UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 95-1582
WILLIAM LANGTON AND DAVID LEBLANC,
Plaintiffs - Appellees,
v.
WILLIAM HOGAN, JR., ET AL.,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Keeton,* District Judge.
Robert J. Munnelly, Jr., Assistant Attorney General, with
whom Scott Harshbarger, Attorney General of Massachusetts, Karen
Laufer, Assistant Attorney General, and Philip W. Silva IV were
on brief for appellants. Dennis J. Bannon for appellees.
November 21, 1995
* Of the District of Massachusetts, sitting by designation.
KEETON, District Judge. This is an appeal by KEETON, District Judge.
Defendants-Appellants from a 1995 Judgment of the district court
modifying, on motion of Defendants-Appellants, but not to the
full extent they requested, a Permanent Injunction ordered in
1984. We treat the 1995 Judgment as in essence a ruling on a
motion for modification of a consent decree that did no more than
decide the issues before the court, as the matter was presented
by Defendants-Appellants. Discerning no error of law, no clearly
erroneous finding of fact, and no abuse of discretion, we affirm.
I. Background Facts and Procedural History I. Background Facts and Procedural History
In 1979, the Plaintiffs-Appellees, two inmates of a
Massachusetts correctional institution, filed a civil action
under 42 U.S.C. 1983, claiming, among other things, that
predecessors of Defendants-Appellants in positions of authority
in the institution and the state correctional system had violated
and were continuing to violate constitutionally protected rights
of the inmates by intercepting and monitoring their telephone
calls, including calls to their counsel as well as other private
calls, and that such interception and monitoring violated the
federal and state wiretapping statutes, 18 U.S.C. 2510 et seq.
and Mass. Gen. L. ch. 272, 99 et seq.
For convenience, we will refer to Plaintiffs-Appellees
as plaintiffs or by name, and Defendants-Appellants as defendants
or the Department of Correction.
In 1984, after negotiations of the parties, and
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consultations of counsel and the judge to whom the case had been
randomly assigned, the parties entered into a Settlement
Stipulation, dated October 17, 1984, providing for a Permanent
Injunction in the form of an attached exhibit, and a Judgment of
Dismissal in the form of another attached exhibit. The district
court (Zobel, D. J.) approved the settlement and made the two
orders. One was the Judgment of Dismissal, reciting that, in
view of the Settlement Stipulation,
all of the claims by both plaintiffs in this action are dismissed with prejudice and without costs or attorney's fees to any party.
App. 000029.
The other was a Permanent Injunction in view of the Settlement
Stipulation:
1. All officers, agents, servants, employees and attorneys of the Department of Correction are enjoined permanently, under both 18 U.S.C. 2510 et seq. and M.G.L. c.
272, 99 et seq., from intercepting,
endeavoring to intercept or procuring any other person to intercept, any wire communication by or to William Langton or David LeBlanc, inmates within the custody of the Department, without a specific court order or legislative authorization to do so, except as specifically permitted by these statutes, taken together, as they have been amended or may be amended and as they have been construed in reported decisions that are binding in this Court or in the state courts of Massachusetts.
2. This Permanent Injunction, entered pursuant to the Settlement Stipulation dated October 15, 1984, shall operate prospectively only. It shall not of its own force affect the rights of inmates of the Department other than William Langton and David LeBlanc.
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App. 000030-31.
The Department of Correction apparently complied with
the Permanent Injunction without incident for almost a decade,
until April 1994, when it promulgated new regulations governing
telephone access and use by inmates, 103 C.M.R. 482.00 et seq.
(hereinafter "the Regulations"). These Regulations, ostensibly
applicable to all inmates in all Department institutions and
facilities, instituted a system of routine monitoring of inmate
telephone calls by the Department of Correction and required
inmates to sign a form consenting to having their calls
monitored, or be deprived of their telephone access. The
Regulations also limited the number of telephone calls that could
be made by inmates to ten monitored calls to non-lawyers, and
five non-monitored calls to lawyers. All telephone calls,
whether lawyer or non-lawyer, were required to be pre-approved.
The Department of Correction sought to apply the new
Regulations to plaintiffs. Plaintiffs refused to sign the
consent forms and were denied telephone access. In June 1994,
plaintiffs filed a Petition for Contempt alleging that the
Department of Correction had prohibited plaintiffs from placing
telephone calls unless they agreed to permit the recording of all
their telephone calls. Defendants moved to dismiss the petition
for contempt, and plaintiffs filed an opposition to the motion to
dismiss.
While the motion to dismiss was still pending,
defendants filed, in January 1995, a Motion to Modify the
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Permanent Injunction
to allow for the restrictions, monitoring and recording of plaintiffs' telephone use in accordance with the Department of Correction's new telephone regulations, 103 CMR 482.00 et seq.
