him and says yes you can come in.

Mr. R. Douglas Lackey: That is correct, but what the State is doing is the State is saying, it is simply affirming the parent's decision.

Unknown Speaker: But you are arguing (ph) him on the merits is it, that is an essential part of the procedure.

Mr. R. Douglas Lackey: I agree, that is correct Sir.

Unknown Speaker: And you still say it is not State Action.

Mr. R. Douglas Lackey: It makes the State Action very difficult.

Unknown Speaker: And they not only do not let him in unless they agree, but then they implement the decision.

Mr. R. Douglas Lackey: They do not let them; that is correct they treat them, they treat them.

Even if you find that there is liberty in State Action the question is what process is due.

Our position on this is similar to Judge Relling's (ph) and his opinion in Drummond versus Fulton County Department of Family & Children's Services where he said due process does not require in every instance an adversarial proceeding.

It simply requires rational decision making process.

In this case what happens is, a parent decides that a child is mentally ill for one reason or the another.

He decides because of the child's odd (ph) behavior, he decides it because physician tells him so.

He brings the child to a hospital and I am simplifying the procedure, the record clearly discloses that almost uniformly children are taken from the parents to the community mental health centers and if they can be treated as outpatients they are treated there and then only if that fails they are brought to the hospital, but I am simplifying it just for explanation.

They bring the child to the hospital, the record clearly discloses that at the hospital the child is examined by a team.

They use a team approach which may include a psychiatrist, a --

Unknown Speaker: So then the parent does not necessarily come to the hospital armed already with a physician's decision.

Mr. R. Douglas Lackey: No that is correct Sir, he does not.

Chief Justice Warren E. Burger: He may come with the family physician, but then that is subject to screening by the State authority.

Mr. R. Douglas Lackey: That is correct.

Unknown Speaker: But the State will examine the child and take the child even though there is no other medical opinion but the State's.

Mr. R. Douglas Lackey: That is correct, that is correct.

Justice Thurgood Marshall: Is it not true that, in the average case the only qualified psychiatrist is a State psychiatrist?

Mr. R. Douglas Lackey: Yes, I would agree with that.

Justice Thurgood Marshall: So I mean that the ultimate decision as to the mentality of the child is made by the State doctors.

Mr. R. Douglas Lackey: That is correct.

Justice Thurgood Marshall: I do not say that harms the case, no but that is true.

Mr. R. Douglas Lackey: That is correct I do not deny that.

The point I was making is that they – it is a team approach when they come to the hospital, you have got as I said psychiatrist, psychologists social workers, mental health therapist who the record discloses contacts Schools or community, the courts, the Police to try to get a picture, they talk to the child, they talk to his parents and then they decide to admit it and that is probably our biggest difficulty here.

It just seems that is clearly a rational decision making process.

That State has no stage in admitting the child, there is no proof that the child or that the State gets anything if the child is admitted.

The records clear that we do not operate capacity in our hospitals.

The records is replete with evidence on that basis.

But even if the child is mistakenly hospitalized, even if the child's parents have the wrong motives to bring that child to the hospital, even if the doctors just completely do the wrong thing and admit the child, the child still has access to the Courts and I think that, that ought to be considered, it has not been considered yet.

Chief Justice Warren E. Burger: By what processes do you mean, Habeas Corpus for example.

Mr. R. Douglas Lackey: Of course they have Habeas Corpus, but that is not what they need to rely on.

There are specific provision in Georgia Code Chapter 88 filed at the mental health code that the children or that any patient can go to the Probate Court of the county and claim that the chapter is being abused.

Chief Justice Warren E. Burger: How does a seven-year-old child set those proceedings in motion.

Mr. R. Douglas Lackey: Well, Your Honor I do not want to appear flip with my answer, but I would refer the Court to its decision in Bellotti versus Baird where the Court of course had an abortion decision but the Massachusetts Statute said that parents could be required to consent to the abortion of -- a child could be required to get his parents consent, but if the child could not get his parents consent it could then go to the Courts and get an order.

She could then go to the Courts and get an order authorizing the abortion and it would appear that the ten, eleven, twelve year old child who is in this case would get to Court the same way the ten, eleven, twelve, thirteen year old girl would get Court in Bellotti.

The Statute, that the child need not rely especially on that.

There is also the provision in the Court that requires DHR to provide access to counsel if the patients need it.

The record will disclose and I do not think the appellee's dispute that we provide an office space for these Attorney's in our mental health facility and that it was our staff that referred these children to these lawyers.

I think that the system in its totality demonstrates the children cannot get into Court.

Chief Justice Warren E. Burger: Let me take the reversal, Mr Justice Marshall's hypothetical Statement suppose the family physician and two private practitioners of psychiatry bring the child to the stage and say we think the child should be committed and the State psychiatrist makes the usual examination and says no I think this child just needs outpatient treatment and I will not commit that would be the end of the matter would it not.

Mr. R. Douglas Lackey: That is correct Sir.

Chief Justice Warren E. Burger: No one could force this State to take the child.

Mr. R. Douglas Lackey: That is correct Sir.

Justice Thurgood Marshall: You do not have to mandamus his family?

Mr. R. Douglas Lackey: Yes, but you can not mandamus someone to perform a discretionary function and that is what this would be.

They could mandamus him to perhaps examine the child but they could not mandamus him to admit him.

There is one issue that I do not want to get away from, I do not want to sit down without addressing it and that is the substantive due process issue because that -- I know I have spent a lot of time when the procedural question -- but that is the nut of this case; that is why this case was brought in the first instance and we think that the District Court's decision there was incorrect and has to be reversed.

What the District Court has said us in this substantive due process question, is that if a parent brings a child to a State Mental Hospital and our physician examines that child and he says, “this child is mentally ill, I can treat him in my hospital, I can give him some benefit, but if I had my choice I would give him or I would send him to group home or specialized foster home, then we cannot provide treatment for that child if we do not have that specialized foster home or that group home.

What the District Court has said is that if we are going to provide treatment for these children, we have to provide the treatment in the most appropriate treatment setting and if we do not have it we can not provide the treatment.

Now the absurdity of this is that if a parent, if an adult rather comes to our hospital, he has got Schizophrenia, paranoid type, even if he is not appropriate for hospitalization in this case they have adult foster homes.

Even if he is not appropriate for hospitalization, he can go into that hospital because he has presumed to be able to assume the risk of going into the hospital.

But under the Districts Court's decision, if a child comes to that hospital with that exact same condition, we cannot put that child in the hospital, his parents cannot waive his constitutional rights under the Districts Court's opinion and that child will go without a treatment until that child either degenerates the point where hospitalization is appropriate or until the parent is able to find some private care for him.

And it just does not seem to be a logical result to us and it is certainly one that should not be allowed in this case.

It just is a result that should be avoided and I know when our reply brief I accused the I think it is perhaps the wrong word, but I mentioned a parade of horribles and I do not want the Court to think that, that is what I am doing here.

Any fair reading of that District Court's decision, particularly when coupled with the order denying the stay, makes it absolutely clear that the District Court said I find that every moment of inappropriate hospitalization of a child denies that child a substantive due process interest.

Every moment of inappropriate hospitalization and he has found that it was inappropriate when we could think of some other treatment setting that was more appropriate.

Unknown Speaker: You think under the order the -- I think you were asked to survey on this, State may completely release the 46 children.

Mr. R. Douglas Lackey: Yes Sir, there is no question in my mind that we can do that.

Unknown Speaker: The State has been ordered to provide them with the more appropriate setting.

Mr. R. Douglas Lackey: No sir, but we do have a slight problem.

Some of the 46 children that were at issue here are already in our custody and that is why this issue is not -- is right, I know this several amici suggested that it is not, but they obviously would not be aware of this thing that we do have custody of certain --

Unknown Speaker: You have been -- with respect to them you must provide the State must -- has been ordered to provide different treatment setting.

Mr. R. Douglas Lackey: The most appropriate treatment setting Sir.

Thank you.

Chief Justice Warren E. Burger: Mr. Cromartie.

Argument of John L. Cromartie

Mr. John L. Cromartie: Mr. Chief Justice, may it please the Court.

The issues in this case are very narrow although difficult, I would like in my argument to deal first with the procedural due process issue and then deal with the substantive due process issue if the Court will permit it.

Chief Justice Warren E. Burger: Very specifically would you explain at least for my benefit why the presentation of the child by the parents to the State psychiatrist and the processes that then occur is not sufficient due process.

Mr. John L. Cromartie: Right Your Honor, we feel that the process of examination by the Superintendent is inadequate as a due process substitute for several reasons first --

Unknown Speaker: Well the claim is not that it is a due process substitute, but that it is adequate under what is required by the Constitution that it is due process.

Chief Justice Warren E. Burger: But it is all the process which is due, in the circumstances --

Mr. John L. Cromartie: Yes Your Honor, I stand corrected on that.

We feel that for several reason though it is inadequate.

First of all it is not really a hearing at all it is not processed there, there is no notice to the child of what will happen during this interview.

There is no requirement of looking at other resources in the test under the Georgia Law.

Virtually all of the information comes from the parents and later in my argument I will develop the conflicts of interest inherent between the parent and the child, that information is unverified and frequently inadequate that comes through that process in essence there is no structure whatsoever.

Secondly--

Chief Justice Warren E. Burger: Are you suggesting that there is inherently and universally a conflict of interest between parent and child in this setting.

Mr. John L. Cromartie: We feel that there are substantial, there is a substantial chance that there are conflicts of interest between parent and child inherently, yes Your Honor and I can get into that argument there and jump from the Superintendent's argument.

Chief Justice Warren E. Burger: Continue in your own order.

Mr. John L. Cromartie: The Superintendent's decision though is inadequate for number of other reasons.

The State has contented that the informality is adequate because of a comprehensive screening process that happens prior to coming to the hospital.

The State's own witnesses established that, that screening process is inadequate Dr. Filley testified that it is not mandatory that, that screening process can be and is some times ignored.

Dr. Filley testifies that the development of community screening resources are lagging far behind those of adult and finally you have the fact involving J.L. and J.R. both of them were screened by a community screening process and yet and the recommendation of their therapist was, was that they should not be hospitalized and yet that recommendation was not even considered by the admitting physician and I think that those facts go to show how inadequate that community screening process is.

Next we are relying on the fact of the uncertainty of the diagnosis that this Court has noted before in terms of psychiatrist the tentativeness of professional judgment we have expert witnesses who testify to the institutional biases, that are reflected through the decision of institutional psychiatrist and finally the District Court went to these facilities looked at the admissions process.

And they found that the admission process as setup does not provide due process protection so for all of those reasons we do not feel that the Superintendent decision is sufficient.

Unknown Speaker: When you say that District Court went to the hospitals and looked at the procedures, did one or more of the judges sit in on -- say an interview between the psychiatrist and the family or --

Mr. John L. Cromartie: I do not know of know of any interviews that they sat in on all three judges Judge Bell, Judge Buddle (ph), Judge Owens visited two of the facilities one at the choice of the defendant and one at the choice of the plaintiff and they state in there decision that during those days that they were visiting the facilities if they talk with state employees and talk with patients and during that process talked about the admissions, procedures, about the treatment in there all of this issues, but I do not think there is any thing in the record to indicated that they actually sit in on the interview themselves.

Chief Justice Warren E. Burger: Did either of the of the parties have an opportunity to cross examine the Judges about their observation was there any adversary process pretending the Judge's view?

Mr. John L. Cromartie: Other than the exchanges that occurred during the hearings, there were several hearings that took place, but there was no right to cross examine the Judge.

I know of no such right.

Justice Thurgood Marshall: What would your idea be of be of an adequate hearing?

Starting out you need a Judge.

Mr. John L. Cromartie: Yeah, we do not feel that the Court needs to reach that issue, but if the Court decides to reach the issue we think that at least some sort of deliberations some impartial hearing examiner whether they be Judge or whether they be other professional might well suffice we focus in on --

Justice Thurgood Marshall: A State psychiatrist?

