Opposition Brief — City & County of San Francisco v. Stone

; faprsme Court, U.S

» MBILED

1

ii BEC 23 1992

No. 92-899 t

Brice oe SHE CLERK

od

In The

Supreme Court of the United States

October Term, 1992

¢

CITY AND COUNTY OF SAN FRANCISCO, ET AL.,

Petitioners,

VS.

WILL STONE, ET AL.,

Respondents.

¢

Petition for Writ of Certiorari

to the United States Court of

Appeals for the Ninth Circuit

+

BRIEF IN OPPOSITION

.

Morton P. CoHEN JoHN N. Hauser

49 Stevenson Street BetH H. PAarRKER*

San Francisco, CAROLYN L. REID

California 94105 McCuTcHEN, Doyce,

Telephone: (415) 904-6843 BROwN & ENERSEN

Three Embarcadero Center

San Francisco,

California 94111

Telephone: (415) 393-2000

Attorneys for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Should this Court grant certiorari to address the

standard for finding a party in contempt when there is no

conflict between the circuits and when, even under San

Francisco’s supposed “flexible” standard, it would still be

found in contempt?

2. Should this Court grant certiorari to reverse long-

standing jurisprudence and permit San Francisco to argue

fiscal constraints as a defense to contempt when it sought

no modification of the underlying court orders?

3. Should this Court grant certiorari to address

whether the circumstances leading up to the contempt

must be unforeseen or unforeseeable, when those circum-

stances have no bearing on the contemnor’s diligence in

complying with court orders?

4. Should this Court grant certiorari to reverse dic-

tum on an issue which was decided in San Francisco’s

favor and issue an advisory opinion on a matter which

may never arise?

ii

TABLE OF CONTENTS

Page

Topp 6 tt ayy * | ee rrr 1

STATEMENT OF TGR © Ait occ eect eceviccessss 2

SUMMARY OF ARGUMBEINE. .0 22 cceenrcecseccecs. 10

REASONS FOR DENYING THE WRIT............. 12

A. THERE IS NO CONFLICT AMONG THE CIR-

CUITS AS TO THE PROPER STANDARD FOR

HOLDING A GOVERNMENT DEFENDANT IN

OF ay gg Me ety rr re ee eee 12

1. No Case Supports San Francisco’s Distinc-

tion Between “Reasonable Diligence” and

“All Rensonmble StGpe™ ... ccs ecnnscncssess 12

2. Even If the Standards Differed, This Case

Would Not Put The Issue; San Francisco Was

In Contempt Under Any Standard......... 17

B. PERMITTING A GOVERNMENT DEFENDANT

TO PLEAD POVERTY AS A DEFENSE TO CON-

TEMPT WOULD REVERSE LONG-STANDING

LEsAL, FU ee OC Ge eo dae WR ACN Ak Kab cena 20

C. SAN FRANCISCO CITES NO REASON FOR

ALLOWING A DEFENDANT TO CLAIM

UNFORESEEN CIRCUMSTANCES AS A

oie Bt Ree yg ee eT ere 25

D. THIS COURT SHOULD NOT ISSUE AN ADVI-

SORY OPINION ON AN ISSUE DECIDED IN

SAN FRANCISCO'S FAVOUR «icc cccccvevessess 27

COIN LATIN 3 a cncvecssnseueaphsSeeueeaneepeakes 29

ili

TABLE OF AUTHORITIES

Page

Cases

Alberti v. Klevenhagen, 610 F. Supp. 138 (S.D. Tex.

EE Eee eter eer er eee eee ye ee ee 13

Balla v. Idaho State Bd. of Corrections, 869 F.2d 461

i Es C886 555k ee UN KON SRARE SAR V EOS READ 13, 25

Battle v. Anderson, 564 F.2d 388 (10th Cir. 1977) ..... 21

Bell v. Wolfish, 441 U.S. 520 (1979) .................. 21

California v. Green, 399 U.S. 149 (197). ............... 28

omer © Maron, Soe US. 1 (IDES)... «2. ences cvsees 23

Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326

SR Ee ree ere ae ere re ee 28

Donovan v. Mazzola, 716 F.2d 1226 (9th Cir. 1983),

cert. denied, 464 U.S. 1040 (1984)............... 13,.

Electrical Fittings Corp. v. Thomas & Betts Co, 307

che cSeceess kobe edeetaneene eed 28

Fortin v. Commissioner of Mass. Dept. of Public

Welfare, 692 F.2d 790 (ist Cir. 1982)............ ia, ©

General Signal Corp. v. Donallco, Inc., 787 F.2d 1376

0 ee ere re ree 13, 15, 26

Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991) ....... 14

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)...... 1

Gross v. Tazewell County Jail, 533 F. Supp. 413 (W.D.

8 EE ee eee a eer ee eer ere 21

GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375

aL a hs bcna pean ted hve dake deus chee nweckaes 22

iv

TABLE OF AUTHORITIES - Continued

Page

Howard Johnson Co. v. Khimani, 892 F.2d 1512 (11th

Che, TURD ic ccivccsacsasteeeee eee 17

Hutto o. Finney, 457 US. 676 C976)... 20 sssnssiscess 10

Inmates of Allegheny County Jail v. Wecht, 754 F.2d

yee Be ee | ere rey er re re 21

Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)........ 21

Langton v. Johnston, 928 F.2d 1206 (1st Cir. 1991). .12, 17

Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981)......... 20

Maggio v. Zeitz, 333 US. Bb (I9ES) .. ovr ccscnccnvevs: 22

McComb v. Jacksonville Paper Co., 336 U.S. 187

CREED onc cinhunes saa cae RRM REE Ree ee 26

Mobile County Jail Inmates v. Purvis, 551 F. Supp. 92

(S.D.Ala. 1982), aff'd, 703 F.2d 580 (11th Cir.

| MOTTE Perrier err eee ere cae 14

Morales Feliciano v. Hernandez Colon, 697 F. Supp.

Be GN COUP obi nccvocncdasaetens ceues senaceres 14

Morgan v. District of Columbia, 824 F.2d 1049 (D.C.

GOR SUP ves cviyss TTC TT PTT Sore ey Cy eee e 20

National Advertising Co. v. Orange, 861 F.2d 246

Cee MS I a5 5800s cows deacuateawhWalewhenenves 13

National Resources Defense Council, Inc. v. Train, 510

a e 8 . . Sererrerer ry ert er etre 15

Nelson v. Collins, 659 F.2d 420 (4th Cir. 1981)..... 13, 27

Newman v. Alabama, 683 F.2d 1312 (11th Cir. 1982),

cert. denied, 460 U.S. 1083 (1983).................. 22

ianteenemnnenenmemeeeaiateiateteeed

Vv

TABLE OF AUTHORITIES - Continued

Page

Newman v. Graddick, 740 F.2d 1513 (11th Cir. 1984) .... 13

New York State NOW v. Terry, 697 F. Supp. 1324

es NO soe 555405 0b on Wone nadia tees benauis 16

Palmigiano v. Garrahy, 448 F. Supp. 659 (D.R.I.

ane 4 A Taek A a a cata ni aed td 14

Pasadena City Board of Education v. Spangler, 427

C8 Ne ne ee 22

Perez ©. Ledesma, 401 U.S. 62 (1971) .... 2... cc cecseee 28

Powell v. Ward, 487 F. Supp. 917 (S.D.N.Y. 1980),

modified, 643 F.2d 924 (2d Cir. 1981)............ 13, 14

Reed v. Rhodes, 500 F. Supp. 363 (N.D. Ohio), aff'd

in part and rev'd in part, 635 F.2d 556 (6th Cir.

