Hoffman v. DiFalco

• Decision Date: 29 December 1976
• Docket Number: No. 76 Civ. 3102.,76 Civ. 3102.
• Citation: 424 F. Supp. 902
• Parties: Thomas HOFFMAN on behalf of himself and on behalf of all others similarly situated, Plaintiff, v. S. Samuel DiFALCO, Individually and in his official capacity as Administrative Judge of the Surrogate Court, County of New York, State of New York and Millard L. Midonick, Individually and in his official capacity as Surrogate Judge, County of New York, State of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

424 F. Supp. 902

Thomas HOFFMAN on behalf of himself and on behalf of all others similarly situated, Plaintiff, v. S. Samuel DiFALCO, Individually and in his official capacity as Administrative Judge of the Surrogate Court, County of New York, State of New York and Millard L. Midonick, Individually and in his official capacity as Surrogate Judge, County of New York, State of New York, Defendants.

No. 76 Civ. 3102.

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

December 29, 1976.

Thomas Hoffman, pro se.

James I. Meyerson, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen., State of New York, New York City, for defendants; Alan R. Smulevitz, New York City, of counsel.

OPINION

ROBERT J. WARD, Judge.

Defendants S. Samuel DiFalco ("DiFalco") and Millard L. Midonick ("Midonick") move pursuant to Rules 12(b)(1) and (6) and Rule 56, Fed.R.Civ.P., for an order dismissing this action or, in the alternative, granting summary judgment. The Court finds that plaintiff lacks standing to maintain this action and, accordingly, the complaint is dismissed.

Plaintiff Thomas Hoffman ("Hoffman"), an attorney admitted to practice in the State of New York, seeks in this action declaratory and injunctive relief to prevent the defendants, judges of the Surrogate's Court, New York County, from continuing certain alleged practices which Hoffman claims are in derogation of his rights under the first, fifth and fourteenth amendments to the United States Constitution and 42 U.S.C. § 1983. This Court's jurisdiction is predicated upon 28 U.S.C. §§ 1343(3), 1343(4), 2201, and 2202.

In January 1975, Hoffman wrote a letter to DiFalco identifying himself and expressing an interest "in receiving appointments from the Surrogates Court in Estate proceedings." He indicated that he had experience, considered himself qualified, and requested to be advised of "the procedure and/or regulations I need to follow in order that I may receive such an appointment." Plaintiff did not communicate such a request to Midonick. He received neither a response from DiFalco nor any appointments from either defendant.

The appointments at issue are made by Surrogate's Court judges pursuant to § 403 of the New York Surrogate's Court Procedure Act (S.C.P.A.) (McKinney 1967), which provides in part:

Appointment of guardian ad litem

2. By the court. A person under disability who does not appear by his guardian or committee pursuant to 402 shall except as otherwise expressly provided appear by a guardian ad litem appointed by the court on nomination or on its own initiative whenever such person is a necessary party or for other reason the court deems it necessary to appoint a guardian ad litem to protect the interests of such party.

Section 404(1) of the S.C.P.A. sets forth the broad requirement that "a guardian ad litem shall be an attorney admitted to practice in New York." (McKinney Supp.1975).

Plaintiff asserts that defendants have violated his first amendment rights by making appointments allegedly based upon personal and political associations. Furthermore, Hoffman claims that his rights under the fifth and fourteenth amendments have been breached in that the appointments are not grounded on objective standards but are instead arbitrary and capricious. He purports to represent all attorneys similarly situated.

Hoffman seeks a judgment declaring unlawful and enjoining, both preliminarily and permanently, the appointment of guardians based on political and personal considerations as well as barring the use of arbitrary and discretionary policies in making these appointments pursuant to the S.C. P.A. He further demands a preliminary and a permanent injunction ordering defendants to adopt a procedure establishing a list "open to all attorneys meeting an objective criteria of competence," from which guardians ad litem could be chosen on a rotating basis. Hoffman also requests whatever further relief justice requires, including costs and attorney's fees.

Defendants assert that plaintiff lacks standing. This preliminary question must be examined in some depth.

