Jeff D. Ex Rel. Belodoff v. Otter

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFF D., PAULA E., JOHN M., aND 

DUSTY R., by and though their

next friend, HOWARD A.

BELODOFF,* individually and on

behalf of all others similarly

situated,

Plaintiffs-Appellants,

v.

CLEMENT LEROY OTTER,*

individually and in his official

capacity as Governor of the State 

of Idaho; TOM LUNA,* individually

and in his official capacity as

Superintendent of Public

Instruction of the Idaho State

Department of Education; RICHARD

ARMSTRONG,* individually and in

his capacity as Director of the

Idaho Department of Health and

Welfare; and SHARON

HARRIGFELD,*



*HOWARD A. BELODOFF is substituted for his predecessor Charles John-

son, next friend; CLEMENT LEROY OTTER is substituted for his predecessor

Dirk Kempthorne, Governor of the State of Idaho; TOM LUNA is substi-

tuted for his predecessor Jerry Evans, Superintendent of Public Instruction

of the Idaho State Department of Education; RICHARD ARMSTRONG is sub-

stituted for his predecessor Karl Kurtz, Director of the Idaho Department

of Health and Welfare, and SHARON HARRIGFELD is substituted for her pre-

decessor Brent Reinke, Director of the Department of Juvenile Correc-

tions, pursuant to Fed. R. App. P. 43(c)(2).

6839

6840 JEFF D v. OTTER

individually and in her official  No. 07-36009

capacity as Director of the Idaho

Department of Juvenile  D.C. No.

CV-80-04091-BLW

Corrections,

Defendants-Appellees.

 OPINION

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

August 6, 2010—Seattle, Washington

Filed May 25, 2011

Before: William C. Canby, Jr., John T. Noonan, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Canby

JEFF D v. OTTER 6843

COUNSEL

Howard A. Belodoff, Boise, Idaho, for the plaintiffs-

appellants.

Michael S. Gilmore; James D. Carlson; Deputy Attorneys

General, Boise, Idaho, for the defendants-appellees.

OPINION

CANBY, Senior Circuit Judge:

The Plaintiffs, a class of indigent children who suffer from

severe emotional and mental disabilities, commenced this

action against Idaho state officials more than three decades

ago, alleging that the officials were providing them with inad-

equate care in violation of their constitutional and statutory

rights. In the ensuing years, the parties reached agreements

intended to remedy deficiencies in care, and those agreements

were embodied in three consent decrees entered and moni-

tored by the district court.

After a number of disputes had resulted in no less than four

6844 JEFF D v. OTTER

appeals to this court,1 the district court in 2006 held a “final

compliance hearing” to determine whether the Defendants

were in compliance with the terms of the decrees. The court

determined that compliance would be measured by the Defen-

dants’ success in addressing Action Items that had been speci-

fied in an Implementation Plan that resulted from the third

consent decree. Because the court viewed civil contempt as

the only effective method of enforcing the consent decrees, it

placed the burden on the Plaintiffs of establishing non-

compliance by clear and convincing evidence. At the conclu-

sion of the hearing, the district court found that the Defen-

dants were not in compliance with respect to several of the

Action Items, but that they had substantially complied with

the majority of the Items. The court ordered the Defendants

to take all steps necessary to bring themselves into substantial

compliance with the Action Items for which they were in

default, after which they could move to vacate the decrees.

The Defendants took the steps that they deemed necessary

and moved to vacate the decrees. In 2007, the district court

found that the Defendants had substantially complied with the

remaining Action Items, and it issued an order vacating the

consent decrees.