SUES Ao 6508 6 ved aed e WE eeNO Rb ue ee es eh eh elevwdess 13, 14

Rufo v. Inmates of Suffolk County Jail, 112 S.Ct. 748

SOE < ska vccsuwasuucveneeyeceeseess 10, 20, 23, 24, 26

Rutherford v. Pitchess, 457 F. Supp. 104 (C.D. Cal.

| ROE ET ERT ETE ee Pee crys Tre eee 21

SEC v. Porto, 739 F. Supp. 1236 (N.D. Ill. 1990)...... 16

Sekaquaptewa v. MacDonald, 544 F.2d 396 (9th Cir.

1976), cert. denied, 430 U.S. 931 (1977)............. 26

Smith v. Sullivan, 611 F.2d 1639 (5th Cir. 1980) ...... 20

Thompson v. Enomoto, 542 F. Supp. 768 (N.D. Cal.

SOPs « SNu SNS en vcn kn seis 5AG0b ERASER OND PReE ee eES 14

Toussaint v. McCarthy, 597 F. Supp. 1427 (N.D. Cal.

SOR Ks > ie han entetecasden ee bea neeraee aaa 20

vi

TABLE OF AUTHORITIES - Continued

Page

Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986),

cert. Genten, 463 US... TOGD Cite ws bcs tea ees 18

United- States v. Darwin Construction Co., 873 F.2d

TSO (dite Cle. TOR. boss ccc nnecangeeseeeeeeeee 14

United States v. Fleischman, 339 U.S. 349 (1950) ...... 15

United States v. Hefti, 688 F. Supp. 1367 (E.D. Mo.

1988), aff'd, 879 F.2d 311 (8th Cir. 1989)........... 14

United States v. Peters, 9 U.S. (5 Cranch) 115 (1809) .... 23

United States v. Rylander, 460 U.S. 752 (1983) .15, 22, 25

Walker v. Birmingham, 388 U.S. 307 (1967) ........... 22

Wheeler v. Barrera, 417 US. 402 (1974), modified, 422

U.S. 1006 CiiF a)... 0s cvcsccdues+cesseerbeeeeeeeeraa 28

STATUTES AND CODES

Sup. Ct. BR. WG). a csisccasnsaccveys ceueaueseees 25

MISCELLANEOUS

“County Jail Seeks More U.S. Prisoners,” The San

Francisco Chronicle, at Al4 (Sept. 10, 1991) ........ 19

INTRODUCTION

There is nothing to review here. Petitioners the City

and County of San Francisco (“the City”) say “reasonable

diligence” is different from “all reasonable steps,” and so

manufacture a conflict among the circuits, even though

no circuit court has ever suggested, much less held, that

there is any conflict at all. The City suggests defenses to

contempt that no court has ever adopted and that conflict

with long-standing precedent everywhere. And the City

asks for an advisory opinion on an early release order

that was vacated at its request and may never be reins-

tated.

This case is not about conflicting rules. It is about the

factual finding, made by a district judge who has over-

seen this case since 1978 and unanimously affirmed by

the Ninth Circuit, that San Francisco violated, repeatedly

and continuously, court orders defining the constitutional

limits on jail overcrowding. Those findings compel a

finding of contempt even under San Francisco’s imagined

“flexible” “reasonable diligence” standard; even if any

case supported a rule that financial constraints could be a

defense to contempt; and even if a contemnor could

avoid contempt based on a non-existent “unforeseen cir-

cumstances” test. San Francisco quarrels with the find-

ings and reargues facts on which it lost in the two courts

below. But this Court does not sit to review facts. Good-

man v. Lukens Steel Co., 482 U.S. 656, 665 (1987). At bot-

tom, that is what the petition demands. The petition

should be denied.

STATEMENT OF THE CASE

Respondents, pretrial detainees housed at San Fran-

cisco’s Jail No. 1, filed this class action in 1978 to remedy

unconstitutional conditions in the sixth floor of the Hall

of Justice. Among the conditions challenged was the

untenable population level at Jail No. 1.! (CR 1)?

On July 15, 1982, the parties agreed to a Consent

Decree, which was entered by the district court. (CR 201)

The Decree set standards by which San Francisco was to

manage the jail. It included a provision that the jail’s

individual housing areas should not regularly house

more inmates than the capacity set by the California State

Board of Corrections. (CR 201 J XIV) Based on those

population figures, the parties negotiated a number of

other conditions for the jail’s operation. They agreed, for

example, on a classification system, a staffing plan, how

many toilets, beds, and showers were needed, the level of

medical and mental health care, and the like. (E.g., CR

201; CR 275; CR 374) Once the population levels are

exceeded, these other agreements become inoperable.

1 San Francisco’s Jail No. 1 was constructed in 1962, primar-

ily to house pretrial misdemeanants. It has five dorms of dou-

ble-decker bunks designed to sleep 28 inmates, six tanks with 26

beds, and several tanks for specially classified inmates. Pretrial

detainees spend virtually 24 hours a day in these dorms with

nothing to do.

2 “CR” refers to the Clerk’s Record filed with the Ninth

Circuit. “RT” refers to portions of the recorder’s transcript

which were not part of the Clerk’s Record. “App.-__” refers to

the Appendix filed with the City’s Petition.

San Francisco represents that it had a history of

“compliance” with the consent decree and that in 1991

something “dramatically changed.” (Pet. at 8) The record,

however, is just the opposite. The record proves a persis-

tent pattern of contempt for both the lower court’s orders

and the rights, health, and safety of the pretrial detainees

housed at the Jail No. 1. Compliance only occurred in the

past after the threat of sanctions coerced it. Here is the

full story.

