King v. Greenblatt

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-1751

MITCHELL G. KING, ET AL.,

Plaintiffs, Appellees,

v.

MILTON GREENBLATT, LESLIE TAYLOR,
CHARLES W. GAUGHAN, M.C.I. BRIDGEWATER,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

William L. Pardee, Assistant Attorney General, with whom Scott

Harshbarger, Attorney General, and Scott M. Davis, Assistant Attorney

General, were on brief for appellants.
Anthony A. Scibelli, with whom Robert D. Keefe, Stephen C.

Reilly, and Hale and Dorr, were on brief for appellees The Class of 48

+ 1; David R. Geiger, with whom Sarah B. Reed, and Foley, Hoag &

Eliot, were on brief for intervenors/appellees Donald Pearson, et al.

April 6, 1995

BOWNES, Senior Circuit Judge. This is the latest
BOWNES, Senior Circuit Judge.

chapter in the institutional reform litigation brought in

1972 by plaintiff Mitchell King, then a civilly-committed

patient of the Massachusetts Treatment Center for Sexually

Dangerous Persons in Bridgewater, Massachusetts, to correct

allegedly unconstitutional practices by the Department of

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

litigation has been exhaustively covered: In re Pearson, 990

F.2d 653 (1st Cir. 1993) (Pearson III), Pearson v. Fair, 935

F.2d 401 (1st Cir. 1991) (Pearson II), Langton v. Johnston,

928 F.2d 1206 (1st Cir. 1991), Williams v. Lesiak, 822 F.2d

1223 (1st Cir. 1987), and Pearson v. Fair, 808 F.2d 163 (1st

Cir. 1986) (per curiam) (Pearson I). We review the case

history only to put this appeal in perspective.

I.
I.

King alleged that he had been deprived of due

process and other federal constitutional rights by the

defendants, specifically by officials of the DOC, who

allegedly placed him in solitary confinement without notice

of the charges against him or a meaningful opportunity to be

heard. DOC's actions allegedly interfered with King's

treatment by the Department of Mental Health (DMH), the

agency vested with primary jurisdiction over the Treatment

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Center. See Mass. Gen. L. ch. 123A, 2.1 Thus, an element

of this litigation, present from the very beginning, has been

DOC's alleged usurpation of DMH's statutory authority over

patients at the Treatment Center, during which usurpation the

patients' constitutional rights were allegedly violated.

Invoking both the Federal Constitution and state law, King

sought declaratory and injunctive relief from the DOC's

sequestration practices.

In 1974, the district court held a hearing on

King's allegations and entered a consent decree that

provided, in relevant part:

1. The Treatment Center at MCI
Bridgewater shall be treated as a
facility of the Department of Mental
Health.

2. Primary responsibility and
authority for the Treatment Center shall

1. Section 2 of ch. 123A (as amended through St. 1959, ch.
615) provided in pertinent part: "The commissioner of mental
health shall establish and maintain, subject to the
jurisdiction of the department of mental health, a treatment
center . . . at a correctional institution approved by the
commissioner of correction, for the care, custody, treatment
and rehabilitation of [sexually dangerous] persons . . . .
The commissioner of correction shall appoint such custodial
personnel as may be required for such center. Such custodial
personnel shall be subject to the control of the commissioner
of mental health with respect to the care, treatment and
rehabilitation of persons in their custody, but shall at all
times be under the administrative, operational and
disciplinary control of the commissioner of correction. The
commissioner of mental health shall appoint to such center,
in addition to the personnel appointed by the commissioner of
correction, adequate personnel for the care, treatment and
rehabilitation of such persons committed to their care."

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be exercised by the Department of Mental
Health.

3. All personnel at the Treatment
Center (clinical, custodial,
administrative) shall be subject to the
control of the Commissioner of Mental
Health with respect to the handling of
patients.

4. Custodial personnel, but not
patients, shall be under the
administrative, operational and
disciplinary control of the Commissioner
of Correction.

5. The Department of Mental Health
shall exercise the responsibility and
authority set forth in subparagraph 2
above so that patients at the Treatment
Center should have the least restrictive
conditions necessary to achieve the
purposes of commitment. . . .

The first four paragraphs of the consent decree closely track

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

consent decree was entered.2

Over time, the residents of the Treatment Center

brought various suits to enforce or to modify the consent

decrees. In 1988, the Commonwealth sought unsuccessfully to

vacate the decrees. "The stream of litigation occasionally

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

and this court as well.

