Petition — Costello v. Wainwright

|

4

i

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._ -* -_- =~ . --

RECEIVED

Leva 7 976

OFFIC? OF | 4.

SUPRE\. Cy! NT, my

ee

IN THE

SUPREME COURT OF THE UNITED STATE

October Term, 1975

Nowe 5920

MICHAEL V. COSTELLO, and

ROBERTO K. CELESTINEO, and

others similarly situated,

Petiticners,

-v-.

LOUIS L. WAINWRIGHT, Director

of the Division of Corrections,

State of Florida, et al.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TOBIAS SIMON

ELIZABETH J. du FRESNE

1492 South Miami Avenue

Miami, Florida 33130

JACK GREENBERG

JAMES M. NABRIT,III

STANLEY A. BASS

LYNN WALKER

190 Columbus Circle

New York, New York 10019

Attorneys for Petitioners

December 1976

. =o

. .?

INDEX

Opinions Below ..+2++s-seeeesee eee eeese

Jurisdiction ..24s-e2ececeeseeer eevee sess

Questions Presented ....+4+ «see eeee ees

Constitutional Provisions and Statutes Involved...

Statement of the Case... ++ see ee ee eevee

Reasons for Granting the Writ .....424++++ee-s

I. The Case Involves Important Questions Which

Affect Many Pending Cases ... +4 ++ es «s

II. The Decision Below is in Conflict with

Applicable Decisions of this Court .....

III. The Repeal of Section 2281 Should Preclude

the Convening of a New Three Judge Court

in a Case Which Was Properly Commenced

Before a Single Judge .....24++2+e2e-

Conc lus ion . * .* . .* * >. . . . * > * * * . . . . >. > *.

Appendix * * . * al . . * * . oe el . . . . >. >. *. . >. .*

District Court Order of December 6, 1972 .....4£..

District Court Order of Juiy 16, 1972 ....2.4+442446-s

Memorandum Opinion of District Court dated

May a3. 1975 . . . * * >. > . . . * * .* . * * * . *

Findings and Conclusions of District Court dated

June + P 1975 >. al . .* *. . * al . * * *. . . . *. >. .

Opinion of Panel of the Court of Appeals for

the Fifth Circuit dated January 15, 197% .....

Opinion of the Court of Appeals, en banc,

dated September 27 , 1976 * * . . * > * * *. . . >. .

Judgment of the Court of Appeals entered

September 2 7 , 1976 . . . oe . . . * . . *. . . * . >.

Page

22

31

34

la

la

3a

29a

48a

64a

72a

Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958)...

Bailey v. Patterson, 369 U.S. 31 ....24+24+e+6-s

Bradley v. School Board of City of Richmond

324 F. Supp. 396 (E.D. Va. 1971), suosequent

injunction, 338 F. Supp. 67 (E.D. Va. 1972)

reversecé on other grounds, 462 F.2d 1056

(4th Cir. 1972), affirmed 412 U.S. 92 (1973) .

Butler Vv. Dexter, 425 G.8. 62 . . . . . * >. . . .

Detainees of the Brooklyn House of Detention

for Men v. Malcolm, 520 F.2d 392 (2nd Cir. 1975)

Estelle v. Gamble, U.S. : 45 U.S. Law

Week 4023 (November 30, 1976). .......-.

Be Saeste Seremeten6é. 3136 0.8. 384 .- ec csecee

Paubus v. United States, 254 F.2d 797 (8th Cir.

1958), cert. den. 358 U.S. 829 (1958). ....

Gates vy. Collier, 349 PF. Supp. 981 (N-D. Miss.

1972), affirmed 501 P.2d 1291 (Sth Cir. 1974)

Gates v. Collier, 349 F. Supp. 881 (N.D. Miss.

1972), affirmed 489 F.2d 298 (Sth Cir. 1973) .

Gates v. Collier, 371 F. Supp. 1368 (N.D. Miss.

1973), vacated 522 F.2d 81 (Sth Cir. 1975) °

Gates v. Collier, 390 F. Supp. 482 (N.D. Miss.

1975), affirmed 525 F.2d 26 (Sth Cir. 1976) .

Gates v. Collier, 501 F.2d 1291 (Sth Cir. 1974) .

Gautreaux v. Chicago Housing Authority, 343 F. Supp.

822 (N.D. Ill. 1972), affirmed 480 F.2d 210

(7th Cir. 1973), cert. den. 414 U.S. 1144 (1974)

Goldsby v. Carnes, 365 F. Supp. 395 (W.D. Mo. 1973)

Hamilton v. Love, 328 F. Supp. 1182 (E.D. Ark. 1971)

Haney v. County Board of Education of Sevier County,

429 F.2d 364 (8th Cir. 1970) .....24+2e-e-s

Inmates v. Eisenstadt, 360 F. Supp. 676 (D. Mass.

1973), affirmed 494 F.2d 1196 (lst Cir. 1974),

cert. den. 419 U.S. 977 (1975) . . . « « « « «

Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). .

Jones v. Wittenberg, 323 F. Supp. 93, 330 F. Supp.

707 (N.D. Ohio 1971), affirmed sub nom. Jones

v. Metzger, 456 F.2d 854 (6th Cir. 1972) ...

19

26

29

21

20

20

Table of Cases

Morales v. Turman, 535 F.2d 864 (Sth Cir. 1976) ..

Newman v. Alabama, 503 F.2d 1320 (Sth Cir. 1974),

cert. den. 421 U.s. 948 (1975) . . . . al . il . *

Phillips v. United States, 312 U.S 246 ....+.-.

Rhem v. Malcolm, 507 F.2d 333 (2nd Cir. 1974) ...

Sand v. Wainwright, 491 F.2d 417 (Sth Cir. 1972),

cert. den. sub nom. Guajardo v. Estelle, 416

v.s. 992 (1974) . . . . * > . > . . > * . . . . .

School Board of City of Newport News v. Atkins,

246 F.2d 325 (4th Cir. 1957), cert. den. 355

U.s. 8s5 (1957) >. . . . . al * . . . al . . . >. . *

Swift & Co. v. Wickham, 382 U.S. lll ....+2e-s

Thorpe v. Housing Authority of the City of Durham,

393 U.S. 268 . >. . . . . . . . * >. . . . . . . *

United States v. Board of Ed. of City of Bessemer,

396 P.2d 44 (Sth Cir. 1968) al . * * . . >. . ll . .

United States v. Duke, 332 F.2d 759 (Sth Cir. 1964)

United States v. Greenwood Municipal Sep. School

Dist., 406 F.2d 1086 (Sth Cir. 1969) ......

United States v. Schooner Peggy, 1 Cranch 103 ...

28 U.s Geo §1343 . . . . il . . * . . * al . . * . . .

Page

. 17

° 20

° 24

° 21

. 18

° 26

24,28,30

. 31

. 29

. 29

. 29

. 31

. 8

28 U.S.C. §2281 2 a2 6 &£ e.e f= 64 2,3,16,17,20,22,28,32

SB U.8.C. 6204. we cece ere eceeevece ee fs

4B U.8.6. GAB - ce ec ceceoeveseeeeeeeces

Plorida Statutes §839.21 ...++4+++s++e#+«#-ee-se

Florida Statutes §944.16 .....+4 2s se eee

Plorida Statutes §944.29 ...4.4+4++++s+-e#e+e¢es

Florida Statutes §944.36 ....+4++-e-e-e«ee-s

Plorida Statutes §944.291 ......24+++-+e«e2e-s

Plorida Statutes §944.36 ....+4+++e+se+eee-s

Gas Gees GED ceo ce oe eee eee.

