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LEGISLATIVE RESEARCH COUNCIL

No. 6362••••• •

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Report Relative to

March 6, 1981

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FOR SUMMARY, SEETEXT IN BOLD FACE TYPE

REQUIRING PRIOR LEGISLATIVE APPROVAL OFCERTAIN CONSENT DECREES

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[March1981]

ORDER AUTHORIZING STUDY

(House, No. 5930 of 1980)

Ordered, That the Legislative Research Council be authorized anddirected to make a study and investigation relative to prohibiting anystate officer, agency or public authority from entering into any consentdecree which would require implementing appropriations by the General Court or a commitment of the credit of the Commonwealth, unlessthe terms of such decree have first been approved by a joint resolutionof the two branches of the General Court; and that said Council shallfile its statistic'al and factual report hereunder with the Clerk of theHouse of Representatives not later than the last Wednesday in Januatyin the year Nineteen Hundred and Eighty-One.

Adopted:By the House of Representatives, May /4, /980.By the Senate, in concurrence, May /9, 1980.

(Unnumbered order' of 1981)

Ordered, That the time be extended to the third Wednesday ofMarch in the current year wherein the Legislative Research Council isrequired to report on its study and investigation relative to (I) mandat-

.ing legislalive approval prior to the signing of consent decrees bystate executive agencies (see House, No. 5930 of 1980 and (2) thefeasibility of establishing an administrative court system (see House,No. 6675 of 1980). .

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Adopted:By the House of Representatives, February 26, /98/.By the Senate, in concurrence, March 2, /98/. j.;,

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CONTENTS

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PART 2. PROBLEMS INCIDENT TO THE REMEDIAL PROCESSIN INSTITUTIONAL REFORM CASES 45Intricacy of the Problem . . . . . . . . . . . . . . . . . 46Formulation and Implementation of Institutional Remedies 46

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Options in Formulating RemediesNegotiated RemediesThe DecreeImplementation of RemediesJudicial Responses to NoncomplianceEnd of Remedial Regime .

PART 3. A REBUTTAL TO THE CRITICSLines of Criticism Challenged .Historical Continuity in Judicial SupervisionOn Separation of Powers ....On Federalism . . . . . . . . . . . . . . .

CHAPTER I. INTRODUCTIONThe Study Order .The Nature of a Consent DecreeThe Adjudicative Process and Social CostsCurrent Statutory Control Over Consent DecreesScope of Controversy Discussed in Report .. .

CHAPTER II. THE FEDERAL COURTS AND SOCIAL REFORMPART I. JUDICIAL ACTIVISM AND THE CRITICS

Scope of Federal Judicial Activity .Character of the "New" Public Law LitigationThe Expanded Reach of Judicial RemediesEvolution of Institutional Decrees

The Desegregation Cases . .The Reapportionment CasesThe Institutional Cases

Order Authorizing Study '. . . . . . . . . . . . . . . . . . . .Letter of Transmittal to the Senate and House of RepresentativesLetter of Transmittal to the Legislative Research CouncilSummary of Report .

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Institutional Litigation and the Public Fisc . . .On the Advantages of Judicial Supervisory RoleOn Property and People '. . . . . . . . . . .

CHAPTER III. CONSTITUTIONAL ASPECTS .'.PART 1. BASIC DOCTRINES

Federalism . . . . . . . . . . . . . . . . . .Separation of Powers ....•.......Restrictions Inherent in the Doctrines of Separation

of Powers and Federalism . . . . . . . . . . . .Current View of the Supreme Court .Traditional View of the Separation of Powers Principle

PART 2. CONFLICTS IN EXERCISE OF POWER.The Effects of Unrestricted Judiciai Power: .-........- ....... - ...

The Democratic Process . . . . . . . . . . . . .Federalism .Allocation of Power Within the Federal Government

The Eleventh Amendment .Supreme Court Precendent Re Mandated Government

Expenditures .... . . . .A Limited Intrusion . . . . . .. . . . . . . . . .The Relevance of Cost . . . . . . . . . . . . . . . .

Congressional Power Re Judicially-Mandated ExpendituresUnder Congressional Authority .Congressional Authority Absent . . . . . . .

Problematical Significance of Supremacy Clause

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CHAPTER IV. CONSENT DECREE ISSUES AND EFFECTS INMASSACHUSETTS . . . . . . . . . . . . . . . 100·Origin of Consent Decrees . . . . . . . . . . . . . . 100Adoption of the Consent Decrees by the Court 101Appointment of A Court Monitor • • 101

Powers and Duties of Monitor • • • • • • • • • • .. • • t02Monitor's Views as to Goals of Litigation • • . . • . . • • 101Monitor's Views as to His Role •...... . 103

Reports of the Monitor . . 104Current Challenge to Federal District Court's Orders . . • 108

Background to Appeal . . • • • • • • • . • • • • • 0- • • 109Issues Jnv6L'Vmg Decree Interpretation •••• • • • • IIIThe Vacancy" Rate Issue • 0- • .. • 0- .. • • • 0- .. • • • • .... J 14 .'

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The Issue of Reallocating Staff . . . . . . . . . . . . . . . . .The Fundamental Issue: Federal-State Relationship . . . . . . .The Fiscal Impact of the Consent DecreesImplications of Prior Legislative Approval

Tables

The Changing Characteristics and Assumptions of Adjudicationin Federal Courts . : 33

Appropriations for Construction and Renovation,Fiscal 1979-1981 . . . . . . . . . . . . . . . 112

Appropriations for Mental Retardation Community Programs,Fiscal 1980-1981 . . . . . . . . . . . . 112

Consent Decree Costs in the Five State Schools for the -Mentally Retarded through Fiscal Year 1980 . . . . . . . . . 125

Cumulative Consent Decree Costs, Mental Retardation ItemsOnly through Fiscal Year 1981 . . . . . . . . . . . . . .. 126

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6 HOUSE - No. 6362 [March 19~

LETTER OF TRANSMITTAL TO THESENATE AND HOUSE OF REPRESENTATIVES

To the Honorable Senate and House of Representatives: • To. ,

LADIES AND GENTLEMEN: -In compliance with the legisla-tive directive in House, No. 5930 of 1980, the Legislative ResearchCouncil submits herewith a report prepared by the Legislative Research Bureau relative to mandating prior approval by the Legislatureof those consent decrees which require either implementing appropriati0ns or a commitment of the state's credit.

The Legislative Research Bureau is restricted by statute to "statistical research and fact-finding." Hence, this report contains onlyfactual material without recommendations or legislative proposals bythat Bureau. It does not necessarily reflect the opinions of the undersigned members of the Legislative Research Council.

Respectfully submitted,

MEMBERS OF THE LEGISLATIVE RESEARCH COUNCIL

Sen. ANNA P. BUCKLEY of Plymouth, ChairmanRep. MICHAEL J. LOMBARDI of-Cambridge, House ChairmanSen. JOSEPH B. WALSH of SuffolkSen. JOHN F. PARKER of BristolSen. ROBERTA. HALL of WorcesterRep. WILLIAM P. NAGLE, JR., of NorthamptonRep. IRIS K. HOLLAND of SuffolkRep. SHERMAN W. SALTMARSH, JR., of WinchesterRep. BRUCE N. FREEMAN of ChelmsfordRep. CHARLES N. DECAS of Wareham

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LETTER OF TRANSMITTAL TO THELEGISLATIVE RESEARCH COUNCIL

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To the Members of the Legislative Research Council:

LADIES AND GENTLEMEN: - House, No. 5930 of 1980, reprinted on the inside of the front cover, directed the Legislative Research Council to investigate and study the feasibility of requiringprior approval by the General Court as a condition precedent to thesigning by state agencies of consent decrees which would requireimplementing appropriations or a commitment of the state's credit.

The Legislative Research Bureau submits herewith such a report. Itsscope and content have been determined by statutory provisions whichlimit Bureau output to factual reports without recommendations. Thepreparation of this report was the primary responsibility of Robert D.Webb, Assistant Director of the Bureau.

Respectfully submitted,

DANIEL M. O'SULLIVAN, DirectorLegislative Research Bureau

Scope of Federal Judicial Activism

Over the past score years there has been a vast expansion ofjudicialresponsibility, particuhtrly within the federal judiciary. Courts havebecome involved in decisions that once were considered inappropriatefor adjudication. Among the areas of adjudication are welfare administration, penal administration, the administration of mental health

Origin and Scope

This report examines the feasibility of prohibiting any state officer,agency or public authority from entering into any consent decreewhich would require implementing appropriations by the GeneralCourt or a l;ommitment of the state credit, unless the terms of suchdecree have first been approved by a joint resolution of the twobranches of the General Court.

The study was prompted by the effects of a number of consentdecrees entered into by state officials named as defendants in severalsuits involving conditions at state schools for the mentally retarded.The United States District Court, which has jurisdiction, has appointed a Court Monitor to oversee the implementation of the decrees whichcall for substantial increases in legislative appropriations to complywith their terms. Because the court retains jurisdiction, the defendantsare subject to court orders with respect to obtaining continued fundingof programs and projects not yet completed.

Currently, the prior written approval of the Commissioner of Administration is required before a state executive or administrativeofficial or agency may file a consent decree that calls for the expenditure of funds not previously appropriated and notice of such decreemust be given to the Senate and House Committe~s on Ways andMeans 30 days before the filing. At best, such measures only put theLegislature on notice of more demands to be made on the public purse.

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SUMMARY OF REPORT

REQUIRING PRIOR LEGISLATIVE AP,PROVAL OF, CERTAIN CONSENT DECREES

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facilities, the shaping of education and employment policy, the construction of roads and bridges, the formulation of automotive standards and the management of natural resources.

What the courts are demanding by way of remedy is also dramatically different from traditional remedial decrees. The character of somejudicial decrees has made them de facto exercises of the appropriationpower. By their increasing influence over government spending"theynow direct, at least in part, the wealth of our society.

Federal court decrees also have mandated performance requirements of care and treatment to a degree that has been described asextreme in specificity. Such detail is representative of the trend tow~rd

compelling performance that tends to be open-ended in time and evenin the identity of the parties to whom the performance will be owed.Remedies like these are reminiscent ?f the kinds of programs adoptedby legislatures and the executive branch of government.

Still another difference lies in the patterns of adjudication. Litigation that once focused on solving problems now is centered on answering grievances. Where formerly there was a public interest in avoidinglitigation, the more recent view is that there is a public interest in thejudicial resolution of important issues. The shift in judicial attitude hasled the courts to embark on new problem-solving ventures that haveresulted in the formulation of social policy.

Character of the "New" Public Law Litigation

Perhaps the dominating characteristic ofmodern federal litigation isthat in place of resolving disputes between-private parties the object oflitigation is the vindication of constitutional or statutory policies. Thejudge is the dominant figure in organizing and guiding the case,drawing support not only from the parties, but from a wide range ofoutsiders -- masters, experts and oversight personnel also. Most important, the trial judge has increasingly become the creator and manager of complex forms of ongoing relief, which have widespread effectson persons not before the court and require the judge's continuinginvolvement in administration and implementation.

Within this new adjudicatory framework, courts have become theprincipal forum for the pursuit of structural reform by many groupsmost disaffected with the delivery of governmental services. In responding to these demands, judges have found themselves in theunfamiliar position of designing and superintending major changes in

The Institutional Cases

The most dramatic recent examples of the expanded exercise ofjudicial power and influence over government spending have occurredin the fields of corrections and care of the mentally ill and mentallyretarded, fields in which substantial portions of current budgets are

institutions, a function that often requires them to order massiveincreases in expenditures, wholesale administrative reorganization,and complete revision of operational practices.

This transformation in the character of litigation necessarily transforms the judge's role as well. He uses his control position in the lawsuitto wield influence far beyond the immediate boundaries of the casebefore him, assessing and weighing the impact of outcomes within thecourtroom on the distribution of influence outside it. The judge assumes the role, in essence, of a political powerbroker.

Evolution of Institutional Decrees

The growth of institutional remedies in recent years began in special,extraordinary circumstances. The phenomenon was most visible in theWarren Court's decisions on school desegregation and reapportion-

Jment. The implementation of the Supreme Court's decision in Brownv. Board ofEducation, declaring unconstitutional the de jure segregation of public schools, produced the most dramatic confrontationbetween federal judicial power and state and local authority in moderntimes. However, the Supreme Court's reliance on notions of "practicalflexibility," "deliberate speed," "feasibility," and "workability" in thedesegregation cases is in sharp contrast to the rigid, inflexible districtcourt orders issued in institution cases. A notable exception has occurred in the desegregation of Doston's schools where the court has hadto maintain continuing oversight in the implementation of its orders.

Federal courts accepted the responsibility to reapportion legislativedistricts in those situations where the state legislative body failed tocomply appropriately with its responsibility. The courts' posture ofenforcing the constitutional requirement ofequal protection of the lawimplied at least the right to withhold approval of proposed plans and, ifnecessary, to displace the existing malapportioned scheme provisionally with one ordered by the court. The Supreme Court, however, hasrecognized certain inherent limitations upon its power in these cases andhas attempted to mold the least intrusive, necessary relief.


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now mandated not by legislative choice but by orders of lower federalcourts. Federal judges have ordered at least 11 states to overhaul theirfacilities for the mentally ill or mentally retarded, 11 states and localgovernments in seven other states to revamp their prison systems, andsix states to impro\'e their juvenile detention facilities.

Two factors explain the expanded judicial activity in the mentalhealth field. The first is related to the long neglect that the legal systemhad shown in the plight of the mentally ill and mentally retarded. Asecond factor has been the growth of public advocacy - by individu-als, legal service programs and public service law firms - which hasfueled judicial activism and which is sometimes referred to as the "dueprocess revolution."

Nature of Relief. The relief ordered by the courts in mental healthlitigation has followed a fairly consistent track. Decrees mandatingimproved institutional conditions have set forth standards in threegeneral areas: (1) humane physical and psychological environments,(2) improved quality and quantity of staff, and (3) individualizedtreatment plans for all residents. An abundance of detail is common inthe drafting of the standards which cover precise requirements on abroad range of issues. Several decrees provide monitoring and enforcement mechanisms established by the court to assist in the implementation process.

The most widely discussed of the institution cases is Wyatt v. Stickney involving mental health facilities administered by the State ofAlabama. To assure that constitutional rights found to be violatedwould be observed, the court ordered state officials to implement fullyand with dispatch each of 35 specific requirements for the institutionshousing the mentally ill and 49 specific requirements for the institutionserving the mentally retarded. Compliance with the court's orderrequired massive budget increases for the institutions. The Court ofAppeals for the Fifth Circuit affirmed the district court, and added thatlack of resources was no excuse for noncompliance with the order.

In a celebrated case concerning New York's Willowbrook StateSchool for the Mentally Retarded, the court, although rejecting thenotion of a constitutional right to treatment as expressed in Wyatt,ruled that Willowbrook residents had a constitutional right to protec-

If tion from harm. To guarantee that right, the court not only ordered an:I increase in staff personnel to improve the staff-resident ratio~ but also,Y because of the state's inability to recruit qualified staff at prevailing

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wages, ordered a 10 percent increase in wages for physical therapists.In Welsch v. Likins concerning a Minnesota institution for the

mentally retarded, the federal district court held that the mentallyretarded residents were also constitutionally entitled to the least restrictive environment consistent with their needs, thus requiring thecreation of additional, less restrictive, facilities for their care. Compliance necessitated a substantial allocation of money, an allocationwhich the legislature had previously failed to provide. The districtcourt therefore ordered the state to comply with its decree and enjoinedcompliance with all Minnesota constitutional and statutory provisionsconcerning the raising and allocating of funds inconsistent with itsdecree. The Court of Appeals for the Eighth Circuit approved thedistrict court order and made clear that the court order must be fullycomplied with, unless the state decided to close the institution orrelease substantial numbers of its residents.

Fiscal Impact. Estimates of the final cost of compliance with thefederal court orders in the institution cases are rare, but the limitedavailable data indicate that the sum will be substantial. Louisianaappropriated more than 5106 million for capital improvements tocomply with a court decree concerning one prison, compared withapproximately 51 million annual total capital outlay previously madefor all state correctional facilities. The consent order concerning theWillowbrook State School in New York mandated that the institutional population be reduced from 3,000 to 250 in six years. As a result, theannual budget for each resident of Willowbrook increased from 54,600to an estimated 526,300. Estimated implementation costs in the firstfiscal year were an additional 515 million in capital construction and514 million in operating expenses. Staff at Willowbrook has increasedfrom 2,600 to 4,350 in three years.

The impact of the institution cases on the state treasuries is not likelyto be eliminated by the option suggested by some co.urts that the statecan avoid spending money by closing institutions. In practical terms,these institutions cannot be closed. Thus, a court decree detailing whatthe government must do to continue running its prisons or mentalinstitutions is the functional equivalent ofa mandatory injunction thatit do those things.

The impact on the state treasury is not likely to be easily absorbed byusing money allocated to lower priority items elsewhere in the budget;money that can be made available in this way is limited. The financial

drain on the states is aggravated by the fact that the court decrees,setting minimum standards for staffing and operation of the facilities, .necessitate providing a mandated amount of money to the institutionin every annual or biennial state budget on a permanent basis.

Options in Devising Remedies

Institutional relief cases are generally as protracted and complex as:the relief they produce, frequently involving redeterminations ofliability and reformulations of relief. The finding of system-wide violationsdemands the imposition of a remedy that restructures the defendantinstitution by altering its policies and practices.

In the typical institution case" the court responds to the default of thegovernmental bodies primarily responsible for the deficient institutions, and, although sitting to adjudicate the rights of individuallitigants, it must also ml the broader political role of policymaker forthe defendant institution. Discharging. these two obligations involvesbalancing the private rights of the plaintiffs and the- publk interest inthe operation of these institutions. The resulting judicial decree oftenresembles a legislative or administrative act, broadly societal in outlook rather than particularistic.

A court has a variety of options when choosing a method of formulating a remedy: (1) "remedial abstention," (2) court imposition of theremedy, (3) court selection of the remedy, (4) master-supervisedremedy formulation, and (5) negotiated remedies. Each alternativereflects a different accommodation ofthe need for judicial control overthe remedy with the need for continuous participation by the parties.

Negotiations between the litigants outside the courtroom offer a wayto resolve some or all remedial issues. The court must approve thesettlement, and it, or its delegate, often assumes some role in thenegotiation of the terms of the decree.

Negotiations producing consent decrees are more common in casesinvolving institutional conditions, s1Jch as mental health and prisonlitigation, than in equal protection cases such as school desegregationchallenges. The parties can find themselves litigating while still negotiating, and. the threat of a judicially devised remedy becomes only anadditional pressure to conclude the negotiations rapidly. Differentsituations will require different approaches.

The end product of remedy formulation is the issuance ofa comprehensive remedial decree. The main objective of this decree or injunc-

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tion is the elimination of the wrongful conduct or condition that led tothe lawsuit. A typical decree seeks to realize affirmative goals by

, requiring a comprehensive pattern of reform by the defendant.In many institutional cases, the affirmative program is of such

extensive scope that its realization involves a basic restructuring oftheprocedures or organization of the defendant institution. Generally thisrequires ongoing remedial a~tion extending over a substantial periodof time and implies continued judicial involvement.

Implementation of Remedies

The nature and extent of, as well as the need for, continued judicialinvolvement varies according to the nature of the relief ordered, theattitude of the defendant, the extent to which compliance requirescooperation by organizations or persons not originally subject to thecourt's orders, the amount of resistance by the public or employees ofthe institution, and the skillfulness with which the original decree wasdrafted. Various aspects of necessary continued judicial involvementare discussed in the report.

The radical changes that many civil rights decrees require may bestrongly resisted by defendant institutions. If confronted with' noncompliance, a court intent upon enforcing its decree has a variety of.,.alternatives: invoking its contempt power; tightening the substantiveprovision of the remedy or shifting to a more vigorous and intrusiveadministrative technique. Although courts have generally recognizedthat the sooner they can discharge their jurisdiction over a case, thebetter for everyone involved, they have usually found it difficult to endquickly their involvement in situations requiring institutional reforms.

A Rebuttal to the Critics of Judicial Activism

In one of the more recent· contributions to the literature of theinstitutions cases, the critics of judicial activists are taken to task by ateam ofscholars who argue that there is far more that links than dividesthe so-called "new" litigation from other litigation, either past orpresent. The main thrust of their arguments is that the critics havemissed the mark in their interpretations of the institution cases becauseof their narrow view of the traditional legal system. Conceding thatthere are novel elements in these cases, activists contend that thenovelty lies in substance and power, not in procedure and remedy.

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Mueh of what seems unusual about the new litigation is in fact merelythe use of familiar procedures in novel substantive contexts.

Actually, for several centuries the courts have engaged in the sort oflong-term supervision of affairs that has occasioned criticism in analyses of recent institutional cases. In the law of probate and trusts,courts have developed a series of substantive rules and special procedures to perform the task of preserving decedents' assets, satisfyingcreditors' and taxing authorities' claims, and distributing the remainder to beneficiaries. Judges supervise businesses - not as an extraordinary event, but as an incident of the entirely routine probate of anestate. In the process ofapplying bankruptcy laws, courts have be~omeinvolved in operating a major railway system as well as- many othermore modest enterprises. In the course of such litigation courts routinely handle difficult reorganization cases, passing on aspects offinancial structure that are unlikely to be second nature to most judges.

Because institutional litigation is frequently brought under a federalcivil rights statute, it is argued that many institutional cases should beviewed as judicial efforts to enforce a congressional mandate ratherthan as attempts to wrest powers from the legislature. Apologists forjudicial activism argue that "it does not seem to be an outrageous abuseof judicial authority for courts to supervise state and local authoritiesin order to ensure that these officials protect the constitutional rights ofprisoners, patients and school children."

Furthermore, the judicial orders in institutional cases have as theirconsequences the increased expenditure of public funds, for a judicialorder in almost any case has either as its aim or as its consequence thereallocation of resources. That is the basic reason for litigation.

Finally" focusing on the merits of each individual case, it is arguedthat in the new litigation the novelty lies less in the procedural orremedial aspects of the cases than in the rights they protect, thedirection in which they redistribute power. For centuries, courts havebeen invoking the remedies they employ in institutional cases, but theyhave applied them 'to vindicate the social institution we call property.Now, the judiciary is invoking such remedies in aid of new rights ofindividuals and groups. This shift has occurred over the last fewdecades, as courts have ,created a series of new constitutional rightsredounding to the benefit of such unattractive groups as criminaldefendants. But civil rights litigation has spawned many new classes ofrights that cannot be protected by a constitutional challenge to a

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criminal conviction. To protect these new affirmative rights, courtsmust implement continuous, complex remedies to deal with unresponsive defendants if they are not to abdicate judicial responsibility.

Constitutional Aspects

Critics of judicial activism in the institution cases argue that thedepth and breadth ofjudicial intrusion conOicts with two cornerstonesof American Constitutional Law, the doctrines of Federalism andSeparation of Powers.

The essence of the federal system is that member states generallyagreed to obey the mandates of a common government for certainstipulated purposes, but retained to themselves the right of ordainingand enforcing the laws of the union.

The second great structural principle, the doctrine of Separation ofPowers, is based on the fundamental contention that men entrustedwith power tend to abuse it. Thus, it was desirable to divide the powersof government, first, in order to keep to a minimum the powers lodged.in any single organ of government; second, in order to be able tooppose organ to organ, i.e., a mixed constitution of checks and balances.

Historically, this binding of concepts has been impaired by threedevelopments in our national government: (1) the growth of Presidential initiative in legislation; (2) the delegation by Congress oflegislativepowers to the President; (3) the delegation in many instances of likepowers to independent agencies or commissions. With this concentrated power, the two main structural elements of government in theUnited States in the past, the principle of Federalism and the doctrineof Separation of Powers, have undergone a radical and enfeeblingtransformation.

Restrictions Inherent in Doctrines

The principle of Separation of Powers has been described as a"horizontal" division of power among the three branches of the national government. The "vertical" distribution of power between the national government and the states is thought to be encompassed sufficiently by the concept of federalism. The current stand of the SupremeCourt is that the Separation ofPowers principle has no applicability tothe federal judiciary's relationship to the states. But the Court hasqualified that position by admonishing lower courts to assign greater

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weight to considerations of democratic accountability and delicateissues of federal-state relationships.

The Supreme Court's distinction between "vertical" and "horizontal" Separatio~ of Powers assumes that the power of judicial reviewinherently authorizes federal courts to do whatever is necessary toprotect constitutional rights from infringement by less than coordinatebranches of the government. The assumption has been that if a statelegislature or executive does not cooperate to achieve the objectives ofa federal judicial decree, the need to enforce the constitutional mandate must take precedence over concern for maintaining the separatedefinition of their functions.

Many legal scholars argue, however, that one of the specific purposes of the Tenth Amendment was to protect state institutions fromfederal violations of the principle of Separationpf Powers. Indeed, theSupreme Court has stated that the Tenth Amendment has as itspurpose to allay fears that the new national government might seek toexercise powers not granted. .

As discussed in some detail in the report, critics contend that theframers of the Constitution saw Separation of Powers and Federalismas _intertwined concepts, each designed to define and limit federalpower for the protection of both the state governments and the people.

Conflicts in Exercise of Power

The Effects of Unrestricted Judicial Power

Because it is the federal courts that are assuming the responsibility ofreforming the way the states carry out some of their most essentialfunctions, judicial intervention has an effect not only on the conditi-onsin the institutions but also on the basic allocation of power in American government. It is this effect that raises the most serious questionsabout the orders in the institution cases. If the courts were to haveplenary power to define constitutional values, command sufficientappropriations to support those values, and then control by equitabledecree the spending of the money appropriated, they would be exercising all power of government - judicial, legislative and executive.

Commentators on the growth of judicial activism point to threefacets of the American system of government that are threatened by anunrestrained exercise of judicial power in the institution cases: thedemocratic process, the federal system, and the allocation of powerwithin the federal government itself. The effect on the democratic

18 HOUSE - No. 6362 [March 198

process in the institution cases stems from the fact that it is thejudiciary, and not the politically accountable branches, that is directing the allocation of government funds. The effect on the federalsystem occurs because a branch of the federal government is dir~cting

the allocation of state funds. Finally, the effect on the allocation ofpower within the federal government occurs only in those cases inwhich the federal courts hav.e ordered action by another branch of thefederal government.

The Democratic Process

Any judicial order that invalidates legislative or executive action isby nature an anti-democratic act in that the one nonelective andnonremovable element in the government rejects the conclusions as toconstitutionality arrived at by the two elective and removal branches.

As an example of intrusion upon the democratic process, althoughthe court does not specify the source of the money needed to complywith its order, it still is engaging in budget allocation. The selection ofeach ingredient in the court's definition of the requirements of dueprocess necessitates either the elimination of some element in anotherpart of the government's budget or the raising of additional resources.Because government resources are limited and because some commitments of those resources cannot be reduced due to contract or otherobligations, the impact of a court's decisions falls on a relatively fewbudget items.

Hence, the orders in the institution cases have invaded the criticallegislative responsibility of revenue raising and budget allocation, andbecause of their detail, the executive responsibility of managing institutions as well. This shift of power away.from elected officials toindividuals appointed for life weakens the democratic accountabilityof government.

Federalism

Orders of federal courts mandating state expenditures in the institution cases clearly affect the balance of power between the federal andstate governments. Although some amount of federal power over stateactivities is envisioned by the Constitution, the Supreme Court hasheld that the concept of federalism protects state sovereignty to somedegree from federal control. The question in the institution cases iswhether the federal courts have exceeded the limits of permissible

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arch 1981] HOUSE - No. 6362 19

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federal power and invaded the area of protected sovereignty. ,Most of the Supreme Court's applications of the federalism doctrine

limiting federal judicial power have focused on the form of intervention;these decisions are characterized by a reluctance to allow federal courtinterruption or supervision of local decisionmaking. The report includesa discussion of cases in which the Supreme Court referred to the doctrineof federalism in admonishing lower courts that had intruded into stateand local government operations.

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Supreme Court Precedent Re Mandated Government Expenditures

A Limited Intrusion

The Supreme Court's first expansion of judicial power to includemandating increases in government expenditures occurred in a 1956decision in which the Court held that the State of Illinois had to pay forthe cost of transcripts for some indigent criminal· defendants seekingappellate review. In 1963, the Coutt extended its protection of the poorto require the State of California to furnish counsel on appeal, theeffect of which was again to mandate an' increase in governmentbudgets across the country. Neither decision involved any direct orderof legislative or executive action. In 1977 the Court affirmed a districtcourt order requiring North Carolina to provide a law library to stateprisoners in order to ensure protection of the prisoners' constitutionalrights of access to the courts..

The three cases involve a considerably more limited intrusion intolocal democratic decisionmaking than the district court orders in theinstitution cases. The Supreme Court did not design a detailed list ofrequirements that a state must provide, regardless of cost, in order tomeet the constitutional standards, as is commonly done in the institution cases, but emphasized flexibility and local experimentation. Nordid the Court establish standards of quality that necessitate continuingjudicial supervision of performance. The Court simply articulated ingeneral terms the constitutional standard the localities must meet andallowed them to design their compliance to fit local circumstances andlocal budget.s.

The Relevance of Cost

The increasing recognition by the United States Supreme Court ofthe impact of its procedural due process decisions on the legislative


allocation of resources between administrative costs and programcosts is evident in two recent cases discussed in the report.

In one case the Court addressed the relevance of increased cost toconstitutional standards: Financial cost alone is not a controllingweight in determining whether due process requires a particular procedural safeguard prior to some administrative decision. But the government's interest, and hence that of the public, in conserving scarcefiscal and administrative resources is a factor that must be weighed. Atsome point the benefit of an additional safeguard to the individualaffected by the administrative action and to society in terms of increased assurance that the action is just may be outweighed by the cost.In the following term, the Court, in ruling on a constitutionally protected liberty interest, held that available state remedies were a constitutionally adequate protection for that interest and declined to requireany related federal procedure because any incremental gain would notjustify the cost.

In these decisions, the Court's reason for the relevance of cost isclear: mandating increased costs on government affects the government's allocation of its finite resources.

The Supreme Court is generally reluctant to overturn on equalprotection grounds any legislative judgment concerning the allocationof government resources. In a 1970 decision the Court stated that theConstitution does not empower the judiciary to second-guess stateofficials charged with the difficult responsibility of allocating limitedpublic welfare funds among the myriad of potential recipients. In 1974,the Court upheld the exclusion of pregnancy benefits based solely onthe government's desire to minimize the cost of the program. On theother hand, while recognizing that a state has a· valid interest inpreserving fiscal integrity of its programs, the Court will not allow thatinterest to be controlling.

Congressional Power to Authorize Judicial Action

The Congress of the United States is the most appropriate forum forresolving a conflict between the federal judicial power to enforce theFourteenth Amendment and the interests of the states in the federalsystem. The power of Congress to authorize judicial action in theinstitution cases was recently exercised in support of civil rights ofinstitutionalized persons. In 1980, legislation was enacted authorizingthe Attorney General of the United States to initiate or intervene in

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suits involving the civil rights of patients or inmates of state or localinstitutions. The law requires the Attorney General, prior to legalaction, to certify personally that state officials have had a reasonabletime to correct alleged violations of constitutional rights. Other sections of the statute require detailed reports for Congress on actionsundertaken, including costs to the state and federal funding assistance.The statute, however, does not address the issue of appropriate judicialremedies for constitutional violations.

The Supremacy Clause

Article VI of the Federal Constitution contains the so-called Supremacy Clause, subordinating all state constitutions and laws to theConstitution and laws of the United States. In a 1976 decision, the'Supreme Court held that the application offederal minimu'm wage andhour requirements to state and local employees was in conflict with thefederal system of government. Though Congress had authority underthe Commerce Clause to regulate wages and hours, as applied to statesand local governments, it amounted to an interference with functionsof the state governments that are essential to separate and independentexistence. The Court ruled that the implied constitutional protection ofthe effective functioning of the states in the federal system was anaffirmative limitation on the powers expressly granted to Congress.

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1981] HOUSE - No. 6362 21

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Consent Decree Issues and Effects in Massachusetts

The consent decrees involving Massachusetts agencies, now in theimplementation stage, cover four major subject areas: (1) constructionand renovation projects; (2) increased staffing at the institutions; (3)improved quality and quantity of services; and (4) the development ofcommunity facilities. A separate decree deals wholly with the hiringand reallocation of personnel. Last year, still another consent decree,dealing with a capital-community plan, was approved by the federaldistrict court.

