Petition — Morales v. Turman

Supreme Court brief1977

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Text

R6-588)

IN THE SUPREME COURT OIL THE

OCTOBER TERM, 1°”

ALICIA MORALES, et al.,

Petitioners,

Vv.

JAMES TURMAN, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

DEC 16 ja7¢

MICHAEL RODAK, JR. CLERK |

UNITED STATES

TO TRE UNITED STATES COURT OF APPEALS

FOR THe FIFTH CiRCUIT

PETER 3. SANDMANN y

PAULINE H. TESLER Le

Youth Law Center ‘

693 Mission Street > >

San Francisco, CA 94105 w eg 4

STEVEN BERCU

1011 N. Mesa ale

El Paso, TX 79962

Attorneys for Petitioners

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1 TABLE OF CONTENTS 1 TABLE OF AUTHORITIES

2 face ’ Page

ae re Ear a See 3] A.P. of L. v. Watson, 327 U.S. 582, 592-93 (1946) 17

4 JURISDICTION. . . . . . . . . . . . . 7 . . . . . 7 . . . 2 4 Ault Vv. Holmes, 506 F. 2d 288 (6th Cir. 1974). 20

STION PRESENTED. . . . . . . . . . . . . . . . . . . . 2 5 Baker Vv. Estelle, sub nom., Sands Vv. Wainwright,

5] Cv . ; 7 (Sth Cir. I973) 10,11,12

s INVOLVED . J 7 >. . .* >. >. >. >. >. om >. . >. >. * >. . . 2

6} STATUTE 7 | Baxter v. Palmigiano, 96 S.ct. 1551 (1976) 18,19

THE CASE >. > >. >. . . >. >. . >. * >. >. . . >. . . 3

7] a © . Benoit v. Gardner, 351 F.2d 846 (lst Cir. 1965) 21

REASONS FOR GRANTING THE WRIT ...++-+ee# e8© © © @& 6

8 ° ‘ Burns v. Alcala, 95 S.Ct. 1180 (1975) 21

A. The Court of als' Decision Expands And

9 Makes Less p Hn 9 the Scope of Three-Judge Costello V. Wainwright, 538 F.2d 547 (Sth Cir. 1976)

10 Jurisdiction . . . . . . . . . . . . 7 . . . _ . 10 10 fen banc) ll

‘ B. The Decision Below Erroneously Applies 11 | Doe v. Lukhard, 493 F.2d 54, 57 n.4 (4th Cir. 1974)

a Decisions of This Court and Specifically vacated, 95 S.Ct. 1441 (1974) 20,21

‘ Conflicts With Decisions In Other Circuits... 16 12

12 a Doe v. Rose, 499 F.2d 1112 (10th Cir. 1974) 20

13 Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972),

“4 14 cert. denied, 410 U.S. 955 (1973) 20

; 18 15 | Farley v. Farley, 481 F.2d 1009 (3d Cir. 1973) 21

16 | Gates v. Collier, Civ. No. GC 71-6-K (N.D. Miss.,

16 - v. ° 76) (per Judge Keady) 16

: 17 Dorado v. Kerr, 454 F.2d 892 (9th Cir.) cert. denied,

is 18 “409 U.S. 934 (1972) 20

19 P 19 |] Gates v. Collier, 501 F.2d 1291 (Sth Cir. 1974) 9

20 | Gonzales v. Automatic Employees Credit Union, 419

20 je U.s. 90 (1974) 18

21 @ Green v. Stanton, 364 F.Supp. 123 (N.D. Ind. 1973) 20

22 os Guajardo v. Estelle, 416 U.S. 992 (1974) ll

23 Leonard v. Mississippi State Probation and Parole

24 — : t - enied,

24 723 U.S. 998 (1976) 21

25 MTM v. Baxley, 420 U.S. 799 (1975) 18

26 - S111

27 a Sst/

28 - 4//4/47/

29 ~ Stt/

30 - 444/74

31 4/4/44

32 32

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TABLE OF AUTHORITIES (CONT'D)

Ma tt v. Norton, 519 F. 2d 599

(Za cir. 1575)

Mc Redmond ¥: Wilson, 533 F. 2d 757

Cir.

Newman v. Alabama, 503 F. 2d 1320

sth Cir. 1574), cert. denied,

421 U.S. 948 (

Newman v. Alabama, 503 F. 2d 1320

(sth Cir. 1574), cert. denied

421 U.S. 948 (1975)

Phillips v. United States, 312 U.S. 246,

amaaastT ——

Swift & Co. v. Wickham, 382 U.S. 111 (1965)

Wilson v. Weaver, 358 F. Supp. 1147

N.D. Til. 1972)

Wilson v. Weaver, 499 F. 2d 155

7th Cir. 1974), vacated, 95

S. Ct. 1440 (1975)

Wyatt v. Aderholt, 503 F. 2d 1305

(Sth Cir. 1974)

att v. Stickney, 344 F. Supp. 387

(M.D. Ala. 372)

yatt v. Stickney, 325 F. Supp. 781

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STATUTES

28 U.S.C. §2281

Tex. Civ. Stat. Ann. art. 5143d

Tex. Civ. Stat. Ann. art. 51434, §§18(a), 24

Public Law 94-381, Section 7

OTHER AUTHORITIES

1976 Annual Report of the Director of the

Director of the Administrative Office oF the

United States Courts, Tables C3 and C

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3K at

Burger, The State of the Federal Judiciary --

1972, 58 A.B.A.J. 1049, 1053 (1972)

PAGE

7,17,18

20,21

Passim

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TABLE OF AUTHORITIES (CONT'D)

Currie, The Three-Judge District in Constitutional

Litigation, 32 U. Chi. L. Rev. 1, 3 (1964)

Currie, The Three-Judge District in Constitutional

Litigation, 32 U. Chi. L. Rev. 1, 37-55 (1964

Interview with Chief Justice Warren E. Burger,

U.S. News & World Rept., Aug. 21, 1972, at 41

Judicial Limitation of Three-Judge Court Jurisdiction,

85 Yale L. J. 564 (1976)

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

ALICIA MORALES, et al.,

Petitioners,

JAMES TURMAN, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, ALICIA MORALES, JUDITH ANN ARNOLD,

BEVERLY JAMES, D' ANIE JORGENSON, LYNN BOURLAND, LYNN McDANIEL,

MARIE HARGREAVES, DIRK FITZGERALD, MICHAEL PERNANDEZ, JAMES

SCHOTT, MARVIN BROWN, PHILLIP WARD, BILLY RAY ROGERS, DAVID

GRANT LADD, DOUGLAS WILLIAM BRANCH, VIRGIL DALE HARMON, DARRELL

ARTHUR HICKS, BRENDA FAYE MALBRO, MABLE LOIS DAVIS, DEBORAH

MELCHER LUKE, MARY KATHERINE JOHNSON, BRENDA KAY HUGHES, and

DONNA KAY DONOVAN, respectfully pray that a Writ of Certiorari

be issued to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit entered in this

proceeding on July 21, 1976.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 535 F.2d 864; the opinions of

the District Court dealing with the substantive matters in this

action are reported at 326 F. Supp. 677; 364 PF. Supp. 166;

and 383 F. Supp. 53. Appeal to the Fifth Circuit was taken

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BNMRFERREESRES

only from the latter judgement. All of these opinions are

reproduced in their entirety in an Appendix to this Petition.

JURISDICTION

The judgment of the Court of Appeals was entered on

July 21, 1976. A timely petition for rehearing was filed; it

was denied on September 17, 1976. A copy of the Court of

Appeals’ order denying the petition for rehearing is reproduced

as Exhibit "A" to this Petition. The jurisdiction of the

District Court was invoked under the First, Eighth, and Four-

teenth Amendments to the United States Constitution, and under

28 U.S.C. §§1331 and 1343. This Court has jurisdiction under

28 U.S.C. §1254.

QUESTION PRESENTED

Should this action, in which no identified or iden-

tifiable state-wide statute, regulation or administrative order

was attacked or raised as a defense, have been tried by 4

three-judge district court instead of a single district court

judge?

STATUTES INVOLVED

28 U.S.C. §2281:

An interlocutory or permanent injunction re-

straining the enforcement, operation or exe-

cution of any State statute by restraining

the action of any officer of such State in

the enforcement or execution of such statute

or of an order made by an administrative

board or commission acting under State stat-

utes, shall not be granted by any district

court or judge thereof upon the ground of

the unconstitutionality of such statute

unless the application therefor is heard

and determined by a district court of three

judges under section 2284 of this title.

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STATEMENT OF THE E |

In February, 1971, this action was initiated on

behalf of twelve minor children who were incarcerated in sev-

eral juvenile training schools operated under the jurisdiction

of the Texas Youth Council (hereinafter “TYC"). Originally the

action sought to assure that petitioners’ rights to confer

privately with their attorneys in the TYC institutions would

not continue to be infringed, and to enjoin the continued

violation by certain named juvenile court judges in Texas

of the rights of petitioners to receive a hearing in court

and to be represented by counsel prior to being incarcerated

in TYC institutions.

While discovery was proceeding on these initial

issues, the original complaint was twice amenied and in the

Second Amended Complaint (on which the action was actually

tried), petitioners added extensive claims against what were

alleged to be inhumane conditions in the TYC institutions in

which they were a The twenty-three plaintiffs

who were named in the Second Amended Complaint represented each

of the five institutions for delinquent juveniles then operated

by the TYC: Mountain View, Gatesville, Gainesville, Crockett

and Brownwood.

1 Defendants who were named in the Second Amended Complaint

cluded James Turman, Executive Director of the TYC; Thomas

Riddle, Superintendent of the Gainesville school; Ronald Jackson,

Superintendent of the Brownwood school; M. 8B. Kindrick,

Superintendent of the Gatesville school; Pete Harrell, Super-

intendent of the Crockett school; George 8B. Adams, Superinten-

dent of the Mountain View school; Robert W. Kneebone, Louis M.

Henna and W. Forrest Smith, members of the TYC; Roland Daniel

Green, Assistant Attorney General; Edwin Berliner, Juvenile Court

Judge; Les Tribble, Juvenile Court Judge; Lewis Russell, Juve-

nile Court Judge; and Ted Robertson, Juvenile Court Judge.

2/_ A sixth institution -- Giddings -- was opened by the TYC

and began operating prior to the trial of this action. Little,

if any, evidence was adduced regarding Giddings during the

trial.

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i As was shown at the trial of this action, the TYC

institutions under consideration have long been operated almost

as independent feifdoms by their respective superintendents. At

Mountain View, the institution for those boys who were viewed

as the most serious offenders, boys were iocked in solitary con-

finement cells for weeks at a time and were required to work at

hard labor as punishment. (App. 57-60) Boys were beaten regu-

larly by the staff, and former staff members testified that

they were instructed by persons in authority to beat boys for

the slightest infractions of the institutional “rules.” (App.

51-54) Indicative of the significant differences in the prac-

tices of the various TYC institutions is the fact that these

more egregious practices were considerably less pervasive at

the other institution for boys, the Gatesville school (App. 54-55)

and did not appear to be significantly present at the three

institutions for girls: Gainesville, Crockett and Brownwood

(App. 55-56).

Petitioners did not, however, attack only these most

serious violations in particular TYC institutions of the Eighth

Amendment's ban on cruel and unusual punishment. They also

grounded much of their complaint on the theory of a “right to

treatment” for juveniles incarcerated in what were designed

in theory to be rehabilitative treatment institutions (App. 49-51)

This “right to treatment” theory was based not only on the

Fourteenth Amendment to the Constitution but also on a pen-

dent jurisdiction claim which petitioners asserted, and the

district court held, arose from the Texas state statute which

governs the TYC. Tex. Civ. Stat. Ann. art. 5143d (App. 50-51).

Petitioners thus attempted to include within one

lawsuit a comprehensive attack on all of the various forms of

mistreatment they suffered in the TYC institutions. Their

complaint ranged from an attack on the virtual physical torture

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administered by some TYC staff members (App. 52-53), to such

less dramatic, but nevertheless important, violations of peti-

tioners’ rights as the complete mail censorship which occurred

at several -- but not all -- of the institutions (App. 46) or

the failure of the individual institutional superintendents to

provide any training for new, inexperienced employees -- a

problem having effects far more evident at the boys’ institu-

tions than at those for girls. (App. 53-54, 84-90) As a class

action, the lawsuit constituted a thoroughgoing effort to

correct as many as possible of the various abuses which were

found from institution to institution, and the trial itself

reflected this comprehensiveness.

After extensive discovery was completed -- including

the production of copious documents, responses to hundreds of

interrogatories and the taking of numerous depositions of staff

member

Py. at each of the institutions -- the —- went to

trial before a single district court judge in the summer

of 1973. Even tnough the results of virtually all of the pre-

trial discovery were admitted into evidence, the comprehensive

nature of the case resulted in a trial of almost six weeks dura-

tion, during which extensive evidence was adduced about each of

the five institutions named above. Juveniles from each of the

institutions testified about their respective experiences and

treatment, and a number of experts testified regarding most

aspects of the different programs at each of the institutions.

3 The trial concerned onl

y that portion of the

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, @arlier facets of

been resolved by consent decree or ounmacy A. .. 3 having

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ter, shortly before

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issue fully, and followin + @ parties briefed the

g a hearing in o ‘

trict court denied respondents’ open court, the dis-

fact that no statewide ents motion, <inding as a matter of

, policies or rules existed »

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Many of the experts testified not only about the variety of

ways in which each institution fell far short of providing re-

habilitative treatment, but also about the manner in which such

treatment could and should be provided to juveniles. This

latter testimony was designed by petitioners to provide the

district court with expert evidence about the relief which

would be required if petitioners’ claims were upheld. At the

conclusion of the trial the district court entered an Emergency

Interim Relief order which enjoined some of the most serious

and harmful violations of petitioners’ rights en.

Almost a year later, based on the extensive post-

trial briefs submitted by the parties (including a 25l-page

compendium of proposed findings of fact submitted on behalf of

petitioners) the district court issued its Memorandum Opinion.

Aside from leaving in effect its earlier Emergency Interim

Relief order, the Memorandum Opinion did not actually issue the

injunction which had been sought by petitioners. Instead, it

required the parties to meet and confer regarding the estab-

lishment of a plan for the remediation of the extensive

abuses set out in the Memorandum Opinion. On appeal, the court

of appeals reversed the district court and held that a three-

judge court should have decided the case under Section 2281.

REASONS FOR GRANTING THE WRIT

Congress has finally repealed the three-judge dis-

trict court requirements set forth in 28 U.S.C. Section 2281,

requirements which have for so many years caused procedural

nightmares for the federal courts. Ironically, the Fifth Cir-

cuit in the present case has simultaneously with that repeal

expanded the requirements of Section 2281 beyond any prior

court's application of the Section. Because the court of ap-

57 No appeal was taken from that order.

‘ ‘ i

1] court of appeals a timely petition for rehearing which called

ases

1 | peals' decision in the present case will apply to alle 2] that court's attention to the action of Congress. Neverthe-

it, the

2] then pending in the district courts of the Fifth Circuit, 3] less, on September 17, 1976, the court of appeals denied that

case

$] court's expanded reading of Section 2281 in the present 4] petition and left standing its decision which, in petitioners’

rocedural ,

4] does not represent merely a fitting capstone to the p 5} view, dramatically and unnecessarily expands the applicability

diffi-

lexities which have caused so many 6 | of Section 2281.

§ | contortions and comp

On the contrary, until all of those 7 I ling Section 2281, ¢ licitly 4

6 i culties over the yeare. A mn repealing Section 1, Congress explicit y de-

trict

7 | cases pending in the Fifth Circuit are resolved, the dis 8 | clined to take any retroactive action affecting three-judge

Court unde . Ce

8 || courts, the court of appeals, and this . ome 9] district court cases which were then pending. Section of

come e

§ | $1253) will continue to be haunted for years to by th ; 10 | Public Law 94-381 provides that the law is inapplicable «> “any

10 | effects of a decision which has no counterpart in any oth 11 | action commenced on or before the date of enactment." Since

11 | circuit or in the prior decisions of this C : i 12] the law was enacted on August 12, 1976, according to its terms

adhe the

12 At least since 1941, this Court has on & i 13] three-judge court cases commenced prior to that date are re-

ion ; 6/

theee-jetge court Ast. Sect 14 | quirea ly with the ¢ di f Section 2281.~

strictest construction of the quired to comply w ormer dictates of Section 1.

the term :

14] 2281 is “an enactment technical in the strict sense “ j 15 Although there is no completely accurate way to deter-

312

15 | and to be applied as such." Phillips v. United States, 16 | mine the number of cases already pending which will be subject

f Justice Burger

41). More recently, Mr. Chie 17 | to the expanded interpretation of Section 2281 announced +y

16] U.S. 246, 251 (19 '

1, notin ;

17 | has spoken out against the requirements of Section 2281, 7 ; 18] the court of appeals in the present case, what evidence there

iment- ;

18 || both the burdens imposed on the lower courts and the detr 19] is indicates that the number of cases may be quite substantial.

eme

19] al impact of three-judge court jurisdiction on oe ae . 20] In recent years, constitutional attacks on conditions in a var-

: of the

20 | Court itself resulting from the direct review provisions 21] iety of state institutions have become increasingly common.

