Petition for Writ of Certiorari — Hunt v. Butler

| 90-1556 ~ PBpnee ton, U8

,

No.

IN THE

Fit &D

MAR 19 1991

OFFICE OF THE CLERK |

Supreme Court of the United States

October Term, 1990

WARDEN JAMES RAY, et al..

Petitioners

V

ROBERT LEE BUTLER, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT

OF APPEALS

HARRY A. LYLES

General Counsel

COUNSEL OF RECORD FOR PETITIONERS

STATE OF ALABAMA

DEPARTMENT OF CORRECTIONS

Legal Division

50 North Ripley Street

Montgomery, Alabama

(205) 242-9361

DAVID B. BYRNE, JR.

ROBISON & BELSER

210 Commerce Street

P. O. Drawer 1470

Montgomery, Alabama

(205) 834-7000

II.

ITI.

IV.

QUESTIONS PRESENTED

. WHETHER THIS COURT SHOULD GRANT CER-

TIORARI TO DETERMINE IF FEDERAL

COURTS HAVE THE INHERENT AUTHORITY

TO APPOINT COUNSEL AS OPPOSED TO AN

APPOINTMENT UNDER SECTION 1915(d).

WHETHER A FEDERAL COURT HAS THE AU-

THORITY TO APPOINT COUNSEL UNDER

RULE 83 OF THE FEDERAL RULES OF CIVIL

PROCEDURE AND 28 U.S.C. SECTION 2071.

WHETHER A PROSE LITIGANT IS ENTITLED

TO MORE THAN ONE COURT APPOINTED

ATTORNEY.

WHETHER A WRIT OF MANDAMUS WAS IM-

PROPERLY ISSUED WHEN THERE WAS NO

USURPATION OF POWER NOR ABUSE OF DIS-

CRETION.

x

PARTIES :