Mr. John L. Cromartie: It perhaps could even be State psychiatrist, we --

Justice Thurgood Marshall: Well do you not have that at times?

Mr. John L. Cromartie: Your Honor, you have State psychiatrist in the same institution and Dr. Messinger (ph) testified very clearly that there institutional biases that work there --

Justice Thurgood Marshall: Well is it the bias that they want more people?

Mr. John L. Cromartie: Your Honor, the testimony was from Dr. Messinger was that frequently psychiatrist in an institution tend to over institutionalize they tend to --

Justice Thurgood Marshall: Did he also testified that it is hardly possible to get two psychiatrist degree on anything --

Mr. John L. Cromartie: Well that is the part of the unreliability of the whole process the danger I would much prefer that the hearing be held in front of a Judge or at least some other substitute such as that --

Unknown Speaker: Now all of these defects and doubts that you are not talking about are equally applicable I suppose, when the question is whether an adult should be received in one of these hospital, is it not?

Mr. John L. Cromartie: Yes Your Honor.

Unknown Speaker: I mean the same uncertainty about science of psychiatry and the same biases pro-institutional biases on the part of psychiatrist and so on and there is no claim that an adult presents himself after having consulted with a doctor, that anything is required beyond what is presently accorded, is it?

Mr. John L. Cromartie: You are speaking with the voluntary admission --

Unknown Speaker: Yes I am speaking of voluntary admission.

So this case really boils down, parses down, does it not, to the claim that the understanding of the law that has existed for centuries that a parent makes decision for his minor child is invalid.

Mr. John L. Cromartie: Yeah we do not feel that parents have been able to institutionalize their children in State mental institutions for centuries, not until --

Unknown Speaker: Well, has not that been the presumption of the law forever.

The Anglo-Saxon law that now there is matter of definition, what is a child?

I suppose that law has never said that person 35-years-old is still a child, but subject -- setting aside those problems of definition, has not the law always been that a parent makes decisions for his or her minor child where that child is going to be educated, how that child is going to be punished, where that child --when and if the child is going to go the hospital, what time the child is going to bed, what time he is going to get, up, what time he is going to have breakfast, lunch and dinner.

The implicit recognition of the law in our society.

Mr. John L. Cromartie: The explicit recognition of I would think --

Unknown Speaker: Or both.

Mr. John L. Cromartie: The traditional way that we protect children is through the parents and we are asking the Court here under these very narrow circumstances that is institutionalization in a mental hospital that the traditional way we protect children is not valid here and we think that the evidence in this case clearly leads to that sort of conclusion if I may review some of the --

Unknown Speaker: The jest is that your attack is on that basic presumption in this context is it not?

Mr. John L. Cromartie: I think it has --

Unknown Speaker: Because there is no attack at all on the procedures, and so far as they are applicable to adults.

Mr. John L. Cromartie: No Your Honor, there is not there, of course the difference between those two I think is, that in the case of an adult of course it is truly voluntary, I mean --

Unknown Speaker: Well this is voluntary, if you presume that a parent can stake for its child.

This is purely voluntary --

Mr. John L. Cromartie: Yes Your Honor, part of our argument is that the traditional protections though for the child are not here under these instances and let me review for you.

The basis --

Unknown Speaker: Before you get to that review tell me if you would or if you prefer to do it after the review, how you distinguish the hospitalization in a mental facility from hospitalization for the tonsillectomy or for appendectomy and that sort of thing?

Mr. John L. Cromartie: There are number of reasons that it is different.

One the stigma of institutionalization in a mental institution far transcends any stigma that might be attached to the regular hospital and secondly the very essence of treatment in a mental institution is confinement.

That is the purpose of putting somebody in a maximum security mental hospital is to confine them to deprive them of their liberty.

Unknown Speaker: Well certainly while you are recovering from a serious operation you are confined in a hospital in the same way you are confined in a mental institution.

Mr. John L. Cromartie: That is incidental to the treatment and historically we have treated the two very differently.

Chief Justice Warren E. Burger: What is into confinement in a mental hospital incidental to and the very function of the treatment?

Mr. John L. Cromartie: I think not.

I think that the reason that you would be in a State mental institution rather than some alternative facility, less restrictive facility would be for the confinement itself and there is testimony from Dr. Hodges (ph) and others that, that is what you are talking about in the mental facility itself and I am not talking about the community facilities or that sort of thing.

But historically the law has treated the two differently in Sam Brako (ph) in his book for the American Bar Association has pointed out that historically our law has required very strict requirements in terms of placing people in State mental institution.

Unknown Speaker: Well these are voluntary -- is this true for voluntary, so called voluntary commitment because that is what we are dealing with here.

Mr. John L. Cromartie: Voluntary commitment is a relatively new --

Unknown Speaker: As the law set up all sorts of processes and conditional voluntary commitment?

Mr. John L. Cromartie: Not for adults.

Unknown Speaker: No so the basis, your attack is on the basic proposition and that is been accepted and that a parent makes decisions for each child.

Mr. John L. Cromartie: Yes Your Honor.

Justice Thurgood Marshall: You say that the parent cannot make the decision here?

Mr. John L. Cromartie: Yes Your Honor.

Justice Thurgood Marshall: Well who can?

Mr. John L. Cromartie: We think the hearing examiner or whoever the State decides should make the decision, right now under the way --

Justice Thurgood Marshall: The State has decided.

Mr. John L. Cromartie: There are different ways like we have got --

Justice Thurgood Marshall: You are not satisfied with the person the State has picked.

The State has already picked somebody.

Mr. John L. Cromartie: We do not think that it is adequate, I mean our two main plaintiffs are perfect examples of why it is not adequate too.

Both of them were recommended by their primary therapist not to go in an institution and yet this process provided them with absolutely no protections and if I might get to --

Justice Thurgood Marshall: They did have protection, they could have got no lawyer?

Mr. John L. Cromartie: If he finally did after five years in a mental institution.

Justice Thurgood Marshall: I did not want to put that extra icing on it, but he did get a lawyer.

Mr. John L. Cromartie: Well fundamentally we do not think that a young child six or seven years old could be expected isolated --

Justice Thurgood Marshall: Well whom should speak for that child who is six and seven years old?

Mr. John L. Cromartie: Well if they were hearing there can be a lawyer appointed, there can be guardian ad litem appointed.

There would be somebody.

Justice Thurgood Marshall: But how would that be brought about?

Mr. John L. Cromartie: Through a process of automatically giving hearing as they --

Justice Thurgood Marshall: So the State appoints somebody to be the guardian, you could not go buying that could you?

Mr. John L. Cromartie: No Your Honor, unless --

Justice Thurgood Marshall: Well the State here said that this could maybe at the institution who shall determine it?

Mr. John L. Cromartie: Yes Your Honor.

Justice Thurgood Marshall: And now you tell me that, that is wrong and I wonder why?

Why is it not that group as expert as the parent?

Mr. John L. Cromartie: Well they found --

Justice Thurgood Marshall: On the question of insanity and mental illness?

Mr. John L. Cromartie: The Court found that the process in itself was inadequate because of the institutional biases, because of the tentativeness of judgment.

Those reasons the Court found that it was inadequate.

Justice Thurgood Marshall: Are going to tell to turn him loose.

Mr. John L. Cromartie: That is not the only alternative here.

There are other alternatives.

The question is whether they are in need of treatment and a maximum security mental hospital.

No question there are other places that the children can be placed, there are other alternatives.

Chief Justice Warren E. Burger: But your whole argument from the outset makes parents as such a suspect class by saying your Statement that there is an inherent conflict between the interests of the child and the interest of the parent and that, that must be flushed out in some proceeding.

Mr. John L. Cromartie: Yes Your Honor.

If I might address that for a minute.

Our evidence in this case shows that all of these situations involve stressful home situations, emotionally charged home situations.

That was the testimony of all of the experts, parents cannot under those circumstances be expected to be totally objective about the process.

Secondly every expert in this case including all of the superintendents of the hospitals testified that the pathology of the child is inextricably related to the pathology of the parents.

That is the parents themselves are a part of the problem that is going on here in the vast majority of cases.

Unknown Speaker: When the State -- the colleague here, your friend on the other side does not contended that the State can just take the parent's word and put the child in the hospital?

Mr. John L. Cromartie: There is that further step Your Honor.

Unknown Speaker: Well there is always going to be a medical advice.

I think your problem is to convince the medical advisor, the procedures of the hospital are not adequate because none of those people take the word of the parent.

They say do you want your child treated, we will treat him.

Mr. John L. Cromartie: Your Honor we feel that the record is replete with instances of where that stage is inadequate for instance, a psychiatrist does not necessarily even see the child before the child is placed in the institution.

Dr. Gates (ph) testified that sometimes no psychiatrist even sees the child until later.

Until the decision is already made to commit the child.

They rely so heavily on this elaborate community screening to provide them with adequate information, they themselves admit that the procedure at the hospital itself is very, very informal and I think subject to error.

What they claim though to substitute for that is this elaborate community screening process outside the hospital and yet Dr. Filly who is head of the thing testified that, that component is lagging way, way behind.

It does not always -- it is not always followed, in fact frequently it is not followed.

Chief Justice Warren E. Burger: But what you really said here is that the parents are suspect, the institutional psychiatrists are suspect.

Would it satisfy your notions of due process if the Court had designated in each community a panel of 10 psychiatrist or as many as were available and that the institutional psychiatrist plus one of the outside psychiatrist picked at random would make the decision.

Would that take care of due process?

Mr. John L. Cromartie: Because that issue is not --

Chief Justice Warren E. Burger: Counsel you did not respond to that after you had a chance to think about it during lunch hour.

Mr. Cromartie you may resume.

I think we have a question pending --

Mr. John L. Cromartie: Yes Your Honor.

May it please the Court.

Prior to the break the Chief Justice had asked me the question as to whether it would be different if there were a panel of 12 psychiatrist and one of those 12 participated in the decision making process, would that satisfy our need for hearing if I understood the question correctly.

Unknown Speaker: It is only 10.

Mr. John L. Cromartie: Only 10.

I do not think that the two would be material anyway.

My response to that would be no.

Not as long as the process was set up the same as it is right now.

Our basic position is, is that the process right now does not protect the child's interest in terms of sifting the facts, sifting through the facts.

There is no opportunity for the child to cross examine what has allegedly been his conduct.

There are no State wide standards or procedures where the child knows what the rules of the game are.

Chief Justice Warren E. Burger: You are assuming of course two things there.

The child is concerned with what you call the rules of the game and second that, rules the sense an -- that implies an adversary type proceeding.

Maybe the worst thing in the world for a child in these circumstances.

Mr. John L. Cromartie: Yes, Your Honor, of course.

We do not feel that the Court has to reach the issue of the rules because all the Court's advice, your procedure has no protections in it whatsoever and look to other State laws, that do provide some protection to children and do involve commitment of children to mental institutions and said use those in the interim.

If the legislature wants to come in and set up other provisions, then they are free to do that under the Court's decision.

But, the Court's pointed to the Juvenile Court code which does allow the child to have a hearing and yet takes care of the very trauma issues that you raise.

That is it has provisions in there to help deal within the alleged trauma that might take place.

There is a provision there for excusing the child from the hearing at certain process, certain times.

There is provision for appointment of a guardian ad litem to make sure the child's interests are adequately protected.

The Court did not specify what additional protections would be needed.

It simply said, the Georgia procedure as it presently exist is not enough.

There needs to be --

Unknown Speaker: Well it certainly implied that the Juvenile Court procedures were adequate, did it not?

Mr. John L. Cromartie: Well, that they were available and that they did provide some type of hearing.

Yes, Your Honor and in fact, one-third of the children in Georgia that are committed--

Unknown Speaker: Are committed through those procedures.

Then there is another procedure, the Ordinary Court --

Mr. John L. Cromartie: Yes, Your Honor.

That is how adults are normally institutionalized.

Unknown Speaker: What is that called?

The ordinary Court.

Mr. John L. Cromartie: The Court of Ordinary.

Unknown Speaker: The Court of Ordinary?

