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UNITED STATES of America, Plaintiff,
v.
STATE OF TENNESSEE, Don Sundquist, Governor of the State of Tennessee; Marjorie Nelle Cardwell, Commissioner, Tennessee Department of Mental Health and Mental Retardation; Max Jackson, Superintendent, Arlington Developmental Center, Defendants.
People First of Tennessee, on behalf of its members,
Carl Beard, by his next friend Wendy Kurland,
Sandra Howard, by her next friend Elizabeth Henderson,
Herman Walter Runions, by his next friend Sarah R. Todd,
Harvey Richard Watson, by his next friend Jodie Wheeler,
Clarence Wilson, by his next friend Wilma Williamson,
Keith Collins, by his mother and next friend, Joyce Cisco,
Stevelyn Danieal Tucker, by her parents and next friends, Carolyn and Steve Tucker,
Parent-Guardian Association of Arlington Developmental Center, Intervenors.
United States District Court, W.D. Tennessee.
*1293 *1294 *1295 Verlin Hughes, William Maddox, Robert Bowman, Laurie Weinstein, U.S. Department of Justice, Special Litigation Section, Washington, D.C., for Plaintiff.
Earle Schwarz, Waring Cox, Memphis, TN, Edward Connette, Lesesne & Connette, Charlotte, NC, Jack Derryberry, Ward, Derryberry & Thompson, Nashville, TN, Judith Gran, Frank Laski, Public Interest Law Center of Philadelphia, Philadelphia, PA, William F. Sherman, Law Offices of William F. Sherman, Little Rock, AR, Kimberly Dean, Office of the Attorney General, Nashville, TN, Kathleen Maloy, Office of the Attorney General, Nashville, TN, for Defendants.
ORDER ON DEFENDANTS' COMPLIANCE WITH EMERGENCY PROVISIONS AND ON DEFENDANTS' MOTIONS TO FIND PARTIAL COMPLIANCE AND LIFT SANCTIONS
McCALLA, District Judge.
INTRODUCTION
This case is before the Court for a determination regarding compliance by the State of Tennessee, Governor Sundquist, Commissioner Cardwell, and Superintendent Jackson with the provisions of the Emergency Order of June 30, 1995 (hereinafter "Emergency Order"), and the Preliminary Injunction of July 10, 1995 (hereinafter "Preliminary Injunction") (also hereinafter "Orders"). The question of compliance arises in the context of a contempt finding by the Court at a hearing on August 9, 1995, regarding five provisions of the Orders. Contempt Order, docketed August 24, 1995. Since that finding, defendants have filed two motions for a determination of partial or complete compliance as to four provisions of the Orders.
Because the context in which the Orders and the contempt finding arose is important for determining whether or not the defendants are now in compliance (i.e. have purged themselves of contempt), and because a discussion of the factual background of the contempt finding and a thorough discussion of the proof presented at a hearing on October 10-11, 1995, may be beneficial to all the parties in framing their future responses and to the defendants in conforming their conduct to achieve compliance, the matters before the Court will be discussed in some detail. Factors of importance in resolving the issues before the Court include: (1) the degree of participation by the State of Tennessee in formulating the remedial provisions, and (2) the effort (or lack of effort) demonstrated by the State of Tennessee in *1296 attempting to achieve the specific provisions of the Orders.
Set out below are: (1) how the case and this issue arose, (2) the State of Tennessee's history of noncompliance, (3) the applicable law, (4) the positions of the parties, the evidence presented on October 10, 1995, and the Court's findings regarding the effect of sanctions, and (5) the Court's findings regarding purgation of contempt, compliance/noncompliance with the remedial provisions of the Emergency Order and Preliminary Injunction, and appropriate future remedial sanctions.