- iii -

° 20

° 9

5,14,23

5

6

23

6

23

eo ase Page

Plorida Statutes §945.091 ............ceee66 7?

Public Law 94-381, August 12, 1976; 90 Stat. 1119... 3

Aut tie

1976 Annual Report of the Director, Administrative

Office of the United States Courts ........ . 8,18

eis

- iv -

ae

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 75-

MICHAEL V. COSTELLO, and

ROBERTO K. CELESTINEO, and

others similarly situated,

Petitioners,

-V-

LOUIS L. WAINWRIGHT, Director

of the Division of Corrections,

State of Florida, et al.,

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the Fifth

Circuit entered in the above entitled case on September 27, 1976.

OPINIONS BELOW

1. Two orders of the district court, which appointed the

United States as amicus curiae in the case, and which appointed

an expert medical survey team as special masters are reported

respectively at 353 F.Supp. 1324 (Dec. 6, 1972) and 387 F.Supp.

324 (July 16, 1973); appendix infra pp. la-2a and 3a-7a.

2. The esihees of the United States District Court for the

Middle District of Plorida, dated May 22, 1975 is reported at

a ee ee ee

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397 F.Supp. 20; appendix infra pp. 8a-28a.

3. The Pindings and Conclusions of the District Court

entered on June 27, 1975, following a limited remand from the

Court of Appeals to determine the capacity of Plorida to carry

j out the preliminary injunction is unreported. See appendix

| infra pp. 29a-47a.

4. The opinion of a panel of the United States Court of

|} Appeals for the Fifth Circuit, dated January 15, 1976 is reported

} at 525 F.2d 1239; appendix infra pp. 48a-63a.

5. The en banc opinion of the United States Court of

|} Appeals for the Fifth Circuit, dated September 27, 1976 is

| reported at 539 F.2d 547; appendix infra pp. 64a-7la.

JURISDICTION

The Judgment of the Court of Appeals was entered on

| September 27, 1976; appendix infra p. 72a. The jurisdiction of

this Court is invoked under 28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. Must an injuncticn which orders state officials to

| relieve overcrowding of Plorida prisons to protect inmates’

Eighth and Pourteenth Amendment rights be issued by a three

| judge court convened under 28 U.S.C. §2281, where the relief

ordered arguably may force corrections officials to disregard

} state laws in order tc comply with the Constitution, but the

merits of the case do not involve the constitutionality of such

state statutes and their validity was never questioned or decided.

2. Where Congress has repealed 28 U.S.C. §2281, but has

| provided that the repeal “shall not apply to any action

e2e

——- eee

—_

commenced on or before the date of enactment”, does the principle

that a court should apply the law in effect at the time it

renders its decision preclude the convening of a new three ivdge

court at the remedy stage of a long pending suit.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

1. This case involves the Eighth and Fourteenth Amendments

to the Constitution of the United States.

2. This case also involves the following federal statutes:

a. 28 U.S.C. §2281: Iniunction against enforcement

of State statute: three-jiudce court recuired

An interlocutory or permanent injunction re-

straining the enforcement, operation or execution

of any State statute by restraining the action of

any officer of such State in the enforcement or

execution of such statute or of an order made by

an administrative board or commission acting under

State statutes, shall not be granted by any district

court or judge thereof upon the ground of the un-

constitutionality of such statute unless the applica-

tion therefor is heard and determined by a district

court of three judges under section 2284 of this

title. June 25, 1948, c. 646, 62 Stat. 968.

b. Public law 94-381, August 12, 1976; 90 Stat.

1119:

An Act to improve judicial machinery by amending

the requirement for a three-judge court in certain

cases and for other purposes.

Be it enacted by the Senate and House of Repre~

—_—— — <r United States of America in

, That section 2281 of title 28,

United States Code, is repealed.

Sec. 2. That section 2282 of title 28, United

States Code, is repealed.

Sec. 3. That section 2284 of title 28. United

States Code, is amended to read as follows:

"2284. Three-judce court; when required; composi-

tion; procedure

"(a) A district court of three judges shall be

convened when otherwise required by Act of Congress,

or when an action is filed challenging the consti-

tutionality of the apportionment of congressional

districts or the apportionment of any statewide

legislative body.

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— 0+ eee ee ee eee

ns

OO

"(b) In any action required to be heard and

determined by a district court of three judges

under subsection (a) of this section, the

composition and procedure of the court shall be

as follows:

"(1) Upon the filing of a request for three

judges, the judge to whom the request is presented

shall, unless he determines that three judges are

mot required, immediately notify the chief judge

of the circuit, who shall designate two other judges,

at least one of whom shall be a circuit judge. The

judges so designated, and the judge to whom the

request was presented, shall serve as members of the

court to hear and determine the action or proceeding.

"(2) If the action is against a State, or officer

or agency thereof, at least five days’ notice of

hearing of the action shall be given by registered

or certified mail to the Governor and attorney

general of the State. The hearing shall be g.ven

precedence and held at the earliest practicable day.

“(3) A single judge may conduct all proceedings

except the trial, and enter all orders permitted

by the rules of civil procedure except as provided

in this subsection. He may grant a temporary

restraining order on a specific finding, based on

evidence submitted, that specified irreparable

damage will result if the order is not granted, 4

which order, unless previously revoked by the

district judge, shall remain in force only until

the hearing and determination by the district court

of three judges of an application for a preliminary

injunction. A single judge shall not appoint a

master, or order a reference, or hear and determine

any application for a preliminary or permanent

injunction or motion to vacate such an injunction,

or enter judgment on the merits. Any action of a

single judge may be reviewed by the full court at

any time before final judgment.”

Sec. 4. The analysis of chapter 155 of title 28,

United States Code, is amended to read as follows:

"Sec.

"2281. Repealed.

"2282. Repealed.

"2283. Stay of State court proceedings.

‘2284. Three-judge district court; when required;

composition; procedure.”

Sec. 5. (a) Section 2403 of title 28, tnited

States Code is amended --

(1) by inserting the subsection *(a)* immediately

before “In* and

(2) by adding at the end thereof the following

new subsection:

"(©) In any action, suit, or proceeding in a

court of the United States to which a State or any

agency, officer, or employee thereof is not a party,

SE Ee ee ee ae.

—--——--

wherein the constitutionality of any statute of

that State affecting the public interest is

drawn in question, the court shall certify such

fact to the attorney general of the State, and

shall permit the State to intervene for presenta-

tion of evidence, if evidence is otherwise ad-

missible in the case, and for argument on the

question of constitutionality. The State shall,

subject to the applicable provisions of law, have

all the rights of a party and be subject to all

liabilities of a party as to court costs to the

extent necessary for a proper presentation of the

facts and law relating to the question of consti-

tutionality.”.

(b) The catchline to section 2403 of title 28,

United States Code, is amended to read as follows:

"$2403. r a State:

gsonstitutional question”.

Sec. 6. Item 2403 of the analysis of chapter 161,

of title 28, United States Code, is amended to read

as follows:

"2403. Intervention by United States or a State;

constitutional question”.

Sec. 7. This Act shall not apply to any action

commenced on or before the date of enactment.

Approved August 12, 1976.

The case involves the following Florida statutes:

a. Section 639.21 r s r

Any jailer or other officer, who willfully

refuses to receive into the jail or into his

custody a prisoner lawfully directed to be

committed thereto on a criminal charge or con-

viction, or any lawful process whatever, shall

be guilty of a misdemeanor of the first degree,

punishable as provided in §775.9082 or §775.083.