The Plaintiffs appeal the order, asserting that it was error

for the district court to apply the standard for civil contempt

in determining whether to vacate the decrees. In applying that

standard, the court required the Plaintiffs to prove by clear

and convincing evidence that the Defendants had violated the

terms of the decrees and that they had not done so in good

faith or on the basis of a reasonable interpretation of the

decrees. To be entitled to an order vacating consent decrees

under Federal Rule of Civil Procedure 60(b), however, the

Defendants are required to sustain the burden of establishing

1

See Jeff D. v. Kempthorne (Jeff D. IV), 365 F.3d 844 (9th Cir. 2004);

Jeff D. v. Andrus (Jeff D. III), 899 F.2d 753 (9th Cir. 1990) (amended

opinion); Jeff D. v. Andrus, 861 F.2d 591 (9th Cir. 1988); Jeff D. v. Evans,

743 F.2d 648 (9th Cir. 1984), rev’d, 475 U.S. 717 (1986).

JEFF D v. OTTER 6845

that they have substantially complied with the decrees or that

facts or law have changed so that “it is no longer equitable

that the judgment should have prospective application.” Jeff

D. v. Kempthorne (“Jeff D. IV”), 365 F.3d 844, 851 (quoting

Rule 60(b)(5) as then phrased). The district court’s applica-

tion of the contempt standard with the imposition of the bur-

den of proof on the Plaintiffs accordingly was error. In

addition, we conclude that the district court erred in accepting

the Action Items as the entire measure of compliance with the

consent decrees. We accordingly reverse the order of the dis-

trict court.

The Plaintiffs further contend that the district court com-

mitted errors of fact and law in issuing protective orders bar-

ring them from taking supplemental depositions of Appellee

Karl Kurtz and two non-parties. Finding no such errors, we

affirm those rulings of the district court.

BACKGROUND AND PROCEDURAL HISTORY

In August 1980, Appellant Jeff D., on behalf of a class of

indigent Idaho children suffering from severe emotional and

mental disabilities, commenced this action against the Gover-

nor of Idaho and other state officials, alleging that the offi-

cials were providing them with inadequate care in violation of

their rights under the United States Constitution, the Idaho

Constitution, and federal and state statutes.2 The complaint

sought only declaratory and injunctive relief.

In 1983, the parties entered into a settlement agreement that

offered virtually all of the injunctive relief the class members

2

We refer to the state officials collectively as the “Defendants.” Individ-

ual Defendants are identified by name or title. In addition to the Governor,

the primary defendants are the Director of the Department of Health and

Welfare, named as a defendant from the outset, and the Director of the

Department of Juvenile Corrections, who was added as a defendant later

in the proceedings.

6846 JEFF D v. OTTER

sought. The agreement provided for continuing jurisdiction by

the district court for five years “or until [the district court

was] satisfied by stipulation or otherwise that the claims as

alleged in the Complaint have been adequately addressed.”

The district court entered the agreement as a consent decree

in April 1983.

By the late 1980s, after years of inaction on the part of the

Defendants, the Plaintiffs filed a motion to enforce the decree.

The parties again negotiated a settlement and eventually stipu-

lated to a supplemental agreement, which the district court

entered as a second consent decree in December 1990. The

following seven years witnessed additional charges of non-

compliance, admissions of failure, court intervention, outside

auditing, compliance reviews, and finally, in March 1998, a

motion by the Plaintiffs for a finding of contempt against the

Defendants based on the negative findings of the most recent

compliance review. The motion, however, resulted not in a

formal determination by the district court but in a “compli-

ance agreement” that purported to “reach a full and final set-

tlement of the Motion for Contempt.” In December 1998, the

district court entered the agreement as a third consent decree.

For our purposes, the most significant aspect of the compli-

ance agreement was the requirement that the Defendants pro-

vide to the Plaintiffs an independently produced “Needs

Assessment” and compliance plan. Two years later, after no

more headway than a motion to dismiss, another motion for

contempt, and an appeal, the district court “determined that it

must take a more active role in enforcing the Decrees.”

The first step taken by the district court was to order the

parties jointly to develop a new compliance plan providing “a

comprehensive blueprint of how the defendants would meet

the requirements of the decrees.” The parties submitted a pro-

posed plan in February 2001. After briefing and argument, the

court issued a memorandum decision adopting the plan,

which became known as the “Implementation Plan.”

