Opposition Brief — McGinnis v. Sweeton

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SUPREME COURT OF THE UNITED STATES OFFIOQE OF THE CitRa

KENNETH L. MCGINNIS, DIRECTOR, MICHIGAN

DEPARTMENT OF CORRECTIONS, et al.

z Petitioner, No. 91-976

VS.

JAMES ANTHONY SWEETON, et al.

Respondent.

MOTION TO FORMA PAUPERIS

The respondents, James Anthony Sweeton, et al., by counsel,

ask leave to file the attached brief in opposition to petition

for writ of certiorari, without payment of costs and to proceed

in forma pauperis. A class member's affidavit in support of this

motion is attached.

Dated: TAA. $2. one

Respectfully submitted,

MICHIGAN CLINICAL LAW PROGRAM

Beh

Paul D. Reingold

363 Legal Research Building

801 Monroe Street

Ann Arbor, MI 48109-1215

(313) 763-4319

SUPREME COURT OF THE UNITED STATES

KENNETH L. MCGINNIS, DIRECTOR, MICHIGAN

DEPARTMENT OF CORRECTIONS, et al.

Petitioner, No. 91-976

Vs.

JAMES ANTHONY SWEETON, et al.

Respondent.

/

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, Rose Marie Green, being first sworn, state that I ama

member of the respondent class in the above-captioned case. In

support of my motion to proceed in forma pauperis, I state that

because of my poverty I am unable to pay the costs of the case.

I further swear that I am not presently employed; that

within the past twelve months I have not received any income fr

a business, profession, or other form of self-employment, or in

the form of rent payments, interest, dividends, or other source;

that I do not own any cash or checking or savings accounts; that

I do not own any real estate, stocks, bonds, notes, automobiles,

Or other valuable property.

The other class members and I are all inmates in the

Michigan correctional system.

I understand that a false statement or answer to any

questions in this affidavit will sb) t me to pepajties for

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Rose Marle Green

perjury.

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SUPREME COURT OF THE UNITED STATES

KENNETH L. MCGINNIS, DIRECTOR, MICHIGAN

DEPARTMENT OF CORRECTIONS, et al.

Petitioner, No. 91-°76

VS.

JAMES ANTHONY SWEETON, et al.

Respondent.

PROOF OF MAILING

On February 14, 1992, I mailed two copies of:

Respondents' Brief in Opposition to Petition

for Certiorari; and this proof of mail service

to: David Edick

Assistant Attorney General

Corrections Division vi

PO BOX 30216

Lansing, MI 48909

by: first class mail

I declare that the statements above are true to the best of my

information, knowledge and belief.

Date: OA-1¢ -92

MICHIGAN CLINICAL LAW PROGRAM

363 Legal Research Building

801 Monroe Street

Ann Arbor, MI 48109-1215

(313) 763-4319

THE UNIVERSITY OF MICHIGAN

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CLINICAL LAW PROGRAM

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TABLE OF CONTENTS

QUESTIONS PRESENTED

Where

(1) in 1981 the district found that state rules and regu-

lations created liberty interests protected by due process;

(2) the defendants then entered into a consent judgment that

required more of them than was required under state law;

(3) in 1984 the district court denied the same jurisdic-

tional challenge that is being made now, and the court’s order

was not appealed; and

(4) enforcement of the consent judgment has continued up to

the present day:

~

Can the defendants (petitioners) collaterally attack the

district court’s jursidiction (to enter the original consent

judgment) under Rule 60(b)?

II.

Can the defendants (petitioners) assert immunity under the

Eleventh Amendment?

LIST OF PARTIES

The parties are accurately described in the petitioners’

list of parties. All parties in the district court and court of

appeals are parties in

1 this action (although named officials have

been automatically substituted as defendants ind members of the

plaintiff lass have e and gone

¢

-

TABLE OF AUTHORITIES

Cases Pages

Ohio Department of Liquor Control,

02 F.2d 477 CSG CAP. SHPO cee cere ne ee weseves 14

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w |<

Board of Pardons v. Allen, 482 U.S. 369 (1987)....... 11

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

corr. @enies, 493 U.8. OSG (iSO. <ccecccecaeves 21

Garrity v. Sununu, 752 F.2d 727 (ist Cir. 1984)...... 21

Hewitt v.

atm €69 UB. 660 CLOGS) cic dacs ccacxceuwn: L:

Insurance Corporation of Ireland v. Compagni«

Dee Beuetres, 686. 9.8. GOS LAGOa) cc vcccccekreneeweews

Kentucky Dep't of Corrections v. Thompson, 4

Veme SPS CEP) 6660 6 0 66 6 660865 6 OO 0 Ow 6 68 648 064 6 bb be

k lowskl v Coucniin, @7.L F.2Ga 24)

aep e bo a re ae eee ae ae a ee ee re

Vv. Kavanagh, 807 F.2d 1243, reh'g deni

815 F.2d 1034 (5th Cir. 1987),

cert. dismissed, 483 U.S. 1057 (1987)... cccces

Local Number 93, Internat'] Ass'n of Firefighter:

City of Cleveland. 476 U.S. 501 (1986). cccccsceccer

New York State Ass'n for Retarded Children, In

Carey, 596 F.2d 27 (2d Cir. 1979), cert. de ?

COG a ee Can occ kee rs eee eles eben wire:

Wakinekona, 461 | Oto). eh re eae

Pennhurst State School y Halderman,

4 a6 ee Caen © 64 ie a we Ob ob a ore oe oe Oe a ee be 6, l/-

Rufo v. Inmates of Suffolk County Jail, Use. :

60 U.S.L.W. 4100 (decided January 15 oh Ss eee ees 14

Thompson v. Enomoto, 915 F.2d 1383 (9th Cir. 1990

cert. Gen. 60 U.S.L.W. 3520 (1992) .cccccvcveceece 14

Vecchione v. Wohlgemuth, 558 F.2d 150 (3d Cir. 1977),

Cee. is Gee Uses, DOS TAS ll éaresedc bees cnws ‘ 21

Viter v. somes, £65 U8. 660 CiGOO) <iecclccevrtesevveces 12

$C e@¢.ecep Ce eee ee oe 8 6 Oe 6 6-86.66 6 6.48 80 6 6 6 OO 6 O26 & @ 6 6

SLOeVGNntR AMONGNENnt, U.Ss CONSSLTUCLONe vcs ce ceveewveswews -

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OPINIONS BELOW

Please refer to the petitioners’ brief. An underlying opinion

of the U.S. District Court for the Eastern District of Michigan,

which was entered on March 31, 1981, appears at the end of this

brief as Appendix la-13a. _ An excerpt of a bench opinion issued on

May 31, 1984, is attached as Appendix 14a-21la.

JURISDICTION

The opinion of the Court of Appeals for the Sixth Circuit was

entered on September 17, 1991. The Clerk of this Court extended

the time to respond to the petition to February 17, 1992. The

jurisdiction of this Court 1s invoked under 28 U.S.C. § 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 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 provides as follows:

No State shall make or enforce any law which shall

abridge the privileges 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 person within its jurisdiction the

equal protection of the laws.

i \

PLAINTIFFS' (RESPONDENTS') STATEMENT OF THE CASE

a. 1977 - 1981

This action was filed in September, 1977, as a class

action on behalf of inmates within the jurisdiction of the

Michigan Department of Corrections ("MDOC") who are eligible for

parole. The action challenged the procecures of the MDOC and its

Parole Board, alleging that the parole hearings provided were

inadequate, that hearings and decisions ware untimely, that the

parole decision-making process was not uniform, and that inmates

were being denied access to their files, among other claims. Six

of the seven counts pled in the first amended complaint alleged

violations of the Fourteenth Amendment to the U.S. Constitution.

In August, 1978, the district court dismissed the claim that

the plaintiffs had a right to a full-blown due process parole

hearing. The district court denied that claim because "...in

this circuit at least, the requirements of due process are not

applicable to parole release hearings." ee Opinion dated 8-17-

78, Petitioner's Appendix at 118a, emphasis added. The court

held that release on varole was not a right, and therefore the

plaintiffs' claim that they were entitled to a particular kind of

hearing--including adequate notice, an opportunity to be heard,

representation by counsel, a written decision, a transcript,

etc.--could not be sustained. (Although the plaintiffs disagreed

with the court's ruling on this issue, they gave up their right

to appeal the merits when a consent judgment was later entered.)

