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Judith Gran chapter 2


Chapter 1: Early Career
Chapter 2: Pennhurst Litigation (you are here)
Chapter 3: Pennhurst Implementation
Chapter 4: Community Collaborative
Chapter 5: Self-Advocacy
Chapter 6: Oberti v. Clementon
Chapter 7: Ongoing Advocacy

transcript - entire interview

Judith Gran Interview (Word)

transcript - current chapter

Chapter 2: Pennhurst Litigation

08:05:36:10 - 08:07:43:11

Lisa: I want to ask you about that because I know the Pennhurst Case was very long, was very lengthy and very complicated and I think it would certainly help folks listening to our conversation to have a little bit of background about that. One of the things I wanted to ask you about is that even before the Pennhurst litigation something around $20 million had been appropriated by the Senate to start moving people from Pennhurst into the community but that never really happened, it never really took hold. Do you have any idea as to why that might have been?

Judy: No I really don't. That was before my time, actually, but it, a lot of the people who were moved from Pennhurst in the early days were moved to other institutions and that's another part of the implementation story but they were moved to Embreeville, a lot of people where moved to Embreeville, many people were moved to Pine Hill which was essentially a nursing facility for people with complex medical needs and so forth, a lot of people were moved to Elwyn and the service system had not developed to the point where it could support people with more complex needs so people with mild disabilities could go to the community, people with more complex needs had to go to other institutions. Actually the first community living arrangement in Philadelphia for a person with significant disabilities was created for Walter Fialkowski the son of Leona Fialkowski, one of the petitioners in the Part Two enforcement proceeding and that wasn't until the late '70s.

08:07:48:09 - 08:08:33:08

Lisa: Thank you. So when you joined PILCOP as a Staff Attorney, as you had said PILCOP had been representing the, some of the plaintiffs of the Pennsylvania Arc and the Pennhurst.

Judy: Yes.

Lisa: Litigation for maybe 10 year, nearly 10 years or so.

Judy: Right. Right. Yes, the Arc and a number of individuals intervened in the case in 1975 and converted it from a fix up case into a case about community placement and it was very significant because it was the first case of its kind that was really brought to, to bring people into the community as opposed to improving conditions at the institution.

08:08:33:16 - 08:16:44:24

Lisa: I wonder, also, Judy if you could give us maybe a very brief overview of the case.

Judy: Yes, well yes. It was an unusually complex case procedurally as well as substantively but it was filed by the original plaintiffs, Terri Lee Halderman et al. in 1974 and they sought damages and improvement in conditions in the institution. The Arc of Pennsylvania intervened in 1975 with its own complaint which called for placement in the community and the development of community services. The United States also intervened in the case about the same time seeking to enforce Federal Law, specifically Section 504 of the Rehabilitation Act which had just recently been enacted. And it went to trial in 1977, was at trial for about six weeks, I think, and the Judge issued his decision the day before Christmas Eve in 1977 finding liability under, on many different grounds. First of all the Constitution, the Due Process clause and the Equal Protection clause, Section 504 of the Rehabilitation Act, which called, required services in the most integrated setting and State Law, the Pennsylvania Mental Health and Mental Retardation Act of 1966, which also had a community inclusion provision.

So the Commonwealth and the Counties appealed and the Court of Appeals decided to uphold the original orders but on a different ground. Sometime in the process of the litigation the case is going to trial and going up on appeal Congress had passed the Developmental Disabilities Bill of Rights and Assistance Act which of course supports the Institute on Disabilities, the protection and advocacy systems and so forth and it contained a least restricted environment provision. So the Court of Appeals decided that by accepting Federal Funds under this statute the Commonwealth had agreed to support people in the most integrated setting so they upheld the original orders under that statute. That was then appealed to the U.S. Supreme Court, the Commonwealth petitioned for certiorari on the ground that there was no right of action, a person with disabilities could not bring an action under this statute for violation of its provisions and that was a very important issue in the Federal Courts and the Supreme Court reversed the Court of Appeals and held that there was no right to bring an action under the DD Act, that only, only the administration could enforce it by withholding funds presumably and that holding actually had implications for a whole lot of different Federal statues and the ripple effect is still going on today with decisions, refinements of that standard coming down from the Supreme Court on a fairly regular basis.

So it went back to the Court of Appeals and the Court of Appeals had all these other grounds that the Supreme, that the District Court had ruled on and they decided to uphold the original orders under State Law, the MH/MR Act, and the Commonwealth appealed again and I was working as an intern at that time, at the Law Center with Tom, and I remembered how stunned he was when the Supreme Court granted certiorari for the second time because we completely expected the original orders to be upheld, everyone did and Tom actually had written a press release and he had arranged to hold a press conference in Washington on a Monday morning when the Supreme Court was expected to announce the cases in which it had granted or denied certiorari and we, Tom had written a 20 page press release and kept working on it and kept working on it and as he was still working on it the news came down that the court had decided to hear the case again which was very, very amazing. So it was briefed and argued and then the Court decided to hear reargument.

Apparently, I gather that the Court must've not been able to decide the case the first time around and the issue there was whether a Federal Court has the authority under the 11th Amendment, very arcane piece constitutional jurisprudence, to order State officials to comply with State law. And eventually after the case was reargued the Court reversed again and decided that a Federal Court does not have that authority, it can only order State officials to comply with Federal Law. And that holding too has had many implications for Federal jurisprudence in a lot of other areas.

So the case went back to the Court of Appeals again and this was in, the Supreme Court ruled for the second time in February 1984 and it went back and the Court, the Court of Appeals by now had to decide the Constitutional issues and in the meantime a case called Youngberg versus Romeo involving an individual Pennhurst resident had been decided so that there was some good case law on the Constitutional standard under the due process clause. So I think everyone on the plaintiff's side was pretty hopeful that the court would rule in our favor on the Constitutional questions and in the meantime the parties finally decided to settle the case in a lengthy mediation before Court of Appeals, a Court of Appeals judge, Max Rosin and that was successful and the result was the final settlement agreement which was approved by the court on April 5, 1985.

8:16:47:17 - 08:17:51:21

Lisa: It was a very complicated history.

Judy: Yes. And as Michael Lottman, who was one of the, who was the Hearing Master in Pennhurst, liked to say now the real work begins. When you get an order you get a consent decree and you have to implement it. And fortunately a lot of implementation had already gone on because the Courts orders were never stayed, that's a good thing about bringing a case in Federal Court unless the Court decides to stay its orders they remain in effect. And, and that was a really important part, I think, of the momentum of the case was that the courts orders were being implemented, Temple was doing the longitudinal study showing that people were better off in the community, it was working, people were flourishing and I think that all helped everyone towards settlement.

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