Hon. Robert E. Varner ....... United States District Judge

Hon. Richard Cchen ......... Counsel For

Plaintiffs/Respondents

Hon. Abigail P. van Alstyne ...Counsel For

Plaintiffs/Respondents

Hon. David Schoen .......... Counsel For

Plaintiffs/Respondents

Hon. Harry A. Lyles ......... Counsel For

Defendents/Petitioners

Hon. Alice A. Boswell ........ Counsel For

Defendents/Petitioners

Hon. David B. Byrne, Jr. ..... Counsel For

Defendents/Petitioners

Robert Lee Butler ........... Plaintiff/Respondent

SSPE FOE on vives ccccads Plaintiff/Respondent

Andy Wayne Daughtry ...... Plaintiff/Respondent

We SS no inakdacdsseaal Plaintiff/Respondent

FS aren Plaintiff/Respondent

Glennon Hoppins ............ Plaintiff/Respondent

Lord Divine Allah ........... Plaintiff/Respondent

ge IM! Defendant/Petitioner

Morris Thigpen ............. Defendant/Petitioner

eee Defendant/Petitioner

BL. ba PEOPTOIBON 2... wc cc cance Defendant/Petitioner

WE EE és hacutoae ee Defendant/Petitioner

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ........................ i

ec e yee chan 4 he A SAS Se Obes deen ee eens ii

Eg ss RAN SAA ads eesaceeencta iil

Ne ee Ci ieee sss Cnc on aeesecenss Vv

Lec ahah, sch ua tadeasteeecscenna 2

ES 05g 65 55465 0.00.946564650608 550885 2

FEDERAL STATUTES AND RULES ............... 2

STATEMENT OF THE CASE

cc cece hb acces thnbasekaceneevanne 3

PROCEEDINGS BELOW ..................... 4

REASONS FOR GRANTING THE WRIT ........... 5

I. THIS COURT SHOULD GRANT

CERTIORARI TO DETERMINE IF THE

FEDERAL COURT HAS THE INHERENT

AUTHORITY TO APPOINT COUNSEL ........ 5

Il. A FEDERAL COURT HAS THE

AUTHORITY TO APPOINT COUNSEL

UNDER RULE 83 OF THE FEDERAL

RULES OF CIVIL PROCEDURE AND

8 ee ly oy rrr 7

xy

III. A PRO SE LITIGANT IS NOT

ENTITLED TO MORE THAN ONE COURT

Pig st i py ti wy! | 4 Gaerrrrr ee 8

IV. THE WRIT OF MANDAMUS WAS

IMPROPERLY ISSUED WHEN THERE

WAS NO USURPATION OF POWER

NOR ABUSE OF DISCRETION ................ 9

CPPPEE, RSSGASKER ECARD Ab SAsecnennekannnenens 12

CERTIFICATE OF SERVICE .................000e- 13

ELEVENTH CIRCUIT OPINION ......... Appendix A

DISTRICT COURT OPINION ............. Appendix B

SUPPLEMENTAL APPENDIX... WRIT.OF

MANDAMUS

ON ne caer oo

TABLE OF CASES

CASES PAGE

Banker's Life and Casualty Co. v. Holland,

346 U.S. 379, 74 S.Ct. 145, 98

i CE a eo keene ob baweens 10

Barnard v. Thorstenn, 489 U.S. —__ 109 S.Ct.

1294, 103 L.Ed.2d 559 (1989) .................005. 6

Cooke v. United States, 267 U.S. 517 (1925) ............ 7

Risenburg v. United States District Court for

the Southern District of ilinois, 910 F.2d

eR ee Gs BE dic Cheek ccauneseeaecns cauasacaes 11

’ Ex parte Peterson, 253 U.S. 300, (1920) .............45. 7

Franquez v. United States, 604 F.2d 1239,

Sg ES kk nnn n4 bacdske Ceres cieaudaaee sean 8

Frazier ». Heebe, 482 U.S. 641, 107 S.Ct. 2607,

Se Cae ee CED ads doccnacdkixbaeThdaanieees 6

FTC v. Superior Court Trial Lawyers Association,

oe |) eee SU errr ee 5, 6

Helvering v. Gowran, 302 U.S. 238, (1937) ............. S

In re Synder, 472 U.S. 634, (1985)... ccc ccc cece eees 6

Kerr v. United States District Court for the

Northern District of California, 426 U.S. 394,

96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) .............. 10

Levine v. United States, 362 U.S. 610 (1960) ........... 7

-Vi-

Link v. Wabash R.R. Co., 370 U.S. 626 (1962) .......... 7

Mallard v. United States District Court for the

Southern District of Iowa, 490 U.S. 296, 109

S.Ct. 1814, 104 L.Ed.2d 318 (1989) _............. 5, 10

Powell v. Alabama, 287 U.S. 45, 58 S.Ct.

ee OE Me, BU CROUED. cock inacccrecnscanecoenae 6

Roadway Express, Inc. v. Piper, 447 U.S.

EE ice i che buenas eheWSeeeue ckseeekes 6, 7

Roche v. Evaporated Milk Ass'n, 319 U.S.

CECE C cc Luca kin dius daasbapsenseuenscuneneen 8

Strickland v. Washington, 466 U.S.

PE cic. l a Cie eeekeheeuseesancebeakseoneen s

Supreme Court of New Hampshire ve. Piper,

470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d

EE << ccc kan sees abee hatha egestsseeeeaecees 6

Will v. United States, 8389 U.S. 90, 88 S.Ct.

oo a a eax G4 RANA RRA a SNe aR 10

No.

IN THE

Supreme Court of the Hnited States

October Term, 1990

WARDEN JAMES RAY, et al.,

Petitioners,

v.

ROBERT LEE BUTLER, et al.,

Respondents.

PETITION FOR WRITE OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT

OF APPEALS

The petitioners respectfully pray that a writ of certiorari

issue to review the granting of mandamus that the Eleventh

Circuit Court of Appeals has issued to the Honorable Robert

Varner, United States District for the Middle District of

Alabama.

OPINIONS BELOW

1. The granting of the writ of mandamus by the

Eleventh Circuit is attached hereto as Appendix A to this

petition. The District Court Opinion is attached hereto as

Appendix B. The Writ of Mandamus is attached as the

Supplemental Appendix.

JURISDICTION

The issuance of the writ of mandamus by the Eleventh

Circuit was granted on December 19, 1990. This Court has

jurisdiction under 28 U.S.C. Section 1254.