’ Only one count of the complaint (Count VII) alleged a

pure pendent state law claim, for violations of the Michigan

Administrative Procedures Act. It was dismissed by stipulation.

1

Contrary to what the defendants assert in their petition for

certiorari, at pp. 3-4, the district court did not dismiss all of

the plaintiffs' federal constitutional claims. In the very next

breath the district court said:

The [preceding] section of this opinion dealt with

what due process rights plaintiff inmates have directly

under the United States Constitution. When, however,

the state itself provides by statute or regulations

that certain procedures must be followed in determining

whether or not an inmate is entitled to parole, inde-

pendent liberty interests are created and the due

process clause requires certain minimum procedures "to

assure that the state-created right is not arbitrarily

abrogated." [Citations omitted. ]

Id. at 118a-119a, et seq. The district court made it clear that

although the plaintiffs' surviving claims might stem from state

law or regulation, they were for federal constitutional viola-

tions, and the action would therefore proceed under the federal

civil rights law, 42 U.S.C § 1983. Id. at 118a-126a.

In October, 1979, the defendants moved to dismiss on the

grounds that only state law claims remained in the case, and that

therefore the court should abstain. The motion was denied by an

order dated March 10, 1980, and the defendants did not appeal.

Instead of litigating the case further, the defendants began

to negotiate. Between March 10 and June 11, 1980, the defendants

signed no fewer than five separate partial consent judgments, in

addition to a stipulation and order for entry of a consent

judgment, and a stipulation and order to give notice to the

class. At about the same time the parties filed cross-motions on

the issues that had not been settled (relating to inmates' access

to their files, and to the distribution of certain parole

information). In December, 1980, with the defendants' approval,

the district court entered a final partial consent judgment as to

all of the uncontested issues.

If there were any doubt about the vitality of the federal

claims in the case, it was dispelled on March 31, 1981, when

(after re-assignment) the district court issued a memorandum

opinion and order denying the defendants' motion to dismiss, and

granting the plaintiffs' motion for summary judgment on the

remaining contested issues in the case.

Summarizing the litigation to date, the court said:

The complaint alleges a pattern of activity in viola-

tion of pertinent state regulations, state law and the

United States Constitution. The Plain’ iffs assert that

dm u S are

abridged by the state's method of mee ee gl

the parole system as a whole.

On December 16, 1980, after an extended period of

discovery, the disposition of several motions, and

diligent efforts to settle the litigation, the parties

entered into a partial consent judgment resolving many

of the claims of constitutional violations originally

asserted.

Opinion at p. 1, Respondents' Appendix at la (emphasis added).

Contrary to the defendants' characterization of the case as

involving “only state law claims," the court went on to say:

...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, regu-

lations and policies regarding the parole system as a

whole impart independent liberty interests to those

inmates participating in the system. ...The short-

comings of present policies constitute not only a

violation of [Michigan law], but primarily, as far as

this court is concerned, a violation of federal con-

stitutional due process rights which were born from

state promises and are now totally independent of the

definitions or perimeters [sic] of the Michigan Act.

This violation is a federal issue, to be addressed by

this court.

Iid., Respondents' Appendix at 3a-4a.

In deciding the motion, the court plainly applied federal

constitutional law. For example, regarding access to inmate

files, the court acknowledged the disagreement among the circuits

about whether or not there was a direct constitutional right that

inmates be given some access to their files, but it clearly found

such a derivative right created by state law in this case:

..-this court holds (as did Judge Feikens) that the

state's promulgation of policies and regulations which

purport to provide for some right of access, creates a

liberty interest in inmates that cannot be arbitrarily

or capriciously abridged.

The rules promulgated by the Department governing

access to files have been furnished to this court.

They are listed by reference number, among the

stipulated facts, and consist of thirteen operating

procedures, two policy directives and eight Director's

Office Memos.

Id. at 8a. Having identified substantive rights created by these

state rules and regulations, the district court found that:

...the Department implements these rules in a manner

that places insurmountable obstacles in the path of an

inquiring inmate.

Id. Accordingly, the court granted the plaintiffs' motion for

summary judgment, and awarded attorneys' fees under 42 U.S.C. §

1988 (again indicating that federal claims had been decided).

The defendants initially appealed, but on August 28, 1981,

the court signed and entered a final consent judgment, incorpo-

rating into one document the terms of all of the partial consent

orders that had been entered before, and settling the issues that

had been contested in the cross-motions the previous spring. The

defendants voluntarily dismissed their appeal in December, 1981.

By entering into the consent judgment, the plaintiffs also gave

up their right to appeal on the parole hearing issue.

It is noteworthy that the consent judgment does not simply

order the defendants to obey the state parole statute. It sets

up a series of mechanisms (that the defendants negotiated and

approved) going well beyond the requirements of state law--to

make sure that the parole system operates in a uniform, fair, and

timely way, and to guarantee that the rights created by state law

and regulation are not unconstitutionally abridged. See Peti-

tioners' Appendix at 62a.?

Nor does the final consent judgment require the MDOC to

grant parole to any class member, or dictate the kind of hearing

that the defendants must provide. Rather the consent judgment

concerns the uniformity of the parole process and of parole

decision-making, the timeliness of that decision-making, the

timeliness of release in cases where parole is granted, access to

files, monitoring of the judgment, etc. Although the defendants

characterize the consent judgment as a "highly intrusive" scheme

imposed upon them by the court, Petition at 16, in fact the

defendants agreed to every provision, after having drafted or co-

written or re-written nearly every paragraph of the judgment.

b. 1981 - 1985

Monitoring of the final consent decree began in August,

1981, and continued for 30 months. In February, 1984, when the

parties were fighting about whether or not monitoring should be

e For example, the consent judgment requires that all

initial parole hearings must be held at least 90 days before the

earliest release date (with some exceptions). See § III(B).

Although this provision exceeds the requirements of the state

parole statute, it was designed to give the defendants enough

lead time to make the decision about parole, and to implement a

favorable decision, before an inmate's earliest release date.

extended, the defendants moved to vacate the consent judgment.

Citing this Court's decision in Pennhurst II, which had just been

decided, the defendants again argued that the consent judgment

was based exclusively on state law and that therefore the federal

court lacked jurisdiction to enter it in the first place. The

defendants also argued that changes in state law justified

vacating the consent decree. That motion was denied in November,

1984, and monitoring was extended by the court. The court said

that the defendants had "waived their immunity completely by

their participation in every step of this litigation," and it

reiterated that Michigan rules and regulations created liberty

interests that were enforceable under the U.S. Constitution in

federal court. Respondents' Appendix at 18a-19a. The defendants

accepted the ruling of the district court and did not appeal.

In June, 1985, when a final monitoring report showed that

the defendants' performance was improving and that parole

guidelines had finally been drafted, the district court allowed

the monitoring to end.

c. 1987 - 1991

On August 5, 1987, the trial court re-opened the case and

appointed substitute counsel to represent the class in light of

indications that the defendants had not complied with the 1981

consent judgment. The case was re-opened after the district

court got a flood of complaints from inmates whose decisions or

releases were way beyond the time limits imposed by the judgment,

and when it was revealed that the parole guidelines drafted in

1985 still had not been implemented. The defendants took no

appeal from the re-opening of the case.

6

The plaintiffs then engaged in discovery and began monitor-

ing the defendants' compliance with the consent judgment. The

plaintiffs spent 10 months evaluating the defendants' compliance.

This was met with consistent recalcitrance by the defendants, for

which the district court imposed Rule 11 sanctions against then.

In June, 1988, after further briefing and hearings, the

trial court found that the defendants were out of compliance with

the timeliness requirements of the consent judgment, and that

parole guidelines still had not been implemented. It renewed the

formal monitoring process for another year. Once again, the

defendants did not exercise their right to appeal.

In January, 1990, after 18 months of extensive discovery and

monitoring, the plaintiffs filed a comprehensive report document-

ing the defendants' non-compliance with the consent judgment.

The plaintiffs also filed a motion to find the defendants in

continued non-compliance--and seeking additional and ongoing

relief--so that at last the consent judgment might be obeyed.

In March, 1990, the defendants filed a motion to dismiss

and/or to modify the consent judgment. (This is the motion on

appeal now.) Despite the earlier rulings against them, once

again they argued that the district court never had jurisdiction

to enter the consent judgment in 1981 because the judgment was

based exclusively on state law. Alternatively, the defendants

argued that the judgment. should be modified to reflect supposed

changes in state law. The 1990 motion raised exactly the same

issues that had been raised in 1984, and that had been decided

adversely to the defendants then, and that had not been appealed.

