Amicus Curiae Brief — Rowland v. Juan F.

geaisttly eee ED

Supreme Court. U.S.

FILED

HAY @2 1999

No. 94-1731 |

In the \ Cues

en —_

Supreme Court of the United Stat

October Form, 1994

JOHN G. ROWLAND, GOVERNOR OF THE STATE OF

CONNECTICUT, LINDA D’AMARIO ROSSI, COMMISSIONER,

STATE OF CONNECTICUT DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioners,

Vv.

JUAN F., ET AL.,

Respondents.

+

On Writ of Certiorari

To the United States Court of Appeals

For the Second Circuit

+

BRIEF OF THE STATES OF FLORIDA, et al.

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

4

ROBERT A. BUTTERWORTH

Attorney General of Florida

* ANA CRISTINA MARTINEZ

Assistant Attorney General

Of Counsel: Office of the Attorney General

Eleni Constantine The Capitol, Suite PL-0O1

Nat. Assn. of Tallahassee, FL 32399-1050

Attorneys General Phone: (904) 488-1573

444 N. Capitol St. #339

Washington, D.C. 20001

* Counsel of Record . as

[additional counsel listed on inside cover]

ee iii

HON. JEFF SESSIONS

Attorney General of Alabama

State House, 11 S. Union Street

Montgomery, AL 36130

HON. BRUCE M. BOTELHO

Attorney General of Alaska

P.O. Box 110300

Juneau, AK 99811-0300

HON. GRANT Woops

Attorney General of Arizona

1275 W. Washington Street

Phoenix, AZ 85007

HON. WINSTON BRYANT

Attorney General of Arkansas

200 Tower Building

323 Center Street

Little Rock, AR 85007

HON. DANIEL E. LUNGREN

Attorney General of California

1515 K Street, Suite 511

Sacramento, CA 95814

HON. GALE A. NORTON

Attorney General of Colorado

1525 Sherman Street

Denver, CO 80203

HON. MICHAEL J. BOWERS

Attorney General of Georgia

40 Capitol Square, S.W.

Atlanta, GA 30334-1300

HON. CARLA J. STOVALL

Attorney General of Kansas

Judicial Building

301 West 10th Street

Topeka, KS 66612-1597

HON. CHRIS GORMAN

Attorney General of Kentucky

State Capitol, Room 116

Frankfort, KY 40601

HON. ANDREW KETTERER

Attorney General of Maine

State House Bldg.

Augusta, ME 04333

HON. J. JOSEPH CURRAN Jr.

Attorney General of Maryland

200 Saint Paul Place

Baltimore, MD 21202-2202

HON. MIKE MOORE

Attorney General of Mississippi

Department of Justice

P.O. Box 221

Jackson, MS 39205-0220

HON. JOSEPH P. MAZUREK

Attorney General of Montana

Justice Building

215 North Sanders

Helena, MT 59620-1401

HON. DON STENBERG

Attorney General of Nebraska

State Capitol

P.O. Box 98920

Lincoln, NE 68509-8920

HON. FRANKIE SUE DEL PAPA

Attorney General of Nevada

Old Supreme Court Bldg.

198 South Carson

Carson City, NV 89710

HON. JEFFREY R. HOWARD

Attorney General of New Hampshire

State House Annex

25 Capitol Street

Concord, NH 03301-6397

HON. TOM UDALL

Attorney General of New Mexico

P.O. Drawer 1508

Santa Fe, NM 87504-1508

HON. DENNIS C. VACCO

Attorney General of New York

New York State Department of Law

The Capitol

Albany, NY 12224

Hon. Betry D. MONTGOMERY

Attorney General of Ohio

State Office Tower

30 East Broad Street

Columbus, OH 43266-0410

HON. DREW EDMONDSON

Attorney General of Oklahoma

State Capitol

2300 N. Lincoln Boulevard

Room 112

Oklahoma City, OK 73105

HON. ERNEST D. PREATE JR.

Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

HON. PEDRO R. PIERLUISI

Attorney General of Puerto Rico

P.O. Box 192

San Juan, PR 00902-0192

HON. JAN GRAHAM

Attorney General of Utah

State Capitol, Room 236

Salt Lake City, UT 84114-0810

HON. JEFFREY L. AMESTOY

Attorney General of Vermont

109 State Street

Montpelier, VT 05609-1001

HON. JAMES S. GILMORE III

Attorney General of Virginia

900 East Main Street

Richmond, VA 23219

HON. DARRELL V. MCGRAW JR.