FEDERAL STATUTES AND RULES

28 U.S.C. Section 2071.

28 U.S.C. Section 1915(d).

Federal Rules of Civil Procedure 83.

STATEMENT OF THE CASE

A. STATEMENT OF THE FACTS NECESSARY

TO THE ARGUMENT OF THE ISSUES.

The Respondents have filed a lawsuit requesting that a

class of inmates be certified. This lawsuit attacks the condi-

tions of confinement at the Kilby Correctional Facility’s

Segregation Unit in Mt. Meigs, Alabama. The Middle District

of Alabama has not yet certified the class pursuant to Rule 23

of the Federal Rules of Civil Procedure.

Over two years prior to the filing of the proposed class

action, several cases were consolidated which attack the

alleged unconstitutional conditions at the Kilby Segregation

Unit.

On November 28, 1989, the Honorable Charles S. Coody,

United States Magistrate for the Midd-s District of Alabama,

appointed both Richard Cohen and David Schoen to repre-

sent the Plaintiff in Lionel Green v. Dept. of Corrections, Civil

Action No. 88-D-1101-N. This lawsuit also attacked the

conditions of confinement at Kilby’s Segregation Unit. It is

important to note that the order appointing them was not

entered under the authority of 28 U.S.C. Section 1915(d).

Thereafter, Abigail P. van Alstyne was employed by South-

ern Poverty Law Center specifically to work on this case. The

Respondents’ attorneys asked for consolidation of Lionel

Green, with the Butler case, and filed an amended complaint

requesting class certification. At this time, Mr. Schoen also

represented Glennon Hoppins, an indigent inmate, who had

filed several lawsuits attacking many of the same conditions

of confinement which the class action lawsuit addressed.

On September 14, 1990, the Honorable Robert E. Varner,

United States District Judge for the Middle District of

Alabama, issued the order which is the subject of this petition

for writ of certiorari. (Appendix B) In that order, Judge

Varner relieved David Schoen and Richard Cohen of their

ses

court appointment. Judge Varner appointed Abigail P. van

Alstyne to represent the Plaintiffs in the consolidated cases as

well as the Plaintiff class if and when such a class was

certified. Likewise, this appointment was not made pursuant

to 28 U.S.C. Section 1915(d). The order of the court specifically

stated that the court had no objection if Mr. Schoen and Mr.

Cohen wished to continue to help Ms. van Alstyne. The court

set forth that there was only going to be one court appointed

attorney. The court further stated that if Mr. Schoen and Mr.

Cohen wished to withdraw from the case, they should file a

motion for leave to withdraw.’

B. PROCEEDINGS BELOW

The Respondents filed their second amended complaint

on April 13, 1990 requesting class certification and naming as

Defendants the following: Guy Hunt, Governor of the State of

Alabama; Morris Thigpen, Commissioner of the Alabama

Department of Corrections; Robin Swift, Director of Finance

for the State of Alabama; E. L. Harrelson, Warden of Kilby

Correctional Facility; and James Ray, Deputy Warden of

Kilby Correctional Facility.

The Petitioners filed their answer on May 31, 1990.

Judge Robert E. Varner issued the order sub judice on

September 14, 1990. The Respondents thereafter, filed a

motion for reconsideration on September 28, 1990, which was

denied on October 4, 1990.

On October 15, 1990, the Respondents filed a petition for

writ of mandamus to the Eleventh Circuit Court of Appeals.

The Petitioners filed their response to the petition for

writ of mandamus on December 7, 1990.

On December 19, 1990 the Eleventh Circuit directed that

a writ of mandamus be issued to the Honorable Robert E.

! Richard Cohen and David Schoen filed a notice to withdraw as

counsel for Lionel Green on March 4, 1991.

Varner, United States District of Alabama. This writ directed

Judge Varner to vacate the portion of his order relieving

Richard Cohen and David Schoen as attorneys for the

proposed Plaintiff class. The writ further directed that Judge

Varner vacate his order appointing Abigail P. van Alstyne to

represent Glennon Hoppins.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE IF FEDERAL COURTS POSSESS

THE INHERENT AUTHORITY TO APPOINT AND

REQUIRE COUNSEL TO SERVE.

