Petition for Writ of Certiorari — McGinnis v. Sweeton

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IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1991

KENNETH L. McGINNIS, et al,

Petitioners,

JAMES ANTHONY SWEETON, et al,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FRANK J. KELLEY

Attorney General

GAY SECOR HARDY

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

DAVID G. EDICK

Assistant Attorney General

Attorneys for Petitioners

170

eins

QUESTIONS PRESENTED

WHETHER STATE STATUTES AND REGULATIONS

WHICH SET FORTH PROCEDURES FOR THE PAROLE

REVIEW PROCESS BUT WHICH CONFER NO SUB-

STANTIVE RIGHTS AND IMPOSE NO LIMITATIONS

ON THE DISCRETION OF THE PAROLE BOARD

GIVE RISE TO A LIBERTY INTEREST PROTECTED

BY THE DUE PROCESS CLAUSE.

WHETHER THE CONTINUED ENFORCEMENT OF A

1981 CONSENT DECREE, DESIGNED SOLELY TO

FORCE MICHIGAN TO COMPLY WITH ITS OWN

STATUTORY PROCEDURES REGARDING PAROLE

BOARD ACTIVITIES, IS BARRED BY THE

ELEVENTH AMENDMENT.

nite

LIST OF PARTIES

The Petitioners are Kenneth UL.

McGinnis, Director of the Michigan

Department of Corrections; Martin Makel,

Marvin May, Jacqueline E. Moss-Williams,

Ronald E. Gach, Sandra J. Johnson,

Thomas Patten, Members of the Parole

Board of the State of Michigan, all of

whom have been automatically substituted

as parties pusuant to Supreme Court Rule

35.3. The lawsuit was initially brought

against Perry Johnson, Director of the

Michigan Department of Corrections;

Leonard McConnell, Chairman of the Parole

Board of the State of Michigan; Gordon

Fuller, Howard Grossman, Hondon Hargrove,

Donald Thurston, Delores Tripp, Edward

Turner, Members of the Parole Board of

-iii-

the State of Michigan. During the

District Court proceedings, Robert Brown,

Jr., succeeded to the office of Director

and was substituted for Perry Johnson as

a party.

The Respondents are James Anthony

Sweeton, Oscar Partee and James Sikon,

individually and on behalf of all other

persons similarly situated.

All parties in the District Court and

Court of Appeals are parties in this

Court.

-iv-

TABLE OF CONTENTS

QUESTIONS PRESENTED ....-eeeeceeevces i

LIST OF PARTIES ..ccccccccccccccccees ii

TABLE OF AUTHORITIES ...-.-eeeeceecees Vv

OPINIONS BELOW .... cece csecccccccces 1

JURISDICTION ..cccccccccvcccccccesecs 1

CONSTITUTIONAL PROVISIONS INVOLVED .. 1

STATEMENT OF THE CASE ..-.-.eccccescces 2

REASONS FOR GRANTING THE WRIT........ 15

II.

THE COURT OF APPEALS RULING

WHICH FOUND THAT THE CREATION

OF A LIBERTY INTEREST CAN ARISE

FROM PROCEDURAL PROVISIONS

UNCONNECTED TO A SUBSTANTIVE

LIMITATION ON OFFICIAL

DISCRETION IS SQUARELY IN

CONFLICT WITH THE DECISIONS

OF THIS COURT AND OF OTHER

CIRCUITS, INCLUDING THE

SIXTH CIRCUIT ..ccccccccccccccceces 15

THE COURT OF APPEALS DECISION

IMPROPERLY DENIED PETITIONERS '

ASSERTION OF AN ELEVENTH

AMENDMENT DEFENSE BY ERRONEOUSLY

HOLDING THAT THE CONSENT DECREE

WAS BASED UPON THE CREATION

OF A LIBERTY INTEREST PROTECTED

BY THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT ......... 29

CONCLUSION .cccccccccccvcccvecsccsvcccns 34

TABLE OF AUTHORITIES

: Pages

Cases

Allen v. Wright,

— MOO Gels FET SRODES hance cusddeces 26

Board of Pardons v. Allen,

SGn Uso SEP CEMETE bas ended eweecs 20

Brandon v. District of

Columbia Board of Parole,

O23 F260 666 (BC GEE. 2367) cccces 23,24

Duran v. Carruthers,

885 F.2d. 1485 (10th Cir. 1989),

cert. denied, 110 S.Ct. 865

CSOEUE 660666 65.68 06006006468 FRE OU ee 20

Glass Packaging Institute v.

Regan, 737 F.2d 1083 (DC Cir),

cert. denied, 496 U.S. 1035

CPUS) Se eccereeseveseseeseeeeecere 26

Inmates of Orient Correctional

Institute v. Ohio State Adult

Parole Authority, 929 F.2d 233

fo @} Ae!) ee eee ee 25

Kentucky Dep't of Corrections

v. Thompson, 490 U.S. 454

Ren 4450650e ee aaa ears 15,17,22,25

Lelsz v. Kavanagh, 807 F.2d 1243

(Sth Cir), reh'gq denied, 815 F.2d

1034 (Sth Cir), cert. dismissed,

483 U.S. G57 (CAPS) cocveseasessa 31-33

Local Number 93, Int'l Ass'n of

Firefighters v. City of Cleveland,

476 Ucoe SOL (L9GG) cocccancevevecs 27,34

-vi-

Pages

Naegele Outdoor Advertising Co

v. Moulton, 773 F.2d 692

(6th Cir. 1985), cert. denied,

475 U.S. 11Zl (19GB) cccccccccccces 24

Olim v. Wakinekona,

461 UeSe 290 (2963) cvccccccccececs ye

Pennhurst State School v.

Halderman, 465 U.S. 89 (1984)..31,32,34

Potomac Passengers Ass'n. v.

Chesapeake & Ohio Ry Co.,

S20 Bsae FS CS Ghee BETO) ccccces 27,28

Stern v. Tarrant County Hosp.

Dist., 778 F.2d 1052 (5th Cir.

1985) (en banc), cert. denied

476 U.S. 1108 (19GS) cccccccoscceccs 26

Wal-Juice Bar, Inc. v. Elliott,

899 F.2d 1502 (6th Cir. 1990)

5 Ss C.. ee ee e 29

Wolff v. McDonnell,

SiG Uwe BSP CESTa) cccevceessecese 15

Other

Eleventh Amendment, US Const ...... passim

Fourteenth Amendment, US Const ....2,3,29

Fed. R. Civ. P. 60(4) and (BS) cecesss 10

20 GUC 8 200868) 5 kcicass cee 1

OPINIONS BELOW

The Opinion of the United States

Court of Appeals for the Sixth Circuit

was not recommended for publication and

is reprinted at App 1-56a. The under-

lying Opinion of the U.S. District Court

for the Eastern District of Michigan was

filed August 17, 1978, and appears as

App 109-126a.

JURISDICTION

The Opinion of the Court of Appeals

was entered on September 17, 1991. The

jurisdiction of the Court is invoked pur-

suant to 28 USC § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eleventh Amendment to the United

States Constitution provides as follows:

The Judicial power of the United

States shall not be construed to

extend to any suit in law or in

equity, commenced or prosecuted

atte

against one of the United States by

Citizens of another state or by

Citizens or Subjects of any Foreign

State.

Section 1 of the Fourteenth Amendment

to the United States Constitution pro-

vides as follows:

No State shall make or enforce any

law which shall abridge the privi-

leges or immunities of citizens of

the United States; nor shall any

State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any per-

son within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

The Complaint below was filed on

September 16, 1977 on behalf of a class

of all inmates within the jurisdiction of

the State of Michigan Department of

Corrections (MDOC), whose parole eligi-

bility is determined by the State of

- 3—

Michigan Parole Board. The Complaint, as

amended, alleged several counts claiming

a violation of the Fourteenth Amendment

attributable to Parole Board procedures,

and a pendent state claim alleging that

the State was not complying with its

Statutes and regulations in the criteria

used to grant or deny paroles.

In March, 1978, Patitioners filed a

motion to dismiss or in the alternative

for summary judgment. On August 17,

1978, the U.S. District Court for the

Eastern District of Michigan granted

Petitioners' motion to dismiss "... as to

the claims raised under the United States

Constitution," (App llla), nut denied

regulations," in deciding whether or not

to grant parole release to Respondents.

(App llla). On November 16, 1978, an

order entered granting the Respondents'

request for class certification.

The District Court held, as a basis

for granting Petitioners' Motion to Dis-

miss, that the United States Supreme

Court and the Sixth Circuit Court of

Appeals previously established that

requirements of due process were inappli-

cable to parole release hearings. Thus,

all claims brought in the Complaint con-

cerning due process violations under the

Constitution of the United States were

dismissed. There was no appeal taken by

the Respondent class to this ruling.

The only issue remaining was whether

the State of Michigan was complying with

athe

its own statutes and regulations when

deciding parole cases. Although the

District Court opined that established

procedures must be followed by the Parole

Board to avoid "“abrogating" a prisoner's

rights (even though there was no doubt in

the opinion of the District Court, or the

Court of Appeals, that there never

existed in this case a liberty interest

to a parole, see App 18-19a), the

District Court contemplated rendering a

decision on the remaining issue of com-

pliance with statutory regulations after

a more complete record was developed.

(App 125a).

On August 24, 1979, Petitioners filed

an Answer to the First Amended Complaint

denying federal jurisdiction and moved

for abstention on the remaining claim on

wile

October 5, 1979. The case was reassigned

to another district judge who rendered a

"Judgment" dated March 31, 1981 on three

outstanding issues concerning inmates'

access to files, distribution of an

informational booklet, and the request

for abstention. Contained in the Opinion

that accompanied the March 31, 1981

"Judgment" were the comments about the

previously rendered Opinion of August 17,

1978 in which the District Court asserted

that the first District Judge actually

decided that parole procedures alone

created a liberty interest.

After a period of negotiations, a

Consent Judgment was entered on

August 28, 1981 consisting of very

detailed procedural requirements designed

solely to improve the parole process.

(App 62-108a). The introductory clause

to the 1981 Consent Decree _ states:

"[Pjursuant to the statutes, rules and

policies which establish, define, and

regulate the parole process, this process

should be administered in an effective

and fair manner, and afford each prisoner

the rights to which he or she is

entitled." (App 64a). The 1981 Consent

Decree was silent as to what issues were

resolved, nor was there any language con-

stituting waiver of any defenses that

Petitioners may have.

Most provisions of the 1981 Consent

Decree tracked state law procedure

regarding parole hearings. One provision

of the 1981 Consent Decree states:

Nothing herein is intended to alter,

modify, divest, or otherwise limit

the rights and duties which the

Legislature has provided to the

Parole Board within the _ parole

who

decision-making process.

(App 80a).

The 1981 Consent Decree also placed a

limitation upon the jurisdiction and

duration of the case in paragraph VIII, L

providing:

Plaintiffs' participation in monitor-

ing described in this section shall

continue for 30 months, unless the

Court extends this period for good

cause shown. The court shall retain

jurisdiction of this cause for the

pendency of this monitoring period,

and shall have the power to make fur-

ther orders consistent with the

decree.

(App 95-96a).

Petitioners filed a Motion to Vacate

the Judgment on February 27, 1984 on

jurisdictional grounds, including an

assertion of the Eleventh Amendment. On

March 1, 1984, Respondent filed a Motion

to Extend the Monitoring Period.

aQo

On May 31, 1984, the District Court

issued an Opinion, but no Order, denying

the Motion to Vacate and also suggesting

that the Respondents close out the moni-

toring period through submission cf a

final report. For reasons not appearing

of record, the District Court delayed

entry of an Order denying the Peti-

tioners' Motion to Vacate until

November 28, 1984. Also, on November 28,

1984, the District Court entered an Order

extending the monitoring period retroac-

tively to end on November 30, 1984.

A final monitor's report was filed on

June 18, 1985, characterizing the actions

of Petitioners as consistently making a

good faith effort to comply with the

Judgment. There was no further relief

sought from the District Court by either

party.

=-16-+

After years of repose, new attorneys

for Respondents filed appearances, and

the District Court reopened monitoring on

June 16, 1988, after finding non-

compliance with the 1981 Consent Decree.

In February, 1990, Respondents filed

a motion for an order finding Petitioners

in non-compliance with the Consent Judg-

ment and for appointment of a special

master.

In March, 1990, Petitioners filed,

pursuant to Fed. R. Civ. P. 60(b)(4) and

(5), a Motion to Vacate the 1981 final

Consent Judgment and dismiss the action

asserting lack of jurisdiction to enter

the Order, and that tne 1981 final order

was void as a matter of law. On May 24,

1990, the District Court entered an Order

denying the Motion to Vacate and Dismiss,

att<

finding that jurisdiction existed and

that Petitioners were non-compliant with

the consent decree. (App 57-61a). The

District Court also granted one modifica-

tion to the Consent Decree, continued the

monitoring for one year, and appointed a

U.S. Magis.crate as a special master/

independent monitor. Both Petitioners

and Respondents requested rehearings

which were denied. Both Petitioners and

Respondents filed appeals.

On September 17, 1991, the United

States Court of Appeals for the Sixth

Circuit filed an Opinion affirming the

District Court's denial of the Motion to

Vacate, but reversing the District

Court's one modification. (App 1-56a).

The Court of Appeals, with respect to the

jurisdictional issue of what liberty

interest was underlying the 1981 consent

decree, said:

The lower court on numerous occasions

stated that the liberty interest

involved is not in the right to

parole, since none exists under the

Greenholtz rationale, infra, but in

the state-created procedures’ that

make up the parole decision-making

process.

(App 18-19a) (Emphasis added).

The Court of Appeals has character-

ized the liberty interest, as the

District Court did, as one which was

purely procedural existing without a

specific substantive predicate:

In sum, although the Parole Board may

have discretion in the eventual

parole decision, the state, through

statutes and regulations, has taken

away any discretion in parole pro-

cedures. Therefore, the Michigan

parole scheme is not wholly discre-

tionary -- it limits the Parole

Board's authority by requiring it to

follow certain procedures.

(App 24a).

