IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION FRED WELLS, a minor, by his next friend SHARON KELSO, WESLEY RAY, a minor, by his next friend MERUDIETH RAY, and CANDIS HOLMES, a minor, by her next friend CATHY HOLMES, Plaintiffs, RAINA McBURROWS, a minor, by her next friend SHARON KELSO, and MARQUEE ALLEN, a minor, by her next friend JEANENE ROWE, Case No. 5:04-cv Hon. Marianne O. Battani Proposed Plaintiff-Intervenors, vs. DETROIT PUBLIC SCHOOLS, UNKNOWN DETROIT POLICE OFFICERS and UNKNOWN DETROIT PUBLIC SCHOOL SECURITY OFFICERS, Defendants. / Daniel S. Korobkin (P72842) Mark P. Fancher (P56223) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) Lamont D. Satchel (P52647) Lionel C. Sims, Jr. (P62551) Detroit Public Schools Office of General Counsel 3011 West Grand Boulevard, Suite 1800 Detroit, MI (313) Counsel for Defendant Detroit Public Schools Amos E. Williams (P39118) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 615 Griswold, Suite 1115 Detroit, MI (313) Counsel for Plaintiffs and Proposed Plaintiff-Intervenors / PLAINTIFF AND PROPOSED PLAINTIFF-INTERVENORS' JOINT MOTION TO DECLARE DEFENDANT IN CONTEMPT AND IMPOSE SANCTIONS

2 For the reasons stated in the accompanying brief, Plaintiff Fred Wells and proposed Plaintiff-Intervenors hereby jointly move this court: (1) to declare Defendant Detroit Public Schools in contempt of the consent judgment agreed to by the parties and entered by this court on June 9, 2006; (2) to order Defendant to comply with the consent judgment; and (3) to impose other appropriate contempt sanctions. Counsel for Plaintiff and proposed Plaintiff-Intervenors conferred with defense counsel, explained the nature of this motion and its legal basis, and requested but did not obtain concurrence in the relief sought. Dated: December 15, 2009 Respectfully submitted, /s/ Daniel S. Korobkin Daniel S. Korobkin (P72842) Mark P. Fancher (P56223) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) /s/ Amos E. Williams with consent Amos E. Williams (P39118) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 615 Griswold, Suite 1115 Detroit, MI (313) Attorneys for Plaintiffs and Proposed Plaintiff-Intervenors

3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION FRED WELLS, a minor, by his next friend SHARON KELSO, WESLEY RAY, a minor, by his next friend MERUDIETH RAY, and CANDIS HOLMES, a minor, by her next friend CATHY HOLMES, Plaintiffs, MARQUEE ALLEN, a minor, by her next friend JEANENE ROWE, and RAINA McBURROWS, a minor, by her next friend SHARON KELSO, Case No. 5:04-cv Hon. Marianne O. Battani vs. Proposed Plaintiff-Intervenors, DETROIT PUBLIC SCHOOLS, UNKNOWN DETROIT POLICE OFFICERS and UNKNOWN DETROIT PUBLIC SCHOOL SECURITY OFFICERS, Defendants. / Daniel S. Korobkin (P72842) Mark P. Fancher (P56223) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) Lamont D. Satchel (P52647) Lionel C. Sims, Jr. (P62551) Detroit Public Schools 3011 West Grand Boulevard, Suite 1800 Detroit, MI (313) Counsel for Defendant Detroit Public Schools Amos E. Williams (P39118) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 615 Griswold, Suite 1115 Detroit, MI (313) Counsel for Plaintiffs and Proposed Plaintiff-Intervenors / BRIEF IN SUPPORT OF PLAINTIFF AND PROPOSED PLAINTIFF-INTERVENORS' JOINT MOTION TO DECLARE DEFENDANT IN CONTEMPT AND IMPOSE SANCTIONS