2. The district court also entered a supplemental consent
decree that (1) prohibited defendants from using solitary
confinement for the purposes of discipline or punishment; and
(2) imposed various procedural and substantive requirements
for the use of sequestration. The defendants do not seek to
modify the supplemental consent decree.

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While the residents were attempting to enforce the

consent decrees, forces on the sidelines of the litigation

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

Massachusetts' executive branch filed a number of legislative

bills that sought to transfer control of the Treatment Center

from DMH to DOC. None of these bills were adopted until

1994, when the Massachusetts legislature enacted St. 1993,

ch. 489. Chapter 489 purports to transfer all authority over

the Treatment Center to the DOC, in direct contravention of

the first five paragraphs of the consent decree. Section 2

of ch. 489 provides that "[t]he commissioner of correction

shall maintain subject to the jurisdiction of the department

of correction a treatment program or branch thereof at a

correctional institution for the care, custody, treatment and

rehabilitation of persons [ad]judicated as being sexually

dangerous."

The defendants immediately moved under Fed. R. Civ.

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

plenary authority over the Treatment Center, subject to all

other substantive and procedural requirements of the

decree.3 Their sole argument was that the Massachusetts

legislature's enactment of ch. 489 constituted "a significant

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

related litigation that involved a similar consent decree.
See Williams, 822 F.2d at 1224. The district court did not

rule on the motion because counsel had not yet been appointed
for the plaintiffs in Williams.

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change in circumstances warrant[ing] revision of the decree."

See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383

(1992) (setting forth standard for modification of consent

decrees, and reversing the decision of this circuit).

The district court denied the motion from the

bench: "On the record that is now before me, and

incorporated into that record, everything that I have learned

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

Bruder and the Pearson cases [companion cases], I will

conclude at this time that the defendants have not sustained

their burden of showing a significant change in law or fact

under Rufo." The court also made the following findings:

I do find that the consent decrees
sought to address federal constitutional
violations articulated by King and in

Williams [a related case].

A critical component of the remedy
provided by the consent decrees was that
the Department of Mental Health was in
control of the Treatment Center which was
to provide, in part, a check on the
Department of Correction[,] which
compromised treatment.

I conclude that the Department of
Mental Health is an essential part of the
decree, and on the record before me at
this time, the Department of Correction
has done nothing yet that I can see which
warrants my placing confidence in its
ability to deliver . . . patient
treatment.

I conclude at this time that the
Department of Correction's control of the
Treatment Center compromises the federal
constitutional remedy which the consent

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decree sought to impose, and would
compromise the federal constitutional
rights which the consent decrees sought
to protect.

. . . .

Will the Department of Correction
provide th[e] same treatment [as DMH]?
That's not shown. If they were to
provide that treatment, if there were to
be a case-specific inquiry in what the
Department of Correction was going to do
and proposed to do, then perhaps I would
be able to rule otherwise. But at this
point, there is not that showing. . . .

The district court invited the Commonwealth to propose ways

to modify the decree that would preserve the federal

constitutional remedies, and yet accommodate the change in

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

going to go anywhere" before the defendants have tested the

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

4. We asked the parties to brief the issue of our appellate
jurisdiction in light of Carson v. American Brands, Inc., 450

U.S. 79, 84 (1981), which, in the context of an appeal from
an interlocutory order refusing to enter a consent decree,

applied the general rule that an appeal under 28 U.S.C.
1292(a)(1) is available only if the order "might have a
'serious, perhaps irreparable consequence,'" and can be
"'effectually challenged' only by immediate appeal"
(citations omitted). Assuming, without deciding, that these
conditions apply where the district court refuses to modify a

longstanding consent decree, we think the appeal is properly
before us. In particular, the district court's forecast of a
stalemate pending appeal suggests that its order can be
effectually challenged only by immediate appeal.

We also note that Rufo itself was an interlocutory appeal

from the denial of a Rule 60(b)(5) motion to modify a consent
decree. Neither the Supreme Court nor we, however, addressed
the jurisdictional issues in that case.

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defendants filed a renewed motion for modification and a

motion to vacate the consent decrees while this appeal was

pending.

II.
II.

We review the district court's application of the

Rufo standard, and the more general requirements for granting

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

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

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

(1st Cir. Jan. 30, 1995). Rufo held that "a party seeking

modification of a consent decree bears the burden of

establishing that a significant change" in either factual

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

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

"the court should consider whether the proposed modification

is suitably tailored to the changed circumstance." Id. at

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

modification of a term of a consent decree that arguably

relates to the vindication of a constitutional right." Id.

at 383 n.7.

Rufo instructed district courts to "exercise

flexibility in considering requests for modification of . . .

institutional reform consent decree[s]" because such decrees

"'reach beyond the parties involved directly in the suit and

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impact on the public's right to the sound and efficient

operation of its institutions.'" Id. at 381, 383 (quoting

Heath v. De Courcy, 888 F.2d 1105, 1109 (6th Cir. 1989)). We

have echoed these concerns. See, e.g., Pearson III, 990 F.2d

at 658 ("In institutional reform litigation, injunctions

should not operate inviolate in perpetuity."); Mackin v. City

of Boston, 969 F.2d 1273, 1275 (1st Cir. 1992) ("we believe

that district courts should be flexible in considering

requests for relaxation of, or release from, decrees which

were initially established to bring about needed

institutional reforms"), cert. denied, 113 S. Ct. 1043

(1993). Notwithstanding the application of this "less

stringent, more flexible standard," a modification "must not

create or perpetuate a constitutional violation." Rufo, 502

U.S. at 380, 391.

III.
III.

We shall refer to the first five paragraphs of the

1974 consent decree as "structural" terms, inasmuch as they

incorporate the administrative structure mandated by state

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

For the purposes of their motion, the defendants

assume that the structural terms "arguably relate[] to the

vindication of a constitutional right." Id. at 383 n.7. Of

course, if the terms at issue were directly mandated by the

Constitution, a change in state law without more would not

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warrant a modification. Modifiable terms will typically fall

somewhere along a spectrum: in general, terms that directly

implement constitutional requirements -- e.g., a

predeprivation hearing to satisfy procedural due process --

will be more closely related to the vindication of a

constitutional right than terms that lay the groundwork for

other remedial measures.

We think that the structural terms in this case

belong in the latter class. The Constitution itself is

indifferent to whether DOC or DMH administers the Treatment

Center. If, however, as King alleged, DOC personnel violated

his constitutional rights in the process of usurping DMH's

authority and interfering with his clinical treatment, then a

decree keeping DOC within its statutory ambit begins to make

sense in the context of a constitutional remedy. Although

we, unlike the district court, would have eschewed the words

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

were clearly, not just arguably, related to the

constitutional remedy provided by the decrees.

This is not to say that a change in the statutory

scheme cannot be a significant change in law that warrants

modification of the structural terms.5 In the context of

5. In Rufo itself, the Supreme Court remanded for

reconsideration under the standard it had just announced,
even though "the agreed-upon decree . . . clearly was related
to the conditions found to offend the Constitution." 502
U.S. at 389.

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King, the structural terms may have been a means to a

constitutional end; but it was possible to include them in

the decree only because Massachusetts law already structured

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

had granted DOC exclusive jurisdiction over the Treatment

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

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

underlying the structural terms is likely to be "significant"

under Rufo, and may therefore require some modification of

the structural terms.

This preliminary analysis is consistent with our

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

Court offered several examples of potentially significant

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

the obligations placed upon the parties has become

impermissible under federal law"; "the statutory or

decisional law has changed to make legal what the decree was

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

undermined an agreement based on "a misunderstanding of the

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

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

suggests the proper test for significance in this case. If a

subsequent state statute appears to overlap or conflict with

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

than clear, delicate questions of federalism must enter into

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

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

considered in determining scope of equitable relief)). The

district court should conduct a "careful case-specific

inquiry" into both the decree and the statute "to discover

whether their objectives and provisions necessarily conflict

and to consider the importance of the areas of conflict to

the overall goals of the litigation." Id.

We think that the nuanced, case-specific approach

of Williams is consistent with the strictures of Rufo and

with the equitable nature of relief from a decree under Rule

60(b)(5). See Rufo, 502 U.S. at 383 (noting that Rule

60(b)(5) permits relief from a court order when "'it is no

longer equitable that the judgment should have prospective

application'"). See also Mackin, 969 F.2d at 1278 ("the

decision as to whether to modify or dissolve [a structural

decree] is at bottom an exercise of equitable power" that

calls for a "deferential standard of review").

Chapter 489 reflects Massachusetts' legislative

judgment that one agency rather than two can best perform the

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

security as well as provide treatment. As the district court

noted, no one regards dual administration of the Treatment

Center as workable. But why give DOC the run of the place?

The legislature apparently accepted the professional opinion

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that behavior modification or control, rather than

traditional mental health treatment, is the most effective

way to protect society from sexually dangerous persons and

such persons from themselves. The correctness of this view

is not before us; what matters is whether the goals of ch.

489 necessarily conflict with the rights enforced by the

federal consent decree, and the importance of any such

conflict to the overall goals of the litigation. Williams,

822 F.2d at 1228.

The extent and importance of the conflict can be

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

We think that the conflict is real but not so fundamental

that ch. 489 necessarily thwarts the overall goals of the

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

treatment complied with the Constitution. The structural

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

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

we have explained, those terms would have been inconceivable

without the underlying state law. After all, plaintiffs

cannot claim that DOC control per se violates the

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

state law no longer gives DMH any role to play. In light of

these federalism concerns, we think there has certainly been

a "significant change . . . in law" within the meaning of

Rufo, and that the plaintiffs cannot enforce the structural

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terms of the decree in perpetuity. See Pearson III, 990 F.2d

at 658.

In holding that the defendants had not shown a

significant change in law, the district court apparently

relied upon our decision in Coalition of Black Leadership v.

Cianci, 570 F.2d 12 (1st Cir. 1978). The consent decree in

Cianci established a procedure whereby residents of

Providence, Rhode Island, could file complaints against their

police officers for alleged civil rights violations. The

Rhode Island legislature subsequently enacted a "Law

Enforcement Officers' Bill of Rights" which conflicted in

part with the decree. There was an "obvious subject matter

overlap between the decree and the legislation," which served

"dual and partially inconsistent purposes." Id. at 14. The

City of Providence moved to vacate the decree, and the

district court denied the motion. We affirmed, noting that

the court had "ordered both parties to work out modifications

in the decree so that the protection of policemen's rights

mandated by state law and the right of plaintiffs to be free

from 'racially discriminatory police conduct' could[,] to the

extent possible, both be achieved." Id. at 13 (emphasis

added). Moreover, we emphasized the district court's

statement that

the Court is inclined to look with
deference upon the alternate procedural
means embodied in the 1976 Act . . . .
If the Rhode Island legislature has

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determined that the rights of police
officers are in need of protection and
that this protection can best be achieved
by adoption of certain procedural
protections, the Court is not prepared to
question this judgment or to stand in the
way of its implementation in the absence
of any showing that the 1976 Act will
hamper the effective presentation of
civilian complaints which the consent
decree has apparently accomplished.

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

approach for resolving the conflict between the decree and

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

King, did not incorporate an administrative structure based

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

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

flexible in framing a response to the motion to avoid any

conflict with the state statute when unnecessary for the

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

presents the stronger argument for modification, given the

source of the structural terms, their relationship to the

constitutional remedy, and the legislature's autonomy to

restructure the governmental institutions of the

Commonwealth.

IV.
IV.

Having found a significant change in law, we now

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

to resolve the problems created by the change in

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

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modification must not create or perpetuate a constitutional

violation." Id. at 391.

The district court evidently feared that the

proposed modification would produce a de facto increase in

constitutional violations at the Treatment Center, even if

there is nothing unconstitutional de jure about DOC's

assuming plenary authority. Based on its assessment of the

history of this litigation, the court concluded "at this

time" that DOC's control of the Treatment Center would

compromise the federal constitutional remedies imposed by the

consent decree, and the federal constitutional rights that

the decree sought to protect. Critically, the defendants had

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

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

remainder of the decree. Had the defendants made such a

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

rule otherwise."

This leaves us unsure of the district court's

reason(s) for denying the proposed modification. Earlier in

the hearing, the court had ruled that ch. 489 is not a

significant change in law. Perhaps it was now saying that

ch. 489 might be a significant change in law that warrants

modification of the consent decree, but the defendants had

not yet demonstrated as a practical matter that the

modification would be implemented without producing or

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exacerbating constitutional violations at the Treatment

Center. In fact, the defendants submitted no testimonial or

documentary evidence of DOC's transfer plans; nor did they

request an evidentiary hearing. On the sparse record before

the district court, in light of the court's inconsistent

observations, we cannot say whether the court properly denied

modification for lack of suitable tailoring. See Rufo, 502

U.S. at 383. The prudent course is to remand for a new

hearing.

On remand, the district court may inquire into

DOC's transfer plans. We note, however, that "once a court

has determined that a modification is warranted, . . .

principles of federalism and simple common sense require the

court to give significant weight to the views of the local

government officials who must implement any modification."

Id. at 392 n.14. "[T]he public interest and considerations

based on the allocation of powers within our federal system .

. . require that the district court defer to local government

administrators, who have the 'primary responsibility for

elucidating, assessing, and solving' the problems of

institutional reform, to resolve the intricacies of

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

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

citations and quotation marks omitted). The district court

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should rely primarily on its jurisdictional oversight to

ensure DOC's compliance with the decrees.

Remanded.
Remanded

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