I. BACKGROUND HOW THE CASE AND THIS ISSUE AROSE
The Arlington Developmental Center is a state operated, residential mental retardation facility housing 383[1] developmentally disabled persons located in Arlington, Tennessee. ADC's population consists primarily of individuals currently assessed as severely or profoundly retarded or developmentally disabled, some of whom have associated physical handicaps, and mental or behavioral problems. ADC is an Intermediate Care Facility for the Mentally Retarded ("ICFMR"). The federal government pays sixty-six per cent of the costs of operation of this facility, with the State of Tennessee paying the remaining thirty-four per cent.[2] Tr., Hr'g, April 10, 1995, at 153-154.
The United States and the State of Tennessee have been in dispute regarding conditions at ADC since 1990. In 1991, the United States Department of Justice ("DOJ"), as part of an investigation of possible statutory and constitutional violations concerning the resident population at ADC, issued a findings letter citing deficiencies to the State of Tennessee. The State of Tennessee refused to correct the deficiencies cited in the DOJ findings letter. On January 21, 1992, the United States filed this action against the State of Tennessee and Arlington Developmental Center, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. §§ 1997-1997j (1988).
The trial of this case took place over a two month period beginning on August 30, 1993. On November 22, 1993, the Court issued an oral opinion and, on February 18, 1994, filed Supplemental Findings of Fact. For the additional procedural and factual history of this case, see Contempt Order, docketed August 24, 1995, at 1-16. In the oral opinion and Supplemental Findings, the Court held that conditions at ADC were in violation of the rights of its residents under the United States Constitution. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).[3]
*1297 Concurrent with the oral ruling of November 22, 1993, the Court entered a preliminary injunction and established a schedule for submittal of a remedial plan by the State of Tennessee. As a result of that procedure, the United States and the State of Tennessee negotiated a plan to remedy the unconstitutional conditions at ADC. On September 2, 1994, the parties submitted a Stipulated Remedial Order to settle the case. As part of the settlement, the United States and the State of Tennessee agreed to the appointment of a Monitor to assist and oversee the State's compliance with the agreed-upon remedial plan. The Court, with the concurrence of both parties, appointed Linda R. O'Neall, Ph.D., to perform that function.[4]
II. HISTORY OF NONCOMPLIANCE
The Remedial Plan negotiated by the State of Tennessee contains a "schedule of implementation" setting out the timeframes in which each of the remedial actions agreed to by the State was to be completed.[5] A large number of items were to be commenced within the first ninety days of implementation of the plan. Accordingly, the Monitor conducted the First Semi-Annual Compliance Review at ADC from November 28, 1994, through December 2, 1994. Based on this review, the Monitor issued a compliance report to the parties on March 9, 1995. The report then went through a comment and response period and was ultimately the subject of a compliance hearing on April 10, 1995.
At the April 10, 1995, hearing, the Court determined that the State had achieved full compliance with only five of the sixty-five self-imposed deadlines within the first ninety day period. In anticipation of this finding of noncompliance, the State, after negotiation with the United States, proposed a "Plan of Correction" that was submitted to the Court as Exhibit 6 to the hearing of April 10, 1995. The introduction to the Plan of Correction submitted by the State of Tennessee provided as follows:
The Monitor's First Semi-Annual Compliance Review identified a number of areas in which the defendants have failed to achieve full compliance with the provisions of the Remedial Order, in particular, with respect to the areas of protection from harm, seizure management, and feeding/nutritional management. In order to appropriately prioritize and focus the corrective remedial measures to be taken by the defendants, the following Plan of Correction has been developed.
Plan of Correction, Ex. 6, Hr'g, April 10, 1995.
The Plan of Correction supplements the Stipulated Remedial Order and, like the Remedial Plan, also contains a schedule for completion of specific actions. For example, under the individual case management section relating to seizure management, nurses were to be assigned individual resident case-loads by no later than April 20, 1995. Additionally, *1298 under paragraph II.C. of the Plan of Correction, the State of Tennessee was to have 136 nursing positions "on staff" by July 1, 1995. Plan of Correction, Ex. 6, ¶ II.C., Hr'g, April 10, 1995. In that regard, the State made the following commitment:
Defendants will make ongoing efforts to fill these positions with Arlington nurse employees, rather than contract nurses.
