# Petition — Morales v. Turman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1651%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 322 ## 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 ; f “— e , Ps > - . r 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 25 MTM v. Baxley, 420 U.S. 799 (1975) 18 26 26 - S111 27 a Sst/ 28 - 4//4/47/ 29 ~ Stt/ 30 - 444/74 31 4/4/44 32 32 | YOUTH LAW CENTER YOUTH LAW CENTER i #09 MISSION 6T.. ano FL 609 WISEION BT.. IND FL j | SAN FRANCISCO 94108 ” GAM FRANCIECO #84108 : (410 408.6420 | 1 4°) 4068.¢420 ! ’ : oeoqanrowss* 86 Pn = 10 32 YOUTH LAW CENTER $23 MISSION ST.. IND FL Sam FRANCISCO 84108 (418 409-0420 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 (.o- Kia~ £971) 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 j= an 3K at Burger, The State of the Federal Judiciary -- 1972, 58 A.B.A.J. 1049, 1053 (1972) // 4/ ii PAGE 21 7,17,18 17 20 20,21 Passim t 14 7,8 gt a noe + o eon of wf fe WwW HO wwwe Heke AheekhhhlkaktkOUlektkmOCOUneklllCUeklllOellklellk eel lll le yn - ©S oe ett HOH FF WPM FCO HBO woes AwHeewne = SoS YOUTH LAW CENTER 099 weawON ST NOD BAN FRANCISCO 94008 (1 493 6470 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) iii 17 co en aoahwn = 10 Sf&sSsSBRBReRes sg. UT LAW CENTER mentOn 67. nD FL + PRAMECTECO 84108 (41@ 408-6400 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1976 ALICIA MORALES, et al., Petitioners, v. 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 oeneegew?* 40 wn - ~~ = — + + ot 8 ~ oa est WwW Ke O&O ~ wo 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. // // “~“— —« - Seenrenwkwn = s & SBE Ss SRSRBRR 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 2/ 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. oe nr ows? wn ~ ~~ se == + © + S&S S&S eB RESEKR ES RRoenwek B 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 -4- o en aoanhwn » ~—-—_n ee. 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 7/ 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 do with = yee por long am pe ar of potitieners ae > , @arlier facets of been resolved by consent decree or ounmacy A. .. 3 having 4/ As will be discussed hereaf ter, shortly before Sisteles se nO Summnenes the appointnent of a Ame we 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, “any er 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. f 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 $2 || court of appeals in the present case, petition YOUTH LAW CENTER 99 “ESION ST. anD mL -8- OAM FRANCISCO 84108 (41@ 408.6420 YOUTH LAW CENTER 603 WISSION ST... BND FL Jeo en - = SAN FRANCISCO 84108 o @onreaw#ss?* wore ~~ ~~ += - oe > wns - oOo 15 32 YOUTH LAW CENTER Os MISSION GT.. IHD FL. Sam FRANCISCO B4108 41 408.6420 (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. -9- oo No ow *®} © HH ~~ —- ne §- SO 32 YOUTH LAW CENTER 003 “1SSION GT.. aHO FL. SAM FRANCISCO Bales (410 499.4420 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. -10- _— i. ~ oo vn aowss** @ &» = ~~ — lh ao wat wn re © 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. oo Nv Go wow +} WwW &H & —-— = - wo Re - OS 15 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 ~ 10 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. er so @oneegwt* wn —- —- Se = ©& 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- oo vn aogws* won Sess emeeseseses wo vaw# *# w nv - © 8 & 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 ll 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. ee ees se oo nog? an me -— = = — + ot oe o 3S vu ow f+} wnhR - oO 8 3 ' 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- 15 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) -17- a a. 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- oo nag st} wn _ ~ ee —s ry - wr - OS 15 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 -20- o on aoa s+} wN -— - — — Be > wor oO 15 32 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- ss o @onoenas? wn = ~~ = nclUc ehUhSO 32 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 By 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 ue ! it i wP sé : i: i li & o Fr 3 8 rt 5 Lyte fit i 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 i i { F i! ft ' i i E | | 7 ihe fl tit i Hl aH EE I i! tei HH ‘i reateeenidel | | 1 | ! i | ! I : | | i fl | f G i | é 1, § 3, Sl48d; V.T.CA, Pamily Code $4 SLOL et seq. 51.03(a). 2 i i Hy uit af : | f 1 A Ff court statute; form is not to triumph over i whether constitu- i 3: D 8 & . 