JL v. Miller

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                        No. 91-276


 J.L., On Behalf of Himself and               Supreme Court
 Others Similarly Situated
                                              On Appeal from
      v.                                      Washington Superior Court

                                              December Term, 1991
 Sutherland Miller, et al


 Alan W. Cheever, J.

 Jacquelyn C. Casey, Vermont Legal Aid, Inc., Waterbury, and Eric Avildsen,
   Of Counsel, Vermont Legal Aid, Inc., Burlington, for plaintiffs-appellees

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Joseph L. Winn,
   Assistant Attorney General, Waterbury, for defendants-appellants


 PRESENT:  Allen, C.J., Gibson and Dooley, JJ.


      ALLEN, C.J.   Defendants, the Commissioner of the Vermont Department of
 Mental Health and Mental Retardation and the superintendent and various
 staff members of the Vermont State Hospital, appeal from a decision of the
 Washington Superior Court denying a motion for relief from a 1985 consent
 judgment.  The consent decree set forth procedures for the involuntary
 medication of committed patients at the Vermont State Hospital.  On appeal,
 defendants argue that (1) a recent clarification in due process requirements
 renders procedures in the consent decree superfluous, and (2) the continued
 judicial enforcement of the decree violates the separation of powers section
 of the Vermont Constitution.  We affirm.
      The case began in 1984 as a class action filed in Washington Superior
 Court against the Commissioner of Mental Health and Mental Retardation and
 various officials of the Vermont State Hospital (VSH).  The resulting
 consent decree denominated the class as follows:
         All committed patients at VSH who have been or in the
         future will be administered involuntary medication who
         have not voluntarily agreed to such treatment and who
         have not been judicially determined to lack the actual
         capacity to make medical treatment decisions on their
         own behalf and whose refusal to voluntarily accept
         medication has not been overridden by a judge or other
         surrogate decision-maker after notice, hearing, and
         factual record adequate for review.

 The consent decree requires defendants to utilize certain procedures before
 involuntarily medicating committed patients.  Under the decree, a treatment
 team's recommendation for involuntary treatment is first reviewed by the VSH
 medical director in accordance with certain factors.  If the medical dir-
 ector agrees with the team that involuntary treatment is warranted, the
 director must initiate a fair hearing process by filing a detailed applica-
 tion with a Human Services Board hearing officer, who must conduct a
 hearing within ten days.  The hearing officer must determine if the patient
 is competent and, if not competent, decide, within three working days, if
 the patient would consent to treatment if competent.  Appeal then may be
 taken to the Washington Superior Court pursuant to V.R.C.P. 75.
      In November, 1990 the commissioner and the VSH executive director
 filed a motion under V.R.C.P. 60(b)(5) seeking relief from the consent
 decree on grounds that the decision of the United States Supreme Court in
 Washington v. Harper, 494 U.S. 210 (1990) clarified the procedural
 requirements a state must follow before it may involuntarily treat a person.
 Defendants argued that, in light of Harper, the procedures set forth under
 18 V.S.A. ch. 181 were adequate to protect the class members' right to
 refuse treatment, rendering the consent decree superfluous and
 unenforceable.
      The trial court denied the motion because defendants failed to "show
 that they are suffering a grievous wrong brought about by new and unforeseen
 conditions or that continued enforcement of the decree would be
 inequitable."  The court denied a motion for reconsideration, and the
 present appeal followed.
                                     I.
      Rule 60(b)(5) permits the court to relieve a party from a final
 judgment when "the judgment has been satisfied, released, or discharged, or
 a prior judgment upon which it is based has been reversed or otherwise
 vacated, or it is no longer equitable that the judgment should have
 prospective application."  V.R.C.P. 60(b)(5).  In 1932, the United States
 Supreme Court held that a court should modify a consent decree only upon "a
 clear showing of a grievous wrong evoked by new and unforeseen conditions."
 United States v. Swift & Co., 286 U.S. 106, 119 (1932).   The superior court
 relied upon Swift in denying defendants' motion.
      The "grievous wrong" standard, however, no longer applies to motions to
 modify consent decrees related to institutional reform.  Rufo v. Inmates of
 Suffolk County Jail, 112 S. Ct. 748, 764-65 (1992).  In Rufo, the Supreme
 Court announced a new flexible approach, "essential to achieving the goals
 of reform litigation," and held that the "grievous wrong" language of Swift
 "was not intended to take on a talismanic quality, warding off virtually all
 efforts to modify consent decrees."  Id. at 758.
      A party seeking modification under Rule 60(b)(5) now has the burden of
 showing either a "significant change in factual conditions or in law."  Id.
 at 760.  Modification of a decree is warranted when "changed factual
 conditions make compliance . . . substantially more onerous."  Id.
 Furthermore, a consent decree must be modified when a change in law renders
 impermissible an obligation imposed by its terms, and may be modified when
 the "law has changed to make legal what the decree was designed to prevent."
 Id. at 762.  The Court cautioned, however, that notwithstanding a more
 flexible approach, clarifications in the law do not provide a basis for
 modification unless the parties had "based their agreement on a
 misunderstanding of the governing law," id. at 763, and that Rule 60(b)(5)
 provides relief when continued enforcement of the decree would be
 inequitable, not merely inconvenient.  Id. at 758.  To hold otherwise, the
 Court noted, would open "the door for relitigation of the merits of every
 affected consent decree, would undermine the finality of such agreements and
 could serve as a disincentive to negotiation of settlements in institutional
 reform litigation."  Id. at 763.
      We find that, even under this new, more flexible standard, defendants
 failed to demonstrate either a change in facts or law sufficient to warrant
 modification of the decree.  Defendants do not allege any change in factual
 circumstances making compliance with the decree substantially more onerous,
 and we therefore confine our analysis to whether there have been changes or
 clarifications in the law of due process which provided the basis for the
 consent decree.  Defendants assert that by clarifying the due process
 principles addressed by the consent decree, Harper removed the
 "constitutional deficiency" that prompted the action resulting in the
 decree.  A review of Harper leaves us unconvinced that it clarifies the
 procedural requirements a state must comply with before it may
 involuntarily medicate an individual.  In Harper, a mentally ill state
 prisoner challenged the State of Washington's prison policy authorizing his
 treatment with antipsychotic drugs against his will without a judicial
 hearing.  494 U.S.  at 217.  The Washington Supreme Court found that the
 policy violated due process guarantees, and the state appealed.  Id. at 218.
 The United States Supreme Court held that the administrative procedures set
 by policy, including provision for review by administrative panel instead of
 a court, met federal procedural due process requirements.  Id. at 231-32.
 The Court, however, focused in significant part on the plaintiff's status as
 a prisoner: "[t]he extent of a prisoner's right under the [Due Process]
 Clause to avoid the unwanted administration of antipsychotic drugs must be
 defined in the context of the inmate's confinement."  Id. at 222.  The Court
 also stated that "[t]he legitimacy, and the necessity of considering the
 State's interests in prison safety and security are well established by our
 cases."  Id. at 223.  Harper does not state or imply that the due process
 standards to be imposed in an involuntary treatment case in a prison
 setting should be applied to a case arising in a state hospital, as urged by
 the State.  The Harper Court, in fact, recognized that the constitutional
 adequacy of particular statutory procedures will depend on the specific
 context:
         It is axiomatic that procedural protections must be
         examined in terms of the substantive rights at stake.
         But identifying the contours of the substantive right
         remains a task distinct from deciding what procedural
         protections are necessary to protect that right.