All of these decrees have been adopted by the court, the effect ofwhich is to bind all parties to their terms as a matter of law. No waiveror modification of their terms is permissible without the Court's approval. The Court is the final arbiter of differences in interpretation ofterms of the decrees and it has inherent powers to make its owninterpretation or modification.

22 HOUSE - No. 6362 [March191

The magnitude of the task of implementing the terms of the decreeshas resulted in the appointment of a Court Monitor whose powers andduties are spelled out in the decrees. His principal task is to oversee theimplementation of the decrees, but he may make recommendationswhich are binding unless timely objection is made. He also files reportswith the Court which contain detailed information on progress towardcompliance with the decrees..

The views of the Monitor as to the goals of the litigation and of hisspecific role under the terms of the decree are condensed in the text ofthis report. Highlights of the Monitor's findings and comments onspecific problems are also included to illustrate the scope of his oversight function and the direction he feels the parties must take to achievecompliance.

A serious difference has arisen between the parties as to the interpretation of certain language in the Personnel Decree. The Court hasadopted plaintiffs' views on two issues: (a) the permissible vacancy ratein staffpositions and (b) the right to reallocate stafffrom institutions tocommunity programs now under development. In brief, the districtcourt has ruled that all staff positions must be filled at all times and thatno allocation. of staff may be made without express approval of theCourt. The state contends that such an interpretation was not theintent of the parties when the agreement was entered into and that sucha ruling is unrealistic, given the problems of recruiting and retainingstaff in positions that normally have a high and frequent turnover.Further, the Commonwealth asserts that it removes from the Department its statutory authority to deploy staff in a manner which bestserves the interests of the persons entrusted to its care.

A third issue in this dispute is one of constitutional law. The stateargues that the pervasive involvement of the Court in the developmentand implementation of personnel reallocation decisions is not warranted by the circumstances of the case. The Commonwealth views theJudge's orders as exceeding the permissible rangeoffederal equitableremedial powers to the point of trampling on the rights and preroga- .tives of the state. In essence, the state argues that the Court has placedthe personnel processes at the state schools under federal receivership.In the state's view, this amounts to a violation of the doctrine offederalism. These arguments, and plaintiffs' answers, are developedmore fully in the report.

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Implications of Prior Legislative Approval

If legislation is enacted requiring the prior approval of the GeneralCourt to the terms of any consent agreement entered into by a stateofficial or agency, there are certain consequences that can have adverseeffects on both the state agency involved and the General Court.

In the event the Legislature were to withhold its. approval of a proposed consent agreement, the probable result would be that the issues:would go to trial and the eventual judgment and remedy may be morecostly than a negotiated agreement in which the defendant agency wouldat least have some input.

On the other hand, should the Legislature give its approval to theterms of a consent agreement, and the agreement is later adopted by thecourt, serious problems could arise in the event ofa dispute over interpretation of the terms of the agreement. The court may treat the Legisla-

Fiscal Impact· of Decrees

The consent decrees entered into by the Department of MentalHealth apply to the mentally retarded in the state schools, the mentallyill in Northampton State Hospital and those incarcerated at the mental

.health clinic at the Bridgewater correctional facility. The cost impactof decrees governing the latter two institutions has not yet reachedmajor proportions. Only the facilities for the mentally retarded areconsidered in the discussion of costs.

Through fiscal year 1981, the cumulative costs ofthe consent decreesis estimated to be 5356.6 million, of which 5228.3 million are foroperating costs, and 5128.3 million are for capital outlay. An additional 543.6 million in capital outlay has been recommended by the Governor for fiscal 1982. In the narrative accompanying the Governor'sbudget proposals for fiscal 1982, it is anticipated that cumulative costswill rise to 5488.5 million by the end of fiscal 1983.

A striking finding of a recent study by the Department of MentalHealth is that per capita cost's of consent decree implementation grewfrom 54,927 in 1971 to 525,484 in 1980, an increase of 500 percent.

The eventual total cost to implement these decrees is impossible toestimate accurately because of two factors: (1) the open-ended natureof the decrees - there is no specific terminal date, and (2) the individual service plan, which requires the services of several highly-skilledprofessionals for each retarded person.

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1981] HOUSE - No. 6362 23

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24 HOUSE - No. 6362 [MarchI'

ture's approval of the terms as an implicit signature to the agreement,bringing the legislative body within the jurisdiction of the court andsubject to the contempt powers of the court should the Legislature fan tofund the decree.

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REQUIRING PRIOR LEGISLATIVE APPROVAL OFCERTAIN CONSENT DECREES

CHAPTER I. INTRODUCTION

25

The Study Order

A legislative order, House, No. 5930 of 1980, filed by RepresentativeMichael J. Lombardi of Cambridge, House Chairman of the Legislative Research Council, directed that body to study and report on thefeasibility of prohibiting any state officer, agency or public authorityfrom entering into any consent decree which would require implementing appropriations by the General Court or a commitment of the statecredit, unless the terms of such decree have first been approved by ajoint resolution of the two branches of the General Court.

The study order was prompted by the effects of a number ofconsentdecrees entered into by state officials named as defendants in severalsuits involving conditions at state schools for the mentally retarded.The suits, which were brought in the federal district court, have sincebeen consolidated in proceedings before the United States DistrictCourt Judge, Joseph L. Tauro. Judge Tauro has appointed a CourtMonitor to oversee the implementation of the decrees which call forsubstantial increases in legislative appropriations to comply with theirterms. Funds thus far appropriated have been marked for new capitalprojects, new hiring of personnel and operational expenses. Becausethe court retainsjurisdiction, the defendants are subject to court orderswith respect to obtaining continued funding of programs and projectsnot yet completed.

(: _ The Nature of a Consent Decree

As a legal tool, the consent decree is designed to serve as an instrument of compromise and settlement and thus avoid lengthy and costlylitigation. Although variously defined in numerous cases, I a consentdecree is ge~erally considered as in the nature ofa contract entered into

I. Corpus Juris Secundum, Vol. 30A, s. 678a~ n. 68-70; American Jurisprudence, 2d. Vol. 27. s. 246; Words andPhra.fes. Vol. 8A. pp. 49-50.

26 HOUSE - No. 6362 . [March 1981]

with the solemn sanction of the court. It is in effect an admission by theparties that the decree is a just determination of their rights on the realfacts of the case, had they been proved. I Being in the nature of acontract, a consent decree is construed in accordance with the generalrules controlling the construction of contracts and decrees, and generally may be enforced like any other decree.2 It can be varied or vacated.onlyby consent except where, through fraud or mistake, the minds ofthe parties have not met on 'its terms. J

In the general order of judicial proceedings, a consent decree precedes the litigation of issues -of fact. The parties enter into negotiationsand discussions and come to a written agreement as to specific rightsand obligations. Such agreements do not necessarily cover all issuesthat may be raised if the case were to be litigated under a regularadversary ,proceeding. The court may formally adopt a consent decreeand if it does, the decree becomes a judgment of the court carrying theforce of law and thereafter cannot be waived or modified without thecourt's approva1.4

The Adjudicative Process and Social Costs

The primary focus in the adjudicative process is on rights. The firstquestion to be answered in any litigation is: Does one party have a rightand does another party have a duty'? If it is established that a litigantpossesses a right, then he possesses it notwithstanding any costs involved. Courts do not, like executive planners or legislative policymakers, match benefits to costs. This is not to say that some judges do notconsider cost analyses in their choice of remedies to redress wrongs.But generally, rights do not stand or fall on the basis ofcost considerations.. Judges, of course, have neither the power to tax nor to spend. Yet,their decrees often have the effect of requiring expenditure, sometimeson a level of no small magnitude. Thus, their decisions may have aserious impact on the budgetary process and force legislatures toexercise the appropriation power. Because judges never need to balance expenditures with revenues, they never need consider the reallo-

I. CJ.S.• supra. s. 680 at n. 22.

2. c.J.S.• supra. s. 681.3. CJ.S.• supra. s. 682. It has been held that a consent decree may be corrected for clerical errors. or for errors

creating ambiguity or obscurity therein. '

4. The consent decrees in the Massachusetts mental retardation cases have been adopted by the United StatesDistrict Court and thus are now formal orders of the Court. Thesigning ofthe decrees obviated the necessityof litigating the cases and at this stage the cases are in their implementation phase. As will be discussed inChapter IV., there are constitutional and statutory issues unresolved.

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arch 1981] HOUSE - No. 6362 27

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cation of resources their decisions may dictate. The social benefit beingordered by the court may well be at the expense of other pressing sodalpriorities competing for a share of limited resources. And becausecourts respond only to the cases that come before them, the general lawthey author may be tailored from a very particular cloth of circumstances. The adversary process is not conducive to the ordering ofpreferences. I

As mentioned above, the judicial process focuses on rights andduties. Decisions are based on facts antecedent to the litigation. Litigation is undertaken to rectify the wrongs of the past. But judicialdecisions have an impact on the present and the future. The judicialprocess has not really faced up to the issue ofcompliance costs in social .policy cases. Still less has it considered the problem of unintendedconsequences.2

There is still another impact of the federal court decrees. Where theproblem is not merely one of inequitable distribution of existingresources but one that involves the failure to meet minimum standardsto assure the rights of parties, there is considerable pressure put uponthe other branches of government to implement the decree. Considerable increase in state spending has generally followed the court's determination of minimum standards of care for residents confined to statemental institutions. With this backdrop, it is not difficult to visualizethe temptation of bureaucrats to steer proceedings in a direction thatwill have the effect of expanding their budget allocations. There is ahint in more than one social policy case that defendant bureaucratseagerly entered into a consent decree in the hope of obtaining increasesin their budgets to meet the provisions of the decree.3 In other words,the court's intercession might secure a level of funding unobtainable bybureaucrats through the normal political process.4 And in situations ofinternal bureaucratic disagreement, some factions may welcome judicial intervention in support of their position. 5 It is also argued by some

I. Donald L. Horowitz. The Courts and Sudol Pulicy. the Brookings Institution. Washington. D.C.. 1977. p.44.

2. Ibid., p. 51. A decree ordering vast expenditures to upgrade mental health facilities may. because of limitedrevenue resources. force the curtailment or abandonment of other vital human services programs.

3. Ibid.• p. 259.4. Milliken \'. BrodIe.!'. 433 U.S. 267.293 (1977) where the school boardd and plaintifs. formally antagonists.

"joined forces apparently for the purpose of extracting funds from the state treasury." See also. Note. "TheWyatt Case: Implementation of a J udieial Decree Ordering Institutonal Change." H4 ralt' Law Juuma/133H,1367-68 (1975) where the head of a mental health system looked upon the decree as a method of obtainingincreased financial support from the governor and the state legislature.

5. See Note "Judicial Intervention and Organization Theory: Changing Bureaucratic Behavior and Policy."H9 rale La\\' JUllma1513. 518. n. 30 (19HO).


observers that while legislators and executives might more closelymonitor the preferences of the public, judges sometimes may be betterable to fashion a rational plan because they are relatively free of thepressures of lobbyists, bureaucracies and interest groups. I

Current Statutory Control Over Consent Decrees

Considerable legislative concern has developed in Massachusettsover the disruptive impact of consent decrees on carefully plannedallocation of resources in the entire spectrum of human services activity. Initial reaction to this disruptive effect was to enact legislationrequiring some executive control over negotiations between executivedepartment officials and plaintiff parties in any dispute that might besettled by a consent decree.2 Thus, the prior written approval of theCommissioner of Administration is required before a state executiveor administrative official or agency may file a consent decree that callsfor the expenditure of funds not previously appropriated and notice ofsuch decree must be given to the Senate and House Committees onWays and Means 30 days before the filing. At best, such measures onlyput the Legislature on notice of more demands to be made on thepublic purse. More important, the consequences of such decrees almost inevitably call for increased state spending, ranging from verysubstantial added annual personnel costs to capital expenditures ofmany millions of dollars. In effect, such decrees operate as an assaultupon the traditional legislative control of the appropriation power.

Scope of Controversy Discussed in Report

Officials of the Commonwealth responsible for budget planning in, what now appears to be a prolonged period ofausterity in governmentare deeply concerned with the effects of these suits and the decrees whichthey have spawned. The federal courts have utilized with increasingfrequency, particularly against state governments, innovative and expansive remedies that go beyond mandating increased spending. Invading the area of policy formulation, in adjudications ranging fromlandmark desegregation and reapportionment cases to the more recent

I. See Abram Chayes, "The Role of the Judge in Public Law Litigation," 89 Harvard Law Rel'iew 1281,1307-08, n. 2 (noting such advantages) and Nathan Glazer, "Should JUdges Administer Social Services'!" 50Public Interest 64, 70-71, n. 2 (questioning Chaye's views)". •

2. Most recently included in the Fiscal 1981 General Appropriation Act (Acts of 1980, c. 329, s. 31). See alsoActs of 1979, c. 393, s. 39.

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reb1981] HOUSE - No. 6362 29

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decisions affecting mental health and correctional institutions, federaljudges have donned the mantle of state reformers. The forms of reliefordered by the federal courts, in the words of one critic, "raise thequestion whether the judiciary has begun to tolerate in itself a blendingof functions that would never be tolerated in another branch ofgovern-·ment."1

In assuming this expanded role, courts have exercised traditionallyexecutive functions by appointing executive and quasi-executive officers responsible to the judiciary and by determining administrativeprocesses in elaborately detailed decrees. By setting policy standardsfor the operation ofstate and federal programs, including the setting ofbudgetary requirements, the courts have exercised legislative func-tions. )

The court's rationale for all of this activity is that the protection andguarantee of constitutional rights of individuals incarcerated in orcommitted to state institutions must take precedence over executive orlegislative programs and budget priorities. Neither executive nor legislative officers dispute the validity of that argument where abuse ordenial of rights is established. It is in the remedial aspects and theimplementation phase of the judicial orders and decrees that theconflict between the courts and the other two branches of governmenthas begun to boil. In an analysis ofthejudicial role in this "new" publiclaw litigation, a Harvard Law School professor describes the decree asthe centerpiece of the new model of adjudication:

The decree seeks to adjust future behavior, not to compensate for past wrong. It is deliberately fashioned ratherthan logically deduced from the nature of the legal harmsuffered. It provides for a complex, on-going regime ofperformanc.e rather than a simple, one-shot, one-waytransfer, Finally, it prolongs and deepens, rather than terminates, the court's involvement with. t~e dispute.2

From such evidence ofjudicially.expanded authority, executive andlegislative officials seriously question the adequacy of the judiciary'sself-discipline in defining the limits of its own authority. In authoringremedies or approving agreements consented to by the parties to adispute, judges are criticized for overlooking the feasibility of the

I. Robert F. Nagel. "Separation of Powers and the Scope of Federal Equitable Remedies." 30 Stanford Low~vieK' 661 (1978).

2. Chaya• ."",•.• l29ll.

CHAPTER II. THE FEDERAL COURTSAND SOCIAL REFORM

Part l. Judicial Activism and the Critics

Scope of Federal Judicial Activity

Over the past score years there has been a vast expansion of judicialresponsibility, particularly within the federal judiciary. Courts havebecome involved in decisions that once were considered inappropriatefor adjudication. Among the areas of adjudication are welfare administration, penal administration, the administration of mental healthfacilities, including hospitals and schools, the shaping of educationpolicy and employment policy, the construction of roads and bridges,

remedies and for their indifference to or ignorance of how their decisions will affect, or be affected by, the broader social and politicalmilieu. Decisions are made without the administrator's or legislator'sconcern for the trade-off among many competing programs that haveto be made when resources are limited. Consequently, judicial decreescan have, and have had, a crushing impact on state fiscal policy..Operational budgets, capital outlay budgets, resource allocations andpersonnel allotments are all askew in many states because federaldistrict judges have, in effect, told state officials that programs andresources must be altered to comply with court decrees.

Of more concern to many observers, however, is the political andsocial impact ofthe decrees. Constitutional and legal scholars see gravethreats to the doctrines of federalism and separation of powers. Activist federal judges, critics charge, are running' state institutions andhave, in effect, seized the appropriation power. Not all legal commentators agree with these arguments. Judges, the rebuttal runs, are obligated to act where constitutional violations are patent and where theintransigence of state executive agencies and underfunding by legislative bodies permit indefensible conditions to exist in the care andtreatment of state institutionalized individuals.

In the following chapters, the report looks first to the reform activities of the courts, then to the implementation problems causing thediscord and, finally, to the impact upon fiscal and social policy inMassachusetts.

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[MarchHO USE - No. 636230

I. Shapiro \'. TlllIlllp.WII, 394 U.S. bill (19b9).

2. King \'. ~illilh. 392 U.S. 309 (19bll); u'II'i.~ ". Marlin. 397 U.S. 552 (1970).

3. Carler ". Gallagher, 495 F. 2d 315 (1971). cer/. c/mic·c/. 40b U.S. 950 t 1972).

4. Halllil,o" \'. Schiro. 331l F. Supp. IOlb( 1970); Halllil,o" \'. I.am/riel/, .'51 F. Supp. 331lt 1973).351 F. Supp.1235 (1973): Hoc/ge \'. Docltl. 1 Pri.w" /.all· Reponer 263 (1972).

5. WI'UII \'. Slh'/iIIc'Y. 325 F. Supp. 7111 (1971).334 F. Supp. 1341 (1971).344 F. Supp.373(J972).344 F. Supp.38b (1972). affirmed in parI H)'all ". Ac/erholl. 503 .... 2d 1305 (1976).

6. Hoh.wl/ \'. lIamc''', .'72 F. Supp. 1144 t 1971 ).

7. Serna ". Portale.~ Mu"icipal Sd/llols. 499 F. 2d 1147 (1974).

8. Chance ", Boarc/ (~( J:.:l:aminc>rs. 330 F. Supp. 203 (1971). 451l F. 2d 1167 (1972).496 F. 2d 1120 (1974).

9. &IIc/m \'. Cily (If Mohi/c'. 423 F. Supp. 3114 (197M.

10. Morgan \'. MdJOfIOUgh. 540 F. 2d 527 (197M. c·('rl. c/e"it·d. 429 II .S. 1114~ (1977).II. St'herr ". Volpe. 466 F. 2d. 1027 (1972); D.C. Federalioll (!( CMe As.wl'iali/llu ". J·olpe. 459 F. 2d, 1231

(1972). t·er/. de"iec/.405 U.S. 1030 (i972).

12. Wesl Virginia DM.~icm (!"I.~aac· H'al,oll I.('ague ". BUI=. 367 F. Supp. 422 (,1973).522 F. 2d. 945 t 1975).

13. Chr.r.~/er Corp. ". l'/lill'c/ Slale,~ 1)('pa,.,III/,'" "I' TralUportal;OII. 472 F. 2d. 059 (197~): Il,'t II nrc (",I. ".

Unill'd Slale.~ I)c'part/ll/'''' (!I' TralUportal;OfI. 471 F. 2d. 350 t 1972).

14. Donald I.. Horowill. n/(' Couru a"d Social Policy, .~lIl'ra, 0.

the formulation of automotive standards and the management ofnatural resources.

In recent years, courts have invalidated laws setting residentialrequirements for welfare assistance, I child support statutes,2 and minimum education requirements for firemen. 3 Federal district courtshave set detailed standards for various prison operations ranging fromhousekeeping aspects to recreation facilities and maintenance of buildings.4 Comprehensive programs of care and treatment of the mentallyill confined in hospitals has been ordered,5 while in other cases, thecourts have mandated the equalization of school expenditures onteachers' salaries,6 and bilingual education of Mexican-Americanchildren,7 the elimination of certain tests for teachers and supervisors,g

the reorganization of an entire city government,9 and the placing of apublic high school directly under judicial control. lO

In other cases, courts have enjoined road and bridge construction onenvironmental grounds, II told the Forest Service to cease clear-cuttingof timber,12 and suspended performance requirements for automotiveair bags and automobile tires. 13

Much judicial activity has taken place independent of Congress andthe federal bureaucracy, and on some occasions contrary to statedpolicies of both. According to one observer, even ""in areas oftencovered densely by statutes and regulations, the courts have seized theinitiative in lawmaking."14

What the courts are demanding by way of remedy is also dramatically different from traditional remedial decrees. Courts have orderedbuilding programs and ""the character of some judicial decrees has

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1981] HOUSE - No. 6362 31


made them, de facto, exercises of the appropriation power."1 By theirincreasing influence over government spending, they now. direct, atleast in part, the wealth of our society and they exert their "activeresolution," or affirmatively exercise their power, by means of mandatory injunctions.2

Aside from their effects on state spending requirements, federalcourt decrees have mandated performance requirements of care andtreatment to a degree that has been described as "extreme in specifici-·ty.") Such detail is representative of the trend toward compellingperformance that tends to be open-ended in time and even in theidentity of the parties to whom the performance. will be owed. Remedies like these are reminiscent of the kinds of programs adopted bylegislatures and executives.4

Still another difference in degree has developed between the "old"and "new" patterns of adjudication. Litigation that once focused onsolving problems now is centered on answering grievances. Where theearlier view was that there was a public interest in avoiding litigation,the more recent view is that there is a public interest in the judicialresolution of important issues. The shift in judicial attitude signifies anincreasing subordination of the individual case in judicial policymaking concurrent with an expansion of judicial responsibility that tendsto overlap the responsibilities of other governmental branches. Such ashift in emphasis has led the courts to embark on new problem-solvingventures that have resulted in the formulation of social policy.

Character of the IINew" Public Law Litigation

What we are witnessing, according to one legal scholar, is theemergence of a new model of civil litigation and, according to his view,the traditional conception of adjudication and the assumption uponwhich it is based provide an increasingly unhelpful, indeed misleading,framework for assessing either the work ability or the legitimacy oftheroles of judge and court within this model.5

Perhaps the dominating characteristic of modern federal litigation isthat lawsuits do not arise out of disputes between private parties about

I. Ihid. A federal district court order in Alabama compelled the state to increase its annual expenditures formental institutions from $14 million to $58 million in the course of one year.

2. Gerald E. Frug, "The Judicial Power of the Purse," 126 University of Pennsylvania Law Review 715 (1978).

3. Horowitz, supra, 7. '..4. Ihid.5. Chayes, supra, 1282.

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private rights. Instead, the object of litigation is the vindication ofconstitutional or statutory policies. I

The characteristic features ofthis public law model are very differentfrom those of the traditional model. The party structure is sprawlingand amorphous, subject to change over the course of the litigation. Thetraditional adversary relationship is suffused and intermixed withnegotiating and mediating processes at every point. The judge is thedominant figure in organizing and guiding the case, and he draws forsupport not only on the parties and their counsel, but on a wide range·of outsiders - masters, experts and oversight personnel. Most important, the trial judge has increasingly become the creator and managerof complex forms of ongoing relief, which have widespread effects onpersons not before the court and require the judge's continuing involvement in administration and implementation.2

In Table I, the list of crucial features of the adjudicatory process

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Scope of Lawsuit

Party StructureFact InquiryRelief

RemedyEffect of Decree

Judge's Role

Traditional Litigation

Dispute between private individuals about privaterights

Exogenously determined

Rigidly bilateralHis.torical and adjudicativeCompensation for a past

wrong derived from substantive liability. Impact confined to immediate parties

ImposedTerminates judicial involvement

Passive. Functions limitedto analysis and statement

33

The "New Public" Litigation

Grievance about operation ofpublic policy

Shaped primarily between courtand parties .

Sprawling and amorphousPredictive and legislativeForward looking. Fashioned adhoc on broadly remedial linesoften having important consequences for many persons, including absentees

NegotiatedAdministration requires continuing participation of court

Active. Responsible for credible fact evaluation and organizing and shaping litigationto insure a just and viableoutcome

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1216

~ ).* Based on textual discussion in Chayes. supra. 1302.

I. Ibid.• 1284.

2. Ibid.

I. Colin S. Diver, "The Judge As Political Powerbroker: Superintending Structural Change in Public Institutions," 65 Virginia Law Review 43,44 (1979).

2. Ibid., 45-46.

The Expanded Reach of Judicial Remedies

The proliferation of what some commentators refer to as "institutional decrees" raises important issues on a number of levels, amongthem the suitability of the federal judicial process and its proceduresfor deciding upon, framing, and implementing such decrees. Thisjudicial role poses some deep problems not only as to the continuedviability of the judicial institution, but also as to the conceptions of"the judicial power" to which the Federal Constitution committed its

suggests that a metamorphosis of procedural mechanisms employed inthe adjudication of a lawsuit has taken place in the federal courts.

Within this new adjudicatory framework, plaintiffs have increasingly asked courts not simply to correct isolated and discrete violations oflaw but also to effect systemic reform of entire institutions or programs, Courts have become the principal forum for the pursuit ofstructural reform by many groups most disaffected with the delivery ofgovernmental services. In responding to these demands, judges havefound themselves in the unfamiliar position of designing and superintending major changes in institutions, a function that often requiresthem to order massive increases in expenditures, wholesale administrative reorganization, and complete revision of operational practices.Expanding upon their traditional equitable powers to issue ordersremedying violations of law not adequately compensated by moneydamages, courts have fashioned a new jurisprudence of structuralreform. I

The demands of structural reform have magnified the explicitlypolitical dimensions of litigation. Parties have used litigation less as amethod for resolution of conflict than as a means of reallocatingpower. Rather than an isolated, self-contained transaction, the lawsuit becomes a component of the continuous political bargainingprocess that determines the shape and content of public policy. Thistransformation in the character of litigation necessarily transforms thejudge's role as well. He uses his control position in the lawsuit to wieldinfluence far beyond the immediate boundaries of the case before him,assessing and weighing the impact of outcomes within the courtroomon the distribution of influence outside it. The judge assumes the role,in essence, of political powerbroker. 2


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enforcement as "the supreme Law of the Land" and for which itgranted judges life tenure.

In another direction, these questions regarding the suitability ofjudicial processes merge with larger issues concerning the allocation ofpower, particularly the phenomenon of one or more federal judgesundertaking supervision and control over, simultaneously, a state'sschools, mental hospitals, and prisons.

The fundamental question as seen by one critic is the legitimacy ofthe federal courts issuing orders of this kind as regular matter in theordinary course of business. I The legitimacy of such orders, per se, isnot in question. In particular circumstances, where the constitutionalright is clearly and soundly based and there is no alternative way toeffectuate it, institutional orders are justified.

What is challenged is the regularization of decrees of this kind, i.e.,the acceptance of the set of mind that, having identified a real socialproblem, too easily concludes (a) that if there is a problem, there mustbe a solution, (b) that the continued existence of the problem establishes both that the other parts of government cannot be relied uponand that the courts' traditional remedies are efficacious, and (c) thatjudges must therefore act in a wholesale fashion to reform governmentto bring about the "cure."2

Also challenged is what often flows from this: the too-ready recognition of new constitutional claims asserted in terms which themselvesimply - or, indeed, are derived from - the desirability of federalcourts assuming oversight of state government institutions.

Although critics' opinions vary as to the gravity of this judicialactivism, the least critical would urge not withdrawal but restraint, notthe abjuring of extraordinary remedial measures but their reservationfor those relatively few, extraordinary cases where they have special,adequate justification.3

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Evolution of Institutional Decrees

The growth of institutional remedies in recent years began in suchspecial, extraordinary circumstances. The phenomenon was most visible in the Warren Court's decisions on school desegregation andreapportionment.

I. Paul J. Mishkin. "Federal Courts As State Reformers." 35 Washingtun and L.ee Lall' Rei-jell' 949.950 ( 197H).

2. Ibid.

3. Ibid.• 950-951.

I. In Brown. the action was brought on behalf of all "Negro children of elementary school age residing inTopeka," 347 U.S. 483,486, n. I. (1954).

2. The South Boston High School case. Morgan v. McDonough (544 F. 2d. 527). is a notable exception.Massive resistance to the busing ordered by the court ultimately led to placing the school in federalreceivership. The court named Joseph M. McDonough, a Boston school administrative official. as temporary receiver. For a full discussion of the legal aspects of the South Boston case, see Barry Stuart Roberts."The Extent of Federal Judicial Equitable Power: Receivership of South Boston High School. 12 NewEngland Law Review 55 (1976). On the appropriateness of receivership asa remedy. see Note, "Receivershipas a Remedy in Civil R.igbts Cases," 24 Rutgers Law Review 115 (1969) and Note, "Equitable Remedy ofReceivership. State Law in the Federal Courts," 10 Stanford Law Review 361 (1958).

3. Frug, supra, 767.

The Desegregation Cases

The implementation of the Supreme Court's decision in Brown v.Board of Education, 347 U.S. 483 (1954), declaring unconstitutionalthe de jure segregation of public schools, produced the most dramaticconfrontation between federal judicial power and state and local au-thority in modern times. .

In Brown and the succeeding school desegregation cases, which wereclass actions, I the need for structural changes in the institutional reliefgranted was unavoidable. The general proposition seems undeniablethat some degree ofjudicial supervision or intervention on a more thana sporadic basis was essential for the effectuation of the underlyingconstitutional right.

In the long litany of desegregation cases since Brown, inclu<:lingthose cases involving outright defiance of the minimal requirement ofBrown: that segregation cease being enforced by law, there has been anextraordinarily patient recognition of the need for local responsibilityand of the practical restraints the localities face in achieving compliancewith the constitutional mandate. The Supreme Court's reliance onnotions of "practical flexibility," "deliberate speed," "feasibiliy," and"workability" are in sharp contrast to the district court orders issued ininstitution cases. And, however intrusive a desegregation order maybe, there is an end to the federal judicial role in school policy. Once aschool district has desegregated, the Supreme Court has held, thedistrict court has fully performed its function and no further proceedings are necessary. 2

In contrast, if the institutions must maintain a constitutionallyprescribed minimum of services, that minimum, enforced by the federal courts, may last in perpetuity. Each future budget - indeed everymajor administrative decision concerning maintenance, staffing, ortreatment in the institutions - could engender judicial supervision todetermine whether the institution is maintaining the'amount and kindof services constitutionally required. 3

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The Reapportionment Cases I

Although these cases do not involve the allocation of governmentresources, they are relevant because they involve the federal courts in adramatic intervention in local decisionmaking.

The apportionment of it legislative body is primarily a matter forlegislative consideration and determination; judicial relief becomesappropriate only when a legislature fails to reapportion according tofederal constitutional requisites in a timely fashion after having adequate opportunity to do SO.2 The stage was set for judicial intercessionwhen, over a period of time, many malapporti<?ned state legislaturesresisted reapportionment proposals that would have substantiallyeliminated, or at least reduced, the undervaluation of the right torepresentation of certain members of the electorate. A series of suitswere filed in the early 1960's challenging the validity of the existingapportionment of the legislatures of seven states, beginning with Tennessee, the latter resulting in the setting of the "one person, one vote"principle as the constitutional standard to be followed. 3

Regardless of what standard was to govern, it became 0 bvious that avoter's right to cast a ballot free from the effects of malapportionmentcould be vindicated only by an overall reapportionment of the legislative districts. Consequently, federal courts accepted the responsibilityto reapportion legislative districts in those situations where the statelegislative body failed to comply appropriately with its responsibility.While primary and ultimate responsibility for defining the shape of thenew districting or other electoral structure properly remained with thestate legislatures,4 the federal courts' posture ofenforcing the constitutional requireme'nt implied at least the right to withhold approval ofproposed plans and, if necessary, to displace the existing malapportioned scheme provisionally with one ordered by the court. 5 In formulating relief, courts utilized the full panoply of their equitable power.6

The Supreme Court stated that some appropriate action must be takento deal with malapportioned schemes that violate constitutional rights;that only in the most extraordinary situation were lower courts justi-

I. This subject is treated in minute detail in three earlier reports of the Legislative Research Council. SeeSenate. No. 771 of 1966,49-64; House. No. 5309 of 1969.79-104: and House. No. 7020 of 1973. 148-213.

2. Reynolds \'. Sims, 377 U.S. 533. 586 (1964).3. &ker v. Carr. 369 U.S. 186 (1962).

4. Reynolds \'. Sims, 377 U.S. 533, 586 (1964); Mar,l'land Comll1.for Fa;r Representation I'. Tall·e.!. 377 U.S.656.675-76 (1964); Connor \'. Finch. 431 U.S. 407.414-15 (1977).

5. Baker v. Carr, 369 U.S. 186 (1962); Gray v. Sanders. 372 U.S. 368, 381 (1963); Wesherry \'. Sanders. 376 U.S.I (1964); Reynolds v. Sims•.,upra; Lucas v. Forty-Fourth General Assemh(l', 377 U.S. 713 (1964).