Attorney General of West Virginia

State Capitol

Charleston, WV 25305

HON. JAMES E. DOYLE

Attorney General of Wisconsin

State Capitol, Suite 114 East

P.O. Box 7857

Madison, WI 53707-7857

HON. PAMELA FANNING CARTER

Attorney General of Indiana

Indiana Gov’t Center

402 W. Washington Street

Sth Floor

Indianapolis, IN 46204

i

TABLE OF CONTENTS

I. A FEDERAL COURT’S EXPANSION OF

THE OBLIGATIONS OF A_ STATE

GOVERNMENTAL ENTITY UNDER AN

INSTITUTIONAL REFORM CONSENT

DECREE PRESENTS A_ NATIONAL

PROBLEM REQUIRING RESOLUTION BY

sys 6 ans ek lee kM ow 3

A. The instant case graphically illustrates the

need for this Court to articulate strict

Standards preventing unilateral expansion of

State obligations beyond the express terms of

eee 3

B. Federal courts’ expansion of state obligations

under a consent decree, absent an adjudication

on the merits, raises significant federalism

i Wok aed nh ee ch we 4b be 4 * & 2 7

ig aS old y ss « w kb ace we 17

il

TABLE OF AUTHORITIES

Page

CASES:

Allen v. Wright,

RS ee et re rere ae ere 7

Bell v. Wolfish,

Ok Sh COE 5 a ae oe ee eee 5

Citizens for a Better Environment

v. Gorsuch, 718 F.2d 1117

(D.C. Cir. 1983), cert. denied

sub nom. Union Carbide Corp.

Natural Resources Defense Council, Inc.,

SGr Ts FEe Oe 8 6 ep ve ee eee es 8, 15, 16

City of Los Angeles v. Lyons,

Se Bil WO Ae os A ee a es VRS O Oe 7

Duran v. Elrod,

713 F.2d 292 (7th Cir. 1983),

cert. denied, 465 U.S. 1108 (1984) ........... 14

E.E.0.C. v. Safeway Stores, Inc.,

611 F.2d 795 (10th Cir. 1979),

cert. denied sub nom. Courtwright

¥. BEA... OO US. Fis CIR 4 6 enw nese 8

Ex parte Young,

Me ae LEE CO 20 eR KA ee 1]

Ferrell v. Pierce,

Pigg Eee hk ae er eer 15

Fox v. United States Dep’t

of Housing and Urban Dev.,

ew Bok Be AR *: rr rere 9

Hills v. Gautreaux,

ae Be ee Se sk se aK ER ba eS 7

ill

Hutto v. Finney,

ee Oe i oda 6 a ee bee eee 11

Jacksonville Branch, NAACP

v. Duval County School Bd.,

Sf: go Bey Deb, Ee ae, +: 13

Johnson v. Robinson,

957 F.26 10463 (4th Cir. 1993)... wc cee eee 12

Jordan v. Fusari,

Gre Fae Gee C0 Cat.. TFTA) on cc cece eee 11

Juan F. by and through Lynch v. Weicker,

BF Bae OPE Ge Sl BOP eee ee eee eke 2

Laura I. v. Clausen,

Gro F. Sepp. 717 (M.D. La. 19GB) 2. cc ewe e 1]

Local No. 93, International Assoc.

of Firefighters v. City of Cleveland,

Gre this et Ce kh oe ew Ox abo e 6, 8, 9, 16

Lorain NAACP vy. Lorain Bd. of Education,

979 F.2d 1141 (6th Cir. 1992),

cert. denied, U.S. ;

See es ES ok oo obey Sa a 7

Milliken v. Bradley,

a cn. ee en OP, y ald kore es os wo KO 8

Milliken v. Bradley,

433 U.S. 267 (1977) (Milliken II) 2... ee ee 8

iV

New York State Ass’n for Retarded

Children, Inc. v. Carey,

596 F.2d 27 (2d Cir.),

cert. denied sub nom.

