Reply Brief — Richards v. Alberti

92-1648

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

Vv.

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

PETITIONERS' REPLY TO RESPONDENTS' BRIEFS IN

OPPOSITION

DAN MORALES ROBERT OZER*

Attorney General of Texas Assistant Attorney Gencral

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

(S12) 463-2076

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division *Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITIONERS' REPLY TO RESPONDENTS'

BRIEFS IN OPPOSITION

THE "HARD QUESTION" OF STATE

DEFENDANTS' LIABILITY WAS

"EXCLUSIVELY" A STATE LAW

ISSUE WHICH COULD ONLY BE

AUTHORITATIVELY DECIDED BY

STATE COURTS AND NOT RESOLVED

ON A "CONTINGENT" AND "TENTATIVE"

BASIS BY FEDERAL COURTS

CONCLUSION

|

TABLE OF AUTHORITIES

Cases

Benjamin v. Malcolm, 803 F.2d 46 (2d Cir

1986), cert. denied sub nom., Cuomo

v. Koehler, 480 U.S. 910 (1987)

Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986)

Fidelity St. Life Ins. Co. v. First Nat. Bank & Trust,

§10 F.2d 272, 273 (Sth Cir. 1975), cert.

denied, 423 U.S. 864 (1975)

Huron Holding Corp. v. Lincoln Mine Operating

Co. 312 U.S. 183, 189 (1949)

Kelley 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)...

Milliken v. Bradley, 433 U.S. 267 (1977).

Missouri v. Jenkins, 495 U.S. 33 (1990)

Pennhurst State School and Hospital v. Halderman,

465 U.S. 89 (1984)...

Rizzo v. Goode, 423 U.S. 362, 375-76 (1976)

Rooker v. Fidelity Trust Co., 263 U.S. 413,

PN NE is dianseciniacacdenane

Stewart v. Winter, 669 F.2d 328 (Sth Cir. 1982)...

Page

6

6

WG

6

6

iil

Tarrant County Commissioners Court v. Markham,

779 S.W.2d 872, 874-75 (Tex. App. - Fort

Worth 1989, writ denied)..

Tate v. Frey, 735 F.2d 986 (6th Cir. 1984)

Wheeler v. Aldama-Luebbert, 707 S.W.2d 213,

216 (Tex. App. - Houston [1st Dist.] 1986,

no writ)

Wilson v. Seiter, U.S. __, 111 S.Ct. 2321 (1991)

Texas Statutes

TEX. CODE CRIM. PROC. ANN. art. 104.002

(Vernon Supp. 1993)...

TEX. GEN. & SPECIAL LAWS 1991, 2d Called

Sess., Ch. 10, pp. 180-226 (eff. August 29, 1991)

gy! 3 oO sp Genser

TEX. GOV'T CODE ANN. § 499.121(a) (Vernon

supp. 1993).............

TEX. GOV'T CODE ANN. § 511.012(b) (Vernon

pune. 1990)..................

Texas Attorney General Opinions

Op. Atty Gen. JM-730 (1987)

Op. Atty Gen. JM-743 (1987)

We

6

PETITIONERS' REPLY TO RESPONDENTS' BRIEFS IN

OPPOSITION

THE "HARD QUESTION" OF STATE DEFENDANTS'

LIABILITY WAS "EXCLUSIVELY" A STATE LAW ISSUE

WHICH COULD ONLY BE AUTHORITATIVELY DECIDED

BY STATE COURTS AND NOT RESOLVED ON A

"CONTINGENT" AND "TENTATIVE" BASIS BY FEDERAL

COURTS

Despite efforts by both Plaintiffs and County Defendants

to confuse the central issue in this case, the gravamen of this

petition remains simply whether State Defendants are liable for

conditions of confinement at a local jail operated and managed

exclusively by county officials. State Defendants maintain, as

did the Fifth Circuit, that this issue presented a "hard question"

of "exclusively" state law. Appendix to Petition for Writ of

Certiorari [Pet. App.] C 15. State Defendants also maintain that

the resolution of this issue on a “tentative” and "contingent"

basis, Pet. App. C 30, dependent upon the outcome of state

court litigation was inappropriate under principles of federalism,

particularly in light of the fact that the state district court

decision relied upon by federal courts in making their decision

has subsequently been vacated pursuant to settlement.