6. Reynolds. supra; Sixty-Seventh Minnesola Slate Senale \'. Bems.406 U.S. 187 (1972).


fled in allowing an election to proceed under an invalid apportionmentplan} The Court however, has recognized certain inherent limitationsupon its power and has attempted to mold the least intrusive, necessary'relief. 2 Notwithstanding, some federal district courts have ignored thislimitation by aggressive orders to state legislatures to conduct nobusiness other than that relating to reapportionment. 3 Despite theseabuses, in most instances, ju~icial application of its equitable powerhas been upheld. 4

The school desegregation and reapportionment cases are landmarkdecisions of extraordinary magnitude. They represent the recognitionof fundamental constitutional rights, in each instance, only after prolonged consideration led the Supreme Court to the ultimate conclusionthat the deepest assumption ofthe constitutional order commanded noless. And, as pointed out by one legal scholar, "In both instances, theconstitutional commands meant addressing major institutions of society, and the development of special, far-reaching remedies in suchcircumstances can be specially and forcefully justified."5

In each of the two specific areas discussed, the remedies necessarilyimplied and thos~ explicitly authorized by the nation's highest courthave been more limited than those frequently ordered by lower courts.But, once broad remedies attain prominence, the tendency of litigantsto seek them, and of courts to grant them, can be expected to grow. Inthe institutional litigation, this is precisely what has happened.

The Institutional Cases

The most dramatic recent examples of the expanded exercise ofjudicial power and influence over government spending have occurredin the fields of corrections and care of the mentally ill and mentallyretarded, fields in which a substantial portion of current budgets are'now mandated not by legislative choice but by orders of lower federalI. Reynolds. supra. _2. Reynolds. supra; Sixty-Seventh Minne.wlU State Senate. supra; White I'. Weiser. 412 V.S. 7113 (1973), The

court should avoid choosing between valid reapportionment plans and yield to the legislative determination.Wells v, Rockefeller. 311 F, Supp. 411 ( 1970), l{fl'd memo 3911 U.S. 90 I; Ferrellv. State (?f Oklahoma. ex. rei.Hall, 339 F. Supp. 83 (1972), afJ'd mem, 406 U.S. 939 (1972).

3. Buckley v. Hoff, 234 F. Supp. 191 (1964) modified sub nom. Parsons v. Buckley. 379 U.S. 359 (1965);Bu//erworth I'. Dempsey, 237 F. Supp. 302 (1965); Holtv. Richardson, 238 F. Supp. 468( 1965), vacaledsubnom, Burns v. Richardson, 384 V.S. 73 (1966). In all three of these cases, respectively involving reapportionment plans in Vermont, Connecticut and Hawaii, the courts' orders limiting the legislature's scope ofbusiness were never enforced. In Buckley, the order was modifed by the Supreme Court; in &merworth, thedistrict court rescinded the order; in Holr, the order was stayed by Justice Douglas. See discussion inComment, "Reapportionment and the Problem of Remedy," 13 U.C.L.A. lAw Review 1345 (1966).

4. See Comment, 13 U. C. L.A. Law Review. supra; and Star, "Federal Judicial Invalidation as a Remedy forIrregularities in State Elections:' 49 New York University Law Review 1092 (1974).

5. Mishkin, supra, 952.

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courts. Federal judges have ordered at least 11 states to overhaul theirfacilities for the mentally ill or mentally retarded, I II states2 and localgovernments in seven other states to revamp their prison systems,3 andsix states to improve their juvenile detention facilities. 4 The decrees in

I. Alabama (Wyatt v. Slickney. 344 F. Supp. 373, 344 F. Supp. 387 [M.D. Ala. 1972], a./I'd in part. renlandedinpari, decisiun reserved in part sub num. Wyall v. Aderhull, 503 F. 2d. 1305 [5th Cir. 1974]); Georgia(Burnham v. Department uf Pub. Heallh. 503 F. 2d. 1319[5th Cir. 1974], cerl. denied, 422 U.S. 1057 [1975]);Louisiana (Gary W. \'. Luuisiana, 437 F. Supp. 1209 [E.D. La. 1977]); Massachusetts (Gauthier I'. Benson[D. Mass. 1976], reported in I Menial Disability Law Reporter 122 [1976]); Minnesota (Welsch v. Likins,373 F. Supp. 487 [D. Minn. 1974], q{fcf in part, vacaled and remanded in part, 550 F. 2d. 1122 [8th Cir.1977]); Mississippi (Doe v. Hudspeth [S.D. Miss. 1977], reported at [1977] II Clearinghouse Review 160);Nebraska (Horacek v. Exon, 357 F. Supp. 71 [D. Neb. 1973]); New York (New York State Ass'n forRetarded Children. Inc. v. Carey, 393 F. Supp. 715 [E.D.N.Y. 1975],409 F. Supp. 606 [E.D.N.Y. 1976]);New Yurk Stale Ass'njar Retarded Children. Inc. v. Rockefeller, 357 F. Supp. 752 [E.D.N.Y. 1973,];Ohio(Davis v. Walkins, 384 F. Supp. 1196 [N.D. Ohio 1974]); Pennsylvania (Haldeman \'. Pennhursl SlateSchuol & Hosp., No. 74-1345 [E.D. Pa., filed Nov. 30, 1977]); and Tennessee (Sa\'ille I'. Treadwa.I', 494 F.Supp. 430 [M.D. Tenn. 1974]).

2. Alabama (Pugh v. Locke, 406 F. Supp. 318 [M.D. Ala. 1976], affd in part. remanded in part sub nom.Newman v. Alaballla, 559 F. 2d. 2113 [5th Cir. 1977]; Newman v. Alabama, 349 F. Supp. 278 [M.D. Ala.1972], affd in part, decision reserved in part, 503 F. 2d. 1320 [5th Cir. 1974], cerl. denied, 421 U.S. 9411[1975]); Arkansas (Finney v. Hutto, 4 10 F. Supp. 251 [E.d. Ark. 1976]; Holt v. Hutto, 363 F. Supp. 194[E.D.Ark. 1973]; a.{fd in part, rev'dinpart, sub nom. Finney v. Arkansas &1. ofCorreclion, 505 F. 2d 194[8th Cir.1974]; Holl v. Sarver, 300 F. Supp. 825 [E.D. Ark. 1969],309 F. Supp. 362[E.D. Ark. 1970], affd442 F. 2d.304 [lith Cir. 1971]); Delaware (Anderson v. Redman, 429 F. Supp. 1105[0. Del. 1977]); Florida (CosteI/o v.Wainrighl,397 F. Supp. 20 [M.D. Fla. 1975], vacQted on olher grounds, 539 F. 2d. 547 [5th Cir. 1976] [enbane], rev'd and remanded, 430 U.S. 325 (1977]; Louisiana (Williams v. Edwards, 547 F. 2d. 1206 [5th Cir.1977]); Massachusetts (Bel v. Hall, 392 F. Supp. 274 [D. Mass. 1975]); Mississippi (Gates v. Collier, 349 F.Supp. 881 [N.D. Miss. 1972],affd,407 F. Supp. 1117[N.D. Miss. 1975],423 F. Supp. 732[N.D. Miss. 1976],affd, 548 F. 2d. 1241 [5th Cir. 1977]); New Hampshire (Laaman v. Helgemoc, 137 F. Supp. 269 [D.N.H.1977]; Nadeau v. Helgemoc, 423 F. Supp. 1250 [D.N. H. 1976]); New York (Todaro v. Ward, 431 F. SUpp.1129 [S.D.N.Y. 1977], affd, 565 F. 2d. 48 [2d Cir. 1977]); Ohio (Chapman v. Rhodes, 434 F. Supp. 1007[S.D. Ohio 1977]); and Oklahoma (Battle v. Anderson, 376 F. Supp. 402 [E.D. Okla. 1974], affd, 564 F. 2d.31111 [10th Cir. 1977]).

3. California (Dillard v. Pitchess, 399 F. Supp. 1225 [C.D. Cal. 1975]; Brennemen I'. Madigan, 343 F. Supp. 12H[N.D. Cal. 1972]); Georgia (Inmates of Henry County Jail v. Parham, 430 F. Supp. 304 [N.D. Ga. 1976]);Maryland (Collins v. Schoonfield, 344 F. Supp. 257 [D. Md. 1972]); Michigan (O'Bryan v. Coumy qfSaginaw, 437 F. Supp. 5112 [E.D. Mich. 1977]); Missouri (Ahrens v. Thomas. 434 F. Supp. 873 [W.O. Mo.1977]; Goldshy v. Carnes. 365 F. Supp. 395[W. D. Mo. 1973]); Nebraska (Moore v. Janing. 427 F. Supp. 567[D. Neb. 1976»; and Te~as (Smith v. Sullivan, 553 F. 2d. 373 [5th Cir. 1977]; Taylor I'. Sterrett, 344 F. Supp.411 [N.D. Tex. 1972], affd in part, 499 F. 2d. 367 [5th Cir. 1974], cert. denied. 420 U.S. 9113 [1975]). Inaddition. local governments are under federal court order in at least seven of the eleven states listed in note 2supra: Arkansas(Hamiiton v. Love, 328 F.Supp.111l2[E.D. Ark. 1971],35H F. Supp. 33H.361 F. Supp. 1235[E.D. Ark. 1973]); Florida (Mi/(·he/lv. Untreiner.421 F. Supp. 886[N.D. Fla. 1976]; MilleT\'. Car.\'On, 40 I F.Supp. 835 [M.D. Fla. 1975J. afrd in part, modijied in part, and remanded, 563 F. 2d. 741 [5th Cir. 1977]);Louisiana (Hamilton v. l.andrieu, 351 F. Supp. 549[E.D. La. 1972]; Hamiltun v. Shiro, 33g F. Supp. 1016[E. D. La. 1970]); Massachusetts (Inmates o/SujJulk County Jail \'. l:.i.\·ellSladt, 360 F. Supp. 676 [D. Mass.1973J, q/j'd. 494 F. 2d. 1196 [1st Cir. 1974]); Mississippi (Ohaddf!\'. McAdorr[S.D. Miss. 1973]. reported at2 Prison Law Reporter 413 [1973]); New York (Detainee.\· of BrovkZI't1 Huuse of Detemion v. Malcollll,520F. 2d. 392[2d Cir. 1975J; Rhl'lll v. Malcolm. 371 F. supp. 594. 377 F. Supp. 995 [S.D. N. Y. 1974], a.lrd, 507 F.2d. 333 [2dCir. I 974J, 3119 F. Supp. 964 [S.D. N.Y. 1975], a./j'd, 527 F. 2d. 1041 [2d Cir. 1975],432 F. Supp.[S.D. N.Y. 1975], qlld, 527 F. 2d. 1041 [2d Cir. 1975]. 769[S.D. N.Y. 1977]; and Ohio (Jones v. Witlenberg)323 F. Supp. 93. 330 F. Supp. 707 [N.D. Ohio 1971], q/fd.lub nom. JOlleH'. Metzger, 456 F. 2d. 854[6th Cir.1972]).

4. Indiana (Nelson I'. Heyne, 355 F. Supp. 451 [N. D. Ind. 1972]. a.lrd,49! F. 2d. 352 [7th Cir. 1974]); Kentucky(Baker v. Hamiltoll [W. D. Ky. 1972], reported at [1972] 6 Clearinghouse Review 100); Mississippi (Morganv. Sproat, 432 F. Supp. 1130 [S.D. Miss. 1977]; Pattersun v. Hopkins, 350 F. supp. 676[N.D. Miss. 1972]affd, 4HI F. 2d 640 [5th Cir. 1973]); New York (Pena \'. Nell' York State div.fur Youth. 419 F. Supp. 203[S.D.N. Y. 1976]; Malarella v. Kelley. 349 F. Supp. 575 [S.D.N. Y. 1972]; l.ullis v. Nell' York Slate Dep't qfSoc. Servs., 322 F. Supp. 473 [S.D.N.Y. 1970],328 F. Supp. 1115 [S.D.N.Y. 1971]); Rhode Island (Inmatesof Boys' Training Schoolv. Affleck, 346 F. Supp. 1354[0. R.1. 1972]); and Texas (Morales I'. Turman. 364 F.Supp. 166 [E. D. Tex. 1973].383 F. Supp. 53 [E.D. Tex. 1974], rev'd un other grounds. 535 F. 2d. 1164 [5th cir.1976], rev'd, 430 U.S. 322 [1977».


these cases mandate massive changes in the operation of an institutionand its programs, changes involving the physical condit.ion of thefacility, its staffing, the quality of its services, or a combination of theseitems. In short, the unspoken agenda of this litigation has been totransform totally the philosophy, performance, and operation ofcustodial institutions in our society.1

There are reasons to justify judicial intercession in these fields. But,inasmuch as the consent decrees in Massachusetts have seriously impacted only the mental health system,2 the discussion that follows willfocus on mental health litigation.

Background to Intervention. Two factors explain the expandedjudicial activity in the mental health field. The first relates to the longneglect that the legal system had shown in the plight of the mentally illand mentally retarded. Civil commitment procedures often meant aneffective abrogation of many of the civil rights of those unfortunates. Atypical commitment meant incarceration in an old, sometimes massive, and often secluded mental institution. Custodial care rather thaneffective· treatment was the likely result; long-term warehousing became the norm. These conditions were products of gross underfundingin many, if not most, institutions. Consequently, it was not uncommonfor residents to be not only neglected but abused, circumstances thatfrequently contributed to physical and mental deterioration.

A second factor has been the growth of public advocacy - byindividuals, legal service programs and public service law firms which has fueled judicial activism and which is sometimes referred toas the "due process revolution."J Judges, of course, lack the power tointervene on their own in governmental affairs. Courts become involved in the administrative process only where an injured party hasthe interest and the means to petition for redress. Neither the courtsnor the adversary process can be said to have created the conflictbetween plaintiff and defendants in the mental health cases; theymerely provided the forum and the procedure whereby the long-exist-\t

I. Diver, supra. SO.

2. This is not to say that other human services agencies and clients are unaffected by the decrees; limitedresources have re4uired that other programs be curtailed or suspended in order to meet the re4uirements ofthe del:rees.

3. Where civil commitment deprives institutional residents of their liberty on the grounds that they requirespt:l:ial treatment, due process re4uires that the government provide some treatment. Otherwise, the hospitalor other related facility hewmes a prison holding indefinitely those innocent of any offense. Sec Wyall I'.

Stickney, supra, 7114-X5; f)ol1ald.wJ1l I'. O'COl/nor, 493 F. 2d. 507.520 ( 1974), I'al'a/ed and remanded un otherKmund.l, 422 V.S. 5tlJ (1975); Nell' }'urk .'oitate A.I,~·I/.I()r Retarded ChiMren ". R(}d(~/('lIer, 357 F. Supp. 752(N. Y. 1973); WeI.I'lh I'. l.ikim, 373 F. Supp. 4117 (Minn. 1974); f)iXOI1 ". J1''einherKu 405 F. Supp. 974 (D.C.1975).

h 1981] HOUSE - No. 6362 41

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ing conflicts were brought out in the open in an effort to reconcile andresolve them.'

Nature of Relief Once begun, the cases multiplied. One group ofcases concerned the right to treatment of mentally ill and retardedpeople in institutions. 2 A second group of cases concerns disabled orexceptional children who have not received suitable public education. J

Vindicating each of these rights has required the reform of both theinstitutions and the bureaucracies administering them. The relief ordered by the courts in such litigation has followed a fairly consistenttrack. Decrees mandating improved institutional conditions have setforth standards in three general areas: humane physical and psychological environments, improved quantity and quality of staff, andindividualized treatment plans for all residents. 4 An abundance ofdetail is common in the drafting of the standards which cover preciserequirements on a broad range of issues, e.g., the number of staff oneach work shift, methods of laundering linen and personal clothing,privacy in bathrooms, pest control, the nature of educational andrecreational programs, record-keeping, and patient-review procedures. In the cases related to the right to education, the decree standards include methods for identifying excluded or misplaced children,due process procedures for evaluation and placement, and standardsfor placement in programs appropriate to the child's capacity. Severaldecrees pr<?vide monitoring and enforcement mechanisms establishedby the court to assist in the implementation process. Such mechanismshave included citizen committees, panels of experts and special masters. Extensive reporting requirements on compliance efforts keep thecourt informed on the pace and substance of implementation.

Wyatt, The Precursor. The most widely discussed of the institutioncases is Wyatt v. StickneyS involving mental health facilities administered by the State of Alabama. There were two federal district courtorders issued, one for mental institutions and one for aninstitution for

----------,~I. Judge David L. Bazelon, "The Impact of the Courts on Public Administration," 52/11e1iullu I.U\I' JOl4r11u/IO I,

103 (1976). Judge Bazelon is Chief Judge. United States ('uurt 01 Appeals lor the District of ColumbiaCircuit. •

2. The landmark case is Wrulf ". Sticklley, 325 F. Supp. 7M 1(Ala. 1971), qll'eI,wh. 1I0lll, ~ :rulf ". Aela/wlt, 503F. 2d. !305 (5th Cir. 1974).

3. MiIIJ \'. Bourd (~l Educution, 34M F, Supp. M66 (D.C. 1972); PenllJyl,'ulliu A,u'll./or Retureleel Children ".PenIlJyl"Ulliu, 343 F. Supp, 2711 (Pa. 1972). For discussion, see Herr, "Retarded Children and the Law:Enforcing the Constitutional Rights of the Mentally Retarded," 23 .~:rrucu,H' I.u\l' Rl'I'ie\l' 995, 1002-20(1972).

4. Note, "Implementation Problems in Institutional Reform Litigation." 91 Hun'uTiII.ull' ReI'iell' 4211. 430(1977). .

5. 344 F. Supp.3'-5. 344 F. Supp. 387 (Ala. 1972), tiffd ~n part, '....)'011 v. :tderholt. 503 F. 2d. 1305 (1974).


the mentally retarded. Conditions in the institutions constituted classicexamples of circumstances that would shock the conscience of anyreasonable person: dangerous facilities, severe overcrowding, inadequate staffing, denial of basic necessities to residents, and brutality intreatment of residents. I Confronted with the record, the federal districtcourt held that patients involuntarily committed to the institutions,would be denied their liberty without due process of law unless thestate provided them a realistic opportunity to be cured or to improvetheir conditions, and that such an opportunity would require "( I) ahumane psychological and physical environment, (2) qualified staff innumber sufficient to administer adequate treatment, and (3) individualized treatment plans."2 To assure that constitutional rights found tobe violated would be observed, 'the court ordered state officials toimplement fully and with dispatch each of the 35 specific requirementsfor the institutions housing the mentally ill and 49 specific requirements for the institution serving the mentally retarded. Compliancewith the court's order required massive budget increases for the institutions. 3 The district court emphasized that "a failure by defendants tocomply with this decree cannot be justified by a lack of operatingfunds,"4 but it did not decide what affirmative steps it would take if thefunds were not made available. The Court of Appeals for the FifthCircuit affirmed the district court, and noted that compliance with theorder would require a substantial expenditure of state funds but addedthat lack of resources was no excuse for noncompliance with the order.

The order in the Wyatt case set the pattern for subsequent ordersconcerning mental health facilities but it did not serve to circumscribethe exercise of judicial power over state expenditures in the field ofmental health. In a celebrated case concerning New York's Willow-

I. Wyatt v. Aderhult. supra. 1310-13,

2. Wyatt v. Stickney. supra. 375

3. hug, University of Pennsylvania Law Review. supra, 721. For example, to ensure a humane physicaland psychological environment, the court ordered that no more than six persons be conlim:d to one room,that each patient be provided specified clothing and furnishings, lhat toilets and showers ofsufficient numberand meeting detailed specifications be installed, that day room and dining facilities meet specific size andfurniture rC'luirements, and that heating and air conditioning adequate to maintain a specific range oftemperatures be provided. To ensure adequate staffing, the court established a minimum stalling ratio of twopsychiatrists, twelve registered nurses, ninety-two nurse's aides, seven social workers, and fifteen food

service workers, among others, for every 250 hospitalized mentally ill patients, 'and no h:wer than onepsychologist, one social worker, one vocational therapist and one registered nurse, among others, for evcrysixty mildly retarded individuals. Finally, to ensure e'lualized treatment or habilitation plans, the courtdetailed the contents of such a plan, including specification of the kind of personnel that must periodicallyreview these plans and the minimum number of such reviews annually. See Wyatt v. Sti£'icney, supra, 380-84,398,40346.

4. Jt:l'att v. Stickney, Jupra.

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brook State School for the Mentally Retarded, the court, althoughrejecting the notion of a constitutional right to treatment as expressedin Wyatt, found that Willowbrook residents did have a constitutionalright to protection from harm.' To guarantee that right, the court notonly ordered an. increase in staff personnel to improve the staff-resident ratio, but also, because of the state's inability to recruit qualifiedstaff at prevailing wages, ordered a ten percent increase in wages forphysical therapists. 2

The Wyatt model was further extended in Welsch v. LikinsJ concerning a Minnesota institution for the mentally retarded. The districtcourt there ruled that the physical plant and staff failed to meetconstitutional conditions and ordered substantial improvements. Butit went further by holding that the mentally retarded residents werealso constitutionally entitled to the least restrictive environment consistent with their needs, thus requiring the creation of additional, lessrestrictive, facilities for their care.4 Compliance with the decree necessitated a substantial allocation of money, an allocation which the legislature had previously failed to provide. 5 The district court thereforeordered the state to comply with its decree as if adequate appropriations had been made, notwithstandingthe legislature's failure in fact tomake the appropriations, and enjoiJl~dcompliance with all Minnesotaconstitutional and statutory provisions concerning the raising andallocating of funds inconsistent with its decree,tl

On appeal, the Eighth Circuit approved the district court orderdetailing the required substantive improvements but it vacated theorder to spend money as if it had already been appropriated, notingthat serious questions concerning the judicial power to issue such anorder might be avoided by action in the forthcoming legislative session.The Eighth Circuit made clear, however, that the district court ordermust be fully complied with, unless the state decided to close thei~stitution or release substantial numbers of its residents.7

Prison Cases. The cumulative financial impact of the lower federalcourt orders involving prisons is likely to exceed even that of the

I. Nell" ror/.. Siale A.uol"iatio/l.!or Relarele(1 Chi/elrt'll, 1/lC". I'. Rockt:/eller, J57 1-. Supp. 752 (N. Y. 197J ,.

2. Ihid., 769.

J. J73 F. Supp. 4117 (M inn. 1974), a.l.l'eI i/l pari, I'acaleel 0",1 reI/wilt/eel in pari, 550 1-. 2d. 1122 (llth Cir. 1977 ,.

4. 373 f. Supp., .lupra, 502.

5. Ihiel.• 497-911.

6. 550 F. 2d., 1129.

7. Ibid. 1132-33.


mental institution cases. 1 The same language appears in the prisoncases, viz., lack of resources is no excuse for failure to comply with thecourt orders; if a state is going to operate a penitentiary system, it isgoing to have to be a system that is countenanced by the Constitutionof the United States.2 The courts' rationale is that they are not reallyordering the spending of money but rather are merely saying that thestate must spend the money unless it exercises its option to close itsprisons.3

Cost Impact. Estimates of the cost of compliance with the federalcourt orders in the institution cases are rare, but the limited availabledata indicate that the sum will be substantial. Louisiana appropriatedmore than $106 million for capital improvements following a courtdecree concerning the Angola state penitentiary, compared with approximately $1 million annual total capital outlay previously made forall state correctional facilities. It also added more than $18 million ofsupplementary operating funds to the prison budget, an amount almost equal to the total operating budget of the entire system at thattime.4 These added sums were exclusive of the court order concerningthe Angola facility, as well as costs required to meet other federal courtdecrees affecting other Louisiana prisons.5 Compliance with one Alabama prison order has been estimated at more than $28 million, an·estimate that does not include costs of improving medical care in theAlabama prison system mandated by another federal court order.6

When a court determines that the vindication of legal rights ofmental patients requires a menta~ health system to triple its budget,double its staff, reduce its institutional population by 70 percent, andrestructure internal administration patterns and inter-agency relationships in a few years - not atypical goals in right-to-treatment litigation- the implementation of reform policies creates fiscal, bedlam.The consent order in the litigation concerning the Willowb-rook StateSchool in New York mandated that the institutional population be

I. Frug, supra, 723 et seq. •

2. Holt 1'. San·er. 309 E Supp. 362. 385 (Ark. (970). aHa 442 F. 2d. 304 (8th Cir. 1971).

3. (oIllIH}r/' i\ell York Statl' A.I.I ·/I.!ur Rl'tart//,cI (hilclrm, Ille. I'. Rode.!ell/'r. 357 f. Supp, 752. 7611 (E. D.N. Y.1973) ("Nor can the court direct the closing of Willowbrook ... 'The State has no realistic option open to it todiscontinue its mental hospitals and training st:hools forthwith:"[citation omitted] "'ith (jates \'. ('oilier. 501F 2d. 1291. 1320 (5th Cir. 1974) ("But the district court did not require that the legislature appropriate monies

.!orprisoll reform: it .Iilllply heM, ill keepill!!. lI'ith a plethora IJ/ pr/'t'I't/ent Oil t!ll'.!wul.llwrtagl'PI'llh/t'III. thatifthe State chooses to run a prison it must do so without depriving inmates ofthe rights guaranteed to themhy the federal constitution, ') (Emphasis in original).

4. Williams v. Edwards.,547 F. 2d. 1206. 1318 (5th Cir. 1977).

5. Ibid, 1219. n. 9.

6. Frug. supra. 727, n. 85.

216~

Part 2. Problems Incident to the Remedial ProcessIn Institutional Reform Cases

I. Note. "Implementation Problems in Institutional Reform Litigation." 91 Harvard Law Revie\l' 428, 434-35.n. 31 (1977).

2. Frug. Supra. 730.

As set forth in the previous discussion, the efforts of federal courtsseeking to reform constitutional and statutory defects in the structuresand practices of various social institutions are largely the result ofrecent expansion of constitutional and statutory protection of civilrights. VioJations of these newly-defined rights are not readily cured by

reduced from 3,000 to 250 in six years. As a result, the annual budgetfor each resident of Willowbrook increased from $4,600 to an estimated $26,300. Estimated implementation costs in the first fiscal year werean additional $15 million in capital construction and $14 million inoperating expenses. Staff at Willowbrook has increased from 2,600 to4,350 in three years. I

The impact of the institutioncases on the state treasuries is not likelyto be eliminated by the option suggested by some courts that the statecan avoid spending money by closing institutions. These institutionscannot be closed. In practical terms, the states have no choice but tocontinue to operate prisons and facilities of some sort for the mentallyill and mentally retarded. Thus, a court decree detailing what thegovernment must do to continue running its prisons or mental institutions is the functional equivalent of a mandatory injunction that it dothose things.

Finally, the impact on the ·state treasury is not likely to be easilyabsorbed by using money allocated to lower priority items elsewhere inthe budget; money that can be made available in this way is limited.The financial drain on the states is aggravated by the fact that the courtdecrees, envisioning minimum standards for staffing and operation ofthe facilities, necessitate providing a mandated amount of money tothe institution in every annual state budget on a permanent basis. It islikely that a point short of full compliance will be reached after themost outrageous conditions have been eliminated; funds necessary forfull compliance will become extremely difficult to find, if not simplyunavailable. It is then that the confrontation between the federaljudiciary and the states over control of the state treasuries is most likelyto occur. 2

45HOUSE - No. 63621981]arch

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46 HOUSE -: No. 6362 [March l~

grants of monetary relief or even simple injunctive orders. The courtshave therefore been involved to an unprecedented extent in designingand implementing changes in the operations of complex social institutions. The necessarily speculative nature of the institutional planningrequired to devise these remedial regimes means that no single order ofrelief can be regarded as definite and final; implementation ofa remedyand evaluation of defendant's compliance continues long after theinitial finding and evaluation.

In the discussion that follows, which draws heavily upon a recentexhaustive analysis of the remedial process in the institutional reformcases,1 the focus is on one aspect of that study: the problems facingdistrict courts in devising remedies and the efforts made to implementthese remedies effectively.

Intricacy uf the Prublem

The intricate structure of the institutions subject to reform increasesthe involvement of the courts in the remedial process. Such institutionsare generally large, with many component parts representing conflicting interests. Furthermore, the ramifications of court-ordered institutional reform often extend well beyond the institution itself, especiallysince these institutions frequently are publicly funded and may haveelected officials among their principal policy-makers. It is the opinionof the author of the aforecited project report that the special nature ofthe institutions and the complexity of the remedies necessary toachieve their reform have led the courts to develop a new jurisprudenceof public law remedies. Although grounded on recognizable equitablepowers of the courts, this new area of law nonetheless raises seriousquestions about the legitimacy of the judicial eff~rt to accomplish suchinstitutional reforms, including doubts about the ability of the courtsto adequately manage such changes.2

Formulation and Implementation of Institutional Remedies

Institutional relief cases are generally as protracted and complex asthe relief they produce, frequently involving redeterminations ofliabilityand reformulations of relief. The finding of system-wide violationsdemands the 'imposition of a remedy that restructures the defendantinstitution by altering its policies and practices. Thus, to devise an

I. Special Project. The Remediul PrOl:c~s In Inslitulionul Reform I.itigutioll. 7/l Culumhiu /.UII' Rl'l'i/'II 7/l4( 197/l).

2. Ibid. 789.

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effective remedy, the courts exercise fully the broad and flexible equitable powers they possess.

In the typical institution case, the court responds to the default of thegovernmental bodies primarily responsible for the deficient institutions, and, although sitting to adjudicate the rights of individuallitigants, it must also fill the broader political role of policymaker forthe defendant institution. Discharging these two obligations involvesbalancing the private rights of the plaintiffs and the public interest inthe operations of these institutions. The resulting judicial decree oftenresembles a legislative or administrative act, broadly societal in outlook rather than particularistic. I

While critics argue that courts should avoid these incursions intolegislative or administrative policymaking as beyond their competence, such avoidance is probably no longer possible, since the courtshave established the rights involved in these cases as both importantand enforceable, and litigation remains the last resort for otherwisepowerless groups denied these rights in the traditional forums. 2 Thus,courts do not refuse to hear these cases; instead they attempt toaccommodate the special problems wrought by the fulfillment ofadministrative and legislative roles in a judicial setting.

Jurists in these cases face two sigpificant problems: their inability todevelop and use social information properly, and the common unwillingness of defendants to provide adequate assistance. Each problemseverely limits the possibilities for rapid implementation of an appropriate remedy. Parties to the suit are the primary sources for socialinformation. They submit this information as expert evidence, including both testimony and documents and other written material. But thecourt cannot necessarily rely on the parties to produce the neededinformation. The parties are adversaries and do not provide the balanced presentation necessary to give the court which is supervisingsocial reform an adequate understanding of the remedial problems.

Even when the necessary information is available, judges face difficulties in interpreting and applying it. Misuse of social information isespecially serious because its effect may not be apparent for severalyears after the implementation of the decree. Therefore, the standardjudicial solution to the problems of interpreting and applying socialinformation is to rely on the expertise of other participants in remedyformulation.I. H~j.ow-itz. suprQ~-7. 32-45: 51-56; C~yes. s~pru. 1297.

2. Special Project• .~upru. 791.

48 HOUSE - No. 6362 [March]

The court generally requires defendant's assistance in remedy formulation both to minimize judicial intrusiveness into the institution'saffairs and also to take advantage of the defendant's superior knowledge of its own operation~s.

Although the issuance of contempt citations offers one technique fordealing with a recalcitrant defendant, a better judicial response is toseek a substitute, e.-g., plaintiff, master, etc., which may have the beneficial consequence of encouraging the defendant to become more cooperative. A defendant committed to the status quo would obviouslyprefer its own remedy to one devised by the plaintiff, the court, or acourt-appointed officer.

Options in Formulating Remedies

A court has a variety of options when choosing a method of formulating a remedy: (l) remedial abstention, (2) court imposition of theremedy, (3) court selection of the remedy, (4) master-supervisedremedy formulation and (5) negotiated remedies.'

A court choosing remedial abstention will retain jurisdiction toinsure compliance with the applicable constitutional standards, whileallowing the state officials involved an opportunity to submit plans forthe correction of the unconstitutional procedures.2 Court-imposedremedies are unilaterally ordered by the court without outside contribution. 3 The courts choose court-selected remedies as well, but thepresentation of suggestions by the participants precedes the judicialchoice.4 In master-supervised formulation, the court refers the determination of remedial issues to an expert master. s Negotiated remediesare developed and agreed to by the participants, after which the courtexamines, and usually accepts, their proposals,t'

Each alternative reflects a different accommodation of the need forjudicial control over the remedy with the need for continuous participation by the parties. Although the parties always present the basicbackground facts to the court, the extent of their participation in theformulation of the terms of the decrees vary widely.

