406 F.Supp. 951 (S.D.N.Y. 1976), 74 Civ. 4773, Vail v. Quinlan

Docket Nº:74 Civ. 4773-LFM.
Citation:406 F.Supp. 951
Party Name:Harry VAIL, Jr., et al. Plaintiffs, v. Lawrence M. QUINLAN, Individually and in his capacity as Sheriff of Dutchess County, et al., Defendants.
Case Date:January 07, 1976
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 951

406 F.Supp. 951 (S.D.N.Y. 1976)

Harry VAIL, Jr., et al. Plaintiffs,

v.

Lawrence M. QUINLAN, Individually and in his capacity as Sheriff of Dutchess County, et al., Defendants.

No. 74 Civ. 4773-LFM.

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

Jan. 7, 1976

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[Copyrighted Material Omitted]

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Mid-Hudson Valley Legal Services Project (Monroe County Legal Assistance Corp.), Poughkeepsie, N.Y., and Greater Up-State Law Project, Rochester, N.Y. (John D. Gorman, Jane E. Bloom, Poughkeepsie, N.Y., K. Wade Eaton and Rene H. Reixach, Jr., Rochester, N.Y., of counsel), for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., New York City (A. Seth Greenwald, Asst. Atty. Gen., of counsel), for defendants Juidice and Aldrich and pro se pursuant to New York Executive Law Sec. 71.

Joel T. Camche, New York City, for defendant Quinlan.

Before LUMBARD, Circuit Judge, and MacMAHON and CANNELLA, District judges.

OPINION

MacMAHON, District Judge.

This three-judge court has been convened, pursuant to 28 U.S.C. § 2281, to hear and determine this action, brought under the Civil Rights Act and its jurisdictional counterpart, 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), by individual judgment debtors and all others similarly situated. Challenging the constitutionality of certain statutes of the State of New York, plaintiffs seek class action determination 1 and money damages, as well as declaratory and injunctive relief.

The challenged statutes, Sections 756, 757, 765, 767, 769-7752 of Article 19 of

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the New York Judiciary Law (McKinney 1968) , implement supplementary or postjudgment proceedings for collection of money judgments. They permit a judgment order, who has failed to comply with a disclosure subpoena concerning his ability to satisfy a judgment debt, to be held in contempt, fined and imprisoned without a hearing.

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We hold that certain of the statutes in question, specifically, Sections 756, 757, 770, 772, 773, 774 and 775, violate the due process clause of the Fourteenth

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Amendment and accordingly that they are void and may no longer be enforced. 3

STATUTORY SCHEME

A creditor, unable to satisfy a money judgment, may compel a judgment debtor to disclose all matter relevant to satisfaction of the judgment. 4 Disclosure is generally effected by requiring the debtor, in response to a subpoena issued by the creditor, to attend a deposition or to supply information by answers to written questions submitted by the creditor. 5 False swearing or failure to comply with the subpoena is punishable as a contempt of court. 6

Procedures by which a debtor is held in contempt are set out in the Judiciary Law and constitute the statutory scheme challenged here. If the debtor does not comply with the disclosure subpoena, an order requiring him to show cause why he should not be punished for contempt will issue solely upon the basis of an affidavit by the creditor's attorney showing that the debtor failed to respond to the subpoena (Sec. 757(1)). If the debtor does not appear for a hearing upon the return date of the order to show cause, the court will make a final order directing that he be punished by fine or imprisonment (Secs. 772, 770). The fine is in an amount sufficient to indemnify the creditor for any loss or injury caused as a result of the debtor's contempt, or, if no loss or injury is shown, in an amount not exceeding costs plus $250 (Sec. 773).

On the basis of an affidavit of the creditor's attorney showing that a demand for payment of the fine has been made and refused, an ex parte warrant is issued committing the debtor to prison until the fine is paid (Sec. 756). The debtor may remain incarcerated for up to 90 days before he is brought before the court for a review of the proceedings and a determination as to whether he should be discharged from imprisonment (Sec. 774). If the debtor is unable to endure the incarceration or to pay the sum of money, he may petition the court for release (Sec. 775), but the burden of proof is on the debtor to show why he should no longer be held. 7

The case of the plaintiff Vail is typical of the plight of the judgment debtor under the challenged statutory scheme. Vail and his wife were the subject of a default judgment for $534.63 entered in favor of Public Loan Company in January 1974. At that time, Vail and his family were on public assistance. On April 22, 1974, Charles Morrow, attorney for Public Loan, caused a subpoena to be served on Vail, requiring him to appear on May 28 before Charles Morrow for the taking of a deposition regarding all matters relevant to the satisfaction of the judgment. Vail did not appear for the deposition.

