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May 16, 1977



Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens

Author: Rehnquist

[ 431 U.S. Page 121]

 MR. JUSTICE REHNQUIST delivered the opinion of the Court.


Appellees Bartley, Gentile, Levine, Mathews, and Weand were the named plaintiffs in a complaint challenging the constitutionality of Pennsylvania statutes governing the voluntary admission and voluntary commitment to Pennsylvania mental health institutions of persons 18 years of age or younger. The named plaintiffs alleged that they were then being held at Haverford State Hospital, a Pennsylvania mental health facility, and that they had been admitted or committed pursuant to the challenged provisions of the

[ 431 U.S. Page 122]

     Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann., tit. 50, § 4101 et seq. (1969). Various state and hospital officials were named as defendants.*fn1

Plaintiffs sought to vindicate not only their own constitutional rights, but also sought to represent a class consisting of S

"all persons under eighteen years of age who have been, are, or, may be admitted or committed to Haverford State Hospital and all other state mental health facilities under the challenged provisions of the state statute." App. 10a-11a (complaint, [*] 7).I

A three-judge United States District Court for the Eastern District of Pennsylvania struck down the statutes as violative of the Due Process Clause of the Fourteenth Amendment. 402 F. Supp. 1039 (1975). The court also entered a broad order requiring the implementation of detailed procedural protections for those admitted under the Pennsylvania statutes. On December 15, 1975, this Court granted appellants' application for a stay of the judgment of the District Court. On March 22, 1976, we noted probable jurisdiction. 424 U.S. 964.

In general, the 1966 Act, which has been superseded to a significant degree, provides for three types of admission to a mental health facility for examination, treatment, and care: voluntary admission or commitment ( §§ 402 and 403), emergency commitment ( § 405), and civil court commitment ( § 406). At issue here was the constitutionality of the voluntary admission and commitment statutes,*fn2 §§ 402 and 403,

[ 431 U.S. Page 123]

     as those statutes regulate the admission of persons 18 years of age or younger. The statutes*fn3 provide that juveniles may be admitted upon the application of a parent, guardian,

[ 431 U.S. Page 124]

     or individual standing in loco parentis and that, unlike adults, the admitted person is free to withdraw only with the consent of the parent or guardian admitting him.*fn4

There have been two major changes in the Pennsylvania statutory scheme that have materially affected the rights of juveniles: the promulgation of regulations under the 1966 Act, and the enactment of the Mental Health Procedures Act in 1976. At the time the complaint was filed, the 1966 Act

[ 431 U.S. Page 125]

     made little or no distinction between older and younger juveniles. Each of the named plaintiffs was at that time between 15 and 18 years of age. After the commencement of this action, but before class certification or decision on the merits by the District Court, the Pennsylvania Department of Public Welfare promulgated regulations which substantially increased the procedural safeguards afforded to minors 13 years of age or older. The regulations, promulgated pursuant to statutory authority,*fn5 became effective September 1, 1973. The major impact of the regulations*fn6 upon this litigation stems from the fact that the regulations accord significant procedural protections to those 13 and older, but not to those less than 13. The older juveniles are given notification of their rights, the telephone number of counsel, and the right to institute a § 406 involuntary commitment proceeding in court within two business days. Under § 406,*fn7 a judicial hearing is held after notice to the parties. The younger juveniles are not given the right to a hearing and are still remitted to relying upon the admitting parent or guardian.

Although the regulations sharply differentiate between juveniles of less than 13 years of age and those 13 to 18, on April 29, 1974, the District Court nonetheless certified the following class to be represented by the plaintiffs: S

"This action shall be maintained as a class action under Rule 23(b)(1) and (2) of the Federal Rules of Civil Procedure on behalf of the class comprised of all persons eighteen years of age or younger who have been, are or may be admitted or committed to mental health facilities in Pennsylvania pursuant to the challenged

[ 431 U.S. Page 126]

     provisions of the state mental health law (i.e., 50 P.S. §§ 4402 and 4403). This definition of the class is without prejudice to the possibility that it may be amended or altered before the decision on the merits herein." App. 270a.I

On July 9, 1976, after the decision below and after this Court had noted probable jurisdiction, Pennsylvania enacted a new statute substantially altering its voluntary admission procedures. Mental Health Procedures Act, Pa. Act No. 143. The new Act completely repeals the provisions declared unconstitutional below except insofar as they relate to mentally retarded persons. § 502. Under the new Act, any person 14 years of age or over may voluntarily admit himself, but his parents may not do so; those 14 to 18 who were subject to commitment by their parents under the 1966 Act are treated essentially as adults under the new Act. § 201.*fn8 Under the new Act children 13 and younger may still be admitted for treatment by a parent, guardian, or person standing in loco parentis. Ibid. Those 14 and over may withdraw from voluntary treatment "at any time by giving written notice." § 206(a).*fn9 Those under 14 may be released by request of the parent; in addition, "any responsible party" may petition the Juvenile Division of the Court of Common

[ 431 U.S. Page 127]

     Pleas to request withdrawal of the child or modification of his treatment. § 206(b).

Because we have concluded that the claims of the named appellees are mooted by the new Act, and that the claims of the unnamed members of the class are not properly presented for review, we do not dwell at any length upon the statutory scheme for voluntary commitment in Pennsylvania or upon the rationale of the District Court's holding that the 1966 Act and regulations did not satisfy due process.


This case presents important constitutional issues - issues that were briefed and argued before this Court. However, for reasons hereafter discussed, we conclude that the claims of the named appellees are mooted by the new Act and

[ 431 U.S. Page 128]

     decline to adjudicate the claims of the class certified by the District Court. That class has been fragmented by the enactment of the new Act and the promulgation of the regulations.

Constitutional adjudication being a matter of "great gravity and delicacy," see Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring), we base our refusal to pass on the merits on "the policy rules often invoked by the Court 'to avoid passing prematurely on constitutional questions. Because [such] rules operate in "cases confessedly within [the Court's] jurisdiction"... they find their source in policy, rather than purely constitutional, considerations.'" Franks v. Bowman Transportation Co., 424 U.S. 747, 756 n. 8 (1976).


At the time the complaint was filed, each of the named plaintiffs was older than 14, and insofar as the record indicates, mentally ill.*fn10 The essence of their position was that, as matters stood at that time, a juvenile 18 or younger could be "voluntarily" admitted upon application of his parent, over the objection of the juvenile himself. Thus, appellees urged in their complaint that the Due Process Clause required that they be accorded the right to a hearing, as well as other procedural protections, to ensure the validity of the commitment. App. 21a-22a (complaint [*] 46).

The fact that the Act was passed after the decision below does not save the named appellees' claims from mootness. There must be a live case or controversy before this Court,

[ 431 U.S. Page 129]

     mootness of the named plaintiffs' claims does not "inexorably" require dismissal of the action. Sosna, supra, at 399-401. See also Franks v. Bowman Transportation, Inc., supra, at 752-757 Gerstein v. Pugh, 420 U.S.103,110-111,n.11(1975). But we have never adopted a flat rule that the mere fact of certification of a class by a district court was sufficient to require us to decide the merits of the claims of unnamed class members when those of the named parties had become moot. Cf. Sosna, supra, at 402. Here, the promulgation of the regulations materially changed, prior to class certification, the controverted issues with respect to a large number of unnamed plaintiffs; prior to decision by this Court, the controverted issues pertaining to even more unnamed plaintiffs have been affected by the passage of the 1976 Act. We do not think that the fragmented residual of the class originally certified by the District Court may be treated as were the classes in Sosna and Franks.

There is an obvious lack of homogeneity among those unnamed members of the class originally certified by the District Court. Analysis of the current status of the various subgroups reveals a bewildering lineup of permutations and combinations. As we parse it, the claims of those 14 and older and mentally ill are moot. They have received by statute all that they claimed under the Constitution. Those 14 and older and mentally retarded are subject to the 1966 Act, struck down by the District Court, but are afforded the protections of the regulations. Their claims are not wholly mooted, but are satisfied in many respects by the regulations. Those 13 and mentally ill are subject to the admissions procedures of the new Act, arguably supplemented by the procedural protection of the regulations. The status of their claims is unclear. Those 13 and mentally retarded are subject to the 1966 Act and the regulations promulgated thereunder. Their claims are satisfied in many respects. Those younger than 13 and mentally ill are unaided by the

[ 431 U.S. Page 131]

     regulations and are subject to the admissions procedures of the 1976 Act, the constitutional effect of which has not been reviewed by the District Court. Those younger than 13 and mentally retarded are subject to the 1966 Act, unaffected by the regulations. This latter group is thus the only group whose status has not changed materially since the outset of the litigation. These fragmented subclasses are represented by named plaintiffs whose constitutional claims are moot, and it is the attorneys for these named plaintiffs who have conducted the litigation in the District Court and in this Court.*fn12

The factors which we have just described make the class aspect of this litigation a far cry indeed from that aspect of the litigation in Sosna and in Franks, where we adjudicated the merits of the class claims notwithstanding the mootness of the claims of the named parties. In Sosna, the named plaintiff had by the time the litigation reached this Court fulfilled the residency requirement which she was challenging, but the class described in the District Court's certification remained exactly the same. In that case, mootness was due to the inexorable passage of time, rather than to any change in the law. In Franks, a Title VII discrimination lawsuit, the named plaintiff had been subsequently discharged for a nondiscriminatory reason, and therefore before this Court that plaintiff no longer had a controversy with his employer similar to those of the unnamed members of the class. But

[ 431 U.S. Page 132]

     the metes and bounds of each of those classes remained the same; the named plaintiff was simply no longer within them.