Coughlin v. New York State Ass'n

for Retarded Children, Inc.,

444 0.3, Tie a ee eh eee 11

Pennhurst State School

& Hospital v. Halderman,

465 US. TH eee ae 6 kh se Ke es 7, ll

Rizzo v. Goode,

423 U.S... ie See eee Oe a oH 3 ae > 7 !

Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367, F72 BGA. Fee PRED kee ee ease 4-9

Sansom Comm. v. Lynn,

735 F.2d 1535 (3d Cir.),

cert. denied sub nom. Trustees

of University of Pennsylvania

v. Sansom Comm.,

469 U.S. Gs Ge a a a wees hb oe wh eee es 8

Swann vy. Charlotte-Mecklenburg

Bd. of Education,

402 UB. 1 (Ere ce eee ee the maceseaes 8

Swift & Co. v. United States,

2te U.S. Fes Gee ee ae 6 oe eh oo ek ee 1]

Turner v. Orr,

759 F.2d 817 (11th Cir. 1985),

cert. denied, 478 U.S. 1020 (1986) ............ 8

a

Vv

United States v. Board of Education,

588 F. Supp. 132 (N.D. Ill.),

reversed, 744 F.2d 1300

(7th Cir. 1984), cert. denied,

en Ws FOP EID 6 vk ca es

United States v. City of Providence,

492 F. Supp. 602 (D.R.I. 1980) ..

United States v. Colorado,

937 F.2d 505 (10th Cir. 1991)...

United States v. Lopez, U.S.

63 U.S.L.W. 4343 (1995) ......

United States v. Michigan,

940 F. 2d 143 (6th Cir. 1991),

cen. demied, US...

id es Be le Fi.

United States v. Motor

Vehicle Mfrs. Ass’n,

643 F.2d 644 (9th Cir. 1981) ...

United States v. Shubert,

163 F. Supp. 123 (S.D.N.Y. 1958)

Vecchione v. Wohlgemuth,

558 F.2d 150 (3d Cir.),

cert. denied sub nom.

Beal v. Vecchione,

ee Fis, ee

Washington v. Penwell,

700 F.2d 570 (9th Cir. 1983) ...

Wisconsin Hosp. Ass'n v. Reivitz,

820 F.2d 863 (7th Cir. 1987) ...

V1

Woodson v. Sully,

801 F. Supp. 466 (D. Kan. 1992) .........226. 13

CONSTITUTION AND STATUTES:

So Re. OF, FR Es. vs 2 4a 8 eee es 10

a. ST. GI. kc hn 0 8 eT RS 10

th ian a eS errr ee ree 10, 11

Ce Ss Eee ba ae a eee ee es Oe wee 13

LAW REVIEW ARTICLES:

Chayes, The Role of the Judge

in Public Law Litigation,

2 ee a 0 14

Paul D. Windsor, Separation of

Powers and the Reagan Administration’s

Policy on Consent Decrees: Have

the Courts Overstepped the Limits

of Judicial Powers ?,

1989 Univ. Ill. L. Rev. 541 (1989) ........... 15

OTHER MATERIALS:

Declaration of Kimberly Tucker,

General Counsel, Florida Department

of Health and Rehabilitative Services,

Ce Se RD 6 hie a 06 Ae dee es ee eee 16

No. 94-1731

+

In the

Supreme Court of the United States

October Term, 1994

‘

JOHN G. ROWLAND, GOVERNOR OF THE STATE OF

CONNECTICUT, LINDA D’AMARIO ROSSI, COMMISSIONER,

STATE OF CONNECTICUT DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioners,

.

JUAN F., ET AL.,

Respondents.

4

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Second Circuit

+

BRIEF OF THE STATES OF FLORIDA, et al.

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

+

INTEREST OF THE AMICI CURIAE

Amici states are often parties to institutional reform

consent decrees, and other types of consent decrees. Amici

respectfully submit this brief in support of petitioner, John

G. Rowland, Governor of the State of Connecticut, and other

petitioners.

2

The Second Circuit’s decision in this case graphically

illustrates the need for principled guidelines for federal

courts when confronted with a demand to increase the

obligations of a state governmental entity under a consent

decree. The Second Circuit approved the district court’s

expansion of a consent decree so as to require Connecticut’s

Department of Children and Families to hire 490 employees

pursuant to a timetable unilaterally set by the district court.

Juan F. by and through Lynch v. Weicker, 37 F.3d

874 (2d Cir. 1994). Amici assert that federal courts have

no authority to increase the obligations of an unconsenting

state governmental entity beyond the terms of the consent

decree where no violation of federal law has been

adjudicated, and respectfully request that this Court grant

certiorari to address the issues raised by this case.