21] law. New Ways to Speed Up Justice -- Interview With Chie 7 22] This has been especially true in the Fifth Circuit. Beginning

22 | Justice Warren £. Burger, U.S. News & World Rep., Aug. 21, : 23 | with the well-known case of Wyatt v. Stickney, 325 F.Supp. 791

iary --

The State of the Federal Judic 24

23 | 1972, at 41; Burger,

limin-

2%] 1972, 58 A-B.A.J 1049, 1053 (1972) (“We should totally ¢ 25] 6/ One way for this Court to resolve the potential impac: of

er ") present case as well as to Clarify the impact of the repeal

25 | ate the three-judge district courts .. .')- 26] of Section 2281 on pending cases, is to grant the writ prayed

larly criticism and judicial discomfort 2 on herein Po Se the meaning of _commaneee® within

Years of scholarly c terms o e law. @ present case was, of course, "com-

7 ited this year in the repeal of Section 2261. 20] over, “commences” before a rencese seen 2201. Tt “indeed, the.

inally resu . vt , :

ae ve ee 2, 1976, repealed the district court had carefully considered and rejected the need

28 || Public Law 94-381, effective on August 12, 29] for a three-judge district court in its decision. The colossal

# Section 2281 for all waste of judicial effort which re-trial of this case in front

29 || three-judge district court requirements o 30) of three judges would entail, in light of the fact that if this

1 action took place case were to be freshly filed today it would indisputably be

30]) future cases. Although this congressiona 31] heard by a single district court judge, should lead this Cour:

£ both the district court and the 32 to meee ge on Py ane the terms of the law means

31} following the decisions o , commence ore a three- ge strict court.

ioners filed in the

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(M.D. Ala. 1971), 344 F. Supp. 387 (M.D. Ala. 1972), aff'd sub

nom. Wyatt v. Aderholt, 503 F.2d 1305 (Sth Cir. 1974), the

Fifth Circuit has been presented with a number of cases, in-

cluding the present one, attacking the conditions under which

persons have been confined in state institutions.

Whereas the Wyatt case was concerned with state men-

tal hospitals, and the present case is concerned with state

juvenile training schools, many of the cases dealing with state

institutions have been concerned with state prisons. See,

e.g., Newman v. Alabama, 503 F.2d 1320 (Sth Cir. 1974), cert.

denied, 421 U.S. 948 (1975); Gates v. Collier, 501 F.2d 1291

(Sth Cir. 1974). While there are no statistics available

regarding the number of mental hospital or juvenile training

school cases pending in the United States district courts, the

statistics available regarding prison cases are ominous enough.

Administrative Office of the United States Courts, the total

number of civil rights cases commenced in 1976 by or on behalf

of prisoners in United States district courts was almost 7,000.

This figure does not include the almost 8,000 habeas corpus

actions commenced in 1976 by prisoners. Of these almost 7,000

prisoner civil rights cases commenced in 1976, over 2,000

(2,164) were commenced within the Fifth Circuit, and, as of

June 30, 1976, over 2,300 such cases were actually pending

in district courts within the Fifth Circuit. Hence, even if

only a small proportion of these cases goes to trial, and even

if there is only a small number of mental hospital cases and

juvenile institution cases which also go to trial, the fact

that all of those pending cases in the Fifth Circuit are sub-

ject to the three-judge court interpretation which has been

7/ Annual Report, Tables C3 and C3A at I-17 and I-21.

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deve loped in the present case means that without this Court's

guidance, this three-judge district court controversy, this drain

on the federal judiciary and upon the appellate docket of this

Court, may continue for years to come.

In petitioners’ view, the time to act is now. This

is not a case in which the three-judge court matter arose sua

sponte in the court below, as sometimes occurs. Instead, the

matter has been fully briefed and considered by each of the

courts below, and is a matter of no small moment to the parties

in view of the time and effort already invested in this case.

Because, as will be seen, the rule enunciated in this case is

one which depends as much for its application on the results

obtained in the trial of a case as upon the information avail-

able prior to trial, many of the cases now pending in the Fifth

Circuit may eventually turn out to be three-judge court cases

even after trial is completed. If the decision in the present

case is not overturned by this Court, it will continue and will

indeed compound the impact of Section 2281 by “creating traps

for the unwary litigant and substantially increasing the burden

on the courts." Currie, The Three-Judge District Court in

Constitutonal Litigation, 32 U. Chi. L. Rev. 1, 3 (1964).

A. The Court of Appeals' Decision Expands

And Makes Less Certain the Scope of

Three-Judge Court Jurisdiction

The decision of the Fifth Circuit in the present case

conflicts implicitly with decisions of this Court and conflicts

expressly with a number of other court of appeals decisions

concerning the applicability of Section 2281. The present case

is ay extension of the Fifth Circuit'sdecision in Baker

v. Estelle, a case which had gone further than any other deci-

8/ Footnote next page.

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Actually attacked any statutes or regulations, and because

sion in holding that a three-judge district court was required

even when no direct attack had been made upon any existing state

statutes or regulations.

In Baker, the Fifth Circuit was presented with an

attack on the “practices” of a state agency which, plaintiffs

had alleged, were neither compelled nor precluded by defendants’

existing rules and regulations. But the court of appeals there

held that since “[m)ore complete and more specific regulations

must be mandated in order to assure that the present ‘prac-

tices' will not be continued” (491. F.2d at 428), a three-judge

court should have heard the case under Section 2281.

From a logical viewpoint, the next step in the develop-

me: t of the rule laid down in Baker occurred in a Fifth Circuit

decision which actually post-dated the decision in the present

case by two months. Costello v. Wainwright, 539 F.2d 547 (Sth

Cir. 1976) (en banc). In Costello, the court of appeals again,

as in Baker, looked at the impact of the district court's

decision, rather than at the question whether plaintiffs had

defendants in Costello would be required to ignore the dictates

of a state statute in order to comply with the district court's

order, the court of appeals concluded that a three-judge dis-

trict court should have been ements.” The rule in Costello,

8 (footnote continued)

Sap nom. Sands v. Wainwright, 491 F.2d 417 (Sth Cir. 1973). Baker

v. Estelle was ided along with three other cases, regarding

one of which, Guajardo v. Estelle, this Court denied a Peti-

tion for Writ of tee rovar ; U.S. 992 (1974). Because the

four cases differed from one another in ways significant for the

present discussion, only that portion of the decision which dealt

with Baker v. Estelle will be considered here.

9/ Petitioners are informed that a Petition for Writ of Cer-

tiorari is being prepared in the Costello case and will be filed

with this Court on or before De r , 1976. In view of the

similarity in the impact of the instant case and of the Costello

case on three-judge court practice in the Fifth Circuit, it may

be appropriate for this Court to consider the instant Petition

in conjunction wich that in Costello.

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like the rule in Baker, focused on the impact of the relief

framed by the district court after trial. Plaintiffs in those

cases had actually attacked neither the rules and regulations

(in Baker) nor the state statute (in Costello), but the orders

of the district courts in those cases seemed, in the eyes of

the court of appeals, to have significantly impinged on the

state policies expressed in those documents.

Whether Baker or Costello was correctly decided is

not, however, at issue here. Here, unlike those cases, there

are no state statutes and no rules and regulations which were

either attacked by petitioners in their pleadings or affected

by the relief which was outlined in the district court's deci-

sion. The court of appeals decision in this case takes Section

2281 into a completely amorphous area where litigants will be

forced to guess at the possible ramifications of the relief

which might be framed -- after trial -- in order to determine

whether a three-judge court should hear the matter. Footnote

ll of the court of appeals' opinion in the present case makes

this quite clear:

The practices challenged in the present action

were clearly ordained by the TYC, either directly

or by appropriate delegation, and are suffi-

ciently identifiable to be amenable to codifi-

cation. . .. [It is] quite plausible to think

that many of the policies complained of here

would be’ formally sanctioned by a state. (App.

Td) Temphasis added).

Obviously the court was not talking about anything that the TYC

had actually done by way of promulgating or enacting rules or

regulations. Rather, the court was suggesting that because the

court itself viewed the TYC's practices -- divergent though

they were from institution to institution, and unconstitutional

though the district court had found them -- to be theoretically

amenable to possible formal enactment, a three-judge district

court should have been convened to hear and Jetermine the action.

-l12-

oe vn awmttwn ~

The opinion of the Fifth Circuit in the present

case reveals that the court has gone substantially beyond a

strict technical reading of Section 2281 in an effort to enforce

what the court has apparently viewed as the essential policy

underlying the Act. The district court decision in the present

case is, in fact, an exhaustive condemnation of many facets of

the treatment (more truthfully mistreatment) received by the

juveniles who are confined in various institutions operated by

the TYC. There is no escaping this broad scope of the district

court’s decision. Observing this to be the case, the Fifth

Circuit apparently felt compelled to conclude that a three-

judge district court should have heard and decided the action

because of the great extent to which the action would intrude

upon the operations of the institutions in question. Even if

such a holding were saat” + ae by the policy considerations

underlying Section 2281, it creates a rule of federal court

jurisdiction which is virtually impossible to apply and which

expands the requirements for three-judge courts over an untold

| Humber of pending cases.

That the court of appeals’ decision in the present

case is an expansive reading of the three-judge court require-

ment can be seen especially from a reading of the court's deci-

sion as compared with the district court's own attempts to

resolve this same issue. At several points in its opinion, the

court of appeals acknowledges that "many of these programs and

policies [which were attacked by petitioners) have not been

reduced to writing or otherwise formalized," and that “the

10 Petitioners do not believe that the holding is so

Ke wit be shown, the disparate practices ehelionesé tage aan

tioners in the district court never received the imprimatur of

formal deliberation and adoption by any state policy-making body

or official, or indeed by any person above the administrative

level of institutional superintendent.

so @oneegwt* wn

—- —-

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policies in question here have not, for the most part, been

codified in the form of written rules or regulations ° .

(App. 8, 9) Actually, the court of appeals refers nowhere in

its opinion to a single “formalized,” “codified,” or otherwise

written rule, regulation or policy. This is because none

existed.

Only a few weeks prior to the trial of this action,

respondents moved to have a three-judge district court con-

vened. Respondents’ motion was grounded in part on two con-

tentions which petitioners had made: that the mandatory require-

ment that TYC students attend religious services each Sunday

was unconstitutional, and that the failure of the TYC to

provide any financial remuneration to juveniles who were re-

quired to perform maintenance work on the facilities was uncon-

stitutional. Respondents contended that these issues neces-

sitated a three-judge district court for resolution because the

governing statute of the TYC requires mandatory attendance at

seligieus services each Sunday, and because the same statute

authorizes the TYC to require juveniles to participate “in...

vocational . . . training and activities" but does not author-

ize the TYC to pay for such work. See, Tex. Civ. Stat. Ann.,

art. 5143d, §§18(a), 24. Following consideration of those

issues, rather than deciding to have a three-judge court hear

the entire case, the district court ordered that those issues

be severed from the action and tried separately. (App. 39)

In considering the remainder of respondents’ conten-

tions regarding the necessity for a three-judge court, the dis-

trict court then called upon them to identify those rules or

regulations of state-wide application which had been or would

be brought into contention by the action. Respondents’ posi-

tions was that the action in reality was one against a state

agency which in turn was implementing a state statute through

-l4-

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the promulgation and enforcement of rules and regulations.

However, at the very hearing on cesponéents' own motion for

appointment of the three-judge court, counsel for respondents

was unable to identify any such rules or regulations:

Q. (By the Court] Specifically, what

regulations of state-wide applica-

tion are here involved?

A. Not able really to point out -- we

have studied them to some degree with

that in mind. I cannot point out to

the court specifically the... .

(App. 41)

Neither in the district court (in their answer, in their other

pleadings or in open court) nor in the court of appeals (in

their brief or in oral argument) did respondents actually ever

identify even one rule or regulation of the TYC which was

attacked in this ee

1l/ At one point in its opinion (App. 4), the court of appeals

made reference to a section of the pre-trial order which con-

cerned the legal issues in this action and which had referred

- to the “rules, regulations, practices and policies of the TYC.”

The court commented that such a reference was “an indicator of

the nature of the relief sought for purposes of" the three-

judge court determination. (App. 4, n.7) This interpretation

of the pre-trial order is certainly far from what the parties

had intended or anticipated. The pre-trial order itself encom-

passes over seventy pages; it contains lists of potential

witnesses, lists of documents to be introduced into evidence,

and seventy-two factual stipulations, in addition to the three

pages on which plaintiffs’ legal contentions were broadly

sketched. Those legal contentions did not, of course, consti-

tute factual allegations that any state-wide rules or regula-

tions actually existed. They merely provided a shorthand

method of setting out the fact that plaintiffs were attacking a

large number of distinct practices which varied from institu-

tion to institution and in some cases were considered “rules”

of one institution or another. It is significant that the

court of appeals did not mention page two of the pre-trial

order which states that “the defendants do not dispute the

jurisdiction of this Court,” other than with regard to the

“rights of the inmates of the Texas Youth Council facilities to

be free from mandatory religious service attendance and...

{t)heir right to be remunerated for required work,” both of

which issues defendants asserted required consideration by a

three-judge district court. Those issues were, of course,

severed from the trial of the action and were not considered by

the district court.

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' As such, it runs contrary to decisions of this Court extending

The error in the court of appeals’ decision, then,

and the reason that its decision in the present case consti-

tutes an expansion into uncharted jurisdictional areas with the

potential for three-judge district court actions in untold

numbers of cases, is the court's conclusion that because some

of the practices under attack in this case might have been

amenable to regulation, and because some of the corrective

actions which the district court thought were essential might

have been subject to future promulgation as state-wide rules or

eames a three-judge court was required in the first

instance.

B. THE DECISION BELOW ERRONEOUSLY

APPLIES DECISIONS OF THIS COURT

AND SPECIFICALLY CONFLICTS WITH

DECISIONS IN OTHER CIRCUITS

The ruling of the Fifth Circuit in this action may

well »e the most expansive construction of the scope of Section

2281 jurisdiction ever to be dictated by a court of appeals.

at least as far back as 1941, stretches the plain meaning of

Section 2281, and creates an unworkable and unneccessary expan-

sion of three-judge court jurisdiction which conflicts with

the rule of most other circuits that have considered the problem.

12/ Petitioners have very recently learned that the Fifth Cir-

cuit's expanded reading of Section 2281 is already having an

impact. Relying principally on the decision in Costello v. Wain-

wright, supra, on November 19, a district court judge on remand

nm the case of Gates v. Collier (see page 9, supra) held that a

three-judge district Court was required. This is indeed an anom-

alous result, for the panel of the Fifth Circuit which had decided

Gates on appeal had specifically considered and rejected the need

for a three-judge district court in the case. 501 F.2d at 1296-

99. However, the intervention of the decision in the present casd

as well as the decision in Costello, apparently convinced the

district court in Gates that the situation had changed and that

a three-judge district court was now required. Gates v. Collier,

Civ. No. GC 71-6-K (N.D. Miss., Nov. 19, 1976) (per Judge Keady) .

-16-

cine ot eecened

so @onoewst* wn

At issue is the scope of the language in Section 2281

referring to “an order made by an administrative board or

commission acting under State statutes." It is true that this

Court has interpreted the term “statute” in Section 2281 broad-

ly to mean “a compendious summary of various enactments, by

whatever method they may be adopted, to which a State gives her

sanction..." A.F.of L. v. Watson, 327 U.S. 582, 592-93

(1946), and three-judge courts have accordingly been required

to hear cases where injunctive relief was sought on constitu-

tional grounds against many kinds of formally adopted —,

tory schemes and written policies of statewide application.

However, beginning as early as Phillips v. United States, 312

U.S. 246 (1941), this Court has firmly established a rule of

strict construction of Section 2281.

Since 1941, the Phillips rule of strict construction

has been applied again and again by oe in narrowing the

scope of three-judge court jurisdiction. In Swift & Co. v.

Wickham, 382 U.S. lll (1965), for example, in which Supremacy

Glause cases were excluded from the ambit of Section 2281, this

Court underscored emphatically the “constrictive view of the

three- judge court jurisdiction which this Court has tradi-

tionally taken." 382 U.S. at 129. The principle estab-

lished in Phillips and reaffirmed in Swift was reiterated again

13/ For a most cogent discussion of the cases, see, Currie, The

Three-Judge District Court in Constitutional Litigation, 32 U.

Chi. L. Rev. 1, 37-55 (1964).

14/ For a description of this Court's long-standing adherence to

a strict construction of Section 2281, see, Note, Judicial Limita~

tion of Three-Judge Court Jurisdiction, 85 Yale L. J. 564 (1976).

15/ Swift & Co. v. Wickham, supra. established an additional

principle of Construction regarding Section 2281 which has appli-

cation to the present. case: “The purpose of the three-judge

scheme was in major part to expedite important litigation: it

should not be interpreted in such a way that litigation, like the

present one, is delayed while the proper composition of the trib-

unal is litigated.” 382 U.S. at 124. One of the most serious

(frotnote continued)

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o eon ows won =

YOUTH LAW CENTER

ood MEsION ST. BHO FL

84m FRANCISCO 04108

(40) 408.420

by this Court in Gonzales v. Automatic Employees Credit Union,

419 U.S. 90 (1974), in an opinion which emphasizes the bases

for a strict construction of Section 2281, both in terms of

the Section itself and in terms of sound judicial administra-

tion. See MTM v. Baxley, 420 U.S.799 (1975).

It is also significant thatmuch like the present

case, the action in Phillips had challenged the lawless actions

of a state official, rather than a legislative enactment. As a

defense, it was contended that the official -- the governor of

the State of Oklahoma -- had taken his action pursuant to

authority vested in him by state law, and thus that enjoining

his actions amounted to enjoining the operation of a state law.

This Court succinctly disposed of that contention in language

directly applicable to the present action, observins, "[s]ome |

constitutional or statutory provision is the ultimate source

of all actions by state officials. But an attack on lawless

exercise of authority ... is not an attack upon the constitu-

tionality of a statute conferring the authority ... ." 312 U.S:

at 252.