In June 1985, the class first moved to hold San Fran-

cisco in contempt for violating several provisions of the

Decree, including those dealing with the facility’s manda-

ted population levels. (App. A-2; CR 222) As a result of

that motion, in May 1986, the district court ordered the

City to comply with its orders and appointed a Special

Master to investigate, report, and recommend actions San

Francisco should take to ensure compliance. (App. A-3;

CR 261) Every progress report which the Special Master

filed that year indicated continuing violations of the

Decree, including persistent overcrowding. (CR 267 at 57;

CR 268 at 50; CR 271 at 41; CR 318 at 28-29) Asa result, he

recommended in March 1987 that the district court

impose sanctions when the jail exceeded its population

capacity. (App. A-3; CR 282 at 10-11; see also CR 319 at 30)

The district court held a hearing in April 1987 on the

contempt motion. At San Francisco’s request, it continued

the matter until June to give the City time to present a

plan to address the overcrowding. (App. A-3; 4/30/87 RT

at 18-19) The court indicated it would impose contempt

penalties, including fines, if the plan was unsatisfactory.

To thwart concerns about its persistent recalcitrance,

San Francisco agreed in June 1987 that it would house no

more than 426 inmates in Jail No. 1. (CR 314 at 2) It

agreed that if it failed to achieve either the overall capac-

ity level for the jail or the capacity levels for individual

housing units, the district court could “consider the pos-

sible immediate imposition of monetary sanctions.” (Id.

{ 18; App. A-3)

Despite these warnings, San Francisco continued to

overcrowd the facility. On November 28, 1987, the district

court issued an order to show cause why the City should

not be held in contempt for violating the overcrowding

provisions of its orders. (App. A-4; CR 331) At the subse-

quent hearing two months later, the court found

egregious overcrowding and a failure on San Francisco's

part to correct the situation. (CR 363 at 2) Even then, it

did not immediately impose sanctions but gave San Fran-

cisco still more time, and more powers, to control the

population. Among these was the ability of the Sheriff to

release “all sentenced prisoners within the San Francisco

County Jail system who have served 90%, 80%, and 70%

of their sentences” as necessary to achieve capacity limits.

(Id. ¥ 4(c)) The Sheriff immediately began to exercise this

power by releasing prisoners at 70% of time served. (CR

373 at 41)

Still, the overcrowding did not abate. Throughout

1988 the overcrowding continued. (CR 373 at 70; CR 383

at 45) The district court held hearings in April, July, and

October on the pending motion for contempt. Each time,

the court continued the hearing to allow San Francisco

more time to comply with the population limits. (App.

A-4) Finally, following a status conference in late October

1988, the court found the overcrowding so serious that it

ordered the imposition of fines of $300 per inmate per

day if the population was not at its mandated level by

March 15, 1989. (App. A-4; CR 399 4 2)

The overcrowding did not stop between October 1988

and March 1989. On March 15 - almost four years after

the first contempt motion was filed and the exact date on

which fines were to be imposed - San Francisco finally

came into compliance with the population levels set forth

in the 1982 Consent Decree. The threat of fines of $300

per inmate per day had its desired effect.

San Francisco did nothing, however, to plan longterm

for its jail population. In September 1988, the National

Council on Crime and Delinquency projected that San

Francisco would need 2109 beds by 1992 (a number

which turned out to be accurate). (CR 424 at 7) At that

time, there were only 1786 beds available City-wide.

Thus, San Francisco knew in 1988 that if it did not fully

use the early release powers granted it by the district

court, it would need an additional 500 beds. (Id.)

To wean San Francisco from the court’s orders and

encourage long range planning, the Special Master began

recommending in early 1989 that the City develop a plan

to address overcrowding. He made this recommendation

in two separate progress reports, filed in February and

December 1989, respectively. (CR 423 at 96; CR 438 at

75-76) On February 8, 1990, the district court adopted the

Special Master’s recommendation and ordered San Fran-

cisco to present such a plan by July 15, 1990. (CR 437)

Despite this clear mandate, the San Francisco Board

of Supervisors did not approve a plan until June 17, 1991,

almost a year after it was required. (CR 544 at 40) And

that plan did essentially nothing to avert the overcrowd-

ing problem. Indeed, most of the proposals that would

have had an impact on jail crowding were eliminated

from the final draft for fiscal reasons. (/d.) As a result, the

Special Master concluded, the “current funded proposals

will not measurably reduce the population confined in

the San Francisco jail system .. . the long term Jail

Population Management Plan will not materially affect

the crowding that presently exists in the jail system.” (Id.

at 45) The proposals did not even begin to address the

500 beds saved through the Sheriff’s use of the court-

authorized release programs.

Although San Francisco remained in compliance with

the population orders for almost two years, on February

19, 1991, it again began to overcrowd. Between February

19 and June 30, 1991, the total jail capacity exceeded the

426 inmate cap on 30 different occasions. In that four

month period, individual living units were overcrowded

on 258 occasions; 822 inmates resided in living quarters

that exceeded the district court’s orders. (CR 544 at 29)

On May 30, 1991, the class moved for an order (1)

holding the City in contempt, (2) seeking sanctions, and

(3) ordering compliance with the Decree. (CR 492) The

district court set a hearing for late July. Despite the pen-

dency of the motion, the overcrowding did not abate.

May, June, and July all saw chronic overcrowding. (CR

511, Ex. A) Both overall capacity and individual housing

units regularly exceeded their agreed-upon levels.

These dramatic population increases occurred in 1991

despite a decrease in violent crimes reported during the

same period. The number of the most serious crimes

committed went down almost every month between Jan-

uary and November 1991 as compared to 1990. (CR 569,

Ex. A) Both reported offenses and total jail bookings

decreased in the first six months of 1991 compared with

1990. (CR 544, at 33-34) And, although the jail was sub-

stantially more overcrowded in the fall of 1991 than it

was during the spring, total arrests were actually lower in

September through November 1991 as compared to

March through May 1991. (CR 569, Ex. A)

At a hearing on July 31, 1991, the district court found

that San Francisco had continued to exceed the capacity

levels at Jail No. 1. (CR 513 at 17:24-18:3) When the City

requested time to present a plan to address the problem

(id. at 3), the court took the matter under submission. (Id.

at 21:2-3) San Francisco acknowledged the blatant over-

crowding but sought the district court’s indulgence to

develop a plan. It stated that if the plan was not accept-

able, “the sword could fall.” (Id. at 10, 16)

Rather than hear the matter in September as the

parties had requested, the court postponed the second

hearing on San Francisco’s plan to avoid overcrowding

until November 7, 1991. (CR 516) In the fall, as the class

and experts had predicted, matters dramatically wors-

ened. Between October 1 and November 4, 1991, individ-

ual housing units exceeded capacity every day but one.

(CR 520 { 5) During that one-month period, 963 inmates

resided in unlawful conditions. (/d. | 6)

At the second contempt hearing in November, the

class submitted uncontroverted evidence that overcrowd-

ing had not abated since July, but had skyrocketed. (Id.)

The plan the City had promised to present “in a matter of

a few weeks” after the July hearing (CR 513 at 11:5-6) had

only recently materialized. It had not, however, been

fully implemented. (CR 521 at 11) San Francisco did not

deny the overcrowding, but again requested additional

time to present a further plan to reduce the population.