3

ARGUMENT

I. A FEDERAL COURT’S EXPANSION OF

THE OBLIGATIONS OF A _ STATE

GOVERNMENTAL ENTITY UNDER AN

INSTITUTIONAL REFORM CONSENT

DECREE PRESENTS A NATIONAL

PROBLEM REQUIRING RESOLUTION

BY THIS COURT.

A. The instant case graphically

illustrates the need for this

Court to articulate strict

standards preventing

unilateral expansion of state

obligations beyond the

express terms of a consent

decree.

In the instant action, Connecticut’s Department of

Children and Families (DCF) entered into a consent decree

to reform the state child welfare system. The decree was

agreed to prior to any adjudication on the merits; the state

was never found to be in violation of any federal

constitutional provision or law. Under the terms of the

decree, DCF was required to meet certain caseload ratios by

July 1994; the decree specifically left it to DCF to determine

how to meet the ratios. Most importantly, because the

number of DCF cases fluctuates, the decree contained no

hiring timetables or hiring quotas. When the Connecticut

General Assembly failed to fund all of the caseworker

positions that DCF requested to comply with the decree,

DCF developed a plan that would enable it to be in

4

substantial compliance with the caseload ratios by the July 1,

1994 deadline. Despite the fact that it was more than one

year before the compliance deadline and that DCF was at the

time in compliance, respondents notified the court-appointed

monitor that they would seek contempt and other relief in the

district court.

On June 15, 1993, the monitor issued a report

recommending that the consent decree be modified based on

his prediction that DCF would not be in 100% compliance

by the July 1, 1994 deadline. The district court adopted the

monitor’s recommendations, on June 25, 1993, and ordered

that DCF hire 248 case workers by July 1, 1993,' and 242

case workers by January 1, 1994. Neither these deadlines

nor the hiring quotas are contained in the consent decree

agreed to by the parties.

On appeal, the Second Circuit upheld the district

court’s order and ruled that the district court’s accelerated

hiring timetable was not a modification of the decree. In the

alternative, the Second Circuit held that even if the hiring

timetable was a modification, it satisfied the criteria

announced by this Court in Rufo v. Inmates of

Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748

(1992). In Rufo, this Court held that when a significant

factual or legal change occurs, the federal district court must

first determine whether a decree modification is ‘warranted’;

and if so, whether the proposed modification is ‘suitably

tailored’ to the changed circumstance. Rufo, 112 S.Ct. at

760. The Second Circuit held that the district court’s order

was not a modification of the decree because the district

' Six days later.

5

court’s accelerated hiring timetable ensured compliance with

the time frame for meeting caseload ratios established by the

decree. Alternatively, the Second Circuit reasoned that

under Rufo’s standard, the Connecticut General Assembly’s

failure to appropriate all the requested funds constituted a

significant factual change justifying the accelerated hiring

timetable ordered by the district court.

Amict submit that the Second Circuit erred when it

determined that: (1) the district court’s accelerated hiring

timetable was not a modification of the decree; and that (2)

even if it was, it passed constitutional muster because it

Satisfied the Rufo criteria for decree modification. This

case illustrates the need for principled standards for federal

courts to evaluate demands to expand a state’s obligations

under a consent decree, where the state has not been held to

have violated federal rights.

Rufo does not address the situation presented by this

case: what standards apply to a demand by plaintiffs to

increase a state governmental entity’s obligations under a

consent decree absent an adjudicated violation of federal

rights. The parties in Rufo did not brief the issues raised

in this case, nor were they considered by this Court. Rather

in Rufo, the sheriff of Suffolk County, Massachusetts,

moved to reduce the state’s obligations under a consent

decree which county officials had entered into after a district

court held that the conditions at the Suffolk County jail were

constitutionally deficient. The order required construction of

a new jail facility: the sheriff sought to allow double bunking

in some cells, to raise the capacity of the new jail. The

sheriff argued that this modification was required by a legal

change, this Court’s decision in Bell y. Wolfish, 441

6

U.S. 520 (1979), and a factual change, an increase in

pretrial detainees. The district court rejected the proposed

modification, in part because, in the court’s view, one of the

underlying, but unstated, purposes of the decree was to

provide single cells, and the First Circuit affirmed. Rufo,

112 S.Ct. at 759. Rejecting that reasoning, this Court held

that "[mJodification of a consent decree may be warranted

when changed factual conditions make compliance with the

decree more onerous." /d., at 760.

