1 42 U.S.C. §§ 6001-6081 (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602.

2 42 U.S.C. § 6012(a) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 508(a). By complying with this section, a state receives a minimum of $50,000 to run its protection and advocacy system. Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 508(b)(2) (amending 42 U.S.C. § 6012(b)(1) (1976)). In addition, the state may qualify for at least $250,000 to be used generally for the provision of services to developmentally disabled persons, and for the construction and operation of facilities for such persons. 42 U.S.C. § 6062(a)(1)(A), (B)(II) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 510(b).

3 In 42 U.S.C. § 6010 (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 507, Congress made several findings with respect to the rights of developmentally disabled persons: (1) developmentally disabled persons have a right to appropriate treatment, services, and habilitation; (2) treatment, services, and habilitation should be designed to maximize developmental potential and be provided in a setting least restrictive of personal liberty; (3) the federal government and the states should not spend public funds for programs which do not provide appropriate treatment, services, and habilitation or do not meet minimum standards respecting diet, medical and dental services, use of physical and chemical restraints, visiting hours, and compliance with fire and safety codes. In the Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 507, Congress amended 42 U.S.C. § 6010 (1976) to make it clear that the aforementioned rights are “in addition to any constitutional or other rights otherwise afforded to all persons.”

4 The Developmental Disabilities and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 503(b)(1) (amending 42 U.S.C. § 6001(7) (1976), redefined “developmental disability” as a “severe, chronic disability” which

1. (A)

   (A) is attributable to a mental or physical impairment or combination of mental and physical impairments;

2. (B)

   (B) is manifested before the person attains age twenty-two;

3. (C)

   (C) is likely to continue indefinitely;

4. (D)

   (D) results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care, (ii) receptive and expressive language, (iii) learning, (iv) mobility, (v) self-direction, (vi) capacity for independent living, and (vii) economic self-sufficiency; and

5. (E)

   (E) reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated.

Although this new definition does not mention them, disabilities attributable to mental retardation, cerebral palsy, epilepsy, and autism should continue to be considered developmental disabilities as they were under 42 U.S.C. § 6001(7) (1976) (amended 1978).

5 42 U.S.C. § 6012(a)(2)(B) (1976), as amended by Developmental Disabilities and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 508(a)(2).

6 Id. § 6012(a)(2)(A).

7 The P & A program was created partly in response to alleged “shocking conditions at [many] institutions for the mentally retarded throughout the Nation.” 121 Cong. REC. 16518 (1975) (remarks of Senator Javits). The “shocking conditions” reportedly included inappropriate admissions, inhumane experimentation, sterilizations, starvation and malnutrition, physical punishment, inadequate living conditions, and death. Id. at 16517 (remarks of Senator Williams). Many of these institutions were run by the states. Congress, believing that change in these institutions could only be accomplished by “substantial legal and advocacy pressure,” required, among other things, the establishment of P & A systems. Id. at 16516 (remarks of Senator Williams).

8 45 C.F.R. § 1386.2(a),(b) (1977).

9 45 C.F.R. § 1386.70(b) (1977).

10 See note 2 supra

11 45 C.F.R. § 1386.1(a) (1977).

12 Assurances required by the Act include, among others, that funds paid to the state will be used to strengthen services for developmentally disabled persons, that part of such funds will be made available to public or nonprofit private entities, that there will be reasonable state financial participation in the cost of carrying out the state plan, and that the human rights of all developmentally disabled persons receiving services under the Act will be protected. 42 U.S.C. § 6063(b) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 511(a).

13 Assurances required by the regulations include, among others, that nothing in the state plan is inconsistent with state law and that a reasonable volume of services will be furnished to persons unable to pay for them. 45 C.F.R. § 1386.1(b)(5) (1977).

14 According to 45 C.F.R. § 1385.2(a)(24) (1977), “state plan” is defined to include “documents submitted by the State to comply with the requirements for participation under Parts 1386 and 1387 of this chapter.” Part 1386 requires several documents to be submitted by states as a condition to receiving federal funds. Among these is the advocacy plan required by 45 C.F.R. § 1386.70(b) (1977). Thus, the regulations make the advocacy plan part of the state plan.

