On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 82-1847.
Stapleton, Greenberg and Aldisert, Circuit Judges. Aldisert, Circuit Judge, Dissenting.
The Philadelphia District Attorney, Lynne Abraham, appeals from two orders of the district court in this prison condition litigation. The appeal at No. 91-1068 is from an order of January 14, 1991, denying her motion to intervene and the appeal at No. 91-1194 is from an order of March 11, 1991, approving a settlement of the case. The district attorney has sought to intervene because she objects to aspects of the settlement providing for the release of certain prisoners. We will affirm the order denying intervention and accordingly will dismiss her appeal from the order approving the settlement. Furthermore, we will vacate an order we entered on August 15, 1991, partially staying the order of March 11, 1991.
This case is a class action originally filed in the district court in April 1982 by ten inmates of Philadelphia's Holmesburg Prison who alleged that the conditions at that prison were unconstitutional. The defendants are the City of Philadelphia and various city and state officials, not including the district attorney. In January 1984 the district court dismissed the action on res judicata, Eleventh Amendment, qualified immunity, and abstention grounds, in part because there was state court litigation concerning the constitutionality of the Pennsylvania state court prison conditions, but we reversed and remanded the case for further proceedings. Harris v. Pernsley, 755 F.2d 338 (3d Cir.), reh'g denied, 758 F.2d 83 (3d Cir.), cert. denied, 474 U.S. 965, 106 S. Ct. 331, 88 L. Ed. 2d 314 (1985). Subsequently, the plaintiffs filed an amended complaint expanding the class to include the inmates of all institutions comprising the Philadelphia prison system. Settlement negotiations commenced and on August 15, 1986, a proposed consent decree was filed. On August 19, 1986, the Philadelphia district attorney filed a motion to intervene as of right under Fed. R. Civ. P. 24(a)(2)*fn1 or, in the alternative, for permissive intervention under Fed. R. Civ. P. 24(b).*fn2 Thereafter, on October 3, 1986, partially because of the district attorney's views, a second consent decree was filed, which replaced the earlier consent decree.*fn3
On December 31, 1986, the district court denied the district attorney's intervention motion and approved the second consent decree with some modifications. Harris v. Pernsley, 113 F.R.D. 615 (E.D. Pa. 1986), aff'd, 820 F.2d 592 (3d Cir.), cert. denied, 484 U.S. 947, 108 S. Ct. 336, 98 L. Ed. 2d 363 (1987). The district court found that the district attorney did not have a legally sufficient interest in the litigation to warrant intervention and it also found, per the requirements of Rule 24(a), that the district attorney's intervention motion was untimely and was thus prejudicial to the existing parties. 113 F.R.D. at 621-22. Furthermore, the district court believed that the city defendants adequately represented any interest the district attorney had in the litigation. Id. at 623. The district court, however, afforded the district attorney objector status. Id. at 625.
The district attorney appealed but we affirmed the order denying intervention, as we determined that her legal duties in the criminal justice system did not confer an interest warranting her intervention. Accordingly we did not reach the timeliness or adequacy of representation issues. However, we also noted our approval of the district court's actions affording the district attorney objector status. Harris v. Pernsley, 820 F.2d 592 (3d Cir.), cert. denied, 484 U.S. 947, 108 S. Ct. 336, 98 L. Ed. 2d 363 (1987) [ "Harris" ].
Subsequently, Pennsylvania enacted a statute, effective May 24, 1988, which we will call "section 1108," purporting to confer automatic standing on the district attorney in prison litigation under which prisoners might be released or not admitted. The statute provides:
Section 1108. District attorneys' standing and interest in prisoner litigation
The district attorney shall receive written notice of, and shall have automatic standing and a legal interest in, any proceeding which may involve the release or nonadmission of county prisoners, delinquents or detainees due to the fact, duration or other conditions of custody. In addition to the district attorney's rights in such a proceeding, the district attorney may seek any equitable relief necessary to protect the district attorney's interest in the continued institutional custody and admission of county prisoners, delinquents or detainees.
