Earl Warren: Mr. Shilensky, you may proceed.
Morris Shilensky: Please. I've had the exceptional opportunity to being able to prepare my argument as an answer to the Court's questions which were opposed during yesterday's session. I will proceed through it rather rapidly because I'd like to leave sometime for further questions by the Court after my prepared presentation. Before proceeding, however, to answer the several questions, I would like to point out that there's been a tremendous narrowing of the issue on this appeal. Originally, it was argued by the Solicitor as he did in his brief that the grand jury is a powerful secret largely uncontrolled body whose indictment is not reviewable by the courts. This was based in part on Judge Hand's statement of 1910, that the grand jury was an irresponsible utterance of the community at large. But now, Judge Hand, in the opinion below and my adversaries, had recognized that on a proper showing, such as that the indictments based on new evidence or an indictment which is based on so-called the aggravated hearsay like a police officer testifying that someone told him that the indictee was the murderer, and those cases, the courts must set aside the indictment. In other words, the grand jury is like all other agencies, judicial and otherwise, provided for under the Constitution and they are governed by rules and it is not in an artistic body, thus, if a grand jury's indictment --
Felix Frankfurter: You mean they're responsible not artistic. Those are very different concepts. And Judge Hand, you -- you mean the word irresponsible and maybe not artistic.
Morris Shilensky: No. I -- I didn't say that. I say that he didn't mean that because as he later said --
Felix Frankfurter: But he didn't mean it when he first said it.
Morris Shilensky: Well, he --
Felix Frankfurter: Never mind that --
Morris Shilensky: -- he regard --
Felix Frankfurter: -- we can't go to his mind but he has the way of using words that precedes. When he said irresponsible, he meant that that is for the grand jury. It's a very different thing (Inaudible) and from the cabinet officer whose under particularly by a statute.
Morris Shilensky: I agree with that. If the grand jury's indictment is presumed to be a finding of probable cause, it is at least not conclusive as the Solicitor per se. Now, we then proceed to the question as to what showing a defendant must make in order to invoke the supervision of the courts. That leads me to Mr. Justice Reed's question as to whether we ask for the grand jury minutes during the trial, we did. At page 135 of Volume 1, at that time, the agent (Inaudible) was on the stand. He was the one agent who was in a position to testify to something which wasn't hearsay because he talked to the defendant in 1939. But he wasn't called before the grand jury and we didn't know it at the time of the trial. And we said to the Court, look at the minutes, grand jury minutes and the Court during the recess said, after recess, I advice you that I have read the grand jury minutes and I state to you that I find no contradiction on the grand jury minutes with anything that this witness has said, no suggestion that the witness had not testified before the grand jury. The judge merely said, I read the minutes and there's no contradiction somewhat cue. Our counsel said, defendant's counsel said, "I offer to prove, Your Honor, that this witness was not before the grand jury and the courts that I declined to accept the offer because I think it's immaterial." And then counsel had ought to say, "I made a motion before I may explain to Your Honor in this case from inspection of the grand jury minutes on the ground that there was no competent evidence before this grand jury." The Court said, "Was the motion decided?" "Yes, I was refused the grand jury minutes." Then your record is protected. Counsel persists that I expect to show during the course of this trial that there was no competent evidence before the grand jury from which this indictment is based. And the Court said, "You have offered to do that, but I shall decline to accept the offer of proof, because it is not an issue before this jury, whether or not, the indictment was based on competent evidence before the grand jury." Your motion which was denied summons the law on that as far as I'm concerned and your record is protected. Even then, of course, we didn't know that the witness of that testified before the grand jury. Later, and we profess further, the Government conceded that that witness, the one agent who had interviewed the defendant had not testified before the grand jury. Now, we moved at every stage of the case and every opportunity we have to urge that the grand jury have acted without legal basis but to no avail, and as Judge Hand said, at 153 of the record, the defendant had done all he could to raise the point.
Earl Warren: Well, Mr. Shilensky, I understood your associate yesterday to say that to admit that the motion that you made was inadequate, the motion to quash the indictment because he merely said, because I am innocent, there could not have been competent evidence before this grand jury and I -- I thought that Mr. Frank --
Morris Shilensky: At the time the motion --
Earl Warren: -- admitted that -- that was not an adequate motion.
Morris Shilensky: At the time the motion was made before trial, Your Honor, there was nothing in the record, because we didn't have the grand jury minutes to show whether or not the grand jury had any testimony. At -- simultaneously, with that motion, the defendant asked for the grand jury minutes. Now, later at the trial, I think there were six occasions, Your Honor, drops by when the motion was made, both during and after the trial, when it was known who the witnesses before the grand jury were.
Earl Warren: But I was talking about what happened --
Morris Shilensky: Yes.
Earl Warren: -- before.
Morris Shilensky: Before the trial, before the trial, the affidavit could not say what the grand jury it had because the defendant had no way of knowing.
Hugo L. Black: You're not intending, are you that this issue is a valid issue, it's one to be tried by the jury which determines the guilt for innocent.
Morris Shilensky: No, I would say it's one by the Court, Your Honor. I would say it should be determined by the Court and not by the jury. The Court could have cause -- maybe the motions were made to the Court to dismiss the indictment --
Felix Frankfurter: And you --
Morris Shilensky: -- not to the jury.
Felix Frankfurter: -- and you're not saying their reputation was fair enough or the inspection of grand jury minutes were denied.
Morris Shilensky: Well, I think that would be a very narrow question, Your Honors, because you have permitted us to come up on the broader question. I say this that if -- and I'd like to refer for a moment to the Second Circuit decisions. We say this, that either we are given the minutes or we are not punished for not having them, now, the Second Circuit in United States against (Inaudible) and just --
Felix Frankfurter: I don't -- that is in the -- that problem, it doesn't exclude the alternative from the situation or you're not entitled to the minute and you're never entitled to raise the question if you can --
Morris Shilensky: Yes.
Felix Frankfurter: -- in ways in which other litigants can raise a question which has a very – very limited scope.
Morris Shilensky: Yes. Well we can't say here, we can't say here that Your Honors could reverse merely because we didn't get the minutes. So, I think that's direct answer to your question.And we would not ask you to reverse merely because --
Felix Frankfurter: Not only that but there is the policy which this Court has recognized against giving minutes and I hope --
Morris Shilensky: Your Honor --
Felix Frankfurter: -- that the information will never arise that we would have in the federal courts the situation in New York state courts.
Morris Shilensky: May I say this Your Honors, that I don't think that your decision so far have gone that the defendant is not entitled to minutes after he has been presented to the Court, after he's been apprehended. And the case has won on the way or practically over and he raises a point timely. I don't think -- I don't think Your Honors have gone so far as to say that the secrecy must prevail at that stage.
Felix Frankfurter: We have indicated that clearly, radically that disclosure of grand jury minutes is not part of the federal criminal practice --
Morris Shilensky: You have done --
Felix Frankfurter: -- or by the state rule often by statute.
Morris Shilensky: I -- That is correct.
Felix Frankfurter: (Voice Overlap) the New York Criminal Administration of Criminal Justice and the New York state court has something that everybody has a good care about criminal justice would recognize.
Stanley Reed: Well I -- I'm not in the -- the impression that you say you don't allege error because the grand jury minutes were refused.
Morris Shilensky: And the --
Stanley Reed: But you do -- then do you allege error because no proper evidence was before the grand jury?
Morris Shilensky: Yes.
Stanley Reed: And how -- how do you prove that no proper evidence have done.
Morris Shilensky: Well, Your Honor, we prove the no proper evidence suggest this way. We have shown affirmatively what was before the grand jury.
Stanley Reed: You mean of what witnesses.
Morris Shilensky: Yes, the three witnesses. We have indulged in the presumption.
Stanley Reed: How -- how do you know all the witnesses were before the Court.
Morris Shilensky: We wouldn't know that, as a matter of fact, but we say this Your Honor, that where we are denied the minutes by the --
Stanley Reed: Where they should?
Morris Shilensky: -- agency which has the minutes and can come forward and say -- ah, but there is one fourth witness and tell us who the fourth witness, tell the Court. I'll come to that, Your Honor, because I have some just a little to say on that in proper order, if I may.
Felix Frankfurter: But is that unnecessary modes of leaving that because you've got all the -- all the knowledge you have and to establish to your point, you have a party Mr. Shilensky?
Morris Shilensky: No, Your Honor but --
Felix Frankfurter: When it comes to deprivation of citizenship or denaturalization, this Court has said, the man might have acquired their citizenship as illegal as possible but unless the Government of the United States comes up to a certain status and approved, they don't think about their case. Now, the nature of the grand jury is such that to undermine its rules puts upon an accuse the verdict which he'd be governed to the State if he doesn't sustain it.
Morris Shilensky: Your Honors, there surely comes a time when a defendant has laid out a case which calls the Court to review what the grand jury has done. I think this Court has so held.
Felix Frankfurter: Where as --
Morris Shilensky: Now, whether we have gone --
Felix Frankfurter: Where (Inaudible) --
Morris Shilensky: I think in a whole case, Your Honor, insofar as it said that the absence of a showing that there was no competent evidence entitles the indictment to be upheld.
Felix Frankfurter: Did the whole case say that?
Morris Shilensky: Your Honor, that is a fair holding because what they said in the whole case was that they would not set it aside because of the improper testimony which went in along with the competent testimony.
Felix Frankfurter: Yes, but Justice Holmes is very careful to say if at all.
Morris Shilensky: He could say that.
Felix Frankfurter: Being a careful judge, he limited the decision to what was enforced.