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 THIDHAT EHH LOI Ea Hii Bi ert Ban ate 7 HEALS Te apn : ae TIE HIM HH ILA ET eH g ULM ailasainiieel helical dita tan ei a bie pete Hue tend ba . t i! say Fl *sgins,5es AH | Tite ee aL AH RH i saqisdaiticy Fatih iogia Ss 1113 2 Hf i HATH BE TVABHT he Hill Se cann.s a a Ell: 4} atid RHE Hiei ie Ht fist 24$* he : inti patil Hi! Hf Hie i fjet il alt Hie ni I ! Hite rf {hh lel Hat tl itil + a a it alates alli lik weit a / Hatt ail | tse 0O~ fs te Vg dp aH at shih) | yesh Line i ae er brysittinetly | H ie fii ui HBT rt Hitt bls it ne i i i Hate HARTA Mica fli atat Ht eae - - S35 FEDERAL REPORTER, 2d SERIES 870 ee a pg tye aa F sits 275333 abies pei] if len Heb eles Hs tal in| iH RHE ei tiHlt, SH alee: MHI SH ini eet liulii nH bes 2 22259 g*g3 oe S322 ie 3° seez yy aT TE HELE Hie eb eles ( apisiedtiad gill: Gules Hla bs PLds beady ef eee HH oH Hy ath 3d FHT ‘emcee Hin ia 5 | i548 + OUT HI HU Fe eer & See Vernon's Tex Civ. StatAnn, art. 51434, § 1 (1971). EE ii i iy HUE He Hit Heal Nn i i oo i i es _ Haat TA ib int AT hn iy a HE ill nt Fe nit il i jul Fi AHH first to the language of the controlling stat- the ute, 28 USC. § 281: : tion by « three-judge district court, we turn i i Oe Te a ee ee er - tee te 444 ted sie ise 4 aeptegags at VFA be EE is a aidan ean a mt tH He Hill i BTR HT T(E PTH EA HEH a Ree aul ttt Pa uy ty | ih al d tt Hi if iit cil atit il a TE 33252 Fehr {3 3 He Ha Bays 3 See Ga ae fae ai “itl i HE sLgee tn putas A Fo: iit pai tH pth % q aj taialtilt if EM ES tif HE Hillel af 13 AE Fa HH Hai bili iy? Ate zis] Tee att UEC F i ut alt leit ait fi Hie ie F iT iat nt ie tt THEE pay ee Gata st aa te ots tt} i i ie : j 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, v. Robert G. HALL, Warren H. Fairchild 874 Uf 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 oy i tt LAST HIE TH tli y { Fi ath 7 v7 the when an showing his to the "kit \ a re a principle that te shifts prove 4 tte a2 ; ; 3 al Ft BHT é ali : ij HEE sad il : z2 Hit Mareh 1, 1971 and May 3, 197. g ji ati tf gaz. z3! suit tis? Hie Hil i} HHL Ee” HI afeditl TED $44 nye Hie | f e i we orrioe re aA Pi il /2 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 a t it Hi ti T [i i t i yf Jackson v. Godwin, 400 F.2d 629, S41 (Sth Cir. 1968)._ The due process right to access to the-courts and the First t i! i att fel Fe PEs i i i ag f flee : 1 F ef 2 : : g : i z ; i | F : 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 ;—? 223 : © acial cogvegniian in corneuttenss & 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 | I '7 -— >—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. i Hf ri { FE i : ! il 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. /f - 5° ———— e ” ~Aes > a ~ 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 ? L i E } § i . F #§ ; 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 ; - 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 if errr ee | 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 * pe 2 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- #3 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 ~ ~e == 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 34 —~— ~~ mee ee ~~ a et lt ay were - eee hw 4 PPP. Lobe oI ~ © @ Fe - ? ; , ee PS ’ + . PT eed : , . ote ee Fo Ge . ‘%. £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, a7 Beememnsd / > ep Am ee ’ | E a. = — . °. S wdew . > “ eS. os ope ; 2 r ae: @ ae Sk as . * => “9 -_ - ee A ant 7) oa “ S aS) 0 =r; pacha He. 8 = (fo fis yes? pido erey* 2 eis SR et i OE - ' we = “ - _— - oe eee ‘ eo 2 ote > 9. > 4 > ix a. ss - Pn 3.73 a ~e J. > a oe a ane 9 Ma’ Te? 8 £ a ere = eek 2 - ; ~ ™* - tine by . a St at tt ie ol ae ae i S “8S “ie ° WS rittg © ~ _ Son ra ee ; “3 *- 7,5 we > “c* pr ty rg? & <>} ’ ‘ ‘ o Vie —— “ bial . “=~ a - , ¢ > : " , he Fe om 2 . ma je, 7) "a . — e > =* . - ? P ts, ’ ma ie ~ ee » AN Ss ‘ 5 SR ~~ - a 4: a Se o “2 : ; . ATS ft =; oe Shes = - ~tee wel te ~ ee . > e* aa - me = -. " - = . “= e * . . bd . ‘s — , ae “a “ 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 $=24(15) Consent decree terminating anti- trust action once entered must be con- strued as written. 