4 TABLE OF CONTENTS INDEX OF AUTHORITIES... ii INTRODUCTION...1 FACTS...1 CONTEMPT STANDARD...3 SUMMARY OF ARGUMENT...4 ARGUMENT...5 I. DEFENDANT DETROIT PUBLIC SCHOOLS IS IN CONTEMPT OF THE CONSENT JUDGMENT BECAUSE IT HAS SEARCHED STUDENTS AND THEIR PERSONAL EFFECTS WITHOUT REASONABLE SUSPICION, AND CONTINUES TO DO SO, IN DIRECT VIOLATION AND WITH KNOWLEDGE OF THIS COURT'S SPECIFIC AND DEFINITE ORDER INCORPORATING THE AMENDED SEARCH POLICY....5 II. FRED WELLS MAY ENFORCE THE CONSENT JUDGMENT BECAUSE HE IS AN ORIGINAL PARTY TO THE AGREEMENT, AND CURRENT STUDENTS MAY ENFORCE THE CONSENT JUDGMENT PURSUANT TO RULE 71 OF THE FEDERAL RULES OF CIVIL PROCEDURE BECAUSE THEY ARE ITS INTENDED BENEFICIARIES....7 A. Fred Wells May Enforce the Consent Judgment Because He Has Been Directly Denied the Benefit of His Bargain and Because Promisees May Enforce Their Contracts on Behalf of Intended Beneficiaries Fred Wells May Enforce the Consent Judgment Because He Was Denied the Benefit of His Bargain Fred Wells May Also Enforce the Consent Judgment on Behalf of Its Intended Beneficiaries B. Marquee Allen and Raina McBurrows May Enforce the Consent Judgment Pursuant to Rule 71 of the Federal Rules of Civil Procedure Because They Are Its Intended Beneficiaries III. THE COURT SHOULD IMPOSE SANCTIONS IN THE FORM OF FURTHER INJUNCTIVE RELIEF, DAMAGES, AND ATTORNEYS' FEES CONCLUSION...16 i

5 INDEX OF AUTHORITIES CASES Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir. 1994) Barfus v. City of Miami, 936 F.3d 1182 (11th Cir. 1991) Beckett v. Air Line Pilots Ass'n, 995 F.2d 280 (D.C. Cir. 1993)... 13, 14 Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985)... 9, 10, 11, 13, 14 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975) CFTC ex rel. Kelley v. Skorupskas, 605 F. Supp. 923 (E.D. Mich. 1985)... 4 Drewen v. Bank of Manhattan Co., 31 N.J. 110 (1959) EEOC v. Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, 139 F. Supp. 2d 512 (S.D.N.Y. 2001) Floyd v. Ortiz, 300 F.3d 1223 (10th Cir. 2002) Glover v. Johnson, 199 F.3d 310 (6th Cir. 1999)... 4, 15, 16 Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991) Gnesys, Inc. v. Greene, 437 F.3d 482 (6th Cir. 2005) Hamer v. Sidway, 124 N.Y. 538 (1891)... 9 Hook v. Arizona Department of Corrections, 972 F.2d 1012 (9th Cir. 1992)... 13, 14 Hutto v. Finney, 437 U.S. 678 (1978) In re Employment Discrimination Litig., 213 F.R.D. 592 (M.D. Ala. 2003) In re Jaques, 761 F.2d 302 (6th Cir. 1985)... 4, 6, 15 In re Marriage of Smith & Maescher, 21 Cal. App. 4th 100 (1993) Kisiel v. Holz, 272 Mich. App. 168 (2006) Koenig v. City of South Haven, 460 Mich. 667 (1999)... 11, 13 Lavapies v. Bowen, 687 F. Supp (S.D. Ohio 1988) McComb v. Jacksonville Paper Co., 336 U.S. 187 (1949) Nat l Ecological Found. v. Alexander, 496 F.3d 466 (6th Cir. 2007)... 9, 11 NLRB v. Cincinnati Bronze, Inc., 829 F.2d 58 (6th Cir. 1987)... 4, 5 Roman v. Korson, 307 F. Supp. 2d 908 (W.D. Mich. 2004)... 4, 15 Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 271 F.3d 235 (6th Cir. 2001) Sault Ste. Marie Tribe of Chippewa Indians v. Granholm, 475 F.3d 805 (6th Cir. 2007)... 8 Schmalfeldt v. North Pointe Ins. Co., 469 Mich. 422 (2003) South v. Rowe, 759 F.2d 610 (7th Cir. 1985) Spallone v. United States, 493 U.S. 265 (1990)... 3 Stewart v. Rudner, 349 Mich. 459 (1957) TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261 (6th Cir. 1983)... 4, 15, 16 United States v. ITT Continental Baking Co., 420 U.S. 223 (1975)... 8 Washington Hosp. v. White, 889 F.2d 1294 (3d Cir. 1989) Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983)... 3, 5, 8 STATUTES M.C.L , 12 RULES Fed. R. Civ. P OTHER AUTHORITIES Rest. (2d) Contracts , 12 ii

