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Harris v. Pernsley

argued: March 3, 1987.

MARTIN HARRIS, ALBERT ANTHONY, ORLANDO X. MCCREA, TYRONE GLENN, CARLOS ROYSTER, AMIN ABDULLAH, KHALID ALLAH MUHAMMAD, AND ARNOLD RUTICK, CHARLES OAKES, EMANUEL GARDNER,
v.
IRENE PERNSLEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF HUMAN SERVICES OF THE CITY OF PHILADELPHIA, ROYAL L. SIMS, REV. ALBERT CAMPBELL, LABORA BENNETT, JAMES BARBER, MARK MENDEL, DONALD PADOVA, EACH INDIVIDUALLY AND IN HIS OR HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE PHILADELPHIA PRISON SYSTEM, DAVID S. OWENS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE PHILADELPHIA PRISON SYSTEM, GUETON CURIONE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS WARDEN OF HOLMESBURG PRISON, PHILLIP DUKES INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS WARDEN OF THE DETENTION CENTER, JOHN DAUGHEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS WARDEN OF THE HOUSE OF CORRECTIONS, RODNEY D. JOHNSON, INDIVIDUALLY, LEO C. BROOKS, INDIVIDUALLY, JAMES S. WHITE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MANAGING DIRECTOR OF THE CITY OF PHILADELPHIA, WILLIAM J. GREEN, INDIVIDUALLY, HON. WILSON GOODE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR OF PHILADELPHIA, CITY OF PHILADELPHIA, JAY C. WALDMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS GENERAL COUNSEL FOR THE COMMONWEALTH OF PENNSYLVANIA, RONALD J. MARKS, INDIVIDUALLY, GLEN JEFFES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS; RONALD D. CASTILLE, DISTRICT ATTORNEY OF PHILADELPHIA COUNTY, PROPOSED INTERVENOR, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania, Philadelphia, D.C. Civ. No. 82-1847.

Author: Seitz

Before: GIBBONS, Chief Judge, SEITZ, and GARTH, Circuit Judges.

Opinion OF THE COURT

SEITZ, Circuit Judge.

Ronald Castille, the District Attorney of Philadelphia County, appeals the orders of the district court denying his motion to intervene as of right and approving the settlement agreement reached by the parties in this prison conditions litigation. This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 (1982).

I.

In 1982 ten inmates at the Holmesburg Prison in Philadelphia filed a pro se complaint in federal district court seeking damages and injunctive relief for themselves and for a class consisting of all inmates of the Holmesburg prison since that date and all future Holmesburg inmates. Counsel appointed for the plaintiffs filed an amended complaint, pursuant to 42 U.S.C. § 1983 (1982), alleging that the conditions of the prison violated the eighth and fourteenth amendments. The amended complaint named as defendants the City of Philadelphia, the Philadelphia officials responsible for supervising the prisons, the Board of Trustee of the Philadelphia Prison System, the Warden of the Holmesburg Prison (collectively, the City Defendants or the City), and several state officials.

The district court dismissed the action on res judicata and abstention grounds in light of state court litigation, Jackson v. Hendrick, challenging the constitutionality of the Philadelphia prisons. This court reversed the district court's conclusion that the Jackson v. Hendrick litigation precluded hearing this action. Harris v. Pernsley, 755 F.2d 338 (3d Cir. 1985). We denied the City's petition for rehearing on March 21, 1985, 758 F.2d 83 (3d Cir. 1985). On November 4, 1985, the Supreme Court denied the defendants' petition for certiorari, 474 U.S. 965, 106 S. Ct. 331, 88 L. Ed. 2d 314 (1985).

After remand to the district court, the plaintiffs filed a second amended complaint expanding the plaintiff class to include the inmates of all the Philadelphia prisons and adding the wardens of the Detention Center and the House of Corrections as party defendants. The plaintiffs and City defendants then entered into settlement negotiations. On August 8, 1986, they informed the court that they had reached agreement. On this same date, the Mayor wrote the District Attorney a letter informing him that the parties had reached an agreement in this litigation and in the pending state court action.*fn1 A copy of a proposed consent decree was submitted to the district court on August 15.