App. 000077.
On February 21, 1995, Judge Zobel signed a Memorandum
of Decision, the last paragraph of which is as follows:
Defendants' motion to modify the permanent injunction is allowed to the extent that the Department of Correction may limit plaintiffs' access in accordance with the Regulations, 403 CMR 482.00 et seq. It is
denied to the extent that defendants shall not monitor plaintiffs' calls and 482.10 shall not apply to plaintiffs. Counsel shall submit a form of judgment reflecting the modification allowed.
App. 000103.
Counsel having failed to agree upon a form of judgment
reflecting the modification allowed, Judge Zobel, on May 3, 1995,
signed a Judgment as follows:
After hearing on the defendants' Motion to Modify the Permanent injunction, and in accordance with the Court's Memorandum of Decision dated February 21, 1995, it is hereby ordered and adjudged:
1. The defendants shall not monitor or record the telephone calls of the plaintiffs, William Langton and David LeBlanc.
2. The provisions of 403 CMR 482.10, shall not apply to the plaintiffs (except for call detailing, which shall apply to the plaintiffs) pending further order of the court upon application of the defendants.
3. Acceptance by each plaintiff of a PIN and use of inmate telephones shall not be deemed as consent to the conditions and
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restrictions placed upon inmate telephone calls, including call monitoring or recording.
4. The defendants shall notify by letter each non-attorney whose name appears on the plaintiffs' lists of preauthorized telephone numbers that the message regarding recording and monitoring should be disregarded and that calls made by the plaintiffs are not subject to monitoring and recording.
5. The plaintiffs may request changes in their preauthorized telephone numbers at any time. Such changes shall be made expeditiously by the defendants provided they are in compliance with the restrictions on the total number of personal and attorney numbers plaintiffs are allowed to call pursuant to 403 CMR 482 et seq. If, at any
time, defendants believe plaintiffs are abusing this arrangement, they may petition the court for further relief.
6. Defendants' Motion to Modify the Permanent Injunction is allowed to the extent that the Department of Correction may limit plaintiffs' access in accordance with the Regulations, 403 CMR 482.00 et seq., as
amended, so long as such amendments do not change the substance of this order.
7. Modification of the Permanent Injunction entered by this court on October 15, 1984 is required for the Department of Correction to apply new inmate telephone access regulations to the plaintiffs.
App. 000104-106.
II. The 1984 Permanent Injunction and Judgment of Dismissal II. The 1984 Permanent Injunction and Judgment of Dismissal
The 1984 Permanent Injunction was not in the classic
mold of consent decrees, as two orders were made rather than a
single integrated consent decree. The terms of these two orders,
however, were as surely part of the terms of the settlement as
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were the recitations in the document entitled Settlement
Stipulation. In this case, we take account of the terms of all
three documents in construing each, and we conclude that they do
not support the interpretation urged upon the district court, and
here, as the primary contention of defendants.
This is an appeal from the district court's ruling on a
motion for modification, yet defendants have not presented
arguments as to why the 1995 Judgment should be modified, in
light of changes in law or fact, to allow the Regulations to be
applied to the plaintiffs. Defendants instead contend that the
Regulations should be applied to the plaintiffs because the
Regulations do not violate, and never have violated, the 1984
Permanent Injunction. Defendants argue that the federal and
state wiretapping statutes, as they interpret those statutes, do
not prohibit the Regulations, and therefore the Permanent
Injunction does not prohibit the Regulations.
Rather than argue for modification, defendants, in
essence, argue that the Permanent Injunction did no more than
prohibit them from violating law, that there was never any
adjudication that they had violated any constitutionally
protected right of plaintiffs, that they yielded nothing with
regard to any reasonably disputable issue of law or mixed-legal-
factual issue but merely stipulated that they would not commit
certain types of violations of law in the future, and therefore
that when the district court in 1995 purportedly granted in part
but not fully their motion for modification of the Permanent
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Injunction, the court was in effect enlarging the injunction in
plaintiffs' favor rather than granting limited modifications in
defendants' favor in order appropriately to tailor relief to
defendants' showing, on the record before the district court at
the time it made its 1995 ruling, of changes in law or fact that
warranted modification of the Permanent Injunction.
We conclude that the position of Defendants-Appellants
is flawed in several ways, as explained below.
If the Permanent Injunction did not in any way enlarge
the rights of plaintiffs beyond what they were under defendants'
proposed interpretation of the law, then defendants gave up
nothing in settling the dispute. This is an unlikely
interpretation and we do not accept it. If it were correct, no
purpose would be served by the declaration in paragraph 2 that
the Permanent Injunction "shall not of its own force affect the
rights of inmates of the Department other than William Langton
and David LeBlanc." Defendants' contention, in effect, asks us
to hold that both paragraph 1 and paragraph 2 were illusory --
stating nothing beyond what was already forbidden by law before
the Permanent Injunction was entered. This is not a reasonable
interpretation.
