1. Structural Injunctions • Defined – complex injunctions sought/issued in litigation against government defendants in lawsuits where Ps seek major institutional change for systemic violations of the law. Ps attempt to bring these institutions in line with constitutional or statutory requirements. • Rightful position is still the governing principle in tailoring such injunctions • “The nature [and extent] of the constitutional violation determines the scope of the remedy.” – SeeSwann & Milliken I • But there’s room for disagreement about how to define the nature/extent of the violation and about the appropriate scope of the remedy – see Hutto opinions & deseg cases

2. Additional Issues w/ Structural Injunctions • Court’s issuing complex (and often very specific) injunctions governing institutions like prisons, schools… unavoidably perform a combination of judicial, legislative and administrative functions • Raises concerns about: • Federalism (when federal courts involved, which they usually are) • Separation of powers • Lack of expertise • Effect on budgets • How can judges deal with such concerns and still right constitutional/statutory wrongs?

3. Lewis v. Casey (1996) • Arizona prisoners brought class action lawsuit claiming that law libraries and legal assistance provided to them were inadequate and violated their right of access to the courts (protected by 6th and 14th amendments). • District court: Ordered a number of system-wide changes to remedy these inadequacies. • Legal services for (1) non-english speakers, (2) illiterate prisoners, (3) prisoners in lockdown, (4) improved library facilities • What does the Supreme Court hold regarding the injunction? • What does the Court’s opinion suggest about its concept of rightful positionand the appropriate scope of injunctions?

4. Lewis & Hutto • Are Lewis & Hutto hopelessly irreconcilable – is the Court just being inconsistent in how it tailors remedies in structural cases? Has it changed or these cases just different? • Brown v. Plata, 131 S. Ct. 191 (2011) – upheld injunction issued by 3 judge court allowing release of prisoners in CA prison system after finding the prison system violated the 8th amendment due to overcrowding and failing to provide minimal care for mental health of prisoners. Note – consent decree entered and consistently violated for 12 years before order of release entered. • To what extent can Congress constrict structural remedies by? Is the PLRA a reasonable response to rogue courts or does it go too far? • “Prospective relief [re prison conditions] … shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” • Note also PLRA conditions for prisoner releases p. 335.

5. Modifying Injunctions • Typically once a judgment is final (time for appeal has passed or appeals are finished) the issue is res judicata. • The case can’t be relitigated. • Obviously true for most remedies, including injunctions that contain a simple mandate/order. • E.g., “D must turn over the property.” • But with permanent injunctions that operate into the future (i.e., impose conditions or mandates that operate continuously or perpetually), parties subject to such injunctions may attempt to modify them without being precluded by res judicata arguments: • FRCP 60(b)(5)– On motion … the court may relieve a party or its legal representative from a final … order … [if] applying it prospectively is no longer equitable.

6. Standards for modifying permanent injunctions – nonstructural injunctions • For non-structural injunctions, the moving party’s burden for modifying the injunction is pretty high. Courts require that: • The party make a clear showing of substantial and unexpected change in circumstances from the time the original injunction issued that cause the injunction to operate unjustly. • Ass’n for Retarded Citizens v. North Dakota, 942 F.2d 1235 (8th Cir. 1991) • Change in circumstances can involve a change in facts or law (i.e., decisional or statutory law) • Courts like to see that these changed circumstances cause extreme & unexpected hardship so that the decree is oppressive • Changes make compliance substantially more onerous, or • Compliance proves to be unworkable due to changed circumstances • Unexpected/Unforeseen ≠ Unforeseeable

7. Modifying Injunctions – Structural Injunctions • Rufo v. Inmates of Suffolk Co. Jail – SCT standard re when judges can modify structural injunctions/consent decrees: Party seeking modification must demonstrate a significant change in circumstances that warrants a revision of the decree • Essentially courts use the test from previous slide but apply it in favor of the gov’t (usually the moving party) • “This restrictive standard is lessened in institutional reform litigation … both because of the need to shape practical and flexible remedies, and because principles of federalism and comity require that a federal court’s regulatory control not extend beyond the time required to remedy the effects of the past constitutional violations.” Ass’n for Retarded Citizens, 942 F.2d at 1239. • Some specifics: • The proposed modification should not undermine the central purpose of the original order • But if there is NO continuing purpose for the injunction (i.e., no further constitutional violation) the Court should dissolve it as needed • Issues re burden of compliance or change in statutory/decisional law that UNDERMINES existing precedent are also reason to modify the injunction

8. Missouri state law re modifying injunctions • Missouri state courts essentially use a standard similar to the federal standard for modifying state injunctions: • [The party’s] argument to the effect that the trial court had no jurisdiction … to modify the [earlier] decree is bottomed on the general principle that a trial court loses control over judgments thirty days after entry. However, that [principle does] not obtain in the case of a permanent injunction which, as here, is based on a condition subject to change. • In such cases, courts must retain jurisdiction to vacate or modify the terms of the injunction in order to avoid unjust or absurd resultswhen a change occurs in the factual setting or the law which gave rise to its existence. • Twedell v. Town of Normandy, 581 SW2d 438 (Mo. App. 1979).