(Id. at 16:20-21) Once again, the district court took the

matter under submission. (Id. at 19)

In December, the jail’s population exploded. On

December 2, 1991, for example, the jail was 133% of

capacity. Twelve housing units exceeded capacity that

day, some by close to 75%. Dorms 1 through 4, rated for

28 men, held approximately 48 inmates each. (CR 539, Ex.

A)

On December 17, 1991, the sword fell. The district

court found San Francisco in contempt for violating a

series of court orders setting population levels at Jail No.

1. (App. B-15) It found the City had not taken all reason-

able steps to ensure compliance. (Jd. at 12-13) It ordered

that beginning January 1, 1992, sanctions of $300 per day

per person would accrue for each day San Francisco

violated the population orders. (Id. at 15-16) All monies

collected were to be made available for programs that

would have a direct bearing on the jail’s population

levels. (Id. at 17)

a

On December 26, 1991, San Francisco filed a motion

requesting that the court stay the order pending appeal

or, in the alternative, reconsider its opinion. (CR 549) On

December 30, the court denied both requests. (CR 572)

The court again concluded that San Francisco had not

taken all reasonable steps to comply with the Consent

Decree and subsequent orders. (CR 570 at 28:9-11) Among

the steps which the court found the City could have taken

but did not were:

activation of the closed women’s jail in San

Bruno; renting of jail space from Alameda

County; contracting with private vendors and

halfway houses for work furlough beds; use of

private contractor electronic supervision pro-

grams; partial use of the gymnasium in the Hall

of Justice as a dormitory; termination of the

contract with the U.S. Marshal for use of beds in

the San Francisco jail system; and use of the

emergency population procedures provided for

in the August 12, 1987 order of the court.

(Id. at 28:13-22)

On December 31, 1991, San Francisco filed its notice

of appeal. (CR 573) The appeal was expedited by the

Ninth Circuit on January 8, 1992, and the contempt order

stayed pending its resolution.

On June 25, 1992, a unanimous panel of the Ninth

Circuit affirmed the district court’s finding of contempt

and imposition of prospective sanctions. It vacated a

portion of the order which enabled the Sheriff to release

inmates at 50% of time served to ensure compliance with

the population orders. (App. A-33) The Ninth Circuit

denied San Francisco’s petition for rehearing and sugges-

tion for hearing en banc on August 30. On November 23,

1992, San Francisco filed its petition for a writ of cer-

tiorari. Both the Ninth Circuit and The Hon. Sandra

Day O’Connor, Circuit Justice for the Ninth Circuit,

———S——

10

denied San Francisco’s application for a stay of the man-

date pending its petition for a writ of certiorari.

¢

SUMMARY OF ARGUMENT

San Francisco asserts four reasons why this Court

should grant its petition for writ of certiorari and reverse

a finding of contempt entered by a district court who has

overseen this litigation for fourteen years and unani-

mously affirmed by the Ninth Circuit. Not one has merit.*

First, the City claims this Court needs to resolve a

conflict between the circuits as to the standard for finding

a party in contempt. No circuit has ever said there is a

conflict; only San Francisco has manufactured it. The

alleged “conflict” is one of semantics. In substance, the

two standards are the same, the courts use them inter-

changeably, and they have the same end effect.

Even if there were an issue for this Court to resolve,

this case does not present it. For even were this Court to

adopt the more flexible standard which San Francisco

proposes, it would not change the result. San Francisco

was not “reasonably diligent” in complying with the

3 Heightened deference should be accorded to the district

court here because Judge Orrick has been involved with this

case since 1978 and overseen the implementation of the consent

decree for more than a decade. (App. A-12) See Rufo v. Inmates of

Suffolk County Jail, 112 S.Ct. 748, 765 (1992) (O’Connor, J., con-

curring); Hutto v. Finney, 437 U.S. 678, 688 (1978) (substantial

deference given to district court’s “years of experience with the

problem at hand.”)

11

district court’s population orders, no matter how loosely

defined that term is.

San Francisco’s second reason for certiorari is equally

spurious. It claims this Court should decide that a lower

court should consider a government’s fiscal constraints

before adjudging it in contempt. This holding would

reverse two long-standing doctrines. It would undermine

the principle reaffirmed just last term that fiscal con-

straints cannot be used to justify the creation or perpetua-

tion of constitutional violations. It would also enable

parties, such as San Francisco here, to violate a court

order and then challenge the validity of the underlying

order as a defense to contempt.

San Francisco proposes, third, that the Court decide

whether a defendant in a contempt proceeding must

show that the circumstances giving rise to the violation

were foreseeable. It provides no reason why this issue

need be decided. There is none. The circumstances lead-

ing up to the contempt are irrelevant to the inquiry before

the district court. The court must analyze instead the

efforts the party has made once the violations have

occurred to come into compliance.

Fourth, San Francisco seeks review of dictum in the

Ninth Circuit opinion on an issue which the panel

decided in San Francisco’s favor. A party cannot appeal a

ruling favorable to it. Nor can it ask for an advisory

opinion where the district court has not yet applied the

dictum and may not ever do so, thus providing no factual

record to review.

12

REASONS FOR DENYING THE WRIT

A. THERE IS NO CONFLICT AMONG THE CIR-

CUITS AS TO THE PROPER STANDARD FOR

HOLDING A GOVERNMENT DEFENDANT

IN CONTEMPT.

1. No Case Supports San Francisco’s Distinc-

tion Between “Reasonable Diligence” and

“All Reasonable Steps”

San Francisco urges this Court to grant certiorari to

resolve an alleged conflict between the circuits as to the

standard for holding a party in civil contempt. (Pet. at 11)

According to San Francisco, “reasonable diligence” is

different from, and more “flexible” than, “all reasonable

steps,” and the circuits disagree on which standard

applies. In fact, only San Francisco imagines a conflict.

No court has ever found the standards to conflict; the

cases use the terms interchangeably.

The only difference between the two formulations is

a semantic one. Some courts describe the standard for

contempt as “reasonable diligence.” Others phrase it as

“all reasonable steps.” It is a distinction without a differ-

ence. No case suggests that a defendant can avoid con-

tempt without making every reasonable effort to comply

with a valid court order. Nor does any case so much as

hint that the exercise of “reasonable diligence” requires

anything less than the taking of “all reasonable steps.”

The practical application of the two standards is also

the same. Both rules require substantial compliance with

the court order to avoid a finding of contempt. See, e.g.,

Langton v. Johnston, 928 F.2d 1206, 1220 (ist Cir. 1991)

13

(“reasonable diligence” circuit stating formulation of its

test as “satisfaction by diligent, good faith efforts, cul-

minating in substantial compliance.”); Balla v. Idaho State

Bd. of Corrections, 869 F.2d 461 (9th Cir. 1989) (“all reason-

able steps” circuit stating that “substantial compliance

with a court order is a defense to an action for civil

contempt.”); General Signal Corp. v. Donallco, Inc., 787 F.2d

1376, 1379 (9th Cir. 1986). Neither finds technical inadver-

tence to be grounds for contempt. E.g., National Advertis-

ing Co. v. Orange, 861 F.2d 246, 250 (9th Cir. 1988); General

Signal Corp., 787 F.2d at 1379. Neither permits “good

faith” as a defense. E.g., Newman v. Graddick, 740 F.2d

1513, 1525 (11th Cir. 1984); Donovan v. Mazzola, 716 F.2d

1226, 1240 (9th Cir. 1983), cert. denied, 464 U.S. 1040

(1984); Fortin v. Commissioner of Mass. Dept. of Public Wel-

fare, 692 F.2d 790, 796 (1st Cir. 1982).

