Jones v. Wittenberg, Civ. No. C 70-388.

Citation330 F. Supp. 707
Decision Date09 July 1971
Docket NumberCiv. No. C 70-388.
PartiesCharles JONES et al., Plaintiffs, v. Sol WITTENBERG et al., Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

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Francis X. Gorman, Toledo, Ohio, for plaintiff Jones.

Other plaintiffs represented by Advocates for Basic Legal Equality and Marshall Desmond, Toledo, Ohio; Stanley A. Bass, New York City, of counsel.

Anthony Pizza, Pros. Atty. of Lucas County, for the Sheriff.

John F. Hayward, Toledo, Ohio, for County Commissioners.

Willard A. Johnson, Toledo, Ohio, City Law Department, for defendant Wright.

OPINION

DON J. YOUNG, District Judge.

This Court has previously found that the members of the class of plaintiffs, prisoners in the Lucas County Jail, are deprived of their constitutional rights by state officials acting under color of state law, and are entitled to relief at the hands of the Court.1 At the time these findings were made, the matter was continued for further hearing upon the matter of the relief to which the plaintiffs were entitled. Further hearings have been had, further evidence was offered by means of numerous stipulations, and the case was argued and submitted for decision.

It is obvious, of course, that the matter of affording relief from the deprivation of rights of the class of prisoners is no matter for simple remedies.

Part of the difficulties which must be remedied result from purely physical conditions. Other of the difficulties result from the actions and attitudes of those vested by law with responsibility for the maintenance and operations of prisons, and for the confinement and release of prisoners therein. Some of the laws, which are in the main, very old, have become practically obsolete because of vast social and other changes which have occurred since their enactment. If such laws could be literally enforced, such enforcement would do little to remedy the conditions present here. Fortunately, it is possible to construe many of these archaic relics as declarations of policy which can be applied to meet the conditions they are designed to deal with, rather than as rules which must be literally enforced. However, to the extent that any of these laws conflict with the basic constitutional rights of the plaintiffs, they must be considered as having been stricken down by the former order of this Court.

As pointed out in the Court's former memorandum, responsibility for the operation of county jails, and thus for the infringements upon the rights of the plaintiffs, is badly fragmented by the laws of Ohio. Powers and duties are granted and imposed by the statutes upon the Board of County Commissioners, the County Sheriff, and the Court of Common Pleas. The Commissioners and the Sheriff are parties to this litigation, and consequently subject to this Court's jurisdiction. They must comply with whatever orders this Court makes unless such orders are reversed or modified on appeal. The Court of Common Pleas, and the judges thereof, are not parties to this litigation, even though their statutory duties in relation to the subject of the action are not judicial, but purely ministerial. However, it is to be assumed that in the exercise of comity, and that respect which exists between the federal judiciary and its state counterparts, should there ultimately appear to be some conflict between the administrative rules which may be necessary to afford the relief which this Court decrees, and the administrative rules which the Court of Common Pleas has promulgated pursuant to the Ohio statutes, there will be no difficulty in that Court changing its rules to the extent necessary, if the reasoning of this Court for finding such necessity of change is sufficiently persuasive. This Court is satisfied that the judges of the Court of Common Pleas are in every respect men and women of learning, integrity, and good will. If the rules they have promulgated differ to any marked degree from what this Court's rulings might seem to require, it is only because they were forced to enact their rules without the benefit of the very considerable amount of evidence and argument which have been offered upon the trial of this cause.

As previously stated, the problems which must be remedied in this case stem from two sources, purely physical matters, and actions and attitudes of public officials. There is no precise line of demarcation between these two sources, nor can they be considered as being entirely separate and independent. Rather, they blend one into the other and are interdependent.

The popular, and simplistic, idea is that the important source of the problems is the purely physical one, and that this is easily remedied. In other words, build a new jail, and everything will be neatly straightened out. There are two things wrong with this idea.

The first, and most important, thing wrong is that the evidence clearly demonstrates that if a beautiful brand new jail were built, and operated the way the present jail is operated, there would be little improvement in the difficulties at first, and what improvement there was would very rapidly disappear.

The second thing wrong is that in order to build a new jail, the public must provide additional funds. This Court has no power whatsoever to require the public to do so. Under our system of government, the ultimate source of power is the people. The people have not given this Court any taxing power, or any control over their use of the taxing power. In Ohio, at least, the people have reserved unto themselves considerably more control over the taxing power than is theoretically consistent with the practical operations of a representative democracy. The problems of the Lucas County Jail, and the present crisis in municipal government operations generally, are obviously the result of this inconsistency. Democratic governments have failed in the past because of this. It will be interesting to see whether ours will also. Be that as it may, this Court will not attempt to exercise a power that it does not and should not have. There are strong reasons for thinking that a new jail should be built, and that in the long run substantial economies both in money and in lives could be effected by doing so. However, until a majority of the voters of Lucas County become convinced of this, there will be no new county jail.

As a corollary to this, it ought to be understood that if at the next election the people voted the funds for a new jail, it would take probably from three to five years to build it. It also seems likely that if a proper new jail were to be built, there would still be many strong reasons for remodelling, retaining and using the old jail. Hence, any present expenditures that may be required to meet the minimum physical essentials of according the class of prisoners their constitutional rights will not be money wasted if they are made in such a way as to make the old structure better fitted for future use.

Thus it is apparent that in order to be practical, this Court, in attempting to frame relief for the class of plaintiffs, must address itself primarily to dealing with the actions of those of the parties defendant who are before the Court. Actions can be controlled by orders which are within the power of the Court. Attitudes are perhaps not susceptible to change by the direct orders of the Court, but this Court adheres to the James-Lange theory that attitudes proceed from actions, and not vice versa. Hence if the actions are changed, a change in attitude will follow, even though it could not have been compelled to begin with.

It seems quite clear from the evidence that the essential beginning point for the correction of the deprivation of rights of the class of plaintiffs is in the operations of the jail, and this, under the law, is primarily the responsibility of the defendant Sheriff.

The evidence shows that for the calendar year 1971, the defendant Commissioners have appropriated for the Sheriff's operations the sum of $807,910.00. This is $107,262.59, or 15.3% in excess of the Sheriff's actual expenditures for the preceding calendar year. The evidence also indicates that a considerably larger portion of the Sheriff's expenditures goes for his law enforcement activities than for the operation of the jail, which is also his responsibility. The defendant Sheriff has not challenged the statement of the defendant Board of County Commissioners that only approximately six percent (6%) of the population of Lucas County resides in unincorporated areas of the county where no protection other than the Sheriff's Department is provided. It thus seems clear that in allocating his expenditures, there should be no serious risk to the public if the Sheriff were required to reduce his expenditures for police activities to whatever extent might be necessary to provide for the proper operation of the County Jail. The relatively recent adoption of the Ohio Rules of Civil Procedure should also be reducing, rather than increasing, the needs of the Sheriff's Civil Department, so that there is that further source of funds necessary to handle jail operations.

Under the law of Ohio, after funds are allocated in the county budget for the operations of a county officer, funds can be shifted from one line item to another by the county officer with the approval of the county commissioners. Hence there is no legal impediment to the Sheriff reducing his policing and civil branch expenditures and increasing his jail operation expenditures while remaining within his total allocation of funds. To the extent that the specific requirement of this Court's granting of relief make such line item changes necessary, they must be made and the various defendants are required to make and approve them.

Certain other general changes in accounting and operations will have to be made in order to grant appropriate relief in this matter. The...

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