Opposition Brief — Cuomo v. Koehler

Supreme Court, U.S.

FIiILeD

7, |

\2 FEB 9 987

ai JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

MARIO M. CUOMO, Governor of the State of

New York, and THOMAS A. COUGHLIN III,

Commissioner of the New York State

Department of Correctional Services,

Petitioners,

vs.

RICHARD J. KOEHLER, Commissioner of the

New York City Department of Corrections;

HARVEY PIERCE, JR., Warden, New York

City House of Detention for Men; D.

MICHAEL PEPE, CLAYTON JEMMOTT and

JOHN KIERNON, Deputy Wardens, New York

City House of Detention for Men;

Respondents,

(captioned continued on next page)

MUNICIPAL RESPONDENTS’ BRIEF IN

OPPOSITION TO A PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

PETER ZIMROTH,

Corporation Counsel

of the City of New York,

_Attorney for Municipal

Respondents,

100 Church Street,

New York, New York 10007.

(212) 566-4338 or 4339

LEONARD J. KOERNER*,

PAUL T. REPHEN,

of Counsel.

February 9, 1987

*Attorney of Record

and EDWARD I. KOCH, Mayor of the City of

New York, individually and in their official

capacities,

-and-

JAMES BENJAMIN, MIGUEL CALINDEZ,

BRUCE HAYES, JOSE SALDANA and

ROBERT ESCHERT, detainees of the New

York City House of Detention for Men,

individually and on behalf of all other

persons similarly situated,

Respondents.

QUESTIONS PRESENTED

1. In view of the finding by the Court

of Appeals that the failure of petitioners to

expeditiously accept from New York City

persons sentenced to terms of imprisonment

in State correctional facilities may contribute

to unconstitutional overcrowding in New York

City's jails and make it impossible for the

City to comply with prior District Court

judgments establishing acceptable conditions

of confinement in those jails, was the

* decision of the Court of Appeals affirming an

order of the District Court granting a

preliminary injunction requiring petitioners

to accept custody of all "State ready"

inmates within forty-eight hours of their

processing inconsistent with the decision of

this Court in Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89 (1984)?

2. Was the Court of Appeals correct in

holding that the District Court had authority

under the All Writs Act, 28 U.S.C.

§165i(a), to issue the preliminary injunction,

where that Court found that the District

Court was faced with the necessity of acting

immediately to relieve unconstitutional

conditions of confinement in City jails which

might be attributed to petitioners?

TABLE OF CONTENTS

QUESTIONS PRESENTED .........

TABLE OF AUTHORITIES .........

STATEMENT OF THE CASE........

REASONS FOR DENYING PETITION

FOR A WRIT OF CERTIORARI

ARGUMENT

IN VIEW OF THE FINDING BY

THE COURT OF APPEALS

THAT THE FAILURE OF

PETITIONERS . TO

EXPEDITIOUSLY ACCEPT

FROM NEW YORK CITY

PERSONS SENTENCED TO

TERMS OF IMPRISONMENT IN

STATE CORRECTIONAL

FACILITIES MAY

CONTRIBUTE TO UNCON-

STITUTIONAL OVER-

CROWDING IN NEW YORK

CITY'S JAILS AND MAKE IT

IMPOSSIBLE FOR THE CITY

TO COMPLY WITH PRIOR

DISTRICT COURT

JUDGMENTS ESTABLISHING

ACCEPTABLE CONDITIONS

OF CONFINEMENT IN THOSE

JAILS, THE DECISION OF

THE COURT OF APPEALS

AFFIRMING AN ORDER OF

THE DISTRICT COURT

GRANTING A PRELIMINARY

INJUNCTION REQUIRING

PETITIONERS TO ACCEPT

iii

TABLE OF CONTENTS

Page

CUSTODY OF ALL "STATE

READY" INMATES WITHIN

FORTY-EIGHT HOURS OF

THEIR PROCESSING WAS NOT

INCONSISTENT WITH THE

DECISION OF THIS COURT

IN PENNHURST STATE

SCHOOL AND HOSPITAL V.

HALDERMAN, 465 U.S. 8:9

(1984). .

THE COURT OF APPEALS

CORRECTLY HELD THAT THE

DISTRICT COURT HAD

AUTHORITY UNDER THE ALL

WRITS ACT, 28 U.S.C.

§1651(a), TO ISSUE THE

PRELIMINARY INJUNCTION........ 30

CONCLUSION —«s__ cccccccccccccccces 38

iv

TABLE OF AUTHORITIES

Cases:

Page

Atascadero State Hospital

v. Scanlon, 473 U.S.

105 S. Ct. 3142 (1985

Benjamin v. Malcolm,

495 F. Supp. 1357

(S.D.N.Y., 1980)

Benjamin v. Malcolm,

528 F. Supp. 925

(S.D.N.Y., 1981)

B.K. Instrument,

Inv. v. United

States, 715 F.2d

713 (2d Cir., 1983)

Doe v. Blum, 729 F.2d

186 (2d Cir., 1984)

Doran v. Salem Inn,

Inc., 422 U.S. 922

0 oe eee

Edelman v. Jordan,

415 U.S. 651 (1974)

Ex Parte Young, 209

U.S. 123 (1908)

General Building

Contractors Assn.,

Inc. v. Pennsylvania,

458 U.S. 375 (1982)

er eine 50

occcccceces 53

cescccecoes 31

ecccces 51

rors ae 51

TABLE OF AUTHORITIES

Page

Cases:

Hanson Trust PLC

v. SCM Corporation,

774 F.2d 47 (2d Cir.,

ccc ccc ccc ccccs 56

In Re Baldwin-United

770 F.2d 328 (2d

SPURT TESST ee 56

Mitchell v. Guomo,

748 F.2d 804 (2d

CS ee ica oo oe

National Coalition

to Ban Hardguns v.

Bureau of Alcohol,

Tabacco & Firearms,

715 F.2d 632 (2d Cir.,

MN Bee a dees sesccscccecs 51

Pennhurst State

School and Hospital

v. Halderman, 465

ln occ tees oe. 2

34, 43-45

Tate v. Frey, 735

F.2d 986 (6th Cir.,

ee eee eee psec cence. 41

United States v.

