Amicus Curiae Brief — Miller v. French

Feb 3 dow

SUPREME COURT OF THE UNITEILSILATES.

Supreme Court, U.S.

Y) FILED

No. 99-224 se 8 oe

IN THE CLERK |

CHARLES B. MILLER, SUPERINTENDENT OF THE

PENDLETON CORRECTIONAL FACILITY, et al.,

Petitioners,

Vv.

RICHARD A. FRENCH, et al,

Respondents.

On Writ

of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICI CURIAE, THE ASSOCIATION OF

STATE CORRECTIONAL ADMINISTRATORS AND

THE CITY OF NEW YORK, IN SUPPORT OF INDIANA

PETITIONERS

Michael D. Hess

Corporation Counsel of the

City of New York

Leonard J. Koerner

Lorna B. Goodman

Counsel for Amicus Curiae

the City of New York

100 Church Street

New York, NY 10007

(215) 788-0999

Sarah B. Vandenbraak*

Chief Counsel of the

Pennsylvania Department

of Corrections

Peter A. Hobart

Counsel for Amicus Curiae

The Association of State

Correctional Administrators

55 Utley Drive

Camp Hill, PA 17011

(717) 731-0444

* Counsel of Record

°

pps : QUESTIONS PRESENTED

, id She | Do the federal courts retain the equitable power to stay the

Sich SL eel ip ene he ra dee : ; automatic stay provision of the Prison Litigation Reform

pee | Is the automatic stay provision of the PLRA constitutional

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TABLE OF CONTENTS

Page

QUESTIONS PREGENTED ....:scccsccsescscsavscsunns i

TABLE OF AUTHORITIES ...........cccecccescvceees iii

INTEREST OF AMICI CURIAE ............cseeeceesees 1

SUMMARY OF THE ARGUMENT ............-+++005: 1

ARGUMENT ...cccccccccccccccccsesseesesseeunenees 3

THE COURT OF APPEALS ERRED IN HOLDING

THE AUTOMATIC STAY PROVISION OF THE

PLRA UNCONSTITUTIONAL ...........-++555: 3

A. The PLRA ..cccscvcnsnsesesseuneenneee 3

B. Post-PLRA Litigation and Congressional

Cc. The 1997 Automatic Stay Amendments .. 10

D. The PLRA Does Not Permit a Federal

Court to Stay the Automatic Stay ........ 13

E. The Automatic Stay Does Not Violate

Separation-of-Powers Principles ........ 17

CONCLUGION 20. ccccccccccccsccecscessneshuesenen 28

TABLE OF AUTHORITIES

Cases: | Page

Aircraft & Diesel Equip. Corp. v. Hirsch, 331 US. 752 (1947) 14

Alberti v. Klevenhagaen, 46 F.3d 1347 (5th Cir. 1995) ..... 24

Alden v. Maine, 119 S. Ct. 2240 (1999) .. 0... 66 21

Bates v. Johnson, 901 F. 2d 1424 (7th Cir. 1990) .......... 22

Bell v. Wolfish, 441 U.S. 520 (1979) .. 0.0... cece e ee 19

Benjamin v. Kerik, 1999 U.S. Dist. Lexis 19694 .......... 25

Buffington v. Day, 78 U.S. 113 (1871) ... 0... ee ee eee 21

Board of Educ. v. Dowell, 498 U.S. 237 (1991) ............ 19

Cagle v. Hutto, 177 F.3d 253 (4th Cir. 1999) .............. 7

Chagnon v. Bell, 642 F.2d 1248 (D.C. Cir. 1980) .......... 27

City of Boerne v. Flores, 521 U.S. 507 (1997) .... 00... ..45. 18

Columbus Bd. of Educ. v. Penick, 439 U.S. 1348 (1978) ..... 20

Connecticut National Bank v. Germaine, 503 U.S. 249

EES EES IEE LEDS SEP OCT OTETT TELE TT 14

Crawford-el v. Britton, 523 U.S. 574 (1998) ...........45. 27

-lii-

TABLE OF AUTHORITIES (Continued)

Cases: Page

Dunn v. Carey, 808 F.2d 555 (7th Cir. 1986) ............. 22

Ex Parte Virginia, 100 U.S. 339 (1880) ..............565. 18

Farmer v. Brennan, 511 U.S. 825 (1994) ...........000055 15

French v. Duckworth, 178 F.3d 437 (1999) ............45. 23

French v. Owens, 538 F. Supp. 910 (1982) ............. 16,18

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...... 66... eee ee 20

Hadix v. Johnson, 933 F. Supp. 1360 (E.D. Mich. 1996) .... 8

Hadix v. Johnson, 933 F. Supp. 1362 (W.D. Mich. 1996) ... 8

Harris v. Reeves, 946 F.2d 214 (3d Cir. 1991) ............. 23

In re Duncan, 139 U.S. 449 (1891) ... 2.6... ec eee 23

INS v. Pangilinan, 486 U.S. 875 (1988) ...... 2... 66s eee ee 14

Kasper v. Board of Election Comm’r of Chicago, 814 F.2d 332

Nf re rr 22

Katzenbach v. Morgan, 384 U.S. 641 (1966) .............- 18

Leslsz v. Kavanagh, 807 F.2d 1243 (5th Cir.) ............. 22

Lewis v. Casey, 518 U.S. 343 (1996) ........ 6 eee 15,19,20

Loyd v. Alabama Dept. of Corrections, 176 F.3d 1336 (11th

GO TIGSD ccccvccsecccdbecccccccosccessoccsess 7

-iv-

TABLE OF AUTHORITIES (Continued)

Cases: Page

McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352

SEEN Socnccucccesuseeesecetecceccocecssessn 14

Milliken v. Bradley, 418 U.S. 717 (1974) ................. 19

Missouri v. Jenkins, 515 U.S. 70 (1995) .................. 19

O’Lone v. Shabazz, 482 U.S. 342 (1987) .............046. 15

Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984) .... 22

Sedbeseasencesevercococoecesess 14

Preiser v. Rodriguez, 411 U.S. 475 (1973) ................ 20

Printz v. United States, 521 U.S. 898 (1997) ............ 20,21

Procunier v. Martinez, 416 U.S. 396 (1974) .............. 20

Ruiz v. Johnson, 178 F.3d 385 (5th Cir. 1999) ........... 8,23

Sandin v. Conner, 515 U.S. 472 (1995) ..............045. 15

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ..... 14

Smith Land & Imp. Corp. v. Celotex, 851 F.2d 86

on Be A ES Se ee re ee 14

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1

PED“ Seescdebeucecédccenecdcescensdacesheonsraks 19

TABLE OF AUTHORITIES (Continued)

Cases: Page

Taylor v. United States, 181 F.3d 1017 (9th Cir. 1999) ...... 7

Turner v. Safley, 482 U.S. 78 (1987) ............0005. 15, 20

United States v. Lopez, 514 U.S. 549 (1995) .............. 21

United States v. Michigan, 989 F. Supp. 853 (W.D. Mich.

