Stone v. City and County of San Francisco, No. 91-16927

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CHOY
• Citation: 968 F.2d 850
• Docket Number: No. 91-16927
• Decision Date: 25 August 1992
• Parties: Will STONE; Henry Washington; Albert Matias; Freddy Tooks; Jo Ann Sparks, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. CITY AND COUNTY OF SAN FRANCISCO; Michael Hennessey, Sheriff; Mayor of the City and County of San Francisco; Department of Public Health of the City and County of San Francisco, Defendants-Appellants.

Page 850

968 F.2d 850 24 Fed.R.Serv.3d 98 Will STONE; Henry Washington; Albert Matias; Freddy
Tooks; Jo Ann Sparks, on behalf of themselves and
all others similarly situated,
Plaintiffs-Appellees,
v.
CITY AND COUNTY OF SAN FRANCISCO; Michael Hennessey,
Sheriff; Mayor of the City and County of San Francisco;
Department of Public Health of the City and County of San
Francisco, Defendants-Appellants. No. 91-16927. United States Court of Appeals,
Ninth Circuit. Argued March 10, 1992.
Submitted April 17, 1992.
Decided June 25, 1992.
As Amended July 9, 1992.
Order Amending Opinion and Denying
Rehearing and Rehearing En Banc
Aug. 25, 1992.

Page 852

Dennis Aftergut, Deputy City Atty., San Francisco, Cal., for defendants-appellants.

Beth H. Parker, McCutchen, Doyle, Brown & Enerson, San Francisco, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California.

Before: CHOY, FARRIS, and RYMER, Circuit Judges.

CHOY, Circuit Judge:

The City and County of San Francisco ("the City") appeals a contempt order against it for its failure to comply with provisions of a consent decree governing population levels at one of the City's jails. We affirm the entry of the contempt order, but vacate that part of the order allowing the Sheriff to override applicable state laws in conducting early release.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs are pretrial detainees in San Francisco's jail on the sixth floor of the Hall of Justice ("Jail No. 1"). The plaintiffs filed a class action in 1978 challenging the conditions of their confinement. The primary objectionable condition was the population level at Jail No. 1.

On July 15, 1982, the parties agreed to a consent decree, which the district court entered. The consent decree included a provision that the jail's housing areas should not regularly house more inmates than the capacity set by the California Board of Corrections. ¹

In June 1985, the plaintiffs moved to hold the City in contempt for violating provisions of the decree, including the provision concerning mandated population levels. In May 1986, the district court ordered the City to comply with the decree's provisions and appointed a Special Master to investigate, report, and recommend actions the City should take to ensure compliance. As a result of continued noncompliance by the City, the Special Master recommended in March 1987 that the district court impose sanctions when the jail exceeded its population capacity.

The district court held a hearing in April 1987 on the plaintiffs' contempt motion, but continued the matter until June to give the City an opportunity to present a plan to address the overcrowding problem. In August 1987, the City agreed that if it failed to achieve either the overall capacity level for the entire jail or the individual capacity levels for housing units, the district court could impose monetary sanctions. The City further agreed that the court could grant special powers to the Sheriff to cope

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with the overcrowding problem, including the power to conduct citation release of inmates and the power to release certain inmates before they had served their entire sentences. ²

After a prolonged period of compliance, Jail No. 1 became overcrowded again. On November 28, 1987 the district court issued an order to show cause why the City should not be held in contempt. The court held the motion under submission while the City worked to complete a new jail facility in San Bruno ("Jail No. 7"). At a hearing in January 1988, the district court found that the City had made "substantial progress" towards compliance but that Jail No. 1 remained overcrowded. The court gave the City further powers to control the inmate population by allowing the Sheriff to release "all sentenced prisoners within San Francisco County Jail system who have served 90%, 80%, and 70% of their sentences" as necessary to reach the population limits. Moreover, the court expanded the Sheriff's powers by allowing him to release inmates even when such release contravened applicable state laws.

Despite the Sheriff's liberal use of these powers, overcrowding persisted. The district court held hearings in April, July, and October of 1988 on the pending motion for contempt, but each time it continued the hearing to allow the City the opportunity to meet the population limits. Finally, at a status conference the court ordered the imposition of fines of $300 per inmate per day if the City failed to comply by March 15, 1989.

