Inmates of The Suffolk County Jail v. Thomas S. Eisenstadt, Kevin H. White, 518 F.2d 1241, 1st Cir. (1975)

518 F.
2d 1241
INMATES OF the SUFFOLK COUNTY JAIL et al., Plaintiffs,

Appellees,
v.
Thomas S. EISENSTADT et al., Defendants, Appellees,
Kevin H. White et al., Defendants, Appellants.
No. 75-1116.
United States Court of Appeals,

First Circuit.
July 17, 1975.
Kevin F. Moloney, Asst. Corp. Counsel, Boston, Mass., with whom

Kenneth Mickiewicz, Asst. Corp. Counsel, Boston, Mass., was on brief,
for Kevin H. White and the nine Boston City Councillors, appellants.
Max D. Stern, Boston, Mass., with whom Burnham, Stern & Shapiro,
Boston, Mass., Stanley A. Bass and Jack Greenberg, New York City, were
on brief, for the Inmates of the Suffolk County Jail and others, appellees.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit
Judges.
McENTEE, Circuit Judge.
On June 20, 1973, the Massachusetts District Court ruled that conditions at the
Suffolk County Jail, also known as the Charles Street Jail, violated the
prisoners' civil rights. Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp.
676 (D.Mass.1973). As interim relief the court ordered that no cell contain
more than one inmate awaiting trial. Id. at 691. To ensure compliance with its
single cell occupancy order the court subsequently ordered certain prisonerhis
order upon his appeal. Inmates of Suffolk County Jail v. Eisenstadt, 494 Fhis
order upon his appeal. Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d
1196 (1st Cir.), cert. denied sub nom. Hall v. Inmates of Suffolk County Jail,
419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 189 (1974). Late in 1974 the
Committee on Criminal Justice ("CCJ"), a state agency responsible for
apportioning federal Law Enforcement Assistance Act funds among various
projects, decided to discontinue funding for the Bail Appeal Project at the jail.
Because of this action the Mayor of Boston and the nine Boston City
Councillors ("city defendants") decided to terminate the program rather than
fund it with city funds. Alleging that the court's single cell occupancy order was
in danger of frustration because the project removed the need to house an
average of 20 to 30 defendants awaiting trial, 1 the plaintiffs, joined by Sheriff
Eisenstadt and Jail Master Langlois ("county defendants"), moved for an order
requiring the city defendants to continue the program. Appellees argued that
elimination of the project would present the Hobson's choice of either violating
the court order or randomly releasing inmates. After an informal hearing the
court ordered the city defendants to continue the project. They appeal, claiming
both that there was no clear and convincing showing that the ancillary order
was necessary and that other feasible and less drastic alternatives existed. We
affirm.
2
The appellants point to three characteristics of the instant order it is (1) a

mandatory injunction (2) directed to public officers of an instrumentality of a
state (3) requiring them to perpetuate a social program as providing ample
reason for requiring the court to base its order on a "clear and convincing"
showing of necessity. We agree that these factors are considerations that a court
should weigh heavily in exercising its equitable powers, see Lemon v.
Kurtzman, 411 U.S. 192, 208, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973), but we
cannot agree that a court is powerless to act in the absence of a "clear and
convincing showing" of necessity. The "clear and convincing evidence"
standard governs various kinds of actions, e. g., to prove a charge of fraud or
undue influence or to demonstrate mutual mistake so as to reform an
instrument. See generally 9 J. Wigmore, Evidence 2498 (3d ed. 1940, Supp.
1972). But we know of no principle requiring such a showing as a precondition
to exercising equitable powers in the circumstances presented here. The
appellants' argument confuses two entirely different questions. The first is the
standard the district court should apply in determining whether to grant
injunctive relief. We fully agree with the principles of circumspection cited to
us by appellants as appropriate limitations on the district court's powers. See, e.
g., Alabama Public Service Comm'n v. Southern Ry. Co., 341 U.S. 341, 34950, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Fox v. City of West Palm Beach,383
F.2d 189, 194 (5th Cir. 1967). The second and distinct question is the standard
the appellate court should invoke in reviewing the district court's decision. That
standard is whether the district court abused its discretion in concluding to grant
the relief sought by plaintiffs and county defendants. Deckert v. Independence
Shares Corp., 311 U.S. 282, 290, 61 S.Ct. 229, 85 L.Ed. 189 (1940).
This question has two parts: did the court abuse its discretion in concluding that
an ancillary order was needed to avoid frustration of its original order, and did
it abuse its discretion in choosing the particular alternative it did rather than
other proffered solutions. We consider these seriatim. Apparently there is no
dispute that the jail was near capacity. Thus the crux of the matter is whether or
not the imminent termination of the project could result in increasing jail
occupancy by the alleged amount of 20 to 30 inmates. We observe that even
though this proposition involved numbers, it was not easily susceptible of proof
to a mathematical certainty. The plaintiffs' counsel offered the testimony of Jail
Master Langlois to the effect that the project resulted in reducing cell demand
by 20 to 30 persons, but the court accepted this representation without taking
his testimony. Appellants now argue that had he testified their questioning
would have cast doubt on the method by which the conclusion was reached.
But they made no such specific objection at the time and neither took steps to
call Langlois as their own witness nor urged that he be called so they could
cross-examine him. Courts are entitled, within reason, to use fair, informal
procedures in conjunction with remedial matters of this nature, and absent more
specific objection we find no abuse of discretion here.
4
We are also not impressed with the alleged fallacy itself. The argument claims
that the figure of 20 to 30 inmates came from subtracting the present average
daily population of the jail from the average daily population before the
project's inception in 1972. This allegedly ignored the reductive effect of the
court's intervening order to transfer all females from the jail (20 to 25 females
were involved), and the effect of decriminalizing drunkenness, for which an
average of 50 inmates had been in the jail. The fallacy is so obvious that only
with difficulty could it have been overlooked by competent officials. But we do
not have to rest on that act of blind faith. In its original opinion the district court
found the average daily male population since January 1, 1970, had been
approximately 340 and the average female population had been 20 to 25. 360
F.Supp. at 681. These findings, entered in early 1973, would thus
approximately indicate the average daily population before the project's
inception in mid-1972. Even if the present average daily population of the jail
is assumed to be 256, the maximum number of cells, subtracting 256 from the
sum of 340 and 25 does not produce a number anywhere near 20 to 30. The
difference of slightly more than 100 strongly suggests that appropriate account
was taken of the effect of Judge Garrity's earlier orders on the inmate census.
One further item supported Judge Garrity's conclusion that the Bail Appeal
Project was efficacious. At a hearing held after his oral order but before his
written order the attorney for the county defendants stated that the project had
filed some 1500 bail reduction petitions and had secured some 900 reductions.
The appellants are certainly correct that there is no necessary one-to-one
correspondence between bail reductions and inmate releases, but a reasonable

