A State's Power to Enter into a Consent Decree That Violates State Law Provisions: What "Findings" of a Federal Violation Are Sufficient to Justify a Consent Decree That Trumps State Law?

Article excerpt

In the last forty years federal courts have played a prominent role in reshaping our public institutions. From school desegregation to prisoners' rights, institutional reform in the shape of court judgments has become commonplace.1 While some scholars question the efficacy of these structural injunctions, arguing that legislative prerogative should not be usurped by judicially mandated budgetary priorities,2 the authority of federal courts to order such remedies is generally unquestioned. This authority arises out of the Supremacy Clause of the U.S. Constitution, which requires a state to do what is constitutionally commanded, despite any resulting violation of state law. As the Ninth Circuit Court of Appeals noted, "[t]hat compliance with a decree enforcing federal law will have an ancillary effect on the state treasury is the inevitable and permissible consequence of Ex parte Young-lype suits."3

With this uncontroversial premise in mind, we now turn to an emerging and more controversial offshoot of judicially mandated structural reform-the use of settlement and consent decrees in bringing about such reform. A consent decree is a judicially approved settlement agreement that is based on an agreement between the parties, yet has the force and effect of a final judgment. Because of this dual nature, consent decrees have elements of both contracts and judicial orders.4 As the Supreme Court noted, a consent decree embodies the agreement of the parties and is enforceable as "a judicial decree that is subject to the rules generally applicable to other judgments and decrees."5 A federal consent decree "must spring from, and serve to resolve, a dispute within the court's subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based."6 Nothing controversial yet.

What is controversial, and the subject of this article, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy. To understand the issue, let us look at an example. We'll begin with the imaginary U.S. state of Transylvania, and its attorney general, Count Dracula. Transylvanians, it turns out, are proponents of small government, and many years ago they enacted an amendment to their state constitution requiring that all spending increases in the state budget be approved by two-thirds of the Transylvania state assembly. Because of this spending cap, Transylvania has always had only one prison. As the years went on, the prison grew more and more crowded, until one day a group of prisoners brought suit in federal court alleging that the overcrowding was so bad that it resulted in a violation of their federal constitutionally guaranteed right to be free from cruel and unusual punishment. After a long and bitter legal battle, with both sides incurring hundreds of thousands of dollars in legal fees, the federal court agreed with the prisoners' allegations and ordered the state of Transylvania to build a new prison to resolve the overcrowding at a cost of twenty million dollars. Moreover, the court ordered the state of Transylvania to pay the plaintiffs' hundreds of thousands of dollars in legal fees, a not uncommon remedy in such suits.7 Let us assume that the remedy was necessary to cure the overcrowding and that it met all the requirements of a federal injunction. Clearly then, the fact that the judgment would cause the state to spend its funds to build the new prison cannot void the federal judgment. Because of the Supremacy Clause of the U.S. Constitution, we know that a state law cannot prevent a federal court-ordered remedy that is necessary to cure a constitutional violation.8

Let us take this same example, except this time, Count Dracula, relying on his years of experience, realized that there was a good chance the state was going to lose the lawsuit. …