Townsend (law student), Onondaga Neighborhood Legal Services, 633 S. Warren St., Syracuse, NY 13202, (315) 475-3127. [Here reported: 29,900A Complaint (15pp.); 29,900B Answer (3pp.); 29,900C Brief in Support of Motion for Class Certification & Prelim. Relief (29pp.); 29,900D Order (4pp.); 29,900E Brief in Opp'n to Motion to Dismiss (9pp.); 29,900F Brief (4pp.); 29,900G Plfs' Reply Brief (6pp.); 29,900H Order (2pp.); 29,900-1 Order Allowing Class Action (4pp.).]

In this class action by tenants and/or lessees of a mobile home park against the park's owners and operators for relief from conditions which breach the warranty of habitability and expose plaintiffs to unreasonable health and safety risks, a New York court has issued a preliminary injunction directing defendants to (1) make necessary repairs regarding sewage disposal, streets and roadways, and electrical distribution and service; (2) remove an uninhabited, dilapidated trailer from the grounds around plaintiffs' trailers; and (3) use all rental money which has been deposited with the court for the repairs specified.

The court denied defendants' motion to dismiss the action against them as individually named defendants, rejecting the argument that as officers and directors of the corporate defendant, they cannot be held liable to plaintiffs.

$100 Per Day Statutory Penalty Assessed Against Landlord for Terminating Tenants' Utility Service Was Not Constitutionally Excessive

28,609. Kinney v. Vaccari (Cal. Sup. Ct., June 30, 1980). PlfsAppellants represented by Albert Rizzo, P.O. Box Drawer Z, Healdsburg, CA 95448; Harry Allen. [Here reported: 28,609B Opinion (13pp.).]

The California Supreme Court has held that a $100per-day penalty assessed against a landlord for terminating his tenants' utility service was not constitutionally excessive; the penalty totalled $36,000. California law provides that if a landlord wilfully interrupts a tenant's utility service with the intent to terminate occupancy, the landlord will be liable for the tenant's actual damages and subject to a $100-per-day penalty. The court in Hale v. Morgan, 22 Cal.3d 388 (1978), had held that under certain circumstances, the statute could produce constitutionally excessive penalties. Citing Hale, the appellate court in this case held that the penalty was constitutionally excessive.

The Supreme Court held, however, that the penalties were not constitutionally excessive because they were proportionate to the landlord's misconduct and were necessary to achieve the penalty's deterrent effect. The court noted that (1) although the tenants paid their rent, the landlord refused to pay an outstanding gas bill, knowing that the tenants' service would be terminated; (2) the landlord had no provocation for his conduct; (3) the tenants attempted to mitigate damages by tendering the next month's rent early to have the bill paid, but the landlord refused to accept the rent; (4) the termination occurred in winter and 7 of the 16 tenants were children, including one newborn; and (5) the landlord refused to comply with a TRO issued five days after termination of service and ignored admonitions by the court. In addition to

statutory penalties, the tenants were awarded compensatory damages, attorneys' fees and punitive damages.

The court accepted the trial court's construction of the statute as assessing $100 per day for each rental unit and refused to multiply the sanction by the number of occupants of each unit as requested by the tenants.

Florida Court Holds That Implied Warranty of Fitness Does Not Arise Under Lease of Mobile Home That Is Classified as Real Property

29,778. Solomon v. Gentry (Fla. Ct. App., 4th Dist., July 9, 1980). [Here reported: 29,778A Opinion (3pp.).]

A Florida appellate court has reversed the lower court's decision that the landlord of a mobile home was liable for damages to his tenants' furnishings which occurred as a result of a fire caused by a defective heating unit. The lower court found that the landlord had breached an implied warranty of fitness.

The appellate court found that the mobile home in this case was real property and that no warranty of fitness for a specific purpose arose under a lease of real property. The court acknowledged that a mobile home may be either a chattel or real property, depending upon the circumstances, and that there is an implied warranty that a chattel is fit for the purpose intended. The court concluded that the mobile home was real property because (1) it was not readily transportable since it was on blocks, with the wheels removed; (2) the tenants intended to use it as a residence for an indefinite time; and (3) it was affixed to the ground with sewer and plumbing connections. The court therefore denied recovery to plaintiffs because the court would not extend the implied warranty of fitness for a specific purpose to leasehold estates.