The Eleventh Amendment defense to

jurisdiction was summarily denied by the

«i Gu

Court of Appeals. Specifically, the

Court of Appeals stated that the Eleventh

Amendment was not a bar to the District

Court's jurisdiction because the 1981

Consent Decree was based upon state law

",.. only to the extent that the state

laws created a liberty interest protected

under the Due Process Clause of the

Fourteenth Amendment." (App 26a, n7).

One Court of Appeals Judge concurred

in the September 17, 1991 judgment and

all but Part II (Jurisdiction) of the

Opinion observing that the District

Court's power to grant relief from the

outset was "problematic," and further

stated:

The problem was that neither state

law nor federal law created any sub-

stantive right to the "liberty" that

release on parole would represent.

The district court tried to circum-

vent the problem, as has been noted,

by holding that when the state

atte

required "that certain procedures be

followed in determining whether or

not an inmate is entitled to parole,

independent liberty interests are

created ...." In the light of subse-

quent case law, it is safe to say

that this analysis was almost cer-

tainly incorrect.

x * *

It is probably unfortunate that this

case was permitted to go forward in a

federal court. The defendants having

accepted the federal court consent

decree without reservation, however,

I agree that the challenge to the

court's jurisdiction comes too late.

(App 52-56a).

This Petition follows the September

17, 1991 Court of Appeals Opinion.

«} Sq

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS RULING WHICH

FOUND THAT THE CREATION OF A LIBERTY

INTEREST CAN ARISE FROM PROCEDURAL

PROVISIONS UNCONNECTED TO A SUBSTAN-

TIVE LIMITATION ON OFFICIAL DISCRE-

TION IS SQUARELY IN CONFLICT WITH THE

DECISIONS OF THIS COURT AND OF OTHER

CIRCUITS, INCLUDING THE SIXTH

CIRCUIT.

The Court of Appeals Opinion that

procedures alone created an enforceable

decree in federal court, without the

existence of a substantive predicate lib-

erty interest is contrary to the U.S.

Supreme Court's numerous decisions, many

cited by the Court of Appeals in support

of its conclusion, starting with Wolff v.

McDonnell, 418 U.S. 539 (1974), and con-

cluding with Kentucky Dept of Corrections

v. Thompson, 490 U.S. 454 (1989).

The Court of Appeals' Opinion in this

«LBe~

case (see App 18-19a) readily acknowl-

edged, as the District Court did in its

1978 Opinion dismissing all "... claims

raised under the United States Constitu-

tion," that there never existed a sub-

stantive interest to a parole. The grant

of a parole in Michigan is discretionary

under state statutes. There is no dis-

pute by the parties, the District Court,

or the Court of Appeals that the remain-

ing issue, after dismissal of all claims

under the United States Constitution, was

whether the State was complying with its

own procedures regarding the exercise of

discretion in granting or denying

paroles. Indeed, the Consent Decree

entered in this case never purported to

do anything more than to impose a highly

intrusive procedural scheme designed to

track state law on parole release hear-

49a

ings, and monitor how well or poorly the

state was complying with the process

alone. The Consent Decree itself never

created an entitlement to parole, because

the District Court properly ruled there

was none. (App 117-118a).

The Court of Appeals, in purporting

to engage in the required careful analy-

sis contemplated by kentucky Dept of

Corrections v. Thompson, supra, offered

the following observation:

In sum, although the Parole Board may

have discretion in the eventual

parole decision, the state, through

statutes and regulations, has taken

away any discretion in parole proce-

dures. Therefore, the Michigan

parole scheme is not wholly discre-

tionary -- it limits the Parole

Board's authority by requiring it to

follow certain procedures.

(App 24a) (Emphasis added).

Completely ignored by the Court of

Appeals is paragraph V.B.4 of the 1981

-—y

consent decree memorializing the opposite

conclusion:

Nothing herein is intended to alter,

modify, divest or otherwise limit the

rights and duties which the Legisla-

ture has provided to the Parole Board

within the parole decision-making

process.

(App 80a).

The consent decree provision clearly

recognizes the discretion of the Parole

Board, as well as effectively undercuts

the entire rationale offered by the Court

of Appeals in reaching its conclusion.

The concurring Opinion by the Court

of Appeals correctly observed, regarding

the subject matter jurisdiction, that not

only was the power to grant relief from

the outset "problematic", but that it was

also “unfortunate that this case was per-

mitted to go forward in a federal court"

—

and that the District Court's analysis

was "... almost certainly incorrect" in

light of the case law regarding creation

of substantive rights entitled to due

process protection. (App 52-54a). Indeed,

the concurring Court of Appeals Opinion

also correctly identified the problem of

a complete absence of a substantive right

as representing an obstacle for the

District Court to "circumvent," leading,

of course, to the flawed conclusion,

affirmed by the Court of Appeals, that

process alone can establish a liberty

interest entitled to more due process.

(App 53a).

The fact that a consent decree was

involved in resolving the remaining State

claim does nothing to alleviate the basic

requirement that a substantial federal

~~"

question must first exist for a federal

court to not only assume jurisdiction,

but to continue retaining it. This case

is not a matter involving mere over-

breadth of a remedy contained in a con-

sent decree that also resolves clear

substantial federal questions such as

Duran v. Carruthers, 885 F.2d 1485 (10th

Cir. 1989), cert. denied, 110 S.Ct. 865

(1990).

A continuing theme reappearing in

Supreme Court cases analyzing due process

claims, particularly concerning parole

release decisions, is the need to estab-

lish an interest in parole release as the

predicate to triggering due process con-

siderations. In Board of Pardons v.

Allen, 482 U.S. 369, 377-378 (1987), this

Court said, "Significantly, the Montana

statute, like the Nebraska statute, uses

mandatory language ("shall") to 'creat[e]

a presumption that parole release will be

granted' when the designated findings are

made." (Footnote omitted). The Court in

Olim v. Wakinekona, 461 U.S. 238, 249

(1983), further explained that a pro-

tected liberty interest is created "...

by placing substantive limitations on

official discretion." The uncontested

finding of the district court in this

oe ae eee. 6 6. .lCUkm CUthis)«€6Cccircuit at

least, the requirements of due process

are not applicable to parole release

hearings." (App 117-118a).

The fact that there was an affirma-

tive finding of the nonexistence of a

substantive right to parole should have

ended whatever questions the Court of

~22<

Appeals might possibly have harbored

about whether a liberty interest was cre-

ated or was underlying the - consent

decree. Instead, the Court of Appeals

Opinion concludes, without the requisite

close analysis of relevant statutes, that

their opinion does not constitute a

departure from established Supreme Court

precedent.

Indeed, one only needs to- read

Kentucky Dept of Corrections v. Thompson,

Supra, 490 U.S. at 461, to be reminded

that the proper analysis and inquiry

“always has been to examine closely the

language of the relevant statutes and

regulations" to discern the existence of

".,.. relevant mandatory language that

expressly requires the decisionmaker to

apply certain substantive predicates in

~~,

determining whether an inmate may be

deprived of the particular interest in

question." Id. at 464, n4.

Allowing procedural rules rather than

a substantive right to be elevated to a

liberty interest results in process

becoming an end in itself, and a “need-

less formality." Olim v. Wakinekona,

Supra, 461 U.S. at 250. In Brandon v.

District of Columbia Board of Parole, 823

F.2d 644 {DC Cir. 1987), the Court

rejected the plaintiff's claim to a

parole hearing as a liberty interest

because of the "... overwhelming logic of

the Supreme Court's pronouncement in Olim

and the plethora of case law against

him." Id. at 648. The Court in Brandon

declined to expand the concept of proce-

dural due process and joined several

-24-

other circuits which held similarly,

including the Sixth Circuit in Naegele

Outdoor Advertising Co v. Moulton, 773

F.2d 692, 703 (6th Cir. 1985), cert.

denied, 475 U.S. 1121 (1986). The

observations made in the Brandon Opinion

are compelling and succinct:

Brandon would have us interpret

the Due Process Clause to mean that

the Board may not deprive him of his

parole hearing without providing him

a hearing. This circular result dem-

onstrates the illogic of attempting

to locate a separated protected lib-

erty interest in procedural rules

created by governmental bodies. In

fact, Brandon asks us to abandon

altogether the standard due process

analysis. Instead of identifying the

substantive interest entitled to con-

stitutional protection and then

determining what process is due

before an individual can be deprived

of that interest, see Morrissey, 408

U.S. at 481, Brandon would have us

equate the process due with the sub-

stantive interest.

x . t

If Brandon's approach were adopted,

there would be a constitutional pro-

cedural due process right to have

«$3

states adhere to any procedural rules

promulgated by them." Id. at 648-649.

The ease with which the Court of

Appeals in Inmates of Orient Correctional

Institute v. Ohio State Adult Parole

Authority, 929 F.2d. 233 (6th Cir. 1991),

analyzed an identical claim involving a

release on parole liberty interest issue

suggests that the conclusion in this case

was influenced by the existence of a con-

sent decree. (App 27a, 32-36a). As this

Court is aware, the existence of a con-

sent decree was also a factor in Kentucky

Dept of Corrections v. Thompson, supra,

leading to a reversal of the Court of

Appeals' Opinion that a liberty interest

to prison visitation was created by a

consent decree and State regulations in

that case.

~-26-

The mere existence of a consent

decree in federal court does not guaran-

tee that a substantial federal question

was ever presented, resolved or served to

vindicate federal rights. A federal

court is obligated to consider threshold

Article III impediments both to the ini-

tiation and maintenance of an action.

Glass Packaging Institute v. Regan, 737

F.2d 1083 at 1087-1088 (DC Cir), cert.

denied, 496 U.S. 1035 (1984). The

Supreme Court has emphasized the limita-

tions on the power of federal courts to

hear claims filed by persons challenging

"the way in which government goes about

its business" of enforcing the law.

Allen v. Wright, 468 U.S. 737, 4760

(1984); Stern v. Tarrant County Hosp.

Dist., 778 F.2d 1052, 1060 (5th Cir.

1985) (en banc), cert. denied, 476 U.S.

a%F<

1108 (1986): “The federal judiciary, for

its part, has enough federal law to

enforce without annexing new bodies of

state legislation. We must, and will,

leave violations of state law to be cor-

rected by the appropriate state

mechanisms."

The ability of a federal court to

enter a consent decree "... must spring

from and serve to resolve a dispute

within the court's subject-matter juris-

diction." Local Number 93, Int'l Ass'n

of Firefighters v. City of Cleveland, 478

U.S. 501, 525 (1986).

All federal courts have a duty to

notice a failure of subject-matter juris-

diction on its own motion and to correct

the mistake no matter how belated even on

appeal. Potomac Passengers Ass'n. v.

~26-

Chesapeake & Ohio Ry Co., 520 F.2d 91, 95

(DC, Cir. 1975).

When the District Court entered the

consent decree in 1981, all claims under

the U.S. Constitution had been dismissed

on the finding contained in the

August 17, 1978 Opinion that Michigan

statutes provided no substantive right to

a release on parole. The District Court

in 1981 had only the pendent claim con-

cerning allegations that the state was

not following its regulations in granting

or denying paroles when the consent

decree was entered. The consent decree

entered in 1981 could not spring from and

serve to resolve a dispute within the

subject-matter jurisdiction of the Court,

especially on a theory that process alone

needs due process protections. The Sixth

a %Gn

Circuit's opinion in Wal-Juice Bar, Inc.

v. Elliott, 899 F.2d 1502 (6th Cir.

1990), reh'g denied, held that before a

district court addresses state issues it

must first determine that a substantial

federal issue is presented. Without a

substantial federal question underlying

the consent decree, as discerned from

pre-existing decisions of the Supreme

Court, a decision on state claims, as in

this case, should not have been made and

the decree should be vacated.

II.

THE COURT OF APPEALS DECISION

IMPROPERLY DENIED PETITIONERS' ASSER-

TION OF AN ELEVENTH AMENDMENT DEFENSE

BY ERRONEOUSLY HOLDING THAT THE CON-

SENT DECREE WAS BASED UPON’ THE

CREATION OF A LIBERTY INTEREST PRO-

TECTED BY THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT.

The erroneous determination by the

Court of Appeals that a liberty interest

= Sie

was created by process alone and further

that the consent decree "... was based on

state law only to the extent that the

state laws created a liberty interest

protected under the Due Process Clause of

the Fourteenth Amendment" (App 24a, 26a),

constituted the basis upon which Peti-

tioners were denied an Eleventh Amendment

defense.

As presented in Part I of this Peti-

tion for Writ, there was never a viable

federal claim that could attach to the

remaining issue after the District Court

dismissed all claims under the U.S.

Constitution and the remaining issue,

enforcement of State procedures, impli-

cated no federal rights. Indeed, the

consent decree also memorialized the dis-

cretion still retained by the Parole

$3 a

Board on the decision to release on

parole. (App 80a).

The need in this case for the Court

of Appeals to find that a liberty inter-

est had been created was necessary to

circumvent the strictures of Pennhurst

State School v. Halderman, 465 U.S. 89

(1984), which bar a federal court from

assuming or retaining a case that served

to enforce only State law.

In Lelsz v. Kavanagh, 807 F.2d. 1243

(Sth Cir), reh'gq denied, 815 F.2d 1034

(Sth Cir), cert. dismissed, 483 U.S. 1057

(1987), the Fifth Circuit, in a case very

analogous to the present case, undertook

a careful examination of a consent decree

which had been entered in 1983. The con-

sent decree was. 45 paragraphs of specific

and general guidelines for improvement of

«$2

mental health services rendered by the

State. The Court in Lelsz found the

Eleventh Amendment, particularly as

analyzed in Pennhurst, supra, barred

enforcement of provisions which merely

tracked State law and also forbade the

District Court, on remand, from enforcing

provisions grounded in State law.

The present case represents an even

clearer basis upon which the bar of the

Eleventh Amendment should have _ been

applied. In this case, there is a com-

plete absence of a federal right that was

either resolved or undergirds the decree.

There is not a single paragraph of the

entire consent decree in this case that

serves to resolve a dispute within the

jurisdiction of the Court. This case

represents a clear example of enforcement

«%3—

of highly intrusive procedures that track

State law and thus represents a square

conflict with numerous Supreme Court rul-

ings construing the application of the

Eleventh Amendment.

The defense of the Eleventh Amendment

was raised by Petitioners before the

Court of Appeals, and when raised, the

Court of Appeals should have examined

each claim to discern if any are barred,

as was done by the Court in Lelsz v.