I. Ihid.• 796.

2. Ihid.. 797-IWO.

3. lhid.. XOO-!W2.

4. Ihid., X02-XOS.

5. Ihid., X05-X09.

6. Ihid., X09-HI2.

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Negotiated Remedies

Negotiations between the litigants outside the courtroom offer away to resolve some or all remedial issues. The court must approve thesettlement, and it, or its delegate, often assumes some role in thenegotiation of the terms of the decree. The court's participation in thenegotiations may be minimal, in which case the court merely orderstheir occurrence, or it may be more active, in which case the courtengages in discussions with the parties.

Although a negotiated remedy involves all participants in its formulation, it reduces the court's role in the process. Ideally, a negotiatedremedy should offer the advantages of the other approaches to remedyformulation. It precludes the selection ofa remedy in which the defendant does not acquiesce, thus minimizing intrusiveness and easing implementation. The extensive exchange of information between plaintiffs and defendants also should enhance the resulting plan's viability.Finally, plaintiffs agreement to the remedy should indicate that theplan responds adequately to the violations, although the agreement ofplaintiff and defendant does not relieve the court of its duty to scrutinize the plan carefully. I

Negotiations that succeed partially remove some issues from disputebefore the court assumes control of remedy formulation. In othercases, the parties stipulate the applicable standards after negotiationsallowing hearings and other proceedings to focus on remedial specifics.More generally, negotiations and cooperation between the parties canbe helpful to the court by making these cases less difficult and by layingthe foundation for later selection of a remedy from the parties' adversarial presentations.

Negotiations producing consent decrees are more common in casesinvolving institutional conditions, such as mental health and prisonlitigation, than in equal protection cases such as school desegregationchallenges. The parties can find themselves litigating while still negotiating, and the threat of a judicially devised remedy becomes only anadditional pressure to conclude the negotiations rapidly. Differentsituations will require different approaches. One analysis of remedyformulation in the institutional cases suggests, however, that there aretwo important procedural steps courts should consider when formulating remedies. One is to involve all the parties in remedy development.The other is to obtain by the appointment of a special master a neutral

r. Ibid•• 810.


source of expert information and a knowledgeable delegate who willpush for a prompt and adequate remedial decree. I

The Decree

The end product of remedy formulation is the issuance of a comprehensive remedial decree. Since the principal aim of the type of civilrights litigation ~nder disc'Jssion is institutional reform, affirmativerelief in the form of a consent decree or permanent injunction is theprincipal reward of success. The main objective of this decree orinjunction is the elimination of the wrongful conduct or condition thatled to the 'lawsuit. A typical decree seeks to realize affirmative goals byrequiring a comprehensive. pattern of reform by the defendant.

In many institutional cases, the affirmative program is of suchextensive scope that its realization involves a basic restructuring of theprocedures or organization of the defendant institution. Generally thisrequires ongoing remedial action extending over a substantial periodof time. This ongoing remedial regime implies continued judicial involvement, which is not terminated by issuance of the decree. In thesecases, implementation of the decree becomes a major judicial concernand a major drain on judicial energies.

Judicial decrees in these civil rights cases have both substantive andadministrative aspects. The substantive aspects are the actions orderedby the court to remove illegal conditions. The administrative aspectsare the means adopted to effect the substantive measures ordered. Thedistinction between the two is one of purpose and legal basis. Arrangements to monitor compliance, to mediate disputes, and to superviseimplementation are administrative in nature.

Implementation of Remedies

The need for continued judicial involvement, after the determination of a violation and the formulation of a remedy, is a fundamentalcharacteristic of institutional reform litigation. Without judicial involvement in implementation, the decree may prove to be merely apaper victory for the plaintiff. Consequently, it is argued, conceptionsof the role of the federal trial judge must be broadened to recognize hisincreasing post-decretal responsibilities.2

I. Ihid, KI32. lhicl., K15.

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The nature and extent of, as well as the need for, post-decretaljudicial involvement varies according to the nature of the relief ordered, the attitude of the defendant, the extent to which compliancerequires cooperation by organizations or persons not originally subjectto the court's orders, the amount of resistance by the public or em':'ployees of the institution, and the skillfulness with which the originaldecree was drafted. 1

Aspects of necessary continued judicial involvement consideredbelow are (' I) retention of jurisdiction, (2) revision of substantiveaspects of the decree, (3) techniques available to administer the decreeand (4) judicial response to noncompliance.

I. Retention of Jurisdiction. This is a procedural device mandatedby the Supreme Court which enables a court to oversee implementation of its order. A variety of specific objectives underlie retainingjurisdiction: revision of the remedy, consideration of the adequacy of'plans and reports required of the defendant, entry of additional orders,and clarification of the meaning, scope or application of any term ofthe order.

2. Revision of Substantive Aspects of the Remedy.(a) Defects andAmbiguities. The substantive complexity of the

decree makes it likely that minor modifications and clarifications willbe required from time to time.

(b) Compliance Problems. In the face of noncompliance by thedefendant, or when the defendant cannot implement the remedy without the cooperation of others, the court may choose to modify thedecree substantively.

(c) Changed Factual Circumstances. Modification sometimes isrequired where a situation has evolved making implementation inappropriate or unfeasible.

(d) Changing Legal Standards. Evolving legal standards mayrequire the updating of the remedy.

(e) Inadequacy of Original Decree. In some instances, theremedy may have simply proved inadequate to achieve a constitutionally sufficient result. For a remedy to be constitutionally sufficient, itmust be effective and the courts have a duty to adopt effective remedies.

I. Cf. Alldt'f,WII \', Redmull. 429 to. Supp. 1105. 1123. n. 63 (Del. 1977). a record III prompt compli;lOce withcourt orders. with M(}f~UIl \', M('DIJI/(Ju~Ir, 540 F. 2d 527 (I st Cir. 1976) 1'('/"1. t/t'llied, 429 U.S. 1042 (1977).the South Boston High School casc having a long history 01 obstructiun which led to impositiun 01

receivership.


3. Administrative Techniques. A wide variety of techniques areavailable to respond to the problems of resolving disputes, monitoringcompliance and supervising defendant's actions. The most relevantfactors in choosing administrative techniques are the type of case andthe facts of the individual case. Reapportionment cases generallyrequire a single action remedy - redistricting - and this simplifies thechoice of administrative technique. Considerations offederalism impelthe courts initially to direct the state legislature to develop a satisfactory reapportionment plan. Greater federal judicial intrusion into aprocess so preeminently a state function is only warranted if compliance is not forthcoming. 1 But where the decree requires wholesalerestructuring of a continuing institution and a performance that cannot be measured in one or two simple acts but in a whole course ofconduct, the court must take a more active administrative role from theoutset, though considerations of federalism favor the choice of theleast intrusive technique and constrain the traditional flexibility ofequity. No administrative technique can be effective unless the courtconveys to the parties its commitment to the remedy.2 Among administrative methods employed are the following:

(a) Party-Centered Administration. The court relies on the partiesand assumes a passive role unless and until solicited by one of theparties. The burden is placed on plaintiff with a common requirementthat defendant submit compliance reports.

(b) Reduced Reliance on Parties. The court or its delegated representative assumes the pertinent responsibilities.

I. Direct Judicia/Initiative. The court will set hearing dates toconsider compliance reports and take any necessary action, or resort tovarious informal methods to further implementation.

2. Use of Court-Appointed Agents. These agents are identifiedby a variety of titles: Receiver, Master, Special Master, Master Hear-

ing Officer, Monitor, Human Rights Committee, Ombudsman, Ad- ~i.. i.'....••.~.,•.,_

ministrator, Advisory Committee, Implementation Committee, Audit ~I'

and Review Committee, Master's Committee, Biracial Committee,

I. Dicta have suggested that administrative techniques should be the least intrusive possible; see Cruz v. &10,405 u.s. 319,321 ("Federal courts sit not to supervise prisons but to ... enforce constitutional rights"). Onoccasion, however, the most intrusive of techniques, receivership. has been approved; see Morgan I'.

McDonough, 540 F. 2d 527,534 (1976), cer/. denied, 429 U.S. 1042 (1977) ("district court demonstrated bothrestraint and wisdom in selecting receivership option").

2. See Special Project. supra. 823, n. 288 citing case examples of negative effects ofcourts failing to vigorouslyenforce orders.

arch 1981] HOUSE - No. 6362 53

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and simple committee. For clarity, the terms used below are master,monitor, mediator, administrator and receiver. I

Master. The master's role is to gather information and make recommendations. He reports to the court and, if required, makes findings offacts and conclusions of law. In the remedial phase of litigation, themaster's principal role is to assist the court in formulating the substantive remedy, rather than in implementing it.

Monitor. The monitor's role is to report on the defendant's compliance with the decree's goal. In this task, he assumes one of theplaintiffs traditional roles, but as an agent of the court, he shouldensure that it receives unbiased and reliable compliance information.

Monitors are appropriate if the remedy is complex, if compliance isdifficult to measure, of if observation of the defendant's conduct isrestricted. When the defendant is a closed institution, such as a prisonor mental hospital, observing compliance may be difficult, and thenmonitors will be appropriate. In short, use of monitors is called forwhenever the customary techniques of measuring compliance - plaintiff monitoring, compliance reports by defendant, hearings to determine the extent of compliance, inspections of facilities, and review ofinmate complaints- prove inadequate.

Most court-appointed monitors are neutral persons who act asagents of the court. The monitor must be given sufficient authority andfacilities to gather needed information. Monitoring techniques varycase by case. In complex situations the monitor must be provided witha staff. The legal status of monitor reports is closely related to thequestion of their reliability. If the monitor has expertise in the areainvolved, his reports will carry weight and be respected by the court.

Mediators. A mediator is a delegate whose primary responsibility ishandling disputes over the decree's meaning, compliance standardsand the pace of compliance. In addition, the mediato~must resolveindividual grievances that arise during the remedial regime. The mediating role expands when the mediator is authorized to petition thecourt for an order resolving a dispute before it according to its recommendations. The mediator develops into an arbitrator when given thepower to render final decisions in disputes.

Administrators. The administrator is the most innovative and unusual of the devices utilized by the courts for remedy implementation.The administrator's role extends beyond that of master, monitor or

I. For fuller discussion of the roles of these court agents, see Special Project. supra. 827-837.


mediator, but unlike a receiver, the administrator supplements, and'does not replace, the normal management of the institutional defendant. The administrator acts on his own initiative to implement theremedy and has an executive role.

Appointment of an administrator is most appropriate if implementation is complex and difficult to supervise. The complex actionsrequired to implement comprehensive prison and mental hospitaldecrees are appropriate occasions for appointment of an administrator. An administrator may also be called for as a reaction to noncom~

pliance with the court's orders.The reluctance of the courts to use administrators in areas where

they could be effective is probably due to considerations of equity andfederalism, as the appointment of an administrator is an intrusivetechnique of remedy implementation. ,

The administrator may be either a single individual or a committee.A single administrator, if trusted by the parties, is probably mOreeffective, as it avoids establishing a cumbersome bureaucracy. Butwhen breadth of expertise is important, a committee of experts is thebetter approach. An administrator's powers normally include monitoring and mediation, but are more extensive. The administratornormally is given powers to supervise, coordinate, approve, or evencommand' actions of the defendant to implement the remedy. Thisinvolves a substantial delegation of powers, either with consent of theparties or imposed by the court. For the administrator to be effective,the court's coercive and punitive powers must back his actions.

Receivers. When cooperation from defendant is not forthcoming, areceivership may be appropriate. In a receivership, a court-appointedofficer replaces the defendant's officers either completely or temporarily and for limited purposes. Obviously, removing state political offi-

. cials from authority is more drastic than merely forcing them to actconstitutionally. Although the traditional strict restrictions on its usehave been shed, receivership remains a device of last resort, to be usedonly when less intrusive devices have failed to achieve compliance. I

In the Boston school desegregation litigation, Judge Garrity designated a temporary receiver for South Boston High School followingprolonged obstruction by the school committee, school administrators, faculty, and community groups, and a steady deterioration ofconditions at the school. The United States Court of Appeals for the

I. The history of receivers is discussed in Comment, "Equitable Remedies: An Analysis of Judicial Utilizationof Neoreceivers to Implement Large-Scale Institutional Change," 1976 WiscolUin Law Review 1161.

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I. MorKan I'. J/d)01WUKh, mpra., 535.2. In N('I\' rork SltJle A.~.HJdal;uJl Fur Relarded Chi""en II. Carey, 631 F. 2d 162 (19110), the U.S. District

Court's adjudging the Governor of New York in contempt for failure to lund a Review Panel established by aconsent decree was reversed by the Circuit Court of Appeals on the ground that to comply with the decree theGovernor would have to violate the Constitution and the laws of the State of New York .

First Circuit affirmed, relying on the court's equitable powers and thesimilarity of the receiver's duties to those of masters and administrators. But the court stressed the narrowness of its approval, stating that"the substitution of a court's authority for that of elected and appointed officials is an extraordinary step warranted only by the most compelling circumstances ... The receivership should last no longer thanthe conditions which justify it make necessary ..."1

Judicial Responses to Noncompliance

The radical changes that many civil rights decrees require may bestrongly resisted by defendant institutions. Noncompliance is frequently a problem. Confronted with noncompliance, a court intentupon enforcing its decree has a variety of alternatives. It can threatenthe defendant or hold the defendant in contempt. It can tighten thesubstantive provision of the remedy or it can shift to a more vigorousand intrusive administrative technique.

Judicial Threats. Threats have a flexibility that encourages theircreative use. Since a threat is not appealable, the court may makethreats that might not withstand review or that it might not be willingto carry out, e.g., close a mental institution, release the inmates. Theinsecurity of defendant's position will presumably promote implementation.

Contempt PoY;'ers. The contempt power of the federal courts is moreoften raised as a threat than employed in the implementation stage ofinstitutional reform litigation. Though reasons are rarely given, considerations of law, policy, and practicality dictate restraint in actuallyusing the contempt power. In school, prison and mental hospital cases,the named defendants are members of the large bureaucracies, inwhich responsibility and control are diffused. Individual defendantscan offer as reasons for noncompliance lack of funds, lack ofcooperation from others, legal obstacles to implementation, disobedience bysubordinates or disruption caused by community violence. Defendant's ability to comply is a precondition to a finding of contempt.2

Considerations of efficacy also militate against using the contemptpowers to implement institutional relief. Contempt citations may in-

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crease tension and polarization and therefore can be counterproductive, since implementation ultimately depends on community acceptance of the order's legitimacy, even if not of its goals. Cooperation ofthe staff of large institutions is also essential to implementation. Creation of martyrs to the judicial process is likely to undercut this neededsupport and cooperation. On the other hand, a contempt citation maysometimes publicize offensive conditions (such as in a mental hospital)and mobilize support for their improvement rather than increasingopposition to the decree.

Tightening Substantive Provisions of the Decree. The court canmake the remedy more specific, imposing tighter constraints on thedefendant.

Revision of Administratives Aspects. The court may choose a moreintrusive form of administration. Appointment of a monitor, o'r anadministrator or placing the institution in receivership are all coercivemeasures when the court is faced with noncompliance.

End of Remedial Regime

Although courts have generally recognized that the sooner they candischarge their jurisdiction over a case, the better for everyone involved,they have usually found it difficult to end quickly their involvement insituations requiring institutional reforms. In institutional reform litigation the nature of the decree and the requirements of implementingit are additional sources of lengthy judicial involvement.

Generally the specific provisions of the decree determine the duration of the remedial regime. In fields where theories, standards, and thetechniques are rapidly evolving, as in the study of prisons and mentalhospitals, the decree may age badly. Nevertheless, a -defendant insubstantial good faith compliance can presumably obtain judicialsanction for alteration of subsequently inappropriate remedial provi-sions. In drafting the standards to which the defendant will permanent-ly be held, the court, it is argued, must be sensitive to this need, and to (,the long-term effectiveness of the remedy. I

Part 3. A Rebuttal to the Critics

In most of the published commentaries on the institution cases, theauthors have been sharply critical of the role of the courts either in

I, See Special Project. supra, 844.

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terms of the manner in which the federal judges have exercised controlover defendant institutions (the "imperious" judiciary) or the degree towhich the courts have intruded upon traditional functions of the otherbranches of government (the "imperial" judiciary).

As indicated in previous sections of this report, some of thesecommentators assert that the institution cases are not merely interesting lawsuits containing new law but an entire new form oflitigation. Asshown in the review of these cases and in excerpts from their commentaries, some authors find novel procedural and remedial aspects, perceiving an evolution of what was a private, dualistic and remediallylimited system of dispute resolution into a public, multipolar andflexible forum for the airing of social grievances. Others stress adifferent kind of innovation, one that lies not so much in the procedural and remedial aspects as in constitutional law and the doctrine offederalism. Whatever the category of criticism, they do agree that thecases break new ground in procedure or constitutiona~law.

In one of the more recent contributions to the literature of theinstitutions cases, the foregoing critics are taken to task by a team ofscholars who, in a strong rebuttal, argue that there is far more thatlinks than divides the so-called "new'" litigation from other litigation,either past or present. I The main thrust of their arguments is that thecritics have missed the mark in their interpretations of the institutioncases. Conceding that there are novel elements in these cases, theycontend, nevertheless, the novelty lies in substance and power. not inprocedure and remedy. For example, they argue, in institution'al casesthe courts have found constitutional and statutoryentitlements heretofore undreamed of, which deserve far more discussion because theyrepresent fundamental choices respecting the distribution of socialpowers.

Lines Qf C,uicism Challenged

In their analysis of institutional litigation, Eisenberg and Yeazellnote that most of the commentary on the institutional cases suggeststhat something drastically new is afoot. 2 To some, these cases aremerely a manifestation of "judicial activism".3 Other critics, they note,more precisely evoke two constitutional themes to explain how judicial

I. Theodore Eisenberg and Stephen C. Yeazell, "The Ordinary' and the Extraordinary in Institutional Litigation," 93 Harl'arel Law Review 465,466 (1980).

2. Ibid.3. Ihid., 472 citing Frug, supra, 716.


behavior in institutional litigation cases violates traditional Separationof Powers principles. One line of criticism argues that the administration of institutions is an executive function; I other writers seem moretroubled by the fear that courts might actually enforce their decrees byordering the expenditure of public funds. 2

A second line of criticism argues that institutional litigation violates,principles of federalism. Eisenberg and Yeazell acknowledge that onecan employ several recent cases to construct a plausible argument thatlitigation involving state institutions transgresses some limit on thelegitimate authority of the federal judiciary. Briefly, as discussed previously, the argument runs, the federal government generally defers tostate authority in areas of traditional state functions; these functionsinclude the operation of prisons, hospitals and schools. Thus,' thefederal courts should not assume administrative responsibilities forthose state institutions3

Commentary focusing on the procedural novelty Qf institutionallitigation accents that the remedial phases of these cases are extraordinary.4 Critics describe the remedial phases of these cases as a "newspecies" of litigation, representing a "new remedial activism" by judgesand involving "innovative and expansive remedies".5

Related to, the remedial phase is commentary on the newsupervisory responsibility assumed by the courts. Open-ended and detaileddecrees are criticized as involving courts in performing administrativeand supervisory tasks for which they have few qualifications.6

Historical Continuity in Judicial Supervision

Eisenberg and Yeazell contend that in making such assertions, thecritics implicitly assume that in traditional litigation the courts use less

,"extraordinary" methods to resolve disputes. But the authors state thecritics' vision of the traditional legal system is too narrow, - that"extraordinary" elements are present in traditional litigation and

I. Ibid., citing Nagel, supra, 662 and Mishkin, supra, 9511.

2. Ibid., citing Frug, supra, 733 and Mishkin, supra, 959, 965, 969.

3. Ibid., 473 citing National League (~lCities v. Usery, 426 U.S.1l33 (1976); Rizzo v. Goode, 423 U.S. 362 (1976);O'Shea I'. UlIle/()n, 414 U.S. 4118 (1974); Younger I'. Harri.I', 401 U.S. 37 (1971); Frug, supra, 743-749;Mishkin, supra, 965, 967-97l.

4. Ihid., citing Implementation Problems, 91 Harvard Lall' Rel·iell' 4211, supra.

5. Ihid., citing Robbins & Buser, 29 Stanjiml Lull' Review 893, supra, 894; Nagel, supra, 661, n. 2.

6. Ihid., citing Implementation Problems, supra, 461-63.

I

2

3

4

44new" litigation presents relatively little that is genuinely novel. I Muchof what seems unusual about the new litigation, they say, is in factmerely the use of familiar procedures in novel substantive contexts.

The authors point out that for several centuries the courts haveengaged in the sort of long-term supervision of affairs that has occasioned comment in analyses of recent institutional cases. In the law ofprobate and trusts, courts have developeda series of substantive rulesand special procedures to perform the task of preserving decedents'assets, satisfying creditors' and taxing authorities' claims, and distributing the remainder to beneficiaries. Judges supervise businesses not as an extraordinary event, but as an incident of the entirely routineprobate of an estate. 2 In the process of applying bankruptcy laws,courts have become involved in operating the Penn Central Railroadas well as many other more modest enterprises. In the course of suchlitigation courts routinely handle difficult reorganization cases, passing on aspects of financial structure that are unlikely to be secondnature to most judges. 3 .

In answer to critics' claims that the new litigation lacks an underlying statutory basis for judicial activism, the authors respond thatinstitutional litigation is frequently brought under a civil rights statute,42 U .S.C. s. 1983, which instructs the nation's courts to grant legal andequitable relief for violations of federal constitutional and statutorylaw. Thus, many institutional cases should be viewed as judicial effortsto enforce a congressional mandate rather than as attempts to wrestpowers from the legislature.4

In the author's words:

We do not mean to argue that there has been an uninterrupted use of s. 1983 for the past 100 years. Rather, the newuse of s. 1983 for relief in institutional cases derives from thesubstantive development of constitutional law in the 1950'sand 1960's. The historical discontinuity came not so muchbecause s. 1983 was clarified, see Monroe v. Pape, 365 U.S.197 (1961), but because constitutional rights entitled tovindication were greatly expanded. Even in the absence of s.

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76); I. Ihid.• 474.

'49; 2. A few examplcs of the complexity and Icngth of some trust and probate mattcrs arc discussed to dispel thenovelty of the institutional cases. One case, I" re (jarrell\ EHale, 372 Pa. 43K. ('('/'1. denied. 345 U.S. 990( 1953) took 23 years to dispose of $17 million. involved 26.()()() claims. and led to .NO volumes of testimony.See Eisenberg and Yealell. supra. 4K4-4K5.

3. Ihid.• 4H5-4K6.

4. Ihid.• 4K7.


1983, results in institutional cases in recent years might haverested on direct actions under the Constitution. I

It should be noted that in 1980, the Supreme Court, in Maine v.Thiboutol, held that s. 1983 applies not only to constitutional violations but also to claims that are based solely on statutory violations ofFederallaw.2 .

For the most part, note the authors, critics of prison and mentalhospital cases are strangely silent (,tbout judicial capacity to run largebusinesses, estates, or trusts. 3 Courts have developed and administered, almost entirely on their own, significant bodies of remedial lawrequiring them to engage in continuing supervision of enterprises.4

Courts have become deeply involved in the affairs of that most complex institution - the modern business corporation. In the cour~e ofreceiverships courts involved themselves in the minute details of running large complicated businesses. 5

From one perspective, the authors observe, what is said to be new inthese cases is really only a response to problems of intransigence andcomplexity that the law has dealt with in ""extraordinary" ways forcenturies. Nor does detailed supervision of complex, continuing matters signal the dawn of a. new judicial day.

Eisenberg and Yeazell admit that two leading institutional cases,Wyatt v. Stickneyft (mental health) and Holt v. Sarver (prisons),?represent substantial judicial intrusion upon legislative and executiveprerogatives. Yet as they note, the courts in those cases began toprescribe the specific details of institutional reform only when it became clear that the state and local officials were not likely to cooperate.(The initial remedial order in Wyatt v. Stickney left the reformation ofBryce Hospital almost entirely to the discretion and good faith ofstateofficials.)8 Assuming that the conditions under review by the courts inthose cases were unconstitutional, the authors find it difficult to im-

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3. Ei~enberg and Yeazcll. .l'lIpra. 4XX.

4. lhid.. 4X9.5. Ihid.. 49/.

ft. 325 r. Supp. 7X / (M .D. Ala.). IIearillK ;1l.I/allllards ordered. 334 F. Supp. 1341 (M. D. Ala. 1971) elllim·ed.344 F. Supp. 373 (M.D. Ala.); 344 F. Supp. 381 (M.D. Ala. 1972). oJI'dsubnom. W,"OIl v. Aderholi.503 F.

2d. !.JlJ5 (5th Cir.. 1974).

7. 300 F. Supp. X25 (E.D. Ark. 19ft9). 309 F. Supp. 362 (E.D. Ark. 1970). a./I'd. 422 F. 2d. 304 (Xth Cir. 1971).

X. Eisen berg and Yeazell, supra. 491-92 n. 141. "Only after it beca me clear that no relief would be forthcomingvoluntarily did the court become involved in the specifics of institutional reform." The story in Holt v. Sarveris similar.

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agine how a responsible court could have avoided issuing an aggressiveand detailed decree.

Eisenberg and Yeazell also point out that some cases considered tobe part of the new litigation are little more than judicial opinionsblessing settlements negotiated by the parties.' At least one decisionadopted the remedial scheme proposed by the defendant health authorities instead of that proposed by plaintiff patients. 2 .lt is concededby the authors that it might be argued that the agreement is reachedmerely because of the threat of judicial action - and, therefore, that thejudiciary. is, in some attenuated sense, seizing power. But, they respond, where the relief ordered in negotiated settlements is agreed toby the defendants, it is, at least presumptively, believed by defendantsto be achievable and desirable. 3 Still, this does not answer the legislature's objection that funds to implement relief are no longer controlledby the appropriation power.

The authors acknowledge t4at the court should pause before ordering relief that will involve judges in continuous supervision of unfamiliar institutions.4 But "it does not seem to be an outrageous abuse ofjudicial authority for courts to supervise state and local authorities inorder to ensure that these officials protect the constitutional rights ofprisoners, patients and school children."5

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On Separation of Powers

Eisenberg and Yeazell pose the question, Are courts displacingexecutive and legislative choices in a way that violates constitutionalprinciples?

Circumstances producing institutional litigation, they say, arise notso much because courts take action in conflict with affirmative legislative and executive programs but because courts are asked to act in avacuum created by legislative and.executive inaction or negleet.6

, The Constitution does not speak directly to the issue. Nor, in their~'t opinion, do the records of the constitutional convention or the debate

surrounding consideration of the Constitution shed much light on thesubject. As noted by the authors, one possible explanation for the

I. Ihid.• 493. n. 142.

2. Ihid.• n. 143 citing So\'ille v. Trf.'odwoy.404 F. Supp. 430 (M.D. Tenn .• 1974).

3. Ihid., 493. n. 144.

4. Ihid., 493.

5. Ihid.• 494.

6. Ibid.. 495-496.


dearth of express discussion of limits on judicial power at the Philadelphia Convention was the preoccupation with the question of thejudiciary's relationship to legislation prior to its effectiveness - whether there should be a Council of Revision. [

The authors also argue that no constitutional provision requires thatexecutive and legislative officials be the sole or final judges of institu

. tional conditions.2

On this issue, one of the commentators cited earlier in this report hasthis observation:

Separation of powers comes in for a good deal of veneration in our political and judicial rhetoric, but it has alwaysbeen hard to classify all government activity into three, andonly three, neat and mutually exclusive categories. In practice, all government officials, including judges, have exercised a large and messy admixture ofpowers, and that is as itmust be.)

According to another scholar, it was never the intent ofthe foundingfathers rigorously to exclude the exercise of the power of one branch byanother:

That one type of governmental function may shade inescapably by degrees into another is not fatal to a conception ofseparated powers properly understood. The founders didnot emulate the framers of the Massachusetts Constitutionby attempting rigorously to exclude the exercise of thepower of one organ by another. The jurisdictional overlapwas designed deliberately to maintain flexible institutionalroles. And an attack on the "inefficiency" of this structurewholly misses the mark. Moreover, the tripartite structurewas not created to promote streamlined efficiency, let alone

to prevent acrimony, but rather to prevent tyranny. That ~. ('•..'.(,,"..,.latter objective retains its normative force. The government ~ .~

was deliberately designed, not to insure the daily workingcomfort of federal officials and legislators, but to enhancethe prospects for personal liberty of the citizenry.

I. Ibid., 497, n. 155 citing several source, on the Philadelphia debates.2.' Ibid., 499.3. Chayes, supra, 1307.

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It is thus fruitless to seek a full understanqing of the separation of powers doctrine by reference to institutions whichcorrespond to a set of hermetically sealed, functional categories of government. It seems abundantly clear, that theConstitution created not a government of separated powers,but rather a government of separated institutions sharingpowers. 1

On Federalism

Questions of federal-state relations arise when a federal court makesintrusive orders regulating state institutions. But, as claimed by Eisenberg and Yeazell, the facts of the institutional cases uniformly revealunconstitutional behavior by state or local officials. (Perhaps this istrue of the cases examined by Eisenberg and Yeazell, but as will beindicated infra, there has been no statement of unconstitutional behavior by defendants in any of the consent decrees in the Massachusettscases, nor has any question of violation of constitutional rights ofplaintiffs been set before the court.)

Principles of federalism, as will be discussed in the next chapter,require a proper respect for state functions in a system in which thefederal government, while protecting federal rights, does so in waysthat will not unduly interfere with the legitimate activities ofthe states.

In citing Rizzo v. Goode2 (a favorite citation of critics in stressing theoverstepping of the judicial role) as an example of the application ofthe principles of federalism to an institutional suit (holding for defendants), the authors argue that Rizzo's facts distinguish it from themainstream of institutional litigation. Unlike the other cases, in Rizzo,there was insufficient evidence to show that the plaintiffs were suffering direct, tangible, and pervasive harm at the hands of defendants, orthat defendants were entangled in a pervasive pattern of constitutionalviolations. 3

Moreover, the authors argue, in many institutional cases, the deliberate pace of litigation, the substantial guidance sought and obtainedfrom state executive defendants in framing relief, and decrees that arecleared in advance with defendants, manifest deference to the statesand their officials. As they see it:

I. David B. Frohnmayer, "The Separation of Powers: An Essay on the Vitality of a Constitutional Idea." 52Oregon l.UII' Reviell' 211, 21li-19 ( 1973).

2.423 U.S. 362 (1976).

3. Eisenberg and Yeazcll, .wpra, 509.


The real question is not whether states are shown respect, forthey are, but whether their status is such that they areentitled to the final word about the nature of institutionalconditions and the pace at which those conditions arebrought into compliance with the Constitution. I

Institutional Litigation and the Public Fisc

In at least one important respect institutional litigation has beenasserted to intrude upon a quintessentially legislative choice, the allocation of social resources.

The existence of judicial authority to allocate funds raises particularconcern in the new litigation because some of what courts order iscostly.2 Some courts disavow authority to force defendants in institutional cases to raise funds. 3 Other courts refuse to accept lack offunds as an excuse for noncompliance with constitutional standards,4and therefore may be implicitly ordering allocation of public funds. 5

Such disparate concern, say the authors, may lead to differentconclusions. On the one hand, it may be argued that courts, in framingrelief, should at least be aware of budgetary considerations. Costlyrelief should be ordered only to the extent necessary to remedy violations and after counsel from those responsible for its implementation. 6

On the other hand, if the notion that the amount of money to be madeavailable is solely a legislative choice, then judicial deference to legislative control of the purse may be taken as an absolute barrier to certainremedies.?

I. Ihid., 506.

2. Ihid., 506, n. 202; Sec e.g., Milliken v. Brudle)', 433 U.S. 267,293 (1977)(Powell,J., concurring); Williams v.E.aK'u"l~, 547 F. 2d 1206, 121M (5th Cir. 1977); ALABAMA CIVIL LIBERTIES UNION FOUNDATIONNATIONAL PRISON PROJECT, THE ALABAMA PRISON SYSTEM (1977); Frug, supra, 727-30.

3. Ihid., n. 203: Jom's I'. Wittetlhl'l'g, 323 F. Supp. 93(N.D. Ohio); 330 F. Supp. 707, 712(N.D. Ohio 1971),affdsub nom. Jones \'. Metzger, 456 F. 2d 854 (6th Cir., 1972); Hamilton v. Love, 32S F. Supp. 1182, 1194(E.D. ',:.,'....T.~".•..