Oregon's Landlord-Tenant Act Held Constitutional

28,795. Marquam Investment Corporation v. Beers (Or. Ct. App., Aug. 11, 1980). Respondent represented by Michael Marcus, Legal Aid Service, 310 S.W. 4th Ave., Portland, OR 97204, (503) 224-4086; Louis Savage, Frank Wall. [Here reported: 28,795B Opinion (29pp.). Previously reported at 14 CLEARINGHOUSE REV. 175 (June 1980).]

An Oregon appellate court has upheld the constitutionality of the state's landlord-tenant act. The act is based on the Uniform Residential Landlord-Tenant Act and has been in effect for three years. The court rejected all of the landlord's constitutional arguments which included equal protection, due process, involuntary servitude, impeding access to courts, unconstitutional taking of property, separation of powers, trial by jury, and impairment of the ability to contract. The court noted that the landlord's arguments were based on the mistaken notion that government may not regulate private dealings, even to balance social inequities and meet public needs.

CLEARINGHOUSE REVIEW

Tenants Challenge Breach of Quiet Enjoyment by New Owners of Apartment Hotel

30,061. Robey v. Sabina Realty Corp. (Ill. Cir. Ct., Cook County, July 30, 1980). Plaintiffs represented by Gordon Waldron, Legal Assistance Fdn., 343 S. Dearborn St., Chicago, IL 60604, (312) 341-1070; Jeffrey Taren, Julialynn Walker, Jeanette Forman. [Here reported: 30,061 A Amended Complaint (16pp.); 30,061B Answer (14pp.); 30,061C Memo in Support of Prelim. Inj. (10pp.); 30,061D Memo in Support of Special Appearance (2pp.); 30,061 E Order (3pp.).]

This class action by tenants of an apartment hotel seeks an injunction against the new owners to stop them from doing major interior demolition and reconstruction work until the expiration of the tenants' written leases. The tenants also seek damages for breach of the covenant of quiet enjoyment and the implied warranty of habitability, punitive damages and damages for emotional stress. The trial court entered a preliminary injunction and ordered the new owners to reinstate switchboard service, maintain utility service to occupied apartments, and repair dangerous conditions.

The court authorized the owners to serve notices of motion upon tenants behind in rent and stated that an order of possession would be entered against tenants who are behind in rent. Tenants who are not named plaintiffs filed special appearances and argued that the court had no jurisdiction over them.

The court certified the class, transferred all claims for possession and damages to another division of the court and dissolved the preliminary injunction, without an evidentiary hearing, on defendants' motion. Plaintiffs are contemplating appealing the dissolution of the preliminary injunction.

Termination of Water Service Constitutes Constructive Eviction; Damages Awarded

29,693. Ristic v. DeLao (Wis. Cir. Ct., Milwaukee County, June 20, 1980). Defendant represented by Lawrence Albrecht, Legal Action of Wisconsin, 1006 S. 16th St., Milwaukee, WI 53204, (414) 645-9022. [Here reported: 29,693A Memo Decision & Order (3pp.).]

A Wisconsin court has held that a landlord constructively evicted a tenant by entering the premises and terminating water service (by removing a four-foot section of pipe). He then brought this action for rent allegedly due.

The court held that no rent was due following termination of water service. The landlord's refusal to restore water service after the building inspector advised him that his actions were illegal was construed by the court as evidence of malicious intent. The tenant was awarded $400 compensatory damages, $250 punitive damages, return of her security deposit and costs.

Case Settled in Attempted Eviction of Tenant Organizer

30,042. Hill Top Village Apartments v. Lester (Fla. County Ct., Duval County, July 31, 1980). Defendant represented by Nickolas Alexander, Jacksonville Area Legal Aid, 604 Hogan St., Jacksonville, FL 32202, (904) 356-8371. [Here reported: 30,042A Complaint (2pp.); 30,042B Answer (4pp.); 30,042C Order (1p.); 30,042D Def's Memo in Support of Motion for Rehearing (4pp.); 30,042E Order (1p.); 30,042F Amended Statement of Claim (3pp.); 30,042G Answer (4pp.); 30,042H Stipulation of Settlement (1p.); 30,042-1 Stipulation of Dismissal (1p.).]