More significantly, as recently as this year, this

Court has applied its traditional, constrictive reading of

Section 2281 to a case which, of all of this Court's decisions

concerning three-judge court jurisdiction, most closely resembles

the factual situation presented in the instant case. In Baxter

Vv. Palmigiano, 96 S.Ct. 1551 (1976), petitioner had asserted

that a prison disciplinary hearing to which he had been sub-

jected had violated his federal constitutional rights. On

15/ (footnote continued)

problems created by the decision of the court of appeals in the

present case is that it may in practical effect require adjudica-

tion on the merits before a final determination can be made re-

garding the necessity for a three-judge district court. This is

because the decision relies in significant part on aspects of the

relief framed by the district court, relief which could not have

been known to the parties or to the court until after the case

had been tried.

oo nu ows? aon =

Certiorari in this Court, the United States as amicus curiae

suggested that a three-judge district court shoulé have heard

the case originally. This Court rejected that suggestion,

observing in language particularly apt for the present case

that the complaint did not “mention or challenge any rule or

regulation of the [Rhode Island Adult Corrections] Authority;

nor did it seek an injunction against the enforcement of any

identified rule.” 96 S.Ct. at 1555, n.2. This Court found

dispositive the fact that existing written regulations of the

Adult Authority, “although regulating in some detail the fro-

cedures” governing disciplinary hearings, “do not expressly

grant or deny, or even mention” the particular issue -- right

to counsel -- upon which petitioner had founded his constitu-

tional challenge. 96 S.Ct. at 1555, n.2. In Baxter, then,

this Court found that no three-judge court was required even

where formally adopted, written regulations of statewide

impact existed setting forth procedures regulating almost the

precise area under constitutional attack. Thus, the ruling of

the court of appeals here, holding that a three-judge court

must be convened in the absence of any direct or indirect

challenge to any written policy or regulation, and indeed in

the absence of any uniform state-wide regulation whatsoever

which grants, denies, or even mentions the constitutional

rights asserted by petitioners -- must, in the light of Baxter

v. Palmigiano, be overturned.

Pinally, it should not be surprising that the prin-

ciples of strict construction summarized above, which have been

articulated and applied by this Court for over three decades to

questions of three-judge court jurisdiction, have led nearly

every other circuit which has faced the question at issue here

to construe Section 2281 in a manner directly contrary to the

decision of the Fifth Circuit in the present case.

-19-

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YOUTH LAW CENTER

793 MISGION ST... 24D FL.

GAN FRANCISCO 84108

(41@ 409-6420

For eximple, in a quite similar factual context, the

Ninth Circuit has ruled exactly contrary to the present case.

Dorado v. Kerr, 454 F.2¢c 892 (9th Cir.) cert. denied, 409 U.S.

934 (1972). In Dorado the court was faced with a constitution-

al challenge to informal but state-wide prison policies of the

California Adult Authority. In language which is singularly

applicable here, the Ninth Circuit held:

Having in view the principle that Section 2281

is to be closely. construed to the end that only

those cases which plainly fall in the class there-

in described be referred to three-judge courts.

+ « «, We conclude that informally-adopted pro-

cedural policies and practices of this kind, al-

though applied state-wide, are not embraced

within Section 2281. 454 F.2d at 896.

Of the remaining circuit courts of appeals that have considered

this problem, all but one views Section 2281 in a manner con-

trary to the decision of the Fifth Circuit in the present case.

These circuits include the Tenth, Seventh, Sixth, Fourth, and,

it appears, the Second and First. See Doe v. Rose, 499 F.2d

1112 (10th Cir. 1974) (constitutional attack on state-wide ad-

ministrative policy does not require three-judge court when

policy is “informal,” even though state agency uniformly ad-

heres to policy); Wilson v. Weaver, 358 F.Supp.1147 (N.D. Ill.

1972), and Green v. Stanton, 364 F.Supp. 123 (N.D. Ind. '977)

aff'd in part, sub nom. Wilson v. Weaver, 499 F.2d 155 (7th

Cir. 1974), vacated, 95 S.Ct. 1440 (1975) (sub silentio approval

of explicit rulings by both district courts that no three-judge

court was required to enjoin unwritten state-wide policies of

state agency); accord, Donahue v. Staunton, 471 F.2d 475 (7th

Cir. 1972), cert. denied, 410 U.S. 955 (1973); Ault v. Holmes,

506 F.2d 288 (6th Cir. 1974) (constitutional challenge to un-

written procedural policies of Kentucky prison system, set forth

in no formally adopted regulatory scheme, did not require three-

judge district court); Doe v. Lukhard, 493 F.2d 54, 57, n.4 (4th

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> wor oO

YOUTH LAW CENTER

93 “ISSIOW ST... aND FL

GAN FRANCISCO 4105

(418 498-6420

Cir. 1974), vacated, 95 S.Ct. 1441 (1975) (dictum specifically

distinguishes between “written statement of policy” and mere

policy, stating that the written policy requires three-judge

court adjudication) Cf£., McRedmond v. Wilson, 533 F.2d 757

(2d Cir. 1976); Maggett v. Norton, 519 F.2d 599 (2d Cir. 1975);

Benoit v. Gardner, 351 F.2d 846 (lst Cir. 1965). The Third

Circuit, on the other hand, appears to agree with the Fifth

Circuit's interpretation of Section 2281. Farley v. Farley,

481 F.2d 1009 (3d Cir. 1973)

It is thus quite important to the sound administration

of the federal courts that this Petition be granted to reconcile

the conflict among circuits and to avoid costly, time-consuming,

and erroneous jurisdictional rulings in cases pending not only

in the Fifth Circuit but also in other circuits which may fol-

low the lead of the present case should this decision be left

standing by this Court. In conclusion, it should be re-empha-

16/ Wilson v. Weaver and Doe v. Lukhard, both cited in the text,

were Vacated by this Court in Light of the decision in Burns v.

Alcala, 95 S.Ct. 1180 (1975). Burns was a decision on the merits

regarding the claims raised in both the Wilson and Lukhard cases.

However, the district court in Burns never reached the constitu-

tional issue, dealing instead with the possible conflict between

federal law and a state regulation. Thus, under Swift & Co. v.

Wickham, Supra. 382 U.S. lll, the three-judge court issue was

never considered.

17/ The amorphous nature of the Fifth Circuit's decision in the

present case can perhaps most dramatically be seen by comparing

several other Fifth Ci~cuit cases in which a contrary result was

reached. See, Newman v. Alabama, 503 F.2d 1320 (Sth Cir. 1974),

cert. denied, 421 U.S. 948 (1975); Leonard v. Mississippi State

Probation and Parole Bd., 509 F.2d 820 (5th Cir. 1975), cere.

denied, 423 U.5. 998 {i576). ein

-2l-

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YOUTH LAW CENTER

603 “1ESIO ST.. 2nO FL.

CAN FRANCISCO 84108

418 408-6420

sized that coming at a time when Congress has at last heeded the

criticisms of commentators and the complaints of the federal

judiciary by repealing Section 2281, the decision of the Fifth

Circuit here should be re-examined and rejected as anachronis-

tic, dysfunctional, and contrary to the law as it ought to be

and as this Court has intepreted it.

Dated: December 15, 1976

Respectfully submitted,

PETER 8. SANDMANN

PAULINE H. TESLER

STEVEN BERCU

Peter B. Sandmann

Attorneys for Petitioners

EOWARO W. WADSWORTH

Lluited Sintes Court of Appeals

cicea

OFFICE OF THE CLERK

FIFTH CIRCUIT

TEL 504-580-6514

600 CAMP sTreer

NEW ORLEANS. LA. 70190

September 17, 1976

TO ALL COUNSEL OF RECORD

NO. 74-3436 - Alic

ia Morales, et al. vs. James A.

Turman, etc., et al.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied,

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate,

Very truly yours,

EDWARD W., WADSWORTH, Clerk

By Clive * Sa che

e@puty Cler

cc: Messrs. Thomas W. Choate

John L. Hill

Messrs. Robert E£. Shepherd, Jr.

Andrew P,. Miller

Messrs. Peter B. Sandmann

Steven Bercu

Ms. Patricia M. Wald

Mr. Neal Tonken

Mr. Fank MN. Dunbaugh

364 535 FEDERAL REPORTER, 24 SERIES

(CAS 1972), and cases collected therein at

354, 2. 13. Ia the Title VII area, consistent

with the full spirit of Conley v. Gibson, 355

U.S. 41, 47, 78 B.C 99, 102, 28 L.Ed24 20,

85-86 (1967), we have been very liberal

rather than technical in pleading require-

menta?

Appellant's “effect” theory is more co-

gently articulated in his brief before us

than it was before the trial court:

Because sickle ceil anemia affects Blacks

present among proportionately more

Black workers in a labor foice than

among workers of any other race. If the

presence of bone degeneration is used to

We intimate no view on the validity of this

theory, for it was aeither acknowledged nor

wP sé

Lyte

fit

lis

rector of the Texas Youth Council, et al,

Defendants A ppeilanta

No. 74-3436,

United States Court of Appeals,

Fifth Cireuit.

July 21, 1976.

Rehearing and Rehearing En Bane

Denied Sept. 17, 1976.

Civil action was brought raising wide

range of issues regarding nature and ade

“LP LS porn. MORALES v, TURMAN -- 865 .

righta of imearcersted minors had been vie 3 Courts o 1815/1)

lated and ordered the parties to submit a Three-judge court statute s a technical

comprehensive pian, and appeal was taken statute, which is to be strictly construed.

The Court of Appeals, Aimeworth, Circuit 2 USCA. § 2281

Judge, beid that order was appesiable net 4 Courts = 101.5(2)

withetemdumg Une Une trial court withheid A three-judge court is not necessary

suanee of permanent. injunctive relief niess 0 state statute with statewide appli

peading submiasios of the plan and that the cahility is challenged. an officer of such

action was one seeking to restrain enforce sate is i

meat of » state policy with “statewide ap relief is sought, and there is a substsntial

{

ihe fl

tit

aH EE

I i!

tei

HH ‘i

reateeenidel

1, § 3, Sl48d; V.T.CA, Pamily Code

$4 SLOL et seq. 51.03(a).

uit

court statute; form is not to triumph over

i whether constitu-

an indicator of the nature of the relief tion afforded its legisiative policies by

———-

~®?

S66 535 FEDERAL REPORTER, 24 SERIES

policy of statewide significance is under

attack in a particular case is entitled to

considerable weight in determining whether

a three-judge court issue exists 23 US.

CA. § 2281.

8. Courts = 406.9(18)

Although civil action concerning adju-

dicatory and postadjudicatory stages of ju-

venile justice system in state of Texas was

required to be remanded for impaneling of

a three-judge court, record amassed in the

single-judge proceeding couid be used in a

three-judge court's disposition of the case in

the interest of judicial economy. 28 U.S.

C.A. § 2281.

Joho L. Hill, Atty. Gen. Thomas W.

Choate, Asst. Atty. Gen., Austin, Tex., Rob-

ert Salter, Gatesville, Tex., for defendants-

appellants.

Andrew P. Miller, Atty. Gen., Robert E.

Shepherd, Jr. Asst. Atty. Gen., Kichmond,

Va., for Com. of Va. amicus curiae.

Steven Bereu, El Paso, Tex. Peter B.

William Malcom Logan, Jr., Neal Tonken,

AINSWORTH, Cireuit Judge:

This action, predicated on the notion of a

constitutionally based right to rehabilitative

treatment in juvenile correctional facilities,

involves a sustained attack on a wide range

of practices, policies, procedures, and result-

ant conditions authorized by the Texas

Youth Council (TYC), which has responsibil-

ity under Texas law for minors adjudicated

delinquent and involuntarily committed to

its custody by Texas courts.' As counsel

for plaintiffs-appeilees stated at the com-

mencement of his oral argument before us,

“at the heart of this case is the question

whether the juvenile justice system as we

now know it will continue to exist.” Be-

cause the suit seeks to enjoin the operation

and effectuation of state legislative and

administrative policies in a manner which

triggers the three-judge court requirement

of 28 U.S.C. § 2281, we are without jurisdic-

tion to consider the significant issues raised

by this appes!, and remand the case for the

convening of a three-judge court pursuant

to 2 USC. § 224.

lL. The Proceedings Below

(1] This litigation commenced on Febru-

ary 12, 1971 with the filing of a class action

on behalf of those involuntarily committed

to the custody of the TYC against Dr.

James A. Turman, then Executive Director

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ait fi Hie

iT iat

tt THEE

pay ee

Gata st aa te ots

tt}

nielbatals + dsemitndiameinne

corpora-

pur-

parncipate

in attempt to revive corporation was res-

sonable under the circumstances, and de-

fendants produced no evidence that pur-

te :

, 15 USCA. § 78).

4 Securities Regulation 63, 156

dants

Those raising defense of laches must

show that other party's delay was both un-

Under federal securities rule 10B-5, to

protections of which even sophisticated in-

Although stock purchase agreement did

inform purchaser of “high degree of risk”

involved im investment, seller's silence as to

vestors are entitied, test of materiality is

whether a reasonable man would attach

companying indemnity agreement and importance to fact misrepresented in deter-

Where stock purchaser's continued par-

promissory tote violated antifraad provi- mining his course of action. Securities Ex-

Equity «72(1)

reasonable and worked to their prejudice.

2. Corperations @= 117

ticipation in corporate affairs for nine

tion's severe difficuities apparent to all did

not substantially affect eroding trend ai-

ready present in corporation nor could such

trend have been diverted or deflected,

chaser’s conduct in continuing to

chaser’s delay in seeking legal assistance

was either unreasonable or prejudicial to

them, laches did not bar rescission of stock

purchase agreement.

3. Securities: Regulation o=63

Joel P. Kay, William A. Jackson, Hous-

ton, Tex., for defi

pur. facta which indeced : . ne

silence as pete im transaction and warranted rescis-

535 FEDERAL REPORTER, 24 SERIES

July 21, 1976.

Action was brought by purchaser alleg-

REVERSED AND REMANDED.

and Fairchiid-Pole International Ine,

Ne 75-4341

Calendar.*

United States Court of Appeals,

Fifth Cireuit.

img that stock purchase agreement and ac-

~ 1970, 431 F.2d 409, Part 1

Affirmed.

*Rule 16, 5 Cir; see Isbell Enterprises, inc. v. Citizens Casualty Company of New York oe ai 5

Cir

to causes of his dissatisfaction with corpo. sion. Securities Exchange Act of 1934, § 19

rate management policies and corporate 15 US.C.A. § 78j; Vernon's Ann. Tex.Civ.

president's representations concerning com- St. art. 581-33; V.T.CA, Bus & C. §

pany’s future prospects were materia! facts 27.01.

stock purchaser's participation on corporate causes of his dissatisfaction with corporate

sions of both state and federal securities change Act of 1934, § 10

board of directors for nine months after management policies and

laws. The United States District Court for

the Southern District of Texas, Cari O. Bue,

interest of judicial economy, we note that 1.

the record amassed in the singie-judge pro-

which induced purchaser to participate in

ceeding may of course be used in the three-

judge court's disposition of this case.

Jr., J., rescinded agreements and note and

defendants appealed. The Court of Ap

peals, Ainsworth, Cireuit Judge, held that

tute laches barring rescission of stock

chase agreement, and that seller's

Thomas H. WHEAT, Ptaintiff-Appelice,

Robert G. HALL, Warren H. Fairchild

874

g 43 +: He ati ‘4 + rit He } ATH ais i

Le ney

i Ha Mi it Hie mall f il

rr Heelan i Hil aL ih eh HUH

= in i ia ae H in st r ii

ia HA

hii lijsh iy Pal lal ila uF ti ih

ETT GH ee

sell tile ;

He i i

MORALRA +.

Cite ae m8 F.

that he

mtn

LAST HIE

tli y { Fi

ath

the

when an

showing

his

to the

"kit

\ a

principle that

shifts

prove

4 tte

; ; 3

al Ft BHT

ali

HEE

sad

il :

Hit

Mareh 1, 1971 and May 3, 197.

ati

gaz.

z3!

suit

tis?

Hie Hil i}

HHL

Ee” HI

afeditl

TED

$44

nye

Hie

we orrioe re

TAME eet ade th

Bee 8 E 8p itae yh iii i: ohyi

Aig ao ifeatt ail HF i i i li i

a g slang Ht Hi Hi VLMa ; il

add pel . daa Ti Hh it eit afl]

(tien: Hae th el Cheats Walls

ey, amuse, a NE

yea | . 5 ai Sir : i: ites

mad 7 i i i i i if ia

nce aide A

HIE UF Hi nt . Ales: Sit ia

—_ . \ eet C4 ge datee rite» y. yurerd 2° FRA Aaya a Later sai ma

/¢

ask, . tLe ar « ve rte ” ~e

aut anne a aay ty

Heed HMuty Gal fel dip

Hos pty “andi id iad Hed

tf aE yisas HH i : ald He all

pa Gi Hh Ui A

fi i HM

a lh lilt He Vi 1! i hy] peg)

4s it if ul ie i i le

: i a

Jackson v. Godwin, 400 F.2d 629, S41

(Sth Cir. 1968)._ The due process right

to access to the-courts and the First

att

fel

PEs

flee

;

and laws of the State of Texas and of

the United States.

—_———~

. a,

-« © - oe ¥. me

-- a >» 3 *te- $ re

fe oh 4 : ~~ = +s > — > MPS Fs

--_-—* Ms Pe ee a & er * Jaton =

a Te ;—? < I we a a a - - ah ee

[ange ee a nS

oo - . -

—— =f . .

+ G+ ae ee

- , i o— PT o a em be Seer” Fee a

ventional judicial review. Cf. Magne-

sium Casting Co. v.N. L. R B. 401 U.S.

137, 91 S.Ct 599, 27 LEd2d 735

(1971), ren. denied, 402 U.S. 925, 91 S.

Ct. 1364, 28 L.Ed2d 664 (1971). It is

directed to make each individual decision

solely on its own record. 29 U.S.C. §

159. Such a semantic claim is, without

more, far too insubstantial to rise to the

Security Services, '

Once again, plaintiff's

any event. The balance of the equities

just does not tip decided! y in favor of

plaintiff, nor is there the requi

showing of a probability of uitimate

cess on the merits. See Heldman v. Unit.

ed States Lawn Tennis Aas'n,, 354 PF

Supp. 1241 (S.D.N.Y.1973). .

{15,16} Moreover, absent such i

tial jurisdiction, it is clear that

tiff’s action should be dismissed in it

entirety. For even absent a formai i

by defendant to dismiss, this Court h:

the unquestioned power—if not the <

—-to sua sponte direct dismissal of

action when it appears that jurisdict:

is lacking. See Mansfield, Coldwater

Lake Michigan Ry. Co. v. Swan, 111 U

379, 4 S.Ct. 510, 28 L.Ed. 462 (1884)

Bevan v. Columbia Broadcasting Syst

Inc., 293 F.Supp. 1366, 1369 (S.D.N.

