                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2000

Brandon E. v Reynolds
Precedential or Non-Precedential:

Docket 99-1262




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"Brandon E. v Reynolds" (2000). 2000 Decisions. Paper 9.
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Filed January 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1262

BRANDON E., by and through his next friend,
Robert Listenbee, Esq.; JOY E., by and through
her next friend, Robert Listenbee, Esq., JOSH R.,
by and through his next friend, Wendie Ziegler, Esq.;
individually and on behalf of themselves and all other
persons similarly situated,

       Appellants

v.

ABRAM FRANK REYNOLDS, THE HONORABLE,
Philadelphia Court of Common Pleas, Family Court
Division, on behalf of himself and all others similarly
situated

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 98-cv-04236
District Judge: Honorable William H. Yohn, Jr.,

Argued: November 1, 1999

Before: SCIRICA, NYGAARD and ROSENN, Circuit Judges.

(Filed January 14, 2000)

       Marsha L. Levick (Argued)
       Juvenile Law Center of Philadelphia
       801 Arch Street Sixth Floor
       Philadelphia, PA 19107

        Counsel for Appellants
       A. Taylor Williams (Argued)
       Supreme Court of Pennsylvania
       Administrative Office of PA Courts
       1515 Market Street Suite 1414
       Philadelphia, PA 19102

        Counsel for Appellee

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal challenges the constitutionality of a state
statute designed to assist parents in obtaining treatment
for minors afflicted with a drug or alcohol dependency. The
plaintiffs are three named minors who, on behalf of
themselves and similarly situated minors, brought an
action under 42 U.S.C. S 1983 challenging the
constitutionality of Act 53, a Pennsylvania statute enacted
in 1997.1 See 71 Pa. Cons. Stat. Ann. 1690.112a (West
Supp. 1999). The Act allows a minor's parents or a legal
guardian who has custody of a minor to petition the court
of common pleas of the judicial district in Pennsylvania
where the minor is domiciled to order the involuntary
commitment of the minor child to a drug and alcohol
treatment program. The defendants are county judges
responsible for presiding over Act 53 cases. They are sued
only in their official capacity.2 The district court dismissed
the action on the ground that the judges, as "neutral
_________________________________________________________________

1. The district court postponed action on the motions to certify both a
defendant and plaintiff class pending the resolution of a motion to
dismiss the complaint.

2. The defendant, Honorable Abram Frank Reynolds, is a judge on the
Philadelphia Court of Common Pleas, Family Court Division, responsible
for hearing Act 53 cases in Philadelphia County. The Honorable
Gwendolyn Bright is a judge in the Philadelphia Court of Common Pleas,
Family Court Division, and the Honorable Paul Panepinto is the
Administrative Judge for the Philadelphia Court of Common Pleas,
Family Court Division. The Honorable Arthur E. Grim is a judge in the
Berks County Court of Common Pleas, Family Court Division, and is
responsible for hearing Act 53 cases in that county.

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adjudicators" are not the proper parties to defend the
constitutionality of this statute. The plaintiff timely
appealed. We affirm.

I.

Act 53 permits a parent or a guardian who has legal or
physical custody of a minor to petition the court of common
pleas of the jurisdictional district where the minor is
domiciled for the commitment of the minor to involuntary
drug and alcohol treatment services, including inpatient
services, if the minor is incapable of accepting or unwilling
to accept voluntary treatment. See 71 Pa. Cons. Stat. Ann.
1690.112a (West Supp. 1999). The petition must set forth
sufficient facts and good reason for the commitment. See
id.

Upon petition, the court assigned to hear the matter
must appoint counsel for the minor. See id. The court also
must order the minor who is alleged to have a drug or
alcohol dependency to undergo a dependency assessment.
See id. The assessment is to be performed by a psychiatrist,
a licensed psychologist with training in drug and alcohol
assessment, or a certified addiction counselor ("CAC"). See
id. The assessment must include a recommended level of
care and length of treatment. See id. Assessments
completed by certified addiction counselors must be based
on the Pennsylvania Department of Health approved drug
and alcohol level of care criteria. See id.

