Sarisohn v. Appellate Div., Second Dept., S. Ct. of St. of NY, No. 67-C-178.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtBARTELS
Citation265 F. Supp. 455
PartiesFloyd SARISOHN, Suffolk County District Court Judge, Plaintiff, v. APPELLATE DIVISION, SECOND DEPARTMENT, SUPREME COURT OF the STATE OF NEW YORK, Defendant.
Decision Date16 March 1967
Docket NumberNo. 67-C-178.

265 F. Supp. 455

Floyd SARISOHN, Suffolk County District Court Judge, Plaintiff,
v.
APPELLATE DIVISION, SECOND DEPARTMENT, SUPREME COURT OF the STATE OF NEW YORK, Defendant.

No. 67-C-178.

United States District Court E. D. New York.

March 16, 1967.


265 F. Supp. 456

Arthur Goldstein and Harry C. Brenner, Huntington, N. Y., for plaintiff.

Louis J. Lefkowitz, Atty. Gen. of State of New York, for defendant; Samuel A. Hirshowitz, First Asst. Atty. Gen., Robert E. Hugh, Robert S. Hammer, Asst. Attys. Gen., of counsel.

BARTELS, District Judge.

This is an application under Rule 65 (b), Fed.Rules Civ.Proc., 28 U.S.C.A., by Floyd Sarisohn, Judge of the District Court of Suffolk County, for an order temporarily restraining the defendant, Appellate Division, Second Department, Supreme Court of New York, from conducting any proceedings against him pending the determination of his present action against the defendant as set forth in his complaint.

The action is instituted under 28 U.S. C.A. § 1343 and 42 U.S.C.A. § 1983 (Civil Rights Act), demanding a permanent injunction restraining the defendant from taking further proceedings to remove

265 F. Supp. 457
the plaintiff from his judgeship pursuant to Article VI, Section 22(i) of the New York State Constitution, Section 132 of the Code of Criminal Procedure, and Section 103(e) of the Uniform District Court Act, upon the ground that said New York constitutional and statutory provisions are unconstitutional. The complaint also requests that a three-judge special district court be invoked to decide the issue pursuant to 28 U.S.C.A. § 2281. Defendant moves for a dismissal of the complaint under Rule 12(b) (1) and (6), Fed.Rules Civ.Proc., 28 U.S.C.A., upon the ground that the Court lacks jurisdiction over the subject matter and that the plaintiff fails to state a claim upon which relief can be granted. At the same time it opposes plaintiff's application for a three-judge court and the issuance of a temporary restraining order

Plaintiff was elected a District Court Judge of Suffolk County for a term of six years, beginning January 1, 1964. Subsequently, on August 12, 1966, the Appellate Division ordered an investigation concerning plaintiff's conduct, pursuant to Article VI, Section 22(i) of the New York State Constitution and Section 132 of the Code of Criminal Procedure, and in connection therewith relieved plaintiff from his judicial assignments until further order of the Court.

Article VI, Section 22(i) of the New York State Constitution provides, in substance, for the removal of a district court judge "for cause", and Section 132 of the Code of Criminal Procedure and Section 103(e) of the Uniform District Court Act implement this provision by setting forth the mechanics of conducting the removal proceedings.

Plaintiff's charges of unconstitutionality may be reduced to two fundamental contentions, (1) that the term "for cause" in the State Constitution and relevant removal statutes violates due process and consequently is unconstitutional and void because of vagueness, and (2) that the scheduled trial before the Appellate Division violates plaintiff's rights under the due process and equal protection clauses of the Fourteenth Amendment. These contentions are predicated upon charges that (i) the Appellate Division is an interested party and will be acting as prosecutor, judge and jury; (ii) among the original charges against plaintiff are charges accusing him of making statements which discredited the Presiding Justice and all the Justices of the Appellate Division, which in turn has biased the Appellate Division; and (iii) among the nine charges against plaintiff, four relate to events which occurred before he became a judge. In the action before the Appellate Division plaintiff moved to dismiss the complaint upon the above grounds or in the alternative, for the Appellate Division to disqualify itself and to order a hearing before one of the other Appellate Divisions. These motions were denied and thereafter the Court of Appeals denied leave to appeal.

