Gesicki v. Oswald

• Decision Date: 30 August 1971
• Docket Number: No. 71 Civ. 3276.,71 Civ. 3276.
• Citation: 336 F. Supp. 365
• Parties: Esther Frances GESICKI et al., Plaintiffs, v. Russell G. OSWALD, Commissioner of Correctional Services, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

336 F. Supp. 365

Esther Frances GESICKI et al., Plaintiffs, v. Russell G. OSWALD, Commissioner of Correctional Services, et al., Defendants.

No. 71 Civ. 3276.

United States District Court, S. D. New York.

August 30, 1971.

Herman Schwartz, Edward I. Koren, Buffalo, N. Y., Rhoda H. Karpatkin, New York City, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen. of N. Y., New York City, for defendants; Samuel A. Hirshowitz, Arlene R. Silverman, Asst. Attys. Gen., of counsel.

LASKER, District Judge.

Esther Gesicki, Marion Johnson and Dominica Morelli have all been committed to terms in custody¹ under the Wayward Minor statute, New York Code of Criminal Procedure, §§ 913-a through 913-dd.² They sue under the Civil Rights Act and the Habeas Corpus Act to set aside their convictions, for a declaration that the statute is unconstitutional, and for injunctive relief, and seek to have the case determined a class action. Jurisdiction is predicated on 28 U.S.C. § 1343(3) and (4), as well as 28 U.S.C. § 2254(a). They claim that the statute violates their rights (a) under the due process clause of the Fourteenth Amendment because it is unconstitutionally vague, (b) it is in derogation of the equal protection clause of the Fourteenth Amendment since it punishes the behavior of persons between the ages of 16 and 21 which is not criminal or punishable for persons older than 21 or younger than 16, and (c) under the Eighth Amendment because it imposes cruel and unusual punishment, since it permits commitment under penal discipline of minors who have not been found guilty of a crime, and does not afford them proper treatment.

The plaintiffs presently move for an order convening a three-judge court under 28 U.S.C. § 2281 ff.³

The defendants oppose on the grounds that, since the relief sought is that of habeas corpus, a single judge may decide the case, and that the complaint fails to set forth a substantial federal question.

THE HABEAS CORPUS ISSUE

The defendants contend that, because the plaintiffs seek to set aside their convictions, they may not, under the rationale of Rodriguez v. McGinnis, 451 F.2d 730 (2d Cir., 1971), and Katzoff v. McGinnis, 441 F.2d 558 (2d Cir., 1971), proceed under the Civil Rights Act. While the argument might be sound in other circumstances, it is not applicable here, since the New York Court of Appeals has more than once upheld the constitutionality of the Wayward Minor statute against the attack made by these plaintiffs. In such circumstances, it would be a futility to compel the plaintiffs to exhaust their state remedies (as required by the rule of Rodriguez and Katzoff), and, indeed, exhaustion is not required. United States ex rel. Hughes v. McMann, 405 F.2d 773 (2d Cir. 1968); Smith v. Follette, 69 Civil 5182 (S.D.N.Y.1970); Benton v. Copinger, 291 F.Supp. 141 (D.Md.1968).

In People v. Salisbury, 18 N.Y.2d 899, 276 N.Y.S.2d 634, 223 N.E.2d 43 (1966), the Court of Appeals sustained (without opinion) the constitutionality of the statute against the proposition that it was unconstitutionally vague. Two years later, after the decision of the Supreme Court in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), establishing new standards of due process in juvenile proceedings, the Court of Appeals declined to reconsider the Salisbury decision, observing:

"The court, as recently as 1966, has sustained the constitutionality of the statute (People v. Salisbury, 18 N.Y. 2d 899, 276 N.Y.S.2d 634, 223 N.E.2d 43) against the argument that `morally depraved' was too vague a statutory prescription * * *; and for the reasons which are developed here leading to reversal of these convictions on the merits it is unnecessary to reconsider the constitutional issue." People v. Allen, 22 N.Y.2d 465, 293 N.Y.S.2d 280, 239 N.E.2d 879 (1968).

Thereafter, in People v. Martinez, 23 N. Y.2d 780, 782, 297 N.Y.S.2d 144, 244 N. E.2d 711 (1968), the court again overruled a challenge to the constitutionality of the statute; this time on the grounds that its provisions required the incarceration of wayward minors in penal institutions and violated the equal protection clause of the Fourteenth Amendment and the cruel and unusual punishment clause of the Eighth Amendment.