6 INTRODUCTION This motion is being filed because Defendant Detroit Public Schools has acted, and continues to act, in direct violation of an order of this court. On June 9, 2006, the court entered an Order of Judgment (Dkt. #41, attached as Exhibit A), with the consent of the parties, requiring the Detroit Public Schools to enact, adopt, and follow amendments to its student search policy. This amended policy, which was attached to the court's order and incorporated by reference, prohibits school officials from searching any student's person or personal effects absent reasonable suspicion that the individual student being searched violated school rules or the law. The Order of Judgment, hereafter described as the "consent judgment," has been and is being violated by the Detroit Public Schools. Specifically, students at Mumford High School in Detroit are routinely subjected to mass, indiscriminate searches without reasonable suspicion in direct conflict with the agreed-upon amended search policy. Plaintiffs' counsel notified the Detroit Public Schools of these violations and requested that the searches be stopped, to no avail. The purpose of this motion is to enforce the consent judgment requiring the Detroit Public Schools to comply with the amended search policy. Plaintiff and proposed Plaintiff- Intervenors request that this court declare the Detroit Public Schools in contempt for violating the consent judgment, order it to comply with the consent judgment, and impose other appropriate sanctions. FACTS On June 10, 2004, Plaintiff Fred Wells and two other students at Mumford High School filed this action under 42 U.S.C Their complaint (Dkt. #1) alleged, among other things, 1

7 that Defendants' mass, random searches, seizures, and detentions at school were not based upon individualized probable cause or reasonable suspicion and thus violated the Fourth Amendment. On June 9, 2006, the court and the parties entered a consent judgment in this matter. (See Order of Judgment, Dkt. #41, attached as Exhibit A.) Paragraph 4 of the consent judgment provides that the Detroit Public Schools "agree to enact, adopt and follow the amendments to its policy governing student searches inside all school buildings and facilities." The amended search policy was attached to the consent judgment and incorporated by reference. The plaintiffs agreed to terminate this case and relinquish their claims in exchange for a monetary payment and the Detroit Public Schools' promise to enact, adopt, and follow the amended search policy. The amended search policy states that "[a]ll... searches shall be undertaken consistent with the law, this policy and the United States Constitution." (Search Policy, attachment to Exhibit A, Introduction.) It further provides that before a student or a student's personal effects are searched, school officials must have "reasonable suspicion" that the student who is subject to the search participated in a criminal infraction or violated a school policy, and that evidence of the violation be in the possession of the student in the location to be searched. (Id. at 1.) The amended search policy states that a "mere hunch or a generalized suspicion does not constitute reasonable suspicion nor do they provide a sufficient basis for searching an individual student." (Id.) The consent judgment has not been modified or vacated since its entry in 2006, nor does it contain any provisions limiting its duration. Beginning in September 2009, school officials at Mumford High School in Detroit instituted a daily practice, in direct conflict with the amended search policy, of requiring all students to submit to manual searches of the interior compartments of their backpacks, purses, 2

8 and other personal belongings as a condition of entry into the school building. (Proposed Verified Complaint in Intervention, 15-22, attached as Exhibit B. 1 ) These searches were conducted by teachers and security personnel. (Id.) The searches are required of every student, without the individualized reasonable suspicion required by the amended search policy the Detroit Public Schools agreed to follow. (Id.) Among the students personally subjected to these mass searches are proposed Plaintiff- Intervenors Marquee Allen and Raina McBurrows. (Id.) Plaintiff Fred Wells, although no longer a student at Mumford High School, is alarmed and aggrieved by the Detroit Public Schools' breach of its binding and enforceable promise to him as embodied in the consent judgment. On November 4, 2009, Plaintiffs' counsel notified the Detroit Public Schools and its counsel that the amended search policy was being violated and requested that they immediately put an end to these unlawful searches. (Letter to Robert Bobb, attached as Exhibit C.) The letter detailed the searches that had been conducted, reminded the Detroit Public Schools of the consent judgment and its terms, outlined the illegality of the searches, and requested a response within ten days. (Id.) To date, despite having been put on notice that unlawful searches were taking place at Mumford High School, the Detroit Public Schools has failed to put an end to this practice or make any assurances that the improper searches will cease. CONTEMPT STANDARD Courts have inherent authority to enforce their judgments and orders, including consent judgments, through their contempt powers. See Spallone v. United States, 493 U.S. 265, 276 (1990); Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). A litigant may be held in civil 1 The attached complaint in intervention has also been filed today by the proposed plaintiff-intervenors as an attachment to their motion to intervene. 3