On the basis of the subpoena, an affidavit of due service, and an affidavit by Charles Morrow that Vail did not appear and that his conduct was calculated to

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and did actually defeat, impair and prejudice the rights and remedies of the judgment creditor, Judge Joseph Juidice of the Dutchess County Court issued an order on July 22 directing Vail to appear at the Dutchess County Court on August 13, to 'show cause why he should not be punished as for contempt for violation of and noncompliance with the said subpoena in that he failed to appear or respond thereto.' When Vail did not appear in County Court, Judge Juidice issued an 'Order Imposing Fine,' which held Vail in contempt and required him to pay $270 to the judgment creditor.

When Vail failed to comply 8 with the Order Imposing Fine, Charles Morrow, on the basis of the papers previously submitted on the application for the order to show cause, an affidavit of due service of the Order Imposing Fine, and an affidavit of Morrow that Vail had not complied, applied for an obtained an ex parte commitment order directed that, without further notice, the sheriff of any county arrest Vail and commit him to the county jail, that he be held in custody until the fine of $270 was paid, together with the sheriff's fees and the disbursements on the execution of the order.

Vail was arrested in his home on October 1 and committed to the Dutchess County Jail. At the time, he had only one dollar to last him until he received his next public assistance check. He and his family owned no property except household furniture and clothing. Vail was released the next day when a relative loaned him $294.25 to pay the fine plus additional costs.

ABSTENTION

A preliminary question for determination is whether we should abstain from deciding the issues raised in this action. Plaintiffs never raised their constitutional claims in state court, although the challenged statutory scheme does provide an opportunity to construe its own laws in an untenable interference with the duty and authority of the state courts to enforce their judgments. Further, defendants cryptically assert that, even if no appeal is available from any or some of the orders of the defendant judges, a debtor in plaintiffs' posture must still exhaust his state appellate remedies. 9

Abstention is a judge-made doctrine based on considerations of federalism and a need to avoid premature constitutional adjudication. It allows a federal court, although having jurisdiction, to decline decision on the merits of the controversy. The doctrine is invoked when determination of a state law issue may resolve or materially alter the constitutional claim. 10

Defendants first contend that since the issues raised here have never been presented to a state court, interests of comity and federalism warrant dismissal of the action. It is clear, however, that when the challenge is to the constitutionality of statutes which are not ambiguous, abstention should not be used to require vindication of a federal claim in state court. 11

The method by which the civil contempt provisions are implemented cannot be in doubt, for each of the representative

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plaintiffs has been subjected to these statutes. The challenged statutes were originally enacted in 1909. They are not ambiguous on their face; nor have defendants suggested a limiting construction by which a state court could resolve the constitutional claim. We think, therefore, that we should not decline to reach the merits of this case under the traditional formulation of the doctrine of abstention.

More forcefully, defendants contend that the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), should bar this section. In Younger, the Supreme Court held that considerations of comity and the reluctance of equity courts to interfere with criminal prosecutions prevented a federal court from intervening by way of an injunctive or declaratory judgment in a criminal prosecution pending in state court. Younger was expended in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482, (1975), to apply to a civil proceeding brought under a state's nuisance statute to enjoin exhibition of obscene films.

Huffman did not extend Younger to apply to all pending state court actions. The Supreme Court characterized the nuisance proceedings as 'more akin to a criminal prosecution than are most civil cases. 12 In Huffman the state was a party to the proceedings because the action had been brought by the county prosecutor. Enforcement of the nuisance statute was found to be in aid of and closely related to, criminal statutes which prohibited the exhibition of obscene materials. The Court, therefore, held Younger to apply to civil proceedings only when intervention would disrupt the very interests which would underlie a statue's criminal laws.

In Anonymous v. Association of the Bar of City of New York, 515 F.2d 427 (2d Cir. 1975), the question was whether intervention in a state disbarment proceeding was comparable to the disruption in Huffman. 13 The court found that it was, noting the characterization of the proceedings as quasi-criminal and the state's special interest in...

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