Law in the Health and Human Services

CONTENTS

Preface

Acknowledgments

Part I: The Legal Context of the Health and Human Services

Chapter 1: Law in the Health and Human Services

Chapter 2: Reading and Using Legal Materials

Chapter 3: Constitutional Law, Due Process, and Equal Protection

Part II: Legal Concepts for the Professional

Chapter 4: Ethics and the Law in the Health and Human Services

Chapter 5: Privacy, Personal Autonomy, and Records

Chapter 6: Confidential Communications: Principles and Limitations

Chapter 7: Informed Consent

Chapter 8: Incompetence and Guardianship

Part III: Social Problems and Vulnerable Populations

Chapter 9: Families and Children I: Family Composition, Marriage, Divorce, Children, and the Law

Chapter 10: Families and Children II: Child Abuse, Termination of Parental Rights, Foster Care, and Domestic Violence

Chapter 11: Law and the Mentally III

Chapter 12: Legal Issues for Individuals with Disabilities

Chapter 13: AIDS and the Law

Part IV: Law in Professional Practice: Workplace and

Courtroom Issues, Malpractice and Administrative Liability

Chapter 14: Law in the Workplace: Sexual Harassment, Drug Testing, and Employee Assistance Programs

Chapter 15: Malpractice and Administrative Liability

Chapter 16: Courtroom Testimony: Fact and Expert Witnesses

Notes

Index of Cases

General Index

To my parents

Alice Dickson Ball

William John Dickson

PREFACE

The health and human services field is wide-ranging and rapidly changing. It now comprises a major portion of federal funding and a major part of state budgetary expenditures. Employment in this field is growing dramatically, and a vast number of individuals are now directly affected by or participate in health and human services programs. At the same time, the legal aspects of this field have grown in coverage and complexity, ranging from child abuse to elder abuse, from the rights of the unborn to the rights of the terminally ill.

This book attempts to address the law as it applies to the broad health and human services field, rather than to approach it from the perspective of a particular profession as is often the case. The reasoning behind this is that health and human services students and professionals—social workers, psychologists, psychiatrists, mental health workers, child welfare workers, administrators, and so forth—often work in the same settings, face the same or similar challenges, and must deal with the same or similar laws, whether they be the laws of malpractice, sexual harassment, or informed consent.

The book is designed for two types of audiences, students in upperclass college or graduate courses, and professionals in the health and human services field. For the former, the text and case materials will hopefully provide a sound foundation in the legal aspects of the health and human services; for the latter, it is intended as a reference book to guide practice, raise questions, and provide some answers.

The intent is to give a picture of a range of important legal issues in the health and human services field across the country. In this, and in sixteen chapters, obviously not all issues can be explored, nor can all of federal or state law be included. Given the distinct differences which are often present among the states—as well as variations in local practice—the reader must also consult his or her own state law. Those teaching from this text are urged to add statutory and case material from their own state where appropriate as well as to consult the most recent statutes and cases for changes in the law. Following the typical pattern, cases have been edited and most case citations have been omitted. Case footnotes have been renumbered.

Finally, one must always remember that the law in the books does not necessarily reflect what actually happens in the professions and the fields of practice. Students and professionals both must be alert to practices, procedures, and policies which are inconsistent with, or in some cases, are violations of the law, both for their own professional protection and the protection of their patients and clients.

ACKNOWLEDGMENTS

Many thanks are owed. A number of friends and colleagues have provided assistance. In particular I want to acknowledge support, assistance, and helpful comments from colleagues at Rutgers, particularly Paul Lerman, Ursula Gerhart, and Alexander Brooks; the secretarial and administrative services of Betty McCoy and Gloria Johnson; and the support of Deans Mary Davidson and Harold Demone, who are particularly aware of the importance of law in the health and human services field. Several anonymous reviewers have provided very useful comments and suggestions. Much is also owed to Susan Arellano and Jennifer Shulman, my editors at The Free Press, and Linnea Johnson, the copy editor who endured what must have seemed endless pages of cases and citations, raising many questions and making many helpful comments. Also I must credit David Dickson, my son, for his forbearance and understanding, putting up with the unavailability of his father at times and with delayed dinners more often.

A great debt is owed to the numerous students in my classes at Rutgers who have used previous drafts of these cases and materials, raised questions, and made comments, and who have provided in class and in their term papers a real picture of the impact of law on the health and human services.

In conducting the research for this text I have been able to draw upon the resources of a number of libraries, including those at Rutgers and Princeton Universities; the University of California, Berkeley; and the New Jersey and California State Libraries.

For graciously providing copies of their Codes of Ethics, a debt is owed to the following professional associations: American Association for Marriage and Family Therapy; American Counseling Association; American Psychiatric Association; American Psychological Association; American School Counselor Associations; and National Association of Social Workers. This text has been greatly enhanced by the contributions of all of the above; any errors and omissions are, of course, mine alone.

PART I

THE LEGAL CONTEXT OF

THE HEALTH AND

HUMAN SERVICES

The first three chapters address the context and role of law in the health and human services. While all health and human services professionals have encountered specific legal provisions and requirements in their work, Chapter 1 examines the broader meaning of law and advances and discusses some relevant definitions. Different types of law, their sources, and interrelationships are reviewed. Finally, the American legal system is discussed, particularly in light of the concept of federalism.

