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The Cost of Litigation
by an Arizona Reader
In an era of prison bashing the focus on "frivolous lawsuits" rests fundamentally on those filed by prisoners. The question, "Why are the lawsuits necessary?", has yet to be asked, or answered. The turn-of-the-coin may, in a small but fundamental way, be illuminated in the holdings of the United States District Court, Senior Judge, the Honorable Carl A. Muecke, concerning the Arizona Department of Corrections (ADOC), Executive Director, Samuel A. Lewis, and his attempt to ban adult magazines.
A brief history of the lawsuit [ Hook v. Arizona , CIV-73-97-PHX-CAM], is necessary to grasp the import of the decisions. The lawsuit spans more than twenty-one years. Originally, the lawsuit arose, in part, from a dispute about mail regulations and restrictions.
In 1973, the parties entered into a stipulated Consent Decree. This decree included a comprehensive scheme of mail regulations. Among several other issues, the inmates claimed they had constitutional rights to receive Playboy , as well as the right to send and receive mail and certain types of letters. The Decree was amended one time, on May 10, 1974.
On October 4, 1990, Director Lewis attempted to institute a new policy concerning the Christmas food gift package portion of the decree. This new policy was implemented without seeking a modification of the decree, and was in direct disregard of the Consent Decree. The Court enjoined Director Lewis from modifying the decree, without filing a motion for modification. Director Lewis appealed. The Ninth Circuit, in a scathing rebuke, affirmed the Court's decision, and determined that ADOC improperly attempted to change the provisions of the Consent Decree. See: Hook v. Arizona , 972 F.2d. 1012 (9th. Cir. 1992).
On October 30, 1992, ADOC filed a motion to modify the Hook Consent Decree, concerning the Christmas food packages. On November 19, 1992, November 23, 1992, and December 2, 1992, Director Lewis issued memorandums announcing a new policy that was in direct disregard of the Court's and the Ninth Circuit's Orders. The Court subsequently enjoined Director Lewis from implementing these new policies, by an order dated January 12, 1993, which stated in part: "Until there is an evidentiary hearing and the Court has issued a ruling on the motion to modify in this case, the injunction issued on December 11, 1990 is in effect and the defendants cannot circumvent the injunction or violate that injunction piece by piece until there is nothing left of the Hook , Consent Decree." The Evidentiary Hearing on the Petition for Modification was not held until early 1995. The result was in favor of the inmates, as the Court held the Defendants failed to provide persuasive evidence necessary for the modification of the Consent Decree.
On January 29, 1994, Governor Fife Symington, issued a press release, stating that the Governor had "directed" Sam Lewis to inform the prisoners that certain magazines would be banned. On January 31, 1994, Director Lewis then issued a memorandum restricting certain types of magazines that inmates could receive, which stated in part: "It has come to my attention that IMP 302.4 dated October 4, 1990 has been misinterpreted by members of my staff and inmates. Effective February 27, 1994, all magazines that are devoted to sexual themes and/or show the exposed breasts or genital areas of men or women are not authorized in the Arizona Prison System... These types of magazines are viewed as a potential threat to prison security which is based on various court rulings including Cox v. Embly , a 1992 case out of the Eastern District of Missouri."
On February 25, 1994, a Petition for Criminal and Civil contempt was filed by inmates, and the attorneys representing their interests. That same day in open court, counsel for the defendants represented that Director Lewis was "backing off" his position and would not enforce the order of January 31, 1994. In light of this development, the petition for criminal contempt was dropped, and amended to one for civil contempt only. A hearing to show cause to determine whether Director Lewis' January 31 order constituted civil contempt was scheduled and held March 8, 1994. During this hearing Director Lewis testified. He became aware of the Consent Decree in 1988, and was aware of both the District Court's decision and the fact that it was affirmed by the Ninth Circuit. He had discussed his proposed ban on magazines with members of the Governor's staff several times in November and December 1993.
Despite the express language of the press release, during the hearing to show cause, Director Lewis testified that he was not so directed by the Governor and that the decision to order the magazine ban was entirely his own, "no one else's." He ordered the magazine ban, not because he thought the magazines were obscene but rather, because of "the hostile working environment created by inmates who view these magazines and [who] become aroused and attack my female staff." However, at the time he issued the January 31 order he did not possess, and was not aware of, any reports or studies which would establish a casual link between the magazines and violence in the prisons.