In May, 1990, the district court issued an order finding the

7

defendants in non-compliance, setting a new monitoring period,

appointing a magistrate to monitor compliance, and requiring the

defendants to implement parole guidelines within one year. (No

guidelines had been implemented in the nine years since the entry

of the consent judgment, despite its provisions requiring the

defendants to do so.) The district court denied the defendants'

motion to dismiss for lack of jurisdiction, and this time the

defendants appealed.? .

ad. The Sixth Circuit Opinion

The Sixth Circuit agreed with the plaintiffs in all

respects. It affirmed the district court's denial of the motion

to dismiss on jurisdictional grounds, and it reversed the

district court's modification of the 90-day standard.*

On the jurisdictional issue the panel strongly disagreed

with the defendants' characterization of the case:

3 The lower court also allowed one modification of the

consent judgment. The defendants had asked the court to change

the 90-day hearing provision to a requirement that hearings be

held "at least one month" prior to the release date. This

request was based on purported state statutory changes occurring

after the entry of the consent judgment. The lower court inex-

plicably granted the modification even though the language of the

statute (requiring hearings "at least one month" before the

release date) had been the same since the consent judgment was

entered in 1981, and even though the same request for modifica-

tion had been denied in 1984. Accordingly, the plaintiffs cross-

appealed on the modification issue. .

* On the modification issue, the Sixth Circuit used the

same Breese just ee, by this Court in Rufo v. Inmates of

Su Cou U.S. __, 60 U.S.L.W. 4100 (decided

pena 15, 1992). ‘The Sixth Circuit found that state law had

not changed, that the language of the consent judgment did not

conflict with state law, that there was no policy reason to

modify the judgment, and that the purpose of the judgment would

not be furthered in a more efficient way by the modification.

Petitioners' App. at 45a-5la. This issue has not been appealed

by the defendants, and it will not be addressed further.

8

...the [defendants] continue to insist that the liberty

interest involved here is the right to parole. 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. This

is a fundamental element of this action, which should

not be further mischaracterized.

Petitioners' Appendix at 18a-19a (emphasis added).

In affirming, the Sixth Circuit held that the district court

was entirely within its rights to identify and to recognize

state-created interests protected by the due process clause of

the U.S. Constitution. The panel noted that this Court has

"clearly ruled that protectible liberty interests may arise from

state-created statutes, regulations, rules and policies." Id. at

19a-20a.

If the defendants had chosen to litigate the claims instead

of settling them, it is possible that the district court or the

Sixth Circuit might have found the plaintiffs' state-created

rights to be more circumscribed. But the defendants chose to

settle the case, and therefore, according to the Sixth Circuit,

they cannot now object to "the enforcement of a remedy that they

selected." Id. at 28a. The plaintiffs likewise bound themselves

by consenting to the judgment, thus waiving their right to appeal

the parole hearing issue that had been decided against them.

Accordingly, the Sixth Circuit held that (1) the district

court clearly had jurisdiction; (2) the current jurisdictional

challenge was decided in 1984, without an appeal, and could not

be relitigated now; (3) the Eleventh Amendment was no bar because

the judgment was based on federal claims; (4) the district court

had authority to enforce compliance with the consent decree on an

9

ongoing basis; and (5) Rule 60(b) could not be used to re-liti-

gate the merits, or to mount what was in essence a collateral

attack on the district court's decision that it had jurisdiction.

In December, 1991, the defendants filed their petition for

certiorari to challenge the decision of the Sixth Circuit. The

plaintiffs now file this timely response.?° ?

ARGUMENT

I. THE DEFENDANTS CANNOT RE-LITIGATE THE MERITS OF THE

CASE UNDER THE GUISE OF A JURISDICTIONAL CHALLENGE

A. The claims resolved by the consent judgment

were federal constitutional claims, and not

pendant state law claims.

As noted above, the defendants have relentlessly tried

to characterize this case as involving only pendant state-law

claims. This characterization of the case is flatly wrong, and

is completely unsupported by the record. As the plaintiffs'

counter-statement of the case shows, the district court was as

clear as it could be on this issue. The district court said

repeatedly that the plaintiffs' surviving claims--which were

ultimately settled in the consolidated consent judgment--were

federal constitutional claims, based on rights granted to the

plaintiffs by state laws, regulations, policies, and procedures.

See Plaintiffs' Statement of the Case, supra.

* In the meantime the case has gone forward in the district

court. In August, 1991, after the end of a monitoring period,

the plaintiffs' filed another motion to find the defendants in

non-compliance.~ As of that date parole guidelines still had not

been implemented, and the defendants had failed or refused to

supply information from which compliance with the timeliness

provisions of the consent judgment could be measured. On January

23, 1992, in an opinion from the bench, the district court

granted the plaintiffs' motion, ordered supplemental relief, and

extended monitoring for another year.

10

The defendants further mischaracterize the case in their

petition for certiorari. Now they say that both the district

court and the court of appeals described the inmates' state-

created rights as procedural rights only (that could not give

rise to any constitutional protections). Petition at 12. But

neither the district court nor the court of appeals expressed

that limited view of the plaintiffs' rights. See Pet. App. at

16a-25a, and Resp. App. at 3a.

Obviously most of the rights created by state law or

regulation were not litigated, but were settled. Therefore it is

impossible to know how the district court would have come out as

to each right claimed, or what might have happened had the case

been litigated to conclusion, or had the defendants filed an

appeal on this issue. As to some claims, the courts might have

found that the state rules and regulations were not couched in

sufficiently mandatory language to confer a right, or that the

substantive limitation on official discretion was too narrow to

establish the right alleged. See e.g., Kentucky Dep't of

Corrections v. Thompson, 490 U.S. 454 (1989) (prison rules on

visiting lacked sufficient mandatory language to support a state-

created right of visitation absent certain conditions); and Olim

v. Wakinekona, 461 U.S. 238 (1983) (a state creates a protected

liberty interest by placing substantive limitations on official

discretion) .°

The one certain thing is that the rights being claimed--the

¢ Had the plaintiffs not entered into the consent judgment,

but appealed, they might have persuaded the Sixth Circuit that

Michigan regulations create a constitutionally protected right to

parole. See Board of Pardons v. Allen, 482 U.S. 369 (1987).

11

right to uniform standards of decision-making, the right to

timely hearings, the right to timely release once a favorable

decision was made, the right of access to files, etc.--were not

procedural rights. The plaintiffs argued, and the district court

twice agreed, that as to these issues the state rules and regu-

lations limited the discretion of state officials without regard

to the procedures they employed. a

The defendants may have had broad discretion in deciding

whether or not to grant parole, or in the kind of hearing that

they would offer, but as to the standard that they were to apply,

and as to the timing of the decision, and as to the implementa-

tion of a favorable decision (release), and as to inmates' access

to their files, the plaintiffs claimed that the defendants'

discretion was limited in a substantive, mandatory way, that gave

the plaintiffs rights regardless of the procedures used. These

are precisely the sort of rights that have long been enforceable

in federal court. See e.g., Vitek v. Jones, 445 U.S. 480 (1980);

Hewitt v. Helms, 459 U.S. 460 (1983); and the cases cited by the

Sixth Circuit on this issue, Pet. App. at 20a-2la.

That those rights were infringed because the Parole Board

followed, or failed to follow, certain procedures, does not make

the rights themselves procedural. The defendants' fundamental

mischaracterization of these issues was rejected by the courts

below, and it should be rejected again here. As long as there

was any colorable federal claim which formed the basis for the

entry of the consent judgment, the defendants' claim that the

judgment was "void" must fail.

This Court has held that in order to enter a consent decree,

12

a district court must find only that the decree (1) "springs from

and serve[s] to resolve a dispute within the court's subject

matter jurisdiction," (2) "come[{s] within the general scope of

the case made by the pleadings," and (3) "further[s] the

objectives of the law upon which the complaint was based." Local

: : j j Vi eveland,

478 U.S. 501, 525 (1986). Surely that standard was met here.

B. Even if it were arguable that the district court

erred in finding state-created interests subject

to constitutional protection, that decision on the

merits could not be overturned under Rule 60(b).

