# Amicus Curiae Brief — Frew v. Hawkins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0613%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2004 - **Citation:** 540 U.S. 431 ## Text 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) —oOoOoOoOoOoOee—e—e—————————Oeeeeeee 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 _ abe 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0613%3A09. Public record. Not legal advice.