Here, by contrast, the metes and bounds of the class certified by the District Court have been carved up by two changes in the law. In Sosna and Franks, the named plaintiffs had simply "left" the class, but the class remained substantially unaltered. In both of those cases, the named plaintiff's mootness was not related to any factor also affecting the unnamed members of the class. In this case, however, the class has been both truncated and compartmentalized by legislative action; this intervening legislation has rendered moot not only the claims of the named plaintiffs but also the claims of a large number of unnamed plaintiffs.*fn13 The legislation, coupled with the regulations, has in a word materially changed the status of those included within the class description.

For all of the foregoing reasons, we have the gravest doubts whether the class, as presently constituted, comports with the requirements of Fed. Rule Civ. Proc. 23 (a).*fn14 And it is

[ 431 U.S. Page 133]

     only a "properly certified" class that may succeed to the adversary position of a named representative whose claim becomes moot. Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128 (1975).

In addition to the differences to which we have already adverted, the issues presented by these appellees, unlike that presented by the appellant in Sosna, supra, are not "capable of repetition, yet evading review." In the latter case there is a significant benefit in according the class representative the opportunity to litigate on behalf of the class, since otherwise there may well never be a definitive resolution of the constitutional claim on the merits by this Court. We stated in Franks that "[g]iven a properly certified class action,... mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to fulfill this function exists." 424 U.S., at 755-756. We noted that the "evading review" element was one factor to be considered in evaluating the adequacy of the adversary relationship in this Court. Id., at 756 n. 8. In this case, not only is the issue one that will not evade review, but the existence of a "properly certified class action" is dubious, and the initial shortcomings in the certification have multiplied. See Indianapolis School Comm'rs v. Jacobs, supra.

In sum, none of the critical factors that might require us to adjudicate the claims of a class after mootness of the named plaintiff's claims are present here. We are dealing with important constitutional issues on the merits, issues which are not apt to evade review, in the context of mooted claims on the part of all of the named parties and a certified class which, whatever the merits of its original

[ 431 U.S. Page 134]

     certification by the District Court, has been fragmented by the enactment of legislation since that certification. While there are "live" disputes between unnamed members of portions of the class certified by the District Court, on the one hand, and appellants, on the other, these disputes are so unfocused as to make informed resolution of them almost impossible. Cf. Fusari v. Steinberg, 419 U.S. 379 (1976). We accordingly decline to pass on the merits of appellees' constitutional claims.*fn15

We conclude that before the "live" claims of the fragmented subclasses remaining in this litigation can be decided on the merits, the case must be remanded to the District Court

[ 431 U.S. Page 135]

     for reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims.

Because the District Court will confront this task on remand, we think it not amiss to remind that court that it is under the same obligation as we are to "stop, look, and listen" before certifying a class in order to adjudicate constitutional claims. That court, in its original certification, ignored the effect of the regulations promulgated by appellants which made a dramatic distinction between older and younger juveniles,*fn16 and, according to the District Court, 402 F. Supp., at 1042, accorded the named appellees all of the protections which they sought, save two: the right to a precommitment hearing, and the specification of the time for the post-commitment hearing.

This distinction between older and younger juveniles, recognized by state administrative authorities (and later by the Pennsylvania Legislature in its enactment of the 1976 Act), emphasizes the very possible differences in the interests of the older juveniles and the younger juveniles. Separate counsel for the younger juveniles might well have concluded that it would not have been in the best interest of their clients to press for the requirement of an automatic precommitment hearing, because of the possibility that such a hearing with its propensity to pit parent against child might actually be antithetical to the best interest of the younger juveniles. In the event that these issues are again litigated before the District Court, careful attention must be paid to the differences between mentally ill and mentally retarded,

[ 431 U.S. Page 136]

     and between the young and the very young. It may be that Pennsylvania's experience in implementing the new Act will shed light on these issues.


