# Petition for Writ of Certiorari — Irene Pernsley v. Martin Harris > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0936%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 965 ## Text -Supreme Court, 8%. 84-1958 er Ee JUN 17 1985 ALEXANDER L STEVAS, CLERK IN THE SUPREME COURT OF THE UNITED STATES October Term, 1984 IRENE PERNSLEY, et al Petitioners 1 MARTIN HARRIS, et al Respondents PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BARBARA W. MATHER RICHARD J. GOLD AUGUST V. SELLITTO PHILADELPHIA CITY SOLICITOR’S OFFICE 1520 Municipal Services Building Philadelphia, Pennsylvania 19102 (215) 686-5260 Counsel of Record for Petitioners PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000 QUESTION PRESENTED FOR REVIEW Whether the Court of Appeals for the Third Circuit's refusal to apply Younger v. Harris abstention conflicts with this Court’s decisions when the federal plaintiff class admits that they are plantiff class members in an ongoing state court proceeding challenging the condi- tions of confinement in the Philadeiphia Prisons on both federal and state constitutional grounds and when such state court action is presently pending in the Pennsyl- vania Supreme Court LIST OF ALL PARTIES Petitioners IRENE PERNSLEY ROYAL L. SIMS REV. ALBERT CAMPBELL LABORA BENNETT JAMES BARBER MARK MENDEL DONALD PADOVA DAVID S. OWENS JOHN DAUGHEN RODNEY D. JOHNSON HON. WILLIAM J. GREEN CITY OF PHILADELPHIA JAY C. WALDMAN RONALD J. MARKS Respondents: MARTIN HARRIS VK/A ARTHUR CARMICHAF] ALBERT ANTHONY ORLANDO X. MC CREA ANDRE MOORE FRANK L. HANSFORD. JR l'YRONE GLENN CARLOS ROYSTER AMIN ABDULLAH KHALID ALLAH MUHAMMAD ARNOLD FURTICK Co-Defendants Waldman and Marks shall be requesting Cer ulorarl by a separate petition TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW ....... i LIST OF ALL PARTIES...........-----+--+++55: ii TABLE OF CONTENTS .........---+--++ee+05: iii rABLE OF AUTHORITIES ...........---+++-- . iv CITATION TO OPINIONS BELOW........... ae BUJMISDICTION .... 2. occ ccc ccc ccc creer ecceees 2 STATEMENT OF THE CASE ........----+-+++ 2 RIO 6 og oc cb csc usewnvsenceyehecoccccees 4 |. The Younger Doctrine of Abstention Applies To Ongoing Civil State Court Proceedings If The Subject Matter Involves An Important State In- eee be She ee eevee cecsccecs 6 11. The Third Circuit Is Incorrect In Finding That The Younger Doctrine Does Not Apply to Pri- vately Initiated State Proceedings.........---- 16 el Ue ee ee 17 APPENDIX Judgment of the District Court Entered Decem- ees eegeeenees A-] Order and Opinion of the Third Circuit Entered February 22, 1985 Reversing The District tke ween ceecsecesnees A-17 Order of the Third Circuit Entered March 21, 1985 Denying Petitioner's Request for a a cae uwbedeee Ss cto esones A-47 iil TABLE OF AUTHORITIES Cases: Page Blue Cross and Blue Shield of Michigan v. Baerwaldt, 726 F.2d 296 (6th Cir. 1984) ..... 15 Central Avenue News Inc. v. The City of Minot. North Dakota, 651 F.2d 565 (Sth Cir. 1981).. 15 Champion International Corporation v. Brown. 731 F.2d 1406 (9th Cir. 1984)...... sl ae a8 keke 15 Craig v. Barney, 678 F.2d 1200 (4th Cir. 1982)... 15 DeSpain v. Johnston, 731 F.2d 1171 (5th Cir. | ry ay ee ee Pe es ee aoe First National Bank and Trust Co. of Wyoming v. Lawing, 731 F.2d 680 (10th Cir. 1984)....... 15 Gresham Park Community Organization v. Howell. 652 F.2d 1227 (5th Cir. 1981)............ 16, 17 Harris v. Pernsley, No. 82-1847, slip op. (E.D. Pa. December 30, 1983)........................ 3 Harris v. Pernsley, No. 84-1039, slip op. (3d Cir. February 22, 1985)....... 4, 5, 12, 13, 14, 15, 16 Harris v. Pernsley, Sur Petition for Rehearing, No. 84-1039, slip op. (3d Cir. March 21, 1985)... 4. 7. 18 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)... 5. 6. 7, 8,9 Jackson v. Hendrick, No. 2437, slip op. (C.P. Phila. April 7, 1972)................ 2, 3, 10, 11, 13, 17 J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981). _. 15 Juidice v. Vail, 430 U.S. 327 (1977)............ 8, 16 Kenner v. Morris, 600 F.2d 22 (6th Cir. 1979). ... 17 Levy v. Lewis, 635 F.2d 960 (2d Cir. 1980)...._.. 15 iv TABLE OF AUTHORITIES— Contin ued ) CASES: Page Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 | 1982). . 6, 9, 10, 15, 16 Moore v. Sims, 442 U.S. 415 (1979)...-.-. 6, 8, 9, 16 Parker v. Turner, 626 F.2d 1 (6h Cir. je 17 Pennhurst State Schoo! and Hospital v. Halderman, U.S. ___, 104 $.Ct. Fe. | } See 12 Samuels v. Mackell, 401 U.S. 66 (1971)....-.---- ) eee eRe 15 Trainor v. Hernandez, 431 U.S. 434 | gs Se 8 \Inited Books, Inc. v. Conte, 739 F 9d 30 (Ist Cir. 7 peer revere rrr Tr Tre erie ec 15 Williams v. Red Bank Board of Education, 662 F.2d 1008 (3d Cir. 1981).........