Mr. John L. Cromartie: Yes, Your Honor.

Unknown Speaker: What is that like, a Probate Court or.

Mr. John L. Cromartie: It is a Probate Court, yes Your Honor and children could be committed through that, in fact they are --

Unknown Speaker: Your objection to a panel of psychiatrist ten or twelve I suppose would be that they are not -- that they have this pro-institutional bias and these, that they would not be neutral hearing officers, is that it?

Mr. John L. Cromartie: Well, if they were non-institutional psychiatrist.

Unknown Speaker: You said outside.

Outside psychiatrist --

Mr. John L. Cromartie: I think that it might well comport with due process as long as there were some procedures, some opportunity for the child and child representatives --

Unknown Speaker: I thought your point was that there ought to be a procedure for cross-examining this by the experts and psychiatrists.

Mr. John L. Cromartie: Cross-examining whatever data is brought before those psychiatrists.

Right now, the child is institutionalized because of data that comes from the community.

That says the child did such and so his demeanor has been in such and such in school and there is no chance for the child to confront that and to say, no, that is not the way it was.

Unknown Speaker: You mean a four-year-old child?

Mr. John L. Cromartie: Or a representative for that child.

I feel --

Justice Thurgood Marshall: How did you represent to say what the child did or did not do.

Mr. John L. Cromartie: The representative can investigate and cross-examine the people and see whether that is -- it is done every day.

And we feel strongly in terms of the age of the children.

That a four or a five or a six year old, that there has to be protection there too, it is dramatically illustrated by the two children that are named plaintiffs.

Justice Thurgood Marshall: But if the two children that are named plaintiffs are wrongfully there, they are two other ways, you could have gotten them out.

In Georgia.

Mr. John L. Cromartie: Yes, Your Honor.

Justice Thurgood Marshall: (Inaudible)

Mr. John L. Cromartie: Habeas corpus with --

Justice Thurgood Marshall: But, did you not do it.

Mr. John L. Cromartie: No, Your Honor.

We did not.

We feel that preventing inappropriate hospitalization would not be accomplished by a case by case habeas approach.

The children are not going to know about those remedies.

They are not going to have the where do I to use those remedies.

A lot of the balancing that I am talking about right here, under the Mathews Eldridge test requires that you look at all elements.

And I really have not talked, about the magnitude of the child's interest.

But, we are talking about here two children, that were hospitalized for five-and-a-half years in a institution and now their own psychiatrist is saying they do not even need to be there.

Their outpatient therapist said they did not need to be there in the first place.

That is a rather enormous interest that we are talking about right here.

Unknown Speaker: But, maybe and I say maybe, that is all I do not need to be there, conceivably that might be the best place for them among the various options, now available in Georgia, including their own families or some other hospital or some other institution or possibly a Foster family, but it maybe be impossible to find Foster family.

Mr. John L. Cromartie: It is ironic to me, that I was furnished a list this morning.

There were forty six kids that the State has consistently said there is nothing we can do with these children.

There are no alternatives for them and yet all, but two of them are out of the institution now and they have not built any new facilities.

There are other alternatives available and I think that this due process hearing that we are talking about, whatever the particular form might be would center in on that one thing it would be well worth the effort.

That is in the community, to look at what other alternatives are available and to look at that in the community and to see if there are other alternatives.

Unknown Speaker: How does Georgia define a child, at what age.

What age are we talking about.

After what age?

Mr. John L. Cromartie: Well, we are talking about through age 17.

Unknown Speaker: Through's age 17, is that the statutory definition in Georgia.

Up to the 18th Birthday?

Mr. John L. Cromartie: Yes, Your Honor.

Unknown Speaker: And from then on, over 18 it is an adult for this purpose under Georgia law.

Mr. John L. Cromartie: Yes, Your Honor.

Chief Justice Warren E. Burger: What you are postulating here is some sort of a at least quasi adversary proceeding and -- which is hear your argument would be a four sided sort of procedure.

The parents, the child, the experts, the doctors, the medical experts, clinical psychologists and the guardian ad litem and you suggested putting a a child through that four sided kind of adversary procedure.

It is not going to have an irreversible traumatic affect on the child.

Mr. John L. Cromartie: I cannot imagine any more trauma on a child and what J.L. and J.R. had gone through for the past five years to be dumped and literally dumped into --

Unknown Speaker: That is an overstatement, is it not?

Mr. John L. Cromartie: Yeah the testimony of Dr. Messinger is that he had never seen a more classic, more clear cut example of parents dumping a child then the case of J.L. But, getting to your question, there is an amicus curie brief before the Court right now.

In New Jersey Supreme Court has mandated just such a procedure there and their experience has been that in fact these hearings have been therapeutic in terms of the patch in our relationship.

It is no mystery to children that there are conflicts within the family.

Children's judgment may not be totally intact, but children's – I know from having several of them, that children's perceptions are very good.

Even a five-year-old has very good perception.

They can pick up conflict, they know there is conflict with their parents, they know there is conflict there.

The hearing can actually be traumatic, it can be therapeutic if done, say the way we do it in a Juvenile Court right now.

Now, I cannot say how Juvenile Courts work around the country, but I know in Georgia, our Juvenile Court works and it worked well.

I think we have kept the best of both and I have had a lot of practice in Juvenile Court.

We have managed to keep it informal enough to where nobody is traumatized by the process and yet it is formal enough to adequately protect the rights of the people.

Your Honor, I think it can be done.

Unknown Speaker: May I ask you, whether you expect to reach what has been called a substantive due process issue.

Mr. John L. Cromartie: I will manage, Your Honor.

Unknown Speaker: You do not have that much time left.

Mr. John L. Cromartie: I will now.

We do not feel that the State has categorized the issue correctly.

At page 135 of the Court's opinion, it made very clear that what it was finding here, was that by the State's own admission that there were 46 children who did not need to be in hospital and secondly that they were being harmed by a continued stay in that hospital.

And what the Court did, it took the Jackson versus Indiana test and said that if you are going to hold children there is going to be some relationship between the holding and what you are trying to do for them.

I think that the Court's holding is very, very limited, much more limited, then what the State would categorize it as.

It is a very limited holding.

Unknown Speaker: You do not read the decree then as the italicized portion of page 54-A, as requiring the State to spend money if necessary to build these facilities as something that must be complied but even though the State would prefer to simply turn the children loose from any confinement.

Mr. John L. Cromartie: It was a ruling that applied to 46 names specific --

Unknown Speaker: With respect to them, how do you construe the ruling?

Mr. John L. Cromartie: That they were to do what was necessary to relieve the unconstitutional condition that existed.

Unknown Speaker: Could they relieve it by simply releasing them from custody?

Mr. John L. Cromartie: I think they probably could.

Unknown Speaker: Is that the way you read the decree?

Mr. John L. Cromartie: That is the way the State has.

Unknown Speaker: Is it the way you read it?

Mr. John L. Cromartie: Yes, Your Honor.

Chief Justice Warren E. Burger: What is the source of the Court's power to order the State of Georgia to spend money for this project.

Mr. John L. Cromartie: Well, I think the Court was convinced in its own mind that the State of Georgia did not have to spend anything.

That it would actually be cheaper to have these children and less expensive resources.

Chief Justice Warren E. Burger: But, they did command them to spend money.

Did they not?

Mr. John L. Cromartie: No, Your Honor.

They said if that was what was necessary, to spend the money.

The Court had told them several times, we do not think that you have to spend any money.

We think its cheaper to have these children in less restrictive, less confining environments.

Unknown Speaker: And Mr. Comartie I might just ask one question about what is going to happen next after the case leaves this Court.

One of the briefs filed by one of the associations suggest Tthat there should be an exemption for intact families pre-adolescent children and for commitments for short periods of time, at least when all those conditions are met.

Could that be done consistently with the manner which the case was disposed or belowered does that require.

How much flexibility is there and what goes on next I guess what I am really asking.

Mr. John L. Cromartie: There is a good bit of flexibility in what the Court did because it really did not say this is what is required, X, Y and Z, because the EPA brief agreed that the Georgia procedures were invalid, what they said was, with an intact family for a short period of time for accredited institution for a pre-adolescent child, the balancing maybe different there.

And clearly, the District Court --

Unknown Speaker: But, under the holding of the District Court, is the procedure invalid even as applied to that narrow category.

I suppose it is.

Mr. John L. Cromartie: Yes, Your Honor, it is.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Transcript: 

Argument of R. Douglas Lackey

Chief Justice Warren E. Burger: We'll hear arguments first his morning in Number 1690, Parham against several minors.

Mr. Lackey, you may proceed whenever you are ready.

Mr. R. Douglas Lackey: Mr. Chief Justice, may it please the Court.

The cause of this case is here for reargument and I realized that the court is familiar with this case.

With the court's permission I would like to begin by simply setting the issues before the court and proceeding directly to my argument.

At issue in this litigation of course is the constitutionality of the Georgia's statute which recognizes the rights of parents of mentally ill children to make application for admission for those children to state mental health facilities.

The statute was attacked on essentially two grounds.

The appellees argued that children have a constitutionally protected liberty interest and that this statute which authorizes their hospitalization without prior notice in hearing deprives them of that liberty interest for that due process of law.

Second, the appellees argued and the District Court found that children who are mentally ill and who receive treatment from the state have a constitutional right to receive treatment for their mental illness and only that treatment setting which is most appropriate to their condition.

Turning to the first issue, the foremost and threshold question which should have been addressed in the District Court and wasn't was an examination of the interest sought to be protected to see whether in fact it has a constitutional dimension.

That is, do children have a constitutional right to challenge the medically indicated decisions of their parents?

What the District Court did was simply look and see that parent's makes decisions or their children and as a result of this decision-making process, that often times the child is subjected to potentially grievous injury.

Here, hospitalization as the District Court characterized it.

And what he said was -- what the District Court said was, is that because of the injury here this children or this parental decision making process can only be done in a constitutionally permissible fashion.

We submit that this is the point where the District Court made the error upon which its entire opinion was predicated.

It is our position that a proper analysis of this case should have begun with the parent-guardian and child relationship.

It's our position that based on this Court's previous decision as well as the history of our western civilization that we have decided and by we, I mean society and not the state, that we have decided that there are certain decisions that children cannot make for themselves, that there are certain decisions that an adult has to make for a child.

And among these decisions are medically indicated decisions with very few exceptions.

That is, it's our position that in our society parents with the advice of a physician routinely make decisions which range from whether a child is to have a tonsillectomy to decisions which have life and death consequences for the child.

One example which I'd like to use is the situation where the parents faced with the child who has a heart defect, the young child.

And a doctor says of course the child can live without an operation.

The child will be an invalid for his or her entire life.

I can operate.

If the operation is successful, the child will live a normal life.

If the operation is not successful, the child would die.

That kind of decision, that kind of life and death decision-making process occurs in the family routinely and yet no one has ever suggested that that kind of a decision which clearly could have the consequences which are much more adverse that what we have here.

No one has ever suggested successfully except in a few recent District Court decisions that that kind of a decision-making process is required to be subjected to an advisory proceeding such as what was mandated here by this District Court decision.

Justice Potter Stewart: I want to be sure I understand you Mr. Lackey.

Are you suggesting that the constitution and the United States would prohibit the intervention by the state and that sort of situation?

Mr. R. Douglas Lackey: I believe, sir, that it would prohibit it to the extent that the state did not have a compelling state interest to interfere with the --

Justice Potter Stewart: That the constitution would absolutely prohibit the intervention by the state in that sort of a situation.

Mr. R. Douglas Lackey: Yes, sir, absolute showing of the compelling state interest --

Justice Potter Stewart: Or are you suggesting that it's constitutionally permissible for a state to leave that decision to their parents.

Those are two quite different --

Mr. R. Douglas Lackey: Yes, sir -- I --

Yes, sir.

Our analysis --

Justice Potter Stewart: -- propositions, aren't they?

Mr. R. Douglas Lackey: Excuse me.

Justice Potter Stewart: They're two quite different propositions.

Mr. R. Douglas Lackey: Yes, sir, I agree with you.

