Petition for Writ of Certiorari — Richards v. Alberti
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No.
IN THE
UNITED STATES SUPREME COURT
OCTOBER TERM 1992
Ann Richards, Governor of Texas; Carol S. Vance,
Jerry H. Hodge, Joshua W. Allen, Sr., Ellen J. Halbert, Clarence
N. Stevenson, Allan B. Polunsky, R. H. Duncan, Sr., Gilberto
Hinojosa, John R. Ward, Members, Texas Board of Criminal
Justice; James A. Lynaugh, Executive Director, Texas Department
of Criminal Justice,
Petitioners
v.
John Lindsay, Harris County Judge; El Franco Lee, Jim Fonteno,
Steve Radack, Jerry Eversole, Harris County Commissioners;
Johnny Klevenhagen, Harris County Sheriff,
Respondents
v.
Lawrence R. Alberti, Jimmy E. Collins, Henry C. Langer, Jose’ J.
Pina, II, Pat Reed, Wesley Sellers, individually and on behalf of all
others similarly situated,
Respondents
On Petition for Certiorari
To the United States Court of Appeals
For the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
DAN MORALES ROBERT OZER*
Attorney General of Texas Assistant Attorney General
WILL PRYOR JOHN B. WORLEY
First Assistant Attorney General Assistant Attorney General
MARY F. KELLER P.O. Box 12548, Capitol Station
Deputy Attorney General Austin, Texas 78711
(512) 463-2076
MICHAEL P. HODGE
Assistant Attorney General
Chief, Enforcement Division *Counsel of Record
QUESTIONS PRESENTED
l Whether, under principles of federalism and
Article III of the Constitution, federal courts have jurisdiction to
decide unsettled questions of state law involving a dispute
between two levels of state government concerning state fiscal
policy and a complex regulatory scheme when resolution of the
dispute was not necessary to provide relief to the Plaintiff
prisoner class in a local jail?
‘
2. | Whether a federal court's order, based solely on
state law, that the state must compensate one of its political
subdivisions is in violation of the Eleventh Amendment when
such order is not necessary to provide relief to the prisoner class
in a local jail?
3. | Whether, under principles of federalism, federal
courts should abstain from deciding, or, alternatively, certify to
the state supreme court, unsettled questions of state law
involving a dispute between two levels of state government
concerning state fiscal policy and a complex state regulatory
scheme, when federal judicial intervention in the dispute is not
necessary to provide relief to the Plaintiff prisoner class in a local
jail and a state court proceeding involving identical issues and
identical parties is pending?
4. Whether state officials can possess the requisite
culpable state of mind to be found liable for unconstitutional
conditions in a local jail under Wilson v. Seiter, | US.___,
111, S.Ct. 2321 (1991), when their state law duty to remedy
conditions in a local jail was not clearly established and the
finding of liability was "tentative" and "contingent" on the
outcome of state court litigation?
TABLE OF CONTENTS
QUESTIONS PRESENTED i
TABLE OF AUTHORITIES Vv
OPINIONS BELOW l
JURISDICTION 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .. 2
I CONSTITUTIONAL PROVISIONS 2
Il. STATUTORY PROVISIONS 3
STATEMENT OF THE CASE ...... r , 4
I PETITION INVOLVES FEDERALISM
ISSUES OF NATIONAL SIGNIFICANCE
AND IS NOW RIPE FOR
NUE EWE» sis cassasusaccaetertimaeeeean eiutvinen at 4
I. COURSE OF PROCEEDINGS AND
DISPOSITION BELOW.................... 6
Il. STATEMENT OF FACTS................00.000.... ) 9
A. State Law Prior to H.B. 93 Was
Unsettled As To Liability and
Financial Responsibility of State
Defendants for Transfer-Eligible
Inmates in Harris County Jail. ............ 9-10
B. Allocation Formula Was Lynchpin
of Reforms Aimed at Controlling
Local Jail and Prison Overcrowding........._ 11
C._ The State District Court Judgment
Relied On By The Fifth Circuit Has
Been Vacated Without Ever Being
Reviewed, Let Alone Affirmed, By A
State Appellate Court.
D. The Legislative History of H.B. 93
and State Court Settlements Indicate
the State Was Responsible for
Prisoner Transfers Only After
October 1, 1991.
E. County Had Full Authority and
Ability to Provide Remedy to
Inmate Class. .....
REASONS FOR GRANTING WRIT
[ THERE ARE SPECIAL AND IMPORTANT
REASONS TO GRANT THE WRIT
A. Certiorari Should Be Granted To
Resolve An Irreconcilable Conflict
Between The Circuits Over
(1) The Role of Federal Courts
in Deciding Disputes Between
Different Levels of State
Government And (2) The Scope
of the Eleventh Amendment
B. Certiorari Should Be Granted Because
of Lower Court's Clearly Erroneous
And Ill-Reasoned Ruling on Abstention
and Certification
a
1. Abstention Was Especially
Appropriate Because of Ongoing
State Court Proceedings Dealing
With Undecided Issues of State
Law
nN
Abstention Was Appropriate to
Avoid Disruption of State
Regulatory Programs. ..........
3. If Abstention Was Not
Appropniate, the Fifth Circuit
Should Have Stayed Further Action
Against State Defendants While
Certifying the Relevant Questions of
Law to the Texas Supreme Court. ......
C. Certiorari Should Be Granted to
Determine Whether State Officials
Can Be Found Liable for Conditions
In A Local Jail Under Wilson v. Seiter
When Their Responsibilities Under State
Law For Inmates In A Local Jail Are Not
Clearly Established
CONCLUSION
TABLE OF AUTHORITIES
Cases Page
Alberti v. Sheriff of Harris County v. Richards, 978
F.2d 893 (Sth Cir. 1992)............. ; 1,8
Alberti v. Sheriff of Harris County v. Richards, 937
F.2d 984 (Sth Cir. 1991), cert denied sub nom,
Richards v. Lindsay, _US. __ , 112 S. Ct. 1994
RRR iva Oh eee ee me . oe _ passim
Ammex Warehouse Co. v. Archer, 381 S.W.2d 478
(Tex. 1964)... | als 14, 22
Anderson v. Creighton, 483 U.S. 635 (1987) 27
Bass v. Fontleroy, 11 Tex. 698 (1854) 1]
Brotherhood of Locomotive Firemen and Enginemen v.
Bangor and Aroostook Railroad Co., 389 U.S. 327
(1967)...... m 5
Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972) 10
Burford v. Sun Oil. Co., 319 U.S. 315 (1943) 23
Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986) 21, 28
Coleman v. Miller, 307 U.S. 433 (1939) 17
Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800 (1976)..... 22, 23
Coyle v. Smith, 221 U.S. 559 (1911) 17
$$$ eee ee = - a
vi
District of Columbia Court of Appeals v. Feldman, 460
ne I cis acy scans pdsbdanesavanecsnessoactien 23
Employees v. Missouri Department of Public Health
and Welfare, 411 U.S. 279 (1973)............ 20
Estelle v. Gamble, 429 U.S. 97 (1976)................ 27
Ford Motor Co. v. Department eg Treasury of Indiana,
323 US. 459 (1945). pee 19
Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S
293 (1943)............ seat tevennnsunaesntccsSeenaeae ‘ 20
Haferv. Melo, _US.___, 112 S.Ct. 358 (1991)... 27
Hans v. Louisiana, 134 U.S. 1 (1890)......... me aoe 5
Harlow vy. Fitzgerald, 457 U.S. 800 (1982).......000000..... 27
Harris County Commissioners Court v. Moore, 420
IE overdo cit ssa uaa cesccebexteananerean : 22
Hills v. Gautreaux, 425 U.S. 284 (1976)....0000....cccees. 21
Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir.