-. eee ba tem OO Youngberg v. Romeo, 457 U.S. 307 (1982). ney 12 Younger v. Harris, 401 U.S 37 (1971).. i, 3, 4, 5, 6, 7, g§ 9 10, 13, 15, 16, 17 OTHER AUTHORITIES L!) S. Const. amend. VIII > is No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1984 IRENE PERNSLEY, et al.. Petitioners Uv. MARTIN HARRIS, et al., Respondents PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT CITATIONS TO OPINIONS BELOW The District Court for the Eastern District of Penn- sylvania issued an unreported Memorandum and Order on December 30, 1983 which is included in the Appen- dix at page A-1. This order was appealed by Respondents and was reversed by the Court of Appeals for the Third Circuit in an Opinion filed on February 22, 1985 which is included in the Appendix at page A-17. Petitioners re- quested Rehearing and the Court of Appeals for the Third Circuit denied Sur Petition for Rehearing in an Opinion filed on March 21, 1985 which is included in the Appendix at page A-47 2 JURISDICTION The judgment order of the Court of Appeals for the Third Circuit was entered on February 22, 1985 and the order denying Petition for Rehearing was entered on March 21, 1985. This Petition for a Writ of Certiorari was filed within 90 days of the date of entry of the denial of rehearing by the Court of Anpeals. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. §1254(1). Jurisdiction in the District Court was based on 28 U.S.C. §1331 and jurisdiction in the Third Circuit on 28 U.S.C. §1291. STATEMENT OF THE CASE Plaintiffs in this action are asking a federal district court to duplicate on-going state court regulation of the Philadelphia prison system. Despite the existence of state court proceedings in Jackson v. Hendrick. an action in which the federal plaintiff Harris admits he is a class member, Harris has asked the federal courts to under- take reform of the conditions of confinement in the Phil- adelphia prisons. On behalf of the same class represented in Jackson and all persons confined in the Philadelphia prisons, he has asserted that overcrowded conditions of confinement violate the Eighth Amend- ment of the United States Constitution. The complaint seeks extensive injunctive relief and monetary damages for the individual inmates. Exactly the same claims are presently before the Pennsylvania courts in Jackson v. Hendrick.’ Jackson is also a class action on behalf of all inmates in the Phila- delphia prisons and the issue is whether the same Phil- adelphia facilities are unconstitutionally overcrowded under federal and state constitutional provisions. The 1. There is no claim for damages presently pending in Jackson v. Hendrick, but there is also no bar to the assertion of such a claim and indeed, requests for fines and damages have been made in the recent past in Jackson 3 City officials charged with administering the Philadel- phia prison system are defendants in both Harris and Jackson. In the fourteen year history of the Jackson case, the state court has issued numerous remedial orders regard- ing prison conditions. The three-judge trial court has or- dered construction of new facilities which is presently on-going. The state court continues to monitor renova- tion construction and other prison conditions through court hearings and reports by Petitioners and through a prison master appointed by that court. The precise issue of whether Pennsylvania law and constitutional precepts require a “one-man, one-cell rule” is currently before the Pennsylvania Supreme Court which has assumed ex- traordinary plenary jurisdiction over the entire Jackson case. Despite the pendency of Jackson, in which the fed- eral plaintiffs admit they are class members, they would have the federal court undertake to duplicate this state court regulation of the Philadelphia prisons. The district court, recognizing the existence of a substantial and ongoing state court proceeding involving an important state interest, chose to abstain Harris Pernsley, No. 82-1847, slip op. (E.D. Pa., December 30, 1983). The Court of Appeals for the Third Circuit reversed the District Court’s decision. In a single paragraph, the majority discussed and dismissed the Petitioners’ con- tention that the principles of abstention articulated in Younger v. Harris, 401 U.S. 37 (1971) apply to the in- stant matter. The court held that Younger did not apply because: ‘(T}here are no state criminal pr-ceedings or nul- sance proceedings antecedent to a criminal proceed- ing involved here’. . . [and] ‘(W]here the pending state proceeding is a privately- initiated one, the state’s interest in that proceeding is not strong enough to merit Younger abstention. for it is no greater than its interest in anv other litigation that takes place in its courts’. [citations omitted Harris v. Pernsley, No. 84-1039 slip op. at 13 (3d Cin February 22, 1985). Judge Garth filed a forc eful dissent Petitioners filed a Petition for Rehearing which was denied by a sharply divided court Judges Adams Hunter, Weis, Garth and Becker dissented from the de nial. Judge Garth once again filed a dissenting opinion and Judge Adams dissented from the denial because Iihis case raises important questions regarding the scope of the Younger abstention doctrine. and because it appears that the state court proceedings involving the Philadelphia County prison system are being conducted in good faith and with due haste.” Harris 7 Pernsley Sur Petition for Rehearing, No. 84-1039 slip op. at 2 (3d Cir., March 21, 1985) lhe Third Circuit's application of the Younger doc- trine ignores the teachings of this Court. It fails to e, en discuss a decade of Supreme Court precedent regarding Younger. Instead, the majority opinion summarily con- cludes that Younger applies only if the state proceeding is Criminal or quasi-criminal and only if that proceeding is not privately initiated Petitioners contend that the Court of Appeais for the 'hird Circuit erred in failing to find the You nger absten- tion doctrine applicable to this case and that its opinion is contrary to the decisions of this Court ARGUMENT In refusing to abstain from exercising jurisdiction, the Court of Appeals for the Third Circuit ignores this Court's precedent and sanctions an outdated and narrow reading of Younger v. Harris. 