James Anthony Sweeton v. Robert Brown, Jr. , 27 F.3d 1162 ( 1994 )

MERRITT, Chief Judge, announced the judgment of the Court remanding the ease to be dismissed, a judgment in which fourteen of the sixteen members of the en banc Court concur (Judges MERRITT, KENNEDY, MARTIN, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY and CONTIE). Chief Judge MERRITT delivered an opinion joined by ten members of the Court (Judges KENNEDY, MARTIN, MILBURN, GUY, NELSON, BOGGS, NORRIS, SUHRHEINRICH, SILER and DAUGHTREY). Judge CONTIE (pp. 1167-69), delivered a separate concurrence joined by seven members of the Court (Judges KENNEDY, MILBURN, RYAN, NORRIS, SUHRHEINRICH, SILER and BATCHELDER). Judge JONES (pp. 1169-74), joined by Judge KEITH, delivered a dissenting opinion.

MERRITT, Chief Judge.

The district court has denied the State’s motions to vacate, modify or terminate a consent decree entered in 1981 governing parole procedures for state prisoners in Michigan. The federal consent decree, consisting of more than 100 sections and subsections, supplements state procedural regulations by enjoining the state to follow detailed procedures for the conduct of parole hearings and rehearings, for publishing parole information, for staffing prison parole units, for establishing and following criteria for making parole decisions and for creating inmate access to parole files. The basic questions in the present en banc appeal are questions of law: (1) whether a set of injunctions imposed by a consent decree may be dissolved if the old decree appears to be based on an earlier misunderstanding of the governing law; and (2) if so, whether the set of injunctions before us here should be dissolved for this reason. We conclude that the court below erred in declining to dissolve the injunctions in the consent decree. The continuing injunctive relief is no longer appropriate under existing federal law.

This seventeen year-old ease has a long litigation history. Only a few of the facts are relevant. The legal principles to be applied separate the relevant facts from the mass of extraneous facts in the record. Accordingly, before outlining the pertinent factual and procedural history, we will outline briefly the legal standards in the two areas of law applicable to this case — the standards governing the termination or modification of consent decrees granting injunctive relief and the procedures required by federal due process governing state procedures for parole.

I.

In Rufo v. Inmates of Suffolk County Jail, — U.S. -, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), the Supreme Court recently revisited the standards applicable to modification and termination of consent decrees in institutional reform cases. Recognizing that there are now many such consent decrees continuing to operate under federal court supervision, the Court established a flexible set of standards for modifying such decrees. The Court in Rufo allowed the modification of a consent decree imposing injunctive relief against Boston prison officials. The Court changed its analysis from its earlier decision in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). It rejected the idea that rules of res judicata are controlling, and also rejected a restrictive standard that termination or modification could only occur when the change of circumstances was “unforeseen and unforeseeable.” Instead the Court held that modification may be ordered if a party has met “its initial burden by showing either a significant change in factual conditions or in law.” Rufo, — U.S. at -, 112 S.Ct. at 760 (emphasis added). A decision changing or clarifying the law will provide a basis for a modification if it demonstrates that the parties “based their agreement on a misunderstanding of the governing law.” Id. at -, 112 S.Ct. at 763.

This flexible standard has an ancient lineage in our common law. It is the modern sequel of the Sixth Ordinance of Bacon’s Ordinances In Equity written by Sir Francis Bacon as Lord Chancellor in 1618. The Sixth Ordinance authorized a court in equity to modify a decree in light of a change or clarification (called “control” in the ordinance) in an earlier judgment. “No decrees shall be made, upon pretense of equity, against the express provision of an act of parliament: nevertheless if the construction of such act of parliament hath for a long time gone one way in general opinion and reputation, and after by a later judgment have been controlled [modified or limited], then relief may be given upon a matter of equity for cases arising before said judgment; because the subject was in no default.” 7 Bacon, Works 760 (Spedding Ed. 1879), as quoted in Note, 59 Harv.L.Rev. 957, 965 n. 52 (1946). Bacon’s principles generally provide that a court has continuing jurisdiction to terminate or modify an injunction and that an equitable remedy should be enforced only as long as the equities of the case require.