The essence of the defendants' argument is (1) that the

rulings of the district court over the years on the merits of the

constitutional questions raised were simply wrong, (2) that if

the case should have been dismissed on the merits, then there was

no subject matter jurisdiction, and the consent judgment is

"void," and (3) if it is void, it is subject to collateral attack

at any time under Rule 60(b)(4) and on appeal here, even though

the defendants failed to appeal any of the previous rulings and

entered into a consent judgment.

This attempt to relitigate issues under the guise of Rule

60(b) is a shamelessly improper use of the rule. All of the

issues raised in the defendants' petition are issues "on the

merits" which have already been decided numerous times below and

which this Court should not address. As aptly noted by the Ninth

Circuit in a far less egregious attempt to relitigate issues:

We agree with the district court. The modification of

the decree to extend to all the inmates sentenced to

death wherever housed has been in effect for years....

The prison officials had their opportunity to appeal

the modification of the decree when the court ordered

them to negotiate and when the court accepted the

13

Monitor's First Report and modified the decree to

extend to the inmates wherever housed. This is the

Monitor's Fourth Report. We will not allow prison

fficials f bit tt) le.

Thompson v. Enomoto, 915 F.2d 1383, 1390 (9th Cir. 1990), cert.

denied, 60 U.S.L.W. 3520 (1992) (emphasis added).

If this Court were to permit the re-litigation of decided

issues under the defendants' analysis, the principles of finality

and the timeliness of appeals would mean nothing. Such a deci-

sion would be antithetical to the very purpose of consent judg-

ments. Every case within this Court's jurisdiction in which the

district court has entered an order or judgment, by consent or

otherwise, would be open to belated attack "on the merits" by

claims that the district court's denial of a motion to dismiss or

summary judgment years before was "void" and thus that the court

did not have judicial authority to issue it.

The defendants did not seek Rule 60(b) modification of the

consent decree in light of judicially recognized bases such as

new or unforeseen changes of fact or law. See Rufo v. Inmates of

Suffolk County Jail, U.S. , 60 U.S.L.W. 4100 (1-15-92);

Akers v. Ohio Department of Liquor Control, 902 F.2d 477 (6th

Cir. 1990). The defendants' position is simply that the consent

judgment is "void" for jurisdictional reasons.

Rule 60(b) (4) provides that the court "may relieve a party

...-from a final judgment...[{if]: (4) the judgment is void." The

rule also provides that "a motion under this subdivision (b) does

not affect the finality of a judgment or suspend its operation."

Rule 60(b) is a discretionary rule that has been "admin-

istered...with a scrupulous regard for the aims of finality."

—

14

Wright, Miller & Cooper, Federal Practice and Procedure, § 2857 (1985).

In balancing the two interests--the need for finality in

litigation versus respect for the jurisdictional limits of the

federal courts--it is black-letter law that a court's decision as

to subject matter jurisdiction may not be attacked belatedly

through a Rule 60(b) motion:

It must be noted...that a court has jurisdiction to

determine its own jurisdiction. ...[A] court's

determination that it has jurisdiction of the subject

matter is res judicata on that issue, if the

jurisdictional question actually was litigated and

decided, or if a party had an opportunity to contest

subject matter jurisdiction and failed to do so.

* * * * *

The rule has been that a court's determination that it

has subject matter jurisdiction is res judicata of the

issue, if the jurisdictional question actually was

litigated and expressly decided and full faith and

credit must be given to the judgment. This is true

even if the court is mistaken in its decision.

Wright,Miller & Cooper, supra, §§ 2862 and 3536 (emphasis added).

Subject matter jurisdiction was raised by the defendants in their

1984 motion to vacate under Rule 60(b) (4), and that motion was

denied, and was not appealed. In fact, many portions of the

defendants' brief in the Sixth Circuit were taken verbatim from

their 1984 brief attacking subject matter jurisdiction.

As noted above, certainly the plaintiffs raised claims

pursuant to 42 U.S.C. § 1983 which presented issues generally

reviewable under Article III. The claims involved due process

interests springing from a host of state statutes, administrative

rules, and policies which limited official discretion and which

were alleged to be arbitrarily and capriciously applied as a

matter of custom and practice on a system-wide basis. See

Memorandum Opinion of 3/31/81, Resp. App. at la et seg.

15

The defendants have confused a total lack of power to

adjudicate with the issue of whether the decisions on the merits

were correct. The "void" judgment language of Rule 60(b)(4) is

not intended to allow collateral attack upon a consent judgment,

never appealed, nine years after it was entered, just because the

defendants assert that the court's rulings were incorrect.

As one noted commentator has concluded:

In brief, then,

Ww is j surped, if 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 judgment, whether kaghi - wrong, are not subject

to collateral attack, so far jurisdiction over the

subject m e s cern

So called quasi-jurisdictional facts are not a

part of jurisdiction over the subject matter, and the

lack thereof will not afford the basis for a collateral

attack upon a judgment rendered by the courts which we 1

are discussing. Therefore, a judgment of a federal

court is not void, and is not subject to collateral

attack on the ground that the rendering court lacked

federal jurisdiction, although the judgment is subject

to direct attack on that ground....

Moore's Federal Practice § 60.2b2, Rule 60(b) (2d. ed. 1991), pp.

60-229-231 (emphasis added).

As the Eighth Circuit said back in 1943:

Every court in rendering judgment has the authority and

does, tacitly or expressly, determine its jurisdiction

over the parties and over the subject matter and its

decree sustaining jurisdiction is not open to colla-

teral attack. Stoll v. Gottlieb, 305 U.S. 165, 171,

172, 59 S. Ct. 134, 83 L.Ed. 104; Chicot County

Drainage District v. Baxter State Bank, 308 U.S. 371,

377, 60 S.Ct. 317, 84 L.Ed. 329. And when the court

which rendered the judgment, having jurisdiction over

the subject matter and the parties, has power to

adjudicate the issues in the class of suits to which

the case belongs, its decision is on the merits

[citation omitted] and the validity of its judgment,

when collaterally attacked, is not affected by an

erroneous decision. Such a judgment is not void, even

though there be gross error in the decree.

16

Walling v Miller, 138 F.2d 629, 632, cert. denied, 321 U.S. 784

(1944) (emphasis added). The principle of Chicot that subject

matter jurisdiction cannot be collaterally attacked was

specifically reaffirmed in Insurance Corporation of Ireland v.

agni Ss uxites, 456 U.S. 694, 702, n. 9 (1982).

In this case the Sixth Circuit carefully reviewed each of

the arguments made by the defendants, and rejected them. Pet.

App. at 15a-38a. Even the concurring judge agreed that the

defendants could not re-litigate the jurisdictional issue now,

whether the district court was right or wrong when it decided

that it had jurisdiction in 1981.

Accordingly, certiorari should be denied on the first

question raised by the defendants. They are wrong on the facts,

and wrong on the law, and they raise no issues of national

importance or on which there is any disagreement among the

circuit courts of appeal. See U.S. Supreme Court Rule 10.

II. THE DEFENDANTS CANNOT RE-LITIGATE THE MERITS

BY INVOKING THE ELEVENTH AMENDMENT

The defendants' second argument is even more disin-

genuous than the first. They say that because the decree entered

by the district court was based only on state law, any enforce-

ment of the decree now would be barred by a combination of

Pennhurst State School and Hospital v. Halderman, 465 U.S. 89

(1984) and the Eleventh Amendment.’

7 As noted above, the defendants are wrong to describe the

district court's orders as based only on state law, and for that

reason alone their Pennhurst/Eleventh Amendment argument must

fail. But even if the "state law only" description were true,

the defendants are far too late to invoke Pennhurst and the

Eleventh Amendment as a means to void the original judgment.

17

To support this proposition the defendants cite just one

case, Lelsz v. Kavanagh, 807 F.2d 1243, reh'g denied, 815 F.2d

1034 (5th Cir. 1987), cert. dismissed, 483 U.S. 1057 (1987).

Lelsz is distinguishable from the present litigation on at least

four separate grounds, any one of which would be enough to

undercut the defendants' reliance on it.

1. The nature of the challenge: In Lelsz the defendants

were not challenging the validity of the original consent

judgment (which had been entered in 1983). Rather, the challenge

was to a 1985 order enforcing the consent judgment. The defen-

dants claimed that the 1985 order granted new and different

relief beyond what the consent judgment itself permitted, and

beyond what federal law would allow as well. Thus, they said,

the 1985 order impermissibly exceeded both the scope of the

consent judgment and the reach of federal law. The defendants

argued that because the new 1985 order was ostensibly based only

on state law, and not on federal law, the court could not enter

such relief without violating Pennhurst.

