Frew v. Hawkins - Oral Argument - October 07, 2003 Page 22

Frew v. Hawkins

Media for Frew v. Hawkins

Audio Transcription for Opinion Announcement - January 14, 2004 in Frew v. Hawkins

Audio Transcription for Oral Argument - October 07, 2003 in Frew v. Hawkins

Susan Finkelstein Zinn:

That... that burden of proof gives the district court a full record to base its decision on about whether or not to modify the decree and it also creates an adequate record for appellate review of those questions, which is not present at the moment.

Indeed--

Antonin Scalia:

Would a change in administrations be a change of circumstances that... that justifies 60(b) being invoked?

Susan Finkelstein Zinn:

--No.

Indeed--

Anthony M. Kennedy:

Is there then a way to deal with the problem that Justice Scalia raised, which is a serious problem I think?

Susan Finkelstein Zinn:

--If a change in... in administrations results in--

Stephen G. Breyer:

Well, what they do is they go examine this decree and there all kinds of things in the decree that may be very nice and really helpful to people, but actually the legislature would never pass them, and they have nothing to do with Federal law.

Now, what he's looking for is a remedy for that situation.

I'm not saying your decree has that problem.

Susan Finkelstein Zinn:

--Yes.

Stephen G. Breyer:

But it's a known problem, and what's your solution to it?

Susan Finkelstein Zinn:

As has been pointed out, Rufo does create a more flexible standard for modification when consent decrees are involved in institutional reform litigation of this type.

That flexibility, though, does not sink down to the level of mere inconvenience.

So just because it becomes inconvenient for a successor administration to comply with the consent decree is not justification for modification.

But if the... the new State officials can bring legitimate concerns to the district court's attention, modification may be appropriate.

Unless there are further questions, there's no further reply.

William H. Rehnquist:

Thank you, Ms. Zinn.

The case is submitted.