De Kosenko v. State of New York

• Decision Date: 23 December 1969
• Docket Number: No. 69-C-4297.,69-C-4297.
• Citation: 311 F. Supp. 126
• Parties: Maria DE KOSENKO, individually, and on behalf of all other persons similarly situated, Plaintiff, v. The STATE OF NEW YORK and State Administrator of the Administrative Board of the Judicial Conference of the State of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

311 F. Supp. 126

Maria DE KOSENKO, individually, and on behalf of all other persons similarly situated, Plaintiff, v. The STATE OF NEW YORK and State Administrator of the Administrative Board of the Judicial Conference of the State of New York, Defendants.

No. 69-C-4297.

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

December 23, 1969.

Bradley B. Davis, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen., of the State of New York, New York City, for defendants; by George D. Zuckerman, Asst. Atty. Gen., Stephen P. Seligman, Deputy Asst. Atty. Gen., Lloyd G. Milliken, Asst. Atty. Gen., of counsel.

CROAKE, District Judge.

MEMORANDUM

In this action, the plaintiff, a resident of the City, County and State of New York, seeks judgment against the named defendants declaring that the current court calendar situation in New York County is depriving her of due process of law, equal protection of the law, and punishing her for exercising her right to demand a jury trial, all in violation of her rights under Amendments VII and XIV to the United States Constitution, and directly ordering defendants to so correct the situation as to not deprive the plaintiff of such rights, in default whereof this Court shall so correct such situation. She claims to invoke jurisdiction of this court pursuant to Title 28 U.S.C. § 1343. She further claims as the basis of the action that she commenced an action in February 1967 in the Supreme Court of the State of New York, County of New York, and that that action was ready for trial by all parties in December 1968. She claims that there is a 29 month delay in the General Jury Calendar in New York County. She further contends that the action should be permitted to stand as a class action, as well as on behalf of herself individually, because the class similarly situated is so numerous that joinder of all members is impracticable. Paragraph 9 of the complaint reads: "Trial by a three-judge constitutional court is demanded."

This matter is before the Court on a motion of the Attorney General of the State of New York as attorney for the defendants for an order dismissing the complaint against each of the defendants pursuant to Rule 12(b) of the Federal Rules of Civil Procedure on the grounds that this Court lacks jurisdiction over the subject matter of the action, that the Court lacks jurisdiction over the State of New York which has been named as a defendant, that the complaint fails to state a claim upon which relief can be granted, and that the complaint fails to join indispensable persons as defendants.

It is necessary to deal first with the demand for a three-judge court.^* The attention of the judges of this Court has been directed to the settled principle that when a demand is made under 28 U.S.C. § 2281 for the convening of a three-judge court, the single judge is entitled to dismiss the complaint if the claim of unconstitutionality is "plainly unsubstantial," either because it is "obviously without merit" or has been rejected by previous decisions. Swift & Co., Inc. v. Wickham, 382 U.S. 111, 114-115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). 28 U.S.C. § 2281 provides:

"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefore is heard and determined by a district court of three judges under section 2283 of this title."

The complaint in this action does not seek an injunction restraining the enforcement, operation or execution of a State statute, and it does not ask that any State law be declared unconstitutional. Reading the statute appears to give ample reason for the single judge to interpret the motion addressed to the complaint under the rules. There appears to be no substantial federal question presented. Ex parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 78 L.Ed. 152 (1933). Incidentally, it is not suggested in just what manner this Court could correct the situation of which the plaintiff complains. This has persuaded us that the claim of unconstitutionality is "plainly insubstantial" and without merit, and that the demand for an appointment of a statutory three-judge court should be denied.

The plaintiff argues that she has been denied the right to a speedy trial and therefore has been discriminated against because she has demanded a jury trial, all in violation of her right to due process of law. The State of New York has not waived immunity in this matter.

"It has been established since Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842, that a state is immune from federal court suits brought by its own citizens as well as by citizens of another state. This immunity is not affected by the fact that the case may be one arising under the Constitution or laws of the United States. Parden et al. v. Terminal Railway of Alabama State Docks Dept. et al., 377 U.S. 184, 186, 84 S.Ct. 1207, 12 L.Ed. 2d 233; Skokomish Indian Tribe v. France, 9 Cir., 269 F.2d 555, 560. A state may waive such immunity. State of Missouri et al. v. Fiske et al., 290 U.S. 18, 24, 54 S.Ct. 18, 78 L.Ed. 145. There is nothing in the record before us, however, to indicate that the State of Washington waived its immunity from this kind of suit, or this particular suit, in federal court." Clark v. State of Washington, 366 F. 2d 678, 680 (9th Cir. 1966).

As the suit is not based on diversity of citizenship, the allegations in the complaint must present a substantial federal question. Otherwise, it must be dismissed for lack of jurisdiction over the subject matter. Powell v. Workmen's Compensation Board of State of New York, 327 F.2d 131, 138 (2d Cir. 1964). Even if this Court could entertain jurisdiction over this action and endeavor to solve the problems of delay in the State courts, "the lack of judicially discoverable and manageable standards for resolving it," as well as "respect due coordinated branches of government," is why the complaint does not seem to be appropriate for a resolution by this Court. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The problem presented by this complaint has been dealt with before in this District in a comprehensive and detailed opinion by Judge Tenney in New York State Association of Trial Lawyers v. Rockefeller, 267 F.Supp. 148, 151 (S.D. N.Y.1967). In that action, the Bar Association and four named individuals whose personal injury suits pending in the New York Supreme Court sought declaratory and injunctive relief as in this case, to eliminate court delay in the Supreme Court and several counties of the State of New York. The complaint was dismissed in that action, the Court stating:

"In this case, p

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