TIED cccccvccscccceseccsteccscetoccsseseccescoses 8

Wilson v. Seiter, 501 U.S. 294 (1991) .... 22.20... eee eee 15

Constitutions, Statutes ond Rules:

8 Er eee ee eee 23

SS EE ccntaccédensdcencécesinadveuedevescdiooss 26

Congressional Hearings, Reports, and Bills:

Act of Nov. 26, 1997, Pub.L. No. 105-119, Title 1,

es SN SRL EPS cccicccovscvesdosccsevestoess 11

Cong. Rec. $10,576-10,577 (daily ed. Sept. 16, 1996) ...... 9

Cong. Rec. $14,316-14,317 (daily ed. Sept. 26,1995) ...... 6

Cong. Rec. $14,756-14,759 (daily ed. Sept. 29,1995) ...... 5

Cong. Rec. HR 1895-1898 (daily ed. March 7, 1996) ...... 5

TABLE OF AUTHORITIES (Continued)

Cases: Page

Cong. Rec. $12,268-12,269 (daily ed. Nov. 9, 1997) ...... 11

H.R. 104-537 104th Cong. (1996) ..........0c0ceeeeeeee. 5

H.R. 554, 104 Cong. (1995) ..........cecececececececees “a

H.R. 667, 104 Cong. (1995) ..........cccececececeeeees 45

H.R. 2076, 104 Cong. (1995) .........ececececeeeeeuees 5

H.R. Conf. Rep. No. 104-378, 104th Cong., 1st Sess. (1995) . 5

House Report No. 104-21 on H.R. 667, 104 Cong., (1995) .. 4

Implementation of Prison Litigation Reform Act:

Hearings Before Senate and House Joint Committee,

PENNE woveccccccccscesisccsesccceces 9,10,25

Overhauling the Nation's Prisons: Hearing Before the Senate

Judiciary Committee, 104 Cong. (1995) ............005. 24

Prison Reform: Enhancing the Effectiveness of Incarceration:

Hearings on S.3, S. 38, S. 400, S. 866 & H.R. 667 Before the

Committee on the Judiciary, United States Senate, 104 Cong.

PP Gie ceckacuedentnddubasbeuesscans cada 6,12

Be NEED Sedveccesctecctccecesnudescas 4,5

Fh ED ENED Se cd cccsesdcdcevevectessciies 5

Pe ee EN UED 0c ehocdevesetiscccccccsseces 5

-Vil-

TABLE OF AUTHORITIES (Continued)

Cases:

Veto Message, Cong. Rec. H15,166-15,167

(daily ed. Dec. 19,1995) .... 6... cece cece e ee eens

Law Reviews, Articles and Other Authorities:

Deborah Jones Merritt, The Guarantee Clause and State

Autonomy: Federalism for a Third Century, 88 Col. L.

Rae. 0, BPG GED oc cccSeccccccccccncccnssvcses

Diiulio, John J., Governing Prisons: A Comparative

Study Of Correctional Management. —

REED oc sciebéeussieesdseséeasseesese

John Dilulio, A Philadelphia Crime Story, Wall St. J.,

Gat, BE, FIPS GR ARE cc cccccccscccccccscccctcoces

Michael W. McConnell, Why Hold Elections? Using

Consent Decrees to Insulate Policies From Political

Change, 1987 U. Chi. Legal F. 295 ............0005.

Sarah Vandenbraak, Bail Humbug!, Pol'y Rev.,

ED ek de Re re ee eae

-Viil-

INTEREST OF AMICI CURIAE '

The Association of State Correctional Administrators

("ASCA") is a professional association whose members consist

of the directors of state Departments of Corrections, Puerto Rico,

the United States Virgin Islands, and four large urban

correctional systems (Cook County, Illinois; New York City,

New York; Philadelphia, Pennsylvania; and Washington, D.C.).

Through these fifty-eight top correctional administrators, ASCA

seeks the improvement of correctional services and practices. As

the top managers of state and large correctional agencies,

ASCA’s members are substantially affected by federal court

orders managing prisons, and judicial determinations of motions

to terminate prospective relief under the PLRA.

Amicus, the City of New York, is subject to intrusive

federal consent decrees affecting its jails. It filed a PLRA

termination motion almost four (4) years ago. The district court

has issued an order blocking implementation of the automatic

stay.

STATEMENT

Amici adopt petitioners’ statement.

SUMMARY OF THE ARGUMENT

1. The Prison Litigation Reform Act ("PLRA") substantially

changed the criteria for federal court management of state and

local prisons. The PLRA also established a mechanism for courts

' The parties have consented to the filing of this brief by ASCA. Letters

indicating their consent have been filed with the Clerk of the Court. Pursuant

to Rule 37.6 of the Rules of \.1is Court, amici state that no counsel for a party has

authored this brief in whole or in part, and that no person or entity, other than

the amici, its members or its counsel, has made a monetary contribution to the

preparation or submission of this brief.

to review and terminate previously entered injunctions and

consent decrees that were no longer necessary to remedy

existing constitutional violations. Recognizing that delayed

determinations of PLRA termination motions could effectively

deny state and local prison officials relief, Congress directed that

federal courts should rule promptly on termination motions. In

addition, Congress provided that the underlying consent decree

or injunction would be stayed after sixty (60) or ninety (90) days

if the court failed to enter a final ruling on the termination

motion. Congress also granted all parties the right to seek

appellate court relief to ensure a prompt ruling or to challenge

an order blocking the automatic stay.

2. In reviewing this scheme, the Seventh Circuit correctly

concluded that the PLRA does not grant a federal court the

power to enter a stay of the PLRA’s automatic stay provision.

The plain language of the PLRA does not authorize a "stay of the

stay.” Rather, the PLRA simply authorized an interlocutory

appeal of any order blocking or staying the automatic stay. The

text of the PLRA and its legislative history make clear that this

limited appellate remedy was enacted solely to provide an

avenue for relief when a federal court refused to enforce the

PLRA’s automatic stay provisions. The fact that the PLRA does

not explicitly preclude a federal court from "staying the stay"

cannot be construed as a license for a court to invoke its

“inherent common law equitable powers” to disregard the

PLRA’s clear statutory scheme.

3. The Seventh Circuit, however, mistakenly concluded that the

PLRA’s automatic stay provision is unconstitutional because it

allegedly strips judicial decision-making power from a court.

On the contrary, the PLRA simply stays a decree’s effectiveness

if the plaintiff fails to obtain within sixty (60) or ninety (90) days

3

a proper judicial determination that the injunction remains

necessary to correct a constitutional violation. The PLRA is thus

an appropriate exercise of Con ‘s power to establish

remedies for constitutional violations and establish rules of

procedures for the court. More importantly, the PLRA is

—_ designed scheme to protect the Constitution's federal-

state b :

ARGUMENT

THE COURT OF APPEALS ERRED IN HOLDING THE

AUTOMATIC STAY PROVISION OF THE PLRA

UNCONSTITUTIONAL

The court of appeals erred in holding the PLRA’s automatic

stay provision unconstitutional under separation-of-powers

principles. The PLRA, with its automatic stay, is a measured and

appropriate legislative response to protect the sovereignty of the

states in the management of their prisons. This Court should

reverse the order of the lower court and uphold the automatic

Stay.