1968). Accordingly, plaintiff's ;

for a preliminary injunction is den

and the compiaint is dismissed.

The foregoing shall constitute

Court's findings of fact and conclusic

of law as required by Rule 52(a), Fed.

R.Civ.P

So ordered.

constitutional and civil rights. The

trict Court, Justice, J, held that wide

Se ene Net en ct ill le nth illicit One

federal gov-

applies to state as weil as to

ernment. U.S.C.A.Const. Amend. 8.

tody. U.S.C.A.Const. Amend. 8.

Criminal ©1218 “4

‘ Seventies bald in state institutions arts. 5130, 5143d, §

are protected by Eighth Amendment. ”

punishment in violation of the Eighth

: mendment. Vernon’s Ann.TexCivSt

U.S.C.A.Const.

hed 0S AP PO 92 LE Ra Ws HY 48

U.S.C.A.Const. Amend. 8. Constitutional Law ¢>223 :

& Criminal Law ©1213 facilities of Texas Youth Council is

Infants 69 Vernon’s Ann.Tex.Civ.

idespread practice ting, constitutional.

... kicking ee — St. arts. $130, 51434, § 1; U.S.CA.

larly abusing juvenile inmates, in ab- Const. Amend. 14.

i |

-— >—o See |

Lae: tad a

+ a oe Seki a es 3

ty unit of Texas Youth Council, absent

any attempt through « hearing that

comported with minimai due process re-

quirements to determine which of juve-

nile offenders posed a danger to society,

constituted a violation of Fourteenth

Amendment. Vernon's Ann.Tex.Civ St.

arts. 5130, 51434, § 1; U.S.C_A. Const.

Amend. 14.

{

Vernon’s Ann.Tex.Civ.St. arts. 6130,

5143d, § 1; US.C.A.Const. Amend. 1.

M infest 16.12

a right to humane and rehabilit

treatment directed toward ultimate p

pose of reintegrating child into

Vernon’s Ann.Tex.Civ.St. art. 51434,

15. Constitutional Law 2255/4)

The “right to treatment” dc sas %

which holds that commitment of j

niles to institutions under condit;

and procedures much less rigorous t

those required for conviction and {fj

Prisonment of an adult offender ¢

rise to certain limitations upon co

tions under which state may confir

veniles, finds its basis in due pre

clause of Fourteenth Amendment. &

C.A.Const. Amend. 14.

16 Infants C=¢9

Juveniles committed to cy :

Texas Youth Council enjoy both a

statutory and a federal constitut

“right to treatment.” Vernon's

Tex.Civ.St. arts. 5130, 5143d, § 1; 0

C.A.Const. Amend. 14.

17. Infants =¢49

Segregation by untrained cc

tional officers of some inmates ¢

general population in facilities one:

by Texas Youth Council on basis of

pected homosexuality constituted a

tion of their state and federal rights.

treatment. Vernon’s Ann.Tex.CivSt. ai

5143d, § 1; U.S.C.A.Const. Amend, 1

14. Infants =e .

Failure to allow and encourage &

participation of family and int a

friends in program of youthful o

constituted a violation of juvenile’s st

and federal rights to treatment. 1

non’s Ann.Tex.Civ.St. art. 5143d, § 3

U.S.C.A.Const. Amend. 14. :

19. Infants =¢69

Practice of withholding or ne:

ing to provide case work, nursing,

or psychiatric services

juveniles confined in solitary confi

ment or security facilities of Tex

Youth Council constituted a violation

their state and federal rights to t:

ment. Vernon’s Ann.TexCivSt.

5143d, § 1; U.S.C_A.Const. Amend.

- 5°

———— e ” ~Aes > a ~<

4 a . owt “~ os Va ’ 4

5 era ‘2. tee i ae

. = . - ° - aes" “ -

gp Ae eat gS =< py ore. 22 Toe on

! *. wate et , = tate a4 > ei’ > o- ae veo -

‘ ° Soe ee ee ¢¢in oe ° pir gl O85 ee C

: aoe viet Fete 2. TS - > ees. * opert-

. Fs. at gee i + -: oh: g a ai

, a ag ee ar wees =" 3” =~,”

“se eS : _ > ‘

- . te Sa

result of a staff determination that his one of repression and fear. The ;

precommitment conduct evinces danger- istrative staff of Mountain View- agg

ous propensities or he may be trans the central office of the TYC have

ferred there from one of the other TYC ess than diligent in their ef:

tion, which had # history of brutality, St OF oe ‘ institutions for boys, usually Gatesville, eradicate these practices at M ?

}

#§

;

from home. There are also some boys substances have been used

US.C.A.Const. Amend. 14. Attys, Mental Health Law Project, ; iene aw cin wap canted cnees ¢ Ge adem ;

-< Washington, D ;, aS. ‘ Gas Gen ate ei Oy sh come tain View inmates in situations in

i “ tially nomviolent, uncooperati

* "cntioment of erm nul, See AN mae ores us praring at cretion fcr Te nt” Ona. ama, for tama

not have a nurse available on premises tal Deficiency, amici curiae. fusing to work, or running away. tear-gassed while locked in his celh

26 hears 0 dey eee? inate © JUSTICE, District Judge. + vy seater @ uahiiy - nad doy os

treatment. Vernon's Ann.Tex.Civ.St FINDINGS OF FACT him to Mountain View from and another was gassed by s

art. 51434, § 1; US.C.A.Const. Amend. Plaintiffs are miner children who one of the other institutions for boys is a! officer supervisor while he was

i“ represent a class consisting of all juve- eh A, committee. heid by two 200-pound correctional

Infants =60 hereinafter juveniles or TYC in- Many of the persons on the committee cers.

- Employment by Texas Youth Coun- wives) abo are presently, have been in have no knowledge of Mountain View, 7. Mountain View's

cil of persons whose personalities, back- the past, or may be in the future adjudi- A, 4.4, fA known to the inmates of both

of qualifications rem- cated delinquent to Vernon's their decision. Time tations make View and Gatesville, has been

ary Mang on to harm juveniles in Tex.Rev.Civ.Stat-Aan. art. 2338-1, invol- adequate psychiatric examination diffi- brutality and repression.

their either physically or psycholog- untarily committed to the custody of the cult, if not impossible; deliberations are has in no small part been a fu

‘cally, abeont aay attempt to Texas Youth Council (hereinafter the | none wag 4 By -y- -_ ineffective leadership and a staff

: . to Tex.Rev.Civ.Stat. are not i of the commit- qualified by education,

- amen oo poy gy ccsignad to ono of tee’s decision prior to the actual assign- oemanaiity to effect the rehabili

weniles’ state and federal the six schools under the jurisdiction of ' ment or transfer delinquents. Mountain View cannot

poy A Vernon's Ann.Tex. the TYC: Mountain View, Gatesville, i P 5. Correctional officers at Mountain operated as a minimally adequate f

Civ St. art. 51434, § 1; US.C.A.Const. Giddings, Crockett, and View presently administer, or have in ty without a competent and sensitive

Amend. 14. Brownwood. (The names of these the past administered, various forms perintendent.

schools correspond to the names of the | of physical abuse, including slapping, 8. Correctional officers at

23. Injunction ©°19K(3, 3) Texas cities in which they are located, puoching, and kicking. One form of tions other than Mountain View,

It was appropriate to enter & Pre ss tor Mountain View, which is lo this puysical abuse, referred to as “rack- ily Gatesville, presently administer,

liminary injunction to enjoin certain 4 sear Gatesville, Texas.) ing,” consists of requiring the inmate to have in the past administered,

practices of Texas Youth Council where “* ose Be, Janes A. To stand against the wall with his hands in forms of physical abuse to TYC in

r continuation would work irrepare

;

itt

9. Complaints regarding

} «

—= of the TYC re sists of correctional officers administer- ghuse of TYC inmates at Mountain V

ctnguato sumaty ot low at Sues => hy by yt ot te ing blows to the face with both open and ang other institutions are supposed to

tect them against med — (hereinafter cleced hands. the subject of “incident reports,” fi

‘ —— TYC personnel) | chen net -y md by all TYC inmates and personnel i

’ Law Center, The Mountain View State School on grou of pro- volved. Specific procedures vary from

! we Coe, ee 4 or Bam bo aaa ty facility pe BM yey, Certain institution to another, however, and fal

Richardson, Tex. William P. Hoffman, operated by the TYC. It is surrounded pm ome y tb Ah ys sification of reports by correctional off

Jr., Washington, D. C., for plaintiffs. by two fences. both of which are topped ) gaged abuse

cers particularly at Mountain View,

care. As a result of these prac- by inmates, under duress of the cc

the climate at Mountain View is tional officers, is widespread.

i A juvenile may be j

John L. Hill, Atty. Gen. of Tex., Aus- with barbed wire.

tin, Tex. Robert Salter, Staff Atty. initially assigned to Mountain View es a

304 F Sue 114

errr

ane: :

resaee j

eh nig WH za i

OE Syapbigsar fries fs id eschterd fies TE

wie iii tseann littl lalla itd a

5 peeee vaed fbn So5snas 9B *E3 sgh 828 poate aged

oD ERB eae annie ie trae

OT Ul ailbidii Hadi ua SHH TE

eo} Haein bedi tial, tend

ents 4a ye38 i 1 Lo i 7 = pnd i

ae eH i ga beg BU

ita B gfe HEHE aged? elaine eai aie

te te ee tts. cate

171

MORALES v.

TAT ee Sr ete tec . =

— 7 .

ne OI ate

S4e3358 ; ag8 42 Eee 42392 $44 seats

Seer lths Tbig ph ikl Te

gsi nel tat aiiiaeh Gi

Pee HAE EPR

SHUT aseitl enti ied tei

ARMM Ree ee TT

He HAE He HH

334 er ? : §ilssis2 38 f88938 gb eae

ni uy au it SERS EEeE it + hal

Th ics STRUT Ae AE yids

He aH SoH eit didn ts

Delahunt Misa:

OF Gee) Pe

American. Some can speak little or no

Engiish.

30. Visitation policies regarding the

number of visita, the length of visits,

and the number of visitors permitted

vary from one institution to another.

At most of the institutions, however,

families of inmates are encouraged to

visit on only ope Sunday a month and

are

that they were hired after only a ten-

minute interview with the assistant su-

perintendent and no further screening.

A psychologist at the Gatesville Recep-

tion Center and a psychological consult-

ant to the Gatesville State School for

Boys testified that testing techniques

exist to screen out potentially abusive

Prospective employees and that psycholo-

gists at Gatesville are equipped to ad-

minister such testing.

CONCLUSIONS OF LaW

{1} 1. This court has jurisdiction

of this civil action under the first,

eighth, and fourteenth amendments to

the United States Constitution, 42 U.S.

C.A. § 1983, and 28 U.S.C.A. §§ 1331,

1343, and 2201-2202. Pendent jurisdic-

tion also exists to decide questions aris-

ing from alleged violations of rights se-

cured by state statutes in the context of

this lawsuit. United Mine Workers v.

Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16

ss Ne = yee,

Col. * "> “=o ~ % «jes

Po mae a Seer a : he

ee SE ee wid bes SH

“atte P? be! cr aS - Mee > wo

a, ee = et 4 a = 2

% + a

» MORALES v. TURMAN 173

Cite as 66 F. Suey. 166 : 1973)

state law, Tex Rev.Civ.StatAnn. art.

5130 (1971), the avowed policies of the

Texas Youth Council, Tex Rev.Civ.Stat.

art. 5143d § 1 (1971), and the eighth

amendment to the United States Consti-

er express or implied, but rather in ex-

press derogation of state law, violates

the eighth amendment because it is so

severe as to degrade human dignity; is

. v.

238, 257-306, 92 S.Ct. 2726, 33 L.Ed.2d

346 (1972) (Brennan, J.);

Jackson v. Bishop, 404 F.2d 511 (8th

Cir. 1968).

(6] 4. The use of tear gas and oth-

er chemical crowd-controi devices in sit-

uations not posing an imminent threat

to human life or an imminent and sub-

stantial threat to property—but merely

as a form of punishment—constitutes

cruel and unusual punishment in viola-

ver

3 ~s " A ba Fy “« a he . oa

ac Pa ee ss ag aS

a 5 5 Sete

4 o is A %y "« “ -

st ari - = , ” o>.

. ; os 4 - oe ‘ S ne eee a |

en PRT. Ly : - a Pk

ooo ve L. - - , 3

= Fee ve ” A Pa ~

== ae. +

"= *«

-_-

> re - o 7 x + ( ~~ wy

re kam : ar St *S Bo EES

be 364 FEDERAL SUPPLEMENT

tion of the eighth amendment. Land-

man v. Royster, 333 F.Supp. 621, 649

(E.D.Va.i971).

{

(9] 7. Racial segregation of any

facility is wunconstitu-

tional. Brown v. Board of Education,

347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873

(1954); Washington v. Lee, 263 F Supp.

827 (M.D.Ala.1966).

teenth amendment. See, ¢. g., Goldberg

v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25

L.Ed.2d 287 (1970): Clutchette v. Prec.

cunier, 323 F.Supp. 767 (N.D.Cal.1971 x -

(11,12) 9 Although the limi +

on permissible censorship of the mail ’ ‘y

communication must bear, at the

least, a rational reiationsa ip to the

coming or outgoing mail or by limi

tion of the persons with whom in

may correspond. A legitimate state

terest in preventing the flow of contr

band into Texas Youth Council 1

tions justi_ies only the least :

practices ad ‘quate to >-hieve that int

est—in this case, tLe opening of ine

ing mail in the ,resence of the inmate

whom it is addressed for the sole

pose of examining it for cc

Nelson v. Heyne, supra.

, {13} 10. The practice of prohi

ing or discouraging juveniles in TYC

stitutions from conversing in lan

other than English, under circums:

that would not give rise to similar

hibitions on the speaking of English,

a violation of the first amendment

the Constitution.

(14) 11. The law of the state

Texas requires that the TYC adhere t

its statutory duty to Provide “a p:

of constructive training aimed at

bilitation and reestablishment in societ!

of children adjudged delinquent.” =

Rev.Civ.Stat.Ann. art. 5143d § 1 (1971):

This law confers upon each ju

committed to the custody of the Tex:

Youth Council a right to humane and

habilitative treatment directed toward:

the ultimate purpose of reintegrating

the child into society. See Smith +.

State, 444 S.W.2d 941, 948 (Tex.Cir.

App.—San Antonio 1969, writ ref. n. r.

e.); In re Gonzalez, 328 S$.W.2d 475

—~— ~~ mee ee

a et lt

ay were -

eee

4 PPP. Lobe oI

~ © @ Fe - ? ;

, ee PS ’ +

. PT eed : , . ote ee

Fo Ge <i Sate

ae Se Calton - Se Peed >. ‘%. £2.

- y +t: " >. 2, Mace:

— : SOT Ss “ ae -

dos - «°*

ch : aad - -

Ce MORALES v. TURMAN 175

a (Cite as 364 F Sepp. 40 (19TD)

(Tex.CivApp.—E} Paso 1959, writ ref.

n. r. @.).

[15,16] Im eddition to this state

statutory right, the commitment of juve-

1287 (1973). Thus juveniles committed

cil enjoy both a state statutory and a

federal constitutional “right to treat-

of the juvenile’s state and federal right

to treatment.

[19] 14. The practice of withhold-

services to juveniles confined in solitary

confinement or security facilities consti-

tutes a violation of their state and fed-

eral right to treatment.

(20) 15. Failure to provide inmates

of a maximum security institution such

as Mountain View, which has a history

of brutality, negiect, and intimidation,

with access to a person who cao hear

their complaints and seek administrative

redress for their grievances without

fear of reprisais, ‘constitutes a violation

of their state and federal right to treat-

ment.

(21}- 16. Confinement of juveniles

in an institution in which a nurse is not

availabie-on the premises twenty-four

hours a day constitutes a violation of

their state and federal right to treat-

ment.

[22] 17. The employment by \we

TYC of persons whose personalities,

render them likely to harm the juveniles

in their care either physically or psycho-

logically, absent any attempt to adminis-

ter the appropriate psychological testing

or psychiatric interviews, constitutes a

violation of the juveniles’ state and fed-

constitutes a violation of those juveniles’

state and federal right to treatment.

18. The plaintiffs are without an ad-

equate remedy at law that would protect

them against the wrongs described in

the foregoing findings of fact.

ee te

USE OF PHYSICAL FORCE

an Except to the extent that the use

corporal punishment is governed b.

Tex.Rev. Stat_Ann. art. 5130,* icone

physical force of any kind by any TYC

personnel on any TYC inmates shail not

be permitted except to the extent rea-

Poe (i) in self-defense.

in defense of third persons, whether

TYC inmates or TYC personnel or oth-

ers, (ili) in effecting restraint on TYC

immates in the act of escaping, or (iv)

to prevent substantial destruction of

Property.

permitted im (1) above. Inver”

fecting restraint on TYC inmates

im the act of escapiny. the

reasonably necessary does not ie

clude striking or beating. ’

2 The use of Mace is prohibited. - a

3. The use of tear gas or any oth

crowd-control chemical substance is

hibited except to the extent

4. Any TYC inmate who c

that he has been the victim of any

of force by a TYC employee that is peal

hibited by this order may file with.

caseworker ‘or in the absence of:

caseworker, some other caseworker

report setting out the allegations. 7

report shall be forwarded forthwith.

the superintendent of the institutiss

concerned. Within ten days of the

of the alleged incident, the superint

ent shall investigate the alleged inci

and file a written report detailing

findings and conclusions with all c

in this civil action and with this «

SEGREGATION

1. Effective immediately, no TYC

mates shall be segregated or assigned

dormitories or other facilities on the

sis of race, color, or national origin.

scm ~~. Rare . aa 2M as 7% 2 : é* aes

adh a 3 ae te Ger ep See es ME SSS

ty tee 2 Fa y he :

ee a" . 2 Sas >

se: Cite as 164 FP. Sapp. 164 (1973) a . 36 FEDERAL SUPPLEMENT ,

inmates who now reside in such adormi- meets the standards set out hereafter in that creates substantial disrupti «

tory back to the general population shall (C){1) or (D)(1), whichever is appiica- the routine of the institution Ption of maintain silence during periods of .