Justice Potter Stewart: Oh, now which are you suggesting?

Mr. R. Douglas Lackey: It would be our position that it would be not -- it would not be constitutionally permissible for the state to interfere with the family and that situation have some demonstration of a compelling state constitution.

Justice Potter Stewart: You don't need to go merely that far in arguing this case, do you?

Chief Justice Warren E. Burger: You need to stand on only the second leg, don't you?

Mr. R. Douglas Lackey: I certainly could.

There's a --

I believe I could, perhaps I don't understand your question.

Justice Potter Stewart: Well, I think it's rather important because those are two quite different propositions.

First, their claim based upon the cases like Meyer against Nebraska and Pierce against Society of Sisters and to an extent Yoder perhaps, that it would be -- that a state would be constitutionally prohibited from intervening in a parent-child relationship.

That's one proposition --

Mr. R. Douglas Lackey: That's one, yes, Your Honor, I understand that.

Justice Potter Stewart: The other is that a state may constitutionally leave such a decision up to the parent but need not constitutionally do so.

Mr. R. Douglas Lackey: I see that the second point would be easier and I --

Justice Potter Stewart: Well, that's all you need in this case --

Mr. R. Douglas Lackey: That's all, yes sir.

That would resolve this case from that standpoint, yes sir.

Justice Byron R. White: But if you rely on the first point, I suppose that it'd unconstitutionally for a state to say an operation has to be performed by a doctor.

Unknown Speaker: Yes.

Justice Potter Stewart: It might be.

Justice Byron R. White: Parents could use self-help on heart operations.

Mr. R. Douglas Lackey: No sir, I -- well, I don't --

Justice Byron R. White: You don't really maintain that.

Mr. R. Douglas Lackey: I don't really --

I wouldn't maintain that.

I think that what my difficulty here is that it was our original position that the issue here was not constitutionally based that it was -- that we were tying everything here to a parent acting on medical advice and assuming and stating that that was something which should have been reserved to the family which we could not constitutionally interfere.

Chief Justice Warren E. Burger: But I certainly agree that we don't -- it's not necessary to get to that to resolve it.

Your position here is that the constitution of the amended states doesn't require anymore than what Georgia has provided.

Mr. R. Douglas Lackey: That's absolutely correct, sir.

Either for the reason that the child does not have a liberty interest or if the child does have a liberty interest in this particular situation because the process which we provide them meets all the basic requirements that the constitution would mandate.

Justice William J. Brennan: Mr. Lackey, if the child -- of course the whole procedure has its -- and the result is confinement.

You suggest that doesn't involve a liberty interest.

Mr. R. Douglas Lackey: No, sir, it's our position that the confinement is secondary to in an unnecessary incident with a treatment.

Justice William J. Brennan: That wasn't my question.

Mr. R. Douglas Lackey: I'm sorry sir.

Justice William J. Brennan: My question is, are you suggesting the child does not have a liberty interest at stake?

Mr. R. Douglas Lackey: Yes sir, that's our -- that's what my first -- my first position is that in this case where the parent makes the decision and there is confinement, as necessary result that decision that the child does not have a liberty interest.

It's our position that constitutional rights arise out of relationship.

And the relationship that is here is between parent and child, not between the child and the state as in --

Justice Potter Stewart: But if the child is locked up and not the parent.

Mr. R. Douglas Lackey: Yes sir, that's correct.

Justice Potter Stewart: And you're not surely or are you suggesting in that sort of our Brother Brennan's question that there is not a deprivation of liberty?

Mr. R. Douglas Lackey: Not in the constitutional sense.

There -- certainly the child is restrained in the hospital.

Chief Justice Warren E. Burger: Or are you saying that it's the same kind of deprivation as it involved different in degree only from having an appendix operation or a heart bypass or confinement for smallpox?

Mr. R. Douglas Lackey: Yes sir.

That was my point exactly in response to Mr. Justice Brennan.

I evidently wasn't answering his question that the confinement in the hospital is just a necessary incident to the -- incidental to the treatment itself and it occurs very --

Unknown Speaker: Mr. Lackey, as if I understand you correctly, it would be constitutional for a state to say to a parent, if you want to keep your child in the basement for the next three years because you think it'd be healthy to keep them out of the sunlight or something like that, that would be perfectly constitutional because they have to rely on the wisdom of the legislature not to pass that statutes.

But you say that if they did, there'd be no constitutional objection to it.

But rather a difficult position to maintain --

Mr. R. Douglas Lackey: That's a difficult position to maintain, sir.

Unknown Speaker: It is indeed.

Mr. R. Douglas Lackey: And I don't believe I could maintain --

Justice Potter Stewart: But you don't have a problem there as to whether or not there was a state that was depriving the child his liberty or just -- or a private person, the parent.

Mr. R. Douglas Lackey: That's correct.

Yes sir.

And we --

Justice Thurgood Marshall: Didn't your basic problem of equating -- putting a person in a mental institution indefinitely would go in on a hospital overnight from tonsillectomy, they're two different animals.

Mr. R. Douglas Lackey: There is certainly a difference in terms of duration.

Justice Thurgood Marshall: And everything else.

Mr. R. Douglas Lackey: I --

Justice Thurgood Marshall: I mean, what -- it would be a more walk out from that tonsillectomy, even if it worked out.

Mr. R. Douglas Lackey: Well, from a tonsillectomy, you of course -- could sir that the next day I supposed but from an open heart surgery for instance, you couldn't.

It's just a question with degree.

Justice Thurgood Marshall: I didn't say (Voice Overlap) --

I said --

Mr. R. Douglas Lackey: Yes sir.

Justice Thurgood Marshall: You'll equate it with a tonsillectomy or an ingrown toe nail.

Mr. R. Douglas Lackey: Yes sir, I think the --

Justice Thurgood Marshall: I mean this is liberty.

We need to lock somebody up and turn the key, that's liberty.

That's a basic denial of liberty in any sense that work.

Will you turn the key and then all of the other hospitals, in cases you mentioned, you don't turn the key on to the person being locked.

Mr. R. Douglas Lackey: All right.

I believe, sir that children who go to other types of hospitals for other kinds of surgery or just as restrain as the children are in these cases who go to mental hospitals.

Now, perhaps the duration is different.

Justice Thurgood Marshall: That's what you think?

Mr. R. Douglas Lackey: Yes sir.

The resolution of the liberty question of course does not end the case except of course if you find a liberty interest.

But before we can get to the question of what processes do, we have the court's question of whether this case implicates or has that quantum of state action necessary to implicate the Fourteenth Amendment.

Our position on this is simply that due process is an amorphous concept and perhaps the best thing that can be said about it is that it requires a case by case examination.

It's our position that in this case, what we have is we have private parties here, parents availing themselves of a resource from the state which is substantially identical to a resource which could be provided and could be obtained in the private sector.

And that it is -- perhaps we can best state it by saying illogical to have a decision where the result is simply to create two classes of parents.

One class of parents who buy their wealth or buy reason of their wealth and their assets and the finances that they have can go to a private facility and can avoid all of the process which has been mandated by the District Court.

And have another class of parents who because of their poverty or their inability to pay and who are therefore forced to rely upon the state for their -- treatment for their children, that these parents have to go through an adversarial proceeding such as that mandated by the District Court in order to simply obtain mental health treatment for their child.

Of course this has another aspect too.

The essence of state action here if you find it is that the hospitals, the state facility and that the physician who is -- the psychiatrist in this case but the physician who is authorizing the admission is a state employee.

If that is sufficient to create state action, then this means that in all of our public hospitals in the state of Georgia as elsewhere that the admission of any child to a state hospital for any reason is state action and the question thereafter always be whether the risk of deprivation that flows from that is sufficient to warrant some sort of hearing.

And of course numerous medical treatments as I have indicated previously have potential consequences which are certainly as grievous as this.

We simply cite that we've believe -- or we simply state to the court that we believe that as a matter of logic where we simply offer a choice that that is not a sufficient amount of state action to invoke the Fourteenth Amendment.

However --

Unknown Speaker: Mr. Lackey, it doesn't necessarily follow, does it?

Mr. R. Douglas Lackey: Yes sir.

Unknown Speaker: That if the Fourteenth Amendment applies even to the heart operation, that there must be a hearing, it may mean that there must be due process but would it not be at least logical to say that the doctor and the parent provide adequate process in that situation with that or perhaps or at least arguments why a different process might apply where there's a possible conflict of interest between the child and his parent.

Mr. R. Douglas Lackey: Yes sir.

That's absolutely right.

Justice Potter Stewart: So, you don't always have to have a hearing if you just find the Fourteenth Amendment applied?

Mr. R. Douglas Lackey: But -- no, sir.

If I said that I should not -- you would in those instances have to provide whatever minimum amount of due process this Court or other courts would deem necessary which brings me really to the due process question which is raised when you find that there is a liberty interest when you find there is state action.

The analysis which we have used is the analysis set forth by this Court in Mathews v. Eldridge which of course is a three-step process requiring an examination of the interest of the parties as a second step when evaluation of the risk of error under the present procedures as well as an evaluation of the benefits of additional procedures.

And thirdly, an examination of the burdens imposed on the state by these additional procedures.

I've already spoken about the first issue, the interest involved and I'd like to turn to the second issue.

In order to understand the resolution of this, I believe that I have to explain to the court how we perceive that the system works in Georgia now and how it does work indeed at the time of this litigation for we believe that as the Fifth Circuit said in Drummond versus Fulton County Department of Family and Children Services, due process only requires a rational decision making process.

In Georgia, under our statutes, the parent first makes a decision that the child is mentally ill either because they've had the advice of a physician or because they notice some aberrant behavior on the part of the child or I suppose for a number of other reasons.

Normally, although admittedly not always, the parent takes the child then to the community mental health center where the child is examined and if found to be mentally ill, where the child is treated if that's possible.

That is --

Justice Potter Stewart: How does the child get -- what triggers the examination originally, the original examination by the physician?

Mr. R. Douglas Lackey: The parent taking the child to the community health center.

Justice Potter Stewart: So it's the parent that triggers it.

Mr. R. Douglas Lackey: That it is all parent or guardian initiated.

Justice Potter Stewart: Parent or somebody in loco parentis.

Mr. R. Douglas Lackey: Yes sir.

Chief Justice Warren E. Burger: Sometimes it might be the family physician who was involved.

Mr. R. Douglas Lackey: That's correct sir, that's correct.

Justice Potter Stewart: But it -- is it the parent's decision?

Mr. R. Douglas Lackey: It is the parent's decision to take the child in the first instance.

And the only place that the state would become involved other than where the state is a guardian is where it was brought to the attention of our juvenile court system that the child was mentally ill and not receiving proper treatment in which case it could be taken into juvenile court, the state could take it in.

Justice Potter Stewart: And what would initiate those juvenile court proceedings?

Mr. R. Douglas Lackey: A petition in the juvenile court which can be filed under our law by any person alleging that the child has been deprived.

Justice Potter Stewart: A neighbor or --

Mr. R. Douglas Lackey: A neighbor, a welfare worker if you will, someone from the local mental health agency could do it.

Under Georgia law, the specific dictates any person can file that petition in juvenile court.

Justice Thurgood Marshall: Mr. Lackey, I don't want to be capricious at all but mentally ill, can a layman determine that?

Isn't it another phrase you want to see appears to be something?

Mr. R. Douglas Lackey: Yes sir, I --

Justice Thurgood Marshall: It's going to be some other words if it's mentally ill.

Mr. R. Douglas Lackey: What -- the way I prefaced it was --

Justice Thurgood Marshall: Yeah.

Mr. R. Douglas Lackey: If the parent believes the child is mentally ill because a doctor has told them so, physicians told them so, or because he notices some aberrant behavior on the part of the child, I've thought I had said that.

If I didn't, I should have.

But, at any event the child at the first level is treated in the community if that's possible in most circumstances.

And then and only then if that fails is the child taken to the community -- to the mental health center, to the hospital if you will and there the child --

Unknown Speaker: (Voice Overlap) said, treated in the community by whom?

