Tesmer v. Kowalski, 00-CV-10082.

• Decision Date: 30 June 2000
• Docket Number: No. 00-CV-10082.,00-CV-10082.
• Parties: John Clifford TESMER, Charles Carter and Alois Schnell, on behalf of themselves and all similarly situated individuals, and Arthur M. Fitzgerald and Michael D. Vogler, Plaintiffs, v. Judge John F. KOWALSKI, Judge William A. Crane and Judge Lynda Heathscott, in their official capacities, individually and as representatives of a class of similarly situated circuit court judges, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

114 F.Supp.2d 622

John Clifford TESMER, Charles Carter and Alois Schnell, on behalf of themselves and all similarly situated individuals, and Arthur M. Fitzgerald and Michael D. Vogler, Plaintiffs, v. Judge John F. KOWALSKI, Judge William A. Crane and Judge Lynda Heathscott, in their official capacities, individually and as representatives of a class of similarly situated circuit court judges, Defendants.

No. 00-CV-10082.

United States District Court, E.D. Michigan, Northern Division.

June 30, 2000.

COPYRIGHT MATERIAL OMITTED

Kary L. Moss, ACLU, Detroit, MI, Mark Granzotto, Detroit, MI, Jeanice Dagher-Margosian, Ann Arbor, MI, for Plaintiffs.

Thomas R. Wheeker, Michigan Department of Attorney General, Tort Defense Div., Lansing, MI, for Defendants.

OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR INJUNCTION AND DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

ROBERTS, District Judge.

I.

This matter is before the Court on Plaintiffs' Motion for Injunction filed May 9, 2000, and Plaintiffs' Motion for Class Certification, filed March 30, 2000. Plaintiffs request that the Court issue an injunction to enforce its prior declaratory judgment, which held that the denial of appellate counsel to indigents who have pled guilty or nolo contendere is unconstitutional. Additionally, they ask this Court to certify a class of circuit court judges similarly situated to the named Defendants. The parties have filed briefs, and, on Wednesday, June 28th, 2000, the Court heard argument. For the reasons explained below, Plaintiffs' Motion is GRANTED. Additionally, Judge Kolenda and all other similarly situated non-party judicial officers are bound by the present injunction, Fed.R.Civ.P. 65(d). Accordingly, Plaintiffs' Motion for Class Certification is DENIED.

II.

As a preliminary matter, this Court must consider whether it has jurisdiction to consider Plaintiffs' Motions. Defendants question the Court's authority in light of the fact that they have appealed the prior order to the Sixth Circuit Court of Appeals. Plaintiffs argue that Defendants have appealed an order that does not exist, inasmuch as their appeal concerns an "injunction," and this Court only entered a declaratory judgment. Because they claim the appeal is invalid, they encourage the Court to find jurisdiction.

The Court is mindful of the fact that an appeal generally divests the district court of jurisdiction over those aspects of the case which are involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). However, Griggs is "not an inflexible rule." Cochran v. Birkel, 651 F.2d 1219, 1223 (6th Cir. 1981). For example, a district court may proceed where "the order from which the appeal is sought is itself clearly nonappealable," id. at 1222, or "manifestly deficient." Id. at 1222 (quoting Hodgson v. Mahoney, 460 F.2d 326 (1st Cir.1972)). As such, there is reason to believe that the Court retains jurisdiction under the present circumstances.

Nonetheless, the Court finds it may assert jurisdiction without deciding whether Defendants' appeal meets the standards established in Griggs. The Court has the power to proceed with Plaintiff's Motions under the Declaratory Judgment Act, 28 U.S.C. § 2202. That act allows the Court to grant "further necessary or proper relief based on a declaratory judgment ... against a party whose rights have been determined by judgment." 29 U.S.C. § 2202. Since Plaintiffs' rights have been determined in this Court's prior Order, this Court may continue to grant such relief as necessary to protect those rights.

III.

On March 31, 2000 this Court issued an Opinion and Order (1) Granting in Part and Denying in Part Defendants' Motion to Dismiss, (2) Denying Plaintiffs' Motion for Preliminary Injunction; and (3) Granting Plaintiffs' Request for Declaratory Judgment. At issue before the Court was the constitutionality of P.A.1999, No. 200 ("the Act") and the practice of some Michigan judges of denying appellate counsel to indigents who have pled guilty or nolo contendere, for the purpose of preparing applications for leave to appeal their plea based convictions and sentences. The Court declared, in no uncertain terms, that the denial of counsel in such cases rendered an indigent defendant's appeal a meaningless ritual and was, therefore, unconstitutional. See March 31st Opinion and Order at 33-39. It specifically stated that the Act denied equal protection and due process to indigent defendants and similarly declared the challenged practices "of the judicial officer Defendants and other similarly situated state circuit court judges" unconstitutional.

