Full opinion text
COMPILATION OF OPINIONS AND ORDERS (Through July 27, 1987) INTRODUCTORY STATEMENT AND TABLE OF CONTENTS ENSLEN, District Judge. The following is a collection of opinions the United States District Court for the Western District of Michigan has issued in the case of United States v. Michigan, No. G84-63. The United States Department of Justice filed the case on January 18, 1984 under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997-1997j, following a two-year investigation into conditions in three Michigan prisons. On July 13, 1984 the Court approved a Consent Decree setting forth the parties’ agreement to settle the suit. The Court has been overseeing the implementation of the Consent Decree for the past three years, during which time it has conducted numerous hearings on compliance issues and has issued numerous opinions. The opinions that are labeled “bench opinion” were issued from the bench during those hearings. The Court has not edited these opinions; what appears in written form here was taken almost verbatim from the transcripts of the hearings. The reader accordingly occasionally may find it difficult to follow the bench opinions. The Court felt, however, that it should remain faithful to the actual record of the ease. TABLE OF CONTENTS 1. Bench Opinion of March 23, 1984 Granting Hadix Plaintiffs and the National Prison Project Amicus Cumae Status, page 935. 2. Bench Opinion of March 23, 1984 Rejecting Proposed Consent Decree, page 944. 3. Bench Opinion of June 22, 1984 Denying Jasson Plaintiffs and Knop Plaintiffs’ Motions to Intervene and Approving Consent Decree, page 949. 4. Bench Opinion of June 21, 1985 Approving Parties’ Stipulation and Announcing Intent to Appoint a Special Master, page 953. 5. Memorandum Opinion and Order of August 5, 1985 Announcing Intent to Appoint an Independent Expert, page 956. 6. Bench Opinion of August 21, 1985 Extending the Parties’ Stipulation; Denying the Knop Amicus’ Motion to Amend the State Plan; and Denying the United States’ Request for Sanctions Against the Knop Amicus, page 957. 7. October 2, 1985 Appointment of F. Warren Benton as Independent Expert and Order for Instructions, page 962. 8. Opinion of December 2, 1985 Denying the Hadix Plaintiffs’ Request to Exclude the Central Complex and the Reception and Guidance Center from Coverage Under the Consent Decree, page 964. 9. Bench Opinion of February 13, 1986 Denying Defendants’ Motion to Modify the State Plan Regarding a Mental Health Plan and Granting the United States’ Motion to Enforce the Consent Decree Regarding Mental Health, page 970. 10. Order of February 21, 1986 Establishing Supplementary Mental Health Care Requirements, page 978. 11. Memorandum Opinion and Order of March 19, 1986 Regarding an Independent Psychiatric Expert, page 983. 12. Bench Opinion of March 27, 1986 Allowing Knop Amicus to Present Witnesses and Appointing an Independent Psychiatric Expert, page 984. 13. Order of April 2, 1986 Appointing an Independent Psychiatric Expert, page 988. 14. Memorandum Opinion and Order of April 3, 1986 Granting Defendants’ Motion to Modify in Part, page 988. 15. Bench Opinion of May 9, 1986 Granting United States’ Motion for Relief and Sanctions Regarding Mental Health; Denying United States’ Motion to Terminate the Authority of the Independent Expert; and Rejecting Parties’ Stipulation Clarifying Issues Under the Consent Decree, page 989. 16. Order of May 12, 1986 Granting the United States’ Motion for Relief and Sanctions, page 999. 17. Order of June 30, 1986 Extending and Revising the Independent Expert’s Order of Appointment, page 1001. 18. Opinion of July 15, 1986 Interpreting Certain Provisions of the Consent Decree and the State Plan for Compliance, page 1001. 19. Opinion of July 15,1986 Granting in Part and Denying in Part Defendants’ Motion for Relief from Order, page 1005. 20. Opinion of July 22, 1986 Regarding March 1986 Compliance Hearing, page 1007. 21. Order of July 22, 1986 Granting Plaintiffs’ Motion for Order Enforcing Consent Decree and Stipulation, page 1015. 22. Opinion of August 29, 1986 Scheduling a Mental Health Hearing, page 1018. 23. Opinion of August 29, 1986 Resolving Various Motions, page 1019. 24. Opinion of September 26, 1986 Extending Authority of Independent Psychiatric Expert, page 1021. 25. Bench Opinion of October 24, 1986 Purging the Defendants of Contempt Regarding Mental Health, page 1022. 26. Order of October 29, 1986 Purging Defendants of Contempt, page 1025. 27. Opinion and Order of January 29, 1987 Enforcing the Fire Safety Provisions of the Consent Decree, the State Plan for Compliance, and the Stipulation, and Granting Defendants’ Request for Modification of the State Plan, page 1025. 28. Opinion of March 27, 1987 Modifying in Part the Parties’ Stipulation Regarding Mental Health Care, page 1037. 29. Show Cause Order of April 1, 1987 Regarding Overcrowding, page 1038. 30. Opinion of May 8, 1987 Enforcing the Medical Care Requirements of the Consent Decree, the State Plan for Compliance, and the Stipulation, page 1039. 81. Bench Opinion of May 21,1987 Issuing Temporary Restraining Order Regarding Overcrowding at the Reception and Guidance Center, page 1045. 32. May 22, 1987 Temporary Restraining Order, page 1047. 33. Bench Opinion of May 22, 1987 Finding the Defendants in Contempt of Court Regarding Overcrowding at the Decree Institutions, page 1047. 34. Order of May 28, 1987 Holding Defendants in Contempt of Court, page 1053. 35. Opinion of July 2, 1987 Scheduling Mental Health Hearing, page 1054. 36. Opinion of July 20, 1987 Denying Pro Se Motion to Intervene and Motion for Order of Contempt, page 1055. 37. Opinion and Order of July 28, 1987 Enforcing Provisions of the Consent Decree, the State Plan for Compliance, and the Stipulation Regarding Overcrowding and Protection from Harm and Sanitation, Safety, and Hygiene, page 1056. BENCH OPINION OF MARCH 23, 1984 GRANTING HADIX PLAINTIFFS AND THE NATIONAL PRISON PROJECT AMICUS CURIAE STATUS The Court has before it two motions. One is the motion to intervene on behalf of the Hadix plaintiffs, so-called Hadix plaintiffs, or in the alternative for status as amicus curiae. And the motion on behalf of the A.C.L.U. group, to be amicus curiae only, and, of course, the Hadix interest is only in a portion of the proposed consent decree. That is to say, the Jackson Prison portion. I am taking the Hadix motion first, since that is the way that we listened to arguments. The Hadix applicant or applicants move for grant of intervention pursuant to Rule 24(a)(2). They are the plaintiff class in an action pending in the United States District Court, Eastern District of Michigan, before Judge John Feikens, Chief Judge, styled Hadix, et al. vs. Johnson, et al. That suit as I understand it is against various officials of the State of Michigan Department of Corrections and the State Prison of Southern Michigan at Jackson only. They are not involved, as I indicated earlier, in the Ionia or Marquette situation. Pursuant to an order of the court in Hadix, the applicant claims, the Michigan Attorney General representing the defendant was ordered to appear to explain the relationship if any existing between the proposed consent decree herein and the Hadix case. In fact, I had first heard about the Hadix interest by means of a letter from counsel for Hadix, and