PENNHURST STATE SCHOOL & HOSP. v. HALDERMAN

Transcript: 

ORAL ARGUMENT OF ALLEN C. WARSHAW ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We'll hear arguments next in Pennhurst State School against Halderman.

Mr. Farr, I think you may proceed whenever you are ready.

Mr. Farr: Thank you, Mr. Chief Justice.

May it please the Court:

This case returns to this Court after a two-year absence.

As the Court will recall, in 1978, the District Court, relying on federal constitutional, federal statutory, and state statutory grounds, ordered that Pennhurst State School and Hospital, a facility for the mentally retarded, be closed and that all of its residents be moved to community living alternatives known as CLAs.

On appeal, the Third Circuit, relying on the Developmental Disability Act, the federal statute not relied on by the District Court, essentially affirmed the judgment.

It did modify the order, however, to allow some residents to remain at Pennhurst.

Unidentified Justice: You will at some point address the question of mootness, possible mootness, will you not?

Mr. Farr: The question of mootness, Mr. Chief Justice, goes to the particular issue of the Special Master and Alan Warshaw will discuss that issue.

I will discuss it first if you would prefer.

The Third Circuit, on the initial appeal, ordered the District Court to make individual determinations about the appropriateness of an improved Pennhurst for each resident.

It further ordered the District Court or Master to apply a presumption in favor of placing people in CLA's and said that unless Pennhurst was the only appropriate place for a resident CLA's must be provided> ["].

This Court reversed, finding that the DD Act did not impose such massive obligations on the states.

It then remanded the case to the Third Circuit for consideration of the other issues.

On remand, the Third Circuit issued exactly the same order, this time resting its decision entirely on state law.

The Court rejected our argument that the 11th Amendment barred the order and, furthermore, that in the event the 11th Amendment did not bar it, the principles of Comity should do so.

As a result we believe that the Third Circuit has expanded the power of the federal courts at the expense of state officials, state legislatures, and ultimately, state courts.

Now, as I have explained, Mr. Chief Justice, I will particularly address the 11th Amendment issues on which there is no mootness point, and Allen Warshaw will discuss the other issues.

Before turning to the merits of the 11th Amendment issue, I would like to talk briefly about the relationship between the 11th Amendment and the Doctrine of Pendent Jurisdiction.

For the Third Circuit, in rejecting our 11th Amendment argument, placed considerable weight on the fact that the state law claim, on which all of the relief now rests, was a pendent claim.

Our position on this issue is straightforward.

The Doctrine of Pendent Jurisdiction is not sufficient to override a constitutional bar like the 11th Amendment any more than the exercise of diversity jurisdiction or admiralty jurisdiction or any other general grant of jurisdiction would be able to do so.

For example, it would be inconceivable if the original claim in Chisholm v. Georgia, the very claim that prompted the passage of the 11th Amendment, could now be brought after the passage of the 11th Amendment in federal court simply by making it a pendent claim rather than a diversity claim as it was in Chisholm.

Without a valid basis of jurisdiction under Article III, of course, the issue of the 11th Amendment is never reached, but once valid jurisdiction under Article III is found, the question still must be answered, is a particular claim barred by the 11th Amendment?

Unidentified Justice: How do you distinguish the holding of this Court about the 11th Amendment in Green v. Louisville Railroad case?

Mr. Farr: The decision in Green does not ever address the question specifically, of course, as to whether the pendent claim has to be examined under the 11th Amendment.

I think that holding has been seriously undercut by the holding in Edelman, which the Court decided ten years ago.

In Edelman the Court did exactly what we are saying they should do in this case.

It first looked to see whether the Court properly exercised pendent jurisdiction, citing Hagans v. Lavine, the leading case.

It then, however, having found that the Court did properly exercise pendent jurisdiction, went on to conclude that the claim was barred by the 11th Amendment.

Now, to the extent that Green is inconsistent with that, we think Edelman is already undercut.

Unidentified Justice: Edelman did involve just a federal statutory claim with what relief was ultimately granted on it, wasn't it?

It was not a state claim.

Mr. Farr: That is correct.

I think it is important though to keep these two issues separately.

Our position here is that the exercise of pendent jurisdiction does not affect whether the claim is barred by the 11th Amendment.

If you find that it is barred by the 11th Amendment, then the exercise of pendent jurisdiction doesn't make any difference.

Now, the second part of my argument, of course, is that this claim, although it is not a federal statutory claim, is barred by the 11th Amendment.

Unidentified Justice: And, why it is barred?

Because it is against the state?

Mr. Farr: In this particular case, yes.

The short answer, and I have a longer answer that I will give, the short answer is that it is a claim against the state and it is not taken outside of the 11th Amendment by the unusual principles of Ex Parte Young that apply only when--

Unidentified Justice: So, you really aren't saying that the 11th Amendment always bars the adjudication in the federal court of a pendent claim where the nominal defendants... or where the defendants are state officers?

Mr. Farr: --That is correct.

Unidentified Justice: You don't say... You are saying it always bars that?

Mr. Farr: No.

I am saying that it does not always bar it where the defendants are state officials.

Under 11th Amendment law--

Unidentified Justice: The defendants here are state officials?

Mr. Farr: --The defendants here are state officials and there--

Unidentified Justice: So, you have to get to some more... You must say something else about the 11th Amendment.

Mr. Farr: --I have lots more to say about it, yes, Your Honor.

But, the fact is, one of the key principles, which I will discuss, about the 11th Amendment is that the fact that you make state officials the nominal defendants doesn't mean that it isn't in practice a claim against the state for 11th Amendment purposes.

Unidentified Justice: Let me go back if I may.

I am not sure I understood your answer to Justice O'Connor about the two Green cases that Judge Seitz relied upon in the Third Circuit.

You said they have been implicitly overruled by Edelman against Jordan, is that your--

Mr. Farr: Right.

I think to the extent you were talking about the particular part of Green, which it never really discusses... It never discusses the relationship.

Unidentified Justice: --No, the holding is inconsistent with--

Mr. Farr: But, the holding, as it goes to state officials, is inconsistent with Edelman.

I would like to point out that Green and Siler, which is the case that the Third Circuit relied on, of course, didn't even discuss the 11th Amendment issue.

But, those cases were decided at a time when the federal intrusion into state affairs was much greater than is now recognized to be permissible.

You know, we are talking about a time of substantive due process, Lochner v. New York.

Those cases have essentially been legislatively overruled by the Anti-Injunction Acts, therefore, the court really hasn't had a chance to reconsider them.

Unidentified Justice: --But, your answer... I still want to be sure, your answer is that they have been implicitly overruled by Edelman against Jordan.

My next question is how could cases that turn on state law claim be overruled by Edelman against Jordan which did not involve the state law claim?

Mr. Farr: Well, Edelman v. Jordan, of course, doesn't discuss the issue of whether... I mean, does not address the issue of whether the particular claim at issue in Green would be barred by the 11th Amendment, but it does address the issue of whether if a pendent claim is barred by the 11th Amendment and I think there are different reasons for different types of claims.

Then, the fact that it is a pendent claim makes no difference.

It is barred by the 11th Amendment just as much as if it is a pendent claim as it would be if it was--

Unidentified Justice: And vice versus too.

Mr. Farr: --Pardon me?

Unidentified Justice: And, equally... the converse would equally be true.

Mr. Farr: If it was not barred by the 11th Amendment, the fact that--

Unidentified Justice: It doesn't become barred simply because it is a pendent claim?

Mr. Farr: --That is correct.

Unidentified Justice: All right.

Mr. Farr: Now, I obviously should get to the 11th Amendment principles and while the Court has said itself that its decisions in this area are not easy to reconcile, I think there are four principles which are pretty clearly established by now.

First of all, the 11th Amendment does bar suits against a state by its own citizens as well as by citizens of another state.

The Court said that in Hans v. Louisiana.

It reaffirmed it last term in Treasure Salvors.

Second, that the Amendment also bars suits for injunctive relief--

Unidentified Justice: That is not unanimous.

Mr. Farr: --Pardon me?

Unidentified Justice: That is not unanimous.

Mr. Farr: That is correct, Justice Brennan.

The second principle is that the Amendment bars suits, not just for damages, but for injunctive relief as well.

The Court reaffirmed that principle last term in Cory v. White and the language of the 11th Amendment referring to any suit in law or equity would leave little doubt.

The third principle, and the one which Justice White was alluding to earlier, the Amendment bars suits against the states, not just in name, but in fact.

Although the Court took awhile to get around to that holding, originally holding that the state had to be named as a defendant, it is now clear, from the cases of this Court, that the Plaintiffs could not get around the 11th Amendment by naming state officials as the nominal defendants.

In such cases, as in this one, the Court must look to the nature of the claim asserted and the nature of the relief granted to determine whether the state is, in fact, the real party in interest.

Now, the fourth principle is the principle of Ex Parte Young which, where applicable, puts a limitation on the second and third principles just discussed.

According to that principle, a federal court may allow injunctive relief against a state official and may do so even if the result is to cause an expenditure of state funds.

The reason for this exception, as stated in Young, is that a state has no power to impart to a state official any immunity from responsibility to the supreme authority of the Constitution.

Thus, where there is a conflict with the Constitution or with supreme federal law, it is not necessary to ask, as you do in the normal case, whether the state official is acting within his colorable authority or whether the impact of the order is on the state treasury because it makes no difference.

The state cannot confer an immunity from obedience to the Constitution.

Now, while the logic of Ex Parte Young has been questioned, the doctrine of the case has long been thought necessary to the federal system, for without it, the ability of the federal courts to enforce federal rights would be greatly undercut.

But, the doctrine has been severely limited to suit that purpose.

For example, the Court has declined to extend Ex Parte Young to allow damages payable from a state treasury even though the claim is a constitutional one and the logic of Ex Parte Young conceivably could be stretched to fit that case.

Here, there is even less reason--

Unidentified Justice: What is the authority for that last proposition?

Mr. Farr: --Edelman v. Jordan and cases before it.

Here, there is even less reason to extend Ex Parte Young because the claim at issue is not a federal claim at all.

It does not involve any conflict with the Constitution or with supreme federal law.

It involves only the question whether the defendants are correctly carrying out their responsibilities under state law.

That is not the sort of question that has anything to do with the principles of Ex Parte Young.

Unidentified Justice: So you say it must be then considered a suit against the state?

Mr. Farr: Well, you have to make the examination to determine whether it is a suit against the state.

In this case, I think if you apply the principles that you do in a normal case, it clearly is a suit against the state.

Unidentified Justice: But, if the argument only is whether the officer is properly carrying out his duties, duties which he has the authority to perform--

Mr. Farr: Absolutely.

Unidentified Justice: --then it is a suit against the state.

Mr. Farr: That is a suit against the state if that, in fact, is what the claim is and that is what the claim is here, that is a suit against the state.

There obviously can be suits against state officials that are outside--

Unidentified Justice: But, what if the court alleged that the state official had no authority whatsoever to do what he is doing?

It is just outside the perimeter of his duties.

Mr. Farr: --The lesson of Larson and Treasure Salvors last year is that there is some range outside of colorable authority where you can't fairly say the official is acting as an official.

Unidentified Justice: But, this state... This case doesn't get into that ring?

Mr. Farr: It certainly doesn't seem to me that it does at all.

You are talking here... There isn't any question that there is a statutory bar of the type suggested in Larson that had to be pleaded in the complaint that limits the power of these officials to make placement decisions regarding institutions or CLA's or any of the professional decisions regarding treatment of the retarded.

The most that the Respondents say is that they are not carrying out their duties in the way that they should.

But, the Court in Larson has said that a mere error in the exercise of duties is not enough to override a governmental immunity.

Unidentified Justice: Do you conceive, then, that you have to make this ultra vires colorable action distinction?

Mr. Farr: We certainly think that that is one of the distinctions that the Court has to look at in deciding whether the suit is a suit against the state.

However, in this case, even if the Court did determine that it was ultra vires, we think the Court would still have to look at the nature of the relief granted here.

Because this is... the relief here obviously is not going to be paid for by the individual defendants.

They are not going to create and fund CLA's out of their own pockets.

And, the county defendants who are here have only administrative responsibilities.

The state will have to pay every cent of the costs required by the Order below.

And, therefore, even if it was regarded as outside the colorable authority of the state officials as defendants, the relief ordered would still bring the case back in the class of suits that are cases against the state.

