# Appendix — Class of 48+1 v. Greenblatt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2046%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 516 U.S. 863 ## Text .. 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 Page WINN Biisines nine saveuisthicianniesstcidbarsddcidaissdeviaeicel: PT De wie aitinheicsinaidstcatoctamaancidiedsind iss: 14 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. 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.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2046%3A2. Public record. Not legal advice.