inference is that many of these prisoners were able to await trial outside the jail.
Depending on the average length of these waits, a figure which we cannot
know with certainty, the beneficial effect on jail occupancy may have been
significant. We cannot conclude that the district court abused its discretion in
finding the program sufficiently efficacious to require its continuation absent
some effective alternative. We also point out that the city defendants are county
commissioners for Suffolk County, Mass.Gen.Laws c. 34, 4, and thus in their
official capacities they are partly responsible for furnishing a suitable jail. Id.
3. See also id. 14; c. 126, 1, 29. Thus the district court could appropriately
require the city defendants to assist in meeting the current crisis. See Inmates of
Suffolk County Jail v. Eisenstadt, 494 F.2d 1196.
6
Thus we turn to the alternatives offered. The appellants concede that it was an
unreasonable alternative simply to release all prisoners in excess of the jail's
capacity. The court expressly rejected that course as antithetical interference
with state judges. The alternatives offered by the anding, (2) ordering transfer
of some 20 federal prisoners from the jail to other institnding, (2) ordering
transfer of some 20 federal prisoners from the jail to other institutions, and (3)
using the Comprehensive Employment and Training Act (CETA) to provide
money to conduct a bail project. Before considering these specific alternatives,
we note that the expense connected with the court's order, some $48,000, is
small in comparison with the suit's total cost and with the city's budget. Where
the differential cost between various alternatives is trivial, as it is here, it would
be rare, if ever, that a court would abuse its discretion by adopting a more
expensive approach if any other factors favored the court's action.
The district court rejected the first alternative because it would logically
necessitate allowing the intervention of those who suffered reduced grants as a
result of the diversion of CCJ funds. The appellants do not attack that
reasoning, but they claim its premise was wrong, because the CCJ had a
surplus which the court could reach. The transcript passage relied on for this
assertion is less than pellucid in support, and a statement to the court by a
member of the CCJ, one Murray, disclosed that two and one-half dollars were
requested from CCJ for every dollar it had available for disbursement. This is
hardly a surplus budgetary picture. 2
Housing federal prisoners at the jail is authorized by 18 U.S.C. 4002 (1970),

which allows the Director of the Bureau of Prisons to contract with proper state
or local authorities for such quarters for periods of three years or less.
Appellants have not given us any indication of the terms of their contract with
the federal authorities, but it would appear that either the contract was
terminable at will or not. In the former case, the city defendants are free to
terminate the contract, now that they know what costs are involved with the
court's alternative, and then seek modification or vacation of the order in the
district court. If it was not terminable at will, we cannot say that the district
court abused its discretion in not aiding the city to breach its contract with the
federal authorities.
9
The third alternative, replacing project lawyers and staff with CETA lawyers
and staff, was rejected by the district court on the ground that maintenance of
the ongoing program was preferable to replacing that program with new,
inexperienced personnel. That continuation of the program was only to be
required for a period somewhat over a year strengthens the force of this
argument. The short-term start-up costs of having relatively inexperienced
personnel take over a program are more significant when the life of the
replacement is relatively short. Since the court's order required continuation of
the project only until June 1976, it was not an abuse of discretion to refuse to
modify the earlier order to allow a new program funded by CETA to be set up
in lieu of the established project.
10
Affirmed.
Of 256 cells available in the jail, as few as three had been unoccupied at one
point prior to the motion. Sixteen were unoccupied on the day of the first
hearing in this matter
Rejection of this alternative might also have been based on the theory that the
CCJ had "a right not to be forced to participate in a rescue operation." See
Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d at 1199

Inmates of The Suffolk County Jail v. Thomas S. Eisenstadt, Kevin H. White, 518 F.2d 1241, 1st Cir. (1975)

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Inmates of The Suffolk County Jail v. Thomas S. Eisenstadt, Kevin H. White, 518 F.2d 1241, 1st Cir. (1975)

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518 F.

INMATES OF the SUFFOLK COUNTY JAIL et al., Plaintiffs,

United States Court of Appeals,

Kevin F. Moloney, Asst. Corp. Counsel, Boston, Mass., with whom

The appellants point to three characteristics of the instant order it is (1) a

correspondence between bail reductions and inmate releases, but a reasonable

Housing federal prisoners at the jail is authorized by 18 U.S.C. 4002 (1970),

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