15 45 C.F.R. § 1386.70(a) (1977). The Act and the regulations are silent regarding the power of P & A systems to sue a state on behalf of the developmentally disabled. Yet, the legislative history indicates that such an event was contemplated by Congress. Congress believed that change in institutions for the developmentally disabled, including those institutions run by the states, could only be accomplished by “substantial legal and advocacy pressure” provided by P & A systems. See note 7 supra. Furthermore, the power of P & A systems to sue a state logically follows from the requirement of independence and the broad authority to pursue legal remedies on behalf of the developmentally disabled, found in 45 C.F.R. § 1386.70(a) (1977).

16 Interim Guidelines for Development and Implementation of a System for Protection of the Individual Rights of and Advocacy for Persons with Developmental Disabilities, issued by the Department of Health, Education, and Welfare, November 1, 1976, at 3.

17 42 U.S.C. § 6063(b)(1)(A) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 511(a).

18 42 U.S.C. § 6067(b)(1) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 512(b).

19 In the Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 512(b), Congress deleted language from 42 U.S.C. § 6067(b)(1) (1976) which empowered state planning councils to approve state plans. However, as of this writing, state planning councils retain this power under 45 C.F.R. § 1386.63(a) (1977).

20 42 U.S.C. § 6067(b)(2),(4) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act o f 1978, Pub. L. No. 95-602, § 512(b); 45 C.F.R. § 1386.63(b),(d) (1977).

21 4 5 C.F.R. § 1386.2(a) (1977).

22 Id. § 1386.2(b).

23 42 U.S.C. § 6067(a) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 512(a).

24 Id.

25 45 C.F.R. § 1386.63(a) (1977). See note 19 supra.

26 42 U.S.C. § 6063(a) (1976); 45 C.F.R. § 1386.1(a) (1977).

27 45 C.F.R. §§ 1386.70(b), 1386.2(d) (1977). According to 45 C.F.R. § 1386.2(d) (1977), the Secretary of Hew has the final power to approve or disapprove a state plan, revision, or advocacy plan. However, 45 C.F.R. § 1386.2(c) (1977) provides that “[a]ny State plan, amendment, or revision meeting the requirements of the Act, this Subpart, and performance standards to be issued by the Secretary shall be approved.”

28 See note 14 supra.

29 42 U.S.C. § 6063(a) (1976); 45 C.F.R. § 1386.70(a) (1977).

30 See 42 U.S.C. § 6063(b)(1)(B) (1976), as amended by Developmental Disabilities Assistance a n d Bill of Rights Act of 1978, Pub. L. No. 95-602, § 511(a); 45 C.F.R. § 1386.70(b) (1977).

31 Interim Guidelines, supra note 16, a t 7.

32 4 5 C.F.R. § 1386.70(b) (1977).

33 Neither the Act nor the regulations explicitly states that advocacy plans must be submitted and approved annually. The regulations, however, require state plans to be submitted and approved annually. 45 C.F.R. §§ 1386.2(a), 1386.1(a) (1977). Since the advocacy plan is part of the state plan, see note 14 supra, it must also be submitted and approved annually.

34 Amendment Requirement Guidelines for P & A Fiscal Year 1979, issued.by Director, Developmental Disabilities Office, May 2, 1978.

35 Id.

36 See 121 Cong. Rec. 16519 (1975) (remarks of Senator Javits); 121 Cong. REC. 16517 (1975) (remarks of Senator Williams).

37 45 C.F.R. § 1386.63(a) (1977). See note 19 supra.

38 45 C.F.R. § 1386.2(a) (1977).

39 45 C.F.R. § 1386.70(b) (1977).

40 42 U.S.C. § 6067(a) (1976), as amended by Developmental Disabilities Assistance a n d Bill of Rights Act of 1978, Pub. L. No. 95-602, § 512(a).

41 45 C.F.R. § 1386.70(b) (1977).

42 45 C.F.R. § 1385.1 (1977).

43 A fourth obstacle may be a state's sovereign immunity. It is well established that a state, because of its sovereignty, cannot be sued directly or indirectly without its consent. 81A C.J.S. States § 298 (1977). However, several courts have held that by entering into a contract a state waives its sovereign immunity and is liable for any breach. People ex rel. Dep't of Parks and Recreation v. West-A-Rama, Inc., 35 Cal. App. 3d 786, 111 Cal. Rptr. 197 (1973); Davidson v. State, 42 Mich. App. 80, 201 N.W.2d 296 (1972); Town of Madbury v. State, 115 N.H. 196, 340 A.2d 103 (1975). Moreover, a state waives its immunity by engaging in activities of paramount federal interest or by entering into a field that is under federal regulation. 81A C.J.S. States § 299 (1977).

