Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 914 - Thomas McMillen, Judge.
Pell and Posner, Circuit Judges, and Bailey Brown,*fn* Senior Circuit Judge.
BROWN, Senior Circuit Judge.
In December, 1979, several hundred higher functioning but mentally retarded adults, under a program of the State of Illinois, were living at and cared for at the North Aurora Center (hereinafter the Center). The Center was a privately owned and operated facility for the mentally retarded. On December 15, the Center closed its doors, giving only 24 hours notice of its intent to do so. Representatives of the Illinois Department of Mental Health and Developmental Disabilities (hereinafter DMHDD) thereupon directed these State-sponsored residents to pack their belongings and moved them to State mental institutions.
Robert W. Phillips (Phillips), who is one of the persons who had been at the Center and was moved to a State mental institution, brought this class action in the district court. The defendants are the governor, officials of DMHDD and the Illinois Department of Public Health. The class that was certified consisted of all persons who on December 15, 1979 resided at the Center and who were transferred by DMHDD to State mental institutions.
The amended complaint seeking declaratory and injunctive relief is succinctly summarized in the Phillips brief as follows:
Plaintiffs' Complaint alleged that the state institutions in which the DMHDD placed them unnecessarily restrict their personal liberties; however, the defendants have failed to develop alternatives which would be less restrictive. As relevant here, plaintiffs allege that defendants' failure to develop less restrictive alternatives violates their rights under the Fourteenth Amendment to the United States Constitution; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and the Illinois Mental Health and Developmental Disabilities Code, ILL. REV. STAT. ch. 91-1/2, § 1-100 et seq. (1981).
As is indicated by the quoted portion of the Phillips brief and is made clear by other parts of the brief, while Phillips contends that the class members are illegally restricted in their liberty of movement in the institutions in which they reside, their main contention is that they have been illegally denied a right to alternative care by placement in a less restrictive community residential setting.*fn1
The district court granted defendants' motion to dismiss the claim based on 29 U.S.C. § 794.
Prior to trial, the district court decided that it would first hear and determine whether the personal freedom of the class members was substantially restricted, whether the class members were receiving adequate rehabilitative services, and whether class members were voluntarily in the State institutions. The court deferred the determination whether the State was making adequate efforts to develop appropriate alternative community residential programs for a later trial in the event Phillips prevailed on the other issues.
The district court held a six day bench trial and determined that Phillips and the other members of the class were voluntarily in the State institutions, that the liberty of movement of the class members was not being illegally restricted in violation of the fourteenth amendment, that the members of the class were not being illegally denied habilitation (i.e. training) in the State institutions in violation of the fourteenth amendment, and that it would not, on the basis of pendent jurisdiction, decide the claim based on the Illinois statute. The district court then dismissed the case.
On appeal, appellants contend that the district court erred in determining that they were voluntary residents in the State facilities and erred in determining that their liberty and their rights to habilitation were not illegally restricted in these facilities in violation of the fourteenth amendment. Appellants also appear to contend on appeal that the district court should have heard and determined whether appellants were illegally being denied less restrictive alternative community residential living and that the case should be remanded for such a hearing and determination. Appellants still further contend that the district court erred in granting the motion to dismiss their claim under 29 U.S.C. § 794 and that it erred in not deciding their claim under the Illinois statute.
We believe that the recent decision by the Supreme Court in Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982), relied upon by the district court, controls this case with respect to the fourteenth amendment claims. There the Court recognized that it was considering for the first time the substantive rights under the due process clause of mentally retarded persons involuntarily committed. And while we decide that the district court did not err in determining that the class members here were voluntarily residing in these State institutions, and even assuming that voluntary residents have some due process rights, we ...