The Gazette 1976

March 1976

for example, participated with the Practising Law In- stitute, New York in the compilation of a three volume set of books entitled "Legal Rights of the Mentally Handicapped". This compilation was part of a mental health law programme organised " ( I n) response to the urgent need for the systematic involvement of lawyers and mental health professionals in improving the plight of the mentally handicapped".' Public interest lawyers have made significant ad- vancements in their quest to give visibility to the views of their clients. The case of Fr i ends of the Ea r th v Federal Communications Commission may be taken by way of illustration. 5 Plaintiffs in that case challenged the Federal Com- munications Commission's interpretation of the Fair- ness Doctrine as it applied to television advertisements for cars. The Fairness Doctrine is one of the few re- straints on the Constitutional right of freedom of ex- pression as enjoyed by broadcasters. The doctrine ob- liges broadcasting licences " ( To) . . . operate in the pub- lic interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public im- portance"." The Commission had applied the Fairness Doctrine to product advertising only in relation to cigarette commercials, i.e., television stations carrying such com- mercials were obliged to broadcast information out- lining the health hazards of cigarette smoking. Plain- tiffs argued for an extended interpretation of the doc- trine in relation to product advertising. In particular, they argued that television stations carrying advertise- ments promoting big cars with large horse power ratings should be obliged to broadcast information outlining the adverse effects of such cars on the en- vironment. Their argument was upheld by the United States Court of Appeals for the District of Columbia. 2. Test Case Litigation Public interest lawyers have fostered the "big case" approach as a technique of advocacy. 7 Many have re- cognised that changes in substantive legal norms and in the structures and practices of institutions can be achieved in the judicial as well as in the political forum. Litigation can have advantages over both political lobbying and negotiation in achieving reforms. The adversary process enables issues, however complex, to be defined and adjudicated upon in a forum that is not dominated by special interest groups. Moreover, the public consciousness provoked by dramatic litigation can be used to prompt legislative initiative on social issues. Exponents of test-case litigation emphasise its diffi- culties as well as its advantages and advocate its use only after more conventional methods of achieving reforms have failed. Test-case litigation requires con- sideration of several factors not relevant to regular htigation. The " h a r d" case has greater impact, and so it is sought to procure a plaintiff whose fact situation is appealing. The known proclivities of judges in alter- native fori, diffeTences in procedural rules and the rules of stare decisis, are factors which are considered in the selection of a forum. Finally, mention can be made of the precedent value of arguing a case on constitutional grounds. The case of Wyatt v Stickney affords a good illustration of successful test-case litigation. 8 Investigations into conditions in some of Alabama's mental institutions, conducted after an administrative decision to reduce staff in one of these institutions, re- vealed great inadequacies as regards facilities and staff-

ing. The Wyatt case was brought on foot of the in- vestigations. It was framed as a class action on behalf of patients involuntarily confined for mental treatment purposes in Alabama's mental institutions. The Prin- cipal defendant in the case was the Commissioner of Mental Health and the State of Alabama Mental Health Officer. Plaintiffs alleged a deprivation of their right to re- habilitative treatment, a right which they argued was guaranteed them under the Due Process and Equal Protection clauses of the Federal Constitution. Their imposed minimum standards for adequate treatment of the mentally ill — was a novel one. The Court, having found for the plaintiffs on the constitutional issue, held that the defendants' treatment programme fell short of the minimum standards re- quired by the Constitution. In particular, it was held that the programme failed to provide: (1) a humane psychological and physical environment, (2) qualified strff in numbers treatment plans. Moreover, the court held that the defendants' non-compliance with the constitutional standards could not be justified by lack of resources. The order of the court embodied the suggestions made by the plaintiffs' lawyers and by several amici curiae who had joined the litigation. It required de- fendant to comply with a detailed set of standards for treatment of the mentally ill laid down by the court. Implementation of the standards was to be supervised by Human Rights Committees appointed by the Court. In addition, defendants were obliged to submit to the Court within six months a report on the process made in implementing the order. The assistance of Mr. Charles Halpcn, Director of the Centre for Law and Social Policy, Washington, D.C., is most gratefully acknowledged. FOOTNOTES 1. Office of Communication of the United Church of Christ and Others v. Federal Communications Commission, 359 Fed. Rep., 2d. 994 )D.C. Cir. 1966). 2. Per Burger J., id. at p. 1005. 3. Berlin, Roisman and Kesslcr, "Public Interest Law", 38 Geo. Wash. L. Rev. 675., 679. 4. 3 B. Ennis and P. Friedman, "Legal Rights of the Mentally Handicapped", 1519 (1973). 5. Friends of the Earth v Federal Communications Com- mission, 449 F. 2d. 1164 (D. C. Cir. 1971). 6. 73 Stat. 557 (1959) 47 U.5.C. s. 315(a) 1964. The Fed- eral Communications Commission, when promulgating the Fairness Doctrine in 1949, characterised it as "the foundation stone of the American system of broadcasting". Editorialising by Broadcast Licensees, 13 F. C. C. 1246, 1249 (1949). 7. For a good assessment of test-case litigation as a tech- nique of public interest law representation see "The New Public Interest Lawyers", 79 Yale L.J., 1070, 1076-1078 (1970). 8. Wvatt v Sticknev 344 F. Supp. 387 (M. D. Ala 1972) Solictors' Golfing Society Officers 1976 President: Patrick C. Moore. Captain : Eugene Gillan. Treasurer : David Bell. Secretary : Henry N. Robinson. Outings : President's Prize—Thursday, July 1st, at Mill- town. Captain's Prize—Saturday, October 2nd, at Baltray .

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