decided: March 31, 1983; As Amended April 19, 1983.
Appeal by the Governor of the State of New York and officials of its Office of Mental Retardation and Developmental Disabilities from orders of the District Court for the Eastern District of New York, John R. Bartels, Judge, entered on April 28 and July 13, 1982. The orders found appellants not to be in compliance with a Consent Judgment entered on April 30, 1975, between appellants and a class consisting of residents of Willowbrook State School, granted modification of the Consent Judgment more limited than appellants had sought, and appointed a Special Master to oversee compliance with the Consent Judgment.
Friendly and Newman, Circuit Judges, and Wyzanski, District Judge.*fn*
The present appeal and a companion case, Docket No. 82-7531, are the latest in a long series of decisions*fn1 spawned by a complaint filed on March 17, 1972, by the New York State Association for Retarded Children, Inc. (NYSARC), other voluntary organizations, and individual mentally retarded persons on behalf of a class of mentally retarded children and adults residing at what was then Willowbrook State School for the Mentally Retarded and is now Staten Island Developmental Center (Willowbrook), alleging that inhuman conditions there violated constitutional rights protected by 42 U.S.C. § 1983. We provide here only so much background as is necessary to our decision.
At the commencement of the action, the resident population of Willowbrook was 5,700, or 65% over its official capacity, reduced from a peak of 6,200 in 1969, and the facility's overcrowding, understaffing, and physical squalor amounted to what one state defendant admitted was a "major tragedy", NYSARC v. Carey, 596 F.2d 27, 29-30 (2 Cir.), cert. denied, 444 U.S. 836, 100 S. Ct. 70, 62 L. Ed. 2d 46 (1979). On April 10, 1973, after five days of hearings and a personal inspection of Willowbrook, the late Judge Orrin G. Judd held that state officials had violated plaintiffs' constitutional right to protection from harm in a state institution, 357 F. Supp. 752, 764-65, and granted preliminary relief ordering immediate hiring of additional staff and improvement of conditions to attain minimal standards of health and safety, id. at 768-69. Subsequently plaintiffs, joined by the United States Department of Justice as amicus curiae, moved to have several state officials held in contempt. Settlement negotiations were pursued during a trial on the issue of noncompliance in late 1974 and were resumed in 1975 under a new state administration. These led to the Consent Judgment of April 30, 1975, which Judge Judd approved, 393 F. Supp. 715.
The 1975 Consent Judgment, reproduced at 1 Mental Disability L. Rep. 58 (1976), specified "steps, standards and procedures necessary to secure the constitutional right to protection from harm" for members of plaintiff class, including reduction of Willowbrook's resident population to 250, all remaining residents to be from Staten Island homes,*fn2 by April 30, 1981. It ordered and enjoined state officials, "within their lawful authority" and "subject to any legislative approval that may be required" to "take all actions necessary to secure implementation of" the detailed "steps, standards and procedures" incorporated in a lengthy appendix to the Consent Judgment and to "ensure the full and timely financing of this judgment". Consent Judgment at 3-4. The court created a Review Panel to monitor implementation of the Consent Judgment, as well as a Professional Advisory Board and a Consumer Advisory Board to assist the Review Panel and state administrators. Id. at 5-11. The court retained jurisdiction to entertain applications for orders construing, implementing, or enforcing compliance with the provisions of the Consent Judgment. Id. at 11-12.
The Consent Judgment ordered that the plaintiff class be provided with "the least restrictive and most normal living conditions possible". Consent Judgment, Appendix A at 1. Included among the requirements implementing this standard were provisions for "clean, adequate and seasonally appropriate clothing", "accessible, private and easily usable toilets and bathing facilities", and "clean, odorless, and insect-free" living quarters. Id. at 1-2. Residents were to receive individualized care, opportunities for education and recreation, and adequate medical services. Id. at 5-16. Restrictions were placed on use of physical restraints, experimentation on residents, and exaction of residents' labor for the upkeep of the institution. Id. at 17-19.
Reduction of Willowbrook's population from 5700 to 250 was to be achieved by relocation of its residents to "community placements" designed "to ready each resident, with due regard for his or her own disabilities and with full appreciation for his or her own capabilities for development, for life in the community at large." Id. at 28. A "community placement" was defined in the Consent Judgment as
a non-institutional residence in the community in a hostel, halfway house, group home, foster care home, or similarly residential facility of fifteen or fewer beds for mildly retarded adults, and ten or fewer beds for all others, coupled with a program element adequate to meet the resident's individual needs.
Id. at 27. This restriction placed on the size of community placements, which we shall call for simplicity's sake the "15 bed/10 bed limitation", would contribute to the "normalization" of the lives of plaintiff class members by approximating as nearly as possible the housing situations of non-retarded children and adults.
The road to compliance has not been easy and has by no means reached its end.*fn3 A prior opinion of this court, 596 F.2d 27, 31-36 (2 Cir. 1979), gives a detailed account of the elaborate enforcement mechanisms set up by the district court. From 1975 to 1980, the Willowbrook Review Panel issued periodic audit reports on the degree of compliance with the Consent Judgment and some 25 formal recommendations for the closing of certain facilities, hiring of medical and psychiatric personnel, provision of educational programming, and similar matters. Judge Bartels, succeeding Judge Judd in the case, embodied many of these recommendations in orders to the defendants and conducted hearings on plaintiffs' motions of November 11, 1976, and September 9, 1978, for findings of civil contempt against state officials.
In one such enforcement proceeding, the Willowbrook Review Panel recommended on May 24, 1979, that in order to comply with the Consent Judgment, the defendants should provide a group of multiply handicapped class members transferred to Flower Fifth Avenue Hospital (Flower Hospital) with "community placements" of no more than three beds each. Defendants refused to implement the recommendation unless a court order compelled them to do so. After an evidentiary hearing, "the parties having agreed in open court on September 11, 1979, to a resolution of said issue," the court ordered that the Flower Hospital group be placed in residential facilities of six beds or less, with the more severely disabled half of this group placed in facilities of three beds or less (the "6 bed/3 bed limitation").
The Willowbrook Review Panel has effectively ceased to monitor compliance with the Consent Judgment since the state legislature in March, 1980, refused to appropriate funds necessary to continue its operations. This court subsequently held that the district court could not compel the Governor of New York and its comptroller to reinstate funding for the Review Panel in defiance of the legislature and of state law, 631 F.2d 162, 166 (2 Cir. 1980). With the demise of the Review Panel, counsel for the plaintiff class brought charges of noncompliance directly to the district court's attention. As of August 31, 1981, 1369 members of the original class remained at Willowbrook awaiting placement and 999 had been transferred temporarily to other large institutions. Of the level of sanitation, resident care, and maintenance at Willowbrook revealed by audits in March and September, 1981, we shall have more to say hereafter.
Plaintiffs moved on May 22, 1981, for an order declaring that the defendants were not in compliance with provisions of the Consent Judgment relating to clothing, nutrition, environment, staffing, programs and services, and community placement, and for an order referring further issues of compliance with the Consent Judgment to a Special Master. On the same day, defendants moved pursuant to F.R.Civ.P. 60(b) to modify the 15 bed/10 bed limitation in the Consent Judgment and the 6 bed/3 bed limitation in the Flower Hospital Order to a 50 bed limitation. After extensive discovery and 25 days of testimony, the district court on April 28, 1982, 551 F. Supp. 1165, issued the decision prompting the present appeal.
Judge Bartels, while not doubting "the good faith of the defendants in attempting to comply with the Judgment", Opinion at 551 F. Supp. 1179, found that they had failed to attain its standards for sanitation, maintenance, clothing, programming, special therapies, recreation, nutrition, and staffing. He ordered defendants to comply in these respects "with all deliberate speed", but extended the deadline for finding community placements for plaintiffs to April 1, 1985, Opinion at 1192. The decision further provided that a Special Master be appointed, in place of the defunct Review Panel, to monitor compliance with the Consent Judgment. Finally, Judge Bartels ordered modification of the Flower Hospital Order's 6 bed/3 bed limitation to a 6 bed/4 bed limitation, but denied defendants' motion to modify the 15 bed/10 bed limitation in the Consent Judgment. By order dated July 13, 1982, Judge Bartels named Dr. Rudy Magnone as Special Master and enumerated his duties and powers.
II. FINDINGS OF NONCOMPLIANCE
Defendants attack the district court's findings of non-compliance with the Consent Judgment on two grounds. First, they charge that the district court's findings were based on inadmissible evidence obtained pursuant to a discovery order so fundamentally unfair to defendants that it amounted to an abuse of the court's discretion. Second, they attack the findings themselves as "clearly erroneous". Neither ground warrants reversal of the district court's findings of noncompliance.*fn4
The district court's order of July 7, 1981, made over defendants' objection,*fn5 permitted plaintiffs' counsel, consultants, and experts to inspect the Willowbrook facilities, "take photographs, make observations, take notes, form conclusions and interview any class member, staff member or employee desired outside the presence of defendants," their counsel and representatives.*fn6 Plaintiffs' representatives were instructed to minimize disruption of defendants' operation and to limit the number of observers on any one inspection to four. Defendants were instructed to allow their employees to answer all questions put to them by the visitors. Defendants now charge that as a result of this order, hearsay statements of unidentified Willowbrook staff members, unsubstantiated observations of plaintiffs' expert witnesses, and prejudicial photographs were admitted into evidence and were expressly relied upon in the district court opinion.*fn7
In challenging the propriety of the discovery order, defendants rely principally on Belcher v. Bassett Furniture Industries, Inc., 588 F.2d 904 (4 Cir. 1978), an employment discrimination case in which an order permitting inspection of defendant's plant and questioning of its employees by the plaintiff's expert was reversed. That decision correctly states the standard to be used in deciding whether, under F.R.Civ.P. 26(c), a discovery order such as this one is unduly burdensome: "Under this subsection, the degree to which the proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection." 588 F.2d at 908. The danger, there as here, was that "interrogation of the employees, conducted informally" could amount to "a roving deposition, taken without notice, throughout the plants, of persons who were not sworn and whose testimony was not recorded, and without any right by the defendant to make any objection to the questions asked. Presumably, on the basis of such interrogations, the expert would base his testimony." Id. at 907. The Fourth Circuit found that this danger, combined with the burden of disruption of defendant's ...