later, and I responded to that letter, and to counsel for all sides with a copy of the letter to Judge Feikens. I think that may have been in January or perhaps early February. On February 16, 1984, the applicants claim Elaine Fischhoff took the position in the open courtroom that the proposed decree will not be made the basis for a legal claim of mootness as to any similar constitutional issues in Hadix, but that it may have an impact on the negotiations and possible litigation in Hadix. The transcript never arrived, and I don’t know what was said. But, I have heard Mr. Quinn’s representation, and I have heard Mr. Bennett’s representation. I am not so sure that it makes any difference. Applicants state in the written motion that based upon the statement of the Attorney General they ought to be entitled to intervention herein as a matter of right. They contend, as I understand it, that they seek intervention for the sole purpose of excluding the State Prison of Southern Michigan, the Central Complex of that prison, including the Reception and Guidance Center, from these proceedings, and they argue that, or they kind of alternatively argue, that if they are granted some kind of intervention status or amicus status their interest is limited to the Jackson penitentiary, the state prison at Jackson. As reported by the applicants with portions disputed by the defendant State, Hadix was filed in 1980, as I understand it, at least, in propria persona. Since that date, it evidently has become a class action. There was an amended complaint filed, and I assume by counsel for the Hadix group, in 1982, I think in July. The subject of that amended complaint, which has been furnished to the Court and summarized by the applicants, touches virtually all of the conditions of confinement at that facility located in Jackson. According to the defendant, the Hadix complaint is in reality a “totality of conditions” claim. This appears to be correct to me from a reading of the language of the amended complaint, but it doesn’t seem to have a lot of relevance to what is before us. Trial, apparently, in the Hadix ease was scheduled in 1983 in the early part of the year, but before the trial, either the defendants requested an opportunity to negotiate or the plaintiffs, and the defendants told Judge Feikens that they would like to negotiate, and they would like to have a court-supervised settlement discussion. Negotiations took place, whoever suggested them, and whoever was the moving party, and they continued throughout the summer of 1983. Numerous documents were compiled and exchanged, and, apparently, some discovery goes on today as I understand the arguments. In July of 1983, the applicants argue that there were only some unresolved issues remaining which required Judge Feikens' intervention, and the court then issued an order establishing a time schedule for proceedings and a possible trial date. And that has been furnished to me. The negotiations continued into the fall involving, mainly, and I think argued by Mr. Bennett today, the physical structure of the facilities involved both — well, all the facilities were argued on today, and the sufficiency of the administrative staff if that is part of the structure argument, and I guess it is. Applicants assert that Judge Feikens was assured by Governor Blanchard that defendant Perry Johnson was authorized to negotiate regarding this issue of the overall operation of the Jackson facility. Defendants say the evidence shows that the statement that by July, 1983 they had reached agreement on most issues is imprecise at best, and seem to deny, and I believe deny, Johnson’s authority. They also say that there is privileged information which is not relevant to this case. In any event, shortly after Judge Feikens’ meeting with Governor Blanchard— and I understand they met — there was a settlement between Justice and the State in this case. Defendants did not thereafter return to the negotiation table with the applicants. The defendants argue this is because of the applicant’s counsel. I don’t know the answer to that. Judge Feikens issued the order requiring the Attorney General, that I mentioned earlier, to explain the impact on Hadix, and it obviously bothered Judge Feikens. It was in response to this order that the applicants alleged the Attorney General represented that the case before me would not be made a basis of a claim for mootness, but would impact negotiations and possibly litigation. But there is no question about that now. The defendants now state they reserve the right to raise the claims of mootness should the negotiations fail in Hadix, and, perhaps, that is what they said in front of Judge Feikens, or perhaps it isn’t. But it is absolutely clear to me that is what they said in their written pleadings, and that is what Mr. Quinn argued today. The applicants as I indicated advised me of this by letter and then later filed a motion. The motion is for leave to intervene as a matter of right under Rule 24(a)(2). 24(a)(2) says, in part: Intervention of Right. Upon a timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. The parties do not appear to me to dispute the elements necessary to establish non-statutory intervention as a matter of right. The four elements that the parties agree on are: First, the application must be timely; Second, the applicants must show an interest relating to the property or transaction which is the subject of the action; Third, the applicants must show that the protection of the interest may as a practical matter be impaired or impeded by the disposition of the action; and Fourth, and finally, the applicants must show that their interest is not adequately represented by an existing party. That comes out of Moore on Federal Practice, not cited by the lawyers. But I have read Blanchard v. Johnson, which is a Sixth Circuit ease in 1976; also County of Fresno v. Andrus, which is a Ninth Circuit case in 1980; and also my fellow District Judge Gibson’s decision in Usery v. Brandel, 87 F.R.D. 670 (W.D. Mich.1980). It is clear to me that the applicants have the burden of showing that 24(a)(2)’s requirements are satisfied because Blanchard v. Johnson says so. Blanchard’s cite, by the way, since it wasn’t cited by the parties, is 532 F.2d 1074. The Fresno cite is 622 F.2d 436. First, then as to the timeliness. The applicants make no argument in their written pleadings whatsoever concerning the requirement of timeliness, but Mr. Bennett does make that argument today. The defendants argue that this motion should be denied solely on timeliness grounds. Defendants argue that the applicants have known or should have known of the Department of Justice’s proceedings under CRIPA since at least as late as 1982. It sounded to me that in argument Mr. Bennett may have known about it about that time or perhaps before then. Defendants argue that the applicants did not attempt to consolidate an approach to remediation of allegedly violative conditions in Michigan prisons. Defendants cite two cases in support of their argument. The first is NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648, a 1973 Voting Rights Act case, from the Supreme Court. The Court stated in NAACP that timeliness is to be determined from all the circumstances involved. This determination is left to the sound discretion of the trial