Opposition Brief — Hewitt v. Helms

Supreme Court, U.S,

FILED

MAY 5 1966

JOSEPH F. SPANIOL, JR.

IN THE SUPREME COURT OF [THE CLERK

No. 85-1630

UNITED STATES

October Term, 1985

LOWELL D. HEWITT, Supt.;

B. B. “YLER, CO. IIT;

R. E. STOTELMYER, “Major;

BR. %. SMITH, Counselor III;

K. R. HILEMAN, Farm Manager;

D. R. ERHARD, Deputy Supt.

for Treatment;

T. W. HENRY, Director of Treatment;

W. W. MATEER, C. I., Manager

Petitioners

vs.

AARON HELMS,

Respondent

RESPONDENT'S MEMORANDUM TN OPPOSITION

TO PETITION FOR A WRIT OF

CERTIORARI TO THE U. S. COURT OF APPEALS

FOR THE THIRD CIRCUIT

John M. Humphrey, Esquire

Attorney for Respondent

161 West Third Street

P.O. Box 215

Williamsport, PA 17701

(717) 323-8711)

VX

TABLE OF AUTHORITIES

CASES PAGE

Allen vs. Burke, 690 5

F.2d 376 at 379 (4th Cir.

1982)

Commonwealth vs. Russell, 7

WO3 Pa. 320, 109 A.cd 604 at 885

(1961)

Dover vs. Rose, 709 F.2d 3,4

436 (6th Cir. 1983)

Helms vs. Hewitt, 655 F.2d 1

487, 503 (3rd Cir. 1981)

Hendricks vs. Pennsylvania T

State Board of Parole, 409

Pa. 204, 185 A.2d 581, 584

(1962)

Johnson vs. Comp. Pa. Bd. 8

of Probation and Parole,

462 A.2d 235 (Pa. 1984)

Kentucky vs. Graham, 2

U eS. », 105 S. Ct. 3099

(1985)

Lane vs. Reid, 559 F. Supp. 6

1047, 1052 (S.D. N.Y. 1983)

Othen vs. Ann Arbor School 3,4

Board, 699 F.2d 309 (6th

Cir. 1983)

Pulliam vs. Allen, 6

U.S. », 104 S. Ct. (1970)

TABLE OF AUTHORITIES

CONTINUED

Tucker vs. Summers, 2

7

No. 85- toe (Sth Cir. » March

10, 1986

Ve In his Complaint the Plaintiff

sought broad relief including a

declaration that the Defendants' policies

with regard to the use of a hearsay

account of uncorroborated information from

a single unidentified informant be

declared unconstitutional (Pet. App. 17a).

The Court of Appeals specifically declared

that the Defendants' practices were

unconstitutional. Helms vs. Hewitt, 655

F.2d 487, 503 (3rd Cir. 1981) (Helms T)

(Pet. App. 18a - 19a). Further, not only

were the policies declared

unconstitutional, but the Court of Appeals

set forth specific procedures that "must

be followed to provide minimum due

process." Id. at 502. These procedures

serve as a standard of conduct to guide

prison officials in the future. (Pet.

App. 19a). While the Petitioners appealed

parts of the Court's holding in Helms I,

the Petitioners took no appeal on that

part of the opinion which declared their

practices with regard to unidentified

informants to be unconstitutional.

Petitioners then, while the case was

Still pending final review on appeal,

promulgated regulations Specifically

addressing the use of hearsay reports

based on information from confidential

informants in prison disciplinary

proceedings. (Pet. App. 21a). The Third

Circuit found that in light of the above

facts, Plaintiff had obtained relief of

the same general type as requested during

the course of the litigation and further

remanded the case to the district ecourt

for hearing on whether Plaintiff's suit

Was a catalyst for the promulgation of the

Petitioner's regulations.

Be Petitioner's reliance on

Kentucky vs. Graham, S- Bs« ,

——_—___...