401 U.S. 37 (1971). In disposing of the Younger doctrine. the Circuit Court stated 7.) The [trial] court also considered whether it should decline to exercise jurisdiction on the ground that it would be called on to restrain the enforcement of a state court proceeding in which the state had a sig- nificant law enforcement interest. See Huffman Pursue. Ltd.. 420 U.S. 592 (1975); Younger % Harris . 401 U.S. 37 (1971). Noting that “|t|}here are no state criminal proceedings or nuisance proceed- ings antecedent to a criminal proceeding involved here.” App. 15, it declined to dismiss on the authority of Younger v. Harris. The trial court’s holding in this respect complies with the consistent holdings of this court that “where the pending state proceeding is a privately-initiated one, the state's interest in that proceeding is not strong enough to merit Younger abstention. for it is no greater than its interest in any other litigation that takes place in its courts.” [citations omitted] Since the municipal and state of- ficials are defendants in the state proceeding resist ing the enforcement of federal constitutional rights, rather than plaintiffs or prosecutors seeking vindi- cation of state law enforcement policies, the trial court did not err in declining to dismiss on the au- thority of Younger v. Harris and its progeny Harris v. Pernsley, No. 84-1039, slip op. at 12-13 (3d Cir., February 22, 1985) The above interpretation is contrary to the emerging principles enunciated by this Court. The circuit court majority's decision rests on two incorrect propositions: that Younger is applicable only when there are pending state criminal or quasi-criminal proceedings and that Younger is applicable only when the state proceeding is not privately initiated. 6 I. The Younger Doctrine Of Abstention Applies To Ongo- ing Civil State Court Proceedings If The Subject Matter Involves An Important State Interest. While this Court initially applied the Younger doc- trine of abstention to allow a federal court to abstain when there was a pending state criminal proceeding. this Court has enlarged its meaning and application far beyond the realm of criminal or quasi-criminal proceed- ings. “The policies underlying Younger are fully appli- cable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Committee v. Garden State Bar Associa- tion, 457 U.S. 423, 432 (1982), citing Moore v. Sims. 442 U.S. 415, 423 (1979); Huffman v. Pursue, Ltd.. 420 U.S 592, 604-605 (1975). In the present case, the continuing state court proceedings deal with an important state in- terest — the administration of a county prison system These proceedings, while not criminal or quasi-criminal in nature, fit well within the boundaries of the expanded Younger doctrine. Since Huffman v. Pursue, Ltd., 420 U.S. 592 (1975). this Court has found repeatedly that the linchpin of the Younger doctrine lies in the concept of “comity,” and in the instant case, “comity” demands federal court absten- tion. Here, the state court has issued numerous and re- cent remedial orders requiring Petitioners to take extraordinary measures to alleviate prison overcrowding. The trial court continues to actively supervise the reme- dial process and the operation of all the Philadelphia Pris- ons. As Judge Garth stated in dissent: Thus, not only have the lower state courts in Penn- sylvania been actively engaged in controlling and su- pervising the prison population and _ prison conditions of the Philadelphia County prisons, but it now appears that effective November 21, 1984. the Pennsylvania Supreme Court itself has taken over all proceedings filed in such actions. More importantly, the Pennsylvania Supreme Court has directed com pliance with court orders concerning 1) construc tion of new facilities, (2) population caps, (3) release of prisoners, and (4) conditions of confinement in cluding double and triple celling lhese are the very issues involved in the federal proceeding before us and unless abstention is ordered. the overall state court review of the Phila delphia County prisons will be subject to ¢ onflicting and contrary determinations respecting each of these vital state concerns. Accordingly, as a matter of federal court policy, | suggest that the panel majority has erred in its failure to acknowledge consider ations of comity due the Commonwealth Harris v. Pernsley, Sur Petition for Rehearing No 84-1039, slip op. at 4-5 (3d Cir., March 21, 1985 In Huffman v. Pursue, Ltd., 420 U.S. 592 1975), this Court extended Younger abstention to a state court proceeding on an Ohio civil nuisance statute [Cjonsiderations of federalism counsel heavily toward federal restraint, since interference with a state judicial proceeding prevents the state not only from effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies. Such interference also results in du- plicative legal proceedings, and can readily be inter- preted ‘as reflecting negatively upon the state court's ability to enforce constitutional principles.’ [citation omitted | The component of Younger which rests upon the threat to our federal system is thus applicable to a civil proceeding such as this quite as much as it is to a criminal proceeding. Id. at 604 Juidice v. Vail, 430 U.S. 327 (1977) and Trainor 7 Hernandez, 431 U.S. 434 (1977) broadened further the expansion of the Younger doctrine. J uidice was an appeal by New York state court judges of a federal district court order enjoining the continued operation of New York’s statutory civil contempt proceedings. The state court ac- tion was initiated by a private party. In reversing the dis- trict court's order, this Court applied Younger despite the presence of a privately initiated state suit: We now hold that the principles of Younger and Huffman are not confined solely to the types of state actions which were sought to be enjoined in those cases | T|he ‘more vital consideration’ behind the Younger doctrine of nonintervention lay not in the fact that a state criminal process was involved but rather in ‘the notion of comity.’ |citations omitted | Id. at 334. Trainor involved a state court civil action brought to recover welfare payments that allegedly had been fraudulently obtained. The state court issued a writ of attachment against the appellees who in turn filed a federal suit alleging that the attachment was unconsti- tutional. This Court characterized the state court action as involving “important state policies such as safeguard- ing the fiscal integrity of [welfare] programs,” and held that “the principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action .. .” Id. at 444. Moore v. Sims, 442 U.S. 415 (1979) similarly broad- ened the application of Younger abstention to a child abuse proceeding, initiated in state court, the result of which was to transfer temporary legal custody of several minors to the Texas Department of Human Services The parents of the minor children, with state court pro- ceedings pending, filed a federal court action alleging Y that the Texas Family Code “unconstitutionally infringe|d] upon family integrity.” Id. at 419 This Court found abstention appropriate The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plainuft Samuels v. Mackell, 401 U.S. 66, 69, 27 L.Ed 2d 688, 91 S. Ct. 764 (1971). That policy was first articulated with reference to state criminal proceedings, but as we recognized in Huffman v. Pursue, Ltd., 420 U.S 592. 43 L.Ed 2d 482, 95 S. Ct. 1200 (1975), the basic concern — that threat to our federal system posed by displacement of state courts by those of the National Government — is also fully applicable to civil pro- ceedings in which important state interests are In- volved. Id. at 423. This Court's most recent pronouncement regarding the parameters of the Younger abstention doctrine was prompted by the Third Circuit's refusal to apply Younger abstention principles to a state bar disciplinary proceeding? Middlesex County Ethics Committee ( Garden State Bar Association, 457 U.S. 423 (1982). In Middlesex County, this Court unequivocally stated its sentiment regarding the purpose of the Younger doc- trine: Younger v. Harris . . . and its progeny espouse a strong federal-policy against federal-court interfer- ence with pending state judicial proceedings absent extraordinary circumstances. The policies underly- ing Younger abstention have been frequently reiter- 29 The Circuit Court held Younger inapplicable because it con cluded that there was no opportunity to raise federal claims in the state forum. 10 ated by this Court. The notion of “comity” includes a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways, quoting Younger v. Harris, 401 US. at 44 Id at 431. While once again emphasizing that abstention is no longer restrained by the notion that state criminal proceedings are somehow more sacrosanct than other judicial proceedings, this Court articulated the following test for the application of Younger abstention Fljirst is there] an ongoing state judicial proceding; second, do the proceedings implicate im- portant state interests; and third, is there an ade quate opportunity in the state proceedings to raise constitutional challenges ld at 432. Applying the test, this Court found You nger to be applicable:“The State of New Jersey has an extremel important interest in maintaining and assuring the pro- fessional conduct of the attorneys it licenses.” Id at 434 Had the Court of Appeals correctly applied the Middlesex County test to this case. it would have found against federal intervention. First. Jackson irrefutably involves an “ongoing state judicial proceeding.” The State trial court continues to exercise jurisdiction over the activities of the Petitioners with the use of a full-time. court-appointed Prison Master, continues to hold com- pliance hearings, and continues to issue remedial orders Initially, Jackson resulted in a 172 page opinion in which the trial court found the county prison conditions of confinement to be unconstitutional. Jackson : Hendrick, No. 2437, slip. op. (C.P. Phila. April 7, 1972) 1] The three-judge state court panel retained jurisdiction over the remedial process and appointed a Prison Master to oversee the reformation of the prison system. Numerous remedial orders and consent decrees fol- lowed. In recent years, the state court’s remedial inter- vention has been particularly more frequent and noticeably more far-reaching: 1. On April 23, 1984, the Jackson court ordered an emergency release program and an expanded program of bail review hearings to expedite the release of detainees who do not pose a threat to the community. That same order required the City to construct two new prison fa- cilities. adding more than 1000 cells in 1986 and 1987. Respondents are currently constructing a 650 cell facil- itv and a center city criminal justice facility, including a holding facility with a capacity for at least 440 cells. 