In light of the evidence presented (or the lack thereof), the District Court determined that Director Lewis had in fact violated the comports of the Consent Decree, and specifically set forth for the record, through the Court Order dated June 3, 1994, that a consent decree is a judgment which has res judicata effect and may be enforced by judicial sanctions. See: SEC v. Randolph , 736 F.2d. 525, 528 (9th. Cir. 1984). 'Plaintiffs seek to have this Court impose civil contempt sanctions in the amount of the attorneys' fees and costs incurred to bring this petition for civil contempt. The relief plaintiffs seek is expressly authorized by statute, 18 U.S.C. § 401 (3): A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as -- (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
'There are three types of contempt sanctions: punitive (a criminal contempt sanction), compulsory and compensatory (civil contempt sanctions). See: United States v. Asay , 614 F.2d. 655, 659 (9th. Cir. 1980). Civil contempt is appropriate against state officials for failing to comply with court orders. See: Hutto v. Finney , 437 U.S. 678 (1978); Perry v .O'Donnell , 759 F.2d. 702, 705 (9th. Cir. 1985). Sanctions for civil contempt may be imposed to coerce obedience to a court order, or to compensate the party pursuing the contempt action for injuries resulting from the contemptuous behavior, or both. See: United States v. United Mine Workers , 330 U.S. 258, 303-304 (1947).
'In assessing whether a contemptor took every reasonable step' to comply with the terms of a consent decree, a district court can consider (1) a history of noncompliance and (2) a failure to comply despite the pending nature of the contempt motion. See: Stone v. City and County of San Francisco , 968 F. 2d. 850, 857 (9th. Cir. 1992).
'The Court finds that the plaintiffs have shown by clear and convincing evidence that Director Lewis violated a specific and definite order of this Court, and that Lewis did not perform all reasonable steps to insure substantial compliance with the Consent Decree. Director Lewis has a history of noncompliance with this Consent Decree. Lewis did not consult with counsel prior to issuing the January 31, 1994 memorandum. Lewis did not receive any evidence from anyone that the magazines had an effect on the misbehavior, assaults or other disorderly incidents in the prison system. Director Lewis not only knew the appropriate method to modify a consent decree, but failed to comply until the time set for the [emergency] hearing before this Court. Indeed, the evidence clearly shows that Lewis only complied because plaintiffs filed a petition for contempt. Director Lewis withdrew his written order, with a written order only at the time of the hearing.
'The Defendants did not establish with admissible evidence that the exclusion of the publications was permitted under the decree because there was a direct and immediate threat to the security, safety or order of the institution. The fact that in Director Lewis' opinion his magazine ban was justified has no relevance to whether he committed civil contempt and is not a valid defense. Director Lewis acted personally, based on no directive from higher authorities in the state government and he had no studies or other facts to warrant his violation of the order.
'Director Lewis did not substantially comply until pressured to do so by plaintiffs' attorneys' actions in bringing this matter to this Court's attention. Lewis did not take all reasonable steps, or any reasonable steps, to comply with the Consent Decree, until forced to do so, and attorneys' fees and costs were incurred.
'The issue in this contempt proceeding is not whether the inmates should or should not be allowed to receive certain types of magazines. Rather, the issue is whether the Director of the Department of Corrections is required to follow the law. Director Lewis cannot unilaterally change the provisions of the Consent Decree. Plaintiffs cannot be required to file petitions for contempt to force Director Lewis' compliance with the Consent Decree. Director Lewis cannot defend his contempt of this Court and the law by withdrawing his memorandum at the very last minute, and only under coercion. Therefore, the Court finds that Director Lewis is personally in contempt of this Court's orders and shall pay the attorneys' fees and costs necessary to bring and resolve this petition for contempt.
'These fees are assessed against Director Lewis personally, and are not to be borne by the taxpayers or the state in any way. See: Newman v. State of Alabama , 683 F.2d. 1312, 1318 (11th. Cir. 1982)."
Director Lewis was subsequently fined $10,000 for his personal contempt of the Consent Decree and Orders of the Court. He did appeal the decision, where the Ninth Circuit affirmed the District Court's decision. The matter is now being appealed to the United States Supreme Court. As for Director Lewis having to personally afford the sanction, conveniently the Governor awarded Mr. Lewis a bonus of $10,000 for his faithful duty to the taxpayers of the state.
As of this date Director Lewis has not paid a single cent of the judgment for personal contempt, or the cost of litigation. And the taxpayers wonder why all the lawsuits are necessary!
