Appendix — Class of 48+1 v. Greenblatt

.. Supreme Court, U.S. '

fa

y yy FILED

95°47 JUL 321995

No. 95-

QEFICE OF THE ERR cs

IN THE SUPREME COURT OF THE UNITED STA

OCTOBER TERM, 1995

THE CLASS OF 48+1 AND THE

INTERVENOR PLAINTIFFS, SUCCESSORS

IN INTEREST TO MITCHELL G. KING, JR..,

Petitioners,

v.

MILTON GREENBLATT, M.D., LESLIE TAYLOR,

CHARLES W. GAUGHN AND M.C.I. BRIDGEWATER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

JOHN F. BATTER III

Counsel of Record

ROBERT D. KEEFE

ANTHONY A. SCIBELLI

Hale and Dorr

60 State Street

Boston, MA 02109

(617) 526-6000

DAVID R. GEIGER

JEFFREY S. FOLLETT

Foley Hoag & Eliot

1 Post Office Square

Boston, MA 02109

Counsel for Petitioners

EN

TABLE OF CONTENTS

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APPENDIX A

United States Court of Appeals

For the First Circuit

No. 94-1751

MITCHELL G. KING, ET AL.,

Plaintiffs, Appellees,

a

MILTON GREENBLATT, LESLIE TAYLOR,

CHARLES W. GAUGHAN, M.C.I. BRIDGEWATER

Defendants, Appellants.

APPEAL FROM THE CITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. A. David Massone, Senior U.S. District Judge]

William L. Pardee, Assistant Attorney General, with

Scott _M.

whom Scott Harshbarger, Attorney General, and .

Davis, Assistant Attorney General, were on brief for

appellants.

with whom e

Stephen C. Reilly, and Hale and Dorr, were on brief for

appellees The Class of 48 + 1; David R. Geiger, with whom

and lot, were on brief for

intervenors/appellees Donald Pearson, et al.

April 6, 1995

BOWNES, Senior Circuit Judge. This is the latest

chapter in the institutional reform litigation brought in 1972

by plaintiff Mitchell King, then a civilly-committed patient

of the Massachusetts Treatment Center for Sexually

Dangerous Persons in Bridgewater, Massachusetts, to correct

allegedly unconstitutional practices by the Department of

Correction (DOC) at the Treatment Center. The history of

the litigation has been exhaustively covered: Jn re Pearson,

990 F.2d 653 (1st Cir. 1993) (Pearson III), Pearson v. Fair,

935 F.2d 401 (list Cir. 1991) (Pearson II), Langton v.

Johnston, 928 F.2d 1206 (1st Cir. 1991), Williams v. Lesiak,

822 F.2d 1223 (1st Cir. 1987), and Pearson v. Fair, 808 F.2d

163 (1st Cir. 1986) (per curiam) (Pearson I). We review the

case history only to put this appeal in perspective.

IL |

King alleged that he had been deprived of due process

and other federal constitutional rights by the defendants,

specifically by officials of the DOC, who allegedly placed

him in solitary confinement without notice of the charges

against him or a meaningful opportunity to be heard. DOC’s

actions allegedly interfered with King’s treatment by the

Department of Mental Health (DMH), the agency vested

with primary jurisdiction over ,the Treatment Center. See

Mass. Gen. L. ch. 123A, §2.! Thus, an element of this

1 Section 2 of ch. 123A (as amended through St. 1959, ch. 615)

provided in pertinent part: "The commissioner of mental health shall

establish and maintain, subject to the jurisdiction of the department of

mental health, a treatment center . . . at a correctional institution

approved by the commissioner of correction, for the care, custody,

treatment and rehabilitation of [sexually dangerous] persons . .. .

The commissioner of correction shall appoint such custodial

personnel as may be required for such center. Such custodial

personnel shall be subject to the control of the commissioner of

mental health with respect to the care, treatment and rehabilitation of

persons in their custody, but shall at all times be under the

administrative, operational and _ disciplinary control of the

commissioner of correction. The commissioner of mental health shall

appoint to such center, in addition to the personnel appointed by the

commissioner of correction, adequate personnel for the care,

treatment and rehabilitation of such persons committed to their care.

=,

litigation, present from the very beginning, has been DOC’s

alleged usurpation of DMH’s statutory authority over

patients at the Treatment Center, during which usurpation

the patients’ constitutional rights were allegedly violated.

Invoking both the Federal Constitution and state law, King

sought declaratory and injunctive relief from the DOC’s

sequestration practices.

In 1974, the district court held a hearing on King’s

allegations and entered a consent decree that provided, in

relevant part:

1. The Treatment Center at MCI Bridgewater

Shall be treated as a facility of the Department of Mental

Health.

2. Primary responsibility and authority for the

Treatment Center shall be exercised by the Department

of Mental Health.

3. All personnel at the Treatment Center

(clinical, custodial, administrative) shall be subject to

the control of the Commissioner of Mental Health with

respect to the handling of patients.

4. Custodial personnel, but not patients, shall be

under the administrative, operational and disciplinary

control of the Commissioner of Correction.

5. The Department of Mental Health shall

exercise the responsibility and authority set forth in

subparagraph 2 above so that patients at the Treatment

Center should have the least restrictive conditions

necessary to achieve the purposes of commitment... .

The first four paragraphs of the consent decree Closely track :

the requirements of ch. 123A, § 2, the law in effect when the ,

consent decree was entered.2

Over time, the residents of the Treatment Center brought

various suits to enforce or to modify the consent decrees. In

1988, the Commonwealth sought unsuccessfully to vacate

the decrees. "The stream of litigation occasionally

overflowed the district court," Pearson III, 990 F.2d at 655,

and this court as well.

While the residents were attempting to enforce the

consent decrees, forces on the sidelines of the litigation were

mobilizing to amend ch. 123A. Beginning in 1986,

Massachusetts’ executive branch filed a number of

legislative bills that sought to transfer control of the

Treatment Center from DMH to DOC. None of these bills

were adopted until 1994, when the Massachusetts legislature

enacted St. 1993, ch. 489. Chapter 489 purports to transfer

all authority over the Treatment Center to the DOC, in direct

contravention of the first five paragraphs of the consent

decree. Section2 of ch. 489 provides that "[tJhe

commissioner of correction shall maintain subject to the

jurisdiction of the department of correction a treatment

program or branch thereof at a correctional institution for the

care, custody, treatment and rehabilitation of persons

[ad]judicated as being sexually dangerous."

The defendants immediately moved under Fed. R. Civ.

P. 60(b)(5) to modify the decree so that DOC might assume

plenary authority over the Treatment Center, subject to all

other substantive and procedural requirements of the

2 The district court also entered a supplemental consent decree

that (1) prohibited defendants from using solitary confinement for the

purposes of discipline or punishment; and (2) imposed various

procedural and substantive requirements for the use of sequestration.

The defendants do not seek to modify the supplemental consent

decree.

~ Fe

decree.3 Their sole argument was that the Massachusetts

legislature’s enactment of ch. 489 constituted "a Significant

change in circumstances watrant[ing}] revision of the

decree." See Rufo v. Inmates of Suffolk County Jail, 502

U.S. 367, 383 (1992) (setting forth standard for modification

of consent decrees, and reversing the decision of this circuit).

The district court denied the motion from the bench:

"On the record that is now before me, and incorporated into

that record, everything that I have learned about the case and

found in the case from the trials of the Bruder and the

Pearson cases [companion cases], I will conclude at this

time that the defendants have not sustained their burden of

showing a significant change in law or fact under Rufo.”

The court also made the following findings:

I do find that the consent decrees sought to

address federal constitutional violations articulated by

King and in Williams [a related case}.

A critical component of the remedy provided by

the consent decrees was that the Department of Mental

Health was in control of the Treatment Center which

was to provide, in part, a check on the Department of

Correction[,] which compromised treatment.

I conclude that the Department of Mental Health

is an essential part of the decree, and on the record

before me at this time, the Department of Correction has

done nothing yet that I can see which warrants my

placing confidence in its ability to deliver . . . patient

treatment.

{ conclude at this time that the Department of

Correction’s control of the Treatment Center

compromises the federal constitutional remedy which

3 The defendants also moved to reopen Williams v. Lesiak, a

related litigation that involved a similar consent decree. See

Williams, 822 F.2d at 1224. The district court did not rule on the

motion because counsel had not yet been appointed for the plaintiffs

in Williams.

<i.

the consent decree sought to impose, and would

compromise the federal constitutional rights which the

consent decrees sought to protect.

Will the Department of Correction provide th{e]

same treatment [as DMH]? That’s not shown. If they

were to provide that treatment, if there were to be a

case-specific inquiry in what the Department of

Correction was going to do and proposed to do, then

perhaps I would be able to rule otherwise. But at this

point, there is not that showing. . . .