JEFF D v. OTTER 6847

The Implementation Plan comprises a foreword expressing

the views of the Defendants, an introduction providing an

overview of the planning and oversight processes, and a “Rec-

ommendations” section with 50 specific recommendations

drawn from the Needs Assessment. “Recommendation 1,” for

instance, states: “Parents of children with serious emotional

disturbances and children old enough to participate must be

part of all system planning, decision-making, management,

training, and evaluation.” Each recommendation includes

three subsections, some quite lengthy but most measuring

only a paragraph or two, headed “Background/Framework for

Implementation,” “Priority Action Items and Timelines,” and

“Desired Results.” In all, the Implementation Plan contains

252 Action Items.

The district court required the Defendants to file regular

status reports “documenting their compliance with deadlines,

addressing any non-compliance, and listing the measures they

are taking to bring any areas of non-compliance into compli-

ance as quickly as possible.” In May 2002, the parties filed a

joint report to apprise the court of “the progress of the Imple-

mentation Plan” and to “provide an overview of the recom-

mendations by category.” In January 2003, the court directed

the parties to create a matrix identifying those Action Items

with which the Defendants had complied and those Action

Items with which the Defendants, according to the Plaintiffs,

had not complied.3

Matrix in hand, the district court scheduled a “final compli-

ance hearing” for September 2006. In preparation for the

hearing, the court ordered the parties to file a joint stipulation

of undisputed facts, categorizing the facts by Action Item.

The parties complied and, following consideration of the stip-

3

The matrix numbered the action items according to the Recommenda-

tions in the Implementation Plan to which the Action Items applied. For

example, the first Action Item under Recommendation 1 was Action Item

1A; the second under Recommendation 1 was Action Item 1B, etc.

6848 JEFF D v. OTTER

ulation, the briefs, and a bench trial of the disputed facts, the

court issued its Findings of Fact and Conclusions of law

addressing the issues Action Item by Action Item.

The court determined that the Plaintiffs had failed to sus-

tain their burden of proof or that the Defendants had substan-

tially complied with the majority of Action Items. With

respect to 21 of the Action Items, however, the court held that

the Plaintiffs had “show[n] by clear and convincing evidence

that [the Defendants substantially] violated the consent judg-

ment . . . , and that the violation was not based on good faith

and reasonable interpretation of the judgment.” The court

ordered the Idaho Department of Health and Welfare (the

“DHW”) “to take all steps necessary to substantially comply

with [the 21] Action Items . . . within 120 days,” adding that

“[o]nce the defendants are in compliance with these Action

Items, the defendants may file a motion to vacate the consent

decrees.”

In June 2007, the DHW filed affidavits of further compli-

ance with the district court and, together with the Idaho

Department of Juvenile Corrections, moved to vacate the con-

sent decrees. The court found that the Defendants had sub-

stantially complied with all the Action Items, and vacated the

consent decrees. This appeal followed. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

STANDARDS OF REVIEW

We review de novo, as a question of law, the district

court’s interpretation of a consent decree. See Keith v. Volpe,

784 F.2d 1457, 1461 (9th Cir. 1986). However, we must “give

deference to the district court’s interpretation based on the

court’s extensive oversight of the decree from the commence-

ment of the litigation to the current appeal.” Officers for Jus-

tice v. Civil Serv. Comm’n of City and Cnty. of S.F., 934 F.2d

1092, 1094 (9th Cir. 1991). We likewise “must defer to the

district court’s factual findings underlying the interpretation

JEFF D v. OTTER 6849

unless they are clearly erroneous.” Labor/Cmty. Strategy Ctr.

v. Los Angeles County Metro. Transp. Auth., 263 F.3d 1041,

1048 (9th Cir. 2001). We review for an abuse of discretion the

court’s decision to vacate the consent decrees. See Jeff D. IV,

365 F.3d at 850. “A district court abuses its discretion if it

does not apply the correct law or if it rests its decision on a

clearly erroneous finding of material fact.” Casey v. Albert-

son’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).

DISCUSSION

We wish to make clear at the outset that we recognize and

appreciate that the district judge has expended a great deal of

time and effort wrestling with the attempted enforcement of

these consent decrees for at least the last thirteen years, and

has issued orders that helped to move the State towards the

achievement of the agreed goals. We conclude, however, for

the reasons that follow, that it was error for the district court

to vacate the consent decrees, and we accordingly reverse the

order of vacatur.

I. Standard for Determining Compliance to Permit

Vacatur of Consent Decrees.