In the Eleventh Circuit Court of Appeals opinion direct-

ing that a writ of mandamus be issued to Judge Robert E.

Varner, United States District Judge for the Middle District

of Alabama, the Court relied on Mallard v. United States

District Court for the Southern District of Iowa, 490 U.S. 296,

109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). The Eleventh Circuit

correctly noted that after Mallard, supra, a court may not use

28 U.S.C. Section 1915(d) to force an attorney to represent an

indigent plaintiff if the attorney objects. However, the attor-

ney in this case, Ms. Abigail P. van Alstyne, was not

appointed under 28 U.S.C. Section 1915(d). Ms. van Alstyne

was appointed to represent an indigent plaintiff pursuant to

the inherent authority which the Federal Courts possess. In

Mallard, supra, the court specifically appointed the attorney

in that case under Section 1915(d). Such is not the case here.

This case presents the issue left open in Mallard: whether

federal courts have the inherent power to require lawyers to

serve.

In FTC v. Superior Court Trial Lawyers Association,

___ U.S. ___, 110 S.Ct. 768 (1990), Justice Blackmun in his

dissent noted:

“Attorneys are not merely participants in a competi-

tive market for legal services; they are officers of the

i.

court. Their duty to serve the public by represent-

ing indigent defendants is not only a matter of con-

science, but is also enforcible by the government’s

power to order such representation, either as a

condition of practicing law in the district, or on pain

of contempt.”

FTC v. Superior Court Trial Lawyers Association, at 791.

It is well recognized that Federal Courts have the

inherent authority to regulate its bar. Frazier v. Heebe, 482

U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987). (District

Court has discretion to adopt local rules that are necessary to

carry out the conduct of its business.) See, In re Synder, 472

U.S. 634, 643 (1985).

In Barnard v. Thorstenn, 489 U.S. —_— 109 S.Ct. 1294,

103 L.Ed.2d 559(1989) this Honorable Court, in determining

that a Virgin Island residency requirement was invalid,

stated: g

“'.. if handling indigent criminal cases is a require-

ment of admission to the Bar, a non-resident knows

that he must appear himself or arrange with a

resident lawyer to handle the case when he is

unavailable.”

at 1302.

This Court has also recognized that bar members “. . .

could be required to represent indigents and perhaps to

participate in formal legal-aid work.” Supreme Court of New

Hampshire v. Piper, 470 U.S. 274, 287 105 S.Ct. 1272, 1280, 84

L.Ed.2d 205 (1985). An attorney, admitted to the bar,

becomes an officer of the Court and is “. .. bound to render

services when required by such appointment.” Powell v.

Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932).

It is undisputed that Federal Courts possess inherent

authority. Federal Courts have the power to appoint masters

and experts as well as the power to sanction. See, Roadway

a 2

Express, Inc. v. Piper, 447 U.S. 752, 765 (1980); Link v.

Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Ex parte

Peterson, 253 U.S. 300, 313 (1920).

Additionally, this Court has recognized that Federal

Courts have inherent contempt powers. Levine v. United

States, 362 U.S. 610 (1960) (criminal contempt powers are an

inherent aspect of federal courts); Cooke v. United States, 267

U.S. 517, 539 (1925) (contempt power is essential in the

administration of justice).

It is clear that this Court recognizes the importance of

allowing Federal Courts to regulate their own bars. This

power is fundamental and the appointment of Ms. van

Alstyne should be upheld. Judge Varner’s order appointing

counsel (Ms. van Alstyne) clearly was not an abuse of

discretion of an Article III Court’s inherent powers. The

Constitution does not require federal courts to engage in the

“featherbedding” of appointed counsel.

Il. A FEDERAL COURT HAS THE AUTHORITY TO

APPOINT COUNSEL UNDER RULE 83 OF THE

FEDERAL RULES OF CIVIL PROCEDURE AND

28 U.S.C. SECTION 2071.

28 U.S.C. Section 2071 (1982) provides that “(t]he Su-

preme Court and all courts established by Act of Congress

may from time to time prescribe rules for the conduct of their

business. Such rules shall be consistent -ith Acts of Congress

and rules of practice and procedure prescribed by the

Supreme Court.” Rule 83 of the Federal Rules of Civil

Procedure provides in pertinent part:

“(ijn all cases not provided for by rule, the district

judges and magistrate may regulate their practice

in any manner not inconsistent with these rules or

those of the district in which they act.”