2 On June 22, 1984, the Jackson court imposed pop- ulation caps on the existing Philadelphia prisons, effec- tive October, 1984, to decrease the prison population from 3600 to 2700 inmates. 3 On October 11, 1984, after finding that the City was in contempt because the population exceeded the court-ordered cap, the state court fined the City in excess of $200,000 per month. In addition, the state court re- leased approximately $300,000 in previously collected fines from the City and established a committee to dis- tribute these funds. The City appealed the June 22, 1984 and the Octo- ber 11. 1984 Orders. On October 17, 1984, the Chief Justice of the Pennsylvania Supreme Court issued a stay of these Orders pending their appeals. On November 22, 1984. the Pennsylvania Supreme Court assumed plenary jurisdiction of the appeals at the request of the City. The Supreme Court also agreed to consider the legality of the “one man, one cell” prisoner housing rule which under- lies all of the Jackson court’s orders. Petitioner is await- ing a decision from the highest court in the state 12 regarding the underlying merits of the entire state court case. Second, the state proceeding involves an important state interest. It implicates important state constitutional issues as well as federal, and it deals with a critical func- tion of state government. As Judge Garth stated: I can think of no more weighty, vital or intimate State interests than the administration of a state’s pe- nological system. Indeed, the Supreme Court has given the federal courts unambiguous instructions to pay great deference to the States’ weighty interest in administering their own prison systems. . . Harris v. Pernsley, No. 84-1039, slip op. at 22-23 (3d Cir., February 22, 1985). Judge Garth went on to note: [ do not believe that Supreme Court teachings, co- mity, or reason support a federal court’s intrusion into a state’s administration of its prison system when the state courts have been, and presently are, exercising supervision over these institutions and are doing so in accordance with state and federal constitutional requirements. The pleadings clearly reveal that since March 15, 1976, the Court of Common Pleas has not only imposed corrective measures on the Common- wealth’s prison administration, but has done so con- tinuously through various consent decrees. As recently as June 22, 1984, additional orders have been entered by the state courts. For a federal court to step in and ignore the state’s own corrective pro- ceedings is, so far as I am concerned, as inappropri- ate and wrong as it is for a federal court to run state hospitals, see Pennhurst State School and Hospital v. Halderman, U.S.____, 104 S. Ct. 908 (1984), Youngberg v. Romeo, 457 U.S. 307 (1982). or schools, see Williams v. Red Bank Board of Educa- tion, 662 F.2d 1008, (3d Cir. 1981). This is so par- 13 ticularly where the state cour.s orders have been strictly enforcing federal constitutional mandates.* Id. at 18-19 Finally, had the lower court inquired, it would have found that the Respondents have had, and continue to have, the opportunity to raise constitutional challenges in the state court as part of the Jackson plaintiff class. The Jackson record is replete with instances in which such issues were adjudicated. First, in the initial 172 page Jackson trial opinion, the court discussed, at length, the Respondents’ contention that the conditions of confinement violated the Eighth Amendment to the United States Constitution. Second, Respondents have had the opportunity to raise federal claims at each com- pliance hearing, and they continue to possess the right to petition the Jackson court for further compliance hear- ings if they believe that their federal rights are being im- paired in any way. Finally, the Jackson court has even afforded the Respondents an additional forum in which to raise such concerns: Respondents may report any transgressions to the court-appointed Prison Master. Re- spondents have vigourously exercised their opportunity to present federal claims in the state court proceeding 3 In Williams v. Red Bank Board of Education, 662 F.2d 1008 3d Cir. 1981), the Third Circuit held that school disciplinary pro ceedings embodied a weighty state interest and that the potential disruption of those proceedings warranted Younger abstention. In the instant case, the majority virtually ignores tne precedential value of Williams. Instead, the opinion cites Williams as standing for the proposition that privately initiated state proceedings cannot in volve weighty state interests. However, the majority opinion in Wil liams specifically states that the administrative proceeding was not privately initiated. Id at 1019. Therefore, as Judge Garth's dissents propose, abstention is