The usually understood meaning of a Settlement
Stipulation is that each party is agreeing to give up something -
- to yield on one or more reasonably plausible contentions of
law, or fact, or mixed-law-fact issues. "[T]he agreement reached
normally embodies a compromise; in exchange for the saving of
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cost and elimination of risk, the parties each give up something
they might have won had they proceeded with the litigation."
United States v. Armour, 402 U.S. 673, at 681 (1971). When
making an agreement for a consent decree, the parties to a case
are agreeing not to press any of their disputes to decision in
court. The parties forego "their right to litigate issues
involved in the case and thus save themselves the time, expense,
and inevitable risk of litigation." Armour, 402 U.S. at 681. We
so interpret the Settlement Stipulation of the parties to this
case. The parties' disputes thus settled may include disputes
about applicable law, disputes about facts, and disputes about
mixed-legal-factual issues, including disputes about the
materiality under rules of law (as finally determined in court
proceedings at trial or on appeal) of particular disputes of
fact.
In the present case, it was clear, before the
Settlement Stipulation, that disputes of fact had been raised by
the pleadings. It might reasonably be argued in support of the
position now advanced by defendants, however, that rather than
settling the merits of these disputes the Settlement Stipulation
rendered them moot. Without so deciding, we assume in
defendants' favor that this is so as to any strictly factual
disputes.
As to the reasonably disputable issues of law or mixed-
legal-factual disputes, a settlement and consent decree in
accordance with the settlement preclude the parties from
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reasserting their contrasting legal arguments on such issues
without having first shown cause for vacating or modifying the
consent decree. Whatever the law governing this case might have
been just before the parties entered into the Settlement
Stipulation, the Permanent Injunction was a lawfully entered
order of court. The law as between the parties to the case is
what it was agreed to be in the Permanent Injunction. The
Supreme Court has stated:
[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it .... [T]he instrument must be construed as it is written, and not as it might have been written had the plaintiff [or defendants] established his [or their] factual claims and legal theories in litigation.
Armour, 402 U.S., at 681-82. Accord, Firefighters Local Union
No. 1784 v. Stotts, 467 U.S. 561, 574 (1984). The parties are
not free to argue their contrasting legal theories of the meaning
of the statutes that underlie the Injunction, because they gave
up the right to have that dispute resolved by the court.
We take account of the fact that Armour was decided
long before Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367
(1992), and that Armour's holdings must be read today, especially
as applied to an institutional consent decree like that before us
now, with sensitivity to any modification of precedent that the
decision in Rufo has effected. As we note in Part IV below,
however, this point bears principally upon whether modification
of the Permanent Injunction should be made, not upon what the
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Permanent Injunction meant when entered, or meant in 1994 or
1995, absent modification.
We take account also of unsettled questions regarding
whether Armour was modified by United States v. ITT Continental
Baking Co., 420 U.S. 223 (1975). We conclude, however, that even
if ITT is read as liberalizing to some degree the standard for
going outside the text of a consent decree to assist in
determining its meaning, defendants have not offered any
persuasive reason for going outside the text of the Permanent
Injunction in this case. Even if we were to assume that
ambiguity of the meaning of the text of the Permanent Injunction
warrants our consideration of extraneous sources of
clarification, defendants' position is not aided. Looking
outside the text of the Permanent Injunction to then existing
law, rather than clarifying defendants' position, muddles it
further, because the existing law was uncertain and yet to be
determined (as explained in Part III below). We see no reason to
permit defendants to argue that genuine disputes regarding what
the state and federal statutes prohibited defendants from doing,
or permitted them to do, should be resolved now in defendants'
favor and thereby control the meaning of the Permanent
Injunction. Instead we hold that the Permanent Injunction (along
with the associated documents) settled those underlying legal
The way in which a consent judgment or consent decree
resolves, between the parties, a dispute over a legal issue is
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not a ruling on the merits of the legal issue that either (1)
becomes precedent applicable to any other proceedings under the
law of stare decisis or (2) applies to others under the law of
claim preclusion or issue preclusion. See Martin v. Wilks, 490
U.S. 755 (1989)(parties to litigation cannot enter into a consent
judgment that will preclude a person not made a party from
bringing a later suit alleging violation of his or her legal
rights). The resolution of the legal dispute by consent judgment
is nonetheless binding on the parties to the case in which the
consent judgment is entered. The parties to this case are bound
by the rules of law declared in the Permanent Injunction,
although no other parties are so bound.