In an era of prison bashing the focus on "frivolous lawsuits" rests fundamentally on those filed by prisoners. The question, "Why are the lawsuits necessary?", has yet to be asked, or answered. The turn-of-the-coin may, in a small but fundamental way, be illuminated in the holdings of the United States District Court, Senior Judge, the Honorable Carl A. Muecke, concerning the Arizona Department of Corrections (ADOC), Executive Director, Samuel A. Lewis, and his attempt to ban adult magazines.
A brief history of the lawsuit [ Hook v. Arizona , CIV-73-97-PHX-CAM], is necessary to grasp the import of the decisions. The lawsuit spans more than twenty-one years. Originally, the lawsuit arose, in part, from a dispute about mail regulations and restrictions.
In 1973, the parties entered into a stipulated Consent Decree. This decree included a comprehensive scheme of mail regulations. Among several other issues, the inmates claimed they had constitutional rights to receive Playboy , as well as the right to send and receive mail and certain types of letters. The Decree was amended one time, on May 10, 1974.
On October 4, 1990, Director Lewis attempted to institute a new policy concerning the Christmas food gift package portion of the decree. This new policy was implemented without seeking a modification of the decree, and was in direct disregard of the Consent Decree. The Court enjoined Director Lewis from modifying the decree, without filing a motion for modification. Director Lewis appealed. The Ninth Circuit, in a scathing rebuke, affirmed the Court's decision, and determined that ADOC improperly attempted to change the provisions of the Consent Decree. See: Hook v. Arizona , 972 F.2d. 1012 (9th. Cir. 1992).
On October 30, 1992, ADOC filed a motion to modify the Hook Consent Decree, concerning the Christmas food packages. On November 19, 1992, November 23, 1992, and December 2, 1992, Director Lewis issued memorandums announcing a new policy that was in direct disregard of the Court's and the Ninth Circuit's Orders. The Court subsequently enjoined Director Lewis from implementing these new policies, by an order dated January 12, 1993, which stated in part: "Until there is an evidentiary hearing and the Court has issued a ruling on the motion to modify in this case, the injunction issued on December 11, 1990 is in effect and the defendants cannot circumvent the injunction or violate that injunction piece by piece until there is nothing left of the Hook , Consent Decree." The Evidentiary Hearing on the Petition for Modification was not held until early 1995. The result was in favor of the inmates, as the Court held the Defendants failed to provide persuasive evidence necessary for the modification of the Consent Decree.
On January 29, 1994, Governor Fife Symington, issued a press release, stating that the Governor had "directed" Sam Lewis to inform the prisoners that certain magazines would be banned. On January 31, 1994, Director Lewis then issued a memorandum restricting certain types of magazines that inmates could receive, which stated in part: "It has come to my attention that IMP 302.4 dated October 4, 1990 has been misinterpreted by members of my staff and inmates. Effective February 27, 1994, all magazines that are devoted to sexual themes and/or show the exposed breasts or genital areas of men or women are not authorized in the Arizona Prison System... These types of magazines are viewed as a potential threat to prison security which is based on various court rulings including Cox v. Embly , a 1992 case out of the Eastern District of Missouri."
On February 25, 1994, a Petition for Criminal and Civil contempt was filed by inmates, and the attorneys representing their interests. That same day in open court, counsel for the defendants represented that Director Lewis was "backing off" his position and would not enforce the order of January 31, 1994. In light of this development, the petition for criminal contempt was dropped, and amended to one for civil contempt only. A hearing to show cause to determine whether Director Lewis' January 31 order constituted civil contempt was scheduled and held March 8, 1994. During this hearing Director Lewis testified. He became aware of the Consent Decree in 1988, and was aware of both the District Court's decision and the fact that it was affirmed by the Ninth Circuit. He had discussed his proposed ban on magazines with members of the Governor's staff several times in November and December 1993.
Despite the express language of the press release, during the hearing to show cause, Director Lewis testified that he was not so directed by the Governor and that the decision to order the magazine ban was entirely his own, "no one else's." He ordered the magazine ban, not because he thought the magazines were obscene but rather, because of "the hostile working environment created by inmates who view these magazines and [who] become aroused and attack my female staff." However, at the time he issued the January 31 order he did not possess, and was not aware of, any reports or studies which would establish a casual link between the magazines and violence in the prisons.
