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October 24, 1985

EDNA WOODALL, et al., Plaintiffs,
NICHOLAS BARTOLINO, et al., Defendants

Maryanne Trump Barry, United States District Judge.

The opinion of the court was delivered by: BARRY

 Plaintiffs seek a declaration that the state statute and court rule, N.J.S.A. 30:4-34 and N.J. Ct. R. 4:74-7(h), which govern the entry of judgments for payment of the costs of hospitalization, violate their rights to due process of law most particularly because they allow judgment to be entered without notice or opportunity to be heard by the court. Plaintiffs ask, as well, for a declaration that their Social Security benefits are exempt under federal law, 42 U.S.C.A. § 407 (1983), from any legal process by which defendants might seek to alienate them and that federal law, 42 U.S.C.A. § 1395cc(a)(1)(A) (1983), prohibits defendants from charging them for services already reimbursed through the Medicare program. Plaintiffs also ask this court to grant appropriate injunctive relief and their application for a preliminary injunction is currently before the court. Defendants and the State of New Jersey, whom I have permitted to intervene because this action purports to concern the constitutionality of a state statute and what may be widespread practices within the state, oppose this application.


 Plaintiffs ask this court to certify a class of 1) all Mercer County residents receiving Social Security benefits who have been or in the future will be hospitalized in a New Jersey state psychiatric institution and who have been or in the future will be ordered to pay for their hospitalizations from their Social Security benefits, and 2) all persons who now act or in the future will act as representative payees for such Mercer County residents. Neither the defendants nor the state intervenor has submitted any opposition to class action certification or to the evidence plaintiffs have submitted in support thereof. Nonetheless, this court has an independent obligation to assure itself that class certification is appropriate and that each of the requirements has been met.

 In order for this court to certify a class action, the proposed class must meet the requirements of Rule 23(a) of the Federal Rules of Civil Procedure and also meet the requirements of one of the three subsections of Rule 23(b). Rule 23(a) provides:

one or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 Plaintiffs estimate that approximately 642 Mercer County residents were receiving Social Security disability benefits on the basis of a primary diagnosis of a mental disorder as of December 1982. *fn2" Approximately 126 Mercer County residents are found eligible each year for Social Security disability benefits by reason of mental disorder. *fn3"

 Due to the severity of illness required to be found eligible for Social Security disability benefits, many of these individuals either already have been hospitalized or are at risk of being hospitalized in a state psychiatric institution. Once they are hospitalized, defendant Bartolino, County Adjuster for the County of Mercer, will conduct a hearing and judicial orders against their Social Security benefits may be entered. While certain of these individuals are self payees and thus, of course, are affected by such orders, many have their benefits paid in a representative capacity to a payee who can better manage the funds. *fn4" These representative payees, who are often relatives or friends, would also be proper class members. An undetermined number of Mercer County residents who receive Social Security benefits under the retirement program also suffer from disabling mental disorders which may require hospitalization in a state psychiatric facility, and these individuals would be proper class members as well. Plaintiffs have established that they meet the numerosity requirement of Rule 23(a).

 It is clear to the court that the class, as defined, presents identical questions of law arising from nearly identical factual situations, and thus the commonality requirement of Rule 23(a) is met. Similarly, the claims of the named plaintiffs are typical of those of the class because they arise from the same events or practices or course of conduct that give rise to the claims of other class members, and plaintiffs' claims are based on the same legal theories. 1 Newburg on Class Actions, § 1115 (1977); Weiss v. York Hospital, 745 F.2d 786, 809 (3d Cir. 1984); Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968); Steiner v. Equimark Corp., 96 F.R.D. 603, 609 (W.D. Pa. 1983); Christy v. Hammel, 87 F.R.D. 381, 392 (M.D. Pa. 1980).

 The court must look at two factors in determining whether the representative parties will adequately protect the interests of the class: (1) absence of interests antagonistic to the class, and (b) assurance of vigorous prosecution. Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975); Malchman v. Davis, 706 F.2d 426, 433 (2d Cir. 1983). Plaintiffs stand only to gain, rather than lose, from this action, and I do not foresee any situation arising in which the interests of the named plaintiffs will be antagonistic to any other members of the class. Moreover, because plaintiff Woodall has been threatened with contempt proceedings due to her assertion of a right not to have plaintiff Alfreda K.'s Social Security benefits alienated, and because plaintiffs are represented by the Department of the Public Advocate, which is charged with representing all those hospitalized in state psychiatric facilities who do not have their own attorneys, I believe the representative parties here will more than adequately represent the class.