Unidentified Justice: Mr. Farr, you have picked out phrases from Ex Parte Young and about 50 or more other cases.

Do we have to agree with every one of your little points in order for you to win?

Mr. Farr: I do not think you have to agree with every one of the little points.

I think the basic points--

Unidentified Justice: We have to agree with every one of the points--

Mr. Farr: --I think you basically have to agree with the point that this is, in fact, a suit against the state under the accepted principles of these decisions.

Unidentified Justice: --Do you want us to overrule Ex Parte Young?

Mr. Farr: Oh, absolutely not.

This case is entirely consistent with Ex Parte Young.

Now, what we are saying is that Ex Parte Young is completely authoritative where it applies.

And, where it applies is when you have a conflict with the Constitution or supreme federal law.

Here we do not have that conflict.

All you have is an issue of whether these state officials are carrying out their duties properly under state law, and that is not the kind of claim when any of the immunity that is discussed in Ex Parte Young can be set aside.

Unidentified Justice: May I just ask you a question to be sure I get your theory correctly?

Supposing we had before us both the federal claim and the state claim... either federal statute or federal Constitution, I would not care... but both asking for precisely the same relief that you are discussing here.

Insofar as the claim relied on federal law, in your view, would it be a claim against the state?

Mr. Farr: Insofar as the claim relied on federal law, applying the principles of Ex Parte Young, the state could not confer any immunity on the state officials.

So, assuming it was a state official that was a named defendant, the claim would be properly brought in state court against the state official under federal law.

Unidentified Justice: That does not answer my question.

My question is, insofar as it relied on federal law, would the claim be a claim against the state?

Mr. Farr: If it is... under the--

Unidentified Justice: When they ask for precisely the same relief they ask under state law?

Mr. Farr: --I think the--

Unidentified Justice: I know you are saying they could maintain the claim, but I am asking you as a matter of analysis whether, in your view, it would be a claim against the state?

Mr. Farr: --As a matter of analysis, the effect is the same as it is in the claim of the state court.

But, the logic of Ex Parte Young says it does not make any difference in that case whether it is the state--

Unidentified Justice: You are saying that Ex Parte Young in essence holds, even though it is a claim against the state, it may be maintained notwithstanding the 11th Amendment?

Mr. Farr: --That is the practical effect of Ex Parte Young, yes.

Unidentified Justice: Yes, but you would say even if this were a federal claim that the relief granted in this case would be barred by the 11th Amendment in a federal court?

Mr. Farr: No, we are saying that in this case if the relief were granted on a federal claim, that for those purposes Ex Parte Young would be the controlling case.

And, that does allow prospective relief against state officials.

Unidentified Justice: You mean Edelman v. Jordan would not bar that kind of relief granted in this case?

Mr. Farr: Edelman v. Jordan deals with retroactive relief, not prospective relief.

That is correct.

So, I would think that Edelman v. Jordan would not bar relief, if the relief was on a federal claim, which it is not.

Unidentified Justice: So there is... so you do say that the 11th Amendment should apply differently to a federal claim and to a state pendent claim.

Mr. Farr: Absolutely.

I think Ex Parte Young establishes an exception for federal claims that does not apply to state claims precisely.

Unidentified Justice: The practical consequence this is with a mixed claim, it would be the duty, in your view, of the federal court to address the federal claim first?

Mr. Farr: Indeed, it would be the duty of the federal court to address only the federal claim, because our argument is that the state claim must be dismissed under the 11th Amendment.

Thank you.

Unidentified Justice: I suppose, though, if we decide it as a matter of Comity it should not be entertained we would then avoid the 11th Amendment inquiry?

Mr. Farr: That is correct.

If... You would not need to say that the claims are barred under the 11th Amendment if you applied a Doctrine of Comity.

That is correct.

Thank you.

Chief Justice Burger: Mr. Warshaw.

Mr. Warshaw: Mr. Chief Justice, and may it please Court.

If I may I will address the Comity issue first and then the master issue including the mootness issue.

Obviously, if you agree with us that the 11th Amendment bars a decision on the state law issues in this case, you need go no further.

However, even if the 11th Amendment permits such claims, principles of Comity do not.

Rather, those principles prohibit a decision based solely on state law when the likely result with be a federal court order requiring expenditure of state funds and controlling the operation of state programs solely to implement state laws.

In this regard, essentially three principles apply.

First, federal courts must display a strict regard for the independence of state government.

Second, they must avoid needless friction with a state's domestic policies.

Third, they must be reluctant to interfere with the fiscal operations of a state.

And, in addition, I would note that this Court has recently counseled federal courts to show a substantial deference to the judgments of qualified professionals chosen by a state to operate its mental retardation systems.

Each of these principles was violated in this case by the Third Circuit as it apparently solely or primarily, for reasons of federal court convenience, sanctioned a massive and ongoing intrusion into Pennsylvania's domestic policies, its fiscal operations and the judgments of its qualified mental retardation professionals.

Specifically, in this case the lower courts have taken a vague right to treatment in the least restrictive environment, and have assumed the power to apply it in over a thousand cases.

More importantly, they have taken this supposed right from state cases involving one person where funding was not an issue and have tried to apply it on a state-wide basis where limited resources required difficult choices between competing needs, rights, and priorities.

In short, the court has essentially taken control of Pennsylvania's $160 million community program for the mentally retarded.

For example, in July of 1982, well after the Third Circuit had held that its orders were based solely on state law, the District Court roundly condemned Commonwealth officials for their failure to place more plaintiff class members in CLAs.

It found wholly unacceptable... and I quote its word... the state officials excuse and explanation that they had expended available funds moving the residents of another institution into CLAs.

In so doing it apparently found entirely irrelevant uncontroverted evidence, testimony by a number of state officials, that the reason they had given priority to the other institution was that its conditions were dangerously deteriorating.

It was about to lose federal approval, and it was about to lose substantial federal funding.

In contrast, Pennhurst at that time and today has full federal approval, meets all applicable federal standards, and receives substantial federal funding.

More recently, the Court has ordered the state to place over 270 class members in CLAs.

It has done so despite clear evidence that anticipating funding would not be sufficient to fund those placements.

It also ignored testimony by state officials that there were simply priorities in the mental retardation area that should have been given higher priority.

Thus, the District Court has imposed its policy, fiscal and professional judgment on defendants in a way which is given precedence to its decree to the exclusion of all other competing interests in Pennsylvania.

Moreover, it has done so without any regard for the many other mentally retarded people in Pennsylvania whose right is presumably identical and whose need was apparently greater.

This already massive intrusion has been exacerbated by the appointment of Masters, who over a five-year period at a cost of over $3 million have monitored and supervised in detail and on a daily basis the operation of Pennsylvania's programs for the mentally retarded.

Unidentified Justice: All right.

That has stopped, so what is left of that?

Mr. Warshaw: The Hearing Master... one of the Masters has not stopped, is the first level answer to that.

In fact, there is a Hearing Master in place who resolves all disputes concerning community placements.

Unidentified Justice: If the appointment of the Master is not improper, I take it the state could probably recover whatever was paid to the Master.

Mr. Warshaw: That would be our feeling.

And, at the very least there is a Contempt citation which is pending before this Court, if money is still at issue.

Unidentified Justice: And, there is some issue about who has to pay for those services rendered?

Mr. Warshaw: By the Master?

Unidentified Justice: Uh-huh.

Mr. Warshaw: There has been no question.

We have paid up until the time that the legislature expressed its will and forbade us from paying state monies for that purpose, which is the subject of a Contempt also pending before the Court.

I believe it is 81-2363 in a Cert Petition which is pending.

Yes, there have been substantial monies at issue, and at least Judge Garth in the lower court recognized that should we prevail on the Master issue, we would certainly be entitled, in a very real way, to the $300,000 which are still in the custody of the District Court as a result of the Contempt fines.

Moreover, I should note that there are requests pending in the District Court to reinstate the Master.

And, in fact, throughout the course of this litigation, there have been so many disputes over implementation, I cannot imagine that if this case were to be remanded in its present form that the District Court would not be asked on a repeated basis to reinstate the now defunct Special Master.

But, I once again would contend, the issues are identical as to the Special Master and the Hearing Master, and we believe they are still alive through the Hearing Master and through the fines which are being held in the District Court.

Unidentified Justice: I probably missed it, but if we did not agree with the Court of Appeals on the 11th Amendment, would the case be over?

Mr. Warshaw: As far as I am concerned, it would be, Your Honor.

I do not think you have to reach the Comity issue or the Master issue if the Court should not have based its orders at all on state law.

Now, I would also note in relation to the Master issue that this is something that at best is necessary under extraordinary circumstances.

Yet, in this case the Court has utilized these Masters to supervise a community placement program which even Respondents conceded the last time we were before this Court... at Page 40 of the transcript and in addition at Page 66 of the Halderman brief... was a leader in the nation when this case was commenced, and certainly the testimony at trial was unanimous on that point.

Moreover, as I have noted, any argument... and this has been made by Respondents in some respects... that the Courts were doing that which we wish them to do is belied by the fact that the legislature explicitly refused to fund these Masters.

Certainly, the Masters at least had nothing to do with the will of Pennsylvania's officials or its legislature.

Now I think it is our point that this kind of constant daily ongoing intrusion into wholly state programs, whether it is accomplished by a court, by itself, or with the assistance of Masters, is the kind of intrusion that should be undertaken only in the most extraordinary circumstances.

And, in this regard, I should note that the United States appears to agree with us, insofar as we are talking about the Master.

When, as in this case, it is based solely on state law and serves no federal purpose whatsoever, it is an unacceptable use of the federal judicial power.

It is a use which this Court should terminate.

Thank you for your consideration.

I would like to reserve our remaining time for rebuttal.

Chief Justice Burger: Mr. Ferleger.

ORAL ARGUMENT OF DAVID FERLEGER ON BEHALF OF THE RESPONDENTS

Mr. Ferleger: Mr. Chief Justice, and may it please the Court.

It is the position of the Respondents that this Court should not rewrite Sovereign Immunity, Pendent Jurisdiction, and Comity Law so that the Petitioners can win in this Court a political battle they lost time and again in the Pennsylvania legislature and in the Pennsylvania courts.

The argument of the Petitioners reminds me of what the Attorney General said the first day of the Pennhurst trial.

He said,

"The Commonwealth, quite simply, is not defending Pennhurst. "

Certainly the abuse and dangers of Pennhurst are as egregious.

The violations of state law are as clear today as they were then and the denial of habilitation is equally clear.

The relief is the issue here, apparently, not the liability.

We have not heard a word from Petitioners defending the violations--

Unidentified Justice: Yes, but the issue is whether this suit is maintainable in the federal court on this state ground.

Now what allegations are the error claims as to how the state officials are or are not exceeding their authority or making a mistake in application of law?

Mr. Ferleger: --Pennsylvania law, Your Honor, forbids unnecessary institutionalization, forbids abuse, and forbids denial of habilitation.

Exactly what Pennsylvania law forbids, these defendants have done.

In the words of Larson, these defendants are not doing the business that the sovereign has entrusted them.

Unidentified Justice: But they have the authority in general to take care of these patients and if they just make a mistake in the administration of the law or fail to abide by some provision of law, you think that is automatically enough to--

Mr. Ferleger: No it is not automatically enough.

But if they act against the authority of the law... if they act outside their authority... it is a very clear and definite, not only violation, but an action of the sovereign that becomes nonsovereign.

Unidentified Justice: --Well, do you think the Court of Appeals made it clear that that was their deal?

Mr. Ferleger: I think the Court of Appeals did, Your Honor.

These defendants were acting in a way that the sovereign had forbidden them to act.

For 16 years Pennsylvania law has been clear.

In the 1966 Act, decisions of trial courts, regulations--

Unidentified Justice: What if the Pennsylvania law says you shall not be cruel to patients, and some court says, well, you were cruel.

And, the doctor or administrator says, well I wasn't cruel.

And, the court says, well, yes you were.

Well, he says, I guess I made a mistake--

Mr. Ferleger: --If it was a case of mistake, I think it would be a different story.

In this case, we have a regime at Pennhurst that is lawless in the extreme under state law.

We are not simply talking about one mistake--

Unidentified Justice: --You mean there is not two sides to the argument at all?

Mr. Ferleger: --On this point, Your Honor, there is not, and the findings of fact, the law, the conditions at Pennhurst have never been challenged.

These defendants did not petition for Certiorari on the state law issue.

