Bedrosian v. Mintz
| Decision Date | 20 June 1975 |
| Docket Number | D,No. 989,989 |
| Parties | George BEDROSIAN et al., Plaintiffs-Appellants, v. Joseph MINTZ, Administrator, Erie County Bar Association Aid to Indigent Prisoners Society, et al., Defendants-Appellees. ocket 75-7099. |
| Court | U.S. Court of Appeals — Second Circuit |
Herman Schwartz, Amherst, N. Y. (Edward I. Koren, Amherst, N. Y., on the brief), for plaintiffs-appellants.
Richard F. Griffin, Buffalo, N. Y. (Moot, Sprague, Marcy, Landy, Fernbach & Smythe, Buffalo, N. Y., on the brief), for defendants-appellees Joseph D. Mintz, Administrator, and Erie County Bar Association Aid to Indigent Prisoners Society, Inc.
Ralph McMurry, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for defendant-appellee Carman F. Ball, Justice of the Supreme Court of the State of New York.
Before KAUFMAN, Chief Judge, OAKES, Circuit Judge, and JAMESON, District Judge. *
In this class action, under 42 U.S.C. § 1983, the plaintiffs-appellants are indictees in criminal cases arising out of the September, 1971 uprising at the Attica Correctional Facility and out-of-state attorneys representing the indictees. They seek (1) a declaratory judgment that the attorneys "are entitled to compensation to the same extent as counsel appointed for indictees who are members of the New York Bar", and (2) a "mandatory injunction ordering defendants to appoint the (attorneys) and members of their class as counsel for the (indictees) and members of their class, pursuant to New York County Law § 18-b". The defendants-appellees are the Erie County Bar Association Aid to Indigent Prisoners Society, Inc., Joseph D. Mintz, its administrator, and Carman F. Ball, a justice of the Supreme Court of the State of New York, who was assigned to preside over a special and trial term for Wyoming County in the Attica cases. The district court granted defendants' motion to dismiss for failure of the plaintiffs to present a substantial federal question.
New York County Law Article 18-B (McKinney, Consol.Laws, c. 11, 1972; Supp.1974-75) provides for the payment of fees for counsel assigned to represent indigent defendants. The assignment of counsel is made by the court. The County of Erie in conjunction with the Erie County Bar Association organized the Erie County Bar Association Aid to Indigent Prisoners Society, Inc. to assist the court by making available attorneys who are ready and willing to represent indigent defendants. The Society assists assigned counsel in processing applications to the court for services and expenses and disburses funds to assigned counsel upon receipt of a court order directing payment.
Justice Ball was responsible for assigning most, if not all, the attorneys to defend persons indicted for crimes arising out of the Attica prison riot. At arraignment he advised each of the indictees "of his right to counsel of his own choice and that if he did not have sufficient funds to hire counsel, the court would assign counsel in accordance with Article 18B of the County law". A number of the indictees initially retained counsel, whom they later requested the court to assign as their court-appointed counsel. Some of those attorneys were out-of-state attorneys who had not been admitted to the New York Bar, while others were New York attorneys who were not residents of Erie County.
Given the extraordinary circumstances surrounding the cases, Justice Ball agreed to assign the New York attorneys chosen by some of the indictees even though the attorneys did not reside in Erie County. He denied all requests for the assignment of out-of-state counsel not admitted to the New York Bar. His refusal to appoint out-of-state counsel was based on the grounds that (1) the court was unfamiliar with the competence of out-of-state counsel or their understanding of New York law; (2) there were attorneys licensed to practice in New York who were ready and willing to accept assignments; and (3) "the expenses involved in transportation, living expenses, accommodations for office space, etc. (for out-of-state counsel) would be an excessive burden upon the taxpayers of New York State depleting the state funds which were intended for the legal defense of the defendants". 1
Justice Ball did permit out-of-state counsel to appear pro hac vice 2 on behalf of the indictees as long as they were willing to associate with local counsel and provided the court with information concerning their professional background and experience. He made it clear, however, that out-of-state attorneys would not be appointed as assigned counsel or be compensated from state funds 3 and that the court was "ready, willing and able to supply New York admitted attorneys" to all of the defendants.