Because Rufo does not address the problems

presented by the Second Circuit’s holding in this case, this

Court should grant review. Asici submit that a federal

court’s remedial power in a consent decree where no

violation of federal law has been adjudicated is authorized

solely by the parties’ consent. Local No. 93,

International Assoc. of Firefighters v. City

of Cleveland, 478 U.S. 501, 522 (1986).’

Consequently, a federal court has no power to increase the

obligations of a party beyond those set out in the decree. It

follows that federal courts are bound by the text of the

decree in evaluating demands for modification and must

reject demands that increase a party’s obligations beyond the

terms agreed to. A textual approach to consent decree

modification would prevent the result of the Second Circuit’s

holding in this case, as well as encourage resolution by

consent decrees because parties would be guaranteed that

their obligations would not be expanded beyond their means.

> Hereinafter, "Firefighters".

Ne SN RL IT

7

B. Federal courts’ expansion of

State obligations under a

consent decree, absent an

adjudication on the merits,

raises significant federalism

concerns.

Expansion of the terms of any consent decree raises

the problem of federal courts exceeding their authority.

Modification of institutional reform consent decrees raises

additional significant federalism concerns where, as in this

case, it allows a federal court to impose on a state

governmental entity obligations to which the state did not

agree, where no constitutional or federal violation has been

adjudicated. Although this Court has never disallowed

remedial relief ordered by a federal district court solely on

the ground that it unconstitutionally intrudes on state

sovereignty, the Court has held that such constraints do

exist. In Rufo, this Court stated "[flederal courts may not

order States or local governments, over their objection, to

undertake a course of conduct not tailored to curing a

constitutional violation that has been adjudicated." Rufo,

112 S.Ct. at 762.’ These principles remain vital: only a few

weeks ago, in United States v. Lopez, Justice Kennedy

noted the Court’s continuing duty "to consider [the federal

* See also Allen y. Wright, 468 U.S. 737, 760-1 (1984); Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89, 104 n.13 (1984); City

of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983); Hills v. Gautreaux,

425 U.S. 284, 293 (1976); Rizzo v. Goode, 423 U.S. 362, 379 (1976)

(“appropriate consideration must be given to principles of federalism in

determining the availability and scope of equitable relief"); Lorain NAACP

v. Lorain Bd. of Education, 979 F.2d 1141 (6th Cir. 1992), cert. denied,

__ U.S. __, 113 $.Ct. 2998 (1993)

8

courts’] place [vis-a-vis the states] in the design of the

Government and to appreciate the significance of federalism

in the whole structure of the constitution." __— U.S. ___,

63 U.S.L.W. 4343, 4350-51 (1995) (Kennedy, J.,

concurring). If allowed to stand, the Second Circuit’s

decision in this case and its progeny will weaken the

principles of federalism which this Court upheld in Rufo,

and recently reaffirmed in Lopez.

Ordinarily, federal equitable relief cannot be granted

against a state unless a federal court has concluded that

federal rights have been violated or the parties consent to a

judgment.?- This principle serves as a check on federal

intrusion on state sovereignty. However, most consent

decrees, as in this case, are entered into before federal rights

or violations are adjudicated, so that a federal court’s

authority to enter the decree depends on the agreement of the

state. Firefighters, 478 U.S. at 522. In

Firefighiers, this Court expressly affirmed a_ federal

court’s power to embody in a consent decree relief that it

could not order had the case gone to trial -- because a

consent decree represents a voluntary agreement of the

parties. Jd. at 522.° Firefighters confirms both the

* Milliken v. Bradley, 418 U.S. 717, 744-45 (1974) (Milliken Il); also

Milliken v. Bradley, 433 U.S. 267, 281 (1977) (Milliken IN); Swann v.

Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1 (1971).

* See also Turner v. Orr, 759 F.2d 817 (11th Cir. 1985), cert. denied,

478 U.S. 1020 (1986); Sansom Comm. v. Lynn, 735 F.2d 1535, 1538 (3d

Cir.), cert. denied sub nom. Trustees of University of Pennsylvania v.