Mr. R. Douglas Lackey: The State of Georgia has approximately 50 minimum community mental health centers where children can be treated as outpatients.

To demonstrate the scope of this, in 1974, fiscal year 1974 --

Unknown Speaker: May I take one of your hypotheticals.

Mr. R. Douglas Lackey: Yes sir.

Unknown Speaker: A parent observes what parent regards as aberrant behavior on behalf of -- on the the part of the child.

Mr. R. Douglas Lackey: Yes sir.

Unknown Speaker: And takes him now, I gather to a local community health centers, is that it?

Mr. R. Douglas Lackey: Yes sir.

Usually, but as I want to caveat that by saying not always, I wouldn't want to mislead the court on that point.

Usually, the parent takes the child to community mental health centers.

Unknown Speaker: Now, who are the professionals on duty there?

Mr. R. Douglas Lackey: Those are state-paid generally mental health professionals.

Unknown Speaker: Not doctors?

Mr. R. Douglas Lackey: Yes, sir, they have a -- it's my understanding and I just quite frankly don't believe the makeup of that team is in the record but it's my understanding that they have a full range of mental health services that they provide in the community.

Unknown Speaker: And whoever it is, one or more, is it one or more professionals?

Mr. R. Douglas Lackey: Generally sir, it's what the record reveals.

Unknown Speaker: And one or more professionals make a diagnosis, is that it?

Mr. R. Douglas Lackey: Yes sir.

Unknown Speaker: And if the diagnosis is the child may be mentally ill, then what happens?

Mr. R. Douglas Lackey: Then if the child can be -- the child is treated in the community either at home as an outpatient or through whatever local facilities they have in the community, group homes and that sort of thing.

Unknown Speaker: But again, who are the professionals involved if it's a treatment as an outpatient.

Mr. R. Douglas Lackey: They're state-paid or county-paid mental health professionals, psychiatrists, psychologists, social workers.

It's my understanding again is that it's the full gambit of mental health professionals.

Unknown Speaker: And if that doesn't work then what happens?

Mr. R. Douglas Lackey: Then the child is referred to the state mental health facility, the hospital.

Unknown Speaker: And that is -- is a one, one in the state or more?

Mr. R. Douglas Lackey: No sir, there are eight regional hospitals in the State of Georgia, seven of which have been built -- well, have been built within a ten years proceeding, this litigation.

Unknown Speaker: And these are nothing but mental hospitals, are they?

Mr. R. Douglas Lackey: Those are mental hospitals, yes sir.

Unknown Speaker: For confinement as well as for treatment.

Mr. R. Douglas Lackey: Yes sir.

They do confine the patients there.

Unknown Speaker: Now, what happens to the child referred to one of those hospitals?

Mr. R. Douglas Lackey: When the child is referred to a hospital, he is again evaluated by a team of mental health professionals which the record indicates, are psychiatrists, psychologists, social workers.

One even had a director of education in those evaluations.

That's a separate evaluation and it's only at that point when that team makes a separate determination if the child is mentally ill or chose evidence of mental illness and a suitable for treatment in the hospital that the child is admitted to the hospital.

So, our position in this respect is that there's --

Unknown Speaker: I would say admitted.

Mr. R. Douglas Lackey: Yes sir.

Unknown Speaker: Or committed which --

Mr. R. Douglas Lackey: Admitted.

We treat it as a voluntary admission.

He is not committed.

Unknown Speaker: Because my hypothetical was that the parent initiated this initially.

Mr. R. Douglas Lackey: That's correct.

Unknown Speaker: So, this might be true, a voluntary admission?

Mr. R. Douglas Lackey: Yes sir.

Under our statute, if the parent say using a hypothetical decides that the child will not go in the hospital, say that the child has been brought to the hospital and evaluated and the doctors want to admit him.

And the parent decides not to admit him, then the child is not admitted unless the state can go through the juvenile court proceeding or to the involuntary commitment proceeding to get the child in.

The parent holds the string so to speak, not to get him in because that takes to initiate getting him in of course but not to physically get him in because that of course relies on a medical determination.

Unknown Speaker: And of course all along the line, there's no procedure for questioning the judgments which result ultimately on what you've styled in admission, the professional judgments.

Mr. R. Douglas Lackey: There -- by questioning, you mean appeal to a judicial body.

Unknown Speaker: Well, to any one.

Mr. R. Douglas Lackey: Well, we believed that each succeeding step access a check on the previous one of course, that is the parent makes the initial determination.

Usually, the community mental health center makes the second stage of the determination, of course if this child is not mentally ill there, they don't get into the system.

And thirdly, the hospital checks the community and the parents so we contend that each succeeding level is in fact almost a form of appeal if you will.

And of course not only do they have this but there is a provision under our law for access to the courts in Georgia for these children.

We have a --

Unknown Speaker: What stage is that?

Mr. R. Douglas Lackey: At any stage sir.

Unknown Speaker: Biggest stage?

Mr. R. Douglas Lackey: Yes sir.

Let me explain.

I want to be very careful again about this.

We have a state statute that require the Department of Human Resources to see that all patients have access to counsel for assistance in legal matters in which they are involved.

We have statutes that provide three courts that these children can go to.

And I hadn't thought of it as being at any stage of their commitment but I know no reason why it could not be.

That is the children can go to the superior court on a writ which of course anyone could do in any situation like this.

Unknown Speaker: Is that habeas?

Mr. R. Douglas Lackey: That's a habeas, yes sir.

Second, the mental health code or Georgia Mental Health Code specifically provides that the probate court has jurisdiction to review cases of people in state mental health facilities to make sure the provisions of the mental health code are being complied with.

And thirdly, with respect to children, they have access to the juvenile court which of course has jurisdiction over children placed in violation of law over children who have been abandoned and over children who are deprived which is defined as -- you know, not receiving proper --

Unknown Speaker: Well, now -- in our hypothetical, what -- how would it occur with the youngster involved--

Mr. R. Douglas Lackey: Okay.

Unknown Speaker: You go to court?

Mr. R. Douglas Lackey: The --

Unknown Speaker: At whatever stage?

Mr. R. Douglas Lackey: Yes sir.

That is perhaps the most difficult question that you could ask and my answer to you is that I can only illuminate it by this case.

And that -- in this case, it was our staff that referred these children to their lawyers.

It was our Department of Human Resources to furnish office space in our hospital to these lawyers.

I would submit that an examination of the District Court order in this case does not reveal that so much as a single child had ever been inappropriately hospitalized --

Unknown Speaker: Well, I gather as you've described to them Mr. Lackey.

It's rather a happen stance that they were referred to lawyers.

There's no champion on it, so-called for the child as the child goes through these procedures.

Mr. R. Douglas Lackey: We have two things that I can offer in response to that.

I don't know it's satisfactory but we have an advocacy unit within the department itself that advocates for patients.

Unknown Speaker: But how does the child get to that advocacy (Voice Overlap)?

Mr. R. Douglas Lackey: We have -- at the hospitals, we have two things.

We have a pamphlet that every patient receives.

It's a handbook on patient's rights which is -- I don't know how to describe it to you.

The appellees asked one of our witnesses whether it was written in children's language and I don't know exactly what that is but it's written in (Voice Overlap) --

Justice Potter Stewart: Well, if you have a child, five or six years old, is that, I mean, practical thing?

Mr. R. Douglas Lackey: It's written in Section --

I don't know whether it is or not sir but I think in that case an adult is going to have to make the decision for the child in any event.

And I think that this case demonstrates that our mental health people there in the hospital when it's appropriate do in fact refer patients who don't need to be in the hospital and their opinion to lawyers.

That really is the due process that we see in this case but --

Justice Potter Stewart: Before you get too far away from your description of this procedure with respect to the voluntary commitment of a child, you'd be helpful to me if you could just trace very briefly the comparable procedure for the voluntary commitment of an adult.

Mr. R. Douglas Lackey: The voluntary commitment of an adult requires only -- only that the -- no, that's not -- that's how I read the -- the adult normally goes to the community also.

We have a community based program --

Justice Potter Stewart: And what triggers that if -- let's assume, he is -- does the Georgia law presumed that even though he is putatively mentally ill, he is capable of making the decision to voluntarily commit himself?

Mr. R. Douglas Lackey: Yes sir.

No person in Georgia is deemed to be incompetent unless he's been judicially -- has been adjudicated incompetent.

We presume that they're all competent to seek admission and (Voice Overlap) --

Justice Potter Stewart: Even though at the same time you admit him to a mental hospital.

Mr. R. Douglas Lackey: That's correct sir because being admitted as a voluntary patient requires only that you'd be mentally ill and suitable for treatment in the hospital.

Justice Potter Stewart: Yeah.

Mr. R. Douglas Lackey: It requires no dangerousness or a finding of inability to care for yourself which really gets to the incompetency question.

Justice Potter Stewart: So, only if he goes voluntarily to a physician does the process of a voluntary commitment begin with respect to an adult?

Mr. R. Douglas Lackey: That is initiated by the adult, yes sir.

Justice Potter Stewart: As -- and then what?

Mr. R. Douglas Lackey: He goes to the hospital or he goes to the community mental health center.

He goes to the community mental health center, they try to treat him in the community.

If they can't treat him there, he goes to the hospital.

And if he comes to the hospital and says, ”I'm sick and I want in.”

And the doctor examines him and says, “Yes, you're showing evidence of mental illness and we think we can treat you here.”

He's admitted to the hospital.

Justice Potter Stewart: And then after he is inside the hospital, does he have available to him those two resources that you mentioned, the advocate and the booklet?

Mr. R. Douglas Lackey: Yes sir.

Its -- yes, yes sir, he does and also --

Justice Potter Stewart: He has there all the procedures except for the juvenile court.

Mr. R. Douglas Lackey: That's correct sir.

Justice Potter Stewart: Is that it?

Mr. R. Douglas Lackey: And of course he has one more.

An adult can walkout.

That is, he can say, “I want to leave.”

And the state either has to release him or has to begin involuntary commitment proceedings --

Justice Potter Stewart: And that's the same with respect to the child if his parent, does it?

Mr. R. Douglas Lackey: Yes sir, with the one difference that you've just noted.

If the parents says, ”I want to leave.”

Then the dismissal of the child would of course be conditioned on his parent's approval of that discharge.

Justice Potter Stewart: Yes.

Mr. R. Douglas Lackey: Now --

Justice Potter Stewart: How about -- the whole Georgia procedures I understand it for it simply substitutes the parent for the individual in a voluntary commitment if the voluntary committee is a non-adult.

Mr. R. Douglas Lackey: That's correct sir.

Justice Potter Stewart: Is that it?

Mr. R. Douglas Lackey: That's precisely it.

Justice Potter Stewart: And what's the definition of a child for this purpose in Georgia?

Mr. R. Douglas Lackey: A person under the age of 18 years.

Justice Potter Stewart: 18 or under?

Mr. R. Douglas Lackey: Yes sir.

Justice Potter Stewart: If he's 18, he's still a child.

Mr. R. Douglas Lackey: No, if he's 18, he's an adult, he's 18.

It's under 18 (Voice Overlap) --

Justice Potter Stewart: His 18th birthday, he isn't -- he's no longer a child.

Mr. R. Douglas Lackey: He becomes an adult on his 18th birthday.

Unknown Speaker: So, relying on the parent is really critical in the case where you're committing for just for treatment rather than because someone is dangerous.

Justice Potter Stewart: Yes sir, that's correct.

Unknown Speaker: And I take it you do and that you regularly commit for -- purely for purposes of treatment.

Mr. R. Douglas Lackey: Yes Your Honor.

Unknown Speaker: At the -- at -- with -- at the request of the parents.

Mr. R. Douglas Lackey: Yes sir.

Yes sir, as long as I can caveat that by saying we admit at the request of the parents but only after our doctors have said, “The child is mentally ill and suitable for treatment.”

There is another part of that test and that is of course the benefits of the adverse procedures advocated here.

