Negron v. Wallace, 246

• Decision Date: 04 January 1971
• Docket Number: 247,Dockets 35037,No. 246,35166.,246
• Citation: 436 F.2d 1139
• Parties: Tomacita NEGRON, by her next friend, Jonathan Weiss, Plaintiff-Appellant, v. John A. WALLACE, individually and as Director of Probation of the City of New York; Arthur B. Cole, individually and as Director of Institutional Services of Office of Probation of the City of New York; and Richard Johnson, individually and as Director of the Manida Juvenile Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

436 F.2d 1139 (1971)

Tomacita NEGRON, by her next friend, Jonathan Weiss, Plaintiff-Appellant, v. John A. WALLACE, individually and as Director of Probation of the City of New York; Arthur B. Cole, individually and as Director of Institutional Services of Office of Probation of the City of New York; and Richard Johnson, individually and as Director of the Manida Juvenile Center, Defendants-Appellees.

Nos. 246, 247, Dockets 35037, 35166.

United States Court of Appeals, Second Circuit.

Argued November 30, 1970.

Decided January 4, 1971.

Jonathan Weiss, Center on Social Welfare Policy & Law, New York City (John Gray, Center on Social Welfare Policy & Law, New York City, of counsel, and Abraham A. Arditi, on the brief), for plaintiff-appellant.

Carmen J. Beauchamp, Asst. Counsel, New York City (Lawrence N. Marcus, Counsel, Judicial Conference of the State of New York, New York City, of counsel), for defendants-appellees.

Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

This court yields to none in recognizing the high place in our legal system held by § 1 of the Enforcement Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983, and the Act's jurisdictional implementation, 28 U.S.C. § 1343(3). It would be hard to think of any more compelling task for a federal court than "to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States." If the time has come, as many federal judges are convinced it has, when in order to discharge that duty, to expedite the trial of federal criminal cases, and to determine other questions arising under federal law, the federal courts must be relieved of tasks for which they have no peculiar competence, the Congress should move swiftly to that end.

On the other hand, the framers of the Act of 1871 could hardly have intended it to become the standard method of constitutional attack upon state action although, until then, the lower federal courts had scarcely been available for that purpose at all, see Hart & Wechsler, The Federal Courts and the Federal System, 727-30 (1953). Suits under that statute thus should not be lightly brought. Apart from the burden they impose on federal judges¹ and their abrasive effect on federal-state relations, counsel should never forget Mr. Justice Jackson's observation, in a closely related context, that "it must prejudice the occasional meritorious application to be buried in a flood of worthless ones." Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 425, 97 L.Ed. 469 (1953) (concurring opinion). See Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv.L.Rev. 1486 (1969), and the reply by Paul Chevigny, Esq., attorney for the New York Civil Liberties Union, 83 Harv.L. Rev. 1352 (1970). There is thus a responsibility, resting upon all counsel but especially upon those for civil rights organizations, not to swell the tidal wave of actions under the civil rights statute by bringing suits for declaratory or injunctive relief when no need for this exists. All too often we see a motion for a temporary injunction allegedly requiring the district judge to set all his other tasks aside and determine, in days or even hours, on the basis of conflicting affidavits, much of them hearsay, and scanty briefs, a constitutional issue of great pith and moment that could have been considered, in a much more orderly fashion and with a better development of the facts, by the presentation of a defense in a state court, with ultimate review by the Supreme Court if that should prove to be required. If the judge denies the temporary injunction, as he well may do simply because of the inadequacy of the factual showing, this court is similarly asked to shunt other suitors aside and stay or precipitately reverse. Another variant, even less excusable, is a case like this, where the need for action by any court on the point that ignited the controversy has disappeared even before the suit was brought and where problems for the future, if there are any, can in all probability be resolved by calm discussions with state officials in the absence of any litigation whatsoever. Compare Fortas, Thurman Arnold and the Theatre of the Law, 79 Yale L.J. 988, 995 (1970).