We state the point more generally. When a dispute of
law exists between parties to a case and they agree to a
settlement of that dispute and entry of a judgment with prejudice
based on that settlement, then the terms of that judgment in
relation to that legal issue are subject to res judicata
principles. A judgment that is entered with prejudice under the
terms of a settlement, whether by stipulated dismissal, a consent
judgment, or a confession of judgment, is not subject to
collateral attack by a party or a person in privity, and it bars
a second suit on the same claim or cause of action. See 1B
Moore's Federal Practice .409[5] (2d ed. 1995). Such a judgment
has the force of res judicata until further order of that or a
higher court modifying that consent judgment. This proposition
is supported in a large body of precedent. See, e.g., In re
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Medomak v. Canning, 922 F.2d 895 (1st Cir. 1990) (generally a
court-approved settlement receives the same res judicata effect
as a litigated judgment); accord, In Re Laing, 31 F.3d 1050 (10th
Cir. 1994); Keith v. Aldridge, 900 F.2d 736 (4th Cir. 1990),
cert. denied, 498 U.S. 900 (1990); Epic Metal Corp. v. H.H.
Robertson Co., 870 F.2d 1574 (Fed. Cir. 1989), cert. denied, 493
U.S. 855 (1989); Kurzweg v. Marple, 841 F.2d 635 (5th Cir. 1988);
Amalgamated Sugar Co. v. NL Industries, 825 F.2d 634 (2d Cir.
1987), cert. denied, 484 U.S. 992 (1987).
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III. Settling Disputable Issues of Law III. Settling Disputable Issues of Law
Defendants have not called attention to any "specific
court order or legislative authorization" occurring after the
entry of the Permanent Injunction. Defendants' position is not
salvaged by the language in the Permanent Injunction stating that
defendants are enjoined under the state and federal acts from
intercepting telephone calls,
except as specifically permitted by these statutes, taken together, as they have been amended or may be amended and as they have been construed in reported decisions that are binding in this Court or in the state courts of Massachusetts.
The statutes do not "specifically permit" the Regulations, and
the meaning of the statutory provisions for permitted
interception and monitoring, as "amended" or "construed" in
"binding" decisions, is at least reasonably susceptible to a
construction contrary to defendants' proposed interpretation.
Defendants contend that the Regulations do not violate
the state or federal wiretapping statutes for three reasons.
Even now, reasonable arguments can be advanced against, as well
as for, each of defendants' contentions about the applicable law.
First, defendants argue that the Massachusetts Wiretap
Act, Mass. Gen. L. ch. 272, 99 et seq., prohibits only secret
"interception", and monitoring under the Regulations is not
secret and therefore not prohibited. The 1984 Permanent
Injunction, however, prohibited conduct that would amount to
"interception" under federal law, even if that conduct would not
amount to "interception" under state law. The federal wiretap
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act, 18 U.S.C. 2510, et seq., does not make secrecy decisive.
That act, as of 1984, defined the term "intercept" as simply "the
aural acquisition of the contents of any wire, or oral
communication through the use of any electronic, mechanical, or
other device." 18 U.S.C. 2510(4). Monitoring and recording of
plaintiffs' telephone calls under the Regulations thus
constitutes "interception" under the 1984 Permanent Injunction,
despite its being performed openly and without secrecy.
Second, defendants attempt to argue that the new
Regulations do not violate the 1984 Permanent Injunction because
the definition of "interception" within the federal wiretapping
act, at 18 U.S.C. 2510(5), expressly excludes recording or
monitoring performed "by an investigative or law enforcement
officer in the ordinary course of his duties." Defendants
interpret the statute to mean that monitoring by corrections
officials under the Regulations falls within the excluded
category. The defendants have not shown beyond genuine dispute,
however, that in monitoring conversations corrections officials
would be acting as "investigative or law enforcement officer[s]
in the ordinary course of [their] duties." Defendants cite
several cases from other courts that may be read as so holding.
United States v. Sabubu, 891 F.2d 1308, 1328 (7th Cir. 1989);
United States v. St. Paul, 614 F.2d 115, 117 (6th Cir. 1980);
State v. Fornino, 539 A.2d 301, 308 (N.J. Super. Ct. App. Div.
1988). We are, however, aware of no reported decisions to this
effect that are binding in this court or in the state courts of
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Massachusetts. In Campiti v. Walonis, 611 F.2d 387, 392 (1st
Cir. 1979), the First Circuit expressly reserved decision as to
whether monitoring in accordance with an established prison
policy of which the prisoners were informed could qualify as part
of the ordinary course of business of a law enforcement officer.
The issue in this circuit was in 1984, and still is, reasonably
debatable.
Finally, defendants argue the new Regulations do not
violate the 1984 Permanent Injunction because the federal act
under 18 U.S.C. 2511(2)(c) permits monitoring or recording by
"a person acting under color of law" where "one of the parties to
the communication has given prior consent to such interception."