In Re Clements, 881 F.2d 145 (Sth Cir. 1989)............... 7
Kelly v. Metropolitan County Board of Education of
Nashville and Davidson County, Tennessee v. State
of Tennessee, 836 F.2d 986 (6th Cir. 1987), cert.
denied, 487 U.S. 1206 (1988).........0.000.0000008.. 17, 18, 19, 21
Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S
573 (1946)... . | | 20
Vil
LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) 27
Lehman Bros v. Schein, 416 U.S. 386 (1974) 25
Matthews v. Rodgers, 284 U.S. 521 (1932) 20
Milliken v. Bradley, 433 U.S. 267 (1977) 21
Moore v. Sims, 442 U.S. 415 (1979) 23
Pennhurst State School and Hospital v. Halderman,
465 U.S. 89 (1984)...... <— | oe 19, 28
Pennzoil v. Texaco, 481 U.S. 1 (1987) 21, 22, 23, 25
Presley v. Etowah County Comm'n Uo... uaa
fem ~ 1.’ | Seren 17
P. R. Aqueduct and Sewer Authority v. Metcalf and
Eddy, US. __, 113 S.Ct. 684 (1993)... © 6,27
Railroad Commission v. Pullman, 312 U.S. 496
| ET eS a Reet Rr cea ec A Ses enreae 21
Richards v. United States District Court for the
Southern District of Texas, US. __, 11},
SAX. 1408 (1991 ).....00.50:.. 4
Rizzo v. Goode, 423 U.S. 362 (1976). 28
Robbins v. Limestone County, 114 Tex. 345, 268 S.W
Lett) >) | | 1]
San Antonio Independent School District v. Rodriguez,
411 US. 1 (1973)............ 18
Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1981) 15
Vill
South Macomb Disposal Authority v. Township of
Washington, 790 F.2d 500 (6th Cir. 1986)........... 17
State of Louisiana ex rel. Guste v. Roemer, 949 F.2d
ON IE. WIP oe sce vesitndencicknsncend zecnsnctbincess 7 25
Town of Ball v. Rapides Parish Police Jury, 746 F.2d
1049 (Sth Cir. 1984)..000. ee. | 17
United States v. Texas Education Agency, 790 F.2d
1262 (Sth Cir. 1986), cert. denied sub nom.
Lubbock I.S.D. v. Texas Education Agency, 479
Sh | i |: RARER EIR Hepa OT | 19
Whitley v. Albers, 475 U.S. 312 (1986) 27
Will v. Michigan Department of State Police, 491 U.S
58 (1989). 22
Wilson v. Seiter, _US.__, 111 S.Ct. 2321
SINE ccs oh cc castudaust buck gvetsnen deacenesecunkcs 8, 26, 26-27
Younger v. Harris, 401 U.S. 37 (1971)....... wii 22
United States Constitution
Article III, § 2, cl. 1 oo... 2
U.S. Const. Amendment 8........... 2-3
EE | eee 3,17
U.S. Const. Amendment 11.................. 3, 17
United States Statutes
28 U.S.C. § 1254(1) 2
28 U.S.C. § 2283........
42 U.S.C. § 1983
Texas Constitution
TEX. CONST. Art. I, § 13
TEX. CONST. Art. II, § 1
TEX. CONST. Art. VIII, 6
TEX. CONST. Art. IX § 1
Texas Statutes
S.B. 171, 73rd Texas Legislature (eff. February 23,
1993). oo oocccccccceceseeveseseevesveveveseeveeeee,
TEX. CODE CRIM. PROC. ANN. art. 104.002
(Vernon Supp. 1993)
TEX. GEN. & SPECIAL LAWS 1991, 2d Called Sess.,
Ch. 10, pp. 180-226 ("H.B. 93") (eff. August 29,
BUD idiots sath Sevsen tuninteesends(iechaectsnasenesesnobeainaiina ,
TEX. GEN. & SPECIAL LAWS 1991, 2d Called Sess,
Ch. 10 ("H.B. 93"), Section 22.03, p. 224 (eff.
FI BOE cin sceseneichievincsiseneiacinons
TEX. GEN. & SPECIAL LAWS 1989, Reg. Sess., Ch
1263, pp. 5184-5200 (eff. June 16, 1989)...
TEX. GEN. & SPECIAL LAWS 1989, Reg. Sess., Ch
785, pp. 3471-3558 ("H.B. 2335") (generally eff.
September 1, 1989)
N
nN
Oo
10
TEX. GEN. & SPECIAL LAWS 1987, 2d Called Sess.,
Ch. 78, Para. 49, p. 343 (eff. August 6, 1987)
TEX. GOV'T CODE ANN
1993)
TEX. GOV'T CODE ANN
1993)
TEX. GOV'T CODE ANN
Supp. 1993)
TEX. GOV'T CODE ANN
1993)
TEX. GOV'T CODE ANN
1993)
TEX. GOV'T CODE ANN
Supp. 1993)
TEX. GOV'T CODE ANN
Supp. 1993)
TEX. GOV'T CODE ANN
1993)
TEX. GOV'T CODE ANN
(Vernon 1990) ..............
TEX. GOV'T CODE ANN
1993).
TEX. GOV'T CODE ANN
Pamph. 1993) ..
§ 493.001 (Vernon Supp
§ 495.003 (Vernon Supp
Ch. 499, Subch. B (Vernon
§ 499.071 (Vernon Supp
§ 499.121 (Vernon Supp
§§ 499.121-125 (Vernon
§§ 499.122-125 (Vernon
§ 499.125 (Vernon Supp
§§ 511.012(b) & (c)
Ch. 791 (Vernon Pamph
§ 791.003(3)(A) (Vernon
13,
ww
14
15
15
1S
Xi
TEX. LOCAL GOV'T CODE ANN. § 351.001 (Vernon
I WI xccxsuasnkacaticarectucncans
TEX. LOCAL GOV'T CODE ANN. §§ 351.031-
351.035 (Vernon 1988)
Texas. LOCAL GOV'T CODE ANN. § 351.041
(Vernon 1988)
TEX. LOCAL GOV'T CODE ANN. Ch. 351, Subch. F
& G (Vernon Supp. 1993)
re
Tex. Rev. Civ. Stat. art. 6166a-4 (repealed)
Tex. Rev. Civ. Stat. art. 6166g-2 (repealed)
TEX. REV. CIV. STAT. ANN. art. 6252-13a, § 12
(Vernon Pamph. 1993)
Texas Court Rules
TEX. R. APP. P. 114
Texas Administrative Regulations
37 TAC §§ 152.1-152.3
17 Tex. Reg. 6788 (October 2, 1992)
Texas Attorney General Opinions
Op. Atty Gen. JM-730 (1987)
Op. Atty Gen. JM-743 (1987)
10
10
10
No.
IN THE
UNITED STATES SUPREME COURT
OCTOBER TERM 1992
ANN RICHARDS, GOVERNOR OF TEXAS, ET AL.,
Petitioners
y
THE SHERIFF OF HARRIS COUNTY, TEXAS, ET AL.,
Respondents
LAWRENCE R. ALBERTI, ET AL
Respondents
PETITION FOR CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
OPINIONS BELOW
The opinion of the Court of Appeals for the Fifth Circuit
after remand is attached as Appendix A. Alberti v. Sheriff of
Harris County v. Richards, 978 F.2d 893 (Sth Cir. 1992). The
order of the panel denying the State's Motion for Panel
Rehearing and Suggestion for Rehearing En Banc is attached as
Appendix B. The initial opinion of the Court of Appeals for the
Fifih Circuit reviewing the District Court's orders finding liability
against state officials and ordering state officials to compensate
Harris County is attached hereto as Appendix C. Alberti v.
Sheriff of Harris County v. Richards, 937 F.2d 984 (Sth Cir
1991), cert. denied sub. nom. Richards v. Lindsay, ___ US.