I think that we have addressed them on our brief unless the court would like me to discuss them because I would like to turn just briefly to the other issue and that is the question of the District Court's mandating that we provide treatment for these mentally ill children in only the most appropriate treatment setting.

The -- what the District Court found because we told the District Court that there are certain children who are in the hospital, who are mentally ill but for whom there -- are conceivable other types of treatment settings, group homes and this sort of thing.

Going from this, the District Court mandated that we -- the discharge these children, in particular this 46 but of course it applies to all children similarly situated, either discharge these children from our custody or provide for them the most appropriate treatment setting conceivable.

That is the best treatment setting.

I bring this to the court because we think this is perhaps as important as the other issue, maybe even more important because what the District Court has said in essence is that if I or anyone takes their child to a state mental health facility and the doctor there says, “You're child is sick.

I can treat your child here in the hospital and he'll get benefits from it.”

But if I had my preference, I'd like to have him in a group home.

And there isn't any group home for that child and under this District Court decision, that child cannot be admitted to a state mental health facility.

And of course if we have no group home, we can't go there which means it's going to be under this decision in our opinion and we think it's an escapable conclusion.

There are going to be children who are mentally ill who are not going to get treatment for their mental illness in a timely fashion.

The record is absolutely clear that we provided these children with the most appropriate treatment setting which we had available at the time, that is there was no finding and no evidence that we have wrongfully kept many child in the hospital when we had another treatment setting which anyone thought or physicians thought were more appropriate for him.

This mandate by the District Court is simply going to result in us being unable to serve the children to the limited extent that we already do.

And for this reason, we urge the court to overturn that portion of the decision as well.

Thank you.

Justice Potter Stewart: Mr. Lackey, does this involve only mentally ill, only the mentally ill or does it also involve the mentally retarded?

Mr. R. Douglas Lackey: This law suit only involves the mentally ill.

Justice Potter Stewart: It's what I thought.

Unknown Speaker: Mr. Lackey, I take it before us in the Georgia case, they're only state hospitals.

Yeah, there are no private ones that -- as I think as the case in the Pennsylvania litigation.

Mr. R. Douglas Lackey: Yes sir.

Yes sir, that's correct.

Unknown Speaker: And secondly, perhaps you answer this in your colloquially with Justice Brennan but in Georgia, may habeas be used to gain release on the ground that a child is no longer ill.

Mr. R. Douglas Lackey: I cannot cite you to a case sir but it would be our position that that would be correct for the reason that if the child is no longer ill, the superintendents under a duty to discharge him from the hospital and thus holding him when he is no longer mentally ill which of course is not the facts in this case but holding him when he was no longer mentally ill would be illegally detaining him.

So, I cannot cite you to you to a case but we believe that a habeas would lie.

Unknown Speaker: But a habeas wouldn't lie if the behest of the child, say a 17-year-old child confined called up a lawyer and asked him to file for habeas and the parents came in and asked for dismissal.

Mr. R. Douglas Lackey: Yes sir.

If -- I'll have to assume several facts with your question.

Unknown Speaker: When the parents -- if the parents want him out, he'll come under the law, they -- he is to be released.

Mr. R. Douglas Lackey: Yes sir.

But if he is not mentally ill and not suitable for treatment in the hospital, then the superintendent can't hold him.

The only way the superintendent can hold him in that instance is when the alternatives that are available would threaten his safety which means in your hypothetical --

Unknown Speaker: But they will entertain habeas at the behest of a child who makes to claim that he is no longer mentally ill.

Mr. R. Douglas Lackey: Yes sir.

I cannot cite you --

Unknown Speaker: Even though the parents are dead.

Mr. R. Douglas Lackey: Yes sir.

I cannot cite you to a case but I believe as I understand habeas that would have to be the case.

Thank you.

Argument of John L. Cromartie, Jr.

Chief Justice Warren E. Burger: Very well.

Mr. Cromartie.

Mr. John L. Cromartie, Jr.: Mr. Chief Justice, may it please the Court.

In oral argument, I would like to deal with what I view as the three essential issues in this case. But before getting into those three essential issues, I'd like to deal with two collateral issues that arise out of the last oral argument just very, very briefly.

One is a legislative change during the last session of the general assembly.

The state legislature passed a new mental health code.

The portion dealing with juveniles was accompanied by what we call a sunrise provision.

That is if this case is affirmed by this Court then those provisions would take effect.

There was a great deal of interest on the part of the District Court about what would happen if we strike down the statute.

Would there be practical alternatives available for parents, for hospitals, in terms of placing children in mental hospitals.

This new statute seems to comply with all of the mandates of the District Court and thus, it seems to us would be constitutional.

So, I bring that --

Unknown Speaker: How about to 40?

How about to 40?

How about the children who were ordered to be differently placed, are they still on (Inaudible)?

Mr. John L. Cromartie, Jr.: Your Honor, it is my understanding from my last conversation with the state on that that there are two of those children still within the terms of that order, that is they are still confined within mental hospitals.

Unknown Speaker: And to comply we would have to be placed in different context or in different environments.

Mr. John L. Cromartie, Jr.: Yes, Your Honor.

Yes, Your Honor.

Unknown Speaker: What does that statute do about them?

Mr. John L. Cromartie, Jr.: It just --

Unknown Speaker: Does this provide any additional facilities or not?

Mr. John L. Cromartie, Jr.: As I understand the new statute, it mandates that children be provided with care in the least restrictive environment.

That is, if there were a choice between a foster home and a mental institution, they would be placed in the foster institution but -- the foster home that is.

I don't think that the new statute specifically addresses the question that you're asking now.

Secondly, there was a --

Unknown Speaker: Mr. Cromartie, before you leave it, do I correctly understand that the new statute does not have any effect at all if the decision is reversed.

Mr. John L. Cromartie, Jr.: That is correct Your Honor.

Unknown Speaker: So that it's fair to say the judgment of the legislature of the state is that the District Court is all wrong.

Mr. John L. Cromartie, Jr.: That was on the advice of the Attorney General.

We felt like the statute was going be passed by the legislature and in support of the passage of it.

But on the advice of the Attorney General, the committee added in the sunrise provision.

So, I don't know whether it would be fair to say that it is the judgment of the state legislature, that the court was all wrong.

I'm not sure that --

Unknown Speaker: Well, but it makes no change in the preexisting statute unless there is an affirmance.

Mr. John L. Cromartie, Jr.: Yes, Your Honor, on the advice of the Attorney General.

Unknown Speaker: well, I presume that -- if that where they get their advice.

That's their judgment in any event, yes.

Mr. John L. Cromartie, Jr.: Well, they certainly did not put into effect a new statute.

That is correct.

Justice Potter Stewart: Well, he -- the state has appealed the decision in this case.

Mr. John L. Cromartie, Jr.: Yes Your Honor.

Justice Potter Stewart: And that's -- all those evidence that the state thinks it's a wrong decision, isn't it?

Mr. John L. Cromartie, Jr.: There's no question about that and clearly in my judgment, this -- the statute that was passed would have mooted out those aspects of the case.

The second preliminary question I'd like to deal with is a question put to me by Mr. Justice Stevens right at the end of the argument.

I believe that you asked me the questions to whether the Georgia procedures are invalid under the District Court's holding even as to those children who were within the American Psychiatric Associations' four criteria.

And I'm not sure whether I exchanged that you ended up with the answer that I meant to give to you.

What I meant to say to you there was, is that under the APA standards, all of the children under the present Georgia law are in indefinitely.

And therefore, the APA's position is that all of those children would be entitled to hearings.

And that secondly, the District Court did not deal expressly with the other three criteria that the APA set forth although I see nothing inconsistent in what the District Court's order was from those other criteria.

Now, I personally have some problems with the specific four criteria that the APA set forth.

But I guess the bottom line is, no, the District Court decision is not inconsistent with the APA position.

The three issues that I would like to deal with, is first in the circumstances of this case that is, commitment of a child to a mental institution.

Does the doctrine of parental autonomy or family unity or however that doctrine may be characterized, does this preclude additional protections for the child?

Secondly, does the process at the institution itself adequately protect the child or is there a need for more procedures.

And thirdly, will the procedures ordered by the District Court Act as a reduced to have risk.

Will they have a tendency to prevent inappropriate institutionalization?

I have no intention of spending time on the substantive due process issue although I would certainly answer any questions.

I feel like that I address that issue --

Unknown Speaker: What do you think the substance of due process issue is?

Mr. John L. Cromartie, Jr.: It is whether the District Court was correct in holding that the two -- well, the 46 children should be taken out of the state mental institutions when they were faced with evidence from the state itself that these children did not to be in a state mental institution and that they were being positively harmed by being in that institution.

And in the face of that, it seems to me that the court had little other choice but to order that they'd be taken out of the institution.

It is not --

Justice Potter Stewart: Well, the court held that the United States constitution requires that the State of Georgia provide that the mentally ill child must be treated in the setting most considered most appropriate to his condition either that the State of Georgia must do that or else not treat them at all.

And your adversary claims it -- at least no room for the second or third or fourth most appropriate.

It's either the most appropriate or nothing.

And that the court held that the constitution requires that.

Mr. John L. Cromartie, Jr.: Your Honor, I believe that the term optimal which used by the court I believe that they picked up that phrase from the 1973 study commission and I think that --

Justice Potter Stewart: Oh, where is the 1973 study commission get into the constitution of the United States?

Mr. John L. Cromartie, Jr.: Well, it is a part of the evidence in this case that said a great deal about the conditions within the mental institutions within a state and the District Court was -- felt that that study was consistent with its own observations and with a testimony in this case.

Justice William H. Rehnquist: Well, but how does that bear on the circumstances of confinement to say that the word optimal came out of a study commission report and therefore the constitution requires “optimal” confinement or none at all?

Mr. John L. Cromartie, Jr.: I don't think that that's what the District Court ordered in the case.

I think if you will look further in the opinion where the court actually ordered relief that you find that what the court said was, was to provide necessary physical resources in personnel for whatever non-hospital facilities are deemed by them to be most appropriate.

I think that the District Court was a great deal more flexible than that in terms of what it ordered.

I think that what it ordered was is that if these children were going to be harmed by being in the institution and the state admitted this then they had to get them out of there.

I'm merely was referring to the optimal as what I think was unfortunate language that does not suggest the true intent of the court and I think --

Unknown Speaker: Do you think the District Court's opinion and judgment expressly or implicitly says that anyone who is confined, any child who is confined under this law is entitled to treatment at the hands of the state?

Mr. John L. Cromartie, Jr.: I don't understand your question.

Unknown Speaker: Well, do you think it's a -- do you think the District Court held that a child who's committed that the request of the parents and checked out what the state doctor is entitled to treatment while he is confined.

Mr. John L. Cromartie, Jr.: Yes.

I think that's implicit, that at least that the child not be harmed and that was --

Unknown Speaker: But certainly is implicit in the second -- with respect to this 40, I take it.

Mr. John L. Cromartie, Jr.: I think it is Your Honor.

Unknown Speaker: Are there some cases that would support that?

Mr. John L. Cromartie, Jr.: That would support the treatment of the children --

Unknown Speaker: As well as the treatment in addition to confinement?

Mr. John L. Cromartie, Jr.: Well, I think that the case of Jackson versus Indiana and Shelton versus Tucker and others speak to the issue of not harming people, that is whatever restrictions you place on the children have to be appropriate.

Unknown Speaker: Let's say there's no harm, say there's no harm.

They -- they're just confinement, that state just confines at the request of the parent.

Mr. John L. Cromartie, Jr.: That certainly not the evidence in this case.

The evidence of the states own doctors is that the children were being positively harmed by being in the institution.

That is certainly not the evidence that was before the court.

Justice Thurgood Marshall: And dose the evidence show the existence of institutions in Georgia that would not harm anybody?

Mr. John L. Cromartie, Jr.: There were many children in Georgia who were in institutions that were not being harmed.

There were many other children, other than the 46 who were actually being treated.

Justice Thurgood Marshall: There were institutions available in Georgia that could treat this 40 odd children satisfactorily and not harmed.