Sansom Comin. , 469 U.S. 1017 (1984), Citizens for a Better Environment

v. Gorsuch, 718 F.2d 1117, 1125-26 (D.C. Cir. 1983), cert. denied sub

nom, Union Carbide Corp. Natural Resources Defense Council, Inc. , 467

U.S. 1219 (1984); E.E.0.C. v. Safeway Stores, Inc., 611 F.2d 795, 799-

ASA EE a OE ER AB Nw

9

broad scope of federal remedial power in a consent decree

and the limits of that power -- to the terms to which the

parties consented. Allowing federal courts to abuse their

extraordinary consent decree powers, as the Second Circuit

did here, stands the principle of Firefighters on its

head.°

Moreover, where, as here, the federal court exceeded

its authority vis-a-vis a state in going beyond the express

terms of the decree, basic principles of federalism are also

threatened. Because it is a substantially greater federal

intrusion On state sovereignty to impose equitable remedies

on a state governmental entity when it has not actually

violated a plaintiff’s federal rights, federalism concerns are

stronger where federal courts seek unilaterally to modify

consent decrees so as to impose on the state governmental

entity obligations beyond those to which the state agreed.

Indeed, this Court in Rufo indicated that the district court

erred in looking beyond the express terms of the consent

decree in rejecting limited double celling of pretrial

detainees. Rufo, 112 S.Ct. at 761. Rufo suggests a rule

consistent with Amici’s position here: a state may agree to

relief beyond the terms of a consent decree, but cannot be

required to provide such relief, at least absent an adjudicated

violation of federal law. See, id. at 762. Rather, the

800 (10th Cir. 1979), cert. denied sub nom. Courtwright v. E.E.O.C., 446

U.S. 952 (1980).

* See Fox yv. United States Dep't of Housing and Urban Dev. , 680

F.2d 315 (3d Cir. 1982) (imposing additional duties on defendants is

unauthorized if the court has not adjudicated that defendant violated

plaintitf’s rights, absent exceptional circumstances).

10

enforceable obligations of the state must be determined by

the express terms of the decree.

There are basic structural reasons for restricting

federal courts to the text of a decree: in unilaterally

increasing the obligations of a state governmental entity,

federal courts may also violate provisions of the party state’s

constitution. For example, when a federal district court

modifies a consent decree to require the state’s legislature to

fund the terms of the decree or to require a state

governmental entity to re-prioritize legislative funding to

comply with the decree, this constitutes a federally mandated

violation of the state constitution’s separation of powers

provision’ and may raise Tenth* or Eleventh Amendment?

issues as well.

Finally, the general inapplicability to federal consent

decrees of other federalism-serving doctrines, such as the

Article Ill "case or controversy""® requirement and the

Eleventh Amendment, renders equitable relief under consent

” See United States v. Board of Education, 588 F. Supp. 132 (N.D.

Ill.) (district court ordered Department of Education to set aside $14.6

million in appropriations to desegregate Chicago's schools), reversed, 744

F.2d 1300 (7th Cir. 1984) (held district court misinterpreted consent

decree; issue of whether district court violated the federal separation of

powers provision was not reached), cert. denied, 471 U.S. 1116 (1985).

* U.S. CoNnsT. amend. X.

% U.S. CONST. amend. XI. See Washington v. Penwell, 700 F.2d

570 (9th Cir. 1983) (requirement that state fund general legal services for

prisoners void under Oregon constitution’s separation of powers provision

and the Eleventh Amendment).

10 U.S. Const. art. Hl, § 2.

1]

decrees even more problematic. This Court has held that

consent decrees do not run afoul of the constitutional "case

or controversy" requirement.'' Moreover, most federal

courts that have held that the provisions of the Eleventh

Amendment are generally inapplicable to federal consent

decrees against state governmental entities for different

reasons. First, because consent decrees mandate prospective

relief against state officials, they do not fall within the scope

of the Eleventh Amendment.'"? Second, the state’s consent

to the decree may constitute a waiver of its immunity from

Suit in federal court.” Finally, some courts have held that

any order enforcing a valid consent decree is not barred by

the Eleventh Amendment.'* While the application of the

Eleventh Amendment in the context of federal consent

decrees is complex, it seems clear that both of these

'' Swift & Co. v. United States, 276 U.S. 311 (1928)

= See Wisconsin Hosp. Ass'n v. Reivitz, 820 F.2d 863, 868 (7th Cir.

1987), New York State Ass'n for Retarded Children, Ine. v. Carey, 596

F.2d 27, 39 (2d Cir.), cert. denied sub nom. Coughlin v. New York State

Ass'n for Retarded Children, Inc., 444 U.S. 836 (1979); Vecchione vy.