New York Telephone

Co., 434 U.S. 159

cc ccccccs 45, 46

TABLE OF AUTHORITIES

Page

Cases:

Warth v. Seldin, 422

OR ME > are 51

Other Authorities:

United States Constitution

Pe = weecavecccccs passim

28 U.S.C. $1651(a)

Ce I tee eeeee 45

42 U.S.C. 6001 et seq.

(Federal Developmentally

Disabled Assistance and

Bill of Rights Act) _............ 32

No. 86-1064

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

MARIO M. CUOMO, Governor of the State of

New York, and THOMAS A. COUGHLIN III,

Commissioner of the New York State

Department of Correctional Services,

Petitioners,

vs.

RICHARD J. KOEHLER, Commissioner of the

New York City Department of Corrections;

HARVEY PIERCE, JR., Warden, New York

City House of Detention for Men; D.

MICHAEL PEPE, CLAYTON JEMMOTT and

JOHN KIERNON, Deputy Wardens, New York

City House of Detention for Men; and

EDWARD I. KOCH, Mayor of the City of New

York, individually and in their official

capacities,

Respondents,

(captioned continued on next page)

~

-and-

JAMES BENJAMIN, MIGUEL CALINDEZ,

BRUCE HAYES, JOSE SALDANA and

-ROBERT ESCHERT, detainees of the New

York City House of Detention for Men,

individually and on behalf of all other

persons similarly situated,

Respondents.

MUNICIPAL RESPONDENTS' BRIEF IN

OPPOSITION TO A PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED

- STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

STATEMENT OF THE CASE

(1)

Petitioner seeks to have this . Court

review by writ of eatin an opinion of the

Second Circuit dated September 25, 1986

‘which unanimously affirmed an order of the

United States District Court for the Southern

District of New York dated March 27, 1986 |

which had joined the pecitioners’ = as

third-party defendants in Benjamin v.

Malcolm, 75 Civ. 3073 pending a

determination whether they should _ be

a ee ee SO ee ED ome - i ee o— ™ . _

retained permanently as defendants and

granted a preliminary injunction compelling

them to accept custody of each sentenced

male, adult person (State ready) housed in

New York City correctional facilities within

forty-eight hours after the papers necessary

for transfer have been completed.

Since the decision sought to be

reviewed here is the culmination of a long

history of litigation between the State and

the City, it is necessary to set forth the

proceedings in detail.

(2)

Benjamin v. Malcolm was commenced by

the Legal Aid Society in 1975 on behalf of all

pre-trial detainees housed in the New York

City House of Detention. for Men on Rikers

Island ("HDM"). The plaintiffs alleged that

they were being subjected to conditions of

confinement which violated their

constitutional rights. A trial was begun

ste he.

:

:

.

é

:

:

BEST AVAI

before Judge Lasker in the fall of 1976 and

completed in the spring of 1977.

In 1978 the City and the plaintiffs

commenced negotiations in an attempt to

resolve some of the outstanding issues which

resulted in consent decrees relating to

conditions of confinement.

In September 1979 the parties entered

into a stipulation in which it was agreed that

the record in the case established, inter

alia, that at the time of trial, the housing

blocks at HDM were overpopulated and that —

such overpopulation resulted in an

"... atmosphere of tension and

hostility, a strain on all of the

institution's facilities , and

interference with supervision,

protection and provision of

services to the plaintiff class."

The stipulation reserved to the plaintiffs the

right to litigate the issue of the appropriate

remedy.

In August 1980, in response to a motion

by the plaintiffs to impose a population cap

on HDM, Judge Lasker issued an order

limiting the population at that facility to

1200. In opposing the plaintiffs' application,

the City maintained that overcrowding at

HDM was being substantially affected by the

presence of large numbers of State readies.

In his opinion granting the relief (which is

set forth at 495 F. Supp. 1357), Judge

Lasker observed at 495 F. Supp. 1362:

"On July 17, 1980, there were 657

such convicted prisoners and 140

alleged {parole ] violators in

custody at the HDM complex. So

serious is this aspect of the

problem that on April 2, 1980 the

City Commissioner of Correction

discontinued acceptance of

‘technical parole violators' only to

find that the State responded by

increasing the number of newly

convicted prisoners which it

assigns to HDM.

The City is entitled to

understanding on account of the

aggravation of its burden caused

by the injection into its

correctional facilities of such a

large number of State prisoners."

At the time Judge Lasker made _ these

comments, the number of State ready inmates

housed by the City had been steadily

increasing for several years. In 1977 the

average daily number of State readies housed

by the City at HDM was 189. This number

increased to 226 in 1978, 287 in 1979 and, as

noted in Judge Lasker's opinion, had climbed

to 650 by August of 1980 (63-64).2

As a result of the severe impact which

the presence of large numbers of State

‘readies had on the ability of the City to

provide services to inmates housed at HDM,

the City moved in August 1980 to join then

lUnless otherwise indicated, numbers in

parentheses preceded by a letter refer to

the Appendix to the Petition for Certiorari.

All other references are to the pages of the

Joint Appendix submitted to the Second

Circuit.

ILABLE COPY

Governor Carey and his Commissioner of

Correctional Services as defendants. in

Benjamin, pursuant to Fed. R. Civ. P. 19

and 21. In its moving papers, the City

noted that the State is required under New

York Criminal Procedure Law, $8430.30 to

assume custody of State ready inmates

"forthwith" (68). The City also contended

that the overpopulation of HDM and the

difficulties in providing services to persons

housed there were attributable to the policies

of the State and that the State, along with

the City, should be held responsible for any

deprivation of the inmates' constitutional

rights which resulted from overcrowding

(69). The City maintained (70):

"... the State Commissioner of

Correctional Services and _ the

Governor should bear part of the

responsibility for remedying any

unacceptable conditions of

confinement at HDM which result

from overcrowding.

The State has the ability to render

ineffective any population ceiling

which this Court may establish by

simply ceasing to accept State

readies for a period of time or by

further slowing the rate at which

it accepts such individuals for

confinement in State institutions."

On November 19, 1980, Judge Lasker

ruled that the City's motion was meritorious.

Benjamin v. Malcolm, (E2). Reported at 88

F.R.D. 333. The Court held (E2-3):

"... it is obvious that the impact

of the presence of State prisoners

in such large numbers constituted

- an insurmountable roadblock to the

fulfillment of the City's

obligations. There is no doubt,

therefore, that the City's motion

under Rule 19 was appropriately

brought.