proper, and at a minimum, the federal court action should be placed in inactive status pending resolution of the state court proceeding. Thus, the majority decision in this action contradicts its own circuit's precedent 14 and as a result, the City of Philadelphia is currently con- structing two new correctional facilities. As Judge Garth points out in his dissent in Harris: In the present case, the courts of Pennsylvania have been overseeing the remedies directed to par- ticular prison conditions and have been issuing re- medial orders since at least March 15, 1976. They have done so after consideration of prison conditions which were alleged to violate both federal and Penn- sylvania constitutions. Thus, the Pennsylvania courts have not only been aware of, but have sought to vindicate, federal concerns. Indeed, the complaint recites that a total of $325,000 in fines has been lev- ied by the court for failure to comply with various corrective provisions of the consent decrees which had been entered. The complaint further recites that there have been four additional consent decrees that have been approved by the Court of Common Pleas as late as December 21, 1982. Moreover, as recently as June 29, 1983 — more than one year after the present federal action was commenced — the state court entered still another order establishing a plan of prison release to relieve overcrowding. That order was followed by still additional orders entered by the state courts as late as June 22, 1984. Harris v. Pernsley, No. 84-1039, slip op. at 24 (3d Cir.. February 22, 1985).4 4. Respondents also argue, and the circuit majority found per- suasive, that the plaintiffs herein are asking for monetary damages for their prison confinement which the state court has never or- dered. Petitioners disagree on two basis: first, Petitioners agree with Judge Garth that the request for money damages “. . . is by far the most insignificant element of the plaintiffs’ charge. What the plain- tiffs seek here is pure and simple equitable relief and they seek it on federal constitutional grounds. The money damages, as I read the Complaint, are incidental.” Id. at 27. Second, as Judge Garth noted in a footnote, Respondents have continued to request monetary 15 Even beyond the Middlesex analvsis, this case rep- resents a critical application of the comity concepts in- tegral to Younger abstention. Here the local authoriues are faced not only with federal usurpation of a critical state interest in prison regulation but also with the very real prospect of inconsistent regulatory comments from state and federal courts. If comity has any purpose it is that active state court regulation should not be subject to review and revision by individual federal judges. The Court of Appeals decision permits such review and revi- sion This Court has found Younger abstention applicable to pending civil proceedings.® The doctrine is no longer damages from Petitioners in the state court proceeding. The state court has entertained the consideration of such requests but have denied them. Id. at 28, n. 4 5. Virtually every other Court of Appeals has correctly inter preted this Court's expansion of the Younger doctrine to civil pro ceedings. For instance, in Blue Cross and Blue Shield of Michigan ». Baerwaldt. 726 F.2d 296 (6th Cir. 1984) the Michigan Commis sioner of Insurance ordered an insurer to cease publishing certain advertisements. The insurer appealed that order to the state court and concurrently filed a 42 U.S.C. §1983 suit in federal court. The Court of Appeals for the Sixth Circuit, in affirming the trial court's decision to abstain, stated Younger abstention, born in a criminal context, is now “fully applicable to noncriminal judicial proceedings when important state interests are involved” |citations omitted} The regula tion of insurance companies clearly involves important state in- terests Id. at 299. See United Books, Inc. v. Conte, 739 F.2d 30 (1st Cir 1984): Levy v. Lewis, 635 F.2d 960 (24 Cir. 1980); Craig v. Barney, 678 F.2d 1200 (4th Cir. 1982); DeSpain v. Johnston, 731 F.2d 1171 (5th Cir. 1984); J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981); Sekerez v. Supreme Court of Indiana, 685 F.2d 202 (7th Cir. 1982); Central Avenue News Inc. v. The City of Minot, North Dakota, 651 F.2d 565 (8th Cir. 1981); Champion International Corporation % Brown. 731 F.2d 1406 (9th Cir. 1984); First National Bank and Trust Co. of Wyoming v. Lawing, 731 F.2d 680 (10th Cir. 1984). In fact. the Third Circuit majority's decision in this action is contrary 16 limited by the facts of Younger and has emerged as the guardian of our system of federalism. The Court of Ap- peals for the Third Circuit failed to consider the decisions expanding the Yuunger doctrine and did not address the Middlesex County test. As Judge Garth stated in his dis- sent: The majority, in virtual defiance of Supreme Court teachings that federal courts should not in trude in vital state interests unless federal constitu- tional concerns are being violated or ignored — neither of which is the case here — has nevertheless held that a federal court is to manage Philadelphia's jails. Harris v. Pernsley, No. 84-1039, slip op. at 17-18 (3d Cir., February 22, 1985). Il. The Third Circuit Is Incorrect In Finding That The Younger Doctrine Dues Not