The landlord filed an eviction suit against defendant for alleged material violation of the lease in a federally subsidized housing program. The defendant alleged two defenses: (1) that plaintiff could not bring the action because he was not registered under Florida's fictitious-name statutes and (2) that plaintiff's action was in retaliation for the tenant's organizing of a tenants' union. The court granted the motion to dismiss on the first ground, with leave to amend. It ruled, however, that the pleading on the second ground was defective for failure to serve a verified pleading for temporary injunction on the plaintiff. That issue was briefed by defendants, but the parties subsequently decided to settle the case. Plaintiff will pay defendant's court costs and refund her security deposit in return for defendant's voluntarily vacating the premises.

Tenant's Motion to Dismiss Granted in Mobile Home Park Eviction Case

29,857. Sandev Mobile Home Park v. Rappley (Cal. Mun. Ct., Alameda County, July 23, 1980). Defendant represented by Peggy Hora, Legal Aid Society of Alameda County, 22531 Watkins St., Hayward, CA 94541, (415) 538-6507. [Here reported: 29,857A Demurrer to Complaint (2pp.); 29,857B Memo in Support of Demurrer (5pp.); 29,857C Order (1p.).]

A mobile home park's eviction complaint has been dismissed, without leave to amend, for failure to plead specifically grounds for eviction allowable under California's new Mobile Home Residency Law, Civil Code §§798 et seq.

MENTAL HEALTH

Complaint Seeks Medicaid Payment for Psychiatric Care at Private Hospital

29,976. M. v. Maher (D. Conn., filed Aug. 8, 1980). Plaintiffs represented by Pamela Hershinson, Neighborhood Legal Services, 161 Washington St., Hartford, CT 06106, (203) 2786020; Sue Ann Shay. [Here reported: 29,976A Complaint (18pp.).]

Plaintiff brings this section 1983 class action against the Connecticut Department of Income Maintenance and

HHS (formerly HEW) to enjoin their denial of Medicaid payment for psychiatric care at a private hospital. Plaintiff, an SSI and Medicaid recipient, is a 19-year-old patient at a private psychiatric hospital. The state has denied payment under Title XIX solely because plaintiff is between 18 and 21 years of age but is not a ward of the state.

Plaintiff claims that defendants' policy creates an arbitrary and irrational classification in violation of the equal protection clause of the fourteenth amendment. He claims that by failing to provide Medicaid reimbursement to plaintiff and members of his class for inpatient psychiatric care in private facilities and limiting those which can qualify as a provider to institutions owned and operated by the state, defendants have violated the "freedom of choice" provision of Title XIX of the Social Security Act, 42 U.S.C. §1396a(aX23). In addition, plaintiff claims that defendants have denied him the right to medical assistance to correct or ameliorate a psychiatric defect or chronic condition covered by the Early and Periodic Screening, Diagnosis and Treatment Program of Title XIX of the Social Security Act, 42 U.S.C. §1396d(a)(4)(B).

Consent Order Entered in Case Seeking Community Mental Health Care

17,175. Dixon v. Harris (D.D.C., Apr. 30, 1980). Plaintiffs represented by Margaret Ewing, Norman Rosenberg, Paul Friedman, Mental Health Law Project, 1220 19th St. NW, Washington, DC 20036, (202) 467-5730. [Here reported: 17,175-I Final Implementation Plan (70pp.); 17,175J Memo of Pts. & Auth. in Support of Joint Motion to Amend Proposed Consent Order & Plan (2pp.); 17,175K Consent Order (11pp.). Previously reported at 12 CLEARINGHOUSE REV. 318 (Sept. 1978).]

For discussion of this case, see the Mental Health Law Column, this issue.

Monitor's Report Details Process of Implementing Less Restrictive Alternatives for Mentally Handicapped Persons

20,954. Brewster v. Dukakis (D. Mass., June 1980). Plaintiffs represented by Steven Schwartz, Mental Patients Advocacy Project, Northampton State Hospital, Northampton, MA 01060, (413) 584-1644. [Here reported: 20,954Z-4 Monitor's Report: 8/31/79-6/15/80 (66pp.). Previously reported at 12 CLEARINGHOUSE REV. 747 (Feb. 1979).]