Chapter 2 provides an introduction to using legal materials. While some of this material may be familiar, it is likely that much of the information is new to many in the health and human services. First some key legal concepts and terms are presented, then a case is briefly traced from its beginnings through a court hearing. Much of the chapter is devoted to how to read legal materials—cases, statutes, and regulations. Those who have worked with legal materials know that reading and understanding them is a skill in itself, one that improves with experience. Along with gaining familiarity with the materials, there are several other purposes to this section. First, the court decisions have been selected to introduce a fundamental legal concept, due process—which is explored further in the following chapter. Two different types of cases, criminal and civil, both address the same concept, the constitutional right to counsel, and result in very different outcomes. Second, the statutory and regulatory materials selected—family planning programs and abortion—illustrate the interplay between statutes and regulations (and Congress and the executive branch) and the role of the courts. In the last section, two important topics—locating legal materials and using legal citations—are discussed.

Chapter 3 deals with constitutional law. While entire books have been devoted to the U.S. Constitution, this chapter presents an overview of the main constitutional provisions and amendments, and discusses in greater detail the Fourteenth Amendment, which has particular significance for the health and human services. Due process, both procedural and substantive, is examined in light of some major Supreme Court cases, and then the concept of equal protection is analyzed. Together, the Due Process and the Equal Protection clauses form a base for much of the material that follows in the text.

CHAPTER 1

LAW IN THE HEALTH AND

HUMAN SERVICES

THE ROLE OF LAW

The importance of law in the health and human services has grown dramatically in recent years. Paralleling the rapid expansion of the health and human services fields—in terms of populations served, problems addressed, and funds allocated—has been a virtual explosion in both the range of legal issues addressed and the volume of litigation in these areas.¹

Law, including legislation, court decisions, and administrative regulations, now permeates almost every aspect of the health and human services:

1. The entrance into and exit from health and human services delivery systems

2. The criteria used to determine eligibility for treatment, benefits, or services

3. The rights to which patients and clients are entitled

4. The rights to which professionals and staff are entitled

5. The way in which health and human services programs are administered and regulated

6. The relationship between the professional and the patient or client

7. The practice of the health and human services professional

Entrance into some human service systems, such as those health and welfare programs where the individual desires assistance and benefits, is voluntary. In other systems—such as juvenile justice, corrections, and sometimes mental health and child welfare—the entrance is based on judicial or administrative action and is often involuntary. Entrance into correctional or juvenile justice systems usually requires court action and a determination that the individual committed a criminal or delinquent act. Most regular involuntary civil commitments to mental hospitals require a judicial determination that the individual is mentally ill and dangerous before a commitment can be made. Many times before a child enters the child welfare system a court or a child welfare agency will have to decide that the child is dependent, neglected, or abused as defined by statutory law. In sum, the actual entrance determination is often made on the basis of legal criteria.

Even where the entrance is not governed by legal criteria, legal rules often have an impact. For example, entrance into a hospital is a medical decision, but requirements that hospital emergency rooms treat all patients who appear and that hospitals must provide uncompensated care to a proportion of indigent patients are legal requirements.²

Eligibility to receive treatment, benefits, or services may be governed by legal criteria incorporating income level or need, such as public welfare and Medicaid, or by the legal definition of a condition or ability, such as the statutory definition of developmental disabilities.

Due process and equal protection are two of the most important constitutional rights afforded to all persons. Within the concept of due process, the courts have found a right to privacy, which broadly means, within certain limits, the right of the individual to be let alone or to make decisions without interference by the state. These decisions may extend to a woman’s right to make a decision with her physician whether or not to abort a fetus before it becomes viable, to an individual’s right to receive or reject treatment, and in some instances an individual’s right to choose life or death.

The rights of health and human services patients and clients may be found in constitutional law, judicial decisions, statutes, and regulations. They may include a presumption of competence, the retention of civil rights, a right to privacy, a right to informed consent before treatment, and the use of least intrusive interventions or least restrictive living arrangements.

The rights of health and human services staff in the workplace have a similar legal basis, and include the rights to privacy, free speech, and assembly, and protection against illegal searches, polygraph tests, and sexual harassment.

While the administration of health and human services programs rests with the policies, plans, and decisions made by program directors and administrators, it takes place within a legal context and includes administrative rules and regulations covering many aspects of the life and work of health and human service patients, clients, and professionals within the agency. For example, legal decisions and rules affect personnel policies, staff hiring and firing, and the testing for drug and alcohol abuse. Agency, executive, and worker liability is determined by law. The law may even specify the steps involved in the evaluation, treatment, and review of clients, such as in the case of individualized educational plans for disabled students or individualized habilitation plans for those developmentally disabled individuals receiving services.

The context and the content of the relationship between health and human services professionals and patients or clients is substantially shaped by the law. The concepts of informed consent, knowing waiver, confidential communications, privacy, and competence have a great impact on the professional relationship, as do legal limitations such as mandates to report child abuse or to take steps to protect an individual from harm to self, others, or property.

Finally, regulatory and ethical standards for health and human services professionals may be used in a court of law to determine whether the professional has performed according to the standards of the profession or is liable for negligence or malpractice, or they may be used by a licensing board to determine suspensions or the withdrawal of a professional license.

WHAT IS LAW?

Before examining the range of laws which impact on the health and human services, we should be clear what is meant by law. Many definitions have been advanced ranging from philosophical and sociological to economic, political, and psychological. Lawrence Friedman describes law as slippery as glass, as elusive as a soap bubble (Friedman, 1984: 2). Donald Black succinctly defines law as governmental social control(Black, 1976: 2).

A famous jurist, Benjamin Cardozo, wrote that law is a principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged (Cardozo, 1924: 52).

