David Ruiz v. James A. Lynaugh, Interim Director, Texas Department of Corrections , 811 F.2d 856 ( 1987 )

ROBERT MADDEN HILL, Circuit Judge,

specially concurring:

I agree with the result reached by the court in this case, but I write separately because I believe we should explicitly endorse the flexible approach for modification of institutional reform consent decrees as a guide for district courts involved in on-going and future public law litigation.

As the court mentions, a more flexible standard for modification of consent decrees in institutional reform litigation has been recognized recently. See supra at 859.¹ The courts and commentators that have supported this flexible approach to modification have noted that institutional reform litigation presents unique problems for both a federal court and the parties; these same difficulties are often not present in standard private litigation (the area in which the Swift rule developed). For the federal court which is involved in institutional reform litigation, it must balance its duty to protect federal constitutional and statutory rights with the delicate problems of federalism and separation of powers which are always implicated when a federal court directs state authorities to take certain actions in administering a state-run institution. See Ruiz v. Estelle, 679 F.2d 1115, 1148-50 (5th Cir.), amended in part, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). For the parties involved in institutional reform litigation, they are often charged with the duty of representing and/or confronting interests that are not directly before the court. E.g., Duran v. Elrod, 760 F.2d 756, 759 (7th Cir.1985). Finally, both the court and the parties must grapple with the fact that consent decrees in institutional reform cases are not so much peremptory commands to be obeyed in absolute terms, as they are future-oriented plans designed to achieve broad public policy objectives during the course of complex and ever-changing factual situations. Carey, 706 F.2d at 969-70. The need to accommodate the variety of interests and concerns present in institutional reform litigation, to recognize the future-oriented nature of decrees arising out of reform litigation, and to appreciate the factual complexity of this form of litigation suggests that greater judicial flexibility is warranted when a court overseeing such a case is confronted with a request to modify the governing decree.

A flexible standard for modification of a consent decree is well-suited to the institutional reform arena. The standard set out (but not adopted) in the court’s opinion, see supra at n. 8, accommodates the variety of interests, both individual and public, and the changing factual situations that arise in federally-mandated state institutional reform. It also allows a federal court to balance the practical federalism problems presented when exerting control over a state penal institution such as in this case.

I therefore believe that it would be in the best interest of all concerned for this court to adopt the flexible modification standard in this case in the testing of the state’s request for modification of the Crowding Stipulation. To fail to do so leaves the question undecided as to what standard should be applied when a federal court is asked to modify an institutional reform consent decree. There can be no doubt that institutional reform litigation is indeed unique and has an impact far beyond the scope of those parties directly involved. This difficult type of litigation will also play a continuing role in the federal judicial system. In light of this, I think we are charged with the responsibility to be as definite as possible on the rules which govern the handling of such litigation. Therefore I write separately because of my conclusion that we have not fully carried out this important responsibility.

1 . See also Chayes, The Role of Judges in Public lew Litigation, 89 Harv.L.Rev. 1281, 1284, 1292 (1976); Chayes, The Supreme Court — 1981 Term —Forward: Public Law Litigation and the Burger Court, 96 Harv.L.Rev. 4, 55 (1982); Diver, The Judge as a Political Pawnbroker: Superintending Structural Change in Public Institutions, 65 Va.L.Rev. 43, 63 (1979); Fiss, The Supreme Court — 1978 Term — Forward: The Forms of Justice, 93 Harv.L.Rev. 1, 49 (1979); Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial legitimacy, 91 Yale L.J. 635, 638-41 (1982); Rudenstine, Institutional Injunctions, 4 Cardozo L.Rev. 611, 613 (1984); Special Project, The Remedial Process in Institutional Reform Litigation, 78 Colum.L.Rev. 780, 818 (1978).