The fact that the state law basis of the Fifth Circuit's

decision has evaporated bears emphasis in light of Plaintiffs’

contention that the case is moot. State Defendants have,

pursuant to federal court order and without state legislative

authorization, directly reimbursed a political subdivision of the

State of Texas for $12,649,874.25. Petition at 8. Subsequent

orders (not the subject of this petition) pose additional financial

liability for remedial plans and "fines" or "sanctions." Petition at

8-9; Pet. App. E, G, H. It is hard to seriously contend, given the

almost unlimited financial liability imposed on State Defendants

by federal courts in this case, that the case is moot

ee a

Nm

Nor are Petitioners’ contentions moot because there are

no longer any state court suits to abstain to. Lower federal

courts, ignoring basic principles of federalism, have forced state

officials to transfer millions of dollars to a local governmental

subdivision to meet the needs of jail inmates, when those

officials’ responsibility for those inmates was unclear at best

This violation of the structure Our Federalism should not go

unremedied, the money should be returned to the state

treasury. | Moreover, as Petitioners have consistently urged in

the alternative in the Court of Appeals below, (and so urge here)

if there remains any uncertainty about whether Petitioners are

required, under the terms of the state court settlements, to do

more than they are currently doing to alleviate the conditions of

inmates, the question of Petitioners’ responsibilities under those

settlements entered pursuant to current state law should be

certified to the Texas Supreme Court. See Memorandum Brief

of State Appellants (in appeal after remand) at 2-3 (adopting all

arguments raised in appeal before remand), Brief of State

Appellants (in first appeal before remand) at 55-56,

Memorandum Reply Brief of State Appellants (in appeal after

remand) at 8 n. 10; and letter of August 26, 1992 (filed in appeal

after remand), citing supplemental authority in support of

certification. (Copies of relevant portions of Briefs and lettes

lodged with Clerk of the Court.)2

1 This would not mean that the Plaintiff inmates would be denied a remedy

for the conditions in the jail. There is nothing in this case to suggest that

the County Respondents lack or have ever lacked the financial means to

alleviate conditions in the jail

2 The assertions of the Plaintiff-Inmate Respondents at 13 of their Brief in

Opposition and the County Respondents’ at 24 of theirs that Petitioners did

not raise the issue of certification below in the appeal after remand are thus

simply false. It seems that Respondents, who are so free with charges of

musrepresentation, would take greater pains to be accurate themselves. In

this connection, Petitioners strongly object to the strategy of the County

Respondents in particular to characterize every disagreement Petitioners

have with them as a misrepresentation. See County Brief in Opposition at

27-30 Petitioners dispute all charges that they have misrepresented the

facts or the law or that they have cited to materials that are not properly

before this Court or that this Court may not take judicial notice of

On the other hand, the state court decisions which

constituted the sole basis for State Defendants liability in the

district court and Fifth Circuit -- and which Plaintiffs and County

Defendants have so persistently and recklessly advanced to

contest this Petition -- are moot, having been vacated pursuant

to HB. 93 and settlement agreements 3

County Defendants try to circumvent this issue by relying

on federal decisions ruling that the state must accept inmates

from a local jail facility. However, the cases relied upon by the

County’ dealt with factual situations in which federal courts

ordered state inmates to be received by the state facilities

pursuant to state law. Here in contrast, it is undisputed that

State Defendants had a duty "only" to accept inmates pursuant

to a statutory allocation formula TEX. GOV'T CODE ANN

§ 499.121(a) (Vernon Supp. 1993), Pet. App. AA 1. In this

regard, the lower federal courts repeatedly enjoined State

Defendants to maintain that allocation formula. Pet. App. U 8,