(Laws 1971, c. 71-136, §1031)

b. Section 944.16: r rs; received

All prisoners shall be delivered to the custody

of the division at such reception and classifica-

tion centers as shall be srovided for this purpose.

No prisoner shall be received by the division,

unless the sheriff. United States marshal, or

other officer having such prisoner in charge,

shall also deliver a commitment in due form issued

by authority of the court committing such prisoners.

(Laws 1969, c. 69-106, §§ 19,35.)

_— i

¢. Section 944.29: Extra good time allowances

The division may allow, in addition to time

credits, an extra good time allowance for

meritorious conduct or exceptional industry.

(Laws 1969, c. 69-106, §§ 19, 35.)

&. Section 944.291: one eleased bv reason

a ime allowances

(1) (a) A prisoner who has served his term

or terms, less allowable statutory gain time

deductions and extra good time allowances as

provided by law, shall, upon release, be deemed

as if released on parole until the expiration

of the maximum term or terms for which he was

actually sentenced or such lesser time as mav

be determined by the Florida parole and proba-

tion commission pursuant to §947.13.

(>) The provisions of this section shall not

apply to prisoners who have not earned at ieasc

one hundred eighty days’ gain time.

(2) A prisoner so released shall be under

the supervision and control of the parole and

probation commission in accordance with the

appropriate provisions of Chapter 947, per-

taining to paroles and parolees and their super-

vision, disposition, and control. (Laws 1967,

e¢. 67-421, § 1.)

@. Section 945.09: Commitment of prisoners; classi-

Tica m; Reception and Classi-

fication Center; transfer

All prisoners sentenced to the state peniten-

tiary shall be committed by the court to the

custody of the division and shall be conveyed in

the manner provided by law to such institution in

the correctional system as the division shall

direct. The division shall establish a Reception

and Classification Center for male prisoners at

Lake Butler. The division shall provide reception

and classification facilities for female prisoners

at the Florida Correctional Institution at Lowell.

Classification facilities shall be provided in the

discretion of the division at all institutions in

the correctional system. Pursuant to such regu-

lations as the division may provide, the division

is authorized to transfer prisoners from one

institution to another institution in the correc-

tional system~and to reclassify prisoners as cir-

cumstances may require. (Laws 1969, c. 69-106,

$$ 19, 35.)

—— —--

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£. Section 945.091: Extend the limits of

confinement

(1) The division is authorized to adopt regu-

lations permitting the extension of the limits of

the place of confinement of an inmate as to whom

there is reasonable cause to believe he will honor

his trust by authorizing him, under prescribed

conditions and following investigation and roval

by the director, who shall maintain a written

record o: such action and forward a copy of his

approval to the parole and probation commission, to

leave the confines of that place unaccompanied by

a custodial agent for a prescribed period of time to:

(a) Visit, for a specified period, a specifically

designated place or places for the purpose of visit-

ing a dying relative, attending the funeral of a

relative, or arranging for employment or for a suit-

able residence for use when released, to otherwise

aid in the rehabilitation of the inmate, or for

another compelling reason consistent with the public

interest, and return to the same or another insti-

tution or facility designated by the division of

corrections; or

(b) Work at paid employment, participate in

education ov a training program, or voluntarily

serve a public or nonprofit agency in the community

while continuing as an inmate of the institution or

facility in which he shall be confined except dur-

ing the hours of his employment, education, training

or service and traveling thereto and therefrom.

Inmates shall participate in paid employment only

during the last twelve months of their confinement

unless sooner requested by the parole and probation

commission.

(2) The division may adopt regulations as to

the eligibility of inmates for this extension of

confinement, the disbursement of any earnings of

these inmates, or the entering into of agreements

between the division and any city or county or

federal agency for the housing of these inmates in

a local place of confinement.

(3) The willful failure of an inmate to remain

within the extended limits of his confinement or

to return within the time prescribed to the place

of confinement designated by the division shall

be deemed as an escape from the custody of the

division and shall be punishable as prescribed by

law. ———

(4) The parole and probation commission is

authorized to make investigations and recommenda-

tions pertaining to the validity of requests for

visits by inmates, community attitudes towards

inmates, and job opportunities for inmates and

to otherwise assist the division when requested

in the implementation of the program herein

authorized. (Laws 1971, cc. 71-112, § 1.)

STATEMENT OF THE CASE

This is a suit by prisoners in the Florida prison system

who complain that they have been subjected to cruel and unusual

punishment by the deprivation of medical care. The case began

with two handwritten prisoner complaints in the United States

District Court for the Middle District of Florida in February

1972. The Middle District has more pending prisoner civil

rights cases than any other district court in the nation; 1,049

pending cases in the Middle District out of 6,341 in the entire

country as of June 30, 1976. When complaints were filed by

Roberto Celestineo and Michael Costello, District Judge Scott

consolidated the cases,.granted forma pauperis status, and

appointed Tobias ‘Simon, a as plaintiffs’ as Also

the Un'ted States was appointed to represent the public interest

as amicus curiae with the right to present evidence. 353 F.

Supp. 1324.

The Second Amended Complaint, alleged jurisdiction in the

district court under 28 U.S.C. §1343, to protect plaintiffs’

1/ 1976 Annual Report of the Director, Administrative Office of

the United States Courts, p. I-21, Table C 3A. (Hereafter cited

as “1976 Annual Report of the Director”.)

2/ When the case was subsequently certified as a class action,

Mr. Simon was also appointed to represent the class. Mr.

Celestineo has been recently released on parole; Mr. Costello

remains in prison.

ee = ee ee + + - we eee

me ee ee -

rights under 42 U.S.C. §1983, and the Eighth and Fourteenth

Amendments to the Constitution of the United States. The dis-

trict court certified « class action on behalf of “all those

persons who are now or hereafter will be committed to the

custody of the defendant". The defendants are the Director of

the Division of Corrections and the Director of the Division of

Mental Health. Plaintiffs were denied leave to add the members

of the Florida Parole and Probation Commission on April 24,

1973. |

The Second Awended Complaint alleged inter alia that

prisoners were denied access to medical facilities and personnel

when seriously ill, and were denied the basic elements of ade-

quate medical treatment; that the prison medical facilities

were grossly understaffed, the medical plants and equipment were

inadequate, and the administration of medical p~ .grams was

shoddy; that everereuding of the prisons was so severe (with

10,500 prisoners in a system designed for a maximum of 7500) as

to damag2 the health of the prisoners and dilute the medical

eee system. The relief sought was an injunction requiring the

defendants to redistribute or reduce the prison population to a

level which does not “exacerbate the unhealthy conditions”, and

requiring them to provide basic medical care.

In February 1973 plaintiffs filed a motion for a preliminary;

injunction to curb overcrowding of the prison system, but the

3/ For a more detailed description of the defendants, see the

opinion below 539 F.2d at 548, note l.

4/ 14. -

application was denied without prejudice when the defendant

Wainwright took administrative action to close the prisons to

new inmates. On February 20, 1973, the Distrct Court ordered

the defendants to prepare a plan to reduce the number of inmates

and/or improve facilities so as to enable them to provide a

minimally adequate level of medical care. When Mr. Wainwright

rescinded his order closing the prisons, plaintiffs on March 2,

1973 renewed their application for a preliminary injunction. The

motion was denied on April 24, 1973. In July 1973, the District

Court noting that Mr. Wainwright “has, without qualification,

l] also advised this Court that the Division of Corrections is not

providing adequate medical care and services to the prisoners

under its jurisdiction” appointed a medical survey team led by

Dr. Kenneth B. Babcock, along with Dr. Joseph Alderete and others

as special a 387 F.Supp. 324. The District Court stated

that the “gist” of the Babcock report, which was filed December

19, 1973, “was that there existed gross systemic deficiencies in

the delivery of adequate medical care to the inmates of the

Division of Corrections, which deficiencies could be remedied by

certain specific measures outlined in the report." 397 F.Supp.

at 23. The defendants’ response filed May 28, 1974 “concurred

generally with the findings of the Babcock Commission Report and

the remedies proposed therein.” 397 F.Supp. at 23.

