Harris v. Pernsley

GARTH, Circuit Judge,

dissenting:

As a Senior Circuit judge, I am permitted to vote for panel rehearing, and I do so in this case. In my opinion, the decision of the majority constitutes an unwarranted intrusion by a federal court into the Commonwealth’s prison system before any determination has ever been made that the Commonwealth has violated the Federal Constitution. Not only did the majority ignore the threshold requirement that a finding of unconstitutionality is a prerequisite to federal court oversight, but in addition it erred by refusing to permit the District Attorney of Philadelphia, an indispensible party, to intervene in this federal action. Despite the District Attorney’s absence from the federal proceeding, the majority has approved the release from state prison and the non-admission to state prison, of state criminal defendants over whom the federal courts have no authority, absent some violation of the Federal Constitution. As stated, no such violation has as yet been found.

In derogation of Pennsylvania statutes and caselaw, the majority has refused to permit the Philadelphia District Attorney to be heard on a settlement between the prisoners and the City that directly and substantially impinges upon his statutory Commonwealth duties. See Commonwealth ex rel. Specter v. Bauer, 437 Pa. 37, 261 A.2d 573 (1970) (District Attorney has “power and duty to represent the Commonwealth’s interest in the enforcement of its criminal laws”); In re Miller, 209 Pa. Super. 47, 224 A.2d 89 (1966) (District Attorney has duty to represent Commonwealth with respect to the discharge of inmates from state correctional institutions); Jackson v. Hendrick, 72 Pa. Cmwlth. 63, 456 A.2d 229 (1982) (pre-release of detainees “affects the prosecution interests of the district attorney”).

Moreover, in approving the denial of the District Attorney's motion to intervene as of right, the majority has employed an erroneous standard of review. As I pointed out in my panel dissent, Harris v. Pernsley, 820 F.2d 592, 594 n. 1 (3d Cir.1987), this court’s precedents require plenary review over a district court’s denial of a motion to intervene as of right. See Olden v. Hagerstown Cash Register Inc., 619 F.2d 271, 275 (3d Cir.1980) (denial of motion to intervene under Fed.R.Civ.P. 24(a) not an error; denial under Rule 24(b) not an abuse of discretion); Hoots v. Pennsylvania, 672 F.2d 1133, 1135 (3d Cir.1982). In disregard of these authorities and of this court’s Internal Operating Procedures, see Third Circuit Internal Operating Procedures, Chapter 8(C), which forbid deviation from a prior precedent of the court without in banc review, the majority has abandoned this court’s standard of plenary review and instead has tested the district court’s ruling which denied intervention of right under an abuse of discretion standard.¹

Each of these issues by itself warrants rehearing. Each meets the standard of exceptional importance and the need to maintain uniformity of the court’s decisions. See Fed.R.App.P. 35(a); Third Circuit Internal Operating Procedures, Chapter 8(B). When both issues are presented in tandem, as they are in this case, it would seem that these questions must be examined by the full court.

Were I permitted to vote for rehearing in banc, I would do so. As a senior circuit judge however, I am remitted to voting only for panel rehearing. I so vote.

1 . The majority’s decision to adopt an abuse of discretion standard of review also conflicts with decisions in several other circuits. See County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987); H.L. Hayden Co. v. Siemens Medical Systems, Inc., 797 F.2d 85, 87 (2d Cir.1986); United States v. Allegheny Ludlum Industries, 517 F.2d 826, 841 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976); Central States, Southeast & Southwest Areas Health & Welfare Fund v. Old Security Life Insurance, 600 F.2d 671, 679 n. 15 (7th Cir.1979). See also, Shreve, Questioning Intervention of Right — Towards a New Methodology of Decision Making, 74 Nw.U.L.Rev. 894 (1980) (recommending that Rule 24 be redrafted to make intervention of right subject to trial court discretion).