Defendants contend that the Regulations meet the one-party
consent exception of the federal act because inmates impliedly
consent to be monitored when they use the telephone after being
made aware that monitoring of calls is a condition for being
allowed to use the telephone. Defendants have cited cases from
other jurisdictions holding that execution of forms by inmates
that acknowledge their understanding that their calls will be
monitored constitutes consent under the federal act, even if
inmates are denied telephone access if they do not sign the
forms; and that calls placed by inmates despite express notice
from stickers on the telephones and the message from the
automated operator that accompanies every call constitutes
consent. See United States v. Horr, 963 F.2d 1124, 1126 (8th
Cir. 1992); United States v. Amen, 831 F.2d 373, 378-79 (2d Cir.
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1987); United States v. Willoughby, 860 F.2d 15, 20-21 (2d Cir.
1988); United States v. Paul, 614 F.2d 115, 117 (6th Cir. 1980);
United States v. Valencia, 711 F. Supp. 608, 611 (S.D.Fla. 1989);
United States v. Green, 842 F. Supp. 68, 71-71 (W.D.N.Y. 1994).
Defendants also argue that because the Regulations require
positive call acceptance from the recipient after hearing a
recorded message, recipients are deemed to have impliedly
consented. Defendants, however, cite no cases to this effect.
Once again, we are aware of no reported decisions that
are binding in this court or in the state courts of
Massachusetts, holding that this type of prison telephone
monitoring system meets the one-party consent exception to the
federal wiretapping act due to implied consent. It may
reasonably be argued that "implied consent" in this sense is not
a free and voluntary consent; it is instead no more than a choice
between unattractive options -- a limited choice imposed on
plaintiffs by defendants. The issue then becomes whether the law
allows the defendants to impose this limitation of choice on the
defendants and call their response an implied consent. At the
least, grounds exist for genuine dispute about whether defendants
are authorized by law to impose such a limited choice on
plaintiffs and whether "implied consent" under these
circumstances is "consent" as that term is used in the federal
act, and legally effective consent under the Department's
regulations. See Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir.
1990) (holding that "implied consent" is consent in fact,
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inferred from associated circumstances indicating that a party
knowingly agreed to surveillance).
The issue of what constitutes "implied consent" in the
prison context has not yet been directly addressed by this court,
and we do not decide it here. It is sufficient to point out that
plaintiffs in this case have not consented, impliedly or
otherwise, to the monitoring scheme; plaintiffs instead brought a
contempt action under the Permanent Injunction, an opposition to
defendants' motion to dismiss the contempt action, and an
opposition to defendants' motion for modification of the
Permanent Injunction. We do not read Griggs-Ryan as supporting
the view that an inmate has impliedly consented to the very
scheme the inmate has challenged as a violation of the 1984
Permanent Injunction.
Defendants entered into a Settlement Stipulation under
which each party gave up the right to have the dispute as to the
meaning of the federal and state wiretapping statutes resolved by
a court. The meaning of what was permitted under the state and
federal wiretapping statutes was ambiguous and reasonably
debatable. Defendants have no right to have that dispute now
decided in their favor and then to use that resolution to
interpret the terms of the Permanent Injunction.
Of course, this does not mean defendants are forever
barred from moving that the court orders be vacated or modified.
Special rules are applicable to institutional consent decrees,
but they concern grounds for vacating or modifying a consent
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decree, rather than undermining the force of this body of
precedent in relation to the effect of the consent decree until
vacated or modified. We perceive no error in Judge Zobel's
invoking for guidance, in her consideration of the defendants'
motion for modification of the 1984 Permanent Injunction in this
case, the body of precedent applicable to motions for
modification of a consent decree. This body of precedent
includes the case on which she relied especially, Rufo v. Inmates
of Suffolk County Jail, 502 U.S. 367 (1992) (holding that a party
seeking modification of a consent decree may meet its initial
burden by showing a significant change either in factual
conditions or in law). Under the guidance of Rufo, however, a
court considering such a motion would be concerned with tailoring
modifications according to intervening changes in law (as well as
fact). It would not be deciding the original dispute about what
would have been a court's answer to the dispute had the parties
not entered into their Settlement Stipulation.
IV. The Nature of the 1995 Judgment IV. The Nature of the 1995 Judgment
When these legal principles are applied here, can it
reasonably be said that the 1995 Judgment modified the consent
decree in plaintiffs' favor, as defendants contend, rather than
only in defendants' favor though less substantially so than they
requested? We conclude that, as properly construed in the way
explained below, the 1995 Judgment modified the Permanent
Injunction only in defendants' favor. It was appropriately
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tailored to the only changes in law or in fact disclosed on the
record before the district court as developed after ample
opportunity for defendants to present both legal and evidentiary
support for their motion for modification.