When the assessment is complete, the court must hold a
hearing. See id. Before ordering the minor to undergo a
period of involuntary commitment the court must: (1) hear
the testimony of the person(s) who performed the
assessment; (2) find by clear and convincing evidence that
the minor is a drug-dependent person and that the minor
is incapable of accepting or unwilling to accept voluntary
treatment services; and (3) find that the minor will benefit
from involuntary treatment services. See id.

The father of plaintiff Brandon E. petitioned the
Philadelphia Court of Common Pleas, Family Court
Division, for involuntary commitment of Brandon for his
alleged addiction to alcohol and marijuana. Judge Reynolds

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held a hearing, at which time he ordered that Brandon be
assessed for drug and alcohol dependence. That same day,
a CAC performed the assessment at the Philadelphia Family
Court using the Adolescent Problem Severity Index ("APSI").

At a subsequent hearing before Judge Reynolds, the CAC
presented a written report and recommendation that
advocated committing Brandon to an inpatient drug
treatment program for a period of sixty to ninety days.
Plaintiffs allege that to avoid involuntary commitment,
Brandon elected to take part in an outpatient drug
treatment program. Subsequent to the filing of the
complaint, Brandon was adjudicated a delinquent child
under the Juvenile Act, 42 Pa. Cons. Stat. Ann.S 6801 et
seq. (West 1982), and Judge Reynolds dismissed the Act 53
petition in September 1998.

The mother of the plaintiff, Joy E., also filed an Act 53
petition in Philadelphia Family Court in June 1998.
According to plaintiffs, Joy appeared at a hearing before
Judge Reynolds in July 1998, at which he ordered her
assessment. A CAC then performed an evaluation using the
APSI. The CAC did not prepare a written report of the
results. At this same hearing, Judge Reynolds ordered Joy
to undergo two urine tests each week and continued the
hearing until August 1998. At the August hearing, the
judge again ordered twice-weekly urine tests and continued
the proceedings. At a subsequent hearing in September
1998, Judge Reynolds dismissed the petition against Joy
after emancipating her from the custody of her parents.

The Act 53 petition against Josh R. was filed by his
mother in March 1998, in the Berks County Juvenile
Court. After his assessment, Josh voluntarily agreed to
enter an inpatient drug and alcohol treatment program.
Since the time of that agreement, Josh has been
adjudicated a dependent child under the Juvenile Act, 42
Pa. Pa. Cons. Stat. Ann. S 6301 et seq. (West 1990) and the
judge suspended the Act 53 proceedings.

II.

The underlying question in these proceedings seeking a
declaratory judgment is whether Act 53, which authorizes

                               4
county judges in Pennsylvania, on the petition of a parent
or a legal guardian, to commit a minor to involuntary drug
and alcohol treatment services if the minor is incapable or
unwilling to accept voluntary treatment, is
unconstitutional. However, the threshold and determinative
question in this case is whether judges presiding over Act
53 petitions as provided by the statute are proper parties to
be named as defendants to an action brought under 42
U.S.C. S 1983 attacking the Act as unconstitutional. The
district court thought they were not and granted
defendants' motion to dismiss. In reviewing the district
court's decision to grant a motion to dismiss the action, we
exercise plenary review. See Coalition to Save Our Children
v. State Bd. Of Educ., 90 F.3d 752, 759 (3d Cir. 1996).

III.

The district court dismissed the plaintiffs' suit because it
found that "the judges presiding over Act 53 proceedings
are acting solely within their adjudicatory roles" and,
therefore, are not proper parties to a suit challenging the
Act's constitutionality. In this connection, the district court
carefully analyzed the functions and duties of the judges in
the application of Act 53 and aptly concluded that the
common pleas judges were acting precisely as they do in
any judicial proceeding. Specifically, the district court noted
that the judges "do not have the power to initiate actions
against minors" and that the Act does not "appear to
delegate any administrative functions to the judges."
Accordingly, the district court dismissed the suit for failure
to state a claim for which relief may be granted.