In light of the evidence presented (or the lack thereof), the District Court determined that Director Lewis had in fact violated the comports of the Consent Decree, and specifically set forth for the record, through the Court Order dated June 3, 1994, that a consent decree is a judgment which has res judicata effect and may be enforced by judicial sanctions. See: SEC v. Randolph , 736 F.2d. 525, 528 (9th. Cir. 1984). 'Plaintiffs seek to have this Court impose civil contempt sanctions in the amount of the attorneys' fees and costs incurred to bring this petition for civil contempt. The relief plaintiffs seek is expressly authorized by statute, 18 U.S.C. § 401 (3): A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as -- (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
'There are three types of contempt sanctions: punitive (a criminal contempt sanction), compulsory and compensatory (civil contempt sanctions). See: United States v. Asay , 614 F.2d. 655, 659 (9th. Cir. 1980). Civil contempt is appropriate against state officials for failing to comply with court orders. See: Hutto v. Finney , 437 U.S. 678 (1978); Perry v .O'Donnell , 759 F.2d. 702, 705 (9th. Cir. 1985). Sanctions for civil contempt may be imposed to coerce obedience to a court order, or to compensate the party pursuing the contempt action for injuries resulting from the contemptuous behavior, or both. See: United States v. United Mine Workers , 330 U.S. 258, 303-304 (1947).
'In assessing whether a contemptor took every reasonable step' to comply with the terms of a consent decree, a district court can consider (1) a history of noncompliance and (2) a failure to comply despite the pending nature of the contempt motion. See: Stone v. City and County of San Francisco , 968 F. 2d. 850, 857 (9th. Cir. 1992).
'The Court finds that the plaintiffs have shown by clear and convincing evidence that Director Lewis violated a specific and definite order of this Court, and that Lewis did not perform all reasonable steps to insure substantial compliance with the Consent Decree. Director Lewis has a history of noncompliance with this Consent Decree. Lewis did not consult with counsel prior to issuing the January 31, 1994 memorandum. Lewis did not receive any evidence from anyone that the magazines had an effect on the misbehavior, assaults or other disorderly incidents in the prison system. Director Lewis not only knew the appropriate method to modify a consent decree, but failed to comply until the time set for the [emergency] hearing before this Court. Indeed, the evidence clearly shows that Lewis only complied because plaintiffs filed a petition for contempt. Director Lewis withdrew his written order, with a written order only at the time of the hearing.
'The Defendants did not establish with admissible evidence that the exclusion of the publications was permitted under the decree because there was a direct and immediate threat to the security, safety or order of the institution. The fact that in Director Lewis' opinion his magazine ban was justified has no relevance to whether he committed civil contempt and is not a valid defense. Director Lewis acted personally, based on no directive from higher authorities in the state government and he had no studies or other facts to warrant his violation of the order.
'Director Lewis did not substantially comply until pressured to do so by plaintiffs' attorneys' actions in bringing this matter to this Court's attention. Lewis did not take all reasonable steps, or any reasonable steps, to comply with the Consent Decree, until forced to do so, and attorneys' fees and costs were incurred.
'The issue in this contempt proceeding is not whether the inmates should or should not be allowed to receive certain types of magazines. Rather, the issue is whether the Director of the Department of Corrections is required to follow the law. Director Lewis cannot unilaterally change the provisions of the Consent Decree. Plaintiffs cannot be required to file petitions for contempt to force Director Lewis' compliance with the Consent Decree. Director Lewis cannot defend his contempt of this Court and the law by withdrawing his memorandum at the very last minute, and only under coercion. Therefore, the Court finds that Director Lewis is personally in contempt of this Court's orders and shall pay the attorneys' fees and costs necessary to bring and resolve this petition for contempt.
'These fees are assessed against Director Lewis personally, and are not to be borne by the taxpayers or the state in any way. See: Newman v. State of Alabama , 683 F.2d. 1312, 1318 (11th. Cir. 1982)."
Director Lewis was subsequently fined $10,000 for his personal contempt of the Consent Decree and Orders of the Court. He did appeal the decision, where the Ninth Circuit affirmed the District Court's decision. The matter is now being appealed to the United States Supreme Court. As for Director Lewis having to personally afford the sanction, conveniently the Governor awarded Mr. Lewis a bonus of $10,000 for his faithful duty to the taxpayers of the state.
As of this date Director Lewis has not paid a single cent of the judgment for personal contempt, or the cost of litigation. And the taxpayers wonder why all the lawsuits are necessary!
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Related legal case
Hook v. Arizona
| Year | 1997 |
|---|---|
| Cite | USDC D AZ Civ-73-97-Phx-Cam |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |