Scotty Grubbs, the Metropolitan Government of Nashville and Davidson County, Proposed Intervenor/appellant v. Stephen H. Norris

870 F.2d 343, 13 Fed. R. Serv. 3d 522, 1989 U.S. App. LEXIS 3182, 1989 WL 22302

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 17, 1989
• Docket: 87-5196
• Status: Published

Opinions

KEITH, Circuit Judge:

The Metropolitan Government of Nashville and Davidson County (“Metro”) appeals the decision of the United States District Court for the Middle District of Tennessee denying its application to intervene by right as a plaintiff in this civil rights action involving conditions of confinement in Tennessee prisons. For the reasons set forth below, we REVERSE the decision below, and REMAND the case to the district court with instructions to grant the motion to intervene.

I. FACTS

On August 11, 1980, Tennessee’s prison inmates brought suit against state corrections defendants (“the state”) pursuant to 42 U.S.C. § 1983 to challenge conditions in Tennessee’s prison system. The case originated in state court and made its way to federal court when the Tennessee Supreme Court abstained from deciding the case due to the presence of significant constitutional issues. After discovery and trial, the district court determined that conditions in the Tennessee prisons violated the federal Constitution. The court ordered appointment of a special master, ordered submission of a plan to rectify constitutional violations, and retained jurisdiction over the matter to insure compliance with its orders.

Dissatisfied with the state’s efforts to comply with those orders, on June 27,1985, the district court ordered the state to reduce its prisoner population level to 7,019 inmates by December 31, 1985. On October 2, 1985, plaintiff-prisoners moved for additional relief, requesting the release of inmates or, in the alternative, that admission of new inmates to state prison reception centers be restricted. The Sheriff of Davidson County then moved to intervene; that motion was denied as untimely. On October 25, 1985, the state prisoners’ motion for further relief was granted, and admittance to the state reception centers was restricted (the “October 1985 Order”).

Restricting admittance to state reception centers had the effect of increasing the number of prisoners in the local and county prisons, since certain state prisoners are temporarily detained in local and county facilities pursuant to the mandate of the Tennessee Comprehensive Correction Improvement Act, Tenn.Code Ann. § 41-1-504 (1985). According to that statute, the Governor may direct courts and sheriffs to stay the process of committing felons to state facilities. This “delayed intake directive” therefore would increase the number of state felons in Metro’s jails awaiting removal from Metro’s jails to a state facility.

Since January 15, 1986, Metro’s inmate population has exceeded its designated capacity. On the other hand, by June of 1986, the state’s prison population was below its designated capacity. On June 13, 1986, the state filed a report with the district court which demonstrated its compliance with the court’s earlier orders, and which asked that the court modify its October 1985 Order to increase the state’s prisoner population cap to 7,249, up from the 7,019 limitation. On September 10, 1986, the Special Master filed a Report and Recommendation asking that the state’s request to increase the overall prison population be granted. This Report and Recommendation was adopted by the district court on October 28, 1986.

Exceeding its designated capacity by approximately 300 inmates, one third of whom were convicted felons sentenced to the state penitentiary, Metro moved to intervene by right as a plaintiff, pursuant to Fed.R.Civ.P. 24(a)(2). The plaintiff-prisoners did not object to the intervention; however, the state did oppose the motion. On January 9, 1987, the district court denied Metro’s motion to intervene on two grounds: that allowing intervention would prejudice the relief granted to the existing parties to the action; and that the factual basis for intervention did not establish a need for intervention by right under Rule 24(a)(2). This appeal followed.

II. DISCUSSION

The sole issue before this court is whether the district court erred in denying the Metropolitan Government’s motion to intervene.¹ Fed.R.Civ.P. 24(a)(2) provides:

(a) Intervention of Right Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a.practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Thus, according to this court’s opinion in Triax Co. v. TRW Inc., 724 F.2d 1224, 1227 (6th Cir.1984), the proposed intervenors must meet four criteria before intervention by right is permitted: (1) the application for intervention must be timely; (2) the applicant must have a substantial, legal interest in the subject matter of the pending litigation; (3) the applicant’s ability to protect that interest must be impaired; and (4) the present parties do not adequately represent the applicant’s interest. The proposed intervenor must prove each of the four factors; failure to meet one of the criteria will require that the motion to intervene be denied. Id.