9 contempt of court for violating a "definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order." NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987). "Wilfulness is not an element of civil contempt and need not be shown." Roman v. Korson, 307 F. Supp. 2d 908, 915 (W.D. Mich. 2004). The party moving for contempt must prove the violation by clear and convincing evidence. Cincinnati Bronze, 829 F.2d at 591. Once a party is found to be in contempt, courts have broad discretion in imposing sanctions. CFTC ex rel. Kelley v. Skorupskas, 605 F. Supp. 923, 944 (E.D. Mich. 1985). "Generally, civil contempt may be either intended to coerce future compliance with a court's order, or to compensate for the injuries resulting from the noncompliance." In re Jaques, 761 F.2d 302, (6th Cir. 1985) (citations omitted). Sanctions may therefore include compensatory damages, punitive fines, further injunctive relief, and attorneys' fees. See Glover v. Johnson, 199 F.3d 310 (6th Cir. 1999); TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir. 1983); Roman, 307 F. Supp. 2d at 919. SUMMARY OF ARGUMENT By searching students' persons and their personal effects without individualized reasonable suspicion, the Detroit Public Schools has knowingly violated this court's order, to which it consented, and should therefore be held in contempt of this court. The Detroit Public Schools' conduct satisfies all the elements of civil contempt. First, the consent judgment is a specific and definite order prohibiting suspicionless searches. Second, the Detroit Public Schools violated it. Third, the Detroit Public Schools had knowledge of the order. Plaintiff Fred Wells and proposed Plaintiff-Intervenors Marquee Allen and Raina McBurrows are proper movants to enforce the consent judgment. Consent judgments are 4

10 enforced according to contract law. Wells, although no longer a student in the Detroit Public Schools, may enforce the consent judgment as its promisee, both because he lost the benefit of his bargain when Defendant violated their agreement and because promisees may enforce contracts on behalf of their intended third-party beneficiaries -- in this case, current students. Allen and McBurrows, current students, may enforce the consent judgment under Rule 71 of the Federal Rule of Civil Procedure as third-party beneficiaries. Rule 71 specifically allows nonparties for whose benefit a court order was entered to enforce that order using the same contempt procedures available to an original party. The consent judgment was intended to benefit current students, and they may therefore invoke Rule 71 to enforce it. ARGUMENT I. DEFENDANT DETROIT PUBLIC SCHOOLS IS IN CONTEMPT OF THE CONSENT JUDGMENT BECAUSE IT HAS SEARCHED STUDENTS AND THEIR PERSONAL EFFECTS WITHOUT REASONABLE SUSPICION, AND CONTINUES TO DO SO, IN DIRECT VIOLATION AND WITH KNOWLEDGE OF THIS COURT'S SPECIFIC AND DEFINITE ORDER INCORPORATING THE AMENDED SEARCH POLICY. The Detroit Public Schools should be held in contempt because there is clear and convincing evidence that it is violating the consent judgment. In order to hold the Detroit Public Schools in contempt, the court must find (1) that there is a specific and definite order requiring it to perform or refrain from performing a particular act or acts; (2) that it has violated the order; and (3) that it had knowledge of the order at the time of the violation. See Cincinnati Bronze, 829 F.2d at 591. All three criteria are met in this case. First, the consent judgment is a specific and definite order requiring the Detroit Public Schools to follow the amended search policy and refrain from searching students without individualized suspicion. It is well established that a consent judgment is a "final judicial order." Williams, 720 F.2d at 920. The consent judgment in this case specifically requires the Detroit 5

11 Public Schools to "enact, adopt and follow the amendments to its policy governing student searches inside all school buildings and facilities." (Order of Judgment, Dkt. #41, 4, attached as Exhibit A.) That policy, in turn, is incorporated by reference and specifically requires the Detroit Public Schools to refrain from searching any student or any student's personal effects unless school officials have reasonable suspicion that (1) there has been a criminal infraction or violation of school policy, (2) the student who is subject to the search participated in the criminal infraction or violation, and (3) the evidence of the violation be in the possession of the student in the location to be searched. (Search Policy, attachment to Exhibit A, 1.) "A mere hunch or a generalized suspicion does not constitute reasonable suspicion nor do they provide a sufficient basis for searching an individual student." (Id.) Second, the Detroit Public Schools is violating the consent judgment. The verified complaint in intervention demonstrates that students at Mumford High School have been subjected to indiscriminate and suspicionless searches of their backpacks and purses on a daily basis for several months. (Proposed Verified Complaint in Intervention, attached as Exhibit B, ) As a matter of law, it is irrelevant whether the violation of the consent judgment is willful. See In re Jaques, 761 F.2d at 306. Because the Detroit Public Schools has ceased to comply with the specific and definite terms of the amended search policy, it is violating this court's order. Lastly, there should be no dispute that the Detroit Public Schools had knowledge of the order it violated, as the order was in fact a consent judgment the Detroit Public Schools specifically agreed to follow. In sum, the facts are clear: the Detroit Public Schools agreed to a court order prohibiting suspicionless student searches and is now directly violating that order by conducting such 6