* + *

{[cJomplete relief [cannot] be

granted to the parties in the

absence of the State officers, since

without some assurance as to the

number of State prisoners who may

be housed at HDM, the City cannot

exercise control of its own

compliance with this Court's

orders.

Judge Lasker did not formally order the

joinder of the State officials at that time |

8

Commissioner of Correctional Services

(58-59). After a non-jury trial, the Court

granted the relief sought by the City.

Judge Lasker stated (58):

",.. a court can't possibly solve

problems of this magnitude, even

in part, without having before it

all of the parties whose actions

contribute to the problem itself."

The District Court directed the State

defendants to accept State ready inmates

‘from HDM within forty-eight hours after

their transfer papers have been completed,

and issued an ie to that effect on August

20, 1981 (F7-8).

In the fall of 1981 the State defendants

moved pursuant to Fed. R. Civ. P. 60(b)

for relief from the August 20, 1981 order, so

as to permit them to accept State readies

from the City only when the State

correctional system had space available for

them. In denying that motion (Benjamin v.

10

Malcolm, (G2, Reported at 528 F. Supp.

925), Judge Lasker noted (G10):

"... in the last analysis what the

State proposes here is to equalize

unconstitutionality by requiring

the City to share the burden of

impermissible overcrowding with

the State. The remedy does not

lie in equalizing unconstitutionality

but in eliminating it."

The State complied with the forty-eight

hour order until the summer of 1984, when

the State Commissioner of Correctional

Services requested that the City voluntarily

relieve him for a limited period of the

obligation to accept State readies within

forty-eight hours (59). | The City agreed to

his request and entered into a stipulation

with the State which provided that until

November 1, 1984, the State could delay

accepting State readies until ninety-six

hours after processing (79-80). On

November 1, 1984 the parties were to

reevaluate the agreement, but it was to

terminate no later than January 1, 1985

11

(80). Commencing January 1, 1985 the State

agreed to accept State readies within

forty-eight hours (80).

The City was able to accommodate the

State because it had embarked upon an

aggressive construction program. The City

has increased its correctional capacity by

almost fifty percent since 1979 (51). In 1986

the City expected to add approximately 975

additional beds (51). In 1987 and 1988 the

City intends to add approximately 800 and

160 beds respectively (51). In early 1989,

it plans to add an additional 500 beds (51).

In recent years, the State has also

added to its correctional capacity (120).

However, in 1984, the State decided to close

the 1000 bed Long Island Correctional

Facility ("LICF"), which had been opened in

1982. The granting of a preliminary

injunction against the closing of that facility

was affirmed by the Second Circuit in

Mitchell v. Cuomo, 748 F.2d 804 (1984).

Notwithstanding that its correctional

system was allegedly filled to 116 percent of

capacity at that time, the State based its

cecision to close LICF on the ground that it

had not afforded an "adequate opportunity

for community participation in the planning

process" of that facility Id. at 805. The

State argued that although the closure of

LICF would reduce its housing capacity by

1000 beds:

"... an expected increase from

new construction of 1900 beds by

the end of this year [1984] would

allow the [State] system to safely

absorb the LICF inmates and all

other inmates entering the system

during that period" Id. at 807.

The Second Circuit had affirmed the

granting of the preliminary injunction

barring the closure of LICF pending a trial

on the merits. On February 5, 1985, the

parties in Mitchell v. Cuomo entered into a

13

stipulation permitting the State to close that

facility (60).

As noted above, the State had agreed

to resume accepting State ready inmates

within forty-eight hours of processing when

its stipulation with the City expired on

January 1, 1985. However, it did not

comply with that term of the stipulation.

Subsequent to the expiration of the

stipulation, the State did not even continue

to accept State readies within ninety-six

hours of processing (59-60).

Instead, .in February 1985 the State

defendants moved to vacate the August 20,

1981 order requiring them to accept State

readies within forty-eight hours (50, 57).

They based their application upon the

decision of the this Court in Pennhurst State

School and Hospital v. Halderman, 465 U.S.

89 (1984) (Pennhurst II), in which it was

held that the Eleventh Amendment deprives a

14

federal court of jurisdiction of a suit for

injunctive relief against State officials based

on State law.

The average daily number of State

readies for the month of February 1985 was

approximately 130 (50). When the State's

motion to vacate was argued on May 13,

1985, the number of State readies had

declined to 57 (50). Immediately after the

oral argument, however, the numbers of

State readies housed by the City began to

increase significantly. By June of 1985, the

average daily neaee of State readies in

City correctional facilities had risen to 284

(48-49). That number increased to 423 in

August 1985 and to approximately 500 in

January 1986 (49).

In a decision dated January 30, 1986,

Judge Lasker granted the State's motion

(D1-14). Reported at 626 F. Supp. 1264.

He noted that his 1981 determination to join

15

the State defendants was based upon their

obligation under Criminal Procedure Law,

$430.30 to accept State readies from the City

(D3). Judge Lasker concluded that the

Pennhurst II decision dictated that the

State's motion be granted because of his

"reliance upon State law as providing the

legal basis for granting the relief" (D7).

The Court, however, left open the

question whether the State officials could be

joined on the basis of a finding that their

failure to expeditiously accept State readies

significantly contributed to the violation of

plaintiffs' constitutional rights or that their

"actions are so inexorably tied to the

constitutional violation that the Court has

jurisdiction to order relief" (D9-10). Such

findings, Judge Lasker observed, "[are] the

minimum that Pennhurst II requires" (D10).

In this connection, he observed (D11):

"Throughout the litigation we have

stated that it is not apparent that

16

the City will be able to fulfill its

obligations without an order from

the court directing the State

defendants to take some action.

Our decision should not be

construed as abandoning that

sentiment or as expressing the

opinion that all means through

which the City may obtain relief

are foreclosed. We have not held,

nor do we now, that acts or

omissions which frustrate’ the

vindication of a federal right can

never be significant enough to

create a sufficient basis for

jurisdiction over state officials."

The Court deferred vacating the August 1981

order for a period of thirty days, "pending

a determination of the parties’ further

intentions" (D11). Notwithstanding the fact

that Judge Lasker specifically stayed the

vacatur of the forty-eight hour order, the

State officials continued their failure to abide

by its terms (61).