Ark. 1971). But see Gr!l.lin \', County S('hool Bd., 377 U.S. 21M, 233 (1963); Virginia \'. West Virginiu, 246 "•U.S. 565 (191 X); Re('d \', Rhode.\", 455 F. Supp. 569,606 (N,D. Ohio 197M); EI'um 1', Bwhunun, 447 F. Supp.982, 1026-35 (D. Del.), aft'd, 582 F. 2d 750 (3d Cir. 1978) (en banc).

4. Ihid., n. 204: See e.g., Finl/ey I'. Arkunsas Btl.l.!/Corre('tion, 505 F. 2d 194,201 (8th Cir. 1974); Lora I'. Bourd(d /:;dw'ution, 456 F, Supp. 1211, 1292-93 (E.D.N. Y. 1978); Vest v. Lubbofk County Comm'rJ Court, 444 F.Supp. 824, 1134 (N.D. Tex. 1977); authorities cited in Frug, supra, 725·726 & nn. 71-72.

5. Ihid., n. 205: Whether such courts are in fact allocating funds may depend upon one's view of the viability ofordering an offending institution closed. If an order to close is an unrealistic alternative, see hug, ,~upra at728-29, then refusing to excuse noncompliance lor lack of funds may, depending upon compliance with theremedial decree, in effect, allocate public resources. A number of courts, however, have ordered institutionsclosed. See, e.g., Inmales of Henry Count)' v. Parham, 430 F. supp. 304 (N.D. Ga. 1976).

6. Ibid., 507, citing Frug, supra, 773-84.

7. Ibid., citing Frug, supra, 788, and Mishkin, supra, 970-71.

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Almost inevitably, the judicial orders in institutional cases have astheir consequences the increased expenditure of public funds. ··For ajudicial order in almost any case has either as its aim or as its consequence the reallocation of resources. That is what litigation is fOr."1

Eisenberg and Yeazell also cite GrifJin v. School Board in which theU.S. Supreme Court's holding contained an explicit recognition thatcourts may order that funds be raised and expended to enforce substantive rights. 2 Reacting to defiance of desegregation decrees, theSupreme Court made it clear that the district court could order newtaxes levied to pay for a desegregated school system.

While some of the detail and intrusiveness of the decrees in institutional cases derives from litigant intransigence, there is, in other cases,say the' authors, a more compelling demand on the fisc: prompt changehas been found necessary to protect health and lives from clear andpresent danger)· "At this point in the Court's fiscal jurisprudence ...no insuperable doctrinal barrier precludes considerations of sternfundraising m.easures by lower courts. Under existing precedent, refusal to implement a decree for lack ofavailable funds is not an acceptableexcuse for noncompliance.U4

To the- foes of judicial allocation meddling, the authors answer thatquestions of the purse are at bottom questions about the alIo,cation ofpublic resources. Uneasiness about the courts' requiring other governmental agencies to allocate funds stems in part from the belief thatcourts are not good at ranking priorities and choosing the means tomeet the goals once the ranking is done.S Yet, say the authors, in itspurest form, such a belief would preclude any public law litigation, forall such adjud~cationnecessarily involves ranking certain social goalsabove others.l'

I. /bid., Th~ authon elaboratc: Thus. wlren ,he Suprcme ('out in (iuldlw'K v. Ael'" held thai welfarcdispensers had to give recipients a hearing before endil18 their benefits, it implicitly decid~ that additionalfunds would have to be expended for tbis purpose - bearing officers must be paid. Again, &he Court notedexplicitly that the added administrative burdens would necessitate further expenditures. Moreover. when theCourt held in Ciitleun \'. Wailll1'right that an indigent criminal defendant's constitutional right to counselrequires the government to provide a'lawyer, it indicated directly that both state and federal governmentswould have to spend more money to fulfill this obligation. Ihid., 508. see nn. 208-211 for case citations.

2.377 U.S. 218, 233 (1964).

3. "Courts should be able to demand sufficient alteration in the supervision of mental patients to keep themfrom drowning in their own vomit:' Eisenberg and Yeazel!. supra, 494, citing "')'all \', Stit"kne.l'. 344 F. Supp.393-94, n. 13.

4. Eisenberg & Yeazell. supra, 508-09.

5. Ihid.• 509. citing Frug, supra, 788 and Mishkin• .~upra. 965.

6. Ihid., 509.

66 HOUSE - No. 6362 . [March 19

On the Advantages of Judicial Supervisory Role

Another commentator, Professor Abram Chayes, whose views arediscussed earlier in this report, t insists that the extent of judicialintrusion and oversight by the federal trial courts in what he terms "anew model of civil litigation" is unprecedented and raises seriousconcerns of legitimacy. Nevertheless, his tentative conclusion is thatthe involvement of the court and judge in public law litigation is bothworkable and inevitable for the accomplishment of justice in a societyso heavily regulated. In appraising the work of the courts from segregation and reapportionment to mental institutions and prisons, Chayesargues that the judiciary may have some important institutional advantages for the task it is assuming:

First, and perhaps most important, is that the process ispresided over by ajudge. His professional tradition insulateshim from narrow political pressures, but, given the operation of the federal appointive power and the demands ofcontemporary law practice, he is likely to have some experience of the political process and acquaintance with a fairlybroad range of public policy problems. Moreover, he isgoverned by a professional ideal of reflective and dispassionate analysis of the problem before him and is likely tohave had some experience in putting this ideal into practice.

Second, the public law model permits ad hoc applicationsof broad national policy in situations of limited scope. Thesolution can be tailored to the needs of the particular situation and flexibility administered or modified as experiencedevelops with the regime established in the particular case.

Third, the procedure permits a relatively high degree ofparticipation by representatives of those who will be directly

.affected by the decision, without establishing a liberum veto..

Fourth, the court, although traditionally tho~ght lesscompetent than legislatures or administrative agencies ingathering and assessing information, may have unsuspectedadvantages in this regard. Even the diffused adversarialstructure of public law litigation furnishes strong incentivesfor the parties to produce information. If the party structureis sufficiently representative of the interests at stake, a con-

I. ~The Role of the Judge in Public Law L.itigation" 119 Harvard Lall· Re\'ieh' 121lt, (1976).

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ch 1981] HOUSE - No. 6362 67

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real"ausatthtyaesd-

siderable range of relevant information will be forthcoming.And, because of the limited scope of the proceeding, theinformation required can be effectively focused and specified. Information produced will not only be subject to adversary review, but a& we have seen, the judge can engage hisown experts to assist in evaluating the evidence. Moreover,the information that is produced will not be filtered throughthe rigid structures and preconceptions of bureaucracies.

Fifth, the judicial process is an effective mechanism forregistering and responding to grievances generated by theoperation of public programs in a regulatory state. Unlikean administrative bureaucracy or a legislature, the judiciarymust respond to the complaints of the aggrieved. It is alsorather well situated to perform the task of balancing theimportance of competing policy interests in a specific situation. The legislature, perhaps could balance, but it cannotaddress specific situations. The bureaucracy deals with specific situations, but only from a position of commitment toparticular policy interests.

Sixth, the judiciary has the advantage of being nonbureaucratic. It is effective in tapping energies and resourcesoutside itself and outside the government in the explorationof the situation and the assessment of remedies. It does notwork through a rigid, multilayered hierarchy of numerousofficials, but through a smallish, representative task force,assembled ad hoc, and easily dismantled when the problemis finally resolved. I

Chayes adinits to the one-sidedness of the above enumerated features. It does not, he adds, warrant an unqualified endorsement of thepublic law litigation model in its present form. While legislative apportionment "seems to have worked out reasonably well", school segregation results "are at best mixed.';2 And the management of state institutions, he cautions, "may turn out to be pretty thoroughgoing failures.What experience we have with administrative resistance to intrusivecourt decrees is not particularly encouraging."3 Significantly, hewarns:

I.. Ibid•• 1308-09.

2. Ihid., 1309.3. Ihid.


although the courts may be well situated to balancecompeting policy interests in the particular case, ifas is oftentrue the decree calls for a substantial commitment of resources, the court has little basis for evaluating competingclaims on the public purse. Each of these considerationsneeds exploration in much more detail ... 1

. Some of Chayes's views are echoed in a more recent article generallysupportive of the judicial role in the institution cases.2 In that commentary, the notewriter agrees that much of the criticism of the federaldistrict courts involved in cases requiring an active role in policy andadministration is, for the most part, oversimplified; courts are notnecessarily ill-equipped to intervene in matters of policy and administr"dtion. The judiciary does not have to be passive or suffer frominformation insularity. To facilitate the gathering of data and theweighing of remedial options, judges have made use of hearings atwhich they have been exposed to differing views from theorists as wenas practitioners. 3 They can also undertake off-the-bench research,appoint special masters, expert witnesses, and consultants, and makeuse of amicus briefs.4 Judges can be made aware of the uses and limitsof social science. They can maintain ongoing efforts' to monitor organizational behavior by issuing "structural" injunctions, consisting of aseries of supplemental decrees. 5 Finally, in the implementation process, courts can employ special masters, lay committees and otherenforcement panels. By using these varied techniques, the judiciary cancollect the information needed to design and execute relief." Thus, theprincipal concern should not be with determining whether courts canmake use of apparatuses to assist in the decisionmaking process, butwith preparing judges fOf the task of restructuring bureaucracies.7

Yet, though courts can create the apparatuses needed to i11ake andmonitor'decisions, the notewriter argues that is not enough:

Machinery designed to collect data is of minimal assist-

I. Ibid.

2. Note: ".Judicial Intcrvcntion and Organi7.ation Theory: Changing Bureaucratic Behavior and Policy," 89Yul/' l.ul1· Joumul513 (19t!O).

3. Ihid., 516 see nn. 15 and 16. Ihid., for sources.

4. Ihid.. nn. 17-20.

5. Ibid.• 517. n. 23.6. Ibid.! n~. 24,27.

7. Ihid.. 513.

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ance in int.erpreting information. Nor can it aid a judge indetermining what factors should be considered in choosing aremedy. In short, formal machinery by itself does not ensurethat the judiciary will fashion workable relief, and thereforeshould not be of principal concern. Further, the focusshould be on the delineation of criteria by whic~ a judge cancreate an appropriate remedy. I

He concludes that a court's efforts to devise a workable remedy willbe facilitated if it takes into account the internal and external factorsaffecting bureaucratic behavior. "In restructuring the policies, andprocesses of public bureaucracies, courts should do so with a sensitiveappreciation of how organ-izations function."2

On Property and People

Finally, Eisenberg and Yeazell, focusing on the merits of eachindividual case, say they do perceive much about the new litigation thatis new. The novelty lies less in the procedural or remedial aspects of thecases than in the rights they protect, the direction in which theyredistribute power.

For centuries, it is argued, courts have been invoking the remediesthey employ in institutional cases, but they have invoked them tovindicate the social institution we call property. Courts are now invoking such remedies in aid of new rights of individuals and groups. Therehas not been a shift in the remedies the courts are willing to invoke somuch as a shift in the rights in whose aid they are invoked. Thi~ shifthas occurred over the last few decades, as courts have created a series ofnew constitutional rights redounding to the benefit of such unattractive groups as criminal defendants.3 But civil rights litigation hasspawned many new classes of rights that cannot be protected by aconstitutional challenge to a criminal conviction. "To enforce theserights, courts have borrowed from a remedial arsenal first fitted out tovindicate interests of a rather different sort. In the new litigation, then,old remedies are implementing new rights.'~~ JO_"p'rpte.c~ ~h.e~_~ ~~~

affirmative rights, it is argued, courts must implement continuous,

I. Ibid.. 518.

2. Ibid.. 537.

3. Eisenberg and Veazell, supra. 510, citing Gideon v. Wainwrighl. 372 U.S. 335( 1963), and Mapp v. Ohio. 367U.S. 673 (1961).

4. Ibid., 511.


complex remedies to deal with unresponsive defendants if they are notto abdicate judicial responsibility in the face of the abrogation ofconstitutional rights. I

Historically, the longer the line of development of a given area ofsubstantive law, the more likely it is to have departed from the kind ofimmediately apprehensible evil that led courts to' recognize a newlyprotected entitlement in the first place. As the law moves from corecases (e.g., Brown v. Boara of Education, Wya(t v. Stickney) thetechnicality of the distinctions becomes more apparent, and the needfor any intervention less so. In the end, say the authors, one cannotavoid the merits. That the merits do finally matter is one of the twocentral points of their essay. The second point they make is that thosewho have seen institutional litigation not just as new cases but as afundamentally different kind of work for the courts exaggerate thedegree of change.

In their conclusion, Eisenberg and Yeazell stress the hope that somereal question - as to ends rather than means - be raised:

Twenty-five years ago few thought the Constitution guaranteed mental patients clean sheets or prisoners hearingbefore parole revocation. Having found such rights impliedby the Constitution, courts have reached for a remedialarsenal fitted out ·centuries ago for service in other wars. Theweapons are not new, but the cause is, and one must finallyevahiate such litigation in terms of its ends rather than itsmeans. 2

CHAPTER III. CONSTITUTIONAL ASPECTS

Part I. Basic Doctrines

Much of the literature on the constitutional and legal aspects of theinstitution cases contains references to, and in some publications anin-depth discussion of, the doctrines of Federalism and Separation ofPowers. Critics of judicial activists in these cases argue that the depthand breadth of judicial intrusion amounts to a blatant conflict withthese cornerstones of American Constitutional Law.

In the following pages, these doctrines are set forth, first, in terms

I. Ihid.. 512.2. Ibid., 516.

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that describe their origin and purpose, and then in terms that describethe problems incident to their application to federal-state relation-ships. .

Federalism

Federalism in the United States has been defined as embracing thefollowing elements: I

I. The union of several autonomous political entities, or"States," for common purposes.

2. The division of legislative powers between a 44Nationa,1 Government," on the one hand, and constituent "States," onthe other, which division is governed by the rule that theformer is "a government of enumerated powers" while thelatter are governments of "residual powers."

3. The direct operation, for the most part, of each of thesecenters of government, within its assigned sphere, upon allpersons and property within its territorial limits.

4. The provision of each center with the complete apparatus oflaw enforcement, both executive and judicial.

5. The supremacy of the "National Government" within itsassigned sphere over any conflicting assertion of "Statepower."

The third and fourth of the foregoing list of salient features of ourfederal system, in which member states generally agreed to obey themandates of a common government for certain stipulated purposes,but retained to themselves the right ofordaining and enforcing the lawsof the union, distinguish the system from all preceding systems.

Federalism became a judicial concept by reason of the need toresolve conflicts which periodically arise between the idea of StateAutonomy and the principle of National Supremacy. Exaltation of thelatter principle, as it is recognized in the Supremacy Clause of theFederal Constitution2 was the keysto'ne of ChiefJustice John Marshall's constitutional jurisprudence. On the other hand, Marshall'ssuccessor, Chief Justice Roger Taney, had a different outlook. The

I. Edward S. Corwin, Introduction. The Constitutiun ufthe United States of AlIIeri('a. Analysis and Interpretatiun. Senate Document No. 92·82, 92d Cong., 2d. Sess., 1973 Edition, p. XVIII.

2. Article VI, par. 2.


Taney court took as its point of departure the Tenth Amendmentwhich states "The powers not delegated to the United States by thisConstitution, nor prohibited by it to the States, are reserved to theStates respectively, or to the people."

Interestingly, in the landmark McCullough v. Mary/and case,' decided by the Marshall Court, counsel for the State 'of Maryland hadcited the fears of opponents of ratification of the Constitution aboutthe possible swallowing-up of states' rights and referred to the TenthAmendment to allay these apprehensions, all in support of his claimthat the instant issue, the power to create corporations was reserved bythat amendment to the states:2 Chief Justice Marshall rejected theargument and countered with an expansive interpretation of the neces-

. sary and proper clause. 3

Stressing the fact that the Amendment, unlike the cognate section ofthe Articles of Confederation, omitted the word "expressly" as aqualification of granted powers, Marshall declared that its effect wasto leave the question "whether the particular power which may becomethe subject of contest has been delegated to the one government, orprohibited to the other, to depend upon a fair construction of thewhole instrument"4

But the Taney Court, in construing this amendment, at times spokeas if it regarded all the reserved powers of the state as limiting nationalpower; at other times, it talked as if it regarded certain subjects asreserved exclusively to the states.5

These differences of interpretation on the part of Marshall andTaney emerged into two views on the role of the Court. Marshall sawthe 40urt as primarily an organ of the National Government and of itssupremacy. Taney regarded the Court as standing outside ofand aboveboth the National Government and the States, and as vested with aquasi-arbitral function between two centers of diverse, but essentiallyequal (because sovereign) powers. This position was expressed inAbe/man v. Booth, decided on the eve of the Civil War:

This judicial power was justly regarded as indispensable,not merely to maintain the supremacy of the laws of theUnited States, but also to guard the States from any en-

I. 4 Wheat. (17 U.S.) 316 (1819).

2. Ihid.• 372.3. ;Ihid., 358-363.

4. Editor. Sen Doc. 92-82. .~uf1ra. 1264. quoting Marshall in 4 WhC'c1t. 316. 406.

5. Corwin. Sen. Doc. 92-82• .Jupra, p. XIX.

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croachment upon their reserved ~ights by the general government ... So long ... as this Constitution shall endure,this tribunal must exist with it, deciding in the peacefulforms of judicial proceeding, the angry and irritating controversies between sovereignties, which in other countrieshave been determined by the arbitrament of force. 1

Constitutional scholars thus describe Marshall's federalism as National Federalism and Taney's federalism as Dual Federalism. Theissue as to which should prevail was resolved during the 1930's whenthe Roosevelt programs came before the Court. ChiefJustice Stone led

. the Court in adopting the Marshall viewpoint.Until recently, it seemed apparent from case law dealing with federal

regulations affecting State activities and instrumentalities, that theTenth Amendment did not shield the States or their political subdivisions from the impact of the authority affirmatively granted to theFederal Govemment.2 But this no longer true since National LeagueofCities v. Usery,3 even though the Court relied there not on the TenthAmendment but upon restraint imposed upon the exercise of delegatedfederal powers by the very fact of the existence of the States, upon, thatis, a principle of federalism epitomized by the Tenth Amendment.

Separation of Powers

The second great structural principle of American ConstitutionalLaw is supplied by the doctrine of Separation of Powers. Although thisnotion was set forth by Aristole,4 it was Montesquieu who advanced itto a working concept. Montesquieu's fundamental contention was thatmen entrusted with power tend to abuse it. Thus, he argued, it wasdesirable to divide the powers of government, first, in order to keep to aminimum the powers lodged in any single organ of government; secondly, in order to be able to oppose organ ttl organ, Le., a mixedconstitution of checks and balances.

In its most dogmatic form, the American conception of the Separation of Powers is summed up in the following propositions:

I. 21 How. 506.520-21 (1859).

2. See Sen. Doc. 92;82• .fupra. 1268-1271.

3. 426 U.S. 833 (1976). The decision is discussed infra. 86-87.97-100.4. Aristotle's Politics. Welidon (tr.), Book VI. XIV (1888).


I. There are three intrinsically distinct functions of government, the legislative, the executive, and the judicial.

2. These distinct functions ought to be exercised respectivelyby three separately manned departments of government.

3. These departments should be constitutionally equal andmutually independent.

4. A corollary doctrine: The Legislature may not delegate itspowers.

Historically, this binding of concepts has been impaired by threedevelopments in our national government: (I) the growth of Presidential initiative in legislation; (2) the delegation by Congress of legislativepowers to the President; (3) the delegation in many instances of likepowers to independent agencies or commissions.' It is now acceptedthat the practice of delegated legislation is inevitably and inextricablyinvolved with the whole idea of governmental intervention in theeconomic field, where the conditions to be regulated are of infinitecomplexity and are constantly undergoing change. As expressed in oneanalysis of Separation of Powers, as a barrier capable of preventing afusion of presidential and congressional power, the principle of Separation of Powers does not appear to have retained much of its originaleffectiveness. 2

In brief, the doctrines of American Constitutional Law and theconception of governmental functions which they embrace, as influenced by wars, the New Deal-Fair Deal programs, and practicalpolitical considerations, have combined to concentrate governmentalpowers in the United States, first in the hands of the National Government, and secondly, in the hands of the National Executive. And with

. this concentrated power, the two main structural elements of government in the United States in the past, the principle of Dual Federalismand the doctrine of the Sep~rationof Powers, have undergone a radicaland enfeebling transformation.

With this background, it is interesting to note the comments ofPresident Reagan on the subject of federalism and separation of

povCOl

IgroIsm

I. Corwin. Sen. Doc, 92-H2, .wpra, p. XXII.

2. Ihid.• p. XXIII. A notable exception was the seizure of the steel mills by President Truman in 1952 whieh theCourt, in rOlIflKS/O\l'1I CO, I'. Sall'yer, J4J lJ .S. 579 (1952), condemned as being in connict with the principleof Separation of Powers. But the conception of the doctrine advanced in that case appears to have been an ad I. Nahoc discovery lor the purpose of disposing of that particular case. /d., p. XXIV.

arch1981] HOUSE- No. 6362 75

216

hreeden-Hive'likeptedablyI theinitelone.ngaepa-~inal

the1flu-tical:ntal'ern-withern-lismtical t.s of1 of

powers. As President-elect, Reagan sent a message to the NationalConference of State Legislatures in which he stated: I

. " the state legislatures are our basic institutions ofrepresentative government. Their members ... are key actors in the continuing drama of American federalism.

At this moment in our history; we face an historic opportunity. For half a century, power has flowed steadily, seemingly irresistibly, from the state governments to the federalgovernment. Our nation of sovereign states has come dangerously close to becoming one great national governmentinstead of the true federal system called for in our Constitution.

Today we can begin to reverse this centralization of power'. We can begin to return present responsibilities of government from Washington to the state capitals and from thereto local government or where possible back to the peoplethemselves.*** The national government has a responsibility to protect those rights granted by the federal Constitution- but it cannot and must not attempt to regulate everymatter of pUblic policy or private behavior.

I am committed to working with you, ... to begin the longand difficult process of recreating a balanced, vigorous federal system in this country.*** And I am confident thatmoving forward together in a spirit of cooperation, we can,in our time, lay the foundation of a new American federalism that preserves the principle of our Constitution, andbetter serves the needs of our people.

In his inaugural address, the President .had these comments on thegrowth of centralized power and its effect on the doctrine of federalIsm:

In this present (economic) crisis, government is not thesolution; it is the problem.

It will be my intention to curb the size and influence of thefederal establishment and to demand recognition of thedistinction between the powers granted to the federal government and those reserved to the states or to the people.

chthencipleI an ad I. National Conference of State Legislatures, Duteline WUIhinxton, Vol. V, No. 21, December J I, 191W. p. 2.

I. Nagel, supra. (,64-65 quoting G. Gunther. Cases and Materials on Constitutional Law 400 (9th Ed. 1975).

2. Ihit!.

.l Nagel, supra, M5.

4. Uwt! I'. BUfIIS, 427 U.S. 347, 352 ( 197(,) where the Court held that patronage dismissal of non-civil-servicecounty employees in nonpolieymllking positions impermissibly burdens political affiliation. rejecting theargument that the method of appointment and removal of executive officers was a matter for the executivebranch.

5.369 U.S. Illb. at 21ll. s~e a.lso 210. 223. 226.

6. Baker..\Upra. 210.

7.415 U.S:605 (1974).

Restrictions 1nherentin the Doctrines ofSeparation of Powers and Federalism

The principle of Separation of Powers has been described as a"horizontal" division of power among the three branches of the national government. I The "vertical" distribution of power between thenational government and the states is thought to be encompassedsufficiently by the concept of federalism.2 According to one commentator, the current position of the Supreme Court appears to be that thisdichotomy is so neat as to liberate federal courts entirely from anyformal constitutional constraints against assuming the functions ofstate executi-ve or legislative departments}

Current View of Supreme Court

The current stand of the Supreme Court is that Uthe separation-ofpowers principle, like the political-question doctrine; has no applicability to the federal judiciary's relationship to the States."4 This extreme conclusion, in the view of one observer, is presaged by therepeated emphasis in the landmark case, Baker v. Carr, on the irrelevance of "matters of state governmental organization."s The BakerCourt granted that the Separation of Powers doctrine imparted constitutional significance to the political-question doctrine but suggestedthat this doctrine should be applied differently when "it is the relationship between the judiciary and the coordinate branches of the FederalGovernment, and not the federal judiciary's relationship to the States,which gives rise to the political question."(,

A similar holding resulted in Mayor of Philadelphia v. EducationEquality· League.7 where the defendant had argued that elaborate

All of us need to be reminded that the federal governmentdid not create the states; the states created the federal government.

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judicial supervision of discretionary executive appointments wouldimproperly involve the judiciary in executive functions. The Courtresponded that the case had "nothing to do with the tripartite arrangement of the Federal Constitution."1 But the Court qualified its rejec;,.tion of the Separation of Powers argument by admonishing the lowercourt to assign greater weight to similar considerations of democraticaccountability and "delicate issues of federal-state relationships."2

Notwithstanding the opportunity that these cases and others3 haveprovided the Court for a vertical application of Separation of Powersprinciples, the Court has not taken that step. Rather, it has adopted theposition, reflected in the Elrod conclusion, the Separation of Powersdoes not apply to the relationshi.ps between the federal courts and thestates..

The Supreme Court's distinction between "vertical" and "horizontal" separation of powers assumes that the power of judicial reviewinherently authorizes federal courts to do whatever is necessary toprotect constitutional rights from infringement by less than coordinatebranches of the government. The assumption has been that if a statelegislature or executive does not cooperate to achieve the objectives ofa federal judicial decree, the need to enforce the constitutional mandate must take precedence over concern for maintaining the separatedefinition of their functions. 4 When the federal district court in Wyattv. Stickney ordered such pervasive changes in the Alabama mentalhealth programs, the cooperation of the state executive and legislativebranches was vital t~ the administration and finding of the court'sprogram. To the suggestion of possible noncooperation from thesepolitical branches, the court indicated it would assume their functions,if necessary.5

Thus, as explained by one observer, the assumptions behind theSupreme Court's position are that Separation of Powers and Federalism are unrelated concepts and that the vertical application of Separation of Powers would be inconsistent with the Supremacy Clause.6 Yet,according to that critic, both of these assumptions are incorrect, given

J. Ihid.• 615.

2.lhid.

3. See Nagel. supra. 674-677. 712-717.4. See Robbins & Buser, "Punitive Conditions of Prison Confinement: An Analysis of Pugh I'. I.ode and

Federal Court Supervision of State Penal Administration under the Eighth Amendment." 29 ,\·'an./IJrd 1.01\"Review 893. 929 (1977).

5. Wyatt. supra, 394.6. Nagel, supra, 667.

78 HOUSE - No. 6362 [March19~

the intent of the framers of the Constitution, case law preceding andfollowing the ~olding in Baker v. Carr, and the history of the Supremacy Clause.

Traditional View of the Separation of Powers Principle

Article III of the Constitution vests the judiciary only with the"judicial powers." Because no other power was delegated to the judiciary, the Tenth Amendment l strongly implies that the states areprotected from the judicial exercise of legislative or executive powers.

The Intent of the Framers. Scholars argue that the history of theTenth Amendment suggests that one of its specific purposes was toprotect state institutions from federal violations of the principle ofSeparation of Powers. Indeed, the Supreme Court has stated that theTenth Amendment had as its purpose, "to allay fears that the newnational government might seek to exercise powers not granted."2Among several apprehensions of state ratifying conventions was thefear expressed by the Massachusetts convention:

We dissent because the powers vested in Congress by thisConstitution, must necessarily annihilate and absorb thelegislative, executive, and judicial powers of the severalstates, and produce from their ruins one consolidated government, which from the nature of things will be an ironhanded despotism)

Ironically, it was the potential scope ofcongressional power that wasmost obvious at the time, due to experience with a dominant legislativebody under the Articles of Confederation; the judiciary was consideredto be the least dangerous branch, having "neither Force nor Will, but.merely judgment."4

Several states proposed amendments that incorporated the Separation of Powers principle, the most important of which were the Virginia Resolutions since Madison used them as a model in the Bill of

I. ~the powers not delegated to the Vnited States by the Constitution. nor prohibited by it to the States. arereserved to the States respectively, or to the people."

2. Uniled States v. Darby. 312 V.S. 100, 124 (1941).

3. Nagel, supra, 6611, quoting 2 B. Schwartz. The Bill uf Rights: A Ducumentary Histury 667 (1971). Similarfears from the Virginia. Maryland. South Carolina and North Carolina conventions about a tyrannicalgovernment are noted by Nagel. supra, 668. note 411.

4. The Federalist, No, 78, at p. 523 (Alexander J:!amilton).

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Rights. As submitted in Madison's eighth proposal, the languageappeared as follows: I

Eighthly, That immediately after article 6th, be inserted,as article 7th, the clauses following, to wit:

"The powers delegated by this constitution are appropriated to the departments to which they are respectivelydistributed; so that the legislative department shall neverexercise the powers vested in the executive or judicial nor theexecutive exercise the powers vested in the legislative orjudicial, nor the judicial exercise the powers vested in thelegislative or executive departments.

~~The powers not delegated by this constitution, norprohibited by it to the States, are reserved to the Statesrespectively."

Because the prevailing view in the Senate was that the Constitutionwas thought to require separation of poers by its very structure, thelatter of Madison's proposals was considered as including the former. 2

Thus, constitutional scholars argue that the history of the TenthAmendment strongly suggests that, to the same extent that th:.' Constitution's structure incorporates the principle of Separation of Powers indefining the powers delegated to the federal government, the reservedpower of the states explicitly is protected from federal incursions thatviolate that principle.3

Further, as critics of judicial intervention point out, the SupremeCourt has recently acknowledged that the 'Constitution was adoptedonly after its opponents were assured that the federal judiciary wouldnot have the power to adjudicate the rights and liabilities of the states

I. Quoted by Nagel, .Jupra, 669, n. 54. Compare with the Massachusetts Constitution, Part I, Art. XXX,adopted in 1780, prior to the Philadelphia Convention: Art. XXX. 111 the government of this Commonwelath. the legislative department shall never exercise the executive and judicial powers. oreither of them; theexecutive shall never exercise the legislative andjudicial powers, or either of them; the judicial shall neverexercise the legislative and executive powers, or either of them; to the end it may be a government oflaws andneit of men.

2. See Nagel, supra, 670, n. 58. The evidence for this proposition is voluminous. See. e.g.• The Federalist, Nos.47, 51 (James Madison); specifically, Roger Sherman, a congressional opponent of the first paragraph ofMadison's eighth proposal, argued that the amendment was Kaltogether unnecessary, inasmuch as theconstitution assigned the business of each branch of the Government to a separate department."

3. The connection between the Tenth Amendment and separation of powers has been treated by the SupremeCourt as self-evident. See. Kilbourn v. Thonipson,I03 U.S. 168, 182-95(1880); Gordon v. United States, 117U.S. 697, 705 (1864); Marshall v. Gordon, 243 U.S. 521, 536 (1917); A.LA. S('he('hter Poullry Corp. v.United Stales, 295 U.S. 495, 529 (1935).


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But, it is argued, this justification for judicial review loses its force ifthe judiciary can command the sword or the purse of the &tates.3

The critics thus contend that the framers saw separation of po'wersand federalism as intertwined concepts, each designed to define andlimit federal power for the protection of both the state governmentsand the people.

Case Law. Although the conclusion of the Supreme Court in Baker v.Carr, that separation of powers does not apply to the relationshipbetween the federal and state governments is inconsistent with theframers' views of the meaning of separation of powers, there are severalcase holdings prior to and subsequent to Baker that are also at oddswith the Court's position in that case. Federal equity power wasformulated in part by the vertical application ofseparation ofpowers.4

More recent decisions recognize judicial inability to deal with a

as parties defendant. I And when Hamilton argued the case for judicial vareview during the debates at Philadelphia, his argument was based on tivthe premise that-·

... the judiciary, from the nature of its functions, willalways be the least dangerous to the political rights of theconstitution because it will be least in a capaclty to annoy orinjure them ... The judiciary ... has no influence overeither the sword or the purse, no direction either of thestrength or of the wealth of the society, and can take noactive resolution whatever.2

I. Nagel. supra, 671. n. 65: "The right of the Federal Judiciary to summon ~ State as defendant and toadjudicate its rights and liabilities had been the subject of deep apprehension and of active debate at the timeof the adoption of the Constitution; but the existence of any such right had been disclaimed by many of themost eminent advocates of the new Federal Government. and it was largely owing to their successfuldissipation of the fear of the existence of such Federal power that the Constitution was finally adopted."Edelman I'. Jordan. 415 U.S. 651. 660 (1974) (quoting I C. Warren, The Supreme Court in United State,~

Hi.Hory 91 [rev. ed. 1937]).