Morris Shilensky: I -- I think he --
Felix Frankfurter: But he gathered himself by the hypothesis -- hypothesis of the circuit.
Morris Shilensky: I think he did that.
Felix Frankfurter: All right.
Morris Shilensky: Now, the question then, I proceed to is did this defendant do as Hand says, everything he could possibly do, to invoke the aid of the Court. Now, he said that we find that it's impossible to escape the conclusion that there, meaning the witnesses computations must have been based on hearsay. Judge Frank in his concurring opinion says, "Here we have a grand jury returning an indictment on the basis of evidence which, over the objection of the defendant, could properly -- could not properly be received at the trial." Now, we are asked to assume, as I said before, and I don't think we have to but we can safely to go along with it, that the three witnesses who testified before the grand jury, testified precisely as they did at the trial, no more, no less, that's when we're asked to do. Now, in that respect, I think my adversary has led himself down the golden path, because he swore in some of the questions from the Court. A directional arrow to a bed of roses. He left the impression, and I'm sure it wasn't delivered that the agents here say, in this case, was almost the shuffle kind. The witness who reports what he saw in books, records, and the like and that the testimony was of that nature before the great --before the trial court and therefore, before the grand jury. Now, it wasn't anything of the kind and we'll take briefly each of the three witnesses. So, merely at the trial made a calculation on a tax return supply and he said, "If you assume as income of Mr. and Mrs. Costello that that was joined (Inaudible), the money they spent to get what the -- to show they earned but you put in the incomes figure the money they spent or invested and then you calculate the tax, you come to X thousands of dollars that they owe the Government. That's all that was assumed here. And that's not shuffled or anything of a kind, so that's the very testimony with calculation almost then.
Stanley Reed: But -- but there was other evidence --
Morris Shilensky: No, I think there are three witnesses, Your Honor.
Stanley Reed: No -- no.
Morris Shilensky: This witness -- this witness.
Stanley Reed: But on -- on that first witness.
Morris Shilensky: That's right and now the next witness.
Stanley Reed: But -- but before you read --
Morris Shilensky: Yes.
Stanley Reed: He was testifying as to the result from an income tax standpoint that would arise if other evidence which is produced by witnesses who can testify in regard to the purchasing were correct.
Morris Shilensky: He would be -- be clear for it. He said if you assume that its income, this is the tax.
Stanley Reed: I know, but there was other evidence of that.
Morris Shilensky: Yes -- yes, parts of the trial.
Hugo L. Black: May I ask --
Morris Shilensky: But he didn't testify, he asked --But he didn't even say -- he didn't even say, if you assume the witness' testimony is correct, this were the tax. He said, if you assume that the income was equal to their expenditure of this with the tax, truly, mathematical calculation by an expert, well, who'll argue with myself and my tax return and -- and there would be many -- other people do the same thing.
Hugo L. Black: May I ask you assuming that this was all that you say within your definition. Are you invoking a constitutional rule or rules made by the Court that you provide for the capacity over the trial of cases?
Morris Shilensky: Your Honor, I would it all, I think it approaches the constitutional thing. It surely -- it surely comes within the jurisdiction of this Court in supervisory powers.
Hugo L. Black: Now, if assuming then that there that I'm -- at this time, I, by no means sure that your constitutional point is so strong. Assuming that if it's -- you're invoking an application of a rule in those statutes, do you claim that there has been up to this date a rule established to that character which is controlling in the federal court.
Morris Shilensky: Yes, Your Honor, if by this Court --
Hugo L. Black: Yes.
Morris Shilensky: I wouldn't say by this Court except to the extent inferred than there is the reservation in the whole case --
Hugo L. Black: Well the whole case --
Morris Shilensky: -- except to that extent, Your Honor, I would say --
Hugo L. Black: -- the whole case cited within to the belief that this Court is fair with acting on with the assumption the grand jury that best perform its function if after its indictment will return, it was led alone, I would think. But assuming now that there has been no rule, do you -- are you reserving time to argue it that which would have to come and I would say, the policy, is it good or bad? And if so, why?
Morris Shilensky: Yes. Very briefly done, Your Honor, because of the limit of this. Now, may I finish with these three witnesses briefly? Now, Murphy testified that he wrote to the banks and they replied that they had no accounts with the -- these dollars. Hearsay, if there had a law, so to say, letters to and from people think that was a point of any importance, it would have been objected there at the trial. The fact that we didn't object to it at the trial doesn't make any less hearsay. And then he went on to testify for three things, that he checked the records and there were no gift tax returns, that he checked real estate land records and filed no real estate acceptance on the exceptions, and that there were no inheritances. Nobody said there were any of those three things. There was no contention to that and so little effect with that negative testimony he have that Judge Hand and Judge Frank didn't even think of worthwhile mentioning this when they put all of the testimony into the category of hearsay testimony.
Earl Warren: Well if they haven't introduced testimony of that kind, don't you believe he would have argued that -- that the man might have had some bank accounts that even if weren't showed, he might have had some inheritances, might have had some land deals and so forth that they have it (Voice Overlap)
Morris Shilensky: I don't think we could have argue with Your Honors opinion on the Holland case.
Earl Warren: Do they have in many others' cases?
Morris Shilensky: In the Holland case, I -- I think we wouldn't have been foreclosed because you said there that the Government has to follow down leads given by the defendant and exclude with which they reasonably can, only if they reasonably can do it and exclude the possibility or the likelihood that the funds spent came from those sources. Now, if there is no lead given by the defendant, there's no necessity on the part of the Government to exclude land inheritance and other things no suggestion on the case.In any event, Judge Hand studied this point because the decision was based on that thought so little of this evidence that he didn't even mentioned it. And it was very insignificant at the trial, it wasn't contested, it wasn't assumed in the cases. Now (Inaudible) was a special -- special agent.
Felix Frankfurter: Well, I hope your answer was the answer which make it an adverse judgment on the Government that it is careful on its own accountancy that it doesn't charge anybody with tax evasion when it might have a good answer.
Morris Shilensky: I don't hold it against them that they did that, Your Honor, but I say that that kind of testimony, even in its negative character if it could be classified as not hearsay adds nothing to the basis for the indictment. They might have testified to other facts which had no bearing on the crime. They might have had in a rebuttal case. But the affirmative crime, the affirmative evidence it required didn't involve establishing that he didn't receive any inheritance, no such testimony. Now (Inaudible) was a special -- special agent. He was charged and this is the policy question, he was charged under the law with making a recommendation of indictment, that's his job, and he is the witness who goes before the grand jury and testifies as to one. Let's assume again that his testimony is the same at the trial. He doesn't testify that he went to books and records at the trial and found (Inaudible) bills and other bills. He doesn't testified at all. He says, "I made up a chart. I listened to the witnesses in Court and I looked at the exhibits which were introduced in Court, and I just jotted them down. I added them up, I subtract the certain things, I multiplied and I did other things and here's the end result." Now clearly, if that testimony would have been adduced without the supporting witnesses, Your Honors would have treated it as you did in the Holland -- as you said you would in the Holland case, when you said that these charts may go before a jury with very strict instructions by the Court that they don't acquire an existence of their own, independent of the evidence which gives rise to them. They were charts. Some reasons of what the witnesses have testified to, not the expert witnesses recollection or recalling or copying out of what he sort in multitudes of records which might be some extension of the shuffle thing. That was not these witnesses --
Felix Frankfurter: What were these common result? What were they shown and --
Morris Shilensky: It's -- all testimony too Your Honor.
Felix Frankfurter: Pardon me?
Morris Shilensky: All testimony too and --
Felix Frankfurter: Those charts -- chart don't summarize all the opinions.
Morris Shilensky: Yes, they did. They did, Your Honor.
Felix Frankfurter: But what kind of all that?
Morris Shilensky: I'll give you a kind. A barber testified -- a barber testified at the trial that Mr. Costello came in everyday for a shave, came in once a week, I think, for a haircut, and so and so often for a manicure. And then he said, I don't remember just what it was but my prices were $1.25 shave and haircuts such and such a period and then he made the calculation and he said, therefore, it must be X --
Felix Frankfurter: And what was --
Morris Shilensky: -- hundreds of dollars a year.
Felix Frankfurter: -- what was the item, the total item of the barber.
Morris Shilensky: The total items of that type of testimony, Your Honor, was $23,000, that the barber recalled.
Felix Frankfurter: But the barber --
Morris Shilensky: Oh, I don't remember a figure but my associate would know.
Felix Frankfurter: Were they brokers figures?
Morris Shilensky: There were some brokers figures but there was $23,000, Your Honor, of Mr. Costello spending which didn't have a shred of record. Nothing.
Felix Frankfurter: And what was -- and what was the amount of evasion?
Morris Shilensky: The amount of evasion that you include, if you include Mrs. Costello's, now I'll get to that because that's $105,000 that the total amount they prove in the four years was $300,000 and some more thousand dollars of expenditure.
Felix Frankfurter: And --
Morris Shilensky: But much was reported in the tax return.
Felix Frankfurter: So that the $300,000 of the amount that were involved, how much depended upon the barber and etcetera, etcetera.
Morris Shilensky: A very substantial portion.
Felix Frankfurter: On what is -- what in amount figures.
Morris Shilensky: I'll have the figure in a moment, Your Honor, because I didn't make the calculation that way but I'd like to say this that it was well over a theory of the total for the four years.
Felix Frankfurter: You then would say that the – that the items that related to the brokers account and recognizes like (Inaudible) Well, date that they had before they came to the trial?
Morris Shilensky: No, I'd say not.
