772 F.2d 1078 (3rd Cir. 1985), 84-5194, Georgevich v. Strauss

Docket Nº:84-5194.
Citation:772 F.2d 1078
Party Name:Anthony GEORGEVICH, on his own Behalf and on Behalf of the class he represents, Appellant, v. Judge Samuel STRAUSS, Leroy S. Zimmerman, Attorney General, of the Commonwealth of Pennsylvania, Intervenor.
Case Date:September 05, 1985
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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772 F.2d 1078 (3rd Cir. 1985)

Anthony GEORGEVICH, on his own Behalf and on Behalf of the

class he represents, Appellant,


Judge Samuel STRAUSS, Leroy S. Zimmerman, Attorney General,

of the Commonwealth of Pennsylvania, Intervenor.

No. 84-5194.

United States Court of Appeals, Third Circuit

September 5, 1985

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Argued Sept. 12, 1984.

Argued In Banc May 6, 1985.

Rehearing and Rehearing In Banc Denied Sept. 30, 1985.

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Richard G. Fishman (argued), Keystone Legal Services, Inc., State College, Pa., for appellant.

Howland W. Abramson (argued), Charles W. Johns, Admin. Office of Pa. Courts, Philadelphia, Pa., for appellees.

Allen C. Warshaw (argued), Andrew S. Gordon, Office of Atty. Gen., Harrisburg, Pa., for intervenor.

Before ADAMS, HIGGINBOTHAM, and SLOVITER, Circuit Judges.

Argued In Banc May 6, 1985



ADAMS, Circuit Judge.

This is an equal protection challenge to parole procedures governing certain Pennsylvania state prisoners. The plaintiff class consists of inmates serving less than two year sentences in state institutions. They claim that they have not been afforded parole procedures granted by state statute to similarly situated prisoners serving less than two year sentences in county prisons. Counsel for the defendant class of Pennsylvania Common Pleas judges essentially agrees that plaintiffs are entitled

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to the parole procedures they seek to obtain here by federal constitutional attack, but it is the position of the defendant class that these procedures are established by state law, and that under the circumstances here federal judicial oversight is unnecessary. We conclude that whether state law affords the plaintiffs the relief they seek is at least an "unsettled question of state law, the resolution of which would affect the decision of a federal constitutional issue," Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 746 (3d Cir.), cert. denied, 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982), and that therefore abstention is required under the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.2d 971 (1941).

The extent of the parties' agreement as to the ultimate issue in the case--whether prisoners serving similar sentences in county and state prisons are entitled to similar parole procedures--is reflected in the fact that the parties initially agreed to a consent decree providing for such procedures. The fate of that decree, however, also demonstrates quite dramatically that the real issue in dispute here concerns federal-state comity, and not prisoner rights. When notice of the proposed settlement was sent out, the principal objections received focused on the issue of the propriety of unnecessary federal jurisdiction over more than 300 state court judges.

The district judge, who had tentatively approved the consent decree, subsequently revoked his approval, and eventually granted defendants summary judgment on the ground that comity required that plaintiffs exhaust their state remedies before seeking federal jurisdiction. While we do not agree with the judge's holding regarding exhaustion, we conclude that his comity concerns were appropriate, and that they properly support Pullman abstention. Accordingly, the district court's judgment will be vacated, and the case remanded so that the district court can retain jurisdiction but abstain from resolution of the state law issue until the state judiciary has been afforded a fair opportunity to do so.


Parole for Pennsylvania state prisoners is governed by a legislative scheme consisting of three statutes. The first, 61 Pa.Stat.Ann.

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Sec. 331.22 (Purdon Supp.1984-85), establishes parole procedures for the Pennsylvania Board of Probation and Parole, which is authorized to parole prisoners who have received sentences greater than two years. 1 The second, 61 Pa.Stat.Ann. Sec. 331.26 (Purdon 1964), authorizes sentencing judges to parole all prisoners serving less than two years, but sets up no procedures. 2 Finally, 61 Pa.Stat.Ann. Sec. 314 (Purdon 1964) creates parole procedures for prisoners serving sentences of less than two years in county institutions. 3 When the current parole arrangement was created, in 1941, it was intended to and did in fact provide procedures for all possible parole situations, for prisoners sentenced to less than two years were confined exclusively to county institutions. 4

In 1974, however, in response to county jail overcrowding, the legislature passed 42 Pa. Cons.Stat.Ann. Sec. 9762(3) (Purdon 1982). That statute authorized the governor to transfer prisoners serving less than two years from the county jail in which they ordinarily would be incarcerated to state correctional facilities. Members of the plaintiff class fall within this category of transferred prisoners; their parole is still in the hands of their sentencing judges, but technically they appear not to be covered by the 1941 parole procedures.