court. The Court found in the NAACP case that the applicant’s motion to intervene was untimely. In reaching that conclusion, the Court stated that applicants knew or should have known of the pendency of the action involved because of a New York Times article discussing the lawsuit, the public comment by community leaders, and the size and astuteness of the membership of the organizational applicants, and the questioning of two of the applicants by Department of Justice attorneys investigating the matter. The Court also found that applicants had failed to protect their interest in a timely fashion after the date they allege they were first informed of the pend-ency of the action. At that point, the suit was three months old, and it had reached a critical stage, or at least the Supreme Court said that it was a critical stage because among other things a summary judgment was pending. Defendants also cite for me Stallworth v. Monsanto Company, 558 F.2d 257, which is a Fifth Circuit case in 1977 wherein the court in Monsanto enunciated four factors that ought to be considered in making a timeliness determination. In brief, those four factors from Monsanto were: First, the length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; Two, the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case; Third, the extent of the prejudice that the would-be intervenor may suffer if his petition for leave to intervene is denied; Fourth, and finally, the existence of unusual circumstances militating either for or against a determination that an application is timely. In the Usery case, which is my Brother Gibson’s opinion, not cited by the defendants for timeliness, Judge Gibson found that a motion to intervene filed ten months after the complaint was not untimely. I note that not only did he find that, but also the brief was filed fourteen months after the motion. So Judge Gibson was facing a 24-month delay. Judge Gibson noted that alacrity is but one of the factors among several to be addressed by the court, and the primary attention must be focused on the stage of the proceedings in which the application to intervene is made. Assessment must be made as to whether the intervention will: “One, prejudice the rights of the existing parties to the litigation, or, two, substantially interfere with the orderly processes of the court.” That is a quote, essentially. In EEOC v. United Air Lines, 515 F.2d 946, a Seventh Circuit case in 1975, also not cited by the defendants in this section of their brief, the EEOC court opined that the trial court should be more lenient with timeliness requirements in cases of intervention as of right as opposed to permissive intervention. I find no merit whatsoever in defendant’s timeliness argument. The fatal flaw in the argument is that there wasn’t any action whatsoever in which to intervene until the complaint was filed. The complaint was not filed until January of 1984. The case law deals with timely applications to intervene in pending lawsuits, not in pre-lawsuit governmental investigations. It would be unreasonable for me to hold that the applicants should somehow have tried to intervene in the Justice Department’s investigation, it seems to me for obvious reasons. The complaint was filed on January 18, 1984. The applicants sent the letter to me that I referred to earlier on February 2nd, and the instant motion was filed February 27th, a little bit over a month after the instant action was filed, which Mr. Bennett argues he heard about by reading in the newspaper. The Court believes that the applicant acted in a timely fashion, and without having to go over all of that again as far as timeliness is concerned, I make the same finding with regard to the A.C.L. U. application. There is no merit that the applications are not timely. Second, the second condition for mandatory intervention is whether or not there is an interest relating to the property or the transaction which is the subject matter of the action. 24(a)(2) requires a significant protectable interest in the pending litigation. In Donaldson v. United States, according to the District of Columbia and Ninth Circuits, the “interest” test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. Two cases'not cited by the parties, one from the D.C. Circuit is Nuesse v. Camp, 385 F.2d 694 (1967), which is the District Court for the District of Columbia, and second is the County of Fresno v. Andrus, which I mentioned earlier. But one can also look at other cases. From the District of Minnesota comes the U.S. v. Reserve Mining Company case. Thus, the interest requirement is viewed as a prerequisite to intervention rather than a determinative criterion. The interest requirement should be considered in light of the type of case with which the Court is concerned. In this case, the applicants argue that since a substantial number of the issues raised in the Hadix action are encompassed in the proposed consent decree, and thus subject to interpretation by this Court, the requirement that they have a protectable interest is met. The Justice Department makes no specific argument regarding this second requirement. However, the Department in arguing that it adequately represents the interests of applicants points out that the Hadix class and the Department in this case both seek to remedy federal constitutional violations, which is true. In addition, the Hadix class seeks to vindicate Michigan constitutional and statutory rights. Therefore, although the interest of the United States may be more limited than that of applicants, they basically are identical, and in fact both seek the same goal, that is, of course, the operation of a correctional facility consistent with the constitutional requirements. This appears to me to be a recognition by the Department that the interest requirement of Rule 24(a)(2) is met, and I don’t think the Department of Justice seriously challenges that. The defendants, on the other hand, argue that the applicants have no interest that is significant or protectable herein. In support of this argument, defendants contend it is significant that applicants have raised no specified objection to the adequacy and fairness of the relief proposed in the consent decree. In my opinion, the applicants satisfied the second requirement of 24(a)(2). I think that the United States Department of Justice’s analysis is correct. The Radix case seeks broader relief, but both that class and the Department are concerned with conditions at Jackson for federal constitutional purposes. CRIPA was after all designed to protect the applicants and others like them. This surely creates a sufficient “interest,” with I guess quotes around the word “interest,” on their part to be involved in the subject matter of these proceedings. So I find the second test of the applicants is met. The third test, the protection of the interest may as a practical matter be impaired or impeded by the disposition of this action. In Usery, once again, my Brother Gibson recognized that an undesired precedent on the same facts is a practical impairment. However, in United States v. City of Jackson, 519 F.2d 1147, from the Fifth Circuit in 1975, it was noted by the Fifth Circuit that courts “fully understand” that consent decrees do not purport to be “definitive statements of the parties' legal rights and will accord them little or