12 searches at Mumford High School. Absent this court s intervention, it is likely that the Detroit Public Schools will continue to illegally search students. The court should therefore declare the Detroit Public Schools in contempt of the consent judgment and impose appropriate sanctions. II. FRED WELLS MAY ENFORCE THE CONSENT JUDGMENT BECAUSE HE IS AN ORIGINAL PARTY TO THE AGREEMENT, AND CURRENT STUDENTS MAY ENFORCE THE CONSENT JUDGMENT PURSUANT TO RULE 71 OF THE FEDERAL RULES OF CIVIL PROCEDURE BECAUSE THEY ARE ITS INTENDED BENEFICIARIES. This motion is being filed by one original plaintiff to the consent judgment and two current Mumford High School students who are being searched in violation of the consent judgment. The original plaintiff, Fred Wells, may enforce the consent judgment for two reasons. First, applying well-accepted contract principles, he bargained for the Detroit Public Schools' promise to abide by the amended search policy in exchange for his agreement to drop his original lawsuit, and he is now being denied the benefit of his bargain. Second, all current students in Detroit Public Schools buildings and facilities are intended beneficiaries of the consent judgment, and promisees may enforce their contracts on behalf of third-party beneficiaries. The current Mumford students, Marquee Allen and Raina McBurrows, may also enforce the consent judgment in their own right because they are its intended beneficiaries. Their ability to enforce the consent judgment flows directly from Rule 71 of the Federal Rules of Civil Procedure. A. Fred Wells May Enforce the Consent Judgment Because He Has Been Directly Denied the Benefit of His Bargain and Because Promisees May Enforce Their Contracts on Behalf of Intended Beneficiaries. Plaintiff Fred Wells is no longer a student at Mumford High School and is not now personally subject to suspicionless searches by the Detroit Public Schools. However, as an original party to the consent judgment he is a proper party to enforce it. 7

13 "Consent judgments are analyzed as contracts." Sault Ste. Marie Tribe of Chippewa Indians v. Granholm, 475 F.3d 805, 810 (6th Cir. 2007). Accordingly, the basic principles of contract law and interpretation govern their enforcement. See United States v. ITT Continental Baking Co., 420 U.S. 223, 238 (1975). Here, two fundamental contract principles give Fred Wells the ability to enforce this consent judgment. First, he agreed to give up his cause of action in exchange for the Detroit Public Schools' promise to abide by the amended search policy, and he has now lost the benefit of his bargain because the Detroit Public Schools has breached their contract. Second, the parties to the consent judgment intended to benefit all students in Detroit Public Schools buildings and facilities, and original promisees may enforce their contracts on behalf of intended beneficiaries. 1. Fred Wells May Enforce the Consent Judgment Because He Was Denied the Benefit of His Bargain. As a type of contract, a consent judgment is an enforceable bargained-for exchange: The defendant has given up the possibility of prevailing on the merits in exchange for granting certain limited affirmative relief to plaintiffs. Plaintiffs have exchanged their right to obtain adjudicatory relief.... A consent decree, therefore, should be strictly construed to preserve the bargained for position of the parties. Williams, 720 F.2d at 920 (citations omitted). In this case, the bargain between Fred Wells and the Detroit Public Schools was made explicit in a single sentence of the consent judgment: "In exchange for the payment stated above and the Defendant's agreement to enact, adopt and follow the amended search policy the Plaintiffs agree to terminate this litigation and to relinquish any and all further claims against the Defendant arising from the incident giving rise to the litigation." (Order of Judgment, Dkt. #41, attached as Exhibit A, 4.) As described above, the 8

14 Detroit Public Schools has not kept its promise to abide by the amended search policy. Wells has therefore lost the benefit of his bargain. Because Wells bargained for the Detroit Public Schools' promise not to search any students or their personal effects without reasonable suspicion, he is entitled to enforce the contract even though he personally has not been searched. The court s task in interpreting a consent decree is to ascertain the intent of the parties at the time of settlement." Nat l Ecological Found. v. Alexander, 496 F.3d 466, (6th Cir. 2007) (internal quotation marks omitted). Although the parties could have limited their agreement to prohibit suspicionless searches of the original plaintiffs, the language used in the consent judgment reveals that they chose not to. Instead, they entered into a binding agreement whereby all suspicionless searches of students and their personal effects must cease. For Fred Wells, the Detroit Public Schools' promise not to search any student without reasonable suspicion had value independent of their promise not to search him specifically. Wells is therefore harmed by the Detroit Public Schools' breach of the agreement even though he is not personally subject to an unlawful search. "Courts will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to anyone. It is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him." Hamer v. Sidway, 124 N.Y. 538, 545 (1891) (internal quotation marks omitted)). This principle was applied in a case similar to this one in Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985), in which an original party to a consent decree sought to enforce the government's agreement to adopt and apply an agreed-upon interpretation of the Social Security Act. Although the original plaintiff had not personally been denied benefits as a result of the 9