On February 20, 1986, the City moved

pursuant to Fed. R. Civ. 2. 19, 20 and 21

to join the State officials as defendants in

Benjamin v. Malcolm on the ground that the

presence of large numbers of State prisoners

17

in City correctional facilities made it

difficult, if not impossible, to comply with

the District Court's orders on conditions of

confinement and population control (41-43,

56-61).

In support of the motion, Jacqueline

McMickens, the City Commissioner of

Correction, submitted an affidavit in which

she stated that the State Commissioner of

Correctional Services did not advise her on a

weekly or monthly basis as to his plans for

accepting State prisoners (51). As a

consequence, the City's ability to plan for

its short-term and long-term population

meeds are adversely affected (51-52).

Commissioner McMickens observed that the

City, constrained by time-consuming and

complex budgetary and planning processes,

lacks the ability to modify its ambitious

building program to take into account

constant and liarge fluctuations in the

18

numbers of State prisoners which the City

must house (52).

It is Commissioner McMickens' view that

the State prisoners which the City holds

require high security detention facilities and

should occuvy cells rather than dormitories

(52). As a consequence, the City has been

required to devote a disproportionate amount

of its limited cell space to State prisoners,

while relegating its pre-trial detainees to

less desirable dormitories (52-53). She

noted that since June 1985, the City has

devoted approximately fifty percent of its

newly added capacity to house State inmates

(51).

"(Tjhe lack of control over _ a

large and unpredictable _ population",

Commissioner McMickens observed, "has a

direct impact on the City's ability to fulfill

its obligations under [the] Court's orders"

(51). She stated that the presence of the |

19

eOoOoO

large numbers of State inmates made the

City's maintenance program more difficult »

(53) and had exacerbated the task of

"providing adequate security and. other

essential services such as visiting,

recreation, medical care, food and

educational programs" (53).

It was Commissioner McMickens'

conclusion that the "effect of the State's

action is to make the City virtually an annex

of the State correctional system", and that

the ability of the State to control the number

of State prisoners in City jails would

"neutralize anything the City may have done

to properly manage its system ..." (51, 53).

In response to the City's moving

papers, the State continued to maintain that

the Eleventh Amendment bars federal subject

matter jurisdiction of this case. Moreover,

the State contended that they have accepted

custody of inmates from New York City

20

correctional facilities in a reasonably timely

manner. The State also alleged that New

York City receives a preference over other

localities with respect to the acceptance of

prisoners (J6). Commissioner Coughlin

acknowledged, however, that (J6):

"At times , including recent

months, starting in about October,

1985, the pressure of the number

of new inmates in counties outside

New York City has been such that

it has been necessary to take new

inmates from other counties before

accepting all State ready inmates

in New York City."

The State Commissioner of Correctional

Service maintained that the City's statistics

on the numbers of State readies which it

houses are inaccurate (J8). He also argued

that the. fluctuation in the State ready

population are traditional seasonal trends

(J8-9).

(3)

In granting the City's request for

preliminary relief, Judge Lasker concluded

that Pennhurst II did not prohibit a federal

21

INCE SP 5

court from ordering relief against State

officials whose actions may be necessary to

implement, or to avoid the frustration of, a

judgment which = rectifies a constitutional

violation (C1, 4). He stated (C5):

",... in the case at hand the City

is the party which would suffer

contempt penalties for

noncompliance with Court orders

limiting inmate population in the

event those limits were exceeded.

Thus, the City has standing to

request relief from being held

accountable for actions by the

State defendants over which it has

no control but which allegedly

cause or contribute to violations of

the Court's orders."

Judge Lasker concluded that, although the

State's duty to take custody of State ready

inmates arises under. State law, the

jurisdiction of the federal court was not

defeated in this case (C5-6). He noted that

there are "numerous _ situations" where

"obligations under State law may give rise to

a federal claim" (C5-7).

22

In finding a basis for jurisdiction over

the State officials under the provisions of

the All-Writs Act (28 U.S.C. $§165l[a}),

Judge Lasker relied on this Court's decision

in United States v. New York Telephone

Co., 434 U.S. 159 (1977), which held that

the power conferred by the All-Writs Act

extends to nonparties who are in a position

to frustrate the implementation of a court

order (C5-6). He noted (C6):

"... if it is concluded that the

presence of State -officials is

necessary for the full satisfaction

of constitutional rights, joining

them in the litigation is, in our

view, not only consistent with the

purpose of the All Writs Act, but

also with the reasoning

underlying the exception to the

Eleventh Amendment which was

created in Ex Parte Young, 209

U.S. 123 (1908), namely, _ ‘to.

promote the vindication of federal

rights' and ‘hold State officials

responsible to the supreme

authority of the United States.'

Pennhurst +1, 104 S. Ct. at 910."

Having found that the Court had

jurisdiction to make the State officials parties

23

to this case, Judge Lasker next considered

whether the City had satisfied the criteria

for obtaining preliminary injunctive relief

(C7-13). He concluded (1) that the City

would be irreparably harmed without such

relief (C7-9), (2) that the City's application

raised sufficiently serious questions going to

the merits to make them fair grounds for

litigation (C9-11), and (3) that the balance

of hardship tipped decidedly in the City's

favor (C11-13).

With respect to the showing of

irreparable injury, the District Court found

(C8)):

"The claim that such varying

numbers [of State readies] wreak

havoc with a municipality's ability

to manage its. facilities and

interfere with the on-going

planning and building process in

which the City is currently

engaged is persuasive, and

monetary damages cannot

adequately compensate the City

(nor the plaintiff class) for the

continuing injury. In short, the

City has met its burden of showing

irreparable harm.

24

In this connection it is worthy of

note that the City only seeks a

continuation of the status quo:

that is, the continuance of an

order that has been in effect in

this case for almost five years."

In holding a”at the balance of hardship

tipped decidedly in the City's favor, Judge

Lasker reaffirmed the conclusions which he

previously reached when he initially joined

the State officials as defendants in 1981. At

that time he found that State correctional

facilities were more secure and remote from

peneiintion centers than City correctional

facilities and that the State correctional

system, being nearly three times the size of

the City system, could more readily absorb

the State readies (C13). Judge Lasker was

also of the view at that time that the State

prison population was more stable and

manageable than the population found in a

pre-trial detention facility (C13). He stated

25

that these conclusions "remain valid today"

(C12).

