Respress v. Ferrara

• Decision Date: 14 January 1971
• Docket Number: No. 70 Civ. 4853.,70 Civ. 4853.
• Citation: 321 F. Supp. 675
• Parties: Darryl RESPRESS, by his father and next friend, Horace Respress, on behalf of himself and all others similarly situated, Plaintiff, v. Vincent J. FERRARA, individually and as Judge of the New York City Family Court, and Florence M. Kelley, individually and as Administrative Judge of the New York City Family Court, Defendants.
• Court: U.S. District Court — Southern District of New York

321 F. Supp. 675

Darryl RESPRESS, by his father and next friend, Horace Respress, on behalf of himself and all others similarly situated, Plaintiff, v. Vincent J. FERRARA, individually and as Judge of the New York City Family Court, and Florence M. Kelley, individually and as Administrative Judge of the New York City Family Court, Defendants.

No. 70 Civ. 4853.

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

January 14, 1971.

Marcia Lowry, New York City (John Dewitt Gregory, Community Action for Legal Services, Inc., New York City, of counsel), for plaintiff.

Charles A. LaTorella, Jr., Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State of New York, New York City, of counsel), for defendants.

Before FRIENDLY, Circuit Judge, and McLEAN and LASKER, District Judges.

FRIENDLY, Circuit Judge:

In this action, wherein federal jurisdiction is predicated on 28 U.S.C. § 1343 (3) and (4), plaintiff seeks an injunction and a declaratory judgment with respect to a constitutional issue which has already been raised in his impending trial for delinquency in the Family Court of New York and can be appealed through the New York judicial hierarchy and then to the Supreme Court of the United States should the need arise. While recognizing the substantial character of the constitutional claim, we decline to interfere with the New York proceeding.

Plaintiff, a 15-year-old boy, is the subject of a proceeding originated under § 731 of the New York Family Court Act seeking to adjudicate him a juvenile delinquent on the ground that, while under the age of 16, he committed acts, to wit, armed robbery and possession of a deadly weapon, which would constitute crimes if done by an adult. Section 753 of the Family Court Act directs that, upon an adjudication of juvenile delinquency, the court shall make one of four dispositions: (1) suspending judgment; (2) continuing the proceeding and placing the child in its own home or in the custody of a suitable relative or other person, the commissioner of social services, or an authorized agency such as a state training school or a youth opportunity center; (3) placing the child on probation;¹ or (4) "committing the respondent in accord with section seven hundred fifty-eight." Section 758(a) provides that commitment may be "to the care and custody of an institution suitable for the commitment of a delinquent child maintained by the state or any subdivision thereof, to a commissioner of public welfare, or to an authorized agency, subject to the further orders of the court." Plaintiff raises no constitutional challenge to the possible dispositions set forth thus far. However, and here is the nub of the case, § 758(b) provides that a male juvenile may be committed to the Elmira reception center if he is adjudicated delinquent for commission at age 15 of an act (like armed robbery) which if committed by an adult would be a class A or B felony.² This center, a medium security correctional facility administered by the State's Department of Correction, 7 N.Y.C.R.R. 100.75, functions as a way-station for the purpose of reception, classification and program planning. It may also be the final place of detention for those, including children just over 16 sentenced as youthful offenders under N.Y.Code Cr.Proc. § 913-m, for whom it is believed to be indicated, N.Y.Correction Law, McKinney's Consol.Laws, c. 43, § 71. On the other hand, a 15-year old committed to Elmira under § 758(b), like an older child or an adult, can be transferred to other institutions within the state penal system upon proper findings by the Commissioner of Correction, N.Y.Correction Law § 23, 7 N.Y.C.R.R. 150.1. No commitments under either subsection of § 758 may exceed three years.