___, 112 S.Ct. 1994 (1992). The order of the panel denying
the state's Motion for Panel Rehearing in the initial appeal is
attached as Appendix D. The decision of the district court
finding State Defendants deliberately indifferent after the initial
opinion in the Fifth Circuit is attached as Appendix O. The
opinion of the district court initially finding liability is attached as
Appendix Y. Other district court opinions ordering the deposit
or dispersal of monies to Harris County or denying relief from
such orders which are the subject of this petition are attached as
Appendices I, J, K, L, M, N, O, P, Q, S and U
JURISDICTION
The judgment of the Court of Appeals was entered on
November 20, 1992. A timely filed Suggestion for Rehearing
En Banc and a Motion for Panel Rehearing were denied on
January 13, 1993. This Petition for Wnt of Certioran is filed
within 90 days of the Final Judgment. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL
AND STATUTORY PROVISIONS INVOLVED
I. CONSTITUTIONAL PROVISIONS:
Article III, § 2, cl. 1 in pertinent part:
The judicial power shall extend to all cases in law
and equity arising under this Constitution, the laws
of the United States . . .
Eighth Amendment:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted
Tenth Amendment
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the
people
Eleventh Amendment:
The judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or presented against one of the United
States by citizens of another state; or by citizens or
subjects of any foreign state
STATUTORY PROVISIONS:
Tex. Code Crim. Proc. art. 104.002 in pertinent
part
[A] county is liable for all expenses incurred in the
safekeeping of prisoners confined in county jails or
kept under guard by the county.
Tex. Gov't Code § 499.071 (formerly Tex. Rev. Civ
Stat. Ann. art. 6166a-4) is attached as Appendix Z
Tex. Gov't Code § 499.121-499.125 is attached as
Appendix AA
STATEMENT OF THE CASE
ie PETITION INVOLVES FEDERALISM ISSUES OF
NATIONAL SIGNIFICANCE AND IS NOW RIPE FOR
REVIEW.
This controversy swirls around whether Texas prison
officials and the Governor of Texas (hereinafter "State
Defendants") bore any liability, especially financial liability, for
felons sentenced to the state prison system but confined and
maintained in the Harris County jail. State Defendants do not
dispute the Fifth Circuit's analysis that this is "exclusively" a
state law issue and that it presented a "hard question" for the
court. Appendix ("App.") C15. Rather State Defendants
maintain that federal courts, especially in a suit between two
different levels of state government and involving complex state
regulatory policies, lack authority to decide these “hard
questions" of "exclusively" state law. This is especially so since
the dispute involved primarily the fiscal question of
compensation to the counties which should only have been
resolved on the terra firma of Texas politics in the Texas
legislature. At the very least, under abstention doctrine, federal
courts should have deferred to state courts to avoid decision on
the difficult constitutional questions concerning State
Defendants’ liability under the Eighth Amendment and their
immunities under the Eleventh Amendment
Petitioners recognize they have sought relief or review
before this Court on two separate occasions. On March 29,
1991, Justice Scalia stayed the initial order of the district court
requiring state officials to reimburse Harris county for cost of
transferring to other county jails certain inmates sentenced to
Texas prisons. Richards v. United States District Court for the
Southern District of Texas, _- US. __, 111 S.Ct. 1409
(1991). The full court subsequently vacated that stay. /d.
Subsequently, this Court denied certiorari when State
Defendants sought precautionary review of the Fifth Circuit's
initial decision while the district court's finding of deliberate
indifference was still pending before the Fifth Circuit. Richards
v. Lindsay, US. __, 112 S.Ct. 1994 (1992)
However, neither this Court's unquestioned discretion to
deny extraordinary relief in the context of an interim measure
involving the safety and welfare of the inmates in the x yin
County Jail nor this Court's wise traditions of justiciability | can
any longer afford a reasonable basis for denying review of a
decision which involves questions of burning importance to the
states and our federal system
Fiscal disputes between different levels of state
government should be resolved exclusively by state institutions
under our federal system. It is not the proper role of federal
courts to permanently resolve perceived gridlocks in state
government at the expense of those state institutions. Rather,
time and again this court has admonished that these disputes
must be resolved delicately with due deference given to state
institutions. Most recently in the context of allowing "arms of
the state" to take advantage of the collateral order doctrine to
appeal a district court order denying an Eleventh Amendment
immunity claim, this Court has, with a booming voice,
eloquently reafffirmed these principles:
The Amendment is rooted in a recognition that
the States, although a union, maintain certain
attributes of sovereignty, including sovereign
immunity. See Hans v. Louisiana, 134 US. 1
3, 10 S.Ct. 504, 506, 33 L.Ed. 843 (1890). It
thus accords the States the respect owed them as
members of the federation. While application of
| State Defendants’ previous Petition for Certioran, filed as a precautionary
measure, could well have been judged premature, since the appeal of the
trial court's deliberate indifference finding was still pending before the Fifth
Circuit. See e.g. Brotherhood of Locomotive Fireman and Enginemen \
Bangor and Aroostook Railroad Co., 389 U.S. 327, 328 (1967)
the collateral order doctrine in this type of case is
justified in part by a concern that States not be
unduly burdened by litigation, its ultimate
justification is the importance of ensuring that the
States’ dignitary interests can be fully vindicated
P. R. Aqueduct and Sewer Authority v. Metcalf and Eddy,
US. _, 113 S.Ct. 684, 689 (1993)
That this case arises in the context of perhaps our
greatest national malaise, crimina! justice, only heightens its
importance Litigation concerning prison and local jail
overcrowding is tragically chronic in our society. In resolving
these cases federal courts must work with and respect state
institutions and policies. Under the Constitution, federal judges
are not intended to sit as criminal justice czars over state
criminal justice institutions defining and, in fact here, redefining
State fiscal policy.
For all these reasons this case presents issues of
profound importance to the nation.
II. COURSE OF PROCEEDINGS AND DISPOSITION
BELOW
This case arises from Lawrence Alberti v. The Sheriff of
Harris County, No. 72-H-1094, Southern District of Texas, a
class action suit alleging constitutional violations brought under
42 U.S. § 1983 by prisoners in the Harris County (Houston) jail
against the Sheriff of Harris County, certain of his employees
and the members of the Harris County Commissioners Court
(hereinafter "County Defendants"). County Defendants in early
1989 filed a Third Party complaint against Petitioners herein
seeking to have the Texas Department of Corrections ("TDC,"
now called the Texas Department of Criminal Justice-
Institutional Division or "TDCJ-ID") accept inmates sentenced
to TDC but awaiting transfer in the Harris County jail. The only
real dispute in this case has been between the State and County
Defendants.2
On September 25, 1989, the Alberti court, determining
the merits-liability aspect of the case, found the jail
unconstitutional and, on the basis of its interpretation of state
law, held State and County Defendants jointly liable for its
unconstitutionality 3 On February 7, 1991, the Alberti court
ordered the transfer to other county jails of certain prisoners
who were eligible for transfer to TDCJ-ID. These inmates were
to "continue to be Harris County prisoners,” but, under the
terms of the order, Harris County was to be compensated by
State Defendants (at a rate up to $40 per inmate per day) for
expenditures incurred as a result of the transfers. App. U 6.
The district court went on to rule that in light of the unsettled
nature of state law, the assessment of costs was "tentative" and
—_—T upon the outcome of state court litigation. App
U 7.
Upon appeal, a panel of the Fifth Circuit acknowledged
that this case presented a "hard question" of "exclusively" state
law. Alberti v. Sheriff of Harris County v. Klevenhagen, 937
F.2d 984, 994 (Sth Cir. 1991), cert. denied sub nom. Richards v.
2 The plaintiff class sued Defendants only after the second of two trials on
liability and at the suggestion of the Alberti court. Transcript, Trial of
September 12-15, 1989, vol. 1, pp. 5-11; vol. 4(A), p. 83.