Mr. John L. Cromartie, Jr.: Oh, the state's position was that there were no such institutions.

It's remarkable to me that of the 46, they have been no new facilities built and yet 44 of those children have been placed in these non-existent facilities.

It suggests to me that the facilities are in fact present but the state has not gone to the trouble to locate them.

And that was the conclusion of the District Court also.

Justice William H. Rehnquist: How much time has gone by since -- between the entry of the District Court's decree in the present time?

Mr. John L. Cromartie, Jr.: Your Honor, I believe that the decree has entered around February of 19 --

Justice William H. Rehnquist: 76.

Mr. John L. Cromartie, Jr.: 76, yes.

Justice William H. Rehnquist: So, isn't it conceivable in two and a half years there could be a movement of the institutional population such that vacancies would open up in existing facilities?

Mr. John L. Cromartie, Jr.: That is somewhat possible although 44 of the 46 were out at the time this case was last argued almost a year ago.

Unknown Speaker: That could be just because the parents requested it.

Mr. John L. Cromartie, Jr.: The information that I have is not to that effect.

Many of the children were placed in the foster homes and other facilities.

It was the District Court's finding that the state had made little or no effort to find alternative facilities.

And I see no evidence in the record to rebut that finding by the court.

Justice William H. Rehnquist: Do we have something in the record that indicates that 44 of the 46 are now out?

Mr. John L. Cromartie, Jr.: No Your Honor.

Justice William H. Rehnquist: And why?

Mr. John L. Cromartie, Jr.: No, that is information that was furnished to me by counsel for the state during the last oral argument of this case.

There's nothing in the record to suggest that, no, Your Honor.

Dealing first with the issue of parental autonomy, I would point out first that at least a portion of the class.

It seems to me that the parental autonomy doctrine has no application too.

That is those of the children that were wards of the state and who were actually institutionalized by the state themselves.

Unknown Speaker: Well, there are children like that in this case.

Justice Potter Stewart: Well, somebody's --

Yes, Your Honor.

Around 20% of the class would be in -- that one of the named plaintiffs, J.R. was a ward of the state since near birth.

Justice Potter Stewart: For what reason?

Does the parent or parents had -- whether dead had been declared to be unfit as parents?

Mr. John L. Cromartie, Jr.: One of those two, yes Your Honor.

Justice Potter Stewart: Right.

May I ask you since I've already interrupted you, is there a provision in Georgia Law for the involuntary commitment which I -- let's assume as parent doesn't take the initiative and indeed if it's suggested to the parent that he do take the initiative.

He said, “Absolutely not.

I will not.

As far as I'm concerned, my child is either perfectly well or if not well, he's going to stay home.

I'm not going -- I'm not going to have anything to do about it with his being admitted to a hospital.”

Is there a provision for the involuntary commitment of a child in circumstances such as that?

Mr. John L. Cromartie, Jr.: Yes sir.

Yes Your Honor.

In fact one third of the children that are committed in the states are committed through judicial proceedings of some kind.

Justice Potter Stewart: And -- then through an involuntary commitment procedure?

Mr. John L. Cromartie, Jr.: Yes, yes.

Unknown Speaker: Well, in my Brother Stewart's hypothetical, who initiates the commitment?

Mr. John L. Cromartie, Jr.: I think that Mr. Lackey addressed that issue.

I think anyone can initiate the involuntary commitment.

Justice Potter Stewart: You said, anyone could initiate a juvenile court proceeding but this is a little different.

Mr. John L. Cromartie, Jr.: I believe the same as through under the involuntary commitment that anyone can initiate --

Unknown Speaker: You mean the neighbor may?

Mr. John L. Cromartie, Jr.: A neighbor may --

Unknown Speaker: Social worker?

Mr. John L. Cromartie, Jr.: Friend or social worker, whoever, yes.

In fact, back in my years as county attorney when I was in private practice, all of the juveniles children, 17 and under were involuntary committed rather than voluntarily committed because the probate judge didn't have a lot of confidence in the voluntary commitment.

And it is that experience that convinces me that those hearings that we are suggesting should be held can be held in a way that it's not under some traumatic --

Justice Potter Stewart: Well, there's some -- there are some hearings of -- I suppose the involuntary commitment of a child is no different from the involuntary commitment of an adult basically, isn't that correct?

Mr. John L. Cromartie, Jr.: There are --

Justice Potter Stewart: And --

Mr. John L. Cromartie, Jr.: That's true, I mean, yes.

Justice Potter Stewart: And there are hearings when there's a voluntary commitment of an adult.

There are no hearings when there's -- excuse me, there are hearings when there's an involuntary commitment of an adult and there are no hearings when there's a voluntary commitment.

There are simply these same checks on it, is that correct?

Mr. John L. Cromartie, Jr.: Yes.

And in --

Justice Potter Stewart: Generally, there's -- if you want to analogize there is a jury trial, if you ever write to a jury trial if you've plead not guilty, you don't if you've waived it if you've plead guilty.

Mr. John L. Cromartie, Jr.: Well, because we --

Justice Potter Stewart: Analogizing it as you do to a criminal proceeding.

Mr. John L. Cromartie, Jr.: Of course we're not suggesting that a jury trial should be made available in this case.

Justice Potter Stewart: No, I know you're not.

I know you're not.

Mr. John L. Cromartie, Jr.: That the court has precluded that in the juvenile delinquency --

Justice Potter Stewart: I know you're not.

But you do analogize these three, your reliance on cases such as In re Gault and others to a criminal proceeding.

Mr. John L. Cromartie, Jr.: Yes.

We've relied very heavily in this case on the magnitude of the child's interest.

The magnitude is simply enormous.

We are talking about children being locked in the sterile walls of institutions where the process --

Justice Potter Stewart: It's also true in the volun -- when you -- when an adult voluntarily admits himself to a hospital, isn't it?

Mr. John L. Cromartie, Jr.: But an --

But adult can turn around and say, “I want out.”

And they must be let out or involuntarily committed.

And a child does not have that option.

Justice Potter Stewart: Its -- to the same option that put him in can take him out.

I.e, though -- the desire of his parent, isn't that correct?

Mr. John L. Cromartie, Jr.: That is a disagreement that I think that we had in the last oral argument about whether the placement of a child in an institution is truly voluntarily because if you --

Justice Potter Stewart: Well, Georgia has said that it's voluntary and the question is whether or not Georgia cons -- can agreeably to the constitution adhere to the centuries old common law rule that a parent speaks for his child.

And the common law presumption that there's a community of interest between child and parent.

That's the basic question in this case, isn't it?

Mr. John L. Cromartie, Jr.: Well, I find absolutely no authority for the proposition that a parent has ever been able to institutionalized a child in a state mental institution.

I find no authority to support that proposition. I would --

Chief Justice Warren E. Burger: How about for tubercolosis?

Mr. John L. Cromartie, Jr.: I would --

Chief Justice Warren E. Burger: I was referring to tuberculosis or smallpox?

Mr. John L. Cromartie, Jr.: The child would be cared to a doctor, to a hospital and treated there and we --

Chief Justice Warren E. Burger: Will -- confined.

Mr. John L. Cromartie, Jr.: Confined.

Chief Justice Warren E. Burger: Confined.

Mr. John L. Cromartie, Jr.: It's not my understanding that tuberculosis treatment is confined in the same sense that you confine in a mental institution.

Mr. John L. Cromartie, Jr.: What's the difference in the sense if he is --

Mr. John L. Cromartie, Jr.: Well, I may --

Chief Justice Warren E. Burger: Placed there by his parents and the parents say to the doctors, “If you keep him here until he is well or she is well and I go to see him twice a week.”

Mr. John L. Cromartie, Jr.: Well, for centuries, the courts have treated physical care and physical treatment different from mental commitment because --

Unknown Speaker: Who has treated -- who has treated it different?

Mr. John L. Cromartie, Jr.: The court's have.

The Georgia Court's have, Morton versus Sims and other cases have said, “Mental commitment is by its very nature coercive.

It -- it's coercive by its nature.

Plus, it is not -- they are not commonly accepted medical norms.

Justice William H. Rehnquist: Oh, on your first -- on your first point that medical -- that mental care is coercive by its nature.

It surely no more coercive than to put a child in the hospital and have his leg amputated because he has a kind of cancer that might spread, would you agree with that?

Mr. John L. Cromartie, Jr.: I would agree with that.

Yes, Your Honor.

I'd think --

Justice William H. Rehnquist: So that doesn't distinguish physical care from mental care at all.

Mr. John L. Cromartie, Jr.: I think it distinguishes the vast majority of cases.

I am sure that there are cases at the far extreme which in the extreme might --

Justice William H. Rehnquist: Would you say that the parents have to have a hearing and the child must have a lawyer before a child -- the parent of an eight-year old child can decide whether or not to have its leg amputated because of a possibility of spreading cancer?

Mr. John L. Cromartie, Jr.: There are cases that have held that that is subject to judicial scrutiny under certain circumstances.

Justice Potter Stewart: Well, there are -- there are cases that hold that a -- that the state is not prohibited by the constitution from interfering in such a situation.

Mr. John L. Cromartie, Jr.: Yes.

Justice Potter Stewart: And that's quite a different holding.

Mr. John L. Cromartie, Jr.: Yes.

Justice William H. Rehnquist: Would you say the constitution requires that, of Georgia, if Georgia chooses to come down otherwise?

Unknown Speaker: Exactly.

Mr. John L. Cromartie, Jr.: That requires which (Voice Overlap)?

Justice William H. Rehnquist: Would you say that the United States constitution requires that in Georgia before a parent can have a child put in the hospital for an operation to amputate a leg, the sort of hearings that you're contending for here in mental cases be had?

Mr. John L. Cromartie, Jr.: No, no Your Honor.

We feel like that there is enough protection in the hypothetical that you have given to me so that that is not required, I mean there are --

Justice William H. Rehnquist: Protection from where?

Mr. John L. Cromartie, Jr.: Protection from erroneous decision making.

In the case of the cancer, there are medical tests that can be run that can tell you one way or the other whether there is cancer there or not.

Justice William H. Rehnquist: Well --

But then your first argument that the -- about the coercive nature of mental care as opposed to physical care is -- breaks down and you have to rely on that.

Mr. John L. Cromartie, Jr.: Oh, no.

It's a combination of those two arguments plus our stigma argument.

And --

Justice William H. Rehnquist: But your coercive argument had -- doesn't wash in the cancer occasion.

Mr. John L. Cromartie, Jr.: There are circumstances where it does not wash.

It washes, I would contend in the vast majority of cases but we look on as a combination of all three of those elements in terms of deciding whether the two are in fact distinct or not.

Justice Potter Stewart: Now, once an adult voluntarily gets himself admitted to a mental hospital, he is locked up there, isn't he?

Mr. John L. Cromartie, Jr.: He can get out by requesting.

Justice Potter Stewart: He can get out.

The child can get out of -- on the wish of his parents.

Mr. John L. Cromartie, Jr.: Yes.

In the case of J.L. and J.R., they wanted out right after they got in.

They didn't want to go in.

If they had been an adult, they could have requested of the superintendent that they'd be let out and the superintendent would have either had to let them out.

Justice Potter Stewart: Well, say he'd been adult and didn't want in and they would not voluntarily --

Mr. John L. Cromartie, Jr.: No --

Justice Potter Stewart: -- gotten themselves admitted to a hospital, would they?

It's true.

That's true.

Chief Justice Warren E. Burger: State statutes with -- in most states requires the children to attend school for certain period of time.

Mr. John L. Cromartie, Jr.: Yes.

Anything in the constitution of the United States to forbid that confinement, the connotation on liberty?

Mr. John L. Cromartie, Jr.: No Your Honor.

We look on that in terms of its magnitude of any deprivation as just far different from the magnitude of the deprivation we're talking about right here.

The courts have always looked suspiciously on physical confinement and that's what we're talking about right here.

That's the essence of mental health's treatment.

It is what distinguishes commitment in the mental hospital from, say, a group home.