Apply To Privately !niti- ated State Proceedings. In considering whether Younger abstention was ap- propriate, the Court of Appeals presumed that, because the state action was privately initiated, Younger was in- applicable. See Harris v. Pernsley, No. 84-1039, slip op. at 12-13 (3d Cir., February 22, 1985). In Juidice, this Court applied Younger even though that case was privately initiated. See Moore v. Sims, 442 U.S. 415 (1979). In addition, those circuit courts which have addressed this issue have found Younger absten- tion to be appropriate despite the existence of a privately initiated state suit. See Gresham Park Community Or- ganization v. Howell, 652 F.2d 1227 (5th Cir. 1981) (ab- stention in favor of a private action by a store owner to prevent picketing with the following observation: “|Wle NOTES (Continued) to its own decision regarding the application of the abstention doc- trine. See Williams v. Red Bank Board of Education, 662 F.2d 1008 (3d Cir. 1981). 17 find no reason for limiting Younger to state initiated state suits.” Id. at 1247-48): Kenner v. Morris, 600 F.2d 22 6th Cir. 1979) (abstention in favor of a divorce proceed- ing because such proceedings were traditionally of deep state concern and should not be invaded by federal in- tervenvuion Accord. Parker v. Turner, 626 F.2d 1 (6th Cir. 1980 Moreover, Jackson is not a simple private action. It is a class action in which the three-judge trial state court and prison master have actively supervised implemen- tation of orders which directly address the constitutional issues raised in Harris. Those same constitutional issues are the basis for the claims raised in Jackson. Therefore the Third Circuit's refusal to consider abstention in the presence of a private suit directly conflicts with the de cisions of this Court and purposely disregards the “public” nature of the pending state court proceedings in lackson CONCLUSION [The Third Circuit's treatment of Younger is in con- flict with the teachings of this Court. The on-going state court proceedings involve a vital state interest — the ad- ministration of a county correctional system. Any intru- sion upon those proceedings would engender conflict and offend our system of federalism. As Judge Garth noted Under these circumstances, I ask the question that the majority has never sought to answer — what more, consistent with Supreme Court precedent and directives, should, or could, a federal district court do, to accomplish what is presently underway in the Philadelphia court system? .. . Indeed, in light of the current posture of the or- ders which have been entered by the Pennsylvania courts ... what actioms could a federal district court 18 judge possibly take (a) without upsetting and de- stroying a viable program designed by the state courts to correct the Philadelphia prison conditions and (b) without trespassing on state court directives that are presently in place and in effect. Harris v. Pernsley, Sur Petition for Reconsideration, No 84-1039, slip op. at 6-7 (3d Cir., March 21, 1985) For all of the foregoing reasons, this Court should grant the instant Petition for a Writ of Certiorari Respectfully submitted, BARBARA W. MATHER City Solicitor Cie \ » re rrve . rw ° " ‘ supe . . he record Goes ~ a ve ‘ “ gness : : rye state ' 4 dd : . we sutbee " \-46 its penal system by scheduling a case for in banc consideration where one of the significant issues concerns absteniion. Georgevich v. Strauss. No 54-5194 (3d Cir. Jan. 9. 1985) (order listing case in banc). Georgevich involves the manner in which Pennsylvania may parole its prisoners. The present case involves the administration of prisons and the remedial measures designed to bring the Philadelphia prison system in line with state and federal constitutiona! requirements | find no distinction between the importance of the comity issue presented in this case and the importance of the comity issue. which is one of the issues presented in Georgevich. In the present case the majority opinion requires that a federal court override & States enforcement of its own court orders. which orders have as their objective. compliance with the federal. as well as the state. constitutions. | suggest that if Georgevich warrants the attention of a full court. even more so does this case | would vacate the judgment of the district court and remand with instructions to retain jurisdiction over the proceedings in order to resolve any federal claims remaining at the conclusion of the state action A True Copy Teste Clert of the Unted Stetes Coun of Apoeais for the Ther’ Cireu ; A-47 UNITED STATES COURT OF APPEALS FOR THE THIRD CIPCUIT No. 84-1039 MARRIS. MARTIN a/k/a CARMICHAEL. ARTHUR Prison Number 8016203 et al. Appellants v. IRENE PERNSLEY. individually and in her official capacity as Welfare Commissioner of the City of Philadelphia. et al. Appellees SUR PETITION FOR REHEARING resent: ALDISERT. Chief Judge. SEITZ. ADAMS. GIBBONS. HUNTER. WEIS. GARTH. HIGGINBOTHAM. SLOVITER. BECKER. Circuit Judges and TEITELBAUM. District Judge* The petition for rehearing filed by City Appellees in me above entitled case having been submitted to the iges who participated in the decision of this court ) all the other available circuit judges of the in regular active service. and no judge who rred in the decision having asked for rehearing. ' majority of the circuit judges of the circuit in *guler active service not having voted for rehearing by irt in banc. the petition for rehearing is denied Hubert |. Teitelbaum. Chie! Judge. United States District the Western District of Pennsylvania. on pane! rehearing A-48 Judges Adams. Hunter. Weis. Garth and Becker would grant the petition for rehearing. Judge Adams dissents from the denial! of the petition for rehearing in banc because he believes that this case raises important questions regarding the scope of the Younger abstention doctrine. and because it appears that the state court proceedings involving the Philadelphia County prison system are being conducted in good faith and with due haste. By the Court, JOHN J. GIBBONS Judge Dated: March 21. 