15 government's violation of the consent decree, the court held that the plaintiff could enforce compliance with the decree because the "promise it contained" "was made to [him], as promisee." Id. at Here, the situation is no different. The Detroit Public Schools promised Fred Wells it would abide by the amended search policy. In exchange, Wells agreed to terminate his lawsuit. As the promisee who has been denied the benefit of his bargain, Wells may enforce the consent judgment in this court. 2. Fred Wells May Also Enforce the Consent Judgment on Behalf of Its Intended Beneficiaries. In agreeing to follow the amended search policy, the Detroit Public Schools made a promise that all students would be free from suspicionless searches. Under Michigan law and general contract principles, a contracting promisee has the right to enforce a contract on behalf of its intended third-party beneficiaries. "A promise in a contract creates a duty in the promisor to the promisee to perform the promise even though he also has a similar duty to an intended beneficiary." Rest. (2d) Contracts 305(1). "The promisee of a promise for the benefit of a beneficiary has the same right to performance as any other promisee." Id. cmt. a. This commonlaw right of the promisee to enforce contracts on behalf of third-party beneficiaries is widely recognized, see In re Marriage of Smith & Maescher, 21 Cal. App. 4th 100, 106 (1993); Drewen v. Bank of Manhattan Co., 31 N.J. 110, 117 (1959) (citing authorities), and preserved by Michigan statute, M.C.L (3). Consistent with this fundamental principle, Fred Wells, as promisee, may enforce the consent judgment on behalf of the students at Detroit Public Schools, the consent judgment's third-party beneficiaries. To determine whether the current students are intended beneficiaries of the consent judgment, the court must examine the "form and meaning of the contract itself," Kisiel v. Holz, 10

16 272 Mich. App. 168, 171 (2006), construing it as written using an "objective standard" in order to "ascertain the intent of the parties at the time of settlement," Nat l Ecological Foundation v. Alexander, 496 F.3d 466, 478 (6th Cir. 2007) (internal quotation marks omitted). An intended third-party beneficiary may be a member of a class sufficiently described by the contract. Koenig v. City of South Haven, 460 Mich. 667, 680 (1999). Here, the consent judgment provides that the Detroit Public Schools will "enact, adopt and follow the amendments to its policy governing student searches inside all school buildings and facilities." (Order of Judgment, Dkt. #41, attached as Exhibit A, 4 (emphases added).) The amended search policy, which is attached to the consent judgment and expressly incorporated by reference, further provides that "[a]ll... searches [of students and their personal effects] shall be undertaken consistent with the law, this policy and the United States Constitution." (Search Policy, attachment to Exhibit A, Introduction (emphases added).) Although the parties could have limited their agreement to prohibit suspicionless searches of the original plaintiffs, they chose not to. The form and meaning of their contract thus reveal that they intended to benefit an entire class of persons: all students in Detroit Public Schools buildings and facilities. Berger v. Heckler, 771 F.2d 1556, again provides authority for enforcement by an original plaintiff "to the extent that he [is] suing on behalf of third parties benefited by the decree," id. at In that case, the original plaintiff moved to enforce a consent decree on behalf of a class of persons who would be eligible for Social Security benefits under the agreement. Although the plaintiff's own benefits were no longer threatened, the court concluded that he was entitled to enforce the consent judgment because the "promise to benefit third parties was included in a valid contract with him. Id. at

17 Here, too, Fred Wells may enforce the Detroit Public Schools' promise on behalf of current students -- the class of persons the parties intended to benefit when the consent decree was entered. Because "[t]he promisee of a promise for the benefit of a beneficiary has the same right to performance as any other promisee," Rest. (2d) Contracts 305 cmt. a, Wells has the same right to enforce the consent judgment as would any aggrieved party to a breached contract. B. Marquee Allen and Raina McBurrows May Enforce the Consent Judgment Pursuant to Rule 71 of the Federal Rules of Civil Procedure Because They Are Its Intended Beneficiaries. In addition to being enforceable by Fred Wells, an original plaintiff in this action, the consent judgment may be enforced on the motion of Marquee Allen and Raina McBurrows, who seek to intervene as its intended beneficiaries. Although Allen and McBurrows were not parties when the consent judgment was entered, the Federal Rules of Civil Procedure specifically allow nonparties for whose benefit a court order was entered to enforce that order using the same contempt procedures available to an original party: "When an order grants relief for a nonparty..., the procedure for enforcing the order is the same as for a party." Fed. R. Civ. P. 71. Rule 71 authorizes Allen and McBurrows, nonparties the consent judgment was intended to benefit, to enforce the consent judgment as though they were parties in the original action. To determine whether the consent judgment is "an order grant[ing] relief to" Allen and McBurrows, id., the court must construe it according to "the ordinary rules of contractual interpretation" and Michigan contract law. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 271 F.3d 235, (6th Cir. 2001). In Michigan, as elsewhere, contracts may be enforced by their intended nonparty (or third-party) beneficiaries. M.C.L A nonparty to a contract has the power to enforce it under Michigan law if the form and meaning of the contract itself indicate the parties' intent to directly benefit that nonparty. Schmalfeldt v. 12