-y be required, nor shail it be prohibit- bie. 2. While confined to susasten — pon Ange Gao Gane that reasonably )

1 mate shail ee ° ad some 0 f yey

C. SOLITARY CONFINEMENT > i ae Red at least once a day “cational ciasses) taal oat be entorcag

ae ye some other caseworker) and by a rees, opvomt’ gt XC, inmates shall enjoy ie

. solitary confinement unless such con- tered nurse. 8 te & eatent Os opportunity for at least one oy Oe

CONFINEMENT finement is clearly necessary to prevent or than one day, a peychiatrine for long- large-muscie exercise or FB ;

A. DEFINITIONS imminent physical harm to the inmate chologist shail consult with —s psy- daily basis, unless dispensed with

“etary confinement” to defined ano * Sther persone or ciaasly nesemnacy and afford him such treatment a3 is inn nia” (2 the case of dodily i

to prevent imminent and substantial de- ! dicated ne la tasisin- ties) or a psychia i oon,

the placing of a TYC inmate alone ina tion of property j ter than the second day of mental ; trist (in the case

other than a room in the inmate's own —s H such confinement. conditions) in writing. ;

locked or otherwise secured room or cell 2 While confined in solitary confine- t In no event shall an inmate be 4. School books and daily

dormitory. ment, the inmate shall be visited by his fined to security for longer than con- plans that reflect an amount of dai

“Security” te defined on the placing of aeTette (er, in his chosnee, by some consecutive days in the abeome sf, struction consistent with the edueati

other caseworker) for a period of ten written nce of 2 practices of the school i

a TYC inmate in e# locked or otherwise report prepared and signed Leatttees Program

- minutes each hour until bis release from the inmate’s igned by institution as a whole shall

secured building, which may contain one solitary confinement, ; the caseworker, detailing the ii TYC i be pre

or more solitary confinement rooms or excepting oaly reasons for such confinement. Copi +i inmates, uniess a psychi

- hours between 10:00 p. m. and 7:00 a. these - Copies of otherwise directs in writi

cells. The definition includes, but is not hey » reports shall be forwarded forth. —

limited to, a Security Treatment Cottage ™- inmate shall be visted by s reg- ; with to the Executive Director of the - Repetitive. nonfunctional, ¢

or infil ' istered nurse at least once a day; if he TYC, all counsel in this civil action, and 7%, *™4 unnecessary tasks (

“Dormi confinement” is defined - m4 ae ee Se, © to this court. If such confinemen make work”, such as buffi

tory psychiatrist or a psychologist shall con- ceeds ten : t ex- floor that has ing a

as the placing of a TYC inmate alone in suit with the inmate and afford him such of ne aad Tri ee OUrdee butted aunty been culth

a locked or otherwise secured room in is indicated Preparing and filing these reports ed oF pulling grass in an open f

= treatment as is on a daily ba- shall shift to the Executive Di not intended for cultivation

dormitory. sis beginning no later than the second TYC. ‘rector of purpose) are prohibited. =

of inement.

B. DECISION TO PLACE IN SOLI- Be te an inmate be piaced j E. DORMITORY CONFINEMENT onan TYC inmate shall be 4

TARY CONFINEMENT OR SECURI- jn solitary confinement for longer than 1. As an alternative to placement in day — duping during periods of

TY three consecutive days in the absence of ? solitary confinement or security, a TYC quire pod those that reasonably

1, No TYC inmate shall be placed in a written report prepared and signed by i inmate may be placed in dormitory con. (auch as academic vegeta”

solitary confinement, security, or dormi- the inmate's caseworker, detailing the \ finement. pape a or vocational

tory confinement, or otherwise confined justification for such confinement. - 2. No TYC inmate shall be placed j Suh,” suleees ene Seas

in a room or building, except in con- Copies of this report shall be forwarded , dormitory confinement unless ~ event, Smo © won (8) shove.) Ia

formance with this order; provided, forthwith to the Executive Director of finement meets the standards a ae admini , Snail any discipline

however, that nothing herein shall be TYC, all counsel in this civil action, and fer colliery confinement in Ca other seared that is inconsistent

construed to prohibit locking the outer to this court. If such confinement ex- security in D(1). In no pany BP ang parts of this order.

ee eee ceeds five consecutive days, the burden mitory confinement exceed fifty min. MAXIMUM

sleeping hours. This provision does of preparing and filing these written re- utes. SECURITY CON

= however, the confinement of ports shall shift to the Executive Direc- — MENT: MOUNTAIN VIEW

juveniles in individual dormitory rooms tor of TYC. . NDITIONS OF SOLITAR 1 N ; , ;

FINE Y No juvenile committed

Bay by chaining or night-latching 3. No TYC inmate shall be placed in Ps MENT, SECURITY, AND ‘4 of the Texas Youth teh ont

r doors, except in conformance to RMITORY CONFINEMENT Sow assigned

e solitary confinement unless a person The : : to Mountain View

section B herein. within calling distance of the inmate is al ne following provisions shall apply to Schoo! for Boys (hereinatter referred

2. No TYC inmate shall be placed in at all times in possession of a key to the TYC inmates (whether placed in soli. ** Mountain View :

solitary confinement or security by any isolation room or cell. ; | tary confinement, security, dormitory ‘"*®*ferred to Mountain View after

SUC gununnd Gor tongue Gan ono tens confinement, or otherwise) : date of this order except upon a

absence of a written statement, 1. A bed, inding by the classi

. D. mattress, *

signed by the inmate's caseworker (or, SECURITY ding, and access to a “ene that the juvenile has in the past, eit

in his absence, by some other casework- 1. No TYC inmate shall be confined ber pot) shall be provided for all TyC Prot t OF subsequent to commi

er), declaring that the caseworker has in security unless such confinement is ‘inmates in the place where they s committed acts that, if committed b;

talked to or visited with the inmate and clearly necessary to prevent escape or 2 The so-called “silence ru! leep. adult, would constitute the offense

has concluded that such confinement clearly necessary to restrain behavior quiring that rule, Ye murder, voluntary mansiay

confined j ghter, k

364 F Sepp —i2 Rmates sometimes ping, a ;

: » Aggravated kidnapping, rare,

Beememnsd / >

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~. MORALES v. TURMAN 179

Cite as 364 FP Sepp. 168 (197)

2. All TYC personnel who apply:

gravated rape, sexual abuse, aggravated person who wishes to conswit with him te search for and seize contraband, er the date of this order for a positighhat

sexual abuse, sexual abuse of a child, ag- in that capacity. open but.not read incoming mail in bringing them into contact with _"

gravated assault, deadly assault on a 3. Mr. Derrick shail receive notice of presence -of the TYC inmate to niles on a regular basis snail be reawiles

neace officer, arson. robbery, or aggra-

vated robbery, as defined in the Texas

Penal Code (approved June 14, 1973;

effective January 1, 1974), TexLaws

1973, ch. 399.- Definitions of all terms

relevant to these crimes shall be gov-

erned oy the new Texas Penal Code.

tary confinement, security, and dormito-

ry confinement.

OMBUDSMAN

1. Mr. Charles L. Derrick shall serve

during the pendency of this interim or-

der as Ombudsman for the juvenile in-

mates of the Mountain View State

School for Boys. He shall have the duty

of reporting to this court any matters

concerning the operation of the Moun-

tein View facility that should be

brought to the court’s attention, espe-

cially any violations of this court’s or-

der. He may, if he wishes, forward a

copy of his reports to any other interest-

ed party, but he shall not be required to

do s0.

2. All inmates and staff members of

Mountain View shall have free access to

Mr. Derrick, and no person shall inter-

fere with Mr. Derrick’s performance of

his duties as Ombudsman or with any

and be permitted to attend any meeting

of TYC staff, formal or informal, at

which policies or procedures affecting

Mountain View are discussed. Notice to

Mr. Derrick of such a meeting shail be

in writing and shall be detivered to him

at least twenty-four hours before the

regular business of Mountain View, and

all records of TYC kept in the regular

course of its business that relate to mat-

ters affecting Mountain View.

7. Mr. Derrick shall make to TYC

such recommendations as are appropri-

ate concerning the operation of Moun-

tain View or any matters affecting the

operation of Mountain View, especially

recommendations concerning compliance

with this court’s order. A copy of all

such recommendations shall be provided

to the Executive Director of TYC, the

Superintendent of Mountain View, the

court, and all counsel in this civil action.

COMMUNICATION: MAIL; NON-

ENGLISH LANGUAGES

A. MAIL

1. Outgoing or incoming mail shall

not be opened, read, censored, or tamp-

ered with in any other manner; pro-

separate days between Monday and Fri-

day, inclusive, except holidays; (2) on

Saturdays, Sundays, and holidays be-

tween 9:00 a. m. and 5:00 p. m.

NURSING CARE

At least one registered nurse shall be

eve lable om the premises of each of the

os TYC institutions on a 24-hour basis.

SCREENING OF PROSPECTIVE TYC

PERSONNEL

1, All TYC personnel hired, rehired,

or promoted after the date of this order

to any position shall meet the qualifica-

tions for that position set forth in the

Texas Position Classificztion Plan, as

established for the TYC by the Texas

State Auditor (United States Exhibit

No. 20).

to submit to psychological testing dmgs

psychiatric interviews. TYC shal :.

hire any employee the results of

testing casts doubt upon his ps

cal fitness to work with children.

3. Upon the rehiring of any f

‘

human TYC i :

2 Any juvenile that the classifica- meeting. except in the case of an emer- , hy life or property within the ate an ee ee .

tion committee considers a candidate for gency meeting, of which notice shall be C facilities. action shall give notice forthwith ie

ie assignment or transfer to Mountain given him at the earliest possible time. 2. The number of persons with such rebiring to all counsel and x

View shall be present at the committee 4 Mr. Derrick’s present salary shail whem SoS nate Ghp cmmmees ty couse, :

meeting during all deliberations about continue to be paid by TYC, and may eee as Ws >

his assignment. He shall be given an not be reduced during his occupation of De, CODE, EEE oP pene, and ct == tb further Cofesed that engl

‘ opportunity to make any statements and the position of Ombudsman. TYC may, least three S-cent stamps per week shall this order shall be sent by certified

= ask any questions that he desires. If if it so desires, continue to employ Mr. be provided at reasonable times and return receipt reqlested, to the three

the committee a — or Derrick in his present position as Chief oeetaad counted Stout ed Gn TYC. and the

r the juvenile to Mountain View, at in View, r ‘

. — hand written reasons justify- coo bade aaaeiemewall his du. B NORENGLION LANGUAGES pertatendents of the Mountsin

ing the assignment or transfer and fur- ties as Chief of Casework Services shail The speaking or writing of non-Eng- Gatesville, Giddings, Gainesville, C

nish forthwith a copy thereof to all not interefere with his duties as Om- lish languages shail not be prohibited or ett and Brownwood institutions

2 counsel in this civil action and to this budsman. Guanes ate Gene Gap SS labia fae tee. 5S

court. 5S. Mr. Derrick shall be provided with would not give rise to similar prohibi-

: 3. Mountain View shall be adminis- office space, secretarial assistance. of- tions regarding the English language. Ordered that the Executive Diree

% tered in accordance with all other appli- fice supplies, and ail other facilities nec- of the TYC instruct each of the Sup

& cable provisions of the court’s order, in- essary to the performance of his duties VISITATION RIGHTS tendents of the above-named schoc

$ cluding but not limited to those provi- 5 Ombudsman. Visitation by family and friends of bold meetings of all employees, full ti

4 sions concerning use of physical force ¢ ir Derrick shall have free access TYC inmates shail be permitted (1) for part time, or consulting, of their

F and tear gas and the employment of soli- 1. 41 records kept in the course of the at least two hours a day on at least two tive schools, in order that the Sup

tendent may read and discuss this ¢

with them. At the conclusion of t

meetings, every employee shall sign

form indicating that he or she w

stands every provision in the

Forms containing these signatures

be forwarded forthwith to the

Director of TYC. These meetings

be conducted in shifts; provided,

ever, that these meetings with all

ployees shall be completed and for

containing employee signatures shall

completed and placed in the mail to t

Director of TYC no later than

days from the date of his receipt of t

court’s order. It is further

Ordered that three (3) copies

this order be posted within four days

the receipt of this court’s order by 4

Executive Director of TYC in every 4

ag 30

—ee Se

Clee an 386 F Supp. wt ( 19TD)

cility located within the six above-named

institutions in which TYC inmates sleep,

including dormitories, the infirmary, or

any of the facilities described in this or-

der as constituting security. The order

shall be posted in a conspicuous place,

preferably a bulletin board near the en-

trance of the building. .

Defendant moved in antitrust action

for further relief with respect to court-

to divest itself of certain acquired assets

for a one-year period which had ended.

The District Court, Blumenfeld, Chief

Judge, held that provisions of decree did

not impose an absolute obligation of di-

vestiture and Government, which did not

allege bad faith on part of defendant

corporation in attempting to sell the as-

sets, was not entitled to modification of

decree to consummate divestiture.

Motion denied.

L Monopolies €—24( 15)

Consent decree terminating govern-

ment antitrust action is not only permis-

sible but often desirable. Clayton Act, §

7, 15 U.S.C.A. § 18.

2 Monopolies $°24( 15)

Power to shape remedy obtained by

negotiated consent decree in antitrust

action resides only in the hands of Gov-

ernment and court’s share of decisional

load by its approval of proposed consent

decree is a limited one which is not to

assess wisdom of Government's judg-

ment in negotiating and accepting de-

cree, at least in absence of any claim of

bad faith or malfeasance on part of Gov-

ernment in so acting. Clayton Act, § 7,

15 US.C.A. § 18.

8. Federal Civil Procedure $1706

In reviewing proposed consent de-

cree terminating antitrust action it suf-

fices for court to know that the parties

have decided to settle without inquiring

why.

4. Monopolies $=24(15)

Consent decree terminating anti-

trust action once entered must be con-

strued as written.

5. Monopolies 24/15)

Where consent decree terminating

antitrust action against defendant corpo-

ration ordered corporation for one-year

period to make continuous bona fide ef-

forts to sell and consummate sale of as-

sets of acquired industrial boiler busi-

ness, there was not an absolute obliga-

tion to divest; after passage of deadline

Government, which failed to allege that

corporation was breaching any terms of

judgment and.which did not challenge

bona fides of corporation's efforts to j

sell, was not entitled to modification of i

decree to consummate divestiture. Clay- j

ton Act, § 7, 15 U.S.C.A. § 18.

fendant corporation to use continuously

its best efforts to divest itself of certain

parties to petition court for further or-

ders so that judgment might be con-

strued, carried out, modified or enforced |

did not enable court as a matter of dis-

cretion to order divestiture at any time !

Act, § 7, 15 U.S.C.A. § 18.

2 Tagine ney °

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MORALES v. TURMAN 53

Cite as BF Mapp + 18T4,

district court’s judgment is reversed or

cated. interest was allowed to run from

she original judgment. See Taylor v.

Washington Terminal Co., 133 U.S.App.

pc. 110, 308 F.Supp. 1152 (1970):

Fassbinder v. Pennsylvania R. R.. 233 F.

supp. 574 (W.D.Pal964). This, of

wurse, Must be distinguished from the

present case in which the 1961 order was

vacated and tried completely anew.

Section 782’s mandate that interest

can only run after the rendition of judg-

nent is ambiguous. Does it mean any

judgment, a final judgment, or a final

judgment not vacated or reversed?

While I could find no direct answer to

this question, the correct interpreta-

tion may be reached by the process of

elimination,

There have been three judgments en-

tered by the district court since the Su-

preme Court settled the issue of liability:

Judge Body's award in June 1968, my

(irst decision in 1972, and the present

judgment issued in March of this year.

Since interest must run from a judg-

ment, a fortiori it must run from one of

these decisions.

(3] The fact that this court has

been unable to compute damages satis-

factorily and that our decisions have

been reversed and remanded twice should

not work to plaintiff's detriment. She

became entitled to interest as of the day

the final judgment on liability was ren-

dered, and it would be inequitable to

impose the costs associated with the use

of money on her rather than on the de-

fendant whose wrongful conduct resulted

in the invocation of the judicial process

and who had use of the money during the

pendency of the various appeals. Per-

kins v. Standard Oil Co. of California, 487

F 2d 672 (9th Cir. 1973). See Petition

of United States Steel Corporation, 479

F.2d 489 (6th Cir. 1973), cert. denied,

il4 U.S. 859, 94 S.Ct. 71, 38 LEd2d

110 (1973); Kotsopoulus v. Asturia

Shipping Co. S.A., 467 F.2d 91, 94 (2d

‘ir. 1972); Coyle Lines, Inc. v. United

Sates, 198 F.2d 195 (Sth Cir. 1952).

But see United States v. 3.317.539 Acres

of Land, 481 F.2d 417 (8th Cir. 1973);

United States v. Larchwood Gardens,

Ine., 420 F 2d 531 (3d Cir. 1979); Mer-

chants Matrix Cut Syndicate. Inc. v

Jmited States, 284 F.2d i56 7th Cir.

1960).

Therefore, | conclude the most logical

judgment from which interest should be

computed is the judgment of June 25.

1968, entered by Judge Body on remand

from the Supreme Court. It was this

judgment that finally settled the issue of

liability between the parties and began

the time from which the plaintiff was

entitled to recover from the Government.

See Lauro v. United States, 168 F.2d

714 (2d Cir. 1948).

For these reasons, I conclude the plain-

tiff is entitled to a judgment against

the United States for $122.665.. with

interest at four per cent per annum com-

mencing June 25, 1968.

Alicia MORALES, et al.

James A. TURMAN, Individually and in

his official capacity as Executive Di-

rector of the Texas Youth Council,

et al.

UNTTED STATES of Americe.

Amicus Curiae,

American Orthopsychiatric Asso-

ciation et al, Amici Curiae.

