Jeff D., et al v. Clement Leroy Otter, et al

Filing

FILED OPINION (WILLIAM C. CANBY, JOHN T. NOONAN and MARSHA S. BERZON) The Plaintiffs are entitled to their costs on appeal. REVERSED IN PART; AFFIRMED IN PART; REMANDED. Judge: WCC Authoring, FILED AND ENTERED JUDGMENT. [7763627]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFF D., PAULA E., JOHN M., aND
DUSTY R., by and though their
next friend, HOWARD A.
BELODOFF,* individually and on
behalf of all others similarly
situated,
Plaintiffs-Appellants,
v.
CLEMENT LEROY OTTER,*
individually and in his official
capacity as Governor of the State
of Idaho; TOM LUNA,* individually
and in his official capacity as
Superintendent of Public
Instruction of the Idaho State
Department of Education; RICHARD
ARMSTRONG,* individually and in
his capacity as Director of the
Idaho Department of Health and
Welfare; and SHARON
HARRIGFELD,*







*HOWARD A. BELODOFF is substituted for his predecessor Charles Johnson, next friend; CLEMENT LEROY OTTER is substituted for his predecessor
Dirk Kempthorne, Governor of the State of Idaho; TOM LUNA is substituted for his predecessor Jerry Evans, Superintendent of Public Instruction
of the Idaho State Department of Education; RICHARD ARMSTRONG is substituted for his predecessor Karl Kurtz, Director of the Idaho Department
of Health and Welfare, and SHARON HARRIGFELD is substituted for her predecessor Brent Reinke, Director of the Department of Juvenile Corrections, pursuant to Fed. R. App. P. 43(c)(2).

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individually and in her official
capacity as Director of the Idaho
Department of Juvenile
Corrections,
Defendants-Appellees.





No. 07-36009
D.C. No.
CV-80-04091-BLW
OPINION

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
August 6, 2010—Seattle, Washington
Filed May 25, 2011
Before: William C. Canby, Jr., John T. Noonan, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Canby

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COUNSEL
Howard A. Belodoff, Boise, Idaho, for the plaintiffsappellants.
Michael S. Gilmore; James D. Carlson; Deputy Attorneys
General, Boise, Idaho, for the defendants-appellees.

OPINION
CANBY, Senior Circuit Judge:
The Plaintiffs, a class of indigent children who suffer from
severe emotional and mental disabilities, commenced this
action against Idaho state officials more than three decades
ago, alleging that the officials were providing them with inadequate care in violation of their constitutional and statutory
rights. In the ensuing years, the parties reached agreements
intended to remedy deficiencies in care, and those agreements
were embodied in three consent decrees entered and monitored by the district court.
After a number of disputes had resulted in no less than four

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appeals to this court,1 the district court in 2006 held a “final
compliance hearing” to determine whether the Defendants
were in compliance with the terms of the decrees. The court
determined that compliance would be measured by the Defendants’ success in addressing Action Items that had been specified in an Implementation Plan that resulted from the third
consent decree. Because the court viewed civil contempt as
the only effective method of enforcing the consent decrees, it
placed the burden on the Plaintiffs of establishing noncompliance by clear and convincing evidence. At the conclusion of the hearing, the district court found that the Defendants were not in compliance with respect to several of the
Action Items, but that they had substantially complied with
the majority of the Items. The court ordered the Defendants
to take all steps necessary to bring themselves into substantial
compliance with the Action Items for which they were in
default, after which they could move to vacate the decrees.
The Defendants took the steps that they deemed necessary
and moved to vacate the decrees. In 2007, the district court
found that the Defendants had substantially complied with the
remaining Action Items, and it issued an order vacating the
consent decrees.
The Plaintiffs appeal the order, asserting that it was error
for the district court to apply the standard for civil contempt
in determining whether to vacate the decrees. In applying that
standard, the court required the Plaintiffs to prove by clear
and convincing evidence that the Defendants had violated the
terms of the decrees and that they had not done so in good
faith or on the basis of a reasonable interpretation of the
decrees. To be entitled to an order vacating consent decrees
under Federal Rule of Civil Procedure 60(b), however, the
Defendants are required to sustain the burden of establishing
1