3 The Fifth Circuit had previously ordered “the transfer, to the judge
presiding over the Ruiz case [Ruiz v. Collins, No. 78-H-987-CA (S.D. Tex.,
Houston Div.), the state prison conditions case], of so much of the remedy
portion of the Alberti third-party action . . . as seeks to enjoin them to
receive or take prisoners to TDC confinement or to otherwise take action in
the operation or management of TDC-operated confinement facilities." /n
Re Clements, 881 F.2d 145, 153 (Sth Cir. 1989).
4 In a Memorandum Opinion, the Ruiz court indicated it would have
abstained on the issue of compensation to Harris County. App.T
Lindsay, US, 112 S. Ct. 1994 (1992) (emphasis on
original) (hereinafter "Alberti 1"), App. C 15. However, despite
obvious federalism concerns, rather than abstain to an ongoing
state court action or certify to the Texas supreme court (which
State Defendants urged), the panel adopted the lower court's
methodology concerning liability
In sum, state courts should eventually determine
whether the state or the county is responsible for
ready-felons in the county's jails. The Alberti
court's assessment of costs was "tentative" and
"contingent on the outcome of pending
litigation in state courts over the allocation of
costs for maintaining felons ready for transfer to
the TDCJ-ID in county facilities."
App. C 30. The panel then remanded for consideration of this
Court's decision in Wilson v. Seiter, US 111 S. Ct
2321 (1991). App. C 34
The lower court held both State and County Defendants
deliberately indifferent under Seiter, App. O. The same panel
affirmed the lower court's ruling, acknowledging, however,
some "force" to the argument that State Defendants could not
have acted with deliberate indifference in light of the legal
uncertainty of their state law duties. Alberti v. Sheriff of Harris
County v. Richards, 978 F.2d 893 (Sth Cir. 1992) (hereinafter
"Alberti II"), App. A 4
To date, federal courts have, without state legislative
authorization, required state officials to directly reimburse a
political subdivision of the State of Texas for $12,649,874.25
ostensibly as a component of the remedy in this case. App. F, I,
J, K, L, M,N, O, P, and US Moreover, the lower court has
5 App. F is the order of November 23, 1992 which was issued after this
appeal. State Defendants request the Court to take judicial notice of this
order, which State Defendants refer to solely to show the total amount of
compensation they have been required to pay to the County.
recently required the state to enact an additional remedial plan
costing millions of dollars and has imposed anticipatory "fines"
or "sanctions" of $50 per prisoner per day on the state of Texas
for every prisoner over the jail cap after March 31, 1993. App
E, G, and H.©
State Defendants seek certiorari to challenge the lower
court's jurisdiction to decide this dispute, to correct the lower
court's misapplication of principles of federalism and to overrule
a finding of deliberate indifference under Seiter when state law
duties establishing the responsibility of a state actor are not
clearly established and the liability finding was admittedly
"tentative" and "contingent."
Hi. STATEMENT OF FACTS
The panel acknowledged in Alberti / that the threshold
question of these state officials’ liability for inmates in local jails
who were eligible for transfer to state prison rested "exclusively"
on state law. App. C 15. Thus, the relevant "factual" context
here is the context of state law concerning these state officials’
duties (if any) toward the transfer-eligible inmates in the Harris
County jail. While State Defendants maintain they had no duty
to remedy unconstitutional conditions in a local jail at the time of
the liability finding here, at the very least any such duty was and
still is unsettled and not clearly established
A. State Law Prior to H.B. 937 Was Unsettled as
to Liability and Financial Responsibility of
6 Although not a subject of this petition, State Defendants ask this Court to
take judicial notice of the Alberti court's Memorandum Opinion and Final
Order of September 29, 1992 attached as App. G and H. App. E is an order
of the Alberti court of March 24, 1993, which renames the anticipatory
fines "remedial sanctions." Although not a subject of this petition, State
Defendants also request the Court to take judicial notice of this order
7 TEX. GEN. & SPECIAL LAWS 1991, 2d Called Sess., Ch. 10, pp. 180-
226 (hereafter, "H.B. 93") (eff. August 29, 1991)
10
State Defendants for Transfer-Eligible
Inmates in Harris County Jail.
It is difficult to seriously contend that state law before
August of 1991 was settled as to the responsibility (financial or
otherwise) of State Defendants for prisoners in local jails. Two
sections of the Local Government Code, TEX. LOCAL GOV'T
CODE ANN. §§ 351.001 (Vernon Supp. 1993) and 351.041
(Vernon 1988), vest responsibility for county jails in the county
commissioners courts and the sheriffs, respectively. Moreover,
prior to August of 1991, state statutory law was unequivocal in
making the counties financially responsible for all prisoners in
their jails:
"[A] county is liable for all expenses incurred in
the safekeeping of prisoners confined in county
jails or kept under guard by the county."
TEX. CODE CRIM. PROC. ANN. art. 104.002 (Vernon Supp.
1993); see Op.Atty Gen. JM-743 (1987) (counties, not TDC, are
liable for medical expenses of parole violator in TDC's legal
custody but confined in county jail), App. BB; Op.Atty Gen
JM-730 (1987) (counties, not TDC, liable for medical expenses
of TDC inmates confined in county jail on bench warrant), App
CC. In fact, prior to August 1991, the Texas Legislature had on
three occasions failed to pass bills to compensate Texas counties
for holding convicted felons, as well as a constitutional
amendment and accompanying legislation to require the State to
reimburse local governments for any new State mandates. See
State Defendants’ Exhibits 4-8, introduced at the trial of October
22, 1990 and testimony at that trial transcript [tr.] vol. 1, pp.
122-24. Nor, pnor to August 1991, had the legislature
appropriated money for compensating the counties for holding
such prisoners. See TEX. GEN. & SPECIAL LAWS 1989, Reg.
Sess. Ch. 1263, pp. 5184-5200 (eff. June 16, 1989). The lack of
appropriations to compensate the counties is evidence of the
intent of the iegislature, see Bullock v. Calvert, 480 S.W.2d 367,
371 (Tex. 1972); TEX. CONST., Art. VIII, § 6 (funds may not
SS
11
be drawn from the State treasury without a_ specific
appropriation therefor). Under the State constitution, the
legislature has plenary power over the counties. See TEX.
CONST., Art. IX, § 1; Robbins v. Limestone County, 114 Tex.
345, 268 S.W. 915, 919-20 (1925); Bass v. Fontleroy, 11 Tex.
698, 706 (1854).
While the district court attributed the unconstitutional
conditions in the Harris County jail to a failure of TDCJ-ID to
meet a state-law duty to accept inmates sentenced to it, see App.
Y 21, state law is explicit and abundantly clear that the state
prison system has a duty to accept inmates "only" pursuant to
former Tex. Rev. Civ. Stat. Ann. art. 6166a-4, which requires
the Texas Board of Criminal Justice to "develop, adopt and
enforce an allocation formula’ that allocates admissions to
TDCJ-ID.8 TEX. GOV'T CODE ANN. § 499.121 (Vernon
Supp. 1993). In fact, repeatedly the district court ordered the
State Defendants to "maintain" the allocation formula, App. U 8,
App. V 3, and App. W 3-4.
B. Allocation Formula was Lynchpin of Reforms
Aimed at Controlling Local Jail and Prison
Overcrowding.
The allocation formula was a component of H.B. 2335,
the Comprehensive Criminal Justice Reform Act, TEX. GEN. &
SPECIAL LAWS 1989, Reg. Sess. Ch. 785, pp. 3471-3558
(generally eff. September 1, 1989). State Defendants have long
maintained -- and the legislative history shows -- that H.B.
