Burgos v. Murphy

• Decision Date: 28 July 1988
• Docket Number: No. 87 Civ. 8151 (MBM).,87 Civ. 8151 (MBM).
• Parties: J. Ricardo BURGOS and Alton H. Maddox, Jr., Plaintiffs, v. Francis T. MURPHY as Presiding Justice of the Appellate Division, First Department; Theodore R. Kupferman, Leonard H. Sandler, Joseph P. Sullivan, David Ross, John Carro, Sidney H. Asch, E. Leo Milonas, Betty Weinberg Ellerin, Richard W. Wallach, George Bundy Smith as Associate Justices of the Appellate Division, First Department; Burton R. Roberts as Judge of the Criminal Term of the Supreme Court of the State of New York, County of Bronx; Bernard J. Fried as Acting Justice of the Supreme Court of the State of New York, County of Bronx; Geoffrey Q. Ralls as Administrator of the Assigned Counsel Plan for the Appellate Division, First Department, Defendants.
• Court: U.S. District Court — Southern District of New York

692 F. Supp. 1571

J. Ricardo BURGOS and Alton H. Maddox, Jr., Plaintiffs, v. Francis T. MURPHY as Presiding Justice of the Appellate Division, First Department; Theodore R. Kupferman, Leonard H. Sandler, Joseph P. Sullivan, David Ross, John Carro, Sidney H. Asch, E. Leo Milonas, Betty Weinberg Ellerin, Richard W. Wallach, George Bundy Smith as Associate Justices of the Appellate Division, First Department; Burton R. Roberts as Judge of the Criminal Term of the Supreme Court of the State of New York, County of Bronx; Bernard J. Fried as Acting Justice of the Supreme Court of the State of New York, County of Bronx; Geoffrey Q. Ralls as Administrator of the Assigned Counsel Plan for the Appellate Division, First Department, Defendants.

No. 87 Civ. 8151 (MBM).

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

July 28, 1988.

Alton H. Maddox, Jr., Brooklyn, N.Y., for plaintiffs.

Caren S. Brutten, Asst. Atty. Gen., of the State of N.Y., New York City, for defendants.

OPINION AND ORDER

MUKASEY, District Judge.

Plaintiffs in this action have asserted a purposeful and racially motivated denial of their civil rights. Defendants have moved to dismiss and for summary judgment, and for sanctions on the ground that plaintiffs' serious charges have no factual or legal basis. For the reasons set forth below, the motion is granted.

I.

Plaintiff J. Ricardo Burgos is an imprisoned indigent charged in Supreme Court, Bronx County with several counts of murder and related offenses. Plaintiff Alton H. Maddox, Jr. is the lawyer whom Burgos wishes to defend him against those charges at public expense, and who wishes to do so. Maddox is not a member of the panel of counsel, established pursuant to Article 18-B of the County Law, N.Y. County Law § 722 (McKinney 1988), eligible for assignment to defend indigents at public expense (the "18-B panel"). After Maddox made known his desire to represent Burgos, he was provided with an application and told that if he was admitted to the 18-B panel after a review of his application and references, and an interview, his selection to represent Burgos would rest with the discretion of the trial judge.

The plaintiffs claim that to require Maddox to apply for membership on the 18-B panel before he can be considered to represent Burgos at public expense denies to Burgos his rights to counsel and to equal protection of the laws guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution, and discriminates against Maddox based on his race in violation of the Fourteenth Amendment and federal law. Maddox alleges also that the application and interview requirement is the work of a conspiracy among the defendants to deprive him of his constitutional rights to equal protection and privileges and immunities, and/or the result of the failure by some defendants not to prevent such deprivation by others. Maddox appears here both as counsel to Burgos and in his own behalf.

The first 11 defendants are the Justices of the Appellate Division, First Department, who allegedly formulated the rules for the 18-B panel, but whose only participation in the underlying events appears to have been their appointment of defendant Geoffrey Q. Ralls, who administers the panel. Defendant Burton B. Roberts is the Administrative Judge of the Criminal Branch, Supreme Court, Bronx County, whose role was to direct that the trial judge in the Burgos prosecution, defendant Bernard J. Fried, refer to Ralls the sworn request from Maddox to be assigned to represent Burgos.

II.

The complaint sets forth three claims for relief — one in behalf of Burgos and two in behalf of Maddox. To the extent the allegations in the complaint are relevant to those claims,¹ they are as follows: Burgos and Larry Davis were indicted in connection with four murders committed in the Bronx in October, 1986.² Both men are black. Davis allegedly chose attorneys William M. Kunstler and Lynne F. Stewart, both white, to represent him at public expense, and they were duly appointed to do so. The complaint alleges "upon information and belief" that neither was a member of the 18-B panel when appointed to represent Davis.