105 S. Ct. 3099 (1985), is misplaced.

Graham involved an action Seeking only

money damages where attorney's fees were

being sought from the State of Kentucky

who was not and could not be a party to

the case. The court held that the state

could not be liable for attorney's fees

because it was not and could not be a

party to the action. The court addressed

who could be prevailed against, not "the

nature or degree of success necessary to

make a plaintiff a prevailing party." Id.

at 3105 n. Q.

3. Petitioners try to create a false

conflict between the circuits with respect

to the issue of who is a prevailing party.

In this regard, Petitioners cite

Dover vs. Rose, 709 F.2d 436 (6th Cir.

1983) and Othen vs. Ann Arbor School Bd.,

699 F.2d 309 (6th Cir. 1983) as being in

conflict with the opinion of the Third

Circuit.

In Othen, a father brought a sex

discrimination suit alleging that his

daughter was being denied an opportunity

to compete on the school golf team because

of her sex, The father ultimately

withdrew his complaint. There was no

question cf declaratory relief in Othen

and the father had shown no entitlement to

relief or shown that his lawsuit was a

catalyst which caused the policy of the

defendants to change. The reason for

denying the fees in Othen was simply that

nothing had occurred as a result of

plaintiff's lawsuit. The Othen court did

specifically note that a plaintiff could

be a prevailing party if his lawsuit did

act as a catalyst which caused the

defendant to change its past practices.

In Dover vs. Rose, Supra., there was again

no request for any type of declaratory

relief. The court Specifically noted this

fact three separate times in their

opinion, Dover vs. Rose, Supra. at 437,

439. The Dover court, however, also

specifically noted that a party could

prevail if his suit acted as a catalyst in

causing the defendants to alter their past

practices. The plaintiff, however, did

not even allege that his suit had acted as

a catalyst. Id. at 439. Finally, in a

case recently affirmed by this Court, the

Fourth Circuit set forth language from the

House Report which indicates why relief

should be granted in cases such as this.

Furthermore, while

damages are theoretically

available under the

statutes covered by

(Section 1988), it shouid

be observed that, in some

cases, immunity doctrines

and special defenses,

available only to public

officials, preclude or

severely limit the damage

remedy. Consequently,

awarding counsel fees to

prevailing plaintiffs in

such litigation is

particularly important

and necessary if Federal,

Civil and Constitutional

rights are to be

adequately protected.

H. R. Rep. No. 1558, 94 Cong., 2nd Sess. 9

(1976); as cited in Allen vs. Burke, 690

F.2d 376 at 379 (4th Cir. 1982), aff'd.

sub nom Pulliam vs. Allen, U. S$.

» 104 S. Ct. (1970).

The opinions cited by the Petitioner,

therefore, do not address the prevailing

party issue which was before the Third

Circuit except with regard to the catalyst

issue and on the catalyst issue they

Strongly support the holding of the Third

Circuit.

2 While Petitioners focus upon

mootness, Respondent seriously questions

this emphasis. See Lane vs. Reid, 559 F.

Supp. 1047, 1052 (S.D. N.Y. 1983). First,

contrary to the Petitioners' assertion

that the regulations were promulgated long

after the litigation, the regulations were

in fact promulgated while this case was on

appeal to the Third Circuit. Second,

While Petitioner cites cases dealing with

improperly granted injunctive relief,

Petitioner cites no case where declaratory

relief was involved. In fact, the case of

Tucker. vs. Summers, C.A. No. 85-3355 (5th

Cir., March 10, 1986) denied relief based

upon the preliminary injunction because

they court had no subject matter

jurisdiction, but the court also went on

to analyze whether the lawsuit had acted

as a catalyst in motivating the defendants

to end their unconstitutional behaviour.