The City complied by the deadline by shifting inmates to other jails, by making use of Jail No. 7, and by relying on the Sheriff's early-release powers. On June 19, 1989, the court extended the consent decree beyond its seven-year term and denied the pending contempt motion.

The City remained in compliance with the population limits for almost two years until February 19, 1991. After that date the total jail capacity was exceeded on numerous occasions, and the plaintiffs filed a contempt motion on May 30, 1991. At a hearing on July 31, 1991, the district court found that the City had violated the population limits at Jail No. 1. The City requested time to prepare a plan to alleviate the overcrowding problem and to obtain funds to implement the plan. The court postponed a second hearing in September to allow the City further time to prepare. The City submitted its plan to the court on October 7, 1991. Jail No. 1 was chronically overcrowded during the intervening period. At the November hearing, the City requested more time to implement its plan to cope with a recent surge in the jail population. The court took the matter under submission.

On December 17, 1991, the district court found the City in contempt because it had not taken "all reasonable steps" to comply with the population limits. The court ordered that the City immediately comply with the consent decree and imposed sanctions of $300 per day per inmate for each day after January 1, 1992 that the City violated the order. The court expanded the Sheriff's powers to reduce population levels by allowing him to release prisoners who had served 60% and then 50% of time served. ³

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On December 26, 1991, the City filed a motion to stay the order or, in the alternative, reconsider the court's opinion. The court denied both requests on December 30th, but modified the order by requiring that the fines be placed in fund to be controlled and administered by the City and used for programs to reduce Jail No. 1's population levels. On December 31st, this court temporarily stayed the district court's order pending appeal.

After the parties filed their briefs, we granted the District Attorney for the City leave to file an amicus brief. The District Attorney's brief urged us to invalidate portions of the district court's order because it violated principles of federalism. In particular the amicus was concerned about those portions of the court's orders that allowed the Sheriff to override applicable state laws and state court criminal sentences ordered pursuant to those laws. Because these issues also troubled the panel, we ordered supplemental briefing by the parties.

II. DISCUSSION

A. Jurisdiction

As a general rule, contempt orders against a party to pending proceeding are not considered final under 28 U.S.C. § 1291. United States v. Westinghouse Elec. Corp., 648 F.2d 642, 651 (9th Cir.1981); Hughes v. Sharp, 476 F.2d 975 (9th Cir.1973).

Where the contempt order is a post-judgment order imposing sanctions, however, the order may be final for the purposes of § 1291. Weyerhaeuser Co. v. International Longshoremen's & Warehousemen's Union, Local 21, 733 F.2d 645 (9th Cir.1984). A consent decree is considered a final judgment despite the fact that the district court retains jurisdiction over the case. Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 674 F.2d 976, 981 (3d Cir.), cert. denied, 459 U.S. 905, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982); cf. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1426 (10th Cir.1990) (order entered three years after consent judgment appealable because underlying controversy was concluded), cert. denied, --- U.S. ----, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). Thus, the contempt order in this case is a post-judgment order because the parties agreed to the consent decree in 1982.

A post-judgment order imposing sanctions acquires the "operativeness and consequence" required for finality under § 1291. Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983). ⁴ The plaintiffs claim that the district court's contempt order is not final because (1) sanctions will not be levied until the City violates the population limits, and (2) the Special Master failed to determine that a bona fide emergency beyond the control of the City exists. ⁵

In this case, the sanctions are not speculative. The City has not been required to pay sanctions because of this court's stay of the district court's order. ⁶ The record demonstrates that the City is not in compliance with the population limits

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and thus would be required to pay the fines if the stay were not in effect. Hennessey Decl. in Support of Mot. for Stay p 8 (Jan. 6, 1992). The fact that the exact amount of the fines is undetermined and ongoing does not make the sanctions speculative. See Shuffler, 720 F.2d at 1145; 9 James Wm. Moore et al., Federal Practice § 110.13, at 150 (2d ed. 1992) ("if the contempt judgment is entered in a post-final judgment proceeding, it is final and appealable, since there is no other judgment from which the appeal will lie"). Nor does the fact that the sanctions are conditional defeat the contempt order's finality. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 777 (9th Cir.1983) (sanctions paid but could be refunded with subsequent compliance). This situation is distinct from cases where the contempt order was not final because certain...