On appeal, plaintiffs contest the district court's dismissal
on two grounds. Plaintiffs first argue that S 1983, as
amended in 1996, expressly authorizes a suit for
declaratory relief against a judge, who is acting in his or
her judicial capacity, and that, therefore, the defendant
judges are proper parties to the instant suit even though
they are acting in their capacity as neutral adjudicators.
Alternatively, plaintiffs contend that even if judges acting in
their capacity as "neutral adjudicators" are not amenable to
suit under S 1983, Act 53 "imposes non-judicial
responsibilities on the judges sufficient to otherwise bring

                               5
them within the scope of S 1983." In this connection,
plaintiffs assert that Act 53 strips the judge of his
traditional role because in ordering an evaluation of the
minor his function is purely ministerial. They further
charge that in ordering a drug assessment of the minor, the
judge is discharging a prosecutorial or investigatory role,
and that the absence of a representative of the
commonwealth or county at the hearing requires the judge
"to juggle both his prosecutorial and judicial roles
simultaneously." We reject both of the plaintiffs' arguments.

Congress amended 42 U.S.C. S1983 in 1996 as part of
the Federal Courts Improvement Act ("96 Amendments") for
that year. As amended, S 1983 now provides:

       Every person who, under color of any statute . . . of
       any State, subjects, or causes to be subjected, any
       citizen of the United States . . . to the deprivation of
       any rights, privileges or immunities secured by the
       Constitution and laws, shall be liable to the party
       injured in . . . [a] suit in equity . . . except that in any
       action brought against a judicial officer for an act or
       omission taken in such officer's judicial capacity,
       injunctive relief shall not be granted unless a
       declaratory decree was violated or declaratory relief
       was unavailable.

42 U.S.C. S 1983 (emphasis added). The italicized portion
reflects the language Congress added to the statute by the
`96 Amendments.

The foregoing amendatory language to S 1983 does not
expressly authorize suits for declaratory relief against
judges. Instead, it implicitly recognizes that declaratory
relief is available in some circumstances, and then limits
the availability of injunctive relief to circumstances in
which declaratory relief is unavailable or inadequate. The
language is not an express authorization of declaratory
relief, but simply a recognition of its availability or
unavailability, depending on the circumstances, which the
statute does not delineate. A review of the legislative history
confirms this reading of the amendment. The Senate Report
accompanying the amendment suggests that the
amendment's purpose was to overrule the Supreme Court's

                                6
decision in Pulliam v. Allen, 466 U.S. 522, 541-543 (1984)
(holding that judicial immunity was not a bar to awards of
attorney's fees and costs or to demands for injunctive
relief), not to alter the landscape of declaratory relief. See S.
Rep. No. 104-366, reprinted in 1996 U.S.C.C.A.N. 4202,
4217.

Because the `96 amendments to S 1983 were not intended
to alter the availability of declaratory relief against judicial
officers, determining whether the declaratory relief is
available in the instant case turns on whether the judges in
this case properly may be named as defendants to this
S 1983 action. The seminal case on the subject is In re
Justices of The Supreme Court of Puerto Rico, 695 F.2d 17
(1st Cir. 1982).

In that case, five attorney-plaintiffs sued the Puerto Rico
Supreme Court and the Puerto Rico Bar association,
attacking the constitutionality of statutes requiring
members of the bar to support the bar association through
dues payments. See id. at 19. Prior to the suit, the bar
association had filed disciplinary complaints against some,
but not all, of the attorney plaintiffs for non-payment of
their dues. The Commonwealth's Supreme Court had
determined that the bar requirements were valid. See id.
When the attorney-plaintiffs filed suit against the justices,
the justices immediately sought a writ of mandamus from
the court of appeals ordering the district court to dismiss
the complaint. See id. at 21.