The district court invited the Commonwealth to propose

ways to modify the decree that would preserve the federal

constitutional remedies, and yet accommodate the change in

the underlying state law. It noted, however, that "we're not

going to go anywhere” before the defendants have tested the

court’s interpretation of Rufo on appeal.4 Undeterred, the

defendants filed a renewed motion for modification and a

motion to vacate the consent decrees while this appeal was

pending.

4 We asked the parties to brief the issue of our appellate

jurisdiction in light of Carson v. American Brands, Inc., 450 U.S. 79,

84 (1981), which, in the context of an appeal from an interlocutory

order refusing to enter a consent decree, applied the general rule that

an appeal under 28 U.S.C. § 1292(a)(1) is available only if the order

"might have a ‘serious, perhaps irreparable consequence,’" and can be

"‘effectually challenged’ only by immediate appeal" (citations

omitted). Assuming, without deciding, that these conditions apply

where the district court refuses to modify a longstanding consent

decree, we think the appeal is properly before us. In particular, the

district court’s forecast of a stalemate pending appeal suggests that its

order can be effectually challenged only by immediate appeal.

We also note that Rufo itself was an interlocutory appeal from

the denial of a Rule 60(b)(5) motion to modify a consent decree.

Neither the Supreme Court nor we, however, addressed the

jurisdictional issues in that case.

a.

i.

We review the district court’s application of the Rufo

Standard, and the more general requirements for granting

relief from a final judgment under Rule 60(b)(5), for errors

of law or abuse of discretion. See Alexis Lichine & Cie. v.

Lichine Estate Selections, Ltd., No. 94-1918, slip op. at 10

(ist Cir. Jan. 30, 1995). Rufo held that "a party seeking

modification of a consent decree bears the burden of

establishing that a significant change" in either factual

conditions or in law "warrants revision of the decree.” 502

U.S. at 383-84. If the moving party meets this standard, "the

court should consider whether the proposed modification is

Suitably tailored to the changed circumstance." Jd. at 383.

This "standard . . . applies when a party seeks modification

of a term of a consent decree that arguably relates to the

vindication of a constitutional right." Jd. at 383 n.7.

Rufo instructed district courts to “exercise flexibility in

considering requests for modification of . . . institutional

reform consent decree [s]" because such decrees "’reach

beyond the parties involved directly in the suit and impact on

the public’s right to the sound and efficient operation of its

institutions.’" Jd. at 381, 383 (quoting Heath v. De Courcy,

888 F.2d 1105, 1109 (6th Cir. 1989)). We have echoed these

concems. See, e.g., Pearson III, 990 F.2d at 658 ("In

institutional reform litigation, injunctions should not operate

inviolate in perpetuity."); Mackin v. City of Boston, 969 F.2d

1273, 1275 (1st Cir. 1992) ("we believe that district courts

should be flexible in considering requests for relaxation of,

or release from, decrees which were initially established to

bring about needed institutional reforms"), cert. denied, 113

S. Ct. 1043 (1993). Notwithstanding the application of this

"less stringent, more flexible standard," a modification "must

not create or perpetuate a constitutional violation." Rufo,

502 U.S. at 380, 391.

i.

We shall refer to the first five paragraphs of the 1974

consent decree as "structural" terms, inasmuch as they

incorporate the administrative structure mandated by state

law. These are the only terms the defendants seek to modify.

al 5.

For the purposes of their motion, the defendants assume that

the structural terms “arguably relate[] to the vindication of a

constitutional right." Jd. at 383 n.7. Of course, if the terms

at issue were directly mandated by the Constitution, a

change in state law without more would not warrant a

modification. Modifiable terms will typically fall

somewhere along a spectrum: in general, terms that directly

implement constitutional requirements - e¢g., 4

predeprivation hearing to satisfy procedural due process --

will be more closely related to the vindication of a

constitutional right than terms that lay the groundwork for

othe. remedial measures.

We think that the structural terms in this case belong in

the latter class. The Constitution itself is indifferent to

whether DOC or DMH administers the Treatment Center. /f,

however, as King alleged, DOC personnel violated his

constitutional rights in the process of usurping DMH’s

authority and interfering with his clinical treatment, then a

decree keeping DOC within its statutory ambit begins to

make sense in the context of a constitutional remedy.

Although we, unlike the district court, would have eschewed

the words "essential" and "critical," we think the structural

terms were clearly, not just arguably, related to the

constitutional remedy provided by the decrees.

This is not to say that a change in the statutory scheme

cannot be a significant change in law that warrants

modification of the structural terms.) In the context of King,

the structural terms may have been a means to a

constitutional end; but it was possible to include them in the

decree only because Massachusetts law already structured

the Treatment Center in the same way. If existing state law

had granted DOC exclusive jurisdiction over the Treatment

Center, the parties could not have agreed to insert DMH into

the administrative structure. Thus, a change in the very law

underlying the structural terms is likely to be "significant"

5 ih Rufo itself, the Supreme Court remanded for reconsideration

under the standard it had just announced, even though “the

agreed-upon decree . . . clearly was related to the conditions found to

offend the Constitution.” 502 U.S. at 389.

ie

under Rufo, and may therefore require some modification of

the structural terms.

This preliminary analysis is consistent with our own

decisions before and after Rufo. In Rufo, the Supreme Court

offered several examples of potentially significant changes

in federal law. See id. at 388-90 ("one or more of the

obligations placed upon the parties has become

impermissible under federal. law"; "the Statutory or

decisional law has changed to make legal what the decree

was designed to prevent"; "a decision that clarifies the law"

has undermined an agreement based on "a misunderstanding

of the governing law"). Although none of the examples from

Rufo is on point here, our decision in Williams, which

predated Rufo, suggests the proper test for significance in

this case. If a subsequent state statute appears to overlap or

conflict with a federal consent decree, "and the conflict . . . is

less than clear, delicate questions of federalism must enter

into our inquiry.” See id., 822 F.2d at 1228 (citing Rizzo v.

Goode, 423 U.S. 362, 379 (1976) (federalism must be

considered in determining scope of equitable relief)). The

district court should conduct a "careful case-specific inquiry"

into both the decree and the statute "to discover whether

their objectives and provisions necessarily conflict and to

consider the importance of the areas of conflict to the overall

goals of the litigation." Jd.

We think that the nuanced, case-specific approach of

Williams is consistent with the strictures of Rufo and with

the equitable nature of relief from a decree under

Rule 60(b)(S). See Rufo, 502 U.S. at 383 (noting that

Rule 60(b)(5) permits relief from a court order when "‘it is

no longer equitable that the judgment should have

prospective application’"). See also Mackin, 969 F.2d at

1278 ("the decision as to whether to modify or dissolve [a

structural decree] is at bottom an exercise of equitable

power” that calls for a “deferential standard of review").

Chapter 489 reflects © Massachusetts’ _legislative

judgment that one agency rather than two can best perform

the conflicting functions of the Treatment Center, i.e.,

maintain security as well as provide treatment. As the

district court noted, no one regards dual administration of the

-10-

Treatment Center as workable. But why give DOC the run

of the place? The legislature apparently accepted the

professional opinion that behavior modification or control,

rather than traditional mental health treatment, is the most

effective way to protect society from sexually dangerous

persons and such persons from themselves. The correctness

of this view is not before us; what matters is whether the

goals of ch. 489 necessarily conflict with the rights enforced

by the federal consent decree, and the importance of any

such conflict to the overall goals of the litigation. Williams,

822 F.2d at 1228.

The extent and importance of the conflict can be

exaggerated or trivialized, as the parties have tried to do.

We think that the conflict is real but not so fundamental that

ch. 489 necessarily thwarts the overall goals of the King

litigation. King’s primary goal was to ensure that his

treatment complied with the Constitution. The structural

terms of the decree may serve that goal by keeping DOC,

allegedly the offending actor, out of DMH’s province; but as

we have explained, those terms would have been

inconceivable without the underlying state law. After all,

plaintiffs cannot claim that DOC control per se violates the

Constitution. With the amendment of ch. 123A, the

governing state law no longer gives DMH any role to play.

In light of these federalism concerns, we think there has

certainly been a "significant change . . . in law" within the

meaning of Rufo, and that the plaintiffs cannot enforce the

structural terms of the decree in perpetuity. See Pearson III,

990 F.2d at 658.

In holding that the defendants had not shown a

significant change in law, the district court apparently relied

upon our decision in Coalition of Black Leadership v.