A. The PLRA’

The legislative history of the PLRA demonstrates that

Congress sought to prevent needless interference with the

? We recount the legislative history of the PLRA in some detail because of the

statutory interpretation question this case presents. While we believe the

statute is clear enough to make it unnecessary to resort to external interpretive

aides, if the Court disagrees, we respectfully suggest that it should turn to that

history ahead of the various canons proposed by the Department of Justice in

order to resolve ambiguities. We likewise note that the history recounted here

is all of the type that this Court has previously ruled it is proper to resort to in

such a circumstance. See Wright v. Mountain Trust Bank, 300 US 440, 463-64

(1937) (resorting to Congressional committee reports); McLean v. United States,

226 U.S. 374, 380 (1912) (resorting to exposition on the floor by bill’s sponsors);

Duplex Printing Press Co. v. Deering, 254 U.S. 443, 475 (1921) (resorting to

comparison of successive drafts); United States v. Pfitsch, 256 U.S. 547, 551

(1921)(resorting to debates in general to show common agreement on purpose).

4

administration of state and local prisons. Prior to the PLRA’s

consideration, various commentators had noted that federal

prison litigation orders caused substantial public safety

problems, wasted taxpayer dollars, and needlessly interfered

with state and local governments.’ Congress became concerned

that some federal courts’ judges were exercising overbroad

supervisory powers—often without evidence of any ongoing

federal violations—in prison conditions litigation.

In 1995, the House and Senate considered various bills to

address these concerns.‘ In addition, in two hearings Congress

> See, e.g., DIULIO, JOHN J., GOVERNING PRISONS: A COMPARATIVE STUDY OF

CORRECTIONAL MANAGEMENT. (Collier Macmillan, 1987); John Dilulio, A

Philadelphia Crime Story, Wall St. J., Oct. 26, 1994 at A21; Sarah Vandenbraak,

Bail Humbug!, Pol'y Rev., Summer 1995, at 73-76; Michael W. McConnell, Why

Hold Elections? Using Consent Decrees to Insulate Policies From Political Change,

1987 U. Chi. Legal F. 295.

* The PLRA began as various bills in the House and Senate. In the House, the

provisions regulating prospective relief in prison conditions first appear in

H.R. 554, 104 Cong. (1995), which was introduced by Congressman Canady

on January 18, 1995, and referred to the Subcommittee on Crime of the House

Judiciary Committee. The Chairman of the Subcommittee on Crime of the

House Judiciary Committee, C n McCollum, then included them as

Title Il] of H.R. 667, 104 Cong. (1995) (Title III), a broader bill on various

aspects of incarceration that he introduced on January 25, 1995. The House

Committee on the Judiciary marked up H.R. 667 a week later and sent it to the

floor with an accompanying report, House Report No. 104-21 on H.R. 667, 104

Cong,, lst Sess. (Feb. 6, 1995) (Violent Criminal Incarceration Act of 1995, Title

III) (hereinafter “House Report 21"), which contains important commentary on

the provisions that ultimately became Section 802 of PLRA. The House passed

H.R. 667 on February 10, 1995 and sent it to the Senate.

In the Senate, S. 400, 104 Cong. (1995) introduced by Senator Hutchison on

February 14, 1995, contains the same early version of the PLRA provisions on

prospective relief as H.R. 554 and H.R. 667. On July 27, 1995, shortly before the

PO EE Te me

5

heard from numerous witnesses who raised substantial concerns

about the number of state prison systems and local jails under

the control of federal courts; the longevity of court orders and

consent decrees; the micro-management by federal judges; the

August recess, the Senate held a hearing on various legislation relating to

prison reform, including S. 400 and H.R. 667, chaired by Judiciary Committee

Chairman Hatch and Senator Abraham. On September 26, 1995, Senator

Abraham introduced S. 1275, 104 Cong. (1995), co-sponsored by Senators

Hatch, Specter, Kyl, and Hutchison. The core provisions are found in section

2, which significantly modified prior versions of the prospective relief

provisions. The following day, Majority Leader Dole introduced S. 1279, 104

Cong. (1995), cosponsored by Senator Hatch, Senator Abraham, the other

Senate cosponsors of S. 1275, and additional Senators, including Senator

Gramm, the Chairman of the Commerce-Justice-State Appropriations

Subcommittee. S. 1279, 104 Cong. (1995) was a broader bill on incarceration

(more similar in scope to H.R. 667). Section 2 of S. 1279 consisted of the

prospective relief provisions contained in S. 1275, with a few additional

modifications. On September 29, on the Senate floor, Senator Hatch then

added the text of S. 1279 as an amendment to H.R. 2076, 104 Cong. (1995) the

annual Commerce-Justice State appropriations bill, which had been reported

to the floor by Senator Gramm’s Subcommittee. Cong. Rec. $14,756-14,759

(daily ed. Sept. 29, 1995). The Senate passed H.R. 2076 that same day and

requested a conference with the House. The conference reported an agreed

upon version of the bill that retained the PLRA provisions added by the Senate

with a few changes not relevant to this case. See H.R. Conf. Rep. No. 104-378,

104th Cong., 1st Sess. (Dec 1, 1995) at pp.166-67 (discussing purposes of the

PLRA). Both Houses of Congress approved the conference version of the bill,

but the President vetoed it (with no reference to the PLRA provisions). See

Veto Message, Cong. Rec. H15,166-15,167 (daily ed. Dec. 19, 1995). A later

version of the Commerce-Justice-State appropriations bill, still containing the

same PLRA provisions, was then included in a final omnibus appropriations

bill negotiated with the White House that ultimately became law. See H.R. 104-

537 (Conf. Rep. To Accompany HR3019) 104th Cong., 2d Sess., pp. 69 et seq.

(April 25, 1996); Cong. Rec. HR 1895-1898 (daily ed. March 7, 1996). House

Report 104-537 provides that the controlling portions of H.R. No. 104-378

“remain controlling and are incorporated herein by reference.”

6

unwarranted intrusion into state and local governments; the

problems of courts not knowing “when to let go;" problems of

defining when compliance has been reached; and the

inappropriate ceding of the electorate’s power to change policy

through electing a new administration.”

Congressional sponsors responded to these concerns by

restricting the scope of consent decrees and contested

injunctions.° The PLRA explicitly required, for example, that all

orders for prospective relief—including consent decrees—meet

traditional injunction standards, that trial judges make written

findings in support of these orders, and that prison population

caps be a remedy of last resort. The PLRA also established a

> See Prison Reform: Enhancing the Effectiveness of Incarceration: Hearings on S.

3, S. 38, S. 400, S. 866 & H.R. 667 Before the Committee on the Judiciary, United

States Senate, 104th Cong. 1st Sess. (1995) at pp. 26-32 (testimony of William P.

Barr, former Attorney General, United States Department of Justice); pp. 32-37

(testimony of Paul T. Cappuccio, former Associate Deputy Attorney General,

United States Department of Justice); pp. 106-115 (testimony of O. Lane Cotter,

Executive Director of the Department of Corrections for the State of Utah); pp.

37-45 (testimony of John J. Dilulio, Professor of Politics and Public Affairs,

Princeton University); pp. 45-51(testimony of Lynne Abraham, District

Attorney of Philadelphia); pp. 54-60 (testimony of Michael Gadola, Director,

Office of Regulatory Reform, State of Michigan). See also pp. 51-52 (Resolution

of December 3, 1994, Nationa! District Attorneys Association).

° See, e.g., 141 Cong. Rec. $14,316-17 (daily ed. September 26, 1995) (remarks of

Sen. Abraham) (making clear that he sought to curtail interference by the

federal courts in the orderly administration of prisons, to enable the states to

run prisons as they see fit unless there is a constitutional violation; to give

substantial weight to any adverse impact on public safety or the operation of

the criminal justice system caused by the relief; and to end the enforcement of

consent decrees under which judges control the prisons literally for decades).