On January 13, 1975, the parties filed a lengthy Amended

Pre-trial Stipulation. They stipulated that “plaintiffs have a

right to adequate medical treatment and care”; that "‘a

S/ Their expert qualifications are described in the district

court opinion. 397 F.Supp. at 23, notes l, 2.

oe Me

ce a ee ee

would be required by guidelines based upon the Babcock Report

Te.

deprivation of basic elements of adequate medical treatment’

constitutes cruel and unusual punishment in violation of the

Eighth and Fourteenth Amendments"; that “the due process clause

requires that minimally adequate treatment be in fact provided";

that plaintiffs “are not receiving such medical treatment as

for the availability of mental and physical health care and

treatment"; and that the “Babcock Commission Report as modified

by the Response of the Division of Corrections describes neces-

sary improvements to the delivery of medical serv -es within the

— ao coe

prison system which, if implemented, would either: (A) Create '

guidelines for adequate medical care (Defendants' position) or |

(B) Be a major factor in meeting minimal constitutional standards)

(Plaintiffs'»position)." 397 F.Supp. at 24. |

The parties also stipulated to the link between severe over-|

; |

crowding in the prisons and the denial of adequate health care:

“{Stipulation] VI-C. CAPACITY OF FACILITIES:

“The parties recognize that the normal capacity

of the existing prison system should be limited to

9,313 persons; that even using temporary facilities

and operating under conditions of extreme emergency,

the capacity of the existing system should not be

stretched beyond 10,535; and nevertheless, the number

of persons committed to the custody of the DIVISION

OF CORRECTIONS, as of September 30, 1973, was 11,521

or 986 over emergency capacity: that because of the

temporary cessation of intake -- by reason cf this

overcrowding of inmates -- there is a backlog in the

67 jails of Florida in excess of 300; and that an

additional 600 inmates are expected within the next

90 days.

"In brief, there is, in *he custody of the

DIVISION OF CORRECTIONS, 3,130 persons over normal

capacity limitations and 1,908 persons over emergency

capacity limitations.

o =

“The parties recognize that severe overcrowding

may be injurious to the physical and mental health of

the plaintiffs and such overcrowding should be elimi-

nated. (See VI-E, infra.)

-ll-é-

Prisoners’ health is set out at 397 F.Supp. at 24-31.

'!

ee a ie

The parties further stipulated that “any plan for improve-

ment of medical care and treatment comparable to the Babcock

Commission standards would be sufficient and enemas”

Notwithstanding the Babcock Report and its seeming

acceptance by the defendants, and the stipulation that over-

crowding was injurious to the inmates' health and “should be

6/

eliminated," the Court in April and May 1975 conducted a trial.

The Court made extensive eee * findings on the “uncontro-

7

verted expert medical opinion” about the link between the over-

crowding and the denial of adequate health care. See 397 F.Supp.

at 24-31. Judge Scott's summary of his findings was that:

" . .« « the overwhelming evidence is that there

is a direct and immediate correlation between

severe overcrowding, as now exists in the

Plorida Prison System, and the deprivation of

minimally adequate health care. In addition,

it appears that severe overcrowding endangers

the very lives of the inmates because of its

being a factor in the causation of violence

within the prison system. 9

“9/ The inmate population in the Florida Prison

System has increased as follows since 1971:

Sa/ The stipulation disclaimed an Agreement to implement the

Babcock recommendations per se: “While the parties recognize

the Bakcock Commission st ards, neither the Defendants nor

the Legislature is bound to any particular course of action.”

The Defendants also preserved in the stipulation their objection

to the jurisciction of the Court and their right to appeal any

order of the court.

6/ The trial was held April 21-23, and May 12-14, 1975, and

en recessed for further proceedings at a | oe date. The

preliminary injunction was issued May 22, 1975. On April 21,

1975, Plaintiffs again renewed their motion for an injunction

to deal with overcrowding.

7/ The evidence on the harmful effects of overcrowding on

employed by the defendantstestified to the problem. Indeed,

Mr. Wainwright himself testified about the danger to prisoners’

health from overcrowding: "Q. Do you regard the over-crowded

conditions as a danger to the health of the prisoners in each

of these institutions? -A. I think I would have to say yes.”

397 F.Supp. at 30.

Physicians

ee ee

tee SIE 6.4 eee oe es ee

"June 30, 1971 9,530

June 30, 1972 10,112

June 30, 1973 10,346

June 30, 1974 11,335

March 31, 1975 12,748

May 2, 1975 13,046

May 12, 1975 ap-

proximately 13,700.

Emergency capacity on May 12, 1975 was

11,105 inmates (with the recent addition

of 60C beds) .*

Judge Scott personally viewed the Lake Butler Reception

and Medical center. He saw four inmates in a seven foot by

seven foot cell, with one man in a bunk and three sleeping on

the floor. Judge Scott appended the photograph on the next

page to his opinion, describing this as “a typical one-man

cell with four inmates.” 397 F.Supp. at 32. He found the

overcrowded cells “most disturbing to the Court.” Id. Judge

Scott concluded that the overcrowding “creates violence,

brutality, disedse, bitterness, and resentment as to both

inmates and correctional staff" and that it “tends to per-

petuate antisocial behavior and foster recidivism so as to

ultimately disserve the rehabilitative goals of the correctional

system". 397 F.Supp. at 38. Judge Scott wrote that: “A free

democratic society cannot cage inmates like animals in a zoo

or stack them like chattels in a warehouse and expect them to

emerge as decent, law abiding, contributing members of the

community. In the end, society becomes the loser." 397 F.Supp.

at 38.

The District Court stated its reluctance, for three years,

to “intervene in the overcrowding crisis which has existed in

the Florida Prison System", but finally the court determined to

issue an injunction because “overwhelming evidence points toward

blatant deprivations of the plaintiffs’ constitutional rights,

which the State of Plorida has been unwilling to rectify.“ 397

P.Supp. at 34. On May 22, 1975, Judge Scott granted plaintiff's

renewed application for a preliminary injunction to deal with

e 33 «

—ee

397 FEDERAL SUPPLEMENT

APPENDIX

EXHIBIT “A”

- l3a -

ee SS

Se

ami

judge =e curi

- y Ps

request

ae, al

as court S° Oppo

Amicus Curiae. in sen attired. sec the states:

See bri

Pp :

f for

for

The preliminary injunction was stayed pending appeal, and

on January 15, 1976, a panel of the Fifth Circuit affirmed by

a vote of 2-1, with Judge Roney dissenting. With respect to

the merits of the case the court held that the correctness of

the district court's findings was virtually conceded by the

pre-trial

held that

junction.

arguments

stipulation. 525 F.2d at 1246-1248. The Court

the evidence fully justified the preliminary in-

Id. The majority also rejected the defendants

on the three-judge issue and an argument that the

district court should have abstained from deciding the case.

