Saving 60(b) (5): the future of institutional reform litigation.

Author:Kelley, Mark

NOTE CONTENTS INTRODUCTION I. ADJUDICATING INSTITUTIONAL REFORM A. The Rise of Institutional Reform Litigation B. Policy Issues in Institutional Reform Litigation 1. Federal Judicial Involvement in State and Local Policymaking 2. Political Accountability 3. Courts' Capacity To Administer Reform C. Legal Doctrine in Institutional Reform II. HORNE V. FLORES A. The Decision B. Changes to the Rule 60(b)(5) Doctrine III. CONFUSION IN THE LOWER COURTS AFTER HORNE A. Hornes Scope: Injunctions, Consent Decrees, Neither, or Both? B. The Status of Prophylactic Institutional Reform Decrees 1. What Constitutes the Objective of the Decree? 2. What Is the Minimum Under Federal Law? C. The Role of "New Policy Insights" D. What Is a "Durable Remedy," and When Is It Required? IV. SAVING 60(b)(5): POLICY AND DOCTRINE A. Apply Horne Flexibility Only to Consent Decrees and Collusive Injunctions, Not Properly Litigated Injunctions B. Clarify That the Standard for Vacatur Is the Objective of the Underlying Decree, Not the Constitutional or Statutory Minimum C. Require a Durable Remedy When Dissolving a Decree D. Allow for Experimental Modification of Decrees When New Policy Insights Are Available CONCLUSION INTRODUCTION

On June 11, 1963, George Wallace, then Governor of Alabama, stepped into the doorframe of the Foster Auditorium at the University of Alabama and refused to move. (1) He was attempting physically to block the entry of two black students, Vivian Malone and James Hood, who were admitted to the University by court order. Governor Wallace sought to keep the pledge he made in his inauguration speech--"segregation now, segregation tomorrow and segregation forever"-but he failed to honor his promise after President Kennedy federalized the Alabama National Guard and Deputy Attorney General Nicholas Katzenbach commanded Wallace to step aside. The encounter, which is now remembered as the "Stand in the Schoolhouse Door," came to symbolize what was then a fledgling movement to vindicate the constitutional rights of African Americans through the use of court-ordered desegregation decrees.

Today, the school district where Wallace made his ill-fated stand bears a closer resemblance to his inauguration pledge than one would expect. Recently released reports documenting the resegregation of the Tuscaloosa, Alabama public schools (2) confirm what academics have long known: America's fight for desegregation is not over, and its supporters are losing ground. (3) The data show that when school districts are released from court-ordered desegregation plans, they gradually resegregate. (4) This phenomenon suggests that the court orders provided structural support necessary for desegregation efforts, and that the orders were prematurely vacated.

Behind the decline of the desegregation project lays a subtler trend: the steady unraveling of protections against governments' attempts to modify or dissolve institutional reform decrees in federal court. Institutional reform decrees are one of the chief means by which federal courts cure illegal local, state, and federal institutional practices, including school segregation, English language learning programs that are deficient under the Equal Educational Opportunities Act, (5) constitutionally inadequate conditions in prisons and mental hospitals, (6) and even insufficient dental services covered by Medicaid. (7) Although some scholars suggest that the era of institutional reform litigation (IRL) has passed, (8) many public institutions still operate under orders issued and supervised by federal courts. For example, in (2000), twenty-five percent of state prisoners were incarcerated in institutions subject to court orders. (9) Institutional reform decrees still play an important role in the life of America's public institutions. (10)

Institutional reform decrees bring federal courts into the administration of state affairs, implicating a unique feature of American federalism. As decrees become easier to modify or dissolve, state institutions become more likely to escape federal court oversight and operate autonomously. Some scholars support the continued erosion of the standards governing modification of these decrees, arguing that state institutions should have flexibility in administering their public policy and that federal courts lack both the expertise and the authority to craft that policy. (11) Scholars who support a tougher standard for modification argue that the decrees provide an essential tool for the effective vindication of the rights of persons ill-equipped to effectuate public policy change on any level. (12)

