Goldstein v. Cox
| Decision Date | 18 December 1968 |
| Docket Number | No. 66 Civ. 4487.,66 Civ. 4487. |
| Citation | 299 F. Supp. 1389 |
| Parties | Anghel GOLDSTEIN, also known as Andrei Pietraru, Iuliu Nasta, also known as Iulius Nasta and Gheorghe Fundi, on behalf of themselves and all others similarly situated, Plaintiffs, v. Joseph A. COX and S. Samuel DiFalco, Surrogates of the County of New York, Edward S. Silver, Surrogate of the County of Kings, Christopher C. McGrath, Surrogate of the County of Bronx, John T. Clancy, Surrogate of the County of Queens and Arthur Levitt, Comptroller of the State of New York, Defendants. |
| Court | U.S. District Court — Southern District of New York |
John R. Vintilla, Cleveland, Ohio, Emanuel Eschwege, New York City, Novak N. Marku, Canton, Ohio, for plaintiffs.
Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, for defendants; Daniel M. Cohen, Asst. Atty. Gen., of counsel.
Before KAUFMAN, Circuit Judge, McLEAN and TENNEY, District Judges.
The three plaintiffs in this action are nationals and residents of Rumania. They sue "on behalf of themselves and all other residents of Romania, similarly situated" for a judgment declaring that Section 2218 of the New York Surrogate's Court Procedure Act, formerly Section 269-a of the Surrogate's Court Act, is unconstitutional.* They also seek an injunction restraining five New York Surrogates and the Comptroller of the State of New York from enforcing and applying it.
The prior history of this action may be briefly stated. In the spring of 1967 plaintiffs moved for an order convening a three-judge court pursuant to 28 U.S. C. § 2281. They also moved for an injunction pendente lite. The district court denied the preliminary injunction. It also denied the request for a three-judge court on the ground that, although a substantial federal question was raised, this question was one of federal "supremacy" which, under Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), was to be decided by one judge, not by three. Goldstein v. Cox, 66 Civ. 4487 (S.D.N.Y. April 4, 1967).
On September 27, 1967, the Court of Appeals, from the bench, affirmed the order of the district court. The Supreme Court, however, vacated the order of the Court of Appeals and remanded the case to the Court of Appeals "for further consideration in light of Zschernig v. Miller." (389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968).) Goldstein v. Cox, 389 U.S. 581, 88 S.Ct. 694, 19 L.Ed.2d 781 (1968).
The Court of Appeals thereupon reversed the order of the district court and remanded the case for consideration of the constitutional issues by a three-judge court. Goldstein v. Cox, 391 F.2d 586 (2d Cir. 1968).
Plaintiffs then moved for summary judgment. That is the motion which we are now called upon to decide.
The motion is supported only by an affidavit of plaintiffs' attorney which is devoted primarily to a discussion of the law. It contains few facts. As to plaintiff Goldstein, it says only:
The affidavit contains a similar statement as to plaintiff Fundi, reading as follows:
The text of the affidavit does not refer to plaintiff Nasta. Annexed to the affidavit, however, are copies of letters from the office of the New York Comptroller dated respectively February 28, 1962 and November 16, 1964, the first of which is addressed to Juliu Nasta in Bucharest, Rumania, and the second to plaintiffs' attorney. Each letter is captioned:
There is no explanation of what the "abandoned property" is, how it came to be abandoned, or whether it has any connection with the statute here under consideration. In each letter the Comptroller's Office stated in substance that pursuant to a policy recommended by the New York Attorney General, the Comptroller was not in a position to make payment to residents of Rumania.
The only other factual material submitted in support of this motion consists of a copy of a letter dated October 15, 1965 from the then Surrogate of Kings County to Isac Silianu (not a plaintiff) in Bucharest, Rumania, and copies of five letters from the office of the New York Comptroller bearing various dates in 1962, 1963 and 1966, one of which is addressed to Borbala Barbieri (not a plaintiff) in Bucharest, Rumania, and the others to the same attorney who represents the plaintiffs in this action.