 Id. at 220.
      The Vermont Mental Health Act of 1968 (18 V.S.A. {{ 7101-9105) provides
 a general procedure for committing mentally ill persons to the care and
 custody of the commissioner of mental health and mental retardation.  But
 neither chapter 181, dealing with judicial proceedings, nor chapter 183,
 relating to care and treatment, spell out specific constitutional
 safeguards concerning involuntary treatment, and neither addresses the
 procedures or standards for determining whether a committed person can be
 forcibly medicated.  It was the goal of the consent decree, in effect, to
 "identify the contours of the substantive right."  Harper, which does
 nothing to identify those contours in the mental health context, does not
 reflect a clarification in the law sufficient to warrant modification of the
 consent decree.
      Nor does defendants' position find support in the Supreme Court's
 decision in Board of Education of Oklahoma City v. Dowell, 111 S. Ct. 630
 (1991).  Dowell involved a board of education's petition for relief from a
 school desegregation order.  111 S. Ct.  at 633.  The Tenth Circuit Court of
 Appeals had applied Swift's requirement of a "grievous wrong evoked by new
 and unforeseen conditions" and concluded that no such wrong had been shown.
 Id.  The Supreme Court reversed, holding that once the purposes of the
 desegregation litigation had been fully achieved, no additional showing of a
 "grievous wrong" was required.  Id. at 637-38.  Defendants misread Dowell,
 which addressed an injunction that was "intended as a temporary measure to
 remedy past discrimination."  Id. at 637 (emphasis supplied).  There is no
 factual basis in the present case to indicate that the purposes of the
 original decree have been fully achieved, or that the past ills have been
 otherwise addressed and corrected.
                                     II.
      Defendants' second argument is that, lacking a constitutional
 deficiency in the statutory procedures for medicating patients at VSH, the
 superior court was without jurisdiction to enforce the consent decree.
 Relying on State v. Gorton, 149 Vt. 602, 606, 548 A.2d 419, 422 (1988), they
 contend that the appropriate means of augmenting due process rights is
 through legislation, and that continued enforcement of the decree by the
 court violates the separation of powers clause of the Vermont Constitution.
 Vt. Const. ch. II, { 5.
      Without a clear and definable change in due process standards emanating
 from Harper, however, there are no grounds to question the trial court's
 continuing jurisdiction to enforce the consent decree.  Concerns over the
 due process implications of involuntary medication continue to warrant
 careful and consistently applied procedural safeguards.  As the consent
 decree stated:
           The parties agree that administration of involuntary
         medication without the patient's informed consent
         implicates a liberty interest protected by the due
         process clause of the Fourteenth Amendment to the
         United States Constitution.

                            *   *   *

           Recognizing these constitutional and common law
         interests, and without admitting any liability, for the
         purposes of avoiding the continuation of difficult,
         expensive, and protracted litigation, the parties waive
         a trial of this action, waive findings of fact and
         conclusions of law, and consent to the entry of the
         orders set forth in the judgment.

 Furthermore, even assuming that Harper eliminated the constitutional
 deficiencies addressed in the decree, the parties were free to "do more than
 that which is minimally required by the Constitution."  Rufo, 112 S. Ct.  at
 764.
      Since Harper does not alter the principles upon which the consent
 decree rested, and since there has been no demonstration of changed
 circumstances, there are no grounds to question the superior court's
 continued supervision of the decree.  The decree is a proper exercise of
 judicial power, and its enforcement raises no questions of separation of
 powers.
      Affirmed.

                                         FOR THE COURT:




                                         Chief Justice