Ow. A. No. 1948.

United States District Court,

E D. Texas,

Sherman Division.

Aug. 30, 1974.

Civil action concerning both the ad-

judicatory and postadjudicatory stages

of the juvenile justice system in the

state of Texas. The District Court, Jus-

tice, J., held, inter alia, that numerous

criteria would have to be followed by the

—_—

ee ee

—-< 4

- ° ~ - y 7

i: P

. re es se ifh “Ov

aa pO rae ee: * <7 et

me MR aid ‘ 7

4. ~*~ x ¥ “ S

7 4 aN se

~ pruee’ ‘ ry

. MORALES v. TURMAN 55

.catory stages of the juvenile justice

tem in Texas, to reopen the record

iu oe dened, where reopening of the

aw vould entail further delays, with

ene need for more discovery. trial, and

wrvefing, where defendants had a great

ai of time to prepare for the case, and

.eere the fact that conditions had

sanged, if such was a fact, would not

‘er the plaintiffs’ right to relief from

-e. practices of which they complained.

1®, Coostitutional Law S°255(1), 278(1)

Any substantial deprivation of \ib-

erty or property, regardiess of its char-

terization, may raise a due process

-lam under the Fourteenth Amendment.

' 3. A.Const. Amend. 14.

1). Constitutional Law ©°255( 4)

Due process requires the imposition

{ vertain procedures after incarcerated

-aventle has been in solitary confine-

«nt for five consecutive days. or has

teen in security confinement after ten

onsecutive days; such procedures will

reyuire that the juvenile be given a

rearing before an impartial tribunal,

that such tribunal file written findings

. thin 48 hours following date of hear-

og with the executive director of the

fexas Youth Commission, and that the

xecutive director file copies of such

‘ndings with the federal district court

.nd all counsel until further orders from

the court.

12 Infants 16.11

The commission of a particular of-

lense does not necessarily imply that ju-

senile offenders should be subjected to

confinement in a maximum security fa-

cility; instead, the standard for deter-

mining whether a juvenile should be as-

s\ened to such a facility must be based

ona finding that the juvenile is excep-

tionally dangerous, that is, that he will

likely couse severe injury to himself or

ethers unless dealt with carefully in a

~cure setting.

13. Infants © 16.11

Determination that a juvenile is ex-

‘vptionally dangerous, and that he

“ould thus be assigned to a maximum

IE TIE ITT er eee

+e om GAS Aeeege BB 10TH)

security facility, must not be entrusted

'o laymen; it must be made by a major-

tv vote of a panel of well-quaiified psy-

cmiatrists and psychologists.

lt. Infants @ 1611

A determination that a juvenile is

»xceptionaily dangerous, and thus should

be confined to 42 maximum security in-

stitution, may be made only after 2

hearing, and will be deemed to be invalid

uniess accompanied by written findings

showing an adequate basis to justify the

decision.

{S&. Infeates C1611

A juvenile’s constitutional right to

treatment, with respect to assessment

and placement, requires the maintenance

of minimal professional standards, in-

cluding the foliowing: (1) every child

committed to a state agency by juvenile

court must have benefit of an individual

assessment. to serve as the basis for his

treatment plan; (2) social work staff

involved in assessment must be trained

at the master’s degree level in social

welfare or closely related field; (3) so-

cial work staff must not have case loads

exceeding 50 cases per week: and (4)

psychologists with master’s degrees and

properly trained in testing procedure are

adequate, but only if a doctoral-level psy-

chologist is available to supervise their

work.

16 Reformatories 7

An incarcerated juvenile’s constitu-

tional right to treatment requires the

maintenance of minimal professional

standards, including: (1) daily contact

between case-worker and juvenile, so as

to permit evaluation of juvenile’s amena-

bility to guidance and counseling: (2)

utilization of the Weschler individual-

ized intelligence quotient test, rather

than the group Lorge-Thorndixe I. Q.

test; (3) utilization of the Leiter and

Weschler test, which are standardized

for Black and Mexican Americans, so as

to better alleviate the discrimination fac-

tor: and (4) psycMological testing of ap-

proximately 15 hours, with a ratio of

one psychologist for every three boys

classified per week.

— - i~ a on nt ies _

cg ee) tow, 6 ot 2 yy © see

. ws > . > . > > i ae | te.

Fos = ity Seober » 2

‘er STUN S Stee ag phe RR ea rae 2

= ib onrtg bee, : : eG, 4-3 Fae ee CF Re

‘ - ee « rs - > =» ¢ ? dy

2 = i bes 4 3

5 ag’? 2 . — i

” - 7% oie

56 383 FEDERAL SUPPLEMENT

13. Reformasories <=7 20 Reformatories 7

ground of the student and of his culture

and language; and (3) obtaining of in-

as observations relating to the student’s

behavior.

18% Reformatories 7

In relation to special education

teachers, the right of an incarcerated ju-

venile to treatment requires the mainte-

nance of the following minimal special

standards: (1) utilization of special ed-

ucation teachers, certified by the state

as qualified to teach either emotionally

disturbed or mentally retarded, or mini-

mally brain damaged children, to treat

children in these categories; (2) provid-

ing of in-service training by an outside

consultant with special education teach-

ers at least once a week; and (3) a min-

imal teacher-student ratio for Texas

Youth Commission students of one spe-

cial education teacher for each eight of

such students, plus supporting personnel,

such as educational diagnosticians and

the like.

ment requires that the state

program for bilingual education.

22. Reformatories 7

In respect to vocational educat:

right to treatment of an incarcerated

venile requires maintenance of the f

lowing minimal professional st

(1) each student should be

with an employability plan, based on

_ Youth Council; (3) adequate on-the-

training, obtained through work

Programs, should be provided; (4)

quate support services, such as

reading and mathematics, should be p:

vided; and (5) an appropriate limitat

must be placed on the so-<alled “w

experience” consisting of essentially i

stitution-maintaining work, so as to 5

vent some work from dominating %

daily activities of students.

23. Reformatories 71

Juveniles incarcerated under the

thority of the Texas Youth Council hz

a constitutional and statutory right

the following minimal elements of an

theme te 4

mbm Bee

A NN a ote

MORALES v. TURMAN 57

Cite as 3G F Sapp 38 (1974)

equate special treatment plan: (1) ade-

quate case work services by an individu-

al trained and experienced in the treat-

eecurity, privacy, and dignity; (3) free-

dom from unnecessary confinement in

mate activities; (4) opportunity for ad-

equate recreation and exercise, and con-

tructive and entertaining leisure time

activities; and (5) freedom from unnec-

essary or arbitrary invasions of privacy.

served diet, supervised by a licensed die-

nication with persons outside the insti-

in a variety of settings: (4) liberty to

exercise freedom of choice in areas such

as dress and hairstyle; and (5) an envi-

23. Reformatories 7

Juveniles under authority of Texas

Youth Council have a constitutional and

statutory right to medical and psychiat-

ri¢ care, and are entitled to the follow-

ing minimally acceptable professional

cilities, property utilized ; (2) access to

ence; (3) a psychiatric staff, consisting

of psychiatrists certified by the Ameri-

can Board of Psychiatry and Neurology

as qualified in the field of child psychia-

- try, sufficient in number to assure

treatment of individual children who re-

omists holding either master’s degrees or

38) F Suge 4

——ee gee

: (1) adequate infirmary ta-"

doctorates in psychology and experienced

in work with adolescents, in sufficient

number to meet the needs of the chil-

dren.

26. Reformatones 7

Juveniles under authority of the

Texas Youth Council, in relation to their

Statutory right to medical and psychiat-

ric care, are entitled to care that con-

forms to the following minimally accept- -

able prufessional standards: (1) provi-

sion of either individual or group psy-

chotherapy for every child for whom it

is indicated; (2) sufficient psychiatric

nursing assistance; (3) sufficient medi-

cal staff and nursing staff to provide ef-

fective preventive and curative care for

the health of all juveniles; and (4)

freedom from indiscriminate, unsuper-

vised, unnecessary, or excessive medica-

tion, particularly psychotropic medica-

tion.

7. Reformatories 7

Juveniles in custody of the Texas

Youth Council are ent‘tled to profession-

al care and rehabilitative treatment de-

signed to reintegrate them into society,

the elements of which would include:

(1) child caseworkers must be employed

in numbers that are consistent with in-

dividual attention to every juvenile; (2)

every employee should receive both -

preemployment and in-service training

that is appropriate to his responsibili-

ties; (3) caseworkers must be em-

ployed in numbers adequate to provid:

personalized care of each juvenile: (4°

family involvement in therapy; and (5)

implementation of a cohesive treatment

strategy that has been professionally de-

signed to suit his individual needs and

achieve his rehabilitation and return to

the community.

The state of Texas must, as soon as

possible, close the Gatesville State School

for Boys.“*and the Mountain View State

School for Boys, since confinement of

juvenile beys to such institutions consti-

— a violation of their constitutional

ee oe eae ee ee ae

ah oe hi ed

ae ow

Atty. Gen of Texas,

Tex. Larry York, Joe B. Dibreli, Jr.,

Max P. Flusche, Jr. and Thomas W.

Choate, Asst. Attys. Gen. Austin, Tex..

Robert F. Salter, Staff Atty. Gatesville,

Maeso and Michelle White, Attys., Civil

Rights Div., Dept. of Justice. for amicus

curiae, United States of America, Larry

A. Schwartz, Patricia M. Waid, for

amici curiae, American Orthropsychia-

tric Association, et al.

MEMORANDUM OPINION AND

ORDER

JUSTICE, District Judge.

I. INTRODUCTION

If any parents shall wilfullie and un-

reasonably deny any childe ‘timely or

convenient marriage, or shall exercise

any unnatural severitie towards them,

Such children shall have free libertie to

Complain to Auxthoritie for redresee.

Massachusetts Body of Liberties, 1641,

No. 83: “Liberties of Children.” (Ital-

ies added.)

While there can be no doubt of the

original laudable purpose of juvenile

courts, studies and critiques in recent

years raise serious questions as to

t. Vernon's Tex.Rev.Civ.Stat.Ann. art. 2338-1.

2 Tex.Rev.Civ.Stat.Aon. art. 51421.

3. The members of the TYC at the rime this

civil action was brought and ar the time of

trial were Robert W. Kneebone. Louis M.

Henna aod W. Forrest Smith. (Kueebone

whether actual performance mrasures

well enough agatnst theoretiens purpose “

‘0 ake tolerable the i~munety of the

process from the reach of conshtunon— -

al guarantees applicable to adults. .2

- « « There is evidence, im fact, that

there may be grounds for concern ¢

the child receives the worst of both~€

worlds: that he gets nvither the protec- -4

tions acenrded to aduita nor the solici- %

tous care and regenerntive treatment

postulated for children. Kent v United

States, 283 U.S. 541, 555-556, 86 S$.Ct

1045, 1054, 16 L.Ed.2d $4 1966). (Ital-

ics added.)

This civil action concerns both the ad-

judicatory and post-adjudicatory stages

of the juvenile justice system in the

State of Texas. The plaintiffs are mi-

nor children who represent a class con- -

sisting of all juveniles who are present-

ly, have been in the past. or may be in

the future adjudicated delinquent! and

involuntarily committed to the custody

of the Texas Youth Council ‘hereinafter

called the TYC).* Defendants are Dr.

James A. Turman, Executive Director of

the TYC, members of the TYC / appoint-

ed by the Governor of Texas with the

consent of the Senate), and various em-

ployees of the TYC responsible for su-

Pervision of the juveniles committed to

TYC custody?

A. Description of TYC System

The TYC has six training schools,

three for girls and three for boys. The

boys’ schools are: Giddings State Home

and School for Boys (maximum capacity

480 boys); Gatesville State School for

Boys (a complex of seven schools with a

total maximum capacity of 1.560 boys);

and the Mountain View State School

for Boys (maximum capacity of 480).

ae eee Seen ee ee ee ee eee ene ee

amd Tlenna have since been teplacel by [*a-

triwia Arres and Donekt Workman.) Jamew

A. Turman was the faceurive Director of

the Texas Youth Council at the rime this “

ton was institnrad and at the time of trial

(Tle has since been replacedt by Ronall Jaek-

son.)

ee ee.

MORALES v. TURMAN 59

Cite as 3A P Sapp. 63 11874)

The girls’ schools are: Brownwood

State Home and School: for Girls ( maxi-

mum capacity 240-giris); the Crockett

State School for Girls (maximum capaci-

ty 209 girls); and the Gainesville State

School for Girls (maximum capacity 390

girls).* a

are: Valley, Hackberry, Riverside. Ter-

race, Hilltop, Live Oak, and Sycamore.

At the time the trial of this civil action

began, the population of Gatesville

School was 1,149; Mountain View, 361;

Brownwood, 109; Crockett. 126; and

Gainesville, 220.. Im .fiscal year 1972,

sixty percent of the males admitted to

TYC institutions were committed for

sixteen per cent for other reasons. Of

the females admitted to TYC institu-

tions, fifteen per cent were committed

for crimes of stealing, four per cent for

crimes of violence, sixty-eight per cent

for disobedience and immoral conduct,

and thirteen per cent for other reasons.

As of May, 1973, the ethnic composi-

tion of the TYC Central Office was

eighty-four and three-tenths per cent

Anglo, eight and six-tenths per cent

Mexican American, and seven and ore-

tenth per cent Black. All but one of the

Blacks and one of the Mexican Ameri-

cans are parole officers.

Seven of the 254 Texas counties ac-

counted for fifty per cent of the TYC ad-

missions in fiscal 1972. In the same

year, eighty per cent of the admissions

to TYC were boys, and twenty per cent

were girls. The ethnic backgrounds of

the youths incarcerated in the TYC are

as follows: Anglo, forty-three and two-

tenths per cent: Mexican American,

twenty-four and three-tenths per cent;

and Black, thirty-two and four-tenths

percent. The average length of stay of

4 The named schools are ain referral to ax

‘siblings, Gatenville, Mountain View, Krown-

wool, Crorkett amd (Gainenville,

5. Morales y. Turman, 364 F.Supp. 166 (ELD.

Tex.1973) (hereinafter the emergency iuter-

juveniles in various TYC institutions is

as follows:

Median = Lonvest

Crockett 123 mos. 33 mos.

j i 124 mos. 29 moa.

Brownwood 12.0 mos. 21 mos.

Gatesville 10.0 mos. 26 mos.

Mountain View 13.8 mos. 30 mos.

B. Outline of the Opinion

The genesis of this civil action was

hardly dramatic. More than three years

ago, this court granted a prejiminary in-

junction sought by two young attorneys

who were attempting to confer privately

with their clients and communicate with

them by uncensored mail. The extensive

litigation outlined in this memorandum

opinion has been the outgrowth. The

first portion of the opinion relates to

challenges to the jurisdiction of this

court, traces the early history of the

case. and discusses the juvenile’s right

to counsel and access to the courts. The

second section concerns the widespread

abuse of procedural due process for ju-

veniles in the adjudicatory stage, and

includes an agreed judgment entered in

an attempt to correct this abuse. The

final part of the opinion concerns plain-

tiffs’ allegations regarding ervel and

unusual punishment and the so-called

right to treatment. A preliminary in-

junction in regard to some of the mat-

ters discussed in the final portion of

this opinion was entered on August 31,

1973.*

il. ELEVENTH AMENDMENT

The defendants’ contention that this

civil action is barred by the eleventh

on the frivolous; it is discussed here

only because the defendants advance it

with apparent seriousness. They argue,

im essence, that execution of the relief

im relief omler). cited he the Fifth Cienir

in Donakixon ¥. O'Connor, 193 Pal 37. hu

m 2 (Sth Cir, 1974) and by the Xeventh

Ciewuit in Nebom v. Tlerne, 491 Pld =z

(7th Cir, 1974). cert. denial, 417 C3. 976.

94 S.Ct. SIS, 40 La 1146 (1974).

t? ress

ELE PE tm m08 gimme 0

ore "Qe~ a>...

net tat Tenia bie aie te Te

eer =~ is oo EP 2

> eel tn ey

“es

60 383 FEDERAL SUPPLEMENT

requested by the Plaintiffs. the United

States, and the amici wii necessitate

the expenditure of state tunds and thus "herr terms were

constitute. in their words, a “raid on the ture. State Officials, in

Prospective in na-

order to

* Of the state Initially. it is shape their official conduct to the

be more costly than the maintenance of

present conditions in the Texas Youth

Council ‘institutions. Indeed, there is

the subject very recently in Edeiman y

Jordan, (1974) 418 US. 651. 94 S.Ct.

1347, 39 L.Bd.24 662.

{1) The injunction issued in Fr

vided substantia/ monetary penalties

against railroads which did not con-

form to its Provisions. Later cases

from this Court have authorized equi-

table relief which has Probably had

Sreater impact on State treasuries

than did that awarded in Fy parte

Young. In Graham y. Richardson,

403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.

2d 534 (1971), Arizona and Pernsy!-

vania welfare Officials were Prohibit-

Paid to welfare recipients without

Prior hearing. But the fiscal conse-

quences to state treasuries in these

ntiecgenannen

of these void judgments.” Gaither »

Sterrett, 346 F Supp. 1093 .

’ » 1099 (NE.

Ind.), aff'd 409 US. 809. 93 S.Ct. 6g es

L.E4.24 70 +1972) ;

Il. NECESSITY FOR A T

HREE.-

JUDGE Court

During the

this case, the defendan made

first motion _ i 4

three-judge district court

. Pursuant to

US.C. § 208) (1970). The Motion +

denied by an order of July 20, 1973. In

the same ord ’ in i

The Three.

Fifth Cirey

Judge Court Act is, as the

has recently noted,

rased in “deceptively simple lan-

a Sands v. Wainwright. 491 F.2d

alz 7a Cir. 1973):

23 U.S.C. § 2281 (1970). That two of

the essential elements designated by the

and presence of a state officer as party

defendant—are present in this case is

not in controversy. The plaintiffs, the

United States, and the other amici all

contend, however, that the two other re-

quirements are absent from this case:

they argue (1) that they do not chal-

lenge a state enactment of state-wide ap-

plication, and (2) that they do not seek

a ruling that any statute or order is un-

constitutional.