Merely denominating a suit as a class action does not obviate the requirement of a personal injury. "If none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). This Court's standing analysis must, therefore, focus on Hoffman himself.

The concept of standing has been described as among "the most amorphous in the entire domain of public law," Hearings on S. 2097 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 89th Cong., 2d Sess., pt. 2, 465, 498 (1966) (statement of Professor Paul A. Freund), and as a "complicated specialty of federal jurisdiction." United States ex rel. Chapman v. FPC, 345 U.S. 153, 156, 73 S.Ct. 609, 97 L.Ed. 918 (1953). However, recent cases handed down by the Supreme Court and by the Court of Appeals for the Second Circuit have further defined the limits imposed by this doctrine. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 267, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Evans v. Lynn, 537 F.2d 571 (2d Cir. 1976) (en banc). These decisions make it clear that, although it is to be hoped that there is a remedy for every wrong, the Courts are not always the appropriate forum for relief.

The standing test is two pronged:

. . . first, whether the plaintiff-appellees allege "injury in fact," that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court's Art. III jurisdiction, and, second, whether, as a prudential matter, the plaintiff-appellees are proper proponents of the particular legal rights on which they base their suit.

Singleton v. Wulff, supra, 96 S.Ct. at 2873. In analyzing Hoffman's standing, this Court, then, looks first to the presence or absence of an "injury in fact."

The "injury in fact" requirement has recently been reformulated by the Supreme Court:

As we reiterated last Term, the standing question in its Art. III aspect "is whether the plaintiff has `alleged such a personal stake in the outcome of the controversy' to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-499 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 354 (1975) (emphasis in original). In sum, when a plaintiff's standing is brought into issue the relevant inquiry is whether, assuming justiciability of the claim, the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision. Absent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation.

Simon v. Eastern Kentucky Welfare Rights Organization, supra, 96 S.Ct. at 1924 (footnote omitted). The Second Circuit, too, has recently delineated the requirement of an "injury in fact" in clear and unmistakable terms.

The hallmark of a case or controversy is the presence of adverse interests between parties who have a substantial personal stake in the outcome of the litigation. Standing to sue, in its Constitutional sense, is the showing by a plaintiff that his particular grievance meets this standard, the "essence" of which is the presence of "injury in fact" suffered by the plaintiff as a result of the defendant's actions.

Mere interest in, or concern over, a prospective defendant's acts — no matter how deeply felt — is insufficient to demonstrate injury in fact. What must be shown is a "specific and perceptible harm" — a "concrete injury" actually suffered by the particular plaintiff, or else clearly imminent, which is capable of resolution and redress in the federal courts. Abstract or hypothetical injury is not enough:

Evans v. Lynn, supra at 591 (footnotes omitted). Furthermore, the Evans Court noted that "disagreement with government action or policy, however strongly felt, does not, standing alone, constitute an `injury' in the Constitutional sense which is cognizable in the federal courts and susceptible of remedy by the judicial branch." Id. at 598. In other words, speculative injury does not confer standing. Jackson v. New York City Health & Hospitals Corp., 419 F.Supp. 809, 813-14 (S.D.N.Y.1976).

Has Hoffman suffered a "specific and perceptible harm" — a "concrete injury?" And, if so, what is the nature of that injury? The following analysis, used in Simon v. Eastern Kentucky Welfare Rights Organization, supra, 96 S.Ct. at 1925, is relevant to this inquiry:

The obvious interest of all respondents, to which they claim actual injury, is that of access to hospital services. In one sense, of course, they have suffered injury to that interest. The complaint alleges specific occasions on which each of the individual respondents sought but was denied hospital services solely due to his indigency, and in at least some of the cases it is clear that the needed treatment was unavailable, as a practical matter, anywhere else. The complaint also alleges that members of the respondent organizations need hospital services but live in communities in which the private hospitals do not serve indigents. We thus assume, for purposes of analysis, that some members have been denied service. (footnote omitted).

Applying this mode of analysis to the facts of the instant case leads to the conclusion that Hoffman's interest is that of access to guardianship appointments. His injury, if any, would be in the denial of such an appointment. It has not been controverted that Hoffman has received no appointments. Yet, "the `case or controversy' limitation of Art. III still...