Kavanaugh, supra. The Court of Appeals

in this case found a liberty interest

without the requisite énalysis, and then

deprived Petitioners of a valid Eleventh

Amendment claim on the basis that proce-

dures alone could create ae liberty

interest.

a Y

CONCLUSION

The Court of Appeals decision is con-

trary to a long line of Supreme Court

precedent on creation of a liberty

interest, contrary to the ban against

enforcing State law as enunciated in

Pennhurst, supra, and contrary to the

command that consent decrees must resolve

disputes within the Court's subject mat-

ter jurisdiction as articulated in Local

Number 93, Int'l Ass'n of Firefighters v.

City of Cleveland, supra.

-35-

_ petition for writ of certiorari

should DY granted.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Gay Secor Hardy

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, MI 48909

(517) 373-1124

David G. Edick

Assistant Attorney General

Attorneys for Petitioners

—

APPENDIX

Table of Contents

Opinion of the Court of Appeals

for the Sixth Circuit, entered

SOPCGMDOr 17, 1991 .cccccsvcccecs

Order of the United States

District Court, Eastern

District of Michigan, entered

ES Seer

Final Order: Consolidation of

Opinion, Order, and Consent

Judgments of the United States

District Court, Eastern

District of Michigan, entered

WUGUBC 26, 1961 .ccscessvccececes

Opinion of the United States

District Court, Eastern

District of Michigan, entered

ES eae ee

Page

57a

62a

109a

: a jn ia we) a oe Ow ee i eT) stay yt ee:

ay 7

= _ -— =

mm A aie ;

nt, os) Oe

Nos. 90-1800/1807

JAMES ANTHONY SWEETON, et al. )

Plaintiffs-Appellees- )

Cross-Appellants )

ROBERT BROWN, JR., et al.

)

Defendants-Appellants- )

Cross-Appellees )

ON APPEAL from the United States

District Court for the Eastern

District of Michigan

Decided and Filed September 17, 1991

Before: NELSON and GUY, Circuit

Judges; and HIGGINS, District Judge*

HIGGINS, District Judge.

The defendants (appellants) appeal

and the plaintiffs (appellees) cross-

appeal the district court's order denying

*The Honorable Thomas A. Higgins,

United States District Judge for the

Middle District of Tennessee, sitting by

designation.

the defendants' motion to dismiss and

partially modifying a consent decree

issued in 1981. For the reasons that

follow, we affirm in part, reverse in

part and remand.

I. Background

This appeal arises out of a final

consent judgment entered into between the

State of Michigan Department of Correc-

tions and a class of inmates and approved

by the district court on August 28, 1981.

This action was brought in September 1977

by a class of inmates within the juris-

diction of the State of Michigan Depart-

ment of Corrections (MDOC), whose parole

eligibility is determined by the State of

Michigan Parole Board. The defendants/

appellants are the director of the MDOC

and the members of the Michigan Parole

Board. The suit challenges the practices

of the MDOC and the Parole Board concern-

ing the timeliness of hearings and deci-

sions and the lack of guidelines in the

parole decision-making process. This

action does not concern the actual grant-

ing of parole, but only the procedures in

making and implementing parole decisions.

The inmate class asserts that the MDOC

and Parole Board have violated their

rights to due process under the Four-

teenth Amendment to the Constitution of

the United States.

A review of the history of this

action is helpful in understanding the

lower court's rulings concerning the con-

sent decree and the most recent ruling

granting a modification.

1977-1987

The complaint was filed by the inmate

class on September 15, 1977, addressing

the issues discussed above.

In March 1978, the appellants filed

their first motion to dismiss or, in the

alternative, for summary judgment for

failure to state a federally cognizable

cause of action. In August 1978, the

district court (Feikens, J.) granted the

appellants' motion to dismiss as to the

Claims raised under the Constitution of

the United States, but denied the alter-

native motion as to the claim that the

State of Michigan was not complying with

its own statutes and regulations when

deciding whether to grant parole. In

granting the motion, the lower court held

that the Supreme Court of the United

States and the Sixth Circuit Court of

Appeals had previously established that

the requirements of due process are not

applicable to parole release hearings.

Accordingly, the court dismissed the

appellees' claims that the procedures

employed by the State of Michigan vio-

lated their rights to due process under

the Constitution of the United States.

Therefore, the only issue that the court

left open was whether there arose a

state-created liberty interest by way of

statutes, rules or procedures that would

entitle the appellee class to due process

protections. The appellee class did not

appeal this ruling.

In October 1979, the appellants filed

another motion to dismiss or, in the

alternative, a motion for abstention

order. The appellants argued that the

issues presented in the action were

dependent upon a judicial interpretation

of state statutes, rules, policies and

regulations, which are all matters more

a ee ae

properly within the domain of the state

courts. Alternatively, the appellants

asserted that the district court should

abstain from ruling in the action, pend-

ing resolution of the issues by state

tribunals. In March 1980, after the case

was subsequently reassigned to the

Honorable Anna Diggs Taylor upon her

appointment to the federal bench, the

court heard oral argument and denied the

appellants' motion.

The parties stipulated to a series of

partial consent judgments in March and

April 1980. These partial consent judg-

ments were consolidated and, after notice

to all class members, the district court

approved a final parvial consent judgment

in December 1980.

Thereafter, cross-motions for summary

judgment were filed concerning the appel-

lees' access to their MDOC records. These

claims were resolved in the appellees'

favor by the court's order dated March

31, 1981. In this order and opinion,

many of the due process issues that the

appellants presently raise are addressed.

The district court stated:

Most importantly, the law of this

case, as formulated by Judge Feikens

more than two years ago when this

litigation was on his docket, is that

the existence of state statutes,

regulations and policies regarding

the parole system as a whole impart

independent liberty interests to

those inmates participating in the

system. (emphasis in original).

The appellants appealed the above

‘ruling. On August 28, 1981, the court

Signed a final order approving a finai

consent judgment. This final consent

judgment was a consolidation of the ear-

lier final partial consent judgment, the

court's March 31, 1981, order and stipu-

lations of the parties. Also on August

28, 1981, the court amended its order of

March 31, 1981. In December 1981, the |

appellants dismissed their appeal because

the terms of the final consent judgment

were satisfactory to all parties and the

basis for their appeal no longer existed.

The final consent decree provided for

a monitoring period of thirty months,

which the court later extended until

December 1984. The monitoring provision

also deals with jurisdiction. Paragraph

VIII(L) provides:

Plaintiffs' participation in monitor-

ing described in this section shall

continue for 30 months, unless the

Court extends this period for good

cause shown. The Court shall retain

jurisdiction of this cause for the

pendency of this monitoring period,

and shall have the power to make fur-

ther orders consistent with this

decree.

In Februéy 1984, the appellants

filed their frst motion to vacate the

final consentjudgment pursuant to Rule

60(b), Fed. R civ. Pp. The appellants

claimed, interalia, that:

1. the 6nsent judgment was based

exclusively oO! state law and thus the

lower court léked jurisdiction to enter

LU3

2. prior o entering the 1981 judg-

ment, the lowe court did not have a full

opportunity tcOreview the impact of the

Supreme Cour's 1979 decision in

Greenholtz v.tInmates of the Nebraska

Penal and Corrctional Complex, 442 U.S.

1, 99 S.Ct. 210, 60 L.Ed.2d 668 (1979);

and

3. the msent judgment should be

vacated becaus of statutory changes that

were not in efect at the time of the

10a

court's earlier decision.

In November 1984, after briefing and

argument by the parties, the lower court

denied the appellants' motion to vacate

the final consent judgment. The appel-

lants did not seek rehearing or appeal

this decision.

At the hearing on the appellants'

motion, the district court (Taylor, J.)

stated:

The Court's jurisdiction over this

case is and was proper, and this

judgment may not now be vacated under

the Federal Rules as being void. The

Federal Court has jurisdiction to

determine its own judicial authority.

So, if the defendant has challenged

the Court's subject matter jurisdic-

tion and the Court issue has been

resolved against defendant by a final

judgment, the judgment is not void

but is Res Judicata on the issue of

jurisdiction.

In this case the Defendants have

challenged the Court's subject matter

jurisdiction at least three times,

and ruled [sic] against at least that

many times on, specifically, the

question of whether this Court had

lla

jurisdictional authority to hear and

decide this case.

Transcript, May 31, 1984.

A final monitor's report was submit-

ted in June 1985. On June 18, 1985, the

parties stipulated to termination of the

monitoring period.

1987-1990

In August 1987, the lower court re-

opened this case and appointed substitute

counsel to represent the inmate class in

light of indications that the appellants

had not complied with the final consent

decree. The appellants did not respond

to the reopening of the case. The appel-

lees then began discovery and renewed

monitoring the appellants' compliance

with the consent judgment.

In June 1988, after a hearing, the

12a

district court imposed sanctions on the

appellants for failure to comply with an

order to compel discovery and answer

interrogatories. The court also found

the appellants to be in noncompliance

with the final consent judgment = and

ordered a reinstitution of the formal

monitoring process for a period of one

year. The appellants neither sought

rehearing nor appealed this ruling.

1990 to Present

In January 1990, the appellees filed

a monitoring report, and, in February

1990, they filed a motion for an order

finding the appellants in noncompliance

with the consent judgment and é$ for

appointment of a special independent mas-

ter or monitor. The monitoring report

showed that the appellants failed to

13a

implement parole guidelines as required

by the consent decree.

In March 1990, the appellants filed

another motion to vacate the final con-

sent judgment and dismiss the action.

The appellants again asserted that the

court lacked jurisdiction to enter the

final order and that it was void as a

matter of law. The appellants' motion

sought, alternatively, to modify the con-

sent order to reflect the state statutory

changes that had occurred since the con-

sent decree was entered. The appellants

based their motion on Rule 60(b)(4), Fed.

me (19. 2, for leck of jurisdiction, and

Rule 60(b)(5), Fed. R. Civ. P., for modi-

fication of the consent judgment.

In May 1990, the district court

entered an order specifically finding

that it had jurisdiction and granting one

14a

modification to the consent decree in

order to comport with the timeliness

standards of Michigan Compiled Laws

Annotated (M.C.L.A.) § 791.235(1).1 The

court denied the appellants' motion to

vacate and dismiss the action. Although

it concluded that there was no liberty

interest in the right to parole under the

Michigan statute, the lower court found

that the inmates have a liberty interest

in the procedure. The court also ordered

continued monitoring for one year, and

thereafter appointed a U.S. Magistrate as

the special master/independent monitor.

Both parties filed motions for

rehearing, which were denied. Thereafter,

both parties appealed.

lfhe court denied the appellants' other

requests for modifications to the consent

decree.

15a

II. Jurisdiction

The appellants' issue on appeal is

whether the district court erred in deny-

ing their motion to vacate the consent

judgment pursuant to Rule 60(b)(4), Fed.

R. Civ. P., and to dismiss the action for

lack of subject matter jurisdiction. 2

The appellants argue that an inmate

confined in the Michigan prison system

does not have a constitutionally pro-

tected right to parole and that the con-

sent decree could not create such a

liberty interest. The appellants main-

tain that the district court acknowledged

that there was no protectible right to

parole and, therefore, erred by not vaca-

2The appellants do not appeal the dis-

trict court's denial of their other

requests for modifications to the consent

decree.

16a

ting the consent decree, since it no

longer had any basis to retain subject

matter jurisdiction. Without jurisdic-

tion, the consent judgment is void.

Futhermore, the appellants assert

that it was error for the district court

to impose procedures without first find-

ing that a right to parole was created by

the language of the Michigan parole

statute. The Court notes two errors in

this statement. First, the district

court did not impose procedures upon the

appellants. The district court merely

enforced the provisions of the consent

decree which the appellants voluntarily

entered into before they presented it to

17a

the court for its approval.3 Second, the

appellants continue to insist that the

liberty interest involved here is the

3The Supreme Court in Local No. 93, Int'l

Ass'n of Firefighters vw, (4

Cleveland, 478 U.S. 501, 522, 106 S.Ct.

3063, 3075, 92 L.Ed.2d 405, 423 (1986),

stated: "Indeed, it is the parties’

agreement that serves as the source of

the court's authority to enter any judg-

ment at all. ... More importantly, it is

the agreement of the parties, rather than

the force of the law upon which the com-

plaint was originally based, that creates

the obligations embodied ina consent

decree." (citations omitted).

—————

18a

right to parole. The lower court on

numerous occasions stated that the lib-

erty interest involved is not in the

right to parole, since none exists under

4The appellants cite two Michigan Court

of Appeals cases for the proposition that

the Michigan parole statutory-acheme does

not create a liberty interest. We find

both cases inapplicable. In Hurst v.

Dep't of Corrections Parole Bd., 1198

Mich. App. 25, 325 N.W.2d 615 (Mich. Ct.

App. 1982), the court concluded that the

early parole provision of the Michigan

statute created only an expectation or

hope of an early parole. Therefore, the

court held that the statute did not cre-

ate a right to parole. This is in accor-

dance with our current views; however, it

does not deal with a liberty interest in

state-created procedures, which is the

issue at hand. The court in Shields v.

Dep't of Corrections, 128 Mich. App.

380, ;340 N.W.2d 95 (Mich. Ct. App.

1983), ruled that the inmate who was pro-

vided with a parole hearing and informed

of the reasons for denial of parole was

afforded adequate due process. That case

is not applicable because there the state

adequately followed its procedures;

whereas in the present case, the district

court found the state to be in noncompli-

ance with its procedures on numerous

occasions.

19a

the Greenholtz rationale, infra, but in

the state-created procedures that make up

the parole decision-making process. This

is a fundamental element of this action,

which should not be further mischarac-

terized.

The Supreme Court in Greenholtz con-

cluded that a convicted person has no

inherent constitutional right to parole.

However, it stated that a court must Look

to the language of policies, statutes and

regulations of the state to determine

whether it has created any protectible

rights. Further, this is to be decided

on a case-by-case basis. 442 U.S. at

7-12, 99 S.Ct. at 2104-06, 60 L.Ed.2d at

675-79.