no weight in the determination of the rights of persons not party to them.” CRIPA provides in section 1997j that its provisions do not expand or restrict the authority of private parties to enforce their legal rights. Applicants argue that entry of the consent decree will impair and/or impede their ability to protect their interests in the pending Hadix case. They cite the fact that they have been negotiating for more than twelve months in that action, which has been pending for four years. Applicants believe that statements by the Attorney Genera] that the decree will have an impact on the negotiating process therein establishes this element, and also that the mootness argument put forth by the Attorney General satisfies that interest. Defendants, however, point out that the applicants do not argue that their interests will not be served by the implementation of the consent decree. The Justice Department argues that the mere conclusory allegation that there will be impact upon the private cause of action is insufficient, is not sufficient. Applicants are free in the Hadix litigation to pursue all of the rights and remedies they deem appropriate. The Department contends there has been no demonstration that the relief applicants seek privately will be impaired, impeded, or is even in conflict with that afforded in the consent decree. The Court believes that the applicants, however, satisfy this third requirement of Rule 24(a)(2). The rule requires that there be a showing that protection of applicants’ interest may as a practical matter be impaired or impeded, not that it will. Applicants' have been involved in a class action lawsuit involving conditions at the facility at Jackson for four years. Extensive negotiations have taken place. Included in the issues involved are federal constitutional questions, some of the very same questions involved in the instant litigation. Although applicants would be free to pursue federal constitutional remedies in the Hadix case even after entry of this proposed consent decree, I believe the decree’s provisions regarding actions constitutionally mandated at Michigan prisons, including Jackson, may quite possibly impair and/or impede their efforts to seek relief therein. I am convinced this is true as to any future settlement negotiations in the case, and after listening to the arguments today, any future trial. The defendant’s apparent contradictory statements concerning the effect of the consent decree support my conclusion with regard to item number three. I also believe that the impact — and I am not sure that I can make this clear. I also think that the impact argument is strengthened of the applicants by the comparison to a decree with a voluntary plan attached. That plaintiffs lose in Hadix on the grounds of mootness, and later the State, which has the power to amend the agreement ex parte, will have one effect on the clients of the plaintiffs, versus, on the other hand, a more comprehensive decree which includes mandatory language and injunctive language, and the plaintiffs lose the Hadix litigation on mootness, which leaves their client in a very different position. And, therefore, I find that argument, while I don't know the answer to the argument, supports the impact requirement, the third requirement of Rule 24. And finally, is the interest of the applicants adequately represented by an existing party? In Trbovich v. United Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686, a 1977 Supreme Court case, the Supreme Court indicated that the requirement that there is inadequate representation by existing parties is satisfied if the applicants show the representation of their interest may be — and the words “may be” come directly from Trbovich — “may be” inadequate; and the “burden of making that showing should be treated as minimal.” That is an absolute quote. And by the way, the Supreme Court at that moment decided to cite and did cite Moore on Federal Practice. So the standard in Trbovich is a very simple one. “May be”— the representation may be inadequate, and “the burden on the applicants is minimal.” That is also Judge Gibson’s finding in Usery v. Brandel that I have cited at least three times. The burden, however, whether it is minimal or not, remains with the applicants. There have been case holdings that the government is inadequate to represent the interests of private parties. See National Farm Lines v. I.C.C., 564 F.2d 381 (10th Cir.1977) and other cases cited by the parties. These decisions frequently turn on the conflict created when the government is attempting to protect both the public interest and the private interests of the applicants. That is sort of from National Farm Lines. In making this determination, practical as well as formal representation of the applicants’ interest should be assessed. That is what Gibson said in Usery. Judge Gibson in that case indicated that applicants’ burden may be met by demonstrating collusion, disinterest in the case, or imcompetence. Also, if the interests of the applicants and the party in question are divergent so that their interests are similar but not identical, intervention should ordinarily be allowed, Judge Gibson argues, citing Wright & Miller, Federal Practice and Procedure. Nevertheless, slight differences in interests between applicant and the existing party do not show inadequacy if they both seek the same outcome. In the County of Fresno case that I mentioned earlier, the Ninth Circuit stated that a “would-be intervenor is adequately represented if: (1) the interests of a party to the suit are such that it will undoubtedly make all of the intervenor’s arguments; (2) the present party is capable of and willing to make such arguments; and (3) the intervenor would not offer any necessary element to the proceedings that the other parties would neglect.” County of Fresno, 662 F.2d 439. The plaintiff Department also cites U.S. v. South Bend Community School Corporation, 692 F.2d 623, a Seventh Circuit case in 1982 in Indiana, coming out of Indiana. There the court held that the NAACP would not be allowed intervention as of right in a school desegregation case brought by the federal government. The NAACP first sought to represent as of right all black students in the district and their parents, even though the interests of that class were represented by the government under the Civil Rights Act of 1964 and the Equal Educational Opportunities Act of 1974. The NAACP conceded that it and the government had a similar objective, desegregation of students and staff, but they disagreed as to the appropriate method to achieve that goal. The court held that since the NAACP and the government had the same ultimate objective, it would be presumed that the government adequately represents the NAACP. The court found this conclusion especially appropriate because the government was charged by law with representing the interests of the absentee, and there had been no showing of gross negligence or bad faith on the part of the government. Nor had there been any collusion between the parties, nor, the court also found, did the government represent any interest adverse to those of the NAACP, or that the government counsel was ineffective — or, it was effective, in other words. The NAACP had not attacked the proposed consent decree as constitutionally or otherwise