V 3, W 3-4. Indeed, the remedy imposed herein was not an

injunction that the state should accept state-sentenced inmates

into state correctional facilities. Rather, here state officials were

simply ordered to compensate county officials for state inmates

kept in custody of the Harris County sheriff But state law is

emphatically explicit that the counties were financially

responsible for all prisoners in their jails

3 The remarks the Plaintiffs and County Defendants cite from TJarrant

County Commissioners Court v. Markham, 779 S.W 2d 872, 874-75 (Tex

App. - Fort Worth 1989, wnt denied) do not constitute any kind of decision

on these issues. The issue in that case was Markham's standing to bring a

class action. The remarks cited are consequently dicta and were especially

gratuitous (and unfair) given that Petitioners at that time were not parties to

that -23e and had had no opportunity to present their side of the story

4 See County Respondents’ Brief in Opposition at 6 n.11, citing Benjamin

v. Malcolm, 803 F.2d 46 (2d Cir. 1986), cert. denied sub nom., Cuomo \

Koehler, 480 U.S. 910 (1987). Tate v. Frey, 735 F 2d 986 (6th Cir 1984)

"[A] county ts 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); Op. Atty. Gen. JM-743 (1987) (counties, not state are

liable for medical expenses of parole violator in state's legal

custody but confined in county jail"), Pet. App. BB; Op. Atty

Gen. JM-730 (1987) (counties, not state, liable for medical

expenses of state inmates confined in county jail on bench

warrant), Pet. App. CC. See also Petition at 10-11. And the

question of financial liability was "exclusively" a question of

state law which State Defendants maintain federal! courts did not

have authority to decide or, alternatively, should have resolved

by deferring to ongoing state court proceedings under the

abstention doctrine or certified to the Texas supreme court

Petition at 15-26

Nor can Plaintiffs or County Defendants reasonably rely

on the Fifth Circuit's decision in Stewart v. Winter, 669 F.2d 328

(Sth Cir. 1982), a Mississippi case decided under Mississippi, not

Texas law. This is especially the case when the only federal case

involving the liability under state law of Texas state officials for

unconstitutional conditions in a local jail explicitly held that, in

the absence of supervisory responsibility over local jails, state

officials could not be liable for conditions in those jails. 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).> See also Rizzo v. Goode, 423 U.S

362, 375-76 (1976)

5 This is especially the case when the state officials involved in Bush had

the legal authority to transfer inmates to other county jails. TEX. GOV'T

CODE ANN. § 511.012(b) (Vernon 1990). Here in contrast, state prison

officials had no such authority to transfer prisoners to other county jails or

even involvement in such transfers prior to the passage of H.B. 93. (TEX

GEN. & SPECIAL LAWS 1991, 2d Called Sess., Ch. 10, pp. 180-226 [eff

August 29, 1991])

Plaintiffs and County Defendants attempt to justify the

rulings below by reliance on Milliken v. Bradley, 433 U.S. 267

(1977). First of all, this strategy begs the question: Can a federal

court even resolve a state law financial dispute between two

state entities when the issue of liability rested "exclusively" on

"hard questions" of state law? In this regard, it is hard to

contend, as the Plaintiffs and County Defendants do, that state

officials are "current constitutional violators” when their liability

is unsettled or at best "tentative" and "contingent" upon the

determination by state courts of what state law means. For this

reason, the attempt of the County and Plaintiffs (and the Court

of Appeals) to distinguish Kelley 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 US. 1206 (1988), likewise rests on question-begging: one

cannot distinguish Kelley by assuming that the State Defendants

are "current constitutional violators,” when that assumption can

be made only by first deciding a state-law dispute that Kelley

says federal courts should stay out of

Second, "[t]he order to pay is ancillary only to itself, in

other words, and therefore it goes beyond Milliken." Ke’ley.

