TY BY PETTY v. BD. OF CTY. COM'RS SHAWNEE CTY.

912 F. Supp. 1424

T.Y., a minor, by her next friend, Lynette PETTY, B.A., a minor, by his next friend, P.C., D.S., a minor by his next friends, A.M. and Lynette Petty, on behalf of themselves and all others similarly situated, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SHAWNEE; Donald J. Cooper, Chairman, Victor W. Miller, Vice-Chairman, Winifred Kingman, member of the Shawnee County Commission, in their official capacities; Earl Hindman, Director of the Shawnee County Department of Corrections, in his official capacity; Gary Bayens, Administrator of Shawnee County Youth Center, in his official capacity, Defendants and Third-Party Plaintiffs, v. STATE OF KANSAS, DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, and Donna L. Whiteman, the Secretary of Social and Rehabilitation Services, in her official capacity; Board of Education-Unified School District 501, Shawnee County, Kansas, Third-Party Defendants.

Civil Action No. 94-4079-DES.

United States District Court, D. Kansas.

January 17, 1996.

Larry R. Rute, Kansas Legal Services, Inc., Topeka, KS, Claudia J. York, Shughart, Thomson & Kilroy, Kansas City, MO, Charles J. Hyland, Sprint Communications Company L.P., Law Department, Kansas City, MO, Judith A. Jones, Hiawatha, KS, for plaintiffs.

Mark L. Bennett, Jr., Ann L. Hoover, Bennett & Dillon, Topeka, KS, Susana L. Valdovinos, Office of County Counselor, Topeka, KS, Sandra L. Jacquot, Office of the County Counselor, Shawnee County, Kansas, Topeka, KS, for defendants.

Michael George, Kenneth R. Smith, Kansas Department of SRS, Topeka, KS, for Kansas Department of Social and Rehabilitation Services, Donna L. Whiteman.

John D. Ensley, Arthur E. Palmer, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Unified School District 501, Topeka.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the court on the plaintiffs' motion for an order requiring the defendants to show cause why they should not be held in contempt for disobedience of the Settlement Agreement and Consent Decree entered by this court on July 28, 1995 (Doc. 144).

I. BACKGROUND

The plaintiffs filed this action on May 19, 1994, as a class action pursuant to 42 U.S.C. § 1983. The plaintiffs filed an amended complaint on June 3, 1994. The plaintiffs' suit challenged the conditions of confinement at the Shawnee County Youth Center ("SCYC"), and certain policies and practices employed in the administration of SCYC. On June 23, 1994, the plaintiffs filed a motion for a preliminary injunction to restrain the defendants from employing certain practices and procedures at SCYC pending final resolution of this action.

On July 5, 1994, the defendants filed an answer to the plaintiffs' complaint. The defendants also filed on that date their complaint against the third-party defendants. The defendants submitted that they were not liable to the plaintiffs, but that in the alternative, judgment should be entered against the third-party defendants in an amount equal to the defendants' liability.

On August 2, 1994, the court approved a Joint Stipulation of Partial Settlement of Motion for Preliminary Injunction executed by the plaintiffs and defendants. In the stipulation, the defendants agreed to amend certain policies and practices to the extent that they did not conform to Kansas Administrative Regulations. On November 21, 1994, the court approved a second Joint Stipulation of Partial Settlement, executed by the plaintiffs, the defendants, the Kansas Department of Social and Rehabilitation Services, and Donna L. Whiteman, Secretary of Social and Rehabilitation Services ("SRS"), which addressed the issue of overcrowding at SCYC. Finally, on July 28, 1995, the court approved a Settlement Agreement and Consent Decree executed by all parties. This third agreement settled all remaining issues in the case as to conditions, policies, and practices at SCYC.

II. DISCUSSION

Section XXIV of the Settlement Agreement and Consent Decree addresses enforcement and monitoring of the decree. Paragraph 1 of the decree designates Bruce Linhos "to monitor and oversee the implementation of the terms of this Consent Decree and/or the plan or plans established to implement the terms of the Consent Decree." Paragraph 1 further provides that the "Board of County Commissioners of Shawnee County Shawnee County shall bear the responsibility for payment of all reasonable and necessary costs of the monitoring, pursuant to a schedule or agreement to be approved by the Court." Paragraph 4 of the decree provides as follows: "Any party may raise questions of compliance with this Consent Decree and its implementation plans. Any party's questions of compliance and all individual complaints regarding compliance with this Consent Decree must first be presented to the Monitor."

Pursuant to the above provisions of the consent decree, Shawnee County entered into a Contract for Professional Services with Bruce Linhos on August 31, 1995. The paragraph of the contract at issue here, paragraph 6, provides as follows: "The Consultant Bruce Linhos agrees to maintain the confidentiality of all documents and information provided to him and may not disclose any of said confidential information other than under the limited conditions permitted pursuant to the Settlement Agreement and Consent Decree entered in the case. The Consultant will not engage in ex parte communications with counsel for any of the parties regarding matters pertaining to the Settlement Agreement and Consent Decree. The consultant will not furnish copies of any documents or information provided to him for the parties or their counsel." (emphasis added).

The plaintiffs object to the prohibition on ex parte communications between the monitor and counsel for the parties. The plaintiffs maintain that while the other parties can communicate directly and confidentially with the monitor, it is impossible for a resident to directly contact the monitor without the defendants becoming aware of the contact; consequently, the provision makes it extremely difficult for SCYC residents to raise questions of compliance concerning the consent decree in a manner which preserves the residents' confidentiality. According to the plaintiffs, the most appropriate way for residents to communicate with the monitor in a confidential manner is through their attorneys, and that by forbidding counsel's ex parte communications with the monitor, the defendants are attempting to limit the ability of the monitor to obtain relevant information concerning the defendants' compliance with the consent decree.

The defendants cite two reasons for prohibiting ex parte communications between the monitor and counsel for the parties. First, the defendants assert that the consent decree bestows upon Mr. Linhos the authority to informally resolve questions of compliance and to make findings of fact. Thus, the monitor serves in the role of a decision-maker. The defendants maintain that when a party is allowed to communicate unilaterally with the decision-maker, the decision-maker's impartiality may be compromised, and the opposing party lacks the opportunity to respond. Second, the defendants contend that the contract provision forbidding ex parte communications between counsel and Mr. Linhos insures that Shawnee County will not have to bear the monetary...