Felix Frankfurter: And therefore --
Morris Shilensky: I'd say -- before -- they had before they came to trial.
Felix Frankfurter: Yes.
Morris Shilensky: Oh, yes in preparation for the trial, they undoubtedly had choice.
Felix Frankfurter: Way back and able --
Morris Shilensky: No, not way back. Not way back because --
Felix Frankfurter: And isn't it fair to say that they had it when they want before the grand jury.
Morris Shilensky: No, I think it's unfair to say that.
Felix Frankfurter: That's right.
Morris Shilensky: Yes, one of these reasons, that when they went in for an indictment, when they went in for an indictment, Your Honor, they came out with the indictment -- I see my time's up.
Earl Warren: You may answer Mr. Shilensky.
Morris Shilensky: The -- when they came out with the indictment, it was the 14th of March, the day before the statute of limitation were in. And it's true the one witness testified they've been working on it for months, but they continued working on it afterwards and the figures of the trial differed widely from the figures of the indictment. And -- and therefore, I say, that there was much between the date of the indictment and the (Inaudible)
Felix Frankfurter: Everybody knows that you were done with the case until they go to the Court. And I'd have to dislodge myself as my theory not to know that pleadings like that is (Inaudible) for months before they go to the grand jury.
Morris Shilensky: Well, may I say a concluding sentence.
Earl Warren: You may -- you may take three minutes to summarize it well.
Morris Shilensky: There's one other item and then just one sentence of course. The expenditures of Mrs.Costello were $105,000. There was no record connection between Mrs. Costello and Mr. Costello.Her expenditures were charged disavowed, he gave her the money without any records to show that. But there was testimony at the trial of witnesses, the lawyer and a couple of other people of the Court whose testimony, the Government argued, entitled the jury to tie in that $105,000 to Mr. Costello. That couldn't be before the grand jury. It would be impossible. Now, the concluding part is this, Your Honors. If you had any misgivings about accepting Judge Hand's finding that there was only hearsay, the grand jury minutes, I suggest, should be ordered and filed in this Court so it could be printed and become a part of this record, and then we could see whether it is as Judge Hand found for a hearsay. Now, whether it's competent to support the indictment or as you did in the Remmer case and on another occasions, you send it back to the Court and say, "Look at these minutes. Report Are these minutes hearsay?" Or is it of such great value of evidence that we were not going to disturb it, as of -- stands down. This case stands for the principle that hearsay evidence by agents who are charged with seeking an indictment, it's their duty, unsupported by any facts, may support an indictment and the constitutional provision for an indictment is no protection at all.


Warren E. Burger: We'll hear arguments next in 1715, Secretary of Public Welfare of Pennsylvania. Mr. Noble, I think you may proceed whenever you're ready. Excuse me, Mr. Watkins, you may proceed whenever you're ready.
Norman J. Watkins: Mr. Chief Justice, may it please the Court. This is an appeal from a three-judge court determination that two of Pennsylvania statutes, which provide that parents may voluntarily admit their children to mental health or mental retardation treatment in Pennsylvania facilities are unconstitutional. The statutes involved, are first, a 1966 Act that provides that parents of a mentally retarded child under the age of 18 may apply for voluntary admission of that child to treatment upon acceptance and the determination that the child is in fact in need of mental retardation therapy. The child may then be admitted upon the application of the child. The 1976 Act provides that parents of a mentally-ill child under the age of 14, upon the application of the parent and upon the determination of a psychiatrist or physician of the need for treatment may consent to the voluntary treatment of that child. Furthermore, under the 1966 Act, Pennsylvania promulgated regulations that require -- and this deals with the mentally retarded again that require not one but two independent medical determinations that the child is in fact retarded and requires the treatment which has been recommended. The plaintiffs in this case and there are 12 of them, nine of whom are mentally ill and three mentally retarded, all were admitted upon application of their parent or guardian or one standing in loco parentis. Eight were in fact admitted by their parents and four were admitted by childcare agencies in as much as they were for one reason or another words of the state. Each of these children, and this is typical, have had, and the record shows this, a minimum of three independent medical evaluations indicating the need for the treatment for which about which they were receiving. Furthermore, not one of these appellees nor any members of the class involved -- strike that. Not one of these appellees sought to terminate that treatment by way of any of existing court procedures of which they may avail themselves from moment one after the admission. Furthermore, as we stand here, some of the appellees remain in the treatment setting and there is no proceed -- there are no proceedings underway in state court to terminate that treatment. Nevertheless, the plaintiff's brought this challenge primarily and exclusively on the Due Process Clause asserting that prior to the effectuation of the admission, the children had a right to counsel and the full panoply of due process. The lower court agreeing with the plaintiff's ordered essentially two hearings. First, what was called a probable cause hearing at which it would be determined if in fact the child -- if in fact there was probable cause in the courts or the tribunals view to believe that the child was mentally ill or retarded and whether or not the medically recommended treatment was in fact advisable. Within two weeks of that hearing, assuming affirmative findings on both counts, the tribunal would convene a full adversary proceeding at which the findings required are whether in fact the child is mentally ill or retarded and whether in fact the treatment which has been medically recommended is approved by the court or tribunal.
Potter Stewart: You say or tribunal, what's the alternative court?
Norman J. Watkins: Initially, this case has been here before. Initially the lower court required judicial hearings. This order was slightly amended to allow the state to provide neutral trib -- an independent neutral tribunal. However, it should be noted that this tribunal must have the authority to protect the child's rights which are specified by the order to cross-examination to present testimony and furthermore to approve a waiver of this significant constitutional right which the child has been given by the lower court's order. So, I would --
Potter Stewart: Did the Pennsylvania legislature created such a tribunal?
Norman J. Watkins: Not at this time, Your Honor. I would suggest also that the Court's modifications as to the tribunal and counsel, that the requirement of counsel has been substituted by a requirement for a trained advocate. However, once again, this trained advocate must be able to vouchsafe the child's rights to cross-examine, confront witnesses, to present testimony and in fact must be able to make the legal determination of whether or not the child should waive his rights to --
Warren E. Burger: Now, what's the source of these supplemental standards?
Norman J. Watkins: The source --
Warren E. Burger: Where did they come from?
Norman J. Watkins: The lower court modified the original word that was here.
Warren E. Burger: After the remand?
Norman J. Watkins: After the remand. And those are two significant modifications. However, as I relate my brief the practical effect of them is probably not very significant in as much as the lawyer and a judge would talk --
William J. Brennan, Jr.: Where's the source of trained advocate, if not the bar?
Norman J. Watkins: As far I'm concerned, it would have to be the bar.
William J. Brennan, Jr.: But did the District Court --
Norman J. Watkins: There was no elucidation on that point, presumably --
William H. Rehnquist: Presuming the District Court, the source is the Fourteenth Amendment of the Constitution of the United States.
Norman J. Watkins: Oh! Absolutely, the entire order is predicated upon that.
William H. Rehnquist: Frankly, it couldn't be anywhere else.
William J. Brennan, Jr.: I didn't ask my question clearly enough by source. I simply meant, where is this pool of trained advocates?
Norman J. Watkins: Not exist presently, Mr. Justice Brennan other than the bar. And as I -- again, in order to waive this right, which the trained advocate would have the right to do, I would suspect that a lawyer would be required. There are two threshold questions in this case as in the previous. The first is of course whether or not these children in these context posses a liberty interest which cognizable under the Fourteenth Amendment. It is my position that the lower court in finding such a liberty interest made essentially for analytical errors. First, without any evidence whatsoever, the lower court presumed that in this context, parents maybe presumptively assumed to act contrary to the interest of their children. Moreover, the Court presumed without any evidence bearing this out that --
Potter Stewart: Well, that doesn't really have anything to do with whether or not there's a deprivation of liberty, does it?
Norman J. Watkins: Well, I think to the extent that the lower court relied on this Court's analysis In re Gault, it certainly does because clearly --
Potter Stewart: A voluntary commitment results in a deprivation of liberty, doesn't it? A voluntary commitment by an adult results in a deprivation of liberty.
Norman J. Watkins: A voluntary or involuntary?
Potter Stewart: Voluntary.
Norman J. Watkins: A deprivation of liberty, absolutely --
Potter Stewart: You're correct.
Norman J. Watkins: But it's not of constitutional significance --
Potter Stewart: But it better does reads all in a deprivation of liberty.
Norman J. Watkins: That is correct. Yes, Mr. Justice Stewart.
Potter Stewart: So, therefore I would think this view of the District Court which you're attacking has nothing to do with basically, or is irrelevant to the question of whether or not there's a deprivation of liberty.
Norman J. Watkins: Well, the point is that the lower court by relying on this court's decision In re Gault, I think misperceived the relationships at stake in this case. For example, the lower court would like in the relationship of a doctor, parent and child to the relationship of prosecutor and defendant. Obviously when one looks at the relationship between prosecutor and defendant in the criminal context, there is a conflict of interest from inherent in that relationship and it should be presumed. That is not so in the relationship between a parent and child and between a doctor and patient and the lower court's presumptions to this effect on a barren record should be overturned. Finally and has been discussed at great length in the prior argument, the lower court's order ignores entirely the traditional role of the family in these decisions. Obviously, these are very difficult decisions. Nevertheless, it's just these type of decisions that we entrust the family, entrust to the family and entrust to the family in conjunction with a physician in the medical context.
Potter Stewart: None of these things you've been talking about has anything to do with whether or not there's a deprivation of liberty, does it?
Norman J. Watkins: I believe it does Mr. Justice Stewart in the sense that when a parent acts on behalf of his child, he is normally presumed to act on behalf of the child.