In addition, he noted (C13):

"Finally, while an _ injunction \

continuing the requirement that .*

the State accept state inmates

within forty-eight hours will

continue the State's burden, it

does not, in the present posture

of the case, increase it, while

denying the injunction would leave

the City vulnerable to the

possibility, if not probability, of a

very significant increase in its

inmate population."

Based upon these findings, Judge

Lasker found that the City's motion was

“appropriately brought" (C13). He stated

that any final decision to retain the State

officials in the case would await (C13):

"... the disposition of the dispute

as to whether the State's actions

or. proposed actions do -or would’

hereafter place the City in a

position of noncompliance with the

court's decrees."

This opinion is reported at 629 F.

Supp. 713.

26

i Pe “ 2 — .

<q» 5 Siti AE a lit ss dain as Set tate Iodine alld 2c Gta lint Metall

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

In affirming the order of the District

Court, the Court of Appeals, after reviewing

the history of the lawsuit, noted that,

during the long period of litigation (A115):

"Ti]jt does not appear that the

State was ever denied the

opportunity to challenge the

federal constitutional basis of the

underlying consent order or the

findings of unconstitutionality made

by Judge Lasker in 1983."

The Court further noted that the State

at the time of the appeal did not offer any

proof to contradict. the findings. Moreover,

‘since the relief was preliminary, the State

could rebut the findings at the trial on the

permanent injunction (Al15).

With respect to this Court's decision in

Pennhurst State School & Hospital ov.

Halderman, 465 U.S. 89 (1984) (Pennhurst

II), the Court of Appeals rejected the

State's claim that it should be dismissed

because its argument "ignores the district

court's finding that the refusal of State

27

Pre ne ee

officials promptly to accept state-ready

prisoners also violates a federal interest in

vindicating the already-adjudicated

constitutional rights of prisoners housed at

the City's HDM" (AQ).

The Court also found that jurisdiction

over the State was appropriate under the All

Writs Act, 28 U.S.C. §1651l(a). The

circumstances were an exception because the

District Court "was faced with the necessity

of acting immediately to relieve

already-adjudicated unconstitutional

conditions which might be attributed in part

to the State and of avoiding the delay that

could be entailed in the relitigation of those

conditions" (Al3). Since full relief against

the ednenatiintional saniiiionn could not be

obtained through an order only applicable to

New York City, the joinder of the State was

appropriate (Al4).

28

oie uniabinneiila Itdr Sk Nave ane eecwlhtoda fe

aii ty

Ei ti able:

pagan aise

POISE SON Ee Sa OO ASS Beh Tbe

Aas RD ERL

i NEE Aa AAR I NE EE eA ROBE PRIN EAR BREE 0 BH

™n concluding the Court observed that

the record supported the granting of the

preliminary injunction. It noted that the

preliminary injunction "simply preserves a

status quo that existed for years after the

district court's August 1981 order" (A116).

The opinion is reported at 803 F.2d 46.

29

a

Reasons For Denying Petition

For a Writ of Certiorari

ARGUMENT

IN VIEW OF THE FINDING BY

THE COURT OF APPEALS THAT

THE FAILURE OF PETITIONERS

TO EXPEDITIOUSLY ACCEPT

FROM NEW YORK CITY PERSONS

SENTENCED TO TERMS OF

IMPRISONMENT IN STATE

CORRECTIONAL FACILITIES MAY

CONTRIBUTE TO UNCON-

STITUTIONAL OVERCROWDING IN

NEW YORK CITY'S JAILS AND

MAKE IT IMPOSSIBLE FOR THE

CITY TO COMPLY WITH PRIOR

DISTRICT COURT JUDGMENTS

ESTABLISHING ACCEPTABLE

CONDITIONS OF CONFINEMENT IN

THOSE JAILS, THE DECISION OF.

THE COURT OF APPEALS

AFFIRMING AN ORDER OF THE

DISTRICT COURT GRANTING A

PRELIMINARY INJUNCTION

REQUIRING PETITIONERS TO

ACCEPT CUSTODY OF ALL

"STATE READY" INMATES WITHIN

FORTY-EIGHT HOURS OF THEIR

PROCESSING WAS NOT

INCONSISTENT WITH THE

DECISION OF THIS COURT IN

PENNHURST STATE SCHOOL AND

HOSPITAL V. HALDERMAN, 465

U.S. 89 (1984).

30

THE COURT OF APPEALS

CORRECTLY HELD THAT THE

DISTRICT COURT HAD

AUTHORITY UNDER THE ALL

WRITS ACT, 28 U.S.C. §165i(a),

TO ISSUE THE PRELIMINARY

INJUNCTION.

(1)

The only possible argument that

petitioners have to challenge the preliminary

injunction is that Pennhurst_II, supra,

denies the District Court the jurisdiction to

join them in this’ case. Indeed, when the

District Court granted the City's motion to

join petitioners in 1981, no appeal was taken

from that determination. Nor did they

appeal from the District Court's denial of

their 1981 motion to vacate the forty-eight

hour order. Benjamin v. Malcolm, 528 F.

Supp. 925. However, both the District

Court, in granting this preliminary.

injunction, and the Court of Appeals, in

affirming it, acted consistently with the

principles enunciated in Pennhurst II.

31

That case concerned conditions of

confinement at a Pennsylvania institution for

the care of the retarded. In an earlier

decision involving that institution, this Court

had reversed the Third Circuit and held that

the Federal Developmentally Disabled

Assistance and Bill of Rights Act, 42 USC

6001 et seq., did not create a substantive

cause of action. As a result, the matter was

remanded to the Court of Appeals to

determine whether a remedy could be

granted on the basis of the state law, the

United States Constitution or other federal

statutes. On remand the Court of Appeals

again upheld a remedy, finding that a

specific state statute fully supported its

prior judgment. The latest Pennhurst appeal

was from this judgment of the Court of

Appeals.

In this Court the State argued, inter

alia, that the Eleventh Amendment prohibited

32

a federal court from ordering State officials

to implement a remedy based upon a pendent

state claim. In reversing the Court of

Appeals, the Supreme Court held that the

Eleventh Amendment barred a federal court

from joining State officials except in those

instances where their presence was needed

to promote the vindication of federal rights.