See Jeff D. v. Kempthorne (Jeff D. IV), 365 F.3d 844 (9th Cir. 2004);
Jeff D. v. Andrus (Jeff D. III), 899 F.2d 753 (9th Cir. 1990) (amended
opinion); Jeff D. v. Andrus, 861 F.2d 591 (9th Cir. 1988); Jeff D. v. Evans,
743 F.2d 648 (9th Cir. 1984), rev’d, 475 U.S. 717 (1986).

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that they have substantially complied with the decrees or that
facts or law have changed so that “it is no longer equitable
that the judgment should have prospective application.” Jeff
D. v. Kempthorne (“Jeff D. IV”), 365 F.3d 844, 851 (quoting
Rule 60(b)(5) as then phrased). The district court’s application of the contempt standard with the imposition of the burden of proof on the Plaintiffs accordingly was error. In
addition, we conclude that the district court erred in accepting
the Action Items as the entire measure of compliance with the
consent decrees. We accordingly reverse the order of the district court.
The Plaintiffs further contend that the district court committed errors of fact and law in issuing protective orders barring them from taking supplemental depositions of Appellee
Karl Kurtz and two non-parties. Finding no such errors, we
affirm those rulings of the district court.
BACKGROUND AND PROCEDURAL HISTORY
In August 1980, Appellant Jeff D., on behalf of a class of
indigent Idaho children suffering from severe emotional and
mental disabilities, commenced this action against the Governor of Idaho and other state officials, alleging that the officials were providing them with inadequate care in violation of
their rights under the United States Constitution, the Idaho
Constitution, and federal and state statutes.2 The complaint
sought only declaratory and injunctive relief.
In 1983, the parties entered into a settlement agreement that
offered virtually all of the injunctive relief the class members
2

We refer to the state officials collectively as the “Defendants.” Individual Defendants are identified by name or title. In addition to the Governor,
the primary defendants are the Director of the Department of Health and
Welfare, named as a defendant from the outset, and the Director of the
Department of Juvenile Corrections, who was added as a defendant later
in the proceedings.

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sought. The agreement provided for continuing jurisdiction by
the district court for five years “or until [the district court
was] satisfied by stipulation or otherwise that the claims as
alleged in the Complaint have been adequately addressed.”
The district court entered the agreement as a consent decree
in April 1983.
By the late 1980s, after years of inaction on the part of the
Defendants, the Plaintiffs filed a motion to enforce the decree.
The parties again negotiated a settlement and eventually stipulated to a supplemental agreement, which the district court
entered as a second consent decree in December 1990. The
following seven years witnessed additional charges of noncompliance, admissions of failure, court intervention, outside
auditing, compliance reviews, and finally, in March 1998, a
motion by the Plaintiffs for a finding of contempt against the
Defendants based on the negative findings of the most recent
compliance review. The motion, however, resulted not in a
formal determination by the district court but in a “compliance agreement” that purported to “reach a full and final settlement of the Motion for Contempt.” In December 1998, the
district court entered the agreement as a third consent decree.
For our purposes, the most significant aspect of the compliance agreement was the requirement that the Defendants provide to the Plaintiffs an independently produced “Needs
Assessment” and compliance plan. Two years later, after no
more headway than a motion to dismiss, another motion for
contempt, and an appeal, the district court “determined that it
must take a more active role in enforcing the Decrees.”
The first step taken by the district court was to order the
parties jointly to develop a new compliance plan providing “a
comprehensive blueprint of how the defendants would meet
the requirements of the decrees.” The parties submitted a proposed plan in February 2001. After briefing and argument, the
court issued a memorandum decision adopting the plan,
which became known as the “Implementation Plan.”