18 Pa. Cons. Stat. Ann. § 1180 (Purdon 1991).*fn4
Its legislative history reveals that section 1108 was intended to overrule Harris's denial of the motion to intervene. One of the bill's sponsors stated:
this is a common sense amendment. It is reasonable to assume that our D.A.'s [sic], who, it is already recognized, have the power to advocate criminal sentences, the power to defend convictions in both state court actions and Federal habeas corpus actions and the power to represent the Commonwealth generally in challenges of the constitutionality of the State's penal statutes, should also have the authority to intervene in lawsuits involving the release of county prisoners.
App. at 103 (statement or Representative Wogan). See also App. at 104 (statement of Representative Kosinski) ("the Wogan amendment is rational. I feel that [the] D.A. does deserve standing . . .")
On May 27, 1988, the district attorney, relying on section 1108, filed a second motion to intervene and on June 3, 1988, sought a stay of implementation of the consent order pending disposition of the motion. The district attorney argued that section 1108 gave her "the right under Pennsylvania law to enforce continued institutional custody and admission of county prisoners." Thus, she asserted that she had a cognizable interest for intervention purposes in the "continued institutional custody and admission of county prisoners who are under state court orders of incarceration." The district attorney further asserted that her motion was timely and that her interest in the continued custody of county prisoners was not adequately represented by the city defendants. On June 6, 1988, the district court ordered expedited briefing on the intervention motion but denied the motion for a stay.
Though the district court in its opinion of June 6, 1988, did not rule on the intervention motion, it nevertheless considered it in connection with the motion for the stay. It viewed the intervention motion as implicating two stages of the litigation, one relating to merits and the other to remedy, an approach derived from Harris. See 820 F.2d at 599. The district court held that the district attorney was not likely to be successful in achieving intervention on the merits stage of the litigation, i.e., the unconstitutional conditions issue, as section 1108 did not alter her duties in the criminal justice system. Therefore, the analysis and result in Harris remained applicable.
However, the district court found that the district attorney was likely to be successful to the extent that she sought to intervene in the formation of the remedial terms of the settlement. Although section 1108 did not change her duties, it purported to grant her the right to seek equitable relief necessary to protect her interest in the continued custody of prisoners. The district court found that
while it remains true . . ., that the District Attorney can have no interest in assuring the incarceration of persons under unconstitutional conditions, [her] cooperation in the remedial aspect of this decree would most likely be helpful to the court. Therefore, while the state legislature cannot create an interest after the fact, the continuing nature of the equitable relief provided for suggests the likelihood the District Attorney will be successful in some form of limited intervention to effectuate the purposes of the Consent Decree.
Nevertheless, the district court denied the motion for the stay for reasons which we need not set forth.*fn5
On June 13, 1988, the plaintiffs filed a response opposing the intervention request for any purpose and on June 15, 1988, the city defendants filed a response to the motion stating that intervention should be granted with respect to ongoing matters involving the release or non-admission of county prisoners. The district attorney's position was that she should be permitted to intervene only to participate in proceedings which may affect the release or non-admission of Philadelphia prisoners.
The district court denied the motion to intervene on January 14, 1991. While the district court found that the motion to intervene was timely, it concluded that section 1108, although intended by the legislature to confer standing on the district attorney to intervene, did not do so. The court found that the statute did not grant the district attorney any state law duties or rights supporting intervention. Thus, the district court did not address the question of whether the city defendants adequately represented the district attorney in the litigation.
On January 23, 1991, the district attorney appealed from the order denying intervention. On March 11, 1991, the district court approved a final proposed consent decree which modified the second consent decree the court earlier had approved. Even though the district attorney was not permitted to intervene, she was allowed to submit written objections to this proposed consent decree, which she did, and was granted argument on her objections. On March 12, 1991, the district attorney appealed from the order of March 11, 1991, and the plaintiffs have moved to dismiss that appeal, a motion we will grant. See Harris, 820 F.2d at 603 (one properly denied intervention cannot appeal the merits of a case).*fn6
HARRIS AND THE MOTIONS TO INTERVENE
In Harris, 820 F.2d 592, we upheld the denial of the district attorney's original intervention motion and on this appeal she starts from the assumption that we cannot question that decision on the basis of the law as it was when we decided that appeal.*fn7 Instead she relies on section 1108, which purports to confer automatic standing on the district attorney in prison litigation which might result in the release or non-admission of prisoners and can only be seen as a direct response by the legislature intended to overrule our opinion affirming the denial of the district attorney's first motion for intervention.