The Court also approved the remedy ordered and rejected the

defendants arguments that the compliance was impossible:

"It is clear that there is nothing in the

trial court's preliminary injunction that

cannot be accomplished but for the lack of

funds. Optimistically some remedial steps

can be taken even without substantial addi-

tional expenditures. In any event, the

' wight of the plaintiffs to be secure in

their constitutional rights cannot be made

dependent upon the action of the state legis-

lature in appropriating additional money, an

area which we can all recognize from the course

of human experience is a field in which relief

too often comes, too little and too late.

"It should be borne in mind that what we are

Gealing with here is a preliminary injunction,

subject to modification at any time by the

trial court upon a proper showing by the de-

fendants that such emergency or exceptional

circumstances have arisen as to warrant the

Court's giving further consideration to the

terms of the injunction. Moreover, it should

be borne in mind that well before the final

Gate covered by the court's order, the case

should be ripe for final adjudication, after

which the court's final injunction, if warranted,

will be issued, based upon the facts as they then

exist.”

$25 F.2d at 1252.

On rehearing en banc, the Court of Appeals ruled in an

opinion by Judge Roney for an 11-3 majority that the relief

granted by the district court was beyond the power of a single

@istrict judge under 28 U.S.C § 2281. The majority held that

the case “did not start out as a three-judge case”, but that

when the case became an overcrowding case and the relief

needed “stretched beyond” the authority of the Director of

the Division of Corrections and required him to violate Florida

statutes the three-judge court problem “arises”. 539 F.2d at

$5°-552. The court ruled that if the injunction “is to remain

as written, it is beyond the jurisdiction of a single judge".

The injunction was then vacated and the case remanded to “per-

mit the district court to grant only such relief against these

defendants as they can provide without nullification of state

statutes, and to request the convention of a three-judge court

if that is deemed appropriate under the circumstances.” It

should be noted that the en banc majority adcpted the panel

Opinion on the merits and “affirms the district court's re-

fusal to abstain, and the district court's findings of con-

stitutional deprivations in the Florida prison system to the

extent that they would s-pport the granting of appropriate

single judge relief." 539 F.2d at 549.

The dissenters, Judges Brown, Tuttle and Goldberg, wrote

that the majority had inappropriately expanded the requirements

for three-judge courts, in a case where “clear and manifest

injustice” was being done to plaintiffs, and after Congress had

repealed section 2281.

Following the decision of the Court of Appeals, petitioners

have filed mctions in the trial court seeking leave to add as

defendants the Governor and Lieutenant Governer of Florida, the

members of the Cabinet, and the Parole and Probation Commission.

Another pending motion seeks injunctive relief from overcrowding

consistent with the powers of these officials under state law,

or in the alternative for temporary injunctive relief from the

resident judge pending the convening of a three-judge court.

No ruling on these motions has been issued to date.

-16-

eee oe —-

REASONS FOR GRANTING THE WRIT

I.

The Case tavolves Important pes

—~Which Affect Many Pending Cases. __

We believe that the Fifth Circuit's expansive interpre-

tation of 28 U.S.C. §2281 in this case, as well as in a con-

temporaneous case (e.g. Morales v. Turman, 535 F.2d 864 (Sth

Cir. 1976), petition for certiorari filed as No. 76-5881

December 16, 1976) presents an issue of sufficient importance

to merit plenary review even though §2281 has been repealed

by Congress. At first blush one might think that the Fifth

Circuit Costello rule would apply to only a few cases. We

think that is not the fact. The exact number of cases which

will be affected by the Costello rule can never be ascertained

in advance because the rule operates in long pending cases and

Goes not come into play until the relief stage of the case,

which may not be completed until a great deal of time has

passed. Costello would require a three-judge court in any

case in which a defendant state official can claim that the

injunctive relief to be considered or granted would compel the

disregard of a state statute or regulation, regardless of

whether the constitutionality of the law or regulation has been

@ecided in the case. Obviously such a rule affects injunctive

decrees involving all kinds of constitutional claims. As we

will describe below, such arguments have for example been made

and rejected in school desegregation cases. See part II,

infra. But even limiting consideration to correctional cases

Costello may have a broad impact.

In the first place there are a great many pending prison

conditions cases and the fact that many are pro se applications

aiPeo

,/

———

-_ - -—

does not necessarily distinguish them from Costello. See for

example Sands 7. Wainwright, 491 F.2d 417, 424 (Sth Cir. 1972),

cert. denied sub nom Guajardo v. Estelle, 416 U.S. 992 (1974).

Of a total of 7 poe prisoner civil rights suits pending

in all of the district courts on June 30, 1976, there were

771 cases which had been pending more than three years, and

577 of the cases are class actions. We have not been able to

find out how many of the cases involve requests for injunctive

relief. Even if the Costello rule is confined to the Fifth

Circuit its impact may be great, because more than a third of

the prisoner cases in the nation were in that circuit -- 2,339

cases -- and almost half of the Fifth Circuit cases (1,049

— pe from the Middle District of Florida where Costello

arose. The prisoner petitions pending in the district courts

in the Fifth Circuit include 315 class actions. During the

Fiscal Year 1976, 619 state prisoner civil rights cases were

appealed to the courts of appeals.

In the second place, the impact of Costello is already

evident in Mississippi where a nearly six year old prison con-

ditions case has been referred to a three-judge court. In an

unreported opinion in Gates v. Collier, which we quote ex-

| tensively in the note below, Judge Keady asked for the convening |

_9/ 1976 Annual Report of the Administrator, p. I-21; see also

pp. 93-96.

10/ Id. at p. 88.

L)/ Id. at p. 120.

12/ Id. at p. I-21.

| 13/ tbid.

On June 30, 1976 there were 474 prisoner cases pending in

t Southern District of Texas, 136 in the Eastern District

of Texas, 139 in the Northern District of Georgia, and 97 in

the Northern District of Texas.

15/ 1976 Annual Report of the Administrator, p. 120.

16/ Id. at p. 67-68.

-18-

ABBR 6 eee ++

of a three-judge court under the Costello wae’ This happened

even though the Mississippi prison conditions issues have been

litigated and appealed on numerous prior occasions, Gates v.

Collier, 349 F. Supp. 881 (N.D. Miss. 1972), affirmed 489 F.2d

296 (Sth Cir. 1973); affirmed 501 F.2d 1291 (Sth Cir. 1974);

371 F. Supp. 1368 (N.D. Miss. 1973), vacated 522 F.2d 81 (Sth

Cir. 1974); 390 F. Supp. 482 (N.D. Miss. 1975), affirmed 525

FP.24 965 (Sth Cir. 1976); 407 F. Supp. 1117 (N.D. Miss. 1975);

and even though the Fifth Circuit held in 1974 that no three

judge court was required to consider the merits in Gates.

$01 F.2d 1291, 1226-1299.

17/ Satesv.coblisr. N.D. Miss. No. GC 71-6-K, Nov. 19, 1976.

Judge discussed the issue as follows:

"Where a situation arises regarding the injunction

against enforcing a statute or statutes of statewide

effect on the ground of federal unconstitutionality, we

become directly confronted with the question of whether

the issue is one for resolution by a three-judge court

convened pursuant to 28 U.S.C. §§ 2261 and 2284. It is

immaterial that the issue of constitutionality of a

state statute is put in question because of conflict

with the effects of a federal court's injunctive order

rather than from the statute's terms. ‘A statute does

mot have to be directly challenged as unconstitutional

on its face where the impact of a court order achieves

the precise result requiring a three-judge court.’

Costello v. Wainwright, 539 F.2d 547, 552 (Sth Cir. 1976).

