*1 meaningful finality judgment would disproportion- more
largely disappear. Far BAKER, Plaintiff-Appellee, F. Donald for far penalties ate have been suffered v. egregious of our rules less violations Henry WADE, District See, Explora- e.g., Hunt BP procedure. Etc., Texas, al., County, Dallas et Ltd., F.2d 880 Company (Libya) tion Defendants, Calendar, Cir.1985) (Summary unpub- lished) of dura- (simple error in calculation Danny Hill, E. Attorney, 47th District resulting one-day appeals period tion Defendant-Appellant. filing appeal, disqualifying late of notice of No. 82-1590. judgment, insuffi- appeal from million $40 Appeals, States Court of United 60(b) relief); Henry grounds for Rule cient Fifth Circuit. (5th Cir.1982) (six- Estelle, F.2d 407 by pro petition- Aug. 26, day appeal late notice of se corpus; er bars review of denial habeas Rehearing En Banc Denied cause not sub- probable certificate of does Oct. unrequested under stitute extension Estelle, Fed.R.App.P. 4(a)(5)); Birl v. (5th Cir.1981)(two-day late notice
F.2d 592 review of denial of habeas bars
corpus; pro justify does dis- se status finding neglect
trict court’s excusable 4(a) Fed.R.App.P. prior
appropriate to Rule amendment); Wyzik Employee
to 1979 F.2d 348 Plan Crane
Benefit curiam) (1st Cir.1981) (per (appeal notice ineffective). wholly late day
filed one plight we of a sympathetic
While are prejudiced by attorney’s his
client inadvert- proper negligence, recourse for
ence client, aggrieved as the Court Link, malpractice seek dam-
noted is to
ages attorney. from at 1390n.
CONCLUSION reasons, foregoing
For we dismiss purported appeal from the November judgment, Septem- and we affirm the of the district court
ber Retain.”
denying appellant’s “Motion to PART; IN
DISMISSED IN AFFIRMED
PART. *2 Bundren,
William Charles Roderic G. Dallas, Tex., Steakley, for Hill. Campbell, Jr., Dallas, Tex., Donovan for Against amicus Doctors A.I.D.S. Barber, Dallas, Tex., James C. plain- for tiff-appellee. Coleman, Jr., Houston, Tex.,
Thomas J. for Rights amicus Texas Human Founda- tion. Rubenfeld,
Abby Hunter, R. Nan D. New City, York Legal for amicus Lambda De- Fund, fense & Education Inc. Graff, Francisco, Cal., Leonard San for Gay Rights amicus National Advocates. Murdoch, Cal., Robert Angeles, R. Los Advisory amicus Medical Council of Project/Los Angeles. Aids Keller, Mary Atty. Gen., Austin, F. Asst. Tex., for State of Tex. first himself to CLARK, standing exposing without Judge, GOLD Chief Before enough exists a REAVLEY, It is there GEE, RUBIN, POL arrest.