44 4 5 C.F.R. §§ 1386.1(a), 1386.2(b) (1977).

45 It is well established that third persons for whose benefit a contract has been made can sue to enforce that contract, even though they are strangers to the contract and to the consideration. A. Corbin, Contracts 727 (one vol. ed. 1952). It is also a well-established principle of contract law that the only third parties who have standing to enforce a contract are donee and creditor beneficiaries as opposed to incidental beneficiaries. Id. at 736.

According to Restatement of Contracts § 133 (1932), a third person is a donee beneficiary

Furthermore, section 133 provides that a third person is a creditor beneficiary if the promisee's primary intent was to discharge an actual, supposed, or asserted duty of the promisee to the beneficiary. All other third persons who may benefit from the contract are incidental beneficiaries who have no standing to enforce the contract.

46 See Restatement of Contracts § 133 (1932); note 44 supra.

47 Id.

48 See 42 U.S.C. § 6062(a)(1)(A) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 510(b); 121 Cong. REC. 16517 (1975) (remarks of Senator Williams).

49 In Martinez v. Socoma Companies, 11 Cal. 3d 394, 521 P.2d 841, 113 Cal. Rptr. 585 (1974), several corporations allegedly breached their contracts with the federal government, entered into pursuant to 1967 amendments to the Economic Opportunity Act of 1964, 42 U.S.C. §§ 2763-2768 (repealed by Pub. L. No. 92-424, § 25(b), 86 Stat. 703 (1972)), to train and employ unemployed residents of East Los Angeles, California. Several of those residents brought suit as third party beneficiaries. The California Supreme Court held that “the fact that a Government program for social betterment confers benefits upon individuals who are not required to render contractual consideration in return does not necessarily imply that the benefits are intended as gifts.” Id. at 401, 521 P.2d at 845, 113 Cal. Rptr. at 589. In Martinez., the court found that there was no intent to provide the benefits as gifts, because the benefits of the program were provided as a means of accomplishing the larger public purpose of alleviating national unemployment. The furtherance of this larger public purpose was said to be “in the nature of consideration to the Government, displacing any governmental intent to furnish the benefits as gifts.” Id.

50 121 Cong. REC. 29817 (1975) (remarks of Senator Randolph).

51 Mando v. Beame, 398 F. Supp. 569 (S.D.N.Y. 1975).

52 City and County of San Francisco v. Western Air Lines, Inc., 204 Cal. App. 2d 105, 22 Cal. Rptr. 216 (Dist. Ct. App. 1962); Davis v. Nelson-Deppe, Inc., 91 Idaho 463, 424 P.2d 733 (1967); Malesev v. Garavaglia, 12 Mich. App. 282, 162 N.W.2d 844 (Ct. App. 1968); Eastern Air Lines, Inc. v. Town of Islip, 229 N.Y.S.2d 117 (Sup. Ct. 1962); Pacific Northwest Bell Telephone Co. v. DeLong Corp., 246 Or. 369, 425 P.2d 498 (1967); Keefer v. Lombardi, 376 Pa. 367, 102 A.2d 695 (1954); Oman Construction Co. v. Tennessee Central Ry. Co., 212 Tenn. 556, 370 S.W.2d 563 (1963); Collins Construction Co. v. Taylor, 372 S.W.2d 548 (Ct. Civ. App. Texas 1963); United Dispatch v. E. J. Albrecht Co., 135 W. Va. 34, 62 S.E.2d 289 (1950).

53 Martinez v. Socoma Companies, 11 Cal. 3d at 404, 521 P.2d at 847, 113 Cal. Rptr. at 591 (1974).

54 The relevant portions of Restatement of Contracts § 145 (1932) read as follows:

55 Note, Third Party Beneficiaries—Persons For Whom the Government Contracts to Provide Training and Employment Are Not Third Party Beneficiaries, 88 Harv. L. Rev. 646, 650 (1975).

