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April 10, 1980

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al., and PATRICIA PARISI, et al., Plaintiffs, against HIGH L. CAREY, individually and as Governor of the State of New York, et al., Defendants.

The opinion of the court was delivered by: BARTELS


Plaintiffs move by order to show cause dated April 2, 1980 for an order requiring defendants to pay all costs and expenses of the Willowbrook Review Panel or, in the alternative, for an order holding defendants in contempt for failing to pay such costs and expenses. They also move to join the Comptroller of New York State, Edward V. Regan, as a defendant herein for the limited purpose of ensuring that all necessary parties are before the Court in the event that defendants are ordered to pay the costs and expenses of the Review Panel.

This application arises out of the deletion by the New York State Legislature from the state's Executive Budget all of the funds ($ 342,300.00) requested by the Governor for the salaries and expenditures of the Willowbrook Review Panel. Since this deletion occurred on or about March 31, 1980, New York State Office of Mental Retardation and Developmental Disabilities Commissioner James Introne has requested the Director of the Division of the Budget to make every effort to have the funds restored by the Legislature or, in the alternative, to find other means of funding the Panel. Until appropriation of such funding is assured, however, Comptroller Regan has refused to authorize payments to the Panel and its staff for work performed after March 31, 1980.

 I. Consent Judgment

 The underlying civil rights action was instituted in 1972 under 42 U.S.C. ยง 1983 on behalf of a class of mentally retarded residents of Willowbrook Developmental Center (now Staten Island Developmental Center), alleging severely overcrowded and unsanitary conditions at the Center, significant shortages of sufficiently trained staff, and inadequate or non-existent medical and educational programs necessary to foster the habilitation and educational development of Willowbrook residents. On April 10, 1973, Judge Judd found that members of the Willowbrook class have a constitutional right to protection from harm, and on April 30, 1975, he approved and signed a Consent Judgment and Order agreed to by the defendants in this action. As an essential part of this Judgment and to insure proper implementation of its provisions, the Willowbrook Review Panel was established as the principal arm of the Court charged with the responsibility for monitoring compliance by the defendants with the provisions of the Judgment and making recommendations to the Court and the parties of steps deemed necessary to implement the Judgment. The precise composition, duties, jurisdiction, and authorization for compensation of the Review Panel and its staff are set forth in detail in paragraphs seven and eight of the Judgment, which need not be recited in full here. It is enough to note the interpretation of the Panel's authority by the Second Circuit Court of Appeals in New York State Association for Retarded Children, Inc. v. Carey, et al., 596 F.2d 27, cert. denied, 444 U.S. 836, 100 S. Ct. 70, 62 L. Ed. 2d 46 (1979):

The authority (of the Review Panel) to make recommendations appears to us to be a well-constructed mechanism for flexible yet orderly and effective implementation and dispute resolution . . . We believe that the Consent Judgment authorized the Review Panel's recommendation as an exercise of the prospective, independent, and creative powers that the judgment accorded to the Review Panel. * * *
In short, we treat the organizational structure established under the Consent Judgment a Review Panel with the power to recommend interpretations of the Judgment and methods of implementing it as analogous to the powers granted, say, to Congress under Section 5 of the Fourteenth Amendment to effectuate the matters of substance and procedure contained in the first four sections of that amendment.

 In defining so expansively the responsibilities of the Panel an interpretation with which this Court is in complete agreement the Court of Appeals referred to the "self-executing mechanism for flexibility built into the Consent Judgment." The signatures themselves created this mechanism to insure that the highest level of care possible would be provided throughout the lives of the class members.

 Defendants are given responsibility for compensation of the Review Panel members and reimbursement for expenses in paragraph 7(c) of the Judgment, which provides:

Review Panel members and Review Panel staff shall receive appropriate compensation from defendants, on a monthly basis, and shall promptly be reimbursed by defendants for reasonable out of pocket expenses incurred in performing the duties of the Review Panel. Defendants shall at their own expense provide appropriate office space, telephone service, postage, clerical staff, typewriters, and similar support equipment to enable the Review Panel to carry out its duties.

 Subsection (g) of paragraph seven provides:

Any interference with the Review Panel, its staff, or with supervisors in connection with their performance of the duties described (in this Judgment), may be punishable as contempt of court and subject to other sanctions provided by law.

 Finally, paragraph two of the Judgment provides:

Within their lawful authority, including the State constitution and applicable State laws, and subject to any legislative approval that may be required, defendants are hereby ordered and enjoined to take all actions necessary to secure implementation of the steps, standards and procedures contained in this judgment and Appendix "A" hereto . . . in a prompt and orderly manner. Specifically, defendants shall delegate among themselves and their subordinates responsibility for the appropriate and relevant actions necessary to implement this judgment. Defendants shall take all steps ...

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