BERG, prosecution. Babbitt v. RANDALL, JOHNSON, threat TATE, WIL credible ITZ, Union, National GARWOOD, JOLLY, Farm Workers HIGGIN- United LIAMS, JONES, DAVIS, BOTHAM, Cir HILL and Judges.*
cuit *3 hear Coming jurisdiction to our to REAVLEY, Judge: Circuit entry as of the of the of appeal, date Hill’s Baker, homosexual, sought a F. Donald Hill was a judgment court’s the district 21.06 that Tex.Pen.Code Ann. § declaration by that enjoined of the member was 1974) Section (Vernon is unconstitutional. attorney was a judgment, and as district sex “engag[ing] in deviate proscribes 21.06 repre under law to proper official Texas of with another individual intercourse ual Const, art. 5 the state. See Texas sent The district court sex.” Id.1 the same 21; Gary, 163 Tex. State § constitu 21.06 the that section violates held Shepperd v. Alan S.W.2d pro privacy equal and protections of tional iz, An (Tex.Civ.App. S.W.2d —San Wade, F.Supp. Baker v. tection. writ). deadline for tonio no As the Hill, district (N.D.Tex.1982). Danny E. the Hill appeal approached, of giving notice a member of attorney County Potter of days notice. later the filed his own Several class, sought appeal the to the defendant timely attorney general of Texas filed a panel A of this judgment. court’s district appeared issue of It then that the notice. Hill not have the held that did constitutionality Texas statute the appeal. prosecute the intervene to placed appellate before court. would be the Cir.1984). Wade, F.2d 236 Baker However, attorney the several months later and now granted rehearing en banc We to general filed a motion in this court with proper and that appellant is a that Hill hold this appeal. When Hill learned of draw his 21.06 is constitutional. section fact, in the Su sought he a mandamus attorney the preme Court of to order 1. Jurisdiction the which the general pursue argue and Hill that the other Both Baker adequate responded that Hill had an latter Hill ar- court. properly not before this is by ap remedy law means of the direct chal- standing to gues that Baker lacks case, out to pointed federal peal of the statute. Baker maintains lenge the Hill has al Texas court: “Petitioner the judg- appeal the district court Hill could timely appeal the ready filed a notice of reject arguments. both ment. We they very the seek Fifth decision Circuit appealed.” to have in, engaged has and states Baker in, filed to intervene promptly homo- a motion engage continue to that he will repre- as the class proscribed by 21.- and to substitute himself activities section sexual sentative, court and first with district representatives The defendant class judge A subsequently with this court. section 21.06 agreed that violations of granted Under they prose- Hill’s motion. and that will prosecuted the order probable peculiar facts this case violations where cute future justified because granting intervention was When a criminal statute cause exists. requirements plaintiff may position Hill’s satisfied challenged, a demonstrate * 21.01(1) (Vernon Goldberg, Judge judge § this cir- son." Tex.Pen.Code Ann. now senior cuit, panel 1974). participating as a member of 46(c) deciding U.S.C. § initially homosex- public 21.06 condemns §as Insofar conduct, overlaps Ann. Tex.Pen.Code ual (Vernon 1974), proscribes, 21.07 "any is defined as 1. Deviate sexual intercourse acts, among sexual inter- other sexual deviate any part genitals of one between contact places. public course per- of another person and the mouth or anus 23(d)(2) 24(a)(2). upholding both Fed.R.Civ.P. His trict court Virginia sodomy he knew that his motion came as soon as statute similar interests, i.e., by judgment, affected Texas statute which is attacked in the unconstitutionality of present declaration of suit. We consider the decision of injunction against the statute and the its upon us binding the Court Doe be enforcement, pursued. would be He would by the reasons stated the District of Co- seriously prejudiced were he not allowed Zech, in Dronenburg lumbia Circuit intervene, allowing whereas (D.C.Cir.1984), by prejudiced no As state proceed one. Judge Kravitch in her dissent to the Elev- empowered official Texas law to enforce opinion enth Circuit in Hardwick v. Bow- laws, impair- criminal its his interest and ers, (11th Cir.1985). ment the district can- court’s There can be no but that the deci- repre- questioned. adequacy of not be sion of the Court in Doe was interests, sentation of intervenor’s and es- case, standing merits not on the *4 ordinarily pecially of the is those plaintiffs bring the to the suit. We hearing require that and deter- issue would authority controlling should follow that un- In mination the district court. this case Supreme