This was not a departure from its

earlier holdings, in which the Supreme

Court clearly ruled that protectible lib-

20a

erty interests may arise from. state-

created statutes, regulations, rules and

policies. See Wolff v. McDonnell, 418

U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935

(1974) (Nebraska law established liberty

interest in prisoners' good-time

credits); Board of Pardons v. Allen, 482

U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303

(1987) (Montana statute created a liberty

interest in parole); Vitek v. Jones, 445

U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552

(1980) (Nebraska statute conferred a pro-

tected interest in involuntary transfer

to state mental hospital); Hewitt v.

Helms, 459 U.S. 460, 103 S.Ct. 864, 74

L.Ed.2d 675 (1983) (Pennsylvania statu-

tory framework gave rise to a liberty

interest in remaining in the general

prison population). But see Meachum v.

Fano, 427 U.S. 215, 96 S.Ct. 2532, 49

21a a

L.Ed.2d 451 (1976) (Massachusetts law did

not create a protected liberty interest

in prison transfers); Kentucky Dep't of

Corrections v. Thompson, 490 U.S. 454,

109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)

(Kentucky regulations did not establish a

liberty interest in prison visitation).

The Sixth Circuit has followed the

Supreme Court's rationale and has also

recognized state-created interests pro-

tected by the Due Process Clause. See

Spruytte v. Walters, 753 F.2d 498 (6th

Cir. 1985), cert. denied, 474 U.S. 1054

(1986) (Michigan created a protected

interest in prisoners receiving non-

threatening books); Walker v. Hughes, 558

F.2d 1247 (6th Cir. 1977) (a federal

prison in Michigan had policy statements

that granted a liberty interest to pris-

oners in not having sanctions imposed on

22a

them except upon a finding of major mis-

conduct); Mayes v. Trammell, 751 F.2d 175

(6th Cir. 1984) (Tennessee's parole

scheme created a liberty interest pro-

tected by the Due Process’ Clause),

superseded sub. nom. Wright v. Trammel,

810 F.2d 589 (6th Cir. 1987) (subsequent

amendment of Tennessee's parole statute

mooted any liberty interest under the new

statute).

In the instant case in 1978, Judge

Feikens analyzed whether the State of

Michigan granted a protectible liberty

interest to inmates by mandating that the

Parole Board follow certain procedures in

the parole decision-making process. After

analyzing Michigan's parole statutes

(M.C.L.A. 791.232 et seq.) and MDOC

regulations, Judge Feikens found that

they created protectible constitutional

23a

claims in favor of the appellees. He

stated: "When, however, the state itself

provides by statute or regulations that

certain procedures be followed in deter-

mining whether or not an inmate is

entitled to parole, independent liberty

interests are created and the due process

clause requires certain minimum proce-

dures ‘to ensure that the state-created

right is not arbitrarily abrogated.'"

August 1978 opinion (cited Meachum v.

Fano and Wolff v. McDonnell, supra).

Judge Feikens also made clear that it

was the statutory procedures and Parole

Board regulations that created the lib-

erty interest, not the decision whether

to parole. He recognized that the Parole

Board, after following the required

procedures, reaches "its own conclusions

on the desirability of releasing such

24a

prisoner on parole by a majority vote.

M.C.L.A. 791.235."9

In sum, although the Parole Board may

have discretion in the eventual parole

decision, the state, through statutes and

regulations, has taken away any discre-

tion in parole procedures. Therefore,

the Michigan parole scheme is not wholly

discretionary -- it limits the Parole

Board's authority by requiring it to fol-

low certain procedures. See, e.g.,

Walker, 558 F.2d at 1253-54; Spruytte,

SWe note that the cases upon which Judge

Feikens relied in 1978 were the same

cases upon which the Supreme Court relied

for its decision in Greenholtz. Also, in

its post-1979 decisions, the district

court did not issue any opinions incon-

sistent with Greenholtz.

25a

753 F.2d at 507-08.6

The appellants also argue that fed-

eral courts do not have jurisdiction to

enforce procedures compelled or mandated

by state law where there exists an ade-

6In the hearing on this matter in 1990,

Judge Taylor stated: "It's true, as

defendants argue, that the release is a

discretionary matter with the Commission.

The pursuit of the appropriate proce-

dures, however, in making the release

determination is not discretionary, and

the prisoners do have a liberty interest

in that procedure being followed in each

of their cases." Transcript, April 23,

1990.

26a

quate available remedy under state law.’

This is a curious argument for several

reasons. The appellees are claiming a

violation of their due process rights

7additionally, the appellants have raised

an Eleventh Amendment defense to juris-

diction. The Eleventh Amendment prohib-

its a suit against a state when the state

is the real party in interest. The case

at hand seeks an injunction against state

officials in their official capacities.

The final consent decree is based on

state law only to the extent that the

state laws created a liberty interest

protected under the Due Process Clause of

the Fourteenth Amendment. The consent

decree is, in effect, an injunction

granting prospective relief to the inmate

class.

Relying upon Ex Parte Young, 209 U.S.

123, 28 S.Ct. 441, 52 L.Ed. 714 (1908),

and Edelman v. Jordan, 415 U.S. 651, 94

S.Ct. 1347, 39 L.Ed.2d 662 (1974), the

Sixth Circuit has held that state offi-

cials may be sued in their official

capacities for injunctive relief. Banas

v. Dempsey, 742 F.2d 277 (6th Cir. 1984),

aff'd, 474 U.S. 64 (1985); Freeman v.

Michigan Dep't of State, 808 F.2d 1174

(6th Cir. 1987).

Therefore, the Eleventh Amendment is

not a bar to the district court's juris-

diction over this action.

wd — |

27a

under the Constitution of the United

States. The Supreme Court has ruled that

a state-created liberty interest is

entitled to the protection of the federal

guarantee of due process. Vitek v. Jones,

445 U.S. at 490-91, 100 S.Ct. at 1262-63,

63 L.Ed.2d at 563-64 (1980), cited in

Bossetta-Goodman Vv. Datacom Systems

Corp., 644 F. Supp. 354, 358 (E.D. La.

1986), aff'd, 820 F.2d 1222 (1987).

Therefore, a district court has jurisdic-

tion to hear constitutional claims, such

as those raised by the inmate class in

the instant action.

Further, the remedy agreed to by both

parties and presented to the court for

its approval was the 1981 final consent

judgment. By entering into the consent

decree, the appellants waived their right

to litigate the issues. The appellants

28a

appear to be contradicting their original

position of voluntarily settling this

action with a consent decree in federal

court by now asserting that available

remedies existed under state law. In

essence, the appellants are objecting to

the enforcement of a remedy' they

selected. We find this argument

untenable.

A federal court has jurisdiction to

determine whether it has jurisdiction

over the subject matter of an action.

Chicot County Drainage Dist. v. Baxter

State Bank, 308 U.S. 371, 376-78, 60

S.Ct. 317, 319-20, 84 L.Ed. 329, 334

(1940); Stoll v. Gottlieb, 305 U.S. 165,

171-72, 59 S.Ct. 134, 137, 83 L.Ed. 104,

108 (1938). "The rule has been that a

court's determination that it has subject

matter jurisdiction is res judicata of

29a

the issue, if the jurisdictional question

actually was litigated and expressly

decided. . . . This is true even if the

court is mistaken in its decision." 13A

C. Wright, A. Miller & EE. Cooper,

Federal Practice and Procedure, § 3536

(1984) (citing Stoll v. Gottlieb, supra).

This rule also applies if a party had an

opportunity to contest subject matter

jurisdiction and failed to do so. Chicot

County, supra.

Although the doctrine of res judicata

is not applicable here, since this is not

a subsequent lawsuit, the district court

in 1981 entered a final order in which it

ruled that it had jurisdiction. Further-

more, the lack of subject matter juris-

~Giction was raised by the appellants in

their 1984 motion to vacate and was

rejected by the district court. In fact,

30a

the appellants' arguments on this appeal

are almost identical to those made in

1984. Yet, the appellants did not appeal

the 1984 judgment. They maintain that an

appeal would have been futile, since the

jurisdiction of the court was specifi-

cally tied to the duration of the moni-

toring period and there were only two

days left in the monitoring period when

the court denied the appellants' motion

to vacate. (On November 28, 1984, the

court denied the motion to vacate and

extended the monitoring period until

December 1984).

Certainly, the appellants' claims of

lack of jurisdiction have been considered

and specifically ruled upon by the dis-

trict court. The appellants did not

appeal or request rehearing of the

court's 1984 jurisdictional decision, nor

3la

did they appeal the reopening of the

action in 1987 or the 1988 finding of the

appellants' noncompliance with the con-

sent judgment.

Alternatively, the appellants assert

that, if the district court did have

jurisdiction over this action initially,

it lapsed with the end of the initial

monitoring period in June 1985. This is

because the 1981 consent judgment pro-

vided for jurisdiction only during the

monitoring period. However, “the court

has an independent duty to ensure that

the terms of the decree are effectuated

since an approved consent decree is not

merely a compact between former litigants

but is a court order." 10 Cyclopedia of

Federal Procedure, § 35.25 at 294 (3d ed.

1984) (citing Stotts v. Memphis Fire

Dep't, 679 F.2d 541 (6th Cir. 1982),

32a

rev'd on other grounds sub. nom.

Firefighters Local Union No. 1784 Vv.

Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81

L.Ed.2d 483 (1984)).

We have held that a case governed by

a consent decree should not be closed

when there are pending claims that the

defendants have violated the decree.

United States v. City of Cincinnati, 771

F.2d 161, 168-69 (6th Cir. 1985), cited

in Youngblood v. Dalzell, 925 F.2d 954,

958 (6th Cir. 1991). Furthermore, the

Supreme Court recently has held in an

institutional reform action that’ the

proper standard for deciding whether to

dissolve a consent decree in a_ school

desegregation case is whether the school

district has complied in good faith with

the decree since it was entered. The

Court stated that the desegregation

33a

decree at issue was not intended to rule

in perpetuity, but was intended as a tem-

porary measure to remedy past discrimina-

tion. Board of Educ. of Okla. City

Public Schools v. Dowell, 498 U.S. P

111 S.Ct. 630, 636-38, 112 L.Ed.2d 715,

727-30 (1991).

In the district court's August 1987

Order substituting counsel and reopening

the action, the court ordered the

appellees' substituted counsel to take

all appropriate action, including

reinstituting the monitoring period,

required to enforce the court's consent

judgment and to assure that the relief

ordered by the court is provided for the

inmate class. This order was brought

about by a petition to enforce the judg-

ment filed by a member of the inmate

Class, as well as dozens of letters from

on)

34a

Michigan inmates to the court alleging

denials of due process as a result of the

Parole Board's continued noncompliance

with the 1981 consent judgment.

Although paragraph VIII(L) of the

final consent decree sets a standard to

govern termination of judicial supervi-

Sion by tying it to the ,monitoring

period, it was not error to reopen the

action in light of claims that the appel-

lants were violating the decree. Follow-

ing Dowell, it is clear that the instant

decree was not intended to operate in

poepeeaite, but that it is to be dis-

solved after the appellants have complied

with it for a reasonable period of time.

Id. Given the Supreme Court's recent

guidance on this issue and the evidence

in the record that the terms and purposes

of the consent decree were not being met,

35a

we are persuaded that judicial supervi-

sion was appropriate at that point.

It should be noted that this action

was fully litigated in the district

court. The parties voluntarily entered

into a consent judgment to settle the

action, and the court approved it.

Consent judgments by their nature include

compromises allowed by both parties,

including waiving the right to litigate

all the issues.8 MTherefore, the court

never passed on the full merits of the

action. However, the court did rule at

the threshold that it had jurisdiction

over the appellees' asserted constitu-

tional claims. Thus, whether the appel-

8For a more extensive discussion of con-

sent decrees, see United States v. Armour

S Co., 402 U.8. 673, 93 3.Ge-. Asn, 29

L.Ed. 256 (1971).

36a

lees' claims would have withstood an

adjudication on the merits is unknown.9

As the Supreme Court stated in

Greenholtz, it is to be determined on a

case-by-case basis.

Federal Rule of Civil Procedure

60(b)(4) provides: "On motion and upon

such terms as are just, the court may

relieve a party or a party's legal repre-

sentative from a final judgment, order,

Or proceeding for the following reasons:

(4) the judgment is void." However,

"a judgment is not void merely because it

SAS Justi@e Cardozo stated in United

States _v. Swift & Co., 286 U.S. 106,

116-17, 52 S.Ct. 460, 463, 76 L.Ed. 999,

1007 (1932): "We do not turn aside to

inquire whether [these claims] could have

been opposed with success if the defen-

dants had offered opposition. Instead,

they chose to consent, and the injunc-

tion, right or wrong, became the judgment

of the court."

37a

is erroneous. It is void only if the

court that rendered it lacked jurisdic-

See oem mumrect «€6©meltter . lwtiw;wté«Ct

United States v. Manos, 56 F.R.D. 655,

659 (S.D. Ohio 1972), cited in 11 C.

Wright & A. Miller, Federal Practice and

Procedure § 2862 (1973); cf. Stoll, 305

U.S. at 171-72. "(I]Jf a court has the

general power to adjudicate the issues in

the class of suits to which the case

belongs, then its interim orders and

final judgments, whether right or wrong,

are not subject to collateral attack so

far as jurisdiction over the subject mat-

ter is concerned." 7 Moore's’ Federal

Practice § 60.25[2] (discussing Rule

60(b)) (citing United States v. United

Mine Workers of America, 330 U.S. 258,

289-94, 67 S.Ct. 677, 694-96, 91 L.Ed.

884, 911-13 (1947); Carter v. United

38a

States, 135 F.2d 858, 861 (5th Cir.

.1943)).—

Here, the district court ab initio

had subject matter jurisdiction to review

asserted constitutional due process

Claims. Therefore, Rule 60(b)(4) is not

applicable to void the consent judgment.

Accordingly, we affirm the district

court's denial of the appellants' motion

to vacate the consent decree and dismiss

the action.

III. Modification

The appellees' issue on appeal is

whether the district court erred by modi-

fying a timeliness provision of the con-

sent decree from "at least ninety days"

to "at least thirty days," purportedly to

comply with state law.