Potter Stewart: Right, but when an adult acts on behalf of himself, he's presumed to be acting on behalf on himself.
Norman J. Watkins: That's correct.
Potter Stewart: In his best interest. And when he voluntarily commits himself to a hospital, there is a deprivation of liberty. Whatever else there maybe, there is that.
Norman J. Watkins: That's correct, that's correct, but in as much as it voluntary, no additional proceedings are required.
Potter Stewart: So in other words, even if you're right in all of your submissions on what you've just been telling us, there still remains a deprivation of liberty.
Norman J. Watkins: To the -- that's correct. As a factual matter, the question which first must be addressed though is whether or not as a constitutional matter, when parents act on behalf of their children in this context --
Potter Stewart: Whether it's the equivalent of a voluntary admission.
Norman J. Watkins: That's correct, that's correct.
Potter Stewart: That's the point isn't it?
Norman J. Watkins: The analysis that we would urge upon this Court is of course the Court's analysis that was used in Mathews versus Eldridge whether or not in Pennsylvania, the children have been adequately protected throughout the process. In Pennsylvania, before a child can be admitted upon the application of his parent, there must be at least one and most times to medical determination independent indicating the need for treatment. Moreover, from the moment the admission begins, the child has the right to initiate judicial proceedings, to test the validity of the treatment, to test the validity of the decision of the physicians and the parents and to test whether or not in fact the entire procedure was constitutional, if you will. Every issue is presented in this case could well have presented and presented through habeas corpus proceedings in state court.
Warren E. Burger: How does the child initiate that?
Norman J. Watkins: The child may initiate that in a number of ways. Obviously, the child can initiate it himself if competent enough to do so in sufficient maturity. The child may also do so through a friend, through a next friend, through -- it is not institutionalized by way of statute that the child is automatically appointed and advocate. He is --
John Paul Stevens: What contests does Pennsylvania held that the child may do so over the objection of his parents?
Norman J. Watkins: The Pennsylvania law is very clear that any person confined --
John Paul Stevens: Has the Court ever held that he may do so over the objection of his parent?
Norman J. Watkins: I'm not aware of any decisions on that point, but I think the statute is so clear that it would not be (Voice Overlap).
John Paul Stevens: Well, what if the parent can waive any -- if the parent can waive all the child's rights, why couldn't the parent waive the right to bring this proceeding?
Norman J. Watkins: Because as I say, in contra distinction to the statute which provides that a parent may apply for admission, the statute regarding habeas corpus indicates very clearly that any person who is institutionalized or in a facility may challenge the basis.
Potter Stewart: Yes, but a child under ordinary -- quite apart from this particular context or setting, generally in Pennsylvania, a parent speaks for his child, doesn't it?
Norman J. Watkins: That's correct.
Potter Stewart: And wouldn't that also then presumably be true in this context?
Norman J. Watkins: I would assume that if a child initiated such a proceeding, the parent's voice would be given heavy credence by the court, but I don't think it will be --
Potter Stewart: Can a child -- can a 10-year-old child bring a lawsuit in Pennsylvania in his own name?
Norman J. Watkins: Not normally, but he may do through a next friend.
Potter Stewart: Through a next friend.
Norman J. Watkins: That's correct or a guardian.
Potter Stewart: And by the guardian and not the guardian in the absence of an order to -- the contrary is the parent, isn't that correct?
Norman J. Watkins: Normally, however that need not necessarily be true. A guardian other than the parent can be appointed. That was done in this case.
Thurgood Marshall: How would a 10-year-old child go about getting a guardian?
Norman J. Watkins: Apply to the Court, Your Honor.
Thurgood Marshall: How would a 10-year-old apply to the Court?
Norman J. Watkins: In the context of habeas corpus, I assume that would be --
Thurgood Marshall: I said, how would a child, 10-year-old child go about applying to a Court?
Norman J. Watkins: Well, the only suggestion --
Thurgood Marshall: Wouldn't it first have to know where the Court was?
Norman J. Watkins: Well, the only thing I can suggest is that they would do so the same way they have done here and that is by happenstance being put in touch with the counsel.
Thurgood Marshall: Well a question was asked earlier, how many other case have you had like this one?
Norman J. Watkins: In Pennsylvania, none that I'm aware of.
Thurgood Marshall: In the world.
Norman J. Watkins: None that I'm aware of, other than the proceeding one, Mr. Justice Marshall.
Thurgood Marshall: Alright, I mean a 10-year-old child doesn't know about legal proceedings.
Norman J. Watkins: That's --
Thurgood Marshall: Does a 10-year-old child know what a writ of habeas corpus is?
Norman J. Watkins: That's correct but I think the point that the proceedings exist is that if in fact (Voice Overlap) -- if in fact it is suspected that the child is being treated when he does not need to be treated, anyone can initiate the proceedings. It need not be the child.
Thurgood Marshall: Well, does the child know whether he is being treated properly or not?
Norman J. Watkins: No but --
Thurgood Marshall: A 10-year-old.
Norman J. Watkins: Presumably not, but the point is that someone else may. The child's friend, the child's --
Thurgood Marshall: But wouldn't most of the child's friend be 10-year-old?
Norman J. Watkins: In this case --
Thurgood Marshall: And no smarter than he is?
Norman J. Watkins: In this case, Your Honor, the child's next friend was a very competent advocate. And I would assume that that situation could exist elsewhere.
Thurgood Marshall: Well, how many other cases of that beautiful advocate filed in Pennsylvania?
Norman J. Watkins: Well there's very active advocacy program in Pennsylvania. I'm not certain of the numbers; I'm not certain if there are any.
Thurgood Marshall: How many cases like this had been filed?
Norman J. Watkins: In Pennsylvania courts? I'm not --
Thurgood Marshall: In the world.
Norman J. Watkins: In Pennsylvania courts, I know that there have been cases on behalf of juveniles, numbers of them.
Thurgood Marshall: How many?
Norman J. Watkins: I can't quote you numbers, Mr. Justice Marshall. Admittedly, it's difficult, admittedly it's difficult but just as a child --
Thurgood Marshall: Then why does the argument hold in any case come up here involved in incarceration without due process to say, “Well, you can remedy that by habeas.” You don't want us to establish that principle, do you?
Norman J. Watkins: The legislature has --
Thurgood Marshall: Do you?
Norman J. Watkins: In this case, I would not concede.
Thurgood Marshall: You don't want to say that the state can put anybody in jail if he allows him to file a writ of habeas corpus.
Norman J. Watkins: Absolutely not.
Thurgood Marshall: I hope not.
Norman J. Watkins: The purposes of that confinement are manifestly different, however, than the purposes of the confinement in this case. And I should point out that the confinement which has been attacked and adjoined in this case. The treatment runs the gambit not only from institutions but all the way down to group homes and small family-like setting. So that many of the arguments which may or may not exist indicating that their need be safeguards against such treatment really do not apply with respect to this Court's order. I would also urge that one of the primary reasons that we import or place importance on these procedures is to minimize the child's admitted interest in not being erroneously admitted to a mental health and mental retardation facility. I would suggest that the record in this case as well as Pennsylvania statutes indicate very clearly that rigorous safeguards are in placed to assure that in fact this medical determination of the need for treatment is appropriate and that the admission and the treatment undertaken is appropriate. It's important to know that in Pennsylvania there are required by law periodic reviews of the child's treatment program. So, that if it turns up that the child no longer needs treatment, by law the child must be discharge from treatment.
Potter Stewart: Is this or all the same procedures equally applicable to adults who have voluntarily committed themselves?
Norman J. Watkins: Yes Mr. Justice Stewart. There is --
Potter Stewart: Pennsylvania equates the two?
Norman J. Watkins: Pennsylvania equates the two with respect to treatment not with respect to process for admission other than equating an act of a parent for the act of the child.
Potter Stewart: Yes, but that exception it equates voluntary commitments or voluntary committed?
Norman J. Watkins: That's correct.
Potter Stewart: For an adult, they're done on behalf of himself or herself. For a child, they're done beyond on behalf of that child by his or her parent?
Norman J. Watkins: That's correct Mr. Justice Stewart.
Potter Stewart: So, beyond that precisely identical, is that right?
Norman J. Watkins: Absolutely. One of the central arguments to the plaintiffs' case in this case is that we should mistrust the diagnosis of professionals in the field of psychiatry and in the field of mental retardation.
Byron R. White: Well, under in Pennsylvania, will the Pennsylvania State Institutions take children who need treatment but it could be treated at home?
Norman J. Watkins: Pennsylvania, the law with respect to the mentally ill is very specific that they must be provided the least restrictive setting upon which treatment may be -- where a treatment maybe afforded. The law is not that clear with respect to the mentally retarded that is the older statute. However, there are -- it is the policy of the executive --
Byron R. White: So parents can't get to state just to warehouse their children?
Norman J. Watkins: Absolutely not. Not only because of the legal mandate but the state has an interest in keeping the roles of its facilities down. It's expensive to provide treatment in Pennsylvania like every other state has the scarcity of resources. It's simply it's not easy to gain access to these facilities (Voice Overlap).
Potter Stewart: The state law requires?
Harry A. Blackmun: You make that same statement in your brief like ever other state. Would it shock you if I said, “I know of a states where there is overflow capacity, unused capacity in state mental institutions.” Since the advent of the tranquilizer? What's the matter at Pennsylvania?
Norman J. Watkins: Pennsylvania -- Mr. Justice Blackmun, Pennsylvania is making a strong effort at lowering the population of its facilities and has done a great deal toward that. The fact of the matter is that resources are not being placed in institutions but rather diverted to community resources. It's a long and arduous task but at present time with that effort in mind, it's simply is very difficult to gain admission to a facility of Pennsylvania.