til the itself Court has issued an rejected where the court has bind- district unequivocal longer statement that Doe no ing Supreme authority, the Court circuit speculate, controls. We refuse to on the court is entitled conclude a matter of to writings of the basis cited to us the those inadequately law that interests were appellee, about the might what Court do represented by those to pursue who failed today on this issue. the and that the seek- state officer ing proper party to intervene was a to do Equal B. Protection Airlines, so. See United Inc. v. Mc Donald, 432 97 S.Ct. 53 engag Because we that have held L.Ed.2d 423 Stallworth Monsan ing in homosexual conduct is not constitu (5th Cir.1977); to F.W. tionally protected liberty interest and be Woolworth Co. v. Miscellaneous Ware any cause Baker has not cited hold cases Union, housemen’s Local hold, ing, and we to refuse that homosexu (7th Cir.1980), 1204 cert. 451 U.S. suspect als or quasi-suspect constitute 324 68 L.Ed.2d classification, the standard of is review rationally whether section 21.06 is related Constitutionality of Section 21.06 legitimate to a state end. McDonald v. The district court held that section 21.06 Commissioners, Board Election pri- violated Baker’s constitutional to 802, 807-09, 1404, 1408, 89 S.Ct. vacy equal protection the law. (1969). In strong view of the Wade, F.Supp. 1121, 1141, Baker v. objection conduct, to homosexual which has (N.D.Tex.1982). dis- assails prevailed past in Western culture for the holding trict grounds court’s on the that it centuries, seven say we cannot that section give binding precedent fails to effect to “totally pursuit 21.06 unrelated improperly expands princi- constitutional of,” id. at 89 S.Ct. at ples. agree. We 745, implementing morality, permissi Parker, goal, ble state Berman v. 348 U.S. Right privacy
A.
TATE, and Cir- greater case in of this somewhat detail. dissenting. Judges, join, cuit complaint named as defendants Lee uphold the Determined to constitutionali- Holt, Dallas, Texas, City Attorney for obstacles ty of a Texas statute whatever Wade, Henry Attorney the District and for tramples way, majority opinion bar County, capacities, Dallas in their official procedural par- rule it No every considers. sought declaratory judgment a that the and pursued appeal, but ty to the suit has Later, Texas statute is unconstitutional. recognizes majority opinion certify Baker filed a a defendant motion a by a member who was not filed class responsible enforce- class of officials for representative at the time he filed his class ment of the statute. appeal, permits a so-called intervention heard, appeals in was the Attor- filed the court of the same Before motion sought only ney was notified of the class to intervene General Texas member who 9-10, Appellant dictional Doe Statement Attorney, 425 U.S. Commonwealth's 2403(b).1
suit, five, pursuant sought At and he had to U.S.C. never to intervene. § Holt, Nonetheless, the district court instance filed a October Hill and the granted appeal. time, the State Texas Attor- notice of At that no named ney to intervene for General “leave sought party appeal. days had Four presentation argument of evidence and for Attorney later the General of the State of on the of appeal Texas filed notice on behalf of 21.06,” and the State of Texas filed what § Then, any the State of Texas. before fur- “Response it titled a of the State Texas” court, proceedings Attorney ther in this complaint. city Holt’s assistant at- notice General withdrew his Curtis, torney then wrote Thomas A. unsuccessfully attempted Hill then to have Attorney County, District of Potter Hill’s the Texas Court mandamus the office, predecessor thirty-nine other and General, on March officials, notifying each of the suit pursue force him to his Fifth ap- Circuit possibility and the of certification of a de- peal. offering and an oppor- fendant each Hill filed next two motions the district tunity to intervene. Curtis did not seek April court on 1983. One was a motion district, nor intervene did other Texas to intervene and to “substitute” himself as county, city then, attorney. Only representative,2 other was a defendants, with the consent of the was the motion to set aside the final case certified as defendant class action reopen the evidence. These motions were 23(b)(2) under Rule the Federal Rules April acted on the district court until composed Civil Procedure. The class was 3, 1984, year later. The correctness of district, county city attorneys of “all that court’s decision is not now before us. responsible the state of Texas for the en- forcement of Texas Penal Code Ann. 21.