Id. (emphasis supplied). At the April 10, 1995, hearing, Linda Ross, an Assistant Attorney General for the State, asked Gaye A. Hansen, the State Facilitator of the Remedial Order at ADC, the following clarifying question regarding paragraph "II.C.":
Q. Subparagraph C, nurse staffing, would you what is the status of the 136 nursing positions?
A. Right. Well, although the plan of correction indicates that they will have approval on those positions by April the 14th, 1995, Arlington has, in fact, received approval on those provisions, got that approval at the end of last week, so they can now immediately pursue the hiring of qualified nurses. That would be inclusive of LPNs and RNs in order to fill those slots. In the interim, they will fill them with agency nurses, contract nurses, but it is understood that contract nurses will not be assigned case loads of persons with seizure disorders; that they will use full-time nurses for that purpose.
Tr., Hr'g, April 10, 1995, at 68 (emphasis supplied).
Additionally, on April 10, 1995, the State represented to the plaintiff and to the Court that:
We do have at this time a verbal agreement with a developmental disability physician with a June 1 start date.
Id. at 29 (Gaye A. Hansen, Facilitator of the Remedial Order at ADC). Ms. Hansen testified that "I ... feel that this plan of correction has a great chance for success." Id. at 81. The new deadline for retention of a developmental medicine physician and the Plan of Correction[6] proposed by the State of Tennessee were accepted by the Court.
However, the record supports the conclusion that, between April 10, 1995, and June 30, 1995, the State abandoned its goal of achieving compliance with its own Stipulated Remedial Order and its own Plan of Correction. The State effectively ceased its efforts to obtain a developmental physician and recruit nurses,[7] the number of primary care physicians (including Medical Director) decreased to two (well below the minimum requirement and the number previously anticipated by the State), and conditions at ADC deteriorated even further. Tr., Hr'g, June 30, 1995, at 7-22; Contempt Order, docketed August 24, 1995, at 6-7.
Several patient deaths and the second compliance inspection by the Monitor and her Developmental Medicine Expert on June 27-30, 1995, led the United States and the Monitor to request an Emergency Order on June 30, 1995. The United States and the Monitor requested that the order require the State to rectify certain fundamental services which it had allowed to deteriorate between April 10, 1995, and June 30, 1995, and require the State to employ within the near *1299 future certain professional staff, mandated by the Remedial Order and the Plan of Correction. The State acknowledged that the facts constituting an emergency existed, and agreed to the Emergency Order requirements.[8] Tr., Hr'g, June 30, 1995, at 3, 15-16, 30. During the June 30, 1995, telephone hearing, the State of Tennessee declared that it "had no quarrel with the wisdom of what was being suggested," since in "virtually all instances ... [the State has] begun to take steps to put those measures in place." Id. at 15.
A hearing to determine whether the emergency continued to exist and whether the State was in compliance with the Emergency Order resulting from the June 30, 1995, telephone conference was scheduled for July 10, 1995. At that hearing it was established that the State was not in compliance with the Emergency Order. Moreover, in contrast to Ms. Hansen's April 10, 1995, testimony regarding a "great chance of success," Tr., Hr'g, April 10, 1995, at 81, Commissioner Cardwell offered the following testimony regarding her July 5, 1995, conversation with Governor Sundquist:
Q. And could you inform the Court what the context what was discussed in that in terms of what is going to be done about Arlington, what the governor's position is and what actions are going to be taken?
A. The governor is very anxious to know whether or not Arlington can be fixed and the governor would like to know what our plans are for the future.
Q. What in response to those two questions did you answer to the governor?
A. I told him I was not sure of the first one, as to whether or not Arlington could be fixed.
Tr., Hr'g, July 10, 1995, at 101 (Commissioner Cardwell) (emphasis supplied).