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The Implementation Plan comprises a foreword expressing
the views of the Defendants, an introduction providing an
overview of the planning and oversight processes, and a “Recommendations” section with 50 specific recommendations
drawn from the Needs Assessment. “Recommendation 1,” for
instance, states: “Parents of children with serious emotional
disturbances and children old enough to participate must be
part of all system planning, decision-making, management,
training, and evaluation.” Each recommendation includes
three subsections, some quite lengthy but most measuring
only a paragraph or two, headed “Background/Framework for
Implementation,” “Priority Action Items and Timelines,” and
“Desired Results.” In all, the Implementation Plan contains
252 Action Items.
The district court required the Defendants to file regular
status reports “documenting their compliance with deadlines,
addressing any non-compliance, and listing the measures they
are taking to bring any areas of non-compliance into compliance as quickly as possible.” In May 2002, the parties filed a
joint report to apprise the court of “the progress of the Implementation Plan” and to “provide an overview of the recommendations by category.” In January 2003, the court directed
the parties to create a matrix identifying those Action Items
with which the Defendants had complied and those Action
Items with which the Defendants, according to the Plaintiffs,
had not complied.3
Matrix in hand, the district court scheduled a “final compliance hearing” for September 2006. In preparation for the
hearing, the court ordered the parties to file a joint stipulation
of undisputed facts, categorizing the facts by Action Item.
The parties complied and, following consideration of the stip3

The matrix numbered the action items according to the Recommendations in the Implementation Plan to which the Action Items applied. For
example, the first Action Item under Recommendation 1 was Action Item
1A; the second under Recommendation 1 was Action Item 1B, etc.

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ulation, the briefs, and a bench trial of the disputed facts, the
court issued its Findings of Fact and Conclusions of law
addressing the issues Action Item by Action Item.
The court determined that the Plaintiffs had failed to sustain their burden of proof or that the Defendants had substantially complied with the majority of Action Items. With
respect to 21 of the Action Items, however, the court held that
the Plaintiffs had “show[n] by clear and convincing evidence
that [the Defendants substantially] violated the consent judgment . . . , and that the violation was not based on good faith
and reasonable interpretation of the judgment.” The court
ordered the Idaho Department of Health and Welfare (the
“DHW”) “to take all steps necessary to substantially comply
with [the 21] Action Items . . . within 120 days,” adding that
“[o]nce the defendants are in compliance with these Action
Items, the defendants may file a motion to vacate the consent
decrees.”
In June 2007, the DHW filed affidavits of further compliance with the district court and, together with the Idaho
Department of Juvenile Corrections, moved to vacate the consent decrees. The court found that the Defendants had substantially complied with all the Action Items, and vacated the
consent decrees. This appeal followed. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
STANDARDS OF REVIEW
We review de novo, as a question of law, the district
court’s interpretation of a consent decree. See Keith v. Volpe,
784 F.2d 1457, 1461 (9th Cir. 1986). However, we must “give
deference to the district court’s interpretation based on the
court’s extensive oversight of the decree from the commencement of the litigation to the current appeal.” Officers for Justice v. Civil Serv. Comm’n of City and Cnty. of S.F., 934 F.2d
1092, 1094 (9th Cir. 1991). We likewise “must defer to the
district court’s factual findings underlying the interpretation

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unless they are clearly erroneous.” Labor/Cmty. Strategy Ctr.
v. Los Angeles County Metro. Transp. Auth., 263 F.3d 1041,
1048 (9th Cir. 2001). We review for an abuse of discretion the
court’s decision to vacate the consent decrees. See Jeff D. IV,
365 F.3d at 850. “A district court abuses its discretion if it
does not apply the correct law or if it rests its decision on a
clearly erroneous finding of material fact.” Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).
DISCUSSION
We wish to make clear at the outset that we recognize and
appreciate that the district judge has expended a great deal of
time and effort wrestling with the attempted enforcement of
these consent decrees for at least the last thirteen years, and
has issued orders that helped to move the State towards the
achievement of the agreed goals. We conclude, however, for
the reasons that follow, that it was error for the district court
to vacate the consent decrees, and we accordingly reverse the
order of vacatur.
I.