- While the district court motions were still 06,” represented by Holt and Wade. however, pending, Hill filed motion this The order named as lead class counsel court to intervene and “substitute” himself city attorney Holt’s assistant Joe Werner representative.3 motion, as class In that and as associate class counsel Wade’s as- explicitly acknowledged that “[o]n *6 attorney sistant district C.J. Baldree and April appellant filed a Motion to general Lonny attorney state assistant Representa- Intervene and Substitute Class The properly Zwiener. class was certified in trial tive the court. The trial court has (b)(2) aas class the because suit involved not ruled on the On Motions Au- [sic].’’ only question a generally applicable to the gust judge granted a of this court class. “appellant’s to motion intervene and substi-
The judgment representative.” district court rendered a tute class To the extent declaring evidence, the statute may called, unconstitutional and if be thus was enjoining its September motion, enforcement on support offered in of the it consist- Danny then was neither a ed sup- of assertions in Hill’s brief in representa- named nor port defendant a class of the motion filed this court. 2403(b) subject 1. 28 § U.S.C. reads as follows: party to all liabilities of a as to action, suit, any necessary prop- proceeding In costs the extent a or in a of for any presentation the relating United States to a State er the which or of facts law officer, agency, employee a question constitutionality. thereof is not of party, any wherein of affecting Procedurally, of public request statute that State Hill’s motion was not a inter- question, est is drawn in the court shall certi- for substitution under Fed.R.Civ.P. but was a fy State, attorney general such fact to the of the repre- motion to intervene and be named class permit and shall the State to intervene sentative under 23 and Fed.R.Civ.P. 24. See 7A evidence, presentation of if evidence Miller, Wright & C. A. Federal Practice and case, otherwise gument in admissible and for ar- Procedure at 638 question constitutionality. on the shall, subject applicable pro- The State to the supra See note 2. law, rights party visions have all of a recognition a motion to intervene by its argument of before oral Two weeks by on a filed or acted district case, Hill’s motion never trial court denied court, adequacy represen- representa- saying, “The class and substitute intervene interests, espe- the final of intervenor’s to set aside tation and his motion tive It ordinarily evidence. an reopen cially those judgment and require hearing shown that and deter- Hill had not issue that would found that inade- were representatives by mination the district court.” The ma- current class repre- however, that, adequately on, goes or that he could to assert quate jority granted law, Hill leave'to case, It sent the class. is one of motion, however, pre- if he were dixit, his cited ipse refile for the three cases sheer showing. From the pared ambiguous to make such proposition, with the for this to reconsid- of a motion reference, “See,” trial court’s denial provide support no for it appealed er, has since been that decision interests of a Whether the whatsoever. yet not heard. appeal has been but the inadequate- have been intervenor would-be represented and whether the interests of
ly
he
have also
a class of which
is member
II.
inadequately represented are factual
he
Hill filed his notice
When
court,
by
to be resolved
a trial
questions,
He had no
party to the case.
not a
was
questions
not
of law.
does not hold
majority
The
appeal.
properly lodged, for to
appeal was
that his
Airlines,
McDonald,6
Inc. v.
In United
mem-
recognize
any
do so would
support
cited in
the first of the cases
appeal
may
his own motion
ber
admittedly extraordinary recog-
this court’s
affecting the class.
adversely
intervenor,
Supreme
nition of Hill as an
Instead,
jurisdic-
court has
it finds that this
the timeliness of a motion
Court considered
“[ujnder the
appeal
because
tion of
in the district court for
intervene filed
grant-
the order
of this ease
peculiar facts
that court’s earli-
purpose
appealing
Thus,
justified.”4
was
intervention
ing
certification, and
of class action
er denial
by Hill’s motion
jurisdiction is created
our
court had denied the
more. The district
no
only by Hill
filed
intervene
an
had earlier denied
to intervene and
motion7
himself,
nine months
coming
the motion
The Su-
for class certification.
a motion
the notice of
after
that,
record made
held
on the
preme Court
court, the motion to intervene
in the district
conveniently overlooks
This conclusion
purpose
appealing the district
for the
does
question whether
intervention
certifi-
denial of class action
court’s earlier
require
subsisting
very nature
its
cit-
timely.