[1] The Defendants moved for vacatur of the consent

decrees under Federal Rule of Civil Procedure 60(b)(5),

which permits a party to be relieved from a final judgment

when “the judgment has been satisfied, released or dis-

charged.” The Defendants bear the burden of proving that

they have met the Rule’s requirements: in this case, that they

have satisfied the judgment.4 See Rufo v. Inmates of Suffolk

County Jail, 502 U.S. 367, 383 (1992); Jeff D. IV, 365 F.3d

at 851.

4

Rule 60(b)(5) also permits vacatur of a decree when “applying it pro-

spectively is no longer equitable,” but the Defendants’ motion and the dis-

trict court’s order were clearly based on the conclusion that the judgment

had been satisfied by compliance.

6850 JEFF D v. OTTER

[2] The parties do not dispute that the relevant standard is

“substantial compliance” with the requirements of the consent

decrees. Because consent decrees have “many of the attributes

of ordinary contracts [and] . . . should be construed basically

as contracts,” United States v. ITT Cont’l Baking Co., 420

U.S. 223, 236 (1975), the doctrine of substantial compliance,

or substantial performance, may be employed. See Joseph A.

v. New Mexico Dept. of Human Servs., 69 F.3d 1081, 1086

(10th Cir. 1995); see also Ujdur v. Thompson, 878 P.2d 180,

183 (Idaho Ct. App. 1994) (“[T]he doctrine of substantial per-

formance . . . is not necessarily limited to [any particular] con-

text and may apply to any contract.”). The construction and

enforcement of the consent decrees, where the parties are resi-

dents of Idaho and the underlying agreements were entered in

that state, is governed by the contract law of Idaho as well as

familiar contract principles. See Jeff D. III, 899 F.2d at 759-60

(applying Idaho law).

[3] “The phrase ‘substantial compliance’ is not susceptible

of a mathematically precise definition.” Joseph A., 69 F.3d at

1085. We have explained that substantial compliance “does

imply something less than a strict and literal compliance with

the contract provisions but fundamentally it means that the

deviation is unintentional and so minor or trivial as not ‘sub-

stantially to defeat the object which the parties intend to

accomplish.’ ” Wells Benz, Inc. v. United States, 333 F.2d 89,

92 (9th Cir. 1964) (quoting Connell v. Higgins, 150 P. 769,

775 (Cal. 1915)). Under Idaho law, substantial compliance is

compliance “which, despite deviation or omission, provides

the important and essential benefits of the contract.” Ujdur,

878 P.2d at 183.

[4] Thus, it was the burden of the Defendants to establish

that they had substantially complied with the requirements of

the consent decrees, and that any deviation from literal com-

pliance did not defeat the essential purposes of the decrees.

We conclude that this burden was not placed on the Defen-

dants in the district court’s final compliance proceeding.

JEFF D v. OTTER 6851

II. The Compliance Hearing

Although the district court held what it described as a

“compliance hearing” in September 2006 to determine

whether the defendants were in compliance with the consent

decrees, the court clearly considered the operative issue to be

whether the Defendants were in contempt of the consent

decrees. Thus, at the outset of the bench trial, the district court

stated:

I want to take a minute and make sure that we’re

all on the same page as far as the standard which the

Court must apply here, because I think that is very

critical. This case —well, first of all, let me indicate

that civil contempt, which I think is really the only

remedy that the court can consider here. I don’t

know that I can award damages per se. But civil con-

tempt consists of a party’s disobedience to a specific

and definite court order by failure to take all reason-

able steps within the party’s power to comply. The

party should not be held in contempt if its actions

appear to be based on a good faith and reasonable

interpretation of the Court’s order, and the party

alleging civil contempt must demonstrate that the

alleged contemnor violated the Court’s order by

clear and convincing evidence. . . . Thus, as dis-

cussed above, the only issues are, has the plaintiff’s

[sic] shown by clear and convincing evidence that

the defendants have not substantially complied with

their obligations under the consent decree.