18 North Pointe Ins. Co., 469 Mich. 422, 428 (2003). An intended third-party beneficiary may be a member of a class sufficiently described by the contract. Koenig, 460 Mich. at 680. As explained in the previous subsection, the form and meaning of the consent judgment reveals that the parties intended to benefit an entire class of persons: all students in Detroit Public Schools buildings and facilities. Allen and McBurrows, as members of that class, are therefore intended third-party beneficiaries of the agreement under Michigan contract law. Accordingly, under the authority of Rule 71, they may enforce the consent judgment as nonparties to the original action. Federal courts routinely enforce consent judgments at the behest of intended third-party beneficiaries in cases similar to this one. For example, in Hook v. Arizona Department of Corrections, 972 F.2d 1012 (9th Cir. 1992), a group of prisoners brought a motion to hold the department of corrections in contempt for violating a consent decree governing prison mail regulations. Although the prisoners seeking the contempt order were not parties to the original consent decree, the court held that they could bring the enforcement action under Rule 71 because the consent decree was intended to benefit all Arizona prisoners. Id. at Similarly, in Berger v. Heckler, 771 F.2d 1556, plaintiff-intervenors moved to enforce a consent decree that provided Social Security benefits to certain classes of aliens. The intervenors were not parties to the consent decree, but the court held that Rule 71 authorized them to enforce it because it constituted "a prior order made in their favor." Id. at Additional similar authority from the Third, Seventh, Tenth, Eleventh, and D.C. Circuits as well as the Southern District of Ohio is set forth in the margins below. 2 2 Floyd v. Ortiz, 300 F.3d 1223, 1226 (10th Cir. 2002) (inmate for whose benefit consent decree was entered may seek enforcement of its terms pursuant to Rule 71); Beckett v. Air Line Pilots Ass'n, 995 F.2d 280, (D.C. Cir. 1993) (nonparty trust beneficiaries of consent 13

19 Admittedly, there is case law in the Sixth Circuit stating that consent judgments may not be enforced by nonparties. See Aiken v. City of Memphis, 37 F.3d 1155, 1168 (6th Cir. 1994) (en banc) (citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975)). However, neither Aiken nor Blue Chip Stamps discusses or acknowledges Rule 71, which explicitly gives federal courts authority to enforce an order on the motion of a nonparty for whose benefit the order was entered. At least one district court has distinguished the Sixth Circuit authority on these grounds as well, holding that Aiken and Blue Chip Stamps do not apply in cases where a party properly relies on Rule 71 to enforce a court order. See In re Employment Discrimination Litig., 213 F.R.D. 592, 595 (M.D. Ala. 2003). This court, too, should treat Allen and McBurrows's motion as invoking the explicit authority of Rule 71 and follow the overwhelming majority of federal courts in allowing intended third-party beneficiaries to enforce a consent judgment. 3 decree may enforce it under Rule 71); Barfus v. City of Miami, 936 F.3d 1182, 1187 n.18 (11th Cir. 1991) (dicta recognizing standing of nonparty beneficiaries of consent decree to enforce it under Rule 71); Washington Hosp. v. White, 889 F.2d 1294, 1299 (3d Cir. 1989) (third-party beneficiary of court-ordered stipulation of dismissal has standing to enforce it under Rule 71); South v. Rowe, 759 F.2d 610, 612 (7th Cir. 1985) (current inmate may intervene, as intended third-party beneficiary, to enforce prison conditions consent decree negotiated by former inmate); EEOC v. Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, 139 F. Supp. 2d 512, 518, (S.D.N.Y. 2001) (union members may intervene and enforce consent decree under third-party beneficiary doctrine and Rule 71); Lavapies v. Bowen, 687 F. Supp (S.D. Ohio 1988) ("Under Rule 71, a non-party who establishes standing to proceed as a third-party beneficiary of a settlement agreement or consent decree may pursue enforcement of that agreement or decree."). 3 Most courts refuse to read Blue Chip Stamps as overriding Rule 71 when the latter is properly invoked. See Beckett, 995 F.2d at 288 (declaring that Blue Chip Stamps may not be read to "eviscerate Rule 71 in the context of consent decree enforcements"); Hook, 972 F.2d at 1015 ("Blue Chip Stamps should be read to avoid eviscerating Rule 71"); Berger, 771 F.2d at 1565 (stating that Blue Chip Stamps "was not intended to preclude nonparties from intervening to enforce a consent decree where otherwise authorized by the federal rules of civil procedure"). 14