Second, on the question of federal due process standards governing state parole procedures, there was considerable confusion in the cases in the late 1970’s when this class action was originally filed. The district court noted this confusion in its original opinion in this case in 1978. There were a number of Supreme Court and lower court opinions that could be interpreted to say that a state statute or regulation creating a purely procedural limitation concerning parole may also create a federal due process liberty interest or substantive right. The law at that stage of development was unclear. In 1978, some courts had held that federal due process imposed a requirement on state parole au7 thorities to follow the federal court’s interpretation of state procedural regulations. See, e.g., Franklin v. Shields, 569 F.2d 784, 800-801 (4th Cir.1977) (en banc), cert. denied, 435 U.S. 1003, 98 S.Ct. 1659, 56 L.Ed.2d 92 (1978).

This confusion existed in the Sixth Circuit prior to the holding of the Supreme Court in Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), that state statutes and regulations governing prison hearings do not create an independent federal due process liberty interest or right in the prisoner, and the holding of the Sixth Circuit in Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d 233 (6th Cir.1991), applying the Olim principle to state statutory procedural rights governing parole. After Olim and Inmates, it became clear that procedural statutes and regulations governing parole do not create federal procedural due process rights and that in the present case the legal theory and analysis upon which the consent decree was formulated was erroneous. The Michigan procedural limitations do not detract from the broad powers of the Michigan authorities to deny parole.¹ So long as the parole discretion is broad, as in Michigan, “the State has not created a constitutionally-protected liberty interest” by enacting procedural rules. Olim, 461 U.S. at 249, 103 S.Ct. at 1747. The parole authorities of the State of Michigan may have been required to follow their own procedural statutes and regulations on parole as amplified in the consent decree as a matter of state law, but there is not now any viable legal theory by which Michigan state authorities are required to follow such procedural rules as a matter of federal due process.

A due respect for the doctrine of federalism, the structural principle by which we subdivide governmental power, discourages constitutionalizing state regulatory procedures. Otherwise federal courts would take over from state administrators. and courts the interpretation and enforcement of a whole host of local procedural rules governing such local matters as zoning, probate, licensing, school discipline or public health, and states would be discouraged from laying down reasonable and useful rules to govern the conduct of their own affairs for fear that those rules would subject them to jurisdiction and penalties in federal courts.

The instant appeal came before the Court in May 1993. The defendants challenged two rulings of the district court which continued monitoring of the state’s parole procedures and which rejected a Special Master’s finding that the 1981 consent decree should be dissolved. At oral argument, the panel concluded that a conflict appears to exist between an earlier unpublished opinion in this case, Sweeton v. Brown, 944 F.2d 905 (Table), 1991 WL 181751 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1306, 117 L.Ed.2d 527 (1992) (“Sweeton I”), and the Olim and Inmates opinions. Without issuing an opinion, the panel recommended that the entire Court rehear this case. The Court agreed. It ordered the parties to file supplemental briefs, and it set the case for rehearing en banc.

II.

Prisoners eligible for parole in the Michigan state prison system filed this class action in 1977. Early in the proceedings, the defendants moved to dismiss all of plaintiffs’ constitutional claims. The motion was granted in part and denied in part. The court did not dismiss the count which alleged that the Michigan statutory and regulatory procedures for parole created a liberty interest protected by the Due Process Clause. In October 1979, the defendants made a second motion to dismiss, arguing again that no valid federal due process claim existed on the basis of state procedural regulations governing parole. This motion was also denied. These rulings were not appealed and at that time were probably not appealable as final judgments. Settlement negotiations ensued and eventually resulted in a consent decree on August 28, 1981.

Monitoring and enforcement of the consent decree continued for 36 months until defendants filed a motion to vacate, arguing again that no federal claim existed. This motion to vacate, filed on February 28,1984, was based on two recent Supreme Court cases which arguably “changed” or “clarified” the law. Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). After briefing and oral argument, the court denied the motion to vacate.

