Cleaver v. Wilcox

• Decision Date: 07 June 1974
• Docket Number: No. 72-1980,72-2540.,72-1980
• Citation: 499 F.2d 940
• Parties: Carol CLEAVER, Individually and on behalf of all others similarly situated, Appellee, v. Max WILCOX, Jr., Individually and in his official capacity as Judge of the Superior Court of the State of California for the County of Contra Costa, Juvenile Court Department, et al., Appellants. Celeste PREIS, an infant, By Charles George Preis, her father and next friend, Individually and on behalf of all others similarly situated, Appellee, v. Joseph WILSON, Individually and in his official capacity as Judge of the Superior Court of the State of California for the County of Marin, Juvenile Court Department, et al., Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.2d 940 (1974)

Carol CLEAVER, Individually and on behalf of all others similarly situated, Appellee, v. Max WILCOX, Jr., Individually and in his official capacity as Judge of the Superior Court of the State of California for the County of Contra Costa, Juvenile Court Department, et al., Appellants.

Celeste PREIS, an infant, By Charles George Preis, her father and next friend, Individually and on behalf of all others similarly situated, Appellee, v. Joseph WILSON, Individually and in his official capacity as Judge of the Superior Court of the State of California for the County of Marin, Juvenile Court Department, et al., Appellants.

Nos. 72-1980, 72-2540.

United States Court of Appeals, Ninth Circuit.

June 7, 1974.

Arthur W. Walenta, Jr., Deputy County Counsel (argued), John B. Clausen, County Counsel, Martinez, Cal., for appellants in 72-1980.

Robert L. Walker (argued), Peter Bull, Kenneth Hecht, Youth Law Center, San Francisco, Cal., George E. Chaffey, Stephen K. Easton, Eugene M. Swann, Contra Costa Legal Services Foundation, Pittsburg, Cal., for appellee in 72-1980.

Thomas G. Hendricks, Deputy County Counsel (argued), Douglas J. Maloney, County Counsel, San Rafael, Cal., for appellants in 72-2540.

Cecilia Lannon, Legal Aid Society of Marin County, San Rafael, Cal., Robert L. Walker (argued), Peter Bull, Kenneth Hecht, Youth Law Center, San Francisco, Cal., George E. Chaffey, Stephen K. Easton, Eugene M. Swann, Contra Costa Legal Services Foundation, Pittsburg, Cal., for appellee in 72-2540.

Before MERRILL, CARTER and GOODWIN, Circuit Judges.

ALFRED T. GOODWIN, Circuit Judge:

The district court enjoined California juvenile authorities from proceeding in certain child-dependency cases without supplying counsel to indigent parents. For the reasons set out below, we reverse in part and remand.

I

The named plaintiffs claim to represent all indigent parents residing in Marin and Contra Costa counties who now are, or who in the future might become, parties to dependency proceedings brought pursuant to California's Welfare and Institutions Code (hereinafter "W & I Code") § 600.¹ They sued under the Civil Rights Act of 1871, 42 U.S.C. § 1983, seeking to have counsel appointed to represent them in the state proceedings, and for other relief.

The plaintiffs allege that state officials violate their constitutional rights whenever juvenile officers proceed with dependency hearings in which the plaintiffs do not have the assistance of counsel. W & I Code § 600 sets out the conditions under which a child may be declared to be a "dependent child of the court." Related sections of the W & I Code provide that a child who is found to be "dependent" may be subject to limited court control or removed from the custody of its parents for an indefinite time, subject to periodic review.²

The state concedes that the plaintiffs are indigent and unable to retain counsel. The named plaintiffs requested the juvenile courts presiding over their W & I Code § 600 proceedings to appoint counsel to represent them. The presiding judges refused the request on the ground that the statute did not require it.³ There are no disputed questions of fact. The district court granted the plaintiffs summary judgments, and ordered the respective Superior and Juvenile Courts to appoint counsel in pending § 600 proceedings and enjoined those courts from conducting further such proceedings unless counsel has been appointed or waived.