The final consent judgment originally

39a

contained a provision that "[a]ll initial

parole hearings shall be held at least

ninety (90) days before a prisoner's ear-

liest possible release date," with one

exception. (Final consent judgment,

§ III(B)). The consent judgment states

the purpose of the timeliness section:

"A fairly administered parole process

requires prompt hearings, prompt deci-

sions, and prompt implementation of those

decisions." (Final consent judgment,

§ III(A)). Implicit in the fact that

both parties consented to this provision

is that the ninety-day provision was nec-

essary to avoid untimely decisions and

releases. The appellees state that the

provision was included to allow the

Parole Board time to decide whether to

parole, and then implement any releases

by the parole eligibility date. In other

40a

words, one of the purposes of the decree

is to release prisoners on time.

The modification changed the timeli-

ness provision at § III(B) of the consent

judgment to read identically to M.C.L.A.

§ 791.235(1). That statute provides that

the Parole Board hearing shall be con-

ducted at least one month before the ear-

liest release date.

Judge Taylor based her modification

decision upon this analysis: "So the

Court is not justified in requiring that

a hearing be held before the _ statute

requires it to be held, and I must move

the hearing requirement up to match the

statutory requirement, and all time

requirements must be identical to those

of the statute." Transcript, April 23,

1990 (emphasis added). The court relied

upon unidentified Supreme Court cases

41a

since 198119 in reasoning that, since the

liberty interest involved is in the

statutory procedure and not the release

date, the decree should conform to the

statutory procedure. Id.

Therefore, the court granted the one

timeliness modification and rejected the

other requested modifications. At the

same time, the court found the appellants

in noncompliance with the decree and

appointed a special master to monitor the

appellants' actions.

The appellants' motion for modifica-

tion was based upon Rule 60(b)(5), Fed.

R. Civ. P., which provides:

On motion and upon such terms as are

just, the court may relieve a party

Or a party's legal representative

from a final judgment, order, or pro-

10We are unable to determine the origin

of this reasoning or point to any Supreme -

Court cases for guidance. :

42a

ceeding for the following reasons:

- « - (5) ‘the judgment has_ been

satisfied, released, or discharged,

Or a prior judgment upon which it is

based has been reversed or otherwise

vacated, or it is no longer equitable

that the judgment should have pro-

spective application.

The Sixth Circuit set forth standards

for a Rule 60(b) modification of a con-

sent judgment in Stotts v. Memphis Fire

Dep't, 679 F.2d 541, 560-62 (6th Cir.

.1982), rev'd on other grounds sub. nom.

Firefighters Local Union No. 1784 v.

Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81

L.Ed.2d 483 (1984). Those standards

allow modification (1) when done in

accordance with basic principles of con-

tract law; (2) when the decree is void or

no longer equitable; (3) when the circum-

stances of the case change; or (4) when a

better appreciation of the facts in the

light of experience indicates that the

— |

43a

decree is not properly adapted to accom-

plishing its purposes.

The appellees assert that none of

these standards were demonstrated by the

appellants or found by the court below.

The standard of review of a court's rul-

ing on a Rule 60(b) motion is abuse of

discretion. Stotts, 679 F.2d at 561;

Akers v. Ohio Dep't of Liquor Control,

902 F.2d 477, 479 (6th Cir. 1990).

Changed circumstances may include

either a change of fact or a change of

law. System Fed'n No. 91, Railway

Employees Dep't v. Wright, 364 U.S. 642,

646-47, 81 S.Ct. 368, 371, 5 L.Ed.2d 349,

353 (1961); Local Number 93, Int'l Ass'n

of Firefighters v. City of Cleveland, 478

U.S. S01. S27, i106 &.Ct. 3063, 3076, 32

L.Ed.2d 405, 426 (1986). In the present

case, the appellants argued that there

44a

had been a change in the Michigan statute

concerning the timeliness’ provision.

They also argued changed circumstances as

a result of the 1982 amendments to the

state parole statutes. We recognize that

significant changes were made to the

Michigan parole statutes in 1982, subse-

quent to the entry of the instant consent

decree.11 However, we take notice that the

statute in question, M.C.L.A. 791.235(1),

was not amended subsequent to the entry

of the consent decree. In fact, the dis-

trict court in 1984 denied this same

request for modification. However, even

though the statute was exactly the same

llwe understand that the parole statutory

changes made since 1981 were designed to

streamline the parole decision-making

process and promote efficiency, which is

consistent with the purpose of the con-

sent judgment. See plaintiffs' monitor-

ing report at 33-36.

45a

in 1981 as it was in 1990, the district

court granted a modification of the con-

sent judgment to make it identical to the

statute.

One of the first and most widely

accepted standards for modifying consent

decrees was set forth by the Supreme

Court in United States v. Swift & Co.,

286 U.S. 106, 119, 52 S.Ct. 460, 464, 76

L.Ed. 999, 1008 (1932). This was a com-

mercial case in which Justice Cardozo

stated: "Nothing less than a clear show-

ing of grievious wrong evoked by new and

unforeseen conditions should lead us to

change what was decreed after years of

litigation with the consent of all

concerned." Id.

| However, we have held that consent

decrees relating to institutions are

"fundamentally different" from those

46a

between private parties. Heath v.

DeCourcy, 888 F.2d 1105, 1109 (6th Cir.

1989). This is because these types of

decrees "reach beyond the parties

involved directly in the suit and impact

on the public's right to the sound and

efficient operation of its institutions.

Broader judicial discretion to modify the

parties' agreement is required so that

the agreed upon solution to the problem

giving rise to the litigation may be

fine-tuned to accomplish its goal." Id.

Therefore, in the context of institu-

tional reform litigation, such as the

instant action, the standard for modifi-

cation pursuant to Rule 60(b) is more

relaxed. In Heath, we articulated the

standard as follows:

[T)he court need only identify a

defect or deficiency in its original

decree which impedes achieving its

goal, either because experience has

47a

proven it less effective, disadvanta-

geous, or because circumstances and

conditions have changed which warrant

fine-tuning the decree. A modifica-

tion will be upheld if it furthers

the original purpose of the decree in

a more efficient way, without upset-

ting the basic agreement between the

parties.

Id. at 1110.

However, even applying the more

relaxed standard to this institutional

action, the district court did not have

sufficient reason for granting the modi-

fication. Certainly, state law regarding

the timeliness of initial parole hearings

had not changed. Furthermore, the "at

least ninety days" language in the con-

sent decree met the statute's "at least

one month" requirement. The statute does

not limit the timing of hearings to no

more than thirty days prior to the earli-

est release date; rather, it requires

48a

that hearings be held "at least one

month" prior to that date. Although

broader in scope than the statute, the

Original decree did not violate the

statute. Therefore, the consent decree

and the state statute were not in

conflict.

The Supreme Court has held that a

federal court may enter a consent decree

that provides broader relief than the

court could have awarded after a trial,

as long as the decree does not conflict

with or violate the statute upon which it

is based. City of Cleveland, 478 U.S. at

524-28, 106 S.Ct. at 3076-78, 92 L.Ed.2d

at 425-27. The Court distinguished two

earlier cases, System Fed'n No. 91,

Railway Employees Dep't v. Wright and

Firefighters Local Union No. 1784 v.

Stotts, supra, on the basis that in each

————————e———eEEe

49a

there was a conflict between the judicial

decree and the underlying statute. City

of Cleveland, 478 U.S. at 524-28, 106

S.Ct. at 3076-78, 92 L.Ed.2d at 425-27.

Therefore, a consent judgment may be

entered and enforced where it provides

relief broader than the specific language

of the statute at issue.

Consistent with this analysis, the

Supreme Court in Firefighters Local Union

No. 1784 stated:

It is to be recalled that the "scope

of a consent decree must be discerned

within its four corners, and not by

reference to what might satisfy the

purposes of one of the parties to it"

or by what "might have been written

had the plaintiff established his

factual claims and legal theories in

litigation."

467 U.S. at 574, 104 S.Ct. at 2585, 81

L.Ed.2d at 496 (quoting United States v.

Armour & Co., 402 U.S. 673, 681-82, 91

50a

S.Ct. 1752, 2757, 29 &.8€.2a 256, 263

(1971)).

Moreover, given the lower court's

finding of noncompliance by the appel-

lants, it is apparent that the purpose of

the consent judgment and the continuing

need for it have not abated. It is evi-

dent from the court's statements made

during the hearing on this matter (see

supra) that the court thought it com-

pelled to modify the consent decree. It

is in this respect that we hold the dis-

trict court erred. Without a conflict

between state law and the consent judg-

ment, the court was not compelled to

modify the decree. Therefore, we reject

the district court's reasoning upon which

the decision to modify was based.

In sum, there has been no change in

the statutory timeliness ~-requirement

51a

regarding initial parole hearings since

the consent decree was entered. Nor is

the original purpose of the decree's

timeliness requirements (to make the

parole system work fairly and promptly)

furthered in a more efficient way by the

modification. In light of the preceding,

there was no justification or sufficient

basis for the lower court to grant a

modification. Accordingly, we hold that

the district court abused its discretion,

and we reverse.

IV. Conclusion

For the foregoing reasons, the judg-

ment of the district court is AFFIRMED in

part and REVERSED in part. We REMAND the

action to the district court for such

further relief or other orders as may be

appropriate, pending a showing of compli-

52a

ance for a reasonable period of time with

the terms of the final consent decree.

At a reasonable time after the objectives

of the consent decree have been achieved,

the parties may move the court, on due

notice, for dissolution of the decree.

DAVID A. NELSON, Circuit Judge, con-

curring. I concur in the judgment and in

all but Part II of the court's opinion.

The district court's power to grant

injunctive relief in this case was, at

the outset, problematic. The complaint

was drafted on the theory that the defen-

dant officials were depriving parole-

eligible inmates of "liberty" without due

process of law, a circumstance that would

have justified the granting of redress

under 42 U.S.C. § 1983. The problem was

that neither state law nor federal law

53a

created any substantive right to the

"liberty" that release on parole would

represent. The district court tried to

circumvent the problem, as _ has_ been

noted, by holding that when the state

required "that certain procedures be fol-

lowed in determining whether or not an

inmate is entitled to parole, independent

liberty interests are created...." In

the light of subsequent case law, it is

safe to say that this analysis was almost

certainly incorrect.

A state creates a protected liberty

interest, as we now know, "by placing

substantive limitations on official

discretion." Olim v. Wakinekona, 461

U.S. 238, 249 (1983) (emphasis supplied).

If state law requires officials to follow

a prescribed procedure in exercising

their discretion, it may well give rise

54a

to rights enforceable in a state court,

but it does not, by itself, create any

constitutionally protected "liberty

interest" a deprivation of which can be

redressed in federal court. "[A]Jn expec-

tation of receiving [a particular kind

of) process is not, without more, a lib-

erty interest protected by the Due

Process Clause." Id. at 250, n. 12 Cf.

Inmates of Orient Correctional Institute

v. Ohio State Adult Parole Authority, 929

F.20 233, 237 (6th Cie. T9820}.

It is probably unfortunate that this

case was permitted to go forward in a

federal court. The defendants having

accepted the federal court consent decree

without reservation, however, I agree

that the challenge to the court's juris-

diction comes too late.

The parties to a lawsuit cannot con-

55a

fer subject matter jurisdiction on a

court by agreement, of course, but this

does not preclude the compromise of

legitimate and substantial legal ques-

tions. It would not have been fanciful,

a decade ago, to think that a federal

court could exercise jurisdiction over

the case at bar -- and the defendants

chose to enter into a compromise under

which the plaintiffs agreed to terms that

the defendants thought they could live

with, while the defendants acceded to the

notion that the district court had

jurisdiction. The defendants having

thrown in the towel on the jurisdictional

issue then, I am not persuaded that they

must be allowed to retrieve the towel

now.

I fully endorse this court's sugges-

tion that the consent decree should be

56a

dissolved once its objectives have been

achieved. Mindful of the fact that it

would have been preferable to let the

state courts of Michigan handle enforce-

ment of Michigan's procedural rules for

dealing with the release of Michigan

prisoners on parole, I venture to express

the hope that dissolution of the decree

will come sooner rather than later.

57a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES ANTHONY SWEETON, et al.

Plaintiffs, Civil No. 77-72230

vs. HON. ANNA DIGGS TAYLOR

ROBERT BROWN, JR., et al.

Defendants.

ORDER

At a session of said Court

held in the City of Detroit,

Michigan on this _ day of

May 24, 1990.

PRESENT: THE HONORABLE ANNA DIGGS

TAYLOR, U.S. DISTRICT JUDGE

Plaintiffs' having filed a Monitoring

Report dated January 31, 1990 and a

Motion for Order Finding Defendants in

Non-Compliance With the Consent Judgment

and for Appointment of a Special Indepen-

dent Master or Monitor and Other Appro-

58a

priate Relief dated February 2, 1990, and

Defendants having filed a Motion to

Dismiss dated March 16, 1990, and this

Court having reviewed the pleadings and

heard oral argument on April 23, 1990, IT

IS HEREBY ORDERED THAT

1. Defendants' Motion to Dismiss

based upon the lack of jurisdiction of

this Court is hereby denied;

2. Relief requested by Defendants is

granted in part. Sec. III (B) of the

Consent Judgment providing that all hear-

ings shall take place within ninety days

of the first earliest release date is

modified to require that the initial

parole interview shall be held at least

thirty days prior to the earliest release

date consistent with MCLA Sec.

791.235(1);

ve Plaintiffs' Motion for Order

59a

Finding Defendants' In Non-Compliance

with the Consent Judgment is granted with

the following specific relief:

A. Monitoring of compliance with the

Consent Judgment will continue for twelve

months from the entry of this Order in

the manner set forth in the Consent

Judgment or as otherwise further ordered

by this Court;

B. All parole cases, hearings, deci-

sions and orders processed by the defen-

dants shall be included in the data

compilations and summaries for monitoring

to determine compliance with the Consent

Judgment's timeliness requirements;

Cc. Based upon the stipulation of

Plaintiffs, parole reviews and decisions

without hearings shall be included in the

data compilations concerning timeliness

as set forth in the Consent Judgment;

60a

D. Parole guidelines shall be imple-

mented and compliance with the Consent

Judgment shall be reached within the mon-

itoring period described above;

E. Plaintiffs’ request for a special

master/independent monitor is hereby

granted. The duties of said individual

shall be to monitor compliance, ascertain

compliance problems and to develop, draft

and assist in the implementation of the

parole guidelines within the monitoring

period. If the parties are unable to

agree to an individual to serve as a spe-

cial master/independent monitor, the par-

ties shall have five days from the entry

of this Order to submit the names anc

background information of three individu-

als whom they wish appointed by the

Court.