At the end of the July 10, 1995, hearing, additional time to achieve compliance with the Emergency Order and Preliminary Injunction provisions was granted, and a compliance hearing was scheduled for August 9, 1995. At the hearing on August 9, 1995,[9]*1300 clear and convincing proof was presented by the United States that the State of Tennessee still was not in compliance with five of the provisions of the Emergency Order and Preliminary Injunction. The United States insisted, in closing argument, that the State of Tennessee be found in contempt based on its failure to comply with remedial provisions to which it had agreed. The United States left the sanctions to be imposed to the discretion of the Court.
Based on the evidence presented on August 9, 1995, it was uncontrovertible that the State was not in compliance and had failed to perform as it had agreed. Moreover, the State admitted that it did not even have a current plan to implement the various remedial provisions to which it had agreed. Tr., Hr'g, August 9, 1995, at 46 11. 15-19 (Commissioner Cardwell). The Court, therefore, found the State in contempt and ordered minimal coercive and remedial sanctions to assure that the State would accomplish the five emergency provisions which were agreed to on June 30, 1995, but which had not been achieved by the State. Contempt Order, docketed August 24, 1995.
The financial sanction imposed was, to some degree, symbolic[10] (one thousand dollars ($1,000.00) per day per violation) since the ADC budget is relatively large and sixty-six (66) percent of that budget is federally funded. Tr., Hr'g, April 10, 1995, at 190 11. 2-4 (Durbin); Tr., Hr'g, April 10, 1995, at 154 11. 3-5 (Martins); see note 2 supra. To directly address emergency matters, a coercive sanction, therefore, was imposed on the Tennessee Commissioner of Mental Health and Mental Retardation. Specifically, the Commissioner was required to spend every fourth weekend at ADC until the State was in full compliance with the five emergency remedial provisions to which it had agreed on June 30, 1995, but which, as of August 9, 1995, it had not done.
On August 9, 1995, the Court found the State had failed to comply with the following five paragraphs: paragraph 1 (retention of a developmental physician), paragraph 2 (performance of duties of a developmental physician), paragraph 5 (retention of a full-time psychiatrist), paragraph 7 (entry by Arlington Developmental Center into contracts with two developmental nurse consultants), and paragraph 8 (hiring of 136 nurses as set out in the April 10, 1995, Plan of Correction).[11]
III. APPLICABLE LAW
A. CIVIL CONTEMPT
Federal courts have inherent powers to assure the administration of justice. See United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812). The most prominent among these inherent powers is the contempt sanction, "which a judge must have and exercise in protecting the authority and dignity of the court...." Roadway Express v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980) (quoting Cooke v. United States, 267 U.S. 517, 539, 45 *1301 S.Ct. 390, 395-96, 69 L.Ed. 767 (1925)). "[T]he power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law." Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911); see also 18 U.S.C. § 401 (1988) ("A court of the United States shall have the power to punish, by fine or imprisonment, at its discretion, such contempt of its authority ... [as] [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command").[12] Civil contempt is the power of the court to impose sanctions to coerce compliance with its orders.[13]Hicks v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 1429-30, 99 L.Ed.2d 721 (1988); Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966); Gompers, 221 U.S. at 442, 31 S.Ct. at 498. Both imprisonment and fines, when coercive or conditional, are legitimate civil contempt sanctions. See, e.g., Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535 (imprisonment); United States v. Bayshore Assoc., Inc., 934 F.2d 1391, 1400 (6th Cir. 1991) (fines).