2335's primary purpose was to establish a system of financial in-
centives and disincentives directed at controlling front-end popu-
8 Former article 6166a-4 is now codified as TEX. GOVT CODE ANN. §
499.071 (Vernon Supp. 1993), App. Z. The allocation formula regulation
that it mandates is codified as Chapter 152 in Title 37 of the Texas
Administrative Code (37 TAC §§ 152.1-152.3). App. DD. Under the
current formula, Harris County is allocated 20.6961% of total weekly
admissions to the state prison. See 17 Tex. Reg. 6788 (October 2, 1992)
lation pressures by providing state financing for sentencing alter-
natives while at the same time forcing local governments to fund
the cost of their own transfer-eligible inmates.? State
Defendants' Exhibit 49, trial of the week of August 14, 1989, the
Report of the Texas House Appropriations Subcommittee on
Prison Construction Alternatives (January 30, 1989), esp. at 10
(noting that the state of Texas should develop "a hard core bed
allocation system for local governments" and "a system to
discourage local governments from sending criminals to the
hard-core beds owned and operated by the state. . . beyond the
allocation system"). Thus, the Report of the Alberti Special
Master aptly summarized H.B. 2335 by saying at 4 that it
"institutionalized the allocation formula, with its explicit cap on
admissions to TDCJ, and encouraged the development within
the counties of a wide range of both institutional and community
based alternatives to incarceration for a broad class of sentenced
felons convicted of essentially non-violent offenses."
It must be noted that State Defendants have consistently
and persistently maintained that Harris County underutilizes
intermediate sanctions and takes a disproportionate number of
state prison beds. See, trial of week of August 14, 1989, tr. vol.
9 Texas has, of course, also maintained an aggressive prison construction
program that is almost unprecedented in scope: "Since 1984, the State has
brought 22,299 new prison beds on line, 13,270 of them in 1989 and 1990.
In 1989, the State further committed itself to the construction of 15,550
more beds. . ." See Report of December 13, 1991 by the Alberti Special
Master on Harris County sentencing practices (hereinafter “Report of
Alberti Special Master," copies lodged with Clerk of the Court) at 3. In
addition, H.B. 93, Sec. 22.03, p. 224, appropriated $672,100,000 for the
construction of 25,000 additional beds, and S.B. 171, passed by the 73rd
Texas Legislature (eff. February 23, 1993), appropriated $250.8 million,
which TDC] plans to use in part to construct and operate 10,000 "state jail"
beds. (See copies of $.B. 171 and State Defendants’ Motion to Modify Final
Order or, in the Alternative, to Stay the Imposition of Fines, lodged with the
Clerk of the Court. State Defendants request the Court to take judicial
notice of these documents.) This makes a grand total of 72,849 beds either
built or funded for construction since 1984.
13
3, pp. 534-572.!9 The Report of the Alberti Special Master on
Harris County's sentencing practices has confirmed this. (See
copies lodged with the Clerk of the Court.) Especially in light of
these facts, State Defendants have contended that the allocation
formula should not have been overridden, so that it would have
had its natural effect of encouraging the use of sentencing
alternatives in Harris County, as the Texas legislature intended.
C. The State District Court Judgment Relied on
By the Fifth Circuit Has Been Vacated
Without Ever Being Reviewed, Let Alone
Affirmed, by a State Appellate Court.
Both the panel and the district court sought to resolve
these complex issues of state law by reliance on an act passed in
198911 resting “primary responsibility" in TDCJ for the
“confinement, supervision and rehabilitation of felons." Alberti
I, App. C 21. In doing so, the panel noted its reliance on the
only state district court to have addressed the issue. /d.
However, the state cases!2 raised not only complicated
issues of state court jurisdiction and complex factual issues but
overarching separation of powers issues under Article II § 1 of
the Texas Constitution. !3 Moreover, under state law, because
10 See also Affidavit of Steve Martin (with summary) concerning the
Harris County criminal justice system, admitted into evidence at the trial of
February 27, 1990 as part of State Defendants' Exhibit 17 (copies lodged
with the clerk of the Court).
|! Now codified as TEX. GOVT CODE ANN. § 493.001 (Vernon Supp.
1993).
12 County of Nueces v. Texas Bourd of Corrections, No. 451,071 (Dist. Ct.
of Travis County, 250th Judicial Dist. of Texas, pending); Harris County v.
State of Texas, No. 465,468 (Dist. Ct. of Travis County, 126th Judicial
District of Texas, pending). Both of these were decided by the same state
district court judge.
13 State Defendants have lodged with the Clerk of the Court copies of
their appellate brief in Texas Board of Criminal Justice, et al. v. Nueces
14
state entities were involved, the state court judgment on appeal
(Nueces County), was superseded or automatically stayed.
Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 481-82
(Tex. 1964). Before the state court case could be argued, let
alone decided on appeal, the counties involved, including Harris
County, agreed to vacate their judgments and settle pursuant to
H.B. 93. App. EE, FF and GG. No state appellate court, let
alone the Texas supreme court, has ever ruled on the state law
issues presented to and decided by the Fifth Circuit. Indeed,
plaintiffs recognized the lack of certainty in state law when they
vigorously urged certification to the Texas Supreme Court in the
Fifth Circuit. See Plaintiffs'-Appellees' Brief in Alberti v. Sheriff
of Harris County v. Richards, Fifth Cir. Nos. 91-2274, 91-2210,
90-6034, 90-2441 at 65-72. App. HH.
D. The Legislative History of H.B. 93 and State
Court Settlements Indicate the State Was
Responsible for Prisoner Transfers Only After
October 1, 1991.
After intense lobbying by Texas counties, the Texas
Legislature in August, 1991 passed H.B. 93, a law which
provides for compensation to the counties for housing inmates
sentenced to TDCJ-ID at amounts specifically set by the
Legislature. TEX. GOV'T CODE ANN. §§ 499.122-125
(Vernon Supp. 1993), App. AA 2-6. Moreover, as of October
1, 1991 a mechanism was established for transferring, at state
expense, inmates to other county jails when a county jail has
been declared unconstitutionally overcrowded and over 20
percent of its population is made up of inmates awaiting transfer
to TDCJ-ID. TEX. GOV'T CODE ANN. § 499.125 (Vernon
Supp. 1993) App. AA 4-5. The legislative history of H.B. 93
indicates that an earlier version of H.B. 93 contained a provision
that would have allowed compensation for transferred inmates
under state law from February 7, 1991, the date of the Alberti
County, et al. No. 3-90-282-CV (3rd Court of Appeals-Austin, Texas) (now
dismissed).
15
court's onginal order. S.B. 24 (introduced in the First Called
Session, 1991), unapproved Conference Committee Report,
§ 14.02, p. 34, proposing Tex. Gov't Code § 499.123(b). See
App. II. That provision was dropped in H.B. 93, indicating that
the Legislature's intent was not to compensate Harris County
prior to October 1, 1991. Smith v. Baldwin, 611 S.W.2d 611,
616-17 (Tex. 1981).
E. County Had Full Authority and Ability to
Provide Remedy to Inmate Class.
It is indisputable that the County had and still has full
authority under Texas law to contract with other counties and
transfer prisoners out of its jail to detention facilities in those
counties. TEX. GOV'T CODE ANN. Ch. 791 (Vernon Pamph.
1993); esp. TEX. GOV'T CODE ANN. § 791.003(3)(A)
(Vernon Pamph. 1993); TEX. LOCAL GOV'T CODE
§§ 351.031-351.035 (Vernon 1988); Ch. 351, Subch. F & G
(Vernon Supp. 1993); see also TEX. GOV'T CODE
§ 511.012(b) & (c) (Vernon 1990). Nor has there been any
contention that the County lacked the financial resources to have
made the contracts.
REASONS FOR GRANTING THE WRIT
I. THERE ARE SPECIAL AND IMPORTANT
REASONS TO GRANT THE WRIT.
A. Certiorari Should Be Granted To Resolve An
Irreconcilable Conflict Between The Circuits
Over (1) The Role of Federal Courts In
Deciding Disputes Between Different Levels of
State Government And (2) The Scope of the
Eleventh Amendment.