IT IS SO ORDERED.

6la

/s/

HON. ANNA DIGGS TAYLOR

Approved as to form: -

MARTIN A. GEER

Attorney for Plaintiffs

THOMAS KULICK

Assistant Attorney General

Attorney for Defendants

62a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES ANTHONY SWEETON,

OSCAR PARTEE, AND JAMES

SIKON, Individually and On

Behalf of All Other Persons

Similarly Situated,

Plaintiffs, No. 77-72230

Hon. Anna Diggs

Taylor

PERRY JOHNSON, Director of the

Michigan Department of Correc-

tions; LEONARD MCCONNEL,

Chairman of the Parole Board

of the State of Michigan;

GORDON FULLER, HOWARD GROSSMAN,

HONDON HARGROVE, DONALD

THURSTON, DELORES TRIPP, and

EDWARD TURNER-Members of the

Parole Board of the State of

Michigan,

Defendants.

FINAL ORDER: CONSOLIDATION OF

OPINION, ORDER, AND CONSENT

JUDGMENTS

Resolution of the contested issues in

Sweeton v.

Johnson has been through two

63a

Partial Consent Judgments agreed upon by

the parties and approved by the Court,

and by an Opinion and Order of the Court

on issues not included in the consent

judgments. Specifically, the Court has

entered judgments through the following

steps:

1. Stipulation to the Entry of a Partial

Consent Judgment, June 11, 1980.

2. Stipulation to the Modification and

Entry of a Partial Consent Judgment,

December 16, 1980.

3. Final Partial Consent Judgment

(combining the Stipulations of June

11, 1980, and December 16, 1980),

December 29, 1980).

4. Memorandum Opinion and Order, March

31, 1981.

This Final Order is a consolidation

of the above documents.

It is hereby ordered that:

64a

I. GENERAL

A. Pursuant to the statutes, rules,

and policies which establish, define, and

regulate the parole process, this process

should be administered in an effective

and fair manner, and afford each prisoner

the rights to which he or she is

entitled.

B. This Final Order is not intended

to constitute an admission of Ytebiliee

by Defendants on those issues resolved by

the Consent Judgments of June 11, 1980,

and December 16, 1980.

II. INFORMATION

A. It is desirable that prisoners

understand the parole process and their

rights within this process. Prisoners

will be provided information concerning

65a

the parole process in order to permit

them to participate more fully in the

process and to more actively and respon-

sibly plan for their futures.

B. The issuance of a parole informa-

tion booklet will serve to increase this

understanding.

Cc. Following are aspects of the

parole information booklet:

1. The copy of the text of the parole

information booklet is attached. See

Attachment I. It shall be the

responsibility of the Michigan

Department of Corrections ("MDOC") to

publish and distribute the booklet.

See Section XI.

2. Included in the parole information

booklet will be specific information

about how to obtain access to a

prisoner's file.

66a

3. The parole information booklet shall

be periodically updated to reflect

changes in MDOC policy, and will be

distributed to prisoners within 90

days after the approval of the change

in policy by the Corrections Commis-

sion. For a period of 30 months

after the signing of this Consent

Judgment, any modification will be

made with the advice and consent of

Plaintiffs.

D. At the time that a prisoner's

Parole Eligibility Report (PER) is pre-

pared, the prisoner has the right to list

individual(s) he or she does not want to

act as spokesperson. The prisoner also

has the right to add other names to this

list subsequent to the preparation of the

PER.

E. 1. No Resident Unit Manager

67a

who has in the past written

a negative PER about an

inmate, or has been the

subject of a lawsuit by him

or her, shall prepare that

inmate's PER if the inmate

objects to the RUM prepar-

ing the PER.

If the entire Resident Unit

Staff would be disqualified

from preparing a rER under

this section, then the

available staff may prepare

the PER.

Resident Unit Staff prepar-

ing a PER under the circum-

stances outlined in Section

2 shall not include a

parole release recommenda-

tion in the PER unless such

68a

a recommendation is

requested by the inmate.

The Parole Recommendation

Statement shall read:

"The PER preparer offers no

recommendation for Or

against parole."

P. MDOC policy will be amended to

reflect this agreement aS soon as

possible, consistent with provisions of

the Michigan Administrative Procedures

Act (APA).

III. TIMELINESS

A. A fairly administered parole

process requires prompt hearings, prompt

decisions, and prompt implementation of

those decisions.

B. All initial parole hearings shall

be held at least ninety (90) days before

69a

a prisoner's earliest possible release

date, except for those prisoners in com-

munity status programs. In those cases,

hearings shall be held at least thirty

(30) days before the earliest possible

release date.

C. The PER will be prepared at least

ninety (90) days in advance of the offi-

Cial date on all twelve (12) month

continuances.

D. Whenever it appears that a timely

hearing has not been scheduled or held,

for whatever reason, a hearing shall be

held within forty-five (45) days of the

date that the information concerning the

missed hearing is received by the Parole

Board.

E. If, for any reason, a parole

hearing is not held in a timely manner,

and the prisoner is subsequently con-

70a

tinued, then the date set for that

prisoner's next parole hearing shall be

set as if the original hearing had been

held in a timely manner.

F. Whenever a rehearing is required

by policy, that rehearing will be sched-

uled within 45 days of the date of the

receipt of the new information by the

Board.

In all cases, the notice provided to

the inmate shall contain a statement of

the reasons for the rehearing, and the

inmate shall be provided with a copy (or

a summary, if ‘the Original material is

exempt from disclosure) of any new evi-

dence upon which a rehearing is based.

An inmate shall have the option of

waiving notice and/or receipt of copies

of new materials or evidence prior to a

rehearing in cases where an immediate

71a

rehearing can be scheduled in a period of

time shorter than that necessary to pro-

vide notice or obtain copies of the new

material, but such waiver shall not pre-

vent a prisoner from subsequently obtain-

ing such materials and/or evidence (or a

summary, if the original material is

exempt from disclosure).

G. Deferrals to secure additional

information are to be avoided.

H. Policy Directive PD-DWA-45.11,

which deals with Parole Eligibility

Reports (PER), will be modified to

reflect that all renoete required pursu-

ant to a policy directive shall _ be

requested by the PER preparer at the time

the PER is being prepared. PD-DWA-45.11

shall further make the PER preparer

responsible for monitoring requests for

such reports to insure their timely

72a

receipt and placement in an inmate's file

prior to the parole hearing. A check-box

list shall be developed to aid the PER

preparer in making and monitoring these

requests.

Policy will be modified to require

the PER preparer to request additional

reports in the circumstances described in

Attachment II.

For any report ordered by the

Parole Board at a hearing, the following

deadlines shall prevail:

In cases where the report originates

within the MDOC, the report shall be pre-

pared and communicated to the Parole

Board within thirty (30) days of the

hearing. In cases involving the securing

and obtaining of Psychological Reports,

the report shall be prepared and communi-

cated to the Parole Board within forty-

73a

five (45) days of the hearing. It shall

be the responsibility of the MDOC

Director's Office to see that all bureaus

and offices comply with this deadline.

In cases where the report is from

non-MDOC sources, the Parole Board shall

request that it be furnished within

thirty (30) days of the prisoner's hear-

ing date.

In all cases, should the report not

be received by the Parole Board within

thirty (30) days, the Parole Board shall

communicate with the source of the report

and remind them to submit the report.

J. Whenever a "No Fixed Date"

("NFD") release is ordered, it shall be

the responsibility of the MDOC to imple-

ment that release within thirty (30)

days.

K. A prisoner may inform the Parole

74a

Board of its failure to meet a timeliness

requirement concerning scheduling a

hearing, reporting the final decision

from a hearing, or carrying out an

ordered release, by sending the Depart-

ment a Parole Reminder Form, Attachment

Et: These forms shall be made readily

available to all prisoners in their hous-

ing units.

1. In the event that the Parole Board

discovers that a hearing has not been

held in a timely manner, then the

provisions of Section III-D_ shall

shall control.

2. In the event that the Parole Board

discovers that a final decision has

not been timely made, then the Board

shall report a final decision within

20 days of the date the Parole

Reminder Form is received by the

75a

Parole Board.

3. In the event that the Parole Board

discovers that a timely release has

not been effected, the Board shall

act with Michigan Department. of

Corrections to effect release within

twenty (20) days of the date the

Parole Reminder Form is received by

the Parole Board.

L. A final decision to parole or

continue an inmate shall be reached by

the Board and communicated to the inmate

at least thirty (30) days before the

inmate's minimum release date or official

date, except for those inmates in commu-

nity programs. In community program

cases, every effort will be made to

inform the inmate of a final decision at

the time of hearing. However, if the

Board is unable to reach a final decision

76a

at the time of hearing for a community

program inmate, a final decision to

parole or continue parole _ shall _ be

reached and communicated to the inmate

before the inmate's minimum release date

or official date.

M. The MDOC and the Parole Board

shall be deemed to be in substantial com-

pliance with each segment of the timeli-

ness deadiines of Section III unless it

appears that these timeliness provisions

are violated in over 5% of the cases

before the Board for that segment. Sec-

tion III M of this agreement is not

intended to relieve the MDOC from its

responsibility to remedy timeliness

errors in individual parole’ release

cases.

N. MDOC policy will be modified to

reflect this agreement as soon as possi-

77a

ble consistent with the provisions of the

Michigan APA.

IV. REHEARINGS

A. Whenever the Board receives any

communication concerning a prisoner after

a Board action, and that information is

considered in the Board's decision to

continue a prisoner, or to suspend a

decision of the Board granting parole, or

in any other decision by the Board which

will delay the inmate's release on parole

over 45 days, the prisoner shall be enti-

tled to a rehearing within forty-five

(45) days from the date the _ Board

receives the information. This rehearing

shall be scheduled by the Board, without

the necessity of request by the prisoner.

The prisoner shall receive notice of this

rehearing in accordance with the proce-

78a

dure in Section III F of this agreement.

B. Whenever an inmate grieves an

action or procedure of the Board, and

that grievance is upheld, then, within

forty-five (45) days of the grievance

decision, that decision shall be

implemented.

C. MDOC policy will be modified to

reflect this agreement as soon as possi-

ble consistent with the Michigan APA.

V. FACTORS AND CRITERIA

A. The fair administration of the

parole process requires that the Parole

Board shall disclose to an inmate the

reasons for any denial of parole and that

whenever possible, the Board shall inform

the inmate of actions he or she can take

to advance his or her chances for a

future parole.

79a

B. The Parole Board shall be guided

by the following principles in making

parole release decisions:

A prisoner will be granted a parole

upon the expiration of his minimum

sentence, less regular and special

good time where applicable, unless a

majority of the Board’ reasonably

believes that this release on parole

would constitute a menace to society

or to the public safety. The Parole

Board's decision to grant or deny

parole is subject to the conditions

set forth in sub-paragraph 4, below.

Institutional misconduct will be con-

sidered in making a parole release

decision only when the misconduct

reasonably reflects an expectation

that the prisoner will be a menace to

society or to the public safety.

80a

3. Until such time as the criteria

referred to in Section V C are

developed, the Parole Board. shall

utilize the factors set forth in

Administrative Rule 715 (R791-7715)

in making their decision whether to

grant or deny a parole. Factors

relied upon will be indicated in the

statement setting forth the reason(s)

for denial of parole.

4. Nothing herein is intended to alter,

modify, divest, or otherwise limit

the rights and duties which the

Legislature has provided to the

Parole Board within the parole

decision-making process.

C. The MDOC shall develop objective

criteria to assist Parole Board members

in determining whether an individual is a

threat to society. Plaintiffs will be

8la

permitted to assist the MDOC by providing

input in the development of these factors

and will be kept informed of the factor

development process.

D. In developing these criteria, the

Parole Board shall, to the greatest

extent possible, rely on factors within

the control of the inmate.

E. In notifying an inmate that

parole is denied, the Board shall, in

specific, objective language, inform the

inmate of the reasons for that denial.

Mere repetition of the explanation con-

tained in the Parole Board Action Summary

Number Code does not constitute an ade-

quate statement of reasons for the denial

of parole.

F. When notifying an inmate that

parole is denied, the Board shall, when-

ever possible, provide the inmate with

82a

Suggested actions which will enhance or

ensure the chance of a future parole.

G. MDOC policy will be modified to

reflect this agreement as soon as possi-

ble consistent with the Michigan APA.

H. The Board shall discuss’ the

nature and circumstances of the crime or

crimes with the inmate at the initial

parole release interview.

VI. THE ROLE OF THE RESIDENT UNIT

STAFF IN THE PAROLE PROCESS

A. Resident Unit Staff will be of

assistance to inmates in the parole proc-

ess by explaining the process to inmates

and by assisting inmates in solving prob-

lems in that process.

B. Resident Unit Staff will have the

following responsibilities in the parole

process:

83a

1. Explaining the parole process’ to

prisoners.

2. Detecting and correcting errors in

parole procedures and in records.

3. Discussing the parole hearing with

the prisoner, and presenting informa-

tion to the Board for or with the

inmate upon request of the inmate.

4. Preparing and distributing the Parole

Eligibility Report (PER), and assur-

ing that all relevant policy-required

documents are included in the

prisoner's file.

C. In order to assist Resident Unit

Staff in carrying out their responsibli-

ties as spokespersons, additional staff

training will be provided. This training

will be developed by Defendants, with the

advice and assistance of Plaintiffs.

This training will include material on

84a

the following topics:

Explanation of parole and good-time.

An overview of the parole hearing

process.

An explanation of the role of the

Resident Unit Staff in the parole

process.

Training on how to prepare a PER.

Training concerning ordering ~= and

obtaining necessary reports.

Training concerning correcting errors

in inmates' files.

Training on the spokesperson's role

at a parole release hearing.

Training on counseling inmates and on

commonly raised questions about

parole.

Training in the use of the Parole

Reminder Form and the Parole Board

Inquiry Form.

85a

D. Defendants, with the advice and

assistance of Plaintiffs, will develop

policy directives or memoranda necessary

to instruct ongoing Resident Unit Staff

in their responsibilities in the parole

process.