Cianci, 570 F.2d 12 (ist Cir. 1978). The consent decree in

Cianci established a procedure whereby residents of

Providence, Rhode Island, could file complaints against their

police officers for alleged civil rights violations. The Rhode

Island legislature subsequently enacted a "Law Enforcement

Officers’ Bill of Rights" which conflicted in part with the

decree. There was an "obvious subject matter overlap

between the decree and the legislation," which served "dual

and partially inconsistent purposes." Jd. at 14. The City of

$24.

Providence moved to vacate the decree, and the district court

denied the motion. We affirmed, noting that the court had

"ordered both parties to work out modifications in the decree

so that the protection of policemen’s rights mandated by

State law and the right of plaintiffs to be free from ‘racially

discriminatory police conduct’ could[,] to the extent

possible, both be achieved.” Jd. at 13 (emphasis added).

Moreover, we emphasized the district court’s statement that

the Court is inclined to look with deference upon the

alternate procedural means embodied in the 1976 Act . .

. . If the Rhode Island legislature has determined that

the rights of police officers are in need of protection and

that this protection can best be achieved by adoption of

certain procedural protections, the Court is not prepared

to question this judgment or to stand in the way of its

implementation in the absence of any showing that the

1976 Act will hamper the effective presentation of

civilian complaints which the consent decree has

apparently accomplished.

Id. at 14 n.1. We approved the district court’s flexible

approach for resolving the conflict between the decree and

the Act, even though the decree in Cianci, unlike that in

King, did not incorporate an administrative structure based

on superseded state law. Cf. Williams, 822 F.2d at 1234 n.5

(on remand, "[a]s in Cianci . . . the court should be flexible

in framing a response to the motion to avoid any conflict

with the state statute when unnecessary for the goals

underlying this litigation"). If anything, this case presents

the stronger argument for modification, given the source of

the structural terms, their relationship to the constitutional

remedy, and the legislature’s autonomy to restructure the

governmental institutions of the Commonwealth.

IV.

Having found a significant change in law, we now

“focus . . . on whether the proposed modification is tailored

to resolve the problems created by the change in

circumstances." Rufo, 502 U.S. at 391. "Of course, a

79...

modification must not create or perpetuate a constitutional

violation." Jd. at 391.

The district court evidently feared that the proposed

modification would produce a de facto increase in

constitutional violations at the Treatment Center, even if

there is nothing unconstitutional de jure about DOC’s

assuming plenary authority. Based on its assessment of the

history of this litigation, the court concluded “at this time"

that DOC’s control of the Treatment Center would

compromise the federal constitutional remedies imposed by

the consent decree, and the federal constitutional rights that

the decree sought to protect. Critically, the defendants had

not shown "what the Department of Correction . . . proposed

to do" to "provide th{e] same treatment" as DMH under the

remainder of the decree. Had the defendants made such a

showing, "then perhaps [the district court] would be able to

rule otherwise."

This leaves us unsure of the district court’s reason(s) for

denying the proposed modification. Earlier in the hearing,

the court had ruled that ch. 489 is not a significant change in

law. Perhaps it was now saying that ch. 489 might be a

significant change in law that warrants modification of the

consent decree, but the defendants had not yet demonstrated

as a practical matter that the modification would be

implemented without producing or exacerbating

constitutional violations at the Treatment Center. In fact, the

defendants. submitted no testimonial or documentary

evidence of DOC’s transfer plans; nor did they request an

evidentiary hearing. On the sparse record before the district

court, in light of the court’s inconsistent observations, we

cannot say whether the court properly denied modification

for lack of suitable tailoring. See Rufo, 502 U.S. at 383. The

prudent course is to remand for a new hearing.

On remand, the district court may inquire into DOC’s

transfer plans. We note, however, that "once a court has

determined that a modification is warranted, . . . principles of

federalism and simple common sense require the court to

give significant weight to the views of the local government

officials who must implement any modification.” Jd. at 392

n.14. "[T]}he public interest and considerations based on the

«$$.

allocation of powers within our federal system .. . require

that the district court defer to local government

administrators, who have the ‘primary responsibility for

elucidating, assessing, and solving’ the problems of

institutional reform, to resolve the intricacies of

implementing a decree modification." Id. at 392 (quoting

Brown v. Board of Educ., 349 U.S. 294, 299 ( 1955)) (other

citations and quotation marks omitted). The district court

should rely primarily on its jurisdictional Oversight to ensure

DOC’s compliance with the decrees.

Remanded.

OAR ear dea ghee OO EN in

94.

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

KHAKKKKHKK KK KK KK KK KK KK K

MITCHELL G. KING

Plaintiff

7 CIVIL ACTION

No. 72-788

VS.

MILTON GREENBLATT, ET AL

Defendants

* et & & €

*

KHKRKKKHKKKKKK KK KK KK KK XK

BEFORE THE HONORABLE A. DAVID MAZZONE

UNITED STATES SENIOR DISTRICT JUDGE

HEARING

May 27, 1994

APP

HALE AND DORR, (By Steven C. Reilly, Esq.),

60 State Street, Boston, Massachusetts 02109, on behalf

of Plaintiffs

FOLEY, HOAG & ELIOT, (By David R. Geiger,

Esq.), One Post Office Square, Boston, Massachusetts

02109, on behalf of Intervenor-Plaintiffs

COMMONWEALTH OF MASSACHUSETTS,

(By William L. Pardee, Assistant Attorney General),

Administrative Law Division, One Ashburton Place,

Boston, Massachusetts 02108, on behalf of Defendant

Courtroom No. 5

Post Office & Courthouse Bldg.

Boston, Massachusetts 02109

Jill K. Ruggieri, CSR, RPR, CM

Official Court Reporter

316 USPO & Courthouse

Boston, Massachusetts 02109

J8

PROCEEDINGS

THE COURT: Morning, counsel. Sorry, I was delayed

with another matter. We last met in March. Mr. Pardee is

here, Mr. Savage, Mr. Keefe -- Mr. Keefe not here.

MR. REILLY: Your Honor, my name is Stephen Reilly.

I’m here from Hale and Dorr working for Mr. Keefe who is

not available today and apologizes for his absence. He had a

previously schedule court appearance in Marlborough, |

believe, but I will be arguing in his place.

THE COURT: And, sir?

MR. DAVIS: Assistant Attorney General Scott Davis.

I’m here with Mr. Pardee.

THE COURT: I note the presence of Mr. Gleason and

Mr. Gosselin. Mr. Gosselin, one of the formerly pro se

plaintiffs for -- I’m not quite sure, intervenor-plaintiffs or

48-and-one plaintiffs. I’m not sure, but it’s good to have

him here as well.

Now, the last time we met, I said that while the motions

were pending, I would not rule on those motions at that time,

and I requested of Mr. Pardee some brief position of the

Attorney General as well as other counsel on where this

matter was going.

You all know that I have kept this matter and have

wanted to use the King case as the vehicle to try to do

something about the administrative tension, for lack of a

better word at this time, that exists at the Treatment Center.

It was an attempt by me to reconcile the conflicts

between the Department of Corrections and the Department

of Mental Health which has caused this court to be inundated

with cases over the 20 years or so that the consent decrees

have been in effect.

I still think that something should be done about the

consent decrees and something should be done about the

operation of the Treatment Center. I’m not sure what that is,

-<.

but today I’m confronted with the Attorney General’s

motions and apparently some urgency to those motions.

As you know, Mr. Keefe and Hale and Dorr has

consented to represent the plaintiffs who are not represented

by Mr. Geiger, are here. And perhaps we can resolve the

motions today.

I'm prepared to resolve those motions today. The

Commonwealth has requested a modification of the consent

decrees in both King and in Williams v. Lesiak.

As I understand the current posture, those cases have not

-- Williams has not been reopened, and it has not been

consolidated with King v. Greenblatt; but, counsel, I see no

reason why we shouldn’t at least clarify that and reopen

Williams if it hasn’t been and consolidate the matter so we

can go forward with both cases in the same posture since the

consent decrees track each other in both cases.

So why don’t we at least take that preliminary step, and

I will reopen the Williams v. Lesiak case and consolidate it

with King v. Greenblatt case.

MR. GEIGER: Can I make an observation on this?

We're not parties in Williams. And I simply note, as we’ve

said before, that the King case really did -- was driven by the

issue of seclusion at the Treatment Center, and the Williams

case was really driven by the issue of right to treatment.

And there was other counsel, as Your Honor knows,

who was in that case, and so I simply note that they are not

here. And if you open them, I don’t know if that creates a

procedural --

THE COURT: Well, that is true. I was going to get to

that, Mr. Geiger, and really didn’t want to bite off that big a

morsel because I wanted Mr. Keefe to be here when I asked

if, perhaps, he might look at the global picture, but I didn’t

want to do that because he’s not here, and I’m not so sure

that Mr. Reilly has the authority to commit Hale and Dorr to

that.

hy 2

So Williams is closed, you see. I can reopen it, and if

counsel needed and perhaps additional counsel needed, then

maybe I'll cast my net a little further in the Boston legal

community and see if I can come up with another fish,

Mr. Reilly, who will help us out in this case.