This definition has four main elements:

1. A rule of conduct, or law as reflecting a normative order

2. Enforcement of law, or law as coercive

3. A reasonable certainty, or law as usually predictable

4. Enforcement through the courts, thus insuring the enforcement is legitimate and public

Law and the Normative Order

Law broadly reflects the will of the people as expressed through elected or appointed representatives and officials: the legislatures, which have the role of making law; and the courts, which have the role of interpreting the law. When states adopt policies that penalize murder and rape, prohibit the sale of illegal drugs, penalize domestic violence, place a priority on keeping families intact, and refuse to legitimate the marriage of individuals of the same sex, these policies are generally seen as reflecting the existing normative order and desires of the people or at least important interest groups within the populace.

Law and Enforcement

Laws without enforcement often have little effect. Behind most effective laws are the enforcement powers of the state. This is most clear in the area of criminal law, where violations result in fines, imprisonment, or even death, but it is also true in civil law, where damage awards must be paid, provisions of wills carried out, and eviction orders enforced.

Law and Predictability

For law to be predictable, similar legal disputes must usually be resolved in the same way. If as part of a lease the landlord agrees to repair a substandard apartment and then refuses to do so, the tenant can go to court and if the lease is legal, the court will enforce the agreement and order the work done, rent returned, or terminate the lease. If the same situation occurs the following week with another apartment, there is reasonable certainty that the court will give the same order. Without this element of certainty there would be legal chaos and individuals would not know whether, which, or when laws would be enforced.

An extension of predictability is the concept of precedent. Precedent, sometimes called stare decisis, means that prior decisions of a court will generally be followed in future decisions, or the decisions of a higher court will be followed by a lower court within the same judicial system. In this way, individuals can generally predict what a court will do and what rule of law lower courts will follow. Of course, a court may sometimes decide to overrule its precedents, ignore them, or distinguish them in fact or law from the case at hand. This results in some uncertainty and is an important source of change in the law.

Enforcement by the Courts

The fourth of Cardozo’s elements is that the enforcement is through the courts and is therefore legitimated and public. While courts enforce laws, they rely heavily on public law enforcement agencies to actually carry out the enforcement duties. Being agents of the state, the law enforcement officials are responsible to the public for their actions, and the enforcement is generally viewed as legitimate by society.³

CLASSIFICATIONS OF LAW

Laws can be classified in a number of ways. One very broad distinction is between civil and criminal laws. Civil law in this context refers to that great body of law ranging from the law of contracts and property to the law of torts and wills. Most of the laws that the health and human services professional will come in contact with are civil laws, that is, laws that do not involve criminal penalties. Criminal law identifies offenses against the state that can result in a fine or a loss of liberty in jail or prison. This civil-criminal law distinction is important, for as we shall see, courts traditionally have provided far more protection for those facing criminal charges than those who appear in civil cases. Since criminal acts are offenses against the state, the prosecution of these violations is conducted by the state. In contrast, civil actions are usually brought by private parties although in some instances such as in determinations of delinquency or child abuse they may be brought by the state.

Some laws have both criminal and civil aspects. Child abuse can be a civil proceeding where the issues are whether the child is abused and, if so, how to protect the child. States also have criminal child abuse statutes ranging from prohibitions against child endangerment to criminal sexual assault. In these the focus is whether the individual—for example, a parent or guardian—committed the criminal act against the child as charged.

In addition, the individual harmed by a criminal act also can bring a civil action against the accused—for example, for damages sustained because of the criminal act. Someone representing the interests of an abused child could bring a civil damages action against someone, for example the operator of a day care center, who was also the alleged perpetrator charged in a criminal case.

Some areas of law although technically civil are similar to criminal law in their outcomes. For many years, juvenile delinquency proceedings have been considered a civil proceeding, with the intent to protect and rehabilitate the child and keep the child from carrying a criminal record through life. A criminal penalty can only attach if the juvenile is waived to an adult criminal court for trial on the same basis as an adult. However, juveniles adjudicated delinquent in juvenile or family courts can be committed to a state training school for an extended period ranging up to their age of majority. Similarly, commitment to a state mental hospital is a civil proceeding but the confinement is involuntary, indeterminate, and could last for years or a lifetime.

Civil law also refers to a whole legal approach found in many continental European countries, as contrasted to common law found in the United States and many English-speaking countries. Civil law countries rely heavily on written or codified laws such as the Napoleonic Code, while in common law countries much of the law was originally customary and unwritten. Within the United States, Louisiana retains its civil law heritage.

Another distinction is between substantive and procedural law. Substantive law includes that body of law which defines the rights, duties, and obligations of the citizens and of the state, while procedural law has to do with the procedures by which the substantive law is applied.

As a general rule, laws which fix the duties, establish rights and responsibilities among and for persons, natural or otherwise are substantive laws in character, while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are procedural laws. (Black’s Law Dictionary, 1991)

For example, various substantive laws specify what criminal acts consist of: what is murder, what is rape, what is armed robbery. Procedural law deals with how those laws are applied: laws about arrest, interrogation, arraignment, juries, and so forth. Similarly, substantive laws define civil child abuse, and procedural laws deal with child protective services investigations, removals, and court hearings.

Finally, one can make a distinction between public law and private law. Public law has to do with laws that affect the state and its actions toward its citizens.⁴ Criminal proceedings are always brought by the state against the person accused of committing a crime; child abuse proceedings are brought by the child welfare agency against the alleged abuser. In contrast, private law is concerned with issues solely between private citizens or entities.⁵ Public law includes areas such as taxation, zoning, and all criminal law. Private law includes such areas as contracts between private citizens, private landlord and tenant law, and malpractice and negligence law where the parties are private citizens.