The state argues that recent statutory changes in California's W & I Code have mooted the claims of Cleaver and Preis, and thereby have also mooted the case. In 1972, after the district court had certified these as class actions, California amended its W & I Code to expand the types of proceedings in which court-appointed counsel would be a matter of right. Such cases include counsel in § 600(d) dependency proceedings for indigent minors and, when there is a conflict of interest between parent and child, counsel for the indigent parent or guardian as well. W & I Code §§ 634, 634.5. Under the amended statutes, Cleaver and Preis are now entitled to court-appointed counsel and their individual claims are moot. However, a class of plaintiffs remains, composed of those indigent parents whose § 600(a), (b), or (c) proceedings are presently pending, and this class can still contend that its members may be denied needed legal advice in those dependency proceedings in the uncontrolled discretion of the state judge. Accordingly, we hold that the class, as modified, survives. See Lidie v. California, 478 F.2d 552 (9th Cir. 1973). The termination of the controversy of the named class representative will not operate as a dismissal or render moot the action of the class, or prevent the named plaintiff from litigating the issues on behalf of the class, despite the lack of remaining stake, so long as the named plaintiff initially had standing to bring the action. Rivera v. Freeman, 469 F.2d 1159 (9th Cir. 1972). Accord, Vaughan v. Bower, 313 F.Supp. 37, 40 (D.Ariz.) (three-judge court), aff'd, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970); see e. g., Conover v. Montemuro, 477 F.2d 1073, 1081-1082 (3d Cir. 1973); Moss v. Lane Co., 471 F.2d 853, 855 (4th Cir. 1973). Cleaver and Preis were members of the class at the commencement of the action, and their competency as representatives of their classes was determined at that time. Their continued competency was assumed in the declaratory judgments and injunctions issued after the effective date of the statutory changes.⁴

II

We agree with the district court that the requisites of Fed.R.Civ.P. 23(a) and (b)(2) have been met. The class is too numerous to permit practical joinder of all parents. The principal question of law is common to all members. All assert a constitutional right to appointed counsel. The defendants denied appointed counsel to the named plaintiffs on the same theory which defendants assert against the class: namely, that no indigent parent has a right to appointed counsel in § 600 (now in § 600(a), (b), and (c) ) proceedings. However, in light of the high degree of uncertainty whether indigent parents might in the future be denied counsel in § 600(a), (b), or (c) dependency hearings, the relief ordered by the district court should be limited to declaratory relief.

III

As will be seen, both sides are claiming too much.

The injunction was not authorized. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), have counseled district courts against improvident exercise of their equitable powers to interfere with the operations of state courts. Absent showing of irreparable harm and inadequacy of state procedures, federal questions that are involved in state-court litigation should be first adjudicated there. We recognize that the Younger line of cases dealt specifically with federal intervention in state criminal proceedings,⁵ and that applicability of Younger to a civil proceeding, such as is involved here, has been left open by the Supreme Court. Mitchum v. Foster, 407 U.S. 225, 244, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (concurring opinion of Burger, C. J.). See Speight v. Slaton, 415 U.S. 333, 94 S.Ct. 1098, 39 L.Ed.2d 367 (1974). Cf. Lynch v. Household Finance Corp., 405 U.S. 538, 561, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972) (dissenting opinion of White, J.). However, this case, whether viewed in the light of the general concept of state-federal comity or the specific doctrine of Younger v. Harris, is a proper situation for federal intervention. Plaintiffs have raised a colorable claim, not only that they are being denied a constitutional right, but also that their claim to this right will not receive an effective hearing and vindication in a state proceeding. Cf. Younger v. Harris, 401 U.S. at 49. Moreover, there is no counterpart to federal habeas corpus available to these civil litigants in which they can raise the constitutional issues they have been unable to present effectively in the state court. Nor will intervention in this case deny the state court an opportunity to decide for itself novel or unsettled state-law questions. The California courts have repeatedly denied or refused to hear these claims in the past. See In re T., 25 Cal.App.3d 120, 101 Cal.Rptr. 606 (1972), hearing denied Cal.S.Ct., May 12, 1972; In re S. and In re S., 18 Cal.App.3d 788, 96 Cal.Rptr. 203 (1971), hearing denied Cal.S.Ct., October 21, 1971 (Peters and Tobriner, J.J., voted to grant); In re Robinson, 8 Cal.App.3d 783, 87 Cal.Rptr. 678 (1970), hearing denied, Cal.S.Ct., October 1, 1970 (Peters and Tobriner, JJ., voted to grant), cert. denied sub nom. Kaufman v. Carter, 402 U.S. 964, 91 S.Ct. 1624, 29 L.Ed.2d 128 (1971). This history satisfies us that principles of federalism and comity should not bar federal intervention in this case.

However, the Supreme Court had indicated that, apart from Younger-doctrine considerations, there must be a showing of irreparable injury before a federal court can enjoin a state civil proceeding. Speight v. Slaton, supra. Inasmuch as the named plaintiffs have by statute been granted the right to appointed counsel, and inasmuch as no other plaintiff has come forward with a specific showing of irreparable injury,⁶ an injunction should not have been issued. This conclusion does not, however, answer the question whether all equitable relief is barred. Failure to demonstrate irreparable injury does not preclude the granting of declaratory relief. The Supreme Court has recently reemphasized that where, as here, federal adjudication is appropriate, Congress intended the declaratory judgment procedure to act as an alternative to injunctive relief and to be utilized to test the constitutionality of state statutes. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Therefore, we turn to the propriety of declaratory relief under the...