MR. REILLY: We would appreciate that, Your Honor,

and your observation was correct. I’m not authorized --

THE COURT: I didn’t want to put you in the position

of having to say that, Mr. Reilly.

MR. REILLY: Well, no embarrassment on my part.

THE COURT: Well, we’re again on the modification

the Commonwealth has requested. The legislature has

passed new legislation that transfers control of the Treatment

Center for all purposes from the joint administration of the

Department of Mental Health and Corrections to the sole

administration of the Department of Corrections. The

modifications are intended to bring both consent decrees in

line with the new legislation.

The legislation removes all references to the Department

of Mental Health, places control of the Treatment Center

exclusively in the Department of Corrections, and it seems to

me that a key phrase of that legislation or a section of that

legislation is that it requires that the Commissioner of

Corrections -- and I’m going to read this -- "shall maintain a

treatment program or branch thereof at a correctional

institution for the care, custody, treatment and rehabilitation

of persons as adjudicated as being sexually dangerous."

That modification strikes the first four paragraphs in

each of the consent decrees in King and in Lesiak and in, I

should say, Williams.

That legislation simply puts all personnel, including

custodial personnel, under the control of the Department of

Corrections, and that includes handling of patients.

Now, the legal standard for modifying the consent

decree was articulated fairly recently by the Supreme Court

548.

in Rufo v. The Inmates of Suffolk County Jail. And that held,

Mr. Pardee, that the person who moves for modification

must take two steps: Show a significant -- either a

significant change in factual conditions or in law. And if

that step is taken, then the Court should determine whether

the proposed modification is suitably tailored to the changed

circumstances.

I'm given some _ guidelines in evaluating the

modifications, and they are that the modification must not

create Or perpetuate a constitutional violation; that the Court

should not strive to rewrite a consent decree so that it

conforms to the constitutional floor.

There are some considerations given to the public

interest and considerations based on the allocation of powers

within our federal system. There is a constraint that the

district court should defer to local government administrators

who have the primary responsibility for elucidating,

assessing and solving the problems of institutional reform.

Financial considerations may not be used to justify a

constitutional violation, but they are a legitimate concern of

government defendants in institutional reform litigation.

These are some of the guidelines that I am given. The

Commonwealth wants this legislative change. As I read

their submissions, they cite back to the Governor’s Special

Advisory Panel on Forensic Mental Health which concluded

in September of 1989 that the current system has neither

enhanced public safety nor successfully treated these

offenders. I’m quoting from the report.

The Special Master reported that -- again, I quote him --

"No one" regards the Department of Mental Health/

Department of Corrections joint control of the Treatment

Center as workable, and he supports his comment with

references to numbers of officials, attorneys, patient-inmates

as well as perspectives of correctional officials about how

the current arrangement is working.

They also cite that the vast majority of states have

repealed similar laws for sexually dangerous offenders.

a Ss |

-19-

So from the Commonwealth’s perspective -- correct me

if I’m wrong, Mr. Pardee, because now it’s going to be your |

turn -- you regard this as a purely administrative matter, it

seems to me.

You simply say -- again, I think -- that the legislature

has found a new solution to the problem of treating sex

offenders in the Commonwealth. You say that the original

consent decrees which, again, divided the administration

between Corrections and Mental Health, simply tracked the

Statutory language that then was in the statute.

And now that the statute has been changed, you say that

the consent decrees ought to be brought into line with the

changes in the new law. And you say that is one of the

prongs of the Rufo test, citing Rufo that modifications may

be warranted when statutory or decisional law has changed

to make legal what the decree was designed to prevent.

So you want the Department of Mental Health to drop

out of the picture because, you say -- and this is where |

think I’m having the greatest difficulty, Mr. Pardee -- you

say the Department of Corrections can do everything that the

Department of Mental Health did, probably do it better. In

other words, still deliver the federal constitutional relief

mandated by the consent decree, and continued by this court

in its subsequent rulings.

You say that -- again, don’t assent because I’m taking

your nodding to be you agree with me so far. You may not

agree. You may have nodded your way into an

acquiescence.

You’re saying that the Mental Health role was not an

essential ingredient here of the constitutional relief, and all

you’re doing is clarifying the picture, clarifying the roles of

the Department of Mental Health and the Department of

Corrections.

Now, do I -- is that pretty much what you’re saying,

Mr. Pardee? Purely administrative matter. DOC can do the

job. We don’t need the Department of Mental Health there

aL,

any longer. We’ve found a new solution. This is just a

statute that we have a right to pass, and this is our job.

MR. PARDEE: I think it’s a fair statement of our

position, also of legislative intention. I think I would simply

Say that what the legislature has seen here is what everybody

else has already referred to, including the special master, that

the -- the two agencies have not worked together in a way

that has avoided friction and has delivered treatment as well

as security in an efficient way at the Treatment Center.

And perhaps in resolving that source of friction, we may

also have found a way to resolve some of the cause of the

litigation that Your Honor has referred to previously.

This whole issue of the two agencies inhabiting the

same space I think has been the source, perhaps, or has been

encouragement of some of the litigation that we’ve seen; so

that, yes, ultimately, it is an administrative transfer of

authority.

There is nothing that I have seen in my reading of the

Cases to suggest that the agency that is responsible is a key

issue as a matter of federal law or constitutional law.

And this transfer we see as being a very helpful solution

to a particular problem in the management of the Treatment

Center.

THE COURT: Let me ask you a few questions,

Mr. Pardee.

You say these two agencies have not worked together,

and I think everybody has reached that same conclusion,

including the Special Master, although I must talk to you a

little bit about the Special Master’s role in making that

conclusion and how much we have a right to rely on it.

While I’m happy to, I have to remember that his

appointment was opposed and his report was subject to

objection, so I’m not sure we can take it exactly as the last

word; but I agree that we can use it, and we can learn from it,

x9? «

and if something more has to be done, we’ll do that, but let’s

put that off for the moment.

They have not worked together well, you say. No one

disagrees with that. I’m not sure exactly why they haven't

worked well together, Mr. Pardee, despite what the Special

Master said. I’m not sure exactly why, but you’re telling me

now -- you say they’re inhabiting the same space and as a

result, we are unable to grant -- unable to provide the

treatment. I think that’s what you just said.

MR. PARDEE: I certainly don’t want to be understood

to have said that there is not treatment being provided, but I

think the point that I’m trying to make, I think -- if I can

express it another way -- is that you have two absolutely

essential requirements with respect to managing the

Treatment Center.

On the one hand, you have treatment; and on the other

hand, you have security. And I think that it is fair to say in

hindsight that a consequence of separating those two

functions between two agencies has been a certain alienation

between the two agencies that has prevented a very

comfortable harmonization of the two functions which are

necessarily in tension.

But nevertheless, I think, again, just referring to the

master’s observations, in other states where this function has

been handled by the state’s Department of Corrections,

apparently was without the same tension or alienation that

exists or has existed in Massachusetts.

So I propose or put it to the Court based on, in part, on

that experience that the master cited but also on the

legislature’s judgment about this problem that uniting

responsibility for the two functions which are, as I’ve said, in

tension, within a single agency has more hope of avoiding

this problem of alienation and conflict than separating them

between two different agencies and expecting the agencies to

work within the same space.

THE COURT: All right. Another thing that you say,

Mr. Pardee, is that in the 20 years or so since the consent

iyo

decrees were imposed, were signed, there have been

significant changes in the treatment of sex offenders, and the

method of treatment has changed, and this legislation is

designed to -- I think the words you used are reconfigure --

the administration of the Treatment Center so that its

Statutory purpose is accomplished, and that statutory purpose

is treatment as well as security.

Now. Is that a fact, sir? I mean, how do I treat that?

MR. PARDEE: Well, it is -- first I should say it is not

certainly a fact that I think needs to be adjudicated for the

purposes of these motions.

We cite those changes in professional outlook, although

I will say they were not certainly -- I don’t mean to say

there’s any unanimity even now about how to approach this

population.

I cite it as, in my view, additional support; but I

certainly wouldn’t say that our motion turns on those facts

either being true or not true.

But I think it is fair to say, again, from a survey of

literature -- some of which I think is before the Court -- that

a substantial segment of the professional community does

view the proper -- does consider that the proper way to treat

this population is not on a mental health model but on a

behavioral treatment model. And that approach, in

particular, is not an approach that is particularly within the

Department of Mental Health’s ken or statutory mission.