See also 141 Cong. Rec. $14,418 (daily ed. Sept. 27, 1995)(remarks of Sen.

Abraham); 141 Cong. Rec. H14,105 (daily ed. Dec. 6, 1995) (remarks of Rep.

Canady).

—

7

scheme for promptly terminating court orders that were no

longer necessary to remedy constitutional violations.

Specifically, the PLRA allowed a government defendant to seek

termination where the injunction was entered without specific

findings (consistent with the traditional injunction standards),

or where the injunction was over two years old. The prisoners,

however, could prevent termination where they proved a

current or ongoing constitutional violation.

As part of this prompt termination scheme, Congress

recognized the compelling need for speedy judicial rulings. The

PLRA thus contains a requirement that the court rule "promptly"

on a motion to terminate. In addition, the PLRA established an

“automatic stay,” providing that the underlying prospective

relief would be stayed if the motion to terminate was not finally

adjudicated within thirty (30) days. The PLRA’s sponsors made

clear that this automatic stay provision was necessary to address

the problem of judges delaying or refusing to rule on

termination motions and the ineffectiveness of current

mechanisms—such as mandamus actions—to address the

problem. See House Report 21. The sponsors thus added the

new concept of an "automatic stay" to motivate judges to "decide

the motions and avoid having the stay automatically take effect."

Id.

B. Post-PLRA Litigation and Congressional Responses.

Following the enactment of the PLRA, many jurisdictions

moved to terminate long-standing court orders. See e.g., Cagle v.

Hutto, 177 F.3d 253, 255 (4th Cir. 1999); Taylor v. United States,

181 F.3d 1017, 1021 (9th Cir. 1999); Loyd v. Alabama Dept. of

Corrections, 176 F.3d 1336, 1344 (11th Cir. 1999). However,

Congress quickly became aware that several judges had

responded to motions to terminate by issuing orders blocking

the implementation of the automatic stay, mostly on the ground

that in their view it was unconstitutional. Hadix v. Johnson, 933

F. Supp. 1360 (E.D. Mich. July 5, 1996); Hadix v. Johnson, 933 F.

Supp. 1362 (W.D. Mich. July 3, 1996); United States v. Michigan,

989 F. Supp. 853 (W.D. Mich. July 3, 1996); see also In Re Scott, 163

F.3d 282, 284 (5th Cir. 1998) (describing September 25, 1996

Texas district court order blocking the automatic stay). States

and localities had no success in obtaining judicial review of these

orders either by way of appeal or mandamus. See Hadix v.

Johnson, 144 F.3d 925, 932 (6th Cir. 1998) (recounting court of

appeal’s refusal to grant mandamus against further evidentiary

hearings because of district court's failure to honor automatic

stay); Ruiz v. Johnson, 178 F.3d 385, 388 (5th Cir. 1999) (describing

order finding district court’s refusal to rule immediately on

motion to terminate not appealable and refusing to issue

mandamus).

Congress also became aware that, rather than challenging

this outcome, the Department of Justice was essentially

supporting it. The Department was not arguing that the stay

was in fact unconstitutional, but rather that it would be if "given

a literal construction,” and that the courts should therefore

construe it to allow the courts to suspend it using their "inherent

powers.”

In response, eighteen members of the Senate first wrote

a sharp letter to the Attorney General urging her to reconsider

the argument the Department was making on the automatic stay

? The same argument was made in the United States’ Motion for

Reconsideration in the Ruiz v. Scott, No. CIV.A. H-78-987 (S.D. Tex.), available

online at 1996 WL 932104, *17-21.

Oe RE ee

9

on the ground that it essentially nullified the provision.’ The

t, however, declined to change its view. Thereafter,

on September 16, 1996, Senator Abraham gave a speech on the

floor of the Senate decrying the t's automatic stay

interpretation as “ludicrous.” 104 Cong. Rec. S10,576-77. He also

stated his intention, either in connection with the next

Commerce-Justice-State appropriations bill or in some other

context, to clarify the law further so as to avoid any possibility

that this misinterpretation might persist. Id. In addition, Senator

Hatch and Senator Abrahani took the unusual step of holding a

Senate Judiciary Committee hearing a week later to examine

PLRA implementation problems and possible solutions. See

Implementation of the Prison Litigation Reform Act: Hearings before

the Senate and House Committees, 104 Cong. (1996) (hereafter

“Implementation Hearing").

Senator Hatch opened the hearing by noting the

Department's filings and stating that if the Department's

positions were accepted by the courts, they would have the

effect of undermining the PLRA. See Implementation Hearing

(statement of Senator Hatch). The Department of Justice's

representative, Associate Attorney General John Schmidt,

responded by acknowledging that the Department had been

urging judges to rule that they had the inherent power to "stay

the stay,” but that he did not expect this position to interfere

with prompt resolution of motions to terminate prison

conditions decrees. See Implementation Hearing, (statement of Mr.

John Schmidt, Associate Attorney General, United States

Department of Justice) He also raised concerns that the 30 day

time period was too brief to permit fully discovery and hearings

on termination motions. Id.

* Letter from Orrin Hatch, Senator, et al. to Janet Reno, Attorney General (July

23, 1996)(requesting changes in Dept. of Justice positions concerning PLRA

interpretation).

10

At the same hearing, several state and local jurisdictions

raised concerns about the delays in termination rulings, orders

blocking implementation of the automatic stay, and the

Department's “stay of the stay” position. Governor Engler of

Michigan described the tremendous expense Michigan faced as

a result of an order requiring the break-up of a prison system.

Even when the court of appeals granted a discretionary stay,

Michigan taxpayers paid five to ten million in construction delay

expenses while the district court determined whether to

terminate the consent decrees. See Implementation Hearing,

(statement of Gov. Engler). Other witnesses echoed these

concerns.

In addition, in response to Senator Abraham's specific

inquiries about the effect of the Department of Justice’s position

that courts should be permitted to “stay the stay,” witnesses

expressed substantial concerns. They noted that it would

undermine their ability to run prisors and that judicial delay

would effectively deny them relief estai lished by the PLRA. See

Implementation Hearing (statement of Sen. Abraham) (statements

of Laura Chamberlain and Sarah Vandenbraak).

C. The 1997 Automatic Stay Amendments.

The 104" Congress adjourned sine die the following week,

so no further legislative action was taken at that time. On the

first day of the next session, Senator Hatch introduced S. 3, the

Omnibus Crime Control Act of 1997. Title IX of this legislation

was designed to clarify various provisions of the PLRA so as to

remove the underpinnings for the Department's arguments.

Section 902(3) proposed two amendments to the automatic stay

language. The Congress took no action on S. 3 itself. However,

as Senator Abraham suggested in his September 16, 1996 floor

ll

speech, key Members in both houses on the Judiciary and

iations Committees obtained the inclusion of a modified

version of the language of § 902(3) of S. 3 was included in H.R.

2267, the FY 1998 Commerce-State-Justice Appropriations

Conference Report. See Act of Nov. 26, 1997, Pub.L. No. 105-119,

Title I, §123(b), 111 Stat. 2471.°

This language amended the automatic stay provision in

four ways. First, it changed the provision’s language to make it

more consistent with the language of the bankruptcy automatic

stay. See 18 U.S.C. § 3626(e)(2). This language was drawn

verbatim from § 902(3) of S. 3. Second, it authorized an

interlocutory appeal to challenge any order blocking the

implementation of the automatic stay. 18 U.S.C. § 3626(e) (4).

