Leigh v. McGuire, 290

• Decision Date: 19 December 1979
• Docket Number: No. 290,D,290
• Citation: 613 F.2d 380
• Parties: Charles W. LEIGH and Leonard Allen, Appellants, v. Robert McGUIRE, Individually and as Police Commissioner of the City of New York and Chairman of the Board of Trustees of the Police Pension Fund, Article II, Appellee. ocket 79-7479.
• Court: U.S. Court of Appeals — Second Circuit

Page 380

613 F.2d 380

Charles W. LEIGH and Leonard Allen, Appellants, v. Robert McGUIRE, Individually and as Police Commissioner of

the City of New York and Chairman of the Board of

Trustees of the Police Pension Fund,

Article II, Appellee.

No. 290, Docket 79-7479.

United States Court of Appeals,

Second Circuit.

Argued Nov. 1, 1979.

Decided Dec. 19, 1979.

Victor J. Herwitz, New York City (Donald E. Nawi, New York City, on the brief), for appellants.

L. Kevin Sheridan, New York City (Allen G. Schwartz, Corp. Counsel, City of New York, and Alexander J. Wulwick, New York City, on the brief), for appellee.

Before MOORE, TIMBERS and VAN GRAAFEILAND, Circuit Judges.

TIMBERS, Circuit Judge:

Appellants, two former police officers who were discharged from the New York City Police Department in 1970, commenced the instant action in the Southern District of New York on May 12, 1978 pursuant to 42 U.S.C. § 1983 (1976), seeking to vacate and annul their dismissal from the force. The basis of their action was that the use of illegally obtained wiretap evidence against them in Police Department proceedings violated their rights under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511 Et seq. (1976), and under the Fourth and Fourteenth Amendments. The district court in an opinion filed April 6, 1979, 468 F.Supp. 1163, granted summary judgment for appellee Police Commissioner, ruling that the action was barred by the applicable New York three-year statute of limitations. From the judgment entered on Judge Sweet's opinion, this appeal has been taken.

The issue on appeal is whether the statute of limitations should be tolled during the period in which appellants litigated the same substantive claim in the New York state courts. Under the circumstances of this case, we hold that the statute should be tolled. We therefore reverse and remand. ¹

I.

In view of the narrow legal issue on which this appeal turns, we cut through the procedural morass of state court proceedings during the past decade and briefly summarize here only those facts and prior proceedings believed necessary to an understanding of our ruling on the legal issue presented. ²

Appellants Charles Leigh and Leonard Allen joined the New York City Police Department in 1951. In 1968 they were indicted for an alleged conspiracy to accept bribes from gamblers. They were suspended from the force without pay. In October 1970 the Acting Police Commissioner made a final determination dismissing appellants from the force. Appellants then commenced an Article 78 proceeding, N.Y.Civ.Prac.Law § 7801 (McKinney 1963), alleging, inter alia, that their dismissals were based on evidence obtained by means of illegal wiretaps. From this point on, appellants' Article 78 and criminal proceedings progressed "in tandem" through the New York courts. Although technically separate, the issues presented in each were substantially the same. The New York courts recognized that the criminal and Article 78 proceedings were closely tied. ³

Appellants' dismissal from the force was upheld by the Appellate Division, First Department, in 1971. The following year they were convicted on the criminal charges. In February 1974, however, the Appellate Division ruled that certain wiretap evidence which had been used in appellants' criminal trial had been obtained illegally. Their convictions, therefore (along with the convictions of several other defendants), were vacated. People v. Koutnik, note 1, Supra. Because of the wiretap ruling in Koutnik, the Appellate Division entered an order on June 18, 1974 which annulled appellants' dismissal from the police force. This order of annulment was stayed, however, pending the state's appeal from the Appellate Division's ruling in Koutnik.

In October 1975 the New York Court of Appeals affirmed the Appellate Division's ruling in Koutnik that the wiretap evidence had been illegally obtained. Since the Court of Appeals decision ostensibly settled once and for all that the wiretap evidence against appellants the basis for the bribery charges in both the departmental and the criminal proceedings had been obtained illegally and hence was inadmissible, appellants sought appropriate final relief in their Article 78 proceeding. They therefore moved in the Appellate Division to vacate the stay of the June 18, 1974 order which had annulled their dismissals from the police force. In December 1975, however, the Appellate Division, without opinion, denied appellants' motion and instead granted the motion of the Police Commissioner to vacate the June 18, 1974 order of annulment. ⁴

The final result of the extensive proceedings in the state courts was that appellants succeeded in establishing their claims of constitutional violations, and yet were denied relief. In an effort to correct this incongruous result, appellants commenced the instant § 1983 action to obtain the relief which had been denied them at the state level.