The only state statutes that could con-

ceivably be involved in this litigation

(excluding those statutes consideration

of which was severed by the court’s or-

der prior to trial) are the general “ena-

bling statutes” for the Texas Youth

Council. These statutes, however, are

only very general grants of authority to

the TYC. Moreover, the plaintiffs cer-

tainly have no quarrel with the statutes,

since it is upon the language found

therein that they rely in their argument

that juveniles have a statutory “right to

treatment.” See Tex.Rev.Civ.Stat.Ann.

art. 5143d (1971). (“The purpose of

this Act is to create a Texas Youth

Council . . . to provide a program

of constructive training aimed at reha-

bilitation and reestablishment in society

of children adjudged delinquent

.") It is obvious that plaintiffs

MORALES v. TURMAN

Cite a 18 F Sapp. 3. 18TH:

are not attempting to challenge the con-

stitutionality of those statutes, whether

as written or as applied. since they seek

in this action to compe! the defendants

to comply with the statutory mandate by

actually providing rehabilitative care

and treatment.

The defendants, however, have stren-

uously urged the similarity of the in-

stant case to the case of Baker v. Es-

telle. sub nom. Sands v. Wainwright, 491

F.2d 417 (5th Cir. 1973). In Baker, the

Fifth Circuit remanded for considera-

tion by a three-judge court a civil rights

case brought by a prisoner. The plain-

tiff therein chailenged the constitutioa-

ality of two procedures followed in Tex-

as Department of Corrections institu-

tions—disciplinary procedures (related

to the loss of geez time and commitment

to solitary confinement) and censorship

of attorney-inmate correspondence. The

plaintiff? appellee argued before the

Fifth Cireuit that a three-judge court

was not necessary, because his constitu-

tional challenge was directed to practices

rather than to regulations. That court

disagreed with him, stating that:

No party has contended that Texas

prison officials are acting outside the

scope of their statutory authority in

carrying on these allegedly unconstitu-

tional practices. The “practices”

Regulations of the Texas Department

of Corrections, as applied.

491 F.2d at 428. Of course, as noted

above, the plaintiffs herein do contend

that the defendants are in violation of

their statutory authority. Yet the more

central weakness in the defendants’ ar-

gument, and the distinction between the

present case and Baker, lies in the

ephemeral, mythical, and indeed, almost

non-existent character of the central pol-

icy of the Texas Youth Council. There

are no “Rules and Regulations” that ap-

ply to all of the institutions under the

authority of the TYC, as there were for

the Texas Department of Corrections in

Baker. The court has repeatedly invited

the defendants to point to some body of

pa et ali ot CS — — a te eee

9! BAG 5 ae RR one ae heh pF: sf

62 283 FEDERAL SUPPLEMENT

central regulations that govern the con-

duct of aii of the institutions of the

TYC. The following colloquy took olace

betweer the court and counsel for the

defendants at oral argument of their

motion for a three-judge court:

BY THE COURT

Q Specifically, what regulations of

state-wide application are here in-

volved?

A Now if the court is asking the

additional question to point those out

in the minutes (of the meetings of the

Texas Youth Council]—is that what is

being asked”

QoQ Ya.

A Not able reaily to point out—we

have studied them to some degree

with that in mind. I cannot point out

to the court specificaily the

The only evidence even alluded to by

the state that suggests a central policy

of the Texas Youth Council is the “min-

utes” mentioned by the defendants’

counsel in the above exchange. These

are records of the meetings of the

three-member Board of the Texas Youth

Council. There is apparentiy no stenog-

rapher who makes a verbatim transcript

of the meetings, because the Executive

Director of the TYC testified in his dep-

osition that “any one of a number of

people can take the minutes.” The min-

utes are bound in a volume which is not

codified, indexed by subject, or updated

—it is simply a chronological compen-

dium of summaries of ail TYC meetings

since 1949 or before. Dr. Turman testi-

fied that for a superintendent of an in-

stitution to have an adequate knowledge

of TYC central policy, it would be neces- -

sary that he read all of the minutes as

far back as 1949, and be familiar as well

with “what special directives apply and

what opinions of the Attorney General

apply and what orders from the legisia-

tive budget office, the Board of Control.

the Legislative Audit Committee, and

the State Auditor apply.” The “min-

utes” are not circulated to the treatment

staff generaily—the teachers, correction-

al officers, houseparents, and casework-

ers—hut sent only to the superintendent

and business manager of each institu-

tion.

The court has carefully inspected the

compendium of the TYC minutes from

1957 to 1972 and has found nothing -

there but the most genera! discussion of

issues. Much of the recorded discussion

concerns budget planning, building and

construction projects, public relations,

and other matters only tenuously related

to the task of rehabilitating individual

children. It is thus wholly impossible to —-

construe the minutes as “rules and regu-

lations.” Compare Dorado v. Kerr, 454

F.2d 392 (9th Cir. 1972) with Nieves v.

Oswaid. 477 F.2d 1109 (2d Cir. 1973).

In the words of the Supreme Court,

these fleeting notations do not “partake

of the quality and dignity of those state

statutes or policies that three-judge

courts were designed to consider.”

Board of Regents v. New Left Education

Project, 304 U.S. 541, 545, 92 S.Ct. 652,

655, 30 L.Ed.2d 697 (1972).

Indeed, one of the bases of the plain-

tiffs’ cnallenge to the conditions in TYC

institutions is the very evident absence

of any central leadership. direction or

planning for the Youth Council. Praeti-

cally every decision related to employ-

ment, treatment, education. discipline.

institutional life, and allocation of re

sources in an institution is left to the

superintendent of that institution (who

may, in turn, delegate the decision, in-

tentionally or by default, to an even low-

er-echelon staff member). The defend-

ants, in fact, stipulated that:

Policies of the TYC are set forth in

the minutes of council meetings, spe-

cial policy directives and the Council's

publication “Administrative Organiza-

tion of the Texas Youth Council,” At-

torney General's Opinions: General

Appropriations bills and riders there-

to; special directives received from

the State Comptroller, the State Audi-

tor, the Texas Education Agency, and

the Staite Board of Control have the

force ana effect of policy directives

received directly from the TYC. Spe

cifie policy directives may be commu-

oe a

A Bintin Bet SB Ae 4 ae PAB au

te on 28 F teen. ete

ated to staff either by memoran-

mor oy word of mouth.

. ,rerinrendents of Training

-wte in the TYC system exercise

wide discretion in formulating the

arograms, services and ground rules

. help respective schools. The pro-

cram may vary with respect to inspec-

-sn of mail, furloughs, visiting, disci-

--nary policies, and in the amount

ad type of off-campus freedom per-

<itted for students. Superintendents,

Q So that you have never for ex-

ampie. sent any policy directives to

the superintendent of Mountain View

as to the visitation length of a child

in STC?

A Not that I recall.

A study of the factual portion of this

opinion will reveal. as one might expect

after reading the above, vast differences

between the various institutions run by

the TYC.

Some of the institutions—

homes for dependent ard negiected chil-

dren—were not even the subject of this

lawsuit. Others—jfpr instance, the

Brownwood State Home and Schooi for

Texas Youth Council and TYC central

“policy” as embodied in the minutes of

the TYC Beard meetings. \Vith respect

to the statutory provisions, the piain-

tiffs do not challenge, but seek to invoke

them, for they claim that the actions of

which they complain are inconsistent

with the statute. TYC “policy.” as em-

bodied in the minutes, is close to undis-

coverable and does not constitute a co-

herent bedy of regulations that are ap-

plied throughout the system: such rules

and regulations as exist are local to

single institutions or even subdivisions

thereof. For all of these reasons, the

court reaffirms its eeriier ruling that a

three-judge court, pursuant to 28 U.S.C.

—_ a ae 2a ase -~

m ~ . ove ; .

- ra ~ “tS Am 4 “$s ‘ > ov Ye Se

~v ~ yen wee rm “ae L> . ° "oe f. * ae"'e

- ‘ 43-2 Be Ya. > Se .

PH 2 sd ot. "i, me

- sez = ned SE

~ SS ~ 5 =? Ser - ‘

64 383 FEDERAL SUPPLEMENT “t

MORALES v. TURMAN 63 constitute the enabiing statutes of the Green not only was aware of two appli- -«.

cations for the writ of nabeas corpus -

one on vehail of Brown: filed bv Bereu <- “pe

in El Paso. but also knew "nat the news

paper and television media had initiated 4

certain investigations into the activi

of TYC. When he learned of the d

ery order issued in the Brown

Green contacted Dr. James A. Turman, *¢

Executive Director of TYC, so that, im -g~

Green's words, “the Youth Council could

be on the lookout for Mr. Bercu.” “?

On January 27. 1971, Bercu and Wil-

liam Hoffman, Jr., Eaq.. an attorney as- 3

sociated with the Youth Law Center of »

San Francisco, California, arrived at the -<

Gainesville State School for Girls, for RE

the purpose of interviewing the six girls Pf

z As an example of the quality of guid- Giri have been treated by the plain- § 2281, is neither the necessary nor the named in the discovery order. When no-

i ; vce emanating from the Tre Central tiffs, the United States. and the amici, appropriate forum for the consideration tified of Bereu's and Hoffman's eppear-

; e i fice. —— testified in his depo 4. more a facilities, _ a4 > and determination of this case. ance, Green conversed by telephone with

i sition as : istence of which demonstrat nat | Turman, Bercu, and Thomas Riddle, the i

’ 4 Q Returniag for a moment to the deficiencies of the remaining institu- IV. RIGHT TO COUNSEL AND AC- school superintendent. In the course of }

m Security Treatment Cottage at Moun- tions need not continue unabated. CESS TO THE COURTS

tn + tne

tain View, Dr. Turman, are you aware

et what the policy in the Special

Treatment Cottage there is in regard

to family visitation?

A Yes.

A It depends on a number of

things, and this would be determined

by the superintendent at the time of

the visit.

Q What kinds of factors would he

take into consideration ?

A Whatever factors he considered

important at that time.

Q Are you aware of any factors

that he would consider to be impor-

tant?

A Well, there are many.

Q Can you give me an example of

factors that a superintendent should

take into consideration in determining

how long a boy should see his family

when he is in STC?

A Well, I'd leave that up to his

judgment.

Q That's up to his discretion en-

tirely ?

A Yes.

To the extent that there are written

policies in the TYC institutions, such as

manuals for employees or students. they

are written for one institution only and

are distributed to the staff and inmates

of that institution alone. There are of-

ten major differences between the rules

of the various institutions. See Board

of Regents v. New Left Education Proj-

ect, supra. Furthermore, the rules that

govern institutional life in TYC institu-

tions may vary from dormitory to dor-

mitory or cottage to cottage within the

same institution. Thus, some “dorm

men” at Gatesville allow boys to smoke,

others never allow smoking, and still

others permit it or not as their whims

dictate. Such illustrations could be list-

ed at length. That all of these practices

may be consistent with some nebulous

policy certainly does not imply that a

challenge to the practices is necessarily

a challenge to the policy. In fact, al-

most any action, however arbitrary, by

an employee short of physical abuse of a

child is probably consistent with TYC

“policy,” because that “policy” is so

vague as to be non-existent.

(2] In summary, the only enact-

ments of state-wide application that the

defendants suggest are challenged herein

eS EEE

In January 1971, Steven Bercu, Esq.

an attorney associated with the E! Paso

Legal Assistance Society in E! Paso.

Texas, was retained to represent Johnny

W. Brown, a minor child then incarcer-

ated in one of the institutions under the

jurisdiction of the Texas Youth Council.

In connection with a habeas corpus peti-

tion filed on behalf of Brown in the Ju-

venile Court of E! Paso County, Bercu

obtained a discovery order permitting

him to interview a number of other TYC

inmates who had been committed by or-

der of the juvenile court. Bercu sought

the discovery order, which permitted

him “to interview and depose and take

affidavits from” eighteen inmates of the

TYC, after learning that Brown and

other minor children might have been

committed to the TYC by the juvenile

court without a court hearing or any

other requisites of due process.

Roland Daniei Green, III, Esq., was an

Assistant Attorney General for the

State of Texas between September 1,

1967, and November 16, 1972. One of

his duties was to give legal advice to the

TYC and its employees and to represent

that agency in court. By January 1971,

the conversations, Green attempted to <=

persuade Bercu to interview the six girls x

in the presence of Riddle. Berceu A

refused this condition and insisted that ~~

he was entitled to interview the girls @

privately. Ultimately, Green, who ”.

claims that he knew of no attorney<li- —-

ent relationship between Bercu and the

children, advised Turman and Riddle

that it was within their discretion to re-

quire a supervisor's presence during any

interviews.

Each of the six minors Bercu and -

Hoffman interviewed stated that she

had received no hearing whatever before

the Juvenile Court of El Paso County in

connection with her adjudication and

commitment to the TYC. The attorneys

thereupon informed the giris that feder-

al constitutional requirements, estab-

lished by the United States Supreme

Court, provide certain safeguards for ju-

venile court proceedings, and that mi-

nors incarcerated in disregard of these

Provisions might well be successfu! in

seeking relief by way of habeas corpus.

After receipt of this advice. the six girls

requested legal representation bv Bercu

and Hoffman. As a result of these in-

terviews, which continued through Janu-

9.4 * %

Mera ECR roy |

eer e oye

Green by telephone that Bercu was

again objecting to the presence of @ su-

pervisor during his interviews with the

girls. Green once more attempted to

persuade Bercu to accept this procedure.

maintaining that TYC policy required

the presence of a supervisor during the

interviews. (Following the first hear-

ing in this court, however, Green admit-

ted that his interpretation of the policy

was erroneous.)

Green then discussed the situation

with Turman, who upheld Riddle’s po

sition® Turman detailed his purported

reasons for requiring the presence of a

& Turmen, who has held his posirion as Ex-

wutive Director of the TYC since Septem:

ber 1, 1007, describes his rexponsibility a

that of eurrying out all general and specific

statutes relating to the aiministrativa of the

TYC. including the care, treatment, cince-

ten, training, and re-establishment in soriety

of ali children committe! to the TYC by the

cmurte of the State of Texas. He further

389 F Supp —S

Ss. : 7h, i,

oe 6. «at. 2s

- . +e << . > e

SON eh oR ge 4

» Ss .» kane” A at —. i 3

. ae e = 3? ~S° Va st

a aS ¢ tei -

z do

\ :

- £ is a ~ :'=

MORALES v. TURMAN 65

Clee as 8 F Sapp. 18TH

supervisor during the interview waich

were as follows: concern about solicita-

tion of clients. concern that the chil-

dren's families xnew of no reiatioaship

between their children and an attorney,

children’s right to confer privately =

from impeding in any 4

counsel and fart :

Governor to direct the activities of the Trc,

and the anime directives received from the

. the State Comptroiier, State

Agditor, and the Attorney Generel through

hin optaioas.

66 383 FEDERAL SUPPLEMENT

At the subsequent hearings, it became

evident that TYC policy regarding in-

mate interviews with attornevs was on-

clear. Riddle testified at one point that

he understood TYC policy to require a

representative of the TYC to be present

during— an inmate-attorney interview:

but at another point, under questioning

from the court, he admitted that he was

unsure of TYC policy.’

Turman, on the other hand. testified

that the Attorney General of the State

of Texas determined whether or not an

attorney-client relationship existed be-

tween TYC inmates and attorneys, and

that if Turman were in doubt he would

simply contact the Attorney General. [t

appears that Green did teil Turman that

he thought that solicitation by Bercu

and Hoffman had occurred. Yet Tur-

man made no determination on or before

February 10, 1971, that the attorney-

client agreements between Bercu and the

children were invalid, nor did Turman

seek to determine whether or not Bercu

and Hoffman were members of the State

Bar of Texas on or before that date.

Both Turman and Riddle admitted

that TYC policy included the censorship

of both incoming and outgoing mail to

all persons. including attorneys and

judges. Although Riddle stated that he

did not ordinarily make copies of letters

sent to inmates, he did make copies of

two letters sent to plaintiffs’ attorneys

by two giris, a Miss Jorgenson and a

7. THE COURT: My question to rou ix.

what hes been the policy of the Yourh

Council with reference to interviews be

wren y ing that ther are

legal attorneys—aeod the inmates? \re

perintendent, I don't believe we have hal

any. We have had bench warrants when

the chikiren went home.

THE COURT: But ne one has come to

the institution that representei—?

THE WITNESS: Miare I hove been o-

pert L before I wan <uperintendent

I think there wax one, but sinve I have

been superintendent I don't remember any

attorneys that came to my knowleige aéw.

THE COURT: Well, with refereore to 9. Morales +. Turman, 3 P.xupp. 677.

the one attorney that came, chat ha! been

o. : a tend x Rao} x ee

TT ei ORR.

Miss Arnold. Riddle testified that he

was not sure why he needed copies of ..

these two letters: * but ne stated thats

censorship of the incoming mail was -%

necessary to prevent correspondence re- “*

lating to escape plans and to prevent

passage of drugs. Possible communica~

tion regarding escape plans was also

given as a justification for censorship of

outgoing mail.

After a hearing on the motion for

preliminary injunction, an order was en-

tered by this court which found that

each of the twelve named plaintiffs had

entered into a valid attorney-client reia-

tionship with Bereu and Hoffman, and

which enjoined the TYC and their

agents from (1) interfering with the

rights of the children to confer private-

ly with counsel and (2) from impeding

in any manner their correspondence

through the mail with their attorneys.

In response to a subsequent motion for

clarification of this order, the court

slightly modified and supplemented the

original order, so as to enjoin the agents

of TYC from any harassment or intimi-

dation of the persons seeking to exercise

their rights under this order.

The preliminary injunction regarding

communication of TYC inmates with

their attorneys was extended to a per-

manent injunction regarding mail cen-

sorship generally in the emergency in-

terim relief order entered in the third

phase of this action. In the conclusions

there, did he talk privately with the girl.

or was the interview condarted—?