This language is also drawn verbatim from § 902(3) of S. 3. Third,

Congress added a new provision authorizing a mandamus

action to compel a prompt ruling on the termination motion. 18

U.S.C. §3626(e)(1). S.3 did not contain this provision, although

it did have an analogous provision allowing would-be

intervenors to seek mandamus to compel a ruling on their

intervention motions. Finally, Congress added Section 3626

(e)(3) granting the courts the ability to postpone the automatic

stay for sixty (60) days. See 18 U.S.C. § 3626(e)(3). This provision

had no counterpart in S.3.

When the H.R. 2267 conference report came before the

Senate for final passage, Senator Abraham outlined the reasons

for these changes. See 143 Cong. Rec. $12,268-12,269 (daily ed.

Nov. 9, 1997) (statement of Sen. Abraham). Specifically, he noted

* Majority Whip Tom DeLay from the Appropriations Committee and

Congressman Bill McCollum, the Chairman of the Subcommittee on Crime

of the Judiciary Committee, led in this effort in the House. Appropriations

Committee Member Kay Bailey Hutchison, Judiciary Committee Member

Spencer Abraham, and Judiciary Committee Chairman Orrin Hatch led this

effort in the Senate.

12

that “courts are supposed to rule promptly on motions to

terminate these longstanding decrees” and that the automatic

stay was intended to "discourage delay on such motions..." Id.

He noted that courts have complained that the automatic stay “is

impossible to comply with because it sets up an impossible

timetable..." Id. He rejected this contention, noting that “the

automatic stay imposes no requirement that they rule..." He

further noted that the automatic stay “only provides that if they

do not rule there is no order in effect until they do so.” He made

clear, however, that Congress was "giving the court the authority

to extend the time an additional sixty days” in order to address

this concern. Id.

In addition, Senator Abraham noted that the Department

had contended that the automatic stay was not really automatic.

Id. He explained that the modification in the language so as

“expressly to model it on the bankruptcy automatic stay” was

designed to rule out even more clearly the Department's

interpretation that the court had reserved authority to block the

stay. Id.

In the context of discussing an amendment to the PLRA

termination provision, Senator Abraham also rejected any

complaint that the termination scheme might cause prisoners to

suffer constitutional violations. He noted that “if a prisoner is

in imminent danger” of a violation of a federal right, that

prisoner has “prompt and complete remedies through a new

action filed in a state or federal court and preliminary injunctive

relief." Id. This position rejected the Department's previously

stated policy position that prisoners should not be required to

file new actions but should be able to raise all constitutional

matters in the context of the original case."

© See S. Hrg. 104-573, Prison Reform: Enhencing the Effectiveness of Incarceration:

Hearings on S. 3, S. 38, S. 400, S. 866 & H.R. 667 Before the Committee on the

Judiciary, United States Senate, 104th Cong. 1st Sess. (1995) (statement of John R.

13

Finally, Senator Abraham stated:

“The amendments ... state explicitly that any

order blocking the automatic stay is appealable,

thereby ensuring review of the district court's

action. Finally, they make clear that mandamus

is available to compel a ruling if a court is simply

failing to act on one of these motions.” Id.

D. The PLRA Does Not Permit a Federal Court to Stay the

Automatic Stay.

The Department of Justice has asserted that this Court

should not reach the issue of the constitutionality of the

automatic stay provision. It claims that this Court should find

that courts have the inherent power to suspend the automatic

stay where the prisoners show that a change in the "status quo”

would cause irreparable injury and that the defendants’

termination motion is unlikely to succeed on the merits. See

United States’ Petition for Certiorari at 12. It argues that such a

construction is necessary to save the constitutionality of the

automatic stay. These arguments are meritless.

The PLRA is clear and unambiguous. It provides that a

stay is automatic and that, at most, a court may postpone its

effect. See 18 U.S.C. 3626(e)(3). The PLRA’s termination scheme

does not authorize any suspension of this stay. The plain

language of the statute demonstrates that no suspension is

authorized.

Schmidt, Associate Attorney General, U.S. Department of Justice) (noting the

Department's policy objections to “[t]he Justice Department and other

plaintiffs” having to “refile cases in order to achieve the objectives of the

original order” and suggesting that there should be no "periodic disruptions of

ongoing remedial efforts....").

14

The Department, relying on the maxim that statutes

should not be construed in derogation of common law, suggests

that this Court should interpret the PLRA as retaining this

inherent equitable power. Thir ___‘e of statutory construction,

however, has no place here as the siatute is not ambiguous. See,

e.g., Connecticut National Bank v. Germaine, 503 U.S. 249, 254

(1992) ("When the words of a statute are unambiguous, then, this

first canon is also the last: "judicial inquiry is complete." ").

The Department's argument is also contrary to this

Court’s precedent. Where, as here, federal legislation serves

important national interests, this Court has refused to disregard

clear statutory mandates through the application of equitable

doctrines. See Seminole Tribe of Florida v.Florida, 517 U.S. 44, 53

(1996) ("Where Congress has created a remedial scheme for the

enforcement of a particular federal right, we have, in suits

against federal officers, refused to supplement that scheme with

one created by the judiciary."); McKennon v. Nashville Banner

Publ’g Co., 513 U.S. 352 (1995) (holding that “unclean hands”

doctrine does not apply to ADEA claims); Perma Life Mufflers,

Inc. v. International Parts Corp., 392 U.S. 134, 138 (1968) (holding

that “unclean hands" defense does not apply in Sherman Act and

Clayton Act Antitrust actions); See also, INS v. Pangilinan, 486

U.S. 875, 883 (1988) (courts of equity bound by statutory

requirements); Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S.

752,754 (1947) (holding that equitable intervention was

unwarranted given the statute’s “clear purpose and intent”);

Smith Land & Imp. Corp. v. Celotex, 851 F.2d 86, 90 (3d Cir. 1988)

(refusing to apply “unclean hands" doctrine to CERCLA actions

because it would “not comport with congressional objectives").

The Department's interpretation that the federal courts

may suspend the stay in order to maintain the "status quo” flies

in the face of Congress's clear intent to prevent unnecessary

federal court control over state and local prisons. It also fails to

15

account in any way for the unusual nature of this “status quo.”

A federal court's exercise of equitable powers against a state

government is itself an extraordinary event. This Court has

repeatedly recognized the momentous implications of such

actions and imposed special obligations on federal courts to

prevent unnecessary federal control. Far from warranting an

inference that federal courts must have the power to preserve

this extraordinary “status quo,” our Constitution (with its

carefully devised system of dual sovereignty) suggests the

opposite presumption: that the States ordinarily run their own

institutions.

The PLRA is designed to ensure prompt adjudications

and prevent courts from holding onto decrees beyond the time

necessary to remedy the constitutional violation. The legislative

record in this case establishes conclusively that Congress did not

intend for district courts to be able to suspend the PLRA’s

automatic stay provisions. Thus, to the extent that there is any

ambiguity in the statute, this Court should interpret the statute

consistent with the clear intent of the legislative sponsors.

Indeed, this case vividly demonstrates that Congress's

fears were well founded. Here, the injunction was entered in

1985. Since that time, this Court has issued numerous opinions

limiting civil rights claims by prisoners."’ In fact, the district

"! See, e.g. Lewis v. Casey, 518 U.S. 343 (1996) (overruling Bounds v. Smith and

holding that prisoner must show actual prejudice in an access to courts claim);

Sandin v. Conner, 515 U.S. 472 (1995) (limiting challenges to disciplinary

confinement); Farmer v. Brennan, 511 U.S. 825 (1994) (requiring actual

knowledge of the threat against the inmate in order for state actor to be liable

for an inmate-on-inmate assault); Wilson v. Seiter, 501 U.S. 294 (1991) (rejecting

a “totality of the circumstances” standard and making clear that a “deliberate

indifference standard applies to 8* Amendment claims); Turner v. Safley, 482

US. 78 (1987) (refusing to apply the strict scrutiny test to prisoner claims);

O’Lone v. Shabazz, 482 U.S. 342 (1987) (same).

16

court's finding of a constitutional violation was premised on the

“totality of the circumstances” test this Court later rejected.

Compare Wilson v. Seiter, 501 U.S. 294 (1991) (rejecting argument

that “overall conditions” can rise to the level of cruel and

unusual punishment when no specific deprivation of a single

human need exists) with French v. Owens, 538 F. Supp. 910 (1982)

(applying a “totality of the circumstances” test).

More importantly, the transcript of the temporary

restraining order hearing demonstrates that the court and the

parties had long ago lost touch with the case. At the hearing, the

court conceded that it no longer had copies of the court orders

establishing the injunctions against the prison. (Transcript of

Temporary Restraining Order, July 10, 1997 at 17-18). Likewise,

counsel had filed no motions for enforcement of the injunctions

or for contempt sanctions since 1988.

Even presuming arguendo that the PLRA somehow

permits a federal court to suspend the automatic stay, the record

here completely fails to meet the applicable preliminary

injunction standards. Contrary to the Department of Justice’s

position, traditional preliminary injunction standards are no

longer sufficient to authorize preliminary injunctive relief in

prison conditions litigation. See 18 U.S.C. 3626 (a)(2)(creating

new requirements for preliminary injunctions).

Here, the district court entered injunctive relief that had

the effect of requiring state officials to abide by the terms of a

twelve-year old decree for several more years. Under these

circumstances, the grant of preliminary injunction constituted

prospective relief as defined by the PLRA. 18 U.S.C. § (g)(7).

(defining “prospective relief"). Thus any such order itself was

required to meet the PLRA limits. 18 U.S.C. § 3626 (a). At the

very least, the court was required to enter an order that

minimized any adverse effect on the defendants. For example,

17

the court could have ordered expedited discovery and hearings

to ensure a prompt determination. The court could have

determined whether the prisoners had a good faith basis for

claiming constitutional violations as to all provisions of the

injunctions, or whether some could be terminated before the

final determination on the remaining provisions. Instead,

however, the court simply allowed the injunctions to remain in

effect without any showing whatsoever that these provisions

remained necessary to remedy anything.

This Court should hold that the PLRA does not authorize

federal judges to enter orders blocking implementation of the

automatic stay. This Court should not hold that courts have the

inherent power to "stay the stay” as such an interpretation is

clearly contrary to the PLRA’s provisions and congressional

objectives. If, however, this Court determines that the courts

have the power to enter a stay of the automatic stay, this Court

should make clear that the PLRA’s limitations on prospective

relief apply to any such orders.

E. The Automatic Stay Does Not Violate Separation of Powers

Principles.

The court of appeals concluded that the automatic stay

provision violated the separation-of-powers doctrine. This

conclusion is incorrect for the reasons set forth by the Indiana

Petitioners, and the amici briefs filed by the States and the

members of Congress. In addition, ASCA respectfully asserts

that the automatic stay carefully preserves separation-of- powers

principles.

Section 5 of the Fourteenth Amendment provides that

"[t]he Congress shall have the power to enforce, by appropriate

legislation, the provisions of this article." U.S. CONST. Amend

XIV, § 5. Section 5 is itself a "positive grant of legislative

18

power.” See Katzenbach v. Morgan, 384 U.S. 641, 651 (1966); Ex

Parte Virginia, 100 U.S. 339, 345-46, (1880). This grant of power

is "remedial" and not “substantive,” in that it grants Congress

wide latitude to create remedies to enforce constitutional rights

but not to define the scope of the underlying right. See City of

Boerne v. Flores, 521 U.S. 507 (1997). Thus, “[i]t is for Congress in

the first instance to ‘determine whether and what legislation is

needed to secure the guarantees of the Fourteenth Amendment,’

and its conclusions are entitled to much deference." Id. (quoting

Katzenbach, 384 US. at 651).

Under its Fourteenth Amendment remedial powers,

Congress passed the Civil Rights Act that created broad civil

remedies, including injunctive relief, for constitutional violations

committed pursuant to state action. See 42 U.S.C. 1983. In this

litigation, the prisoners specifically invoked Congress's civil

rights legislation as grounds for relief. See French v. Owens, 538

F. Supp. 910, 911 (1982) (noting that the federal court had

jurisdiction pursuant to 28 U.S.C. 1343 over the prisoners’ claims

pursuant to 42 U.S.C. 1983 and 28 U.S.C. §§ 2201 and 2202)

Having chosen to rely on a federal statute to get into court in the

first place, the plaintiffs can hardly complain that they should

not also be bound by Congress’s later statute limiting injunction

remedies available to prisoners.

Clearly, Congress’s broad remedial powers also permit

it to limit the Fourteenth Amendment remedies that it alone

created. Here Congress chose a careful scheme that addressed

particular problems—never-ending consent decrees, overly-

intrusive court orders, and interference with state and local

govermments—while carefully permitting prompt and effective

federal court remedies for genuine constitutional deprivations.

A legislative sensitivity to the sovereignty of states is precisely

what this Court endorsed in City of Boerne v. Flores, 521 U.S. 507

(1997) (holding that RFRA was not a proper exercise of

19

Congress’s Section 5 enforcement power because it contradicts

vital principles necessary to maintain separation-of-powers and

the federal-state balance).

Although Congress has tremendous legislative discretion

to limit civil rights remedies, here Congress chose a scheme that

supports this Court's repeated direction to confine federal court

remedial orders in prison-conditions cases to measures that are

necessary to correct unconstitutional conditions. See, e.g., Lewis

v. Casey, 518 U.S. 343, 357 (1996) ("[t]he remedy must of course

be limited to the inadequacy that produced the injury-in-fact

that the plaintiff has established"); Bell v. Wolfish, 441 U.S. 520,

562 (1979) ("[t]he inquiry of federal courts into prison

management must be limited to the issue of whether a particular

system violates any prohibition of the Constitution or, in the

case of a federal prison, a statute.").'* The principles of comity

'2 The same doctrines have also long been applied in school desegregation cases.