TYPES OF LAW

The American legal system consists of four basic types of law: constitutional law, statutory law, case law, and administrative law.

Constitutional law is the overarching law and in the federal system is that which establishes the other types of law. The three other distinct types of law have their sources in the three branches of government established by the Constitution: statutory law is enacted by the legislative branch; case law consists of decisions made by the judicial branch; and administrative law consists of rules and regulations promulgated by the executive branch.

Constitutional Law

The federal government has a constitution, as does every state. The federal constitution contains the enabling laws for establishing the government and the legal system, and providing for basic rights of the people. Articles I, II, and III of the United States Constitution establish the executive, legislative, and judiciary branches, list qualifications and terms of office, and enumerate powers. The first eight amendments to the U.S. Constitution establish basic rights of all citizens, such as the right to free speech and assembly and the right to counsel in criminal cases.

Statutory Law

Statutory law or legislation is what many people think of as the law. This law is enacted by federal and state legislative bodies. In the health and human services it covers a broad range of areas, from abuse of children to zoning. At the local level, such laws are commonly called ordinances. Since statutory law is enacted by elected representatives, this law in a broad sense reflects the wishes of society or the electorate.

Case Law

The role of the judge is to apply existing law to a set of facts in a dispute brought before the court and decide which party should prevail. However, by interpreting laws or by filling gaps in the existing law, judges may make law as well. The disputes that come before the court may be as narrow as whether an individual child has been neglected or whether a particular zoning ordinance should apply to a group home for disabled citizens or as broad as whether all institutionalized developmentally disabled individuals throughout the country have a constitutional right to habilitation or whether the death penalty can be applied to juveniles convicted of certain crimes.

Administrative Law

This large, complex, detailed, and very important body of law includes both federal and state administrative codes, state agency policies and procedures, and local government regulations. Sometimes the legislative branch will delegate broad rule-making powers to the executive branch; other times the delegation is not clear or not stated. Administrative regulations have the force of law. Correctional administrators are delegated the power to make regulations for operating prisons, school officials are delegated the power to make regulations for running the schools, and Medicaid administrators have the power to make regulations for medical assistance programs.

Executive orders are another example of administrative rule making, where the chief executive issues an order about a particular subject. Examples are President Reagan’s executive orders mandating a drug free workplace or requiring care for newborn children with disabilities.⁶

WHO MAKES LAW?

Law is made by legislators, judges, and administrators. The first two types of lawmakers are the most obvious, the third less so. Legislators pass statutes; courts decide cases and issue judicial opinions. In both of these, the lawmaking is public. Legislative hearings are usually open to the public and statutes are enacted through public votes. Most court hearings are open to the public and many appellate and supreme court decisions are published.

Administrative law, the law made by the executive branch, has a significant but less obvious impact on the patients or clients within the health and human services systems. Professor Kenneth Davis has analyzed administrative law in depth, and has identified its key elements. Unlike legislation and court decisions, most administrative law is adopted with minimal public involvement, and much administrative law is not reviewed, questioned, or challenged. For example, in the area of federal administrative law, after first publishing a proposed regulation in the Federal Register, the executive branch must wait a statutory period for public comment, and then can publish the final regulation. Whether there is comment or not and whether it is favorable or not need not be decisive, for in drafting its final regulations, the administration must consider but need not be governed by those comments. The final draft of the proposed regulation then becomes law.⁷

This lack of public involvement and review led Davis to analyze the concept of administrative discretion, that is, the power legally delegated to administrators to act or not to act in a given situation, what rules to make, and how to enforce them. Discretionary decision making is not in itself bad; indeed it is often necessary. Using their discretion, administrators establish rules for the enforcement of child abuse statutes and determining removals of children from the home, for the provision of patient rights and release of institutionalized mental patients, or for running a correctional facility, a hospital, or a school.⁸

LEGAL SYSTEMS

The legal picture in America is far more complex because state and national governments and their corresponding state and national laws coexist. This is the principle of federalism: Power is shared by state and federal governments, and the states, although part of the national system, remain in many ways separate. Under the Supremacy Clause of Article VI of the Constitution, the U.S. Constitution and federal laws are the supreme law of the land. However, the Tenth Amendment provides that [t]he powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively, or to the people.

While federalism implies a shared power, the term federal is distinct, often referring to the national government. As illustrated below, the American legal system combines parallel federal (national) and state legal systems which include their own constitutional, statutory, judicial, and administrative law.

THE AMERICAN LEGAL SYSTEM

Because each state government with its legal system is essentially independent from the others, the American legal system consists of fifty state systems and one federal system, each with its own laws which may be similar or very different. The result is fifty-one legislative bodies enacting statutory law; fifty-one court systems producing judicial opinions; and fifty-one executive branches producing administrative regulations.

While the federal system overarches the state systems and federal constitutional law takes precedence over state laws, in many areas the states remain independent. For example, the federal government cannot easily require states to post a particular speed limit, define developmentally disabled individuals in a particular way, or initiate twenty-four-hour hot lines for receiving child abuse reports. Nor can the federal government easily require that states adopt one specific legal definition of child abuse, mental illness, or juvenile delinquency. However, the federal government can substantially influence legislation by providing federal funds if certain legal steps are taken or withholding funds if they are not. Thus the Child Abuse Prevention and Treatment Act of 1974, 42 U.S.C. §§5101–5107, provides funding to states that have statutes prohibiting child abuse and include in their statutes specific reporting requirements. The Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §6000 et seq, specifies a functional rather than categorical definition of developmental disabilities and states adopting this definition are eligible to receive federal monies.