5. Monopolies 24/15) Where consent decree terminating antitrust action against defendant corpo- ration ordered corporation for one-year period to make continuous bona fide ef- forts to sell and consummate sale of as- sets of acquired industrial boiler busi- ness, there was not an absolute obliga- tion to divest; after passage of deadline Government, which failed to allege that corporation was breaching any terms of judgment and.which did not challenge bona fides of corporation's efforts to j sell, was not entitled to modification of i decree to consummate divestiture. Clay- j ton Act, § 7, 15 U.S.C.A. § 18. fendant corporation to use continuously its best efforts to divest itself of certain parties to petition court for further or- ders so that judgment might be con- strued, carried out, modified or enforced | did not enable court as a matter of dis- cretion to order divestiture at any time ! Act, § 7, 15 U.S.C.A. § 18. 3/ 2 Tagine ney ° er ane =. . * ~ ‘ oe on - wt > ae ae - 2 ~ ct oe : 2 wget S$. = RA oe pg ae - ~. a ee . - —_ - ag ° Y - eae, 2 +2 e mm. ~ ase we ye. . my ee “s - * : & = . ™ ‘ “ ; - ry - Fe at - “ 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. v. James A. TURMAN, Individually and in his official capacity as Executive Di- rector of the Texas Youth Council, et al. v. 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 3a —_— ee ee —- . > . > > 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 ... 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 it has recently noted, 47 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 4 | t 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- 4/ 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- 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 - ‘ a) 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 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, *& a 4 the conversations, Green attempted to 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 at ime | ae -~ - : : 7 . 8, ee, : ~~ “on zu +" 2 - wa, ; ee" *€ a> EF EZ tent oe? ae ~ . . « -~- * c - -. p = - - od ™ o4n on ge be, ee b«? os —- . 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 | : i ? : 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- d i | (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- Se Den i. - * . aod ’ at) o -4.95 —~. “o> , . ™. ar, ee SUP ak Ke — - ae ¢ A A ° . * bas ie ¢ . . . ° ; 5 MORALES v. TURMAN. 73 consisted of such “status” offenses as trvaney. incorrigibility, or running away from nome. Also present at Mountain View were some boys who had been transferred there from other schoois for such essentially non-violent, uncoopera- tive behavior as swearing at correctional officers, refusing to work, or running away. Mountain View's history. well known to the inmates of both Mountain View and Gatesville, has been one of brutality and repression. New boys placed at Mountain View are called “fresh fish,” and are “tested” by various forms of physical abuse, applied by staff or other heys with the encouragement of staff. For example, one entering boy, identi- fied as C. W., was initially beaten by the other boys in his cottage with the tacit approval of Correctional Officer Flores. Later that day, the boys who adminis- tered the beating were. in turn, “racked” by Flores—that is, forced to line up against the wall with their hands in their pockets while the correctional officer punched each one in the stomach. On the following day, while Correctional Officer Stovall watched, C. W. was hit and kicked by seven or eight bovs in the corner of the cottage day room for more than an hour. After C. W. had been knocked unconscious, Stovall stopped further abuse, announcing that he did not want any “dead fish” on his hands. Staff brutality at Mountain View is not ignored, but—by precept and exam- ple—encouraged, by those in authority. It was in evidence, for instance, that As- sistant Superintendent Mack Morris slapped one boy in the face for talking in the superintendent’s office. The evi- dence was also uncontradicted that the school principal slapped another boy in the face, back, and head for speaking Spanish. The Supervisor of Correction- al Officers, Joe Gail Sassy. is notorious for his abuse. In one incident, Sassy called Correctional Officer Foster on the Phone and directed him to send down a boy named “Slut” (M. A.). The boy went to Sassy’s office and returned shortly thereafter with swollen eyes and 383 F Suoe —S\a “> FANE” ERR M4 be og Cite as POF Sepe St. 19T 4 jaw, blaming Sassy. In another case. Sassy called a boy out of his cottage for not revorting on time. ‘When the bor re- turned from Sassy's office, nis face was swollen and one eve