In other words, the Department of Mental Health is -- its

mission -- its statutory mission is treatment of people with

mental diseases, and there is certainly a very substantial

segment of the professional community that does not regard

this problem as one having its basis in mental disease so that

that, we think, explains on a philosophical level why this

transfer of authority makes sense. But we don’t mean to put

it as an issue of fact.

THE COURT: Well, this new approach outside of what

you said is mental health’s ken is apparently being adopted

«23 -

or being used by Doctor Schwartz in her current handling of

the program.

MR. PARDEE: That’s right.

THE COURT: Do you think that that is a -- do you |

think that’s authority for changing -- do you think that that’s

enough of a basis for me to accept your assertion that

treatment of sexually dangerous persons have changed in the

country?

MR. PARDEE: Well, I think certainly in the absence of

a Challenge to Doctor Schwartz’s professional credentials,

the Court, under many decisions of the Supreme Court,

could and perhaps should defer to her judgment as to how

best to approach treatment of this population.

pe

THE COURT: Could I defer? Could I accept that the

Special Master’s report, including the support of Doctor

Beck who examined the program at the special master’s

request and found that --

Perhaps, Mr. Gleason, you should tell me, but I think

Doctor Beck was laudatory in his evaluation, I believe, of

Doctor Barbara Schwartz, ultimately agreeing that the joint

administration wasn’t working but that the approach, on his

observations, were sound.

MR. PARDEE: With regard to the Special Master’s

report, it seems to me -- the Court is quite right that the -- in

no sense was there an adjudication, and the report is not a

record of findings in an adjudicating sense, but certainly

many of the observations are observations drawn from the

literature, drawn from the opinion of experts in the field and,

in many Cases, are observations that no one has disputed -- in

fact, reflect a unanimous opinion of those people heard at the {

And in that sense, it seems to me that they do -- and in

some cases certainly they provide a factual basis for

whatever decision the Court might choose to make in

eT

7 oe

connection with the state -- the current state of professional

opinion with regard to treatment of this population.

With regard to the relationship and how the two

agencies have operated, there I think our point, I guess,

would be that I don’t think anybody has suggested that the

agencies have worked harmoniously, and I think the record

simply fails to support any such position.

This Court also made findings in this case and has

already made the findings necessary to support a finding that

the two agencies have not, in fact, been able to work

harmoniously and in the most efficient manner or effective

manner in delivering care or security, for that matter.

So with regard to the question of professional opinion,

again, I think that the special master has made reference to

many -- the opinions of many professionals who no one has

challenged and who I think it’s clear on the record are

qualified and eminent people in their fields.

And so I think the Court could, just going directly to

those sources, make that finding.

THE COURT: All right. One final question,

Mr. Pardee, for the moment, and that is your assertion that

these plaintiffs are not deprived of anything, that they’re

getting exactly what was in the bargain that was

contemplated in the consent decree and there is no federal

constitutional remedy provided by those consent decrees

that’s being taken away here.

In fact, you say maybe there isn’t even a federal

constitutional remedy here. But the Williams case was based

on constitutional -- alleged constitutional violations,

specifically; and the King case was based -- it was brought

on the basis of alleged violations of the Ist, 6th, 8th, 14th

Amendments. Those are federal -- of course those are

violations of federal constitutional guarantees.

MR. PARDEE: But I -- I don’t mean to say that the

cases and the consent-decrees are not -- that underlying those

-25-

decrees were not legitimate allegations of violations of

federal rights. We are saying --

It simply goes to the question of whether -- the question

of where the authority is -- where the authority for

management of the facility lies is a question that or a

determination that was made based on a requirement of

federal law or whether it was a determination necessary to

vindicate federal rights.

And I think taking into account that when the decrees

were entered, state law specifically said essentially what the

decree says in that connection, you can’t -- I don’t think you

can claim that -- or I don’t think the plaintiffs can claim that

the -- that a remedy for the alleged substantive violations

required that responsibility for the Treatment Center be with

the Department of Mental Health.

It had to be as a matter of state law. It had to be as a

matter of state law so that I don’t think it is fair to say that

that aspect of the decrees is tied to - is a federal remedy in

the sense that some other remedy - the absence of some such

requirement might be considered a federal remedy.

And with regard to the question of whether the plaintiffs

have or have not lost something they bargained for, this is an

extremely important point that I think needs to be made, and

perhaps clarified.

The people who signed the consent decree for the state

were an assistant attorney general and the defendants, who

were executive officials of the state government.

Now, strictly as a matter of state law, none of those

people have the power as agents of the people -- which is the

only capacity in which they were acting -- to vary statutory

law by saying they consent to it. Strictly a matter of state

law.

To the extent that the decrees are now in conflict with

State law, the only basis for maintaining them -- and I think

this has also been said by federal courts -- must be federal

law because the --

= 26 -

At the outset, none of the state officials had the authority

to bind the state forever to have the management of the

Treatment Center and the Department of Mental Health.

So that when the plaintiffs signed the decrees, they

could not have done so as a matter of agency law,

Straightforward agency law, have thought that they were

getting a binding commitment that the Treatment Center

would be in the responsibility of the Department of Mental

Health forever, strictly as a matter of agency law.

Again, the only way that the management can be

required to be maintained by DMH is if the Court determines

that such a remedy is necessary as a matter of federal law to

secure the protection of substantive federal rights.

And there on that question, I -- it is simply -- not only is

the record devoid of any basis for such a conclusion, but the

evidence -- the experience nationwide which, again, the

Master has cited, goes to the contrary.

And in many other states, including Vermont which

apparently has a very good program, responsibility for this

population lies with the Department of Corrections.

So we say that there is no -- as a matter of federal -- no

requirement that the Department of Mental Health rather

than the Department of Corrections maintains a

responsibility for this facility.

And since -- as a matter of state law -- the responsibility

has been shifted, there is no reason for the plaintiffs to claim

if this Court modifies the decrees that they are being

deprived of something they bargained and won because,

again, as a matter of pure agency law, they did not sign an

agreement with somebody who had the authority as a matter

of state law to bind the Commonwealth forever to that

position.

THE COURT: Well, let me for the moment tell you

what the plaintiffs are going to say to that. They’re going to

say that when this was bargained, the leading safeguard of

the consent decrees is that the Department of Mental Health

iy 4

should be in control of the patients and not Department of

Corrections.

And when King brought his lawsuit, King simply said

I’m a civilly committed person. I’m here for an indefinite

period of time. I’m entitled to constitutional protections.

And as a civilly committed patient, I should get those

protections, like least restrictive confinement. I should be

getting treatment. I should be handled substantially like all

other civilly committed patients are handled. Yet, I’ve got

correctional officers who are putting me in solitary

confinement for breaches of what they say were security.

They do that without consulting psychiatrists. They do that

without consulting mental health experts. I’m not getting the

constitutional protections that I am entitled to as a civilly

committed patient.

So how do you -- how do you say that that wasn’t

bargained for?

The consent decree resulted from the bargain between

the two sides that recognized these protections, and Judge

W yzanski endorsed them in the consent decree.

MR. PARDEE: A minor point, perhaps. Judge

Wyzanski -- the consent decrees are not, in fact, final

judgments so that it’s hot clear at all that even as standard

and stringent as Rufo has required on a motion to modify a

non-final order -- but that’s a minor point.

The substantive protections in the decrees, Paragraphs 5

and 6, to the extent that they are still alive and still speak in

the present situation, continue.

If the Court allows the motion to transfer authority to

the Department of Corrections, the Department of

Corrections acquires those responsibilities as successor

agency. I think the cases establish that. We’ve never

disputed it.

I don’t -- I think on the question -- the question of -- I

bring up the benefit of the bargain argument because that has

been made by the plaintiffs previously. I don’t think it’s a

legitimate argument.

~~)

It’s not legitimate and partly because the plaintiffs are

alleging that the -- or essentially assuming that the state

officials had authority to sign without any limitations which

is not the case.

It is also, I think, a somewhat misleading argument

because I don’t know that there is any signatory of that

agreement who is still in the Treatment Center.

It’s also perhaps misleading because I don’t know that

those consent decrees really can be read to apply to anybody

other than the people who actually signed the decrees except

as a kind of third-party beneficiary.

They are not class actions. The consent decrees were

not entered in favor of the class.

But most important, I think, is the point that in

institutional reform cases where governmental agencies are

-- come under the coverage of a decree, the Court has made

it clear that you cannot treat it as a contract once having been

made should never be modified.

In fact, it is -- when you are talking about the

management of an on-going public institution, I think the

Supreme Court has said you are to be particularly concerned

and alert to the need for adjustments in the decree as

circumstances warrant, and having in mind at all times that

federal control of the state public institution ought not to

continue beyond the period when it is necessary as a matter

of federal law.