E. The training described in para-

graph C above, will be included in the

Department's Resident Unit Staff new

staff orientation and training program.

Defendants will provide adequate time to

parole training in this program. The

parties anticipate that approximately

eight hours will be necessary for this

training. |

F. Whenever possible, ongoing

Resident Unit Staff shall be included in

the parole process training program pro-

vided for new staff.

G. Whenever possible, Defendants

will provide parole process training to

ongoing staff through staff meetings or

education sessions, in addition to the

instructional memoranda described in par

aqgraph D above.

H. MDOC policy will be modified to

reflect this agreement as soon as possi

ble consistent with the Michigan APA.

VII. PRISONERS SENTENCED

TO LIFE IMPRISONMENT

A. Each inmate sentenced to life

imprisonment and within the scope of

M.C.L.A. §791.234(4) shall be brought

efore the Board for a parole release

hearing as soon as is feasible after the

inmate has served seven calendar years on

his sentence. The inmate shall be re-

interviewed by the Board at no greater

than 36-month intervals after the initial

BIA

parole hearing.

B. All other provisions of MUOl gel

Iiey relating to parole release shai)

apply to inmates considered under nis

bay Rach inmate sentenced %* 11 Fe

Imprisonment for whom pardon ur curr .* a

tion is necessary for release Frue or,

finement shall have A miblir nearing

within a reasonable time, not %“% exuees

Se Ta es 4 4ae .

90 days, following the recommendation for

pardon by the Parole Board.

VIII. ENFOPCEMEN AMD MOMITUR INS

Ss ; ;

r ra vy +r ra - ne ren , ~-

A. Ada Gr 7&1 - <A 24e2TeCt and ~re*s/er -

7 rrnre in ~r a -- -wrre ~=-

procedural errors in the parcle srscess

4 4 4 . * mae ~~=s

mechanisms must be develcssced <«=s sAiter

that rocess The mwrtm arr rotr rr atm: 1 + &

= pr — . ~ ee Ye ~- —~-— £ i

‘@)

a |

DvD

)

‘|

a |

| id

ii.

uv)

ii.

88a

rests with the MDOC, through its Direc-

tor's office. To assure compliance with

the specific mandates of this Order,

Defendants will make relevant MDOC

records available to Plaintiffs, includ-

ing any non-exempt records of selected

inmates' files.

B. All administrative rules, policy

directives, memoranda, and other docu-

ments containing statements of general

application to the parole process shall

be provided to Plaintiffs. Plaintiffs

shall object to any policy or rule of

general application inconsistent with the

terms of this Order.

C. Parole Reminder Forms, Parole

Board Inquiry Forms, and the grievance

procedure shall exist to resolve inmates'

complaints about the parole process. To

monitor these systems, Plaintiffs will be

89a

provided with a summary of the number and

type of complaints handled by each sys-

tem. Upon request, Plaintiffs will be

permitted to inspect and copy individual

complaints from each of these systems.

The summaries of inmate complaints from

the Reminder Forms, Inquiry Forms, and

grievances will be provided to Plain-

tiffs' attorneys at three-month intervals

during the pendency of this decree.

D. Defendants agree to implement the

rehearing process as described in Section

Iv of this Order. To assure compliance,

Defendants will log the rehearings

ordered by the Board, with a short expla-

nation of the reason for the rehearing.

Plaintiffs will be provided with copies

of these logs at three-month intervals

during the pendency of this decree.

E. Defendants agree to assure that

90a

Parole Board Action Sheets and Parole

Board Work Sheets shall contain no

inflammatory statements, shall state the

reason for the denial of the parole, and

shall provide the prisoner with advice

for securing parole in the future. To

this end, Defendants shall provide

Plaintiffs with a sample of 20 recent

continuances by each Parole Board member

with worksheets attached. Plaintiffs

shall comment to each Board member on

these continuances, with recommendations

on how to prevent non-informative or

inflammatory action sheets. This review

will be repeated at three-month intervals

during the pendency of this decree.

F. Parole information booklets,

Parole Reminder Forms, and Parole

Eligibility Reports will be prepared and

distributed to prisoners. Defendants

9la

will develop a method of recordkeeping

which reflects the date of receipt of

each of these items. The parties will

work together to develop a method of mon-

itoring MDOC performance in this area.

Plaintiffs may develop a questionnaire or

file review method of assuring proper

delivery of these items. If they do so,

Defendants will provide them with suffi-

cient access to non-exempt MDOC records

to permit them to monitor MDOC perform-

ance in these areas.

G. Resident Unit Spokespersons shall

be trained to assist inmates in the

parole process, including prisoners'

rights relative to the parole process.

To monitor the training and performance

of spokespersons: (1) Plaintiffs will

participate in the planning of and be

informed of the parole training for both

92a

ongoing and newly-hired and _ promoted

Resident Unit Staff; Plaintiffs may

arrange, upon request, to view MDOC

parole process training; (2) Plaintiffs'

attorneys may arrange, upon request, to

view specific or random parole release

hearings.

H. PER's will be prepared and dis-

tributed at least 30 days before parole

release hearings. The parties agree that

policy-required reports will be included

in the inmate's file, along with other

materials and documents the inmate deems

relevant and/or beneficial to a just

decision, before parole release hearings.

Plaintiffs' attorneys shall be permitted

access to MDOC and Parole Board records

in order that they may monitor MDOC com-

pliance in this area.

I. The parties shall develop a com-

93a

puter program method of monitoring the

timeliness of parole hearings, of final

parole decisions, and of releases. fThis

program shall include information on all

parole release hearings, decisions, and

releases for each category, including

cases where a final decision is made at

hearing and cases where a final decision

is deferred. This program shall include

a mechanism for accounting for cases

which are in the system (with no final

decision or release) at the end of a

reporting interval. This program shall

include sub-categories for the exceptions

of the general timeliness standards rec-

ognized in this Order. This program

shall be in operation on or before

September 1, 1980. The reports generated

by this monitoring system shall be pro-

vided to Plaintiffs monthly, unless the

94a

parties agree that a longer report period

more efficiently describes case activity

or unless Defendants demonstrate signifi-

cant cost savings by submitting the

reports at three-month intervals.

ds In order to detect and correct

errors in the parole process, there shall

exist:

1. A Parole Reminder Form, as described

in § III K above, and attached, which

will permit an inmate to bring to the

attention of the Board any missed

deadline in holding a parole hearing,

making a final decision as a result

of parole hearing, or effecting a

release.

2. A Parole Board Inquiry Form, which

will permit an inmate, through his or

her counselor, to bring directly to

the attention of the Board any ques-

95a

tion concerning the processing of

that inmate's parole.

3. The MDOC grievance process, which

permits an inmate to question the

propriety of departmental actions

through a review of the action by

institutional staff and the MDOC

administration.

K. The parties shall undertake such

further steps as necessary to assure that

the parole process is in accord with law

and policy by monitoring specific aspects

of the parole process.

L. Plaintiffs' participation in mon-

itoring described in this section shall

continue for 30 months, unless the Court

extends this period for good cause shown.

The Court shall retain jurisdiction of

this cause for the pendency of this moni-

toring period, and shall have the power

96a

to make further orders consistent with

this decree.

M. MDOC policy shall be modified to

reflect this agreement as soon as possi-

ble consistent with the Michigan APA.

IX. MATERIAL SUBMITTED TO THE BOARD

A. A prisoner shall have the right

to bring to the attention of the Board

any material s/he deems’ relevant to

parole consideration. Such material

shall be included in the prisoner's file

upon request.

X. INMATE ACCESS TO FILES

A. The procedures through which

inmates gain access to MDOC records,

including prisoner files, are defined by

the Michigan Freedom of Information Act.

B. Inmates who face the Parole Board

97a

are entitled to know the information upon

which Parole Board members will make

their decision. Inmate requests’ for

access to files which are understandable

to an average person must be complied

with by the MDOC.

Cc. Copy Access to Central Office

Files. Requests to obtain copies of

documents from the Central Office file

need only be descriptive enough to suffi-

cientiy enable the public agency to find

the public record. Inmate requests for

"my file," “all the documents in my

file," or the like, shall be complied

with in full, by prompt provision of cop-

ies of all non-exempt documents found in

the file. Subsequent similar requests

shall be met by the provision of all non-

exempt documents in the file which came

into the file since the last request.

98a

D. Physical Access to Central Office

Files. The Department is not required to

transport inmates to Lansing or to trans-

port Central Office Files to the institu-

tions in order to provide inmates

physical access to these Files. However,

an inmate may designate a representative

who may inspect, review, and/or obtain

copies of non-exempt documents contained

in Central Office Files. Such represen-

tative shall present a signed, written

release before inspection; review, or

receipt of copies.

E. Copy Access to _ Institutional

Files. Requests for copies from institu-

tional files shall be handled in the same

manner as ordered for copy access to

‘Central Office files. That is, copies of

documents contained in institutional

files shall be provided to inmates upon a

99a

request which permits the MDOC to iden-

tify the request.

F. Physical inspection of Institu-

tional Files may not be restricted by

harsh limitations to annual or bi-annual

inspections, which are unreasonable.

Inmates should be allowed to inspect or

obtain copies from the Institutional File

Or any documents added since their last

inspections, no matter how near in time.

Any arbitrary limitation on the number of

times during a year a file may be

inspected cannot stand.

G. The MDOC may provide copy access

to institutional files for inmates in

segregation or otherwise separated from

the main population for disciplinary

reasons under separate procedures.

H. Limits on the amount of time for

study of file materials are arbitrary and

100a

may not be maintained; but prison author-

ities can exercise reasonable discretion

to insure that inmates examining files

are not taking advantage of this ability

to spend undue amounts of time away from

other required activities.

I. Requests for copies or for physi-

cal inspection shall be promptly answered

within a five-day response period.

J « The Department shail disclose

records to inmates according to the pro-

cedures and time limits of the Michigan

Freedom of Information Act, except those

records specifically exempted under § 13

of the Act. In applying the Act, there

is a presumption in favor of disclosure

of all Department records and the exemp-

ticns contained in § 13 shall be narrowly

construed. In general, only those docu-

ments whose disclosure would pose a seri-

10la

ous risk of harm to the inmate or others,

Or invasion of another's privacy should

be exempt from disclosure.

K. Nothing in this Order should be

construed to invalidate or render unnec-

essary those parts of Defendants' current

policies which are designed to protect

inmate's right of access.

L. Monitoring of compliance with the

file access aspects of this Order shall

be conducted by Plaintiff's counsel for a

period of six months from the date of

entry of this Order. Defendant shall

implement a log process for FOIA requests

essentially similar to the present

Central Office log process at each insti-

tution by July 1, 1981. Defendants shall

send to Plaintiff's counsel copies of

their FOIA request log sheets for each

institution and the Central Office during

102a

a six month monitoring period. Plain-

tiff's counsel will be permitted access

upon request to inspect and receive cop-

ies of individual FOIA requests’ and

responses at the MDOC Central Office or

at any MDOC institution. Defendants

shall send to Plaintiff's counsel, on a

monthly basis, during the monitoring

period, copies of all form FOIA denials

generated by Defendant's Central Office

word processing equipment.

M. MDOC policy will be modified to

reflect this Order as soon as possible

and consistent with the Michigan APA.

XI. DISTRIBUTION OF PAROLE

INFORMATION BOOKLET

A. The parole information booklet,

as defined in § II, shall be distributed

as follows:

103a

1. The parcle information booklet shall

be included as aeesection of the

Resident Guide Book which is given to

each inmate upon entering the correc-

tions system.

2. The parole information booklet also

shall be distributed as a separate

booklet to inmates at the time they

begin the parole process, that is, at

the inmate's initial meeting with a

counselor to begin preparation of the

Parole Eligibiiity Report (PER).

DATED: 28 Aug 1981 /s/

JUDGE ANNA DIGGS-

TAYLOR

Approved by:

WAYNE COUNTY NEIGHBORHOOD

LEGAL SERVICES

3550 Cadillac Tower

Detroit, Michigan 48226

(313) 962 9015

BY :/s/

ROBERT F. GILLET (P 29119)

BY:/s/

JUDITH MAGID (P 24525)

104a

Simon, Fried and Feinberg

Suite 204

24500 Northwestern Highway

Southfield, Michigan 48075

BY:/s/

Thomas M. Loeb (P 25913)

Frank J. Kelley

Attorney General

Lansing, Michigan 48913

BY:/s/

Mark I. Leach (P 24343)

Goodman, Eden, Millender and

Bedrosian

3200 Cadillac Tower

Detroit, Michigan 48226

BY:/s/

WILLIAM H. GOODMAN (P 14173)

105a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES ANTHONY SWEETON, et al.,

Plaintiffs, Civil Action

No. 77-72230

Vv Honorable Anna

Diggs-Taylor

PERRY JOHNSON, et al.,

Defendants.

AMENDMENT OF FINAL ORDER

At a session of said Court held

in the City of Detroit, County

of Wayne, on the 10th day of

August, 1981.

PRESENT: Honorable Anna Diggs-Taylor

U.S. District Judge

Upon the reading and filing of the

Stipulation and Agreement entered into by

both parties and approved by the Court

and the Court being fully advised on the

premises,

NOW, THEREFORE, IT IS HEREBY ORDERED

106a

AND ADJUDGED that the Final Order, here-

tofore entered in this cause on March 3l,

1981 be and is hereby Amended as follows:

1. The Michigan Freedom of Informa-

tion Act, MCLA 15.231 et seq; MSA

4.1808(1) et seq does not, in and of

itself, create a constitutional due proc-

ess right of access to prisoner records

giving rise to a cause of action enforce-

able under 42 USC § 1983.

2. Plaintiffs' claim of access to

prisoner records, originally brought pur-

suant to 42 USC § 1983, is now treated as

a pendent state claim arising under the

Michigan Freedom of Information Act and

further, said claim was litigated upon

cross Motions for Summary Judgment and

upon which Plaintiffs substantially

prevailed.

3. The rights set forth in Part xX

107a

of the Final Order entered in this cause

are rights recognized by and secured to

Plaintiffs under state law.