Indeed, the courts use the two phrases interchangea-

bly to describe the standard of compliance in a contempt

proceeding.* Even those courts which, according to San

4 See, e.g., Powell v. Ward, 487 F. Supp. 917 (S.D.N.Y. 1980),

modified, 643 F.2d 924 (2d Cir. 1981) (because the relevant ques-

tion is whether defendants “have been reasonably diligent,” a

contempt finding is appropriate where defendants have failed

to make “all reasonable efforts” to comply); Alberti v.

Klevenhagen, 610 F. Supp. 138, 141 (S.D. Tex. 1985) (court looked

to whether defendants took “all reasonable steps” to insure

compliance and found them in contempt because they had “not

been reasonably diligent”); Nelson v. Collins, 659 F.2d 420, 431-32

(4th Cir. 1981) (Winter, J., concurring and dissenting) (no defen-

dant who has been “reasonably diligent” can be held in con-

tempt; thus no contempt where defendant took “all reasonable

steps” to eliminate overcrowding); Reed v. Rhodes, 500 F. Supp.

363, 400 (N.D. Ohio), aff'd in part and rev'd in part, 635 F.2d 556

14

Francisco, favor one usage over the other, do not do so

exclusively.> Courts discussing the standard for contempt

routinely rely on cases from circuits which, according to

San Francisco, are in direct conflict.©

(6th Cir. 1980) (relevant inquiry is whether defendants took “all

reasonable steps” to insure compliance; defendants’ failure to

exercise “reasonable diligence” thus led to finding of contempt).

5 For example, Powell v. Ward, a case out of the Second

Circuit (which San Francisco designates a “reasonable dili-

gence” circuit) finds contempt where the defendant failed to

make “all reasonable efforts” to comply with the court’s order

(emphasis added). Conversely, in Thompson v. Enomoto, 542 F.

Supp. 768, 769 (N.D. Cal. 1982), out of the Ninth Circuit (which

San Francisco deems an “all reasonable steps” circuit) the court

stated that it could not find defendants in contempt of court

“where . . . defendants have been reasonably diligent in attempt-

ing to accomplish what was agreed to in the Decree.” (emphasis

added)

© See, e.g., United States v. Darwin Construction Co., 873 F.2d 750,

755 (4th Cir. 1989) (Fourth Circuit case requiring “all reasonable

steps” relies on cases from Ninth, Eleventh, Fifth, D.C., and Third

Circuits); Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991) (Sixth Circuit

case requiring “all reasonable steps” relies on cases from First and

Second Circuits); United States v. Hefti, 688 F. Supp. 1367, 1370 (E.D.

Mo. 1988), aff'd, 879 F.2d 311 (8th Cir. 1989) (“all reasonable steps”

case from Eighth Circuit relies on cases from Second, Fourth, and

Ninth Circuits); Morales Feliciano v. Hernandez Colon, 697 F. Supp. 26

(D.P.R. 1987) (“all reasonable steps” case from First Circuit relies on

cases from Second, Ninth and D.C. Circuits); Mobile County Jail

Inmates v. Purvis, 551 F. Supp. 92 (S.D. Ala. 1982), aff'd, 703 F.2d 580

(11th Cir. 1983) (“all reasonable steps” case from Eleventh Circuit

relies on cases from First and Ninth Circuits); Reed v. Rhodes, (“all

reasonable steps” case from Sixth Circuit relies on cases from First,

Second, Third, Ninth, and D.C. Circuits); and Palmigiano v. Garrahy,

448 F. Supp. 659 (D.R.I. 1978) (“all reasonable steps” case from First

Circuit relies on cases from Second and Ninth Circuits).

15

Not one of these cases suggests that there is a differ-

ence between “reasonable diligence” and “all reasonable

steps. An understanding of the “reasonably diligent” test

explains why. Diligence is relevant to the question of a

party’s ability to comply with a prior court order. Inabil-

ity is a defense to contempt. United States v. Rylander, 460

U.S. 752, 757 (1983). A contemnor has the burden to

demonstrate impossibility or inability to comply, id.;

United States v. Fleischman, 339 U.S. 349, 362-63 (1950),

which burden is difficult to meet. Fortin, 692 F.2d at 796;

National Resources Defense Council, Inc. v. Train, 510 F.2d

692, 713 (D.C. Cir. 1974). Thus, reasonable diligence in

context means that that despite its best efforts, a contem-

nor has still been unable to comply with a prior court

order. If successful, this would amount to the alleged

contemnor having taken all reasonable steps.

Citing nothing, San Francisco offers two supposed

differences between “reasonable diligence” and “all rea-

sonable steps.” First, San Francisco argues that under the

supposedly more lenient “reasonable diligence” test,

courts will examine a defendant’s compliance efforts no

matter how extreme the noncompliance. Not so, it

implies, for “all reasonable steps.” (Pet. at 15) What San

Francisco ignores, however, is that a court must make this

examination in every contempt proceeding. Defendants

are not strictly liable for violating court orders. Whenever

a court determines that a violation has occurred -

extreme or otherwise — it must decide whether the defen-

dant exerted adequate efforts to avoid its occurrence.”

7 Indeed, the district court here did just that. It did not, as

San Francisco implies, merely presume the City’s contempt

16

_ Second, the City attempts to distinguish “reasonable

diligence” from “all reasonable steps” by mischaracteriz-

ing what “all reasonable steps” entails. San Francisco

insists that “all reasonable steps” actually requires “per-

fect diligence.” (Pet. at 14) “Good advocates,” it argues,

“will always be able to come up with one more ‘reason-

able step’... ” (Id.)

But again, no court has so held. The Ninth Circuit

rejected this interpretation when San Francisco made it

on appeal. It denied that “all reasonable steps required

perfection: “The City mischaracterizes the ‘every reason-

able step’ rule by asserting that it must consider every

option that the court could conceive.” (App. A-14) Its

opinion reaffirmed long-standing law that technical or

inadvertent violations will not support a finding of con-

tempt. (App. A-14, citing General Signal Corp., 787 F.2d at

1379) Thus, no court, including the Ninth Circuit, has

held that “all reasonable steps” is different from “reason-

able diligence,” much less that the standard requires per-

fection.