So here, we’re saying that circumstances that have

cropped up in the course of administration of this institution

under the aegis of the decrees has shown, I think -- with the

unanimous agreement of everybody who has looked at the

Situation -- that some solution to the problem of divided

responsibility for this Treatment Center ought to be found.

And the legislature has made a proposal which, on the face

of it, is reasonable and consistent with. what’s being done in

other states, and we think that that is a sufficient basis under

Rufo for this modification.

- 29 -

THE COURT: Well, I hope it is. Again, I don’t know

that it is yet. I hope it is because the law in this circuit has

been fairly consistent that we ought to give deference to state

officials in the handling of these matters.

But still, when you read Williams v. Lesiak, the circuit

court said the first four paragraphs of the consent decrees,

the ones you want stricken, stress that the primary authority

of the Treatment Center is with the Department of Mental

Health, and it’s there because that was the only way that

constitutional guarantees could be maintained, according to

King and to Lesiak. That’s why you entered into these

consent decrees.

All you’ve done is tum it over to the Department of

Corrections, and all you’ve done is say they will do as good

a job, if not better, than the Department of Mental Health.

How do I know that, Mr. Pardee? If you could convince

me of that, then that’s one thing.

How do I know that that’s the case? The legislature has

simply not made a proposal. They have passed a law. They

did not even -- well, they passed a law.

How do I know that their control would not result in

what the intervenors and the plaintiffs say is simply

punishment? There will be no more treatment at the center.

There will be nothing but punishment. They will be able to

do anything they want, and we will never see a therapist

again.

How do I know that, Mr. Pardee?

MR. PARDEE: Well, Your Honor, I think that the way

-- the assurance that you have is that the Department of

Corrections continues to be subject to this decree and fully

understands that.

THE COURT: I’m modifying the decree to give them

control over security and handling of patients.

- 30 -

MR. PARDEE: Subject to the same strictures in terms

of the way in which patients are handled and treated. The --

THE COURT: But I’m not -- all night.

MR. PARDEE: We envision that the Department -- we

certainly expect that the Department of Corrections is going

to be submitting to the court its plans. We’re going to try to

be practical in this regard so that the Court will have

assurance before something comes up that the department

has developed plans that are consistent with the decrees.

At the same time, I do -- I want to repeat what I’ve said

before, and that is that our ultimate plan is to move to vacate

the decrees because we think -- we would submit that after

20 years of administration, the decrees have served their

function, and the authority over the Treatment Center ought

to pass to the state.

There will be an interim period, and we imagine that in

the course of consideration, ultimate action on our motion or

our future motion, that there will be an opportunity for the

Court to take and plaintiffs to take a look at what the plan is

and perhaps to have some relatively short period for

transition just to test out the proposition that the decrees now

should be vacated.

THE COURT: It is a question that is accentuated again

by the Special Master’s report. I was not unimpressed by the

Special Master’s description and observations regarding

correctional officials’ attitudes, articles that he submitted, his

own observations, discussions with patients and with

therapists and correctional officials themselves that describe

the atmosphere of the Treatment Center and how that

atmosphere resulted sometimes in denial of treatment,

unwarranted sequestration, searches.

Again, I’m not accepting that master’s report as a fact

given its uncertain position in this litigation except to help us

all, as I’m sure I think all of us know how hard Mr. Gleason

worked on it and how helpful it has been, but I can’t take

that as the basis on which to make a ruling one way or the

other.

oe

But if I were, that report would not give me the

confidence that the Department of Corrections -- exclusive

control being given to the Department of Corrections would

not create or perpetuate a constitutional violation under Rufo.

I just don’t, you know --

MR. PARDEE: Well, I would like to note that

specifically with some of the findings the Court has just

referred to, we did specifically take exception to them.

THE COURT: Yes, I --

MR. PARDEE: And we did offer some further

information about some of those instances.

THE COURT: Thank you very much, Mr. Pardee. As

usual, you presented a comprehensive memorandum and

position.

And Mr. Reilly, Mr. Geiger, your position, of course, is

that the Commonwealth has not made the required or met

their burden of proof that there’s a significant change in law

or fact.

Mr. Reilly, sir?

MR. REILLY: That is an accurate statement.

THE COURT: There is a change in law; isn’t there, |

Mr. Reilly?

MR. REILLY: There is a change in law, Your Honor,

but it is not a sufficient change of law within the meaning of

Rufo to justify modification of the decrees.

Again, in the brief that we submitted, we cited language

from the First Circuit and cited again in the Lesiak case in

which the First Circuit said that a state court -- pardon me, a

State statute that has the effect of thwarting a federal court

order enforcing federal rights, that state statute cannot

survive the supremacy clause in the US Constitution. That is

precisely the situation we have here.

% -

THE COURT: Suppose Mr. Pardee’s assertion is

correct. The Department of Corrections can do as good a job

in treating these patients as the Department of Mental Health

-- maybe better -- and by avoiding the tension,

administratively, it’s a smoother functioning institution.

How do you know that that isn’t going to happen, sir?

MR. REILLY: Your Honor, I can’t stand here and tell

yon it’s not theoretically possible that that would be the case,

but it’s clear that the defendants bear of the burden of proof

here.

There is no record, no factual record before Your Honor

to suggest that that is the case. With all due respect to

Mr. Pardee, he has put the cart before the horse here.

He says, we'll, modify the decrees, Your Honor, and

somewhere down the road, we’ll produce a plan to show you

that the Department of Corrections is going to institute

policies and procedure that safeguard the patients’ rights.

He’s got it backwards. He has to -- the defendants have to

submit evidentiary support, plans, policies, procedures now

to prove to Your Honor that DOC will not perpetuate or

create constitutional violations before we can go ahead and

modify the decrees.

THE COURT: In other words, you want to put the

horse in front of the cart?

MR. REILLY: Absolutely.

THE COURT: You say because they haven’t produced

a plan. What you’re saying is that I should wait for them to

produce a plan?

They’ve given me provisions -- Paragraph Number 6,

and it says the Department of Corrections shall maintain a

treatment program.

What am I -- do I doubt that, the sincerity of that

enactment? Is that what you’re telling me?

=33-

MR. REILLY: What I would suggest, Your Honor, is

that given the track record -- and again, I don’t concede that

there is a factual record before us, but given what the Special

Master has indicated about the Department of Corrections,

the attitude that pervades that department with regard to the

patients at the Treatment Center, there is at least cause for

concern with regards to whether the Department of

Corrections would maintain and provide the type of

treatment to which the patients at the center are entitled.

And, again, let me just clarify. I don’t wish in

responding to Your Honor’s question to concede the point

that the first four paragraphs of the consent decrees are

merely an administrative issue.

Your Honor did state our position accurately before.

We believe that the first four paragraphs are part and parcel

of the federal constitutional relief that was agreed to by the

parties and enforced and ordered by the Court.

THE COURT: I know, Mr. Reilly, but, again, focus

with me a little bit. All they’ve done is take the words DMH

out and put DOC in.

MR. REILLY: That’s correct.

THE COURT: Is that a constitutional change?

What is there about substituting one institution for

another institution that violates any protection that any

patient down there had?

MR. REILLY: To answer that question, Your Honor,

we have to look back at the complaint that was filed by

Mr. King, and Your Honor referenced this before.

The allegations in that complaint were that it was the

Department of Corrections that was interfering with

Mr. King’s right to treatment; that it was the Department of

Corrections that was violating his constitutional rights as

part of the bargain that was reached. The Department of

Corrections agreed that it would have no role in the

Treatment Center other than a custodial one.

.

So there is a federal constitutional remedy that’s been

provided here. I don’t even think we need to get to the

question of whether -- the federal constitutional right in the

abstract. There is a federal legal remedy that has been

provided by this Court in the discharge of its constitutional

obligations.

I would refer again, Your Honor, to the Lesiak case, and

there is language at 822 F.2d 1231. The issue here is there

are provisions, four paragraphs of the decrees, which provide

a federal remedy. And the question is not whether the

lawsuit would have succeeded had the statute -- the current

version of 123A been in effect 20 years ago.

The issue is whether -- let me get the language -- right,

is whether the dangers that gave rise to that -- those remedial

provisions have been lessened to such an extent that we can

now go ahead and modify the decrees.

And that, the First Circuit says, requires a factual

inquiry, a factual finding. There is no evidence before Your

Honor which would allow the Court to conclude, to make a

factual finding, that the dangers which gave rise to the

remedial provisions have been evaded and that we would

have constitutional violations occurring all over again.

I’m sorry for the long-winded answer. I will try to

refocus.

THE COURT: You’re very helpful. All of us are

struggling with this. I don’t think anybody has an answer to

it, but I’m required to give you an answer.