Standard for Determining Compliance to Permit
Vacatur of Consent Decrees.

[1] The Defendants moved for vacatur of the consent
decrees under Federal Rule of Civil Procedure 60(b)(5),
which permits a party to be relieved from a final judgment
when “the judgment has been satisfied, released or discharged.” The Defendants bear the burden of proving that
they have met the Rule’s requirements: in this case, that they
have satisfied the judgment.4 See Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 383 (1992); Jeff D. IV, 365 F.3d
at 851.
4

Rule 60(b)(5) also permits vacatur of a decree when “applying it prospectively is no longer equitable,” but the Defendants’ motion and the district court’s order were clearly based on the conclusion that the judgment
had been satisfied by compliance.

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[2] The parties do not dispute that the relevant standard is
“substantial compliance” with the requirements of the consent
decrees. Because consent decrees have “many of the attributes
of ordinary contracts [and] . . . should be construed basically
as contracts,” United States v. ITT Cont’l Baking Co., 420
U.S. 223, 236 (1975), the doctrine of substantial compliance,
or substantial performance, may be employed. See Joseph A.
v. New Mexico Dept. of Human Servs., 69 F.3d 1081, 1086
(10th Cir. 1995); see also Ujdur v. Thompson, 878 P.2d 180,
183 (Idaho Ct. App. 1994) (“[T]he doctrine of substantial performance . . . is not necessarily limited to [any particular] context and may apply to any contract.”). The construction and
enforcement of the consent decrees, where the parties are residents of Idaho and the underlying agreements were entered in
that state, is governed by the contract law of Idaho as well as
familiar contract principles. See Jeff D. III, 899 F.2d at 759-60
(applying Idaho law).
[3] “The phrase ‘substantial compliance’ is not susceptible
of a mathematically precise definition.” Joseph A., 69 F.3d at
1085. We have explained that substantial compliance “does
imply something less than a strict and literal compliance with
the contract provisions but fundamentally it means that the
deviation is unintentional and so minor or trivial as not ‘substantially to defeat the object which the parties intend to
accomplish.’ ” Wells Benz, Inc. v. United States, 333 F.2d 89,
92 (9th Cir. 1964) (quoting Connell v. Higgins, 150 P. 769,
775 (Cal. 1915)). Under Idaho law, substantial compliance is
compliance “which, despite deviation or omission, provides
the important and essential benefits of the contract.” Ujdur,
878 P.2d at 183.
[4] Thus, it was the burden of the Defendants to establish
that they had substantially complied with the requirements of
the consent decrees, and that any deviation from literal compliance did not defeat the essential purposes of the decrees.
We conclude that this burden was not placed on the Defendants in the district court’s final compliance proceeding.

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II.

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The Compliance Hearing

Although the district court held what it described as a
“compliance hearing” in September 2006 to determine
whether the defendants were in compliance with the consent
decrees, the court clearly considered the operative issue to be
whether the Defendants were in contempt of the consent
decrees. Thus, at the outset of the bench trial, the district court
stated:
I want to take a minute and make sure that we’re
all on the same page as far as the standard which the
Court must apply here, because I think that is very
critical. This case —well, first of all, let me indicate
that civil contempt, which I think is really the only
remedy that the court can consider here. I don’t
know that I can award damages per se. But civil contempt consists of a party’s disobedience to a specific
and definite court order by failure to take all reasonable steps within the party’s power to comply. The
party should not be held in contempt if its actions
appear to be based on a good faith and reasonable
interpretation of the Court’s order, and the party
alleging civil contempt must demonstrate that the
alleged contemnor violated the Court’s order by
clear and convincing evidence. . . . Thus, as discussed above, the only issues are, has the plaintiff’s
[sic] shown by clear and convincing evidence that
the defendants have not substantially complied with
their obligations under the consent decree.
In its Findings and Conclusions, the district court further
explained: “In determining whether a party has complied with
a consent decree, the Court must consider what enforcement
mechanisms are available. Obviously, the only real sanction
available to the Court is to find that a party is in contempt for
failing to comply with the consent decree.”5 The district court
5