This disposition is made with full recognition of the importance of the issues, and of our assumption that all parties earnestly seek a decision on the merits. As Mr. Justice Brandeis stated in his famous concurrence in Ashwander v. TVA, 297 U.S., at 345: S

"The fact that it would be convenient for the parties and the public to have promptly decided whether the legislation assailed is valid, cannot justify a departure from these settled rules...."I

And, as we have more recently observed in the context of "ripeness": S

"All of the parties now urge that the 'conveyance taking' issues are ripe for adjudication. However, because issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy,' we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the 'Case or Controversy' sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties." Regional Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974). (Footnote omitted.)I

Our analysis of the questions of mootness and of our ability to adjudicate the claims of the class in this case is consistent with the long-established rule that this Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Liverpool,

[ 431 U.S. Page 137]

     are first told that it is likely*fn1 that the claims of the named class members are moot. After several pages in which the Court parses decisions like Sosna v. Iowa, 419 U.S. 393 (1975), and Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), for selected clauses and phrases, thereby attempting to distinguish the present case from those earlier decisions where class claims were allowed to reach decision, the opinion ultimately concludes that in their present posture the legal claims of the class members "are so unfocused as to make informed resolution of them almost impossible," ante, at 134, citing Fusari v. Steinberg, 419 U.S. 379 (1975). Accordingly, the Court "[declines] to pass on the merits of appellees' constitutional claims," ante, at 134, and remands to the District Court for clarification of the class certification.

What does all this mean? Most importantly, the Court's class-action analysis must be placed in proper perspective, for it is obvious that the Court's extended discussion of Sosna, Franks, and like cases is a mere camouflage of dicta bearing no relationship to the disposition of this case. Those earlier cases merely recognized the continued existence of Art. III jurisdiction notwithstanding the subsequent mootness of the claims of the named parties to a class action. They said nothing about this Court's discretionary authority to remand a class claim or any other claim to the lower courts for needed

[ 431 U.S. Page 139]

     clarification. Thus, in the present case, the fact that the claims of the named plaintiffs may or may not be mooted, ante, at 128-129, is irrelevant, for, if the condition of the record so requires, a remand to clarify matters necessary to permit proper consideration of the issues in this appeal would be warranted regardless of whether the named parties remained in the case. Similarly, the Court's various suggestions that these named plaintiffs "left" the class in a manner distinguishable from those in Sosna and Franks, ante, at 132, and that the issues presented herein are "not capable of repetition, yet evading review," ante, at 133, are without meaning. This Court's power to remand cases as in Fusari v. Steinberg is in no way dependent on these factors, and is not foreclosed by the existence of Art. III jurisdiction as found in Franks, Sosna, and their progeny.

Indeed, it is clear that for all the extraneous discussion of Sosna and Franks, the decision today follows those cases, for it recognizes that an Art. III "case or controversy" persists in this instance notwithstanding the apparent mootness of the claims of named plaintiffs, and, therefore, confirms that our jurisdiction is constitutionally viable. Otherwise, of course, the Court could not, as it does today, voluntarily "decline" to pass on the merits of the suit, ante, at 134, but rather would be compelled to avoid any such decision. While, as shall be seen, I disagree that the modification of Pennsylvania law warrants even a clarifying remand in this instance, I think it particularly unwise to hide a purely discretionary decision behind the language of Art. III jurisdiction. After all, the action actually taken today by the Court - a remand for consideration in light of intervening law - is regularly ordered in one or two short paragraphs without such fanfare or gratuitous discussion. See, e.g., Philadelphia v. New Jersey, 430 U.S. 141 (1977); cf. Cook v. Hudson, 429 U.S. 165 (1976).

I do not express this objection to the Court's opinion due to a concern for craft alone. Jurisdictional and procedural matters

[ 431 U.S. Page 140]

     regularly dealt with by the Court often involve complex and esoteric concepts. An opinion that is likely to lead to misapplication of these principles will cost litigants dearly and will needlessly consume the time of lower courts in attempting to decipher and construe our commands. Consequently, I have frequently voiced my concern that the recent Art. III jurisprudence of this Court in such areas as mootness and standing is creating an obstacle course of confusing standardless rules to be fathomed by courts and litigants, see, e.g., Warth v. Seldin, 422 U.S. 490, 519-530 (1975) (BRENNAN, J., dissenting), DeFunis v. Odegaard, 416 U.S., at 348-350, without functionally aiding in the clear, adverse presentation of the constitutional questions presented. As written, today's opinion can only further stir up the jurisdictional stew and frustrate the efforts of litigants who legitimately seek access to the courts for guidance on the content of fundamental constitutional rights.