By contrast, according to the complaint, when Burgos sought to select Maddox, who is black, to represent him at public expense, Maddox was told he could not be selected until he became a member of the 18-B panel.

Plaintiffs bottom three claims on those allegations. First is the claim that Burgos has been denied the right to counsel of his choice under the Sixth and Fourteenth Amendments to the U.S. Constitution, and his right to equal protection of the laws also guaranteed by the Fourteenth Amendment. Inasmuch as all defendants are said to have acted under color of state law, Burgos has claimed a violation of 42 U.S.C. § 1983, which gives legal redress to anyone denied constitutionally protected rights under color of law.

Next is the claim that the failure to appoint Maddox denies him the right to conduct his law practice, with its attendant contractual and property rights, and imposes on him terms and conditions, such that he is denied rights available to white citizens similarly situated. Thus Maddox has claimed here a denial of equal rights in violation of 42 U.S.C. § 1981,³ as well as a violation of 42 U.S.C. § 1983.

Finally, Maddox alleges that all the defendants were either engaged in a conspiracy to deny him the above rights on grounds of his race, in violation of 42 U.S.C. § 1985,⁴ or were aware of such a conspiracy and, having the power to prevent that denial or help to prevent it, neglected and refused to do so, in violation of 42 U.S.C. § 1986.⁵

To remedy these alleged denials and violations, plaintiffs seek a declaration that requiring Maddox to apply for membership on the 18-B panel before he can represent Burgos, and refusing to compensate him otherwise as Burgos' counsel, is unconstitutional, as well as an injunction that would have the effect of appointing Maddox to represent Burgos at public expense. They also invoke 42 U.S.C. § 1988, which permits an award of attorneys' fees to "the prevailing party" in any action brought under the other statutory sections they have relied on.

All defendants moved initially to dismiss under Rule 12(b)(6), Fed.R.Civ.P., asserting that the complaint failed to state a claim upon which relief may be granted, and for sanctions pursuant to Rule 11. Their papers, however, included affidavits and supporting exhibits tending to show not so much that the complaint was legally insufficient as that its factual statements were materially false. Accordingly, pursuant to Rule 12(b), Fed.R.Civ.P., I ordered that the motion be treated as one for summary judgment under Rule 56 and gave all parties the opportunity for additional submissions.

III.

The facts set forth below are not in dispute. On December 4, 1986 a grand jury sitting in Supreme Court, Bronx County returned an indictment charging Burgos with multiple counts of murder, attempted robbery and criminal use and possession of firearms. Soon afterward, counsel was appointed to represent Burgos, but Burgos became dissatisfied and discharged his assigned lawyer. On September 17, 1987 Maddox filed an affirmation stating that Burgos was then without counsel, asserting that Burgos was "an unpopular defendant within the ruling political and police circles of this local government," predicting "a zealous effort ... on the part of the prosecution to muzzle Mr. Burgos and his counsel," insisting that Burgos had the right to appointed counsel of his choice, and presenting himself for appointment as 18-B counsel with Burgos' concurrence.

The trial judge, the Hon. Bernard J. Fried, initially sent the affirmation to Justice Burton B. Roberts, but then at Justice Roberts' direction referred it on September 22, 1987 to defendant Ralls, as administrator of the 18-B panel in the First Department. Two days later Ralls sent Maddox an application for admission to the 18-B panel, pointing out in the covering letter that although Maddox could not be appointed without being a member of the panel, he need not be a member of the panel in order to avail himself and his indigent client of the services of publicly paid experts and investigators. Ralls added that whatever Maddox's view of the law, Burgos had no right to choose his appointed counsel.

Maddox never filed the application. Instead, on November 16, 1987 he filed this action.

IV.

Burgos' claim is that, indigent or not, he has an absolute right under the Constitution's Sixth Amendment to have Maddox represent him, whether or not Maddox is a member of the 18-B panel. The short and simple answer to Burgos' claim is that that right does not exist, as is plain from a review of the relevant cases, virtually none of which are cited in any of the briefs submitted by either side on this motion.

Although a defendant charged with a serious crime has the right to be represented by counsel, by appointment if necessary, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the purpose of the right to counsel "is simply to ensure that criminal defendants receive a fair trial." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674 (1984), not necessarily to ensure that they are represented by counsel of choice. Thus a trial court's refusal to grant a continuance with the result that a defendant could not be represented by his chosen trial counsel did not violate the Sixth Amendment. Morris v. Slappy, 461 U.S. 1, 12-15, 103 S.Ct. 1610, 1616-1618, 75 L.Ed.2d 610 (1983). In reaching that result, the Supreme Court rejected the Ninth Circuit's holding that the Sixth Amendment included the right to a "meaningful attorney-client relationship": "No court could possibly guarantee that a defendant will develop the kind of rapport with his attorney — privately retained or provided by the public — that the Court of Appeals thought part of the Sixth Amendment guarantee of coun...