We do not agree with the district court’s implicit conclusion that a consent decree cannot be maintained in force if no party is in contempt. See

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then resolved to “evaluate the evidence presented to determine whether the defendants violated the Action Items” using
the civil contempt standard.
[5] It is clear from the above statements of the district
court that all of its findings with regard to the Action Items
were subject to the evidentiary burden and standard of proof
for establishing civil contempt. Rather than requiring the
Defendants to demonstrate substantial compliance by a preponderance of the evidence, the court required the Plaintiffs
to show by clear and convincing evidence that, first, the
Defendants had “violated the Action Items beyond substantial
compliance” and, second, “that the violation was not based on
good faith and reasonable interpretation of the judgment.”
That standard was reiterated many times by the district court
in its findings. The district court never stated that the Defendants bore or had sustained the burden of showing substantial
compliance. Thus, whether the district court’s findings were
phrased as failures of the Plaintiffs to sustain their burden of
proof, or as statements that the Defendants had substantially
complied, the findings were all the products of the civil contempt burden and standard of proof.
[6] The district court’s allocation of the burden and standard of proof would have been appropriate if the only issue
had been whether the Defendants should be held in contempt.6
Gates v. Gomez, 60 F.3d 525, 532 (9th Cir. 1995) (“[A] specific finding
of a past violation is not prerequisite to an injunction preventing a future
violation.”). A decree may properly be kept in force to ensure that the
defendants will continue to comply, especially when there has been a history of non-compliance. See Freeman v. Pitts, 503 U.S. 467, 491 (1992)
(stating that a court considering termination of a consent decree “should
give particular attention to [the defendant’s] record of compliance.”). The
court also is not entirely limited to contempt as a means of enforcement.
See Hutto v. Finney, 437 U.S. 678, 691 & n.17(1978) (stating that attorney’s fees may be awarded as part of court’s enforcement powers against
a party that disregarded a court’s order).
6
The Plaintiffs sought enforcement of the consent decrees, but had not
specifically asked for a finding of contempt.

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But that framework was not appropriate for determining
whether the Defendants had sufficiently complied with the
consent decrees so that they were entitled to have the decrees
vacated.
The adherence of the district court to the burden and standard of proof for civil contempt is illustrated by the fact that,
with regard to Action Items Nos. 12B, 13A, 21C, 23B, 27F,
29G, 31F, and 31L, the only finding was that the Plainfiffs
had failed to sustain their “clear and convincing” burden of
proof. With regard to Action Items 2B, 18C, 26D, 26G, 28B,
28F, 29K, 32D, and 32E, the court referred to evidence in the
record, but ruled only that the Plaintiffs had failed to meet
their burden of proof, without a finding that the Defendants
had substantially complied. Yet the effect of these rulings was
to consider the Defendants to have substantially complied
with all of those Action Items for the purposes of determining
whether the consent decrees should be vacated.
Some of these findings that the Plaintiffs had not sustained
their burden of proof were based on the court’s requirement,
understandable enough for purposes of determining whether
some of the Defendants were in contempt, that the Action
Item place a burden of action on an individual Defendant. The
result was that if an Action Item required something to occur
but failed to specify the individual responsible for initiating or
following through on the action, the district court typically
held that the plaintiffs did not identify “any specific and definite requirements” with which the individual defendants
failed to comply. Again, that approach may be appropriate for
a finding that no one is in contempt, but it does not answer
the question whether an action item that contemplated a step
to be taken collectively by the Defendants had been substantially performed. With regard to the above-listed Action
Items, that question simply has not been answered.
This deficiency is particularly apparent when the Action
Item contemplates activity by the Idaho Children’s Council on