The Surrogate's letter stated in substance that if Isac Silianu were to make formal application for the payment of his bequest in full, the Surrogate would be constrained to deny it, but that the Surrogate would give "sympathetic consideration to a request for transmittal to you in periodic installments of small sums for purchase of food and clothing parcels, if a demonstration can be made of the feasability thereof."
The Comptroller's letters were each headed "Abandoned Property." Two of them indicate that the property consists of an account in J. P. Morgan & Co. The other three refer to "Prunder, Denette, Estate of." In each letter the Comptroller's office in substance declined to pay a claim of a resident of Rumania or of individuals within the jurisdiction of the Soviet Union.
The motion is opposed by an affidavit of an Assistant Attorney General of New York. That affidavit is entirely argumentative. It can fairly be said to contain no facts at all.
On this record we are asked to hold as a matter of law that Section 2218 is unconstitutional because it interferes with the exclusive prerogative of the federal government to conduct the foreign affairs of the United States. Plaintiffs claim that this result is required by the Supreme Court's decision in Zschernig.
The validity of the statute, as it read at the time, was twice upheld by the New York Court of Appeals prior to Zschernig. Matter of Braier, 305 N.Y. 148, 111 N.E.2d 424 (1953), appeal dismissed sub nom. Kalmane v. Green, 346 U.S. 802, 74 S.Ct. 32, 98 L.Ed. 334 (1953); Matter of Marek, 11 N.Y.2d 740, 226 N.Y.S.2d 444, 181 N.E.2d 456 (1962), appeal dismissed sub nom. Ioannou v. New York, 371 U.S. 30, 83 S.Ct. 6, 9 L. Ed.2d 5 (1962). In each case the Supreme Court dismissed the appeal from the New York Court of Appeals' decision for want of a substantial federal question. As far as appears from the Court of Appeals' opinion in Braier and from the memorandum in Marek (), the ground upon which the constitutionality of the statute is challenged in the present action was not raised or decided in either case.
Recently the unsuccessful claimant in Marek (Ioannou) moved in the Supreme Court for leave to file a petition for rehearing. The Supreme Court denied the motion Ioannou v. New York, 391 U.S. 604, 88 S.Ct. 1864, 20 L.Ed.2d 843 (1968).
In Zschernig, the Supreme Court had before it an Oregon statute which provided in substance that property of an Oregon decedent which would otherwise pass by succession or testamentary disposition to a nonresident alien would, in the absence of other eligible heirs, devisees or legatees, escheat to the state of Oregon unless the alien proved (1) the existence of a reciprocal right of a United States citizen to take property on the same terms as a citizen or inhabitant of the foreign country; (2) the right of United States citizens to receive payment here of funds from estates in the foreign country; and (3) the right of the alien to receive the benefit, use or control of the proceeds of Oregon estates, "without confiscation" by the government of his country. The Court held this statute unconstitutional because it impaired "the effective exercise of the Nation's foreign policy." 389 U.S. at 440, 88 S.Ct. at 671.
Subsequent to this decision, the New York Court of Appeals again considered the constitutionality of Section 2218 and, despite Zschernig, declined to hold the statute unconstitutional on the record before it. Matter of Leikind, 22 N.Y.2d 346, 292 N.Y.S.2d 681, 239 N.E. 2d 550 (1968).
We are called upon to decide whether, on the record now before us, we are impelled to a conclusion similar to, or different from, the conclusion which the New York Court of Appeals reached in Leikind.
The decision depends upon the reasons given by the Supreme Court in Zschernig for invalidating the Oregon statute. Before considering those reasons, however, mention must be made of an earlier Supreme Court decision, Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947).
In Clark, the Court passed upon a California statute which contained reciprocal provisions substantially identical...
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