While an abundance of literature has debated the propriety of institutional reform from a policy perspective, (13) evaluating the relative merits and demerits of federal court oversight of state institutions, there is little documentation of the Supreme Court's jurisprudence on when an institutional reform decree should be modified or dissolved. (14) This is surprising, given that attempts to modify or dissolve institutional reform decrees often revolve around the very policy issues that scholars debate. Additionally, the Court's jurisprudence is particularly important given the sparse guidance provided by the procedural vehicle parties use to modify decrees: Federal Rule of Civil Procedure 60(b)(5). This Rule merely instructs that a decree may be modified when "applying it prospectively is no longer equitable. The gap in the literature on reform decrees has become even more apparent after the Supreme Court decided Horne v. Flores in 2009. (16) Home substantially modified the standards that federal courts use under Rule 60(b)(5) to modify decrees, and it created considerable confusion regarding the circumstances under which dissolution of such decrees is appropriate.

The literature's focus on policy issues--and the resulting dearth of attention to the legal and doctrinal elements of the institutional reform debate--has allowed positions that were developed in theoretical terms, often along party lines, to shape the doctrine.' However, moving forward, courts ought to exhibit moderation, compromise, and attention to the fact-specific nature of institutional reform decrees. Courts must strike the proper balance between the legitimate policy critiques of institutional reform decrees and the need for courts to maintain oversight over institutions operating in violation of individuals' federal rights. Horne was one attempt to strike such a balance, but the Court's standard swung the pendulum too far in the direction of state and local power. Critics of institutional reform are correct that ongoing decrees pose problems for democratic accountability in local government. The current doctrine, however, does not narrowly tailor the standards for modification to target the situations that pose the greatest threat to democratic accountability. Supporters of institutional reform, for their part, are correct that courts have a role to play in regulating aberrant institutions, but they should acknowledge that this role must accommodate new policy insights and the considered judgments of elected officials years after decrees have been entered. The Court's failure to strike the proper policy balance in Horne--and the muddied, confusing balance it did strike--has produced a nebulous and uncertain terrain for courts to navigate when evaluating motions to modify decrees. Since the stakes of the policy debate have been clearly established, the next step is to begin clearly and carefully hewing the standards courts apply to the areas of debate over which there is consensus.

This Note addresses the gap in the literature between policy and doctrine by discussing the legal standards for, and jurisprudence of, modifying and dissolving court-ordered institutional reform decrees. Part I introduces the history, policy issues, and legal jurisprudence surrounding IRL. Part II introduces Horne v. Flores, the most recent and important Supreme Couit case on IRL, and details both the reform the Court sought to introduce and its interpretation of Rule 60(b)(5). Part III examines the confusion that Hornes innovations have wrought by examining problems, divergences, and mistakes in lower court decisions applying Horne. Part IV proposes several changes to the Rule 60(b)(5) doctrine that will clear up the confusion from Horne and, more importantly, will help align the doctrine with the proper balance of policy values while protecting the rights and remedies secured by IRL.


    IRL, and the policy and jurisprudential debates surrounding it, evolved out of the dynamic history of the federal courts' equitable power to issue injunctions and regulate behavior. This power, and the justifications undergirding it, varies with the nature of the behavior regulated, the identity of the parties, the level of consent, and the federal court's conception of its authority to involve itself in policymaking. This Part traces the rise of IRL and lays out a roadmap of competing frameworks for evaluating its propriety. Part I.A discusses the historical context of IRL and the Supreme Court's interpretation of Rule 60(b)(5), which governs motions to modify or dissolve injunctions. Part I.B canvasses the policy debate on the appropriateness of continued federal court involvement in state public policy, a conversation that is very much alive today. Part I.C then examines the legal doctrines governing court-ordered injunctions, consent decrees, and modifications to those orders and decrees in the institutional reform context.

    1. The Rise of Institutional Reform Litigation

      The first Supreme Court cases adjudicating the modification of judicial decrees involved injunctions and consent decrees that were designed not to reform institutions, but to end anticompetitive behavior. (18) These cases were the first to interpret the then-new Federal Rule of Civil Procedure 60(b)(5), which provides scant...

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