Raising the narrow issue that commitment under § 758(b) would be unconstitutional in the absence of a jury trial, plaintiff moved before Judge Ferrara in the Family Court to grant such a trial, a procedure which, although not usual in that court, is not expressly forbidden by the statute. The court denied the motion and the Appellate Division declined to grant leave for an interlocutory appeal, Family Court Act § 1112. Plaintiff thereupon filed this complaint seeking an injunction to restrain Judge Ferrara from adjudicating his delinquency without a jury trial or, if such a trial were not accorded, from committing him to Elmira under § 758(b). The complaint also sought a declaratory judgment that denial of a jury trial to a juvenile subject to possible commitment to Elmira was unconstitutional or alternatively that § 758(b) was unconstitutional insofar as it permitted commitment to Elmira without a jury trial.³ Believing that the complaint raised substantial constitutional questions, Judge Lasker requested the convening of a three-judge court, as plaintiff had asked, and issued an order temporarily restraining the Family Court from trying plaintiff without a jury or, if he were so tried and adjudicated a delinquent, from committing him to a penal institution. The trial was postponed, and the State answered and moved to dismiss the complaint. At the argument before us, both sides agreed there were no factual issues and that we should dispose of the case as on final hearing.

Plaintiff's constitutional claim is by no means unimpressive. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), established that proceedings against juveniles in special courts are subject to at least some of the provisions of the Bill of Rights which the Court considers the Fourteenth Amendment to have imposed upon the states. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), held the Sixth Amendment's guarantee of jury trial "in all criminal prosecutions" to be a provision so imposed in a case where the punishment might have been up to two years imprisonment although in fact Duncan was sentenced to only 60 days in the parish prison. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), vacated a conviction by a court of three judges where the maximum punishment was one year, and, as had already been intimated in Duncan, established a six month period of imprisonment as the constitutional dividing line. Plaintiff argues that, whatever may be the case with respect to other forms of detention authorized by § 753, commitment under § 758(b) to Elmira, an institution operated by the Department of Correction and the destination of many convicts who have been found guilty under procedures avowedly designed for the punishment of crime, constitutes criminal punishment and requires a jury trial, as prosecution of an adult for a crime entailing a maximum of three years imprisonment clearly would.⁴ While there is no Supreme Court authority specifically endorsing this claim, there is also none against it. In DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148 (1969), the Court was able to avoid decision on the constitutional need for jury trial in juvenile delinquency proceedings. Two cases presenting the problem are on its docket for the present term, In re Burrus, cert. granted, 397 U.S. 1036, 90 S. Ct. 1379, 25 L.Ed.2d 647 (1970) and McKeiver v. Pennsylvania, probable jurisdiction noted and set for oral argument with In re Burrus, 399 U.S. 925, 90 S.Ct. 2271, 26 L.Ed.2d 791 (1970), although plaintiff's counsel tells us they are somewhat less persuasive for the juvenile than this case since, under the legislation there at issue, the juvenile could be placed only in institutions separate and distinct from the state prison system. The state cases are divided. See Hall, Kamisar, LaFave and Israel, Modern Criminal Procedure, 1349 (3d ed. 1969), and Matter of Daniel Richard D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627 (1970), appeal docketed, as No. 953, 39 U.S.L.W. 3215 (U.S. Nov. 9, 1970), discussed below.

We believe that considerations of federalism require us to leave the assertion of plaintiff's claim to his defense in the Family Court and, to the extent that need arises, an appeal through the New York judicial system and to the Supreme Court of the United States.

In opposing the grant of the relief here sought, the State relies in the first instance on the anti-injunction statute, 28 U.S.C. § 2283. This directs that "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Plaintiff does not deny that an order directing the Family Court not to conduct Respress' trial except in a manner it has already rejected is "an injunction to stay proceedings in a State court * * *." See Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 80 L.Ed. 293 (1935). Rather he argues, first, that § 2283 is not an absolute prohibition but a matter of "comity" and, second, that in any event, because of the general grant of equity jurisdiction in the Civil Rights Act, 42 U.S.C. § 1983, an injunction here is "expressly authorized by Act of Congress."

Plaintiff's argument that § 2283 simply enunciates a principle of "comity", see 1A Moore, Federal Practice ¶ 0.208 3.-11 at 2313, ignores not only Justice Brandeis' reference to it as a "prohibition", see Hill v. Martin, supra, 296 U.S. at 403, 56 S.Ct. 278, and Justice Frankfurters' characterization of it as "a clear-cut prohibition qualified only by specifically defined exceptions," Amalgamated Clothing Workers of America v. Richman Bros., 348 U.S. 511, 516, 75 S.Ct. 452, 455, 99 L.Ed. 600 (1955), but the Supreme Court's recent explicit rejection of the "comity" view in Atlantic Coast Line R. R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286-287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970). The Court there adhered to Amalgamated Clothing Workers and held "that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific...