Amicus Curiae Brief — Frew v. Hawkins

In The

Supreme Court of the Gnited States

+

LINDA FREW, ON BEHALF OF HER DAUGHTER,

CARLA FREW, ET AL..,

Petitioners,

V.

ALBERT HAWKINS, COMMISSIONER, TEXAS HEALTH

AND HUMAN SERVICES COMMISSION, ET AL.,

Respondents.

¢

On Writ Of Certiorari To The United States Court

Of Appeals For The Fifth Circuit

¢

BRIEF FOR THE STATES OF UTAH, COLORADO,

DELAWARE, HAWAII, IDAHO, LOUISIANA,

MARYLAND, MICHIGAN, MISSISSIPPI, NEVADA,

NEW HAMPSHIRE, NORTH DAKOTA, OKLAHOMA,

PENNSYLVANIA, SOUTH DAKOTA, VIRGINIA,

VERMONT, WISCONSIN, AND WYOMING AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

+

MARK L. SHURTLEFF

Utah Attorney General

ALAIN C. BALMANNO

Assistant Utah Attorney General

JONI J. JONES

Assistant Utah Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

160 East 300 South, Sixth Floor

P.O. Box 140856

Salt Lake City, Utah 84114-0856

Telephone: (801) 366-0100

(Additional Counsel Listed On Inside Cover)

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COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 ”

KEN SALAZAR

Attorney General

State of Colorado

1525 Sherman Street,

7th Floor

Denver, CO 80203

M. JANE BRADY

Attorney General

State of Delaware

820 North French Street

Wilmington, DE 19801

MARK J. BENNETT

Attorney General

State of Hawaii

425 Queen Street

Honolulu, HI 96813

LAWRENCE WASDEN

Attorney General

State of Idaho

Statehouse, Room 210

P. O. Box 83720

Boise, ID 83720

RICHARD P. IEYOUB

Attorney General

State of Louisiana

Department of Justice

P. O. Box 94095

Baton Rouge, LA 70804-4095

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

200 St. Paul Place

Baltimore, MD 21202

MICHAEL A. Cox

Attorney General

State of Michigan

P. O. Box 30212

Lansing, MI 48909

MIKE MOORE

Attorney General

State of Mississippi

P. O. Box 220

Jackson, MS 39205

BRIAN SANDOVAL

Attorney General

State of Nevada

100 North Carson Street

Carson City, NV 89701

PETER W. HEED

Attorney General

State of New Hampshire

33 Capitol Street

Concord, NH 03301-6397

WAYNE STENEHJEM

Attorney General

State of North Dakota

600 East Boulevard Avenue

Bismarck, ND 58505-0040

W. A. DREW EDMONDSON

Attorney General

State of Oklahoma

2300 North Lincoln Blvd.,

Suite 112

Oklahoma City, OK

73105-4894

D. MICHAEL FISHER

Attorney General

State of Pennsylvania

16th Floor, Strawberry

Square

Harrisburg, PA 17120

LAWRENCE E. LONG

Attorney General —

State of South Dakota

500 East Capitol Avenue

Pierre, SD 57501-5070

JERRY KILGORE

Attorney General

State of Virginia

900 East Main Street

Richmond, VA 23219

WILLIAM H. SORRELL

Attorney General

State of Vermont

109 State Street

Montpelier, VT 05609-1001

PEG LAUTENSCHLAGER

Attorney General

State of Wisconsin

State Capitol, Suite 114

East

P. O. Box 7857

Madison, WI 53707-7857

Pat CRANK

Attorney General

State of Wyoming

State Capitol Building

Cheyenne, WY 82002

Nag? 5 ee FF “TEU

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J

| TABLE OF CONTENTS

Page

| TABLE OF CONTENTS .--.scccscscssscessssssssceesessssseeee

pL TT a iv

INTEREST OF AMICT .0.-ccccsssecsssscsessesssssccsssssesseesese 1

SUMMARY OF ARGUMENT. .---cscscccssocssssscesssesosssse 1

EET NAN 3

I. STATE OFFICIALS DO NOT WAIVE THE

STATE’S ELEVENTH AMENDMENT IMMU-

NITY BY ENTERING A CONSENT DECREE,

NOR DOES ENTRY INTO A CONSENT DE-

CREE ENLARGE THE JURISDICTION OF

FEDERAL DISTRICT COURTS .................... 3

A. Entry Into A Consent Decree Pursuant To

Ex Parte Young Does Not Waive Eleventh

Amendment Immunity...........................000+ 3

B. The Ex Parte Young Doctrine Limits

Federal Courts To Enforcing Federal Law... 5

C. Entry Into A Consent Decree By State

Officials Sued Pursuant To The Doctrine

Of Ex Parte Young Does Not Enlarge The

Jurisdiction Of Federal Courts ................... 7

D. Rufo v. Inmates Of Suffolk County Jail

Did Not Change The Constitutional Limits

Of Ex Parte Young, Pennhurst, And Rizzo

As They Apply To Suits Brought Against

I ccccntcpsnecsnnnennenesenninmeinntieietes 8

Il.

Il.

ii

TABLE OF CONTENTS - Continued

Page

THE FIFTH CIRCUITS RULING ON EN-

FORCEMENT PROCEEDINGS IS JUSTIFIED

NOT ONLY BY THE LEGAL PRINCIPLES IN

EX PARTE YOUNG, BUT ALSO BY THE PE-

CULIAR NATURE OF INSTITUTIONAL RE-

FORM LITIGATION CONSENT DECREES......

A. As A Practical Matter, State Officials Often

Have Little Choice But To Enter Into A

B. The Assumption That State Official Defen-

dants Fully Control Compliance Wi‘h All

Terms Of A Consent Decree Is Mis ~uided...

THE FIFTH CIRCUITS APPROACH REME-

DIES MANY OF THE CURRENT PROBLEMS

PARTIES AND COURTS FACE WITH EN-

FORCING DECREEG..............cccccsesssesereeeseseceesees

A. Consent Decrees Should Not Be Enforced

So As To Bind State Officials’ Successors

B. Modification Has Proven An Ineffective

Tool For Relieving The Problems States

Face In Attempting To Comply With Con-

ALLOWING ENFORCEMENT OF A CON-

SENT DECREE ONLY AFTER A SHOWING

OF AN ONGOING FEDERAL RIGHT VIO-

LATION IS A GOOD RESOLUTION FOR

BOTH SIDES, AND WILL GIVE COURTS

CLEAR GUIDANCE ON HOW TO APPROACH

ENFORCEMENT ACTIONS ............c.ccccceeeeeeeeees

11

13

15

17

17

ee ee ee ee ei

Pea, I

iii

TABLE OF CONTENTS - Continued

Page

A. Adopting The Fifth Circuit Rule Will Not

Spell The End Of Consent Decrees............. 24

B. Overturning The Fifth Circuit Ruling Will

Make State Officials Less Willing To Enter

Into Consent Decrees .0...........ccccccceceeecceoees. 26

SIT TNINUNY <rniscsidesenensstinpininininpnessinitniieiatbinaesiaaiamn ais 27

iv

TABLE OF AUTHORITIES

Page

CASES

Boyd v. Alabama, 94 U.S. 645 (1876) .......::ccccceseesereesereees 19

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't

of Health & Human Res., 532 U.S. 598 (2001).............. 25

Butler v. Commonwealth of Pennsylvania, 51 U.S.

6) 3) AL lh) ee 19

Cooper v. Noble, 33 F.3d 540 (5th Cir. 1994) ..........00++. 22, 23

Dixon v. Barry, 967 F. Supp. 535 (D.D.C. 1997)............0+ 12

Evans v. City of Chicago, 10 F.3d 474 (7th Cir.

BEE Cate BIE ccccenccccecccccsssccsscccscnsscscesseneneses 12, 21, 25, 27

Ex parte Young, 209 U.S. 123 (1908) .........:cceeeereeees passim

Gardner v. New Jersey, 329 U.S. 565 (1947) ........ccccceeeeenees 4

Great N. Life Ins. Co. v. Read, 322 U.S. 47 (1944) ..........+.. 4

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261

PIII D......cnccnnncsansantensnsnensnsunescemnscsmnsenmsmmannstenatentennnentnntaed 4,5

John B. v. Menke, 176 F. Supp. 2d 786 (M.D. Tenn.

IID .... .ccocncsnneninensnsnntenustentecessnsmmsmenememencnimbenesanseriaiaints 23, 24

Lapides v. Board of Regents of Univ. Sys. of Ga.,

fl fT, | ee 4

Local Number 93, International Association of

Firefighters v. City of Cleveland, 478 U.S. 501

> 7, 8,9, 19

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .......... 10

Pennhurst State Sch. & Hosp. v. Halderman, 465

UF |) passim

Rufo v. Inmates of Suffolk County Jail, 502 U.S.

BOT (1DBDD ncccccccecccccscccvccccccssscscccssccccsssssscsosssessosenooees passim

SS

v

TABLE OF AUTHORITIES ~ Continued

Page

Stone v. Mississippi, 101 U.S. 814 (1879)....ccccccccceccoceccoees 18

United States Trust Co. v. New Jer. 431 U

a aRacalnaiae tes coder ech ln 18

United States v. Bd. of Educ. of City of Chicago, 799

F.2d 281 (7th Cir. 1986)....cccccccccssessessssssee ne vnud®, 16 -

United States v. ITT Continental Baking Co., 420

Be I ccicciahitnisenanseinnesisaan seaeleccle 19

Verizon Md., Inc. v. Public Serv. Comm’n of Md.,

EE SEE et a a OER 5

West River Bridge Co. v. Dix, 47 U.S. (1 How.) 507

rience etter taaraa ea aae atte 19

Wyatt By and Through Rawlins v. Sawyer, 105

F. Supp. 2d 1234 (M.D. Ala. 2000) o..0....cccccccccccoccecceeceees 12

CONSTITUTIONS

EN Ce ee eT 18

STATUTES

UN iia ial 25

ER ee ee, 25

EERE ree a a ee 25

OTHER AUTHORITIES

Abram Chayes, The Role of the Judge in Public

Law Litigation, 89 Harv. L. Rev. 1281 (1976)................ 20

vi

TABLE OF AUTHORITIES -— Continued

Page

American Public Welfare Association, Review of

Public Child Welfare Litigation in Selected

Jurisdictions, 21 (April 1998) ..........:::ccsecseeeeeneeneeenreneeees 26

Donald L. Horowitz, Decreeing Organizational

Change: Judicial Supervision of Public Insti-

tutions, 1983 Duke L.J. 1265 (1983)............ 11, 12, 15, 25

Frank H. Easterbrook, Justice and Contract in

Consent Judgments, 1987 U. of Chic. Legal F. 19

(1BT)....cccccccccccsccccccesccccsssvccccecossoscscossossccssooorsscsessoosssseseses 25

Jeremy A. Rabkin & Neal E. Devins, Averting

Government by Consent Decree: Constitutional

Limitations on Settlements with the Federal |

Government, 40 Stan. L. Rev. 203 (1987)............... passim

Joseph F. DiMento & Dean W. Hestermann,

Ordering the Elephants to Dance: Consent

Decrees and Organizational Behavior, 43 J. Urb.

Be Cont. L. 901 (1908) ...ccccccccccsccccccccccccsesceoserresees 13, 15, 20

Judith Resnik, Judging Consent, 1987 U. of Chic.

Legal F. 43 (1987)......cccsccsessesessereeseneneseeseesneseneeneenseenens 14

Note, Implementation Problems in Institutional

Reform Litigation, 91 Harv. L. Rev. 428 (1977)....... 11, 15

Thomas M. Mengler, Consent Decree Paradigms:

Models without Meaning, 29 B.C. L. Rev. 291

(DOIIIDD.......0-ececococecesecossencccsosessenccnsensnssonnenonessossssoososesononsoets 14

1

INTEREST OF AMICI

Amici Curiae are States who have been or currently

are parties to consent decrees. The Amici States have an

interest in ensuring that the Eleventh Amendment guar-

antee of state sovereignty is consistently and appropri-

ately enforced. The Amici States accordingly have an

interest both in ensuring sovereign immunity is not

presumed to be waived when a state official enters into a

consent decree and that the jurisdiction of federal courts is

not overstepped when consent decrees are enforced. The

Amici States have the experience and history to provide

the Court with information to help the Court understand

the practical problems states face in attempting to comply

with consent decrees their state officials have entered. In

supporting Respondents, the State Amici intend not

merely to echo the legal arguments Respondents make,

but rather seek to provide the Court with a broader

perspective of the implications of its decision on the states

and their institutions.

¢

SUMMARY OF ARGUMENT

This Court granted certiorari to address, in part,

whether the law requires plaintiffs who bring an enforce-

ment action to show an on-going violation of federal rights.

The effect of this decision will be to decide if state officials

who have entered into a consent decree in institutional

reform litigation must comply with every provision of the

decree — even if plaintiffs can no longer show an ongoing

constitutional violation and even if violation of the provi-

sion does not violate a federal right. State Amici join the

Respondents in urging the Court to determine that the law

does not impose such a requirement on state officials. In

2

joining Respondents, State Amici first address the legal

foundation of federal courts’ jurisdiction over states and

state officials: the Ex parte Young doctrine. The “legal

fiction” of Ex parte Young, 209 U.S. 123 (1908), allows

federal courts to exercise jurisdiction over state officials —

who are otherwise immune from being sued in federal

court — only to halt on-going federal rights violations and

only so long as the remedy is limited to prospective injunc-

tive relief which will prevent future violations. This fiction

is dissolved when federal courts enforce consent decree

provisions that do not directly bear upon federal rights

violations.

This basic legal premise is presented against the

backdrop of a broader discussion of the problems states face

in attempting to comply with consent decrees entered into

pursuant to Ex parte Young. State officials frequently have

little choice but to enter into a decree when faced with

litigation alleging federal violations. The decrees themselves

are typically complex and detailed, aiming to eliminate

problems that bureaucrats have struggled with for years.

Full compliance with all decree provisions is extremely

difficult for officials to achieve for many reasons. Third

parties may fail to cooperate. Budget shortfalls may impede

progress. And even if every provision is achieved, there is no

guarantee that alleged violations will be remedied.