To the contrary, in the present case the defendants are

challenging only the entry of the original consent decree in

1981, arguing that it is void ab initio. No new order has ever

been entered--let alone challenged--changing the substance of

that original consent judgment, or going beyond straightforward -

enforcement of its terms as written. In the present case it is

not new, excessive, and exclusively state-based enforcement that

is at issue, but the validity of the underlying consent judgment

itself.

2. The timeliness of the challenge: The challenge to the

18

new order in Lelsz was timely. That is, the defendants made

their objections in the district court, and when the district

court entered the 1985 enforcement order despite their objec-

tions, they filed a timely appeal.

The defendants in this case cannot make the same claim.

Pennhurst was decided on January 23, 1984. On February 27, 1984,

the defendants filed a motion to vacate the consent judgment,

citing Pennhurst (and of course again alleging that the consent

judgment was based entirely on state law). On November 24, 1984,

the district court denied the defendants' motion, and they did

not file an appeal. Thus, the defendants' Pennhurst-based

challenge (to the district court's exercise of jurisdiction in

entering the original consent judgment in 1981) was decided with

finality in 1984. As noted above, the defendants cannot file the

same motion six years later just by calling it "jurisdictional."

. e waiv of immunity: In Lelsz the defendants could

argue that they had never surrendered the state's Eleventh

Amendment immunity as to the 1985 order. Even though the

defendants had consented to the entry of the original judgment,

and to the relief which might flow directly from it, they were

completely justified in arguing that they had never consented to

the new, broader relief that was now being forced upon the state

by the federal court.

In the present case the defendants cannot make that

argument. Pennhurst bars the federal court from entering

injunctive relief--based on state law--only in the absence of

consent. Here, the defendants explicitly agreed to the entry of

five separate partial consent judgments, a series of stipulated

19

orders, and a final consolidated consent judgment. For the next

nine years the defendants subjected themselves to the full

authority of the federal court, including monitoring, reporting

of data, findings of non-compliance, and payment of attorneys'

fees, all without any appeal being taken. Since the defendants

in this case consented, and consented, and consented again,

Pennhurst does not apply at all. See Resp. App. at 18a-19a.

The defendants also ignore settled law on this point. Where

a state enters into a consent decree without having fully liti-

gated the mixed state and federal claims upon which the district

court bases its jurisdiction, the state's Eleventh Amendment

immunity is waived.

For example, in Kozlowski v. Coughlin, 871 F.2d 241 (2d Cir.

1989), inmates filed suit against the New York Department of

Corrections alleging violations of state-created liberty

interests in prison visitation rights. Id. at 241. After the

court ruled that the state's practices violated procedural due

process rights, the parties avoided trial and entered a consent

decree controlling the circumstances under which the Department

could suspend or terminate visitation privileges. Id. Eight

years after the decree was entered, the state sought to modify

the decree. As here, the state argued that the decree violated

the Eleventh Amendment as interpreted in Pennhurst II, which

prohibited a federal court from imposing injunctive relief

against state officials for violations of state law. Id. at 243.

The Second Circuit rejected the state's argument. The court held

that although Local No. 93, Int'l Ass'n of Firefighters v. City

of Cleveland, 478 U.S. 501 (1986) “requires [of the court] an

20

independent assessment of ‘inherent jurisdiction,' ...by

consenting to the decree, the [state] waived [its] Eleventh

Amendment immunity." Id. at 244, citing New York State Ass'n for

Retarded Children, Inc. v. Carey, 596 F.2d 27, 39 (2d Cir. 1979)

cert. denied, 444 U.S. 836 (1979) (consent judgment itself

constitutes a waiver of Eleventh Amendmert immunity where the

defendants agreed to the judgment before trial).

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

1989) cert. denied, 493 U.S. 1056 (1990) inmates of a New Mexico

prison filed a class action charging that prison conditions

violated their constitutional and federal statutory rights. The

parties agreed to a consent decree without the benefit of

litigation to determine the validity of the claims. Id. at

1486-87. Seven years later, the state Attorney General filed a

motion to vacate, arguing that since portions of the decree did

not vindicate federal rights, "the defendants...are beyond the

reach of a federal district court." Id. at 1487. The Tenth

Circuit rejected the defendants' argument, stating that "by

consenting to the entry of the decree, ‘without any findings of

fact,' [the defendants] left to the court the power to construe

the pleadings...." Id. at 1489. See also Garrity v. Sununu,

752 F.2d 727 (lst Cir. 1984) (the totality of the state's

conduct, including agreement to a consent decree and years of

monitoring, constitutes unequivocal consent to federal

jurisdiction); and Vecchione v. Wohlgemuth, 558 F.2d 150 (3d Cir.

1977), cert. denied, 434 U.S. 943 (1977) (waiver of Eleventh

Amendment immunity is final when the consent judgment itself

becomes final).

21

4. The nature of the waiver: Lelsz suggests that the

state's consent in that case (even to the original judgment)

would have been no consent at all, because Pennhurst had not yet

been decided, and therefore the state was unaware that it had any

immunity to waive. The Fifth Circuit in effect gave the state an

extra benefit of the doubt, considering that the state's timely

raising of the issue (and its timely appeal) was its first post-

Pennhurst bite at the apple.

Unlike the defendants in Lelsz, the defendants here can

hardly claim now that they have never before had the chance to

litigate the waiver oi an immunity that (until Pennhurst) they

did not know existed. They did litigate it after Pennhurst, and

they lost, and they chose not to appeal, way back in 1984. Just

as the plaintiffs cannot revive the claims that they litigated

and lost (and did not appeal) in the early 1980's, the defendants

should also be barred.

Finally, Lelsz itself is unusually weak authority for any

proposition, undeserving of the weight the defendants give it.

The case is a 2-1 decision with a strong dissent. The panel's

opinion is a mishmash of doctrine, combining and confusing issues

of jurisdiction, comity, immunity, and waiver of immunity by

consent. The confusion is heightened by the fact that Lelsz

invoived almost identical facts to Pennhurst (a challenge to the

conditions and treatment of the mentally impaired at state

facilities), so that the panel decision came close to treating

Pennhurst as a kind of law of the case. Further, on petition for

re-hearing en banc, the Fifth Circuit split 7-7, barely prevent-

ing a re-hearing of the case. (One judge on senior status was

22

even moved to urge the full court to hear the case, even though

he did not get a formal vote.) The seven judges who favored re-

hearing published a caustic opinion criticizing the 2-1 decision,

and noting that "Pennhurst has been badly misapplied in this

panel decision." Lelsz, supra, at 1036.

From the longer post-Pennhurst perspective of 1992, probably

the best that can be said of Lelsz is that it authorizes the

federal court to treat Pennhurst as a change of law that might

justify a motion to modify a consent judgment (entered into

before Pennhurst was decided). That is exactly what the

defendants did in 1984 when they filed a motion under Rule 60(b).

They lost the motion, and they didn't appeal, and as is shown

above, they shouldn't be able to re-litigate that issue now.

Thus, on the second question presented in the petition for

certiorari, the defendants have not shown any issue of national

importance, any disagreement among the circuits, or any clear

error in the court below that cries out for correction.

Accordingly, the defendants' petition for certiorari should be

denied.

At this point the case is in ongoing litigation in the

district court, where it belongs. The district court is seeking

to enforce, at last, the terms of the consent judgment agreed to

by the defendants in 1981. If the district court is successful,

and if the defendants are held to their promise to make the

parole system fairer and more efficient, then the savings to

Michigan taxpayers will be enormous. After four years of

litigation, and 11 years of post-judgment supervision by the

district court, the defendants cannot seriously argue, at this

23

late date--that the district court lacked or lacks subject matter

jurisdiction.

CONCLUSION

For the above reasons, the plaintiffs (respondents) request

that the defendants' petition for certiorari be denied.

Dated: Feb. (4, 1992

Respectfully submitted,

WIDE: eall

Michigan Clinical Law Program

By: Paul D. Reingold

Counsel of Record

University of Michigan Law School

363 Legal Research Building

801 Monroe Street

Ann Arbor, Michigan 48109-1215

(313) 763-4319

Martin A. Geer

Kessler & Geer

402 West Liberty

Ann Arbor, Michigan 48103

(313) 761-8585

24

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES ANTHONY SWEETON; OSCAR PARTEE; ge =

and JAMES SIKON, Individually and On —

Behalf of All Other Person Similarly ‘ 235 be

Situated, "he eae = =

‘ ra* bn m

Plaintiffs, as =

= US

-vs- Case No. 77-72230 “~ es

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.