Federal courts’ power to restructure the operation of state and local governmental

entities is not plenary and may be exercised only on the basis of a constitutional

violation. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16(1971). See

also Milliken v. Bradley, 418 U.S. 717, 744 (1974) (providing that inter district school

desegregation remedial order was inconsistent with the equitable principle that the

scope of the remedy is determined by the nature and extent of the constitutional

violation); Milliken v. Bradley, 433 U.S. 267, 282 (1977) ("[Flederal-court decrees

must directly address and relate to the constitutional violation itself. Because of this

inherent limitation upon federal judicial authority, federal-court decrees exceed

appropriate limits if they are aimed at eliminating a condition that does not violate the

Constitution or does not flow from such a violation."); Board of Educ. v. Dowell, 498

U.S. 237, 248 (1991) ("A federal court's regulatory control . . . [should] not extend

beyond the time required to remedy the effects of past [Constitutional violations}.");

Missouri v. Jenkins, 515 U.S. 70 ("A proper analysis of the District Court's orders

. must rest upon their serving as proper means to the end of restoring the victims of

discriminatory conduct to the position they would have occupied in the absence of that

conduct and their eventual restoration of state and local authorities to the control of a

school system that is operating in compliance with the Constitution. ").

. 20

and federalism require the courts to show particular restraint in

exercising their remedial jurisdiction in the prison context. See

Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973) (holding that “it

is difficult to imagine an activity in which a State has a stronger

interest, or one that is more intricately bound up with state laws,

regulations, and procedures, than the administration of its

prisons."). »°

Quite simply, inmates in constitutional prisons are not

entitled to have a federal court, rather than the appropriate state

or local authorities, supervise the conditions of confinement.

Lewis v. Casey, 518 U.S. 343, 360 n. 7 (1996). See also, Columbus

Bd. of Educ. v. Penick, 439 U.S. 1348, 1353 (1978) (holding that

"[c]lourts have no power to presume and remediate harm that

has not been established"). By enacting the PLRA, Congress

established an orderly system for identifying and terminating

consent decrees and injunctions that were no longer necessary

to remedy a constitutional violation. The PLRA’s limits on the

remedial powers of the federal courts in prison-conditions cases

are thus an appropriate means to ensure that the control of state

and locals prisons is returned to democratically-elected state

governments.

Congress has thus issued careful protections for state

and local governments in accordance with the Constitution's

system of dual sovereignty, federalism, and comity. The

Constitution establishes a system of “dual sovereignty” where

the states surrendered enumerated powers to the federal

government but retained a “residual and inviolable sovereignty."

Printz v. United States, 521U.S. 898,909 (1997); Gregory v. Ashcroft,

501 U.S. 452, 457, (1991). The Tenth Amendment protects those

'? See also Procunier v. Martinez, 416 U.S. 396, 404-05 (1974); Bell v. Wolfish, 441

U.S. 520, 546-48, 562 (1979); Turner v. Safley, 482 U.S. 78, 84-85 (1987).

ee 21

powers that have not been granted to the federal government by

reserving those powers to the states. Printz v. United States, 521

U.S. 898(1997)."* “Under our federal system, the states

the primary authority for . . .enforcing the criminal law." United

States v. Lopez, 514 U.S. 549,561 n.3 (1995). Consequently, the

PLRA protects the states’ ability to manage their prisons, a

fundamental police power specifically reserved to the states

through the Tenth Amendment. See also, Alden v. Maine, 119 S.

Ct. 2240, 2275 (1999)(stating that the people of a state have "the .

sole, exclusive and inherent right of governing and regulating

the internal police of the same").

Congress's enactment of the PLRA helped ensure that the

government officials responsible for administering state and

local prisons would retain their right to enact new policies when

new political administrations took office. Prior to passage of the

PLRA, many prison injunctions and consent decrees, like the

modifications to the original the injunction issued in this case in

1985, contained no termination date and purported to bind

future political administrations to particular policy choices. This

practice has been severely criticized as inconsistent with the

republican form of government. See Michael W. McConnell,

Why Hold Elections? Using Consent Decrees to Insulate Policies From

'* See also Buffington v. Day, 78 U.S. 113,126 (1871) ("the general government,

and the states, although both exist within the same territorial limits, are

separable and distinct sovereignties, acting separately and independently of

each other within their respective spheres. The [federal government] in its

appropriate sphere is supreme; but the States within limits of their powers not

granted; or in the language of the Tenth Amendment, ‘reserved,’ are as

independent of the general government as that government within its sphere

is independent of the states.").

22

Political Change, 1987 U. Chi. Legal F. 295."° Other courts have

criticized the practice of litigants using consent decrees to evade

a state’s own system of checks and balances."

For these reasons, the PLRA contains provisions for the

periodic review of any consent decree or injunction order to

prevent long-term orders that hamstring subsequent political

administrations. See 18 U.S.C. § 3626 (a)(1)(B). Congress’s

enactment of the PLRA is certainly "necessary and proper"

legislation to protect the Constitution’s dual-sovereignty

structure, the Tenth Amendment powers of the states, and their

'S See also, Bates v. Johnson, 901 F. 2d 1424, 1426 (7th Cir. 1990) ("A state's right

to make fresh political choices about domestic policy as political officials turn

over may be an implied term in a consent decree, given the norm that public

officials may not bind their successors. If as a matter of state law an official

lacks authority to commit the state to maintain a rule beyond his term of office,

that official cannot accomplish through a consent decree what he has no power

to accomplish, period.”).

© See Leslsz v. Kavanagh, 807 F.2d 1243, 1253 (5th Cir.) ("If as appellees argue

a federal court may take almost any action ‘consistent with’ the ‘spirit’ of the

applicable constitutional law and the decree itself, there is no limitation on the

scope of the court's power"); Kasper v. Board of Election Comm'r of Chicago, 814

F.2d 332, 340 (7th Cir. 1987) ("district judges should be on the lookout for

attempts to use consent decrees to make end runs around the legislature”);

Dunn v. Carey, 808 F.2d 555, 560 (7th Cir. 1986) ("Because a consent decree's

force comes from agreement rather than positive law, the decree depends on

the parties’ authority to give assent . . .. Some rules of law are designed to limit

the authority of public officeholders, to make them return to other branches of

government or to the voters for permission to engage in certain acts. They may

chafe at these restraints and seek to evade them."); Overton v. City of Austin, 748

F.2d 941, 956-957 (Sth Cir. 1984) (refusing to approve consent decree where city

officials sought to create new election system contrary to state law).

23

“republican form of government" as required by the Guarantee

Clause.”

The automatic stay is a critical element of this scheme to

ensure that federal court injunctions do not needlessly remain in

effect due to judicial delay. Amici recognize that many federal

judges issue prompt rulings on PLRA motions to terminate.

However, a significant number of judges do not. See e.g., French

v. Duckworth, 178 F.3d 437, 449 (1999) (Easterbrook, J., dissenting

from the denial of rehearing en banc) (noting that once the

district court declared the automatic stay unconstitutional two

years ago it “has yet to take a single step” in ruling on the PLRA

termination motion and the "process that is supposed to be rapid

drags on with no end in sight"). Ruiz v. Estelle, 5th Cir. Order,

Dec. 16, 1998 (directing district court to enter a final order by

March 1, 1998 on PLRA termination motion filed in September

1996); See also, Harris v. Reeves, 946 F.2d 214 (3d Cir. 1991) (noting

the district court's 2 % year delay in ruling on an intervention

motion challenging a prison population cap).

The sovereignty of the state governmental structure also finds protection in

the Guarantee Clause of the Constitution. In that clause, the federal

government pledges to “guarantee to every state a republican form of

government.” U.S. Const. art. IV, § 4. This agreement to preserve the

“republican form of government” contemplated that the government officials

who ran governmental institutions would be subject to the will of the

electorate. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy:

Federalism for a Third Century, 88 Col. L. Rev. 1, 23-29 (1988). The Supreme

Court has recognized that a "republican form of government” contemplates

“the right of the people to choose their own officers for governmental

administration, and pass their own laws.” In re Duncan, 139 U.S. 449, 461

(1891).