56 See note 53 supra.

57 Id.

58 See Pennsylvania v. National Association of Flood Insurers, 378 F. Supp. 1339 (M.D. Pa. 1974), modified 520 F.2d 11 ( 3 rd Cir. 1975); City a n d County of San Francisco v. Western Air Lines, 204 Cal. App. 2d 105, 22 Cal. Rptr. 216 (Dist. Ct. App. 1962); Eastern Air Lines, Inc. v. Town of Islip, 229 N.Y.S.2d 117 (Sup. Ct. 1962); Townsend v. City of Pittsburgh, 383 Pa. 453, 119 A.2d 227 (1956).

59 See Mando v. Beame, 398 F. Supp. 569 (S.D.N.Y. 1975); Shell v. Schmidt, 126 Cal. App. 2d 279, 272 P.2d 82 (1954).

60 Martinez v. Socoma Companies, 11 Cal. 3 d 394, 521 P.2d 841, 113 Cal. Rptr. 585 (1974).

61 He might attempt to dismiss the members by withholding funds or might not rehire them by failing to redesignate their agency as the P & A implementing agency pursuant to his authority under 45 C.F.R. § 1386.70(b) (1977).

62 408 U.S. 593 (1972).

63 Id. at 597.

64 Id.

65 The members of a P & A implementing agency might be state officers, state employees, independent contractors, or employees of independent contractors, depending on the scheme approved in each state. The characterization of the members of a P & A implementing agency as any of the above is largely irrelevant for purposes of determining their constitutional protection. What is important is that a governor's dismissal or failure to rehire would constitute state action triggering the fourteenth and first amendments. Thus, although most of the cases that have arisen in this area, including all of the cases discussed here, deal with state employees, the constitutional protection afforded all members of P & A implementing agencies should be the same regardless of their status vis-à-vis the state.

66 391 U.S. 563 (1968).

67 The Supreme Court has held that the right to petition applies to the judicial as well as to the other branches of government. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). Similarly, a civil suit against the government has been held to be an exercise of the right to petition. People v. Siragusa, 81 Misc. 2d 368, 366 N.Y.S.2d 336 (Dist. Ct. 1975).

68 In Tileston v. Ullman, 318 U.S. 44 (1943), the Supreme Court held that a doctor had no standing to sue the state for declaratory relief for alleged violations of his patient's constitutional rights without asserting that his own rights were violated as well.

69 Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-84 (1977). See also Perry v. Sindermann, 408 U.S. 593 (1972). Both Mt. Healthy and Perry involved public school I teachers whose contracts had expired and were not renewed by state officials. Both teachers I claimed that nonrenewal was in retaliation for their public statements and thus violated the first and fourteenth amendments to the Constitution. Neither teacher had a contractual or tenure right to reemployment, but the Supreme Court found that they could establish a claim for reinstatement nonetheless.

70 391 U.S. at 568.

71 Id.

72 42 U.S.C. § 6012 (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 508(a); 45 C.F.R. § 1386.70(a) (1977).

73 Id.

74 429 U.S. at 287.

75 Id.

76 Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974) (declaratory judgment); U.S. v. Scotland Neck City Bd. of Educ, 407 U.S. 484 (1972) (injunctive relief); Dupree v. Chattanooga, 362 F. Supp. 1136, 1141 (E.D. Tenn. 1973) (mandamus); Richey v. Wilkins, 335 F.2d 1 (2d Cir. 1964) (compensatory damages); Caperci v. Huntoon, 397 F.2d 799, 801 (1st Cir. 1968) (punitive damages). An action under 42 U.S.C. § 1983 (1976) is free from requirements of exhaustion of state judicial or administrative remedies. Ellis v. Dyson, 421 U.S. 426, 432 (1975).

77 Rothstein v. Wyman, 467 F.2d 226, 238 (2d Cir. 1972).

78 Burton v. Waller, 502 F.2d 1261, 1273 (5th Cir. 1974).

79 Courts traditionally have been wary of granting injunctive relief in the personal service contract area where damages are readily ascertainable. See, e.g., Fitzpatrick v. Michael, 177 Md. 248, 9 A.2d 639 (1939). However, where constitutional rights were threatened or impaired, courts have found irreparable injury justifying injunctive relief. See Elrod v. Burns, 427 U.S. 347 (1976); Amburgey v. Cassady, 507 F.2d 728 (6th Cir. 1974).