2. Federalist, No. 7!1. 522-23.

3. Nagel. supra. 672.4. Meriwether \,; Garrett, 102 U.S. 472, 520-21 (I !l80) (Court concerned with federal jud icial usurpation of the

state legislative power); Yost v. Dallas County, 236 U.S. 50 (1915) (federal court has no authority to appointa commissioner to collect taxes so as to satisfy a state's obligation on its bonds); Thompson v. Allen County,115 U,So 550 (1885) and Heine v. lRvee Comm'rs, 86 U.S. (19 Wall) 655 (1873)(no federal equityjurisdictionto levy and collect taxes in order to satisfyjudgmentagainst state [Thompson] orto enforce payment ofstatebonds [Heine]).

[arch 1981] HOUSE - No. 6362 81

216l

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variety of problems and give the states wide discretion in administrative and legislative areas. I

Part 2. Conflicts in Exercise of Power

The Ef/ects of Unrestricted Judicial Power

Because it is the federal courts that are assuming the responsibility ofreforming the way the states carry out some of their most essentialfunctions, judicial intervention has an effect not only on the conditionsin the institutions but also on the basic allocation of power in American government. It is this effect that raises the most serious questionsabout the orders in the institution cases. If the courts were to haveplenary power to define constitutional values, command sufficientappropriations to support those values, and then control by equitabledecree the spending of the money appropriated, they would be exercising all power of government - judicial, legislative and executive.

Conceding the judiciary's claim to be the supreme expositor of thelaw of the Constitution, there must be some limit to federal judicialpower to commandeer affirmative legislative and executive power evento enforce its decisions defining constitutional rights. It is no answer tosay that it is the legislature, not the courts, that appropriates the funds,and it is the executive, not the courts, that directs the spending, if acourt order leaves no choice in the matter.

Commentators on the growth of judicial activism point to threefacets of the American system of government that are threatened by anunrestrained exercise of judicial power in the institution cases: thedemocratic process, the federal system, and the allocation of powerwithin the federal government itself. The effect on the democraticprocess in the institution cases stems from the fact that it is thejudidary, and not the politically accountable branches, that is directing the allocation of government funds. The effect on the federalsystem occurs because a branch of the federal government is directing

I. See Meachum I'. Fano. 427 U.s'. 2'15.228-29 (1976) (states have wide discretion in administering prisonsystems); Go.u v. Lopez. 419 U.S. 565. 578-80 (1975) (the Court required notice and hearing for casesinvolving short suspensions from school. but refused to require prior hearing. in part because state and localauthorities bear responsibility for public education); Pell v. Procunier. 417 U.S. 817.826-77 (1974) (prisonofficials were given latitude in drawing up guidelines for visitation with inmates); Procunier I'. Mart;nez.416U.S. 396.404-05 ( 1974) (courts traditionally are reluctant to interfere with state prison systems because theproblems are complex, intractable and not readily susceptible to judicial resolution); San Antonio Independent School Dist. v. Rodriguex. 411 U.S. 1.40-44 (1973) (state legislatures have wide discretion in devisingsystems of taxation and education; the Court lacks the expertise and familiarity with local problemsnecessary to deal with these issues); Whitcomh v. Chavis. 403 U.S. 124. 161 (1971) (lower court erred inoverturning state apportionment scheme "without solid constitutional or equitable grounds for doing so").

82 HOUSE - No. 6362 [March 1981

the allocation of state funds. Finally, the effect on the allocation ofpower within the federal government occurs only in those cases inwhich the federal courts have ordered action by another branch of thefederal government.

The Democratic Process

Any judicial order that inyalidates legislative or executive action isby nature an anti-democratic act in that ""the one nonelective andnonremovable element in the government rejects the conclusions as toconstitutionality arrived at by the two elective and removablebranches."J Whether or not one agrees philosophically with the justification for such power, it is a fact that it is, and has long been, part oftheAmerican constitutional system.

Two aspects of the orders in the institution cases, however, suggestthat they are a greater intrusion into democratic decisionmaking thanthe normal invalidation of a law on constitutional grounds. Ratherthan preventing the government from acting in an unconstitutionalway, these orders mandate affirmative action by the legislative and,executive branches to correct a constitutional violation. Moreover, thecourt orders involve a subject matter that is the very foundation of thediscretion lodged in t~e other branches: the raising, allocation andspending of government funds.

Affirmative judicial decrees mandating the expenditure of funds inthe institution cases require legislative action either in the form ofreallocation of money from the legislative priorities ~o the area of thecourt's concern or the enactment of new taxes. The executive must alsoact affirmatively to implement the decree once the money is madeavailable by the legislature, and that implementation is subject tocontfnuingjudicial supervision. The decrees in the institution cases, byestablishing priodties for funding and by detailing how expendituresshould be made, thus have the effect of legislation.2

The affirmative nature of the order invades the democratic processnot just by invalidating a legislative decision but by replacing thatdecision with a judicially designed substitute, a substitute created

I. Frug, supra, 734, Quoting Henry Steele Commager, "Judicial Review an~ Democracy," Juuidul RI!\';I!I\'ulluthe Supreme Court (L. Levy ed., 1967).

2. Frug, supra, 735; Mishkin•.~upra. 964-65; Chayes•.~upra. 1296-98; Archibald Cox, The Role o/the SupremeCourt in Ameri('ull GoVl!rnmefll , 76 (1976).

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without "the legitimacy which flows from the process of democraticself-government." I

Critics of decrees that amount to legislating by the judiciary do notbase the legitimacy of legislative action on any idealized representativecharacter of the legislative body: "Rather, that legitimacy derives fromthe Constitution, which gives the legislature, and no other branch, thepowers to make the basic policy decisions ..."2 The exercise of discretion in matters of taxation and budget allocation is the quintessentiallegislative responsibility, and "This celebrated 'power of the purse' hasremained one of the most cherished activities of parliamentary bodies

"3...As expressed by another critic, because the control of substantial

state revenues is an essential element of many such decrees, the ultimate problem of legitimate power then becomes the issue.4 "Ultimately, whether cast in terms of new taxes or siphoning off existing revenues, the issue is the classic one of taxation without representation.*** For the sense connoted by our Revolution's battle cry, 'representation' does not mean simply appearance before an all-powerful decider,but political participation in the decision. And that is the one thing thatfederal court processC?s cannot accord."5 In short, no amount of representation in front of an appointed, nolitically unaccountable decider isthe equivalent of a democratic legislative process.6

On this point, another observer has noted, the reason for vesting inCongress the power both to raise and allocate money derives from thefact that, even with the imperfections of Congress, no other body hasthe institutional capability of making such decisions. Indeed, the principal protection for taxpayers from excessive taxation and for recipients of aid from disproportionately allocated government resourcesrests on the accountability of the legislature to the public, on its"broad-based diversity," and on its inability to act without majoritysupport. 7

For this reason, the courts generally do not question legislativedecisions on the distribution of tax burdens or the allocation of rev-

I, Cox. supra. 811. note.2. Frug. supra. 735-36, n, 117.3. Frug. ,~upra. 740. n. 136 quoting C. Friedrich. ('UllstilUliIJllal GO\"'ffI/lU'/II ami D,'II/ucra'..... 281 (1968).4. Mishkin. $upra. 970.5. Ibid., 970-971.6, Ibid.• 971. n. 82.7. James Q. Freedman, "Review: Delegatio'n of Power and Institutional Competence," 43 University uf

Chit'agu Law Review. 307, 325-26 (1976).


enues among competing needs. In fact, the Supreme Court has foundthe institutional protection for the decision to raise taxes so essentialthat it has hinted that any delegation of such a decision even to theexecutive branch would raise constitutional problems.2

The orders in the institution cases do not deal directly with either theraising or the allocation of money. They simply require a specified levelof services, leaving to the le.gislature the necessary revenue raising and ~

allocation decisions that result from the order. Yet, although the courtdoes not specify the source of the money needed to comply with itsorder, it still is engaging in budget allocation. The selection of eachingredient in the court's definition of the requirements of due processnecessitates either the elimination of some element in another part ofthe government's budget or the raising of additional resources. Because government resources are limited and because some commitments of those resources cannot be reduced due to contract or otherobligations, the impact of a court's decisions falls on a relatively fewbudget items. The court is in fact allocating the budget away fromthose items, in all probability unaware of what they are. The court'sallocation decision req~ires that every element of the court decree takeprecedence over every other competing element in the budget, whatev-er they may be. The legislature retains no say at all about the compara-tive value of the item lost to the item required by the court. Thus, thevalue of legislative decisionmaking on budget allocation is undermined, to a greater or lesser degree, depending on the size of the court'sdemands and the amount of money available.

Finally, the allocation of scarce resources by court order is not likelyto be from the fortunate to the powerless; it is already the powerless towhom the state largely directs its resources. The justification for judi-cial intervention in favor of the institutionalized, therefore, is not thatthey are less politically powerful but that they are being held involun-tarily by the state. The state cannot constitutionally hold people, theargument runs, without meeting certain standards because to do so ,~,

would deny them liberty without due process oflaw.IIY~'In summary, by reordering spending priorities in favor of the invol

untarily committed, the orders in the institution cases thus haveinvaded the critical legislative responsibility of revenue raising and

I. Narional Cable televi:~ion. A.u'n. v. United States. 415 U.S. 336. 342 (1974). See. Freedman. supra. 318-29.2. Rhem v. Malcolm, 507 F. 2d. 333 (1974); Donaldson ", O'Connor. 493 F. 2d. 507. 520( 1974) aJfd.422 U.S.

563 (1915).

arch 1981] HOUSE - No. 6362 85

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budget allocation, and because of their detail, the executive responsibility of managing institutions as well. This shift of power away fromelected officials to individuals appointed for life weakens the democratic accountability of government. As one constitutional scholar hasput it:

[C]oherent, stable - and morally supportable - government is possible only on the basis of consent, and ... thesecret of consent is the sense of common venture fostered byinstitutions that reflect and represent us and that we can callto account. I

The appropriation issue thus serves to illumine the quintessence ofthe larger problem of institutional decrees: the by-passing of majoritarian political controls. For they involve the taking over of institutions ofstate or local government by federally-appointed lawyers neither chosen by nor responsive to an electorate, neither charged with nor evenassuming responsibility for the ultimate directional thrust or effectiveness of the institutions of state or local government.2

Federalism

Orders of federal courts mandating state expenditures in the institution cases clearly affect the balance of power between the federal andstate governments. Although some amount of federal power over stateactivities is envisioned by the Constitution, the Supreme Court hasheld that the concept of federalism protects state sovereignty to somedegree from federal control. The question in the institution cases iswhether the federal courts have exceeded the limits of permissiblefederal power and invaded the area of protected sovereignty. .

Most of the Supreme Court's applications of the federalism doctrinelimiting federal judicial power have focused on the form of interven-

I. A. Bickel, The Least Dangerous Branch. p. 20( I962)(Emphasis in original); quoted by Frug, supra, 742 at n.146. A similar comment in relation to the Boston school desegregation cases appeared in Anthony I.ewis·sarticle on the Boston Schools, New Yurk Times, May 24, 1976; p. 29.

2. Mishkin, supra. 97/. Compare New York State As.wdat;o1l.lor Retarded Children \'. Carey, 631 I-. 2d. 162.Decided June 4, 1980. A consent judgment, to which the Governor was a party, clearly stated that theGovernor's efforts at obtaining funds for a Review Panel were to be made within the framework of the state'sconstitution and laws, and subject to any legislative approval that may be required. The Legislature deletedthe requested funding from the appropriation bill. The Federal District Court subsequently ordered theGovernor to be adjudged in contempt if funds were not provided by a stipulated date. On appeal, the CircuitCourt reversed, stating that the Governor consented only to act within his lawful authority. "Under theConsent Judgment the court cannot compel the Governor to act unlawfully." Plaintiffs "must seek toconvince their representatives in the NewYork State Senate and Assembly, who control the purse strings anddetermine the priorities for the expenditure of state money, that funds for the Review Panel should beprovided."


tion; these decisions are characterized by a reluctance to allow federalcourt interruption or supervision of local decisionmaking. For example, there are dicta in some recent Supreme Court cases that suggest theCourt's reluctance to permit unnecessary and unwarranted federaljudicial intrusion into state and local government operations. InYounger v. Harris, I the Court cited as a "vital consideration, the

.notion of 'comity,' that is, a proper respect for state functions, arecognition of the fact that the entire country is made up of a Union ofseparate state governments, and a continuance of the belief that theNational Government will fare best if the states and their institutionsare left free to perform their separate functions in their separate ways.This ... is referred to by many as 'Our Federalism,' andone familiar withthe profound debates that ushered our Federal Constitution intoexistence is hound to respect those who remain loyal to the ideals anddreams of 'Our Federalism."2

In Rizzo v. Goode,3 plaintiffs in the original action, a group of blackresidents of Philadelphia, had successfully sought relief in theform ofan adjudication of citizens' complaints against the police departmentby an impartial body insulated from the police chain ofcommand. Butthe Supreme Court reversed, rejecting the district judge's notion thatfederal courts had the power to supervise the functioning of the policedepartment. The Court, in discussing the limits on federal equitablepower attributable to federalism and limiting the district court's powerover executive decisionmaking, commented, " ... the principles offederalism which play such an important part in governing the relationship between federal courts and state governments ... have applicability where injunctive relief is sought ... against those in charge of anexecutive branch or agency of state or local governments ... "4

In National League of Cities v. Usery, 5 the Court relied on theprinciple of federalism to declare unconstitutional the congressionalextension of the Fair Labor Standards Act to state and local government employees because such extension displaced the states' freedomto structure integral operations in areas of traditional governmentalfunctions. The Court emphasized specifically the impact of the congressional statute on the ability of the states to allocate and control

I. 40i u.s. 37 (1971).

2. Ibid., 44.

3. 423 U.S. 362 (1976).

4. Ihid.. 380.5. 426 u.s. 823 (1976).

I. Ihid., H47.

2. Ihid., HS3.·

3.413 U.S. 1(1973).

4. Baker I'. Carr. supra, 210.

5. Gilligan. supra, 7.

6. Ihid., 10.

7. Ihid., 11-12.

H. Prison cases, chieny. See Jordan 1'. Arnold, 40H F. Supp. !l69 (1976); Unileel Slales ex reI. Wol/ish I'. Lel'i,406 F. Supp. 1243 (1976). .

their own financial resources. Extension of the federal act, the Courtnoted, would entail significant mandatory increases in state and localgovernment budgets, resulting in "forced relinquishment of importantgovernmental activities'" to meet the federal statute's requirementsand displacement of "state policies regarding the manner in which theywill structure delivery of those government services which their citizensrequire."2

Allocation of Power Within the Federal Government

In GiJligan v. Morgan,3 the Supreme Court dealt with the politicalquestion doctrine - the doctrine that limits judicial power in light of theseparation o( powers4 - as a restraint on federal equitable power tooversee operations of the political branches of the federal government.The case grew out of the tragic deaths of students at Kent StateUniversity when members of the Ohio National Guard fired salvoesinto an assembly of youths protesting government policy. Studentssought an injunction against the Guard to ensure that its training anddirection did not promote excessive use of force. In dealing with the,assertion that the complaint raised a political question, the Courtstated that any relief would involve the federal district court in continuous surveillance over the Guard in hlatters vested by the Constitutionin the legislative and executive branches.s Judicial evaluation ofalternative procedures and policies to correct alleged abuses would bebeyond judicial competence because such complex and subtle decisions are matters ofdiscretion, "appropriately vested in branches of thegovernment which are periodically subject to electoral accountability."6 The Court held that the suit in its then present form raised anonjusticiable political'question.7•

Few institution cases involve federal judicial orders to improvefederal facilities. 8 Any extensive attempt by the judiciary to requirelegislative or executive action to improve federal functions would

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1981] HOUSE - No. 6362 87

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likely raise questions similar to those in the Gilligan case inasmuch asthe courts would be involved in supervising operations vested inpolitically accountable branches of the government. Limits on the role of thejudiciary are more clearly understood within the context of the federalconstitution which circumscribes the degree to which the judiciary maymandate actions by the other branches. Thus, an order to the Congressto appropriate funds, or to the executive to administer the details of acourt decree would run afoul of independent discretions given to theother branches. I

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The Eleventh Amendment

The Eleventh Amendment was passed to overturn the SupremeCourt's decision in Chisholm v. Georgia2 that a state could be. heldliable for its debt in federal court. The amendment reaffirmed that theimmunity of states from private suits, absent the state's consent, applied to suits against the states in federal courts. This doctrine ofsovereign immunity has been inv~ked principally to restrict, federaljudicial power in the Chisholm context - the assertion of private claimsagainst the public treasury. In 1977, the Court in Milliken v. Bradley3rejected a state's Eleventh Amendment defense to a direct federal courtorder to appropriate money for a specified purpose.

An understanding of Milliken requires an understanding of Eleventh Amendment precedent. Because the Eleventh Amendment deniesall federal judicial power to redress private claims against the states,the Court recognized early that a broad reading of the amendmentwould severely restrict federal judicial power to protect individualrights against government wrongdoing. It therefore adopted the fictionthat an action against a government official is not an action against thestate and therefore is not barred by sovereign immunity. Accordingly,the Court reasoned in Ex parte Young4 that an attempt to restrain anindividual government officer from acting pursuant to an unconstitu-tional statute was a restraint only on the officer, and not the state, and ~ ,lthus not prohibited by the Eleventh Amendment. But, as the Courtalso recognized, naming a government official, and not the state, as thedefendant could ~estroy the doctrine ofsovereign immunity. Thus, the

I. u.s. Constitution, Art. I, s. 9, cl. 7; Art II, s. 3.2.' 2 u.s. (Dall.) 419 ((793).

3. 97 S. Ct. 2749. 2761-62 (1977).

4. 209 U.S. 123 (1908)..

reh 1981] HOUSE - No. 6362 89

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has Court has had to delineate when a suit nominally against a governmentliti- official is really against the state and thus barred by the Eleventh'the Amendment, and when it is, both nominally and in fact, against theeral official only and thus allowable.nay Applied to an institution case, the Eleventh Amendment issue ap-ress pears to turn on whether an order has a retroactive or prospectiveof a impact on the state treasury. Recent decisions suggest that a prospec-the tive order would not be barred, no matter what the effect on the public

treasury, I but a retroactive order would violate the Eleventh Amendment. 2 In Milliken, the Court upheld a district court order that Michigan pay for remedial education in Detroit public schools because it wasprospective in nature, despite its direct and substantial impact on thestate treasury.3 Because the orders in the institution cases are alsoprospective, it would appear that they w'ould not be barred by theEleventh Amendment under Milliken.

The rationale in Milliken is criticized on the ground that ··If theessential issue under the Eleventh Amendment is whether the suit is·really' against a government official or against the state, it is hard tosee why the prospective or retroactive effect on the public treasury isrelevant. If the affirmative decree requires not the defendant officialbut the state itself, including the legislature, to appropriate money, itappears to be a suit against the state whether the money is to be paid forfuture or past claims. *** ... the fiction that the suit is against theofficial alone loses all credibility if affirmative action by the state itselfis required to comply with the court order."4

Although the retroactive-prospective test affirmed in Millikenwould allow the orders in the institution cases to withstand EleventhAmendment attack, it does not, by itself, render those orders permissible under all circumstances. Any federal court mandate ofstate expenditures will affect several important interests - federalism, the democratic process, and: in some cases, the allocation of power within thefederal system. The Supreme Court has recognized the need for carefully tailored federal judicial orders in light of these interests.5

I. Milliken v. Bradley, Jupra.1. Edelman v. Jordan, 415 U.S. 65 I ( 1974) holding that the Eleventh Amendment barred a suit in equity seeking

to recover retroactively social security benefits that the state wrongfully withheld from plaintiffs because thepayments would in fact come from the state's general resources.

3. Milliken v. Bradley, supra, 2762.

4. Frug, supra, 753.5. Milliken v. Bradley, supra, where the Court emphasized the limited nature of judicial intervention in local

decisionmaking and went out of its way to distinguish the facts in Milliken from a case that more seriouslyinvaded local authority. See 2761,2763.


Supreme Court Precedent Re Mandated Government Expenditures

A Limited .Intrusion

. The Supreme Court's first expansion of judicial power to includemandating increases in government expenditures occurred in 1956 inGriffin v. Illinois, I, in which the Cout:t held that the state had topay forthe cost of transcripts for some indigent criminal defendants seeking

.appellate review. In 1963, the Court, in Douglas v. California,2 extended its protection of the poor to require the furnishing ofcounsel onappeal, the effect of which was again to mandate an increase ingovernment budgets across the country. Neither decision involved anydirect order of legislative or executive action. In Bounds v. Smith,] theCourt affirmed a district court order requiring North Carolina toprovide a law library to state prisons in order to ensure protection ofthe prisoners' constitutional rights of access to the courts. Bounds,however, did not significantly expand the demands on the state treasury or limit the flexibility of the state to meet those demands.

The three cases, as can be seen, involve a considerably more limitedintrusion into local democratic decisionmaking than the orders in theinstitution cases. The Supreme Court did not design a detailed list ofrequirements that a state must provide, regardless of cost, in order tomeet the constitutional standards, as is commonly done in the institution cases, but emphasized flexibility and local experimentation.

Nor did the Court establish standards of quality that necessitatecontinuing judicial supervision of performance; it required no minimum kind of transcript, no minimum counsel-client ratio, no minimum quality library. The Court simply articulated in general termsthe constitutional standard the localities must meet and allowed themto design·"t~eircompliance'to fit local circumst~nces and local budgets.

The Relevance of Cost

Procedural Due Process Cases. The increasing recognition by theUnited States Supreme Court of the impact of its procedural dueprocess decisions on the legislative allocation of resources betweenadministrative costs and programs costs can best be seen in two most

I. 351 U.S. 12 (1956).

2. 372 u.s. 393 (1963).

3.97 S. Ct. 1491 (/977).

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important recent cases, Mathews v. Eldridge 1 and Ingraham v.Wright. 2

In Mathews, the issue was to what extent constitutionally mandatedprocedures were required before Social Security disability benefitscould be terminated. Holding that a private evidentiary hearing wasnot required for disability recipients because of the substantial administrative costs, the Supreme court provided the most extensive statement to date of the relevance of increased cost to constitutional standards: Financial cost alone is not a controlling weight in determiningwhether due prOcess requires a particular procedural safeguard priorto some administrative decision. But the government's interest, andhence that of the public, in conserving scarce fiscal and administrativeresources is a factor that must be weighed. At some point the benefit ofan additional safeguard to the individual affected by the administrativeaction and to society in terms of increased assurance that the action isjust may be outweighed by the cost.3 The Court added that '"resourcesavailable for any particular program of social welfare are not unlimited."4

In the following term, in the .Ingraham case, the Court decided thatprotection against corporal punishment in schools was a constitutionally protected liberty interest. But it held that available state remediesfor excessive punishment were a constitutionally adequate protectionfor that interest and declined to require any federal procedure becauseany incremental gain would not justify the cost. Citing Mathews, "atsome point" cost will outweigh benefits, the Court said "that point hasbeen reached in this case."s The imposition of procedural safeguardswould also, the Court said, entail a significant intrusion into an area ofprimary educational responsibility.

In these decisions, the Court's reason for the relevance of cost isclear: mandating increased costs on government affects the government's allocation of its finite resources.

Equal Protection Cases. The Court is generally reluctant to overturnon equal protection grounds any legislative judgment concerning theallocation of government resources. In Dandridge v. Williams, 6 the

I. 424 U.S. 319 (1976).

2.430 U.S. 651 (1977).

3. Mathews. I'. Eldridge. supra, 347-34H.

4.lhid.5. Ingraham v. WriKht. supra. 6H2.

6.397 U.S. 471 (1970).

Congressional Power Re Judicially-Mandated Expenditures

Under Congressional Authority

Congress, with power over both the states an.d the courts, is the mostappropriate forum for resolving a conflict between federal judicialpower to enforce the Fourteenth Amendment and the interests of thestates in the federal system.6

The Supreme Court has recognized that congressional power underthe Fourteenth Amendment gives Congress authority to override restraints imposed on the federal judiciary to protect state sovereignty.The Fourteenth Amendment sanctioned congressional intrusion into

Court observed, "... The Constitution does not empower this Court tosecond-guess state officials charged with the difficult responsibility ofallocating limited public welfare funds among the myriad of potentialrecipients. I In Geduldig v. Aiello.2 the Court upheld the exc.lusion ofpregnancy benefits from a government disability progr~m, an exclusion based solely on the government's desire to minimize the cost of theprogram. 3 On the other hand, while recognizing that a state has a validinterest in preserving fiscal integrity of its programs, the Court will notallow that interest to be controlling.4

In both its equal protection analysis and in its due process analysis,the Supreme Court considers the scarcity of government funds asafactor affecting the definition of constitutional rights. It is the opinion

. of one commentator that such a position undermines the propositionso often relied on in the institution cases that inadequate resources areirrelevant to the enforcement of constitutional rights: "If cost figuresinto the definition of constitutional rights, the relevance of cost shouldnot disappear once those rights are found to exist. Indeed, it is lessrestrictive of personal freedom to take cost into account when determining the appropriate method of enforcing protected rights than todeny their existence altogether because it is too costly to recognizethem."5


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2.417 V.S. 4114 (1974).

3. Ihid., 49~. ~ee ~Iso Weinhl'rxer \.'. Sa(li, 442 V .S. 749 ( J975) where congressionally-determined requirementsfor certam Social Security benehts were held to be a vahd substantive policydetermination as to how limitedresources would be spent in order to save money.

4. Shapiro v. Thompsol:!., 394 V.S. 618, 633 (1969).

5. Frug, supra, 7113.

6. U.S. Cons!., Article XIV, s. 5.

2.3.4.

5,

~arch 1981] HOUSE - No. 6362 93

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"spheres of autonomy previously reserved to the States:" However,the lower federal court orders discussed in Chapter II mandatingincreased government expenditures in the institution cases have lackedexplicit congressional authorization. Most complaints about unwitrranted judicial interference with democratic decisionmaking wouldnot survive an explicit congressional decision to authorize the judicialaction in question. Concerns about judicial restrictions on democraticdecisionmaking would be diminished if the judicial action were requested by the politically accountable branches of government.

Concerns about the doctrine of federalism would also be lessened bycongressional authorization of federal judicial action. For, althoughfederalism is a constitutional limit on congressional power, it presentsless of a barrier to congressional thanjudicial action because the states,and their interest as such, are represented in the Congress but not in thefederal courts.. Since the Fourteenth Amendment was designed as a federally en

forced limit on state authority,2 only a branch of the federal government can determine the extent of its restriction of the states' authority.That decision would be best made by Congress, influenced by therepre~entativesof the states, but exercising federal constitutional power. Indeed, as cited above, the Constitution explicitly gives Congress.the power to enforce the Fourteenth Amendment.3 On the other hand,a judicial determination of the reach of judicial power would not onlybe unrestrained by participation of the states, but would be inappropriately self-serving.4

The power of Congress to authorize judicial action in the institutioncases was recently exercised in support of civil rights of institutionalized persons. In 1980, Congress enacted legislation authorizing theAttorney General of the United States to initiate or intervene in suitsinvolving the civil rights of patients or inmates of state or local institutions.s Before initiating action, the Attorney General must personallycertify that state officials have had a reasonable time to correct alleged

I. Fif.zpalrick ", Bilzer. 427 U.S. 44S, 455 (1976). The Court held that Congress had power under theFourteenth Amendment to authorize da'!1!lge action~agains~ .the states, actions that, absent a congressionalenactment. would be barred by the Eleventh Amendment. Congress could override the Eleventh Amendment limitation and authorize judicial impact on state treasuries, thus removing the onus of judicialintrusion. .

2. Ibid.. 455-56.

3. Arndt. XIV, s. 5.4. Article III, s. 2 of the U.S. Constitution gives Congress power to define the jurisdiction of federal courts,

5. The "Civil Rights of Institutionalized Persons Act," Public Law 96-257, s. II (94 Stat. 354) amending U.S.,Code, Title 42; Subchapter I-A - Institutionalized Persons, ss. 1997-1 997j.


violations of constitutional rights; I The statutory language governing"reasonable time" requires the Attorney General, before commencingan action, to certify that - .

. . . he is satisfied that the appropriate officials have had areasonable time to take appropriate action to correct suchconditions and pattern or practice, taking into considera-tion the time required to remodel or make necessary changes ~

in physical facilities or relocate residents, reasonable legal or I!V

procedural req uirements, the urgency of the need to correctsuch conditions, and other circumstances involved in cor-recting such conditions.2

In addition, the Attorney General must report to the Congress on theoutcome of all actions undertaken against such institutions including inhis reports the following cost information:

An analysis of the impact ofactions instituted pursuant tothis subchapter, including, when feasible, an estimate of thecosts incurred by States and other political subdivisions;

A statement of the financial, technical, or other assistancewhich has been made available from the United States to theState in order to assist in the correction of the conditionswhich are alleged to have deprived a person of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States; and

The progress made in each Federal institution towardmeeting existing promulgated standards for such institutions or constitutionally guaranteed minima. 3

Congressional recognition of the need for cooperation among feder-al and state governments in achieving the aims of the legislation isevidenced by the language in the foIlowing statement of intent related~~o~;:iorities for use of federal funds to improve institutional condi- f):~

It is the intent of Congress that deplorable conditions ininstitutions covered by this subchapter amounting to deprivations of rights protected by the Constitution or laws of the

I. S. 1997b (al (2) (C).

2. Ihid.. paragraph (C/.3. S. 1997f

arch 1981] HOUSE - No. 6362 95

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1 thengm

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atedmdi-

United States be corrected, not only by litigation as contemplated in this subchapter, but also by the voluntary goodfaith efforts of agencies of Federal, State, and local governments. It is the further intention of Congress that whereFederal funds are available for use in improving such institutions, priority should be given to the correction or elimination of such unconstitutional or illegal conditions whichmay exist. It is not the intent of this provision to require theredirection of funds from one prograin to another or fromone State to another. I

The statute expressly disclaims authority to promulgate regulationsdefining standards of care2 and asserts that its provisions shall in noway expand or restrict the authority of parties other than the UnitedStates to enforce legal rights which they may have pursuant to existinglaw with regard to institutionalized persons. 3

The focus of the legislation is thus on giving the Attorney Generalpower to enforce the rights of patients or inmates in institutions ratherthan addressing appropriate judicial remedies for constitutional violations.

Congressional Authority Absent

Commentators on the institution cases generally agree that theprincipal practical reality that the courts must accept in shaping theirremedies in the institution cases is that money is a constraint. Theycannot continue their insistence on strict compliance regardless of theamount of money available, because the limits on government resources are no less applicable in the courtroom than outside of it. 4 TheSupreme Court recognizes this reality, as its procedural due processand equal protection cases demonstrate.

At the same time, recognition that government resources are finitedoes not allow the government to refuse to enforce constitutionalrights because it is too expensive to do so. As one observer sees it, the

I. S. 1997g.

2. S. 1997i.

3. S. I997j.4. Recognition of this practical limit on judicial power restricts the courts to their real. and not their imagined.

power: M ••• as a dissenting judge in an institution case said, '(a) Federal judge rearranginga State's penal oreducational system is like a man h:eding candy to his grandchild. He derives a great deal of satisfaction fromit and has no responsibility for the results.' Responsibility for government action in a democracy can resideonly in the political branches of government." hug. supra, 794, quoting McRedmulld \'. WilSOll, 533 F. 2d.757, 766 (2d. Cir. 1976).


issue in the institution cases is not whether there will be compliancewith the Constitution -- of that there should be no doubt - but ratherthe timing of achieving that compliance. 1 Because of myriad demandsfor limited government resources, only a certain amount of money canbe allocated in any particular year for a new expenditure, no matterhow intense the need for it. A judicial decision that institutional ~

conditions are unconstitutional requires that money be found to cor- tPreet them, but the amount of money to be applied each year is alegislative decision; this decision must be accepted by the courts if, inthe words of the desegregation cases, it is made "in good faith."2 Thejudicial impact on the purse, argue the critics ofjudicial intervention, isacceptable only if the legislature retains its discretion to raise andallocate money, a discretion limited by the need to meet the judicialorder but not eliminated by it.) Judicial requirements of expendituresmust, in short, meet the test of feasibility, and feasibility is in the firstinstance a legislative judgment, subject to the requirement that thelegislature's attempt to meet the constitutional standard is in goodfaith.