Another example of state independence is that each state has its own criminal code, specifying which acts are criminal and how they are to be punished. Although there are a number of federal crimes, these are more limited in scope. Similarly, each state has its own procedures specifying how to apply criminal law, and these may differ from procedures of other states and from the federal rules of criminal procedure.

Some of the complexities inherent in federalism can be seen in federal enclaves—federal territory that has been carved out of the states. Military bases are one example, Veterans Administration (VA) hospitals another. As part of the federal government they are governed by federal law, which is sometimes different from state laws. For example, federal law specifies that if a VA patient is infected with HIV, physicians and counselors may disclose this to spouses or sexual partners if they reasonably believe that the patient will not make the disclosure and it is necessary to protect the health of the spouse or partner. In many states, such a warning would be regarded as an invasion of privacy and could be actionable under state law.⁹

THE FEDERAL AND STATE COURT SYSTEMS

Federalism also means that there are separate federal and state court systems, with each state having its own hierarchy of courts independent from the other states. The federal system and most states follow a similar three-tiered pattern as illustrated below.¹⁰

FEDERAL AND STATE COURT STRUCTURE

Most cases originate at the trial court level, and if the result there is appealed, the appeals are heard first at the appellate level, and then sometimes at the highest level, called the supreme court in the federal and in most state systems.

In the federal system, the U.S. District Court is usually the trial court, the U.S. Court of Appeals, sometimes known as the Circuit Court, is the intermediate appellate court, and the highest court is the U.S. Supreme Court.¹¹ The same pattern generally exists within the states, although the names will vary, and some court systems have only two levels. The trial court may be a county court, a family court, a criminal court, or any number of other courts of original jurisdiction where cases are first heard. Most states have an intermediate appellate court, and all states have a highest court which is the final decision maker for the cases in that state unless an appeal is allowed into the federal system. Names can be confusing: In most states the highest court is the supreme court, but in New York, the N.Y. Supreme Court is the trial court for many cases, while the N.Y. Court of Appeals is the highest court in the state. The health and human services professional should become familiar with local terminology to avoid confusion.

Most federal courts are organized geographically. One or more U.S. district courts are located within a state and hear cases within a geographic region—all or part of the state. A U.S. court of appeals will hear cases from district courts in a number of neighboring states in one region, known as a circuit. However, a single U.S. district court’s jurisdiction generally does not extend beyond one state’s boundaries, and the jurisdiction of a U.S. court of appeals generally does not extend beyond the boundaries of the circuit. In some states, such as New Jersey and Wyoming, one U.S. district court covers the entire state, while others such as New York and Texas have multiple district courts. The U.S. Supreme Court will hear appeals from all the U.S. courts of appeal.¹²

The legal concept of jurisdiction pertains to which cases or disputes may be heard by a specific court.¹³ Federal jurisdiction, or the range of cases which can be heard in the federal system, is specified in Article III, Section 2 of the U.S. Constitution and in federal statutory law.¹⁴

Article III, Section 2 of the Constitution provides:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.

Within the health and human services, most federal cases will involve a federal statute, a federal regulation, a U.S. Constitutional question or will result from what is called diversity jurisdiction, where the parties in the dispute or the issue being disputed are located in different states. Federal statutory law currently limits diversity cases to those disputes where at least $50,000 is involved. (See 28 U.S.C. §1332.)

Generally either or both parties may appeal a decision by a trial court to an intermediate appellate court. Usually the appeal must be based on legal, not factual issues. That is, a party can appeal on the basis that laws or procedures were misstated, misapplied, or violated in the lower court proceeding, but generally a party cannot appeal solely on the factual determinations of the case. Appeals beyond the intermediate appellate court to the highest court are usually not automatic or by right but are discretionary and require permission of the higher court. In the federal system, an appeal to the Supreme Court is by writ of certiorari, which essentially means that the Court has agreed to have the case argued before it. Of the thousands of cases appealed to the U.S. Supreme Court each year, the court grants only about 100 to 130 writs of certiorari. In deciding not to hear a case, the Court need not give any reason or justification.¹⁵ In addition, the Supreme Court has original jurisdiction—that is, acts as the trial court—in a limited range of cases. (See 28 U.S.C. §1251.)

If a case is not appealed from a U.S. court of appeals or if the U.S. Supreme Court refuses to hear the case, then the decision is binding (precedent) within that circuit, and may or may not be followed in other circuits.

Appeals within state systems are similar. Either or both parties have the right to appeal most decisions to the next higher court level on the basis of legal not factual issues. Appeals beyond that level are usually discretionary, with the highest court having the ability to choose which cases it wishes to hear.

SELECTED REFERENCES

Black, D. J. The Behavior of Law (1976).

Cardozo, B. N. The Growth of the Law (1924).

Curie, D. Federal Court—Cases and Materials (1982).

Davis, K. C. Discretionary Justice: A Preliminary Inquiry (1969).

Davis, K. C., and Pierce, R. J. Administrative Law Treatise (1994).

Friedman, L. M. American Law: An Introduction (1984).

Llewellyn, K.N. The Bramble Bush: On Our Law and Its Study (1960).

Wright, C. A. Federal Courts (3rd ed, 1976).