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Mental Health (“ICCMH”), a coordinating council that was
established by the Governor in accordance with a recommendation of the independent Needs Assessment. The membership of the ICCMH included the Governor and representatives
from several state agencies, including the DHW and the DJC.
The district court stated at the outset of its February 7, 2007,
Findings and Conclusions:
[W]hen determining whether a defendant is in compliance with an Action Item that requires action on
the part of ICCMH, the Court will consider whether,
and to what extent, Plaintiffs have shown by clear
and convincing evidence that an individual defendant has a specific duty to act. If a defendant failed
to do its part as a member of the ICCMH, the Court
will hold that defendant in contempt. However, a
general assertion that the ICCMH failed to fulfill an
Action Item is not sufficient to find an individual
defendant in contempt.
Again, this approach is quite appropriate for ruling which
individuals, if any, are in contempt. But it does not address
the issue whether, when the ICCMH has failed to act as
required by an Action Item, the Defendants (i.e., the Governor
or the DHW or, to a more limited extent, the DJC) have failed
to achieve the agreed action required by the consent decrees
before those decrees may be vacated. For example, the court
set out Action Item 30G and its finding as follows:
30G: The ICCMH will use this information [day
treatment data and standards] to develop recommendations for the Governor’s consideration in
developing his budget decisions.
DHW tracks the utilization of the day treatment
which is included in the Community Report. (Tr., p.
1629). Plaintiffs failed to present clear and convincing evidence that the defendants failed to comply

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with any specific and definite requirements of the
defendants related to this Action Item, and therefore
Plaintiffs failed to meet their burden of proof. Moreover, to the extent DHW had requirements under the
Action Item, DHW substantially complied with
those requirements.
It is noteworthy that this finding does not indicate that
ICCMH or anyone else used the day treatment data and standards to develop recommendations for the Governor’s consideration in developing his budget decisions, or that the
Governor considered any such recommendations. Yet the parties to these consent decrees agreed that carefully developed
recommendations for the Governor were needed to accomplish the purposes of the decrees. It may be that DHW’s
responsibility for any failures on the part of ICCMH was
insufficiently spelled out to permit holding individuals or
DHW in contempt. But the Item is set forth with sufficient
specificity to indicate that data-based recommendations concerning day treatment are a requirement for substantial compliance with the decree.
It is true that the Action Items were sometimes vague in
setting out exactly who was to do what. An example is Action
Item 4M, which was treated as follows in the district court’s
2007 Findings and Conclusions:
4M: Clarification of the Role of Regional and
Local councils to provide information to their
communities.
ICCMH approved a communication strategy and
DHW developed a “social marketing plan” and
numerous multimedia methods to use as outreach
tools. (Tr., p. 1484). However, this does not necessarily clarify the role of the Regional and Local
councils. Plaintiffs failed to present clear and convincing evidence that the defendants failed to com-

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ply with any specific and definite requirements of
the defendants related to this Action Item, and therefore Plaintiffs failed to meet their burden of proof.
Moreover, to the extent DHW had requirements
under the Action Item, DHW substantially complied
with those requirements.
Here again, it is important to differentiate between the question whether anyone is to be held in contempt and the question whether there has been substantial compliance with the
consent decrees. The Action Item well may be too vague in
imposing duties to permit contempt sanctions to be imposed
on individuals. See Balla v. Idaho State Bd. of Corrections,
869 F.2d 461, 465 (9th Cir. 1989). But the parties to the consent decrees agreed to the “clarification” called for by the
Action Item. In reaching such an agreement, the parties
clearly contemplated action by some person or entity. It is
most reasonable to conclude that the burden is on the state
Defendants; it certainly could not be upon the Plaintiffs, who
are not part of the Idaho government. The court’s finding
wholly absolves DHW of any responsibility for achieving the
result commanded by Action Item 4M, and results in a finding
of substantial compliance when the action required by the
Action Item has not come to pass (at least so far as any finding shows).
The Plaintiffs have made extended arguments that several
of the district court’s findings were clearly erroneous, particularly those dealing with funding of community-based services.
We decline to review these findings because they were made
under an incorrect burden and standard of proof, as we have
already explained. We have no way of determining whether
and how these findings would change when the evidence is
assessed by the district court with the burden of proof by a
preponderance of the evidence placed on the Defendants to
show substantial compliance with the Action Items. As
explained in the next section, the status of funding, when
found by the district court under the proper burden and stan-