On August 19 the District Attorney filed a motion to intervene as of right, pursuant to Fed. R. Civ. P. 24(a), as a full party defendant, or in the alternative, to intervene permissibly under Fed. R. Civ. P. 24(b). Both the City Defendants and the plaintiffs opposed this motion.

The parties then withdrew the proposed consent decree. After consulting with representatives of the District Attorney and the state courts, the City defendants renegotiated a settlement agreement with the plaintiffs. On October 3, the parties, except the state court defendants, submitted a second proposed consent decree to the court. It contained, among other things, a limit on the prison population.

After the second proposed consent decree was delivered to the district court, the District Attorney filed a proposed answer to the plaintiffs' complaint denying that the conditions in the Philadelphia prisons were unconstitutional. In addition, he submitted a proposed cross-claim against the City Defendants, alleging that the proposed consent decree unlawfully interfered with his functions. The cross-claim sought a declaratory judgment that the City had no power to interfere with the District Attorney's duties, including entering an agreement that would result in the release of inmates who are serving sentences or who present either a threat to the community or a risk that they will fail to appear for trial. The District Attorney also sought a permanent injunction against the City to prevent it from entering any settlement that interfered with his duties.

The district court held two evidentiary hearings and heard oral argument on the District Attorney's motion to intervene. The District Attorney presented witnesses and introduced stipulated statements of a number of persons. Appellees did not present any evidence, but did cross-examine the District Attorney's witnesses.

Edward Rendell, the District Attorney from January 1978 to January 1986, testified that he had no knowledge of this litigation while he served as the District Attorney. He further testified that he believed that a cap on prison populations would affect the District Attorney's interest in prosecutions because those released without posting bail would not appear for their trials.

The present District Attorney testified that he did not learn of this litigation until August 1986. Deputy District Attorney Eric Henson testified that he became aware of this litigation in March 1985, when he read this court's opinion, and that he did not bring the case to the attention of the then District Attorney. He further stated that at that time he believed the City defendants were adequately representing the District Attorney's interest and that should the City decide not to litigate the case, it would inform the District Attorney before taking any action.

The District Attorney presented the testimony of Maria Terpolilli, the Senior Supervisor of the Bail Hearings Unit of the Pretrial Services Division of the Philadelphia Court of Common Pleas, to provide evidence of the failure to appear rates for persons instituted by the Jackson v. Hendrick litigation, and of the rearrest rates for persons released under the Jackson v. Hendrick program.*fn2 The District Attorney attempted to show that the failure to appear and rearrest rates under the Jackson v. Hendrick program were extremely high. After cross-examination of Terpolilli, however, the district court refused to admit the ratios that Terpolilli derived from her statistics, finding the ratios "meaningless."

In addition, the District Attorney proffered statements from a number of state court officials as to their discussions with City officials about the proposed agreements. Finally, the parties stipulated to statements from prison officials concerning the improvements in prison conditions since the Jackson v. Hendrick litigation was instituted. After hearing oral argument, the district court took the District Attorney's motion to intervene under advisement.

At the beginning of the hearing on the proposed consent decree, the district court informed the District Attorney that it was going to deny his motion to intervene. With the consent of the parties, however, the court permitted the District Attorney to present his objections to the proposed consent decree, both at the hearing and in written submissions. At the hearing, the District Attorney argued that the proposed settlement would endanger public safety, that there was no reason to enter such an agreement absent a finding that the conditions in the Philadelphia prisons were unconstitutional, that the consent decree went beyond what is required by the Constitution, and that the settlement would, in effect, undo the bail determinations and sentences of state court judges. The City and the plaintiffs reiterated their contention that the proposed settlement was fair and reasonable.