CHAPTER 2

READING AND USING

LEGAL MATERIALS

For many, professionals and nonprofessionals alike, law is a separate, sometimes mysterious and incomprehensible field. This chapter will provide some of the basic legal terminology used in this text, some guidance to reading legal materials, and some suggestions for conducting legal research.

The language of law is in many ways distinct from everyday discourse. Legal terms often have their own meanings. Even if the basic legal terminology is understood, using legal materials requires practice and skill. We will look now at some common legal terms, then carefully read examples of the three basic types of law: case decisions, statutes, and administrative regulations. Finally, since many health and human services professionals will find that they need to update their knowledge periodically, we will discuss how to locate and research legal materials.

BASIC CONCEPTS AND TERMINOLOGY

Many legal terms have come from other earlier societies and foreign languages including Latin, Old English, and French.¹ Some words have solely legal meanings, such as tort (a civil wrong) or malpractice; others may be used very differently in law and everyday conversation. Words such as action, case, class, motion, pardon, party, plead, prayer, standing, and suit all have legal meanings that are very different from their common meanings. A few of the important terms and concepts are explained below.

Adversary System

A defining concept of the American legal system is that it is based on an adversarial model in which most courts only deal with legal matters where there is a dispute or controversy. Occasionally a state court may have the power to issue advisory opinions, indicating what that court would do if the issue were brought to it or how it would interpret a statute if asked, but usually courts hear only cases with two opposing sides and a real dispute. If the sides reach an agreement prior to the court’s decision or if the issue ceases to exist then the case usually will be dismissed as moot.

The philosophy behind the adversarial system is that the only way to resolve a conflict is to have the disputing parties—with their legal representatives when present—argue before an impartial tribunal. Each side has the opportunity to present its case and to challenge and question the other so that all relevant material will be learned; an impartial decision maker will then decide on the basis of what has been presented which side shall prevail. Thus a key element of the system is conflict, which is indicated in the names of the disputes: State v. Smith or Roe v. Wade, where one side is against or versus the other. Some juvenile, mental health, and family law issues are titled in the matter of, in the interest of or in re, indicating that the proceeding is at least technically nonadversarial.

In an adversarial proceeding, each side is expected to present the strongest possible case and to challenge, dispute, and raise doubts about the other side. Some have questioned whether this system of structured conflict is the most appropriate, particularly for disputes such as divorce and child custody, and alternate mechanisms such as arbitration and mediation are being used in some dispute settlements.

Parties

Those who are directly affected by and are a part of a lawsuit are the parties to the legal action.² Usually their names will appear in the case name. A party may be an individual, such as a patient in a mental hospital, or a number of individuals, such as all the physicians, psychologists, nurses, and social workers who had contact with a patient, or it may be an agency, such as the hospital where the patient resided. A party may also include larger groups such as all state welfare recipients or all state mental hospital patients. These latter groups are sometimes considered legally as a class, because they have a common characteristic—recipients of welfare or patients in mental hospitals—and the lawsuit is called a class action.

The party bringing a lawsuit in a civil case is usually called the plaintiff, but depending upon usage in a particular jurisdiction that party may also be termed the complainant or the petitioner. The party being sued is usually termed the defendant, but may also be called the respondent. And the party being sued may file a counterclaim and sue the plaintiff. In a criminal case, the State or the People bring the action against the person accused of committing the criminal act, who is usually termed the defendant. If a case is being appealed, the party bringing the appeal is often called the petitioner or appellant; the other party may be termed the respondent or the appellee. Jurisdictions differ in which terminology is used.

Only those directly affected by the lawsuit may participate in it, and they are said to have standing in the suit.³ Courts may differ as to how directly affected the party must be. For example, there is probably no question that a parent of a child currently in a public grade school class where time is set aside for prayer has standing to challenge that period of prayer under the First Amendment separation of church and state. Less clear is whether a childless individual living in the community has standing to challenge the prayer session, and it is even less clear whether an individual residing in a different community or state has standing. Sometimes individuals or groups who have an interest in the result but who are not directly involved in the dispute may participate in a limited way. If the court agrees, an interested party may be allowed to participate as amicus curiae, or friend of the court, and file a legal brief in support of that position.

Individuals who are without funds to hire an attorney are not prohibited from appearing in court. Legally they are termed indigents. As we will see, indigent criminal defendants now are provided with a number of procedural protections, including the right to counsel supplied by the state. Depending on the type of lawsuit, legal services or legal aid programs may provide counsel for indigents in civil law suits.

Burden of Proof, Standard of Proof

The burden of proving a case, sometimes called the burden of persuasion, usually falls upon the plaintiff. In some actions, for example civil child abuse cases in some states, when the plaintiff establishes a prima facie case—one sufficient to prove the assertion unless rebutted—the burden then shifts to the defendant to prove there was no abuse.

The standard of proof, sometimes also known as the burden of proof, is the amount or degree of proof required to prevail. In most civil cases, the standard of proof is a preponderance of the evidence, where the party with the burden of proof must establish its case by showing that it was more likely than not. In criminal cases, a far more demanding standard must be met, proof beyond a reasonable doubt, requiring a great degree of certainty. This standard is also required in juvenile delinquency commitments and for the termination of parental rights of Native Americans. Between these two is an intermediate standard, clear and convincing evidence, requiring more proof than a preponderance of the evidence but less than beyond a reasonable doubt. In the health and human services, the clear and convincing standard is found in mental hospital civil commitment proceedings and termination of parental rights proceedings, among others.