/

MEMORANDUM OPINION AND ORDER

This class action was brought on behalf of all inmates

within the present and future jurisdiction of the State of

Michigan Department of Corrections, whose parole eligibility

is determined by the State of Michigan Parole Board. The

defendants are the Director of the Department, and the

members of the Parole Board’ The complaint alleges a pattecn

of activity in violation of pertinent state regulations,

state law and the United States Constitution. The plaintiffs. .

assert that their Fourteenth Amendment due process rights are

abridged by the state's method of administration of the

parole system as a whole.

On December 16, 1980, after an extended period of

discovery, the disposition of several motions, and diligent

efforts to settle the litigation, the parties entered into a

partial consent judgment resolving many of the claims of

constitutional violationsoriginally asserted. Pollowing

notice to all class members, receipt and review of objections

to the partial consent judgment from scores of inmates in the

state system, the addition of one organized group of these

inmates as party plaintiffs, and revisions of the proposed

settlement in light of inmates’ objections and suggestions,

1A

the court approved the partial consent judgment. That ordec

was entered on December 29, 1980.

Two issues remain in litigation, (inmates' access to

their own files and distribution of a parole information

booklet) which have been submitted to this court on

cross-motions for summary judgment, there being no material

disputes of fact. After consideration of the parties’

stipulated facts, their briefs and oral argument, the

plaintiff's motion is hereby granted, and judgment entered

accordingly.

ABSTENTION

Defendant has raised the issue of “abstention” in its

brief. Defendant asserts that the file-access portion of the

lawsuit, which challenges present policies under the United

States Constitution and the Michigan Preedom of Information

Act, [MCLA §15.231 et seq; MSA §4.1801(1)], is best left to

the state courts.

| Procedurally, the abstention argument is untimely. The

cross-motions under consideration here were filed in June and

July of 1980, and argued to the court in January of 1981. In

October of 1979, the defendants first raised this” e

“abstention” issue, by motion. That motion was fully briefed

by the parties, and following oral argument, the court denied

the motion in March of 1980 (after re-assignment cf this case

from the docket of the chief judge of this district, in

November, 1979). No motion for rehearing was timely filed,

and the defendants have presented no justification for

belated reconsideration of that decision. To the contrary,

the successful efforts of the parties to resolve a major

portion of this complex litigation, and the future role of

this court in enforcing and overseeing the implementation of

that joint resolution compels the disposition of the rest of

the case by this court, and no other. Moreover, if

defendants' tardy request for reconsideration were

appropriate under the Federal Rules of Civil Procedure and

the Local Rules of this court, it would nevertheless be

2A

ern

denied. The “abstention” doctrine, aS announced in Railroad

Commission of Texas v. Pullian Co., 312 U.S. 496 (1941),

instructs federal courts to abstain from ruling when

construction of previously uninterpreted or uncertain state

laws control a constitutional issue placed before the federal

court. Such is not the case here. First, the Michigan

Freedom of Information Act (hereinafter MFOIA) is not a new,

untested or uninterpreted statute... Courts or this state have

entertained litigation under it since enactment in its most

recent form in 1976. The 1976 codification was, at least in

part, a reworking of existing administrative law embodied in

the state's Administrative Procedures Act, being Public Act

306 of 1969. Thus, the current legislation has a history

which, if not venerable, is at least old enough to enable the

federal courts to avoid treading on “new” territory which

should first be explored by the state. Furthermore, the

state courts have looked to the abundant federal case law

interpreting the parallel federal FOIA, 5 USC §552, et seq,

for assistance, which this court is equally well equipped to

do. |

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. Thus, though the meaning of the

MFOIA is not unimportant to determining access rights, this

court must first and foremost independently assess whether

access rights are fairly and adequately dispensed as

promised. The shortcomings of present policies constitute

not only a violation of the MFOIA, but primarily, as far as

this court is concerned, a viclation of federal

constitutional due process rights which were born from state

promises and are now totally independent of the definitions

3A

or perimeters of the Michigan Act. This violation is a

federal issue, to be addressed by this court.

The defendants' argument that abstention is advisable

due to the pendency of a similar state lawsuit, DeLion, et al

vy. WMichiaan Department of Corrections, C.A. No. 78-22032,

Ingham County Circuit Court, must also fail. In fact, the

DeLion lawsuit seeks different relief, is not yet a certified

class action and should not stay the hand of this court. The

defendants rely on Younger v. Harris, 401 US 37 (1971), which

precludes a federal court from acting to enjoin an on-going

state criminal prosecution -- a vital doctrine, which is part

of the doctrine of "abstention", but one not relevant here.

The request for rehearing on the abstention issue is,

therefore, denied, and the court will reach the merits of

both the file access issue and the parole information booklet

distribution issue.

INMATE ACCESS TO FILES

On May 13, 1980, the parties entered into a stipulation

of facts, summarizing the present policies of the

Department. These stipulated facts demonstrate that, prior

to the 1876 passage of the Nichigan Freedom of Information

Act, inmates were not permitted any access to the files

concerning them maintained hy the Department, and that

post-1976 access is extremely limited and varied.

The files in question include a “Central Office File,"

kept in the Department's offices in Lansing, Michigan; an

“Institutional File," kept at the institution where the

inmate is incarcerated; and assorted medical, academic,

accounting and other files. ‘The Central Office File usually

is more comprehensive than the others, as it includes direct

correspondence from external sources to the Department or

Parole Board, Board notes, screening materials, and Field

Service reports not found in other files. The Central Office

File is the file utilized by members of the Parole Board for

4A

their reference and preparation, before each prisoner's

Parole Board hearing.

At present, the Department will not send the Central

Office Files to the institutions for actual viewing by

inmates under any conditions. Requests received in Lansing

for "my file” elicit a direction to the inmate to consult his

institution, in order to gain access to his institutional

file. Requests for specific documents out of the Central

Office File are complied with by furnishing copies to

inmates, but the requests must specifically name the document

in question. Access to Institutional Files varies from one

facility to another. All of the facilities exempt certain

documents from any disclosure at all (such as pre-sentence

reports, police reports), limit disclosure of other types

(such as psychological reports), and allow disclosure of

others to inmates. This disclosure is further limited in

frequency, from facilities which permit access once a year

‘imatedbes the State Prison of Southern Michigan and the

Marquette Branch Prison, the two dominant facilities in the

state system) to those permitting access every six months, to

those (including the women's facility and the prison éamps)

permitting access as frequently as requested. At least one

facility also limits the time that is made available for *

“hands-on” inspection of the file by an inmate--Marquette

Branch Prison limiting this to one hour (once a year).

An analysis of the stipulated facts and the details of

the policy directives issued by the Department, demonstrates

that the Department's current policy is typified by an

obstructive refusal to reveal vital information to inmates

involved in the parole process.

Having established policies, purporting to grant a right

of access, and to regulate it (the existence of some such

policies probably being mandated, at least in this state, by

tne MFOIA), the precise terms of such access must not be

arbitrary and unreasonable, or they risk violation of due

5A

process. Arbitrary implementation of arbitrary rules

violates the inmates' liberty interest, which the state has

itself created, Wolff v. McDonnell, 418 US 539 (1972),

Meachum v. Fano, 427 U.S. 215 (1976), Walker v. Hughes, 558

F2d 1247 (6th Cir. 1977).

The basic purpose of access should be borne in mind --

the inmates who make these requests are not to be viewed as

annoying paranoids who seek to fill their “personal and

self-serving needs," as the defendants assert in their brief.

Defendants' view that the plaintiffs seek “nothing more than

a discovery tool and to engage in fishing expeditions,"

contraverts the intention of the MFOIA and gratuitously

insults the overwhelming majority of prison inmates. This

court is not unmindful of the administrative burdens already

placed on the persons in charge of this state's prison system

(whose overcrowded conditions constitute the basis of

judicial and legislative action elsewhere than before this

court), and is also aware that the long periods of

unstructured time available to inmates allows them time to

seek assistance from prison personnel, and indeed the courts,

which might seem time-consuming or trivial. But an inmate

4

who faces a Parole Board, whose members have virtually

unreviewable control over his or her personal freedom, is *°

entitled to make demands on prison officials, and to know the

information upon which those members will make their

decision, without such demands being ignored or subjected to

unreasonable dissection. Requests for access to files which

are understandable to an average person must be complied

with, once the state has, in essence, "promised" its inmates

that some form of access will be allowed.