Harry A. Blackmun: Well, I'm merely saying that I question the accuracy of your statement because I know states where there is surplus room in state institutions.
Norman J. Watkins: I may have taken -- I may have taken liberty. I know that it generally referred to in studies as a common national problem the overuse and over utilization and under staffing of facilities throughout the country. However, there're maybe states in far better shape than Pennsylvania in that respect. The point that I was making is that lower court's finding and central to the plaintiff's case I think is a presumptive mistrust of medical determinations in this area. And I suppose that the mistrust brings a large part from the nature of the treatment that often follows a medical determination in this area. I would suggest first and foremost that the evidence in this record does not indicate that any of the medical evaluations and recommendations for treatment were in fact erroneous, were in fact inadvisable. I would further suggest that the Court made no findings to that effect and I would suggest that that if indeed it is difficult for psychiatrist and psychologist to make these difficult determinations, it probably would be equally as difficult for lawyers and judges to do so who were completely untrained in the field. It's this lack of merit for the adversary proceedings that is most troubling to me. We are going to inject into the diagnostic process a procedure which had best is going to prove to probably ratify any unchecked medical opinions that are offered at the trial and if not it's going to prove as a debating ground for professionals in the field and I question whether or not the tribunal would be qualified to determine the final result accurately. It's important to note that Pennsylvania if there is disagreement with respect to the retarded. If there is disagreement with between professionals as to the admission, the admission simply does not take place and may not take place.
Harry A. Blackmun: Mr. Watkins, I think we were told that in Georgia if the institution determines that the child could better be treated at home but the parents say, “No!” We simply can't take care of the child at home. But then, the institution would take the child, are you telling us that in Pennsylvania in that situation, the institution could say no? The parents must take the child back?
Norman J. Watkins: With respect to a mentally ill child, yes. The institution must say, “No!” If treatment (Voice Overlap) --
Harry A. Blackmun: But if it says no then the parents must take the child, is that it?
Norman J. Watkins: Provided that the professionals do not determine that that would endanger the child.
Harry A. Blackmun: Well, as I understand the hypothetical in the Georgia case was that the institutions said that the child would be better off at home but the parents refused to have the child at home saying, “No, too disturbing." We simply couldn't get on the child on that circumstance. The institution will take the child. That's not the case in Pennsylvania?
Norman J. Watkins: With respect to the mentally ill --
Harry A. Blackmun: But how about as to the retarded?
Norman J. Watkins: That is not the case as far as I know. The determination must be made by the institution independently of any recommendations that come to it that the child is in fact retarded and in fact needs the treatment at that facility. So, that absent those findings by the state, there could be no admission.
Warren E. Burger: You were going to describe the situation that is to the retarded now, what about them?
Norman J. Watkins: In Pennsylvania, the mental and retarded may not be admitted to any state or private facility without two independent determinations that that admission is required. Furthermore, the children 13 years of age and older under the regulations are provided if they object in any way orally and writing to the continuation of the treatment they automatically provided counsel and automatically provided what amounts to an involuntary commitment proceeding. That's for children 13 and over -- children 13 and under is presumed that they cannot competently object. A presumption which I might add carries throughout medicine in Pennsylvania. Children under the age of 18 in Pennsylvania unless they are married or pregnant or seeking pregnancy services simply may not consent to or withdraw from treatment absent parental consent. And thus, the program with respect to mental illnesses is very similar.
John Paul Stevens: Mr. Watkins, could I ask you a question about the procedure maybe they're from the record but the individuals who make the determination that the child is in need of care or treatment if I forget the statutory language and also the people who make the annual review under the statute. Are they full time staff members or there some part-time people who were also in private practice?
Norman J. Watkins: In both cases, there would be full time staff.
John Paul Stevens: They would be full time employees at the state?
Norman J. Watkins: Yeah. No, there're maybe exceptions to that but that's a general --
John Paul Stevens: The general --
Norman J. Watkins: The statute and regulations require with respect to the retarded that the staff at the facility -- the medical staff at the facility determine and although there are some part-time medical staff at these facilities, there are in every facility, there is a body of full-time medical staff. Now, who does --
John Paul Stevens: Do we know how many of those people have to be doctors, MDs?
Norman J. Watkins: How many have to be?
John Paul Stevens: Yes.
Norman J. Watkins: In the cases of the retarded, there has to be a determination by either a physician or a psychologist who is trained in the area of medical retardation. With respect to the mentally ill, it must be a medical determination.
John Paul Stevens: Must be -- alright.
Norman J. Watkins: Must be a medical determination.
Thurgood Marshall: When you say doctors, you mean just the doctor?
Norman J. Watkins: Excuse me, Mr. Justice Marshall?
Thurgood Marshall: Do -- you don't mean a psychiatrist. You just have to be a doctor?
Norman J. Watkins: With respect to the mentally retarded, that's correct.
Thurgood Marshall: Well then they have to be more than just a doctor. Could obstetrician do it?
Norman J. Watkins: An obstetrician presumably if that physician felt competent to make this medical diagnosis and he was licensed to do so, he could make the diagnosis and it would be unless the people in the medical people in our facility disagree that that recommendation would be given credence, yes. The --
Byron R. White: Are you here -- does this judgment that's under review here affect to the institutionalization in private facilities?
Norman J. Watkins: Absolutely, involved in this case --
Byron R. White: Are you making the same argument with respect to them or different argument?
Norman J. Watkins: The same arguments plus the assertion that I've made in my brief that with respect to admissions to private facilities, there's simply is no state action. The state employees are not involved, state employees don't provide the examinations, state employees in fact play no part at the admission process and in fact, the state receives no notice necessarily of these admissions. The only contact the state has with respect to these and they're probably over 350 private facilities involved. The only contact that it would have is the fact that the legislature has provided the rules under which they are suppose to provide these admissions.
Byron R. White: How did the District Court deal with that argument at state action?
Norman J. Watkins: The District Court in my view dealt with it incorrectly and applied the wrong test.
Byron R. White: But how they did deal with it?
Norman J. Watkins: It simply found that because the admissions were obtained pursuant to state law and I believe those are directional -- pursuant to state law --
Byron R. White: Pursuant to state statute?
Norman J. Watkins: -- then the state was involved. I suggest that that is not the test this Court has set down in cases such as Flagg Brothers and Metropolitan Edison and similar cases. So, that what we have involved here so that we're entirely clear are not only the mentally ill but the mentally retarded and not only state institutions but private as well and not only institutions but group homes and community based treatment facilities as well. Any time, any parent seeks in-patient psychiatric or mental retardation habilitation services for his child in Pennsylvania there must be that full panoply of due process unless those procedures are waived.
Byron R. White: Was this judgment on remand before or after the Flagg Brothers case? Do you know that case, Flagg Brothers?
Norman J. Watkins: I know that -- I simply just I don't know. I can't put the dates together at this particular moment. Although it's clearly was after Metropolitan Edison, I think that the judgment run the file of a test in that case as well or certainly the Court's teachings in that case.
Warren E. Burger: To what extent is the State of Pennsylvania regulate the private institutions, do they just license them, do they inspect them?
Norman J. Watkins: There maybe a limited inspection, none that I'm aware of and none that has been brought before the Court. There's nothing in the record on this as far as the law provides merely a licensure or approval of the facility to dispense services.
William J. Brennan, Jr.: Do they regulate staffing? Does the state regulate that?
Norman J. Watkins: Absolutely not Mr. Justice Brennan.
Byron R. White: But do they forbid institutionalization in a private hospital unless these procedures are satisfied?
Norman J. Watkins: That is the state law.
Byron R. White: Uh-huh.
Norman J. Watkins: There is no regulatory body to approve each admission or to see that in fact that is followed. One presumes that these facilities are following state law. The fact of the matter is that in Pennsylvania and involved in this case are a number of facilities that bear no relationship whatsoever to what we normally have in mind when we talk about mental institutions. Facilities that may indeed be private schools or the like that have been because of some special cadre of professionals that they employ have been approved by the state to provide these services when necessary. The fact of the matter is that the lower court's order would require treatment of all of those children as prospective mental patients. I think that this clearly is going to be injurious to the children, it certainly not going to be conducive to the undertaking to serious undertakings, the serious undertakings that area taken place in those facilities. Thank you, Your Honor.
Warren E. Burger: Mr. Ferleger?
David Ferleger: Mr. Chief Justice and may it please the Court. I'd like to begin by correcting a number of errors in Mr. Watkins presentation. First, the habeas corpus statute in Pennsylvania page 6 of his brief indicates that the courts have jurisdiction over habeas cases only when the person has been committed by a court or by a two-doctor medical certificate but that statute has been declared unconstitutional. If a child could get into court under habeas, I believe the statute would require the court to reject that petition. Secondly, under the states --
Warren E. Burger: You mean Pennsylvania doesn't provide habeas relief or confinement generally?
David Ferleger: The habeas corpus statute with regard to mental patients is at pages 5 and 6 of the brief and that --
Warren E. Burger: Of your own brief?
David Ferleger: Of Mr. Watkins brief, the blue colored brief and that gives jurisdiction and venue on a several courts of the commonwealth for petitions in Sections 1, 2, and 3 indicate that it has to be a place where a court has ordered the commitment. For the mentally retarded, I want to note that as Mr. Justice Marshall raised, the states regulations permit the retarded to be committed --
John Paul Stevens: Mr. Ferleger, before you leave the first point, why isn't the language of subparagraph A quote on page 5 broaden up to cover a child's petition? Subparagraph B just talks about the grounds he may allege. I don't think B is exclusive.