One out-of-state attorney whom Justice Ball refused to assign, commenced an Article 78 proceeding in the Appellate Division, Fourth Department, seeking to compel Justice Ball to assign and reimburse him as counsel for an Attica indictee. The Appellate Division in dismissing the action held that although there was no legal impediment to the appointment of the out-of-state counsel, the matter was one within the discretion of Justice Ball and the exercise of that discretion could not be attacked in an Article 78 mandamus proceeding. Goodman v. Ball, 45 A.D.2d 16, 356 N.Y.S.2d 146 (4th Dept. 1974). The State Court of Appeals denied leave to appeal.
Plaintiffs-appellants then started this class action. Following discovery plaintiffs moved for summary judgment and defendants moved for dismissal. In granting defendants' motion, the court said in part:
In essence two issues are raised on appeal: (1) whether the district court erred in concluding that the assignment of counsel by Justice Ball was not subject to review under 42 U.S.C. § 1983; and (2) whether the refusal of Justice Ball to assign out-of-state counsel violated appellants' constitutional rights. Appellants do not contend that a defendant has the right to counsel of his choice and "do not quarrel with the general proposition that 'the choice of an assigned counsel is for the judge, not the defendant' ". Rather, they argue that in exercising his discretion and making his "choice of assigned counsel", Justice Ball engaged in "unconstitutional discrimination".
As the Supreme Court stated in Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), "Since the beginning of this country's history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts". Given this "longstanding public policy against federal court interference with state court proceedings", federal courts have refused to issue injunctions enjoining state criminal proceedings unless the party seeking the injunction has demonstrated "great and immediate" irreparable injury which could not be "eliminated by his defense against a single criminal prosecution." Id. at 46, 91 S.Ct. at 751; O'Shea v. Littleton, 414 U.S. 488, 499-502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). 4
To grant the injunctive relief sought by the appellants would disrupt the state criminal proceedings in sharp conflict with the principles of equitable restraint outlined in Younger v. Harris. 5 This is especially true given the discretionary nature of the act which appellants seek to enjoin. The fact that the action is one brought pursuant to 42 U.S.C. § 1983 does not necessitate a different conclusion. The mere fact that 42 U.S.C. § 1983 constitutes an "expressly authorized" exception to the absolute bar against federal injunctions directed at state proceedings provided by 28 U.S.C. § 2283 in no way qualifies "the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding". Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); O'Shea v. Littleton, supra, 414 U.S. at 499, 94 S.Ct. 669.
Moreover, appellants have failed to establish that they are subject to substantial and immediate irreparable injury for which there are no adequate remedies at law. There are many competent New York attorneys who are ready and willing to represent the indictee appellants. In addition, appellants may raise any denial of equal protection and effective assistance of counsel arguments on appeal. With respect to the attorney appellants, there is likewise no substance to the irreparable injuries claimed by them, as discussed infra. 6
We recognize that different considerations apply to the declaratory relief sought than to injunctive relief, at least in a situation in which no criminal action is pending. Steffel v. Thompson, 415 U.S. 452, 469, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). At the same time, Steffel v. Thompson reaffirmed Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), that the same principles of "equity, comity and federalism" recognized in Younger v. Harris "ordinarily would be flouted by issuance of a federal declaratory judgment when a state proceeding was pending. . . ." 415 U.S. at 461, 94 S.Ct. at 1216. Thus Samuels v. Mackell, as reaffirmed by Steffel v. Thompson, equally precludes the granting of declaratory relief in this case.
Appellants argue that the refusal of Justice Ball to assign out-of-state counsel (1) interfered with indictee ...
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