B. PURGING CONTEMPT
1. What Is It and What Is Its Purpose?
Once subject to contempt for failure to comply with a court order, the contemnor must be afforded an opportunity to purge itself of the contempt. International Union, United Mine Workers of Am. v. Bagwell, ___ U.S. ___, ___, 114 S.Ct. 2552, 2558, 129 L.Ed.2d 642 (1994); Shillitani, 384 U.S. at 371, 86 S.Ct. at 1536. Compliance with that court order will purge the contempt and free the contemnor from coercive sanctions.[14]See Bayshore Assoc., 934 F.2d 1391, 1400 (6th Cir.1991) ("[O]nce the defendant performs the act required by the court, he must be released"). The determination of compliance, like all decisions relating to contempt, is at the discretion of the court. See Peppers v. Barry, 873 F.2d 967, 968 (6th Cir.1989); National Labor Relat. Bd. v. Aquabrom, Division of Great Lakes Chemical Corp., 855 F.2d 1174, 1187 (6th Cir.1988) ("The only limitation [on a court's contempt power] is that in a civil proceeding, the sanctions must not be penal in nature, but must be coercive or remedial"). In making its determinations on compliance and the appropriateness of continued contempt sanctions, a court should be guided by the remedial purpose of contempt. See Aquabrom, 855 F.2d 1174, 1187 (6th Cir.1988) ("[The court's power to coerce actions to purge contempt is] the power of a court to grant the relief that is necessary to effect compliance with its decree. The measure of the [c]ourt's power in civil contempt proceedings is determined by the requirements of full remedial relief") (citing *1302 McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S.Ct. 497, 500-01, 93 L.Ed. 599 (1949)).
2. Standard for Judging Compliance
The Sixth Circuit test for judging compliance is whether the contemnors "took all reasonable steps within their power to comply with the court's order." Glover v. Johnson, 934 F.2d 703, 708 (6th Cir.1991) (quoting Peppers, 873 F.2d at 969). Precisely what "all reasonable steps within [the contemnor's] power" are varies from case to case according to the requirements of the order and the particular circumstances of the case. In every case, however, a contemnor must have the ability to comply with the order before failure to comply can form the basis of contempt.[15]McNeil v. Director, Patuxent Institution, 407 U.S. 245, 251, 92 S.Ct. 2083, 2087-88, 32 L.Ed.2d 719 (1972); Maggio v. Zeitz, 333 U.S. 56, 72, 68 S.Ct. 401, 409, 92 L.Ed. 476 (1948). Other than a showing of the impossibility of compliance, nothing short of substantial compliance, as measured under the Peppers test, will suffice to purge contempt for noncompliance with a court order. The Sixth Circuit has explicitly rejected the contention that a good faith effort is sufficient, Peppers, 873 F.2d at 968, TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir.1983), and has not adopted the less demanding diligent efforts test favored in other circuits.[16]
Courts have been particularly unsympathetic to purported excuses for less-than-substantial compliance where the contemnor has participated in drafting the order against which compliance is measured. See, e.g., Glover, 934 F.2d at 708-09 (finding state prison officials in contempt for failing to abide by order consisting of negotiated settlement between the parties); see also Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 632-33, 107 L.Ed.2d 644 (1990) (upholding finding of contempt against city that had failed to take action required by consent decree). A party participating in drafting an order does so with an understanding of what it reasonably can accomplish. When that party subsequently fails to live up to the particulars of the order, it is more difficult for a court to excuse that failure than if the order had been court imposed.
C. CONTEMPT SANCTIONS FOR NONCOMPLIANCE WITH A COURT ORDER
1. Options Available to the Court
Once a contemnor has been found in noncompliance, such that contempt is not purged, the court has the option of continuing the sanctions already in place or imposing new sanctions determined to be more effective in carrying out the underlying remedial purpose. This choice, like all decisions relating to contempt sanctions, is at the court's discretion. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275-76, 28 L.Ed.2d 554 (1971). *1303 The range of sanctions available to courts include fine, imprisonment, receivership, and a broader category of creative, non-traditional sanctions. See 42 U.S.C. § 401 (1988) (authorizing "fine or imprisonment"); Hicks, 485 U.S. at 632, 108 S.Ct. at 1429-30 (fines and imprisonment); Shillitani, 384 U.S. at 370-71, 86 S.Ct. at 1535-36 (imprisonment); Gompers, 221 U.S. at 441, 31 S.Ct. at 498 (fines and imprisonment); Reed v. Rhodes, 642 F.2d 186 (6th Cir.1981) (receivership and appointment of judicial administrator); Glover v. Johnson, 934 F.2d 703, 707-15 (appointment of a special administrator, which was not among the "traditional civil contempt sanctions"). The choice of a sanction also necessitates a decision on how severe that particular sanction should be.