While states struggle, often for decades, to comply

with consent decrees, state governments begin to lose their

ability to function democratically. That is, policy choices

and budget decisions are frozen until every provision of a

decree is complied with. Newly-elected or appointed

officials and state legislatures lose their ability to make

changes as a changing electorate and economy dictate. In

such cases, federal courts, rather than state officials,

3

essentially run major state institutions. The Ex parte

Young doctrine was created to prevent this very spectacle

of federal courts dictating how states run their agencies.

Only when officials are violating citizens’ federally secured

rights may federal courts order state officials to act.

Upholding the Fifth Circuit’s ruling will ensure that

federal courts direct state action only when there is federal

violation and only so long as necessary to prevent future

violations.

¢

ARGUMENT

I. STATE OFFICIALS DO NOT WAIVE THE

STATE’S ELEVENTH AMENDMENT IMMU-

NITY BY ENTERING A CONSENT DECREE,

NOR DOES ENTRY INTO A CONSENT DE-

CREE ENLARGE THE JURISDICTION OF

FEDERAL DISTRICT COURTS.

A. Entry Into A Consent Decree Pursuant to

Ex Parte Young Does Not Waive Eleventh

Amendment Immunity.

Plaintiffs who bring suit against state officials seeking

prospective, injunctive relief for alleged violations of

federal rights — rights created under the federal constitu-

tion or federal law — do so pursuant to the Ex parte Young

doctrine. Ex parte Young confirms the supremacy of

federal law and provides a vehicle for vindicating federal

rights without impugning state sovereignty. Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984).

A suit brought pursuant to Ex parte Young thus avoids

Eleventh Amendment and other sovereign immunities. Ex

parte Young, 209 U.S. at 159-60. This is because the action

is brought against state officials, not against the state or

4

its entities. Id.; Pennhurst, 465 U.S. at 100-103. A suit

properly brought under Ex parte Young must allege an

ongoing violation of federal law and must seek only pro-

spective injunctive relief. See Idaho v. Coeur d’Alene Tribe

of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concur-

ring).

When state officials enter into a consent decree to

settle a case brought under Ex parte Young, there is no

basis for a court to presume a waiver of Eleventh Amend-

ment immunity. Such a waiver may be found only when

state actors remove a case to federal court, after having

waived immunity in state court, Lapides v. Board of

Regents of Univ. Sys. of Ga., 535 U.S. 613, 623-24 (2002),

when the state itself voluntarily appears in federal court,

see Gardner v. New Jersey, 329 U.S. 565, 572-73 (1947), or

when the state’s consent to suit is unequivocally asserted

in an express declaration of waiver made by the state.

Pennhurst, 465 U.S. at 99; Great N. Life Ins. Co. v. Read,

322 U.S. 47, 54 (1944). When a state official enters a

consent decree, waiver of sovereign immunity cannot be

presumed because the suit is proceeding under Ex parte

Young and because the state is not a party. For an official

to waive the state’s immunity, he or she must have actual

authority to make the waiver. If the official does have such

authority, there must nonetheless be an express waiver in

the decree, such as “The State hereby waives its right to

assert sovereign immunity as a challenge to the District

Court’s authority to enter or enforce this Decree.” Absent

such an express statement and authority to make the

waiver, a state official does not waive the State’s Eleventh

Amendment immunity simply by entering into the decree.

State officials thus must be free to assert the state’s

sovereign immunity if, later, plaintiffs seek through

5

enforcement actions to reach beyond the Ex parte Young

fiction. See Pennhurst, 465 U.S. at 102-03 (“[T]he Eleventh

Amendment bars some forms of injunctive relief against

state officials. ... ”) (citing Edelman v. Jordan, 415 U.S.

651, 666-67 (1974)).’

B. The Ex Parte Young Doctrine Limits Fed-

eral Courts To Enforcing Federal Law.

The Constitution limits jurisdiction of federal courts

over claims not based on federal law. In Pennhurst, the

Court held that state officials may not be sued in federal

courts for violations of state law. 465 U.S. at 106. Plaintiffs

wishing to enforce state-created rights may not do so in

federal courts. That is because when the rights sued upon

are grounded in state law, the Ex parte Young rationale —

which vindicates federal rights and the supremacy of

federal law — is absent and the state’s sovereign interest

becomes predominant once again. Jd. at 120 (citing United

Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). Ex parte

Young Jurisprudence requires careful consideration of the

sovereign interests of the states. Coeur d’Alene, 521 U.S.

at 267-68. Ex parte Young’s requirement — that plaintiff

alleges an ongoing violation of federal law and requests

prospective injunctive relief — is necessary. “Were it other-

wise, the Eleventh Amendment, and not Ex parte Young

would become the legal fiction.” Verizon Md., Inc. v. Public

' The distinction made by State Amici that the actions of s

ta

officials sued pursuant to Ex parte Young do not bind the state a.

state is critical, because often courts and parties discussing state

official defendants will use the shorthand “state defendants” or “states.”

thus blurring the critical distinction.

6

Serv. Comm’n of Md., 535 U.S. 635, 649 (2002) (Kennedy,

J., concurring). This is especially problematic in institu-

tional reform litigation consent decrees, which invariably

include ambitious reform measures that are not based in

federal or state law. See infra, Part III.

The Pennhurst Court recognized the “‘special delicacy

of the adjustment to be preserved between federal equita-

ble power and state administration of its own law.”

Pennhurst, 465 U.S. at 104 n.13 (quoting Rizzo v. Goode,

423 U.S. 362, 378 (1976)) (quotation omitted). Because

litigation over enforcement of consent decrees almost

always involves issues of how a state must run its agencies

beyond taking measures that directly bear upon federal

rights, Pennhurst is especially germane.

Similarly, in Rizzo, the Court limited injunctive

enforcement of federal law when that enforcement ham-

pered city officials’ ability to exercise the discretionary

authority vested in them by state and local law. 423 US.

at 378-81. The Court found that the plaintiff in Rizzo

failed to establish the named defendants had violated

federal law, id. at 376-77, and went on to conclude that the

injunction was inconsistent with the doctrine of equitable

restraint. Jd. at 378-80. The Court concluded that “impor-

tant considerations of federalism” weighed against the

injunction. Id. at 378.

These cases illustrate this Court’s willingness to

strike down relief ordered pursuant to Ex parte Young

when that relief exceeds the carefully drawn boundaries of

federal courts’ authority over local and state government.

The same limitations should apply to enforcement of

consent decrees against state officials since those decrees

are entirely premised on Ex parte Young.

7

C. Entry Into A Consent Decree B

y State Of-

ficials Sued Pursuant To The Doctrine Of

Ex Parte Young Does Not Enlarge The Ju-

risdiction Of Federal Courts.

Petitioners and their Amici argue that because federal

courts may enter a consent decree that requires state

officials to do more than federal law requires, courts must

also be able to enforce those decrees.’ They rely principally

on Local Number 93, International Association of Fire-

fighters v. City of Cleveland, 478 U.S. 501 (1986), in which

the Court held that “a federal court is not necessarily

barred from entering a consent decree merely because the

decree provides broader relief than the court could have

awarded after trial.” Jd. at 525 (emphasis added). The

assumption that entry of a consent decree necessarily

grants power to enforce all provisions of the decree is

erroneous. The Firefighters Court made it clear that just

because a decree could be validly entered did not mean

that the decree provisions were insulated from later legal

challenge: “The fact that the parties have assented to the

relief contained in a decree does not render their actions

immune from attack.” Id. at 526 (emphasis added).

Reliance on Firefighters for the proposition that

federal courts can enforce any and all consent decree

provisions in an Ex parte Young suit is also misplaced

because the case is distinguishable from the present case.

Although a consent decree case, Firefighters was a suit

against a city and municipal officials pursuant to Title VII

* State Amici do not address Petitioner's argument that the

— eee — the present case could properly enter the consent

_w been addressed in Respondents’ opposition brief.

8

of the Civil Rights Act. Jd. at 504. It did not involve state

officials and did not implicate Ex parte Young, Pennhurst,

or the Eleventh Amendment. In Firefighters, the Court

concluded that the consent decree did not violate the limits

placed by Title VII on the remedial authority of a federal

court. Id. at 526. In contrast, when enforcement of a

consent decree would defy the law upon which the case is

brought —- in this case by violating the Ex parte Young

doctrine — the federal District Courts must be barred from

enforcing the offending provisions.

D. Rufo v. Inmates Of Suffolk County Jail

Did Not Change The Constitutional Limits

Of Ex Parte Young, Pennhurst, And Rizzo

As They Apply To Suits Brought Against

State Officials.

Petitioners and their Amici also rely on Rufo v. In-

mates of Suffolk County Jail, 502 U.S. 367 (1992). Signifi-

cantly, unlike the unlitigated consent decree in the instant

case, the consent decree in Rufo was negotiated and

entered into only after a lengthy trial and findings by the

District Court that defendants’ actions violated the Four-

teenth Amendment. Jd. at 372-73. Rufo also involved

injunctive relief against a county, not state officials.’ The

consent decree in Rufo was entered into only after bitter

litigation, including two appeals of collateral orders to the

First Circuit, during which the Court of Appeals reaf-

firmed the finding of ongoing constitutional violations. Id.

* In Rufo, the one state official defendant did not appeal the

District Court’s decision holding he was a proper party. Rufo, 502 US.

at 373 n.2.

9

at 373 n.2, 374. The defendants sought to modify the

decree, which was a very specific agreement aimed at

correcting established, ongoing constitutional violations.

See id. at 376. When the lower courts refused modification

of the consent decree, this Court reversed, and clarified

the standard for modification. Rufo, which merely clarifies

modification, cannot control a question of enforcement of a

consent decree entered without a finding of a constitu-

tional or statutory violation and involving state officials

sued pursuant to Ex parte Young.

. Notably, the Rufo Court twice observed that constitu-

tional violations had been found. Jd. at 389. The Court’s

further discussion, concerning the decree obligations

assumed by the defendants, must be read in the context

provided by the Court. “To hold that a clarification in the

law automatically opens the door for relitigation of the

merits of every affected consent decree would undermine

the finality of such agreements.... ” Jd. at 389. This

portion of Rufo addresses whether a change in law would

open the door to relitigate the prior finding of unconstitu-

tionality underpinning the consent decree. It does not bear

upon whether enforcement of a provision of an unlitigated

consent decree can be challenged in a later enforcement

proceeding.

The Rufo Court concluded by noting that, “ i

the District Court did not abuse ey ioe Myre

the agreed-upon decree, which clearly was related to the

conditions found to offend the Constitution.” Jd. at 389

(emphasis added). Like Firefighters, Rufo commented on

- District Court’s ability to enter, not enforce consent

10

Because of the nature of institutional reform litiga-

tion, and the issues addressed in pre-litigation consent

decrees entered into between plaintiffs and state officials,

it is likely that some of the provisions of the consent

decrees will reach beyond the limits of Ex parte Young,

Pennhurst, and Rizzo. As Justice White observed in Ru/fo,

“almost any affirmative decree beyond a directive to obey

the Constitution necessarily does that.” Jd. at 389. Plain-

tiffs in consent decrees, like Petitioners in the instant

case, might find themselves with an unenforceable decree

provision, not founded on federal law, unless they can

show an ongoing federal right violation. Petitioners argue

such a result — having an unenforceable consent decree

provision — would be intolerable. On the contrary, what

would be intolerable would be to ignore the important

constitutional limits of Ex parte Young, Pennhurst, and

Rizzo.

Moreover, plaintiffs in consent decrees will not be the

first to find themselves with a legally unenforceable claim.

This was precisely the situation of the plaintiff in the case

which gave shape to Article III of the Constitution and

confirmed the principle of judicial review, Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803). While recognizing

that Mr. Marbury was entitled to his political appoint-

ment, this Court concluded it could not grant a remedy

because it lacked jurisdiction. Jd. at 168, 175-80. Amici

States ask this Court to reaffirm the important constitu-

tional principles articulated in Ex parte Young, Pennhurst,

Rizzo, and Marbury.

11

Il. THE FIFTH CIRCUIT’S RULING ON EN-

FORCEMENT PROCEEDINGS IS JUSTIFIED

NOT ONLY BY THE LEGAL PRINCIPLES IN

EX PARTE YOUNG, BUT ALSO BY THE PE-

CULIAR NATURE OF INSTITUTIONAL RE-

FORM LITIGATION CONSENT DECREES.

Plaintiffs bringing suit against state officials for

prospective, injunctive relief pursuant to Ex parte Young,

do so to impact a variety of state-run institutions, includ-

ing schools, prisons, and human service agencies. Fre-

quently, whether the state agency is actually violating a

federal right — either based in a federal statute or in the

Constitution — is difficult to determine, and there is a wide

range of policy alternatives that might eliminate the

problems alleged in the initial complaint. See Note, Jm-

plementation Problems in Institutional Reform Litigation,

91 Harv. L. Rev. 428, 438 (1977) (discussing this problem

in the context of mental health law). Once suit is brought,

however, debate over the proper policy choice to ameliorate

problems in a state institution shifts from the political

arena to the courts. This shifting of policymaking from the

public, political arena to the courts is one of the most

salient, and most troubling, features of institutional

reform litigation. See Donald L. Horowitz, Decreeing

Organizational Change: Judicial Supervision of Public

Institutions, 1983 Duke L.J. 1265, 1267 (1983).

Institutional reform consent decrees are also marked

by their complexity and long duration. Jd. The decrees

typically contain a host of highly detailed requirements.

Id. The specific provisions are usually “extensive ... in

their commands,” prescribing not only “one or two acts,

but a whole course of conduct.” Jd. Because of their com-

plexity, institutional reform decrees are often difficult to

12

implement and interpret. See, e.g., United States v. Bd. of

Educ. of City of Chicago, 799 F.2d 281, 283 (7th Cir. 1986)

(observing that a decree mandating a school desegregation

program was “fraught with problems of interpretation and

implementation” throughout its (then) six-year history).

Moreover, because their provisions require complex reme-

dial action, “(institutional reform] decrees often remain in

place for extended periods of time.” Rufo, 502 U.S. at 380.