In its Findings and Conclusions, the district court further

explained: “In determining whether a party has complied with

a consent decree, the Court must consider what enforcement

mechanisms are available. Obviously, the only real sanction

available to the Court is to find that a party is in contempt for

failing to comply with the consent decree.”5 The district court

5

We do not agree with the district court’s implicit conclusion that a con-

sent decree cannot be maintained in force if no party is in contempt. See

6852 JEFF D v. OTTER

then resolved to “evaluate the evidence presented to deter-

mine whether the defendants violated the Action Items” using

the civil contempt standard.

[5] It is clear from the above statements of the district

court that all of its findings with regard to the Action Items

were subject to the evidentiary burden and standard of proof

for establishing civil contempt. Rather than requiring the

Defendants to demonstrate substantial compliance by a pre-

ponderance of the evidence, the court required the Plaintiffs

to show by clear and convincing evidence that, first, the

Defendants had “violated the Action Items beyond substantial

compliance” and, second, “that the violation was not based on

good faith and reasonable interpretation of the judgment.”

That standard was reiterated many times by the district court

in its findings. The district court never stated that the Defen-

dants bore or had sustained the burden of showing substantial

compliance. Thus, whether the district court’s findings were

phrased as failures of the Plaintiffs to sustain their burden of

proof, or as statements that the Defendants had substantially

complied, the findings were all the products of the civil con-

tempt burden and standard of proof.

[6] The district court’s allocation of the burden and stan-

dard of proof would have been appropriate if the only issue

had been whether the Defendants should be held in contempt.6

Gates v. Gomez, 60 F.3d 525, 532 (9th Cir. 1995) (“[A] specific finding

of a past violation is not prerequisite to an injunction preventing a future

violation.”). A decree may properly be kept in force to ensure that the

defendants will continue to comply, especially when there has been a his-

tory of non-compliance. See Freeman v. Pitts, 503 U.S. 467, 491 (1992)

(stating that a court considering termination of a consent decree “should

give particular attention to [the defendant’s] record of compliance.”). The

court also is not entirely limited to contempt as a means of enforcement.

See Hutto v. Finney, 437 U.S. 678, 691 & n.17(1978) (stating that attor-

ney’s fees may be awarded as part of court’s enforcement powers against

a party that disregarded a court’s order).

6

The Plaintiffs sought enforcement of the consent decrees, but had not

specifically asked for a finding of contempt.

JEFF D v. OTTER 6853

But that framework was not appropriate for determining

whether the Defendants had sufficiently complied with the

consent decrees so that they were entitled to have the decrees

vacated.

The adherence of the district court to the burden and stan-

dard of proof for civil contempt is illustrated by the fact that,

with regard to Action Items Nos. 12B, 13A, 21C, 23B, 27F,

29G, 31F, and 31L, the only finding was that the Plainfiffs

had failed to sustain their “clear and convincing” burden of

proof. With regard to Action Items 2B, 18C, 26D, 26G, 28B,

28F, 29K, 32D, and 32E, the court referred to evidence in the

record, but ruled only that the Plaintiffs had failed to meet

their burden of proof, without a finding that the Defendants

had substantially complied. Yet the effect of these rulings was

to consider the Defendants to have substantially complied

with all of those Action Items for the purposes of determining

whether the consent decrees should be vacated.

Some of these findings that the Plaintiffs had not sustained

their burden of proof were based on the court’s requirement,

understandable enough for purposes of determining whether

some of the Defendants were in contempt, that the Action

Item place a burden of action on an individual Defendant. The

result was that if an Action Item required something to occur

but failed to specify the individual responsible for initiating or

following through on the action, the district court typically

held that the plaintiffs did not identify “any specific and defi-

nite requirements” with which the individual defendants

failed to comply. Again, that approach may be appropriate for

a finding that no one is in contempt, but it does not answer

the question whether an action item that contemplated a step

to be taken collectively by the Defendants had been substan-

tially performed. With regard to the above-listed Action

Items, that question simply has not been answered.

This deficiency is particularly apparent when the Action

Item contemplates activity by the Idaho Children’s Council on

6854 JEFF D v. OTTER

Mental Health (“ICCMH”), a coordinating council that was

established by the Governor in accordance with a recommen-

dation of the independent Needs Assessment. The member-

ship of the ICCMH included the Governor and representatives

from several state agencies, including the DHW and the DJC.