1985 GARTH. Circuit Judge. dissenting from the Court's denial of the City of Philadelphia's Petition for Rehearing: My dissent from the refusal of the majority to order Williams v. Red Bank Board of Education. 662 F.2d 1009 (3d Cir. 1981) abstention was grounded on the principle that Federal courts should not take over. manage and operate city or state prisons when the State courts are enforcing all constitutional -- including federal constitutional -- requirements. At the time that | dissented from the panel opinion. | wrote | do not believe that Supreme Court teachings. comity. or reason support a federal court's intrusion into a state s administration of its prison system when the state courts have been and presently are. exercising supervision over these institutions and are doing so in accordance with State and federal constitutional requirements A-49 The pleadings clearly reveal that since March 15. 1976. the Court of Common Pleas has not only imposed corrective measures on the Commonwealth Prison Administration, but has done so continuously through various consent decrees. As recently as June 22, 1984, additional orders have been entered by the state courts. For a federal court to step in and ignore the state's own corrective proceedings is, so far as | am concerned, as inappropriate and wrong as it is for a federal court to run state hospitals. see Pennhurst State School and Hospital v. Halderman, —— U.S. —_. 104 S. Ct. 908 (1984); Youngberg v. Romeo, 457 U.S. 307, (1982). or schools, see Williams v. Red Bank Board of Education, 662 F.2d 1008, (3d Cir. 1981). This is so particularly where the state courts have been strictly enforcing federal constitutional mandates The Petition for Rehearing that followed the filing of our opinions in Harris pointed out that Jackson v. Hendrick. No. 71-2437. slip op.. (C.P. Phila. April 7, 1972), which resulted in a consent decree, affirmed by the Pennsylvania Supreme Court, 457 Pa. 405 ‘1974), was originally brought as a broad challenge to conditions in the Philadelphia prisons, . . . including overcrowding The case extends to every detention or prison facility within the city. . . In recent vears. the Jackson court has focused intensely on overcrowding ‘The supervision by the Jackson court has been active. and has involved not only the court but also the full time work of a master appointed by the court During 1984. the Jackson court has taken the following sieps |. On April 23, 1984. the Jackson court ordered an emergency release program and an expanded program of bail review hearings to expedite the A-50 release of detainees who do not pose a threat to the community. That same order required the city to construct new prison facilities. including an additional 1200 cells in 1986 and 1987 2. On June 22. 1984. the Jackson court imposed population caps on the existing Philadelphia prisons effective October 1984 to decrease the prison population from 3600 to 2700 inmates.” City Appellees’ Petition for Reconsideration in Banc The record before the panel of this court did not disclose the State Court's activities and orders after June. 1984. The Petition for Rehearing now reveals the following On October 11. 1984. after finding that the City was In contempt because the population exceeded the court-ordered cap. the state court fined the City in excess of $200.000 per month. In addition the state court released approximately $300.000 in previously collected fines from the City and established a committee to distribute these funds The City appealed the June 22. 1984 and the October 11. 1984 orders. On October 17. 1984. the Chief Justice of Pennsvivania Supreme Court issued a stav of these orders pending their appeals On November 22. 1984. the Pennsvivania Supreme Court assumed plenary jurisdiction of the appeals at the request of the City. The Supreme Court also agreed to consider the legality of the one man. one cell’ rule which underlies all of the Jackson courts orders Thus. not only have the lower state courts in Pennsvivania been activeh engaged in controlling and supervising the prison population and prison conditions of the Philadelphia Count prisons. but it now appears that effective Novernber 21. 1984. the Pennsylvania Supreme Court itself has taken over all ) lings filed in such actions. More importanth enns inia Supreme | irt Nas directed n ince witl rt rders concerning siru ’ new facilities . art ete NN ; * ' > i or _ ~ _ vA ‘ lers 5a. tus. N \A \ re a7 . is rhe is ~~ s,s we ’ : ’ 1? . n< are roe ’ ~ and ne } : — \ ~ : be _ — ary \ er °