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BLAIR v. SHANAHAN

January 30, 1996

CELESTUS BLAIR, JR., Plaintiff,
v.
STEVEN SHANAHAN, individually and in his official capacity, et al., Defendants.



The opinion of the court was delivered by: ORRICK

 This case is before the Court on remand from the Ninth Circuit to determine (1) whether to allow the State of California ("the State") to intervene in the action, and (2) whether to vacate the Court's judgment declaring § 647(c) of the California Penal Code, the anti-panhandling statute, unconstitutional. For the reasons set forth herein, the Court grants the State's motion to intervene and vacates the declaratory judgment.

 I.

 Plaintiff, Celestus Blair, Jr. ("Blair"), brought this civil rights action under 42 U.S.C. § 1983 against defendants, five San Francisco police officers *fn1" and the City and County of San Francisco ("the City"), after he was arrested several times for panhandling in violation § 647(c) of the California Penal Code. The State intervened for the limited purpose of addressing the constitutionality of § 647(c). See 28 U.S.C. § 2403(b).

 At the time of the action, Blair was no longer a panhandler and there was little prospect of his returning to begging in the future. Blair v. Shanahan, 775 F. Supp. 1315, 1319 (N.D. Cal. 1991) ("Blair I"). The Court nevertheless exercised jurisdiction over Blair's declaratory judgment claim, despite his lack of a present personal stake in the action, because there was an intertwined claim for damages in which Blair clearly did have a personal stake. See id. (citing Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam)). The Court granted Blair's motion for a declaratory judgment, ruling that § 647(c) is unconstitutional on its face under the First and Fourteenth Amendments. Id. at 1329.

 After the Blair I decision, a settlement was reached between Blair and the City in which the State did not participate. The Court conducted a hearing on the City's offer of judgment under Rule 68 of the Federal Rules of Civil Procedure and expressed its concern that the judgment might render the action moot, thereby precluding an appeal of the declaratory judgment. At the time, the City contended that an appeal would remain viable. On January 2, 1992, the Court entered judgment in the case pursuant to the offer of judgment.

 Shortly afterwards, however, the City, joined by the State, made a motion under Rule 60(b) of the Federal Rules of Civil Procedure to modify or vacate the judgment, apparently fearing that the settlement of Blair's damages claim had indeed mooted its appeal. The Court refused to vacate the offer of judgment, finding no equitable basis for doing so. Blair v. Shanahan, 795 F. Supp. 309, 311 (N.D. Cal. 1992) ("Blair II"). The Court also ruled that the State had no standing as an intervenor under 28 U.S.C. § 2403(b) to bring and argue such a motion. Id. at 317-19.

 The fears about mootness were well-founded. The Ninth Circuit affirmed the Blair II decision, but dismissed the City's appeal of the Blair I decision. Blair v. Shanahan, 38 F.3d 1514 (9th Cir. 1994) ("Blair III"). The Court of Appeals concluded that it lacked Article III jurisdiction over the City's appeal from the declaratory judgment because Blair's claim for damages had been settled, leaving Blair with no personal stake in the action and eliminating any live case or controversy to support appellate jurisdiction. Id. at 1519-20. The Ninth Circuit remanded the case in order to allow this Court to determine whether vacating the declaratory judgment would be appropriate given the mootness of the action. Id. at 1521.

 The City now urges the Court to vacate its Blair I decision, which Blair opposes. The State moves to intervene. Assuming it is allowed to do so, the State joins the City's motion and argues that vacatur is appropriate.

 II.

 A.

 As noted above, the State intervened in the Blair I action pursuant to 28 U.S.C. § 2403(b), which allows intervention by the State "to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality" of a state statute.

 In Blair II, however, the Court ruled that the State had no standing to challenge the Rule 68 offer of judgment because that determination had nothing to do with the constitutionality of § 647(c), the only issue on which the State could be heard under the limited scope of intervention provided by § 2403(b). 795 F. Supp. at 319. The Court of Appeals affirmed the Court's holding. Blair III, 38 F.3d at 1522.

 The State now petitions the Court again for leave to intervene and to file a brief in support of vacatur. The State argues that it has a "substantial" interest in federal litigation affecting the constitutionality of its statutes. See Maine v. Taylor, 477 U.S. 131, 136, 91 L. Ed. 2d 110, 106 S. Ct. 2440 (1986).

 The State contends that intervention of right, presumably under Rule 24 of the Federal Rules of Civil Procedure, is proper where the State's briefing is necessary to present the facts and law relating to the question of constitutionality and where the issue of vacatur bears directly on the State's substantive right to intervene and argue the constitutionality of its statutes.

 Rule 24(a)(1) provides that "anyone shall be permitted to intervene in an action . . . when a statute of the United States confers an unconditional right to intervene . . . ." Fed. R. Civ. P. 24(a)(1). The State, however, does not meet the requirements of § 2403(b) because the vacatur issue is unrelated to the constitutionality of § 647(c). Cf. Blair III, 38 F.3d at 1522 (affirming the Court's holding that the State lacked standing because whether to vacate the consent judgment was unrelated to the constitutionality of the anti-panhandling ...


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