Despite the March 31st Opinion and Order declaring the Act and practice unconstitutional, Defendant Heathscott continues to refuse to appoint appellate counsel to indigents who have pled guilty. Defendant Heathscott relies on her stated obligation to follow M.C.R. 6.425, a newly enacted Michigan Supreme Court rule designed to implement the Act that this Court declared unconstitutional.¹ Further, at oral argument, counsel for Judge Heathscott argued that Judge Heathscott had not violated this Court's declaration with respect to Plaintiffs, and that she was only failing to appoint counsel to criminal defendants who are not parties to this action.

Additionally, Judge Dennis Kolenda refuses to appoint appellate counsel, relying upon the fact that he was not a party to the original action. Judge Kolenda does concede that he had notice of this Court's Declaratory Judgment. (Plaintiffs' Motion for Issuance of an Injunction, at 4, citing Judge Kolenda's opinion in People v. Hill, No. 99-12376-FH (Kent Cir.Ct. Apr. 24, 2000)).

For the reasons stated below, the Court grants Plaintiffs' Motion for Injunction against Judge Heathscott. 28 U.S.C. § 2202; 42 U.S.C. § 1983; Fed.R.Civ.P. 65. Additionally, the Court cautions that Judge Kolenda and all other similarly situated non-party judicial officers are also bound by the present injunction. Under Fed.R.Civ.P. 65(d), an injunction is binding not only on the parties to the action, but also upon "those persons in active participation with them who receive actual notice of the order by personal service or otherwise." Thus, the Court finds it unnecessary to grant Plaintiffs' request to certify a class of circuit court judges similarly situated to the named Defendants.

IV.

Plaintiffs request that the Court issue an injunction against both Judges Heathscott and Kolenda, and further request that the Court grant their Motion to Certify a Class of circuit court judges similarly situated with respect to the named Defendants. The Court addresses each argument in turn.

A.

Upon review of the actions of Defendant Heathscott, the Court finds that a § 1983 injunction is appropriate. The authority to grant injunctive relief is conferred by 42 U.S.C § 1983, which could not be clearer that such relief is available once a declaratory decree has been violated. Additionally, the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., allows this court to grant "further necessary or proper relief based on a declaratory judgment ... against a party whose rights have been determined by judgment." 28 U.S.C. § 2202. Although injunctive relief against a state Court Judge is rarely awarded, "[t]here is no immunity bar to such relief, and in situations where, in their judgment, an injunction against a judicial officer was necessary to prevent irreparable injury to a petitioner's constitutional rights, courts have granted relief." Pulliam v. Allen, 466 U.S. 522, 537, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). In particular, "[w]hen no state proceeding is pending, the considerations of equity, comity and federalism are [ ] diminished, [and] a federal court may ... grant declaratory and injunctive relief." WXYZ, Inc. v. Hand, 658 F.2d 420, 423 (6th Cir.1981) (citing Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).

While this Court, as many other federal courts, is reluctant to interfere with the functions of a state court, there is no state court action pending which would determine the constitutionality of the Act. See Plaintiffs' Supplemental Authority, Concurring Opinion of Corrigan J. ("[T]he constitutionality of 1999 P.A. 200 is not before us in [People v.] Bulger."). Meanwhile, Judge Heathscott continues to act "under color of [a] regulation ... in [subjecting persons] to the deprivation of ... rights ... secured by the Constitution...." 42 U.S.C. § 1983. She does not contest that she continues to fail to appoint counsel to indigent criminal defendants who have entered guilty or nolo contendere pleas, contrary to this Court's declaration that such a practice violates the equal protection and due process requirements of the United States Constitution.

Further, while Defendant Heathscott apparently claims she is merely following a court rule that was not examined by the Court when it issued its March 31st Order, this argument does not immunize her actions. The Michigan court rule upon which she relies, M.C.R. 6.425, is specifically designed to implement the Act that this Court's Order clearly declared unconstitutional. See Order at 3 ("Additionally, the Court declares that 1999 P.A. 200 ... is unconstitutional in that it denies equal protection and due process to indigent individuals who have pleaded guilty or nolo contendere,"); see also Objections to implementation of court rules by Justices Cavanagh and Kelly, attached to Plaintiffs' Supplemental Authority (criticizing the Michigan Supreme Court's rush to amend the court rules to reflect the standards proposed in the Act). As such, the Michigan court rule conflicts with federal law and is "without effect" under the Supremacy Clause of the United States Constitution.² U.S. Const. art. VI; M'Culloch v State of Maryland, 17 U.S. (4 Wheat.), 316, 4 L.Ed. 579 (1819) (any...