465 U.S. at 105-106. The Court contrasted

the facts presented in Pennhurst II with

those in parte Young, 209 U.S. 123

(1908), the seminal case on Eleventh

Amendment immunity of State officials. In

Ex parte Young the Court held that the

Eleventh Amendment does not bar a federal

court from granting injunctive relief when a

State official engages in action which violates

the Constitution. Subsequently, in Edelman

v. Jordan, 415 U.S. 651 (1974), the Court

limited Ex parte Young by holding that when

there is a violation of federal law, the Court

33

can award injunctive relief but not

retroactive monetary relief.

In harmonizing the State's immunity

under the Eleventh Amendment and a party's

right to obtain a remedy for a violation of

federal law, this Court stated in Pennhurst

II (465 U.S. at p. 106):

"This need to reconcile competing

interests is wholly absent,

howevgggivhen a plaintiff alleges

that e official has violated

state law. In such a case the

entire basis for the doctrine of

Young and Edelman disappears. A

federal court's grant of relief

against state officials on the basis

of state law, whether prospective

or retroactive, does not vindicate

the supreme authority of federal

law." (Emphasis the Court's.)

Pennhurst II is readily distinguishable

from the instant case. As the Court of

Appeals and the District Couns noted, the

previous determinations to join the State

defendants and to impose a remedy against

them was designed to effectuate’ the

constitutional rights of the plaintiffs (A10,

34

C5). Both the Court of Appeals and the

District Court emphasized that the State's

expeditious acceptance of State readies was a

significant component oof the remedy

necessary to satisfy the plaintiffs'

constitutional claims. Benjamin v. Malcolm,

(AS, 13), 803 F.2d 46, 51, 53 (2d Cir.,

1986), (C5-6), 629 F. Supp. 713, 715-716

(1986). In effect, the presence of large

numbers of State readies in City correctional

facilities contributed to a violation of the

plaintiffs' constitutional rights, and

interfered with the City's ability to comply

with federal Court orders.

The history of this case overwhelmingly

supports the conclusion of the Courts below.

Beginning in the late 1970's and continuing

to the present time, the State has controlled

the rate of acceptance of the State ready

population to redress population problems in

State facilities. The result has been an

intolerable situation for the City of New

35

York. During this same period, the City

had entered against it a series of orders

establishing population caps on HDM and

other facilities. In addition, consent orders

relating to conditions of confinement placing

substantial demands on the City's ability to

manage it facilities were entered into over

the last decade.

By its past actions, the State has

indicated that it will act to assume custody

of State . readies expeditiously only when

ordered to do so by a court or when court

action is imminent. Prior to our initial

motion to join the State officials in August,

1980, the population of State readies had

risen to 650. In the three months during

which that motion mil vieulinaie, the State

reduced the population so that by November

1980, the State ready population declined to

32. Indeed, Judge Lasker noted that the

filing of the motion in 1980:

36

—e ne ee in

"... appears to have spurred

constructive responses on the part

of the Governor and the

Commissioner ..." 88 F.R.D. 333,

335.

Following the dismissal without prejudice

of the City's motion to join, the State again

began to back-up the State readies. Within

seven months after Judge Lasker's

determination, the population of State readies

had again grown to approximately 600... At

that point, the District Court first joined

then Governor Carey and Commissioner

Coughlin and ordered them to accept State

readies within forty-eight hours.

In the summer of 1984 the City granted

the State permission for the rest of that

year to delay accepting State readies for up

to ninety-six hours after their processing

had been completed. The State agreed to

resume accepting State readies within

forty-eight hours on January 1, 1985.

However, as noted above, the State never

37

fulfilled its promise to resume _ the

expeditious acceptance of State readies and

did not even continue to accept them within

ninety-six hours. In 1985 and early part of

1986 the State slowed the acceptance of State

readies to an extent that, at the time the

City again moved to join the State officials in

February, 1986 the City was housing

approximately 500 State readies.

The State officials view of the City as

an annex to the State correctional system

renders difficult, if mot impossible, our

ability to comply with the District Court's

prior orders concerning conditions of

confinement. The City has two fundamental

responsibilities with respect to correction.

First, it must provide adequate space feo all

detainees, and, second, it must provide them

with appropriate conditions of confinement.

In order to meet our obligations, the City

has adopted an_ extraordinary building

38

program which will have increased its

capacity by more than fifty percent since

1979. This building program was based on

an assumption that the State would not use

the City jail system as its safety valve.

The presence of these large numbers of

State readies, in addition to adversely

affecting the capital construction program,

seriously impedes our ability to provide

security and services to the pretrial

detainees who are the City's proper

responsibility.

It is noteworthy that shortly before the

State began delaying acceptance of State

readies in 1985, it closed the 1000 bed Long

Island Correctional Facility. Within four

months after entering into a_ stipulation

permitting them to close that prison, the

numbers of State readies held by the City

had risen dramatically. This increase

occurred notwithstanding the statements to

39

the Court of Appeals in Mitchell v. Cuomo,

748 F.2d 804 (2d Cir., 1984) that the State

would be able to "safely absorb" all inmates

entering the State correctional system

despite the closure of LICF Id. at 807.

The State's position in Mitchell v.

Cuomo totally undermines their position to

this Court in the instant case that its

back-up of State readies in City facilities is

necessitated by its responsibility to accept

all State readies throughout the State

(Petition, pps. 7-8). The State's deciston to

close a structurally sound facility shortly

before it began to back-up State readies was

not reasonable. The State ought not to be

able to close a prison oun at the same time

maintain that it cannot expeditiously accept

State readies where it is undisputed that the

back-up of State readies in City facilities

has a direct impact on the City's ability to

comply with prior Court orders.

40

The analysis applied by the Court of

Appeals here was also followed by the Sixth

Circuit when considering whether to join the

State of Kentucky in Tate v. Frey, 735 F.2d

986 (1984), a case concerning conditions in

one of its county's jails.

This ability of the State to frustrate a

municipality's efforts to provide acceptable

' conditions of confinement in its detention

facilities was the ground adopted by the

Sixth Circuit in Tate v. Frey, 735 F.2d 986

(1984) to join the State of Kentucky in a

case concerning conditions in one of its

county's jail.