Wohlgemuth, 558 F.2d 150, 158 (3d Cir.), cert. denied sub nom. Beal v.

Vecchione, 434 U.S. 943 (1977); but see Pennhurst, supra, footnote 3

(prospective relief against state officials under state law barred by the

Eleventh Amendment); of. Ex parte Young, 209 U.S. 123, 155-56 (1908)

(prospective relief against state officers not barred by Eleventh

Amendment).

'' See Carey, 596 F.2d at 39; Jordan v. Fusari, 496 F.2d 646, 651

(2d Cir. 1974); Laura 1. v. Clausen, 676 F. Supp. 717, 719 (M.D. La.

1988).

'* See Hutto v. Finney, 437 U.S. 678, 691-92 (1978) (monetary

penalties imposed to enforce an injunction are not barred by the Eleventh

Amendment); Reivirz, 820 F.2d at 868; Vecchione, 558 F.2d at 158.

12

doctrines, that regularly limit the scope of federal injunctive

power and serve federalism goals, do not usually apply to

the entry and enforcement of consent decrees. Their

inapplicability to consent decrees increases the risk that

federal courts may inadvertently modify a decree in violation

of state sovereignty.

Indeed, several federa' courts of appeal have refused

to modify consent decrees because they have realized the

dangers of allowing federal courts to expand state obligations

under a consent decree absent a violation of federal rights.

For example, in Johnson v. Robinson, 987 F.2d 1043

(4th Cir. 1993), the Fourth Circuit held that the district court

abused its authority under a consent decree involving

Maryland’s prison system when it adopted a timetable which

was not in the decree, within which Maryland prison

officials had to make 83 improvements at prison facilities.

The court emphasized that the parties never formally agreed

upon the duties in the specified timetable, which added

substantially to those accepted by prison officials in the

original decree. Thus, the court held that because the

binding force of a consent decree comes from the agreement

of the parties, the district court may not use its decree

enforcing power to enlarge or diminish the duties to which

the parties have agreed and which the court has approved.

Similarly, in United States v. Michigan, 940

F. 2d 143 (6th Cir. 1991), cert. denied, __-~*o“OS. __,

115 S.Ct. 312 (1994), the Sixth Circuit held that the district

court abused its discretion and overly intruded upon the

sovereignty of the state of Michigan when it unilaterally

modified and extended a program classification plan for

prisons being used by Michigan, where program

——

13

classification was excluded from the consent decree. In this

action, the United States and Michigan had entered into a

consent decree to resolve alleged violations of the Civil

Rights of Institutionalized Persons Act, 42 U.S.C. §1997.

In implementing the consent decree, the district court issued

five orders requiring Michigan to justify, explain, and

validate the program classification plan, and requiring that

the plan encompass a state-wide classification system. On

appeal, the circuit court held that the district court abused its

discretion when it modified and extended the plan.

The Tenth Circuit likewise vacated a district court’s

modification of a consent decree because the court founc that

the district court unilaterally discarded the balance struck by

the parties concerning duration and procedures for dismissing

the consent decree and substituted its own procedures and

time frame. United States y. Colorado, 937 F.2d 505

(10th Cir. 1991). The Tenth Circuit concluded that the

district court abused its discretion in modifying the proposed

consent decree and remanded the case for further

proceedings to determine whether the parties’ unmodified

Stipulations, should be accepted or not."

'S See Woodson v. Sully, 801 F. Supp. 466 (D. Kan. 1992) (district

court refused needed modification because found proposed amendment

involved too great an intrusion by the court into management of county,

especially where parties were not in agreement); and see also Jacksonville

Branch, NAACP y. Duval County School Bd., 978 F.2d 1574 (11th Cir.

1992) (NAACP not entitled to modity consent decree to restrict school

board's freedom to implement its school desegregation plan, absent plan’s

failure to accomplish consent decree objectives).

14

Unlike the Second Circuit, these courts properly

considered the effect of a federal court’s unilateral

modification of a consent decree on state sovereignty. Had

these modifications been allowed, courts would be free to

rewrite the terms of consent decrees entered into by

governmental entities. Such a result will either weaken the

structural guarantees of federalism or effectively prohibit the

use of consent decrees by governmental entities altogether.

One of the advantages of a consent decree is that both

parties have an investment in the success of the decree."

Accordingly, compliance is usually not a_ problem.