On August 12, 1976, Public Law 94-381, 94th Congress,

S.537 repealed § 2281 and amended § 2284 to eliminate

the requirement of a three-judge court in actions seeking

injunctive relief against enforcement of state statutes

on ground of the unconstitutionality, with certain excep-

tions not applicable here. However, by § 7 it was ex-

pressly provided ‘this act shall not apply to any action

commenced on or before the date of enactment.’ 15/

1S/ The legislative history of the amendment

makes it clear that “cases filed prior to

the enactment of this bill shall proceed to

final disposition under the law existing on

the date they were commenced.” S. Rep. No.

94-204, U.S. code Cong. & Admin. News, 94th

Cong., 2d Sess. 3173 (1976).

Since the present action was filed long before the three-

judge court amendment, and the issues of unconstitutionality

of housing conditions and inmate protection have been in

litigation since 1971, § 2281 undeniably requires the

eee

ee e——EEEEeEeEeE—e—eE—e—eEeEeEeEeEeee

If the Costello rule is wrong, as we attempt to demonstrate |

below, it ought not be dismissed as of little importance based

on the repeal of § 2281.

There is of course another dimension of importance of the

case. From the point of view of the prisoners in the Florida

prison system, this case presents an inexplicable failure of

the courts to deal with plain violations of fundamental rights.

The dissenting opinion called the decisions “a tragically

wrong disposition of the claim of nearly 15,000 Plorida state

prisoners to be afforded simple humane treatment". 539 F.2d

at 552-553. That is an appropriate description of a disposi-

tion that vacates an injunction even though a district judge

and ali fourteen sitting appellate judges agreed unanimously

ee

that the Cruel and Unusual Punishment Clause and the Due

Process Clause were violated by the deprivation of basic medical

care in conjunction with intolerable overcrowding. The pro- |

priety of that decision on the merits can hardly be doubted in |

view of the undisputed facts and settled law. Estelle v. eats, |

__ U.3. __; 45 U.S. Law Week 4023 (November 30, 1976); Newman !

v. Alabama, 503 F.2d 1320 (Sth Cir. 1974), cert denied 421

U.S. 948 (1975); Gates v. Collier, 501 F.2d 1291 (Sth Cir. 1974); |

Goldsby v. Carnes, 365 F. Supp. 395 (W.D. Mo. 1973) (consent

decree); Jones v. Wittenberg, 323 F. Supp. 93, 330 F. Supp. 707 |

(N.D. Ohio 1971) affirmed sub nom. Jones v. Metzger, 456 F.2d

854 (6th Cir. 1972); Hamilton v. Love, 328 F. Supp. 1182

17/ (Con't.) convening of a three-judge court to grant

permanent injunctive relief striking down statutory

provisions which prohibit corrections officials from

carrying out the duties imposed upon them by the

United States Constitution.

Accordingly, we request the convening of a three-

judge court consistent with Costello's holdings and

the procedure therein approved.”

Judged Keady then issued a temporary restraining order on prison |

overcrowding under 28 U.S.C. § 2284.

-20-

a

I

(E.D. Ark. 1971); Inmates v. Eisenstadt, 360 F. Supp. 676

(D. Mass. 1973), affirmed 494 F.2d 1196 (lst Cir. 1974), cert.

denied, 419 U.S. 977 (1975); Detainees of the Brooklyn House

of Detention for Men v. Malcolm, 520 F.2d 392 (2nd Cir. 1975);

Rhem v. Malcolm, 507 F.2d 333 (2nd Cir. 1974).

2)

@21<

II.

The Decision Below is in Conflict

with Applicable Decisions of this Court

We believe that the Fifth Circuit has announced a novel and

quite unworkable expansion. of 28 U.S.C. § 2281. The injunction

in Costello was based on a finding and conclusion that over-

crowding in the Florida state prison system was unconstitutional |

because it prevented inmates from getting the essentials of

medical care and it endangered their health and their lives.

There was never a challenge to the constitutionality of any

scate statute, and never any decision on the constitutionality

of any statute. Indeed the District Judge did not think that

his order enjoined the enforcement of any statute. But accept-

ing, arguendo, the Court of Appeals conclusion that the in-

junction might force Mr. Wainwright to disregard a state law,

it is still evident thet the injunction was issued upon the

ground of the unconstitutionality of the result obtained in

the operation of the prisons, rather than upon the sround of

the unconstitutionality cf any statute. The decision below

holds that three judges are required notwithstanding the fact

that a state statute is involved in che case only at the level

of reiief, and the fact that the statutes’ constitutionality is

unquestioned. Moreover, the Fifth Circuit sees the three-judge

requirement as shifting depending upon iow the district judge

formulates the remedy. ;

". . « this Court has not and will not require the defendant

Wainwright to refuse to accept prisoners lawfuliy committed to

his custody." 397 F.Supp. at 36. The statement was repeated at |

397 F.Supp. 38. The district court thought that means existed j

within Florida law for Mr. Wainwright to reduce the inmate popu- |

lation. 397 F.Supp. at 35. For example the court pointed to

Mr. Wainwright's power to liberalize the procedures for granting

inmates an “extra good time allowance” under Section 944.29 of

the Florida Statutes. See also Appendix, infra 33A-38A, con-

cerning the defendants’ ability to expand prison capacity. Since

-22-

fo TE eee

——

and by framing a remand order which even now, permits the single |

district judge to frame relief for the constitutional violations

so long as such relief does not nullify state statutes (539 F.2d |

at 552). Thus the district judge was directed to convene a three-+

judge court “if that is deemed appropriate under the circum-

stances” (Ibid.).

We submit that the decision below is in conflict with the

principles set forth in this Court's decisions in Phillips v.

United States, 312 U.S. 246, Ex Parte Bransford, 310 U.S. 354,

and Swift & Co. v. Wickham, 382 U.S. lll. See also Butler v-

Dexter, 425 U.S. 62. In those cases this Court held that

28 U.S.C. § 2281 did not require a three-judge court where a

state statute was enjoined, if the injunction was not issued

ee

“upon the ground of the unconstitutionality of such statute."

28 U.S.C. § 2281.

In Phillips a court restrained a governor's lawless use of

military power to interfere with the construction of a dam by

the United States. This Court held that no three-judge court

was required since the case did not involve an attack on the |

state laws which conferred upon the Governor the power to et

martial law, but only involved the misuse of his authority. The |

Court noted that the “crux” of Section 2281 was “procedural pro-

tection against an improvident state-wide doom by a federal court |

of a state's legislative policy” 312 U.S. at 251. The opinion

pointed out that the United States did not impugn the validity

.of the laws relied upon by the Governor to support his actions

(Id. at 252.) and went on to state the following principles,

which seem applicable to Costello:

-24<

=e.

Some constitutional or statutory provision is

the ultimate source of all actions by state

officials. But an attack on lawless exercise

of authority in a particular case is not an

attack upon the constitutionality of a statute |

conferring the authority even though a mis-

reading of the statute is invoked as justifica-

tion. At least not within the congressional].

scheme of §226 [now 28 U.S.C. §2281]. It is

significant that the United States in its com-

plaint did not charge the enabling acts of

Oklahoma with unconstitutionality, but assailed

merely the Governor's action as exceeding the

bounds of law. In other words, it seeks a

restraint not of a statute but of an executive |

action. But the enforcement of a “statute”,

within the meaning of § 266, is not sought to

be enjoined merely because a state official

seeks shelter under it by way of defense acainst

a charge of lawlessness. As Mr. Justice Cardozo

said of a related problem affecting the business

of the federal courts, “we do not travel back so

far." Gully v. First Nat. Bank, 299 U.S. 109,

116, 81 L.ed 70, 74, 57 S. Ct. %.

