635 F.2d 1045 (2nd Cir. 1980), 454, Moe v. Dinkins

Docket Nº:454, Docket 80-7676.
Citation:635 F.2d 1045
Party Name:Maria MOE, Raoul Roe, and Ricardo Roe, an infant by his father, Raoul Roe, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. David DINKINS, individually and as City Clerk of New York City, on behalf of himself and all town and city clerks in New York State, and David Axelrod, individually, and as New York State Co
Case Date:December 09, 1980
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1045

635 F.2d 1045 (2nd Cir. 1980)

Maria MOE, Raoul Roe, and Ricardo Roe, an infant by his

father, Raoul Roe, on behalf of themselves and all

others similarly situated, Plaintiffs-Appellants,


David DINKINS, individually and as City Clerk of New York

City, on behalf of himself and all town and city clerks in

New York State, and David Axelrod, individually, and as New

York State Commissioner of Health, Defendants- Appellees.

No. 454, Docket 80-7676.

United States Court of Appeals, Second Circuit

December 9, 1980

Submitted Nov. 25, 1980.

Page 1046

Janet M. Calvo, New York City (Washington Square Legal Services, Inc., of counsel), for plaintiffs-appellants.

Robert Abrams, Atty. Gen. of the State of New York, New York City (Robert J. Schack, Asst. Atty. Gen., George D. Zuckerman, Asst. Sol. Gen., New York City, of counsel), for defendant-appellee Axelrod.

Allen G. Schwartz, Corp. Counsel of the City of New York, New York City (June A. Witterschein, New York City, of counsel), for defendant-appellee Dinkins.

Before KAUFMAN and TIMBERS, Circuit Judges, and PIERCE, District Judge. [*]

IRVING R. KAUFMAN, Circuit Judge:

Federal adjudication of constitutional challenges to state statutes is an arduous task, for the delicate balance between federal and state power must be crafted with a sensitivity responsive to their respective authorities. The Constitution and Congress equip federal courts with authority to void state laws that transgress federal civil rights, but comity toward state sovereignty counsels the power be sparingly used. Accordingly, the doctrine of abstention authorizes our federal courts to refrain from interpreting state law where ambiguities in that law might enable a plaintiff to prevail in the courts of the state. Abstention, however, creates a lapse in the federal protection of civil rights. Accordingly, we are instructed to utilize the doctrine with strict circumspection. Plaintiffs in this case sue to vindicate what they contend to be at the heart of our constitutional liberties, the right to marry and to raise a family without unreasonable social and legal stigma. Their chances of success under state law alone are attenuated at best. The harm they allege is immediate. Abstention is therefore improper, and we reverse the district court's order dismissing the complaint and remand for further proceedings.

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A brief review of the facts is instructive. Raoul Roe 1 was born on March 9, 1962, and Maria Moe was born on March 2, 1965. In late November 1978, Maria became pregnant by Raoul. He was sixteen; she was thirteen. Maria's mother, who is a widow, urged Maria to have an abortion; Maria refused. In April 1979, Maria and Raoul moved into an apartment together, and decided to marry. Raoul's parents gave their permission, but Maria's mother refused. On August 21, 1979, Maria bore a son, Ricardo Roe.

Maria, Raoul, and Ricardo filed suit on March 19, 1980, in the federal district court under 42 U.S.C. § 1983 (1976). Their complaint alleged that the New York statute controlling the marriage of minors, New York Domestic Relations Law § 15, unconstitutionally burdened Maria's and Raoul's right to marry. 2 New York law forbids marriage without a license, 3 and section 15 provides in part:

If it shall appear ... that the woman is under the age of eighteen years and is not under fourteen years of age then the town or city clerk before he shall issue a license shall require the written consent to the marriage from both parents of the minor ... or such as shall then be living .... 4

Beyond the denial of Maria's and Raoul's right to marry, plaintiffs alleged, the New York statute deprived Maria of workmen's compensation benefits, Social Security benefits, and intestate succession rights she might enjoy as Raoul's wife. 5 Further, they claimed that section 15 inflicted all of the social and economic disabilities of illegitimacy on Ricardo. Therefore, time was of the essence in the prosecution of their suit.

Defendants moved to dismiss, contending that the federal court should abstain from adjudication. Judge Motley, in a careful opinion, found section 15 "unclear in a number of respects," and dismissed the action. 6 This appeal followed.