This case arose in the context of an internal political
dispute between the Texas legislature and the counties of Texas
over whether counties should be compensated for housing
16
inmates ready for transfer to the state prison system. Prior to the
passage of HB. 93, that debate raged in the Texas legislature,
often between representatives of the state's rural and urban
counties
Without reducing to a disagreement between you
and I individually, kind of globally the problem
with that is, you have judges in Harris County
that are making decisions that raise my taxes, as
he indicated earlier. And we've gone to an exten-
sive amount of time and trouble to try to establish
this. Harris County has about 19!4 percent of the
State's population, produces about 20 percent of
the State's tax revenue stream. It consumes 28 to
30 percent of the prison resources
When your locally elected judge in Harris County
makes a decision about what to do with the
criminal, in excess of that 20 percent, taxes in
Dallas and Bexar and Parker County go up to pay
for that decision . .
Meeting of the Appropriations Committee of the Texas House
on February 21, 1991, Remarks by Representative Ric.
Williamson of Parker County (Weatherford) in colloquy with
Representative Paul Hilbert from Harris County (Houston)
(transcript of remarks lodged with the Clerk of the Court).
The Fifth Circuit showed no hesitancy to intrude directly
into the center of this political dispute, likening its orders to a
"lion in the street" when the Texas legislature passed H.B. 93 in
August, 1991. App.D3. And, after deciding the “hard
questions" of "exclusively" state law against Texas, the Fifth
Circuit found the state to be a constitutional violator, thereby
sidestepping, without discussion, its authority to decide the
14 The evidence in this case indicates 16 percent. See Affidavit of Steve
Martin (lodged with the clerk of the Court) at 22.
17
State-law dispute in the first place. App. C 29. This merely begs
the question Did the Fifth Circuit have authority under Article
H1!5 and principles of federalism to decide a state-law dispute
between two state governmental entities?
In contrast to the Fifth Circuit's approach -- headlong in-
to the melee -- the Sixth Circuit has ruled under principles of
federalism that federal courts lack authority "to adjudicate an in-
ternal dispute between a local governmental entity and the very
state that created it." Kelly v. Metropolitan Board of Education
of Nashville and Davidson County, Tennessee vy. State of
Tennessee, 836 F.2d 986, 998 (6th Cir. 1987), cert denied, 487
U.S. 1206 (1988). And, again in contrast to the Fifth Circuit's
approach, numerous decisions of this Court and the Circuit
courts have ruled that local governmental entities lack standing
to bring an action in federal court against their creator. !6
The reasoning of the Sixth Circuit rests primarily on a
prudent and pragmatic deference!’ to state governments in
finding their own means of funding a remedy when a
constitutional violation occurs
Again, however, the existence of a duty to
eliminate [the constitutional violation] does not
mean that the duty may only be discharged
through taxes levied by the state, as opposed to
IS if Congress cannot tell a state where to locate her capital, how, under
Article III, can a federal court tell a state that it must compensate its
counties? See Coyle v. Smith, 221 U.S. 559 (1911): see also Presley v
Etowah County Comm'n, __ US. ___, 112 S.Ct. 820, 832 (1992)
16 Eg, Coleman vy. Miller, 307 U.S. 433, 441 (1939): South Macomb
Disposal Authority v. Township of Washington, 790 F.2d 500 (6th Cir
1986); Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049, 1051
n.1 (Sth Cir. 1984) (and cases cited therein)
17 State Defendants maintain, of course, that this deference is anchored in
the Constitution, including the Tenth and Eleventh Amendments
18
taxes levied by the counties of the state. This
“constitutional wrongdoers must pay for their
wrongs” argument has little or no force where we
are talking about two political entities, a state and
one of its subdivisions, each of which has done
wrong (as have subdivisions not now before us)
and where the men and women representing the
electorate of the state as a whole -- an electorate
that includes the voters of all subdivisions -- have
chosen not to enact legislation shifting to the
state as a whole the costs of repairing the wrongs
within each subdivision
Kelly, 836 F.2d at 998. In fact, this Court has traditionally
shown great deference to the states in regards to issues that in-
volve statewide systems relating to the fundamental structure of
the state's fiscal and taxing policies, public administration and
local initiative. See e.g., San Antonio Independent School
District v. Rodriguez, 411 U.S. 1, 40-41 (1973). Kelly relied on
Rodriguez heavily in its reasoning. Kelly, supra at 996-997.
Yet here, without authoritative state court interpretation,
federal courts construed a provision of state law vaguely
ascribing "primary responsibility" for felons to TDCJ!8 as carte
blanche authonty to force state taxpayers to acquire a special
prison system for one locality, despite that locality's
disproportionate use of state prison space. This federally
ordered, but state financed, capacity acquisition required
expenditures beyond the funding appropriated by the Texas
legislature for construction and acquisition of prison capacity
This is simply not the office of federal courts:
Such fundamental decisions as how many prisons
to build and how large to build them -- basic
decisions regarding the allocation of public
18 Now codified as TEX. GOVT CODE ANN. § 493.001 (Vernon Supp
1993)
19
resources are simply outside the domain of
federal courts
Inmates of Occ oquan v. Barry, 844 F 2d 828, 843 (DC. Cir
1988)
Similarly, the Fifth Circuit's willingness to enter into the
fray and decide "hard questions” of "exclusively" state law
against the State Defendants led it to conclude that the money
payments to the County were incidental to injunctive relief. App
C 29. Bootstrapping again its state law decision, it sought to
distinguish Kelly by ruling that the state was a “current
constitutional violator." App. C 29. But as noted above, this
distinction begs the question Kelly rests primarily on the
' Proposition that it is not the province of federal courts to decide
at all a state-law dispute between different state subdivisions,
which the Fifth Circuit here necessarily had to decide first in
order to conclude that the State is a "current constitutional
violator." Rather, relying on Rodriguez, Kelly would leave such
matters to the state political process, Kelly, supra at 996-997,
and not engage in an "'end-run around the legislature's
allocation of state funds'" Kelly, supra at 995 citing United
States v. Texas Education Agency, 790 F.2d 1262, 1265 (Sth
Cir. 1986), cert. denied sub nom. Lubbock ISD. y Texas
Edcuation Agency, 479 U.S. 1030 ( 1987)
Accordingly, Kelly found, under Eleventh Amendment
analysis, that "(t]he order to pay is ancillary only to itself," Kelly,
supra at 992, and, as such, violated settled precedents holding
that, "[WJhen the action is in essence one for the recovery of
money from the state, the state is the real substantial party in
interest and is entitled to invoke its sovereign immunity from suit
even though individual officials are nominal defendants " Kelly,
supra at 988-89 citing Ford Motor Co. vy. Department of
Treasury of Indiana, 323 US. 459, 464 (1945): see also
Pennhurst State School and Hospital v. Halderman, 465 U §
89, 101 (1984). This in turn is consistent with long-standing case
law counseling, under Eleventh Amendment analysis, non-
20
interference with the fiscal affairs of states. See e.g., Employees
v. Missouri Department of Public Health and Welfare, 411 U.S.
279 (1973); Kennecott Copper Corp. v. State Tax Comm'n, 327
U.S. 573, 577 (1946).
The reasoning of the Kelly case applies with particular
force where, as here, vindication of the constitutional rights of
the Plaintiffs could have been achieved without involving the
state at all, while leaving the local governmental entity free to
pursue its relief before the state legislature or in state court.
It is in the public interest that federal courts of
equity should exercise their discretionary power
to grant or withhold relief so as to avoid needless
obstruction of the domestic policy of the states.
"The scrupulous regard for the nghtful
independence of state governments which should
at all times actuate the federal courts, and a
proper reluctance to interfere by injunction with
their fiscal operations, require that such relief
should be denied in every case where the as-
serted federal right may be preserved without it."
Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 298
(1943), quoting Matthews v. Rodgers, 284 U.S. 521, 525
(1932). (emphasis added)
Especially in an era of tightening budgets, the role of
federal courts in resolving fiscal disputes between different levels
of state government raises fundamental questions of federalism.