II.

It is well established that in an action brought under § 1983 federal courts should apply the statute of limitations applicable to the most similar state cause of action. Williams v. Walsh, 558 F.2d 667, 670 (2 Cir. 1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2 Cir. 1974). In this case, the New York three-year statute of limitations must govern the claim. ⁵ Appellants' cause of action first accrued when they were dismissed from the force in 1970. Their § 1983 action was not commenced until May 1978. Appellants argue, however, that the § 1983 complaint was timely filed because the statute of limitations was tolled until at least December 1975, while they litigated their claims in the state courts.

There is no doubt that a federal court has the power to toll borrowed statutes of limitations in § 1983 actions. Meyer v. Frank, 550 F.2d 726, 729 (2 Cir.), Cert. denied, 434 U.S. 830 (1977); Kaiser v. Cahn, supra, 510 F.2d at 286-87. The question before us today is whether the circumstances of this case warrant such tolling. In answering this question, we must attempt to balance policies of federalism which are served by tolling the statute of limitations against policies of repose served by strict application of the statute of limitations.

Ordinarily, the remedial policy underlying § 1983 would not be impinged by strict application of the three-year state limitations period, since § 1983 plaintiffs are not required to exhaust state remedies before seeking federal relief. Nevertheless, considerations of comity and federalism under some circumstances do require that the statute of limitations be tolled during the pendency of state court or agency proceedings. Federal courts should avoid as much as possible "intruding upon the domain which is particularly the responsibility of the state courts". Williams v. Walsh, supra, 558 F.2d at 674. Thus, where a potential § 1983 plaintiff initially enters the state courts or administrative agencies to prosecute State-created claims, federal courts have tolled the § 1983 statute of limitations during the pendency of the state or administrative proceedings. In this way, federal courts have protected the plaintiff's right to seek his federal remedies under § 1983 without interfering with the state's resolution of its own causes of action. Tomanio v. Board of Regents, 603 F.2d 255 (2 Cir. 1979); Mizell v. North Broward Hospital District, 427 F.2d 468 (5 Cir. 1970); See Williams v. Walsh, supra, 558 F.2d at 674.

In the instant case, the district court, relying upon Meyer v. Frank, supra, and Williams v. Walsh, supra, held that tolling would not further the interests of federalism because appellants raised both state and federal issues in the state courts. Thus, concluded the court, "the policy of avoiding federal interference with state affairs survives here in a diluted posture." (quoting Meyer v. Frank, supra, 550 F.2d at 729).

The mere fact that federal claims were raised in the state proceedings, however, does not necessitate the conclusion that policies of federalism do not support tolling. Here, appellants were being Criminally prosecuted and, as stated above, the Article 78 proceeding was very much intertwined with the criminal proceedings. When the Appellate Division found the wiretaps illegal in the criminal case of People v. Koutnik, supra, for example, it also vacated the dismissal orders in the Article 78 proceeding, noting that the civil and criminal actions required a "uniform . . . result." Note 3, Supra.

The fact that appellants' federal claims were raised in criminal proceedings and in the Article 78 proceeding closely tied to the criminal proceedings distinguishes this case from Meyer and Williams. Unlike in Meyer and Williams, appellants here did not "choose" the state forum to litigate their federal claims while holding the federal forum "in reserve." Meyer v. Frank, supra, 550 F.2d at 729. Appellants were forced to raise their constitutional claims as a defense in their state trial. Moreover, the interrelationship of the criminal and civil actions at the state level provides strong support for the conclusion that the statute of limitations should be tolled here. Federal courts must be particularly wary of interfering with the functions of state courts when state criminal proceedings are involved. See generally Younger v. Harris, 401 U.S. 37 (1971); Steffel v. Thompson, 415 U.S. 452 (1974); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975). Interests of federalism, therefore, favored the deferral of the federal action here until the issues all were finally resolved in the state criminal proceedings, including two levels of appeals.

By tolling the statute of limitations during the pendency of appellants' Article 78 proceeding and the criminal appeals involving the issue of wiretap illegality, we are able to comply with the Younger rule that federal courts should "vindicate and protect federal rights and federal interests . . . in ways that will not unduly interfere with the...