Unidentified Justice: There are nonfrivolous arguments on the other side to the effect that these officers were not breaking the law.

Of course, it has been held they were.

But, if there were nonfrivolous arguments on the other side, would you not think that the 11th Amendment would bar this case?

Mr. Ferleger: I do not think so.

Let me tell you why.

The reason is that our point on this state law issue is that these officials, whatever their bounds of discretion, were acting outside those bounds of discretion, and that that brings this case to that part of--

Unidentified Justice: These officials were just lawless, absolutely knowingly lawless?

Any fool should have known?

Mr. Ferleger: --Well, with regard to conditions at Pennhurst, I do not think there was a dispute at the trial, and I do not think there is a dispute to this point.

These officials were acting in a way that Pennsylvania law absolutely forbids.

And, under Larson and under Treasure Salvors, both opinions, this kind of action was totally unjustified under state law.

Unidentified Justice: Well, let's suppose that that was not the case and that it was a colorable state claim here.

Then what is your position?

Mr. Ferleger: Well, in that situation, we feel that the federal questions that are involved in this case under Article III make this case an issue... a case to be decided by the federal court.

The source of the law--

Unidentified Justice: So as far as you are concerned, it does not make any difference?

Mr. Ferleger: --That is right.

The source of the law makes no difference to the relief that the Court can grant.

In Stern v. South--

Unidentified Justice: What is the federal law that is now being violated?

Mr. Ferleger: --The federal questions in the case--

Unidentified Justice: What is the federal law, l-a-w, that is being violated as of now, as you see it?

Mr. Ferleger: --No federal statute... the constitutional provisions that are being violated are those provisions against unnecessary institutionalization, Parham and Vitech, those provisions--

Unidentified Justice: What provision in the Constitution are you talking about?

Mr. Ferleger: --I am talking about the 14th Amendment to the Constitution.

Unidentified Justice: I never read that in the 14th Amendment.

Mr. Ferleger: Well, Parham v. J.R. and Vitech in this Court have held that unnecessary institutionalization is forbidden under the 14th Amendment.

Also, Your Honor--

Unidentified Justice: Well, Mr. Ferleger, did the Court of Appeals hold that there were 14th Amendment violations here?

Mr. Ferleger: --No.

The Court of Appeals held that there were substantial federal questions involved that gave the court jurisdiction of the case.

Unidentified Justice: Isn't an accurate answer to Justice Marshall's question that there are no federal law violations actually found by the Court of Appeals?

Mr. Ferleger: The Court of Appeals did not reach the actual violation of the federal provisions.

That is correct.

But, the jurisdiction of the case under Article III, once you have a substantial federal question... in this case there is no doubt that the federal questions are substantial... extends to--

Unidentified Justice: Well, then you are saying as of now that there is no federal question left?

Mr. Ferleger: --We have substantial federal questions--

Unidentified Justice: Are you saying that?

Mr. Ferleger: --We have substantial federal questions in this case.

Unidentified Justice: And that is what I am asking you to tell me as of now what is left federally?

Mr. Ferleger: In terms of the plaintiff's claims against the defendants... I want to make sure--

Unidentified Justice: You or anybody else.

Mr. Ferleger: --Our claims against the defendants as of today... the substantial federal claims... are those of our interest, to be free from abuse, to be free from unnecessary institutionalization, and to receive conditions of confinement that have some reasonable relationship to the purpose, which is habilitation of the confinement.

Those are substantial federal questions, which give the Court jurisdiction over the pendent state claims.

Unidentified Justice: And you need the state statute for that?

Mr. Ferleger: We do not need the state statute, but because of the principles announced by this Court, because of the substantial interest in federalism, the federal courts turn first to the state law violations before they need to reach the federal constitutional violations.

We believe that the fact that state law is the grounds upon which the Court of Appeals rested its opinion does not affect the remedy that can be granted.

A federal court can grant a remedy against state officials even on state law grounds so long... and I agree with the Petitioners on this point... as it is a prospective remedy.

The fact that the remedy might cost money under Milliken is no reason to deny jurisdiction entirely.

The prospective remedy in this case was a justifiable remedy and not an abusive discretion.

Unidentified Justice: Well, are you suggesting, Mr. Ferleger, that if there were a reversal here, the Third Circuit would then be called upon the address the federal constitutional claims?

Mr. Ferleger: The federal constitutional and the federal statutory issues--

Unidentified Justice: The Third Circuit would be required, then, to address it?

Mr. Ferleger: --Yes, and this case would continue.

Pennhurst, as the Court is not aware, now has about half the residents it did at the time of the trial... many more residents... the defendants are already in the process of planning to move, including Nicholas Romeo, who was a plaintiff before this case before.

He has a CLA that is prepared for him.

He will be leaving shortly.

But, in this case, we have substantial federal interest.

The federal courts avoided imposing its own constitutional views on the state because of 16 years of very clear decision by the state courts leading up to the In Re Schmidt case that adopt normalization principles, that adopt very clearly the right of people to live consistent with their treatment needs in as normal conditions as possible.

Unidentified Justice: Well, suppose we reversed on the 11th Amendment grounds, would you really go forward with the case on federal constitutional grounds?

Mr. Ferleger: We won on that issue in the District Court, and I certainly would go forward.

I have--

Unidentified Justice: Well, when your submission is that... and the Court of Appeals seems to agree with you... that the Pennsylvania officials are just way out of bounds, and that you could get relief in the state courts on state law grounds, apparently, you would think from what you say, with very, very little trouble.

Mr. Ferleger: --Your Honor, aside--

Unidentified Justice: And yet you would press the Third Circuit on the constitutional grounds?

Mr. Ferleger: --I would, Your Honor, for this reason.

To begin again in the state courts with the backlogs that that would involve with difficulties of jurisdiction, whether we go to the Pennsylvania Commonwealth Court or to the five county courts, those difficulties... the delays that would involve... would require either that we obtain a preliminary injunction from the federal court and proceed in two courts at the same time, which Gibbs' counsel is against, or that we accept the delay and the continued suffering of the 600 people who remain at Pennhurst.

And, that is a decision that I would not make.

Unidentified Justice: How far behind is the Third Circuit, or is it up to date?

Mr. Ferleger: The Third Circuit usually takes about three months from time of argument to a decision--

Unidentified Justice: How about reaching--

Mr. Ferleger: --They are up to date.

They are current.

Unidentified Justice: --You have argued the federal issues in that court.

Mr. Ferleger: On remand from this Court we briefed both the constitutional and the state law issues and urged the court to reach only the state law issues.

Is this Court... is probably not aware Pennsylvania never had sovereign immunity.

Pennsylvania never asserted sovereign immunity to any sort of law suit.

It was not until a 1978 statute that for the first time sovereign immunity existed in Pennsylvania.

That statute came after the judgment in this case.

Federal court immunity in Pennsylvania was not mentioned by statute until 1980.

That is the statute cited in the reply brief.

Unidentified Justice: Is this an alternate ground for affirming the Third Circuit?

The Third Circuit treated this as just a standard 11th Amendment type case.

Mr. Ferleger: This is an issue not addressed by the Court of Appeals.

That is correct.

Unidentified Justice: Well, did you brief it in the Court of Appeals?

Mr. Ferleger: I do not recall that it was briefed in the Court of Appeals.

I want to turn, in my minute or two remaining, to the mootness issue.

We believe that the termination of the Master not only moots the Master issue but it affects the rest of the case as well.

The Masters have never supervised anything.

The August 12, 1982 Opinion by the District Court tries to say what it had said earlier.

The Master's job was only to monitor implementation.

That was the sole job of the Master.

It is explained in the August 12th opinion that is in the Appendix, and that order appointing the Special Master is now terminated.

As to the Hearing Master who was not appointed until April, 1980, that order was never appealed by any party.

It is not before this Court.

There is no record before this Court on what the Hearing Master does, or even who he is.

So, that the Hearing Master issue certainly is nothing for this Court.

And, I want to point out--

Unidentified Justice: Well, sir, about the Special Master... so long as the propriety of his appointment is being challenged, the fact that he stopped serving would not moot it because I would think there could be recovery of his fees.

Mr. Ferleger: --I believe that the United States federal courts would be immune, ironically, from any suit to recover the fees.

The fees--

Unidentified Justice: Well, perhaps the federal court could order the return of his fees?

Mr. Ferleger: --But, there is no place from which the fees can be returned, is my point.

Unidentified Justice: Well, how about the Masters who were paid?

Mr. Ferleger: The Commonwealth paid money into the federal courts registry.

The federal court used the money as ordered by the federal court to pay the Masters.

Unidentified Justice: Well, I presume if the District Court were told by a higher court that it had to refund the money to the state, the District Court would do so.

Mr. Ferleger: I don't think there is any fund available for the federal courts to do that.

There may be, but I don't believe there is.

Unidentified Justice: Well, perhaps the District Court would then call upon the recipients of the fees to reimburse it.

Mr. Ferleger: The recipients are vendors, sales people, stationery stores, employees--

Unidentified Justice: The Masters are vendors and stationery stores?

Mr. Ferleger: --No.

The money that was paid out by the Master's Office was a budget for an office to employees, to various vendors and sales people.

Unidentified Justice: Well, didn't the Masters themselves receive some sort of compensation?

Mr. Ferleger: They received their weekly salary.

Unidentified Justice: Yes.

I presume that could be ordered returned.

Mr. Ferleger: I am not certain that it could because of the immunity--

Unidentified Justice: Well, if a District Court is told by a higher court to order it returned, there is no difficulty with that ministerial act in the District Court, is there?

Mr. Ferleger: --If there is a fund for which the money can be returned.

I don't believe there is.

The orders appointing the Masters, I should point out, page 218A of the Appendix, are in the process of being revised by the District Court in any event... the order appointing the Hearing Masters... so that I believe that the Special Master's termination, the fact that all the orders in this Court are now in the lower court are being revised, justify a finding of both mootness and this Court's decision not to reach the other issues in the case as well.

Unidentified Justice: I am just curious, if the only duty the Special Master was to monitor... It needed employees and it needed to pay out a lot of things to vendors and things like that?

Mr. Ferleger: Yes.

The reason was when the Master was appointed, Your Honor, the state had refused to come forward with any plan to implement the relief that was ordered by the Court.

So that until 1982, when the state finally agreed to do certain things, the Federal Court was forced to do the extra monitoring.

Unidentified Justice: So the Special Master at one point had much wider duties than mere monitoring?

Mr. Ferleger: Only monitoring, but the monitoring that the Defendants should have done they didn't agree to do until 1982.

Thank you.

Chief Justice Burger: We will resume at 1:00, Counsel, without requiring you to split your time.

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

ORAL ARGUMENT OF THOMAS K. GILHOOL, ESQ. ON BEHALF OF THE RESPONDENTS

Mr. Gilhool: Mr. Chief Justice, may it please the Court:

This Court's express instruction in its remand in Pennhurst I, the Third Circuit, to consider the state law issue required that the determination of two questions; first, the substantiality of 14th Amendment issues in this case; and, second, the power of the Federal Court to decide a state issue which is pendent to a 14th Amendment claim.

Now, with respect to the substantiality of the 14th Amendment question in this case, the Third Circuit en banc was unanimous as to its substantiality.

Petitioners asked no Certiorari on the substantiality of the 14th Amendment question here.

To say that the 14th Amendment question here is substantial is to make a severe understatement given this Court's decision last term in Romeo v. Youngberg.

That decision... In that case, the very 14th Amendment violations claimed in this case were found by this Court to violate the 14th Amendment.

This is the same institution.

Nicholas Romeo is one member of the class here.

The continuing grievous injuries and the aggression alleged in Romeo were found in this case to have been imposed upon the class.

Petitioners sought no Certiorari as to the 14th Amendment substantiality.

The 14th Amendment question here is not fake and it is not contrived.

Given that then the only question is the power of the court below to proceed as it did.

And, with respect to power or jurisdiction, what Petitioners' argument resolves to is the source of the law relied upon, whether federal or state, determines Federal Court jurisdiction.

Unidentified Justice: You wouldn't say that if the Court had the power it had to exercise it, would you?

Mr. Gilhool: No, sir, of course not.

Those are the comity questions, but I seek to prove that.

Unidentified Justice: Well, I don't know whether you just call it comity or the option--

Mr. Gilhool: The exercise of equitable discretion as well.

Unidentified Justice: --the option not to decide a state law question.