The district court stated at the outset of its February 7, 2007,

Findings and Conclusions:

[W]hen determining whether a defendant is in com-

pliance with an Action Item that requires action on

the part of ICCMH, the Court will consider whether,

and to what extent, Plaintiffs have shown by clear

and convincing evidence that an individual defen-

dant has a specific duty to act. If a defendant failed

to do its part as a member of the ICCMH, the Court

will hold that defendant in contempt. However, a

general assertion that the ICCMH failed to fulfill an

Action Item is not sufficient to find an individual

defendant in contempt.

Again, this approach is quite appropriate for ruling which

individuals, if any, are in contempt. But it does not address

the issue whether, when the ICCMH has failed to act as

required by an Action Item, the Defendants (i.e., the Governor

or the DHW or, to a more limited extent, the DJC) have failed

to achieve the agreed action required by the consent decrees

before those decrees may be vacated. For example, the court

set out Action Item 30G and its finding as follows:

30G: The ICCMH will use this information [day

treatment data and standards] to develop recom-

mendations for the Governor’s consideration in

developing his budget decisions.

DHW tracks the utilization of the day treatment

which is included in the Community Report. (Tr., p.

1629). Plaintiffs failed to present clear and convinc-

ing evidence that the defendants failed to comply

JEFF D v. OTTER 6855

with any specific and definite requirements of the

defendants related to this Action Item, and therefore

Plaintiffs failed to meet their burden of proof. More-

over, to the extent DHW had requirements under the

Action Item, DHW substantially complied with

those requirements.

It is noteworthy that this finding does not indicate that

ICCMH or anyone else used the day treatment data and stan-

dards to develop recommendations for the Governor’s consid-

eration in developing his budget decisions, or that the

Governor considered any such recommendations. Yet the par-

ties to these consent decrees agreed that carefully developed

recommendations for the Governor were needed to accom-

plish the purposes of the decrees. It may be that DHW’s

responsibility for any failures on the part of ICCMH was

insufficiently spelled out to permit holding individuals or

DHW in contempt. But the Item is set forth with sufficient

specificity to indicate that data-based recommendations con-

cerning day treatment are a requirement for substantial com-

pliance with the decree.

It is true that the Action Items were sometimes vague in

setting out exactly who was to do what. An example is Action

Item 4M, which was treated as follows in the district court’s

2007 Findings and Conclusions:

4M: Clarification of the Role of Regional and

Local councils to provide information to their

communities.

ICCMH approved a communication strategy and

DHW developed a “social marketing plan” and

numerous multimedia methods to use as outreach

tools. (Tr., p. 1484). However, this does not neces-

sarily clarify the role of the Regional and Local

councils. Plaintiffs failed to present clear and con-

vincing evidence that the defendants failed to com-

6856 JEFF D v. OTTER

ply with any specific and definite requirements of

the defendants related to this Action Item, and there-

fore Plaintiffs failed to meet their burden of proof.

Moreover, to the extent DHW had requirements

under the Action Item, DHW substantially complied

with those requirements.

Here again, it is important to differentiate between the ques-

tion whether anyone is to be held in contempt and the ques-

tion whether there has been substantial compliance with the

consent decrees. The Action Item well may be too vague in

imposing duties to permit contempt sanctions to be imposed

on individuals. See Balla v. Idaho State Bd. of Corrections,

869 F.2d 461, 465 (9th Cir. 1989). But the parties to the con-

sent decrees agreed to the “clarification” called for by the

Action Item. In reaching such an agreement, the parties

clearly contemplated action by some person or entity. It is

most reasonable to conclude that the burden is on the state

Defendants; it certainly could not be upon the Plaintiffs, who

are not part of the Idaho government. The court’s finding

wholly absolves DHW of any responsibility for achieving the

result commanded by Action Item 4M, and results in a finding

of substantial compliance when the action required by the

Action Item has not come to pass (at least so far as any find-

ing shows).

The Plaintiffs have made extended arguments that several

of the district court’s findings were clearly erroneous, particu-

larly those dealing with funding of community-based services.

