Davy v. Sullivan, Civ. A. No. 3754-N.

• Citation: 354 F. Supp. 1320
• Decision Date: 16 February 1973
• Docket Number: Civ. A. No. 3754-N.
• Parties: Robert J. DAVY et al., Plaintiffs, v. L. B. SULLIVAN, Individually and as Commissioner of Corrections, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

354 F. Supp. 1320

Robert J. DAVY et al., Plaintiffs, v. L. B. SULLIVAN, Individually and as Commissioner of Corrections, et al., Defendants.

Civ. A. No. 3754-N.

United States District Court, M. D. Alabama, N. D.

February 16, 1973.

COPYRIGHT MATERIAL OMITTED

Ralph I. Knowles, Jr., Knox Argo, Tuscaloosa, Ala., Howard Mandell, Montgomery, Ala., for plaintiffs.

Leslie Hall, Montgomery, Ala., for William Baxley.

Herbert H. Henry, Birmingham, Ala., for Sullivan, Thompson and Elliott.

Robert L. Humphries, Birmingham, Ala., for Adderholt and Morris.

Before RIVES, Circuit Judge, and JOHNSON and VARNER, District Judges.

OPINION

PER CURIAM.

In this section 1983 action,¹ plaintiffs challenge the constitutionality of Alabama's criminal sexual psychopath statute, Tit. 15, §§ 434-442 (Recomp.1958), as amended (1971 Supp.),² and seek a permanent injunction restraining defendants from enforcing that law on the ground of its unconstitutionality. The Chief Judge of this Circuit convened a three-judge court pursuant to 28 U.S.C. § 2281.

Alabama's criminal sexual psychopath law provides for commitment of those persons who suffer from a "mental disorder" and exhibit "criminal propensities to the commission of sex offenses" Tit. 15, § 434. The prosecutor may initiate commitment proceedings after the accused is "charged with" a sex offense or after the accused is convicted, but before he is sentenced Tit. 15, § 436.³ Commitment must be preceded by a psychiatric examination Tit. 15, § 434 and a judicial hearing Tit. 15, § 438. After a determination that he is a sexual psychopath, the accused is committed to the control of the Director of the Department of Corrections Tit. 15, § 438 for confinement in "Alabama state hospitals or other appropriate state institutions under the jurisdiction of the department of corrections" until he is "fully and permanently recovered" Tit. 15, § 438.

Plaintiffs raise several serious constitutional objections to the Alabama statute on its face and as applied to them. They claim that:

1) The definition of a criminal psychopath contained in Tit. 15, § 434 is impermissibly vague—constituting a denial of due process.

2) The failure to define criminal psychopath in terms of dangerousness results in a denial of equal protection by creating an overly broad classification.

3) The release requirement of "full and permanent recovery" violates due process by creating an insurmountable barrier to freedom and denies plaintiffs equal protection, since the civil commitment standard of release is less stringent.

4) The interaction of the Act's several sections results in prison confinement without a trial—a clear violation of due process.

5) Alabama's failure to provide adequate and effective medical and mental health care violates due process.

Plaintiffs ask, not only for an injunction barring future commitments under the Act, but also for an order remanding each member of the class for trial or sentencing and requiring that defendants provide adequate care for those committed under the Act.

JURISDICTION

Defendants precede their argument on the merits by questioning this Court's jurisdiction over plaintiffs' claims. Defendants first argue that the named plaintiffs did not exhaust their state remedies prior to initiation of this suit —implying that plaintiffs are circumventing proper procedures and court-shopping.

Plaintiffs' motives for bringing this suit are immaterial; their claims are clearly cognizable in federal court. An action brought under section 1983 to remedy the deprivation of a constitutional right is an independent federal claim, not premised on exhaustion of state remedies. Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Carter v. Stanton, 1972, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569. Although the present case is cognizable in federal habeas corpus, as well as under section 1983, it may be brought under either theory. Wilwording v. Swenson, 1971, 404 U.S. 249, 92 S.Ct. 407, 30 L. Ed.2d 418. Even though plaintiffs seek an injunction here, the federal anti-injunction statute, 28 U.S.C. § 2283, is inapplicable.⁴

The defendants next argue that the issues raised in this case are foreclosed by virtue of Hamrick v. State, 281 Ala. 150, 199 So.2d 849 (1967), appeal dismissed, 389 U.S. 10, 88 S.Ct. 88, 19 L.Ed.2d 10 (1967). In Hamrick the Alabama Supreme Court ruled that the "hearing" required by Tit. 15, § 438 (to ascertain the accused's psychopathy) is "a judicial hearing surrounded by all the requirements of due process." No other provision of the Alabama psychopath statute was attacked by the prisoner in Hamrick, and the court's ruling was clearly restricted to the facial constitutionality of section 438.⁵ The plaintiffs in this case raise significant constitutional objections to other sections of the Alabama Act. The United States Supreme Court's dismissal of Hamrick's appeal for want of a substantial federal question forecloses attack on section 438, but leaves open the issues raised here.