was almost closed. In still another incident, Sassy broke up a fight between R. J. and H. C.; he then “racked” R. J. for approximateiy twenty minutes and R. C. for about four minutes. Prior to entry of this court’s emergen- cy interim relief order, staff brutality was a regular occurrence in the security wing at Mountain View, called the Secu- rity Treatment Center (STC). In the sordid parade of evidence brought be- fore the court showing incident after in- cident of physical abuse, two occurrences seem particularly brutal and cruel. In one of the incidents, Correctional Offi- cer Supervisor Sassy interrogated W. B., after W. Jc. had attempted suicide. When W. B. did not answer his ques- tions, Sassy hit W. B. several times, knocking the boy to the floor, and spray- ed tear gas in his face from close range, shouting, “I have a way to make you talk.” This outrage happened in a room five to six feet from Assistant Superin- tendent Morris’ office. W. B. was taken to the infirmary; but the attendant asked him no questions about the tear gas and administered no medica! treat- ment. W. B., pursuant to Sassy’s in- struction, made no mention of the tear gas in the subsequent incident report. The second occurrence related to one, “Tweetybird,” an allegedly homosexual boy given to screaming fits. On the oc- casion in question, the boy, for an al- -leged rule violation. was called from his solitary confinement cell in the STC by Correctional Officer Johnston, who took him down a corridor to a central loca- tion in the STC. There, Johnston pro- ceeded to “rack” Tweetybird severely, then bound the boy’s hands behind his back and blindfolded him. Johnston thereupon twirled the boy around sever- al times and commanded him to run to his cell, the order being accompanied by threats of another beating if the boy did not proceed rapidly. In trying to follow FR we -_ 74 383 PEDERAL SUPPLEMENT Johnston's order, Tweetybird ran head- long inte the corridor walis several times: finally, sereaming and cro-ng. he fell to the floor. Johnston terminated the torture by placing his foot on Twee- tybird’s stomach and covering the boy's ‘ace with a mop. Complaints by anoth- er correctional officer to Supervisor Ross about this incident and other con- ditions in STC brought no results. The use of tear gas on boys during the period preceding entry of this court's emergency interim relief order was widespread. Many of the instances involving tear gas were the subject of “incident reports.” which are designed to record instances of the use of phvsi- cal force by both inmates and staff of TYC. One such incident report, dated January 13, 1971, and identified by Clarence Stephens, Casework Supervisor at Mountain View, reported that one, M. F., threw down his pick and started run- ning from a work detail. The boy was placed in the STC, and, for shouting. was afterward subjected to tear gas in his cell. Stephens identified incident re- ports of Apri! 19 and 20. 1973, reporting that tear gas was used on one, B. L. with the permission of Assistant Super- intendent Morris, when the boy refused to work and threatened to run. After being administered tear gas, the boy was examined at the hospital and then returned to a work detail. The next day, when B. L. again tried to run away and was apprehended, Morris once more gave assent to tear gas being used on the boy. A third report, dated October 25, 1973, reflects that D. F. ran away from a security work detail. After he was caught, D. F. was heid by two correc- tional officers and sprayed with tear gas. A report dated August 31, 1964, indicates that tear gas was administered to a boy in a cell in the STC, for being “troublesome” and “uncooperative.” The report reveals that Morris gave his approval to the procedure thus employed. Although Stephens reviews staff inci- dent reports concerning staff brutality, including those reporting the use of tear gas, he has never inquired as to the meaning of the phrase “sufficient force to bring [a boy) under controi,” which apoears continually in these -eperts. »f- ten as a justification for the use of tear gas. Although certain instances involving physicai abuse of inmates oy the staff are accurately reflected in the incident reports, many more are either unreport- ed or inaceurateiy reported. It is com- mon knowledge at Mountain View that reported incidents are deliberately faisi- tied to protect the correctional officer, and that witnesses