We decline to review these findings because they were made

under an incorrect burden and standard of proof, as we have

already explained. We have no way of determining whether

and how these findings would change when the evidence is

assessed by the district court with the burden of proof by a

preponderance of the evidence placed on the Defendants to

show substantial compliance with the Action Items. As

explained in the next section, the status of funding, when

found by the district court under the proper burden and stan-

JEFF D v. OTTER 6857

dard of proof, will enter the determination whether the pur-

poses of the consent decrees have been satisfied to the degree

that permits vacatur of the decrees.

[7] In sum, then, we conclude that the employment of the

contempt burden and standard of proof was improper for a

determination of substantial compliance that permits the con-

sent decrees to be vacated, and that it had sufficiently prejudi-

cial effects on the findings and conclusions of the district

court so that its order vacating the decrees must be reversed.

III. The Action Items as the Sole Measure of Substantial

Compliance.

[8] The Plaintiffs strongly object to the district court’s

resort to only the Action Items in determining whether there

had been substantial compliance with the consent decrees that

justified their vacatur. In its Findings and Conclusions leading

to the order vacating the consent decrees, the district court

confined its rulings to the Action Items and said nothing of

the overall objectives of the decrees. We agree with the Plain-

tiffs that the Action Items, while clearly relevant, are not the

only matters to be considered in determining whether the con-

sent decrees have served their purpose. The status of compli-

ance in light of the governing standards require overall

attention to whether the larger purposes of the decrees have

been served. Indeed, this requirement is inherent in the very

nature of “substantial compliance.” “[T]he touchstone of the

substantial compliance inquiry is whether Defendants frus-

trated the purpose of the consent decree — i.e., its essential

requirements.” Joseph A., 69 F.3d at 1086. “Thus, there can

be no ‘substantial performance’ where the part unperformed

touches the fundamental purpose of the contract and defeats

the object of the parties entering into the contract.” Ujder, 878

P.2d at 183.

Even if the doctrine of substantial performance had not

been employed, it would have been necessary for the district

6858 JEFF D v. OTTER

court to focus on “whether there has been full and satisfactory

compliance with the decree . . . and whether the [defendant]

has demonstrated . . . its good-faith commitment to the whole

of the court’s decree and to those provisions of law and the

Constitution that were the predicate for judicial intervention

in the first instance.” Freeman v. Pitts, 503 U.S. 467, 491

(1992). A court considering termination of a consent decree

in light of performance of its specific terms “must also con-

sider the more general goals of the decree which the terms

were designed to accomplish.” Youngblood v. Dalzell, 925

F.2d 954, 960 (6th Cir. 1991). “A court faced with a motion

to terminate . . . a consent decree must begin by determining

the basic purposes of the decree.” United States v. City of

Miami, 2 F.3d 1497, 1505 (11th Cir. 1993). Here, the decrees

themselves set out their basic purposes, see, e.g., Jeff D. III,

899 F.2d at 760, and these purposes are also reflected in the

recommendations of the independent Needs Assessment that

found their way into the Implementation Plan.

For example, the single goal receiving the most emphasis

in those documents was the need for more emphasis on

community-based care and less on institutional care. See Jeff

D. IV, 365 F.3d at 848. Whether sufficient progress has been

made in that direction is certainly one of the factors to be con-

sidered in determining whether the consent decrees should be

vacated. The resolution of the disputed question whether the

Defendants have lived up to their obligations to request ade-

quate funding and to redirect their existing funding to increase

community-based services will clearly bear on this determina-

tion. Another factor to be considered is the Defendants’ “re-

cord of compliance,” Freeman, 503 U.S. at 491, which over

course of the litigation has been far from exemplary. See Jeff

D. IV, 365 F.3d at 847 (“The history of this case is a sad

record of promises made and broken over two decades.”).

[9] It is true, as the Defendants argue, that the district court

clearly announced its intention to reach a final compliance

determination that would permit the decrees to be vacated,

JEFF D v. OTTER 6859

and it focused the efforts of the parties toward resolving the

disputed issues over the Action Items. But the Plaintiffs made

known their view that the decrees and the Implementation

Plan’s recommendations must be taken into account in deter-

mining whether the purposes of the consent decrees had been

substantially served.