Finally, defendants argue that the principles of comity dictate federal abstention in this case. For reasons which are spelled out in the discussion of the merits of the case, abstention is not here proper.

PROPRIETY OF A CLASS ACTION

The four named plaintiffs brought this action on behalf of that class of persons who have been committed to state institutions as criminal sexual psychopaths by the State of Alabama pursuant to Tit. 15, §§ 434-442, Ala. Code 1940 (Recomp.1958).

Defendants seek dismissal of the suit's class aspect, arguing that the class is too small to make joinder of all members impractical, and that too few questions of law or fact are common to each member of the class.

For reasons to appear subsequently, we hold that the named plaintiffs are proper representatives of their class and that this action can be maintained as a class action.

Ten individuals have been either committed under the contested Act since August 22, 1971, or remain confined today. Those individuals are now either incarcerated, in a mental hospital, or on probation. Of the four named plaintiffs, three (Robert Lewis Poore, Harold Tom Wilson, and Robert T. Davy) remain in the actual or constructive custody of defendants, while the fourth, Robert Lee Williams, has been declared a non-psychopath and discharged.

Title 15, § 441 provides that a person committed to an Alabama institution as a criminal sexual psychopath may be released on probation after a hearing establishing his "full recovery." According to the statute, the probationary period terminates after a "reasonable time." In practice, fully recovered psychopaths often remain on probation for many years. While on probation, each released psychopath is subject, at the initiating court's discretion, to sentencing for the triggering offense or return to the Director of the Department of Corrections for further treatment.

An indeterminable number of persons, who are on probation today, were committed under the Alabama psychopath act and released prior to August 22, 1971. Each of those unknown individuals are legitimate members of the class; their claims are not mooted. Humphrey v. Cady, 1972, 405 U.S. 504, 506-507, n. 2, 92 S.Ct. 1048, 31 L.Ed.2d 394. Thus, the class, which the named plaintiffs represent, includes, not only the ten individuals identified by defendant Sullivan, but also those persons committed and placed on probation prior to August, 1971.⁶

The numerosity requirement of Rule 23(a)(1), F.R.Civ.P., is an important consideration. Members of a small class should not be denied their day in court. See Rippey v. Denver U. S. National Bank, D.Colo.1966, 260 F. Supp. 704. Yet, other factors, including the nature of the cause of action and the location of the members of the class, bear on the propriety of a class action. Where the identity or location of many class members is unknown, and the total membership of the group is indeterminable at the time of the institution of the action, a class action is appropriate. Smith v. Swormstedt, 1853, 16 How. 288, 57 U.S. 288, 14 L.Ed. 942; Lansdale v. Tyler Junior College, E.D.Tex.1970, 318 F.Supp. 529, aff'd en banc, 470 F.2d 659 5 Cir. 1972. The facts in the instant case compel that procedure.

Allowing the class action is further warranted because, where plaintiffs seek not to collect monetary damages but to strike down a constitutionally offensive statute, the requested relief (if granted) will necessarily affect all persons subject to the statute—whether formally combined as a class or not. Recognizing this fact, the Fifth Circuit stated in a pre-1966 action to enjoin state segregation laws for common carriers that,

"We find it unnecessary to determine * * * whether this action was properly brought under Rule 23(a), for whether or not appellants may properly represent all Negroes similarly situated, the decree to which they are entitled is the same. * * * * The very nature of the rights appellants seek to vindicate requires that the decree run to the benefit not only of appellants but also for all persons similarly situated."

Bailey v. Patterson, 5 Cir. 1963, 323 F. 2d 201, 206, cert. denied, 376 U.S. 910, 84 S.Ct. 666, 11 L.Ed.2d 609. See also Jenkins v. United Gas Corp., 5 Cir. 1968, 400 F.2d 28. Thus, as a practical matter, it is immaterial that certain potential class members are satisfied with their present status and oppose the suit. If the statute is struck down, all those similarly situated will be equally affected. Excluding the hypothetical class members about whom our dissenting brother is worried would not realistically immunize them from any of the effects of our decree in this case. Sullivan v. Houston Independent School Dist., S.D.Tex.1969, 307 F.Supp. 1328; Fujishima v. Board of Education, 7 Cir. 1972, 460 F.2d 1355, 1360.

In determining whether the circumstances of any given case meet the requirements of Rule 23(a)(3) and (4), it must be kept in mind what the...