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dard of proof, will enter the determination whether the purposes of the consent decrees have been satisfied to the degree
that permits vacatur of the decrees.
[7] In sum, then, we conclude that the employment of the
contempt burden and standard of proof was improper for a
determination of substantial compliance that permits the consent decrees to be vacated, and that it had sufficiently prejudicial effects on the findings and conclusions of the district
court so that its order vacating the decrees must be reversed.
III.

The Action Items as the Sole Measure of Substantial
Compliance.

[8] The Plaintiffs strongly object to the district court’s
resort to only the Action Items in determining whether there
had been substantial compliance with the consent decrees that
justified their vacatur. In its Findings and Conclusions leading
to the order vacating the consent decrees, the district court
confined its rulings to the Action Items and said nothing of
the overall objectives of the decrees. We agree with the Plaintiffs that the Action Items, while clearly relevant, are not the
only matters to be considered in determining whether the consent decrees have served their purpose. The status of compliance in light of the governing standards require overall
attention to whether the larger purposes of the decrees have
been served. Indeed, this requirement is inherent in the very
nature of “substantial compliance.” “[T]he touchstone of the
substantial compliance inquiry is whether Defendants frustrated the purpose of the consent decree — i.e., its essential
requirements.” Joseph A., 69 F.3d at 1086. “Thus, there can
be no ‘substantial performance’ where the part unperformed
touches the fundamental purpose of the contract and defeats
the object of the parties entering into the contract.” Ujder, 878
P.2d at 183.
Even if the doctrine of substantial performance had not
been employed, it would have been necessary for the district

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court to focus on “whether there has been full and satisfactory
compliance with the decree . . . and whether the [defendant]
has demonstrated . . . its good-faith commitment to the whole
of the court’s decree and to those provisions of law and the
Constitution that were the predicate for judicial intervention
in the first instance.” Freeman v. Pitts, 503 U.S. 467, 491
(1992). A court considering termination of a consent decree
in light of performance of its specific terms “must also consider the more general goals of the decree which the terms
were designed to accomplish.” Youngblood v. Dalzell, 925
F.2d 954, 960 (6th Cir. 1991). “A court faced with a motion
to terminate . . . a consent decree must begin by determining
the basic purposes of the decree.” United States v. City of
Miami, 2 F.3d 1497, 1505 (11th Cir. 1993). Here, the decrees
themselves set out their basic purposes, see, e.g., Jeff D. III,
899 F.2d at 760, and these purposes are also reflected in the
recommendations of the independent Needs Assessment that
found their way into the Implementation Plan.
For example, the single goal receiving the most emphasis
in those documents was the need for more emphasis on
community-based care and less on institutional care. See Jeff
D. IV, 365 F.3d at 848. Whether sufficient progress has been
made in that direction is certainly one of the factors to be considered in determining whether the consent decrees should be
vacated. The resolution of the disputed question whether the
Defendants have lived up to their obligations to request adequate funding and to redirect their existing funding to increase
community-based services will clearly bear on this determination. Another factor to be considered is the Defendants’ “record of compliance,” Freeman, 503 U.S. at 491, which over
course of the litigation has been far from exemplary. See Jeff
D. IV, 365 F.3d at 847 (“The history of this case is a sad
record of promises made and broken over two decades.”).
[9] It is true, as the Defendants argue, that the district court
clearly announced its intention to reach a final compliance
determination that would permit the decrees to be vacated,

