Bush v. Viterna
| Citation | 740 F.2d 350 |
| Decision Date | 20 August 1984 |
| Docket Number | No. 83-1613,83-1613 |
| Parties | John BUSH, et al., Plaintiffs-Appellees, v. Robert O. VITERNA, Individually and in his official capacity as Executive Director, Texas Commission on Jail Standards, et al., Defendants, Texas Association of Counties, Intervenor-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Bickerstaff, Heath & Smiley, Steve Bickerstaff, Ann Clarke Snell, Austin, Tex., for intervenor-appellant.
James C. Harrington, Edward F. Sherman, Austin, Tex., Steven Ney, Washington, D.C., for plaintiffs-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before RANDALL, TATE and WILLIAMS, Circuit Judges.
The Texas Association of Counties (the "Association") seeks review of an order of the United States District Court for the Western District of Texas denying its motion to intervene as a matter of right or on a permissive basis, pursuant to Fed.R.Civ.P. 24(a)(2) and (b) 1 as defendant in this prisoner's civil rights action. We hold that the Association was properly denied intervention.
The underlying action in which the Association requested intervention is a prisoner's civil rights action originally filed in federal district court in 1978 seeking damages and declaratory and injunctive relief pursuant to 42 U.S.C. Sec. 1983 (1982) for violations of federal constitutional rights. The original suit was a class action against officials of Bell County, Texas and the executive director of the Texas Commission on Jail Standards (the "Commission") 2 alleging that conditions and practices of confinement at the Bell County Jail were inconsistent with federal constitutional law and state statutory and regulatory requirements. The original suit alleged two classes: (1) a plaintiff class of inmates and pre-trial detainees aggrieved by the conditions and treatment of prisoners under the policies in effect at the Bell County Jail; and (2) a defendant class "of the individuals and governmental bodies responsible for operating the Texas County Jails in compliance with minimal [sic] constitutional and state statutory standards." The executive director of the Commission and Bell County officials were named as defendants.
In October 1980, the plaintiffs' individual claims against Bell County were severed from the class action claims against the Commission. Subsequently, a consent decree in "full settlement of all of plaintiffs' claims against Bell County and all its officials as raised in civil action No. W-78-CA-106, which could ever be raised resulting from any of the events set forth in plaintiffs' complaints" was filed. The consent decree stated that "conditions" on the night of plaintiffs' arrest do not reflect current conditions in Bell County and its jail is officially certified as being in present compliance with law. The consent decree further provided that it "shall be a complete bar and res judicata to any and all present, future or other claims of plaintiffs arising from or related to the events made the basis of the plaintiffs' claims urged in this case."
In their amended complaint filed in the severed action, the plaintiffs substituted a state-wide plaintiff class for their original county-wide class, and dropped their defendant class. In the severed claims, plaintiffs sued only the members of the Commission. In their amended complaint, plaintiffs included the following prayer for relief:
WHEREFORE, Plaintiffs pray that this Court:
1. Issue a declaratory judgment that Defendants' acts, omissions, practices, and policies have denied Plaintiffs due process and equal protection of the laws in violation of the Fourteenth Amendment, have caused them to be subject to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments and have violated the rights, privileges, and immunities guaranteed to them by the First, Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments to the Constitution of the United States.
2. Enter a judgment, order, and decree permanently prohibiting the Defendants, their employees, agents or successors, and all those acting in concert or participating with them from:
a. Failing or refusing to conduct or cause to be conducted meaningful and exacting inspections of the jails;
b. Failing or refusing to properly evaluate and monitor the conditions under which Plaintiffs and members of their class are confined so as to detect and report any and all violations of the Constitution or Texas law, including the Texas jail standards promulgated pursuant to Tex.Civ.Stat. Art. 5115 and 5115.1; c. Failing or refusing to take steps necessary or appropriate to eliminate unconstitutional conditions of confinement in the jails and violations of Texas law, including the Texas jail standards; and
d. Depriving Plaintiffs or members of their class of their constitutional rights.
3. Enter a judgment, order and decree requiring Defendants to promulgate new regulations that fully protect the constitutional rights of prisoners including, but not limited to, adequate medical care, contact visitation, daily indoor and outdoor exercise and recreation, mail privileges, access to legal materials, and freedom from unnecessary use of physical force.