80 In Ex parte Young, 209 U.S. 123, 159 (1908), the Supreme Court held that when a state officer acts under state law in a manner violative of the U.S. Constitution, he “comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” However, in Pierson v. Ray, 386 U.S. 547, 554 (1967), the Court found that the legislative history of section 1983 gave “no clear indication that Congress meant to abolish wholesale all common law immunities”; it held, however, that absolute immunity for government officials did not exist. Thus, in damage actions under section 1983, the Court has recognized a qualified immunity for both judges and legislators acting within the scope of their authority. Pierson v. Ray, 386 U.S. 547 (1967); Tenney v. Brandhove, 341 U.S. 367 (1951). Similarly, in Scheuer v. Rhodes, 416 U.S. 243 (1974), the Court held that a qualified immunity to damage suits under section 1983 is available to officers of the executive branch. According to the Court, this immunity is dependent upon the scope of discretion and responsibilities of the office, and the exercise of discretion in good faith.

81 45 C.F.R. § 1386.70(b) (1977).

82 42 U.S.C. § 6067(a) (1976), as amended by Developmental Disabilities Assistance and Bill of Rights Act of 1978, Pub. L. No. 95-602, § 512(a).

83 Id.

84 Id.

85 Herr, Advocacy Under the Developmental Disabilities Act: A Discussion Paper on Implications of Section 113, P.L. 94-103 26 (Developmental Disabilities Office, Hew, n.d.). In Massachusetts, the Mental Health Legal Advisors Committee (MHLAC), a state agency providing free legal services to residents of mental health and retardation facilities, is selected by the justices of the Supreme Judicial Court of Massachusetts. Id. at 50.

86 42 U.S.C. § 2809(a)(3) (repealed 1974).

87 Legal Services Corporation Act of 1974, Pub. L. No. 93-355, § 3(d)(2), 88 Stat. 390 (1974). The OEO Legal Services Program was repealed largely because it was widely believed that the Program had gone beyond making legal remedies available to the poor and was spending too much of its resources to effect major political and economic change. Agnew, What's Wrong With the Legal Services Program, 58 A.B.A.J. 930 (1972); H.R. Rep. No. 247, 93rd Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. & Ad. News 3872, 3873. This objection does not apply to the proposed P & A scheme because it is less encompassing than the Legal Services Program. Only developmentally disabled persons are involved in the proposed scheme, not a large class, such as the poor, which has a similar interest in fundamental political and economic change.

88 42 U.S.C. §§ 2701 to 2995(d) (1976).

89 42 U.S.C. § 2809(a) (1976).

90 Id.

91 42 U.S.C. §2834(1976).

92 Id.

93 42 U.S.C. § 2790(d)(1) (1976).

94 Pursuant to Article I, § 8 of the U.S. Constitution, Congress may appropriate money in order to “provide for the … general welfare of the United States.” The spending power is distinct from and not restricted by other enumerated powers. U.S. v. Butler, 297 U.S. 1 (1936). Congress has used this power to appropriate money for programs in many areas. For instance, federal programs have been aimed at promoting education, alleviating poverty, planning local health programs, and constructing waste treatment works. See Comment, The Federal Conditional Spending Power: A Search for Limits, 70 Nw. U. L. Rev. 293 (1975)Google Scholar.

95 By imposing conditions on appropriations, Congress has sometimes succeeded in using the spending power to regulate areas outside the scope of its enumerated legislative authority. See Oklahoma v. U.S. Civil Service Commission, 330 U.S. 127 (1947); Helvering v. Davis, 301 U.S. 619 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937). The Supreme Court has dealt with the possibility that the spending power could be used by Congress to coerce the states in contravention of the tenth amendment, but it has found that a state's power to refuse federal funds is an adequate safeguard. Steward Machine Co. v. Davis, 301 U.S. 585, 589-90 (1937). However, this safeguard does not exist when Congress decides to give money directly to nongovernmental organizations within a state. In such cases, the tenth amendment may provide some check on the spending power. The tenth amendment prevents Congress from impairing “States’ integrity or their ability to function effectively in a federal system.” Fry v. U.S., 421 U.S. 542, 547 (1975). Thus, in National League of Cities v. Usery, 426 U.S. 833 (1976), the Court held that an Act of Congress violated the tenth amendment because it significantly altered or displaced states’ ability to provide traditional state services. The Court listed fire protection, police protection, sanitation, parks and recreation, and public health as examples of such services. Id. at 851. Protection and advocacy services for developmentally disabled persons do not appear to be in the same class as the traditional services which are at the core of a state's functions. Thus, Congress may set up such systems in states without their consent.