Jurisdiction

Jurisdiction is an important legal concept, referring to a court’s legal authority to hear a case.⁴ There are two main types of jurisdiction, subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction is jurisdiction over the type of dispute; personal jurisdiction is jurisdiction over persons or things residing or located within the court’s geographic boundaries. Subject matter jurisdiction might include a family court’s jurisdiction over divorce, custody, and child abuse; a tax court’s jurisdiction over tax issues; a probate court’s jurisdiction over wills and estates, incompetence and guardianship; an appellate court’s jurisdiction over appeals from lower courts, and so forth. In personal jurisdiction, a court must have jurisdiction either over the parties or the items in dispute.

Decisions and Judgments

The court’s decision, or what is sometimes called its holding, is what the court has determined in a specific case. The judgment of a court usually is which party has won the dispute. A key point in the American legal system is that courts are only supposed to decide issues that properly come before them. Thus much of case law is a function of the types of disputes that reach the courts, especially the appellate courts.⁵ As part of its decision, an appellate court may affirm or reverse a lower court—that is, uphold or reject the lower court decision—or may order a remand, returning the case to the lower court to be reheard following certain guidelines or requirements. Occasionally a court will reverse itself and reject its previous ruling on the same issue. When the court does this, it overrules a prior decision.

Precedent and Res Judicata

A decision by a court or a higher court in the same system is precedent or legal authority for similar cases that follow in that particular court or the courts under it. This means that those courts are usually bound to follow this ruling if the same or a similar issue is presented. A final decision by a court is res judicata for the parties in the case, which means that it cannot be reopened and relitigated without an appeal.

HOW A CASE PROCEEDS THROUGH THE LEGAL SYSTEM

While terminology will differ across states, in civil actions the plaintiff files a complaint (sometimes called a petition) with the court which sets forth the nature of the legal action and its legal basis. The complaint is accompanied by an affidavit which certifies that the material in the complaint is true. The defendant is then notified of the legal action through service of process: The individual either receives notification through delivery in person, personal service, or depending upon the jurisdiction, by constructive service, perhaps by mail or by publication of a legal notice in an appropriate newspaper. The party receiving the summons should have adequate and timely notice of the proceedings, that is, should be given sufficient information to understand what is at issue and sufficient time to prepare. The individual receiving service then files a response with the court. This may take the form of an answer to the complaint, a motion to dismiss, or a cross-motion and counterclaim. If the individual receiving legal service does not respond within a specified time limit, the party is said to be in default and faces the possibility of losing the case. When all the filings, motions, and appearances have been made, the case may proceed to discovery, where each party submits interrogatories—written questions—to the other. These may be short or may cover hundreds of pages. Sometimes pretrial personal testimony—oral or written—called depositions are taken. The individuals being deposed are sworn, the testimony is recorded, and it may be used later in court.

At this point, a party may file a motion with the court for a summary judgment, which essentially concedes the factual points and argues that when the law is applied to these facts, the party is entitled to prevail. If this motion is denied, the case is set down for a full hearing or trial. However, a considerable period of time may elapse before the hearing or trial occurs, and at any point before a judgment is rendered the parties may settle the dispute. In fact, most lawsuits are settled prior to going to court and only a small proportion actually reach a decision by judge or jury.

If the case goes to trial, depending on the subject matter of the action and the law of the state, the defendant may request a jury trial. In suits alleging malpractice or monetary damages stemming from a breach of contract, jury trials are usually possible; in child abuse, other family matters, or civil commitment to mental hospitals, jury trials are not allowed in many states. If the defendant could have a jury trial and decides for a trial before the judge alone, the defendant is said to have waived the right to a jury trial and the trial is sometimes called a bench trial.

Some possible outcomes of a civil trial that results in a verdict or decision in favor of one party are a judgment awarding monetary damages, which may include compensatory damages (to compensate the injured party for the harm done) and perhaps punitive damages (to penalize the defendant), an order to do a certain thing that was agreed to (specific performance), and temporary or permanent injunctions or restraining orders requiring a party to do something or refrain from certain activities.⁶

READING LEGAL MATERIALS

Some examples of case decisions, statutes, and administrative regulations are presented here to illustrate their differences and to provide some guidance in reading and understanding them.

Different types of legal materials require very different reading styles. Case decisions—or judicial opinions, as they are sometimes called—are written by the judges and may be short or lengthy; clear, murky, or ambiguous; in a writing style that may be lucid or turgid, concise or repetitive. There are few rules for writing decisions, and cases are written by many judges, who, with varying amounts of assistance from their law clerks, write in many styles.

One cautionary note. The cases used here and throughout the text have been edited for conciseness. When editing has taken place, a series of asterisks (***) indicates that text has been deleted, but the reader will be unable to tell how much material—a word, a paragraph, or entire pages—has been deleted without researching the original. Also, for brevity, references to other cases often have been omitted.

Statutes and regulations must be read very carefully. Every word takes on importance. Even the choice of a particular punctuation mark such as a comma or a semicolon may make a dramatic difference in the meaning of the law.

Reading Court Decisions

Judges’ written opinions serve a number of purposes. Among these are: (1) to present a decision to a dispute; (2) to explain how that decision was reached, how it fits within existing law, and why alternative resolutions were rejected; (3) to provide guidance to lower courts, lawyers, and litigants; and (4) to explain and justify the decision to the legal community and to the public at large. Most important for the health and human services professional is to understand what the decision is and what it means, where it applies, and what the ramifications are for future cases. The following is one guide to reading and understanding a case decision.

