December 26, 1985 Number 6

December 26, 1985 Number 6 A. Joseph DeNucci, Chairman Committee on Human Services and Elderly Affairs State House— Room 22 Boston, Massachusetts Dear Chairman DeNucci; On behalf of the Committee on Human Services and Elderly Aifairs of the House of Representatives, you have requested my opinion, pursuant to G.L. c. 12, § 9, as to whether a bill presently being considered by the General Court, H. 6921, would be preempted by the consent decrees that have been entered in the case of Williams v. Lesiak, United States District Court, District of Massachusetts, C.A. No. 72-57 1-Mc. For the reasons explained below, it is my opinion that the consent decrees would not preempt the proposed legislation as presently drafted. General Laws chapter 12, section 9, contemplates not only that I issue opinions to the General Court and its committees, but that I advise you in the preparation of legislative documents. In this instance the advice I render is as important as my opinion itself. I advise you not to add an emergency preamble to H. 6921, thereby deferring its effective date and permitting me to move to modify the referenced consent decrees. If those decrees are modified, no preemption issue will be presented. The bill in question would place the Treatment Center for Sexually Dangerous Persons (hereafter the Treatment Center) exclusively within the Department of Correction. Under the current statute, the Treatment Center is "subject to the jurisdiction of the department of mental health" but is located "at a correctional institution approved by the commissioner of correction." G.L. c. 123A, § 2. The proposed legislation would thus end the bifurcated administration of the Treat- ment Center by placing the facility within a single state agency. The bill does not address any of the treatment programs or other aspects of the daily operation of the facility. The federal litigation that you have cited has a long and complex history. It was originally brought on behalf of the patient population at the Treatment Center challenging both the conditions of confinement and the types of therapy and treatment programs that were provided. Several separate consent decrees were agreed to by the parties and approved by the court. In addition, the court entered numerous other specific orders addressing particular aspects of the operation of the Treatment Center. As part of a consent decree entered by the court on June 14, 1974, the parties agreed that the Treatment Center was to be treated as a facility of the Depart- ment of Mental Health and more particularly that the clinical staff of the De- partment of Mental Health was to have primary responsibility for the handling of patients other than dealing with security problems. This consent decree amplified the legislative determination contained in G.L. c. 123A, § 2, and clarified the operational distinction between treatment and security, with the Department of Mental Health having responsibility for the former and the Department of Cor- rection the latter. P.D. 12 31 My opinion that the proposed law is not foreclosed by this consent decree rests on three grounds. First, the General Court is not a party to the Williams v. Lesiak lawsuit, and its prerogatives cannot be constrained by an agreement by agencies of the executive branch of the state government. See Massachusetts Association for Retarded Citizens, Inc. v. King, 668 F. 2d 602, 609 (1st Cir. 1981). Second, the consent decree was based on the pre-existing state statute. If the statute were to be amended, the change should be sufficient reason for the federal court to modify the consent decree. Changes in the statutes have repeatedly been found to be sufficient justification for modification of a consent decree. System Federation No. 91 v. Wright, 364 U.S. 642 (1961). See also Fortin v. Commissioner ofMassachusetts Department of Public Welfare, 692 F. 2d 790, 799 ( 1st Cir. 1982). If this law is enacted, as litigation counsel for the defendants in the Williams v. Lesiak case, I would seek to have the consent decree modified to conform with the newly enacted state law. For this reason, I reiterate the advice given in the beginning of this opinion: enact this law without an emergency preamble to provide me the necessary time to go before the federal court with a motion to modify the consent decree, thereby avoiding any possible conflict between the state law and the federal consent decree. Third, if the court declined to modify the consent decree, I believe the law would nevertheless be defensible as a valid exercise of the sovereign power of the state to govern its agencies. I would defend the statute by advancing the legal proposition that a consent judgment, approving a non-litigated settlement, does not constitute a "Law of the United States" and therefore does not preempt state law under the Supremacy Clause. See, e.g., Gibbins v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). Cf New York State Association for Retarded Children v. Carey, 631 F. 2d 162 (2nd Cir. 1981) (an express obligation under a consent decree to maintain a review panel was held not to preempt a subsequently enacted state law preventing the Governor from funding the review panel). For the foregoing reasons, I answer your request for my opinion and advice by concluding that the enactment of H. 6921 is not preempted by existing federal court consent decrees. Very truly yours. FRANCIS X. BELLOTTI ATTORNEY GENERAL 32 P.D. 12