What about, Mr. Reilly, Mr. Pardee’s assertion I think

amply supported by the Special Master and, frankly, in my

long -- probably too long -- opinion in Bruder and Pearson.

I had a great deal of difficulty with treatment of sexually

dangerous offenders as mentally disturbed patients.

While there were some, I found, that were mentally

disturbed, the great majority were not. And Mr. Pardee says

it’s changed. The Special Master says it’s changed. Most

States have changed their approach, just as we’re in

Cas ..

Massachusetts changing our approach even under the current

regime, Current administration.

Is there any future in examining that these patients

should be treated differently than they were in the past? This

is not a mental health problem. This is a treatment problem.

Different means of treatment, behavioral sciences have

taught us something, not including -- not amounting to

mental health.

Should I go down that road with you?

MR. REILLY: Well, we can certainly go down the road

now. Perhaps at some point I should defer to Mr. Geiger on

the issue, but I will respond to Your Honor.

First, I would submit that there has not been, in fact, the

type of change alleged by the defendants as articulated by

Mr. Pardee -- and Mr.Geiger, on behalf of the

intervenor-plaintiffs, attached to his brief an article written

by Doctor Kozol in the very early 1970s. I believe he was

one of the first directors of the Treatment Center.

THE COURT: That was 1972.

MR.REILLY: Yes, but the position which~he

articulated then with regard to the treatment of sexual

dangerousness is the very position which the defendants now

suggest is some new wave of thinking.

So there has not been the type of change in the

professional community which they suggest. And again, at

bottom, there is no factual record to support that.

We have here assertions that that is the case, but there’s

no proof before Your Honor to indicate that is, in fact, the

case.

I would submit it is not, in fact, the case; and what’s

more, that type of change is not the type of factual change or

change in factual circumstance which Rufo contemplated.

‘m.

What Rufo contemplated when it talked about a change

in factual circumstances was a change in demonstrable

demographic circumstances. We had a sudden increase in

the population at the Charles Street and Nashua Street jails.

Rufo cites other cases, one from New York state, I

believe, which dealt with an overcrowded mental retardation

facility which the decree said we’ll place people in separate

housing units of 15 or fewer residents. They simply could

not find the right number of houses with 15 or fewer beds.

Those are demonstrable demographic changes.

What we have here is an alleged change, a subjective

attitudinal change on a part of the portion of a professional

community that’s not the same type of demonstrable

demographic change. one

And once more, there’s no proof, so I think that would

not be good ground for Your Honor to modify the decrees.

THE COURT: Allright. Mr. Reilly, thank you.

Let me tur to Mr. Geiger to perhaps enlarge, if you

want to, on that last point. There is some suggestion here

that in the cases that a careful case-specific inquiry must he

made before changes in these consent decrees should be

undertaken.

I think you cited that case to me, but I’m not sure --

what was it, Hogan or Cianci --

MR. GEIGER: I think it was the Cianci case. That’s

right. I think that was the case, although it involved, if I

recall, a petition to vacate the decree as opposed to modify it.

That was a case where the First Circuit itself held that a

change in state law was not adequate grounds to modify a

federally based decree.

THE CCRT: Correct. Let me not digress. I want to

keep you on the first point. Please have in mind -- tell me

what is meant by a case-specific inquiry as they mentioned

in Cianci and what I could do in this case.

SS IEC. An REY IOs SO aC ARE © NT re

so.

The first point that Mr. Reilly began and I know that

you wanted to talk to because you submitted it, Doctor

Kozol’s article.

You and I, of course, have been down this road before,

Mr. Geiger, with regard to treatment. We agonized or at

least I did, and you advocated and I agonized over the result.

But what about treatment of the civilly committed, not

mentally ill patients at the Treatment Center.

MR. GEIGER: Your Honor, I think it’s very important

to answer all of these questions with a strict reference to the

Rufo decision.

So what is the relevance of this bit about the treatment

philosophy? How does that fit into the Rufo parameters?

Certainly not a change in law. It's a change in fact. I think

everybody can see that, and I think I understood Mr. Pardee

to say that the Commonwealth was not resting on that at this

point and it was not premising its motion on that.

Obviously, there are zero facts in the record of this

proceeding right now. The Master took no evidence under

oath, no evidence period. There’s been no evidence here. I

just think there are no facts to support a finding of a change

in treatment philosophies or whatever.

I think you would have to take evidence on that, and I

think we’ ve introduced -- just sort of like there are articles in

the literature that Mr. Pardee says, you can read them, Your

Honor.

Well, we have given you an article by Doctor Kozol that

talks about the same treatment philosophy prevailing when

these decrees were written as today. So that would certainly

cut against a finding of significant change; but more

importantly, what’s the nature of these changes if I

understand them?

The change is that the therapy has become more

behaviorally oriented -- the therapist relapse prevention and

all these sort of magic buzz words -- not individual

psychotherapy.

> oe

So there’s a different approach, but who is providing

this therapy, Your Honor? Is it Department of Correction

officers? No, it’s being provided by people within the

mental health field.

This is something that is plainly within DMH’s purview

so I don’t see even if there were a factual record in a change

of treatment philosophy that it would support a change in

who should run the facility.

The only kind of factual change that I could see that

could possibly relate to who should run the facility would be

this issue of the difficulty of the two agencies working

together.

And, again, I don’t think we have a record on that. In

fact, to the extent we have a record, we have the record that

that was one of the very problems motivating this case in the

first place. That’s why it was brought.

DOC was in the facility, DMH was in the facility, and

the decree was, in part, trying to deal with that very tension.

So the Supreme Court in Rufo says we have to look to

see whether factual-changes are unforeseen, and if not,

there’s an extraordinarily heavy burden to have factual

changes justify changing a decree.

To say that it was unforeseen that there would be

tension between DMH and DOC is to fly in the face of the

very words of the complaint that started this case.

So I just think there is no basis at all in the record for a

factual change. I should also point out that the

Commonwealth moved -- and Your Honor would probably

recall it -- actually to vacate the decrees back in the course of

the eater Nem as sort of counter-relief to what the

Pearson plaintiffs were seeking. They moved to vacate the

decrees.

And so King was reopened; this case was reopened at

that time, and we were looking to intervene in this case at

that point to oppose it -- we, the plaintiffs.

-39-

And it seems to me there’s an issue also of when is the

appropriate time period over which a change has to be

demonstrated because they had a full opportunity to litigate,

to ask for the decrees to be vacated or modified and to raise

these same points.

So the idea -- if their burden is to prove a change since

that motion was brought and fully litigated and denied by

Your Honor, I suggest there’s nothing there as well.

So I don’t think there’s anything on the factual side. I

think the key question here comes down to really two things.

One Your Honor pointed to right at the outset -- this just sort

of an administrative detail of the decrees.

If so, maybe it’s not governed by the Rufo standard.

That would be -- that would be something different.

But if it’s other than that, if it’s related to federal rights,

then you have to go to the Rufo standard, and I want to point

Your Honor’s attention to Footnote7 in the Rufo case

because I think it divides the world of consent decree

provisions into two categories:

One is a category containing any provisions “that

arguably relates to the vindication of a constitutional right,"

and then the other is "minor changes in extraneous details,"

and they give as examples of that the paint color on a

building or design of its exterior.

To analogize, who is in control of the patients to a

change in the paint color would be patently absurd, and the

Court makes very clear in Rufo that in looking at a change in

the law, you do not relitigate whether there was a

constitutional right to have a particular provision in this case

under DMH control. That issue was settled.

There was uncertainty about whether there was a

constitutional right but as Mr. Reilly points out and

Footnote 7 says, the only question is whether the Court’s

relief, agreed to by the parties, was arguably related to the

vindication of the federal right, and Your Honor has cited all

the reasons why it was.

- 40 -

The decree pleads only federal claims. The complaint

pleads that DOC violated and that DMH was the protector of

the rights. And the First Circuit has said all this so what

could be more arguably related to getting treatment than

putting control in the hands of DMH.

So I think we are squarely within Rufo and squarely

within Mr. Reilly’s point about the supremacy clause.

Change in state law can’t justify rewriting a decree that

vindicates federal rights. The state can’t get out of any

decree by passing the law that’s hostile to the intent of the

decree, and I think Mr. Pardee’s points are totally incorrect.

The plaintiffs did not thank that they had a decree in

perpetuity, obviously not. They believed they’re equitable

rules that might allow for modifications, but you’ve got to be

true through the Rufo standard, and we don’t have it met

here.

THE COURT: How do we get there?

MR. GEIGER: Well, I mean, the burden is on the

Commonwealth, Your Honor. If if they seriously want --

THE COURT: That was not a fair question. I’m sorry.

MR. GEIGER: All right.