The only changed circumstances shown on the record
before the district court at the time of its 1995 Judgment were
changes of fact with respect to technology of initiating,
detailing, effecting, monitoring, and recording electronic
transmissions, including telephone calls. The only changes of
law shown were those effected when the Department of Correction
adopted new regulations, published in 403 CMR 482.10 et seq.
Rather than attempting to show that the district court's
modifications, recited in the 1995 Judgment, were not reasonably
tailored to those changes, defendants seek to show that the 1984
Permanent Injunction was not in any respect a settlement of a
disputed issue of law but instead preserved their unlimited right
to assert their view of the law and have that dispute decided now
in their favor.
Defendants ask us on this appeal to resolve that
original dispute about the law in their favor, and argue that the
district court should have done so instead of conceiving its duty
as one of considering whether intervening changes of law (as well
as fact) had occurred, and, if so, how to tailor modifications of
the consent decree accordingly. We reject this contention.
The key modification of the 1984 Permanent Injunction
that the 1995 judgment makes is explained:
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Modification of the Permanent Injunction entered by this court on October 15, 1984 is required for the Department of Correction to apply new inmate telephone access regulations to the plaintiffs.
The 1995 judgment adds, for clarity, a statement of some of the
terms that remain in effect. These terms are not enlargements of
the terms of the Permanent Injunction in plaintiffs' favor; they
simply clarify limits on the scope of the modifications in
defendants' favor.
The 1995 judgment says nothing, either directly or
impliedly, about how any future motion for modification with
appropriate showing of cause and request for appropriately
tailored relief should be heard and decided under the principles
of Rufo, 502 U.S. 367. Nor do we. Instead, we leave such
matters for decision in the future only if and when they are
appropriately presented first in district court.
V. Conclusion V. Conclusion
For the foregoing reasons Defendants-Appellants'
arguments fail. The 1995 judgment of the district court is
AFFIRMED.
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"Dissent Follows" "Dissent Follows"
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BOUDIN, Circuit Judge, dissenting. This case turns BOUDIN, Circuit Judge, dissenting
centrally on the interpretation of a provision of a 1984 consent
decree settling a case that Langton and LeBlanc brought against
Massachusetts corrections officials. The majority's opinion
contains many unexceptionable statements of law, but on the
pivotal issue--the reading of a sentence of the 1984 decree--the
majority's reading simply does not square with either the
decree's language or its purpose. Indeed, because this case
involves the regulation of a state agency by federal judges under
an elderly consent decree, it raises issues of policy and
judicial attitude that go beyond a mere quarrel about decree
language.
1. In 1979, Langton and LeBlanc filed a 1983 action
against the state prison authorities complaining of mistreatment.
The complaint alleged that using corrections officers to
distribute medication violated state health laws and the
Constitution; that the number of telephone calls permitted to the
plaintiffs was too few and the time limit too short; and finally
that the prison had been monitoring telephone calls--one call by
Langton to an attorney was specified--and that such monitoring
violated 18 U.S.C. 2510 and Mass. Gen. Laws ch. 272, 99, the
federal and state wire-tapping statutes.
In an April 1983 decision, the district court
considered the medication and limited-calls issues at some
length, and it concluded that no protected rights had been
violated and ordered summary judgment for the defendants. In a
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brief discussion of the monitoring issue, the district court said
that "[n]on-consensual monitoring of inmate calls may violate 18
U.S.C. 2510," citing a then-recent decision of this court.
Although the defendants denied any such monitoring, Langton's
affidavit described one incident in which he thought that a
telephone call to his lawyer had been monitored; the court said
that the affidavits, "if just barely," created a factual issue
precluding summary judgment.
In October 1984 the parties entered a settlement
agreement that dealt with several different grievances. The
proposed remedies included new regulations permitting inmates'
access to telephones for at least 15 minutes per day, furnishing
Langton a three-drawer metal file cabinet and a stereo system in
his cell, and arrangements concerning Langton's use of an
electric typewriter in the prison library. Finally, the parties
agreed to the entry of a permanent injunction whose main
paragraph read as follows:
All officers, agents, servants, employees and attorneys of the Department of Correction are enjoined permanently, under both 18 U.S.C. 2510 et seq. and
M.G.L. c. 272, 99 et seq., from
intercepting, endeavoring to intercept, or procuring any other person to intercept, any wire communication by or to William Langton or David LeBlanc, inmates within the custody of the Department, without a specific court order or legislative authorization to do so, except as specifically permitted by these statutes, taken together, as they have been amended or may be amended and as they have been construed or may be construed in reported decisions that are binding in this Court or in the state
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courts of Massachusetts.