Hence, the irreconcilable conflict between the Fifth Circuit and
other circuits as to how to approach this problem is important,
and this Court should resolve it.
B. Certiorari Should Be Granted Because of The
Lower Court's Clearly Erroneous And Iil-
Reasoned Ruling on _ Abstention § and
Certification.
21
1. Abstention Was Especially Appropriate
Because of Ongoing State Court
Proceedings Dealing With Undecided
Issues of State Law.
Few cases cry out so much as this one for some princi-
pled discussion of federalism, particularly this Court's decision in
Railroad Commission y. Pullman, 312 US. 496 (1941).
Although acknowledging that this case presented a “hard ques-
tion" of "exclusively" state law, App. C 15, the panel was simply
flat-footed on abstention, noting only that it did not "quite fit",
App. C 30, despite this Court's clear message that such stingy
judicial "pigeonholing" is not appropniate in abstention analysis.
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n9 (1987). Judge
Higginbotham, no novice at federalism, has himself noted, in a
case which formed the gravamen of his analysis here, that if
there is "real ambiguity" about Statutory intent or state law,
“strong” grounds for Pullman abstention exist. Bush v. Viterna,
795 F.2d 1203, 1205 n.1 (Sth Cir. 1986).
There can be little question, especially in light of
H.B. 2335 and the allocation formula, that at the very least there
was "real ambiguity" as to whether or not the intent of state law
was for TDCJ-ID or other state entities to assume responsibility
for transfer-eligible inmates in local jails prior to the passage of
H.B. 93. Certainly, given the stakes of the state law dispute in
terms of the state's criminal justice policies, its relationship with
its counties!9 and the obvious fiscal implications for the state,
19 Even assuming arguendo federal courts have authority to resolve a state
law dispute between two state governmental entities, abstention would still
seem the better course. Deference to state institutions is especially
appropriate, “when it is proposed that the remedial powers of the federal
courts be exercised ‘to restructure the operation of local and state govern-
mental entities." Kelley, 836 F.2d at 1000, citing Hills v. Gautreaux, 425
U.S. 284, 293, (1976). See also Milliken v. Bradley, 433 U.S. 267, 280-81
(1977) ("the federal courts in devising a remedy must take into account the
interests of state and local authorities in managing their own affairs”).
abstention under Pullman was appropriate. 29
The argument for abstention is especially compelling in
light of the pendency of a state court action involving the
identical state and county parties. See Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1 (1987); Younger v. Harris, 401 U.S. 37 (1971).
In fact, "wise judicial administration" would have counseled in
favor of dismissing State Defendants to conserve the resources
of the courts and the parties. See Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817-20
(1976).
The Fifth Circuit's "deference" to these ongoing state
court proceedings and the district court's "contingent" enforce-
ment of its orders, see App. C 21-22, U 7, are a far cry from the
considerations of federalism embodied in the abstention doctrine
Here those state court proceedings had either been "superseded"
or stayed on appeal?! (as in County of Nueces) or had not even
been fully litigated in the trial court. Litigants should not be able
to use a federal court to make an end run around normal state
judicial processes. See Pennzoil, 481 U.S. esp. at 13-14. Nor
should they disrupt the ordinary process of trial or appeal in
state court by adjudicating a civil rights case in which the federal
20 Because this is a Texas case, the proper course was to dismiss State
Defendants or at least any claims relating to State Defendants’ liability and
financial responsibility for transfer-cligible inmates in the Harris County
jail. Harris County Commissioners Court v. Moore, 420 U.S. 77, 88-89
(1975).
21 The basis for the automatic Stay on appeal was precisely because the
judgment was against a state entity and issues of sovereign immunity were
implicated. Ammex, 381 S.W.2d at 481-82. Given this Court's decision in
Pennhurst, it would have seemed particularly advisable under the Eleventh
Amendment to have deferred to the normal state practice set forth in
Ammex. Cf. Will v. Michigan Department of State Police, 491 U.S. 58, 65
(1989) (considerations based on the Eleventh Amendment can be applied in
other contexts involving the constitutional balance between states and the
federal government). Non-interference with the stay and normal state court
process was also mandated by 28 U.S.C. § 2283.
23
constitutional claims are "inextricably intertwined with the state
court's grant or denial of relief." District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482-84 n.16 (1983).
Moreover, the whole idea of "contingent" liability raises
the very justiciability problem which the Pullman doctrine was
designed to avoid:
When federal courts interpret state statutes in a
way that raises federal constitutional questions,
“a constitutional determination is predicated on a
reading of the statute that is not binding on state
courts and may be discredited at any time -- thus
essentially rendering the federal court decision
advisory and the litigation underlying _ it
meaningless."
Pennzoil, 481 U.S. at 11, citing Moore v. Sims, 442 U.S. 415,
428 (1979). And here that prophecy has been sadly fulfilled, for
the entire state-law basis of the Fifth Circuit's opinion has evapo-
rated with the vacation of the judgments in state court pursuant
to the settlement of the state court actions under H.B. 93.
2. Abstention was Appropriate to Avoid
Disruption of State Regulatory
Programs.
The lower courts’ assumption of jurisdiction over the
Claims against State Defendants also violated the doctrine of
Burford v. Sun Oil Co., 319 U.S. 315 (1943), which calls for
abstention when such jurisdiction interferes with a complex state
regulatory scheme. See also Colorado River Water
Conservation Dist. v. United States, 424 U.S. at 814 (federal
courts must abstain to avoid adjudication that would be
"disruptive of state efforts to establish a coherent policy with
respect to a matter of substantial public concern").
24
Requiring State Defendants to finance the housing of
transfer-eligible inmates in other counties implicated (and, in
fact, undermined), the important public policy objectives of the
allocation formula under H.B. 2335 by de facto giving Harris
County additional numbers above its current allocation.22 It also
went at cross-purposes to the manifest intent of H.B. 2335 to
encourage the use of intermediate sanctions and alternatives to
incarceration because it removed from Harris County the
financial burden of supporting inmates sentenced to state prison
in excess of Harris County's allocation.23
In fact, the entire process of federal review in this case
involves consideration of a wide variety of public policy deci-
sions in the Texas criminal justice system which are discretionary
in nature. These include (but are not limited to) how many
prison beds to construct, how many to contract for, how much
good time to award (either under the Prison [or Population]
Management Act [PMA],4 or by prison officials), or how many
22 The allocation formula is, of course, subject to state court judicial review
under the Texas Administrative Procedure and Texas Register Act, TEX.
REV. CIV. STAT. ANN. art. 6252-13a § 12 (Vernon Pamph. 1993).
23 In addition, requiring State Defendants to pay the costs of
contracts with private vendors or counties for jail space interfered with or
superseded the bidding process for such contracts required by TEX. GOV'T
CODE § 495.003 (Vernon Supp. 1993).
Moreover, the order circumvented the 1987 Appropriations Act
which limited the number of beds that the State could contract out for under
former article 6166g-2 (Vernon's Texas Civil Statutes) to 2,000. TEX.
GEN. & SPECIAL LAWS 1987, 2d Called Sess., Ch. 78, paragraph 49, p.
343 (eff. August 6, 1987). Before H.B. 93, there were no additional
appropriations to allow the TDCJ-ID to contract out for more beds, nor
any change in the 1987 rider limiting the number of beds. And as the
testimony showed at the hearing in this case of the week of August 14,
1989, TDCJ-ID had already contracted out for all 2,000 beds. See tr. vol 4,
pp. 674 & 746.
24 TEX. GOVT CODE ANN. Ch. 499, Subch. B (Vernon Supp. 1993).
The PMA was itself the subject of a state constitutional attack in Texas
courts. See Appellants’ Brief in County of Nueces case (lodged with the
Clerk of the Court) at pp. 37-38.