Without adequate access to files, and the information

contained therein, an inmate has no real possibility of

refuting inaccurate, biased, or misleading information

therein. The files, and the Central Office File in

particular, are heavily relied upon by Parole Board members

6A

who, Of course, have no personal knowledge of an inmates’

behavior, either prior to or during incarceration. The

inmate is afforded an opportunity to express his or her view

tc the members, but can more effectively do so when he or she

has access to the information (or most of the information) on

which the Parole Board members rely.

_In its brief, and in oral argument, the plaintiff

asserts that inmates have a direct federal constitutional]

right to access to institutional Files. This is an issue not

specifically addressed by the United States Supreme Court,

although its recent decision in Greenholtz v. Nebraska Penal

Inmates, 442 US 1 (1979) Clearly holds that due process

requirements at a parole board hearing are minimal. The

Specific issue of file access is one on which various circuit

and district courts have split, with courts in the Second and

Fourth Circuits and a district court within the Eighth

Circuit holding that there may be such a due process right,

under c2rtain circumstances (Holup v. Gates, 544 F.2d 82, 2a

Cir. 1976, cert den 430 US 941 1977; Williams v. Ward, 556

F.2d 1143, 2d Cir. 1977, cert den 434 US 944, 1978; Franklin

v. Shields, 569 F.2d 184, 4th Cir. 1977, en banc, cert den

435 US 1003, 1978; Paine v. Baker, 595 F.2d 197, 4th Cir.,

1979; and Cooley v. Sigler, 381 FS 441, Minn., 1974). Other

courts have held that this right of access is not

constitutionally mandated -- Dye v. United States Parole

Commission, 558 F.2d 1376, 10th Cir., 1977; Ott v. Ciccone,

326 FS 609, D.Mo. 1970; Wiley v. United States Board of

Parole, 380 FS 1194, D.Penn. 1974; Barr v. United States, 415

FS 990, D. Okla 1976; Wagner v. Gilligan, 425 FS 1320, Db.

Ohio 1977; Nunley v. United States Board of Paroles, 439 FS

887, D. Okla. 1977; Gahagan v. Pennsvlvania Board of

Probation, 444 FS 1326, D. Penn. 1978.

Judge Feikens, in an opinion rendered in this cause in

August of 1978, also held that the procedures generally

employed by the defendants in the parole process need not

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comport with federal constitutional due process guarantees,

relying on the case law preceding, and adopted by Greenholtz.

To the extent that that ruling implicitly holds that there is

no direct due process right to file-access, it is the law of

this case.

At all events, it is not necessary for this court to

grapple with this theory, since this court holds (as did

Judge Feikens) that the state's promulgation of policies and

regulations which purport to provide for some right of

access, create a liberty interest in inmates that cannot be

arbitrarily or capriciously abridged. The existence of the

MFOIA also serves to “vest” a liberty interest in the

inmates, as well as serving as a guideline to this court in

its determination of what policies are reasonable,

non-arbitrary and therefore constitutional.

The cules promulgated by the Department governing access

to files have been furnished to the court. They are listed

by reference number, among the stipulated facts, and

consist of thirteen operating procedures, two policy

directives and eight Director's of fice Memoranda. They are

comprehensive, and much of the procedure spelled out therein

a &»

is constitutionally adequate. It appears, however, that

there is a great deal of unreasoned disparity between — 4

terms of the rules among the several facilities, that certain

terms are unduly restrictive, and that the Department

implements these rules in a manner that places virtually

insurmountable obstacles in the path of an inquiring inmate.

Critical to this dispute is the required specificity of

file requests. Presently, an inmate's desire to view or

obtain copies of documents in his or her Central Office File

is completely thwarted if the request is for “my file,” or

"all the documents in my file,” or “the contents of my

Central Office File." The provisions of the MFOIA and case

law establish that citizens need only make requests which are

descriptive enough to sufficiently enable the public agency

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to find the public record (MCLA §15.233(1) and Citizens for

Better Care v. Department of Public Health, 51 Mich App 454,

1974, lv to app den 392 Mich 758, 1974). The federal act

contains the same language, and is ‘interpreted in the same

way (5 USC §552(a)(3) and Bristol-Myers Co. v. FTC, 424 F.2d

935, D.C. Cir., 1970). A prison inmate should be held to no

higher standard of specificity, and requests addressed to

Lansing for “my file" or the like, should be complied with,

in full, by prompt provision of copies of all non-exempt

documents found in the file. Subsequent similar requests

should be met by the provision of all documents in the file,

non-exempt, which came into the file since the last request.

Logic dictates that the Department not be required to furnish

papers which it has previously furnished to an inmate.

A copying charge is presently levied on non-indigent

inmates for such activity, which the court finds to be a

reasonable practice.

Physical inspection of the Central Office File does not

seem a reasonable possibility to this court. Inmates, of

course, cannot be transported to Lansing easily, and the

plaintiffs have not suggested this course of action. ‘* *

Similarly, however, release of the Central Office File to the

4

institution, potentially with great frequency, could hamper

the efficient operation of the parole process, and complicate

access to records for members of the Parole Board.

Copy-access to Institutional Piles should be handled in

the same manner as this court instructs the defendants to

manage copy-access to the Central Office File. Any policies

which require the inmate to name the documents tn the file

without seeing it first, a practice which the plaintiff aptly

labels as a “grab-bag” effect, violate the inmate's due

process rights.

Physical inspection of the Institutional Piles by

general population inmates poses little administrative or

security risk to the defendants and, in‘fact, is routinely

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allowed in some facilities now. Rules precluding review by

inmates in segregation. or otherwise separated from the main

population for disciplinary reasons are sensible, and may be

maintained. However, harsh limitations to annual or

bi-annual inspection, found in numerous facilities, are

unreasonable. A citizen who wishes to inspect any type of

public record is not limited to a certain number of requests

(or one) per year, under either.the Michigan or federal FOIA.

A limitation of that type would hamper the free discovery of

information regarding public affairs, since such information

is constantly growing and changing. Significantly, the

defendants have presented no justification for this arbitrary

limitation, or for its variance from one facility to another,

and the rule unfairly restricts inmates’ access rights to

highly personal information on which their liberty may hinge.

An inmate may encounter multiple occasions during a year when

the imminence of parole hearings, parole decisions, or events

otherwise affecting the term of incarceration and eligibility

for parole, compel him or her to seek information from the

files. On these occasions, no matter how near in time, the

inmates should be allowed to request copies of any documents

added since the last inspection of the Central Office File,

and to inspect or obtain copies from the Institutional File.

Requirements of due process cannot countenance any arbitrary

limitation on the number of times during a year that such a

request may be made, and all policies to the contrary cannot

stand.

The court also finds that the time limitations for study

of file materials (such as the one hour maximum at Marquette

Branch Prison, Michigan Dunes Correctional Facility, and the

Michigan Intensive Program Center) are arbitrary and

irrational, and cannot continue. The court presumes that

prison authorities can exercise reasonable discretion to

ensure that inmates examining files are not somehow taking

advantage of this ability to spend undue amounts of time away

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from other required activies. These authorities can use

their own reason to curtail over-long inspections. But the

implicit suggestion behind such limitation -- that an

incarcerated person will eagerly prolong such review

sessions, in order to achieve some unexplained and improper

or unlawful personal goal -- is the very essence of an

arbitrary Limitation, in violation of due process.

Requests for copies or for physical inspection should be

promptly answered, and the defendants are ordered to modify

existing requlations, as needed, to bring them all into

conformity with the five-day response period dictated by the

MFOIA [MCLA §15.235(2)].

Certain documents have been declared to be exempt from

any disclosure by the Department, in its regulations and

policy guidelines. It does not appear that the various

facilities’ requlations are uniform in this regard. Some are

very specific, while others offer only generic proscriptions,

such as the exemption from disclosure of information that

would “place another individual in potential danger,” or of

psychological reports whose release “would be detrimental to

the [inmate's] condition or treatment." These limitations

must be uniform among cll facilities, and the defendants are

instructed to submit a complete listing of documents -

categorized as exempt or non-exempt for the court's approval.

Only those documents whose release would pose a serious

security risk, harm te the inmate or others, or invasion of

another's privacy should be exempted.

