# Opposition Brief — Cuomo v. Koehler > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2570%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 480 U.S. 910 ## Text 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 — .