inadequate, but had merely suggested improvements in it. This case before us today is, of course, distinguishable from the circumstances involved herein, because applicants do attack the proposed consent decree as inadequate. Furthermore, they believe that the United States does not seek the same goal as they do in Hadix. The applicants, remembering that they only have to show that they may be inadequately represented and have a minimal burden, make the following arguments in a general sense — and this I gleaned not very much from the written briefs, but from the arguments I heard today: The applicants argue that the United States admitted today, and that is true, that it does not represent the inmates. That was one of Ms. Russell’s first statements. Only the United States. So that there is a distinction with regard to whether or not the Hadix group is adequately represented. Second, it is not proven by any means, but there is an allegation made in this courtroom that the United States accepted less than the State of Michigan offered. That is hotly contested by the defendants, but it is an allegation made by the applicant group. Third, applicants argue that the constitutional interpretation of the Justice Department’s Civil Rights Division is not the same as the plaintiff’s constitutional interpretation of CRIPA, and, therefore, argue the applicants, how could we be adequately represented when on the face of it we view the constitutional questions differently as lawyers. As kind of in support of that argument, the applicants argue that the United States is not as vigorous as we are in representing our clients. Fourth, the applicants claim that the State has the ability to amend ex parte and monitor the plan by itself without involvement of the Justice Department which is, argues the plaintiffs and the applicants, not sufficient representation for plaintiffs’ group. Then there is the argument about the voluntary plan and the mootness argument that I have already gone over, and in an earlier section which is simply another argument — it is an adverse impact argument. It is also an adequacy of representation argument. I won’t burden the record further by that. Next there are, the Court is in receipt of two separate petitions coming, I think from Hadix, one clearly from Hadix, and the other I think. One is in the form of a letter by a prisoner named Frederick Spalla. He starts his letter by saying that he favors the American Civil Liberties Union and the National Prison Project intervention, makes no particular reference to the Hadix litigation except he makes the comment that, as follows — it is only a letter. It is open to more than one conclusion. He says that: On more than one occasion I have contacted the Justice Department Civil Division. I have requested pursuant to the Freedom of Information Act the correspondence that has been generated between Justice and Michigan Department of Corrections as a result of the former’s 1981 report on Michigan prison conditions. To date I have not received any information. Months have passed____ I request that this failure of the Justice Department to disclose the requested information amounts to no more than mere indifference. The whole scenario reminds me of a sweetheart deal. All too often the approach has been utilized____ The sum and substance of the Spalla letter, perhaps on behalf of the ACLU, perhaps not on behalf of the Hadix people, is that he doesn’t believe that a proper representation is happening to him as a member of the Hadix group. This morning I received a petition signed by numerous prisoners. I have no idea how many — a substantial amount of prisoners — under a Re Hadix v. Perry Johnson heading, with a case number that is not my case number. It is Judge Feikens' case number. John R. Ford, a prisoner, with his number, essentially is suggesting that the class of Hadix people are not being well represented by the Department of Justice, asks any prisoners who agree with that proposition to sign the petition. The petition as I have indicated bears the signatures of many, many, many prisoners, and was only filed today. The letter to his fellow prisoners was written, he alleges, on March 20th and 21st. The postmark is dated the 22nd, but it arrived at this Court today. I also believe that, although it is subject to a motion to strike by the defendants, that the testimony of two U.S. Justice Department lawyers indicates that the representation by the Justice Department, not by the State of Michigan, is inadequate. Although the showing, as I have indicated, is of a mere showing with regard to element four that they may not be properly represented, and that the burden which is theirs is minimal, based upon that, I believe the applicants have satisfied the burden of demonstrating that the United States’ representation of their interests may, certainly not is, may be inadequate. The applicants among other things, as I have just summarized in great length, seek much broader relief than advocated by the plaintiff. The interests are the same in many respects. The interest of the United States is a little bit more limited. It is likely that the United States would not make the same arguments that the plaintiffs make. Furthermore, I have at least some concern about the allegations made in these various documents that have been furnished to me. There is absolutely no proof of any of the allegations. Nevertheless, because the applicants’ issue is minimal, I am going to grant their motion to intervene on a limited basis. The limited basis is on the basis of their interest in the Jackson Prison case in this case, and I am not extending it any broader at this moment than their right to argue about the consent decree in the litigation pending before us. With regard to the amicus curiae proposition, motion of the applicants to intervene on a limited basis is granted. The ACLU argument, they don’t seek to intervene — it doesn’t seek to intervene. The two plaintiffs don’t seek to intervene. The Michigan Civil Liberties Union Foundation and the National Prison Project of the American Civil Liberties Union merely request to appear as what they describe as litigating amicus curiae. Their litigating position in this case is identical, they claim, because both organizations are represented by the same two counsel that signed the pleadings. They are simply petitioners. They have filed this motion following a review, apparently, only of the proposed consent decree. At least, I heard the argument that they were not privy to all of the pleadings. They argue to me that the particular circumstances surrounding the filing of litigation and the substance of the proposed decree raise serious and troubling questions as to whether the decree should enter in its present form. The proposed decree, they argue, will have a major impact on the conditions of confinement of Michigan inmates, none of whom had any voice in the proposed decree. As I indicated earlier, I can’t be sure that the two prisoner applications I have don’t refer to them instead of the Hadix people, but it appears in one case to relate to both. The petitioner believes that prior to the entry of a decree the Court should hear from a source other than the parties. Petitioners make a long argument in their petition, and cite the two, or add the materials that are objected to by the