APPEAL OF THE WEEK: FEDERAL JUDGE TOLD TO GET A GRIP ON SUIT.

The Eighth U.S. Circuit Court of Appeals has sent a decades-old class action with no class representative back to a lower court with instructions to take decisive control of the case.

"We urge the district judge to take a firm grip of this aged litigation, to deal promptly and decisively with Kifer's motion to withdraw, and to make sure that the plaintiff class has a representative," Judge Richard A. Posner wrote for the three-judge panel in David A. Kifer v. Brad Ellsworth et al. (02-4072).

Almost a quarter century ago, a class action was filed alleging conditions in the Vanderburgh County (IN) Jail violated the Eighth Amendment's prohibition against cruel and unusual punishment. The suit sought only injunctive relief.

A class of current and former inmates was certified, and in 1994 a settlement was entered in U.S. District Court for the Southern District of Indiana, Evansville Division, with the court retaining jurisdiction to enforce it.

Five years later, however, dissatisfied inmate David Kifer retained a lawyer from the Indiana Civil Liberties Union who began negotiations with jail officials. "Kifer became dissatisfied with him and filed a flurry of motions" even though he was already out of jail, Posner noted.

The motions were denied on grounds Kifer lacked standing.

Meanwhile, the ICLU lawyer went ahead anyway, negotiating a further settlement. Judge Richard L. Young issued an order saying, "The court now ORDERS this case to be administratively closed until the filing of the final settlement agreement."

"So far as we are aware, no such agreement has been filed," Posner wrote for the panel hearing Kifer's appeal.

"The case is rich in puzzles. If as appears Kifer was named as a plaintiff when he hired the lawyer, although without benefit of a formal order to that effect, how could he intervene? A party cannot intervene in his own case, since the purpose of intervention is to become a party," Posner wrote.

"It is true that Kifer had moved earlier to withdraw from the litigation, but the motion had not been granted. It is also true that he had left the jail by the time he filed the motion to intervene, and so his claim as a class member was moot, but the mooting of the class representative's personal claim does not bar him from continuing to represent the class," he wrote.

"Moreover, although eventually Kifer's name was eliminated from the captions of court documents, no other class representative has been designated," he added; "throughout, the plaintiffs are designated only as 'Vanderburgh County Jail Inmates.' Yet a class action suit cannot proceed in the absence of a class representative . . . so maybe Kifer still is that representative - in which event the motion to intervene was moot when made," Posner wrote. "We also do not understand what the district judge meant when he said that the case was 'administratively closed.' Clearly the case was not over with," he continued.

"Kifer's appeal from the denial of his motion to intervene is moot, because . . . he cannot benefit from an order to improve conditions in a jail in which he is no longer being held," Posner said.

The appeal in this "procedurally confused case" must be dismissed, Posner said, but "we write in hope of heading off future such tangles."