However, when a court unilaterally modifies a decree, it

necessarily disturbs the balance struck by the parties.’ As

a result, cooperation and compliance from the parties may

become increasingly difficult.

The most obvious effect of the Second Circuit’s

decision is that federal and state governmental agencies will

be prohibited from resolving institutional reform litigation

through consent decrees. For example, in 1986, the

Attorney General of the United States issued guidelines to

Department of Justice attorneys instructing them not to enter

into consent decrees that would bind the executive discretion

'© See Chayes, The Role of the Judge in Public Law Litigation, 89

HARV. L. REV. 1281 (1976).

7 See Duran v. Elrod, 713 F.2d 292, 296-97 (7th Cir. 1983), cert.

denied, 465 U.S. 1108 (1984); United States v. Motor Vehicle Mfrs. Ass’n,

643 F.2d 644, 651 (9th Cir. 1981); United States v. City of Providence,

492 F. Supp. 602, 608 (D.R.I. 1980); United States v. Shubert, 163 F.

Supp. 123, 124 (S.D.N.Y. 1958).

oT 2

i)

of subsequent administrations."® This policy was the result

of three cases: (1) Ferrell y. Pierce, 743 F.2d 454 (7th

Cir. 1984), where a district court refused to allow the

Department of Housing and Urban Development to adopt a

congressionally approved alternative to the assignment

program required by a decree; (2) United States y.

Board of Education, 588 F. Supp. 132 (N.D. IIl.),

vacated, 744 F.2d 1300 (7th Cir. 1984), cert. denied,

471 U.S. 1116 (1985), where a district court interpreted a

consent decree to require affirmative legislative and other

funding efforts by the executive branch: and (3) Citizens

for a_ Better Environment y. Gorsuch, 718 F.2d

1117 (D.C. Cir. 1983), cert. denied sub nom. Union

Carbide Corp. vy. Natural Resources Defense

Council, Inc., 446 U.S. 952 (1980), where, despite

Congress’s enactment of the Clean Water Act of 1977, a

district court refused to vacate a consent decree that specified

methodology and criteria to be used by the EPA in amending

regulations.”

The Attorney General believed that using consent

decrees which circumscribed the executive discretion of

Subsequent administrations unconstitutionally expanded

judicial power at the expense of the executive and legislative

branches of government. Thus, the policy was directed to

avoid the result of Ferrell, Board of Education and

ig

See Paul D. Windsor, Separation of Powers and the Reagan

Administration's Policy on Consent Decrees: Have the Courts Overstepped

the Limits of Judicial Powers?, 1989 Ill. L. Rev. 541, 567-70 (1989).

(Appendix).

See Gorsuch, 718 F.2d at 1130 (Wilkey, J., dissenting) ("such

decrees invite judicial abuse of the separation of powers doctrine”).

16

Gorsuch. Specifically, the policy forbade consent decrees

that encroached upon an executive department’s or

government agency’s discretionary power to: (1) promulgate

regulations; (2) seek or spend funds; and (3) perform other

discretionary activities. Some states have also shared the

federal government’s response to consent decrees. For

example, Florida Governor Lawton Chiles will not approve

any consent decrees to which the state or one of its agencies

is a party.” Asa result, institutional reform cases will go

to trial in federal court rather than be resolved through

consent decree, and the benefits of consent decrees will be

lost.”

* See Declaration of Kimberly Tucker, General Counsel, Florida

Department of Health and Rehabilitative Services, dated May 18, 1995

(signed original lodged with the Court).

“| In several civil rights areas where consent decrees are

commonplace, Congress affirmatively expressed its preference for

voluntary resolution. See, e.g., Firefighters, 478 U.S. at 524 n.13

(legislative history of Title VII reflects congressional preference for

voluntary remedial action). The Second Circuit's view of consent decree

modification, like the Union's view of consent decrees in Firefighters,

would make it substantially more difficult to settle litigation under those

statutes, contrary to the expressed legislative preference.

17

CONCLUSION

For the foregoing reasons, this Court should grant

certiorari.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General of Florida

" ANA CRISTINA MARTINEZ

Assistant Attorney General

Office of the Attorney General

The Capitol, Suite PL-O1

Tallahassee, Florida 32399-1050

(904) 488-1573

Counsel for Amici States

* Counsel of Record

Of Counsel:

Eleni M. Constantine

Nat. Assn. of Attorneys General

444 N. Capitol St. #339

Washington, D.C. 20001

May 22, 1995