Therefore, a Federal Court may regulate the proceedings

before it if done so in a manner consistent with the Federal

=

Rules or statutes. Franquez v. United States, 604 F.2d 1239,

1244-45 (9th Cir., 1979) (jury trial was granted when a

federal statute did not provide for such).

Clearly, Judge Robert Varner had the authority to

appoint Abigail P. van Alstyne to represent an indigent

litigant. Not only does inherent authority exist which empow-

ers a Federal District Judge to appoint counsel, but under

Rule 83 of the F.R.C.P. and U.S.C. Section 2071 the Court has

the express authority. If Judge Varner had the power by any

authority to appoint Ms. van Alstyne, his Order should be

upheld even if wrong grounds were relied upon. See, Helvering

v. Gowran, 302 U.S. 238, 245 (1937); Roche v. Evaporated

Milk Ass’n, 319 U.S. 21, 32 (1943). The District Court was

within its authority in appointing Ms. van Alstyne.

III. A PRO SE LITIGANT IS NOT ENTITLED MORE

THAN ONE COURT APPOINTED ATTORNEY.

In Strickland v. Washington, 466 U.S. 668 (1984), this

Honorable Court held that the Sixth Amendment right to

counsel requires only that a defendant be provided “reason-

ably effective assistance.” Strickland, supra, at 687. Plaintiffs

do not have a “right” to have more than one court appointed

attorney. The attorney appointed by Judge Varner, Ms.

Abigail P. van Alstyne, clearly provides the reasonably

effective assistance required in Strickland. Ms. van Alstyne

was handling the majority of the day to day preparation of the

case. Furthermore, Ms. van Alstyne was law clerk to the

Honorable John Carroll, United States Magistrate for the

Middle District of Alabama for two years handling 42 U.S.C.

Section 1983 ca.es. In fact, Ms. van Alstyne was specifically

employed by Southern Poverty Law Center to handle this

“prison condition case.”

Having three lawyers representing the inmates in this

case obviously would result in an extreme amount of overlap-

ping of work and duplication of expenses. Having just one

appointed attorney would place a reasonable limit on the

«is

amount of attorneys fees, if in fact, the plaintiffs were to

prevail. In appointing one attorney, Judge Varner was not

attempting to limit reasonable attorneys fees, but only those

which would necessarily overlap and result in duplicative

billing. Given that in less than nine months, $8,000.00 in

expenses had already been incurred and 1600 attorney hours

and 800 paralegal hours had been generated, there was an

apparent need for some control to be exercised over the

attorneys fees in this case. Judge Varner’s attempt to reason-

ably contain attorneys fees in this case at the “front end,” is

clearly desirable, especially in light of the fact that such

expenditure would further deplete the limited resources of

the Department of Corrections if the inmates were to prevail.

The Court’s actions were clearly designed to promote the

efficient resolution of these cases. The appointment of one

lawyer to this case is clearly within the discretion of Judge

Robert E. Varner. A civil litigant clearly is not entitled to

more representation than a criminal Defendant whose very

liberty is at stake.

Certiorari should be granted since the Eleventh Circuit

Court of Appeals found that Judge Varner could not appoint

Ms. van Alstyne under 28 U.S.C. 1915(d), when in fact Ms.

van Alstyne was appointed under the inherent authority that

the Federal Courts possess. This appointment is aiso permis-

sible under F.R.C.P. 83 and 28 U.S.C. Section 2072.

A Federal judge has the authority to limit an appoint-

ment in a civil case to one attorney. A review of such is not a

proper use of the writ of mandamus.

IV. THE WRIT OF MANDAMUS WAS IMPROPERLY

ISSUED WHEN THERE WAS NO USURPATION

OF POWER NOR ABUSE OF DISCRETION.

The Writ of Mandamus is an extraordinary remedy.