This was a class action which resulted in a consent decree requiring the state to create and maintain a comprehensive system of less restrictive alternatives for mentally handicapped persons who were previously institutionalized at a state hospital. The suit is in its second year of implementation, and a monitor's report has been filed with the court discussing the implementation process. The report notes the numerous difficulties, such as miscalculation of funding, which have impeded the timely implementation of

the provisions of the consent decree. The report also suggests certain systemic solutions, such as budget monitoring, improved community education, and programs for the elderly, minorities and adolescents. The monitor also noted that the community-based programs to which hospital residents were being transferred needed extensive support, in the form of training, clinical supervision and improved personnel policies, including adequate salaries.

Settlement Reached in Challenge to Minnesota's Mental Health Commitment Procedures

30,051. Vickerman v. Hennepin County Probate Court (D. Minn., Aug. 26, 1980). Plaintiffs represented by William Messinger, 412 S. 4th St., Minneapolis, MN 55415, (612) 3333481. [Here reported: 30,051 A Stipulation (120pp.).]

This section 1983 class action challenge to Minnesota's procedures for involuntary civil commitments has been settled by stipulation. The parties agreed to engage in legislative activities in order to seek funds for a proposed system of community residential alternatives, for an additional mental health court judge and for annual hearings on a patient's continued need for hospitalization. The parties also agreed that a class would be certified. In addition, the settlement provides for (1) prepetition screening by a unit independent of the court and county attorney's office, (2) notice to a patient that a petition has been filed, (3) a prehearing detention limit of 72 hours if a patient must be examined on an involuntary basis, (4) an additional prehearing hold only if there is danger of immediate harm, (5) provision for a preliminary hearing on the justification for prehearing detention, (6) court appointment of an attorney when a commitment petition is filed, (7) an independent examination at public expense by the patient's choice of doctor, (8) a requirement that the patient be present at his commitment hearing with exceptions only for certain narrowly defined situations, (9) a requirement that the commitment hearing be a full evidentiary hearing, and (10) 60-day, quarterly, and annual reviews of a patient's need for continued hospitalization, with all review procedures spelled out in detail.

Texas Mental Health Officials Ordered to Remove Youth from Institution for Mentally Retarded Juvenile Offenders and to Provide Residential Treatment

29,771. Wells v. Killough (E.D. Tex., June 9, 1980). Plaintiffs represented by James Todd, Renea Hicks, Advocacy, Inc., 5555 N. Lamar, Austin, TX 78751, (512) 475-5543; Robert O'Keefe, Michael Ball, Reed Martin. [Here reported: 29,771A Complaint (20pp.); 29,771B Defs' Answer (8pp.); 29,771C Memo in Support of TRO & Prelim. Inj. (15pp.); 29,771D Errata (1p.); 29,771E Response to Motion for TRO & Prelim. Inj. (3pp.); 29,771F Magistrate's Report (12pp.); 29,771G Order (2pp.).]

CLEARINGHOUSE REVIEW

The district court has adopted the magistrate's report and granted a motion for a preliminary injunction ordering Texas mental health officials to provide supervised residential placement for a 16-year-old Latino youth who had been placed in a state institution for mentally retarded juvenile offenders. The court further ordered defendants to provide regular intensive psychotherapy for the youth, family therapy and a full medical evaluation.

Plaintiff is named in a class action suit on behalf of juveniles who have been or will be admitted to the institution as mentally retarded juvenile offenders. Plaintiffs seek declaratory and injunctive relief from alleged violations of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 42 U.S.C. §§6001 et seq., the Education for All Handicapped Children Act, 20 U.S.C. §§1401 et seq., section 504 of the Rehabilitation Act of 1973, the eighth and fourteenth amendments, 42 U.S.C. §§1983 and 1988, and state law.