The action concerns New York's procedures with respect to counsel under Article 7 of the Family Court Act, entitled "Proceedings Concerning Juvenile Delinquency and Whether a Person is in Need of Supervision," more particularly the latter. Section 732 provides for a proceeding to adjudicate a male under 16 or a female under 18 as being in need of supervision if the child "is an habitual truant or is incorrigible, ungovernable, or habitually disobedient and beyond the lawful control of his parents, guardian or lawful custodian" and "requires supervision or treatment." Proceedings may be initiated by a peace officer, the parent or other person legally responsible for the juvenile's care, a victim or witness of the juvenile's objectionable activity, or the recognized agents of a duly authorized organization, § 733. Detention pending the initial hearing is authorized only if the court finds there is a substantial probability that the juvenile will not appear in court on the return date or a serious risk that before that date he may do an act which would constitute a crime if performed by an adult. The next step is a "fact-finding hearing," § 742, which must be held within three days after the filing of the petition if the juvenile is under detention, § 747. This hearing is limited to determining whether the juvenile did the acts alleged to demonstrate that he needs supervision, § 742. At the conclusion of this hearing or later, there is a "dispositional hearing" to determine whether the juvenile requires supervision or treatment, §§ 743, 746.

Article 2, Part 4, of the Family Court Act manifests New York's concern "that minors who are the subject of family court proceedings should be represented by counsel of their own choosing or by law guardians," § 241. This latter group consists of attorneys "admitted to practice law in the state of New York" who are designated as law guardians by the appellate division of the Supreme Court through agreement with a legal aid society, or otherwise, §§ 242, 243. In any proceeding under Article 7, the family court must "appoint a law guardian to represent a minor who is the subject of the proceeding if independent legal representation is not available to such minor by reason of inability to pay other counsel or other circumstances," § 249.

Plaintiff Tomacita Negron, aged 16, was taken into custody on October 16, 1969, upon a petition brought by her mother claiming her to be a person in need of supervision. On the following day, the Family Court held a fact-finding hearing at which Tomacita was represented by a member of the New York Legal Aid Society who had been appointed as her law guardian. Upon her admission of the allegations of the petition, she was found to be a person in need of supervision and was remanded to Manida Hall Juvenile Center, first until October 27, when she was again represented by a law guardian in a dispositional hearing which was adjourned, and then until November 6.

Jonathan A. Weiss, then a staff attorney for MFY Legal Services, Inc., who brought this action as Tomacita Negron's "next friend," had represented her on two occasions earlier in 1969 when her mother filed petitions alleging her to be in need of supervision. Each time he had succeeded in getting Mrs. Negron to withdraw the petition. There was an intervening placement, in connection with which Mr. Weiss apparently did not represent her, at another juvenile centre whence, according to her mother, Tomacita exited through a back window. Nothing in the transcript of the October 17 Family Court hearing indicates that Tomacita manifested any desire to have Mr. Weiss rather than the Legal Aid Society lawyer act for her. Indeed, the only evidence that Tomacita desired Mr. Weiss' services is his statement in a supplemental affidavit, apparently submitted after the argument in the district court, that when he got to see her on November 6, as recounted below, she informed him "that she had been asking for him as her lawyer," without any detail as to when or to whom the request was made.

Late in the afternoon of Friday, October 31, 1969, Mr. Weiss learned "through the family" that Tomacita was at Manida Hall. Wishing to see her over the weekend, he applied to various state or city employees to that purpose. While the affidavits differ as to the cooperativeness or uncooperativeness of the employees and of Mr. Weiss, it seems fairly plain he was told that he could see Tomacita only if accompanied by one of her parents or if authorized by one of the many judges of the Family Court, all of whom were listed in the telephone book, or by filing a notice of appearance when the Family Court opened early on the morning of Monday, November 3.

Mr. Weiss did not follow either course that might have made it possible to see Tomacita during the weekend — for what useful purpose the record does not disclose. He claimed in argument that application to Mrs. Negron would have been...