There has been no showing that this provision aimed to
resolve any dispute between the parties as to what was or was not
unlawful. Indeed, the settlement agreement said, in the
paragraph proposing the injunction just quoted, that corrections
officers "specifically deny that any of them, or anyone acting in
concert with any of them, ever intercepted or monitored any of
Langton's or David LeBlanc's wire communications by any means,
lawful or unlawful . . . ." In short, the parties disagreed
about whether monitoring had occurred, and the matter was settled
by a forward-looking decree that enjoined obedience to two cited
statutes.
In recent years, prisons have encountered a growing
number of problems created by inmate telephone calls.1 These
problems include the use of telephones to obtain narcotics in
prisons, to promote illegal drug trading outside of prison as
well as other criminal operations, commit fraud in the purchase
of merchandise and goods for prisoners, and to carry out
obstructions of justice and escape plots. Ultimately
Massachusetts followed a number of other prison systems including
the federal prison system in adopting a standardized regime to
control and track inmate use of the telephone system.
The new Massachusetts regime allows each inmate to list
1 This intervening history is recounted in defense affidavits filed in the district court incident to the latest round of litigation and the description was largely accepted by the district court.
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up to ten family members and friends and up to five private
attorneys or law firms, in addition to three automatically
authorized legal service organizations. Each inmate can place a
call only by using his or her personal identification number, and
the technology restricts the call to one of the 18 telephone
numbers authorized for that inmate. To obtain such a PIN number,
the inmate completes a form that requires the inmate's consent to
various conditions, including call monitoring, call recording and
the retention of various "details" incident to the call (e.g.,
the time of the call, the number called). But calls to
attorneys, law firms and the legal service organizations are not
subject to monitoring or recording.
Langton and LeBlanc refused to complete the consent
forms, were denied telephone access, and in June 1994 began the
contempt proceeding that prompted the present appeal. When the
defendants moved to dismiss the petition on the ground that they
had not violated the consent decree, the district judge indicated
that a motion to modify the decree should be filed. Without
agreeing that it was necessary, the defendants filed the
suggested motion. Their affidavits provide reasons why they
think it impractical or dangerous to except Langton and LeBlanc
from the regime that is now applied to all other prisoners.
In February 1995, the district judge entered an
unpublished decision which treated the issue before the court as
a motion for modification of the consent decree. Fed. R. Civ. P.
60(b)(5), (6). The court granted the government's motion in part
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and denied it in part, ruling that the new regime did respond to
new technology and real threats of abuse, that Langton and
LeBlanc could be limited as to the number of telephone calls they
could make, but that there was no pattern of abuse by either of
them to justify the monitoring of their calls. The core of the
court's injunctive judgment is that prison officials cannot
monitor or record calls made by these two plaintiffs.
2. The broad question on appeal is whether the
monitoring and recordation regime violates the consent decree.
The district court evidently assumed that it did--thus its
suggestion that the government file a motion for modification--
but it never addressed this issue in detail. Yet if the regime
does not violate the consent decree, the contempt proceeding case
should have been dismissed and the Rule 60(b) motion mooted.
Langton and LeBlanc have never moved to modify the decree to
enlarge their rights; and prison officials, in moving to modify
the decree in their favor (in accordance with the district
court's suggestion), certainly were not abandoning their bedrock
position that the new regime was lawful under the decree and did
not require any decree modification.
In my view, a realistic reading of the 1984 decree
provision is that it effectively enjoined state prison officials
from violating the cited provisions of federal or state law and
nothing more. True the provision was clumsily worded: it
juxtaposed a ban on interception, itself a term differently
defined under the two cited statutes, with an awkward but broadly
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worded qualification, namely, that interceptions are allowed "as
specifically permitted by the statutes, taken together, as they
may have been amended or may be amended and as they have been
construed or may be construed in reported decisions that are
binding in this Court or the state courts of Massachusetts."
The injunction could and probably should have used a
much simpler formulation, such as a ban on "unlawful"
interceptions, but everyone knows that lawyers often overwrite
legal documents. There is no indication anywhere that the phrase
"specifically permitted" means anything more than "permitted,"
the term "specifically" being the kind of legal flourish that
usually causes more trouble than it solves. In any event, the
provision itself describes the defendants as "enjoined . . .
under both 18 U.S.C. 2510 et seq. and M.G.L. c. 272, 99 et
seq." and nothing in the provision suggests that the injunction
was intended to be broader than the statutes themselves.
This view is confirmed by the "circumstances
surrounding the formation of the consent order" which are
properly considered in its interpretation. United States v. ITT
Continental Baking Co., 420 U.S. 223, 238 (1975). The casus
belli, it must be remembered, was a claim, denied by prison
officials, that they had monitored an inmate's call to his
lawyer, something that no one would expect a court or legislature
to authorize. The prison officials, who never contended that
such a monitoring of calls to lawyers would be lawful, simply
denied that they did any monitoring. The parties then settled
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the case by having the defendants enjoined to obey federal and
state law on interception, as it might be construed by courts or
amended by legislatures from time to time.