The critical question, as far as this Court is concerned, is whether it would be justified in invoking a three-judge statutory court to consider the above issues. It is fundamental that a district judge may not convene such a court if he is convinced that the ground for the constitutional attack on the State Constitution or statute is insubstantial, Bell v. Waterfront Commission of New York, 2 Cir. 1960, 279 F.2d 853, 857; Powell v. Workmen's Compensation Bd. of State of New York, 2 Cir. 1964, 327 F.2d 131, 138; Bradley v. Waterfront Com'n of New York Harbor, S.D.N.Y. 1955, 130 F.Supp. 303; The Three Judge District Court, Scope and Procedure under Section 2281, 77 Harv.L.R. 299 (1963-64), and this insubstantiality may appear because either the issue is "obviously without merit" or its invalidity results from previous decisions of the Supreme Court (California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323). In other words, the three-judge statute may not be invoked when the constitutional issue presented is "essentially fictitious". Bailey v. Patterson, 1962, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512.

265 F. Supp. 458
Mere form of words alleging a violation of the Constitution and labelling the suit as one to restrain action by State officers in enforcing an invalid constitutional or statutory provision is insufficient without some support in the complaint of fact or law....

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26 practice notes
  • McComb v. Commission On Judicial Performance
    • United States
    • United States State Supreme Court (California)
    • 2 Mayo 1977
    ...v. Bell, supra, 332 F.Supp., pp. 612--615; see also, Sarisohn v. Appellate Div., Second Dept., S. Ct. of St. of N.Y. (E.D.N.Y.1967) 265 F.Supp. 455; Naplitano v. Ward (N.D.Ill.1970) 317 F.Supp. 79, (7) Failure of the Commission to state its reasons for its decisions constituted a denial of ......
  • Fuchsberg, Matter of
    • United States
    • New York Court on the Judiciary
    • 16 Marzo 1978
    ...of judicial officers by the community." (Sarisohn v. Appellate Div., Second Dept., Supreme Ct. Page 641 of State of N. Y., (D.C.) 265 F.Supp. 455, 458; Bartlett v. Flynn, 50 A.D.2d 401, 404, 378 N.Y.S.2d 145, 148, app. dsmd. 39 N.Y.2d 942, 386 N.Y.S.2d 1029, 352 N.E.2d We consider first res......
  • Halleck v. Berliner, Civ. No. 76-1985.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 7 Marzo 1977
    ...g., Keiser v. Bell, 332 F.Supp. 608, 613-15 (E.D.Pa.1971); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455, 458-59 (E.D.N. Y.1967); In re Foster, 271 Md. 449, 471-72, 475-78, 318 A.2d 523 (1974).29 In the case at bar, the Commission's "Notice of......
  • Drexler v. Walters, No. 4-67 Civ. 390.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 23 Septiembre 1968
    ...Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455 (S.D.N.Y.1967); Brock v. Schiro, 264 F.Supp. 330 (E.D.La. 1967); Stevens v. Frick, 259 F.Supp. 654 (S.D.N.Y.1966), aff'd, 372 F.2d 378 (2d Cir. ......
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26 cases
  • McComb v. Commission On Judicial Performance
    • United States
    • United States State Supreme Court (California)
    • 2 Mayo 1977
    ...v. Bell, supra, 332 F.Supp., pp. 612--615; see also, Sarisohn v. Appellate Div., Second Dept., S. Ct. of St. of N.Y. (E.D.N.Y.1967) 265 F.Supp. 455; Naplitano v. Ward (N.D.Ill.1970) 317 F.Supp. 79, (7) Failure of the Commission to state its reasons for its decisions constituted a denial of ......
  • Fuchsberg, Matter of
    • United States
    • New York Court on the Judiciary
    • 16 Marzo 1978
    ...of judicial officers by the community." (Sarisohn v. Appellate Div., Second Dept., Supreme Ct. Page 641 of State of N. Y., (D.C.) 265 F.Supp. 455, 458; Bartlett v. Flynn, 50 A.D.2d 401, 404, 378 N.Y.S.2d 145, 148, app. dsmd. 39 N.Y.2d 942, 386 N.Y.S.2d 1029, 352 N.E.2d We consider first res......
  • Halleck v. Berliner, Civ. No. 76-1985.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 7 Marzo 1977
    ...g., Keiser v. Bell, 332 F.Supp. 608, 613-15 (E.D.Pa.1971); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455, 458-59 (E.D.N. Y.1967); In re Foster, 271 Md. 449, 471-72, 475-78, 318 A.2d 523 (1974).29 In the case at bar, the Commission's "Notice of......
  • Drexler v. Walters, No. 4-67 Civ. 390.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 23 Septiembre 1968
    ...Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455 (S.D.N.Y.1967); Brock v. Schiro, 264 F.Supp. 330 (E.D.La. 1967); Stevens v. Frick, 259 F.Supp. 654 (S.D.N.Y.1966), aff'd, 372 F.2d 378 (2d Cir. ......
  • Request a trial to view additional results

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