Plaintiff, Anthony Georgevich, instituted this class action under 42 U.S.C. Sec. 1983 (1982), claiming that inmates serving less than two year sentences in state facilities are denied equal protection because they are not given the same due process protections as inmates in county facilities or those who are under the Board's authority. 5 The named defendant was Judge Samuel Strauss, Georgevich's sentencing judge, and suit was filed against a class of similarly positioned Pennsylvania judges.

The case was listed for trial on the June 1982 trial list. Shortly thereafter, the parties submitted a proposed consent decree, which provided, in essence, that sentencing courts would hold hearings on parole decisions for prisoners in state institutions (as it must do for prisoners in county institutions) and would give each prisoner denied parole a written statement of the reasons

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for the action (as the Board must provide to prisoners within its jurisdiction). 6 The court tentatively approved the consent decree, and notice of the proposed settlement was sent to members of both classes.

In response to this notice, four objections were filed on behalf of thirteen members of the defendant class: (1) Six judges from Bucks County objected, stating that it was not appropriate for a state court judge to be subject to the contempt powers of a single federal judge; that they did not consent to representation by defense counsel (who is legal counsel to the administrator of Pennsylvania Courts); that the issues were not proper for resolution by a class action consent decree; that the Pennsylvania legislature and courts were competent to deal with the issues; and that the exercise of federal jurisdiction over more than 300 state court judges was an unwarranted intrusion upon the state judiciary, App. at 58-60; (2) Three judges of Lycoming County proposed that the decree be modified to permit hearings to be held before hearing officers appointed by the sentencing judge, App. at 54-55; (3) A Beaver County judge objected, primarily to the requirement that the sentencing judge hold hearings "at or before the inmate's minimum release date," and stated that he did not assent to being bound by the consent decree if it was approved, App. at 61-62; and (4) Three other judges (who did not identify their county) objected on the grounds that the proposed consent decree exceeded the statutory requirements by adding a provision for a written statement of reasons for denial at or before the minimum release date, and complained that the courts would be inundated with petitions and hearings, effectively creating a substantive right to parole, App. at 63-64.

Troubled particularly by the federal-state comity objections, the district court directed the parties to file additional briefs on the issues of comity, the status of the judicial defendants as proper parties, and the appropriateness of bringing the action pursuant to 42 U.S.C. Sec. 1983. At that point, counsel for the defendant class changed position and urged the court not to approve the consent decree, because of the federal-state problems that had become apparent. Thereafter, the district court declined to approve the consent decree. Georgevich v. Strauss, 96 F.R.D. 192, 196 (M.D.Pa.1982).

Cross-motions for summary judgment were subsequently filed, and the district

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court granted defendants' motion. The district court held that although plaintiffs challenged the manner in which parole decisions are made, they sought "habeas corpus type relief" and therefore they were first required to exhaust their state court remedies. This appeal followed.


Plaintiffs argue that the district court erred in refusing to give final approval to the consent decree. Since resolution of this issue in plaintiffs' favor would terminate the appeal, we address it first. Plaintiffs contend that the defendant class waived its right to argue against approval of the consent decree because it initially requested the court to approve the proposed settlement. This is not a case, however, where the class representative or his counsel merely changed his mind. See e.g., Tate v. Werner, 68 F.R.D. 513, 519, 521-22 (E.D.Pa.1975). Here, the court directed briefing on issues that counsel for the class may not have sufficiently considered before. The shift in position by the class representative and his counsel apparently came about as a result of the issues raised by the court. Under these circumstances, we reject plaintiffs' claim of waiver.

Moreover, even...

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