Lebowich v. O'CONNOR

• Decision Date: 20 September 1962
• Docket Number: No. 311,Docket 27230.,311
• Citation: 309 F.2d 111
• Parties: Emanuel LEBOWICH, Plaintiff-Appellant, v. Frank D. O'CONNOR, individually, and as District Attorney of Queens County, State of New York, and Stephen P. Kennedy, individually, and as Police Commissioner of the City of New York, State of New York, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

309 F.2d 111 (1962)

Emanuel LEBOWICH, Plaintiff-Appellant, v. Frank D. O'CONNOR, individually, and as District Attorney of Queens County, State of New York, and Stephen P. Kennedy, individually, and as Police Commissioner of the City of New York, State of New York, Defendants-Appellees.

No. 311, Docket 27230.

United States Court of Appeals Second Circuit.

Argued April 30, 1962.

Decided September 20, 1962.

W. A. Newcomb, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen., of the State of New York (Paxton Blair, Sol. Gen., Irving Galt, Asst. Sol. Gen., Philip Kahaner, Asst. Atty. Gen., of counsel), for appellee Frank D. O'Connor.

Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.

WATERMAN, Circuit Judge.

Appellant is a defendant in a criminal case now pending in the County Court of Queens County, New York, under an indictment charging him with having committed the state crimes of performing abortions and of commiting second degree assaults with intent to perform abortions. He brought the present action in the United States District Court for the Eastern District of New York seeking to have that federal court enjoin appellee O'Connor, the New York State District Attorney for Queens County, from making an offer at the state criminal trial to divulge the evidence his office admitted had been obtained through a wiretap on appellant's telephone. Stephen P. Kennedy, also an appellee in the present case, was Police Commissioner of New York City at the time of the wiretapping, and City police officers admittedly assisted the prosecuting officers in this wiretapping.

However, after the United States Supreme Court rendered its decision in Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678 (1961) per curiam), in which the Court affirmed our in banc decision refusing to enjoin a New York State district attorney from making offers to divulge wiretap evidence as part of the State's proof in a New York criminal case, 277 F.2d 739 (2 Cir. 1960), appellant amended his prayer for relief so as to seek a declaratory judgment that the appellees had violated their oaths of office to support the Constitution of the United States. He alleged the oaths had been violated when Section 605 of the Federal Communications Act of 1934, 47 U.S.C.A. § 605, had been violated by the placing of taps upon appellant's telephone wire for the purpose of intercepting communications made over said wire and divulging the contents or substance of the same, without being so authorized by the senders of such communications; and by divulging the information acquired by those wiretaps to the Queens County Grand Jury that had indicted appellant. Further, a judgment was sought declaring that any divulgence in the future at appellant's trial of the contents of the wiretapped communications, or the introduction of evidence the fruits of the wiretapping, will violate appellees' oaths of office.¹

Appellant moved for a summary judgment in the district court which the court denied. Instead, the court granted motions filed by the appellees praying to have the amended complaint dismissed for failure to state a claim upon which relief could be granted. Also, the court denied a motion of appellant to substitute as a party-defendant in place of appellee Kennedy one Michael J. Murphy, who had succeeded Kennedy as Police Commissioner of New York City.

We affirm the district court's order dismissing the complaint. It is within the discretion of the district court to decline to exercise its jurisdiction to grant declaratory relief. 28 U.S.C. § 2201 (1958); Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952); cf. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945). In Brillhart v. Excess Insur. Co., 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), the Supreme Court stated:

"Although the District Court had jurisdiction of the suit under the Federal Declaratory Judgments Act, 28 U.S.C.A. § 400 it was under no compulsion to exercise that jurisdiction.

The petitioner\'s motion to dismiss the bill was addressed to the discretion of the court."

Appellant disclaims any intention of attempting to use the declaratory judgment he here seeks as a ground for supporting a subsequent pre-trial motion designed to prevent any offer by the District Attorney to introduce into evidence at appellant's New York State trial the evidence the District Attorney's office admits was procured by wiretapping. Appellant realizes such an attempt on his part would be futile. See Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Schwartz v. Texas, 344 U.S. 199 (1952); Pugach v. Dollinger, 277 F.2d 739 (2 Cir. 1960) aff'd per curiam, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678 (1961); Williams v. Ball, 294 F.2d 94 (2 Cir. 1961), cert. denied, 368 U.S. 990, 82 S.Ct. 598, 7 L.Ed.2d 526 (1962). Appellant will be standing trial in a state court, not in a federal one, and even after the clear enunciation by the U. S. Supreme Court that a federal crime is committed when § 605 is violated, the New York State Court of Appeals has held, although by a sharply divided court, 4-3, that the contents of telephone conversations learned through wiretap eavesdropping by officers authorized to wiretap by orders granted under Article I, Section 12 of the New York State Constitution and Section 813-a of the New York Code of Criminal Procedure are not inadmissible in New York State criminal trials. People v. Dinan, 11 N.Y. 2d 350, 229 N.Y.S.2d 406, 183 N.E.2d 689 (1962), cert. den. 83 S.Ct. 146. But see Fuld, J., dissenting, 11 N.Y.2d 350, 354, 229 N.Y.S.2d 410, 411, 183 N.E.2d 689.² Thus appellant's disclaimer is well founded.

Appellant is now merely seeking that a federal court declare that the appellees have violated the oaths of office which they took when they assumed their non-federal offices. If we should so declare, such an order would not be determinative of any controversy to which appellant is a party and would be valueless to appellant, cf. Williams v. Ball, supra. Therefore, we seriously question whether appellant presented to the court below an actual controversy as required by the U. S. Constitution, Art. III, § 2, and the Federal Declaratory Judgments Act, 28 U.S.C. §§ 2201-02 (1958). See Coffman v. Breeze Corps., 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264 (1945). A dispute of a hypothetical, abstract, or academic nature is not a justiciable controversy. For an issue to be justiciable it must be definite and concrete, must touch the legal relations of the parties, and must be subject to a judicial grant of a specific relief through a court decree of a conclusive character, Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937); and see Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941). Faced with these considerations, prerequisite to a grant of appellant's prayer, the district court acted properly when it decided not to entertain this declaratory judgment action.

Furthermore, we fail to see any substantial distinction between the present case and our recent decision in Williams v. Ball, 294 F.2d 94 (2 Cir. 1961), cert. denied, 368 U.S. 990, 82 S.Ct. 598, 7 L.Ed.2d 526 (1962). In that case we affirmed the district court's dismissal of an action seeking a federal declaratory judgment that the New York constitution and statutes which authorized wiretaps were invalid.

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