The latest case to deal with the question is People v. Gregory E. (Anon), 26 N.Y.2d 622, 307 N.Y.S.2d 465, 255 N.E. 2d 721 (1970). There the court refused to rule further on constitutionality, although the constitutional issues were apparently raised.

With such a history of construction of the statute by New York's highest court, the plaintiffs here find themselves in the situation of the petitioner in United States ex rel. Hughes v. McMann, supra, 405 F.2d at 775-776, as to whom the court observed:

"Hughes manifests no desire to resort again to the New York courts. This is understandable since he would have scant prospect of success. * * * We see no reason why Hughes should be put to a further journey through the New York courts that will almost certainly be futile; he is entitled to have his claim passed upon by a federal court without further ado."

With the case in this posture, we see no reason why the claims made under the Civil Rights Act may not be entertained, and accordingly we pass to the propriety of convening a three-judge court and the merits of the claims.

CRITERIA FOR CONVENING A THREE-JUDGE COURT

A considerable body of literature has been generated with regard to the standards by which a single judge should determine the propriety of convening a three-judge court under § 2281. In Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), the Supreme Court stated that the District Court's function in deciding whether to convene such a court is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirement of the three-judge statute.

The "requirements" referred to are that the constitutional attack be against the state statute's general application and that a state officer is named as a defendant. Ince v. Rockefeller, 290 F.Supp. 878, 881 (S.D.N.Y.1968). Those requirements are met here, and the complaint alleges a basis for equitable relief. The thorny issue, however, remains, as it always does: Does the complaint raise a substantial constitutional issue? The Court of Appeals of this Circuit has recently expressed its differences with the view of the Fifth Circuit declared in Jackson v. Choate, 404 F.2d 910, 913 (1968), that "unless it is determined that it was an open and shut case three Judges must pass on the merits even though it means that three more must do so again." Johnson v. New York State Education Dept., 449 F.2d 871 (1971). Johnson nevertheless affirms the proposition that where a case is not open and shut (as it is not here) the search must be, under the rule of California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938), to determine whether the decisions of the Supreme Court and other courts "which are as analogous as possible to the case at hand foreclose the subject." The discussion below indicates that on the subject at hand the decided cases have not "foreclosed the subject."

IS THERE A SUBSTANTIAL CONSTITUTIONAL QUESTION?

Section 913-a of the Wayward Minor statute reads:

"Any person between the ages of sixteen and twenty-one who either (1) is habitually addicted to the use of drugs or the intemperate use of intoxicating liquors, or (2) habitually associates with dissolute persons, or (3) is found of his or her own free will and knowledge in a house of prostitution, assignation or ill fame, or (4) habitually associates with thieves, prostitutes, pimps or procurers, or disorderly persons, or (5) is wilfully disobedient to the reasonable and lawful commands of parent, guardian or other custodian and is morally depraved or is in danger of becoming morally depraved, or (6) who without just cause and without the consent of parents, guardians or other custodians, deserts his or her home or place of abode, and is morally depraved or is in danger of becoming morally depraved, or (7) who so deports himself or herself as to wilfully injure or endanger the morals or health of himself or herself or of others, may be deemed a wayward minor. The interstate compact on juveniles shall apply to wayward minors to the same extent as to minors below sixteen years of age except that the provisions of article four of said compact shall apply only to wayward minors included within (6) hereof."

The plaintiffs here were found to have violated subhead (5) or subhead (6) of § 913-a,⁴ and in dealing with the question of whether the language of the statute is unconstitutionally vague we consider only those provisions.

"Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." United States v. National Dairy Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963), citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

The question before us is whether the language of subheads (5) and (6) is such that the plaintiffs here or persons in their position could reasonably understand what conduct it proscribes. The answer must be in the negative. Whatever the significance of the phrase "morally depraved" may have had at an earlier date of more absolute standards, the mistiness of its contemporary interpretation is such as to make it unusable as a standard of conduct, and certainly such as to raise a substantial question as to whether it is not unconstitutionally vague. If this observation is true of the phrase "morally depraved," it is truer of the alternative phrase "or is in danger of becoming morally depraved." Difficult as it may be for a...