In fact, a sampling of consent decrees currently in force

reveals decrees that have spanned up to 30 years. See

Appendix A. Further, because decrees of jong duration are

more likely to face “significant changes,” Rufo, 520 U.S. at

380, the potential for conflicts between the parties to a

decree often increases the longer the decree remains in

place. In fact, unlike typical settlement agreements,

consent decrees entered into in an effort to settle institu-

tional reform suits often mark the beginning, not the end,

of protracted litigation. See, e.g., Evans v. City of Chicago,

10 F.3d 474, 482 (7th Cir. 1993) (en banc) (plurality opin-

ion) (“Attempts to enforce this consent decree have not

produced the peace that settlement brings. There have

been 16 years of noisome litigation.”); Dixon v. Barry, 967

F. Supp. 535, 538 (D.D.C. 1997) (detailing the over 15-year

history of the Dixon decree, the court noted, “while the

Court saw the 1980 Order as the .. . end of the litigation,

in hindsight, ... the 1980 Order was only the beginning”);

Wyatt By and Through Rawlins v. Sawyer, 105 F. Supp. 2d

1234, 1236 (M.D. Ala. 2000) (“This litigation has traveled a

long, winding, and often quite bumpy course... . ”).

In short, the complexity and longevity of institutional

reform decrees make the reformation of public institutions

by decree “a more hazardous venture than it is frequently

made out to be.” Horowitz, supra, at 1288. The complexity

=

ee a

a

13

of such a venture is fraught with more legal complications

when, as in the case at bar, the underlying suit has been

brought only through the limited vehicle of the Ex parte

Young doctrine. When a federal court finds constitutional

or federal statutory violations, enforcement of the terms of

a decree against state officials that remedy the violation

remains faithful to Ex parte Young. However, in unliti-

gated consent decrees, whether a federal right has actually

been violated has not been established, and the alleged

violation may have been eliminated. Or, there may be no

guarantee that the action mandated in the decree will

actually eliminate any violations. Not only does enforce-

ment of the decree provision in such circumstances violate

Ex parte Young, but enforcement is also likely to rest on

misconceptions about the state officials’ level of compliance

and actual control over achieving compliance, and the

voluntary nature of their entry into the decree. Such

assumptions ignore the reality of consent decrees.

A. As A Practical Matter, State Officials Of-

ten Have Little Choice But to Enter Into A

Consent Decree When Faced With Pro-

tracted, Costly Litigation On Emotionally-

Charged, Highly-Politicized Issues.

A state official’s entering into an unlitigated consent

decree in institutional reform litigation may be voluntary

in the strictly legal sense, but as a practical matter, state

officials often have little choice. Commentators have

recognized that officials are backed into a corner when

faced with an institutional reform suit. Consent decrees

are “often forced upon an agency without consideration of

the agency’s ability” to comply. Joseph F. DiMento & Dean

W. Hestermann, Ordering the Elephants to Dance: Consent

14

Decrees and Organizational Behavior, 43 J. Urb. & Cont.

L. 301, 307 (1993). It is well understood that the plaintiff,

through the threat of litigation and potentially of judg-

ment, “holds the trigger” throughout settlement negotia-

tions and thus dominates the bargaining process. Judith

Resnik, Judging Consent, 1987 U. of Chic. Legal F. 43, 74

(1987).

Defendants may have many reasons for feeling com-

pelled to settle an institutional reform lawsuit. They may

hope to curtail expenses, though given the extensive

litigation in many consent decree cases, that hope may not

often be realized. See Resnik, supra, at 69 (“[WJe cannot

say with certainty that the net costs [of consent decrees

over litigation] are less.... ”). They may wish to avoid

adverse publicity, or defendants who believe they have

broken no law nonetheless might wish to implement

socially beneficial reforms. See Thomas M. Mengler,

Consent Decree Paradigms: Models without Meaning, 29

B.C. L. Rev. 291, 322-23 (1988). With a court order behind

them, officials might believe they will be able to obtain

additional funding from the legislature and “obedience to

the agreement from lower level employees.” Resnik, supra,

at 74. Like any other defendant, state officials simply wish

to avoid the time and expense of litigation. But unlike

private parties, state officials are motivated to settle to

avoid the public perception that by litigating an institu-

tional reform suit, they are callous to the needs of chil-

dren, the elderly, or other vulnerable groups.

ee

15

B. The Assumption That State Official De-

fendants Fully Control Compliance With

All Terms Of A Consent Decree Is Mis-

guided.

Underlying Petitioners’ argument that District Courts

have the authority to enforce every provision of a consent

decree is an unspoken assumption that the state officials

who are required to comply with the decree actually have

the ability to ensure compliance. This assumption ignores

the enormous complexity of public institutions. Problems

in institutions are “frequently so complex that even

bureaucrats and other non-judicial experts in the field

have failed to resolve them.” Implementation Problems,

supra, at 428. The complexity of large organizations is a

more important factor in the difficulties encountered in

implementing consent decrees than is incompetence or

deliberate resistance. See Horowitz, supra, at 1296.

Significant action by an organization requires the coordi-

nation of its internal components and frequently the

cooperation of various external institutions, groups or

systems. Jd. Many forces and interests, some not necessar-

ily represented in the litigation, must come together before

the intended goals of the consent decree can be achieved.

See id. The decree’s implementation will depend on

organizations that often lie beyond the reach of the court

issuing the decree. DiMento & Hestermann, supra, at 323.

Even if the state officials are actually able to comply with

the decree, “there is no guarantee that its goals will be

met.” Jd.

The reality of institutional reform litigation is that

fully implementing all provisions of a consent decree is

often far more complex and difficult than anticipated.

Plaintiffs unwilling to accept institutional limitations and

16

to renegotiate more workable consent decree terms often

turn to enforcement proceedings. Unfortunately, the

enforcement proceeding does not necessarily produce the

fix plaintiffs desire. As one court observed, “the history of

this decree is notable not for its success[,] . . . but for what

it has illuminated about the character and limitations of

the executive, municipal, and judicial institutions in-

volved.” Board of Educ. of Chicago, 799 F.2d at 283.

Another barrier for state officials trying to comply

with exacting consent decrees is budget constraints. Even

if officials are able to obtain sufficient funding to attempt

to meet terms of the decree, other state agencies pay a

heavy price. The impact of consent decrees is that, often,

the relationships between competing agencies’ interests

results in distortions in the allocation of government

resources between the different entities. See Jeremy A.

Rabkin & Neal E. Devins, Averting Government by Con-

sent Decree: Constitutional Limitations on Settlements

with the Federal Government, 40 Stan. L. Rev. 203, 269-71

(1987). As Justice O’Connor observed:

Public officials often operate within difficult fis-

cal constraints; every dollar spent for one pur-

pose is a dollar that cannot be spent for

something else. While the lack of resources can

never excuse a failure to obey constitutional re-

quirements, it can provide a basis for concluding

that continued compliance with a decree obliga-

tion is no longer “equitable.”

Rufo, 502 U.S. at 396 (O’Connor, J., concurring) (emphasis

in original). “In the real world ... officials in different

agencies at different levels of authority are engaged in

continuous pulling and hauling over resources, priorities,

and subtle gradations of policy. A consent decree can be an

ee eee —

:

17

all too ready handle for officials at one level to manipulate

their s j i 1 i

4 uperiors or rivals ....” Rabkin & Devins, supra, at

Whether or not a provision of a consent decree can

actually be carried out more often than not involves

factors beyond the control of the individual state official

who is named. The complexity of the problem the decree is

aimed at remedying, the lack of cooperation by third

parties, and budget constraints may all hinder compliance

with decree terms. These obstacles are not always ex-

pected or understood by the parties when they enter the

decree. In such cases it makes neither legal nor common

sense for state officials to comply with every provision of a

decree originally agreed u i

pon unless there i

federal violation. cuit

Ill. THE FIFTH CIRCUIT’S APPRO

ACH REME-

DIES MANY OF THE CURRENT PROBLEMS

PARTIES AND COURTS FACE WITH EN-

FORCING DECREES.

A. Consent Decrees Should Not B

e Enforced

So As To Bind State Officials’ Successors

In Office.

Given that institutional reform consent decrees are

complex, difficult to comply with, and often last for dec-

ades, they very frequently have the effect of binding state

officials to policies to which their predecessors (often

reluctantly) agreed. This Court has long recognized that

enforcing a contract against a state government which

binds the hands of successors in office cannot be tolerated

in a democracy:

18

he power of governing is a trust commit-

ted ioe anaate to the government, no part of

which can be granted away. The people, in their

sovereign capacity, have established their —

cies for the preservation of the public health n-

the public morals, and the protection of public

and private rights. These several agencies can

govern according to their discretion, if within the

scope of their general authority, while in power;

but they cannot give away nor sell the discretion

of those that are to come after them, in respect to

matters the government of which, from the very

nature of things, must “vary with varying cir-

cumstances.”

Stone v. Mississippi, 101 U.S. 814, 820 (1879). The Consti-

tution itself was created with this principal in mind,

Justice Brennan has noted: “The Framers fully recognize

that nothing would so jeopardize the legitimacy of a

system of government that relies upon the ebbs and oa

of politics to ‘clean out the rascals’ than the possibility :

those same rascals might perpetuate their policies simply

by locking them into binding contracts.” United oa

Trust Co. v. New Jersey, 431 U.S. 1, 45 (1977) (Brennan, ,

dissenting). Even while enacting the Contract ese a

Article I — which forbids the states from passing laws t a

limit contractual obligations‘ - the Framers recogni 4

that the Constitution should not trump the aoonger’ :

sovereign immunity. See Rabkin & Devins, supra, ~~

(citing Principality of Monaco v. Mississippt, 292 US. 13,

323-24 (1934)). From the principle of sovereign immunity

, “No State shall ... pass any ... Law impairing the Obligation of

Contracts. ...” U.S. Const. Art. I, § 10.

19

flows the recognition that contracts cannot be enforced so

as to hinder a state’s ability to carry out basic governmen-

tal functions.

Thus, this Court has held that the Contract Clause

must give way to sovereign immunity if enforcing a con-

tract against a state will impair that state’s ability to

exercise its governmental powers or unnecessarily bind

successors in office. See West River Bridge Co. v. Dix, 47

U.S. (1 How.) 507, 531-32 (1848) (holding Contract Clause

could not be applied to state contract so as to override

states’ power of eminent domain); Butler v. Commonwealth

of Pennsylvania, 51 U.S. (10 How.) 402, 416-18 (1850)

(holding Contrect Clause could not prevent states from

enacting legislation modifying state officials’ tenure

because ability to control officials’ tenure “is indispensable

for the preservation of the body politic”); Boyd v. Alabama,

94 U.S. 645, 650 (1876) (“We are not prepared to admit

that it is competent for one legislature, by any contract

with an individual, to restrain the power of a subsequent

legislature to legislate for the public welfare. .. . 7

Consent decrees, like any settlement agreement, are

essentially contracts. United States v. ITT Continental

Baking Co., 420 U.S. 223, 238 (1975) (“[A] consent decree

or order is to be construed for enforcement purposes

basically as a contract.... ”). Just as with contracts,

consent decree provisions that unnecessarily hinder states

from carrying out their governmental functions or bind

successors-in-office should not be enforced. See Rabkin &

Devins, supra, at 209 (noting that Court’s decision in

Firefighters “reaffirms that what parties cannot agree to in

ordinary contracts, they cannot make binding through

consent decrees.”).

20

Yet state government’s ability to adopt policy, legisla-

tion, and budgets is increasingly compromised when

District Courts enforce provisions of consent decrees

where there is no evidence of a constitutional violation.

With consent decrees frequently spanning decades, they

bind not only the successors to the originally named state

officials, but also the state legislators and other appointed

and elected officials. Decisionmaking is transferred from

the political arena to the courts. See, e.g., Abram Chayes,

The Role of the Judge in Public Law Litigation, 89 Harv. L.

Rev. 1281, 1302 (1976) (“{I]n actively shaping and monitor-

ing the decree, mediating between the parties, developing

his own sources of expertise and information, the trial

judge has passed beyond even the role of legislator and

has become a policy planner and manager.”). Successors to

the originally-named official defendants are bound by

policies and procedures they had no role in implementing

and with which they may disagree. See, e.g., DiMento &

Hestermann, supra, at 307 (“Potentially unrepresenta-

tive decrees bind successors in office, despite their lack of

adequate representation in the negotiation process and _

their failure to assent to the provisions of the decree.”).

When government defendants enter into a consent decree,

debate on major public policy issues is frozen and succes-

sors in office are bound until every provision of the decree

is achieved.

The result is that “one administration ... commit{s]

its successors to policies they might not otherwise have

chosen. And it presents the risk that major policy decisions

will be fixed in secret negotiations with small groups of

private plaintiffs rather than through the more open and

accountable procedures of ordinary executive decisionmak-

ing.” Rabkin & Devins, supra, at 204. Such binding of

21

successors is a common problem. Indeed, the United

States, which has filed an amicus brief supporting the

Petitioners in this case, has often argued against enforce-

ment of consent decrees that it claimed would tie the

hands of the executive branch. See, e.g., id. at 257-58

Although the Fifth Circuit decision this Court is reviewin |

involved state officials, not “the state” as a ietetens.

consent decrees naming heads of state agencies ond

divisions, and often the governor of the state as well, are

for purely practical purposes, suits against the state and

its agencies. These consent decrees stretch the Ex parte

Young legal fiction almost to the breaking point.

At least one Federal Court of Appeals ju

expressed concern that District Courts a not al in

ensuring that consent decree provisions are not enforced

sO as to bind successors. Evans, 10 F.3d at 482 (en banc)

(plurality opinion) (noting that “a hectored district judge

eager to reach the next case in the queue” may fail to

consider critical principles such as “preserving democratic

governance, separating the judicial and political spheres

(end) respecting state autonomy in the absence of a federal

a when enforcing consent decree provisions). Adopting

Fifth Circuit's ruling, which requires plaintiffs to show

that violating a provision of a consent decree also violates

a federal right, would properly preserve state govern-

ments’ ability to function democratically, while vindicating

the supremacy of federal law.

22

B. Modification Has Proven An Ineffective

Tool For Relieving The Problems States

Face In Attempting To Comply With Con-

sent Decrees.

In its amicus brief, the United States recognizes that

“(a] State that has entered into a decree may have legiti-

mate reasons for wanting to be relieved of obligations

imposed by a consent decree,” see Brief for the United

States as Amicus Curiae, at 19, and suggests that states

can simply seek modification under the standard this

Court announced in Rufo.’ However, the Rufo standard is

difficult to meet.

The Rufo standard was intended to allow District

Courts more flexibility in modifying institutional reform

consent decrees, see 502 U.S. at 383, and allows courts to

modify a decree if the party seeking modification shows

either a significant change in law or fact. Jd. at 384. The

Rufo standard, however, has not necessarily eased the

enforcement problems defendants face. For example, in

Cooper v. Noble, 33 F.3d 540 (5th Cir. 1994), defendants

argued both factual changes — a new prison had been built

that had improved prison conditions — and legal changes —

a newly released Supreme Court decision made it plain

that some provisions of the decree were not constitution-

ally required. Id. at 543-44. The court refused to modify

the decree, holding defendants failed to show the factual

changes affected their ability to comply with the decree

* The United States made the same mistake as many observers,

assuming the defendant to a consent decree is “the state” when in fact

the defendants are state officials.

Ce St. A ee ag

— =

23

and ruling that under Rufo the court had the authority to

enforce a provision exceeding constitutional requirements

Id. at 544-45. Similarly, in John B. v. Menke, 176 F. Susp.

2d 786 (M.D. Tenn. 2001), the state defendants sought

modification of a consent decree governing compliance

with federal Early Periodic Screening, Diagnosis and

Treatment requirements, arguing both changes in fact,

and that the decree was unworkable because defendants

could not force third-party insurers to participate. Id. at

812. The district court refused to modify the decree, even

while recognizing that “the current edial Plan i

unworkable.” Id. > -

. Even though Rufo was designed to make modification

a viable option for government defendants in institutional

reform decrees, District Courts have tended to interpret

Rufo to mean that courts can enforce provisions of consent

decrees against government defendants even if the provi-

sion exceeds constitutional requirements. See, e.g., Cooper

33 F.3d at 544-45 (holding that under Rufo the district

court had the authority to enforce a decree provision

exceeding constitutional requirements).

. District Courts have also tended to interpret Rufo to

limit, rather than expand, the circumstances when modifi-

cation is appropriate. In Menke, fo istri

lene, r example, the district

Modification of a consent decree i Sate

(1) “when changed factual per eth ~ peng

pliance with the decree substantially more oner-

ous,” (2) “when a decree proves to be unworkable

because of unforeseen obstacles,” or (3) “when en-

forcement of the decree without modification

would be detrimental to the public interest.”

24

Menke, 176 F. Supp. 2d at 811 (quoting Rufo, 502 U.S. at

384). While Rufo did enumerate these three examples of

when modification “may be warranted,” Rufo, 502 US. at

384, Rufo did not state that these were the only circum-

stances when a district court should modify a decree. See

id. The very problem that Justice O’Connor predicted in

her concurring opinion, that “[plortions of the Court’s

opinion might be read to place new constraints on the

District Court’s discretion,” id. at 397 (O’Connor, J.,

concurring), has been realized.

G ENFORCEMENT OF A CONSENT

= DECREE ONLY AFTER A SHOWING OF AN

ONGOING FEDERAL RIGHT VIOLATION IS A

GOOD RESOLUTION FOR BOTH SIDES, AND

WILL GIVE COURTS CLEAR GUIDANCE ON

HOW TO APPROACH ENFORCEMENT AC-

TIONS.

A. Adopting The Fifth Circuit Rule Will Not

Spell The End Of Consent Decrees.

Petitioners and their Amici claim plaintiffs will never

want to enter into consent decrees if the Fifth Circuit rule

is adopted. Petitioners’ Brief at 41-42; Brief for the United

States as Amicus Curiae at 19; Brief for the AARP, et al,

as Amicus Curiae at 26-27. But if all plaintiffs in institu-

tional reform litigation against state officials took every

case to trial, they would only be entitled to prospective

injunctive relief necessary to eliminate any violation of

federal right that plaintiffs were able to prove at trial. In

other words, plaintiffs lose nothing under a rule requiring

them to show an ongoing violation of federal rights when

king ision. “Rec-

seeking enforcement of a consent decree provision.

ognizing that a substantial federal claim must undergird a

25

consent decree does not make plaintiffs less willing to

settle: the decree still provides relief, which may be tai-

lored more closely to the parties’ circumstances than a

remedy of the judge’s devising could be.” Evans, 10 F.3d at

482 (en banc) (plurality opinion).

The economic model of settlement supports this

conclusion. If parties can gain the same, or better remedy,

through negotiations, than they can through the expenses

of discovery and a full-blown trial, while avoiding the

uncertain results of trial, plaintiffs will still elect to settle.

“The settlement saves these costs, which the parties can

divide, making each better off than it expects to be after a

trial.” Frank H. Easterbrook, Justice and Contract in

Consent Judgments, 1987 U. of Chic. Legal F. 19, 19

(1987).

Plaintiffs will also be motivated to continue entering

into consent decrees by the need to collect attorneys’ fees.

The lifeblood of private attorneys general lawsuits is the

fee-shifting provisions of many federal statutes. See

Horowitz, supra, at 1276. Many of the statutes plaintiffs

sue under in institutional reform litigation, such as 42

U.S.C. $1988, 42 U.S.C. § 2000e-5(k), and 42 U.S.C.

§ 1973l(e), require plaintiffs to secure a change in the legal

relationship between the parties through a court order to

be deemed a prevailing party. See Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep't of Health & Human Res., 532

U.S. 598, 602-05 (2001). Consent decrees qualify as a court

order. Id. at 604.

In some cases, a federal rights violation may be

remedied before trial. See id. at 608-09. By refusing to

negotiate a consent decree when state officials are willing,

plaintiffs might find themselves in a situation in which

26

state officials resolve federal rights violations during the

protracted discovery phase of litigation, leaving plaintiffs

without a judgment or order, and hence no attorney fees.

Plaintiffs would gain the satisfaction of having eliminated

a federal rights violation, but would be deprived of critical

fee awards. Even if some provisions of a consent decree are

ultimately unenforceable, plaintiffs would still fair better

by settling than by litigating.

B. Overturning The Fifth Circuit Ruling Will

Make State Officials Less Willing To Enter

Into Consent Decrees.

States locked into consent decrees find themselves

spending millions of dollars, not only on attempting to

implement decree provisions, but also on paying the costs

for monitors to track compliance, or for special masters the

court may have ordered to create plans to achieve decree

provisions. See, e.g., American Public Welfare Association,

Review of Public Child Welfare Litigation in Selected

Jurisdictions, 21 (April 1998). After many years of learn-

ing these difficult lessons, state officials are already less

willing to enter decrees that may prove unworkable. As

one state official involved in implementing a child welfare

consent decree put it when asked to give advice to other

states, “Consent decrees ... are a dead end.” Id. at 26.

Another suggested, “Instead of entering into a consent

decree, litigate or negotiate a settlement agreement.” Id.

If this Court rules that every provision of a consent

decree will be enforceable, regardless of whether there is

any remaining constitutional violation, then states will

certainly be less willing to enter into decrees. Consent

decrees are by and large instruments which specify how a

state is to go about the difficult task of reforming complex

27

bureaucratic organizations to mee

t federal legal require-

ments. With the standard for modification set Ao high

level, it is important that enforcement actions be limited

to actual, ongoing federal rights violations.

Even if upholding the Fifth Circui

E t Court of Appeal

decision results in state officials entering fewer ies

decrees, such a result is a price worth paying.