4. The stipulation amending the

Court's order, and the Court's order

approving this stipulation shall not

become final until 60 days from the date

of entry of the Court's order approving

the stipulation. Within this 60 day

period:

Defendants shall promptly effect

notice to class of this proposed settle-

ment through posting the attached notice

in all institutions and by publication in

the penal press. This notice shall be

effected within 30 days.

If the Court receives no response

ebjecting to this stipulation and order

from any class member within 60 days from

the date of entry of the Court's order

108a

approving the stipulation, the order

shall become final automatically.

If, however, the Court receives any

response from any class member within 60

days objecting to any provision of this

order, the Court will consider such

objections and, in its discretion, grant

final approval to the stipulation and

order or schedule a hearing for consider-

ations of the objections.

DATED: 28 Aug 1981 (Ss)

JUDGE ANNA DIGGS-

TAYLOR

BY:/s/

ROBERT F. GILLET (P 29119)

BY:/s/

JUDITH MAGID (P 24525)

BY:/s/

WILLIAM H. GOODMAN (P 14173)

BY:/s/

Thomas M. Loeb (P 25913)

BY:/s/

Mark I. Leach (P 24343)

109a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES ANTHONY SWEETON, OSCAR

PARTEE, JAMES SIKON, STEVEN

GODFREY, DONALD R. JONES,

MICHAEL WDOWYN, JR., JOHNNIE

HENDERSON, AND RONALD SHELBY,

Individually and on Behalf of

All Other Persons Similarly

Situtated,

Plaintiffs,

CIVIL ACTION NO:

7-72230

PERRY JOHNSON, Director

of the Michigan Department

of Corrections; LEONARD

MCCONNELL, Chairman of the

Parole Board of the State of

Michigan; GORDON FULLER, HOWARD

GROSSMAN, HONDON HARGROVE,

DONALD THURSTON, DELORES TRIPP

and EDWARD TURNER, Members of

the Parole Board of the State

of Michigan.

Defendants.

OPINION

Plaintiffs are inmates at the

Southern Michigan State Prison who seek

110a

injunctive and declaratory relief indi-

vidually and on behalf of ali other

inmates of Michigan penal institutions

who are similarly situated. They claim

that the policies and procedures employed

by the state in deciding whether or not

to grant parole deny them their rights to

due process of law as secured by the

Fourteenth Amendment to the United States

Constitution. They also claim that the

procedures employed by the members of the

Parole Board violate the Michigan

Administrative Procedures Act and rele-

vant Parole Board and Department of

Corrections regulations.

Plaintiffs filed a motion seeking

certification as a class. Defendants

opposed that motion and in a motion sup-

ported by extensive affidavits and

exhibits, seek dismissal or in the alter-

llla

native summary judgment. Pursuant to my

letter on May 26, 1978, the motion for

Class certification has been held in

abeyance while the motion to dismiss or

in the alternative for summary judgment

was being considered.

Defendants' motion to dismiss is

granted as to the claims raised under the

United States Constitution, but the

alternative motions are denied as to the

claim that the state is not complying

with its own statutes and regulations.

The question of which of the require-

ments of due process under the Fourteenth

Amendment, if any, are applicable to

parole release proceedings has been the

subject of considerable litigation in the

past few years. See cases cited in Scott

112a

v. Ketucky Parole Board, 429 U.S. 60, 61,

n.l (1976). This litigation has pro-

duced a split among the circuit courts of

appeal. Scott, at 61, n.1; compare, e.g.

Williams v. Ward, 556 F.2d 1143, 1158 (2d

Cir. 1977) ("It has been settled in this

Circuit since 1974 that the interest of

an inmate in a parole release decision is

subject to some due process_ protec-

tions.") with Scarpa v. U.S. Board of

Parole, 477 F.2d 278, 282 (5th Cir.

1973) (Finding no deprivation of a pro-

tected interest) and Brown v. Lundgren,

528 F.2d 1050 (5th Cir. 1976). cert.

denied, 429 U.S. 917 (1976) (Due process

does not apply to parole eligibility

process.) It appears that the decisions

of the U.S. Court of Appeals for the

Sixth Circuit are in agreement with the

holding of the Fifth Circuit in Scarpa

ll3a

and Brown, that an inmate has no consti-

tutionally protected interest in a parole

release decision.

On January 15, 1975 the Sixth Circuit

entered an order in Scott v. Kentucky

Parole Board, No. 74-1899. In that case

the plaintiffs were "Seeking a determina-

tion that parole release procedures of

the Kentucky Parole Board failed to con-

form to the minimum guarantees under the

due process clause of the Fourteenth

Amendment of the United States Constitu-

tion." Id., at 1. The district court had

dismissed the complaint, and the court of

appeals affirmed that dismissal stating

that "the complaint alleged no violation

of rights guaranteed to the plaintiffs

under the United States Constitution."

Id., at 2.

The United States Supreme Court

ll4a

granted certiorari, but merely vacated

the judgment of the court of appeals and

remanded for consideration of mootness.

Scott v. Kentucky Parole Board, 429 U.S.

60 (1976). Justice Stevens dissented

from the Court's decision, and in his

dissent he summarized the holding of the

court of appeals to be that "the require-

ments of due process are not applicable

to parole release hearings." Id., at 61,

On remand the Sixth Circuit held that

the case was not moot, but restated its

previous holding that no violations of

rights guaranteed by the United States

Constitution had been alleged and again

affirmed the district court's dismissal.

Scott v. Kentucky Parole Board, 556 F.2d

S85 (6th Cic. 2977). Certiorari was

denied on November 14, 1977. 96 8.Ct.

115a

Prior to its consideration of Scott,

the Supreme Court had an opportunity in

Meachum v. Fano, 423 U.S. 215 (1976), to

consider the related question of whether

Or not there is a due process right to a

hearing prior to a prison transfer. The

Court stated:

Holding that arrangements like this

are within reach of the procedural

protections of the Due Process Clause

would place the Clause astride the

day-to-day functioning of state pris-

ons and involve the judiciary in

issues and discretionary decisions

that are not the business of federal

judges. We decline to so interpret

and apply the Due Process Clause.

The federal courts do not sit to

Supervise state prisons, the admini-

stration of which is of acute inter-

est to the States. Preiser v.

Rodriquez, 411 U.S. 475, 491-492

(i973): Crus v. Beto, 405 U.S. 319,

321 (1972); Johnson v. Avery, 393

U.S. 483, 486 (1969). The individual

States, of course, are free to follow

another course, whether by statute,

by rule or regulation, or by inter-

pretation of their own constitutions.

They may thus decide that prudent

prison administration requires pre-

116a

transfer hearings. Our holding is

that the Due Process Clause does not

impose a nationwide rule mandating

transfer hearings. Id., at 228-229.

The Court recognized that the record

of such a transfer might affect the pos-

sibilities of parole, but stated that due

process requirements have not been held

applicable to the parole release decision

making process.

Nor do we think the situation is sub-

stantially different because a record

will be made of the transfer and the

reasons which underlay it, thus per-

haps affecting the future conditions

of confinement, including the possi-

bilities of parole. The granting of

parole has itself not yet been deemed

a function to which due _ process

requirements are applicable. See

Scott v. Kentucky Parole Baord, No.

74-6438, cert. granted, 423 U.S. 1031

(1975). Id., n.8.

Nor has the Supreme Court’ subse-

quently held that parole release proceed-

ings must be accompanied by due process

117a

procedural safeguards. On October 17,

1977, at 434 U.S. 910, certiorari was

denied in Scott v. Williams, No. 76-6612

and Lay v. Williams, No. 76-6858. Justice

White, who was joined by Justice Brennan,

wrote a dissent describing these two

cases as follows:

These two cases raise once again the

question of whether parole release

determinations implicate an interest

in liberty entitled to protection

under the Due Process Clause of the

Fourteenth Amendment. Petitioners in

both cases contend that the Oklahoma

Pardon and Parole Board acted uncon-

stitutionally in denying them parole

without affording them an opportunity

to appear personally before the Board

and providing them with reasons for

its decision. The Oklahoma Court of

Criminal Appeals denied relief.

434 U.S. at 910.

The foregoing statements and actions

in the United States Supreme Court and

the U.S. Court of Appeals for the Sixth

Circuit establish the proposition that,

118a

in this circuit at least, the require-

ments of due process are not applicable

to parole release hearings. Accordingly,

defendants' motion to dismiss for failure

to state a claim upon which relief can be

granted is granted as to plaintiffs'

claims that the procedures employed by

the State of Michigan violate their

rights to due process under the United

States Constitution.

Il.

The first section of this opinion

dealt with what due process rights plain-

tiff inmates have directly under the

United States Constitution. When,

however, the state itself provides by

statute or regulations tnat certain pro-

cedures be followed in determining

whether or not an inmate is entitled to

119a

parole, independent liberty interests are

created and the due process’ clause

requires certain minimum procedures "'to

ensure that the state-created right is

not arbitrarily abrogated.'" Meachum v.

Fano, supra at 226, quoting Wolff v.

McDonnell, 418 U.S. 539, 557 (1972).

. Perry v. Sindermann, 408 U.S. 593

(1972), and Board of Regents v. Roth, 408

U.S. 564 (1972) establish that a property

interest subject to due process protec-

tion is one within

a broad range of interests that’ are

secured by "existing rules or under-

standings." [Roth] at 577. A per-

son's interest in a benefit is a

"property" interest for due process

purposes if there are such rules or

mutually explicit understandings that

support his claim of entitlement to

the benefit and that he may invoke at

a hearing. Perry, supra at 601.

Wolff v. McDonnell, supra, 418 U.S.

at 557-58, establishes that the analysis

120a

of liberty interests is parallel to the

property interests and can be created by

rules or mutually explicit understand-

ings. In Walker v. Hughes, 558 F.2d 1247

(6th Cir. 1977) the Sixth Circuit held

that prison policy statements gave

inmates a liberty interest in having cer-

tain minimum due process’ safeguards

observed in disciplinary proceedings.

The court goes to considerable length to

show that this interest would not exist

in the absence of such prison policy

statements. Id., at 1256.

Several courts of appeal have applied

this analysis to a parole release pro-

ceedings and required that the parole

granting authorities follow their own

regulations. See, e@.g., Burton vv.

Ciccone, 484 F.2d 1322 (8th Cir. 1973);

Franklin v. Shields, 569 F.2d 784 (4th

12la

Cir. en banc 1978), cert. denied, 98

S.Ct. 1659 (1978).

The Michigan Department of Correc-

tions rules were filed with the Secretary

of State subsequent to the filing of the

complaint and plaintiffs have withdrawn

their claim that the regulations were not

promulgated in accordance with’ the

Michigan Administrative Procedures Act.

The Michigan parole system is gener-

ally empowered and operates under a

Michigan statute, M.C.L.A. 791.232 et

seq. This statute sets out certain pro-

cedures that the Parole Board must follow

and requires that at least one month

prior to the expiration of the minimum

term of each prisoner eligible for parole

that the prisoner and all pertinent

information about him be brought before

the Board. The Board is then to reach

122a

its own conclusions on the desirability

of releasing such prisoner on parole by a

majority vote. M.C.L.A. 791.235. Parole

Board regulations require that prisoners

have access to their files, an opportu-

nity to make statements on their own

behalf, and an opportunity to challenge

the truth or relevance of any material

submitted to the Parole Board. The

Board's regulations also require written

summaries of Board actions, a statement

of the reasons for those actions, and

specification of any conditions to be met

during a passover period. Having estab-

lished these procedures by statute and

Corrections Department regulations, the

state cannot ignore or violate them with-

out abrogating a prisoner's’ rights.

Walker v. Hughes, supra; Wolff v.

McDonnell, supra. Consequently, defen-

123a

dants' motion to dismiss is denied as to

the claim that the state did not comply

with its own statutes and regulation in

deciding whether or not to grant parole

release to plaintiffs.

Defendants' motion for summary judg-

ment on this claim is also denied because

there are genuine issues of material fact

that remain to be resolved. Defendants'

brief and affidavit in support of their

motion for summary judgment allege that

there have been no violations of any

statute, Corrections Department Policy

Directives, or the Parole Regulations.

Plaintiffs offer affidavits giving spe-

cific incidents of alleged violations,

and allege established practices of

defendants which ignore and violate the

relevant statutes, rules and regulations.

Some of the more serious’ violations

124a

alleged are: (1) failure to have all

pertinent information assembled by the

date specified in M.C.L.A. 791.235 neces-

Sitating delays in rendering decisions

and in ultimate release dates; (2) fail-

ure of the Board to advise prisoners in

advance of the factors to be considered,

as required by Policy Directive 45.09;

(3) failure to provide meaningful access

to information to be relied upon by the

Board as required by Policy Directive

45.09; (4) making it difficult or impos-

Sible for prisoners to gain access to

their files in de facto violation of

Policy Directive 45.09 and the Michigan

Freedom of Information Act; (5) failure

to follow Policy Directive DWA-40.02

regarding disclosure of psychological and

psychiatric evaluations; (6) denial of a

meaningful opportunity to present evi-

fines a

125a

dence or challenge material relied upon

by the Board; and (7) giving inadequate

statements of reasons for Board action in

violation of Policy Directives 45.05 and

45.09.

This case involves disputes over the

procedures employed by the Parole Board

and the complex interaction of statutes,

policy statements, and practice that

require the development of a factual

record before a decision can be rendered.

When the pleadings and affidavits before

the court are construed in favor of the

party opposing the motion and that party

is given the benefit of favorable infer-

ence that can be drawn from the evidence,

U.S. v. Diebold, Inc., 369 U.S. 654, 655

(1962), there are sufficient issues of

fact that remain to preclude the granting

of a motion for summary judgment. This

126a

is particularly true because this a civil

rights suit in which claims must be

closely scrutinized. Perry v. Sindermann,

supra. The defendants' motion for sum-

mary judgment is denied as to the claim

that the state does not comply with its

own statutes and regulations.

Plaintiff's motion for class certifi-

cation is still outstanding. Any further

briefs that the parties may wish to sub-

mit on that question should be filed by

September 15, 1978, and the motion will

be heard on September 28, 1978, at 3:00

p.m.

An appropriate order may be submitted.

/s/

JOHN FEIKENS

UNITED STATES DISTRICT JUDGE

DATE: AUGUST 17, 1978

Detroit, Michigan

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