Porto, 739 F. Supp. 1236 (N.D. Ill. 1990), and New York State NOW

v. Terry, 697 F. Supp. 1324, 1332 (S.D.N.Y. 1988), aff'd in part and

modified in part, 886 F.2d 1339 (2d Cir. 1989), which the City cites,

the district court examined San Francisco’s compliance efforts

| before making any finding of contempt. (App. B-9) As in Porto

) and Terry, San Francisco’s efforts were found inadequate. (App.

B-11 — B-13) Thus, the degree of San Francisco’s noncompliance

did not compel the court’s finding of contempt; its failure to

exert adequate efforts to comply did.

aan reainenamaiiiiaeiiianeaiaamaiaaa iia

upon finding the court order violated. Rather, just as in SEC v.

17

2. Even If the Standards Differed, this Case

Would Not Put the Issue; San Francisco Was

In Contempt Under Any Standard

Even if there were a conflict, the Court would have

no occasion to decide it here. Whatever the standard, the

City was in contempt. Before a party can invoke “reason-

able diligence” as a defense, it must be in substantial

compliance. Langton v. Johnston, 928 F.2d 1206, 1220 (1st

Cir. 1991); Howard Johnson Co. v. Khimani, 892 F.2d 1512,

1516 (11th Cir. 1990) (“Conduct that evinces substantial,

but not complete, compliance with the court order may

be excused if it was made part of a good faith effort at

compliance.”). San Francisco has not been in substantial

compliance with the lower court’s orders since February

1991 when overcrowding resumed. (App. B-10) Even after

the class filed for contempt in late May, the City contin-

ued to overcrowd Jail No. 1. At the time the district court

found San Francisco in contempt eight months later, the

jail was operating at 130% capacity. Dorms rated for 28

men held on average 48 inmates each. (CR 539, Ex. A)

San Francisco also can show no diligence in achiev-

ing compliance. The district court waited seven months

after the motion was filed before finding the City in

contempt. During that time, the overcrowding did not

abate; it dramatically worsened. In April 1991, the month

before the motion was filed, 541 pretrial detainees were

confined in excess of the Jail’s capacity limits. In the

month of October, six months later, individual housing

units exceeded capacity every day but one. 963 inmates

resided in unlawful conditions, almost double the April

figure. (App. B-8 — B-9) As the Ninth Circuit recognized,

this delay in obeying court orders alone justified the

18

finding of contempt. (App. A-15) See Toussaint v. McCar-

thy, 597 F. Supp. 1427, 1430 (N.D. Cal. 1984) (undisputed

delay of eight months in obeying court order “sufficient

in itself to establish that respondents . . . did not act with

reasonable dispatch.”)

The record also amply demonstrates that San Fran-

cisco did virtually nothing while the contempt motion

was pending to stem the rampant overcrowding. Twice, it

begged the district court to postpone a finding of con-

tempt so it could develop a plan. (CR 513 at 3; CR 521 at

16) Twice, the court indulged the City’s wishes. (CR 516;

CR 521 at 16) At the second hearing in November 1991,

San Francisco finally presented a plan. But the measures

had not been fully implemented. (CR 521 at 11) As the

district court found and the City later admitted, the 105

beds the plan theoretically created were insufficient to

achieve compliance with the district court’s population

orders and to remedy the overcrowding it knew would

escalate in the coming winter months. (App. B-9)

San Francisco asks the Court to second guess both

lower courts’ findings by pointing to its “tremendous

commitment of resources” as the “strongest evidence” of

its diligence. (Pet. at 16) The figures it cites, and the

programs it claims to have instituted, however, are highly

inflated. Little of the “$30-plus million” the City repeat-

edly quotes (Pet. at 16) was spent to reduce overcrowding

at Jail No. 1; that sum includes monies spent for virtually

every program instituted in recent years throughout San

Francisco’s jail system. It includes funds to upgrade Jail

No. 1, increase staffing at Jail No. 3, build a recreation

center at the Hall of Justice, renovate a short term medi-

cal facility, and construct a new medical and mental

19

health center.® The first “$500,000 budget reserve” went

primarily for emergency staffing at Jail No. 3; only

$20,000 (4%) went directly to Jail No. 1.

Finally, San Francisco suggests that its exploration of

renting jail beds in neighboring counties evidences its

diligence. (Pet. at 17) In fact, it did not even consider this

option until the contempt motion had been pending sev-

eral months. (CR 554) It did not implement it until April

1992, fifteen months after the overcrowding began,

almost a year after the contempt motion was filed, and

five months after the contempt order issued. Had it been

reasonably diligent, San Francisco would have investi-

gated this option when overcrowding began or the class

moved for contempt. At the very least, it should have

explored it when the availability of Alameda County beds

was published in the local papers in September 1991.

“County Jail Seeks More U.S. Prisoners,” The San Fran-

cisco Chronicle, at Al4 (Sept. 10, 1991).

In sum, San Francisco’s devotion to the overcrowding

crisis has been anything but diligent. Even were this

Court to adopt the more flexible standard which the City

suggests, it would still be found in contempt.

8 San Francisco operates four jails. Jails No. 1 and No. 2 are

located on the sixth and seventh floors of the Hall of Justice.

Jails No. 3 and No. 7 are located in the neighboring city of San

Bruno, California. The lawsuit only concerns Jail No. 1.

20

B. PERMITTING A GOVERNMENT DEFEN-

DANT TO PLEAD POVERTY AS A DEFENSE

TO CONTEMPT WOULD REVERSE LONG

STANDING LEGAL PRINCIPLES.

San Francisco urges this Court to grant certiorari to

decide whether a court should consider a local govern-

ment’s fiscal constraints in measuring its ability to com-

ply with a consent decree. (Pet. at 20) It claims Rufo v.

Inmates of Suffolk County Jail, 112 S.Ct. 748 (1992), opens

the door to relax the required obedience to court orders

for government defendants in times of fiscal austerity. It

seeks to extend dictum in that case, which enunciated

standards for modifying consent decrees, to one where no

modification was sought and a party was found in con-

tempt.

But modification is not contempt, and no case, much

less Rufo, has ever applied the same standards to these

two, very different, situations. All that Rufo did was

instruct lower courts to take financial constraints into

account in considering how to tailor a consent decree

modification to meet significantly changed circumstances.

112 S.Ct. at 764. Rufo explicitly reaffirmed well estab-

lished law that “financial constraints may not be used to

justify the creation or perpetuation of constitutional vio-

lations.” 112 S.Ct. at 764; see also 112 S.Ct. at 766 (O’Con-

nor, J., concurring).?

° Virtually every federal circuit has recognized this time

honored principle. E.g., Morgan v. District of Columbia, 824 F.2d

1049, 1067-68 (D.C. Cir. 1987); Toussaint v. McCarthy, 801 F.2d

1080, 1110 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987);

Lareau v. Manson, 651 F.2d 96, 104 (2d Cir. 1981); Smith v.