Mr. Gilhool: Well, of course, Your Honor, but the first question is power and with respect to it the source of the law argument has been considered and rejected in Gibbs, exactly that argument was made there, that resort to state law deprived the Court in Gibbs of Article III jurisdiction.

Gibbs held that Federal Courts have Article III jurisdiction to decide the whole case including the state law issues by virtue of the presence of a real federal question.

Now, Article III jurisdictional limits are no less sacrosanct than the 11th Amendment.

Once the Court has jurisdiction, this Court... In fact, Chief Justice Marshall has consistently said the Court has it to decide the whole case including the state issue.

Now, Edelman itself, where state defendants were defendants where the 11th Amendment was raised, dictates the result with respect to jurisdiction here.

In Edelman, this Court approved an injunction on pendent grounds requiring state officials to timely decide public assistance claims.

In Edelman, there was a 14th Amendment claim and pendent jurisdiction.

The injunction in Edelman, prospective as here, and counsel has conceded there is only prospective relief in this case, the injunction rested upon the pendent federal statute under Hagans.

Unidentified Justice: Well, now, that is a pendent federal claim?

Mr. Gilhool: Exactly, Your Honor.

Unidentified Justice: There was no pendent state claim?

Mr. Gilhool: No, Your Honor.

It was a pendent federal statute, but the pendent injunction here is and can be on no basis different from the pendent injunction in Edelman where this Court has never held that a spending-power statute such as the Social Security Act, in that case itself overrides the 11th Amendment.

In Edelman, jurisdiction to decide the case and to grant an injunction, sourced in the pendent federal statute, had to come... The power in the face of the 11th Amendment had to come from the presence in the case of a real federal question.

The unanimous and several--

Unidentified Justice: That is a constitutional question.

Mr. Gilhool: --14th Amendment question.

Unidentified Justice: Yes.

Mr. Gilhool: 14th Amendment question for this Court has not held that a spending power statute, for example, by itself would overcome the 11th Amendment.

A 14th... The Young accommodation between the 14th Amendment and the 11th is, of course, what is at stake here and the constitutional claim here is a 14th Amendment claim.

Now, we are, as I hope that made clear... Not saying that the 11th Amendment is defeated by a state claim but rather by the 14th Amendment federal question jurisdiction; just as in Edelman, the 11th Amendment could not have been defeated by the federal spending power statute, but only by the presence of a 14th Amendment federal question.

And, of course, contrary to what Petitioners suggest in their brief at page three, if you can't get retroactive relief under the 14th Amendment, as this Court holds, may not, absent express congressional enforcement of the 14th Amendment, you can't.

Then, you can't, of course, get it under the pendent state claim.

That, too, simply reflects the historic accommodation between the 14th Amendment and the 11th.

This Court... Its unanimous several opinions on this count in Maher v. Gagne holds that same effect, as I have argued the injunction in Edelman which you approved requires us to seek.

Indeed, Petitioners' argument that the source of the law relied upon is the key to the jurisdiction of the Federal Court cannot be accepted unless you choose to cast Gibbs in severe damnum unless Siler and the legion of cases cited by the United States in its brief at pages 22 and 23 are overruled and unless you choose to disapprove Edelman in this regard as well as Townsend and Swenson and King and Smith and such like.

The question then, Justice White, given the power on an entirely independent ground from that argued by my colleague, Mr. Ferleger, the ultra vires matter, given the power, then the question is was the decision to exercise it below, following the instructions of this Court in its remand, an abuse of discretion by the Third Circuit?

The United States suggests in its brief, and we agree and submit to the Court, that the Third Circuit in this case responsibly followed the guidelines long established by this Court in Gibbs, in Siler and in Ashwander.

First, the hoary policy for unitary lawsuits and against splintered cases, partaking of fairness to the parties, of judicial economy, of the effective rule of law, avoiding complex and uncertain questions of the binding effect of factfinding and otherwise that split litigation gives rise to and to which this Court adverted in Patsy.

Unidentified Justice: Mr. Gilhool?

Mr. Gilhool: Yes.

Unidentified Justice: Has the District Court passed on all three of these on both the federal statutory, the state statutory--

Mr. Gilhool: Yes, it did, long ago in 1977.

Unidentified Justice: --Did it first reach the state statutory grounds?

Mr. Gilhool: No, Your Honor, it decided the full run of grounds.

Unidentified Justice: Which did it reach first?

I would think--

Mr. Gilhool: Your Honor, in its opinion the constitutional issue was first and I believe the federal statutory issue second and the state statutory--

Unidentified Justice: --Well, isn't that a departure from what you call the hoarytradition?

If you decide a statutory issue, you don't reach the constitutional issue?

Mr. Gilhool: --Well, it certainly is not a departure from the hoary tradition against splintered cases, but, yes, Your Honor, it is a departure from the Ashwander rule which Petitioners would ask this Court to place in serious question in this case.

If the District Court, however, departed from the Ashwander rule that state claims should first be decided, the Third Circuit did not pursuant to this Court's instructions.

Unidentified Justice: Do you think it is necessarily part of the Ashwander rule, not only to decide state issues first but to decline to reach the constitutional issue?

Mr. Gilhool: Yes, it is, exactly, Your Honor.

And, if Petitioners had their way, as they said, I believe, in question from you, Justice White, earlier, the Federal Court could only consider the constitutional question.

The effect of that, Your Honor, is to cause Plaintiffs to omit state claims and, hence, turning Ashwander upside down to face Federal Courts entirely unnecessarily with the question of state law issues.

Now, the policy in Ashwander, as you suggest, Justice White, really derives from two considerations.

One is the policy against... A constitutional policy like the one against splintered litigation, a policy against the unnecessary decision of constitutional question for its own sake, for the integrity of constitutional judgments, the avoidance of prematurity and so on.

But, there is quite an independent policy of which Ashwander and Siler, which, of course, is the father to Ashwander, partake and that is federalism itself.

One of the reasons for avoiding constitutional decisions in cases involving state defendants is precisely that they are so intrusive and the constitutional decision binds the state officials forever.

A decision on pendent state law grounds leaves state officials free to try to change state law rather than exercising that freedom.

Petitioners--

Unidentified Justice: Application of comity would satisfy all those concerns, however, wouldn't it?

Mr. Gilhool: --Well, Your Honor, I would suggest that each of those concerns would require that the application of comity result in the decision by the Federal Court of the state law.

Remember, that unlike fair assessment, there is no tax injunction case relative here.

Unlike Younger, there is no anti-injunction statute here.

Indeed, in this case, as Gibbs put it, there is especially strong reason for the Federal Court to exercise its power to decide the state law issue.

The Gibbs' reason, applicable here, is that the state law issue here is so closely tied to questions of federal policy.

Unidentified Justice: However, against that is the required expenditure of large sums from the state treasury.

Mr. Gilhool: Ah, Your Honor, I think that question is not here.

Indeed, I think Petitioners have conceded here that the relief granted below is less costly than maintaining the wrongs at Pennhurst.

The finding of fact by District Court, unanimously upheld by the Court of Appeals, was to that effect; that the provision of community relief, where it is justified for the individual is less costly than the maintenance of Pennhurst.

Again, Petitioners did not seek Certiorari here on that finding of fact.

So, I suggest, Your Honor, that each of those considerations requires that comity be exercised.

If I may, in addition to Pennhurst I, where this Court found a congressionally expressed national policy to improve the care and treatment of the retarded by the use of community facilities--

There is, of course, the statute noted in Patsy, the Civil Rights of Institutionalized Persons Act, expressive of the same policy and in Schweiker v. Wilson, Justice Powell writing in dissent with others noted the same federal policy and traced there to the Social Security Act of 1965 and, indeed, as expressed there, Justice Powell, that policy rests in the Retardation Facilities and Community Mental Health Act of the Congress of 1962, precisely the Act, precisely the federal Act, passed in response to the community initiatives, which invited the state to look at what it was doing with retarded people and resulted, as the exhibits in the record of this case demonstrate, in this very Pennsylvania statute, the Act of 1966.

That is Park Exhibit 18.

If I may return just a moment to the ultra vires argument made by my colleague, Mr. Ferleger, let me suggest that you cannot read the decision of the Pennsylvania Supreme Court in Schmidt or the several opinions unanimous as to the meaning of state law and its violation by state defendants by all of the members of the Third Circuit en banc without concluding that these state defendants placed themselves systematically outside of Pennsylvania law by their conduct with respect to the people at Pennhurst.

Just before I close, let me be clear that the county Petitioners and their officials here do not share whatever 11th Amendment immunity may be here and so that in all events the orders below as to them must be affirmed.

And, finally, Mr. Justice White, let me confess that following the opinions of this Court in Pennhurst I and the opinions of the Court of Appeals, Plaintiffs... Respondents here find no support for the original order appointing the Special Master and in particular for that part which instructed that Master to direct, organize, and supervise the implementation of relief.

Indeed, the District Court itself, on the first return of the mandate to it after this Court's expression, vacated those instructions.

It also vacated the instructions to assist in the planning of relief, a function, a duty for which the appointment of a Master, I take it, is unexceptional when as here the state defendants twice refused to come forward to the court with a plan for implementation.

In Swann, for example, such a Master was appointed and this Court, of course, affirmed generally there.

Mr. Chief Justice.

Chief Justice Burger: Do you have anything further, Counsel?

Mr. Farr: Yes, Mr. Chief Justice, just a few points, please.

Chief Justice Burger: Very well, Mr. Farr.

REBUTTAL ARGUMENT OF H. BARTOW FARR, III, ESQ. ON BEHALF OF THE PLAINTIFFS

Mr. Farr: Counsel seems to argue that the 11th... the 14th Amendment simply knocks over the 11th Amendment and then the pendent claims can follow in behind it without having been tested against the 11th Amendment and he cites Edelman for that proposition.

Edelman, as we discussed this morning, simply doesn't stand for that proposition.

The Court made exactly the inquiry in Edelman that we say should be made here, whether the particular claim at issue was barred by the 11th Amendment.

For the prospective relief in Edelman, the Court found that that claim was not barred by the 11th Amendment under the principles of Ex Parte Young which applied to that claim.

For the claim that dealt with retroactive relief, it found that it was barred by the 11th Amendment because Ex Parte Young does not cover that type of claim.

Our argument, as I said this morning, is that Ex Parte Young does not cover the kind of claim that we have in this case and, therefore, Edelman fully supports our position.

Secondly, counsel has said that state law... I believe Mr. Ferleger said... has been clear for 16 years and that this is a lawless effort by the state officials to ignore it.

First of all, we don't think it was clear when the complaint was filed.

We don't think it was clear when the District Court said state law required the closing of Pennhurst.

We don't think it was clear when the Third Circuit on the first appeal said that state law did not require the creation of CLA's, but only that to the extent that there are facilities being maintained that they provide adequate care and habilitation and frankly we don't think it is clear now because the decisions from the Pennsylvania Court do not deal with the issue of how to provide CLA's where the legislature has not provided funding.

Those issues are not present in the state cases where a single individual is concerned and the issue of whether there is funding for one person is not an issue.

Furthermore, the District Court, in rejecting a claim for damages, said there was no reason to think that the State Defendants were not carrying out the duties to their best of ability and had no reason to know that they were violating any law or any rights of the Plaintiffs at that time and that is at page 75-A of the original... of the Appendix of the original Petition for Certiorari--

Unidentified Justice: May I ask you just one question?

Precisely at what stage of the proceedings did your clients raise the 11th Amendment objection to the pendent state law claim?

Mr. Farr: --My understanding is that the 11th Amendment issue was raised certainly on appeal the first time to the Third Circuit if not before.

Unidentified Justice: Had it been raised before we looked at the case two years ago and said... told the Third Circuit to look at the state law issues?

Mr. Farr: It was raised at that time although it was not specifically directed toward the state law issues, because the District Court, of course, had raised--

Unidentified Justice: When was the argument you are making today first raised?

Mr. Farr: --It was raised in its specifics on the remand to the Third Circuit.

Unidentified Justice: And, how did you... Just in your brief at that time?

Mr. Farr: We raised it in our briefs and, of course, we argued it before the Third Circuit and the Third Circuit did address it.

Unidentified Justice: I understand that.

Mr. Farr: And they rejected it.

Unidentified Justice: But, you never filed a motion to strike the state law claims entirely in the District Court, for example?

You never tried to separate those out.