24

When a judge fails to rule promptly on a PLRA

termination motion, it can have tremendously adverse

consequences for state and local governments. At the time the

PLRA passed, thirty-nine state prison systems operated under

some federal court order or injunction. See Overhauling the

Nation's Prisons: Hearings Before the Senate Judiciary Committee,

104 Cong. (1995) (statement of John J. Dilulio, Professor of

Politics and Public Affairs at Princeton). Some of these orders

have far-reaching operational and financial implications. Texas

prisons, for example, cannot exceed 95% of their design capacity.

See Ruiz v. Estelle, 161 F.3d 814, 825-27 (5th Cir. 1998) (describing

prison capacity limits contained in consent decrees that have the

effect of requiring Texas to build more prisons); Alberti v.

Klevenhagaen, 46 F.3d 1347, 1352 (Sth Cir. 1995) ("After years of

litigation, in 1985, the State entered into a stipulation, requiring

it to limit its prison population to ninety-five percent of

capacity.”) Given that Texas’s prototypical prisons cost $46

million each to construct, the financial implications of this prison

population cap are astounding. Under these circumstances, any

delay in deciding a PLRA intervention motion would leave

Texas without a definitive answer as to whether it must keep

building these high-cost prisons.

The court orders in Michigan also require the break up of

the Southern Michigan State Prison and the construction of new

prisons. Even though Michigan filed a PLRA termination

motion on June 10, 1996, it still awaits a final ruling in the

district court."* The court of appeals granted a discretionary stay

after the district blocked implementation of the automatic stay.

Nevertheless, Michigan faced five to ten million in construction

'* Some aspects of the consent decrees were recently terminated by agreement.

However, major portions of the consent decrees remain in effect.

25

delay costs while awaiting a final decision on its termination

motion. See Implementation Hearing (statement of Gov. Engler).

For more than 20 years incredibly intrusive consent

decrees have governed New York City’s jails.” These require

inter alia that the City supply a federal court monitor with an

office, three full-time correction officers, a car "no more than

one-step below” that of the Commissioner of Corrections and a

space in a parking garage. These accoutrements alone cost the

City approximately $300,000 per year. In May 1996, the City

moved for termination. The district court granted the motion,

finding that the prisoners did not assert that the current

conditions were unconstitutional. Nevertheless, the court of

remanded the case for evidentiary hearings. The district

court has now blocked the automatic stay (based on the court's

“inherent power") and the final hearings have not been

scheduled. Benjamin v. Kerik, 1999 U.S. Dist. Lexis 19694. Thus,

almost four (4) years after filing a PLRA termination motion, the

City remains under federal supervision even though there have

been no findings of a constitutional violation.

Under the circumstances, the automatic stay scheme

chosen by Congress (which has the constitutional power to

establish procedures for federal courts) is a measured response

that respects the role of the judiciary. The automatic stay, in

effect, makes clear to litigants that if they want to maintain a

federal court order under circumstances that legitimately cast

doubt on the continued need for a federal injunction, then they

'* For example, the consent decrees contain provisions requiring that "[nJeither

coffee, tea nor milk shall be pre-sweetened;” that certain areas of the jail be

cleaned with a solution consisting of 4 cup Boraxo to a gallon of water; and

that mops be stored in a particular manner. See, Implementation Hearing

(statements of Governor Engler and Laura Chamberlin).

26

must prove within ninety (90) days that they meet the

requirements for that injunction.

The complaints that ninety (90) days is insufficient time

to decide a termination motion are unpersuasive. If a prison is

continuing to operate unconstitutionally, the federal court and

counsel should be maintaining substantial involvement in the

case. This Court should not presume that a federal judge and

class-action lawyer (with ethical responsibilities to properly

represent the prisoner class) would allow continued

constitutional violations. Rather, if the federal injunction was

proving inadequate to prevent constitutional violations, then

contempt sanctions or further modifications of the injunction

would be necessary. In such a situation, counsel and the court

would certainly have a familiarity with the specific

constitutional issues even if the defendants moved to terminate

some or all provisions of the injunction. Ninety (90) days would

certainly be adequate time to resolve the motion, particularly

given the court's ability to order expedited discovery.

This case, however, epitomizes the more common

situation. Here, comprehensive injunctions had been issued

long ago. No enforcement notions or contempt sanctions had

been sought by counsel for almost a decade. Indeed, the district

court judge no longer had a file or copies of injunctions binding

the prison administration. Quite simply, the case was dormant

for a decade but the injunctions lived on.

Once Indiana filed to terminate the injunctions, the

prisoners’ attorney filed a response asserting that there were

constitutional violations occurring at the prison. Although the

Federal rules require that such an allegation be reasonably

investigated and supported in fact and law, the district court did

mot require any specificity. See F.R.C.P. 11. Instead, the prisoners’

lawyer was granted free-ranging discovery to inspect the

27

prisons, searching for possible constitutional claims.” Not

isingly, the PLRA termination motion has yet to be

decided. Certainly, the prisoners have no incentive to proceed

to a hearing; they continue to enjoy the full benefits of the

injunctions without any showing that they are still needed to

prevent constitutional violations.

There is a compelling need for ensuring prompt

resolution of PLRA termination motions. Amici respectfully

assert that the automatic stay scheme chosen by Congress is a

valid exercise of its legislative authority. If, however, this Court

decides otherwise, amici respectfully urge this Court to adopt

appropriate procedures to ensure prompt determinations. Quite

simply, appellate remedies—that grant deference to the district

court's stay determination—are inadequate to ensure the timely

termination of injunctions that have outlived their need. At the

very least, this Court should exercise its general supervisory

powers over the district courts to establish firm and enforceable

time limits for ruling on PLRA termination motions.

® Such free-ranging discovery seems inconsistent with discovery procedures

normally employed in suits against state officials. State officials are usually not

required to submit to the burdens of discovery until there has been a

i determination that there is a colorable legal claim. See generally

Crawford-el v. Britton, 523 U.S. 574, 597-600 (1998) (noting in an action for

injunctive relief and damages the need for trial judges to determine, prior to

discovery, whether the prisoner has a “viable"action in order to protect

officials from unnecessary or burdensome discovery and court

proceedings); Chagnon v. Bell, 642 F.2d 1248, 1266 (D.C. Cir. 1980) (observing

that “uncontrolled discovery” relating to unsubstantiated claims can impose "an

undue burden on the time and resources of public officials and their agencies.")

eras

CONCLUSION

For these reasons, this Court should affirm the portion of

the Seventh Circuit Court of Appeals’ holding that courts do not

have authority to "stay the stay," and should reverse the portion

of the opinion holding that the automatic stay is

unconstitutional.

Respectfully submitted,

Sarah B. Vandenbraak*

Chief Counsel of the

Pennsylvania rtment

of Corrections

Peter A. Hobart

Counsel for Amicus Curiae

The Association of State

Correctional Administrators

55 U Drive

Camp Hill, PA 17011

(717) 731-0444

* Counsel of Record

Michael] D. Hess

Corporation Counsel of the

City of New York

Leonard J. Koerner

Lorna B. Goodman

Counsel for Amicus Curiae

the City of New York

100 Church Street

New York, NY 10007

(215) 788-0999

> I