Court
was
An inter-
cation
to intervene.
action
court deci-
of lower federal
a suit or
ed a number
does not create
venor
definition
*7
every
opinion.8 In
consistent with its
in
action that
sions
appeal; he intervenes
an
an
these,
to intervene was
a motion
majori-
one of
already
undertaken.
has
by the district court.9
in and ruled on
problem is created
filed
recognize that a
ty does
added).
Nesbit,
(S.D.N.Y.1942); Pellegrino
(emphasis
v.
203 F.2d
Opinion,
at 291
4.
769 F.2d
(9th Cir.1953); Hodgson v. United Mine
463
118,
(D.C.Cir.1972);
Workers,
F.2d
129
473
(emphasis supplied).
5.
Id.
175,
Hobson,
(D.C.Cir.
v.
408 F.2d
Smuck
Allen,
(D.C.Cir.
1969);
385,
2464,
Zuber v.
387
862
U.S.
97
53
6. 432
29-30,
Hansen,
18,
1967);
44 F.R.D.
n.
Hobson v.
(D.D.C.1968); Wolpe
Poretsky,
10
777,
denied,
(D.C.Cir.),
65
cer.
11.
Id.
at 260.
(citation omitted).
17. Id. at 1124-25
(7th
denied,
12. Cir.1980),
cert.
451
937,
2016,
(1981).
U.S.
18. McKenna v.
15. Id. at 1287-88.
297
proceedings
to inter- of the district
the action below
no notice of
had
opposition to his
there was no
vene when
merits of its decision should be considered
in these
appeal.20 Even
intervention on
appeal is heard.
when that
already
however,
had
cases,
appeal
an
action,
into which
party
taken
III.
intervene, and no
nonparty sought to
in the
pending
were
membership
to intervene
motions
the class does not
Hill’s
courts.
lower
meeting
requirements
him
relieve
from
24(a)
Only if
Rule
for intervention.26
precluded from
is not
A class member
requirements may he in-
Hill meets those
so,
judgment. To do
intervening after
party to this case.
tervene as a named
however,
right in
timely assert his
he must
application is
If his
the district court.21
may
A
member
intervene without
class
denied,
appeal from the order
may
he
then
representatives. He
displacing the class
appeal
If no other
denying intervention.
however,
another, and differ-
may,
choose
taken,
Federal Practice
Moore’s
has been
ent,
may
desig-
he
seek to have the
course:
must,
a no-
states,
probably
file
“may,
he
representatives
nated
removed for
class
judgment from
from the
appeal
tice of
adequately
represent
failure
class
time
appeal
he seeks to
within
designated
himself
as
and seek
have
Then, “if the
by Rule 4a.”22
prescribed
dispute
representative.
does not
denying
the order
appeals
reverses
representatives adequately
that
the class
intervention,
the mer-
proceed
with
will
represented
23
the class in the trial court.
hand,
it affirms
the other
its.”
On
“[i]f
inadequacy
His sole assertion of
is their
intervention,
it will dismiss
denial of
representa-
The class
failure to
the merits on
appeal from
factor,
appeal
failure to
is a
but
tives’
standing.”24
ground of want of
factor,
repre-
deciding
whether their
to the one
a case similar
Faced with
adequate.27 Hill has
sentation is
never
court, the District of Columbia
before
by failing
appeal they
demonstrated
abeyance
appeal
held
Circuit
adequately
protect
“fully
failed
the trial court for its
the case to
remanded
whole,
as a
as
the interests of the class”
to intervene.25
determination of
23(a),
qualified by
Rule
required
Rule
case,
considered
district court has
In this
rules,
23(b)(2), the class action
or that as
it,
motion,
from
decided
rule,
24,
validity required by Rule
the intervention
decision has been taken.
Lucas,
1228,
Moore,
supra
24. 9
Bursey,
J.
B. Ward & J.
note
20.
F.2d
United States v.
515
See
203.06,
3-23;
(5th Cir.1975).