2. Determining Contempt Sanctions Selection and Severity
There are two guiding principles for the selection of civil contempt sanctions. First, the sanction must be coercive or remedial rather than punitive. National Labor Relat. Bd. v. Aquabrom, Division of Great Lakes Chem. Corp., 855 F.2d 1174, 1187 (6th Cir.1988). The contemnor is not simply being punished for past behavior, but rather encouraged to shape its behavior to comply with the order based on the undesirability of suffering the sanction. The goal of sanctions, then, is to coerce the contemnor to act in such a way that the remedial purposes of the order are furthered. When using civil contempt in such a way, the court "must then consider the character and magnitude of the harm threatened by the continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired." United States v. United Mine Workers of Am., 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947). Second, particularly when imposing sanctions against state officials, the court should select the least intrusive sanction that the court determines will coerce the contemnor to comply. Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 632-33, 107 L.Ed.2d 644 (1990); Kendrick v. Bland, 740 F.2d 432 (6th Cir.1984). In any given case, there may be many sanctions that will coerce compliance and further the remedial purpose of the order, but a court does not automatically impose the most severe and intrusive. There are two competing concerns in this determination: intrusiveness and effectiveness. Determining the relative intrusiveness of different possible sanctions in a particular case is a common sense inquiry. See, e.g., Hutto v. Finney, 437 U.S. 678, 691, 98 S.Ct. 2565, 2573-74, 57 L.Ed.2d 522 (1978) (noting that a fine is a less intrusive sanction than imprisonment); Glover v. Johnson, 855 F.2d 277, 287 (6th Cir.1988) (suggesting that, while the court's appointment of a judicial administrator in the instant case was too intrusive, using a court monitor to enforce its orders would be permissible); Reed v. Rhodes, 642 F.2d 186 (6th Cir.1981) (approving the appointment of an administrator to oversee compliance with court order but disapproving receivership as too intrusive in the instant case). Determining what sanctions will be effective to coerce compliance involves a court's discretion and judgment based on an understanding of the case and the contemnor, particularly with respect to the nature of prior noncompliance.
Given that contempt sanctions are within a court's discretion and that there is no simple formula for assigning a particular sanction to a given case, a court clearly can consider a contemnor's history of compliance or noncompliance in shaping an appropriate contempt sanction. Compare Glover v. Johnson, 934 F.2d 703, 715 (6th Cir.1991) (noting that a "persistent pattern of obfuscation, hyper-technical objections, delay, and litigation by exhaustion on the part of the defendants to avoid compliance with the letter and spirit of the district court's orders" made the sanction of appointing an administrator justified where it had been found too intrusive three years earlier) with Glover v. Johnson, 855 F.2d 277, 287 (6th Cir.1988). While there is no intent requirement for civil contempt, the issue of the contemnor's willfulness in not complying with court orders may be taken into consideration in determining the extent of the contempt sanction. TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir.1983); Rogers v. Webster, 776 F.2d 607, 612 (6th Cir.1985). The contemnor's relative intent clearly is relevant in *1304 gauging how severe a sanction is necessary in a given case. See United States v. United Mine Workers of Am., 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947) ("[The court] must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired"); see also United States v. Work Wear Corp., 602 F.2d 110, 116 (6th Cir.1979) (upholding the district court's denial of a motion to reduce a civil contempt fine despite the government's recommendation for reduction where the contemnor had made a "conscious business decision" not to comply, even though the district court had granted an extension to give the contemnor time to come into compliance). When a contemnor's noncompliance has been based in part on conscious decisions to take less than "all reasonable steps within their power to comply," a court clearly would be entitled to take such into consideration in shaping contempt sanctions.