This circuit has not expressly adopted a standard of review for the denial of a motion to intervene of right except for the timeliness requirement, which is reviewable under an abuse of discretion standard. Bradley v. Milliken, 828 F.2d 1186, 1191 (6th Cir.1987); Michigan Association for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir.1981). While permissive intervention under Rule 24(a) is clearly only reviewable under an abuse of discretion standard, there is a trend to review intervention of right using a more liberal standard of review. See especially Stringfellow v. Concerned Neighbors, 480 U.S. 370, 107 S.Ct. 1177, 1185, 94 L.Ed.2d 389 (1987) (Brennan, J., concurring), where Justice Brennan, in distinguishing Rule 24(b) permissive intervention from intervention of right under Rule 24(a), wrote that “Rule 24(a) considerably restricts the court’s discretion whether to allow intervention of right by providing that such a party ‘shall be permitted to intervene.’ ” Id. 107 S.Ct. at 1185, n. 1 (emphasis in original). Thus, he concluded, “a district court has less discretion to limit the participation of an intervenor of right than of a permissive intervenor.” Id. at 1185.

The Ninth Circuit, as articulated in County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir.1986), cert. denied sub nom. Irvine v. County of Orange, 480 U.S. 946, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987); California ex rel. Van De Kamp v. Tahoe Regional Planning Agency, 792 F.2d 779, 781 (9th Cir.1986); and United States v. $129,374 in U.S. Currency 769 F.2d 583, 585 (9th Cir.1985), cert. denied sub nom. Geiger v. United States, 474 U.S. 1086, 106 S.Ct. 863, 88 L.Ed.2d 901 (1986), deploys an abuse of discretion standard for the timeliness prong of the intervention of right requirements, and reviews de novo the remaining Rule 24(a)(2) factors. We take Justice Brennan’s admonition to heart, and adopt the Ninth Circuit’s standard of review in Rule 24(a) cases.

A.

According to Triax, 724 F.2d at 1228, in determining whether an intervention is timely, a court will consider the following factors: (1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention. See also Michigan Association for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir.1981). As mentioned above, a trial court’s decision with respect to the timeliness of a motion to intervene is reviewed under an abuse of discretion standard. Bradley v. Milliken, 828 F.2d 1186, 1191 (6th Cir.1987). Timeliness should be evaluated in the context of all relevant circumstances. Id.

One of the implicit bases for the district court’s denial of intervention below is that the motion was untimely, since “remedial measures” were “in place and well underway,” and to grant the motion would prejudice the rights of the existing parties. Opinion at Joint Appendix p. 421. We are unconvinced by this rationale. It was precisely the district court’s remedy — the October 1985 Order restricting admission of state prisoners to state reception centers— that triggered Metro’s clear interest in the action. The district court cannot then turn around and deny intervention because the action is in the “remedial” stages. The court logically could not mean to suggest that Metro should have intervened before its October 1985 Order outlining the remedy: Metro had no way of knowing in advance that the court was going to select the precise remedy that it did, and that its own interest would be so affected. We cannot demand of potential intervenors that degree of prescience. Indeed, Metro, through the Sheriff of Davidson County, intervened immediately after the October 1985 Order, and that first motion was denied as untimely and premature, since the intervenor had not yet suffered harm. Metro dutifully waited until its overcrowding became staggering, and moved again to intervene, and the court ruled that intervention too late. Metro was therefore squeezed from both ends in its efforts to intervene. We find this unacceptable, and rule that Metro’s motion meets the timeliness requirements outlined in Triax.

B.

The second prong of the Rule 24(a)(2) requirements is that the proposed intervenor must have a direct and substantial interest in the litigation. Brewer v. Republic Steel Corporation, 513 F.2d 1222 (6th Cir.1975). The interest must be significantly protectable. Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 542, 27 L.Ed.2d 580 (1971).

The district court, in considering the application for intervention, held that the factual basis underlying Metro’s motion to intervene was “erroneous.” The court found that, while Metro’s penal facilities were indeed overcrowded, the evidence failed to establish that the remedial measures taken by the state were the sole cause, and that only 13.85% of Metro’s prisoners were those sentenced to state prisons. The court found that other categories of inmates in Metro’s jails had increased in number more than the state inmates awaiting transfer to state facilities. Indeed, the court found that even if the requested relief were granted, Metro’s overcrowding problem would remain.