25
inmates to furlough. These discretionary decisions were all the
subject of state court review in both the Nueces and Harris
county actions. And all of these functions and decisions impli-
cate matters of substantial public concern and involve an attempt
to maintain a coherent, state-wide criminal justice policy. Federal
courts, accordingly, should have refrained from reviewing these
issues under a hybrid Burford-Younger type of abstention. Cf
Pennzoil, 481 U.S. at 11-12 and 15-17 (justifying abstention in
light of Art. I, § 13 of the Texas Constitution, the "open courts"
provision).
3. If Abstention Was Not Appropriate, the
Fifth Circuit Should Have Stayed
Further _ Action Against State
Defendants While Certifying the
Relevant Questions of Law to the Texas
Supreme Court.
Certainly, if abstention for some reason was not
appropmiate, the Fifth Circuit should have certified the relevant
questions concerning the State's liabilities and financial respon-
sibility to the Texas Supreme Court in accordance with TEX. R.
APP. P. 114. Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)
(certification appropriate in light of the "great unsettlement" of
State law). Certification may also be the most appropriate
course now to resolve any remaining dispute about the
respective duties of the state and county actors, in light of the
settlement of the state court lawsuits and the accompanying
changes in state law. See State of Louisiana ex rel. Guste v.
Roemer, 949 F.2d 145 (Sth Cir. 1991) (certifying to Louisiana
Supreme court question relating to dispute between Governor
and Attorney General over who had authority and responsibility
to represent state in litigation concerning higher education
system). While these State Defendants cannot be held liable for
the alleged past actions or omissions at issue here, given the
uncertainty of their responsibilities under state law (see infra at
26-28), certification would serve to clarify once and for all the
respective present and future duties of the state and county
SSS
26
actors. If any of those actors then failed to fulfill their duties,
the plaintiffs would be entitled to pursue a remedy against them.
on Certiorari Should Be Granted To Determine
Whether State Officials Can Be Found Liable
For Conditions In A Local Jail Under Wilson
v. Seiter When Their Responsibilities Under
State Law For Inmates in A Local Jail Are
Not Clearly Established.
Relying on individual liability cases, the Court in Wilson
v. Seiter mandated an "inquiry into a prison official's state of
mind when it is claimed that the official has inflicted cruel and
unusual punishment." Seiter, | U.S. at, 111 S. Ct. at
2324. Here, the threshold question of which official, state or
county, was responsible for conditions in the local jail presented
a “hard question" of "exclusively" state law. App. C15
(emphasis in original). The panel correctly ruled that under
Texas law "(t]he county clearly has some responsibility for
conditions in the county's jails."2> Jd. It then went on to
resolve the "hard question" of the liability of state officials on a
"tentative" and "contingent" basis, pending the outcome of state
court litigation. However, it is difficult to square the Court's
reasoning with the requirement of a mental element under
Wilson v. Seiter. If state law presented a "hard question" as to
the responsibility of the state officials sued here for conditions in
the local jail, those officials could certainly in good faith maintain
the position that they had no such responsibility. Maintaining a
defensible legal position on a "hard question" of state law shows
no evidence of the culpable mental state required under Se/fer 26
25 As previously noted, the County had full authority and ability to provide
a remedy to the inmate class in the Harris County Jail. See supra at 15.
26 State Defendants maintain that given their overriding concern for public
safety and the prevention of early releases, their obligations to other
counties in Texas to take their fair share of inmates under the allocation
formula and the requirements of Ruiz v. Collins [state prison conditions
Case, see supra at 7 n.3, they should be held to the standard of “malicious or
27
This can clearly be seen through analogy to the law of
individual immunities. State officials sued in their individual!
capacity cannot be held liable unless their duties were "clearly
established" or readily "apparent." ( Jt Harlow v. Fitzgerald,
457 U.S. 800, 818 (i982): also Anderson vy. Creighton, 483
U.S. 635, 640 (1987). Certainly under Seiter the principles
applicable to good faith immunity in an individual liability case
are analogous to the analysis of whether officials have been
“deliberately indifferent" or "malicious and sadistic" in a prison
conditions case. In this connection, this Court clearly relied on
Estelle v. Gamble, 429 U.S. 97 (1976): Whitley v. Albers, 475
U.S. 312, 317 (1986); and LaFaut v. Smith, 834 F.2d 389, 395
(4th Cir. 1987) individual liability cases, in formulating the
“culpable mental state" requirement of Seiter. Seiter, US.
at__, 111 S.Ct. at 2323, 2326-27. Moreover, only weeks ago,
this Court analogized directly to cases allowing interlocutory
appeals for claims of individual immunity in ruling that "the same
rationale ought to apply to claims of Eleventh Amendment
immunity made by the States and state entities possessing a
claim to share in that immunity..." P. R. Aqueduct & Sewer
Authority v. Metcalf & Eddy, US. at __, 113 S.Ct. at 687.
State Defendants. of course, are not contending that
State officials are entitled to individual immunities when sued in
their official capacity. Hafer v. Melo, __ US. __,112 S.Ct
358, 362 (1991). Hafer made it clear that "the only immunities
available to the defendant in an official-capacity action are those
that the governmental entity possesses." Hafer, __ US. at
___, 112 S.Ct. at 362
On the other hand, State Defendants do maintain that
State officials acting in their official capacity should be entitled,
Sadistic" intent under Seiter. Seiter. __ US. at, : 111 S.Ct. at 2326
However, under whatever standard imposed under Seiter, State Defendants
cannot be liable when their underlying state law duties are not Clearly
established
28
as an incident of the State's Eleventh Amendment immunity, to a
rule assuring them that any state law duties which a federal court
might construe in the context of a civil rights claim will be
clearly established. Otherwise, a federal court could improperly
interpret state law and wrongly intrude into state structures and
fiscal policy. Hence, especially when state law is unclear, "it is
difficult to think of a greater intrusion on state sovereignty than
when a federal court instructs state officials on how to conform
their conduct to state law." Pennhurst, 465 U.S. at 106.27
State Defendants maintain that by analogy to Harlow and
Creighton, and especially in light of Pennhurst, until State courts
had authoritatively construed their State-law duties, they were
entitled to stand on their defense in federal court that they had
no duty to inspect the Harris County jail and no duty to fix it.
And with the vacation of the State court judgments pursuant to
H.B. 93, no Texas district court, let alone an appellate court or
the Texas supreme court, has entered a final judgment ruling
otherwise. Particularly under these circumstances, it is
inappropriate for federal courts to construe unsettled state law,
cf. Pennhurst, 465 U.S. at 106, let alone rule that state officials
were deliberately indifferent to any alleged state law duties.
Because this case involves core fiscal issues in the Texas
criminal justice system, the scope of the intrusion on the State of
Texas' basic structures and institutions in itself clearly warrants
certiorari, under fundamental principles of federalism. And
because this case arises in the context of jail overcrowding, an
area of pervasive litigation in the nation, resolution of the
fundamental questions in interpreting Seifer presented by this
27 These arguments are especially compelling when, as here, there is no
state law vesting direct supervisory responsibility in these state officials for
conditions in local jails. Absent a showing of direct supervisory
responsibility over local jails, state officials should not be held liable for
conditions in those jails. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976),
Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986) (Texas state officials who
set standards for and inspect local jails held not responsible for conditions
in local jail).
29
petition will benefit litigants far beyond the immediate parties to
this case
CONCLUSION
For these reasons, Petitioners request that a writ of
certiorari issue to the Court of Appeals for the Fifth Circuit
Respectfully submitted,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant
Attorney General
MARY F. KELLER
Deputy Attorney General
MICHAEL P. HODGE
Assistant Attorney General
Chief, Enforcement Division
“Attorney in Charge ines ite
ROBERT OZER*
Assistant Attorney General
Chief, Class Action Section
Enforcement Division
State Bar No. 15392700
JOHN B. WORLEY _
Assistant Attorney General
State Bar No. 22001480
30
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 320-5300
(512) 463-2200 (FAX)
ATTORNEYS FOR
PETITIONERS
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.