 Once it is determined that plaintiffs meet the requirements of Rule 23(a), the court must also determine whether they meet the requirements of one of the subsections of Rule 23(b). I believe that this action is most properly maintained under Rule 23(b)(2), which states that a class action is maintainable if:

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

 Plaintiffs challenge the adequacy of the process afforded under N.J.S.A. 30:4-34 and N.J.Ct.R. 4:74-7(h), both on their face and as applied, prior to the entering of judgments requiring payment from whatever source for hospitalization. But the class is defined in terms of those who have been or will be ordered to pay for their hospitalizations from their Social Security benefits and those who now or in the future will act as representative payees for such persons; indeed, the named plaintiffs' only source of income is their Social Security benefits. As so defined, defendants act against the entire class, any relief afforded by this court will affect the entire class equally, and certification under Rule 23(b)(2) will be ordered. *fn5" This court will deal with the issues presented in terms of the class as defined and will leave to another day the question of whether procedures set forth and followed under the statute and rule in circumstances involving payment from other than Social Security benefits are appropriate and lawful. *fn6" As to that question, which implicates important federal/state concerns and relationships, there is nothing before the court to indicate that there now exists a justiciable case or controversy.


 On a motion for a preliminary injunction the court must weigh four factors: (1) whether the moving party has shown a reasonable probability of success on the merits; (2) whether the moving party will be irreparably injured by denial of injunctive relief; (3) whether granting preliminary relief will result in even greater harm to the non-moving party; and (4) whether granting preliminary relief will be in the public interest. SI Handling Systems, Inc. v. Heisley, et al., 753 F.2d 1244, 1254 (3d Cir. 1985); Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 958-59 (3d Cir. 1984).

 On June 18, 1985, this court held an evidentiary hearing on plaintiffs' application. On the basis of the legal arguments and evidence presented to the court and the stipulated facts, this court finds that, as a matter of law, defendants may not seek and use the power of the state courts to enforce the application of Social Security benefits to the cost of hospitalization and, thus, that plaintiffs are likely to prevail on the merits of this claim. This court finds, as well, that without an injunction plaintiffs will be irreparably injured and with an injunction defendants will be but minimally harmed and the public interest will be served. A preliminary injunction will, therefore, be granted as to this issue. Given this result, plaintiffs' claim that "such" judicial orders cannot be obtained without first determining whether the costs of hospitalization are covered by Medicare benefits falls of its own weight.


 The following facts are undisputed:

 1. Defendant Bill Mathesius is the County Executive of the County of Mercer, State of New Jersey.

 2. Defendant Nicholas Bartolino is the County Adjuster of the County of Mercer, State of New Jersey.

 3. Defendant Bartolino's office serves written notice to hospitalized individuals and their court-appointed attorneys of the commitment hearings which are held to determine whether the individual must remain at the hospital.

 4. As part of his duties, defendant Bartolino performs investigations into the financial ability of hospitalized individuals and their relatives to pay for the hospitalization.

 5. Two of defendant Bartolino's employees in the Mercer County Adjuster's office are investigators, whose function is to investigate the financial ability and the residency of each and every patient of a state psychiatric facility who is a resident of Mercer County.

 6. Defendant Bartolino has been appointed by the Superior Court of New Jersey to hold hearings concerning the financial ability of Mercer County residents to pay for hospitalization.

 7. Defendant Bartolino provides notice to representative payees of the hearings he holds to determine the financial ability of the hospitalized individual to pay for the hospitalization.

 8. Defendant Bartolino does not notify the hospitalized individual's appointed counsel of the hearings he conducts.

 9. At these hearings, defendant Bartolino takes testimony from witnesses whose attendance he is authorized to compel.

 10. Based on the above investigations and testimony, defendant Bartolino submits proposed orders to the Superior Court of New Jersey recommending that ...

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