Mandamus should only issue when exceptional circumstances

exist which amount to a judicial “usurpation of power.” To

- 10-

ensure that such a writ will only issue under extraordinary

circumstances, this Court has set forth certain conditions

which must be met in order for the writ to be granted. The

party seeking Mandamus must clearly show that there are no

other adequate means to obtain the relief desired and that the

Petition must show that such issuance is “clear and indisput-

able” to the extent of “abuse of discretion.” Kerr v. United

States Court for the Northern District of California, 426 U.S.

394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Will v. United

States, 389 U.S. 90, 88 S.Ct. 269 (1967).

This Court has also observed that a Writ of Mandamus is

an extraordinary remedy as they “.. . have the unfortunate

consequence of making the [District Court] judge a litigant,

obliged to obtain personal counsel or to leave his defense to

one of the litigants [appearing] before him.” Kerr v. United

States District Court for the Northern District of California,

supra, 426 U.S. at 402, 96 S.Ct. at 2124. This Court further

stressed that piecemeal litigation should be discouraged in

the interest of fair and prompt administration of justice.

Granting such a writ without extraordinary circumstances

existing would defeat this highly desirable goal.

The Respondents have failed to meet their burden of

showing that they lack other means to obtain relief and have

failed to show that there was a “clear abuse of discretion”

such as to amount to a “usurpation of [the judicial ] power.”

Mallard v. United States District Court, 490 U.S. 296, 109

S.Ct. 1814, 1822 (1985), citing Banker's Life and Casualty Co.

“. Holland, 346 U.S. 379, 383, 74S.Ct. 145, 148, 98 L.Ed. 106

(1953). This Court in Mallard held that mandamus was

proper as no alternative remedies existed and that: “. . . the

principal reasons for our reiuctance to condone use of the

writ--the undesirability of making a district court judge a

litigant, and the inefficiency of piecemeal appellant litigation—

are not present here” (cites omitted).

The Respondents bear the burden of showing they lack

.o

other means to obtain relief. Mandamus should never be used

as a substitute for appeal. The Respondents failed to ask for

certification of any controlling question of law for an immedi-

ate appeal under 28 U.S.C. 1292(b). See, Eisenberg v. United

States District Court for the Southern District of Illinois, 910

F.2d 374 (7th Cir., 1990). They chose instead to circumvent

their remedies and ask for the extraordinary writ of manda-

mus. The Respondents should not be allowed to willfully

bypass their available options and opt for a writ of mandamus.

This case is easily distinguishable from Mallard in that

Judge Varner has been forced into the role of litigant by the

Respondents. Furthermore, the Respondents failed to show

they lacked other means of obtaining the action sought. As

such, the granting of the writ of mandamus by the Eleventh

Circuit was improper.

Finally this case presents the clear and discrete issue left

unanswered in Mallard: Whether Federal Courts have the

inherent power to require lawyers to serve. The Petitioners

respectfully suggest certiorari should be granted and the

question answered in the affirmative.

- 1]12-

CONCLUSION

For the reasons stated, this Court should grant certiorari

to decide the important Federal questions presented in this

case.

Respectfully, —

: ae j Ps ia

—/ My

4 J aff ff SH fi

‘ ZEILL EZ 2 oe eae

HARB) .LYL

Ge ‘ouns kh

ATICE A. a a

Assistant General Counsel

ADDRESS OF COUNSEL:

Alabama Department of Corrections

Legal Division

Gordon Persons Building

50 North Ripley Street

Montgomery, Alabama 36130

(205) 242-9360

VOU A il 7

/ be BYRNE, JR.

ADDRESS:

ROBISON & BELSER

210 Commerce Street

P. O. Drawer 1470

Montgomery, Alabama 36102

(205) 834-7000

COUNSEL FOR PETITIONERS

-13-

CERTIFICATE OF SERVICE

We, Harry A. Lyles, Alice A. Boswell, apg David B.