Guide to Reading Cases

1. Who are the parties, what court is deciding the case, and when was the case decided? Answers to these questions will tell the reader who is involved in the case, where the decision applies, and whether the decision is recent or happened some time ago. Key parties are usually found in the case name. The court deciding the case and often the date are found in the case citation, discussed below.

Knowing what court decided the case is important because the decision is binding precedent on the court deciding the case and usually on lower courts in the same legal system. A lower court decision has less value as precedent, and there remains the possibility of an appeal and a different outcome at a higher judicial level. A decision by the highest court in the state is usually final unless an appeal is made into the federal system. A decision by the U.S. Supreme Court is final, unless that court reviews the issue at a later time. When a case was decided puts the issue into an historical context. A case decided some time ago may still be good law, but it may have been overruled. Only further legal research will tell.

2. What are the facts of the case? Cases are generally based on facts—something that happened or didn’t happen, although these facts may be contested or given different interpretations. Courts often recite what they consider to be key facts in a case. Sometimes the court will state The facts of the case are . . . At other times it will take some work to identify the important facts, and sometimes the court will not include facts at all. The facts that are presented in a case are not necessarily all the facts, but only those that the court believes to be relevant to the decision.

3. What is the legal issue in the case? This is the focal point of the case—the issue to be decided. Sometimes the court will clearly state The question is . . ., or The issue to be decided is . . . but other times this will not be so clear and it will take some work to extract the information.

4. If the case being decided is on appeal, what is the judicial or procedural history—what happened in the lower court or courts? Most of the cases in this text, and most published cases, are from appellate courts where a previous court’s decision has been appealed. To clarify the issues and what has happened in the appellate process, it is useful to learn what the lower court or courts did. However, this information is not always included in a decision, and in this text it may have been edited out.

5. What was the decision or holding in the case? What was the judgment of the court? Here again, the court may state We decide that . . . or We hold that . . . or judgment for the plaintiff, and the result of the case will be clear. At other times, the court’s decision will be less clear. Sometimes all that the reader is told is that the judgment of the lower court is affirmed or reversed (or sometimes affirmed in part and reversed in part), or that the case is remanded for a new hearing in light of the court’s opinion. It may take more work to clarify what the case really decided or which party prevailed.

6. Why was the decision reached—what was the legal reasoning behind the decision? Knowing how the court reached its conclusion is very useful in predicting what the court will do in a similar situation at a later time.⁷

7. If there are concurring or dissenting opinions, what do they say? Sometimes a judge will file a separate opinion, agreeing or disagreeing with the majority. A judge who concurs basically agrees with the outcome, but may wish to express differences with it or with the legal reasoning used by the majority. A judge who disagrees with a decision may file a dissent. Dissenting opinions are useful for several reasons. The dissenting judge may point out errors, present other pertinent facts, and make it easier to understand the majority opinion. Concurring or dissenting opinions may forecast future directions of the court.⁸

Following are two U.S. Supreme Court decisions. The first addresses an indigent’s right to counsel in criminal court, the second an indigent’s right to counsel in a civil proceeding, the termination of parental rights. Both rely on the U.S. Constitution and the Due Process Clause, but the results are quite different. Gideon v. Wainwright overrules a prior decision, Betts v. Brady, 316 U.S. 455 (1942), and in a major decision of the time, the Court holds that accused felons appearing in state criminal court trials who cannot afford an attorney must be provided one by the state. In Lassiter v. Department of Social Services, the Court rules that under the Constitution, indigent defendants in termination of parental rights hearings need not be provided counsel automatically.

THE RIGHT TO COUNSEL IN CRIMINAL CASES

The Sixth Amendment of the U.S. Constitution provides In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense. Originally meaning the right to be accompanied by counsel, the provision was extended to the right to appointed counsel for indigents tried for capital offenses in Powell v. Alabama, 287 U.S. 45 (1932), and indigents’ right to appointed counsel in federal criminal cases in Johnson v. Zerbst, 304 U.S. 458 (1938). The question in Betts v. Brady was whether this right was constitutionally required in state criminal cases. The problem was that the Supreme Court in Baron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833), had held that the first eight amendments, the Bill of Rights, were ratified as limitations on the federal government, and did not automatically apply to the states. Over time, many of these provisions were applied to the states through the Fourteenth Amendment Due Process Clause as essential to fundamental fairness. Betts held that an indigent’s right to an appointed counsel in a criminal court was not essential but could be left to the discretion of the trial court. Twenty years later, the Court reversed itself in Gideon v. Wainwright, holding that the assistance of counsel is fundamental and essential to a fair trial.

GIDEON v. WAINWRIGHT, CORRECTIONS DIRECTOR

372 U.S. 335 (1963)

U.S. SUPREME COURT

MR. JUSTICE BLACK delivered the opinion of the court.

Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:

"THE COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

THE DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.

Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument emphasizing his innocence to the charge contained in the Information filed in this case. The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petition attacking his conviction and sentence on the ground that the trial court’s refusal to appoint counsel for him denied him rights guaranteed by the Constitution and the Bill of Rights by the United States Government. Treating the petition for habeas corpus as properly before it, the State Supreme Court, upon consideration thereof but without an opinion, denied all relief. Since 1942, when Betts v. Brady, 316 U.S. 455, was decided by a divided Court, the problem of a defendant’s federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts. To give this problem another review here, we granted certiorari. 370 U.S. 908. Since Gideon was proceeding informa pauperis, we appointed counsel to represent him and requested both sides to discuss in their briefs and oral arguments the following: "Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be reconsidered?"

The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the