The panel majority expresses disbelief that plaintiffs
in a lawsuit would ever settle merely for a promise by defendants
to obey the law. But in fact such provisions are common in
decrees (SEC consent decrees are a classic example) and, in any
event, a promise simply to obey the law made perfectly good sense
in this case. The settlement provided Langton and LeBlanc a
small number of specific benefits already described. As to
telephone monitoring, the prison did not defend listening in on a
telephone call between an inmate and his lawyer, but denied that
monitoring had occurred or was routinely practiced. Langton and
LeBlanc then settled for a general provision that made the prison
officials subject to contempt proceedings if they did violate the
law in the future.
If the decree is read in this fashion, then the
contempt motion boils down to the question whether the prison's
new regime is lawful under the relevant statutes. Nothing in the
decree's terms prohibits monitoring or recording as such. The
decree uses the term "interception" which is a statutory concept
freighted with exceptions, and the decree's ban is itself subject
to the broad "except as" clause already described. Nor does the
panel majority hold that the present regime is unlawful under the
federal and state statutes but only that reasonable arguments can
be made on both sides.
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The issue of the regime's lawfulness under the statutes
may be debatable, but it is doubtful that it is a close call.
Massachusetts has adopted a widely used model, used by the
federal prison system as well, see generally 28 C.F.R. 540.100
et seq., and practically all the case law cited in the briefs
tends to support it.2 Given the general wording of the federal
and state statutes, and the strong policy considerations for
giving prison officials "appropriate deference and flexibility,"
Sandin v. Conner, 115 S. Ct. 2293, 2299 (1995), it is very
unlikely that a regime like that of Massachusetts would be struck
down, even if there are possible occasional applications that
might raise hard questions.
In any event, once it is understood that the decree
only precludes unlawful interception, the district court has
provided no basis for entering a judgment against the prison
officials since that court did not find that the regime violated
federal or state law. It is true that this general question is
one of law that we might in theory resolve ourselves; but no such
theory has been adequately briefed by the plaintiffs, and no
decision of a district court on this issue has ever been
rendered. The proper solution in this case is to vacate the
2 E.g., United States v. Horr, 963 F.2d 1124, 1126 (8th Cir.
1992); United States v. Sababu, 891 F.2d 1308, 1326-30 (7th Cir.
1989); United States v. Willoughby, 860 F.2d 15, 19-21 (2d Cir.
1988); Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir. 1988);
United States v. Amen, 831 F.2d 373, 378-80 (2d Cir. 1987);
United States v. Paul, 614 F.2d 115, 117 (6th Cir. 1980); United
States v. Green, 842 F. Supp. 68, 71-72 (W.D.N.Y. 1994); United
States v. Valencia, 211 F. Supp. 608, 611 (S.D. Fla. 1989); Lee
v. Carlson, 645 F. Supp. 1430, 1438-39 (S.D.N.Y. 1986).
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district court's 1995 judgment and remand to give the plaintiffs
the opportunity to show that the present regime is unlawful, and
therefore in violation of the decree.
The panel majority's contrary construction of the
decree does not rest on an attempt to grapple seriously with its
language and background. Rather, the majority relies primarily
on several rather general propositions: that parties sometimes
do resolve by consent decree legal issues that are reasonably
debatable, that such resolutions have an operative effect through
the consent decree, and that parties are bound by the decree even
if the legal issues should have been decided the other way.
These notions might have some bearing if the prison officials had
agreed, with no exceptions, that "monitoring and recordation" are
prohibited. But the defendants did not make such a bargain, so
the general propositions relied on by the majority have nothing
to do with this case.
To sum up, the panel majority could decide on the
merits whether the new Massachusetts regime does violate the
federal or state statutes, and it would be equally permissible,
and in my view more appropriate, to vacate the 1995 judgment, to
remand and to allow the district court to consider this set of
issues in the first instance. But what is not tenable is an
interpretation of the 1984 consent decree, without serious
support in either its phrasing or its context, that enjoins
Massachusetts officials from doing what (so far as we know from
the precedents) they lawfully can do under existing federal and
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state law.
Courts have been widely criticized in recent years for
excessively interfering with state institutions such as prisons
and, of course, these charges are often made by those who are
unaware of the abusive conditions that the federal decrees are
invoked to remedy. But it does behoove federal judges--who do
not have political responsibility for managing these
institutions--to consider with care and modesty how they
interpret their authority, especially in construing elderly
decrees as applied to entirely new sets of conditions.
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