In large class action suits when courts find constitutional violations they sometimes order large-scale changes. This is especially the case in institutional reform litigation that typically involves prisons. To ensure that court orders are being carried out and to measure progress, which sometimes takes years and often encounters resistance and hostility from prisoncrats, the courts appoint special masters to oversee the changes and offer independent progress reports and findings of fact to the court. 42 U.S.C. § 1988 is a federal statute which authorizes federal courts to shift the costs of attorney fees and litigation expenses to the losing party, i.e. the government. The fees for special masters are typically paid by the defendants under § 1988.

The Arizona DOC has been embroiled in several major class action suits challenging various aspects of the prison system, including court access, medical care and more. Likewise, current Arizona prison director Sam Lewis has also been challenging past consent decrees on various issues previously litigated and won by prisoners. To monitor DOC compliance with previous court orders federal courts have appointed several special masters. The special masters are typically people with experience in prisons.

This is the background for Arizona governor Fife Symington and the legislature's declaration of war on the federal judiciary. In his January, 1995, state of the State address Symington proposed legislation that would "outlaw" the payment of Arizona state funds to federally court appointed special masters in prison cases. Three months later the legislature passed the legislation.

Alice Bendheim, a Phoenix lawyer with the ACLU who represents prisoners in one of the class action suits said that she or the special master may seek a contempt ruling against the state if payments to the special masters are cut off. Kurt Davis, a Symington aide, joked, "who do they arrest? If they want to do it right, they have to serve subpoenas on the entire legislature."

Davis is a Symington appointee to the "Constitutional Defense Council (CDC)," a rather cynically named organization considering that its main purpose is to explore and implement strategies by which Symington and his ilk can defy the US constitution. Symington and his Corrections Director Sam Lewis, want free reign to turn Arizona prisons into fascist concentration camps beyond the reach of federal court (and constitutional) scrutiny. The three member CDC was given $1 million by the AZ state legislature to wage a legal battle against the federal government and the US constitution. The panel selected air and water quality regulations and federal court intervention in the prison system as its first areas of focus, Davis said.

Symington, when railing against the federal judiciary and federal regulations, characterizes the issue as one of "state's rights." This is the same catch phrase often invoked by George Wallace and the other Southern segregationists who opposed efforts by the federal judiciary to end Jim Crow laws.

Symington has focused much of his ire on US district court judge Carl Muecke. At one point Symington issued an angry call for Muecke's impeachment. But because federal judges can only be impeached for high crimes and misdemeanors, the governor was forced to back down after a few days.

Under the supremacy clause of the US constitution Symington is going to lose this battle. Namely, until Congress repeals or modifies § 1988 the state has to pay the fees it is assessed in implementing court orders. Even the legislature realizes this, its sponsor Ernie Baird said "We want to find out if any court in the land will agree with us and will say that this judge has gone too far." Of course, if saving money were even an issue here the state wouldn't be violating prisoners' rights and when found in violation of prisoners' rights would simply comply with the court order rather than try to put itself beyond constitutional scrutiny. The special masters are paid about $144,000 a year to monitor prison conditions in three class action suits.

On August 25, 1995, attorneys representing the prisoners in two separate class action suits, one dating from 1973 and the other from 1984, filed motions asking that DOC Director Sam Lewis be held in contempt for refusing to pay the special masters in these cases. The law signed by Symington went into effect on July 13, 1995, but its impact wasn't felt until August 15 when the masters were due to be paid. The contempt motion asks that Lewis be fined $1,000 a day for each day the masters are not paid.

The Constitutional Defense Council has appeared in court on Lewis's behalf and is arguing that the federal court cannot compel payment of the fees because they are banned by state law. They argued that the eleventh amendment bars the expenditure of state funds by federal courts. Needless to say, there is little merit to this argument because Congress can override a state's Eleventh amendment immunity from suit, and § 1988 did just that. Andrew Gordon, one of the prisoners' attorney said, "They can shuck and jive all they want, but the court is going to order the state to pay all the fees. They're just making this stuff up as they go along." The contempt motions will be ruled upon by judge David Ezra, a visiting federal judge from Hawaii.

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