836 F.2d at 992. Here the "relief" ran exclusively to County

Defendants® and was not incidental to any injunctive relief State

Defendants owed to the Plaintiffs class. State Defendants have

never been required to take any significant action (above what

they were already doing) other then pay the County money

(directly or indirectly) to offset the cost of actions it was ordered

to undertake. This is in contrast to Milliken, where, as the court

in Kelley pointed out, "the payment of money was not perceived

to be all that was required of the State Defendants “ Kelley,

836 F.2d at 99!, and see id , 836 F 2d at 991-992

© The Alberti court had explicitly found that “State Defendants are liable to

Couniy Defendants on County Defendants’ Third-Party Complaint” Pet

App. Y 33

Third, the vitality of the Milliken decision has been

seriously questioned in light of the Supreme Court's ruling in

Pennhurst State School and Hospital v. Halderman, 465 U.S

89 (1984) as the Sixth Circuit indicated in Kelley, 836 F.2d at

992. In fact, Justice Powell in his concurring opinion in Milliken

stressed the “uniqueness” of the decision “and the consequent

limited precedential effect of much of the Court's Opinion.”

Milliken, 433 U.S. at 292 (J. Powell, concurring); see Kelley,

836 F.2d at 992.7

Plaintiffs and County Defendants also seek to bolster the

validity of the district court and Fifth Circuit's decision by

citation to diversity cases’ holding that state law can be

enforced during the pendency of an appeal. However, those

cases are easily distinguishable on two grounds. First, the state

court judgments relied on in this case have been vacated and are

of no authoritative value whatsoever. Pet. App. EE and FF.?

Secondly, it is unlikely that such diversity cases apply at all in the

context of the suit against state officials for injunctive relief

given this Court's admonition that "it is difficult to think of a

greater intrusion on state sovereignty than when a federal court

7 Missouri v. Jenkins, 495 U.S. 33 (1990), does not alter this reasoning

That case stands for the proposition that when a state law stands as an

impediment to a local governmental entity's obligations under a federal

consent decree, a federal court may, by injunctive decree, override state law

/d. at 57. It does not say that a federal court may order a state governmental

entity to reimburse a political subdivision of the state as part of its remedy

for a constitutional violation.

8 See Brief in Opposition of County Respondents at 22 n.57 and Brief in

Opposition of Plaintiff-Inmate Respondents at 18, citing Huron Holding

Corp. v. Lincoln Mine Operating Co. 312 U.S. 183, 189 (1949); Rooker v

Fidelity Trust Co., 263 U.S. 413, 415 (1923); and Fidelity St. Life Ins. Co

v. First Nat. Bank & Trust, $10 F.2d 272, 273 (Sth Cir. 1975), cert. denied,

423 U.S. 864 (1975).

9 The state district court's letter opinion, which the Plaintiffs, the County

and the Fifth Circuit have relied on heavily, explicitly stated that it did not

constitute findings of fact and conclusions of law and was not published

Thus, under Texas law, it had no authoritative value even before the

judgment that came after it was vacated. See Wheeler v. Aldama-Luebbert,

707 S.W.2d 213, 216 (Tex. App. - Houston [1st Dist.} 1986, no writ)

instructs state officials on how to conform their conduct to state

law." Pennhurst, 465 U.S. at 106. Diversity cases involving

private parties simply do not raise the profound questions of

Eleventh Amendment immunity presented by this case.

Finally, neither the Plaintiffs or County Defendants even

ventured near the logical anomaly posed by this case in light of

this Court's decision in Wilson v. Seiter, U.S. _, 111 S.Ct.

2321 (1991): How can state officials be held intentionally liable

under the standards of Seiter when their underlying state law

duty was not clearly established and presented a "hard question"

the resolution of which was "tentative" and "contingent" upon

the outcome of state court litigation? At the very least, State

Defendants should be able to stand on their defense in federal

court that they have no duty to remedy local jail conditions until

the "hard question" of "exclusively" state law is authoritatively

resolved by state courts.!9 Petition at 26-29

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

10 Even if this Court should adopt the due process standard which Plaintiff

Respondents advance, Brief in Opposition at 21-23, and which Petitioners

maintain does not apply, State Defendants simply have no responsibility

under state law for pretrial detainees. Accordingly, State Defendants could

not logically be held liable for unconstitutional conditions affecting those

inmates

MARY F. KELLER

Deputy Attomey General

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

* Attorney in Charge 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

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

($12) 320-5300

(512) 463-2200 (FAX)

ATTORNEYS FOR

PETITIONERS

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