If given reasonable time to comply, court interference with thedemocratic decisionmaking process will be minimized and a judicialconfrontation with legislative power will become unlikely.

Many commentators on the institution cases also insist that detailedcourt orders containing hundreds of specifications that the executivemust implement are unworkable. The courts cannot effectively decidehow many registered nurses or square feet per patient are constitution-ally required. This level of detail necessitates continued federal judicialsupervision of the state's day-to-day management of its institutions;the court is thus compelled to intervene to ensure that its plan is beingcarried out. But, say the critics, state institutions are too complex to beadministered under court order; there are too many variables for acourt to consider and comprehend. It is no answer for the court toappoint a master to make these decisions; basic administration should , [;~be left in the hands of executive officials, mandated to comply with the ..'

I. Frug. supra, 788.

2. Brown v. Board oj£ducalion. 349 U.S. 294, 299 (/955); Green v. County Schoo/Bd., )1)1 U.S. 420,439( 1968).

3. Frug, supra, 788-89.

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I

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(arch 1981] HOUSE - No. 6362 97

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Constitution, but allowed the flexibility to do so as long as theyproceed in good faith. I

It is the direction and rate ofchange that is important, not the detailsof timing, staffing, and planning for capital construction. These details, critics argue, should not become the business of the courts.

Problematical Significance of Supremacy Clause

In National League ofCities v. Usery,2 the Supreme Court held thatthe application of the minimum wage and hour requirements of theFederal Fair Labor Standards Act to state employees did not "comport with the federal system of government embodied in the Constitution."3

JustiCe Rehnquist, who wrote the opinion in National League ofCities, said: "(T)here are attributes of sovereignty attaching to everystate government which may not be impaired by Congress, not becauseCongress may lack an affirmative grant of legislative authority to reachthe matter, but because the Constitution prohibits it from exercisingthe authority in that manner."4 The standard, apparently, in judgingbetween permissible and impermissible federal regulation is whetherthere is federal interference with "functions essential to separate andmdependent existence."s In the context of this case, state decisionswith respect to the pay of their employees and the hours to be workedwere essential aspects of their freedom to structure integral operationsin areas of traditional government functions. 6 A line of previous caseswas distinguished and preserved on the basis that the state activitiesthere regulated were so unlike the traditional activities of a state thatCongress could reach them.7

I. In commenting on the inappropriateness ofjudicial supervision of prison reform., the United States SupremeCourt stated: More fundamentally, this attitude springs from complementary perceptions about the natureof the problems and the efficacy of judicial interventin ... Suffice it to say the problems of prisons inAmerican are complex and intractable, and, more to the point. they are not readily susceptible to resolutionby decree. Most require expertise, comprehensive planning and the commitment of resources. all of whichare peculiarly within the province of the legislative and executive branches of government. For all of thosereasons, courts are ill equipped to deal with th~ increasingly urgent problems of prison administrati::m andreform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Procunier v.Martinez, 416 U.S. 396,404 (1974) (footnotes omitted); accord. Jones v. North Carolina Prisoners' LaborUnion. Inc., 97 S. Ct. 2S32, 2S38 (1977).

2.426 U.S. 833 (1976). This case was consolidated with California v. Usery also on appeal from the U.S.District Court for the District of Columbia. Attorneys General from several states joined on the briefs in theoriginal arguments.

3. Ibid.• 8S2.

4. Ihid., 845.

5.. Ibid.

6. Ibid., 852.

7. See discussion, Sen. Doc. 96·26. supplement to Sen. Doc. 92-1l2, .wpra, at pp. 51l1-1l2.


While the Court referred to the impact that such regulation couldhave on state policy, it did not rest the decision on "particularizedassessments of actual impact" because, in any event, the regulationwould "significantly alter or displace the States' abilities to structureemployer-employee relationships in such areas as fire prevention,police protection, sanitation, public health ... These activiti~s aretypical of those performed by state and local governments ... Indeed,it is functions such as these which governments are created to provide... If Congress may withdraw from the States the authority to makethose fundamental employment decisions upon which their systems forperformance of these functions must rest, we think there would be littleleft of the states' 'separate and independent existence.'''1

Thus, although the regulation of wages and hours was assumed tofall within Congress's authority over interstate commerce, the impliedconstitutional protection of the effective functioning of the the states inthe federal system was "an affirmative limitation" on the powersexpressly granted to Congress. 2 '

What the Court in effect said was that if an impermissible combination of functions is believed to be necessary to protect the constitutional rights under adjudication, that remedy does not "comport with thefederal system of government embodied in the Constitution."

How much of a restriction upon congressional power NationalLeague of Cities may prove to be is difficult to measure. It leaves agreat area of state conduct subject to federal regulation when the stateactivities challenged are not like "traditional government activities."Congress presumably would not be resricted when it acts in an emergency or pursuant to its war powers. And Justice Blackmun, in aconcurring opinion, expressed the view that there are certain situationssuch as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential. 3

I(as in the National League ofCities holding, constitutional struc-ture affirmatively limits the commerce powers, it should logicallyfollow that it must also limit the authority of the federaljudiciary. For,as one scholar has argued, there is no reason to assume that the expresslegislative power oVer commerce is somehow inferior to the express

J. No/iunol Leogu(' uI Cities, supra. lI51.

2. Ibid., ll41.

3. Ibid., ll56.

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larch1981] HOUSE - No. 6362 99

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judicial power to decide cases arising under the Constitution. I Yet,only months after deciding National League of Cities, the Courtrejected any such parity in Elrod v. Burns.2 Elrod involved the methodof staffing a county sheriffs office, the duties of which may be likenedto those of police referred to in National League of Cities. Notwithstanding the Court's finding in the ·latter case that Congress hadthreatened the "separate and independent existence" of the states whenit set minimum wages and ho'urs for state employees, the Court inElrod rejected any such limitation on its own authority partially tocontrol methods of appointments to such positions: "More fundamentally, however, ... there can be no impairment of executive power,whether on the state or federal level, where actions pursuant to thatpower are impermissible under the Constitution. Where there is nopower, there can be no impairment of power."3 Had this logic beenapplied in National League of Cities, it would have required theconclusion that control over wages and hours of state and local employees was not an impairment of state authority at all. State actionsinconsistent with federal standards would have been viewed as impermissible violations of the constitutional grant to Congress ofauthorityover interstate commerce, supported by the Supremacy Clause.4 Inshort, applying the rationale in Elrod, there was no conflict betweenfederal and state power in National League of Cities.

Chief Justice Burger, who recognized the inconsistency between thetwo holdings, suggested in his dissent in Elrod that the first amendment neither "requires nor justifies" the Court's "inroads on the powersof the State to manage their own affairs ... (as defined by) the powersreserved by the Tenth Amendment."s

The gaping inconsistency between the two cases educed the following comment from one observer:

This inconsistency demonstrates the powerful presentneed for thejudiciary to reassess its assumptions regardingthe definition of its own function with respect to the states.Regardless of its conclusions about the extent to which thejudicial power exercised in Elrod threatened the essentialfunctioning of the states, the Cou~t should have acknowl-

I. Nagel, .vupra, 679, n. 104.2. 427 U.S. 347 (1976).3. Ibid.• 352.

4. U.S. Constitution, Article VI.

t., S. Elrod, supra, 375-376.


edged the underlying truth of the decisional principle inNationalLRague ofCities: The extent of the express powersmust be limited by the underlying constitutional structure.One aspect of that structure is that the states and the peopleare protected from the exercise of the courts' power to trycases in a way that impermissibly combines its functionswith those of the other branches. I

The problem, in focus, is the tensity between a subordinate statepolicy that may infringe a federal constitutional right and the methodof protecting that right that might itself violate the Constitution. Fullyredressing violations of constitutional rights may often require theefforts of more than one branch ofgovernment. And, in the frameworkof conflict described above, the main issue appears to be whether theprinciple of Separation of Powers defines relevant, and perhaps flexible, limits to the judiciary's unilateral power to seek complete correction of the consequences of a constitutional violation.

CHAPTER IV. CONSENT DECREE ISSUES AND EFFECTSIN MASSACHUSETTS

Origin of Consent Decrees

In 1972, the first of five lawsuits involving the rights of mentallyretarded citizens of the Commonwealth was filed in the United StatesDistrict Court at Boston as a class action by residents of the Belchertown State School against various state officials, primarily the Commissioner of Mental Health. Subsequently, in 1974 and 1975, similarclass actions suits were brought by or on behalf of the residents of theFernald State School, the Monson Developmental Center, the Wrentham State School and the Dever State Schoo1.2 The five cases havebeen consolidated in the District Court before Judge Joseph Tauro.

None of the suits was litigated. Rather, the parties and the Courtundertook discussions and negotiations which resulted in the signing .);~

of consent decrees in all five suits. 3 The consent decrees covered four ~

I. Nagel, ,~uflru, 679-!!O, n. 104.

2. The five cases, as originally captioned, are: Rkd v. Greenhlall, CA. No. 72-469-T(Belchertown); McEvoy".Milchell, c.A. No, 74-27li!!-T (Fernald); GUII/hier I'. Ben.loll. CA. No. 75-3910-T(Monson); MUJ,mchuJellJAJ.w('iUliIJII/or Rl'Iartll'tI Cilizells \'. DukukiJ, CA. No. 75-5023-T (Wrentham); Mu,uadluwlI.~A.uodalicm.lor Relurtl('~1 Ciliun.l' I'. Dukaki.I·, CA. No. 75-5210-1' (Dever).

3, The dates of the approvals of the consent decrees by the District .Court are as follows: Belchertown,November 12, 1973;' Monson, July 22. 1976. Fernald. February ~ 1979; Wrentham (interim decree),FebruOlry 16, 1979; Dever (interim decree), February 16, 1979. On AU$ust 7,1980, the Capital CommunityPlan, also a consent decree, was approved by the District Court.

rt(

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arch 1981] HOUSE - No. 6362 tOt

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major subject areas: (I) construction and renovation projects designedto upgrade the physical facilities; (2) programs to increase the numberof professional and other staff at the schools; (3) programs to improvethe quality and quantity of services provided to residents; and (4)programs to develop community residential facilities that would permit residents to move from the schools into more normal environments.

In addition to the five consent decrees specific to each school, theparties also negotiated and signed a Personnel Decree applicable to allfive schools. I This decree describes a program for adding thousands ofadditional employees to the staff of the state schools and for reallocating portions of the staff to community programs as the residents leavethe schools for community programs.

Adoption of the Consent Decrees by the Court

Although the parties negotiated the agreement contained in thecons~nt decrees and the decrees were entered by their consent, thedecrees have since been formally adopted and are now the judgment ofthe Court. They are, therefore, binding on all parties and the Monitoras a matter of law and cannot be waived or modified without theCourt's approva1. 2 It should be noted, however, that none of thedecrees includes any statement to the effect that the defendants hadviolated or were violating any statutory or constitutional rights of theplaintiffs. Nor has the District Court been presented with the questionwhether any statutory or constitutional rights of the plaintiffs havebeen violated by the defendants. 3

Appointment of A Court Monitor

After the last of the consent decrees had been signed, the casesmoved from the negotiation process into an implementation phase.Given the magnitude of the task of converting goals set on paper toconcrete results in the form of capital projects, new personnel, proce-

I. "Final Decree on Personnel at the Five State Schools for the Mentally Retarded." The decree was approved" by the U.S. District Court on August 2, 1978.

2. The decrees bind not only the parties named in the suit but also their successors in office whether clected orappointed.

3. Massachusells As.wciationfor Retarded Citizenset 0/. I'. Kinget 0/. Court of Appeals (First Cir.) Civ. Action80-1061, Brief for the Defendants - Appellants, p. 4.

dures and the like, the parties suggested, and the Court agreed to theappointment of a Court Monitor to "review and report to the Courtand the parties on the progress towards implementation" of the consent decrees. I

Powers and Duties of Monitor

The powers and duties of the Monitor are spelled out in the decree.Briefly, the following may sum up the most important functions. Themajor responsibility of the Court Monitor as so defined is to "reviewand report to the Court and the parties on the progress towardsimplementation" of the consent decrees. More specifically, the Court~Ionitormay informally propose solutions or approaches to problemsfor the purpose of facilitating the defendants' achievement of compliance with the decrees; he must file periodic comprehensive writtenreports with the Court; he may make formal recommendations to thedefendants which are binding unless timely objection is made; and hemay inquire into the circumstances of individual complaints and makerecommendations as to their resolution. As a general principle, theCourt Monitor is "responsible solely to the Court and will serve theCourt and the interests of justice."2


ntJ1t\I,

"~t,",'r

Ii (

Monitor's View as to Goals of Litigation

The Monitor views the litigatioll: as having two broad goals: (I)upgrading the quality of all services delivered to mentally retardedpersons, and (2) ensuring that the service system does not slip back intothe morass from which it has been fitfully emerging during the pendency of these lawsuits. The first goal is achieved by working towards themany specific standards and projects enunciated in the consent decrees

. - providing and implementing individual service plans, improvingresidential environments, expanding staff resources, developing moreappropriate placements, and supplying better clothing, food, medicalcare and habilitative programs. 3

The second goal is addressed by instituting management systemswhich encourage the service system to solve its own problems without

I. Judge Taum appointed a lull-time Court Monitor on March 5, 1979, lor a IWo year term. The Commonwealth is paying all costs of the Monitor's ollice, presenlly localed al the Erich Lindeman:1 Mental HealthCenter.

2. The Court Monitor's ollice was created and defined by paragraphs 49 10 5H 01 the Fernald Decrce and byparagraphs 611to 77 of Ihe Wrentham and Dever decrees. Subse4uently, the definitions and pfllvisions ofthese sections were extended uniformly to all live slate schools.

3. United States District Courl Monilor, (Second) RL'/wrl 10 IhL' Court, December, 1979, pp. 1-2>

t)1

arch 1981] HOUSE - No. 6362 103

) theourtcon-

;ree.Theviewardsourtlems:omltten)thed helake, the:the

(I)'dedintolen-the

reeslInglOrelical

emslout

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necessitating such a drastic measure as federal judicial intervention. Inthe Monitor's words, "the Court's duty prior to relinquishment ofjurisdiction must be to determine that the litigation's twin goals havebeen accomplished - not just better services but ways of keeping themwithout eternal judicial vigilance. The system must be built in such away that it will outlast the Court, or else the litigation's benefits will betransitory. In effect, the Court functions now as a powerfulconstituency for the mentally retarded ...."1

Monitor's Views as to His RoleThe Monitor devotes 15 pages in his first report to the Court to

defining his role under the terms of the decrees.Scope. 2 To carry out his role, the Monitor is granted access to all

necessary persons, information, and residential and program areas. Allaspects of the five consent decrees fall under the Monitor's jurisdiction,as does every facility which serves a class client in any of the lawsuits.

In any problem related to the decrees, the Monitor offers the servicesof his office as coordinator, mediator, or facilitator but will imposeresolution only if one cannot be otherwise attained. He will ensure thatthe defendants respond to appropriate inquiries and complaints.

Monitoring Capacity. The Monitor first developed access to themental retardation system and all persons connected with it. 3 Hevisited all the institutions and some of the community facilities. Officespace and staff were acquired and an administrative process wasdeveloped. The decrees require the Monitor to respond to all complaints which, according to the Monitor, are "numerous, time-consuming and troublesome."4 The Monitor viewed as his largest immediate task, the evaluation of the defendants' compliance with theCourt's mandate. For this purpose the Monitor reduced the decrees tosix broad categories:s

I. Provision of a human living environment at the stateschools.

2. Improved personnel, including recruitment, trainingand retention of staff.

I. Ibid.• p. 3.

2. United Staes District Court Monitor, (First) Report /0 'he Court. March 12. 1979-June I, 1979, p. 79.3. Ihid., p. IlO.

4. Ibid., p. 113.

S. Ibid., pp. 116-117.


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Reports of the Monitor

Over the past two years the Court Monitor has submitted to theCourt several reports on a variety of matters relevant to the implementation of the consent decrees. These reports vary in scope and depth,some are addressed to a single problem, others are voluminous, com-\prehensive records of progress, or lack of it toward compliance with tll) the decrees. In the four most comprehensive documents filed periodi- '

3. Provision of individual service plans for all clients andfurnishing of all services required in the plans, to meethabilitative, education, health-related and other needs.

4 Creation of an adequate community service systemincluding satisfactory transfer and placement proceduresand suitable residential and program development.

5. Establishment of appropriate budgetary proceduresand provision of funds to facilitate compliance.

6. The honoring of the rights of class clients, pursuant toDepartment of Mental Health regulations, state and federallaw, and these decrees, including the development of adequate advocacy and guardianship systems.

With regard to the foregoing, the Monitor stated that "issues ofnoncompliance in any of the six categories may be raised with respectto particular individuals, state schools, community programs, or thesystems as a whole." I To achieve an effective capacity toward evaluating compliance, the Monitor suggested a variety of means that wouldex pand his efficacy: (a) citizen monitoring, 2 (b) a professional advisorytask force,.1 (c) deputizing selected state government personnel toreport on specific problems,4 (d) the use of outside experts and consultants,5 (e) the use of audit instruments which express consent decreemandates in terms of standards/' and (f) additional staff. ..... A fullystaffed and effective monitoring operation is a prudent investment: thesooner implementaion of the consent decree is achieved, the sooner theoffice will be dismantled."7

2I. Ihiel., p. M7.

2. lhiel.,

.1. Ihiel.. p. MM.

4. Ihid., p. MH-H9.

5. Ihid., pp. H9-92.

6. Ihid., p. 92.

7. Ihid.• p: 9.1.3

1arch1981] HOUSE - No. 6362 lOS

t:. 10'

les of:spectlr thelluatvouldIlsorylei tonsultlecree, fully11: theerthe

to the~men

iepth,,come with:riodi-

cally by the Monitor, I the records that are set forth indicate that inmost instances the defendants are cooperating satisfactorily, if notwith alacrity, in meeting their responsibilities under the terms of thedecrees. With regard to those areas where the Monitor is ofthe opinionthat a state of non-compliance exists, he has made recommendationsfor appropriate action on the part of the defendants to achieve compliance. This is not to suggest that defendants agree with all of theMonitor's interpretations of the decree or with his findings as tonon-compliance. Differences of opinion do exist, and, as expressed bythe Monitor, "spirited debate" often occurs.2

In his first report to the Court, on June I, 1979, the Monitor statedthat "the consent decrees have two central objectives: to provide asuitable living environment, and to provide habilitation services, i.e.,care, active treatment, training and education for all members of theplaintiff classes. These two goals have the overall purpose of enablingeach mentally retarded person to lead as close to normal life as possible. All other provisions of the consent decrees reflect these aims, andany interpretation of the decrees must be made in that light."3

The report contained five substantive chapters: residential environment projects, services, personnel, fiscal services and budgetary planning, and community placement. Because of limited resources, theMonitor was not able to evaluate fully many of these areas. Hence, thefocus was on "insuring that the renovation process moves forward in aprompt and suitable manner, given the constraints of public Construction." Similarily, the Monitor found the "system is simply too vast" tooffer any comprehensive evaluation (at that time) on services, personnel and community placement.

In his discussion of fiscal services and budgetary planning, theMonitor was sharply critical of the entire budgetary process which, hecharged, created obstacles and delays that continually interfered with

I. See United States District Court Monitor. Report /0 the Court, March 12. 1979-June I, 1979.121 pp;Rqwrt to the ('(JUri. December. 1979, III pp.; Report to the ('ollrl, August, 19!10. 143 pp.; Rl'/wrt to the('ourt. February. 19KI. 150 pp.

2. Conversations with some of defendants' agents during the compilation of data for this report suggest that anumber of staff on varying levels harbor private opinions that the Monitor is too readily susceptible toplaintiffs' persuasions. More apparent. however. is the relationship between the Court and dclendants. Atopen court hearings. the tone and manner of verbal exchanges between bench and bar. and between theCourt and Executive Branch officials, have produced a variety oj tense emotions not easily disguised orrepressed. ranging from anger and resentment to fear and frustration. While these moods and feelings arepresent in most courtroom proceedings at one time or another, it is the intensity of verbal jousting coupledwith a noticeable imbalance of dialogue (due to the Judge's command of the proceedings) that contribute to aseriously strained relationship between the federal and state participants.

3. (First) Report to the Court, supra, pp. 6-7.

106 HOUSE - No. 6362 . [March19

proper administration of the state schools.' Citing the system as "flatlyunacceptable,99 the Monitor pointed to several deficiencies: unrealisticdepartment census projections, departmental budget cuts that wereill-advised efforts to save money, inefficient fiscal operations withinthe agency, and lack of coordination among other participating agentsof the state.

In discussing funding aspects of community placement the Monitorindicated that substantial new funds will be required to implement thecommunity services component of the consent decrees. Acknowledgingthe effort of the Department of Mental Health in seeking the requisitemonies in the FY 80 budget, he recognized the extreme complexity inestimating budgetary requirements for programs with as many contingencies as exist in the community services sector, and the legitimatedisagreement that would arise as to the funds needed and the pace atwhich the Department of Mental Health would be able to spend them."Nevertheless, the expansion and upgrading of community programsfor class clients should not be hampered by insufficient funds. TheCommonweafth would do a great disservice to retarded persons if thesubstantial investment in improving institutional care were not complemented by a comparable effort for improving community care.992

At the time of the Monitor's foregoing observations, considerabledifferences were evident between the parties to the consent decrees withrespect to adequate funding of the community services program. Asnoted by the Monitor, some of the plaintiffs' representatives felt thatthe quality of community services was not satisfactory.3 These plaintiffs suggested that if the lack ofsufficient resources continued to causethe inevitable repercussions on quality of care, they might resist theplacement of any state school residents on the grounds that the programs do not meet consent decree standards.4

On this score, the Monitor's comment recalls language from districtcourt orders in the institution cases in other jurisdictions with respectto mandating the funding of court approved programs:

Should this situation evolve, it will be the Court's responsibility to determine if the plaintiffs' claim is valid, and, if so,to uphold it. Thus in order to maintain the desired flow of

I. Ihid., pp. 60-61.

2. Ihid., p. 76.

3. Ihid., p. 77.

4. Ihid,

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(

.!,~

Ilrch1981] HOUSE - No. 6362 107

atlyisticverethinents

itorthe~mg

[siteym.tinlatee atem.lmsThethe)me."2lblevithAs

:hatun.usetheJro-

rict>ect

class clients into the community, the Commonwealth mustprovide enough money to do the job well. Certainly theCourt does not intend to be a party to a reduction of thequality of clients' lives by accepting an underfunded comnity placement program. (Emphasis added)

Later, as will be seen, serious differences arose over the interpretation of the Personnel Decree in the matter of reallocating staff from theschools to the community services program. Notwithstanding sub~tan

tial increases in both personnel and funding to comply with the decree,the Court was not satisfied with the defendants' claim that they hadmet the requirements of the decree.

The second comprehensive report, filed in December, 1979, contained seven chapters: capital outlay, personnel, services, budgetaryplanning, community services, client rights, and the monitoring process. With respect to the last-named topic, the Monitor reported that inresponse to the quickening pace of monitoring and consent decreeimplementation, the defendants, in September, 1979, appointed anAdministrative Coordinator whose duty is to coordinate the severalagencies and many state officials working on consent decree matters."The presence of the Coordinator has improved the defendants' levelof organization and led to a more orderly process of responses."2 In thematter ofclient rights, the Monitor commented, "Certainly an effectiveclient rights sytem should be considered a prerequisite to the relinquishment of jurisdiction."3

In his third comprehensive report, filed in August 1980, the Monitorcovered the same. topics again, although various aspects of thesesubject areas not treated previously were discussed, progress on otherareas reported, material updated and some phases of operations weresubjected to sharp criticism.

The fourth and most recent comprehensive report was filed inFebruary 1981, again covering the general areas previously describedand adding a review of facility and programs development. The chapter on personnel recites changing circumstances affecting complianceefforts and indicates the need to modify and update the decree. Considerable attention is given to the need for reclassification of personnel.

I. Ihid

2. (Second) Repurt to 'he Court. supra. p. 106.

3. Ihid., p. 104

108 HOUSE - No. 6362 [March1~

With respect to community personnel tbe Monitor included data fromother sources that focus on the severity of the. turnover problem.

The foregoing limited description of the Monitor's major reports,which, taken together, amount to more than 500 pages of findings,review and recommendations, in no manner does justice to the Monitor's labors. However, it should provide a general landscape of thecomplexity of the problem that gave birth to the consent decrees andwhich now embroils the participants in an undertaking that promisesto continue for an indefinite period at a cost of hundreds of millions ofdollars over the lifetime of the decrees.

The next two sections will underscore these consequences. In thediscussion immediately following, it is shown that serious differencesbetween the parties, as well as between the state and the court, overinterpretations of certain language in the Personnel Decree, havetriggered the first appeal in the more than seven years of judicialproceedings. While the appellate court will decide the issues of law thatare raised, the proceedings that set the stage for the appeal recall someof the fears and concerns of judicial critics that are the subject ofChapter II of this report.

Current Challenge 10 Federal District Court's Orders

What appears to be the most serious difference that has arisenduring the implementation of the consent decree isa dispute overinterpretation of certain language in the Personnel Decree. The disputeinvolves two provisions of the decree, one dealing with acceptablevacancy rates in staff positions, the second dealing with reallocation ofstaff to community programs. At a hearing to consider interpretationof these provisions, the court made various comments and proceduralrulings that form the basis of an appeal by defendants to the UnitedStates Circuit Court of Appeals. Of particular interest is the third ofthree issues presented by defendants to the Appeals Court: "Whetherthe District Court's orders violate principles of equity and of federalism."1 That issue, of course, is one of the principal topics of discussionby critics of federal district courts in many of the institutions casesdiscussed earlier in this report.

I. Massachusetts Assodationlor Retarded Citizens et 01. v. Kinget al.. U.S. Court of Appeals (First Cir.) CivilAction'No. 80-1061. Brief for tbe Defendants-AppeUants. p, 2.

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1arch1981] HOUSE - No. 6362 109

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Background to Appeal

On October 31, 1979, the Court Monitor presented to the parties tothe Personnel Decree and to the Court a special report on personnelwhich set de'adlines to implement consent decree staffing requirements.In that report, the Monitor made several recommendations concerningthe manner in which the decree should be interpreted, including hisviews on the meaning of"compliance" under the decree, the criteria forreallocation of staff, and the role of the Court with regard to Title XIXstandards. 1 The Court scheduled a hearing on November 15, 1979 toconsider the Monitor's recommendations. At that hearing, the defendants submitted a written response to the Monitor's Report and, citingthe short time they had been allowed to examine the report, askedJudge Tauro for permission to file a supplemental memorandum priorto the Court's issuance of any directions or orders. That request wasdenied.

According to the Monitor, the Court expressed in strong terms itsdissatisfaction with the pace of progress on Personnel Decree compliance. Judge Tauro announced that he was inclined to place the stateschool personnel hiring process into receivership in order to improverecruitment and retention.· The defendants were ordered to reportwithin two weeks on the advisability of this approach, to identify whatstatutes, rules and regulations would require suspension, and to comment on any other factors affecting receivership.2

The Judge entered several oral orders at the hearing regarding themeaning and effect of the decree and the state's obligation under thedecree. In their brief, the plaintiffs-appellees describe the comments ofthe Judge at the hearing as mere restatements of defendants' obilgations under the decree, - that they were not really "orders" and thuswere non-appealable. 3 As the plaintiffs put it, the District Court restated the explicit terms ofthe Personnel Decree and added that until therewas some agreement on a different definition ofcompliance, the Courtwould require the defendants to recruit and hire all of the staff calledfor in the Personnel Decree. In the event that strict compliance wouldcreate hardships for the defendants, the District Judge, according toplaintiffs, invited the former to bring any specific requests to him but

I. All five schools for the mentally retarded are providers of services to a large percentage of their residentsunder the joint federal/state Medicaid Program. Title XIX of the Social Security Act (42 V.S.c. s. 1396 etseq.).

.2. (Second) Report 10 1M COWl. Jupra p. 40.J. Brief for the Plaintiffs-Appellees. p. ,.

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he noted that he would be persuaded by requests which were supportedby the Court Monitor, and, particularly by the plaintiffs. I As quotedby the plaintiffs, the Court's order included the following:

The decree is to be complied with literally. Whatever thenumbers call for in the decree, they are to be complied withto the number. ***You are not to assume that you mayallocate from one institution to another. ***You are tocomply literally with the terms of the decree.2

Notwithstanding plaintiffs' view that the Judge's statements werenot "orders" of the court, the Court Monitor, in his review of theNovember 15th hearing, has a' different int~rpretation of what theJudge's comments 'constitute:

The Court has now clarified that a strict numerical interpretation of the Decree is required. No other interpretationmay be used until the terms of the Decree are altered.

Variations from a literal reading of the Decree will beconsidered, but motions to the Court must be made beforereallocation or any other variation can occur. Failure tocomply with this stricture will lead to apotential citationforcontempt.3 (Emphasis added)

...The Court ruled at the November 15, 1979 hearing thatcompliance is to be based on the strict numerical mandatesof the Decree, until varied by the Court upon motion by theparties, and reaffirmed that staff reallocation must not oc- ~

cur prior to a finding of compliance. This ruling was dis-cussed above..In effect, it was ajudgment as to the procedurewhich must be followed prior to the initiation ofstaff reallo-cation.4 (Emphasis added)

On November 19, 1979, the defendants moved that the Court clarify f)·~its order in a written form. The District Court did not act on thatmotion. Subsequently, on November 26, 1979, the defendants movedthat the District Court vacate its oral orders of November 15th andp~rmit the defendants to present additional material in support of their

I. Ibid., p. 4.

2. Ibid., p. 5-6.3. (Second) Report 10 Ihe Court, supra., p. 41.

4. Ihid.. p. 45.

arch1981] HOUSE - No. 6362 III

views regarding the meaning and effect of the decree. At a hearing onIrted December 18, 1979, the District Court reaffirmed its oral orders ofoted November 15th and denied the defendantS' motions to clarify, to

vacate, and to allow additional·material. Plaintiffs assert that at thisDecember hearing, the Court, which "initially characterized its statements as an order,"1 recast its position in these words:

I don't consider I have an order outstanding which needs to bereconsidered.2

On Janury 17, 1980, the defendants filed their notice of appeal.Nere Plaintiffs contend the "orders" are non-appealable, citing authority. the that the Judge's statements must meet the test of what constitutes anthe order or judgment under the Federal Rules of Ciyil Procedure, which,

argue the plaintiffs, these "orders" do not.3 Further, they contend thatit has long been settled law that parties whose dispute is settled by theentry of a consent decree cannot appeal from that decree4 '

The foregoing procedural steps would ordinarily not warrant adescriptive record here. However, when the facts behind that procedural clash are reviewed, there emerges a further setting in which critics ofactivist judges may find more grist for their mill. The factual background, set forth in Defendants' Brief to the Court of Appeals, ascondensed below, indicates that the federal-state relationship in thiscase is, at best, an uneasy one.

Issues .Involving Decree .Interpretation

In the Personnel Decree negotiated by the parties and subsequentlyapproved by the Court on August 2, 1978, defendants contend that itwas the intent of the parties, and the understanding of the Departmentof Public Health,S that the personnel figures in that decree were deemedto satisfy any and all requirements imposed by federal law. The decreecommitted the state to the creation of 2,047 additional positions at the

rify five state schools and also presented the state;s plans. for staff recruit-that ment and training.

vedand J. Plaintiffs' Brief. p. 6.

heir 2. Ibid.3. Ibid. pp. 6-8.4. Ibid., p. 8. citing Swiji & Co. v. United Stotes, 276 U.S. 31 J. 328 (19211).

S. The Department of Public Health is not a party to the decree but it acts as federal representative inMassachusetts for purposes of ensuring that certain Medicaid providers. including the five state schoolsinvolved. conform to Title XIX requirements.

TABLE 3. Appropriations for Mental Retardation CommunityPrograms Fiscal 1980-81

Over the next few months, to assist in the recruitment and retentionof staff, salary increases for professional and direct-care staff wereobtained and a four-day work week and flexible time systems wereestablished. Vacancy rates approached and, at some schools, droppedbelow a five percent rate. It was at this point that two issues came intosharp focus: one, the acceptable rate of vacant staffpositions, the other,predicated on the first, the right to reallocate staff to communityprograms. To understand these issues, a review of departmental goalsis in order.