The defendants are directed to revise the guidelines and

policies in issue, and to administer them in accordance with

this opinion. Nothing in this opinion should be construed to

invalidate or render unnecessary those parts of current

policies which are designed to protect the inmate's right of

access (Such as the duty of the Department to explain the

reason for non-disclosure of exempt material.) The inmate's

right to access, once given (by both Departmental policy

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and the MFOIA) cannot be rendered useless by strict and

arbitrary limitations. Inmates are to be informed of the new

policies, once formulated, and the parties are requested to

compose a plan permitting monitoring of compliance with this

opinion and order by the plaintiffs’ counsel, over the next

six months. No damages are awarded to the plaintiff for past

violations of their due process rights, or their rights under

the MFOIA.

DISTRIBUTION OF THE PAROLE INFORMATION BOOKLET

The second issue presented to the court on cross-motions

(defendants having addressed it in oral argument, but not in

their brief), concerns the dissemination of a parole

information booklet. The parties have stipulated to

composing the booklet, and argee to its inclusion in the

Resident Guide Book -- a large compilation of prison rules

and regulations which is given to all inmates upon entering

the institution. :

. The defendant argues that this method of distribution is

sufficient to inform inmates of their rights in the parole

process. Plaintiff submits that the information contained in

the booklet should be redistributed to individual inmates, at

the time that they begin the parole process. Zach inmate is

entitled to a meeting with officials at the initiation of ©

this process to prepare a Parole Eligibity Report, and

plaintiffs suggest that this is the occasion on which the

booklet should be redistributed to the inmate.

Defendants’ reason for opposing this suggestion is that

it is “unnecessary.” The plaintiffs have pointed out that

the administrative burden and the expense of a second

distribution would be minimal (projecting that a two-year

supply, of 15,000 copies, would costs $1,000.00).

The procedure that plaintiff requests is more useful to

inmates, for whom the time between entry into an institution

and parole eligibility may be long. They are frequently

moved among the various institutions of the system, and have

12a:

minimal control over the security of their possessions.

Defendant does not earnestly oppose it, and plaintiffs'

motion is therefore granted. ,

ATTORNEY FEES

Plaintiffs seek attorneys fees for their successful ‘

litigation of this civil rights suit, under the authotity of

42 USC §1988. The court will award such fees based upon the

parties’ agreement upon amount, or upon motion filed within

thirty days of the entry of judgment in this case.

Copa Mer \G NG

ANNA DIGGS TAYLOR,

United States ng Court

Dated: March 31, 1981

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"138

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- UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF MICHIGAN

EASTERN DIVISION

JAMES A. SWEETON, et al,

Plaintiffs,

-yYs- oe. NO. 77-72230

PERRY JOHNSON, et al,

Defendants.

/

EXCERPT - OPINION

BEFORE THE HONORABLE ANNA DIGGS TAYLOR, JUDGE

On Thursday, May 31, 1984, Detroit, Michigan

APPEARANCES:

ROBERT GILLETT, ESQ.

Attorney-at-Law

Appearing on behalf of Plaintiffs...

WILLIAM GOODMAN, ESQ.

Attorney-at-Law

Appearing on behalf of Plaintiffs

BRIAN MACZENZIE, ESQ.

Attorney-at-Law

Appearing on behalf of Defendants

Bradiy L.B. Wiitliams, CSR-1339

Officia*x Court Reporter

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Detroit, Michigan

May 31, 1994

(The Following is an excerpt)

THE COURT: In the Defendant's motion to vacate

the Court's final order, consolidation of opinion order

and consent judgments dated September lst, 1961, is denied.

The Court first must note that a Judge's mental finality

is central to the exercise of judicial powec and

responsibility.

If simply putting an end to disputes were not

a valuable social goa’, there would never be a reason foc

Courts to exist, because our purpose on this earth is to

accomplish that purpose. aAnd, the argument presented here

by this motion, proponents of this motion, wai it sort

of as a simple futility, on the face of it, particularily

in United States Disttrict Court, I suppose in the United

States Judiciary.

The Court also notes that it's final order does

reflect a numbec of agreements which were entered into

voluntarily by the parties to this case. Many of the matters

in the order wece not adjudicated by this Court, but were

hammered out by the parties, often under the auspices of

the Court, but not by the Court's decision making the 6th

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136

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Circuit Court of Appeals, noted in Williams vs Goobivitch

(ph), 620 Fed Sec., 909, a consent decree is essentially

a settlement agreement subject to continued judicia® policin

the terms of the decree unlike those of a simpie contract,

have unique properties. A consent decree has an attribute

of both a contract and a Judicia? act. A consent decree

should be strictly construed to preserve a bargain or positi:

of the parties.

A Court has no occasion to resclve merits of

disputed issues or the factual underpins of the various

legal theories advanced by the parties. A consent decree

is also a final judicia® order, judicial approval of a

settlement agreement, placing the power and the prestige

of the Court behind the compromise struck by the parties.

And, this final order of the Court is indeed, a compromise,

and on page two, Section One, paragraph B, the final order

states, "This final order is not intended to constitute

an admission of liability by Defendants on those issues

resolved by the consent judgments of June ll, 1980, and

December 16, 1980."

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

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jucisdiction and the Court issue has been resoived against

defendant by a finai 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 against at least that many times on, specifically,

the question of whether this Court had jurisdictional

authority to hear and decide this case.

These rulings commence with Judge Feikens' decision

in favor of the Federa. jurisdiction in August of 1978.

And, this Court in March of 1981, again found that there

is Federal jurisdiction. The law in this case, as formu‘ated

by Judge Feikens more than two years ago when this litigation

was on his docket, is that the existence of State Statute

regulations and policies regarding the paro'e system, as

a whole, impart independent liberty interests for those

inmates participating in the system. So, this Court

previous!ty decided the jurisdictional question and its

decision is Res Judicata, and is the law of the case.

As to the chalienges made, Defendants appealed

from that decision, and they voluntarily dismissed their

appeal and that decision in al! other points.

ThePenthurst (ph) decision is not applicable in

a situation of this posture. In this case the Court did

have proper Federa-* jurisdictional authority over the mattec.

117A.

And incidentally the Piaintiff's claim the Michigan Freedom

of Information Act - - their access to file the claim in

the 8-28-1981 order, is noted. The caim under the Freedon

of Information Act in Michigan is handled by stipulation

in that order that that claim does not, in and of itself,

create constitutional due process rights.

However, the stipulation recognized as well, this

Court's authority to interpret the Michigan Authority to

the pending jurisdiction of the Court, because of this Court":

jurisdiction of the other matters.

The Defendants finally waived the.r immunity,

completely, by theic participation in every step of this

litigation. On the merits, they're releiving themseves

of complete litigation of the controversy between the parties

by obtaining a settlement from Plaintiffs and.getting approva.

of this Court of that settlement agreement without admitting

to any wrong doing or liability.

The issue of jurisdiction, as all other issues

in the case have been resoived by settement between the

parties, and the orders entered, permanentiy, thereto, and

there has been complete waiver of any question of the

jurisdiction of this Court in the matter.

As to the argument as to whether Federal

jurisdiction is presented by the claims of the plaintiff,

under the present state of the Law, although this present

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state ot the law does not govern vhe Situation, the Court

notes that the Michigan Law, rules and regulations, as it

found before, stil! do create the liberty interest of

releasability under certain ciecubetances., a presumption

of releasability that Plaintiffs maintain for the prisoners.

That is a Federally actionable right, that is

a constitutiona! liberty interest over which this Court

always has jurisdiction. So, the request to vacate the

Court's order in the matter is denied.

(Excerpt Concluded)

190

Ld

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District Court Judge, For the Eastern District of Michigan, at

STATE OF MICHIGAN)

) ss.

COUNTY OF OAXLAND)

I Bradly L.3. Williams, do hereby certify that

I repocted the proceedings had in open Court in the above entitled

matter before the HONORABLE ANNA DIGGS TAYLOR, United States

the time and place hereinbefore set forth; that the same was

thereafter reduced to typewritten form under my supervision, and

that the foregoing transcript is a ful, true and accurate

transcript of my stenotype notes.

x

tl, FB. tidlhiew—ih

Bcad'y(@.B. Williams, CSR-1339

Official Court Reporter

«* «ee .

Dated: April 20, 1990

Any mechanically produced copies of this transcript are certified

only with origina® signature.

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