Plaintiffs claim that they have been subjected to racially and culturally discriminatory testing, evaluation and classification prior to commitment. After commitment, plaintiffs assert that they have been subjected to inhumane living conditions, physical abuse and excessive medication and that they have been deprived of rehabilitative services, which has led to depression and increased antisocial behavior.

Court Allows Two-Week Delay in Civil Commitment of Plaintiff Unable to Stand Trial on Criminal Charge

29,831. Thomas v. United States (D.C. Ct. App., July 14, 1980). [Here reported: 29,831A Opinion (11pp.).]

A District of Columbia appellate court has held that equal protection was not violated by plaintiff's continued confinement after he was found unlikely to become competent to stand trial in the foreseeable future and prior to completion of civil commitment procedures. Plaintiff had been committed to a mental hospital in 1977 as incompetent to stand trial on charges of dropping a child out of a window. He complained that his constitutional rights were violated because the government did not begin civil commitment procedures until 14 days after the expiration of a 30-day period allowed by the trial court pursuant to Jackson v. Indiana, 406 U.S. 715 (1972), Under Jackson, if an accused is found unlikely to regain competence in the foreseeable future, the government must pursue civil commitment procedures within a reasonable time or the accused must be released.

In dicta, the court noted that the delay was apparently due to misdelivery of a hospital report and concluded that in the future, the government would be held to the 30-day period, absent a showing of extraordinary cause.

Dangerousness to Possible Unborn Children Not Enough to Meet Statutory Standard for Involuntary Civil Commitment

28,075. Massachusetts v. Nassar (Mass. Sup. Jud. Ct., June 20, 1980). Amicus Curiae represented by Robert Fleischner, Marilyn Schmidt, Mental Patients Advocacy Project, Northampton State Hospital, Northampton, MA 01060, (413) 5841644. [Here reported: 28,075B Decision (6pp.). Previously reported at 13 Clearinghouse Rev. 805 (Feb. 1980).]

The Massachusetts Supreme Court has ruled that while manslaughter of a child resulting from severe malnutrition and abandonment of the child and the mental illness of the parents was sufficient evidence of past violent behavior to meet the statutory standard for involuntary commitment, the state must also prove beyond a reasonable doubt that the couple posed a substantial risk of future harm to other persons. Absent such a determination, the court held, the couple was entitled to a less restrictive alternative than hospitalization.

The case was before the court on its own motion ordering direct review after the trial court judge certified the case to the appellate court. The parents in the case allegedly believed that they had instructions from God not to feed the child and to abandon him. Two older children were removed from the home by the state and a fourth child was also dead. On remand to the trial court conducting the involuntary civil commitment hearing, the judge ordered the couple released.

County Agrees to Provide Mentally Retarded Individual with Continuous Services

29,846. Plaintiff v. Beaver County Commissioners (Pa. C.P., Beaver County, July 14, 1980). Plaintiff represented by Laura Rothstein, Ilene Shane, Carol Colabrese (legal intern), Developmental Disabilities Law Project, Univ. of Pittsburgh Law School, Pittsburgh, PA 15260, (412) 624-6230. [Here reported: 29,846A Complaint (7pp.); 29,846B Answer (3pp.); 29,846C Settlement Agreement (2pp.).]

The settlement agreement in this action provides that the county mental health program will provide the plaintiff, a profoundly mentally retarded young male, with continuous retardation services, including placement in a highly supervised living situation. Plaintiff had been living at home after his release from a state school; and when his behavior became too much for his mother to handle, she unsuccessfully sought community placement for him. The suit alleged that plaintiff was entitled to residential and other retardation services under state statute.

State Hospital Accreditation Report Is Public Record

24,694. Patients of Philadelphia State Hospital v. Pennsylvania Department of Public Welfare (Pa. Commw. Ct., July 21, 1980). Petitioners represented by Judy Greenwood, Community Legal Services, 3156 Kensington Ave., Philadelphia, PA 19134, (215) 427-4885. [Here reported: 24,694D

NOVEMBER 1980

Opinion (14pp.). Previously reported at 12 CLEARINGHOUSE REV. 569 (Jan. 1979).]