The Defendants argue that the Implementation Plan is too

vague to consider in determining compliance, and its terms

reflected that it was a work in progress that stated “Desired

Results” rather than measurable goals. It is true that the

decrees’ statement of purposes and the Implementation Plan’s

recommendations are often too vague to serve as a foundation

for a contempt sanction. That does not mean, however, that

the district court can avoid considering them in its final deter-

mination whether the purposes of the decrees, and the Imple-

mentation Plan, had been adequately served. It may be that

compliance with Action Items was all that was required for

certain of the overall purposes of the decrees or the Imple-

mentation Plan, but that finding or conclusion has not been

made. Before the consent decrees may be vacated, there must

be careful attention to their purposes, along with consider-

ation of the Action Items. If the purposes of the consent

decrees and the Implementation Plan have not been ade-

quately served, the decrees may not be vacated.

It is true that the district court recited the standard for

vacating consent decrees set forth in Rufo, 502 U.S. at 393,

and Jeff D. IV, 365 F.3d at 851, and opined that the “defen-

dants have fulfilled their burden under Rufo, having made sig-

nificant efforts to substantially comply with their promises.”

But the context of the district court’s statement was clearly

confined by the contempt-based findings of compliance with

the Action Items. The fruit of the “significant efforts” found

by the district court was compliance with the Action Items

alone. Explicit consideration of the goals of the decrees and

Implementation Plan, and whether those goals have been ade-

quately served, must be part of the determination to vacate the

6860 JEFF D v. OTTER

consent decrees. Because that consideration was lacking and

because, as we have already discussed, the contempt standard

and burden of proof was used in determining to vacate the

decrees, we reverse the order vacating the decrees.

IV. The Protective Orders

The Plaintiffs contend that the district court abused its dis-

cretion by issuing protective orders barring them from taking

supplemental depositions of non-party Brad Foltman and

Appellee Karl Kurtz.

[10] “[A] district court has wide discretion in controlling

discovery.” Little v. City of Seattle, 863 F.2d 681, 685 (9th

Cir. 1988). The court in this case carefully reviewed the depo-

sitions of both Foltman and Appellee Kurtz, and concluded

that the additional information sought—budget requests, the

content of deliberations within the executive office, the con-

tent of conversations between the Governor and his subordi-

nates, opinions rendered by legislative advisors—was both

“predecisional” and “deliberative in nature” and therefore

protected from disclosure. Those conclusions were supported

by the record. The court also made specific findings as to

whether either the competing-interests exception, see FTC v.

Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984),

or the waiver exception, see Marylanders for Fair Represen-

tation, Inc. v. Schaefer, 144 F.R.D. 292, 298 (D. Md. 1992),

applied, and concluded that they did not. We find no error in

those rulings. Accordingly, the district court did not abuse its

discretion in upholding Foltman’s and Kurtz’s assertion of the

deliberative process privilege and in issuing protective orders.

[11] The Plaintiffs further contend that the district court

“improperly applied the analysis for the legislative privilege”

to non-party Kathy Holland-Smith, a legislative budget ana-

lyst. The protections of the privilege extend, however, not

only to legislators but to legislative aides and assistants, “the

day-to-day work of [whom] is so critical to [a legislator’s]

JEFF D v. OTTER 6861

performance that they must be treated as the latter’s alter

egos.” Gravel v. United States, 408 U.S. 606, 616-17 (1972);

see also Marylanders, 144 F.R.D. at 298 (“It is the function

of the government official that determines whether or not he

is entitled to legislative immunity, not his title.”). The factual

findings of the court with respect to Holland-Smith’s activi-

ties as a budget analyst amply support the conclusion that she

was entitled to the legislative privilege by reason of her func-

tion in the legislature. Accordingly, the district court did not

err in upholding Holland-Smith’s assertion of legislative priv-

ilege.

CONCLUSION

For the foregoing reasons, we reverse the order of the dis-

trict court vacating the consent decrees; affirm the order of the

district court issuing protective orders with respect to Appel-

lee Kurtz, non-party Foltman, and non-party Holland-Smith;

and remand for further proceedings consistent with this opin-

ion. The Plaintiffs are entitled to their costs on appeal.

REVERSED IN PART; AFFIRMED IN PART;

REMANDED.