When the district attorney moved to intervene after the enactment of section 1108, the district court denied her motion as it was not convinced that section 1108 had given the district attorney sufficient legal interest which she previously lacked. The crux of the issue before us is whether the district court erred in finding that section 1108 did not somehow change the situation so as to warrant the grant of the motion to intervene. Accordingly, we will review our analysis and reasoning in Harris and then consider the district court's reasons for rejecting the second motion.
Denial of the First Motion to Intervene
Under Fed. R. Civ. P. 24(a)(2), a person may intervene as of right if (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in litigation. Harris, 820 F.2d at 596. Although these requirements are intertwined, each must be met to support intervention as of right. Id. In Harris, we focused on the second requirement of Rule 24(a), whether the district attorney had a sufficient interest in the litigation "because of its pervasive importance in the setting of the case." 820 F.2d at 596. We noted that an exact definition of the kind of interest justifying intervention remained elusive and that courts had described the level of interest required as "significantly protectable," "legally protectable," and "direct" as opposed to contingent or remote. Id. at 596-97.
The district attorney asserted that her interest in the litigation was implicated in her duties as a public official. Id. at 597. The district attorney is the public official charged with conducting in court all criminal and other prosecutions and advocates specific bail levels and appeals bail determinations with which she disagrees. The district attorney has the power to advocate sentences, to defend convictions, and to represent the state in challenges to the constitutionality of the state's penal statutes. In short, the district attorney is charged with enforcing the state's criminal statutes. Id. at 598.
The district attorney argued that these duties supported her right to intervene in this prison condition litigation because a limitation on prison population, which was a fundamental aspect of the consent decrees, would interfere with her prosecutorial powers. First, the district attorney argued that a prison cap would result in the release of inmates who had not posted the set bond or inmates who had not served full sentences. This, in turn, would result in wasted work and would hamper her ability to prosecute cases because prisoners released without posting bond would not appear for trial. Second, she argued that the prison cap might make it impossible for the city prisons to admit additional prisoners and would thus interfere with her duties because her function as a prosecutor would be rendered meaningless. Id. at 599.
We noted that the scope of the district attorney's interest was defined by her legal duties under Pennsylvania law and that if her rights and duties, as defined, would be affected directly by the litigation, the district attorney would have a sufficient interest to intervene as of right. Id. at 597. We considered the district attorney's motion to intervene in two stages; first, whether the district attorney had a right to intervene to oppose the claims of unconstitutional conditions in the prisons and second, whether she had the right to participate in the formation of a remedy. Id. at 599. We found that the district attorney had not proven an interest sufficient to allow intervention as of right at either stage.
We found on the merits phase of the constitutional claim that the city defendants, not the district attorney, were responsible for managing the prison system. More importantly, the city defendants could be liable if conditions were found to be unconstitutional. On the other hand, the district attorney had no legal duties or powers with regard to prison conditions and could incur no liability if conditions were found unconstitutional. Thus, her participation in the liability stage would not contribute to an understanding of the issues in the litigation and accordingly she had no interest entitling her to litigate the merits of the claim of unconstitutional conditions. Id. at 599-600.
We also found that the district attorney did not have a sufficient interest to intervene in the settlement or remedy phase. The consent decree proposed to the district court would not alter any of the duties of the district attorney and would not prevent her from performing her statutory duties. In particular, the district attorney could not be held in contempt for not carrying out the terms of the decree.
Although we recognized that the consent decree could affect the district attorney's powers in that certain detainees might not appear for trial, we found that this effect was "incidental" to and a "by-product" of the decree and was not enough to entitle the district attorney to intervene as of right. Id. at 601-02. We indicated that the district attorney's interest in the litigation was of a general nature and not within the scope of her official duties. Id. Therefore, we found that the district court did not abuse its discretion in denying the district attorney's motion to intervene. Id. at 603. Because we disposed of the intervention motion on this interest ...