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Amer. Fed. State, Co. & Mun. Emp. v. Walker

APRIL 24, 1975.

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO ET AL., PLAINTIFFS-APPELLEES,

v.

DANIEL WALKER, GOVERNOR ET AL., DEFENDANTS-APPELLANTS. — (ILLINOIS ASSOCIATION FOR RETARDED CITIZENS ET AL., INTERVENORS-APPELLEES.)



APPEAL from the Circuit Court of Sangamon County; the Hon. J. WALDO ACKERMAN, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

This action was initiated by the American Federation of State, County and Municipal Employees, AFL-CIO, and its representative at Lincoln State School, Local 425; certain employees of Lincoln State School on behalf of themselves and all other employees of the school; and the parents of two residents of the school on behalf of themselves and all others similarly situated.

Defendants are Daniel Walker, Governor of the State of Illinois, Leroy Levitt, director of the Department of Mental Health; Lawrence Bussard, former superintendent of Lincoln State School for the Mentally Retarded; Paul Klockenga, acting superintendent of Lincoln State School for the Mentally Retarded; and Nolan Jones, director of personnel.

Briefs have also been submitted by the Illinois Association for Retarded Citizens, and Lincoln Parents Association for Retarded Children, Inc., intervenors, and by the guardian ad litem for the residents who were ordered separated.

This appeal is taken by the defendants from an order of the trial court granting the plaintiffs' motion for a preliminary injunction. This motion alleges that there is an undetermined number of residents at Lincoln State School who are "violence-prone." It is alleged that these residents have assaulted and injured other residents and the employees on a continual basis. The order granting the plaintiffs' motion required the defendants to segregate those residents who are determined to be violence-prone. It is from this order that defendants appeal.

The hearing on plaintiffs' motion for a preliminary injunction revealed that a number of residents and employees of Lincoln State School had been subjected to physical attacks, had been beaten, bitten, scratched, thrown against walls, and otherwise injured and intimidated. The evidence showed that such attacks and injuries were a frequent occurrence and were caused by a few residents. It will not be necessary for us to review the evidence concerning this violence in detail, because the defendants do not dispute that a small number of residents habitually and continually assault and injure other residents and employees. The primary issue raised at the hearing, and on appeal, does require us to review the testimony concerning the relief granted by the trial court, i.e., segregation of violence-prone residents.

Ming-Chung Chen is a unit psychologist at Lincoln State School. He has a master's degree in educational psychology from the University of Illinois, a 1-year's internship in clinical psychology, and 1-year's postmaster's study in psychology at Illinois State University. His duties at Lincoln State School included administering psychological evaluation on admission cases, program development, in-service training, and individual counseling and group psychotherapy. Testifying on behalf of the plaintiffs, he stated that, based on his experience, background, and education, there were a few residents at the school, who, because of their destructive behavior, required a special facility with trained personnel to deal with or to modify their behavior problem.

Dr. Robert Sprague, director of the Children's Research Center at the University of Illinois, testified for the defendants. The witness addressed himself to some problems that arise when segregation is used to limit physical assaults. He testified that among those segregated, there would be a tendency to emulate each other's violent tendencies, and, therefore, the situation would deteriorate. By removing the more violent residents, those who remain might become more assertive and more dangerous, that is, the so-called passive individuals, would set up a new "pecking order" of their own. This new order would not necessarily have the same number of physical attacks, but there would still be some attacks. Dr. Sprague also stated that once a resident is segregated, there is great difficulty in re-integrating him back into the institutional community. A further problem results in that it is difficult to determine who is to be placed in a segregated facility, and that there is a strong tendency to use such a facility as a "dumping ground" for undesirables. On cross-examination, Dr. Sprague was asked if segregation would be beneficial to both those residents placed in the segregated facility and those remaining individuals left in the wards. The doctor stated:

"There is some initial short term gain; that is, initially this kind of facility, the immediate problems would certainly be helped, that is the immediate physical attacks would be reduced because the chief instigators are gone, but any time you look beyond the short term gains of, let's say, two to three months, then the disadvantages and the problems, at least in my experience, almost always outweigh the gains."

Later in his testimony, the doctor stated a 3-month period of segregation would reduce the number of attacks without severe adverse results in terms of the people who are separated. The facility used for these segregated residents should be large, the staff ratio should be high, and there should be additional supporting facilities such as physicians and social workers. He stated, however, that there would also be disadvantages during this 3-month period.

Dr. William Sloan, a former director of the Division of Mental Retardation of the Department of Mental Health, also testified for the defense. Dr. Sloan testified that the segregation of aggressive residents from passive residents was not completely without merit. He said that the solution did have defects that were self-defeating. The doctor specifically recommended a program whereby the aggressive residents would remain in their usual residential setting while also engaging in a special therapeutic program to modify their undesirable behavior. The doctor emphasized that the staff is the most important factor in treating these patients, and not where the patient lives. He stated that separation was not the important variable.

Following this hearing, the trial court entered an order granting a preliminary mandatory injunction. In this order, the court required that the defendants: (1) immediately identify those residents who are dangerous to others; (2) immediately separate such persons from the general population and place them in a suitable place under the control of the Department of Mental Health until the cause may be fully adjudicated; (3) insure that those separated be treated upon humane, as distinguished from punitive, considerations; (4) immediately recruit and hire such additional staff as is necessary to provide for the minimal legal and constitutional rights of all the residents affected; and (5) not create a jail-type facility at Lincoln State School to house those persons who are separated in accordance with the order.

In the instant case, defendants do not dispute the fact that there are a small number of residents of Lincoln State School who continually assault and injure other residents and employees. It is conceded that irreparable harm has been inflicted in the past, and that such harm will likely continue in the future. Nor do the defendants dispute the existence of a constitutional right of persons in state institutions to be adequately protected from physical assaults. (See New York Assoc. for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973); and Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972).) Thus, while agreeing that the trial court had the authority to protect the residents of Lincoln State School from harm, defendants contend that the trial court was without power to prescribe the specific mode of relief. Alternatively, defendants argue that any relief granted by the trial court had to be supported by expert testimony.

• 1 The Department of Mental Health has been charged with the responsibility of caring for persons who are institutionalized at Lincoln State School. These persons are entitled, as a matter of law, to "* * * adequate and humane care and treatment." (Ill. Rev. Stat. 1973, ch. 91 1/2, par. 12-1.) Neither this court, nor the circuit court of Sangamon County has the authority, much less the desire, to operate a State mental institution. Furthermore, courts are ill-equipped to take on such a task. However, it is within the particular province of the judicial system to insure that the constitutional rights of all citizens are protected. ...


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