We find that the purpose for which Metro seeks to intervene is substantial. The Metropolitan Government admits that the district court’s injunction and the governor’s delayed intake directive are not the cause of all of its overcrowding; it argues only that the presence of the state prisoners “materially worsens” the overcrowding. As Metro’s facilities become more overcrowded, its interest increases. At the time of the proposed intervention, the conditions within Metro’s jails and workhouse were volatile and dangerous. The designated capacity of Metro’s facilities is 782. As of the date of the October 1985 Court Order, the population was approximately 745. As of December 11, 1985, the date of the Governor’s order and delayed intake directive, the population was approximately 776. In September, 1986, the time of the application for intervention, Metro’s population had skyrocketed to over 1,000, more than 100 of whom were prisoners whose transfer into the state system was being delayed as a result of the combined effect of the October 1985 Order and the Governor’s order and delayed intake directive.

If overcrowding in Metro’s facilities persists, the jails and workhouse will present a danger both to employees and prisoners. Food and health services are likely to remain severely strained. The court’s remedy severely restricted the ability of the Sheriff of the Metropolitan Government to transfer into the state prison system inmates sentenced by the courts but remanded to Metro’s custody pending transfer. This remedy therefore has caused the inmate population to swell substantially beyond what it otherwise would have been without the court’s action. We find, therefore, that the presence of state prisoners in the Metropolitan Government’s facilities materially worsens the already overcrowded conditions there, and that this is a significantly protectable interest.

C.

The third requirement under Rule 24(a)(2) is that the disposition of the lawsuit will impair Metro’s ability to protect its own interest. The Metropolitan Government has no ability to protect its interest other than intervention in this lawsuit. The combination of the October 1985 Order and the delayed intake directive means that Metro must absorb the state prisoner overflow, with no regard to the status of its own overcrowding. Metro and other affected counties will be left with the remedy of filing separate and individual lawsuits against the state to challenge the new Tennessee statute and the Governor’s delayed intake directive. We believe that a plethora of such lawsuits would be counterproductive and would create years of unnecessary delay. Concerns of judicial economy and swift resolution of disputes counsel us to urge that this related matter be addressed in this primary lawsuit.

Appellees in oral argument suggested that to permit intervention in this case would open the floodgates for intervention by every county in Tennessee. We are not persuaded by this argument, for two reasons. First, appellees admitted that there are possibly only three counties in the state where the county inmate population might exceed its designated capacity as a result of the delayed intake directive and October 1985 Order; not every county would be adversely affected by the relief. Second, we believe that the problem of prison overcrowding is one that should not be addressed on a level of competitive divisiveness. It is a problem endemic to the entire state; thus, the solution should reflect its global contours. Unless the affected counties are heard, the solution will be meted out in a fractured, piecemeal fashion. This is an unsatisfactory procedure both for the potential litigants and for the courts who will adjudicate the various lawsuits. We therefore find that addressing the problem in one lawsuit is preferable to encouraging a patchwork case-by-case approach.

D.

Fourth, the burden is on the Metropolitan Government to demonstrate that the present parties do not adequately represent its interest. Meyer Goldberg, Inc. v. Goldberg, 717 F.2d 290, 293 (6th Cir.1983). That burden is minimal. Trobvich v. United Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972). If the interest of the absent party is not represented at all, or if all existing parties are adverse to the absent party, then she or he is not adequately represented. 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 1909 (1986). The question of adequate representation does not arise unless the applicant is somehow represented in the action. An interest that is not represented at all is surely not “adequately represented,” and intervention in that case must be allowed. Id. at p. 319.

In this case, there are no other local entities party to the action. Metro’s interest is at odds with the interests of the existing parties; the state benefits from the court’s remedy at Metro’s expense. Thus, the Metropolitan Government’s interest is not adequately represented by current parties to the action; indeed, Metro’s interest is not represented at all.

III. CONCLUSION

The Metropolitan Government has met the requirements of Fed.R.Civ.P. 24(a)(2), and therefore should be permitted to intervene in this lawsuit. Thus, we REVERSE the decision of the district court, and REMAND the case to the District Court for the Middle District of Tennessee with instructions to permit the intervention of the Metropolitan Government.

1 . Appellants attempted in their brief to raise a second issue — whether the court of appeals should modify the district court’s injunction prohibiting Metro from transporting state prisoners held in Metro's facilities to the state’s reception centers. By order dated November 16, 1987, this court concluded that this issue was not properly before us. Thus, our review here is restricted to the question of the propriety of the district court’s denial of intervention.