In support of their request for mandamus, the justices
argued that the district court lacked jurisdiction over the
matter under Article III because no "case or controversy"
existed between the justices and the attorneys. In this
connection, the justices argued that "they and the plaintiffs
possess[ed] no . . . `adverse legal interest[s],' " for the
Justices' only function concerning the statutes being
challenged [was] to act as neutral adjudicators rather than
as administrators, enforcers, or advocates." Id. (emphasis
added). Addressing this argument, the First Circuit opined
that "ordinarily, no `case or controversy' exists between a
judge who adjudicates claims under a statute and a litigant
who attacks the constitutionality of the statute." Id. The
court gave a number of reasons in support of its opinion.

                               7
First, "[j]udges sit as arbiters without a personal or
institutional stake on either side of the constitutional
controversy." Id. Second, "[a]lmost invariably, they have
played no role in the statute's enactment." Id. Third, " they
have not initiated its enforcement." Id. Finally, "they do not
even have an institutional interest in following their prior
decisions (if any) concerning its constitutionality if an
authoritative contrary legal determination has subsequently
been made." Id.

Nevertheless, rather than deciding the case on a
constitutional basis, the Court of Appeals for the First
Circuit simply held that the justices were not proper parties
under S 1983.3 See id. at 22. The First Circuit explained
that because judges who are not acting in an enforcement
or administrative capacity have "no stake in upholding the
statute against constitutional challenge . . . S 1983 does not
provide relief against . . . [them] . . . any more than, say, a
typical state's libel law imposes liability on a postal carrier
or telephone company for simply conveying a libelous
message." Id. Therefore, the court held that naming as
defendants judges who act only as neutral arbiters in a
dispute fails to state a claim for which relief can be granted.
See id.

Although this court has held judges amenable to suit
under S 1983, its decision to do so is by no means
inconsistent with the approach of the Court of Appeals for
the First Circuit. In Georgevitch v. Strauss, 772 F.2d 1078
(3d Cir. 1985)(En banc), cert. denied, 475 U.S. 1028 (1986),
a class of state prisoners brought a S 1983 action against
Pennsylvania common pleas judges alleging a violation of
the Equal Protection Clause in that they had not received
the same parole procedures as other similarly situated
prisoners. The judges, like the justices above, argued that
they were not the proper parties to be sued because they
were not enforcers of the parole statutes and therefore had
_________________________________________________________________

3. The other courts of appeals addressing the issue have also opted not
to rest their decisions on the basis of Article III. See Grant v. Johnson,
15 F.3d 146, 148 (1994); R.W.T. v. Dalton, 712 F.2d 1224, 1232-33 (8th
Cir.), cert. denied, 464 U.S. 1009 (1983); Mendez v. Heller, 380 F.Supp.
985, 990 (E.D.N.Y. 1974), aff'd, 530 F.2d 437 (2d. Cir. 1976).

                               8
no interests adverse to the prisoners. See id. at 1087. In
rejecting the judges' argument, this court expressly found
that the parole statute placed the judges in the identical
position as the parole board, which was clearly amenable to
suit, when making parole decisions regarding classes of
prisoners. See id. at 1087-88. We then cited In re Justices
of the Supreme Court of Puerto Rico with approval and
stated that this is not a case in which judges are sued in
their judicial capacity as neutral adjudicators of disputes,
but rather as enforcers of the statutes. We, therefore, found
"no basis for distinguishing the role of the sentencing
judges from that of the Board; therefore, there is no reason
why the Board, but not the judges, may be sued on a
similar challenge." Id. at 1088.

Thus, although in Georgevitch we held the judges
amenable to suit under S 1983, our decision nevertheless
recognized the impropriety of such suits where the judge
acted as an adjudicator rather than an enforcer or
administrator of a statute.