Y

Byrne, dr., do hereby certify that on this day of

, 1991 we did serve three copies of

this petition and appendix on Respondents by placing same in

the United States Mail, first class, postage prepaid and

properly addressed to counsel of record for Respondents as

follows:

Hon. J. Richard Cohen

Hon. Abigail P. van Alstyne

Southern Poverty Law Center

P. O. Box 2087

Montgomery, Alabama 36102-2087

Hon. David Schoen

2800 Zelda Road

Suite 100-6

Montgomery, Alabama 36106

We further certify that we have served all parties

required to be served.

pate La . a

HARRY A. LYLES , ae

Gener nsel

pon E A. BOSWELL

VAM EA C iy -—

DAVJD B. BYRNE. L.

Counsel

a ee ee

?

>

ey eae ee ee

v

APPENDICES

-la-

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-7837

IN RE:

LORD DIVINE ALLAH,

VINCIN DAVIS,

ANDY DAUGHTRY,

GORDON VAUGHAN, and

LIONEL GREEN,

Petitioners.

On Petition for Writ of Mandamus

to the United States District Court

for the Middle District of Alabama

(December 18, 1990)

Before TJOFLAT, Chief Judge, JOHNSON, and COX,

Circuit Judges.

BY THE COURT:

Petitioners’ motion for leave to file a reply to respondents’

answer to the petition for writ of mandamus is GRANTED.

Respondents’ motion to remand this case to the district

court for the purpose of holding an evidentiary hearing is

DENIED.

- 24 -

The petition for writ of mandamus is GRANTED in part

and DENIED in part. We issue a writ of mandamus to the

United States District Court for the Middle District of

Alabama, directing The Honorable Robert E. Varner to

vacate that portion of his order which removed Richard

Cohen and David Schoen as attorneys for the proposed

plaintiff class in the consolidated actions Butler v. Hunt, No.

87-V-058-N, and Green v. Hunt, No. 88-D-1101-N.

We also issue a writ of mandamus directing that Judge

Varner vacate that portion of his order appointing attorney

Abigail van Alstyne to represent plaintiff Glennon Hoppins.

After the Supreme Court’s decision in Mallard v. United

States District Court for the Southern District of Iowa, — —

U.S. ___, 109 S.Ct. 1814 (1989), a court may not use 28 U.S.C.

§ 1915(d) to force an attorney to represent an indigent

plaintiff if the attorney objects. Ms. van Alstyne asserts that

she does not wish to represent Mr. Hoppins for ethical and

professional reasons. She has attempted to withdraw as Mr.

Hoppins’ attorney, through her motion for reconsideration of

the district court’s order, and the district court has denied her

motion. Ms. van Alstyne has shown that she “lack[s] adequate

alternative means to obtain the relief [she]seek[s],” 7d. at _—

, 109 S.Ct. at 1822; the extraordinary remedy of a writ of

mandamus is therefore justified.

We decline to issue a writ of mandamus directing that

Judge Varner vacate that portion of his order which asserted-

ly consolidated the cases in question. We do so without

resolving the conflict between the parties as whether this

order actually consolidated the cases. We note instead that a

district court’s order consolidating cases for trial is not a

proper subject for mandamus relief absent a clear abuse of

discretion, see Pet Milk Co. v. Ritter, 323 F.2d 586, 588 (10th

Cir. 1963) (per curiam).

IT IS SO ORDERED.

_

APPENDIX B

IN THE UNITED STATES COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

LORD DIVINE ALLAH,

ROBERT LEE BUTLER,

GLENNON HOPPINS,

LIONEL M. GREEN, ETC.

Plaintiffs,

v.

E. L. HARRELSON,

Defendants.

CIVIL ACTION NO. 86V-793-N

CIVIL ACTION NO. 87V-058-N

CIVIL ACTION NO. 87V-780-N

CIVIL ACTION NO. 87V-864-N

CIVIL ACTION NO. 88V-005-N

CIVIL ACTION NO. 88V-1101-N

ORDER

Upon consideration of the files and records in the above-

styled cases, this Court is entering this Order in an effort to

clarify certain matters, as well as to set specific dates

regarding discovery, trial, etc. Therefore, itis ORDERED by

this Court:

1. That all ofthe above-styled cases are hereby consoli-

dated as provided by Rule 42(a), Federal Rules of Civil

Procedure.