Based upon the testimony of defendants,

the court found that the lawsuit had not

acted as a catalyst. Finally, under

Pennsylvania law "a prisoner on parole is

still in the legal custody of the warden

of the institution from which he was

paroled and he is under the control of the

warden until the expiration of the term of

his sentence." Commonwealth vs. Russell,

403 Pa. 320, 169 A.2d 884 at 885 (1961);

Hendrickson vs. Pennsylvania State Board

of Parole, 409 Pa. 204, 185 A.2d 581, 584

(1962); eited with approval in

Johnson vs. Comp. Pa. Bd. of Probation and

Parole, 482 A.2d 235 (Pa. 1984). |

5. Even if mootness were considered

an issue, this case would not be well

Suited for a grant of review of the

prevailing party issues involved. It has

been almost 7 years since this case was

initially begun and, even under a liberal

interpretation of the Petitioner's case

law, this case would still have to be

remanded to the district court to

determine whether Plaintiff's lawsuit was

a catalyst in causing the Defendants to

change their unconstitutional practices.

Further, as suggested in the Third

Circuit's opinion, given the fact that the

' It is also worth noting that the

Respondent, Aaron Helms, is presently

incarcerated, under a new sentence, in the

Pennsylvania Prison System. (Affidavit

attached)

regulations were promulgated during the

pendency of the appeal, (Pet. App. 10a)

there is strong indication that the

Respondent's lawsuit in fact caused the

regulations to be promulgated. (Pet. App.

10(a), 24(a)).

Respondent, therefore, respectfully

requests this Court to deny the Petition

for Writ of Certiorari.

RIEDERS, TRAVIS, MUSSINA,

HUMPHREY & HARRIS

[\ \ \ne\\ |

BY: \ |_| WM\ nwa

Jonah. Bumphrey Esquire

Attorney for Respondent

161 West Third Street

P.O. Box 215

Williamsport, PA 17701

(M8640528)

No. 85-1630

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1985

LOWELL D. HEWITT, Supt.;

B. B. KYLER, CO. III;

R. E. STOTELMYER, Major;

B. K. SMITH, Counselor S23

K. R. HILEMAN, Farm Manager;

D. R. ERHARD, Deputy Supt.

for Treatment;

T. W. HENRY, Director of Treatment;

W. W. MATEER, C. T., Manager

Petitioners

vs.

AARON HELMS,

Respondent

AFFIDAVIT OF MAILING

I, JOHN M. HUMPHREY, ESQUIRE, being

duly sworn according to law, depose and

-~ th

goo?

State that on this 9) day of //lay ,

/

1986, T mailed by first-class mail the

foregoing Respondent's Memorandum in

Opposition to Petition for Writ of

Certiorari to the United States Court of

Appeals for the Third Circuit to United

States Supreme Court, 1 First Street,

N.E., Washington, D. C. 205 3.

| \\ \ \ /\

John M. seeiiinil eaumll

Sworn to and subscribed

po

before me this 0 day

of (Nay , 1986

Knbucly ( Zulu

Notary Pu C ay,

J t EY Notary Public (

Lycor

No. 85-

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1985

OWELL D. HEWITT, Supt. ;

B. KYLER, CO IIT;

E. STOTELMYER, Major;

K. Smith, Counselor III;

K. R. Hileman, Farm Manager;

D. R rhard, Deputy Supt.

for Treatment;

T. W. HENRY, Director of Treatment;

W. W. MATEER, C., Bes Manager

Petitioners

V.

AARON HELMS,

Respondent

AFFIDAVIT OF

RICHARD G. FISHMAN

COMMONWEALTH OF PENNSYLVANIA

COUNTY OF CENTRE

I, Richard G. Fishman, Esquire,

being duly sworn according to law depose

and state that on this 30th day of

April, 1986, 1 spoke telephonically with

Robert Best, Records Supervisor for the

Pennsylvania Department of Corrections,

who advised me that the Respondent in

the above-captioned matter, Aaron Helms,

was presently incarce erated at the State

Correctional Institution, Graterford,

Pennsylvania, and that he had been

received into that institution on

April 12, 1985.

Richard G. Fishman, Esq.

Sworn to and subscribed

before me this 30th day

of April, 1986.

/) (\

oy. rhlioce & tel 4 1A< o> 4

Notary Public’

RAPBRAPA IOIMICON Nal

rn

VOlary Bie