The legal standard for federal judicial abstention has been considered on numerous occasions, and the law is clear. When asked to void a state law on constitutional grounds, a federal court will stay its hand if the state statute is susceptible of two or more constructions, and if one of the interpretations will either save the statute

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or modify the constitutional issue. See Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Pharmaceutical Society, Inc. v. Lefkowitz, 586 F.2d 953, 956 (2d Cir. 1978); Winters v. Lavine, 574 F.2d 46, 69 (2d Cir. 1978); McRedmond v. Wilson, 533 F.2d 757, 760 (2d Cir. 1976). 7 Should the federal court abstain and the state tribunal elect the saving construction, dividends of comity redound. But should the state suit produce an interpretation in which constitutional infirmities persist, the plaintiff is forced, usually years later, 8 to return to the federal court.

Crucial to the abstention decision, therefore, is the ambiguity of the state statute. A clearly-worded law leaves even the most constitutionally-sensitive state court little room to maneuver its way to a saving construction. Remand under such circumstances serves no purpose of comity; it wastes the plaintiff's, the defendant's, and the state court's time, and causes unseemly delay in the federal court adjudication.

The statute before us is clear. No ambiguous words or phrases exist; the parties concur on the import and application of "consent," "parents," and every other material term. They also agree that the statute as written creates a total bar to Maria's marriage so long as her mother demurs. To evade the constitutional analysis that seems to us so clearly mandated, the state poses three alternative constructions of section 15 which might permit Maria and Raoul to marry. The suggestions are quite strained, and none of the three is sufficiently tenable to merit abstention.

First, the state argues New York courts might impute a requirement of "reasonableness" into the parents' decision to give or withhold consent. Such a standard is, of course, not in the statute, and New York courts have never departed from a literal interpretation of section 15. In In re Powers, 96 Misc.2d 183, 408 N.Y.S.2d 761 (Fam.Ct.1978), a widowed mother refused to consent to the marriage of her seventeen-year-old son, and the son sued to secure approval. The Family Court held itself without subject matter jurisdiction, "even were (consent) shown to be unreasonably withheld or refused ...." In Berger v. Adornato, 76 Misc.2d 122, 350 N.Y.S.2d 520 (Sup.Ct.1973), an under-age male whose parents would not consent challenged the constitutionality of an earlier version of the statute's creation

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of different age limits for males and females. The court did not embrace the opportunity to impute "reasonableness" into the parental consent requirement and allow the plaintiff to marry on that ground; instead, it declared the age differential totally unconstitutional. Moreover, where one parent is insane, and therefore presumably unable to give reasoned consent, the permission of that parent is still required. 1964 Op.Atty.Gen. 138. And, the consent of a court-appointed guardian cannot bypass the statutory requirement of parental consent, regardless of the unfairness created by a refusal to grant permission. 1973 Op.Atty.Gen. 144-45.

Second, the state argues that New York courts could read into section 15 a "best interests of the child" standard. This technique, however, has been employed less frequently than the state maintains, and then only in child custody cases. See, e. g., In re Wesley L. III, 72 A.D.2d 137, 423 N.Y.S.2d 482 (1st Dep't 1980). In those instances, the governing statute, New York Social Services Law § 384-b, subd. 1 (McKinney Supp. 1979-1980), contains an explicit direction that "the best interests ... of the child" shall be considered. New York courts have curtailed the application of this standard even in the child custody context. See In re Sanjivini K., 47 N.Y.2d 374, 391 N.E.2d 1316, 418 N.Y.S.2d 339 (1979). Moreover, they have never imputed this language into a statute where the language was by the legislature that passed it.

Finally, the state suggests New York courts might read section 15 to exempt "emancipated minors" from the parental consent requirement. Here too, courts have shown no tendency to stray from the words of the statute toward such an interpretation. In Berger v. Adornato, supra, 350 N.Y.S.2d at 523, the court found the plaintiff to "a mature, emancipated man," but did not find that this status afforded an exemption from the clear words of section 15. Moreover, we note that even if an "emancipated minor" exemption could be read into section 15, it would probably not apply to Maria, for she is not emancipated. New York minors are emancipated by agreement of parent and child, or by unilateral action of the parent. Emancipation is not within the sole power of the child. Sevrie v....

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