Sweeton v. Brown, s. 92-1441

• Decision Date: 01 July 1994
• Docket Number: Nos. 92-1441,92-1581,s. 92-1441
• Citation: 27 F.3d 1162
• Parties: James Anthony SWEETON, et al., Plaintiffs-Appellees, v. Robert BROWN, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1162

27 F.3d 1162

James Anthony SWEETON, et al., Plaintiffs-Appellees, v. Robert BROWN, Jr., et al., Defendants-Appellants.

Nos. 92-1441, 92-1581.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 8, 1993.

Decided July 1, 1994.

Paul D. Reingold, Nicholas J. Rine, Mark D. Mitshkun, Michigan Clinical Law Program, Ann Arbor, MI, Martin A. Geer (argued and briefed), Law Offices of Martin A. Geer, Detroit, MI, for plaintiffs-appellees.

David G. Edick, Asst. Atty. Gen. (argued and briefed), Thomas A. Kulick, Asst. Atty. Gen., Corrections Div., Lansing, MI, for defendants-appellants.

Before: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, and DAUGHTREY, Circuit Judges; and CONTIE, Senior Circuit Judge.

MERRITT, Chief Judge, announced the judgment of the Court remanding the case 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 case 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 authorities 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...