THE WITNESS: Thie I would have no

knowleige of. | suppers he did, I don't

know. I jaost knew that he had « relative

with the girt

& “Well. perwonalic the rencon [ thought it

war copied, that we wantel!l a copy, becnuee

we dida’t know whether or not there had

been an attorney-client relationship estab

linked. Therefore. if rou were not on the

approve! let, end ron were not their after

ney, well, then this pure me in a precarious

situation that [ newled to know what the

correxpemdence was, and [ aerded a copy of

it. aml thix was the advice | receivel.”

0 (F.D.Tex.1971).

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MORALES v. TURMAN

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ite as 28 FF Supp. 53 1 19TH)

ef law accompanying that order, it was

stated that:

Aithough this limitation on permis-

sible censorship of the mail of adult

prisoners remains uncertain, it is

clear that any restrictions upon the

important first amendment freedom

of communication must bear, at the

very least, a rational relationship to

the advancement of a legitimate state

interest. . . . The defendants

have advanced no legitimate state in-

terest, much less a compelling interest,

that is served by the reading or cen-

soring of incoming or outgoing mail,

or by limitation of the persons with

whom inmates may correspoad. A le-

gitimate state interest in preventing

the flow of contraband into Texas

Youth Council institutions justifies

only the least restrictive practices ade-

quate to achieve that interest—in this

case, the opening of incoming mail in

the presence of the inmate to whom it

is addressed for the sole purpose of

examining it for contraband.

464 F.Supp. 166, 174 (E.D.Tex.1973).

Approximately eight months after this

court’s decision, the Supreme Court de-

cided Procunier v. Martinez, 414 U.S.

973, 94 S.Ct. 264, 38 LEd2d 216

(1974). Martinez concerned, inter alia,

the question of censorship of adult pris-

oners’ mail. Although confronted with

arguments addressed to the prisoners’

first amendment rights regarding mail

communication, the Court chose to de-

cide the case on what it concluded was

the narrower issue of the non-prisoner’s

first amendment rights to correspond

with the prisoner. Under this analysis,

it was concluded that censorship of adult

prisoner mail is justified if two criteria

are satisfied. First, the regulation or

practice in question must further an im-

portant or substantial governmental in-

terest unrelated to the suppression of

expression. Secondly, the limitation of

first amendment freedom must be no

freater than is necessary or essential to

the protection of the particular govern-

mental interest involved. The court

identified the governmental interests at

stake in the adult prison area as the

preservation of internal order and disci-

pline, maintenance of institutional secu-

rity against escape or unauthorized en-

try. and the rehabilitation of the prison-

ers.

After a reconsideration of the evi-

dence in the instant action in the light

of the standards advanced by the Su-

preme Court for deciding whether spe-

cifie regulations or practices constitute

an impermissible restraint on the first

(3] With respect to plaintiffs’ claim

regarding the right of inmates to confer

privately with counsel, it should be ob-

served that, although the right to coun-

sel is fundamental, the state is not with-

out some rights to make reasonable rules

and regulations regarding access of in-

mates to attorneys. One influential

court has stated: “The state bes a legit-

imate interest in protecting juveniles

under detention from visits by attorneys

(or persons asserting themselves to be

such) whom the juveniles have ex-

pressed no desire to see and who have

not established authority to speak for

them.” Negron v. Wallace, 436 F.2d

1139, 1144 (@nd Cir. 1971) (Friendly,

J.). A review of the record before this

court at this time is not persuasive that

the views stated by certain TYC and At-

torney General personnel in the episode

complained of by the plaintiffs represent

« policy promulgated by the TYC

Thus, any further relief regarding «

eee

TYC “policy” must necessarily await «

better record.

[4,57 Since the defendants are now

not without some guidelines in this area,

see Negron v. Wallace, supra at 1144—-

or her adjudication as a delinquent chibi.

(2) On various dates between Jauuary 1.

1967. and March DW. 1971, 2 Texas juvenile

WEN eds a So STK

383 FEDERAL SUPPLEMENT

Turman and Green under 42 US.C.A.

Sec. 1933. With respect to the claim

against Green. it is concluded that

Green. as the Assistant Attorney Gener-

al charged with rendering legal advice to

members and employees of the Texas

Youth Council, was acting within the

scope of his authority at ail times when

he advised TYC personnel, and that he

therefore is immune from suit under

Sec. 1983 as a “quasi-judicial officer.”

E. g.. Guerrero v. Barlow, 494 F.2d 1190

(Sth Cir. 1974). With respect to the

claim against Turman, this court con-

cludes that, since it is undenied that

Turman was at ail times acting pursu-

ant to the advice of Green. Turman

should not be held liable.

Vv. PROCEDURAL DUE

PROCESS

Following extensive discovery efforts

and jengthy negotiations regarding alle

gationa of the denial of procedural due

process to juveniles in the adjudicatory

stage, the parties were able to agree to

certain findings of fact, which are set

out in a footnote."*

On December 27, 1972, this court en-

tered an agreed order. which is also

shown in a footnote.'*

« jodge or in court with regard to bis or her

(3) Furthermore, during this same perio.

quent).

(5) fn another Texas comntr. the judges of

the juvenile court adjudicated the delinquen-

12 Mee note 12 on page ®.

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MORALES v. TURMAN 69

Suse 1 ontinnet

a 4 3 miner chikirea between January

+t cof Tame 071; duetew ‘het time

nat wt STH Briawe CHARER SOte THpterenins

- wae io comusction with aljadications.

& Dering Jaty aad Auger. 71. thts

anrt ~eat questioansites to the miner «hil

riwonaices, SOS had hearings in juvenile

warts but had not been represenred by at-

rernevs, while an adblitional D0 hat receive!

eeither lecal representation cer hearing: ia

«qtent inaearceration in TYC ncirorions.

1%) On October 31, 19T2. this conrt eu-

reral an order, by agreement of the parties.

whieh fuand thac “im the juvenile justice

-vstom of the Scate of Texas there had beea

igniticanrly regular and widespread lack of

counsel representing minor chikiren at juve

vite court adjudicators ant «dispositional

hearings, (and) that this practice hax com-

tinuet theough April, 1972 =... *

() Ta December, 19T2. upea petirion sad

mittel by attorneys for plaintiffs in this ac-

tiem, the Court of Civil Appesix. Thint Sa-

deen were infringe! as «result

practies and beliefs.

12 Nertaratery Judament

1. The juvenite justice system of the State

ot Texas hax been characterianl by a wile

-yreel failure of many juvertil«e courts fo

vrovule constitutionally require! sive proress

preretiens fur the minor cikiren whe are

+ te as Bt F depp. WS 10TH

have adjadicered the delinqueery of miner

childewn and oolere! them “inrarerate! of

place! on peubation withewt ever having af-

tormiet ‘ese obildree 4 ‘earings ut Court of

any appearame before «1 juvenile conrt

jwupe, Such 4 proactive ib ip violation aad

derogation of rights gueramterd by the Cva-

stitution, and <pectfieal!~ due process rights

to the Uaeired States tonstitation. of thave

ments. javenile courts of the State of Texas

must provile to exch mivor child whe is

made subject w the pr fal ih

anv

(4) thet be of she bas a right to have

at .

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70 383 FEDERAL SUPPLEMENT

VI. CRUEL AND UNUSUAL PUN-

ISHMENT AND THE RIGHT TO

TREATMENT

With respect to the piaintitfs’ conten-

tions concerning cruei and unusual pun-

ishment, it is clear that the eighth

amendment’s proscription applies to the

state as weil as to the federal govern-

ment. Robinson v. California, 370 U.S.

660, 82 S.Ct. 1417. 8 LEd2d 758

(1962). Moreover. the protection ap-

plies to persons who have not been con-

vieted of crimes, such as juveniles invol-

untarily committed to the state's institu-

tions. E. g. Lollis v. New York State

Department of Social Services, %22 F.

Supp. 473 (S.D.N.Y.1970).

or ber. A “critical stage” in the proreel-

tug includes bet is not limite? to any jure

nile court heering, whether ir be for the

parpone of detention. aljndiration of ‘lixtom-

tion. To meet constitutional and «rare «rar-

guarding any waiver of the right to on «t-

torney. Every minor chill who dore not

have the financial resources fo employ conn-

1. This court har ref et from Gewi

ae injunction to enforre the provixions

the Declaratory Judgmeat ax set forth stove

in the belief that eae the constitutional de

ficiencies of Texas juvenile court practices

are made ar i a steye wil! be

withia their jariediction. With over

2 juvenile court jurialictious in Texas. an!

with a longstanding practice of not proveting

counsel to minor chikiren in juvenile court

proceedings, this court i well aware that

the obligation of meeting the constitutional

requirements set forth abore will ne ewarare

the -reation of acklitieaal approaches fo the

problem of providing «ach legal repre-curte-

tien. The court therefore direet« that de

fendants prepare. within sixty (9) dare

a pen for the prewi-

(3) The Court of Appeals for the

Fitth Cireuit has recentiy heid that a

person involuntarily committed to a

state mental hospital in a civil proered-—

ing has the constitutional right to re-

ceive such individual treatment as will -

give him a reasonable opportunity to bez:

cured or to improve his mental condi-<

tion. In this decision, the court articu-~.

lated the two-part theory uaderlying the

due process guarantee of a right to

treatment under the fourteenth amend-

ment. Donaldson v. O'Connur, 493 F 2d

507 ‘5th Cir. 1974). The first part of

this theory hulds that any non-trivial

governmental abridgement of liberty

must be justified in terms of some per-

within the jurtelietion of of have bee iacer- .

corare! by onter of ane juvenile court in tue

State of Texas.

Seoh plan must inetode the (ullewtng

a. Thee the due preeese pentertions. a

set forth in Dorngreawh I(9) theongh 141) of

the Le ieratory Jul t bo herein,

are vroviede! by each juvenile court for every

miner chilkt coming withia its jnrtedietive ;

hb. That atrorness are actually prowicleel by

earh juvenile court for every minor chill at

all onrieal stages of ever) delivquency adju-

lication :

2. Deefenmiants «hall report to this coert.

with -omiex to afforners for plainriffa every

sixty (9) dare from the dare hereof regect-

ing the cteation and impiementarion of this

ian. Dexvinning one humired rwenty (120)

dare from the date bereof, <aid report «hall

contain the name of every minor child atja-

dieatet delinquent in derogation of the -on-

stitutions! aml «tatutory rights set forth

herein and the name of the jnvenile co rt

which aljedicetreld the delinguencr of ouch

matied chill,

3. Thix court shall retain juriwlicrion wer

this enuse of action for all purmme If the

feports as enbmitted to plaintiffx’ artorners

aml to this court reveal, of if plaintiff«e show

by other competent evidence, at the cad of

one wired eights (1M) dave from the

date bereot that the provixions of the De

elaraters Jmigment ax abewe «er forth are

at being fulle compliel with. thir court

shall enter other and further relied ax thix

ewart derins appropriate

4. Leefoadants, br their counsel, the Attor

nev Cleweral of the Seate of Texax, shall no-

thy every Teans jmenile court joige of

the contents of this (lnder within <iary (19%)

claws from the date herent

oo . -

LLL LL LL LALLA AE

Re a, has ade

a wi

eee BRP) 2s Dd Hem

missible governmental goal. The gov-

urnmental goais or interests typicaily ad-

anced are danger to seif, danger to oth-

“a and the need for treatment. care.

custody, oF supervision. In the instant

ase the state is charged with a statuto-

° duty to provide “2 program of con-

tructive training aimed at rehabilita-

tion and reestablishment in society of

children adjudged to be delinquent.

Tex.Rev.Civ.Stat.Ann. art. $143d (1971).

This basis for commitment—to rehabili-

due process clause.

Under the second part of the two-part

due process theory, the government must

afford a quid pro quo to warrant the

confinement cf citizens in circumstances

in which the conventional limitations of

the criminal process are inapplicable.

The three central limitations on the gov-

ernment’s power to detain are: (1) that

detention be retribution for @ specific

must be extended by the government to

justify confinement. As previously not-

el, the quid pro quo applicable here, by

virtue of state statute, is rehabilitative

treatment.

In tracing the support for the second

part of the theory in Donaldson, the

Fifth Cireuit noted five groups of rele-

vant cases. Among the fifth group of

cases (each of which ordered injunctive

and declaratory relief requiring that ad-

equate treatment be provided in state-

run facilities) were cases concerning ju-

venile delinquents. The decisions cited

by the Fifth Cireuit in the juvenile de-

linquency area were: Nelson v. Heyne,

191 F.2d 352 (7th Cir. 1974), aff'g 355

MORALES +. TURMAN

Core an Bet F Sayep. 35 (19TH)

F.Supp. 451 (N.D.[nd.1972) cert. denied

ar U3. 976. 94 S.Ct. 3183, 41 L-Ed2d

1148 (1974): Inmates of Bovs’ Training

Schoot v. Affleck. 346 F.Supp. 1L54 1D.

R.L.1972): and this court's earlier dees-

sion granting emergency interim relief

in the instant case, 364 F Supp. 154 ‘ E.

D.Tex.1973). Donaldson v. O'Connor,

supra, 49° F.2d at 534 n. 32 See also

Martarella v. Kelley, 349 F.Supp. 575.

(S.D.N.Y.1972), enforced D.C. 359 F.

Supp. 478 (non-delinquent juveniles held

as being “persons in need of supervi-

sion”).

Moreover, although the Supreme

Court has never directly faced the ques-

tion of whether a juvenile involuntarily

confined in a state institution has a con-

stitutional right to treatment, the Court

has spoken to the underlying theory of

ment. In the landmark decision In re

Gault, 387 U.S. 1, 22, 87 S.Ct. 1428,

1441, 18 LEd.2d 527 n. 30 (1967), the

Court declared that:

While we are concerned only with

procedure before the juvenile court in

this case, it should be noted that to

the extent that the special procedures

for juveniles are thought to be justi-

fied by the special consideration and

treatment afforded them, there is rea-

son to doubt that juveniles always re-

ceive the benefits of such a quid pro

a 2s « In fact, some courts

have recently indicated that appropri-

ate treatment is essential to the valid-

ity of juvenile custody, and therefore

that a juvenile may challenge the va-

lidity of his custody on the ground

that he is not in fact receiving any

special treatment.

Finally, plaintiffs claim a right to

treatment under state statute as well as

the federal constitution, and the state

concedes such a statutory right.* The

basis for this statutory right to treat-

ment is found in Tex.Rev.Civ.Stat.Ann.

art. 5143d et seq. Jurisdiction of the

state claims in this court is based on its

pendent jurisdiction. since such claims

13. See defendants’ Post-Trial Brief and Memorandam of Law, ot 64-67.

"7 oR ok hee

PEED se

72 383 FEDERAL SUPPLEMENT

and the federal claims “derive from a

common nucieus of operative fact.”

United Mine Workers +. Gidos. 344 U.S.

715, 725, 86 S.Ct. 1130, 1138. 16 L.Ed.2¢

218 (1966). For a discussion of this

“promise” of treatment. see Smith v.

San Antonio 1969).

Vil. CONDITIONS AT TY

INSTITUTIONS

A. Introduction

The findings of fact in this memoran-

dum opinion are based upon evidence

presented at the time of trial. The

findings employ the present tense. for

any changes that may have come about

since the trial of the case do not affect

the record upon which the court is solely

entitled to rely. The only exception to

this stylistic choice of verbs occurs

when the court describes a practice that

was prohibited by the court's Interim

Emergency Order of August 31, 1973;

such practices are described in the past

tense, compliance with the court’s order

being assumed.

{9] The defendants have moved to

reopen the record in this case for the

presentation of further evidence relative

to the changes that have occurred in the

TYC program since the time of trial.

The trial of this action took six weeks:

the transcription of the record consumed

another two months, and the court was

not in possession of ail of the briefs un-

til March of 1974. It has acted as expe-

ditiously as possible, since the subject

matter of the case is of the utmost im-

portance. A reopening would entail fur-

ther delays, with the need for more dis-

covery, trial, and briefing. The defend-

ants had a great deal of time to prepare

for this case; they were on notice from

a very early date of the practices the

plaintiffs were protesting and had, in

the opinion of the court, ample opportu-

nity to alter them prior to trial, if they

had been so inclined. Moreover, the fact

that conditions have changed, if it is a

fact, does not alter the plaintiffs’ right

to relief from the practices of which

they compiain. for the defendants would

otherwise be (ree to return to their oid

Dractices once the threat of litigation .

was averted. See United States v. W. T.

Grant Company, 345 U.S. 629. 632, 73

S.Ct. 894, 97 L.Ed. 1303 (1963): Jen

xing v. United Gas Corp... 400 FP 2d 23.

33 (3th Cir. 1968); Lankford v. Gel-

ston, 364 F.2d 197, 203 ‘4th Cir. 1966).

In the exercise of the court's discretion,

the defendants’ motion to reopen the

record for the receipt of more evidence

is demed.

One fruitful source of evidence con-

cerning conditions at the TYC institu-

tions was the testimony of four individ-

uals designated hy the court to be “par- ~

ticipant observers.” These trained ex-

perts were permitted, by order of the

court, see 59 F.R.D. 157 ( E.D.Tex.1972),

to enter the premises of the various in-

stitutions, inspect the physical facilities,

attend various functions, participate in

daily activities, and speak to both staff

and inmates. Their perceptions, so

much sharper than those of an un-

trained visitor, were of invaluable as-

sistance to the court, and form the basis

for many of the court's findings.

B. Physical Brutality and Other

Forms of Abuse

1. Maximum Security Confinement:

Mountain View State School for

Boys

The Mountain View State School for

Boys is the maximum security facility

operated by the TYC. It is surrounded

by two fences, both of which are topped

with barbed wire. Prior to entry of

this court’s emergency interim relief or-

der, a juvenile could be initially assigned

to Mountain View on the basis that he

had been adjudicated delinquent for a

serious offense or he could be trans-

ferred there from one of the other TYC

institutions for boys, usually Gatesville.

as a result of a decision that his conduct

was unsatisfactory. In either case, the

decision was left largely to the discre-

tion of the staff. Thus, there were at

least some boys incarcerated at Moun-

tain View whoge delinquent behavior

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