Mr. Farr: Well, the case... As I understood it, those cases, those claims, were before the Third Circuit on appeal at that point so we filed our brief with the Court of Appeals saying that they should not consider it.

I have nothing further.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

PENNHURST STATE SCHOOL AND HOSPITAL, ET AL., Petitioners v. TERRI LEE HALDERMAN, ET AL.

No. 81-2101

October 3, 1983

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 p.m.

APPEARANCES:

H. BARTOW FARR, III, ESQ., Washington, D.C.; on behalf of the Petitioners.

ALLEN C. WARSHAW, ESQ., Harrisburg, Pa.; on behalf of Petitioners.

THOMAS K. GILHOOL, ESQ., Philadelphia, Pa.; on behalf of Respondents.

DAVID FERLEGER, ESQ., Philadelphia, Pa.; on behalf of Respondents.

PROCEEDINGS

CHIEF JUSTICE BURGER: Mr. Farrow, you may proceed whenever you are ready.

ORAL ARGUMENT OF H. BARTOW FARR, III, ESQ., ON BEHALF OF PETITIONERS

MR. FARR: Mr. Chief Justice, and may it please the Court:

This case as it now stands before this Court is essentially a dispute between citizens of the State of Pennsylvania and the state itself over how to run a state mental retardation program pursuant to state law. The federal court saw fit to decide this dispute imposing upon the state a mandatory presumption in favor of certain types of programs and requiring the state to create and pay for new facilities in accordance with its preference.

In our view this federal interference in purely state matters is barred by the Eleventh Amendment and by principles of comity. Now this afternoon I will discuss the Eleventh Amendment and Allen Warshaw will discuss the issue of comity.

Before getting into the details of our Eleventh Amendment argument I think it might be useful to the Court if we state as straightforwardly as possible just what our overall position is. In short, we believe first that this claim is in fact a claim against the state and not just against state officials; second, that the state is not prevented from claiming its Eleventh Amendment immunity by the doctrine of Ex Parte Young which by its terms and logic applies only to federal claims; and third, that the state may invoke its immunity against a pendent claim like the one here just as it may invoke its immunity against primary claims.

Now as the statement of this position makes clear proper Eleventh Amendment analysis requires the asking of several separate though related questions. Is it a claim against the state? Is it within the doctrine of Ex Parte Young? Is the Eleventh Amendment somehow inapplicable to pendent claims?

In addressing the first of these questions, whether the claim is in fact one against the state, it is not dispositive that the complaint only names state officials as defendants. This Court has said on numerous occasions that the courts must look to the nature of the claim and the nature of the relief sought to determine whether it is in effect one against the state.

There is no bright line to define this inquiry, but the basic test derived from Larson in 1949, a federal case but followed in subsequent cases, is whether the state officials can make a nonfrivolous claim that they are acting even if mistakenly within the general ambit of their colorable authority under state law.

QUESTION: Mr. Farr, you refer to Larson as being a federal case, but the plurality there in Treasure Salvors pretty much adopted that as an Eleventh Amendment rule, too.

MR. FARR: That is correct, yes, sir.

Now in this case despite all of Respondents' allegations about lawless behavior, we think it control that defendants or the persons charged by state law with making the numerous almost day-to-day discretionary decisions about operation of the state mental retardation program including the very decisions that are at issue in this case, what kind of facilities to create, what kinds of persons to put in those kinds of facilities, what kinds of services and programs to provide.

Furthermore, it is clear that these defendants must make those decisions within the limits of the funding provided by the state legislature. Respondents simply wanted to make different decisions and to exact from the State Treasury the money to pay for those decisions.

But under the tests set down by this Court that is the very essence of a suit against the state itself. Now the second question is whether even though the claim is functionally one against the state itself it is within the venerable doctrine of Ex Parte Young for if the claim were that the state officials were violating the federal constitution or federal law then Ex Parte Young says that the state cannot give them its immunity from the Eleventh Amendment.

They are required to be obedient to the superior authority of federal law, but Young has never been thought to apply to state law claims like the ones here not should it be. The practical need for the so-called fiction of Ex Parte Young that the state officials are stripped of their representative character is necessary to be able to enforce the Fourteenth Amendment and other federal laws.

The language of this Court in Edelman to turn the Civil Rights Amendments from a shield into a sword but that need is not present when you are dealing with only a state law claim. In fact, the proper balance between the local and the national government is much better preserved with important state issues by having those questions decided by a state court.

QUESTION: Mr. Farr, let me just be sure I understand one point. You do agree if it were a federal statutory claim then you would say that would be covered by Ex Parte Young?

MR. FARR: I do. Yes, I do.

The third inquiry and one by its terms which is an odd one to be asking at all is whether the Eleventh Amendment is somehow inapplicable to pendent claims. Although some earlier cases concedingly seem to incline in that direction without we think very much consideration of the issue, we think that the decision in Edelman v. Jordan settled and settled correctly that issue for once and for all.

In Edelman --

QUESTION: Let me see if I understand your response to Justice Stevens. Suppose the complaint asserts a federal question. Does that end the matter?

MR. FARR: As far as that particular claim goes the Court would have to, of course, see whether it had Article III jurisdiction over it. But if it seeks injunctive relief under a federal claim that is permitted by Ex Parte Young.

QUESTION: You mean a statutory claim that would preclude the official doing what he is doing.

MR. FARR: That is correct.

For example, in --

QUESTION: That was preemption, for example.

MR. FARR: Ray v. Atlantic Richfield is the example I was going to give where the Court said that the state officials by carrying out the state law in that case were preempted by federal law and were willing to give an injunction against the carrying out of state law. That does not extend to retroactive relief but other than that the federal claims are within Ex Parte Young.

Turning back to Edelman and the question of pendent claims, in Edelman the situation was that there was a primary claim which was an equal protection claim under the Fourteenth Amendment, a claim which in and of itself would be permitted by Ex Parte Young. There were in effect two pendent claims under federal law.

The Court examined each of these claims, determined that one claim was permitted because it was under federal law and it sought injunctive relief as I was saying to the Chief Justice and decided that the other claim was barred by the Eleventh Amendment because it was a federal claim but sought retroactive relief. The same analysis applies here.

This pendent claim is barred by the Eleventh Amendment not because it seeks retroactive relief but because it is a state claim to which Ex Parte Young does not apply at all.

QUESTION: It would help if you let us know what you are calling a state claim. The kind of a state claim you are talking about I take it is a claim that the official is acting outside the scope of his authority.

MR. FARR: That is correct. The state --

QUESTION: Just in terms of state law he should not be doing what he is doing.

MR. FARR: That is correct.

QUESTION: You concede that if there was an allegation, would you or would you not, that he is acting completely outside the -- He has even no colorable authority under state law. Would the Eleventh Amendment still --

MR. FARR: In that situation if the allegation was that he was so outside of his authority that he effectively was acting without any authority at all then I think it would not be a claim against the state.

QUESTION: I guess we do not have to decide that. In this case nobody is claiming -- They are just claiming that state officials were misapplying state law.

MR. FARR: I think if they get up on their feet they will claim that it is lawless and horrible and all of that, but I think basically the claim is that they are simply not making the right decision under state law.

QUESTION: Misconstruing state law.

MR. FARR: That is correct.

QUESTION: What you are saying is you cannot convert a dispute over the applicability of the state law into a claim of "lawlessness" or totally without authority.

MR. FARR: Absolutely. I think what you have to look at is whether the defendants can make a nonfrivolous defense that they are acting within state law. I think once you have got that then the inquiry stops. Otherwise you are going to have a situation where the Eleventh Amendment means something only if you actually go through and decide the merits of the state law which is not much help.

QUESTION: Rationally should you be able for Eleventh Amendment purposes to distinguish between some official who is acting totally outside of his authority and some official who is just misconstruing state law?

MR. FARR: I think --

QUESTION: Maybe Larson did, but does it make a whole lot of sense?

MR. FARR: I think there are two points about that, Mr. Justice White. One is that I think that it makes sense only at the very outer boundary which is the mere fact that somebody happens to be employed by the state, of course, does not mean that he can go around and do whatever he wants and claim an Eleventh Amendment immunity in a federal court.

QUESTION: Why should that not --

QUESTION: If you are only making a state law claim why should -- As you say the rationale of Ex Parte Young should not reach that either, should not reach any state claim.

MR. FARR: Well, I think you do not need the -- What I am saying is that there are points at which the behavior is so far outside the boundary that it really is just personal behavior that someone is committing an assault on his own time.

QUESTION: Why do you conclude from that that the Eleventh Amendment does not bar the suit?

MR. FARR: Because then I would say that there is really no statement involvement at all and it is somebody who is just acting on his individual -- If somebody is driving his car for pleasure or something and he is sued in a diversity suit, that might be a situation where he just cannot say because I incidentally happen to have a job some of the rest of the time with the state I am covered by the Eleventh Amendment.

But I think it is a very, very narrow limitation and particularly because Larson, of course, is a federal case. In Larson the situation is if you do not give some leeway for allowing those kinds of suits they are effectively barred completely by sovereign immunity.

But in the context of a claim against a state official the only question we are addressing here is whether these claims can be brought in federal court. They can still be brought in state court and, therefore, there is an alternative way to get those cases resolved.

QUESTION: Mr. Farr, supposing a Pennsylvania statute said in so many words none of these people shall be institutionalized in Pennhurst. Would the Eleventh Amendment be a claim against someone who says I am being wrongfully institutionalized at Pennhurst?

MR. FARR: I think there is a level at which the statutes or the state law might be so absolutely clear that all the state officials had where they effectively had no discretion it was simply a ministerial carrying out. I think under the cases of this Court that sort of case might be allowed in.

QUESTION: What is your answer to my specified case?

MR. FARR: Whether that case is clear enough. If they say absolutely --

QUESTION: The statute says no one shall be placed in Pennhurst.

MR. FARR: And the state appropriates no means to support Pennhurst and they just do it on their own.

QUESTION: No, they still pay the bills at Pennhurst. They do exactly what they are doing now, the statute says no one shall be institutionalized at Pennhurst during 1983.

MR. FARR: Well, the reason that I raised the funding is if you are saying that nobody shall be admitted to Pennhurst and there is a flat prohibition would think under the cases of this Court that nondiscretionary matter might be within the Treasure Salvors notion that somebody is proceeding outside the scope.

QUESTION: So then the question I gather the way you present the argument is whether the holding in the Pennsylvania case on which the Third Circuit relied is that clear or not that clear.

MR. FARR: Well, I certainly think it is not that clear.

QUESTION: So then the question, I gather, as the way you present the argument is whether the holding in the Pennsylvania case on which the Third Circuit relied is that clear or not that clear.

MR. FARR: Well, I certainly think it's not that clear.

QUESTION: But if it were that clear, then you'd say well, then the Eleventh Amendment would be no defense.

MR. FARR: It is possible to me that a judicial decision could be as clear as a statute. I certainly would concede that. But I would in no way concede that Joseph Schmidt is that clear. He went to an institution.

QUESTION: Mr. Farr?

MR. FARR: Yes, sir.

QUESTION: Did the court of appeals make any finding that these officials had acted beyond the scope of their authority?

MR. FARR: They did not address the question at all in those terms, Justice Powell. They simply took --

QUESTION: Did the district court make any finding in that respect?

MR. FARR: No, they did not. The district court, in fact, to the extent they made any finding at all, indicated, although they found a violation of state law as such, indicated that the officials were acting in good faith and within the scope of their authority for purposes of giving them a qualified immunity on the damage claim.

QUESTION: Is the Department of Public Welfare a party to this case? I've understood it was.

MR. FARR: Yes. I guess I believe it is.

QUESTION: It's a state agency.

MR. FARR: It is a state agency.

QUESTION: And it's the agency that oversees the operation of Pennhurst and other mental hospitals.

MR. FARR: That's correct. Now, the claim is certainly barred, I believe, against any state agency in fact. Of course, what we're saying is that even though there are individual state officials named as well, the claim is barred with respect to them, too, because it is still --

QUESTION: Well, the agency can operate only through officials and its other personnel.

MR. FARR: That's correct.

QUESTION: Mr. Farr, what about actions of city or county officials under your theory?

MR. FARR: The actions of the city and county officials are typically not subject to the same Eleventh Amendment analysis, but the situation you have here is that their activities essentially are to carry out the state law. The state provides all of the funding, and therefore, if the presumption is in effect and the new community facilities must be created, and people must be moved into those facilities, the state bears 100 percent of the cost of that. And we think, therefore, in these circumstances you can't get around that by simply naming the counties who have no fiscal responsibility separate from that of the state.