Turning to the present case, the facts reveal that the
plaintiffs are suing judges who are neutral adjudicators and
not enforcers or administrators. In presiding over Act 53
petitions, the judges do not initiate the proceedings against
the minor. The proceedings must be undertaken by the
minor's parent or legal guardian by filing a petition setting
forth "sufficient facts and good reason for the commitment."
See 71 Pa. Cons. Stat. Ann. S 1690.112a(a). To emphasize
the informality of the proceedings and minimize their
adversarial character, the petition does not require an
attorney at law or a prosecuting attorney. Judges, however,
are required to appoint counsel for the minor and order an
assessment of his or her alleged drug or alcohol
dependency. See 71 Pa. Cons. Stat. Ann.S 1690.112(b).
When the assessment has been completed, the statute
requires the judge to hold a hearing and make factual
determinations. See 71 Pa. Cons. Stat. Ann.S 1690.112a(c).
The judge must determine whether the minor is a"drug-
dependent person," a mixed question of law and fact typical
to the adjudicative setting. See id. The judge must also
determine whether the minor is unwilling or unable to
accept voluntary treatment services. See id. Finally, the

                               9
judge must determine whether the minor will benefit from
involuntary treatment services. See id.

The judge's position in the Act 53 proceeding is simply
not adverse to that of the minor, even though the
Commonwealth or the County is not required to have
counsel present. The plaintiffs' arguments to the contrary
are unpersuasive. The plaintiffs first argue that because the
judge must order a drug and alcohol assessment upon
filing of a petition without any adjudicatory process, this
demonstrates that the process is not actually adjudicatory.
However, this argument that the judge must immediately
order an assessment without the exercise of any
adjudicatory process misreads the statute. The statute
requires that a petition set forth sufficient facts and good
reason for the commitment and then states that upon such
petition the court shall order an assessment. See 71 Pa.
Cons. Stat. Ann. S 1690.112a(a)-(b). The statute does not
contemplate a rubber stamp process. Rather, the statute
contemplates that prior to ordering an assessment, the
judge will first ascertain whether the petition sets forth
sufficient facts and good reason. Thus, the premise of the
plaintiffs' first argument is flawed.

Plaintiffs' next argument is equally unpersuasive. They
appear to argue that the judge's traditional role is
compromised by the Act 53 process because there is no
separate prosecutor or solicitor other than the parent. The
lack of such a prosecutor, argue the plaintiffs, requires the
judge to "juggle both his prosecutorial and judicial roles
simultaneously" because the judge must undertake the
"non-judicial" task of calling the assessor to testify and
then revert to the role of adjudicator in determining how to
weigh that testimony. Plaintiffs' argument, however,
basically boils down to a challenge to the informal
procedures in an Act 53 petition. That the process may be
informal does not alter the position of the judges as neutral
arbiters over petitions commenced by the parent or legal
guardian of the minor. The Supreme Court has noted that
"[s]tate judges with general jurisdiction not infrequently are
called upon to settle a minor's claim," and that such an act
is a judicial one in nature. Stump v. Sparkman, 435 U.S.
349, 362-363 (1978). Although the plaintiffs claim that the

                               10
ordering of an assessment is commensurate to "a state
prosecutor ordering police surveillance of an area during
the pre-indictment investigation of an alleged crime," we are
not convinced that the analogy accurately characterizes the
role of the judges under Act 53.

For the reasons stated by the Court of Appeals for the
First Circuit, we too hold it unnecessary to decide the role
of the judges under Act 53 on a constitutional basis.
Because the judges presiding over Act 53 proceedings are
acting in their capacity as neutral adjudicators, the district
court committed no error in dismissing the suit for failure
to state a claim for which relief can be granted.

IV.

For the foregoing reasons, the order of the district court
granting dismissal under Federal Rule of Civil Procedure
12(b)(6) will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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