A central goal of the Department of Mental Health has been toprovide the mentally retarded with the highest quality services in aliving environment that is as closeto normal as is possible. In short, thegoal was to move the mentally retarded out of the large institutionsinto smaller, more individualized community programs. At the sametime it was obvious that immediate and extensive improvements werenecessary at the large facilities housing the mentally retarded. By late1979 (fiscal 1980), at the time of the hearing, the Department washeavily engaged in the creation of a network of community residentialprograms and support services, and major sums of money were committed to both of these objectives, with more to be added the followingyear, as indicated in the following tables.

TABLE 2. Appropriations for Construction and Renovation,Fiscal 1979-1980

HOUSE - No. 6362112

Fiscal Year

197919801981

Appropriation

$14,500,00031,200,00041,810,000

[March

Statutory Authority

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Statutory Authority fJI:tActs of 1979, c. 798, Item 5011-8802Acts of 1980, c. 537, Item 5011-8812

The District Court's orders of November 15, 1979, however, were tohave an acute and far-reaching impact on the planning and implementation of the community programs. In its oral orders, the DistrictCourt stated that any attempt by the defendants to reallocate staff

March1981] HOUSE - No. 6362 113

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from any of the schools to community placements without the Court'sapproval would be contrary to the Court's interpretation of the Personnel Decree and would be grounds for contempt. I Specifically, theCourt had ordered that prior to any reallocation of staff, the defendants must persuade the Court that they were in compliance with thePersonnel Decree (i.e., by the Court's interpretation, a staff vacancyrate of zero) or persuade the Court that the decree should be amendedto allow the reallocation.

The position of the Department of Mental Health is that the Court'sorders effectively remove from the Department its statutory authorityto deploy staff in a manner which best serves the interest 'of the clientsentrusted to its care. 2 In particular, it is argued, the Court's orders stripthe department of its discretion in carrying out the critical transitionfrom the institutions to the communities. Counsel for the departmentstresses that this transfer of authority from the agencies of the Commonwealth to the federal court was undertaken without benefit of anyjudicial finding that the defendants had failed to carry out their statutory responsibility or that they had violated the rights of any individual. It was also undertaken without any benefit of any waiver or transferof such authority by the defendants under the terms of the PersonnelDecr~e or under any other consent decree or agreement.J

Plaintiffs - Appellees reply that even if it is assumed that the DistrictCourt's "orders" are appealable, those orders are well within the scopeof the court's discretionary power to interpret or to modify the terms ofthe Personnel Decree. The order mandating its prior approval of allproposed adjustments is, according to the Plaintiffs, within the Judge'spower to oversee the implementation of the decree and is consistentwith a reasonable interpretation of the decree.4 Even if the Judge'sinterpretations are viewed as substantive changes in the terms of theconsent decree, plaintiffs argue that they are within the court's equita-

I. Defendants' Brief. supra. p. 25. Monitor's (Second) Report. mpra. p. 41.

2. G.l. c. 19, s. I, creating the Department of Mental Health. provides in part: "The Department shall takecognizance of all matters affecting the mental health of citizens of the Commonwealth and the welfare of thementally retarded. The department shall have s~pervision and control of all public facilities for mentally illor mentally retarded persons and ofall persons received into any of said facilities (with certain exceptions notrelevant here)."

3. Defendants' Brief• .~uprQ. pp. 26-27.

4. Plaintiffs' Brief, supra. p. 9. The Court of Appeals must decide if the District Court's ruling on literalcompliance as to numbers is reasonable, that is. that in a Department employing thousands of personnel.many of whom arc in low-paying unattractive positions where turnover has heen notorious. only a 100percent rate of filled positions will be acceptable.


ble power to modify its consent judgment.· Thus, "Having made thesecommitments (to specific numbers provided in the Personnel Decree),the defendants cannot now avoid their obligations by adopting aninterpretation at odds with the plain language of the decree on theground that their agreement has now become too burdensome.. Theprocedure for obtaining relief from burdensome requirements is toseek modification of the decree, ..."2

The Vacancy Rate Issue

In the brief to the Court of Appeals, the defendants have argued thatthe District Court has misinterpreted the Personnel Decree and that itsorders violate fundamental principles of equity and federalism. Pointing first to Paragraph 3 of the Personnel Decree, wherein the defendants agreed to add 2,047 staff positions to the five schools, and toParagraph 4 of the decree, wherein the defendants agreed to make"every reasonable effort to secure enactment of such appropriations asmay be necessary to fund the hiring" of the 2,047 positions, thedefendants then set forth Paragraph 7 ofthe decree which they describeas "the key provision" governing the issue:

The defendants recognize the need to attain and thenpreserve full staffing of positions in order to meet the needsof residents as set forth in Title XIX. Accordingly, defepdants will (a) engage in aggressive recruiting to obtain qualified applicants, (b) develop and operate the training program described in Attachment F ... for all applicants whoare hired, and (c) follow the steps set forth in Attachment Fwhenever the personnel vacancy rate exceeds 5 percent. Thedefendants agree to submit regular vacancy reports to theplaintiffs. These reports will include inter alia specific refer-

. ences to job categories where high vacancy rates have occurred. The defendants will use their best efforts to minimizevacancies, absenteeism, and turnovers in staff. If state paylevels fail to attract qualified professionals and other staffnecessary to meet the needs of the residents, the defendantswill use their best efforts to change the affected paylevels, orprovide the necessary staff through contracts for services, or

I. Ihid.• p. 9.

2. Ihid., p. 12.

IiI

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larch 1981] HOUSE - No. 6362 115

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(Emphasis appears in Brief)

Thus, as the defendants contend, on the face of the document bothparties recognized that full staffing was an elusive goal and thatvacancy rates of up to five percent were anticipated as the normal resultof staff turnover and other factors inevitably presented in a systeminvolving the work lives of thousands of people. 2 Compliance with thedecree therefore occurs, not as the Court views it, i.e., unless and untilthere are no staff vacancies at any school; rather compliance isachieved on the basis first of whether defendants have used their bestefforts to fund the full number of positions, and second, of whetherthey have taken all the steps required by the decree to recruit, hire, trainand retain staff for all funded positions.3 These latter conditions, thedefendants assert, were fulfilled. 4 •

The plaintiffs answer that this argument overlooks the purpose andstructure of the Personnel Decree. An obligation to create 2,047 positions would be relatively meaningless without an obligation to fillthose positions. In all the decrees in the instant case, plaintiffs assert, adual structure is incorporated: first, they set forth a general commitment, and then they list some specific measures designed to implementthat commitment. They emphasize that compliance is not to be measured by the extent to which defendants implement particular steps;rather it is measured by comparing the results achieved with the goalsembodied in the primary commitment. In the plaintiffs' view, defendants, by focusing on specific implementing steps have ignored theirgeneral commitment to provide specific numbers of staff.5

Inasmuch as the ability to recruit and retain staff personnel is of vitalimport to satisfying the Court's order that there shall be a literalcompliance with the strict numerical mandates of the decree, it is ofinterest to note portions of the Monitor's reports to the Court on thissubject, filed subsequent to the 1979 hearing. In August, 1980, the·Monitor commented:

It does not come as a surprise that long hours, low pay,limited benefits, mandatory overnights, and often lonely

I. Defendants' Brief. ,~lIpru. pp. 29-30.

f.. /hid., pp. 30-31.3. /hid.. pp. 31-32.

4. /hid.. p. 32. citing supporting documents aHitehed to Briel.

5. 1)laintilTs' Brief. ,wpm. pp. 14-15.

116 HOUSE - No. 6362 [March l'

and stressful working condition, have caused increased recruitment difficulties. For the first time, reports are occurring of substantial vacancies and difficulties in filling positions. Moreover, it appears that the fiscal constraints on thesystem have resulted in lower recruitment standards. Thereare fewer candidates willing to work under these conditions... Employees often leave for more satisfying positions inless than one year, thereby raising turnover rates. I

Most recently, ig his discussion of the status of compliance withpersonnel requirements at the state schools, the Monitor observed inFebruary, 1981:

The Court Monitor is unable to report any major reduction in vacancy r~tes at the state schools over the past six.months. Much of the remarkable progress shown betweenDecember, 1979, and June, 1980 resulted from the salaryupgradings in October, 1979. More recently, given the remaining salary inequities in certain personnel categories,continued difficulties in recruitment of hard-to-fill professional positions, high turnover at Fernald attributable tofacility reorganization, and continuing turnover difficultiesat the other faclities the pace of vacancy rate reduction hasslowed considerably. This diminution does not reflect a lackof recruitment effort which for the most part continues at ahigh level, but a variety of more structural obstacles. 2

Citing two reports of a private consultant on recruitment for the fivestate schools, the Monitor stated:

These reports provide an overview of the complexity ofthe recruitment tasks necessary to fill the several thousandjob vacancies which occur at the five state schools each year.*** Indeed, the consultants state that some oft-he barriers torecruitment in mental retardation facilities "seem to be rooted in causes which cannot be overcome by usual recruitingmethods, however vigorous and extensive."3

Addressing the problem of personnel turnover, the Monitor's reportaccents the gravity of the retention problem:

I. (Third) Report to the. Court, supra, p. 37.

2. (Fourth) Report to the Court~ supra, p. 20.

3. Ihid., p. 21.

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larch 1981] HOUSE - No. 6362 117

C. I U·

withred in

eport

*** Staff at all levels are frustrated by the inability toretain personnel once hired.

A recent draft turnover report provides significant information on the nature of personnel activity at the stateschools, which together employ more than 9,000 staff. Between August 27, 1978, when the Personnel Decree wassigned and August 25, 1979,5,686 new hires occurred at thestate schools. During the following year, August 26, 1979 toAugust 30, 1980, there were an additional 4,936 new hires.Since the Personnel Decree added less than 2, 100 positions,most new hires refill positions which have been vacated orterminated.

The magnitude of these numbers demonstrates the needto maintain a high recruitment capacity as well as theseriousness of the retention problem. In general, direct careturnover has diminished at all schools while nondirect careturnover has risen slightly.!***

The Issue of Reallocating Staff

The second. issue, that of reallocating staff from the schools tocommunity programs, arises because the Court tied the right to reallocate staff to a zero percent vacancy rate. Here again, the defendantsrely on the Personnel Decree to argue the Court's error in interpretation, citing Paragraph 10 of the decree in its entirety:

The staffing levels specified herein for FY 1979 are basedon the assumption that the resident population of mentally

. retarded persons in state institutions will be 4700 as of July19, 1978, or within three months thereafter. The partiesagree that as the resident population at each school decreases below the projectedpopulation due to the transfer ofresidents to community-basedfacUities or through attrition,the staff levels will be correspondingly adjusted. To thedegree that reduction in the resident population is caused bysuccessful community transfer, the defendants agree to shijiresources into community settings, including those offormer residents insofar as possible, and to provide adequate training programs for staff who can continue to per-

I. Ibid., pp. 26-27.

118 HOUSE - No. 6362 [Marc.. l~

form in non-institution settings. Prior to any decision toadjust staffing at any state school, the defendants agree toconsult with tHe plaintiffs' counsel and to bring any disagreement to the attention of the Court for its resolution.(Emphasis appears in Brief)1

This paragraph, as pointed out in the brief, presumes an ongoing. reallocation of staff corresponding to transfers of residents to community programs. Indeed, it "requires the defendants to reallocate staffin order to ensure that community residents receive proper care andservices."2 The plain meaning of the last sentence of the foregoingparagraph, according to the defendants, is that if the plaintiffs anddefendants are in agreement on the proposed reallocation, the reallocation should proceed without the District Court's involvement.3 Inthis regard, comments the appellant, the Court's orders of November15, 1979 which require that it pass on each and every proposed reallocation regardless of the positions of the parties appear to be squarely atodds with the terms of the decree. When there is disagreement, thedefendants believe only two questions are relevant for the DistrictCourt's resolution:

1. Have the defendants used, and are they currently using, the recruitment and retention mechanisms specified inthe Personnel Decree as well as any other means reasonableavailable to them to achieve full staffing?

2. Would the proposed reallocation ofstaff be carried outin such a manner as to preserve the ratios of residents to staffestablished in the Personnel Decree?4

If the Court finds that these two questions must be answered in theaffirmative, the defendants argue, there are no grounds for divestingthe defendants of their statutory right and obligat.ion to proceedaccording to their best judgment. The defendants spend several pagesin their brief to explain in detail the relationship between staff vacancies and staff reallocation, the ratio reallocation mechanism, and therelationship between staff reallocation and Title XIX standards which

1. Defendants' Brief, supra, pp. 43-44.2. Ibid., p. 43.3. Ibid., p. 41, n. 13.

4. Ibid., p. 41.

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[arch 1981] HOUSE - No. 6362 119

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Plaintiffs answer that this argument misses the mark. The fivepercent vacancy rate, plaintiffs assert, is the point at which the defendants are compelled to take extraordinary measures to deal with vacancies and does not excuse defendants from their primary obligation ofazer9 percent vacancy rate. 2 In short, plaintiffs say that defendants wantto substitute the ratio reallocation method as an approach to compliance with the decree. But, plaintiffs insist, the primary obligation offull staffing "cannot now be changed simply because a different approach would better serve the overall purpose of the lawsuit."3 Theremedy defendants seek is available by petitioning the court for thatrelief, not by reinterpreting the original document.4

In answer to defendants' reliance on Paragraph 10 of the decree asthe governing mechanism for authorizing reallocations of staff, plaintiffs cite three reasons to reject that challenge: First, the general equitable power of the court to administer its decrees authorizes and requiresprior court review; second, the monitoring process established by thedecree contemplates court involvement in reviewing all aspects ofcompliance; and third, the court's order requiring approval is a validexercise of its discretionary power to modify the terms of the PersonnelDecree.5 In short, say the plaintiffs, "A consent decree is not merely acontract subject to modification by agreement of the parties; it is ajudgment of the court and, like any other judgment, requires courtapproval prior to any modification of its terms."6

Plaintiffs also point to court review of staffing adjustments. as anessential cog in the monitoring apparatus. "Without an opportunity toreview proposed modifications in substantive obligations under thePersonnel Decree, the court might lose its control over this extremelycomplex ongoing remedial structure."7 In any event, notwithstandingdefendants' reliance on Paragraph 10 of the decree, plaintiffs arguethere is precedent that ••A court has inherent equitable power to modifythe terms of consent judgments."8

I. Ibid., pp. 42-47.

2. Plaintiffs' Brief, supra, p. IS.

3. Ibid., p. 16.4. Ibid.

5. Ibid., pp. 11-lll.

6. Ibid., p. 19, citing several authorities.7. Ibid., p. 22.8. Ibid., p. 23, citing authorities.

120 HOUSE":"" No. 6362 [March 19

The Fundamental Issue: Federal-State Relationship

Having dealt specifically with the Personnel Decree and the Commonwealth's obligations under that document, the defendants turnedto the broader question of whether the pervasive involvement of theFederal District Court in the development and implementation ofpersonnel reallocation decisions is warranted under' the circumstances .'',i,of this case. On this score, the defendants assert that the DistrictCourt's orders "exceed the permissible range of federal equitable reme-dial powers and trample on the rights and perogatives of the statedefendants."1 In essence, they "effectively impose a federal receivershipover the personnel processes at the state schools."2

The general principles of federal equity jurisprudence and of Federalism are reviewed in the brief. Many case authorities are cited but. thesubstance of these cases is that though the federal equitable power hasa potentially broad reach, that power is not plenary, - it may beexercised only on the basis of a constitutional violation. Further, oncea constitutional violation is found, a federal court is required to tailorthe scope of the remedy to fit the nature of extent of the violation)

Supplementing these general principles of equity jurisprudence isthe element of Federalism. Citing Rizzo v. Goode and other cases, it isnoted that the Supreme Court has required that where the exercise ofauthority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be presevedbetween federal equitable power and State administration of its ownlaw.4 (

Applying the foregoing legal principles to the instant case, the (defendants place in issue the necessity and propriety of the Federal ~

District Court's orders. In support of their contention that the Courthas violated these principles, the defendants recite several facts crucialto an assessment of the Court's conduct.

I. The five, consolidated cases were not litigated. ~, i~,'~,.Defendants voluntarily moved to the remedial stage, ••entering into preliminary agreements and interimconsent decrees to expedite results. All agencies ofthe state government gave full cooperation.

I. See Defendants' Brief, pp. 57·60 for cases citations.

2. Ihid., p. 58.

3. Ibid., p. 59.

4. Ihid., pp. $9-60 citing authorities.

-March 1981] HOUSE - No. 6362 121

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2. All consent decrees, including the Personnel Decree,were negotiated and drafted in full by the parties.

3. None of the decrees contains statements of fact ordescriptions of circumstances constituting violations of the statutory or constitutional rights of theplaintiffs. None of the decrees include findings orrulings to the effect that defendants violate any statutory or constitutional rights of the plaintiffs.

4. At no time from the filing of the first complaint in1973 through the approval of the latest consent decree in 1979, has the Court made any findings orrulings or entered any judgment to the effect thatdefendants had violated plaintiffs' statutory or constitutional rights. Nor did the Court during thatperiod, issue any findings or rulings delineatingwhat plaintiffs' statutory or constitutional rightsmight be.

5. The Court did not issue any findings, rulings, orjudgments regarding the existence or violation of theplaintiffs' rights from the time of the approval of thelatest consent decrees to the time of filing of the brief(September 26, 1980).

Thus, the defendants argue, with regard to the power of the DistrictCourt to fashion broad equitable remedies, the threshold requirementof a constitutional or statutory violation has not been meL' Further,although the Personnel Decree specifically provides that only whenthere is a disagreement among the parties on a proposed allocation,need the matter be referred to the District Court, the Court has orderedthat every reallocation be approved by it regardless of the positions ofthe parties. In the defendants' words, "it appears that the DistrictCourt has adopted an anticipatory rather than a 'remedial' posture."2

Although the language of the Personnel Decree sets forth conditionsunder which the defendants would be in violation (obligations regarding recruitment, reallocation ratios) the Court's rule of zero percentvacancies virtually ensures that the defendants will be constantly inviolation of the Personnel Decree.) "Thus. the Court will maintain

I, Ihid" p. 64.2. Ihid., p. 65.3. Ihid., p. 66


complete control over reallocations irrespective of the nature of thedefendants' plans and the conditions at the schools."1

In addition to the aforedescribed substantive aspects of equity jurisprudence. the defendants have pointed out procedural aspects of theDistrict Court's orders which denied defendants of a fair opportunityto present their views and their evidence.2 The gist of this argument isthat in abusing its discretionary power, the Court served neither justicenor fair play.

In addressing the issue of Federalism, the defendants stress theeffects of the District Court's zero percent vacancy rule which allowsthe Court to determine which staff will be moved to which locations aswell as when and under what circumstances such transfers will beallowed. This, it is argued, puts "the personnel reallocation aspects ofthe case into federal receivership because for all practical purposes,'control and management' of reallocation issues resides with the District Court, not with the state defendants."3 The defendants comparethe facts of the instant case with facts of institutional federal receivership cases to underscore their contention that the Court has becometoo embroiled in details and decisionmaking in an area that should beleft in the first instance to the state defendants.4 In those cases factualelements such as "intolerable conditions," "extraordinary circumstances," wilful violations of plaintiffs' rights, non-eompliance with remedial plans, and defendants adjudged in contempt gave rise to thenecessity for a federal receivership. Such circumstances that warrantedintrusions into the state's autonomy in those cases, however, are insharp contrast with the circumstances in the instant case. To illustrate,there is absent any finding of a constitutional violation. Unlike theobstructionist behavior in the receivership cases, the Commonwealthdefendants have voluntarily accelerated the remedial process achievingresults in a short time frame. At least two governors and other executive department defendants have taken extraordinary steps to assemble and move successfully through the Legislature one of the largestsingle personnel packages in the history ofthe Commonwealth.5 Thou-

I. Ihid.2. Ihid.• pp. 66-61l.

3. Ihid.• p. 69.

4. The receivership cases discussed are Morj(tllI I'. Md)ollouj(h 540 F. 2d 527{1 st Cir. 1976), the South BostonHigh School case; and Newman v. Alahama 349 F. Supp. 278 (M.D. Ala. 1972); 466 F. Supp. 628 (M.D. Ala.1979). a prison case.

5. Acts of 1977. c. 363A creating approximately 1150 positions (Item 5016-1011. later transferred to Item5026-0100 Acts of 1971l. c. 367) and Acts of 1978. c. 442, creating approximately 1,700 positions (Item5016-0100).

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sands of staff have been recruited and trained, and hundreds of millions of dollars spent or committed to the task of complying with thedecree. Yet, despite these efforts and accomplishments, the crucialbridge to future delivery of mental retardation services, the reallocation of staff to community programs, is swept from control of the state.In the defendants' words:

This is a result which cannot be supported by the Personnel Decree or the other consent decrees or by principles ofequitable remedial power. It is a result which violates fundamental divisions between federal and state prerogatives andwhich will inevitably lead to a chilling effect on the efficientoperation of responsible state agencies. I

Plaintiffs - Appellees give sparse attention in their brief to theissues of federalism and equity.2 This is because, they argue, suchprinciples have minimal relevance to a case settled by a· series ofconsent decrees:

Federalism is simply not an issue in a case in which theremedy is not imposed by the federal court but is settled byconsent decrees negotiated by and agreed to by the plaintiffsand the state defendants.]

This is a curious statement coming on the heels of plaintiffs' arguments that a consent decree is not merely an agreement between theparties but is ajudgment of the court which requires court approval toany modification and that the court itself has inherent equitable powerto modify the terms of consent judgments.4

Plaintiffs also maintain that with regard to the defendants' complaint that the court has exceeded its equitable remedial powers, thatissue cannot be raised when the parties fashion their own remedy.sThus they dismiss the state's argument that there must be a finding ofaconstitutional violation before a remedy can be imposed and that theremedy must be carefully tailored ~o the violation. 6

In sum, plaintiffs argue that the defendants have overstated theircase. The Court's order that is complained of is not a final, remedial

I. Ihid.• p. 72-7J.2. Less than four pages arc devoted to these issues. See Plaintiffs' Brief, supra, 24-27.3. Ihid., p. 24.4. Sec Plaintiffs' Brief, supra. p. 9..S. Ihid., p. 25.6. Ihid.

124 HOUSE - No. 6362 [March ]

order, but only a restatement of obligations consented to by the stateand the state has the opportunity to seek relief by petitioning theCourt. The Court is doing nothing more than overseeing the implementation of a very complex area of the consent decrees. I

As of the date of the filing of this report, the appeal discussed abovewas still under advisement by the United States Court of Appeals. •The Fiscal Impact of the Consent Decrees

Consent decrees entered into by the Department of Mental Healthaffect three areas of responsibility: (1) the mentally retarded, as indicated by the consolidated actions before Judge Tauro at the UnitedStates District Court at Boston; (2) the mentally ill, involving theNorthampton State Hospital in an action before Judge Freedman atthe United States District Court at Springfield, which to date has notrequired a funding commitment of major proportions, and (3) theprison population, specifically the mental health clinic at Bridgewaterwhich involves both the Department of Mental Health and the Department of Corrections.

Because the decrees affecting the mental retardation facilities havethe major impact on the Commonwealth's fiscal resources, only thespending related to these decrees is discussed here.

The mental retardation decrees require huge increases in operatingbudgets because of ( I) necessary increases in staffing; (2) new programsmandating individual services which involve several highly trainedprofessionals with one client (i.e., several staff, each with a differentskill, combining to treat a single retarded person) that, in turn, must bemultiplied by thousands of clients, and (3) dual facilities, i.e., themaintaining of established resident facilities (that must be upgraded)with a reduced census, and the construction and operation" of newcommunity facilities necessitating huge outlays of capital.

When the original consent decrees were" agreed to, the ultimate ..financial consequences were not foreseen. According to one mental f~thealth official conversant with the background of capital outlay projections early in the life of the consent decrees, it was thought thatabout $40 million would suffice to achieve compliance. But once repairwork was underway, it became apparent that a virtual Pandora's boxhad been opened. Renovation work on buildings known to have beenin poor condition soon revealed that they were rotten to the core.

I. Ibid., pp. 26-27.

\'larch 1981] HOUSE - No. 6362 125

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Entire ne'w electrical systems were necessary to pass code requirements. Entire new plumbing systems had to be installed as ancient,fragile pipes broke or collapsed during repair work. Heating systemswere so obsolete that it was impossible to modulate temperatures.While several other deficiencies could be cited, the upshot of these,discoveries was that original estimated costs were totally unrealistic.

Aside from the obvious need to replace obsolete equipment and toupgrade living conditions acknowledged to be deplorable, there wereadded obligations: complying with health and safety codes and meeting Title XIX standards if federal per diem reimbursements were to bereceived.

Early in 1980, the Division of Mental Retardation of the Department of Mental Health prepared a report that anlayzed the cumulativecosts of the consent decrees affecting the five state schools for thementally retarded. I At that time it was found that cumulative coststhrough fiscal 1980 had exceeded a quarter-billion dollars.

TABLE 4. Consent Decree Costs .in the Five State Schools forthe Mentally Retarded through Fiscal Year 1980

Operating Accounts $ 12,602,203Consent Decree Account 5026 19,414,661Consent Decree Account 5016 161 ~316, 704Personnel Reclassification 2,683,992Furnishings & Equipment 3,592,861

Sub-Total $199,610,421Capital Outlay 71,750,709

Total' $271,361,130

Source: Massachusetts Department of Mental Health, Division ofMental Retardation.

The Department Report also analyzed the growth of per capitacosts during the period 1971-1980. Excluding capital costs, since 1971,the annual per capita cost had increased from $4,927 to $25,484, anincrease of more than 500 percent. Another finding of interest was thereduction in census for the schools. Between 1970 and 1979, the clientpopulation of the five schools dropped from 7,779 to 4,212, an overall

I. Report on the Costs of the Consent Decrees, Historic and Projected, January 10. 1980. Circulated forInter-departmental use.

reduction of 46 percent. Four factors were cited relating to the reduction:

I. The population at the schools before the Decrees.consisted of many clients who were not retarded.

2. The old policy of massive movement into nursinghomes and outright discharges with no services thatcharacterized pre-Consent Decree policy hasstopped.

3. Medical Contracts at the institutions have cut thenumber of deaths significantly.

4. The client represented in the pre-Consent Decreepopulation was much less involved and easier toplace. Thus, the remaining population consists ofclients who are much more involved medically andbehaviorally, and are consequently more difficult(and more expensive) to place in the community.

When fiscal 1981 consent decree related appropriations are added tothe 1980 report on cumulative costs, the total consent decree figure is inthe vicinity of $356.6 million. I

TABLE 5. Cumulative Consent Decree Costs, Mental Retardation Items Only, through Fiscal 1981.

HOUSE - No. 6362126

Opentinc Costs

Through Fiscal 1980 $199,610,421Acts of 1980, c. 538 28,719,641

Total $228,330,062

[March

CapitatOutlay

Through Fiscal 1980 $ 71,751,000Acts of 1979, c. 798 5,000,000'Acts of 1980, c. 537 41,810,0002

Acts of 1980, c. 537 9,700,000·Total S128,261,000

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I. Community facilities. As of December 31, 19110 these appropriations had not been expended.2. Schools.

In addition, Governor King has recommended an additional$43,652,000 in the Fiscal 1982 capital outlay program to comply withTitle XIX requirements and to meet the terms of the court consentdecrees.2 In the narrative accompanying the Governor's Fiscal 1982

I. This figure is slightly less than the $365.1 million indicated in the Governor's Budget message, See House,No. I of 1981, Summary, p. 411. No breakdown of that total is provided.

2. House, No. I of 1981, pp. 114, 157.

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larch 1981] HOUSE - No. 6362 127

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recommendations, it is indicated that anticipated cumulative coststhrough Fiscal 1983 will reach $488.5 million. I

The eventual total cost to implement these decrees is really impossible to estimate accurately because of two factors: (J) the open-endednature of the decree, - there is no definite terminal point -. the burdengoes on as long as the mentally retarded need services; (2) the individual service pla'n which is based on an assessment of individual retardedclients, Le., each client has different needs or services and anyone clientmay require the services of several-professio~als.We are dealing interms of billions of dollars over the life of the decrees.

At the same time, it should be stated that a considerable portion ofthese expenditures is federally reimbursable under the Medicaid program.

Implications of Prior Legislative Approval

The foregoing review of the consent decree issues on appeal to theUnited States Court of Appeals is cause for all state agencies to weighcautiously the consequences of entering into consent agreements thatwill ultimately be adopted by the court of jurisdiction. In the instantcase, it is now obvious that what the state defendants believed they hadagreed to with respect to the terms of the Personnel Decree is something quite different than what the plaintiffs allege it to have been, orwhat the Judge of the Federal District Court has ruled by his interpretation. Because the Court adopted the decree, it has become theinstrument of the Court, which has inherent power to interpret or evento modify. With that power, the Court is in a position to insist uponimplementation of its interpretation which may constitute a s~bstan

tive alteration and remedy that either or both of the parties may nothave been willing to consent to in the first instance.

With respect to the language of the study order that is the basis ofthis report, i.e., requiring prior legislative approval of consent decreesthat call for appropriation of funds to implement the terms of thedecree, it may be that the proposal is one that breaks new ground.

Inquiries to other state legislative research agencies, the NationalConference of State Legislatures, the Council of State Governments,the National Association of Attorneys-General and other sourceselicited no example of an existing legislative prerequisite in otherjurisdictions similar to the one cnntained in the study order. The

I. Ihid., p. 48.


explanation may be that there may be some hesitancy to move in thisarea due to restraints such legislation would place on executive officerswho are subject to adjudication.. As an example, if such legislation were in effect, and the General

Court refused to give its prior approval to the execution of a consentagreement, the probable outcome could well be more unpalatable than ._.an agreement evolving from a negotiated remedy. A likely result wouldbe litigation of the issues and the entry ofa court decree unsympatheticto defendants' arguments. Such a decree could ordain implementationfunding in much greater sums than might have been negotiated, or afunding timetable that could cause far more serious disruption tnstatefinances than one designed by agreement of the parties. "

On the other hand, there are equally serious consequences to givingprior approval to the terms of a proposed consent agreement. "TheGeneral Court, before proceeding on that tack, may want to considerthe possible consequences of placing its imprimatur on any consentinstrument. In a hypothetical case where the Legislature has in factrecorded its approval of the terms of a consent decree that requiresappropriations"to implement, some uncertaintly may emerge as to thestatus of the Legislature in a subsequent proceeding involving allegednoncompliance with the terms of the decree. Though not an actualsignatory to the decree, would the Legislature, by its prior approval ofthe terms of the decree, as it understood the terms, have implicitlysubmitted itself to the jurisdiction of the court? And if the GeneralCourt disagreed with the court's interpretation of the terms, andrefused to fund the decree, would the legislators be subject to thecontempt power of the court?

At the hearings in 1980 on funding issues related to the consentdecrees adopted by the Court, Judge Tauro, having ordered the appearance of the chairmen of the Committees on Ways and Means ofeach branch, sternly declared from the bench that "these decrees will befunded." Neither legislative official was a signatory to the decree and i'Jiltneither was a defendant in the proceedings. While the comments of .Judge Tauro may have been delivered with the intent of spurringlegislative action, the Judge's statement would have been considerablymore compelling were the Legislature more directly involved with theconsent agreement before the court.

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March1981] HOUSE - No. 6362 129

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It is also clear from numerous decisions discussed earlier in thereport that the courts will not accept lack of financial resources as anexcuse for noncompliance with a decree. Though unrealistic in theirterms, it has been shown that courts have directed that where facilitiesdo not meet constitutional standards for lack of resources to upgradethem, they must be closed and the inmates either discharged or placedelsewhere. Such decisions are the equivalent of injunctive orders tospend monies regardless of the effect on other, equally pressing, stateprograms. Judges do not concern themselves with legislative or executive priorities fashioned to deal with limited resources. Ifa court decreerequires the immediate allocationof revenues to one area of humanservices activity that will result in a detrimental effect on other activities geared to human services needs, the latter must do without. Thebasis of these judicial orders, as indicated in the report, is the protection of the constitutional rights of the inmates involved. Ifviolations ofconstitutional rights are established, the courts have the power to orderimmediate steps be taken to remove the violations. Thus, if, "in thehypothetical case, legislative prior approval were necessary to executea consent agreement and a state defendant party stood ready to enterinto such agreement but could not act because the Legislature was notin session, the court's unwillingness to wait upon the Legislature maywell lead to the calling of a special session.

It would appear that until the Supreme Court of the United Statesacts to clarify the lim"its of a district court judge's powe"rs as exercised inthe institution cases, the issues will continue to be troublesome, theongoing court supervision of remedies will continue to be indefinite,and the final costs will remain indeterminable.

This Document Hal Been Primed On rOO% Recycled Paper.

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