THE COURT: That isthe question I have, but it’s not a

fair question at this time. At this time, it’s not a fair

question.

Obviously, we’ ve all given this a lot of thought, and I’ve

given it a lot of thought since our last meeting -- even prior

to our last meeting -- and I’m not going to take the matter

under advisement: because on the record that is now before

me, and incorporated into that record, everything that I have

learned about the case and found in the case from the trials

of the Bruder and the Pearson cases, I will conclude at this

time that the defendants have not sustained their burden of

showing a significant change in law or fact under Rufo.

ee

- 4} - |

I do find that the consent decrees sought to address |

federal constitutional violations articulated by King and in |

Williams.

A critical component of the remedy provided by the

consent decrees was that the Department of Mental Health

was in control of the Treatment Center which was to |

provide, in part, a check on the Department of Corrections, |

which compromised treatment. |

I conclude that the Department of Mental Health is an

essential part of the decree, and on the record before me at

this time, the Department of Corrections has done nothing

yet that I can see which warrants my placing confidence in

its ability to deliver treatment, patient treatment.

I conclude at this time that the Department of

Corrections’ control of the Treatment Center compromises

the federal constitutional remedy which the consent decree

sought to impose, and would compromise the federal

constitutional rights which the consent decrees sought to

protect.

Even today, as Mr. Geiger pointed out, if there has been

a change in the treatment model and it has been as the

Master has indicated and the commentators have found is a

better way to approach this problem, that’s being done under

the authority of the Department of Mental Health, under

Doctor Barbara Schwartz's direction, of course, but they are

providing the current treatment.

Will the Department of Corrections provide that same

treatment? That’s not shown. If they were to provide that

treatment, if there were to be a case-specific inquiry in what

the Department of Corrections was going to do and

to do, then perhaps I would be able to rule otherwise. But at

this point, there is not that showing. So that is my ruling.

Now, if you'll stay for just a moment, I’m going to -- I

just want to raise again, counsel, where do we go from here?

Again, I did this before we did the Bruder case, before

we did the Pearson case, after we did the case. Throughout

. 42 -

this litigation I’ve done it, and I’ve asked counsel to work

together and involve me if you had to involve me about how

do we solve a problem which everybody concedes exists.

How do we remedy a situation which everybody

believes is unworkable I’ve done nothing today to make it

any easier on any side except to leave here and go on as we

have.

That hasn’t helped in the past. And, as I say, I’ve done

nothing to advance a further consideration of these consent

decrees, a negotiation of new consent decrees.

I only make this ruling with the hope that the

Commonwealth will think in ways to modify the consent

decree in a way that’s acceptable to continue the federal

remedies which were provided by the consent decrees.

I would like a plan of some kind. I would like a

proposal of some kind. I would encourage counsel to

consult, involve me, involve the special master. It’s part of

his appointment, I believe.

When I appointed Mr. Gleason, I asked, among other

things, that he report and make recommendations on the

operation at the Treatment Center and its ability to render

appropriate treatment consistent with its purpose and the

consent decrees, and report and recommend revisions to the

consent decrees to the extent advances and knowledge of

sexual dangerousness may have been appropriate.

I really wanted to focus on that last paragraph,

Paragraph 5 of the order. I would like Mr. Gleason to

continue in his role subject to the same order because I think

it is broad enough. It was drafted broadly in order to give

me his assistance, but I recognize that my appointment of

Mr. Gleason was only to provide me with assistance, and he

was not to -- and he could not then have made findings or

have bound me or counsel in any way. I want him to

continue in his role as Special Master.

I want to know if counsel have any objection to his

continuing and continuing under the same conditions as were

543 -

Originally set, that the Commonwealth would for some

period of time bear the cost, understanding that pro se

plaintiffs would not be in the position to do so.

I don’t think that compromises his impartiality or his

integrity, but I would like to have counsel’s thoughts on that.

If you’re not prepared to give those thoughts to me now, I

will appreciate having them sometime soon.

As I say, the-motions have been denied. I don’t know

what will happen. Perhaps the Court of Appeals will receive

it. That is certainly a right. I don’t discourage it in any way;

but I think eventually, counsel, you’re going to be right back

down here before me at some point, and we’re going to be

right back where we started.

I’d like not to let you out of this courtroom until I have

something resolved, but I’ve been trying to resolve this

matter since 1990, you see, since 1991. In some way in this

room there’s got to be enough brains -- and that does not

include me -- that could put their minds to work on seeing

how Chapter 123 can be accommodated by a modification

on these consent decrees which gives -- which everybody

knows is required -- treatment to civilly committed patients,

and security and public safety on the other hand.

There’s got to be some way to do that. I know there’s a

way to do that. I cannot do it, unfortunately, without you, so

I would ask that you devote yourselves to that.

I would ask you to advise me on what you consider

Mr. Gleason’s role to be. I do not want Mr. Gleason to be

put in the position where his advice to me in any way

compromises this litigation. [ want that clarified. If you can

advise me within the next week or so your position on those

issues, I would be grateful.

MR. GEIGER: Your Honor, might I say something

right out? I would be happy to submit something in writing,

but this is with great regret I say this and all respect for

Mr. Gleason’s talents and the work he’s put in on this case

so far, but respectfully, I would have to say we, the

- 44 -

intervenor plaintiffs, would continue to press the same

Objections that we had to Mr.Gleason’s original

appointment.

I think Your Honor has reserved -- has resolved the only

outstanding motion in this case. ‘There is no further

outstanding motion in this case.

I appreciate the Court has a concern about the inherent

tension between two agencies involved at the Treatment

Center. I suggest that that tension is only due to a failure of

political will on the part of the administration to comply with

the decrees.

This is an area where it is not politically popular to be

giving treatment to people who are sex offenders, but the

decree provides the framework. DMH runs the place. It

administers treatment.

Corrections’ role is limited to providing the security

only. That is a perfectly workable solution, and the

Commonwealth ought to concentrate on actually complying

with the law.

THE COURT: Well, all right. I think I’ve heard that

argument before. I don’t know that it’s working perfectly

well.

In your -- perhaps not your clients but the 48 plus one

plaintiffs specifically requested the appointment of a receiver

and if -- I’m sorry, Mr. Reilly, you rose to say something?

MR.REILLY: Oh, no. Perhaps I incorrectly

anticipated Your Honor had a question about the --

THE COURT: Oh, no. I think at one point, originally,

Mr. Reilly, way back in the pleadings which perhaps you’ve

not had a chance to totally familiarize yourself with there

was a request by your client to appoint --

MR. REILLY: I have seen that.

ee

THE COURT: And if I do say so, what I received from

them in my -- and my last letter came this morning from

Mr. Rector -- I think he writes to me more often than

Mr. Gleason writes to me. I suppose that’s good.

MR. REILLY: I suppose it is.

THE COURT: This letter, actually, is from Mr. Pardee.

But if there were, Mr. Geiger, to be some kind of

case-specific inquiry which, again, I took from your brief,

Cianci -- I know it's a different situation, but if there were to

be, would it not be a good idea to have somebody on the

site?

Would there not be some kind of monitoring that should

take place? Unless things are going so well that you have no

complaints about how the situation is being managed today,

shouldn’t we try todo something about it?

MR. GEIGER: Absolutely, Your Honor, but that’s a

completely different proposition to have an on-site monitor

than the goal of enforcing the provisions of the decree which

is definitely something I think we ought to have to do than to

have someone appointed to try to figure out ways to change

the law absent another motion and an appropriate evidentiary

showing that the decrees ought to be changed, so that’s my

problem.

The appointment of the master unfortunately really was

to do the Commonwealth’s work, to investigate and think up

grounds to modify the decree.

I think an enforcement monitor, someone out there to

monitor whether the decrees are being complied with to

report back to the Court and then possibly to have

enforcement proceedings, further injunctions or contempt,

that would be perfectly appropriate from the intervenor

plaintiff's point of view.

THE COURT: Well, I think in order to focus the

argument a little oa this last point, I really would like to have

something in writhg, your position, just a brief position on

the matters I’ ve rased.

- 46 -

I suggest it because I want the record to be complete.

My ruling is contained in the order which has been dictated.

You're free to have tat. Just give me a chance to edit all of

the little grammatical and other errors out of it; but

otherwise, my ruling has been made.

Jill, just give me the transcript if they want it. I think

maybe we may have -- I think maybe we will be providing

the Court of Appeals with another issue here, and I think in

light of the fact that we’re not going to go anywhere from

this point on unless we resolve this question, I think

Mr. Pardee probably should test my interpretation of Rufo.

I’m not recommending it, Mr. Pardee, but I think maybe

you’re entitled to do that and probably going to be required

to do it, and I want the record complete. All right. Thank

you very much.

(Recess.)