In July 1985, the court terminated its monitoring. Over the next several months, however, class members began sending letters to the court complaining that the defendants were failing to comply with the judgment. In March 1987, a prisoner member of the class filed a pro se motion to enforce judgment. In response, the court ordered that new' counsel be appointed to monitor the defendants’ compliance on behalf of the class. After a hearing in June. 1988, the court found that the defendants were not in compliance and reinstated court supervision. .

In January 1990, the plaintiffs filed a report arguing that the defendants were in continuing noncompliance. In March, the defendants responded with another motion to dismiss or to modify, asserting that the court lacked subject matter jurisdiction and that the decree was “void” under Fed.R.Civ.P. 60(b)(4). The district court entered an order in May 1990, finding substantial noncompliance, ordering renewed monitoring, and denying the motion to dismiss or modify. The defendants appealed these orders, which resulted in the 1991 opinion affirming the district court in Sweeton I. In 1992, the district court entered two more injunctive orders which extended the monitoring period and appointed an independent monitor. These orders resulted in the instant appeal.

III.

Anglo-American courts have always had the inherent equitable power to modify consent decrees imposing ongoing injunctive relief. As previously stated, the party seeking a modification is not limited to showing a change in facts; it “may meet its initial burden by showing either a significant change in factual conditions or in law." Rufo, — U.S. -, 112 S.Ct. at 760 (emphasis added). The change in the law in this case is significant. Olirn and Inmates make it clear that federal courts should no longer as a matter of federal due process seek to enforce purely procedural parole regulations. The foundation upon which the claim for injunctive relief was built has crumbled.

The plaintiffs ask us to consider other equitable factors. They maintain that they would be prejudiced if the court were to dissolve the injunction at this time. Plaintiffs argue that they chose not to pursue their claim that the state was acting in an “arbitrary and capricious” manner when they entered into the instant decree. They also argue that the defendants have acted in “bad faith” by not complying with the decree.

We find neither of these arguments persuasive. No basis in federal law exists for the injunctive relief imposed in this case. That Michigan parole authorities “arbitrarily” failed to follow their own state procedural standards could constitute a violation of state law but not federal law. The distinction between state and federal law must be clearly maintained. The “bad faith” or “unclean hands” argument is similarly unavailing. The record before us suggests confusion on all sides regarding the extent of the duties imposed by the consent decree. It does not suggest the type of egregious conduct that should bar dissolution of the injunctions here.

The Seventh Circuit has recently interpreted Rufo in a similar en banc case. The court observed:

Now 16 years old, this case is making its third appearance in this court — and the parties’ current dispute arises out of the conflicting decisions of the first two panels. We meet in bane to consider whether a district court should require a unit of state or local government to abide by a consent decree that does not serve any federal interest. The answer is No, and the injunction based on the parties’ agreement therefore must be vacated.

Evans v. City of Chicago, 10 F.3d 474, 475 (7th Cir.1993) (en banc). As in Evans, there is no federal interest here. Injunctions may be modified “when the statutory or decisional law has changed to make legal what the decree was designed to prevent.” Rufo, — U.S. -, 112 S.Ct. at 762. Here, decisional law has changed so that the enjoined behavior, which once might have been a violation of federal law, is no longer a matter of federal law at all.

IV.

In light of our decision based on Rufo, we need not reach the defendants’ other defenses presented in this appeal, including the question of whether the court decree should be terminated based on compliance and the question of extent of the jurisdiction of the district court at various points in the past when it declined to dismiss the complaint or dissolve the set of injunctions created in the consent decree.

Injunctions are one of the law’s most powerful weapons. Ongoing injunctions should be dissolved when they no longer meet the requirements of equity. The law changes and clarifies itself over time. Neither the doctrines of res judicata or waiver nor a proper respect for previously entered. judgments, requires that old injunctions remain in effect when the old law on which they were based has changed. Accordingly, the judgment of the district court is reversed and the case is remanded to the court below with instructions to vacate the consent decree and dissolve the injunctions imposed by it.

1 . The Michigan statute vesting discretion is Mich.Comp.Laws Ann. § 791.235, which states in pertinent part: “(1) The release of a prisoner on parole shall be granted solely upon the initiative of the parole board.” The statute then lists a large number of factors to be taken into account by the board,