Mr. Chief Justice, I'd like to save the remainder of my time for rebuttal, if I may.

CHIEF JUSTICE BURGER: Very well.

Mr. Warshaw.

ORAL ARGUMENT OF ALLEN C. WARSHAW, ESQ., ON BEHALF OF THE PETITIONERS

MR. WARSHAW: Mr. Chief Justice, and may it please the Court:

Even if the Eleventh Amendment prohibits a federal court decision on the state law issues in this case, principles of comity do not. Rather, those principles prohibit federal courts as a matter of self-restraint from interfering with the operation of complex state programs except when it's absolutely necessary to protect federal rights.

Indeed, this Court has applied this rule to prevent the exercise of federal jurisdiction over federal claims when state forums were available to consider those claims. The rule is based in large on principles of federalism which require federal courts to respect the independence of local governments, state and county, in matters of local concern, especially when those matters involve the expenditure, as in this case, or the collection of monies.

However, it is a rule which is also based on the very practical consideration that even the most simple and obvious principle of state law will involve incalculable legal and nonlegal complexities in its application to ongoing state programs.

QUESTION: Mr. Warshaw, would you tell me when this issue was first brought into this case?

MR. WARSHAW: It has been raised in various ways at various times in the litigation. It was raised in this form for the first time in the Third Circuit on the remand when it was first suggested that the lower court order could be justified solely on state law. That was the first time when the respondents argued that the court should ignore the federal court issues and go directly to the state law issues.

It was argued in the district court when the remedy was based on four federal theories and one state theory and then only in part on the state theory as a limitation on this bill for relief, and again in the Third Circuit on appeal from those four federal theories and one state finding as a limitation on relief. But it was raised -- and let me add to that that we think it is the kind of issue that has to evolve during the course of the litigation depending upon the state of the litigation. And in this case it is one that was raised in the form appropriate at every stage of the litigation.

In this regard as to the practical considerations, this Court has recognized the federal courts are limited in their competence to decide the nonlegal issues involved in operating state programs. Instead it has required that federal courts give substantial deference to the professional judgments of state officials involved in operating those programs, even in cases involving constitutional issues where the federal courts can give a definitive and authoritative answer to the legal issues.

When only state law is involved, federal courts are unable to even give that kind of a resolution of legal issues, and there is, frankly, just no justification for their involvement in the state decision-making process. For example, in this case the lower courts have taken a vague right to treatment from a case, In re: Schmidt, in which the Pennsylvania Supreme Court approved placement in an institution, and the lower courts created a presumption from that case in favor of placement in the community. As importantly, they took that right from a case involving one person where funding was no issue whatsoever and have created a presumption which applies regardless of cost and available funding to thousands of people.

To say that that rule is less than definitive and less than authoritative is at the least a severe understatement. Nonetheless, in this case, acting to avoid rather than to vindicate federal claims, the Third Circuit sanctioned a massive and ongoing intrusion into Pennsylvania's program for the mentally retarded. In so doing the Third Circuit, we believe, was deluded by the apparent simplicity of the right to treatment in the least restrictive environment which it believed it had found in state law, and ignored the complexities of its application to even a single person, let alone the thousands of class members in this case.

The extent of the resulting intrusion is fully reflected in the district court orders in this case. For example, under those orders state and county officials are required to prepare and subsequently implement habilitation plans for every one of the class members. The manner in which those plans and programs are to be implemented, prepared and monitored is strictly governed by the district court's latest 100-page order which dictates the precise form such a plan shall take, the procedure by which it shall be prepared, who shall participate in its preparation and how long it shall take to prepare it and subsequently to implement it.

CHIEF JUSTICE BURGER: Was this order based on expert testimony of record?

MR. WARSHAW: It was developed after the original trial based on testimony at record of the trial, I assume. It's never been exactly clear what it's basis was at any given point.

CHIEF JUSTICE BURGER: Well, are you suggesting the district judge just thought these things up on his own?

MR. WARSHAW: There was various -- various testimony at trial and in subsequent hearings as to how best to prepare habilitation programs and how best to implement them. I don't want to say he acted without a record, no. That's -- certainly there was a record created. I will say that he has taken it upon himself to control the manner in which state officials exercise their, might exercise their discretion in this record -- in this way.

QUESTION: Does the record show the number of people in the class?

MR. WARSHAW: There -- at the time of trial there were -- at the time of decision there were over 1100 people at Pennhurst and I believe several thousand more on the waiting list at Pennhurst, which was how the class was defined. By waiting list at Pennhurst that means people who had applied for admission to Pennhurst and therefore had become eligible for other services in the community. They were all part of the class, and the class exceeded at least several thousand.

But once again, I should note, and this is the next point I would make and perhaps best illustrates the intrusive nature of the lower court's order and the broad gap between it and the judgment of state officials, and that is that it necessarily imposes upon thousands of other people who might otherwise be eligible for services in Pennsylvania, because the court has given absolute priority to its order over all other competing needs. It has on at least one occasion condemned state officials for moving residents out of another facility in Pennsylvania where conditions were clearly deteriorating badly -- and this was a matter of record -- where it was about to lose substantial funding, and said that that was unacceptable in light of his orders in Pennhurst, notwithstanding the fact that at that point Pennhurst, and today, was fully certified by the federal government as meeting minimum standards and was receiving substantial federal funding.

The intrusive nature of the lower court's orders it seems to me is fairly obvious. State officials must conform their conduct to those orders regardless of their own professional judgments and regardless of the legitimacy of competing demands for limited state resources. If they do not, they risk contempt, and in this case that has been a very real risk.

Less obvious are the invidious effects of the court proceedings themselves regardless of the orders which are issued. Since the entry of judgment in 1978 there have been over 50 days of hearings held in the district court. There have been hundreds more before a hearing master appointed by the court to decide individual placement, make individual placement decisions.

Each of these hearings must be attended by a state or county official, professional who must spend time educating the judge so that the judge can make professional judgments, or at least explaining and justifying their own judgments to the court or the hearing master. In either case the effect is that limited and precious professional resources are wasted for the sole purpose of allowing a court and its master to substitute their own professional judgments for those of qualified state officials.

This Court has found this kind of judicial interference with professional decisionmakers to be unacceptable even in cases involving constitutional rights. When that interference involves the operation of a wholly state program solely for the purpose of enforcing state law is a totally unacceptable exercise of the federal judicial power, and we suggest this Court should stop it.

Thank you. And if I may, I'd like to reserve the remainder of my time.

CHIEF JUSTICE BURGER: Mr. Gilhool.

ORAL ARGUMENT OF THOMAS K. GILHOOL, ESQ., ON BEHALF OF THE RESPONDENTS

MR. GILHOOL: Chief Justice Burger, and may it please the Court:

I will address jurisdiction; my colleague, comity.

First, let me try briefly to put the case in perspective. This case went back to the circuit two and a half years ago in its eighth year carrying the express instruction of this court to consider the state law issue in light of the recent state supreme court decision in Schmidt.

The circuit en banc did so. In light of the state supreme court decision, all eight circuit justices unanimously ruled that state law is clear, and that it was clearly violated, including Judge Eldersell who didn't like the state law, who would not have chosen it, who thought it unwise, but nonetheless clearly the state law.

The state legislature sets state policy. The state legislative policy here, the preference for community facilities and the obligation to create them if they do not exist arises from the state legislature and the state law.

The circuit below, all eight justices followed settled pendant jurisdiction principles, settled since Siler and Green. That the Fourteenth Amendment claims in this case are substantial is undisputed here, and in light of this Court's unanimous decision in Romeo, are indisputable. The same conditions, the same institution. Nicholas Romeo indeed a member of the class in this case.

So far there is nothing extraordinary about this case. What is extraordinary is petitioners' claim that principles of federalism as they understand them require a new Eleventh Amendment jurisprudence and a new pendant jurisdiction jurisprudence.

But on the facts of this case, the result below serves both interests. The settled pendant jurisdiction doctrine is preserved, and federalism is served since the state remains free to change its policy.

QUESTION: Mr. Gilhool, is it your position that the state officers here were acting without any authority whatever in the Larson and Treasure Salvors sense?

MR. GILHOOL: Your Honor, I believe that is the necessary consequence of the circuit court's unanimous holding as to the clarity of state law. We argued the ultra veries argument last time, and I would rest upon that and upon this Court's decision earlier in colloquy with petitioners.

Parsing that Younglike fiction as to when it's the state officers and when its negligence and when it's outrageous is something of a judicial optical illusion. We would prefer, Your Honor, and it is the argument I will seek to make in a moment, to rest upon the real ground of Young, which is the Fourteenth Amendment pendant jurisdiction. Fourteenth Amendment presence overcomes the Eleventh Amendment.

QUESTION: Well, then, is it your position that you don't have to show here that the state officers were acting without any authority whatever?

MR. GILHOOL: Yes, Your Honor, we don't have to show that.

QUESTION: How do you reconcile it with Treasure Salvors?

MR. GILHOOL: Well, Treasure Salvors, Your Honor, was not a Fourteenth Amendment case.

QUESTION: Why is this a Fourteenth Amendment case? I thought it turned on state law.

MR. GILHOOL: No, Your Honor. It does not turn on state law, and -- and -- and that precisely the hub of the case.

Here the substantial Fourteenth Amendment claim -- Your Honor, if I may, may I step back from it just a moment, and I will return directly to your question.

The settled principle of pendant jurisdiction is that once a federal court has jurisdiction by virtue of a federal question, it has it to decide the whole case, including the state issue, of which, if it stood alone, the state issue, it would not have jurisdiction.

Now, it was Siler which first applied this doctrine 70 years ago precisely in the context of defendant state officials.

QUESTION: Did it consider the Eleventh Amendment issue?

MR. GILHOOL: Well, Your Honor, Siler was decided a year and a week after Young. It was decide in the midst of a storm of controversy which --

QUESTION: Is that a yes or a no answer?

MR. GILHOOL: The answer is yes, Your Honor.

QUESTION: It did consider the Eleventh --

MR. GILHOOL: Yes, Your Honor. Ex parte You was argued to the Siler court. That court, with the opinion written by Justice Peckham in Siler, as in Young, could not have forgotten the Eleventh Amendment. To the contrary --

QUESTION: Did Siler consider the Eleventh Amendment argument in so many words?

MR. GILHOOL: No, sir, it did not in so many words.

QUESTION: Well, I thought just a minute ago you answered me yes, that it did.

MR. GILHOOL: No, Your Honor. I answered yes it did consider the Eleventh Amendment, Your Honor, and I say that because --

QUESTION: Was it argued?

MR. GILHOOL: Ex parte Young was argued, Your Honor.

QUESTION: Well, how can you --

QUESTION: Was the Eleventh Amendment mentioned by counsel in argument?

MR. GILHOOL: Your Honor, I have not had access to the transcript of the argument.

QUESTION: But the United States reports at that date summarize the arguments.

MR. GILHOOL: Yes, Your Honor. And the summary shows no mention of the Eleventh Amendment.

QUESTION: Is there a word in those summaries about the Eleventh Amendment?

MR. GILHOOL: No, Your Honor, not the Eleventh Amendment.

QUESTION: When was the last time Siler was cited in an Eleventh Amendment case? I'll make it easier --

MR. GILHOOL: My recollection, Your Honor --

QUESTION: I'll make it easier for you. Has it been cited since Larson?

MR. GILHOOL: Oh, yes, Your Honor.

QUESTION: In what case?

MR. GILHOOL: My recollection, Your Honor --

QUESTION: Was actually cited as an Eleventh Amendment case.

MR. GILHOOL: Your Honor, my recollection is, and it may be in error, that it was cited in Edelman. In any event, it was cited that day in Hagans.

QUESTION: Not for your proposition. It was cited for the opposite.

MR. GILHOOL: I think not, Your Honor, if I may spell out what it is my proposition is that I think Siler stands for.

It is agreed, surely, that there was a substantial Fourteenth Amendment question in Siler.

QUESTION: May I ask you another question? What is the origin, the constitutional origin of the doctrine of pendant jurisdiction?

MR. GILHOOL: Well, Your Honor, it is Osborn.

QUESTION: It's -- it's what?

MR. GILHOOL: It is Osborn.

QUESTION: It's argument?