David Ferleger: No, B is not all exclusive. I'm talking about C which is the jurisdictional section Mr. Justice Stevens.
John Paul Stevens: Oh! I see. I see but the language of A would seem to cover any child.
David Ferleger: The language of A is more general but when we get to see which gives where courts have jurisdiction, I believe that that would exclude juveniles.
Thurgood Marshall: If a child was found in an institution and the parents didn't know where the child was and found the child in an Institution of Pennsylvania, there's no way that parent could get that child?
David Ferleger: If the child didn't, if the parent did not know where the child was?
Thurgood Marshall: If they didn't know and then eventually they did find out, that the child was in Institution A, is there no way that parent could get that child out of that? There are no proceedings in Pennsylvania court?
David Ferleger: There aren't so far as I know. I think that the parent --
Thurgood Marshall: Well, I just don't believe it.
David Ferleger: Well, I think that the parent might be able to file some sort of mandamus or other position.
Thurgood Marshall: Some sort of habeas?
David Ferleger: Right.
John Paul Stevens: Mr. Ferleger, I just don't mean to pursue it but you started your argument on that point and the jurisdiction restrictions in the C relate the petition's filed under subsection B both of them, and I was asking you about one filed under subsection A and there's nothing in C that limit the venue of jurisdiction of such a petition.
David Ferleger: I read the separate sections of the statute is the one section of the mental health law that they are and the no jurisdiction is conferred on any court for any kind of voluntary --
John Paul Stevens: And you're saying then that there's no jurisdiction in any court to bring a proceeding pursuant to subparagraph A? It seems to me unlikely.
David Ferleger: So far as I know and I don't believe there's any --
John Paul Stevens: But there's no court that holds that the way to read subsection A as a decision.
Norman J. Watkins: No. For the mentally retarded, the recommendation for commitment can be made by any psychologist, by any physician, by any pediatrician regardless of the knowledge of that person of the needs of the mentally retarded. For the mentally ill, there is no requirement in the commitment statute that there'd be any referral, any outside examination, any separate examination by anyone except the institutions and the psychiatrists. Mr. Watkins is incorrect that the District Court or the plaintiffs have presumed anything about parents, children, the conflicts between parents and children, or between the institutions and the children. The District Court found as a matter of fact that conflicts frequently arise with regard to mental institutionalization of children. The District Court found as a fact that parents often institutionalized their children for reasons that are unrelated to the needs of those children. The District Court also found as a fact that the institution and their staff have --
William J. Brennan, Jr.: Excuse me, what was the evidence in which the conclusion that many parents warehouse, simply warehouse their children? What was the evidence?
John Paul Stevens: With regard to the mentally retarded after remand, only one expert testified for the plaintiffs. The defendants put on absolutely no testimony or evidence regarding the retarded --
Potter Stewart: And what was the testimony then?
David Ferleger: That testimony was that whether or not children find themselves in mental institutions is circumstantial, that parents were subjected to great community practice --
Potter Stewart: This was in Pennsylvania?
David Ferleger: Yes. The expert was familiar with Pennsylvania facilities.
Potter Stewart: Where did he come from?
David Ferleger: It was Linda Glenn who is the Commissioner of Mental Retardation for the State of Massachusetts.
Potter Stewart: She came from Massachusetts.
David Ferleger: That's right and she had toured institutions and facilities in Pennsylvania and was familiar with the conditions in those facilities.
Potter Stewart: Well, we're not talking about the conditions and the facilities, we're talking about how the children got there whether or not they got there improperly, isn't that right?
David Ferleger: That's correct.
Warren E. Burger: How would she know that?
David Ferleger: How would she know --
Warren E. Burger: Yes.
David Ferleger: Linda Glenn is an expert and we stipulate to be an expert on retardation and --
Warren E. Burger: Well, you can be an expert on it, on retardation per se but how does that give you a basis for an opinion that most or great many parents do what she said?
David Ferleger: The District Court found that parents often institutionalized their children for (Voice Overlap) all reasons.
Warren E. Burger: I want to get the expert first. How does the expert know?
David Ferleger: She knows, I believe from her experience working with retarded persons, working with families of the retarded and being aware of the need of those families for assistance. For example, Exhibit 1 of the defendants and application for a commitment to an institution lists 31 community services. And asks whether the parent knew or didn't know that they exist and which ones have been used.The mother of Gina S. wrote, “I don't anything about these services.” Parents as well as the children need some process, some system for dealing with their own emotional conflicts, their own lack of knowledge of alternatives to institutionalization.
Potter Stewart: This is what -- 31 did you say?
David Ferleger: Yes.
Potter Stewart: Services available to children only? Children only or children and adults?
David Ferleger: Children and adults, both.
Potter Stewart: Do you suppose adults would voluntarily commit themselves to mental institutions know about all those alternative services available before they do so?
David Ferleger: No, they don't always know but --
Potter Stewart: Before they do so?
David Ferleger: They may often not know. They have the opportunity however to make decisions on their own about their own rights and what rights they want to waive or give up.
Warren E. Burger: And the children have --
David Ferleger: Well, the children do not in this situation because there is no one with no conflict of interests to help protect their interests.
Potter Stewart: Pennsylvania -- does Pennsylvania have procedures for the germination that a parent is unfit?
David Ferleger: Yes.
Potter Stewart: Or incompetent as a parent?
David Ferleger: Yes.
Potter Stewart: And because of neglect of his child or mistreatment of this child?
David Ferleger: There are neglect and dependency laws in Pennsylvania.
Potter Stewart: There are so there are plenty of procedures if there's a -- they defined a parent unfit as a parent.
David Ferleger: That's correct.
Potter Stewart: And to certify that parent is unfit and if that happens to the child, somebody else replaces the parent in that parent's place and local place --
David Ferleger: With regard to the commitment of children, mentally retarded or mentally ill. It's the feelings of the experts both -- with regard to both classes that a process by which the child has an advocate and all the facts and considerations can be aired. That that process just like the abortion process perhaps in Bellotti versus Baird, that process is most likely to lead to the best resolution of the problems of the child.
Potter Stewart: Well, unlike Bellotti against Baird or the other case, we're not dealing here with a parents veto of a child's wish to have medical treatment, are we?
David Ferleger: We're dealing with the parent's veto of the child's constitutionally protected interest and liberty. The parent is -- and that is why it's similar in my view to the Danforth situation. I think we have to --
Potter Stewart: In Danforth, you had a child who wanted to have medical procedures and the question was whether the parent could veto it. Here, you don't have a child wanting to be admitted to the hospital, do you?
David Ferleger: No, just the --
Potter Stewart: And where the parent vetoing?
David Ferleger: The similarities that in Danforth, what the parent was vetoing was the child's assertion of a constitutional right. In the mental healthcare --
Potter Stewart: Which should have been recognized in Roe and Doe?
David Ferleger: That's correct. The mental --
Potter Stewart: Now, is there a constitutional right not to have medical treatment?
David Ferleger: No, but there is a constitutional right to liberty implicated in mental institutionalization as the Court found in O'Connor versus Donaldson. The constitutional right here is the right to liberty and to be free from the inherent deprivations of liberty in institutionalization.
William H. Rehnquist: Well, but that's not necessary just confine to mental institutions, that could be in a hospital where you placed for treatment for a physical medicine problem, could have not?
David Ferleger: Well, I wanted to respond to that Mr. Justice Rehnquist. I may have some difference with Mr. Cromarty with regard to the coerciveness factor. I don't believe that that is the determinant factor here. As the District Court found, page 1077 in the appendix of the opinion, what we have here is not only the stigma of mental illness, not only the chance of error, not only the greater potential for long term loss of liberty. But we also have the conflict or divergence of interest between the parents and the child that is not present when there are other medical treatments going on. We also have the need here to consider a vast variety of non-medical considerations.
William H. Rehnquist: Well, let me interrupt you for a moment. If your critical element is the potential conflict of interest, and that's what distinguishes it from physical treatment, why shouldn't the factual inquiry that you proposed under the lower court said was referred by a counsel be limited to the issue of whether or not there is in fact a conflict of interest between the parents and the children rather than this elaborate findings whether the child is or is not mentally treatable, that sort of thing?
David Ferleger: I think that the process order by the lower court will result to large extent in that inquiry because --
William H. Rehnquist: But what I'm asking you is why shouldn't it be limited to that inquiry, not whether it should result in that inquiry inter alia?
David Ferleger: The full hearing that the lower court described, the right to confrontation and presence of personal unless waive those rights even the right to counsel would not come into place unless the advocate for the child is independent party who could look at that issue, decided not to waive the hearing or unless the child would confidently decide not to waive.
Potter Stewart: But generally an advocate doesn't make a decision here. An advocate is an advocate and it's a neutral decision maker who makes the decision.
David Ferleger: In our case the neutral decision maker would have to accept of reject the waiver. What the court found is that because of the potentially and the factually found divergences of interest between the parents and the children, you need to put somebody else in the place of the parent for the purpose of deciding that waiver issue--
Potter Stewart: Why our general issue found that there is a conflict of interest --
David Ferleger: The Court found that as a matter of fact and there is no challenge by the defendants that that fact is clearly erroneous.
William H. Rehnquist: And what fact is clearly erroneous?
David Ferleger: That parents often commit children for reasons unrelated to the needs of the children.
Potter Stewart: But if a parent does that, he's an unfit parent, isn't he?
David Ferleger: Not necessarily.
Potter Stewart: Why?