do not [ile incident reports of staff brutality for fear of re- taliation. Even boys whe testified about Mountain View at the trial of the civil action feared for their physical safety upon returning. It is not only the correctional officers who pose a threat. Certain boys, known as “office boys,” are coerced or persuaded to act as en- forcers for the officers in exchange for special privileges. Office boys will fal- sify reports to protect an officer, and may provoke an incident with a bey who has “snitched” to injure him or preju- dice his chances for release. Mountain View emplorment practices are not aimed at curbing staff brutality. The pre-empic: ment screening of correc- tional officer staff at Mountain View consists of brief interviews with a correctional officer supervisor, the su- perintendent, and the assistant superin- tendent. There is almost no discussion of the use of force by the staff in these interviews. Furthermore, there is no pre-service training or orientetion for correctional staff. New employees are instructed to follow other staff around to learn the rules on the use of force and to use their “own discretion.” Prior to entry of this court’s emergency order, it was customary for correctional officers to accept the use of severe bru- tality against boys, for frivolous as well as serious kinds of disruption. Thus, conduct justifying this type of punish- ment included anything from spitting on the sidewalk to attacking a correctional officer. The school principal instructed a new physical education teacher to slap any student who did not follow instruc- 53 - ? 7 pe Cur - » a : ) s at ~ = paras a aes we > Ss Oz ; Sa. Bae ~ iar Su." ® © eS 4 -. Me Swe . * > >» + -* 5 MRR ers! ee TS bor nk ERED aes tn BE Aaa ra gk ye re MORALES v. TURMAN 7 One an 28 P Sapp TH tions. A former correctional officer vas admonished by his supervisor that his job “as In jevpardy. because he aud not “rack” boys for fighting and failed to kick them when they stepped out of marching lines. At staff meetings, new oificers’ re- tor definitions of Cn ghease we control requiring force” were an evasive answers. Although the correctional officers often talked among themselves about the brutality exercised against the children, the reporting of in- cidents of brutality to the superintend- ent was regarded as worthless. and only resulted in the suggestion to the report- ing officer that he resign. One former correctional officer, Foster, was reluc- tant to testify about conditions, because he had heard that two teachers who tes- tified concerning Mountain View were “blacklisted” from other state jobs. sexual” Black students; Dormitory Nine has only Anglo and Mexican Amer- ican “homosexual” students. Prior to The Director of Child Care for TYC, David Sandefur, was aware that Moun- tain View segregated certain boys by 14 Pace hax made three referrals for crimi- fal promeution in the past three rears. but race, but did not know the reason. Al- though he testified that be trusted the judgment of the Superintendent anu As- sistant Superintendent as to this policy. he admitted that it would be more ra- tional to separate the boys by passive and aggressive actions, rather than by race. He also conceded that labeling a child of thirteen to seventeen years of age as “homosexual” is detrimental to the child’s welfare in any case. Never- theless, Sandefur approved of the policy as necessary to maintain institutional control. Expert witnesses were unanimous in concluding, however, that such labeling is inappropriate. destructive, and often inaccurate, because some experimenta- tion with the same sex by adolescents is normal. Experts also testified that such labeling and segregation strips a child of his individual identity, does much to force him to homosexuality as a perma- nent mode of sexual expression, and is. therefore, extremely anti-therapeutic. 2. Gatesville State School for Boys Dwain Place. Superintendent of the Gatesville State School for Boys, de scribed his philosophy with respect to control and discipline as follows: “We don’t have any punishment for disci- pline. We may have punishment for control. If you want to call it pun- ishment, we use force for control. uses of excessive force. Thus, in a spe- cial incident report dated May 30, 1973, the investigating staff member, Carroll Duke, concluded that a correctional offi- cer had struck R. C. several times with- out justification. The only action taken against the correctional officer was a verbal reprimand; there was no recom- mendation for firing or referral for criminal prosecution.'"