4. Enter a judgment, order and decree requiring Defendants to confine Plaintiffs, if at all, only under conditions that comport with the Constitution of the United States and the laws of Texas.
The documents filed and appearances made by the plaintiffs in this action indicate that the plaintiffs' claims principally relate to the standards adopted by the Commission, 3 the Commission's inspection procedures, 4 the Commission's practice of granting variances to counties whose jails do not comply with the jail standards, 5 and the Commission's enforcement practices. 6 No relief is sought against the individual counties.
Soon after a state-wide class was certified in December, 1982, the Association notified the court and the parties that counties were concerned about the suit. Citing county interests; the confused state of the pleadings; the lack of progress toward resolving the substantive issues in these proceedings; and the scheduling of a seminar for January 28, 1983, at which counsel for the parties would make presentations to county officials and answer their questions concerning the suit, the Association requested leave to appear amicus curiae and to refrain from submitting argument "until the issues are better focused and until the counties of Texas have an opportunity through the seminar and other informative efforts to become familiar with this litigation."
Following the January seminar, county officials discussed the case and requested the Association to intervene in the action. At its next meeting, on February 21, 1983, the Association's board voted to seek intervention if a sufficient number of counties voluntarily issued orders through their commissioner's courts in support of intervention and created a reasonably adequate litigation fund. After 139 of the 254 Texas counties had joined the intervention effort and 133 of those had contributed to the litigation fund, the Association moved to intervene. Both intervention of right and permissive intervention were denied by the district court. The district court also denied the Association's application for a stay pending appeal.
This court, sitting en banc, has recently restated the test for intervention of right under Fed.R.Civ.P. 24(a)(2): 7
"It is well-settled that to intervene as of right each of the four requirements of the rule must be met: (1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; (4) the applicant's interest must be inadequately represented by the existing parties to the suit."
New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984) (en banc) (quoting International Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d 964, 967 (5th Cir.1978)). The district court found that the Association failed to meet all four of these requirements. If a would-be intervenor fails to meet any one of these requirements then it cannot intervene as a matter of right. Howse v. S/V "Canada Goose I", 641 F.2d 317, 320 (5th Cir.1981); International Tank Terminals, Ltd. v. M/V Acadia Forest, supra, at 967. Our focus here is upon the fourth requirement. Since we conclude that the Association's interests are adequately represented by the Commission, 8 we need not address the question whether the Association has met the other three requirements for intervention of right. 9
The requirement that an intervenor not be adequately represented by existing parties "is satisfied if the applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). However "minimal" this burden may be, it cannot be treated as so minimal as to write the requirement completely out of the rule. See Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 205 (7th Cir.1982). Thus, we find, on the facts of this case, that the Association has failed to carry even this slight burden of showing that their interests will not be adequately represented by the Commission.
This circuit has held that " '[w]hen the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the petitioner must demonstrate adversity of interest, collusion, or nonfeasance.' "...
To continue reading
Request your trial
-
Baker v. Wade
...Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686, 694 n. 10 (1972); Bush v. Viterna, 740 F.2d 350, 355 (5th Cir.1984).36 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); see also Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) ......
-
Ingebretsen v. Jackson Public School Dist.
...to the lawsuit. Fed.R.Civ.P. 24(a); Kneeland v. National Collegiate Athletic Ass'n, 806 F.2d 1285, 1287 (5th Cir.1987); Bush v. Viterna, 740 F.2d 350, 354 (5th Cir. 1984) (citing cases); see also 7C Charles A. Wright et al., Federal Practice and Procedure §§ 1906-1909 (1986 & This court fin......
-
U.S. v. LULAC
...cert. denied, sub nom. Morial v. United Gas Pipe Line Co., --- U.S. ----, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984).11 See Bush v. Viterna, 740 F.2d 350, 355-57 (5th Cir.1984); Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425, 1441 (5th Cir.1983); Hines v. Rapides Parish Sch. Bd., 479 F.......
-
Edwards v. City of Houston
...so minimal as to write the requirement completely out of the rule." Cajun Elec. Power Coop., 940 F.2d at 120 (quoting Bush v. Viterna, 740 F.2d 350, 355 (5th Cir.1984)). Accordingly, our jurisprudence has created two presumptions of adequate representation. First, when the putative represen......