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2. That the Hon. Abigail P. van Alstyne is hereby

appointed to represent the Plaintiffs in said cases, as well as

the Plaintiff Class if and when such aclass is certified by this

Court. !

3. Thatthe Hon. David Schoen and the Hon. J. Richard

Cohen are hereby relieved of their previous appointments as

Plaintiffs’ counsel in Civil Action No. 87V-780-N and

88V-1101-N.!

4. That, effective with the date of this Order, the parties

are to file all future pleadings, motions, etc., regarding these

consolidated cases in Civil Action No. 87V-58-N, presently

styled Robert Lee Butler v. Warden James Ray, et at, and the

Clerk’s Office is DIRECTED to mark the Court’s docket

sheets accordintly.

5. That, on or before October 15, 1990, Plaintiffs file

with this Court a Comprehensive Amended Complaint setting

forth Plaintiffs’ specific claims in these cases. Said Compre-

hensive Amended Complaint will replace all prior com-

plaints, amended complaints, and any amendments thereto

filed in the above-styled cases.

' In reviewing the files in these cases, this Court noticed that two

attorneys (Messrs. David Schoen and J. Richard Cohen) had been appointed

by the Court to represent the Plaintiff, Lionel M. Green, in Civil Action No.

&8V-1101-N [see Order dated November 28, 1989} that Attorneys J.

Richard Cohen, Abigail P. van Alstyne, and David Schoen had made an

appearance on behalf of Robert Lee Butler in Civil Action Nu. 87V-58-N

{see Notice of Appearance filed January 19, 1990}; that the Hon. David

Schoen had been appointed to represent Plaintiff, Glennon Hoppins, in

Civil Action No. 87V-780-N [see Order dated September 30, 1987} and that

no attorney had been appointed to represent Plaintiffs in Civil Actions No.

86V-793-N, 87V-864-N, and 88V-5-N. The purpose of Paragraphs 2 and 3 of

this Order is to clarify for the record that there will be only one court-

appointed attorney in these cases. If the other attorneys want to continue to

help the Plaintiffs’ court-appointed attorney, the Court has no objection.

However, if said attorneys wish to withdraw from the cases and let court-

appointed counsel continue alone, they may file a motion for leave to

withdraw with the Court.

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6. That, onor before November 5, 1990, the Defendants

file their Answer to said Comprehensive Amended Com-

plaint.

7. That all discovery in these cases be completed on or

before January 11, 1991.,

8. That the trial of these cases is hereby scheduled for

March 11, 1991, at 9:00 a.m., in Montgomery, Alabama.

9. That the jury for trial of these cases will be selected

on February 25, 1991, at 10:00 a.m., in Montgomery, Ala-

bama.

DONE this 14th day of September, 1990.

R. E. VARNER

UNITED STATES DISTRICT JUDGE

SUPPLEMENTAL APPENDIX

-le-

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

IN .tE:

LORD DIVINE ALLAH,

VINCIN DAVIS,

ANDY DAUGHTRY,

GORDON VAUGHAN, and

LIONEL GREEN,

Petitioners.

WRIT OF MANDAMUS

To the HONORABLE ROBERT E. VARNER, Senior

Judge of the United States District Court for the Middle

District of Alabama.

Whereas the United States Court of Appeals for the

Eleventh Circuit rendered its decision on December 18, 1990

granting in part and denying in part a petition for writ of

mandamus; NOW THEREFORE you are commanded to

vacate that portion of your order which removed Richard

Cohen and Davis Schoen as attorneys for the proposed

plaintiff class in the consolidated actions Butler v. Hunt, No.

87-V-058-N, and Green v. Hunt, No. 88-D-1101-N and that

portion of your order which appointed attorney Abigail van

Alstyne to represent plaintiff Glennon Hoppins, all in con-

formity with this court’s opinion of December 18, 1990. Done

this 19th day of December, 1990.

A True Copy - Attested MIGUELJ. CORTEZ, Clerk

Clerk, U.S. Courtof Appeals, | United States Court of

Eleventh Circuit Appeals for the

Eleventh Circuit

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Deptity Clerk nie Yel? [. |

Atlanta, Georgia