20 III. THE COURT SHOULD IMPOSE SANCTIONS IN THE FORM OF FURTHER INJUNCTIVE RELIEF, DAMAGES, AND ATTORNEYS' FEES. Upon finding the Detroit Public Schools in contempt of the consent judgment, the court should impose sanctions in the form of "the relief that is necessary to effect compliance with the decree." McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949). Sanctions may therefore include further injunctive relief, compensatory damages, punitive fines, and attorneys fees. See Glover v. Johnson, 199 F.3d 310 (6th Cir. 1999); TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir. 1983); Roman v. Korson, 307 F. Supp. 2d 908, 919 (W.D. Mich. 2004). "The private or public rights that the decree sought to protect are an important measure of the remedy." McComb, 336 U.S. at 191. The court should order additional injunctive relief to give effect to the consent judgment. See Roman, 307 F. Supp. 2d at 919. In this case, the court may order Detroit Public Schools to take specific actions at specific times in order to put an end to the unlawful searches currently taking place. For example, the court may order retraining of all school security officers and require that retraining take place within 60 days. The court may also appoint an independent monitor, also at the Defendant's expense, to investigate student search practices at all Detroit schools and recommend additional remedies to bring the schools into compliance with the consent judgment. At the very least, the court should order the Detroit Public Schools to certify what specific actions are being taken to put an end to the unlawful searches documented in this case. Sanctions should also include monetary damages "to compensate for the injuries resulting from the noncompliance." In re Jaques, 761 F.2d at (citations omitted). In this case, students and their personal effects were searched without reasonable suspicion in violation of the Fourth Amendment and the consent judgment. Unreasonable searches and seizures are routinely 15

21 the subject of claims for damages in state and federal court. Even in breach of contract claims, Michigan courts authorize monetary awards for non-commercial harm such as mental anguish and emotional distress where the invasion of important personal rights are at issue. See Stewart v. Rudner, 349 Mich. 459, (1957). Finally, the court should order Detroit Public Schools to pay costs, expenses, and attorneys' fees. This sanction is appropriate both as a remedy for contempt, TWM Manufacturing Co., 722 F.2d at 1273; Hutto v. Finney, 437 U.S. 678, 689 n.14 (1978), and pursuant to the feeshifting provision of 42 U.S.C. 1988, see Glover v. Johnson, 934 F.2d 703, 716 (6th Cir. 1991). 4 CONCLUSION For the reasons stated above, Plaintiff and proposed Plaintiff-Intervenors request that the court declare Defendant Detroit Public Schools in contempt of the consent judgment and impose appropriate sanctions. Respectfully submitted, /s/ Daniel S. Korobkin Daniel S. Korobkin (P72842) Mark P. Fancher (P56223) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) It should be noted that the court may also impose monetary sanctions that are "not intended as compensatory damages, but as a punitive measure designed to force the [Defendant] finally to comply with the court's lawful orders." Glover, 199 F.3d at 313. The court may conclude that Detroit Public Schools' "recalcitrance" justifies a hefty fine in this case. See id. In determining the amount of a fine, the court may consider Detroit Public Schools' continued violation of the consent judgment even after undersigned counsel brought the misconduct to its attention and the unlawful searches continued unabated. See Gnesys, Inc. v. Greene, 437 F.3d 482, 493 (6th Cir. 2005) (contemnor's state of mind relevant to consideration of sanctions). 16

22 /s/ Amos E. Williams with consent Amos E. Williams (P39118) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 615 Griswold, Suite 1115 Detroit, MI (313) Attorneys for Plaintiffs and Proposed Plaintiff-Intervenors Dated: December 15,

23 CERTIFICATE OF SERVICE I hereby certify that on December 15, 2009, I: (1) electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the following: Krystal A. Crittendon Kary L. Moss Michael J. Steinberg Mark P. Fancher Amos E. Williams critk@law.ci.detroit.mi.us kmoss@aclumich.org msteinberg@aclumich.org mfancher@aclumich.org aewpc@aol.com (2) served the foregoing paper on the following non-ecf attorneys of record by first class mail: Lionel C. Sims, Jr Detroit Public Schools 3011 W. Grand Blvd. Suite 1800 Detroit, MI Joseph G. Sullivan Detroit Board of Education 1800 Fisher Building 3011 W. Grand Boulevard Detroit, MI (3) served the foregoing paper on the following attorney by and had a copy handdelivered to his address: Jason Harcourt Harrison (P62765) Assistant General Counsel Detroit Public Schools Office of General Counsel nd Avenue, Suite 1800 Detroit, MI jason.harrison@detroitk12.org /s/ Daniel S. Korobkin Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI (313) dkorobkin@aclumich.org