On its face, §266 precludes a reading which

would bring within its scope every suit to restrain

the conduct of a state official whenever, in the

ultimate reaches of litigation, some enactment

may be said to authorize the questioned conduct.

**f

In other words, the complainant must seek to

forestall the demands of some general state

policy, the validity of which he challenges.

312 U.S. at 252-253.

If the crux of Section 2281 is procedural protection against !

improvident doom of a state legislative policy, then we ought to

inquire what legislative policy is at stake in Costello. To be

sure, the Florida statutes have permitted the result complained

of by petitioners, but there is no particular Florida statute

which mandates the unconstitutional overcrowding of the prisons

or which is affronted by the district court's injunction that the

prisons be operated within their capacities. The Costello

injunction does not doom any policy legislated by Plorida

Oo owe - owe

statutes.

The Eighth Circuit applied the principle of Phillips to

find no need for a three-judge court where Little Rock school

officials were enjoined from leasing Central High School for

private segregated operation (Aaron v. Cooper, 261 F.2d 97, 1O5-

106 (8th Cir. 1958)) and where the Governor was enjoined from

using the national guard to block school desegregation under

court order (Faubus v. United States, 254 F.2d 797 (8th Cir.

1958). The Eighth Circuit decisions conflict in principle with

the Fifth Circuit's Costello decision. See also the Fourth

Circuit decision holding that no three-judge court was required

to enjoin school segregation even though a state pupil placement

law was interposed in defense. ty of rt

News v. Atkins, 246 F.2d 325 (4th Cir. 1957), cert. den. 355

U.S. 855 (1957).

In Ex Parte Bransford, 310 U.S. 354, the Court held that a

three judge court was not required to consider a suit involving

local taxation of a national bank because the injunction against |

the taxes was not sought upon the ground of the unconstitu-

tionality of the state law. Insofar as Bransford involved an

attempt to tax property which was exempted by federal statute it

was said to concern the superiority of federal over state laws

under the Supremacy Clause, as distingushed from the

“constitutionality” of the state enactment. Insofar as Bransford

involved a claimed discriminatory misapplication of the local

tax law by assessors the Court also held that no three-judge

court was required. “Such assessments, if made and if invalid,

are so because of a wrong done by officers under the statute

rather than because of the requirement of the statute itself.”

~~

tiie ta EE me LS eg

|

|

|

|

SME BEB ADAM A

Bransford, supra, 310 U.S. at 359. The Court wrote:

It is necessary to distinguish between

a petition for injunction on the ground of

the unconstitutionality of a statute as ipplied,

which requires a three-judge court, and a

petition which seeks an injunction on the ground |

of the unconstitutionality of the result obtained

by the use of a statute which is not attacked as

unconstitutional. The latter petition ¢oes not

require a three-judge court. In such a case the

attack is aimed at an allegedly erroneous ad-

ministrative action. Until the complainant in

the district court attacks the constitutionality

of the statute, the case does not require the

convening of a three-judge court, any more than

if the complaint did not seek an interlocutory

injunction.

(310 U.S. at 361; footnotes omitted)

In Costello as in Bransford it is the result obtained by

the use of official powers which is attacked as unconstitutional.

The injunction regulates the conditions within the prisons, not

the Florida statute law. The conditions in the prisons which

are sought to be regulated in this case are not directly attrib- |

utable to any particular Florida statute. As the Court in

Bransford said:

Even where the statute is attacked as

unconstitutional, § 266 is inapplicable

unless the action complained of is directly

attributable to the statute. There is no

indication that Congress sought by § 266

to have every attack on the constitutionality

of a state statute determined by a three-judge

court.

(310 U.S. at 361-362; footnote omitted)

Last term in Butler v. Dexter, 425 U.S. 62, the Court held |

that a three-judge court was not required where state officials

acted unconstitutionally, using a statute as 2 pretext, since the:

|

'

case would not present any substantial question concerning the con-

!

stitutionality of that statute. The court relied on Phillips and

Bransford, supra, as well as Bailey v. Patterson, 369 U.S. 31. In!

------ -—— -——

Costello as in Butler and Bailey, supra, there is no substantial

question concerning the constitutionality of any state statute.

It is quite evident from a reading of the opinions below in

Costello that the merits were determined by testing the condi-

tions of the prisons against the requirements of the Constitution,

but that there was no process of testing any state statute

against the commands of the Eighth or Fourteenth Amendments.

In Swift & Co. v. Wickham, 382 U.S. lll, the Court held

that three judge courts are not required in Supremacy Clause

cases involving federal-state statutory conflicts. The Court

decided that in Section 2281 the phrase “upon the ground of the

unconstitutionality of such statute” should be read to confine

the three~judge court requirement to those cases where the

injunction against a state statute depends “directly upon a

substantive provision of the Constitution, leaving cases of con- |

flict with a federal statute (or treaty) to follow their normal

course in a single-judge court.” 382 U.S. at 127.

The Fifth Circuit's Costello rule is based on an assumption,

which we accept arquendo, that there is a conflict between the

district court's remedial decree and one or more state statutes.

We submit that this kind of conflict is akin to the Supremacy

Clause issues in Swift and Bransford, supra. If Mr. Wainwright

was ordered to accomplish a result which can be accomplished

only if he ignores state law, the state law was overridden

because of the supremacy of the district court's remedial power

to enforce the Constitution. Such an incidental and probably

temporary effect on state law, does not mnstitute an injunction

restraining the enforcement of the law “upon the ground of the

unconstitutionality of such statute.” 28 0.8.C. §2281.

A number of federal courts have issued remedial orders which

had the arguable effect of overriding state laws. In a number of

the cases the three judge problem is not discussed, but it was

dealt with by Judge Merhige in the Richmond, Virginia school de-

segregation case involving the question of interdistrict relief.

Bradley _v. School Board of City of Richmond, 324 F. Supp. 396

(B.D. Va. 1971), subsequent injunction, 2338 F. Supp. 67 (E.D. Va.

1972), reversed on other grounds, 462 F.2d 1058 (4th Cir. 1972),

affirmed by equally divided court, 412 U.S. 92 (1973).

Judge Merhige found no three judge court necessary because

the validity of the state law was not in question and its possible

disregard was merely a remedy for a constitutional violation. 324

20/

iP. Supp. at 400. Judge Merhige pointed to examples of similar

rulings in other courts, e.g. United States v. Duke, 332 F.2d 759

(Sth Cir. 1964) (voting rights) and Haney v. County Board of

‘Education of Sevier County, 429 F.2d 364 (8th Cir. 1970) (school

-desegregation). The Seyenth Circuit approved an injunction which

480 F.2d 210 (7th Cir. 1973), cert. den. 414 U.S. 1144 (1974). See

also United States v. Greenwood Municipal Sep. School Dist., 406

F.2d 1086, 1094 (Sth Cir. 1969) ("local teacher hiring statutes

y not be interposed to frustrate a constitutional mandate."),

and United States v. Board of Ed. of City of Bessemer, 396 F.2d 44,

$1 (Sth Cir. 1968) (similar).

