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.

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.

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

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.

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 .