MR. GILHOOL: Osborn, Your Honor. John Marshall's opinion for the Court in Osborn.

QUESTION: What is the constitutional provision on which it relies?

MR. GILHOOL: Your Honor, it is derivative, is it not, of Article III?

QUESTION: Exactly.

MR. GILHOOL: Exactly.

QUESTION: And was the Eleventh Amendment adopted after Article III?

MR. GILHOOL: Yes, Your Honor. And it is Article III which it amends.

QUESTION: And the Eleventh Amendment is quite -- quite specific, isn't it?

MR. GILHOOL: Yes, sir. There's no question that the Eleventh Amendment is a jurisdictional --

QUESTION: And isn't that a general principle that a specific constitutional or statutory provision is to be favored over some general language that didn't mention a particular point at all? That's a -- you would agree with that as a principle, wouldn't you?

MR. GILHOOL: Yes, sir. I think that is so, though the decisions of this Court, I believe, demonstrate the jurisdictional limitations of Article III to be even more sacrosanct than the jurisdictional limitations of the Eleventh Amendment.

QUESTION: Which -- which cases?

MR. GILHOOL: Well, Your Honor, Siler itself, and Young.

QUESTION: Siler? Siler didn't mention the Eleventh Amendment.

MR. GILHOOL: Well, my point, Your Honor, is, as this Court has held in many cases, that the Congress may overcome the jurisdictional limitations of the Eleventh Amendment as they may not those of Article III.

My point is that in many cases this Court has held the jurisdictional limitations of the Eleventh Amendment may be waived. That is not so with respect to those of Article III. And, of course, there is the Young fiction with respect to the Eleventh Amendment, and there is no such with respect to Article III.

Siler articulated and it itself is one of the significant early articulations of pendant jurisdiction. That -- that such existed not only for the reasons articulated in Gibbs and its predecessors, namely the Article III jurisdiction over whole cases, the convenience-judicial economy-fairness to the parties considerations, but also to avoid premature and unnecessarily binding constitutional decisions and orders.

Three years ago in Mayer and Gagne you unanimously held that a Fourteenth -- a substantial Fourteenth Amendment question once in a case remains in the case until the entire dispute is settled. There there was a substantial Fourteenth Amendment claim, and the case had settled with injunctive relief on the pendant Social Security Act ground. The question was whether attorneys' fees against state officials violated the Eleventh Amendment.

In what the opinion of the Court and the concurring opinion alike called the narrow ground, you held unanimously that respondent alleged substantial Fourteenth Amendment claims resolves the Eleventh Amendment question.

The same result, as I suggested at argument last time, obtains in Edelman. There the Court improved an injunction on pendant grounds, requiring state officials to timely decide public assistance claims. In Edelman there was a Fourteenth Amendment claim and pendant jurisdiction. The injunction rested upon the pendant federal statute under Hagans.

The pendant injunction here is and can be on no different jurisdictional basis from the pendant injunction in Edelman, for this Court has never held that a spending power statute such as the Social Security Act in Edelman itself overrides the Eleventh Amendment.

QUESTION: But you know, of course, that Edelman was a federal case, not a state law case.

MR. GILHOOL: Your Honor, the pendant statute was a federal statute. The pendant statute here is a state statute. I think that makes no difference. I think the controlling matter is the presence of the Fourteenth Amendment. Indeed, when petitioners argue, as they did again here, that the Eleventh Amendment would not bar relief if it had rested in a pendant federal statute, they are curiously incorrect. That is not so. Any old federal interest, no matter how significant, bar one, in any old federal statute does not defeat the Eleventh Amendment and has never been held by this Court to do so. Only Section 5 Fourteenth Amendment statutes do so.

QUESTION: Are you saying the Fourteenth Amendment issue remains in this case --

MR. GILHOOL: Yes, sir.

QUESTION: -- As it comes to us?

MR. GILHOOL: And that was the unanimous holding of this Court in Gagne v. Mayer. It remains in the case to the end, and confers the jurisdiction, and in light of Young and all that has followed, provides the basis for affirmance below.

What petitioners' arguments --

QUESTION: So it's irrelevant, as you said earlier, I think, whether and to what extent these state officers are acting within their authority.

MR. GILHOOL: You could reach the same result on that ground, Your Honor.

QUESTION: But you -- you -- you say that as long as it's a pendant to a federal constitutional claim --

MR. GILHOOL: Yes.

QUESTION: -- That gets rid of the Eleventh Amendment --

MR. GILHOOL: Yes, Your Honor.

QUESTION: -- Right at the outset of the case.

MR. GILHOOL: Yes, Your Honor. As I believe Edelman holds, as Gagne holds, and the same situation was presented in Hagans, though again the Eleventh Amendment was not raised. But there again, this Court, based on a substantial -- the presence of a substantial Fourteenth Amendment question upheld injunctions based in pendant federal statutes which of themselves, a spending power statute, did not pierce the Fourteenth Amendment.

Any contrary holding in this case, I suggest, brings down all of pendant jurisdiction.

As I urged earlier, Mr. Justice Powell, the jurisdictional limits of Article III are even more sacrosanct than those of the Eleventh Amendment. The source of the law arguments presented by petitioners here are precisely those made for 150 years against pendant jurisdiction in any federal question case.

Those arguments --

QUESTION: But Article III did not use the word "pendant jurisdiction."

MR. GILHOOL: Forgive me, Your Honor. What did not use the word "pendant jurisdiction?"

QUESTION: Article III, or no article's got --

MR. GILHOOL: Quite right. Quite right.

QUESTION: It's judge-made law, isn't it?

MR. GILHOOL: It is judge-made --

QUESTION: Well, why don't you face up to that? You keep running back --

MR. GILHOOL: Oh, I face it, Your Honor. I face it. I suppose it comes from the case provision, the case word of Article III. My point is that pendant jurisdiction is settled doctrine since Marshall, and indeed, its continuing vitality and importance has been recognized and urged by this court in Aldinger, in Hagans and in Edelman itself. And indeed --

QUESTION: Well, why do you say that one of the petitioners argues, as I understand it, that if you have a case with federal Constitution and the state constitution involved, and the federal constitutional point is dropped, you can't have pendant jurisdiction for the state --

MR. GILHOOL: That may be the case, Your Honor.

QUESTION: Is that what the argument is?

MR. GILHOOL: That may be the case, and Gibbs seems to suggest --

QUESTION: Well, would you answer that for me?

MR. GILHOOL: -- That if the federal ground is dropped or is found insubstantial, it may be that the jurisdiction over the state ground disappears. That is not this case. Here the Fourteenth Amendment claim is clearly substantial. There is no contest of that here. It has not been withdrawn. It remains in the case. And, therefore, the power of the Court to rest its injunction in that sense on the Fourteenth Amendment pending state statute.

QUESTION: But did -- did -- did the court rest its injunction on the Fourteenth Amendment in the case before us?

MR. GILHOOL: No, sir. It rested its injunction --

QUESTION: Solely on state law.

MR. GILHOOL: Absolutely, Your Honor. Absolutely.

QUESTION: Well, may I ask you this question? Can you cite some examples of when the Eleventh Amendment would ever apply on your formulation if counsel simply --

MR. GILHOOL: Certainly, Your Honor.

QUESTION: -- Alleges a Fourteenth Amendment claim?

MR. GILHOOL: When the Fourteenth Amendment claim is not substantial, Your Honor, the Eleventh Amendment --

QUESTION: So you have to have a trial to decide that.

MR. GILHOOL: Absolutely.

QUESTION: You do.

MR. GILHOOL: When the state claim is presented purely and barely by itself, clearly the Eleventh Amendment would bar it. If the state statutory claim were pendant to diversity jurisdiction, for example, we admit it would be barred by the Eleventh Amendment.

QUESTION: Well, under Young -- under Young, all counsel has to do is to allege a federal constitutional violation. You don't have to go to trial.

MR. GILHOOL: But, Your Honor, under accepted substantiality doctrine, that Fourteenth Amendment claim must be substantiated.

QUESTION: So you have to -- you have to try that issue first, and if you lose on that, then you go to state -- go back to state court.

MR. GILHOOL: Oh, no, Your Honor. To do that would be to turn Ashwander as well as Siler upside down. The decision of substantiality is, of course, a continuing one, but under accepted substantiality doctrine it is made initially --

QUESTION: Even if the court finds it's not substantial.

MR. GILHOOL: Yes, Your Honor. Though in this case, the substantiality of the Fourteenth Amendment question I think cannot be gainsaid.

CHIEF JUSTICE BURGER: Mr. Ferleger.

ORAL ARGUMENT OF DAVID FERLEGER, ESQ., ON BEHALF OF THE RESPONDENTS

MR. FERLEGER: Mr. Chief Justice, and may it please the Court:

In this tenth year since the complaint was filed I will discuss the comity issue raised by petitioners for the first time on appeal after the 1981 remand.

Before I do that, I'd like to answer Justice Powell's earlier question regarding the number of plaintiff class members. There were 1,230 Pennhurst residents as of the time of trial, and the evidence at trial showed 2,200 persons on the waiting list.

And, Justice O'Connor, the counties do have an independent obligation to provide community services. At page 28 of my brief there is a typo where I have the word "no independent" rather than "an independent," and I wanted to take that opportunity to correct that.

Respectful and deferential relations between federal courts and state governments are embodied, of course, in the principle of comity. Where federal action would leave state interests free of undue interference, that action serves comity, and on the other hand, where a federal court needlessly intrudes on state prerogatives, non-action or abstention serves the interest of comity.

And Judge Elbersell below still adhered in his words to the view that the least restrictive obligation should not be imposed on the hospital authorities, and then concluded that he and the court is bound by Pennsylvania courts' interpretation of state law issues, even if they adopt what to him was the disagreeable least restrictive test.

While they are sometimes in tension, the two principal themes of comity we believe are in harmony in this case. The first theme if federal judicial nonintervention with state determinations, and the second is sensitivity to the consequences of abstention.

The state policy is one which has been adopted fully and the practices adopted fully by the federal court below. The development of individual habilitation plans was not made up by the lower court, nor was the process of assessment of people and placement in accordance with a state's preference for community services. All those rules, all those procedures were in existence before the trial of this case began.

And, Justice Stevens, your hypothetical is no hypothetical. The state legislature in 1970 did decree and appropriate money to remove 900 people from Pennhurst, and that money, unspent, most of it, at the time of the trial, was specifically for the dispersal, in the words of the statute, of Pennhurst residents to the community. The --

QUESTION: Are you saying that these officials then had a duty to find the least restrictive alternative --

MR. FERLEGER: Absolutely.

QUESTION: -- For each class member.

MR. FERLEGER: Absolutely. For the seven years before the trial of this case the state had concluded that, in the words of the secretarial memorandum of 1972, Pennhurst was a total loss as a mental retardation service facility, and in the words the defendant executive officials themselves, "To fix Pennhurst would be prohibitively expensive in comparison with logical dispersal into the community."

QUESTION: Well, if that's correct, would it not follow that the state agents were acting outside their state authority, and you don't need to rely on pendant jurisdiction?

MR. FERLEGER: Well, definitely. And we -- argued that point at the last argument.

The state hired experts to prepare for this trial, as the plaintiffs did. The experts testified called by the plaintiffs, and their conclusion was, their advice to the state was confirming what the state itself had decided earlier. The experts testified: " came to the conclusion there is no way Pennhurst could be made into an adequate facility. The whole way of operating out there is simply too far gone." And, in fact, at the trial the opening words of the Commonwealth's attorney as, "We are not here to defend Pennhurst."

This Court accepts state appellate decisions about what state law is. Petitioners don't ask for an end to that practice. And where state law is settled, as we believe it is here, this Court does not require abstention.

This is not a Younger case, a Huffman case where there are pending proceedings in the state court, nor is this a case where some federal interest is plucked from the air to interfere with what the state interests and policies are. Here the federal courts have adopted state interests and followed them to the T.

QUESTION: Had there been any decision by the Supreme Court of Pennsylvania prior to Schmidt that settled state law?

MR. FERLEGER: We believe that the statute was clear before Schmidt, and there --

QUESTION: But my question was had there been a decision by your supreme court?

MR. FERLEGER: There had been lower court decisions but not one by the Pennsylvania Supreme Court.

QUESTION: Not by the supreme court. And your supreme court decided Schmidt in 1981, as I recall.