21

Permitting local governments to assert lack of

resources as a defense to contempt of a court order would

contradict this long standing principle. A consent decree

entered in institutional reform litigation is an agreement

between the parties, approved by the court, to ensure

compliance with constitutional requirements. Allowing a

governmental entity to use fiscal constraints to avoid its

obligations under a decree would guarantee the use of

this defense to perpetuate constitutional violations. 1°

Sullivan, 611 F.2d 1039, 1043-44 (5th Cir. 1980); Battle v. Anderson,

564 F.2d 388, 396.(10th Cir. 1977); Jackson v. Bishop, 404 F.2d 571,

580 (8th Cir. 1968).

10 This is precisely what would happen here. The Consent

Decree and subsequent court orders set a capacity level for both

individual housing units and the overall facility at the level

rated by the California State Board of Corrections. San Francisco

overcrowds the facility when it exceeds those levels. Because

Jail No. 1 houses pretrial detainees who retain the presumption

of innocence pending trial, they may not be confined in

conditions amounting to punishment. Bell v. Wolfish, 441 U.S.

520, 536 (1979). Courts have regularly found overcrowding

unconstitutionally punitive for this class of prisoners. See, e.g.,

Inmates of Allegheny County Jail v. Wecht, 754 F.2d 120, 127 (3rd

Cir. 1985); Lareau, 651 F.2d at 105; Gross v. Tazewell County Jail,

533 F. Supp. 413, 419 (W.D. Va. 1982); Rutherford v. Pitchess, 457 F.

Supp. 104, 109 (C.D. Cal. 1978).

San Francisco attempts to avoid this obvious result by

maintaining that the district court made no finding of any

constitutional violation. (Pet. at 19) This is incorrect. The

contempt order repeatedly states that inmates have been

housed “unlawfully” and “illegally.” (App. B-7, B-10) In

assessing fines, the district court said that it “would not sit still

for an effort to deprive citizens of important rights made

available to them by the Eighth Amendment.” (App. B-15)

Moreover, by specifying measures to alleviate overcrowding in

its court orders, the district court implicitly recognized the

22

-Moreover, San Francisco’s proposed rule would cre-

ate legal havoc, not harmony. This Court has long held

that one cannot violate a court order and then, as a

defense to the contempt, challenge the validity of the

underlying order. See GTE Sylvania, Inc. v. Consumers

Union, 445 U.S. 375, 386-87 (1980); Maggio v. Zeitz, 333

U.S. 56, 69 (1948). A party’s remedy is to seek modifica-

tion of the order before a violation occurs. Pasadena City

Board of Education v. Spangler, 427 U.S. 424, 439-40 (1976);

Walker v. Birmingham, 388 U.S. 307, 316-21 (1967). It can-

not violate its precepts and then argue the original order

was unjust. As this Court has said:

It would be a disservice to the law if we were to

depart from the long-standing rule that a con-_

tempt proceeding does not open to reconsidera-

tion the legal or factual basis of the order

alleged to have been disobeyed and thus

become a retrial of the original controversy. The

procedure to enforce a court’s order command-

ing or forbidding an act should not be so incon-

clusive as to foster experimentation with

disobedience.

United States v. Rylander, 460 U.S. 752, 756 (1983); Maggio,

333 U.S. at 69.

Permitting a party to claim lack of financial resources

as a defense to contempt would “foster” such “experi-

mentation.” It would encourage government defendants

to ignore existing court orders and, after the fact, argue

fiscal constraints prevented their compliance. As the

existence of unconstitutional conditions. See Newman v. Alabama,

683 F.2d 1312, 1319 (11th Cir. 1982), cert. denied, 460 U.S. 1083

(1983).

23

City’s Petition makes clear, there will always be some

other civic program which demands its attention. (Pet. at

16) Fiscal constraints would always be available as a

defense. The City took these constraints into account

before agreeing to the consent decree in the first place. In

the absence of a request for modification, it should not be

able to raise them as a defense. As Chief Justice John

Marshall said as long ago as 1809: “If the legislatures of

the several states may, at will, annul the judgments of the

courts of the United States, and destroy the rights

acquired under those judgments, the constitution itself

becomes a solemn mockery. ... ” United States v. Peters, 9

U.S. (5 Cranch) 115, 136 (1809); see also Cooper v. Aaron,

358 U.S. 1, 18 (1958).

San Francisco offers no reason to upset this settled

authority. It had a remedy, which it chose not to exercise.

It could have moved to modify the Consent Decree based

on a showing of significantly changed circumstances. See

Rufo, 112 S.Ct. at 760-62. Yet, neither before the over-

crowding resumed nor at any time during the eight

months that the contempt motion was pending did the

City seek to modify the Decree.1! Instead, it chose self-

11 San Francisco’s strategic decision is not surprising. Mod-

ification would defeat a core remedial goal of the Consent

Decree — to eliminate overcrowding. Because the court’s orders

merely set the population for the jail at the levels mandated by

the California State Board of Corrections, they cannot be

increased without violating the constitution. As this Court

recently recognized in Rufo, 112 S.Ct. at 763, a modification

must not create or perpetuate a constitutional violation.

Moreover, the population levels dictated the parameters of

other provisions contained in the Consent Decree; the levels of

staffing, medical and mental health care, time for recreation,

24

help. Now, at this late date, it wants to claim poverty as

its excuse. That is exactly the “experimentation with dis-

obedience” which this Court has condemned. Rylander,

460 U.S. at 756.

Finally, even were this Court to reverse its longstanding

precedent and permit governmental entities to use fiscal

constraints as a defense to contempt, it would not change the

result here. The lower court considered the City’s economic

plight before issuing its contempt order. Appreciation for San

Francisco’s fiscal problems caused the court to postpone

twice the hearing on contempt to afford the City ample time

to develop a plan to remedy the overcrowding. The con-

tempt order explicitly stated that “the court has recognized

the difficult financial problems impacting the City and its

various departments and has exercised great restraint in not

imposing sanctions.” (App. B-14) The district court reiterated

its attention to San Francisco’s financial problems at the

hearing for reconsideration of the contempt finding.'? (CR

570 at 9)

and the like all depended on the number of inmates confined in

the facility. These would all have to be changed if the capacity

levels were relaxed. Modification is inappropriate if it will

necessitate changes to all aspects of a decree. See Rufo 112 S.Ct.

at 762.

12 There was also ample evidence in the record that many of

the alternatives available to San Francisco to remedy the over-

crowding cost less than continued incarceration. The City could

implement several alternatives — for example, electronic home

monitoring or county parole - which were significantly cheaper

than detention. The district court also permitted the City to

early release inmates at up to 50% of time served. (App. B-18)

San Francisco chose to challenge this free solution to the over-

crowding problem on appeal. It should not be able to argue that

fiscal constraints limit its ability to comply with court orders

25

C. SAN FRANCISCO CITES NO REASON FOR

ALLOWING A DEFENDANT TO CLAIM

UNFORESEEN CIRCUMSTANCES AS A

DEFENSE TO CONTEMPT.