IV. THE OCTOBER 10-11, 1995, HEARING
A. POSITIONS OF THE PARTIES
On October 10-11, 1995, the Court held a hearing on defendants' compliance with the remedial provisions of the June 30, 1995, Emergency Order and July 10, 1995, Preliminary Injunction. See Appendices 4, 5. Prior to the commencement of the hearing, defendants filed two motions for findings of partial compliance. Defendants' Motion for Finding of Partial Compliance, docketed August 18, 1995; Defendants' Second Motion for Finding of Partial Compliance, docketed August 25, 1995. In their initial motion for finding of partial compliance, defendants asserted that they were now in compliance with paragraphs 5 and 8. Specifically, defendants asserted that they had retained a full-time psychiatrist as of August 14, 1995, and were, as of that date, in full compliance with paragraph 5. See Compliance Table, Appendix 7. Regarding compliance with paragraph 8, the defendants, in their first motion, asserted that as of August 11, 1995, 136 nurses were on the ADC payroll and that, therefore, they were in compliance with that provision.
In their second motion for a finding of partial compliance, defendants asserted that they were in compliance with paragraphs 1 and 7 of the Emergency Order and Preliminary Injunction and that compliance was achieved on July 21, 1995. Specifically, defendants asserted that effective July 21, 1995, they had retained the services of Dr. Ricardo Causo, a Developmental Medicine Physician, and that effective August 23, 1995, ADC had executed consulting contracts with two developmental nurses as required under paragraph 7. Defendants concede that they have not complied with paragraph 2 of the Emergency Order and Preliminary Injunction. See Appendices 4, 5 (¶ 2, Duties of Developmental Physician); see Compliance Table, Appendix 7. Defendants asserted that they were in compliance with all other provisions of the Emergency Order and Preliminary Injunction.
At the outset of the October 10-11, 1995, hearing, the United States agreed that the defendants were in compliance with paragraphs 5 (full-time psychiatrist) and 7 (two developmental nurse consultant contracts). The United States took the position that defendants were not in compliance with paragraphs 1 (Developmental Medicine Physician) and 2 (Duties of Developmental Medicine Physician) and that there were questions regarding the date or fact of compliance with paragraph 8 (136 nurses). The United States also urged that the defendants had not purged themselves of contempt and, because of the defendants' history of failing to perform absent imposition of sanctions, the remedial and coercive sanctions imposed in the August 9, 1995, Contempt Order remained necessary in order to compel compliance. Tr., Hr'g, October 11, 1995, at 238-241.
The intervenor class representative, People First, agreed with the United States that the defendants were not in compliance with paragraphs 1, 2, and 8, and that the defendants were in compliance with paragraphs 5 and 7. Regarding paragraph 8, the intervenor People First argued that the plain language of the April 10, 1995, Plan of Correction, as adopted in the June 30, 1995, Emergency Order and the July 10, 1995, *1305 Preliminary Injunction required that the defendants "hire to the capacity of 136 nurses as called for by the Plan of Correction...." Emergency Order, June 30, 1995, ¶ 6. Intervenor People First argued that the language is unambiguous and does not provide for the use of agency or contract nurses. Intervenor People First urged the Court to establish a nurse turnover goal (to reduce turnover to five percent) and a constant caseload requirement, pursuant to paragraph 12 of the Preliminary Injunction. Tr., Hr'g, October 11, 1995, at 242-243.
The intervenor Parent-Guardian Association took no position regarding compliance and urged that any sanction imposed be crafted so as not to adversely affect employee morale at ADC. Tr., Hr'g, October 11, 1995, at 244-246.
B. EVIDENCE PRESENTED ON OCTOBER 10, 1995
The State of Tennessee called seven witnesses[17] and introduced twenty-eight exhibits at the October 10, 1995, hearing. The United States called only one witness, Commissioner Cardwell. A discussion of the testimony and exhibits follows.
1. Grunow
Barbara Grunow, Director of Human Resources Development for the Tennessee Department of Mental Health and Mental Retardation, testified that she is responsible for "overall assistance to our ten facilities with recruitment for our professional staff persons, and most of all our ... health care professionals." Tr., Hr'g, October 10, 1995, at 12. Ms. Grunow has "responsibility for identifying issues that are relevant to ret