David Ferleger: He may be a parent who is unaware of alternatives. He may be a parent who is pressured by neighbors or community into committing the child. The parent is --
Potter Stewart: What if a parent is pressured by neighbors or community in the beating of his child is an unfit parent, whatever the motivation comes from, isn't it?
David Ferleger: Not necessarily. I think that there are --
Potter Stewart: Wouldn't he be removed if you could show to the proper factfinder in Pennsylvania the juvenile court or whatever that a parent eventually mistreated and beat his child, wouldn't that be grounds for finding him a neglectful parent?
David Ferleger: Yes, it would. If the problem was pressures from outside unrelated to --
Potter Stewart: Wherever the pressures came from.
David Ferleger: Well, there might be situations where the parent would need the help, would need the knowledge, would need the assistance of experts in order to deal with those problems.
Warren E. Burger: Isn't there another alternative that the parent might just be uninformed and confused, not evil in any sense?
David Ferleger: Well, I -- definitely Mr. Chief Justice. What the experts found in our case and what the Court found is a fact that the process that was mandated can help parents deal with those sorts of issues. The process would not harm treatment for the child. The Court found as a matter of fact that --
Warren E. Burger: Well, since there's so much talk about less restrictive measures, aren't there less restrictive measures to inform the parents about these things in holding a full scale hearing?
David Ferleger: There are in the court --
Warren E. Burger: Just counseling by the family guidance counselors?
David Ferleger: The District Court does not require that a full hearing be held in any case. The District Court says, “A number of times that they expect that hearings won't be required in those cases because in many cases there will be agreement between the parent and the child, that the child needs to go into the hospital.” In many cases especially once an advocate gets involved for the child, things will be worked out so that there is not need to insist on it here.
Warren E. Burger: Well, what's the advocates function here under your theory? Is this function to help the doctors decide what's best? The doctors and the parents decide what's best for the child or its his this function to keep the child out of confinement at all cost?
David Ferleger: I don't believe the advocate's function is to keep the child out of confinement at all cost.
Warren E. Burger: That's normally the function of an advocate, isn't it when he is confronted with a confinement problem?
David Ferleger: That is often the function of an advocate. I don't know if that is --
William J. Brennan, Jr.: In federal prosecution, that's his only function.
David Ferleger: Yes, having represented a children and adults in commitment hearings, what you often find is a situation where it's clear that some kind of help needs to be imposed at that point I believe the function of the advocate is to try to work out the best least restrictive --
Warren E. Burger: Well, so now the advocate is stepping into the position of the medical advisor, isn't he?
David Ferleger: No, I don't believe so because --
Warren E. Burger: If he is helping to decide, you said?
David Ferleger: The reason is a very important one that the advocate is not becoming a medical officer. Medical officers are not presumptively mistrusted in my view and the District Court's view. In a commitment to a mental hospital, there are important non-medical considerations that have to be taken into account. The recommendation of a psychiatrist even if the company by the kind of detailed report that was required in Specht versus Patterson does not take care of the social interest consideration of the school, the community, the child's friends, the child's relatives, all the kind of background that is non-medical that must be considered, that the Court held must be considered in Gagnon, in the parole or probationers verification. The doctor can make a recommendation for the medical factors, psychologists perhaps for the retarded because a doctor is not required in retardation because it's not a medical problem. But the doctor cannot make the kinds of social judgments. It's about depriving a person liberty. And in my view and in the tradition of American Law and Pennsylvania Law in particular, commitments to mental hospitals are very different from other kinds of medically recommended treatment.
Potter Stewart: How long historically had there been state mental hospitals?
David Ferleger: The earliest institution I believe was built in 1751 in United States but there were very few until the mid-1800s. And as the payment of being, the courts in Pennsylvania as I indicate in my brief made it very clear that whether it's commitment to a private or public institution, a guardian does not have that power. And a number of early cases, people who have been appointed guardians of mentally ill or mentally retarded individuals attempted to commit their wards to a mental hospital. And the Court said, “You cannot do that. The power of a guardian does not extend to confinement in an institution.”
Potter Stewart: But I suppose that before there were mental hospitals, power of the guardian to lock somebody up in an attic was unquestioned because that didn't involve any action by the state then therefore didn't implicate the Constitution.
David Ferleger: Actually the first commitment in 1676 which occurred in Pennsylvania, the first commitment on record that I know of involved the father petitioning to colonial court in Pennsylvania for the commitment of his son. And the court ordered that a blockhouse be built and that his son be confined in that blockhouse. In Pennsylvania, it wasn't until 1966 when the statute challenge and this case was passed. The parents had the right to indefinitely commit their children to mental institutions.
Potter Stewart: Would you say that again? Excuse me.
David Ferleger: Certainly. Not until 1966 when the statute challenged before and today and this case was passed, that parents have the power to indefinitely sign their children into mental institutions.
Potter Stewart: In Pennsylvania.
David Ferleger: In Pennsylvania. Pennsylvania from the beginning treated mental commitment as far different from any other kind.
Potter Stewart: And prior to 1966, what was the procedure for the so-called voluntary admission of somebody who would not reach --
David Ferleger: For the mentally retarded, sworn affidavits were required and there was an application procedure that required doctors to submit something to a magistrate or a judge for the mentally ill back a while that the procedures changed over the years. The first hint of the voluntary commitment by parents came in 1961 when the legislature allowed parents to sign their children in for up to 30 days after which a court commitment was required. So, there has always been in Pennsylvania a balancing between the individual's interest and the parent's interest, with the parent only getting this awesome power not more than 12 years ago.
Warren E. Burger: We'll resume at 1 o'clock.
David Ferleger: Thank you.
Warren E. Burger: You may continue counsel.
David Ferleger: May it please the Court. I'd like to speak to two issues that came up earlier then refer briefly to several other issues that I believe are important. First, the general issue in this case is how to protect children, people who were likely not be able to protect themselves when their parents maybe unable either by inclination or by information or lack of information to protect them. It's my view that that the procedures ordered by the lower court are a process for determining whether the parents interest, the parents decision coincides with what the needs of the children are. So, in effect we do have a process by which that determination weeding out the proper decisions by parents from the improper decisions, a process by which that can be done.
Warren E. Burger: You haven't talked yet counsel about whether the net effect, the ultimate effect of this might be more damaging the children to take them through this gaunt of an adversary proceeding in which the very procedure itself puts them in opposition to their parents. And of course where the serious emotional condition, they may already be in that posture. Question is what evidences are here if any in the record about whether that would be a good thing for the children?
David Ferleger: The District Court found as a fact in its opinion at page 1081 to 1082.
Warren E. Burger: What's the evidence? I know that the finding was. I'm wondering, I want to know what the evidences to support that finding or whether that's just conjecture on the part of the Court.
David Ferleger: It's not conjecture on the part of the Court. It's based on the testimony of eight psychiatrists, four for each side in the first case and the testimony on the retarded uncontradicted of Commissioner Glenn. That a hearing would not be traumatizing, that there'd be little trauma if at all and if there would be any trauma of course the presence of the hearing can be waived. The tribunal can approve a waiver of the presence --
Warren E. Burger: Presence of the child by the hearing.
David Ferleger: That's correct.
Warren E. Burger: Just within this context as a child what capacity does the child got to evaluate whether he or she should take part from this affair or should not?
David Ferleger: If the child is able, the decision would be the child. If the child is unable within the confines of the canons of ethics as Mr. Cromarty referred to, the waiver would be made by the counsel or advocate with the approval of the tribunal. The other question Mr. Chief Justice you raised earlier on the role of counsel in this hearings, over the lunch break we read the opinion of the lower court and the lower court opinion makes it very clear in footnote 47, page 1079, that the advocate has to protect the child's interest rather than the all or nothing get the child out of the institution. The function of the advocate according to the lower court is to advance the child's best interest.
William H. Rehnquist: But if the potential for deprivation of liberty that calls into existence the right to have an advocate in the first place, isn't it?
David Ferleger: Yes it is. The experts indicate and I believe the record is clear that when you're thinking about institutionalizing someone, you end up weighing the risks and the harms that are inherent in every institutionalization against the potential benefits. And the advocate would have a responsibility for advocating whatever the best interest the child would be and that's --
William H. Rehnquist: But is that all and much different than to defend a lawyer for a defendant and a criminal case advised and the client to plead guilty?
David Ferleger: I think a lawyer in certain criminal case probably has the obligation to advise the client to plead guilty or not. However, in the criminal area I think that there is more of an obligation to avoid the criminal sanctions than the lower court put on the advocate here. The responsibilities placed on the advocate here I think the fact that the lower court isn't required in counsel indicates that it's more of a best interest test rather than looking one way advocacy kind of thing.
Warren E. Burger: Now, when you get to this point in this kind of another premise, you would have decided that the parents are not to make the decision. That's a given factor here, isn't it. But the parents are not to make this decision unilaterally.
David Ferleger: Not unilaterally.
Warren E. Burger: That's no. Having taken the parents out of the decision-making process then some doctors have presumably advise certain treatment and certain procedures. And to go to a hearing, we're taking them out at least temporarily. Taking them out until it has been subjected to an advisory proceeding of inquiry.
David Ferleger: No, we're not taking the parents out. We're not taking the doctor's out. We're bringing them together.
Warren E. Burger: Their decision isn't going to control, the decision of the parents is out.
David Ferleger: Not.
Warren E. Burger: I don't mean the physical presence obviously. The parents are not going to be able to decide this. Now then the doctors who'd been counseling the family. They aren't going to be able to decide that alone. Now you appoint on advocates. And let's say the advocate looks at the whole situation over and then he decides what's best for the children, isn't that making the advocate virtually the judge on the many aspects?