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and it focused the efforts of the parties toward resolving the
disputed issues over the Action Items. But the Plaintiffs made
known their view that the decrees and the Implementation
Plan’s recommendations must be taken into account in determining whether the purposes of the consent decrees had been
substantially served.
The Defendants argue that the Implementation Plan is too
vague to consider in determining compliance, and its terms
reflected that it was a work in progress that stated “Desired
Results” rather than measurable goals. It is true that the
decrees’ statement of purposes and the Implementation Plan’s
recommendations are often too vague to serve as a foundation
for a contempt sanction. That does not mean, however, that
the district court can avoid considering them in its final determination whether the purposes of the decrees, and the Implementation Plan, had been adequately served. It may be that
compliance with Action Items was all that was required for
certain of the overall purposes of the decrees or the Implementation Plan, but that finding or conclusion has not been
made. Before the consent decrees may be vacated, there must
be careful attention to their purposes, along with consideration of the Action Items. If the purposes of the consent
decrees and the Implementation Plan have not been adequately served, the decrees may not be vacated.
It is true that the district court recited the standard for
vacating consent decrees set forth in Rufo, 502 U.S. at 393,
and Jeff D. IV, 365 F.3d at 851, and opined that the “defendants have fulfilled their burden under Rufo, having made significant efforts to substantially comply with their promises.”
But the context of the district court’s statement was clearly
confined by the contempt-based findings of compliance with
the Action Items. The fruit of the “significant efforts” found
by the district court was compliance with the Action Items
alone. Explicit consideration of the goals of the decrees and
Implementation Plan, and whether those goals have been adequately served, must be part of the determination to vacate the

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consent decrees. Because that consideration was lacking and
because, as we have already discussed, the contempt standard
and burden of proof was used in determining to vacate the
decrees, we reverse the order vacating the decrees.
IV.

The Protective Orders

The Plaintiffs contend that the district court abused its discretion by issuing protective orders barring them from taking
supplemental depositions of non-party Brad Foltman and
Appellee Karl Kurtz.
[10] “[A] district court has wide discretion in controlling
discovery.” Little v. City of Seattle, 863 F.2d 681, 685 (9th
Cir. 1988). The court in this case carefully reviewed the depositions of both Foltman and Appellee Kurtz, and concluded
that the additional information sought—budget requests, the
content of deliberations within the executive office, the content of conversations between the Governor and his subordinates, opinions rendered by legislative advisors—was both
“predecisional” and “deliberative in nature” and therefore
protected from disclosure. Those conclusions were supported
by the record. The court also made specific findings as to
whether either the competing-interests exception, see FTC v.
Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984),
or the waiver exception, see Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292, 298 (D. Md. 1992),
applied, and concluded that they did not. We find no error in
those rulings. Accordingly, the district court did not abuse its
discretion in upholding Foltman’s and Kurtz’s assertion of the
deliberative process privilege and in issuing protective orders.
[11] The Plaintiffs further contend that the district court
“improperly applied the analysis for the legislative privilege”
to non-party Kathy Holland-Smith, a legislative budget analyst. The protections of the privilege extend, however, not
only to legislators but to legislative aides and assistants, “the
day-to-day work of [whom] is so critical to [a legislator’s]

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performance that they must be treated as the latter’s alter
egos.” Gravel v. United States, 408 U.S. 606, 616-17 (1972);
see also Marylanders, 144 F.R.D. at 298 (“It is the function
of the government official that determines whether or not he
is entitled to legislative immunity, not his title.”). The factual
findings of the court with respect to Holland-Smith’s activities as a budget analyst amply support the conclusion that she
was entitled to the legislative privilege by reason of her function in the legislature. Accordingly, the district court did not
err in upholding Holland-Smith’s assertion of legislative privilege.
CONCLUSION
For the foregoing reasons, we reverse the order of the district court vacating the consent decrees; affirm the order of the
district court issuing protective orders with respect to Appellee Kurtz, non-party Foltman, and non-party Holland-Smith;
and remand for further proceedings consistent with this opinion. The Plaintiffs are entitled to their costs on appeal.
REVERSED IN PART; AFFIRMED IN PART;
REMANDED.