defendants. They talk about the fact that when the case was filed three and one-half years had passed since the passage of CRIPA. They argue that it was only the second time that the Department utilized its authorization under the statute. They make some argument with regard to internal policy within the Department of Justice which is not before the Court unless it is before the Court in the limited sense that they argue that there is somehow an inadequate representation of the interests they serve, namely, the inmates in all three of the prisons as opposed to the Hadix petition which is only at Jackson. Regarding the proposed consent decree, the petitioners believe its provisions deserve close scrutiny. I think I will save their arguments for the arguments made on the decree itself because they, in their petition, specifically attack the decree in some major fashion. That is why they added the two, the testimony of the two ex-Justice Department lawyers, and make the allegation that was spoken to briefly by Mr. Curry. I think that even besides that, of the two lawyers involved in U.S. v. Michigan before us here, one has quit the Department entirely, and the other has left the case. That we will find out when we listen to arguments in a few minutes, but that is the substance of what they say. They only seek amicus status as I understand it for the limited purpose of arguing about the decree. They talk about litigating status, and I am not certain even after I hear their arguments what it is that they intend to litigate. The plaintiff Department and the defendant Attorney General oppose the involvement of the two ACLU groups on many grounds as amici. One ground is that they are serving an interest and are not in fact a friend, friends of the Court. The plaintiff Department also argues that if the Court is persuaded that the petitioners are prepared to submit an objective legal memorandum, the U.S. would not oppose the filing with amicus brief, at least in the case of the Hadix people, and I presume meaning the same thing with regard to the ACLU. The Department states, however, that it is not sure what the applicants’ interest in Hadix is, and I, therefore, take that to mean it is not sure of the ACLU’s position, either. The defendants oppose the applicants and the petitioner’s amicus status. The applicants don’t need an amicus status because I have permitted them to come in as stated. The argument is that there could be no value to the Court whatsoever. They are partisan, argues both the United States and the defendant State of Michigan. In Bradley v. Milliken, 460 F.Supp. 320 (E.D. Mich.1978), which is a case that all of the lawyers know about, the court denied intervention to representatives of a Hispanic community in the remedial phase of a school desegregation case. The court found that the applicants could protect their interest, which was recognized as legitimate and substantial, by petitioning to be allowed to speak as amici curiae in future proceedings if there happened to be a remand. In Brewer v. Republic Steel Corporation, 513 F.2d 1222 (6th Cir.1975), in this Circuit, not cited by any of the lawyers that I know of, the court denied a motion by the Ohio Civil Rights Commission to intervene in a private employment discrimination case, but invited the Commission to participate as amicus curiae by filing briefs and making evidentiary presentations. The defendants cite three cases on the Hadix brief in support of their opposition to amicus position on behalf of the Hadix people, and I take it make the same argument with regard to amicus positions sought by the ACLU. In this case, it appears to the Court that the ACLU at least on the face of it is not a partisan in the matter. It is an organization devoted to concerns about such rights as the rights of prisoners who are incarcerated or are mentally retarded as the Act talks about, or juveniles. It doesn’t seem to me to harm anyone to permit the two organizations to intervene as amicus or amici since there are two of them. I don't, however, act upon their motion to be a litigating amid. I think that awaits a decision as to what to do on the consent decree. The purpose of allowing them amicus status or amid status is for them to be able to argue the consent decree which is before the Court today, and which is of the greatest importance to everybody. Therefore, I grant the petition of the two ACLU plaintiffs to act as amid curiae for the limited purpose of arguing the consent decree. BENCH OPINION OF MARCH 23, 1984 REJECTING PROPOSED CONSENT DECREE Well, there are a number of things that I want to say, and I guess that I will say them as briefly as possible. The hour is late. I thought some while I was stretching my legs, and trying to figure out if there were any blood left between the top of my head and the toes, and thought maybe I ought to have you come back tomorrow. And I though that might be a cruel and unusual punishment against lawyers, especially Mr. LaVille who has been sitting here from Grand Rapids doing nothing except accompanying the Justice Department lawyers. But I don’t think that there is a plane out of Kalamazoo this late anyways, but just the same I don’t think people ought to have to come back. I think the briefing done in this case was extraordinarily well done by everybody in the room, and most helpful to me, although terribly voluminous in its nature. I think the arguments done by the lawyers were fine oratorical experiences for me. It is a very important case. I hesitate to do things when it is late at night and when I am tired, and when I have been suffering some kind of a Michigan virus, I guess curious to Michigan, but perhaps not. When I first heard about this case, I did not realize it was a case as a matter of fact. I read about it in the newspapers, and I thought that it was a case that had been assigned to some court and settled, and I was, as any citizen would be, pleased that the United States and the State of Michigan had gotten together and made some kind of an agreement involving the penal situation in Michigan. And lo and behold, a day or two later, the case was filed in the Western District of Michigan, for whatever reason I don’t know, and assigned to me for whatever reason I don’t know, either. All I knew at the time was what one newspaper article said, and what the consent decree with the plan attached to it said. And since I didn’t understand much of anything, events went from there. I start off as a judge terribly interested in the settlement of lawsuits. We, as any other district court, are burdened to the point of almost being unable to continue with the caseload. I don’t know a federal judge in the country that wants a massive prison suit dumped on him or her, or a school case, or any other case that goes on forever. There are lots of reasons for it, but the principal reason is that it eats up so much of the court’s time that the court has very little time for other litigants who are as deserving of being heard as anyone is. It is a constant problem. It seems to me that the federal district court, whatever its failings or merits, is the workhorse of the federal government, and who else, what other judge in his right mind would be sitting in a courtroom a quarter to seven on Friday night with tickets to Peter, Paul and Mary — and I am, I am not going to see Peter, Paul