The United States, as amicus curiae in the court Below, argued

- persuasively that cases such as United States v. Duke, supra,

re a court used equitable powers to “freeze” or temporarily

20/ The three judge court issue was argued in the briefs before

the Fourth Circuit, but was not mentioned in the opinion of that

Court. Bradley, supra, 462 F.2¢ 1058.

set aside a state law for remedial purposes in Gautreaux v. ae

itv, 342 F. Supp. 827, 830 (N.D. Ill. 1972), affirm

7 |

+. or ere —

suspend enforcement of a statute without holding it unconstitu-

tional ought not be treated as three judge cases. The United

States also argued that the need for three judges “siiculd be de-

termined at the outset of litigation ... not in its midst.*

Brief of United States, p. 71. The Court in Swift & Co. v.

Wickham, supra, 382 U.S. at 124, pointed to the purpose of section

2281 to expedite and not delay important litigation. But the

Pifth Circuit's Costello rule will invariably delay litigation.

In complex cases where the remedy stage extends for a period of

years or months, judges will often experiment with remedies, and

choose remedies which trench upon state law or violate state laws

as remedies of last resort after other efforts have failed. A

doctrine such as Costello, which requires a three judge court to

consider the entire case including liability issues ab initio,

requires a duplication of effort which is quite at war with the

purpose to expedite such cases. We submit that cases of conflict

4 between the federal remedial power and state statutes should be

governed by the doctrine of Swift & Co. v. Wickham, 382 U.S. lll,

and treated as essentially Supremacy Clause cases which do not

involve the constitutionaltity of state laws within the meaning

of section 2281.

30

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Tit

The Repeal of Section 2281 Should Preclude

the Convening of A New Three Judge Court

in a Case Which Was Properly Commenced

Before A Single Judge.

After the en banc argument of this case Sut before deci-

sion, the Congress on August 12, 1976, enacted Public Law 94-381,

repealing 28 U.S.C. §2281. Section 7 of Public Law 94-361, pro-

| vides that the act “shall not apply to any action commenced on or

before the date of enactment”. The en banc opinion of the Court

of Appeals did not mention the repeal of section 2281, but pro-

ceeded to decide the case on the assumption that statute was fully

applicable. The dissenting judges did not disagree that section

2261 was applicable in view of section 7, which they called a

“savings clause", but they stated that expansion of section 2281

was unwarranted “with such a clear indication of Congressional

purpose to abolish three-judge courts in this type of Litigation

completely.” 539 F.2d at 554.

We submit that notwithstanding the so called savings

clause, the Court of Appeals should have held section 2281 inappli-

cable to this case because of the principle “that a court is to

apply the law in effect at the time it renders its decision, unless

doing so would result in wanifest injustice or there is statutory

direction or legislative history to the contrary.” Bradley v.

School Board of City of Richmond, 416 U.S. 697, 711; Thorpe v.

Housing Authority of the City of Durham, 393 U.S. 268; United

States v. Schooner Pegsy, |) Cranch 103.

We believe that properly construed there is no legislative

direction that section 2281 should continue to apply after its

repeal in a case \wch as Costello which was properly commenced

before a single judge in 1972, and which only belatedly is argued

a. =

‘

require three judges in remedial proceedings which will re-

and continue after the repeal of section 2281. A decision

t Section 2261 is inapplicable to Costello would be consonant

th the Congressional purpose to relieve the burden of three judg

, and remove procedural uncertainties. These pur, ses are

tated in the Senate Report:

"There are four major reasons for enacting

this legislation which would eliminate the require-

ment of three-judce courts in all cases except

those involving reapportionment or where required

by congressional enactment. They are: (1) to re-

lieve the burden of three-judge court cases, which

have increased in number from 129 in 1963 to 320

in 1973, causing a considerable strain in the work-

load of Federal judges; (2) to remove procedural

uncertainties that exist under the present ambiguous

three-judge court practices; (3) because statutory

and rules changes have eliminated the original rea-

sons for the establishment of three-judge courts:

and (4) because decisional law has provided its ow

safeguards against precipitous injunctive action by

Federal judges."

(S.Rep. No. 94-204, U.S. Coce Cong. & Admin. News,

94th Cong. 2nd Sess. 3162-3163.)

The legis!ative history contains no explanation of sec-

tion 7, except the following statement in the section-by-section

analysis:

Section 7. - This section provides that the act

shall not apply to any action commenced on or before

the date of enactment. It is merely added to make

clear that cases filed prior to the enactment of

this bill shall proceed to final disposition under

the law existing on the date they were commenced.

Section 7 is understandable in view of the principle that

the three-judge court requirement of section 2281 was a jurisdic-

tional limitation on the power of the courts. Section 7 would

There is no further explanation of the savings clause in the |

House Report, the hearings, or the floor debate. Sse House

Report No. 94-1379, July 30. 1976 (To accompany H.R.6150);

Hearings Before the Subcommittee on Improvement in Judicial

Machinery, Senate Judiciary Committee, 92nd Cong. 2nd Sess. on

$.1876, Part 2; Hearing before the Subcommittee on Courts,

Civil Liberties and the Administration of Justice, House

Judiciary Committee, 93rd Cong. 2nd Sess. on $.271, Serial No.

27; Cong. Record June 20, 1975, pp. S$l1111-11112: Com. Rec. July;

30, 1976, p.H8102; Cong. Rec. Aug. 2, 1976, pp. 48143-8145; |

Cong. Rec. June 14, 1973; pp. S$ 19557-19558.

° 32 <-

a

—-— =

provide a simple effective date which would not disrupt the juris-

diction of three-judge courts already considering pending cases.

Cases already before three judges would “proceed to final disposi-

tion." But there is no indication that Congress in enacting

Public Law 94-381, contemplated the complications which might be

caused by the Fifth Circuit's Costello écctrine, which was an-

nounced subsequent to the congressional enactment. Congress had

no reason to expect that following the repeal new three—judge

courts would be ordered in four and six year old cases (as in

Costello and Gates v. Collier, supra) unless they were improperly

commenced before a single judge. But, the Costello rule requires

a three-judge court at the remedial stage of the case. The

Fifth Circuit has acknowledged that the Costello case was properly

Commenced before a single judge coe” and only belatedly and con-

ditionally has come to require a three judge court. 539 F.2d at

550, 552.

This Court should apply the Bradley-Thorpe-Schooner Pecav |

line of decisions, supra, to avoid a plain frustration of the Con-

gressional policy of abolishing three-judge courts for this type

of case. Congress had no reason to expect a new judicially creat-

ed doctrine would expand section 2281 in such a way as to create

an indeterminate number of new three-judge courts far into the

future and long after August 12, 1976, the date of repeal. The

Congressional policy will be best served by a rule, which limits

the applicability of Section 2281 to cases which were or should

ave commenced before three-judge courts in accordance with three-

—. &. _—-——o

The Fifth Circuit said of Costello, that “This case did not

start out as a three-judge case”. 539 F.2d at 550.

e 33 -

}

i

i

;

judge court practice as it existed on August 12, 1976. The Fifth

Circuit's subsequent expansion of the three-judge practice, in

Costello, should yield to the Congressional policy expressed in

Public Law 94-381.

CONCLUS ION

It is respectfully submitted that the judgment of the

Court of Appeals should be reversed insofar as it vacated the in-

junction issued by the district court, and the case remanded for

further proceedings in accordance with the decision of the Court o

Appeals affirming the order of the district court on the merits of

the cause.

Respectfully submitted

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TOBIAS SIMON

1492 South Miami Avenue

Miami, Florida 33130

i ELIZABETH J. du FRESNE

JACK GREENBERG

JAMES M. NABRIT, III

STANLEY A. BASS

LYNN WALKER

10 Columbus Circle

New York, New York 10019

Attorneys for Petitioners

EA |

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