In Tate the inmates of a county jail in

Kentucky brought a _ civil rights action

against the superintendent of that institution

alleging unconstitutional conditions of

confinement. The county officials sought to

join State correction officials in a third-party

complaint which sought money damages and a

41

preliminary injunction enjoining State

correction officials from refusing to timely

accept felons incarcerated in the county jail

awaiting transfer to State facilities. The

District Court permitted the State to be

joined and directed a hearing on the

application for ‘a preliminary injunction. At

the conclusion of the hearing, the beswt

found certain violations concerning conditions

of confinement and requested that all the

parties join in a program designed to reduce

the overcrowding “in the jail. After the

parties reported that they were unable to

reach an agreement, the District Court

issued an order compelling the State officials

_to immediately accept all State readies in

excess of thirty. The cota portion of the

injunction enjoined Kentucky from permitting

any State ready inmates to remain

incarcerated at the county jail for more than

thirty days after the imposition of sentence.

42

The Kentucky Statute cited by the

Court placed the responsibility for housing

convicted felons upon the State. It was

silent, however, on the amount of. time that

a State correctional official has to accept

custody of a person held in a local facility

who is sentenced io serve a term of

imprisonment with the State. As a

consequence of overcrowding in _ State

facilities, . Kentucky had adopted a

"controlled intake policy", whereby it only

accepted State readies when it had space in

State facilities (735 F.2d at 988, n. 1).

The State appealed on the ground that

the county had failed to allege any

substantive basis to support a claim for

relief against it. Subsequent to the filing of

the appeal but before the decision of the

Sixth Circuit, this Court decided Pennhurst

Il. Based on that decision, the State also

urged that the injunction was granted in

43

error because it was merely "... requiring

the state to conform its actions to state law

.-". (739 F.2d at 989).

In affirming the order of the District

Court, the Sixth Circuit cited a number of

factors particularly applicable to the instant

case. In distinguishing Pennhurst II the

Court noted that the District Court had made

a determination that the controlled intake

procedure had contributed to the

overcrowding of the county jail and (735

F.2d at 989):

"... complete relief would be

elusive, if not impossible, to

achieve absent joinder of the State

as a third party to this action."

In addition, the Court of Appeals found that

the District -Court opinion was based on a

finding that the unconstitutional conditions

of confinement were directly attributable to

overcrowding (735 F.2d 990). This

overcrowding was in part due to the actions

of the State defendants. Since the actions

44

of the State defendants affected the

constitutional rights of wae plaintiffs, the

presence of the State officials as defendants

was based on federal, not state law, and,

therefore, Pennhurst II was inapplicable.

735 F.2d at 989-990.

(2)

The Court of Appeals also properly

found a basis for jurisdiction over the State

defendants under the provisions of the

All-Writs Act, 28 U.S.C. §165la. This

provision authorizes a federal court to issue

such commands as may be necessary or

appropriate to effectuate and prevent the

frustration of orders previously issued in

the exercise of jurisdiction otherwise

obtained. In United States v. New York

Telephone Co., 434 U.S. 159 (1977), this

Court upheld the use of the All-Writs Act

to compel a non-party, the New York

Telephone Company, to furnish facilities and

45

a ee ee

technical assistance to the F.B.I. with

respect to the installation of a device which

records the numbers dialed on a particular

telephone. In so holding, this Court stated

at 434 U.S. 174:

"The power conferred by the Act

extends, under appropriate

circumstances, to persons who,

though not parties to the original

action or engaged in wrongdoing,

are in a position to frustrate the

implementation of a court order or

the proper administration of

justice, and encompasses even

those who have not taken any

affirmative action to hinder justice

(citations omitted)."

The next case following New York

Telephone in which this Court interpreted

the All-Writs Act was General Building

Contractors Assn., Inc. v. Pennsylvania,

458 U.S. 375 (1982). In General Contractors

the plaintiffs attempted to use the All-Writs

Act in support of a determination of the

District Court which had imposed a remedy

upon contractors and trade associations

against whom there had not been any finding

46

_ anwinasan leans Ci

of liability. The District Court subjected

the contractors and trade associations to

injunctive relief requiring them to take steps

to ensure that union hiring hall procedures

were non-discriminatory and allocated to

them a portion of the costs for implementing

the remedial decree. Id. at 397.

In finding that the All-Writs Act could

not be used to impose a remedy against the

petitioners, the Court observed that the

All-Writs Act could not "support. the

extensive liability imposed upon petitioners

by the District Court." Id. at 401.

Further, the Court held (at 458 U.S. 401):

"There was no need for the

District Court to treat petitioners

as strangers to this lawsuit, and

therefore to rely upon some

extraordinary form of process or

writ to bring them before the

court. Petitioners had been named

as defendants by respondents in

their complaint, and they litigated

the injunctive liability phase of the

action before the District Court.

Petitioners were parties to the

action in every sense of the word,

and subject to the jurisdiction of

47

7

fi

3

wt

j

the District Court both as to the

imposition of liability and as to the

framing of the remedial decree."

In contrast to General Contractors, in

the instant case, the State officials were not

parties during the protracted litigation

leading up to determinations of liability and

stipulations contained in consent decrees.

The State officials were only brought into

the litigation when their actions began to

substantially interfere with the City's ability

to comply with these orders. Moreover, the

command of Judge Lasker dves not impose

"extensive liability". It only requires the

State to promptly carry out its responsibility

to assume custody of persons sentenced to

terms of imprisonment in State correctional

facilities. |

Nothing contained in this Court's

decision in Pennsylvania Bureau of

Correction v. United States Marshals, 474

U.S. __, 106 S. Ct. 355 (1985) precludes

48

the use of the All-Writs Act in the instant

case. Pennsylvania Bureau of Correction

concerned the validity of an order issued

under the All-Writs Act requiring United

States Marshals to transport state prisoners

to federal court. This Court held that the

use of that act was inappropriate under

those circumstances because the _ district

court had available to it the authority to

issue a writ ad testificandum to produce a

prisoner in state custody.