David Ferleger: The case would be presented to the neutral tribunal which would have to approve any waiver of the hearing. That could be if anyone agreed, if the child, parents, doctors, advocate and all agreed that it was best for the child to be institutionalized, there wouldn't be a need for any full-time hearing at all.
Warren E. Burger: Aren't you giving the advocate here a greater role and you're giving either the parents or the medical advisor?
David Ferleger: No, because the unbiased tribunal has to confirm any waiver of any rights.
William H. Rehnquist: Is the unbiased tribunal necessarily judicial when it is --
David Ferleger: No, not at all. The lower court made it very clear that it was not determining what sort of tribunal it has to be, simply neutral and unbiased.
William H. Rehnquist: Is there a right of appeal?
David Ferleger: The lower court did not discuss any right of appeal.
William H. Rehnquist: What's your opinion as to the constitutional requirement of an appeal?
David Ferleger: The state when this Court asked it to give its views on what kind of hearing would be required, suggested that in administrative hearing is subject to appeal through the administrative and then court process that we have in Pennsylvania.
William H. Rehnquist: And do you agree with that?
David Ferleger: I think that would be constitutionally sufficient, yes.
William H. Rehnquist: Do you think you'll be constitutionally required?
David Ferleger: To have an appeal?
William H. Rehnquist: An appeal as well your initial hearing?
David Ferleger: No, I don't think it would. Two other points first. The District Court's opinion is very clear as its order and a record in the case that this case only involves commitment to institutions not to group homes, not to community care. It came up in the May 10, 1973 hearing. It came up in our motion for a class action which said that facilities means institutions for residential treatment. It came up in the courts order specifying that only evidence relating to institutional confinement was admissible and that is absolutely clear. We're only talking about in-patient institutions for residential care.One other matter --
Warren E. Burger: I take it you do agree that the advocate becomes in this setting a very important factor?
David Ferleger: Yes. And I think that the responsibilities of the advocate spelled out in the District Court's opinion along with the waiver provisions and the neutral tribunal's oversight of the whole processes --
Warren E. Burger: Is there anything in these standards to assure that he knows something about the subject?
David Ferleger: Yes. The Court requires that -- the Court says that maybe sufficient to appoint a guardian trained in the mental health field who would advocate the child's interest or alternatively have the power to obtain a lawyer to do so. That way, you have the best of both worlds. You have a lawyer available if it's necessary and you have a trained mental health advocate for the situations where you don't need to get lawyers involved.
Warren E. Burger: Well, the advocate then is a different fellow from this trained mental health person?
David Ferleger: The advocate is the trained mental health person.
Warren E. Burger: You've lost me. You've just been describing two people. You said that a trained mental health person and the lawyer.
David Ferleger: That's right. The Court said that it may not always be necessary to appoint a lawyer then it might be sufficient if the state came up with a procedure to appoint a guardian, a person trained in the mental health field who could advocate for the child's rights or alternatively have the power to obtain a lawyer.
William J. Brennan, Jr.: The trained mental --
David Ferleger: Would not make the decision on commitment. That would be made by the --
William J. Brennan, Jr.: Now, but the advocate would decide whether or not a lawyer --
David Ferleger: Yes. The lower court retreated from its earlier position that counsel was required in every case. It is not correct that three examinations were made for each plaintiff --
William J. Brennan, Jr.: May I ask what folks in the mental health field are trained specially in advocacy?
David Ferleger: The federal law under the Developmental Disabilities Act requires every state to have protection and advocacy system for the retarded. For the mentally ill, many states such as New Jersey which filed in amicus brief here. New York has the mental health information service. There are many legal and non-legal advocacy groups existing in the country, Mental Health Associations, National Association for Private Citizens.
William J. Brennan, Jr.: Well, my question really was, how those in the mental health field get special training in advocacy? Who gives them that?
David Ferleger: The -- I myself have participated on faculty at various continuing education kinds of proceedings to help teach people --
William J. Brennan, Jr.: I see.
David Ferleger: -- how to be advocates in terms of the legal rights of patients.
William J. Brennan, Jr.: I see. Is that widespread, that practice?
David Ferleger: In my view it is and I find myself spending in a lot of those --
Byron R. White: What was the basis for the congressional decision that requires states to have an advocacy system?
David Ferleger: The basis for that and I think there are findings prefatory to the statute.
Byron R. White: Are those citations in your brief?
David Ferleger: No, no, they're not at all. It's the Development Disabilities Act. I can't remember the exact section which describes the need for people and institutions to receive proper treatment, the least restrictive treatment and protection of their rights and it was thought --
Byron R. White: Are these just with respect to retarded children and who are the wards of the state?
David Ferleger: No. Every retarded person whether institutionalized or not in the state, a condition of receiving any developmental disability funds and yearly all states do.
Byron R. White: Are limited to retarded children?
David Ferleger: Limited to retarded and other developmentally disabled.
Byron R. White: (Inaudible)
David Ferleger: Children and adults.
Byron R. White: This federal system wouldn't prevent Pennsylvania from implementing the system that's here under attack.
David Ferleger: No, not at all but it would permit Pennsylvania to use the so-called PNA system Protection and Advocacy System to protect the rights of these children.
Warren E. Burger: Is this person a sort of Ombudsman for the retarded?
David Ferleger: It requires as I understand it more individuals based advocacy. It's not Ombudsman for the whole state one person. There is a staff. There is a system of using and training volunteers as well as professionals to provide independent legal advocacy. The federal statute requires that the state mechanism have the means to institute legal actions as well as simply to be an Ombudsman.
John Paul Stevens: Mr. Ferleger, before you sit down, just roughly how many of these applications of commitment are there in per year, something like that? How big the problem, are we talking about administratively?
David Ferleger: The -- In Pennsylvania --
John Paul Stevens: Yes, in Pennsylvania.
David Ferleger: Or in the country? In Pennsylvania as I recall, the record below on the mentally ill when we had it from 0 to 18, there were during the year 300 or 400 commitments in the whole State of Pennsylvania of children from 0 to 18. Nationally, 60% of commitments of children are children from 15 to 17 so we're probably talking about a rate of relatively few commitments. For the retarded, many institutions in Pennsylvania no longer accept new commitments, institution where plaintiff George S. has not accepted any commitments since 1971 except under court order. As Mr. Watkins indicated, states were treating more and more from the use of institutions.
John Paul Stevens: I'm trying to figure out how many people would be required to do the -- how many such people would as I assume that they probably develop a list but (Voice Overlap).
David Ferleger: The local public defenders and legal services officers many of which have specialized mental health attorneys can easily do the job.
Byron R. White: What are the states doing with the mentally retarded? What if Pennsylvania hasn't accepted this since 1971?
David Ferleger: One institution, the Penhurst institution where plaintiff George S. is confined is a matter of their own policy has accepted no voluntary commitments since 1971. Linda Glenn testified that in Massachusetts they have --
Byron R. White: What is Pennsylvania doing with them saying, “No, we will not accept them?”
David Ferleger: See, the issue is what their needs are and Pennsylvania is attempting to provide non-institutional community services because the question is not simply, if you're mentally ill you're going to a hospital, if you're mentally retarded you do. The question is what you need and is that an institution?
Byron R. White: But the state is accepting them for treatment, it's just a question of where they do it.
David Ferleger: That's right. I didn't make that clear enough. Thank you.
Warren E. Burger: Very well. Mr. Watkins you have two minutes left.
Norman J. Watkins: Mr. Chief Justice, may it please the Court. I have but four points to make. First, in response to two questions I believe delivered by Mr. Justice White, Flagg Brothers. This Court's opinion in Flagg Brothers was decided on May 15th and the opinion of the lower court was rendered on May 25th so that --
Byron R. White: Was that -- do you know where the Flagg Brothers was brought to their attention?
Norman J. Watkins: Unfortunately, my brief was filed well before this Court's decision in Flagg Brothers and I don't recall whether or not my opponent brought it to the Court's attention, I know --
Byron R. White: What do you think have brought Flagg Brothers?
Norman J. Watkins: I think Flagg Brothers would respect to private license facilities indicates that there is no state action involved.
Byron R. White: You mean that in this case?
Norman J. Watkins: In this case.
Byron R. White: So, you think that the District Court was wrong?
Norman J. Watkins: That's correct. Secondly, I believe, Mr. Justice White you inquired us to whether or not Pennsylvania inspects these private facilities and Pennsylvanian all requires at 62 pertinent statutes 911 that an inspection be conducted at least annually as to the conditions in the facility. The third point I wish to make is a clarification of a question addressed by Mr. Chief Justice Burger on whether or not any of or what the basis of Commissioner Glenn's testimony or conclusions was with respect to the erroneous submissions of children in Pennsylvania. The fact of the matter is that not one of the experts that testified in this case examined any of the children involved in this case. And the record reflects this very clearly. For example I cite 2495 (a) of the appendix where Dr. Finder candidly admits that he was not familiar with any of the conditions in Pennsylvania. 635 (a), Dr. Messenger admits that the only thing that he was familiar with at the time of his testimony was that which was provided by counsel dealing with the legal process involved. And finally 1030 (a), where Commissioner Glenn indicated that her only familiarity was with the regulations that was provided to her prior to her testimony. Finally, I would only submit that the coverage of a lower court's order with respect to community-based facilities is clearly addressed in my reply brief, the green-covered reply brief and I defer to that. Thank you very much.
Warren E. Burger: Thank you gentlemen. The case is submitted.