On December 31, the district court filed its opinion, and order formally denying the District Attorney's motion to intervene, finding that he failed to meet any of the requirements of the rule for intervention of right. in addition, she denied his motion for permissive intervention. Because of these rulings it was not necessary for the district court to address the District Attorney's proposed answer to the complaint and proposed cross claim. On this same date, the district court entered its order approving the settlement agreement proposed by the plaintiffs and City defendants.*fn3 These appeals by the District Attorney followed.*fn4

II.

The District Attorney asserts that, contrary to the district court's ruling, he has an absolute right to intervene in this action as a full-party defendant to litigate the constitutionality of the conditions of the Philadelphia prison system and the relief, if any, to which the plaintiffs may be entitled. Under Rule 24(a)(2),*fn5 a person is entitled to intervene if (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation. See Commonwealth of Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied sub nom. Fire Fighters Union v. Pennsylvania, 426 U.S. 921, 96 S. Ct. 2628, 49 L. Ed. 2d 375 (1976). Although these requirements are intertwined, each must be met to intervene as of right. See, e.g., New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.) (in banc), cert. denied sub nom. Morial v. United Gas Pipe Line Co., 469 U.S. 1019, 105 S. Ct. 434, 83 L. Ed. 2d 360 (1984); 3B J. Moore & J. Kennedy, Moore's Federal Practice para. 24.07[1] at 24-50 (2d ed. 1982); 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 1908 at 262 (1986).*fn6

A.

Because of its pervasive importance in the setting of the case, we at once focus on the second requirement: whether the District Attorney has shown a sufficient interest in this litigation. This circuit has not addressed what type of interests are necessary to entitle an applicant to intervene as of right. And as one court has noted, given the multitude of situations in which intervention controversies can arise, what constitutes such an interest "defies a simple definition." Restor-A-Dent Dental Laboratories, Inc. v. Certified Alloy Products, Inc., 725 F.2d 871, 874 (2d Cir. 1984).

The Supreme Court has stated that under Rule 24(a)(2), an applicant's interest must be one that is "significantly protectable." Donaldson v. United States, 400 U.S. 517, 531, 27 L. Ed. 2d 580, 91 S. Ct. 534 (1970). Several circuits have concluded that an applicant must demonstrate a legal interest in the action to intervene as of right. Southern Christian Leadership Conference v. Kelley, 241 U.S. App. D.C. 340, 747 F.2d 777, 779 (D.C. Cir. 1984) (the interest must be "legally protectable"); New Orleans Public Service, Inc., supra, 732 F.2d at 463 (intervention as of right requires a "direct, substantial, legally protectable interest in the proceedings"); Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir. 1982) (same). But see Smith v. Pangilinan, 651 F.2d 1320, 1324 (9th Cir. 1980) (an applicant "need not show that he has a legal or equitable interest in jeopardy . . . [but] must show that he has a 'protectable interest' in the outcome of the litigation of sufficient magnitude to warrant inclusion in the action.") (citations omitted). In addition, a number of courts have concluded that this interest must be "direct," as opposed to contingent or remote. See Restor-A-Dent Dental Laboratories, supra, 725 F.2d at 874; Air Lines Stewards and Stewardesses Association, Local 550 v. American Airlines, Inc., 455 F.2d 101, 105 (7th Cir. 1972); 3B Moore's Federal Practice, supra, para. 24.07[2] at 24-59.

Courts have not been able to develop more than these general guidelines to answer what type of interest is necessary for intervention. See generally, 3B Moore's Federal Practice, supra, para. 24.07[2] at 24-57 ("The exact nature of the interest required . . . has eluded a precise and authoritative judicial definition . . . ."). Because Rule 24(a)(2) was designed to permit courts to solve intervention disputes in a pragmatic manner, it "requires consideration of all the competing and relevant interests raised by an application for intervention." United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 983 (2d Cir. 1984); see Nuesse v. Camp, 128 U.S. App. D.C. 172, 385 F.2d 694, 700 (D.C. Cir. 1967).

B.

With these rather conclusory guidelines in mind, we turn now to the District Attorney's argument that the district court erred in concluding that this litigation did not sufficiently implicate his interest to require intervention under Rule 24(a)(2). We must first determine the scope of review of the district court's determination denying the District Attorney's motion for intervention of right.