MR. FERLEGER: That's correct. There had been decisions by lower appellate courts in Pennsylvania, but Schmidt was the first analysis of that issue by the Supreme Court of Pennsylvania.

QUESTION: Did Schmidt hold that the State Department of Public Welfare had been acting beyond its authority in all of these prior years that Pennhurst had been operated?

MR. FERLEGER: No. That issue was not raised or decided in Schmidt. It was not addressed at all.

QUESTION: Has that ever been decided by the Supreme Court of Pennsylvania?

MR. FERLEGER: No. No, it hasn't. The Supreme Court of Pennsylvania -- excuse me -- the Commonwealth Court of Pennsylvania, a court of statewide jurisdiction, has held that funding is not an issue when it comes to community services. In the In re: Sauers case decided after Schmidt, the Commonwealth Court held that the state must pay for community services and that the statute contemplates unanticipated, even unbudgeted for demands on the state treasury.

Now, you don't have to reach that issue here, of course, because as the court of appeals held -- the footnote is a page and a half long -- the judgment below does not involve funding, does not raise any issue of funding because the state funding adjustment mechanisms remain in effect, and there has been no problem in all these years that we've had with funding questions.

We believe that the deference that a federal court must pay to state law makes sense in light of the requirement that federal courts avoid adjudication of constitutional questions whenever possible, even when they are difficult state law questions.

What are the consequences of this approach? Well, in this case as this Court recalls very well, I'm sure, the federal court was faced with serious, irreparable injury to many hundreds of people: psychological harm, physical harm, regression, abominable conditions, so abominable that even at this point and in the court of appeals the petitioners don't ask this Court to leave them free to run Pennhurst and to injure people as they were doing previously.

In the court of appeals they told the court of appeals we're not talking at all about the part of the order that relates to the operation of Pennhurst.

Even Younger v. Harris, which enunciated the principles embodied in our federalism, made it clear that irreparable injury is a reason for a federal court not to stay its equitable hand.

The seven-year delay in raising the comity issue points to the second consequence that's considered by federal courts in evaluating abstention comity application, and that is, the delay and expense that would be caused. If this Court determines that the court of appeals was wrong in following state law after the remand, we will be back in the court of appeals for a constitutional decision. If this Court determines that somehow Judge Broderick was wrong in deciding the constitutional issues or any issue back in the early 1970s and late 1970s, we will be in state court for many more years of litigation, and people will remain at Pennhurst and continue to have their state and federal rights violated.

QUESTION: You could have started out in state court and obtained an adjudication of all the rights of which you seek to adjudicate here.

MR. FERLEGER: We could have, Your Honor, and the federal law does not require people raising federal claims to start out in state court.

QUESTION: I realize that, but you were complaining about the delay. Perhaps you would have had less delay if you'd have gone into state court.

MR. FERLEGER: Well, in Davis v. Gray in 1872, the Court pointed to the local influences which sometimes disturb the even flow of justice as one reason for people having the option of going to federal court.

QUESTION: Haven't we made a little progress --

MR. FERLEGER: Excuse me?

QUESTION: Haven't we made a tiny bit of progress since 1872?

MR. FERLEGER: Not -- not -- well, we've made some progress, and, in fact, we've made progress regarding the Pennhurst institution itself. According to plans filed by the state just this past Friday, within a year and a half there will only be about 200 people left at Pennhurst, and it's no secret that like King Nebuchadnezzar I think we see the handwriting on the wall. And Pennhurst, as the lower court was told at trial, will be closed. There is no dispute that the relief chosen and selected by the state for the problems at Pennhurst is the replacement of Pennhurst with community services.

The delay and expense at this point, having been sent back to the court of appeals for the state law decision by this Court, means that there will be more difficulties for the plaintiff class members and a waste of federal and state court energy if the state courts must become involved.

Comity considerations apply in civil rights cases, of course, but they counsel against abstention. As the Court in Fair Assessment noted and in Mayer v. Educational Equality League said, "There is substantial authority for the proposition that abstention is not favored in an equal protection civil rights case brought under 1983 and 28 U.S.C. 1343."

We believe that it makes sense that federal courts in civil rights cases should use state law remedies. Nothing could interfere with state determinations less, and nothing could serve both Pennhurst residents and our federalism more.

It is no blow to comity or federalism where the result in the federal court is the same as that decreed by the legislature, by the state courts and by the state executive.

The rule is not a new one. In fact, in preparing I noticed the case Clark v. Smith, 38 United States Courts 195, where the court said, and it is the rule today, that if the remedy in state court is substantially consistent with the chancery side of the federal court, with those remedies, no reason exists why it shouldn't be pursued in the same form as it is in the state courts.

Justice Brandeis in Dawson, other courts since then, 1968, Stern v. Chester Tube, have reiterated that --

QUESTION: Wasn't that a Fourteenth Amendment case?

MR. FERLEGER: Excuse me? The Clark v. Smith involved relief under state law, and it wasn't a Fourteenth Amendment case. It involved rights to land in Kentucky in Clark v. Smith.

QUESTION: I have a hard -- I have a hard time understanding how that applies to this case.

MR. FERLEGER: Well, it applies because in this case the Court doesn't need to decide the Fourteenth Amendment question, the Fourteenth Amendment question being substantial. Having defined and recognized the state law right, the Court has to decide what remedy should be applied. And the remedy here is a remedy that is accepted in state law. It is the typical remedy in state law. At the time of the last argument here, 20 courts of common pleas in Pennsylvania had ordered community services created for individuals.

It is no news to Pennsylvania officials that courts can require the development of services for people. What Schmidt decided, although the Supreme Court of Pennsylvania had not said it before, was perfectly consistent with everything that had happened in the lower courts.

Comity, in fact, would be repudiated if a federal court was required to follow state law for the basis of its decision but then was forbidden to use state law remedies in order to execute that decision.

In conclusion, may it please the Court, community services for people with retardation are older than institutions. The district court noted in its opinion that specialized services for the retarded began not as institutions but as small, short-term community facilities. Pennhurst grew from the corruption of that origin.

Pennsylvania no doubt will close Pennhurst like it's already closed, the record shows, post-judgment, three other institutions for the retarded in Pennsylvania no matter what this Court decides. But that is as it should be, because a federal court's preferences for a particular result should bow and have to bow, as in this case to the social judgment and decisions and determinations of the state courts and the state legislatures. Such deference is the demand both of federalism and the right of my clients, the few people remaining at Pennhurst, and those who have left Pennhurst and are blossoming in the community.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Farr? You have about three minutes remaining.

ORAL ARGUMENT OF H. BARTON FARR, III, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

MR. FERLEGER: Thank you, Mr. Chief Justice.

I would just like to address briefly the pendant jurisdiction argument that Mr. Gilhool was making.

As I understand his argument, all that a plaintiff needs to do in order to bring the state into federal court under state law and obtain whatever injunctive relief it wants is to plead a not wholly insubstantial Fourteenth Amendment claim.

Now, this Court recently in Aldinger and Owen Equipment has made clear --

QUESTION: A Fourteenth Amendment claim against state officers.

MR. FARR: Against state officers. They have to characterize it as against state officers.

The Court in Aldinger and Owen Equipment has made clear, however, that the Article III inquiry is not the full extent of an inquiry into federal jurisdiction. And the Court in Owen Equipment said quite plainly the limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded.

Now, in Edelman that is exactly what the Court did. In Edelman there was a not wholly insubstantial Fourteenth Amendment claim, just as Mr. Gilhool says there is here. However, the Court did not then say that the Eleventh Amendment was overridden. It went on to look at pendant claims and in fact determined that a pendant claim was barred by the Eleventh Amendment. And that's precisely the correct level of analysis to apply in this case.

This claim is a claim against the state. It is not a federal claim within the doctrine of Ex parte Young, and it is barred by the Eleventh Amendment, whether as a pendant claim or not.

The other point --

CHIEF JUSTICE BURGER: Excuse me. I misinformed you. You have seven minutes, not three minutes remaining.

MR. FARR: Well, I will use the three nonetheless.

Thank you, Mr. Chief Justice.

Furthermore, in the same argument about the Eleventh Amendment counsel suggested that the Court has never held that a federal statute can override the Eleventh Amendment as applied by Ex parte Young. But I think if the Court will look at Ray v. Atlantic Richfield, that's exactly as I was discussing earlier what the Court did. That was not a Fourteenth Amendment claim. It was an issue whether certain federal statutes could be enforced against state officials under the supremacy clause. That is permitted by Ex parte Young.

QUESTION: Would you -- would you expand on that for just a moment, because the theory of Ex parte Young, I understand, is when there's unconstitutional conduct that's sort of ultra veries. They cannot act that way.

You say the same thing about a federal statute when there's an allegation of a violation of a federal statute, that that's like an allegation that the official act is beyond his state authority?

MR. FARR: Well, what I understand Ex parte Young to say -- and, of course, exactly what the fiction is has been a subject of some substantial debate -- but what I understand it to say is that where a state official comes in conflict with the superior authority of federal law, then the Eleventh Amendment cannot confer on him an immunity from obedience to that supreme law. And that would be true under the supremacy clause, or it would be true under the Fourteenth Amendment.

QUESTION: Well, but if you're applying a federal statutory claim, that would mean that to determine whether or not the Eleventh Amendment defense is a good defense, you'd have to decide the merits of the federal statutory claim, is that right?

MR. FARR: In a situation of Ex parte Young, of course, that's the situation you have on a federal constitutional claim as well. If you have a Fourteenth Amendment claim against a state official, the court has to look at the claim itself to determine whether he is stripped of his conduct. So that's an inevitable result if you were going to have federal law be supreme in federal courts against state officials, if you want to enforce the federal law. But when you have a situation where you're dealing solely with state law, that is not necessary. The state courts are fully available to provide the relief there.

QUESTION: But then the question, as I understand you here, the question for the federal court is whether there was any authority whatsoever for what the state official was --

MR. FARR: That -- that is the question. As I indicated earlier, I think that is the question that comes out of cases such as Treasure Salvors. And as I said to Justice White, I think that is an inquiry, though, that has to be very carefully limited, because you're really trying to --

QUESTION: But it's an inquiry that requires some examination of state law to decide whether there is any state law authority --

MR. FARR: That's right. I believe a very threshold --

QUESTION: So you don't deny the duty of the federal court to at least take a peek at state law.

MR. FARR: I think the federal court has to look at state law to see if in fact the state official is really just acting as an individual or is at least doing something more than that by saying that he works for the state when he's doing what he's doing.

QUESTION: See if it's a case such as my hypothetical: nobody can be put in Pennhurst. If it's in that category --

MR. FARR: If it's that clear, that ministerial so that it's -- that he is acting completely outside, I would think perhaps under the Treasure Salvors notion that that would be permissible. But I think that kind of inquiry is very different from what we have here.

QUESTION: Well, that's how you distinguish Siler, in fact, as I understand you.

MR. FARR: Well --

QUESTION: In Siler the people didn't have any authority to make rates.

MR. FARR: Siler never addressed the Eleventh Amendment question. But, however --

QUESTION: No, but Green did.

MR. FARR: Pardon me?

QUESTION: But Green did, which is very similar.

MR. FARR: Well, I think what happens in Green is that you have a statement of two principles: the basic principle of Ex parte Young and the basic principle of pendant jurisdiction. I think in themselves they're innocent. I think they're only combustible when you mix them. And I think that's what the Court in Edelman has finally gotten around to. After Larson and looking at this again they've said just because you have a pendant claim doesn't mean we're not going to look at the Eleventh Amendment. We're still going to do that and apply traditional Eleventh Amendment principles.

QUESTION: But the converse of that is that even though there were no pendant claim, and if there a state law claim, you still have to make some analysis of state law to decide whether an Eleventh Amendment plea is good.

MR. FARR: If it's an original claim against the state, yes. I'm not --

QUESTION: The Treasure Salvors situation, example.

MR. FARR: The Treasure Salvors.

QUESTION: That didn't rely on pendant jurisdiction at all.

MR. FARR: That's right. You have to make some inquiry. But as I say, I think because of the federalism concerns, it has to be a very limited inquiry so that you don't suck in the cases that in fact are better in state court.

Thank you very much.

CHIEF JUSTICE BURGER: The case is submitted.

We'll hear arguments next in Norfolk Redevelopment against Chesapeake and Potomac Telephone Company.

(Whereupon, at 2:00 p.m., the case in the above-entitled matter was submitted.)