* In another inci- he be enaware of the dixpeitive of any Of thewe comes. [Ile firxe received written oo ‘ree tr rl rear ee ee ee ee ee STOTT ROP PAO. SS TO eee 76 383 FEDERAL SUPPLEMENT dent, while a group of boys from the Hackberry Subsehool of Gatesville sere returning from a field trip by bus. one. Robertson, a teacher. in the presence of other teachers and correctional officers. struck, kmeed, kicked. and punched W. and G. P. numerous times for pre to fight in the bus. The ooys in badly injured—‘with ai hole going straight through it.” At the instruction of Robertson, W. H. falsified his resort of the incident, stating that the injury was an accident. A concerned teacher intern witnessing the beaung reported it to another teacher. The teacher told him, “If you stay around the school long enough you better get used to it. because you'll see plenty and worse” Several witnesses testified that Correctiona! Of- ficer Schultz used excessive force against students on numerous occasions. One of his innovations included placing a boy's head between his, Schultz's. own legs and then running in place. Anoth- er of his variations was to stand on a boy’s stomach. The frequent use of certain forms of brutality has given rise to a jargon pe- culiar to the Gatesville inmates and staff. A “peel” is administered by forc- ing a boy to bend over, then striking him hard on the back with a fist or open hand. A “tight” is applied by forcing a boy to bend down, holding his own an- kles then i tice of the poliry of TYC to report «taff brutality te the locai prosecuror for «mm:nal prosecution sometime in 1972 The apiece: bie state stature ix Tex.Rev Srat.inr. «rt. Si30 (19T1). Ie April 1973. three month before this trisl aad over a year after Plaw states that he was sorified that inctlent~ filed. and when filed, are often falsified Vietums do not report incidents of bru- - ‘ality to caseworkers or other staff’, se Cause *uco orecedures are .not expiained to them. Retaliation for filing a report has included the assignment of extra juty to the complainant or his transfer to Mountain View for an eighteen-month stay : Expert witnesses testified that it is very difficult, even with a conscientious -taff to detect brutality in a large insti- tution. Although the most reliable source for such charges is inmate com- plaints, many inmates who first report brutality will often retract their reports. New or emotionally disturded students, not knowledgeable in the ways of the in- stitution, sometimes will “blurt out” in- stances of brutality. Dr. Jerome Miller, a particularity well-qualified expert, con- tended that such allegations should be investigated. even when the student !at- er disclaims the charge. Dr. Miller ex- plained that “most allegations, not all but certainly most, and virtually all of the serious allegations that come to us from young people, ultimately turn out to have some sound basis in fact and in reality.” According to the expert wit- nesses, in a large institution such as Gatesville, which banishes the trouble- some elements of its population to an- other institution such as Mountain View, repressive measures and corporal punishment are almost inevitable. Ex- pert witnesses further concluded that knowledge of and opposition to brutality is apt to rise to the surface more quicklr in small, community-based programs. 3. Girls’ Institutions Although brutality ia the girls’ insti- tutions did not appear to be as wide- spread a8 that in the boys’ at the time this court entered its emergency order. enocerheriee] force were te be referret for errommal preertion. (Corretional (fficer Amiersun eae fire! for easing “woautherize! fore” apviust a bey: Place claiwel that Anlerewn’s «ame woe uet referred for erin nal preeevtion became the ber Sas not rrowsiy burt SS lil i \ Het fut | Hite tions not posing an imminent threat to human life or an imminent and substar- tial threat to property; the placing of juveniles in solitary confinesent or other secured facilities, in the absence of any MORALES rv. TURMAN Cite ac DG F Sapp. 33 teTh) legisiative or administrative limitation on the duration aed intensity of the con- finement aad subject only to the uafet- ag : rf LE it i i ! fE [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1651%3A1. Public record. Not legal advice.