In this very case, for example, we deny to the parties and to numerous amici intervenors and authoritative constitutional ruling for a reason that at best has only surface plausibility. In truth, the Court's purported concern for the "lack of homogeneity" among the children in the class is meaningless in the context of this appeal. The District Court's judgment established and applied a minimum threshold of due process rights available across-the-board to all children who are committed to mental facilities by their parents pursuant to Pennsylvania law. The core of the mandated rights, essentially the non-waivable appointment of counsel for every child and the convening of commitment hearings within specified time periods,*fn2 applies equally to all Pennsylvania children who are subject to parental commitment. In reviewing the propriety of these

[ 431 U.S. Page 141]

     threshold constitutional requirements, our inquiry is not to any meaningful extent affected by the intervening change in Pennsylvania law.*fn3 Indeed, we are informed by Pennsylvania officials that the 1976 amendment, by abolishing parental commitment of mentally ill children over 14, merely serves to eliminate 20% of the members of the certified class from the lawsuit. Reply Brief for Appellants 1. The amendment, however, bears no relationship whatever to the District Court's judgment insofar as it pertains to the remaining 80% of the class - that is, to those children who can still be committed by their parents.*fn4 The Commonwealth of Pennsylvania itself

[ 431 U.S. Page 142]

     acknowledges that "[o]ver three-fourths of the plaintiff class... are subject to the very statutes which the lower court examined, declared unconstitutional, and enjoined." Id., at 3. The Court's disposition of this case, therefore, ensures nothing but an opportunity for the waste of valuable time and energy. At most, the District Court on remand realistically can be expected to confirm that 20% of the children no longer are members of the class, while reaffirming its carefully considered judgment as to the remaining 80%. I do not understand why we do not spare the District Court this purely mechanical task of paring down the class, for nothing would now prevent us from excluding 20% of the children from our consideration of the merits and evaluating the District Court's judgment as it affects the remaining 80%. See, e.g., Franks v. Bowman Transportation Co., 424 U.S., at 755-757.

Nor can the Court's action be justified by its order to the District Court that new class representatives with live claims be substituted to press forward with the suit. For, again, in the posture of this case, this is purely a matter of form. Franks, Sosna, and Gerstein v. Pugh, 420 U.S. 103, 110-111, n. 11 (1975), plainly recognize and act upon the premise that, given the representative nature of class actions,*fn5 the elimination of named plaintiffs ordinarily will have no effect on the "concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions."

[ 431 U.S. Page 143]

     Baker v. Carr, 369 U.S. 186, 204 (1962). Certainly, in this appeal there can be no question of adequate adversity and cogency of argument. Attorneys for the class continue diligently to defend their judgment in behalf of the children who are still within the purview of Pennsylvania's parental commitment law. Pennsylvania equally diligently resists the District Court's judgment and pressures for a controlling constitutional decision. And a vast assortment of amici curiae ranging from other sister States to virtually all relevant professional organizations have submitted briefs informing our deliberations from every perspective and orientation plausibly relevant to the case. In brief, the Court's assertion of its inability "to make informed resolution of" the issues is, in this instance, pure fancy.

I do not believe that we discharge our institutional duty fairly, or properly service the constituencies who depend on our guidance, by issuing meaningless remands that play wasteful games with litigants and lower courts.*fn6 Therefore, I respectfully

[ 431 U.S. Page 144]

     dissent from the Court's disposition of this case. Because the Court does not address the important constitutional questions presented, I too shall defer the expression of my views, pending the Court's inevitable review of those questions in a later case.


* Briefs of amici curiae urging reversal were filed by Curt T. Schneider, Attorney General, and Bruce A. Roby for the State of Kansas; and by Bruce A. Miller for the Michigan Association of Emotionally Disturbed Children.

Briefs of amici curiae urging affirmance were filed by Lawrence E. Walsh, John H. Lashly, and Michael S. Lottman for the American Bar Assn.; by Stanley C. Van Ness for the Department of the Public Advocate, Division of Mental Health Advocacy of New Jersey; by Gary J. Kolb for Michigan Legal Services et al.; and by Robert L. Walker and Peter B. Sandmann for the Youth Law Center.

Briefs of amici curiae were filed by Solicitor General Bork, Assistant Attorney General Pottinger, Brian K. Landsberg, and Judith E. Wolf for the United States; by Patricia M. Wald and Paul R. Friedman for the American Orthopsychiatric Assn. et al.; by Allen R. Snyder for the American Psychiatric Assn. et al.; by Bayard M. Graf, Harold E. Kohn, Samuel E. Klein, and Frank E. Hahn, Jr., for the Devereux Foundation et al.; by Michael A. Wolff for the National Juvenile Law Center; and by Stephen P. Berzon, Marian Wright Edelman, Stephen Wizner, and Joseph J. Levin, Jr., for the plaintiffs in Poe et al. v. Mathews et al. and other cases.

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