The Court of Appeals found that

Pennsylvania Bureau of Correction was

distinguishable. It noted that the facts of :

this case necessitated reliance on the

All-Writs Acts because (A13):

The district court was faced with

the necessity of acting immediately

to relieve already -adjudicated

unconstitutional conditions which

might be attributed in part to the

State and avoiding the delay that

would be entailed in the

relitigation of those conditions.

49

at BT

Petitioners reliance on Atascadero State

Hospital _v. Scanlon, 473 U.S. __, 105 S.

Ct. 3142, (1985) is misplaced (Petition, p.

20). In that case the Court held that a

state may not be made a defendant in an

action brought under §504 oof the

Rehabilitation Act of 1973 in the absence of

any intent by Congress to require states to

waive their Eleventh Amendment immunity as

a condition for participation in the program.

Here, following the principles set forth in Ex

parte Young, supra, we joined the

appropriate State | officials because their

actions were having a direct effect on our

ability to provide constitutionally acceptable

conditions of confinement to persons held in

our jails. |

(3)

The State urges that the City

defendants do not have standing to raise the

question of noncompliance because it may not

50

"rest (its) claim to relief on the legal rights

or interests of others" and the City's

interest do not come within the "zone of

interests to be protected by the

constitutional guarantee in question."

Petition, pps. 23-25. This argument is

meritless.

The City has standing to seek to join

the State in the instant proceedimg because

it has suffered an actual injury in fact as a

result of the State's action. See Warth v.

Seldin, 422 U.S. 490, 498-499 (1975); Doe v.

Blum, 729 F.2a 186, 189 (2nd Cir., 1984);

B.K. Instrument, Inc. v. United States, 715

F.2d 713, 718-719 (2nd Cir., 1983); National

Coalition to Ban Handguns v. Bureau of

-

Alcohol Tobacco & Firearms, 715 F.2d 632,

633-634 (2nd Cir., 1983). The City is

obviously directly injured by the action of

the State because it adversely impacts on the

City's ability to fulfill its obligations under

51

the Court's orders. In making this motion

to join the State officials, the City seeks to

protect its own interests. We are not

asserting the rights of the plaintiffs.

Rather the City has a responsibility to

administer its jails in a manner which is

consistent with the Constitution and Judge

Lasker's decrees.

In support of its argument that the

City defendants do- not have standing, the

State gratuitously concludes that = Se.

actions caused noncompliance with the detanel

_ court orders, the City could not be cited for

contempt because it did not cause the

problem. . eee oe While we are

thankful for the legal opinion proffered by

the State in its brief, we know of no

authority that would allow the City to escape

responsibility for conditions in its jails on

the ground that the State caused the

violation. To the contrary, at the outset of

32

ee ee ee

a TO

ein ace Dt ae at ano

this controversy between the City and the

State, Judge Lasker made it clear that such

was not the case. With respect to the

State's aggravation of overcrowding in City

jails, Judge Lasker commented in Benjamin

v. Malcolm, supra, 495 F. Supp. 1357, 1362

as follows:

"The City is entitled to

understanding on account of the

aggravation of its burden caused

by the injection into its

correctional facilities of such a

large number of State prisoners.

Yet the ultimate fact of

unconstitutional overcrowding

remains the same whether it is

caused entirely or partly by the

presence of City detainees. It is

the City's obligation to provide

minimally acceptable population

levels for those in its custody,

and even the City does not argue

that it can be freed of that

obligation because the present

condition is significantly affected

by the necessity to house State

prisoners."

The State assumes that the only

interest that the City has _ in_ the

administration of its correctional system is

the avoidance of a citation for contempt.

53

sacs iC a ita tl

“s Se nd a se eee

Apart from any litigation challenging

cenditions of confinement, the City officials

charged with this responsibility have a

desire to perform their duties in a

professional manner and to avoid depriving

persons held in their custody of any

constitutional rights.

In another part of its brief, the State

suggests that all that is involved in the

- instant case is a "fiscal claim" arising from

the fact that (Pet., p. 23):

"... the more inmates the City has

to house, the more money it will

have to spend in order to provide

adequate housing and _= support

services."

This argument is nonsense. In fact the

City over the last eight years has increased

its capacity by over fifty percent - (51). As

a result of the back-up of State readies

since June of 1985, it has been necessary

for the City to devote approximately fifty

percent of our newly added capacity to

34

house State inmates (51). It is difficult for

the City to implement a long term capital

program with the knowledge that, when such

construction is completed, the State would

then absorb the additional capacity by

further backing up the State ready

prisoners. The State's argument is

particularly meritless when viewed in the

context of its action to close the one

thousand bed Long Island Correctional

Facility.

(4)

The Courts below properly applied the

applicable standards in issuing the

preliminary injunction requiring the State

officials to accept custody of State readies

during the pendency of the City's application

within forty-eight hours of processing. A

preliminary injunction will be overturned

only when it is demonstrated that the

District Court has abused its discretion.

95

See Doran v. Salem Inn, Inc., 422 U.S. 922,

931-932 (1975); Hanson Trust PLC v. SCM

Corporation, 774 F.2d 47, 54 (2nd Cir.,

1985); In Re Baldwin-United, 770 F.2d 328,

334 (2d Cir., 1985); Mitchell v. Cuomo,

supra 748 F.2d at 806. An abuse of

discretion may be found if the Court makes

clearly erroneous findings of fact or commits

an error of law in issuing the injunction.

For all of the reasons stated in this

brief, the City has established that its

application eresents sufficiently serious

questions going to the merits to make them a

fair ground of litigation. In addition, the

City would be irreparably injured if the

injunction were vacated. As has_ been

observed above, the State has bed the City

system as an annex to hold their overflow

until the State system can accommodate the

newly sentenced prisoners. This constant

fluctuation of the population affects the

56

City's ability to manage its institutions. The

injunction merely preserves the status quo

which has existed since August 1981,

during the pendency of. the motion to join

the State. In this context, the District

Court noted that the determination as_ to

whether the State will be retained

permanently in the lawsuit would have to

await the end of the "dispute as to whether

the State's actions or proposed actions do or

would hereafter place the City in a position

of noncompliance with the Court's Po

(C13).

37

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

February 9, 1987.

Respectfully submitted,

PETER ZIMROTH,

Corporation Counsel

of the City of New York,

Attorney for Municipal Respondents.

LEONARD J. KOERNER,

PAUL T. REPHEN,

of Counsel.

28