(SJettlement is not an end in itself. It i

of resolving disputes harmoniously. Many things

are more important: preserving democratic gov-

ernance, separating the judicial and political

spheres, respecting state autonomy in the ab-

sence of a federal rule.... Settlements pur-

chased at the cost of putting the court in control

of state and local budgets come at too high a cost.

Evans, 10 F.3d at 482. Basic democratic principles should

not be sacrificed merely for fear that there will be fewer

consent decrees with state official defendants.

¢

CONCLUSION

The State Amici respectfully ask this Court to

the Fifth Circuit Court of Appeals’ decision. an

reform consent decrees have become a part of state gov-

ernments’ operation. There is no doubt that these agree-

ments have benefited both plaintiffs and state defendants

But states bogged down in decades-old decrees requiring

detailed, exacting performance of complex tasks, when

there has never been any adjudication of a federal viola-

tion, reasonably wish to place limits on decree provisions

that can be enforced against them. The Amici States have

attempted to dispel the appearance that states knew

28

exactly what they were getting inty when they entered a

decree and simply have buyers’ remorse. The reality is

that reforming institutions is incredibly complex and

difficult. Neither plaintiffs nor defendants know if the

reformation plan formalized in a decree will actually work.

State official defendants should not be bound by every

provision of a decree unless the plaintiff can show an

actual constitutional or federal statutory violation. Up-

holding this rule will allow plaintiffs and state official

defendants in decrees to focus on improving state institu-

tions and shift the focus away from litigating over en-

forcement.

Respectfully submitted,

MarK L. SHURTLEFF

Utah Attorney General

ALAIN C. BALMANNO

Assistant Utah Attorney General

JONIJ.JONES) .

Assistant Utah Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

160 East 300 South, Sixth Floor

P.O. Box 140856

Salt Lake City, Utah 84114-0856

Telephone: (801) 366-0100

(Additional Counsel Listed On Inside Cover)

Table of Representative Current Consent Decrees

App. 1

APPENDIX A

Case Name Case Number | Date Date(s) | Subject of Decree Additional References

Entered | Modified

Milburn v. Coughlin | 79cv5077 1980 1991 Medical treatment of | Woods v. Goord, 2002 WL 731691, *7, n.13

(S.D.N.Y.) disabled inmates at (S.D.N.Y.) (detailing history of the Milburn

state Correctional decree).

Facility

Reynolds v. Civ. 85-T- 1994 2000 Discriminatory Reynolds v. Alabama Dept. of Trans., 84 F.

Alabama Dept. of 665-N (M.D. employment practices | Supp. 2d 1339 (M.D. Ala 2000) (extending

Trans. Ala.) length of decree for an additional 4 years).

Dixon v. Barry Civ. A.74-285 | 1980 1992, Care of disabled | Dixon v. Barry, 967 F. Supp. 535 (D.D.C.

(D.D.C.) 1997 individuals in D.C. 1997) (detailing history of the decree and

hospital ordering appointment of a special receiver to

oversee implementation of the decree).

Reese v. Evans Civ. 82-1251 | 1982 1998 Various aspects of

(N.D. Ga.) prison conditions,

including renovation

and expansion

Rolland v. Cellucci | CV. A. 98- 2000 Treatment conditions | Rolland v. Cellucci, 191 F.R.D. 3 (D. Mass.

30208 (D. of disabled 2000) (approving settlement agreement);

Mass.) » individuals in nursing | Rolland v. Cellucci, 198 F. Supp. 2d 25 (D.

homes Mass. 2002), aff'd, 318 F.3d (1st Cir. 2003)

(allowing plaintiff's motion for further relief

under consent decree).

Rosen v. Tennessee | 3:98-0627 2001 Administration of Rosen v. Tennessee Com'r of Finance and

Com’r. of Finance (M.D. Tenn.) state’s managed Admin., 204 F.Supp. 2d 1048 (M.D. Tenn.

and Admin. health care program | 2001), aff'd, 288 F.3d 918 (6th Cir. 2002)

(granting plaintiffs’ motion to enforce the

decree).

App. 2

Table of Representative Current Consent Decrees (cont.)

Case Name Case Number | Date Date(s) | Subject of Decree Additional References

Entered | Modified

Shakman v. 69C.2145 1972, - Elimination of hiring | Shakman v. Democratic Organization of

Democratic (N.D. Ill.) 1983 practices based on Cook County, 569 F. Supp. 177 (N.D. IIl.

Organization of political patronage by | 1983) (approving consent order); Shakman v.

Cook County various government | | Democratic Organization of Cook County,

defendants 607 F. Supp. 1086 (N.D. Ill. 1985) (amending

order); Shakman v. Democratic Organization

of Cook County, 2001 WL 1155274 at *1

(N.D. Ill.) (noting that “the 1972 and the 1983

Consent Judgments remain in full force and

effect.”’).

Handschu v. Special | 71 Civ. 2203 | 1985 2003 Surveillance Handschu v. Special Services Div., 605 F.

Services Div. (S.D.N.Y.) operations of New Supp. 1384 (D.C.N.Y. 1985), aff'd, 787 F.2d

York City Police 828 (2d Cir. 1986) (approving consent

Department decree). 2003. Handschu v. Special Services

Div., 2003 WL 1529197 (S.D.N.Y.)

(modifying consent decree).

Benjamin v. Fraser 75 Civ. 3073 | 1980 2000 Procedural Benjamin v. Kerik, 102 F. Supp. 2d 157

(S.D.N.Y.) safeguards for (S.D.N.Y. 2000), aff'd, 264 F.3d 175 (2d. Cir.

classifying inmates as | 2001) (modifying decree in light of Prison

requiring enhanced Litigation Reform Act of 1995); Benjamin v.

restraint status Fraser, 2002 WL 31845111 (S.D.N.Y.)

(finding defendants in contempt for failing to

comply with decree provisions).

Emma C. v. Eastin | C96-4179 2000 School district and Emma C. v. Eastin, 2001 WL 1180636 (N.D.

(N.D. Cal.) state’s department of | Cal.) (finding school district in contempt for

education compliance | failing to comply with decree and discussing

with IDEA history of litigation).

App. 3

Table of Representative Current Consent Decrees (cont.)

Case Name Case Number | Date Date(s) | Subject of Decree Additional References

Entered | Modified

John B. v. Menke 3:98-0168 1998 Provision of early John B. v. Menke, 176 F. Supp. 2d 786 (M.D.

(M.D. Tenn) childhood Tenn. 2001) (appointing special master to

preventative care oversee state’s compliance with decree and

under state health detailing consent decree provisions).

program

David C. v. Leavitt | 93-C-206(D. | 1994 1999 Institutional reform | David C. v. Leavitt, 242 F.3d 1206 (10th Cir.

Utah) of child welfare 2001), cert. denied, 534 U.S. 822 (2001)

agency (holding that district court’s extension of

decree’s original four-year period was

permissible.)

Felix v. Lingle 93-00367 (D. | 1994 2000 State agency’s

Haw.) compliance with

IDEA

U.S. v. Hawaii 91-00137 (D. | 1991 Conditions at state

Haw.) psychiatric facility

Makin v. Hawaii 98-000997 2000 Timely provision of —

(D. Haw.) Medicaid services to

disabled individuals