It is the physical confinement feature that distinguishes --

Chief Justice Warren E. Burger: Well, what if the parent decide that a military academy is the best place as many parents have for border lining courageable children?

And they placed him in a private military academy where they must keep rigid hours, they can't live the grounds, a whole series of restraints, what about that?

Mr. John L. Cromartie, Jr.: I can't imagine this Court holding that that was -- there was a need for a due process protections there.

For one thing, I would not find the presence of state action there.

And secondly, it's readily distinguishable from our case.

Here, we are talking about a situation where the parents have gone to the state and said, “We cannot handle the child.

State, you take the child and lock the child up in effect.”

That would not happen in the military school situation.

Justice Thurgood Marshall: What's the difference between that and this -- your institution had a tuberculosis sanitarium where the state commits people everyday.

They used to when it was agreed.

Mr. John L. Cromartie, Jr.: If it was a situation involving a --

Justice Thurgood Marshall: You didn't walk out either.

You didn't walk out either.

Mr. John L. Cromartie, Jr.: I would then argue there that any person was entitled to a hearing before they were placed there because we are talking about long term deprivation.

Justice Thurgood Marshall: You mean in the mean time, you walked around spreading your germs.

Mr. John L. Cromartie, Jr.: Well, we have always --

Justice Thurgood Marshall: Do you think a state is powerless to stop that?

Mr. John L. Cromartie, Jr.: We have always conceded the emergencies --

Justice Thurgood Marshall: Do you -- Oh, I see.

Mr. John L. Cromartie, Jr.: That emergencies, that the hearing can occur afterwards, that the state's hand is not tied in the tuberculosis situation, certainly there could be a hearing afterwards.

Justice Potter Stewart: I had thought that a good deal of your case depended upon evidence, the record of which contains a good deal, that because of the relative unreliability of psychiatry as contrasted with the more conventional forms of medical practice, a hearing was appropriate because of the consequent risk of incorrect decisions.

And that therefore, you would distinguish the tuberculosis situation on that basis.

Mr. John L. Cromartie, Jr.: Your Honor, that is a part of our argument.

Justice Potter Stewart: Well, I thought it was.

Mr. John L. Cromartie, Jr.: I think that the more basic argument that we have is that when there is a deprivation of liberty as extreme as right here, that in traditionally, our courts have provided at least notice in a hearing to the person involved and that --

Justice Potter Stewart: Well then that would require I would suppose logically for you to contend that the constitution requires notice and hearing with respect to a leg amputation or admission to a tuberculosis sanitarium.

Mr. John L. Cromartie, Jr.: I -- I think I would concede the tuberculosis sanitarium but --

Justice Potter Stewart: Concede?

Mr. John L. Cromartie, Jr.: That --

Justice Potter Stewart: What do you mean?

Mr. John L. Cromartie, Jr.: That it would probably require a hearing there.

We don't feel like in the leg amputation, that the elements involved that we have in this case, distinguishing it in terms of the family autonomy and breaking into the family autonomy, it would be present in the leg amputation situation whereas they are here.

The potential for conflict of interest, the request by the family itself that the child be taken out of the home.

We feel like that those are different for those reasons.

Unknown Speaker: Mr. Cromartie, aren't you -- don't you have a lot of difficulty trying to distinguish on the basis of the magnitude of the deprivation.

I thought your case rested on the point Mr. Justice Stewart made earlier, that the common law presumption rest on the notion that there's a community of interest between the parent and the child where there would be in the tuberculosis case and the leg amputation, all the rest.

But your point as I understood here in your brief was in part that you can't be so sure there's a community of interest in the mental institution context when the parent is asking that the child be placed in the home because it may will be a family conflict that -- is the source of the problem.

So, isn't the scope of your argument limited to the case in which the basis for the common law presumption is no longer applicable?

Mr. John L. Cromartie, Jr.: Your Honor, there were several points that we made.

That was one of them.

The other one was that this situation was different because the parent had gone to the state and asked the state to intervene.

And in the Wyman versus James sense, had ceded some of its authority that it traditionally would have to the state.

But also our argument was because of the manifest potential for conflicts of interest.

Just by nature, this is a stressful situation, emotional situation.

Unknown Speaker: And that point really doesn't apply to any of these other hypothetical examples as I understand it.

Mr. John L. Cromartie, Jr.: It might will not Your Honor.

It might will not.

I was more troubled by the tuberculosis situation because of the stigma and that sort of thing involved in that situation than I was with the amputation situation.

Chief Justice Warren E. Burger: Would you think it possible Mr. Cromartie that a child that is someone under 18 might be so emotionally disordered, disturbed, that they couldn't participate, they couldn't contribute anything in the same sense that some defendants in criminal cases are determined to be not competent to assist in their own defense.

Now, is that possible that that kind of a situation could arise with a seriously disturbed child, age 16 or 15?

Mr. John L. Cromartie, Jr.: I think it would be very rare.

The evidence shows that most of the children are mildly diagnosed here.

They are not the severely mentally ill.

Chief Justice Warren E. Burger: Well, there can be psychotics at age of 16, can't there?

Mr. John L. Cromartie, Jr.: There can be.

The evidence is --

Chief Justice Warren E. Burger: Psychopaths?

Mr. John L. Cromartie, Jr.: That it's not as frequent with children in adolescence is (Voice Overlap).

Chief Justice Warren E. Burger: Well, let's assume for a minute that you have the very seriously disturbed psychotic psychopathic person, you're going to have to have first a preliminary hearing to determine whether they are competent to assist and take part in a hearing?

Mr. John L. Cromartie, Jr.: Well, Your Honor in Jackson versus Indiana, you had a person who by all evidence was incapable of participating in that proceeding.

And yet the court felt it was important to provide procedural protections to that person.

The code of professional responsibility speaks to that also.

Canon 7 says that an attorney's responsibility is to do everything that he or she can to adequately get input from the client, into the client's wishes.

But there may be circumstances where the client is not able to participate.

And in that case, the attorney still has the obligation to fully represent that person.

Getting on toward the end of my argument, we feel that the cases of J.L. and J.R. very dramatically illustrate how some sort of hearing process, informal though it may be could have prevented both of them from spending over five years of their lives in a mental institution.

In the case of J.L., his primary outpatient therapist had recommended only a month or so before that he not be institutionalized.

And yet Janet Scott's recommendation was not even considered when J.L. was placed into that mental institution.

Of course also the evident shows that J.L. was placed in the institution, the decision was made three days before he ever showed up at the institution.

Justice Thurgood Marshall: I -- I assume that I agree with what you say.

What's going to happen if we end up with the hearing with three psychiatrists on one side and three on the other, then what does the court do?

Mr. John L. Cromartie, Jr.: Somebody is going to have to make a decision.

I mean that -- that is -- that is typical --

Justice Thurgood Marshall: Have you ever tried to make one with three psychiatrists on one side and three on the other?

Mr. John L. Cromartie, Jr.: Yes, Your Honor --

Justice Thurgood Marshall: If you haven't tried it, you'd be committed?

Mr. John L. Cromartie, Jr.: I made a many a time to this county attorney when I sat in and was one of the three members of an interdisciplinary team that sat and listened to evidence such as that.

I mean it's the same role that any judge performs in any trial where you have to weigh the different evidences presented to you and make a decision based on that.

Unknown Speaker: Mr. Cromartie -- excuse me go ahead.

Justice William H. Rehnquist: Oh, -- what are -- what is the issue of fact that would be determined in the hearing that the District Court is ordered be had?

Mr. John L. Cromartie, Jr.: Mental illness is grounded basically in behavior and there are lost of issues of fact as to what the person has done that allegedly gives rise to the conclusion of mental illness.

Justice Potter Stewart: That's the ultimate issue in fact.

Justice William H. Rehnquist: Is the --

Mr. John L. Cromartie, Jr.: Yes.

Justice William H. Rehnquist: The ultimate issue that the finder of fact would have to pass on is whether or not the child is or is not mentally ill?

Mr. John L. Cromartie, Jr.: With expert testimony, yes.

And secondly, there is the important.

And this may well be the most important issue in these cases.

And that is, should the child be here or should the child be somewhere else.

And right now, when you have a physician or someone else at an institution making that decision, they have really only two choices.

They can either say, “Child, go home.

We can't treat you at all.”

Or we're going to put you in this institution.”

Justice William H. Rehnquist: Oh, what type of person makes this decision?

Is it a psychiatrist?

Mr. John L. Cromartie, Jr.: I conceded in the last oral argument that the question of who was not so important as the question of how.

Justice William H. Rehnquist: It could be a layperson.

Mr. John L. Cromartie, Jr.: It could be, I mean I would not recommend that but I think it could be.

Justice William H. Rehnquist: What would you recommend?

Mr. John L. Cromartie, Jr.: I would -- I think that the best and what is done in the new act is that the juvenile court judge would make the decision.

But now --

Unknown Speaker: But if --

Mr. John L. Cromartie, Jr.: That's a matter for the legislature, it seems to me.

And it is not an issue that we have addressed nor that we have taken a position on.

Unknown Speaker: Could I just make sure in Georgia now, if the state doctor determines that the child is mentally ill, does he also have to determine that he would benefit from the treatment?

Mr. John L. Cromartie, Jr.: Yes Your Honor.

Unknown Speaker: And does he also --

Mr. John L. Cromartie, Jr.: That frequently is not done.

And the record is very clear on that.

Unknown Speaker: Well, would that be -- will that be an issue on remand under the District Court's remand?

Mr. John L. Cromartie, Jr.: Yes Your Honor.

Unknown Speaker: And does the doctor also have to find that there are some advantages to treating in the state institution rather than at home?

Mr. John L. Cromartie, Jr.: I think that that's implicit in that standard, yes.

That the treatment is appropriate in an institution as opposed to being in the home or in the foster home.

Unknown Speaker: So you think under the present Georgia law, if the parent says, “Well, I know a lot but I just am -- I just can't handle them at home.

I agree with you that he could be treated at home but we just can't get along with them at home.”

Under the present Georgia law, the state must reject them?

Mr. John L. Cromartie, Jr.: Well, they may not but it's my position that they should.

But they frequently don't and the record is clear on that, that they frequently don't.

Unknown Speaker: So, that the law permits them to take that kind of a child just because -- although he could be treated at home, the parents just don't want to treat him at home.

Mr. John L. Cromartie, Jr.: Well, I mean that's my construction of the law that it does not allow that.

Now, obviously, that is not shared by the psychiatrist.

Chief Justice Warren E. Burger: Could -- could they not put him in a foster home?

Mr. John L. Cromartie, Jr.: Could the parents not placed them in the foster home?

Chief Justice Warren E. Burger: No, no, the state.

If they thought something less than institutional care was indicated.

Mr. John L. Cromartie, Jr.: Yes, yes, they could.

Unknown Speaker: Mr. Cromartie, would a new statute require a finding that the two now would benefit from treatment?

Mr. John L. Cromartie, Jr.: Yes.

Unknown Speaker: An affirmant of finding.

Mr. John L. Cromartie, Jr.: Yes.

Justice William H. Rehnquist: You said an answer to Justice White's question that the present Georgia law does not allow an institution to receive a patient if -- it finds, if the psychiatrist finds that he could be treated at home, is that right?

Mr. John L. Cromartie, Jr.: That's my construction, that if a child could be treated in the home and could -- would not be appropriately treated in the institution then they cannot accept that child.

Unknown Speaker: Yeah, but suppose he could be appropriately treated in the institution in the sense that you can now administer the treatment there.

Mr. John L. Cromartie, Jr.: Oh, okay.

If that's the question, then no, I don't think that the law requires that he'd be in the home rather than in the institution.

I'm sorry.

That --

Unknown Speaker: So, if the parent comes to the state and say, “Well, I know we could treat them at home but I know I think and my doctors says, he could be treated in the institution also.

That the state may take him.”

Mr. John L. Cromartie, Jr.: The -- under the present law, yes they could.

If they can be approved --

Unknown Speaker: How about under the new law?

Mr. John L. Cromartie, Jr.: It's my construction of the new law that it would not be appropriate there.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.