and Mary which would have taken me perhaps, back to my youthful days to the sixties. I guess that is beside the point, too. By the same token, of course, I don’t want to enter something that is meaningless and continues to plug up the docket for many years. I am not as familiar as all of the counsel here are with the prison problems of the United States, or as Mr. Quinn is with the State of Michigan, or as Mr. Bennett is with the State of Michigan. I have — this is not my first jail or prison case, however, and it looks like it may be one of the worst, but it is not the first. The problem, it seems to me is, it is oftentimes like a dog chasing its tail. There are good-willed people that are trying to resolve the issues involved in overcrowding, for example, which leads to the myriad of other sins that have occurred in our prisons. But it is judges that put people in jail, not the lawyers in this room, or who deny bond, and it is for those reasons that the overcrowding situation occurs. It is particularly a relevant personal issue because the public in the political atmosphere in which we live cries for swift justice and the incarceration of people charged with crimes. Elected state judges are not un-hearing of those loud cries. So it is left to somebody else to try to resolve the problems, and the lawyers in this room, it seems to me, are morally and legally dedicated to a resolution. I particularly like the arguments made by Mr. Quinn this last time that he argued to me with regard to what the State of Michigan was prepared to do from his point of view without any decree, or in terms of modifying any decree as the case may be. Mr. Bennett to some degree contests that by saying with all of the goodwill Mr. Quinn may have, and all of the legal talent he has, one of his clients, to-wit, the Department of State Prisons, is not as compliant with Mr. Quinn’s desires as Mr. Quinn may want it to be. However that is, I don’t know. I have had in this courtroom a member of that department recently in the Grand Rapids prison case, county jail case, and he strikes me as a man who is after a resolution to the problems of the overcrowded county jails, and is not falling over for the Kent County argument that it has solved its problem. I am very impressed with his background and the amount of time that he has spent in the system, what he is trying to do for it. So as an initial proposition, I start out, one, absolutely wanting to resolve the lawsuit without a lawsuit on just general principles, and, two, I start off wanting to be in any way possible helpful to the parties who have reached agreement here, that is to say, the United States of America and the State of Michigan. The question, of course, is, can I be of that assistance with regard to the proposed decree that is in front of me. The Court has spent a good deal of time thinking about what my role is when parties come to an agreement. It happens all the time, and it happens in litigation that is more private than this litigation. Particularly in tort litigation do I find parties coming into the courtroom and agreeing to a settlement of a longstanding lawsuit, breathing a sigh of relief, being doubly anxious to, oh, resolve the matter as the parties want to resolve it, and simply become a scrivener. On one occasion in the short four years that I have sat on this bench, I did such á thing only to find that heirs who were not represented at the hearing did not agree with the consent that had been reached by others, that I was not aware were involved, and it led to a protracted problem which was finally resolved. With that single exception, however, every consent judgment I have been asked to enter I have entered. I want to enter this one. Let’s see if I can on the basis of what is in front of me. In general, the fact that the judgment is entered by means of a consent decree does not affects its validity or enforceability. Of course, the law favors, encourages compromise settlements for the reasons that I have just set forth. Nevertheless, a court cannot enter a consent decree without an appropriate review. The lawyers have cited to me, and I cite simply back to the record, some of the cases that they have called to my attention. Williams v. Vukovich, 720 F.2d 909, is a case out of this circuit. It is a very recent case. It is a 1983 case. The Sixth Circuit there addressed specifically the test for approval of the consent decree. In the Williams v. Vukovich case, which was a case involving black police officers who had filed a class action against the city of Youngstown, Ohio, and city officials, alleging that the city had engaged in racially discriminatory hiring and promotion practices, unlike this case, in the Williams case, there had been a five and one-half year period of negotiations, and a consent decree that finally resolved the hiring and promotion issues that were involved in the Youngstown case. Several class members, however, objected to the decree. The district court in Ohio held that it was unreasonable, but granted a stay for appeal. The Circuit then held that the decree was illegal and contrary to the public interest because it embodied impermissible waivers of future discrimination. The Court then outlined a procedure for approving consent decrees. And, the procedure was, as follows: The consent decree, said the Sixth Circuit, is essentially a settlement agreement subject to continued judicial policing. The terms of the decree unlike those of a simple contract have unique properties. A consent decree has attributes of both contract and of a judicial act. On the one hand, a consent decree is a voluntary settlement agreement which can be fully effective without judicial intervention. In this sense, the decree merely memorializes the bargained-for position of the parties. The consent decree, therefore, should be strictly construed to preserve the bargained-for position of the parties. The court has no occasion to resolve the merits of the disputed issues or the factual underpinnings of the various legal theories advanced by the parties. This is a random quote, and not entirely a quote. I have skipped, but it is, what I have read, was a quote. Skipping some more: A consent decree, however, is also a final judicial order. Judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties. Judicial approval, therefore, may not be obtained for an agreement which is illegal, a product of collusion, or contrary to the public interest. Once approved, the prospective provisions of the consent decree operate as an injunction. The injunctive quality of the consent decree compels the court to, one, retain jurisdiction over the decree during the term of its existence, two, protect the integrity of the decree with its contempt powers, and, three, modify the decree should changed circumstances subvert its intended purposes. That essentially comes from page 920 of Williams v. Vukovich, some eleven pages into the opinion. The court also cited another Sixth Circuit opinion, Stotts v. Memphis Fire Department, which was also a recent case, a 1982 case, which was cited in the litigation by the plaintiff Department of Justice, but not by the defendants, for the proposition that suggested procedures for approving consent decrees, which was a class action, involved three steps: First, preliminary approval — in order to determine