Pennsylvania 21
at 3-22 to
& 24
¶
1238
n.
cf.
501,
Rizzo,
(3d Cir.), cert. denied
530 F.2d
508
Moore,
Lucas,
nom.,
& J.
Moore’s
Pennsylvania,
J.
B. Ward
See 9
Fire
Union v.
sub
Officers
203.06,
¶
(1985);
921,
2628,
Federal Practice
at 3-21 to 3-23
U.S.
S.Ct.
30. See New Pub. Orleans Inc. v. United Hutto v. Fin- (5th Cir.) Pipe Gas Line 678, 699-700, ney, 437 U.S. (en banc), nom., cert. denied sub Morial v. Unit- Texas, 57 L.Ed.2d Crane v. —Co., -, Pipe ed Gas Line (5th Cir.1985), reh'g (5th Cir.1985).
299 General, Attorney Whether the District reply banc brief. as- states his en Wáde, City Attorney Attorney have Holt that official interests been serts his wisely rep- have acted or well inadequately represented by the interests Attorney in the the State or interests of their constit- and the State’s Gen- resentatives uents, questions proof, slight, by The however are to be decided burden eral. Texas not it. electorate and institutions of on him.35 He has borne
Texas not government.40 prop- It has IV. erly they inadequately shown represented the of the interests State that founding Republic, of the Soon after the they elected were to serve or interests Supreme pow- that the Court indicated they appointed of the class were judicial review should be exercised er represent. From permit the decision to reluctantly, only it is because essential Hill, Danny in his capacity official as Dis- the decision of the case before federal County, trict of Potter one of 254 because Constitution and counties, to intervene on States, law;s “Supreme of the United prosecute respectfully this I dis- Land,” require justifi- it.36 The Law sent. judicial cation for federal review of the legis- federal or state princi- upon rests these lative enactment corollary,
ples. As a Court espoused and this court has followed
has prudential principle that a federal court not
should not and will reach constitution- it can its decision al if rest DALLAS, N.A., INTERFIRST BANK grounds.37 As we nonconstitutional stated Plaintiff-Appellant, “[hjowever Ramsay Bailey,38 v. novel v. maybe interesting these constitutional America, UNITED STATES claims, duty is our decide case on Service, Internal Revenue grounds possible.”39 principle if other Defendants-Appellees. applies equal force whether decision 84-1412, Nos. 84-1571. uphold reject on the merits would consti- tutionality. judicial If is a restraint doc- Appeals, States Court of United trine invoked to achieve a desired re- Fifth Circuit. ignored following it sult but to be when Aug. 26, 1985. expedient, it ceases to would be but another principle and becomes rational- judges may
ization achieve their
purpose.
474,
Workers,
Estelle,
(5th Cir.),
v. United Mine
597 F.2d
478
cert.
Trbovich
404
v.
See
cliff
denied,
10,
630,
528,
10,
143,
868,
U.S.
n.
92 S.Ct.
636 n.
538
30
444 U.S.
L.Ed.2d
62
686,
Viterna,
(1972);
(1979);
Vance,
L.Ed.2d
n. 10
Bush v.
694
93
Universal Amusement Co. v.
350,
(5th
1984).
159,
(5th Cir.1978) (en
banc),
740
355
Cir.
aff’d,
166
308,
1156,
445
100
63
U.S.
S.Ct.
L.Ed.2d 413
Madison,
(1 Cranch)
Marbury
See
v.
U.S.
5
706,
(5th
(1980); Ramsay Bailey,
v.
707
137,
(1803);
v.
37. See Oil Co. Gulf U.S. S.Ct. L.Ed.2d S.Ct. Court, Municipal Army Rescue 331 U.S. Id. at 707. 568-75, 1409, 1419-23, L.Ed. 91 TVA, Ashwander Carr, 466, 482-84, 40. See Baker v. 288, 346-48, 80 L.Ed. J., 7 L.Ed.2d (1936) (Brandeis, concurring); Rat-