San Francisco asks this Court to grant certiorari to

decide whether a defendant in a contempt proceeding

must show that the circumstances giving rise to the viola-

tion were unforeseeable. (Pet. at 23). The City provides no

reason why this issue need be decided. It does not point

to a conflict between the circuits. See Sup. Ct. R. 10.1(a). It

does not suggest that the Ninth Circuit’s unanimous affir-

mance of the district court so far departed from the

accepted course of judicial proceedings to warrant

Supreme Court review. Id. Nor does it explain how reso-

lution of this issue would make any difference to this

case.

In fact, the Ninth Circuit’s decision comports with

this Court’s teachings. As the Ninth Circuit correctly

found (App. A-12 n.9), the moving party has the burden

of showing by clear and convincing evidence that the

contemnor violated a specific and definite order of the

court. Balla v. Idaho State Bd. of Corrections, 869 F.2d 461,

466 (9th Cir. 1989). The burden then shifts to the contem-

nor to demonstrate why it was unable to comply. United

States v. Rylander, 460 U.S. 752, 757 (1983); Donovan v.

Mazzola, 716 F.2d 1226, 1240 (9th Cir. 1983), cert. denied,

464 U.S. 1040 (1984). There is absolutely no dispute here

when it has deliberately rejected a solution which would impose

no costs. As its belated decision to rent beds in Alameda County

shows, it is not money which thwarts compliance but a lack of

political incentive.

| ,

26

that the district court orders were specific and definite

and that they were violated. (App. B-10) The only issue

was whether San Francisco had met its burden. See Seka-

guaptewa v. MacDonald, 544 F.2d 396, 404 (9th Cir. 1976),

cert. denied, 430 U.S. 931 (1977); General Signal Corp. v.

Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir. 1986).

The reason for the jail population’s explosion, and

San Francisco’s ability to predict it, are irrelevant to this

inquiry. This Court long ago held that good faith is not a

defense to contempt. McComb v. Jacksonville Paper Co., 336

U.S. 187, 191 (1949). Thus, whether the City should or

could have anticipated the population increase has no

bearing on whether it can be found in contempt.!% The

only issue is the efforts it took to comply with the govern-

ing court orders once it found itself in violation. Under

San Francisco’s theory, it could escape contempt if it

proved it had not, however unreasonably, foreseen the

circumstances giving rise to the violations. This is tanta-

mount to asserting good faith as a defense to contempt.

Once again, all of this is academic. Even were this

Court to reverse long-standing precedent, recognize

unforeseen circumstances as an excuse for contempt, and

remand the contempt finding for reconsideration, the

result would not change. As the unanimous Ninth Circuit

panel found, the 1991 upsurge in the jail population was

in fact foreseen. (App. A-15) In 1989, the National Coun-

cil on Crime and Delinquency published a report which

13 Unforeseen circumstances may, in some circumstances,

be grounds for modification of a decree. Rufo, 112 S.Ct. at 760.

But that is not at issue here since San Francisco chose not to seek

modification of the underlying court orders.

~

27

predicted that San Francisco’s jail population would

reach 2109 inmates per day in 1992. (CR 424 at 7) In

February 1990, the Special Master appointed by the dis-

trict court to oversee implementation of the Decree, pre-

dicted the population would be 2055 inmates per day.

(CR 438 at 29) Both predictions were very close to tar-

get.14 (App. A-15)

D. THE COURT SHOULD NOT ISSUE AN ADVI-

SORY OPINION ON AN ISSUE DECIDED IN

SAN FRANCISCO’S FAVOR

Finally, San Francisco seeks an advisory opinion on

the district court’s early release order. It claims that

although the Ninth Circuit vacated this portion of the

order, it improperly implied that in the future the district

14 San Francisco ignores these predictions and now claims

that the impact of the Tenderloin Task Force on the Jail’s popula-

tion was what was unforeseen. (Pet. at 22-23) The City should

have known that creation of a special police task force in a high

crime area would have increased the jail population. Three fac-

tors influence prison population: the number of arrests, pros-

ecution policies, and sentencing and parole decisions. Nelson v.

Collins, 659 F.2d 420, 426 (4th Cir. 1981) The Task Force was

intended to influence all three.

Moreover, San Francisco had long been put on notice that it

was responsible for any impact police policy changes had on jail

population. Beginning in 1986, the Special Master repeatedly

warned in his reports that increased police activity inevitably

meant an increased jail population. (CR 329 at 34; CR 329 at 4;

CR 446 at 27) He also reported that an increase in felony arrests

inevitably reduced the possibility of releases. (CR 329 at 4)

a

28

court may consider 50% early release as a remedy for

contempt if monetary sanctions fail to produce compli-

ance with the court’s population orders. (Pet. at 24)

Because the lower court has not yet authorized 50% early

releases, this issue is not ripe for review.

First, San Francisco cannot appeal an issue that came

out its way. Deposit Guaranty Nat. Bank v. Roper, 445 U.S.

326, 333 (1980); Perez v. Ledesma, 401 U.S. 82, 87 n.3 (1971).

“A party may not appeal from a judgment or decree in

his favor, for the purpose of obtaining a review or find-

ings he deems erroneous which are not necessary to

support the decree.” Roper, 445 U.S. at 335, quoting Electri-

cal Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242

(1939). As San Francisco admits, the Ninth Circuit

vacated the portion of the contempt order authorizing

50% early releases. (App. A-33)

Second, the issue is not ripe for review. Although the

Ninth Circuit implied that the district court might con-

sider the early release remedy if fines fail to produce their

desired effect (App. A-33), this has not yet occurred. The

lower court has not yet considered whether the threat of

sanctions are ineffective and whether other alternatives

are inadequate. (App. A-33) Thus, there is no issue and

no factual record for this Court to review. See Wheeler v.

Barrera, 417 U.S. 402, 426-27 (1974)(request for writ of

certiorari denied where district court had not yet formu-

lated plan which was challenged on appeal), modified, 422

U.S. 1004 (1975); California v. Green, 399 U.S. 149, 169-70

(1970) (constitutional claim that evidence inadmissible

was unripe because lower court had not originally

addressed it, relevant facts were unclear, and other

grounds might make issue unnecessary on remand).

¢

© RA i i

29

CONCLUSION

For the reasons set forth above, this Court should

deny San Francisco’s Petition.

December 23, 1992

Respectfully submitted,

JoHN N. Hauser

BetH H. ParKEr*

CAROLYN L. REID

McCutcHen, Doy.te, BRowNn

& ENERSEN

Three Embarcadero Center

San Francisco, CA 94111

Telephone: (415) 393-2000

Morton P. CoHEeNn

49 Stevenson Street

San Francisco, CA 94105

Telephone: (415) 904-6843

Attorneys for Respondents

*Counsel of Record