if a compromise is illegal or tainted with collusion. To determine if the decree is a product of an arm’s length negotiation, the party who objects has a heavy burden of demonstrating that the decree is unreasonable. Second, notice should be given to all individuals who may be affected by the decree, which of course discusses giving class members the best notice practicable. And this is not a class action. The Stotts case is. Third, a reasonableness determination after a hearing is held in which all interested parties may comment on the proposed decree. The court will then determine if the decree is fair, adequate and reasonable. The court must consider the fairness of the decree to those affected, the adequacy of the settlement of the class, and the public interest. Articulated reasons should be given for rejecting a decree. The Court must also evaluate the adequacy of the decree by weighing the plaintiff’s likelihood of success on the merits against the amount and the form of the relief offered in the settlement, which, of course, is another way of talking about the Mason County standard and the first test of the Mason County standard. Finally, the court should consider whether the proposed consent decree is consistent with the public interest. In Stotts, the court elaborated on the reasonableness determination that should be made by a court. “The reasonableness determination is an issue of law,” said Stotts, “to be determined by the court, not by others.” This reasonableness determination is an issue of law, and in making it the court is under a duty to evaluate three factors: First, the court must consider whether the decree is a fair and adequate resolution of the allegations contained in the complaint. Ordinarily, the following factors should be considered: The complexity, suspense, and likely duration of the litigation; the state of proceedings, and the amount of discovery completed; the risks of litigation; the resources of the defendant; and the reasonableness of the settlement in light of the best possible recovery. The Court notes that because both Williams and Stotts involved class actions both parties to the lawsuit here argue that the procedures outlined in those cases need not be strictly followed by me here. In that regard, either the intervening party or the amicus curiae called my attention to the Fifth Circuit’s statement in the case of United States v. City of Miami, Florida, 664 F.2d 435, which is a 1981 Fifth Circuit case, that a court’s duty when presented with a consent decree is to give it greater scrutiny than would be given a proposed compromise in a class action. In discussing intense scrutiny, the Fifth Circuit, discussing intense scrutiny, said: Because the decree does not merely validate a compromise, but by virtue of its injunctive provisions reaches into the future, and has a continuing effect, its determinations require more than careful scrutiny. Even when it affects only the parties, the court should examine it carefully to ascertain not only that it is a fair settlement, but also that it does not put the court’s sanction and power behind a decree that violates the Constitution, statute or jurisprudence. This involves the determination that the proposal involves a reasonable factual and legal determination based upon the facts of record, whether established by evidence, affidavit or stipulation. If the decree also affects third parties, the court must be satisfied that the effect on them is neither unreasonable nor proscribed. In assessing the problem of giving judicial imprimature to the consent decree, the court must also consider the nature of the litigation and the purpose to be served by the decree. If the suit seeks to enforce a statute, the decree must be consistent with the public objectives sought to be obtained by the Congress. That comes, in essence, from page 441 of the City of Miami. The Court’s first look at the two documents gave the Court considerable concern long before I heard any kind of, perhaps, not altogether relevant issues about policies of the Justice Department. The five-page consent decree did not read to me like a consent decree has ever read. I realize that I have only been in the profession twenty-six years, but I have never seen a consent, five-page document like this five-page document. I couldn’t read it. I couldn’t decide what I was doing or what I was being asked to do. It didn’t seem like I was being asked to do anything. Then I read the forty-two page plan or fifty-four page plan, however many pages it is. It doesn’t come to fifty-four to me, because it stops before that and has some appendixes that are important. And I saw things in there that I thought were extraordinarily well done by the parties, and some not so well done. I recognized some problems. I recognized, number one, that Pennhurst, a very recent case, does not allow me as the federal district judge to order the State of Michigan to comply with state law, and there are provisions in the plan document — I am going to call it the plan document as opposed to the five-page decree— which could require a court to do that. The lawyers are bright here and know that I can’t do that. So we put that aside. There are also some things in the forty or fifty plus page document, however many pages it is, which I don’t think rise to a level of a constitutional question. They vary. They have been addressed by the lawyers here. There are others that very clearly do come to a constitutional issue, very clearly come to a constitutional issue. The lawyers know what they are. They are included, but not limited to the overcrowding, the supervision of prisoners so that they don’t harm each other, the fire protection problems which appear to be difficult in the Michigan prisons mentioned here if I believe what I read in the documents, the medical, psychiatric care, and so forth. These are areas that I think lawyers on both sides of all tables agree are of constitutional magnitude. The point is that in its present form it seems to me that I do nothing by signing the five-page consent decree. I don’t know what it means, and if I don’t know what it means, I can’t see how anybody else does. And I agree with one of the lawyers who argued I will have to litigate this case from now until the end of my term inasmuch as I will not be able to understand what it is a) that is claimed to be a constitutional violation, and b) if it is a constitutional violation, what it is that I am supposed to do or what evidence I am going to have to hear to make a determination if that really happened. “Minimally adequate” language doesn’t particularly distress me because the statute talks about minimally adequate. I would have preferred, I suppose, to see the word “adequate” instead of “minimally adequate,” but that doesn’t bother me. The term, however, as I relate it to the remainder of the forty-two page document is indefinite, and in my determination potentially unenforceable. I have particular concern with a part of the decree — and the record should show that when I am talking about the decree I am talking only about the five page document. I am not talking about the whole decree as some of the parties have characterized, but I am only talking about the five pages. There is a statement that I am going to have to find. It is on page four of the five page document. It sa