As we noted above, intervention controversies arise in many different contexts, and require the court to consider the pragmatic consequences of a decision to permit or deny intervention. The variety of situations in which an application may arise counsels against setting strict legal standards by which courts may measure applications under Rule 24(a)(2). See Shreve, Questioning Intervention of Right -- Toward A New Methodology Of Decisionmaking, 74 Nw. U.L. Rev. 894, 916-24 (1980). This same reasoning supports an abuse of discretion standard of review, which we now adopt. See United States v. Hooker Chemicals & Plastics Corp., supra, 749 F.2d at 991. But see People of State of California v. Tahoe Regional Planning Agency, 792 F.2d 779, 781 (9th Cir. 1986) (district court's denial of intervention as of right reviewed de novo).

We note, however, that our review of district court's decisions denying intervention of right is more stringent than the abuse of discretion review accorded to denials of motions for permissive intervention. Rule 24(a)(2) restricts the district court's discretion by providing that an applicant "shall be permitted to intervene" if he or she satisfies the requirements of the Rule. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S. Ct. 1177, 1185 n.1, 94 L. Ed. 2d 389 (1987) (Brennan, J., concurring). We. therefore, will reverse a district court's determination on a motion to intervene of right if the court "has applied an improper legal standard or reached a decision that we are confident is incorrect." United States v. Hooker Chemicals & Plastics Corp., supra, 749 F.2d at 992; see generally, United States v. Criden, 648 F.2d 814, 817-19 (3d Cir. 1981) (discussing the meaning of the "abuse of discretion" standard of review).

In this case, the District Attorney asserts a legal interest in support of his motion to intervene: his duties as a public official. The scope of his interest is defined by the scope of his legal duties under Pennsylvania law.*fn7 See Olden v. Hagerstown Cash Register, Inc., 619 F.2d 271, 273 (3d Cir. 1980). If his rights and duties, as defined by Pennsylvania law, may be affected directly by the disposition of this litigation, the District Attorney has a sufficient interest to intervene as of right in this action. See Blake v. Pallan, 554 F.2d 947, 953 (9th Cir. 1977); Hines v. D'Artois, 531 F.2d 726, 738 (5th Cir. 1976); see also Nuesse v. Camp, supra, 385 F.2d at 700 (state banking commissioner has right to intervene in action brought by a state bank against the Comptroller where federal law incorporates the state's banking laws because he has an interest in the enforcement of the state laws' policies). We turn then to a recitation of the basic terms of the consent decree so that they may be juxtaposed with the authority accorded the District Attorney under Pennsylvania law.

At the time the consent decree was approved, there were 4300 inmates in the Philadelphia prison system; approximately two-thirds of the inmates were awaiting hearing or trial. The decree requires the inmate population in the present facilities to be reduced, in stages, to 3750 persons within six months. The ceiling on the prison population agreed to by the parties is higher than the ones that have been ordered by the Pennsylvania courts in the Jackson v. Hendrick litigation. See, e.g., Jackson v. Hendrick, supra, 503 A.2d at 403; Jackson v. Hendrick, supra, 446 A.2d at 231.

If the inmate population of the prisons exceeds the maximum permissible under the consent decree, the agreement provides that the City "shall seek the release, through the mechanism of the Bail Master appointed by the Jackson court or otherwise, of persons being held either on the lowest bail or persons sentenced to the Philadelphia prisons with less than sixty days remaining to serve on their sentences."*fn8 The City will not to seek the release of inmates charged with murder or forcible rape, or persons who, if released, posed an imminent threat to the public or themselves.

The settlement recognizes that the prison population fluctuates daily, and thus provides that the population may exceed the maximum temporarily, but not for more than seven days consecutively or twenty days out of any forty. If the population of a facility exceeds the limit for more than the allowable flux time, the decree provides that the City defendants cannot admit additional inmates to the facility. This provision does not apply to "persons charged with, or convicted of, ...


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