A Pennsylvania state court has held that patients in a state mental hospital are entitled to access to an inspection report on the hospital. The report was prepared by a hospital accrediting agency for the state department of public welfare, which licenses state institutions. The court held that the report was a public record because it was a basis for a determination by the department and affected plaintiffs' rights because it dealt with such matters as fire dangers, ventilation and hygiene. The court rejected defendants' claims that release of the report would affect the personal reputations or security of hospital staff.

Preliminary Injunction Issued in Challenge to Court's Method of Assigning and Compensating Counsel for Indigent Respondents in Civil Commitment Proceedings

27,152. Seibert v. Wayne County Probate Court (Mich. Cir. Ct., Wayne County, June 24, 1980). Plaintiffs represented by Frederick Miller, Legal Aid & Defender Ass'n of Detroit, 600 Woodward Ave., Detroit, MI 48226, (313) 964-4111; Conrad Smith, Edward Hoort, Charles Alpert. [Here reported: 27,152B Brief in Support of Prelim. Inj. (22pp.); 27,152C Findings of Fact & Conclusions of Law (18pp.). Previously reported at 13 Clearinghouse REV. 405 (Sept. 1979).]

This action challenged the system used by Wayne County Probate Court of assigning private attorneys to represent indigent respondents in civil commitment cases. Under the system, a lawyer was assigned 5 to 7 cases at a time and paid a flat fee of $300 for all of the cases; attorneys could be assigned more than once in the same week. The court granted a preliminary injunction, finding that plaintiffs, former mental patients, were likely to be inadequately represented at future commitment proceedings due to the assignment system. The court found that due process was not afforded to a respondent when the court assigned the attorney more cases than he or she was reasonably able to handle. The court ordered that an attorney could not be assigned more than 5 cases per week.

The court also held that the flat fee was not in accord with a Michigan statute which requires reasonable compensation based on time and expenses. The court noted that inadequate fees will sometimes result in ineffective assistance of counsel.

An order prescribing a new system of assignment and compensation is pending.

In an injunction, the district court required the Secretary of Labor to grant waivers under an amendment to the Fair Labor Standards Act, 29 U.S.C. §213(c)4XA) (1979), which authorizes the Secretary to waive restrictions on the employment of 10- and 11-year-olds in agricultural harvesting when employers seeking the waivers submit data demonstrating that pesticides used will not have an adverse effect on the health of the children employed. The Ninth Circuit held that the lower court relied on erroneous legal conclusions, improperly substituted its judgment for the Secretary's and abused its discretion. The permanent injunction was reversed.

The court reviewed the evidence and concluded that the Secretary had ample basis for his decision that federal standards of pesticide safety that had been established for adults might not protect children. The court also determined that under the circumstances of the risks presented, the Secretary's adoption of the rules without notice and comment had not abused his discretion. [The pesticide regulation at 29 C.F.R. Part 575 is published at 45 Fed. Reg. 55175 (Aug. 19, 1980).]

Magistrate Recommends Dismissal of Farm Labor Contractor's Counterclaim for Damage to Property

29,270. Mora v. Tankersley (D. Or., Aug. 8, 1980). Plaintiffs represented by Spencer Neal, Richard Ginsburg, David Audet, Oregon Legal Services, 107 S.E. 2nd, Hillsboro, OR 97123, (503) 640-4770; Ira Zarov. [Here reported: 29,270E Findings & Recommendation (3pp.). Previously reported at 14 CLEARINGHOUSE REV. 490 (Aug./Sept. 1980).]

A migrant farmworker family filed suit alleging numerous violations of their rights under the Farm Labor Contractor Registration Act. The contractor counterclaimed to recover damages for real and personal property which was allegedly destroyed by some of the plaintiffs at the labor camp. A magistrate found that the counterclaim did not "arise out of the same transaction or occurrence” as plaintiffs' claims and was thus a permissive counterclaim for which defendants had failed to plead an independent ground for federal subject matter jurisdiction and to satisfy the amount-in-controversy requirement. The magistrate rejected defendants' allegations of subject matter jurisdiction based on diversity of citizenship because one of the plaintiffs had been domiciled in Oregon for two years and the defendants were Oregon citizens. The magistrate recommended that plaintiffs' motion to dismiss defendants' counterclaim for lack of subject matter jurisdiction be granted.