41 Misc. 2d 641 | N.Y. Sup. Ct. | 1963
This proceeding in the nature of prohibition is brought by the guardian ad litem of two infants, one 17 and the other 15 years of age, to restrain the respondent Wyman, as the New York State Administrator of the Interstate Compact on Juveniles (see L. 1955, ch. 155), the Family Court of the State of New York, County of Westchester, and the Honorable Robeet E. Dempsey, a Judge of that court, from enforcing a requisition issued by the Fourth District Court of Plymouth, Massachusetts, pursuant to the compact, for the return of the infants to the State of Massachusetts. Prior to
It is alleged in the amended petition in this proceeding that the health, safety and morals of the infants will be endangered if they are returned to their parents, who, petitioner asserts, are unfit to have their custody. It is also asserted that enforcement of the requisition is without and in excess of the jurisdiction of the defendants Wyman, the Family Court and the Judge, because the compact pursuant to which it was issued is repugnant to the due process clauses of the Constitutions of the State of New York and of the United States, in that it deprives persons, and particularly these infants, of their liberty, without notice or opportunity to be heard, is repugnant to section 10 of article I of the Constitution of the United States in that it is a compact between States which has not received the approval of Congress, is further repugnant to the Fourteenth Amendment of the Constitution of the United States in that it denies the infants equal protection of the law and abridges their privileges and immunities as citizens, that it violates article VI of the New York State Constitution in that it attempts to divest the Supreme Court of the State of New York of its constitutional jurisdiction and to give judicial power to the respondent- Wyman, who is not a
The Attorney-General has moved to dismiss the petition, and it is my understanding that the motion may be considered as addressed to the amended petition, on the grounds that it is insufficient to entitle the petitioner to any relief, and on the further ground that with respect to the respondent Wyman the petition reveals no action, inaction, or determination on his part which authorizes relief.
The Interstate Compact on Juveniles was executed on behalf of the State of New York pursuant to chapter 155 of the Laws of 1955, and clearly states its purpose, based on a finding that juveniles who are not under proper supervision, or who have absconded, escaped or run away are likely to endanger their own health, morals and welfare, and the health, morals and welfare of others, to provide for the welfare and protection of juveniles and of the public with respect (inter alia) to the return, from one State to another, of nondelinquent juveniles who have run away from home. It is provided that in carrying out the provisions of the compact the party States shall be guided by the noncriminal, reformative and protective policies which guide their laws concerning delinquent, neglected, or dependent juveniles, generally, that the party States shall observe their respective responsibilities for the prompt return of juveniles who become subject to the provisions of the compact, and that such provisions shall be reasonably and liberally construed to accomplish its purposes. It is further stated that the remedies and procedures provided by the compact shall be in addition to, and not in substitution for, other rights, remedies and procedures.
Article IY of the compact, xvith which we are here concerned, deals with the return of runaways. It provides that the parent, guardian, person or agency entitled to legal custody of a juvenile who has not been declared delinquent but who has run away may petition the appropriate court in the demanding State (any court having jurisdiction over delinquent, neglected or dependent children) for the issuance of a requisition for his return. The petition, besides meeting other requirements, must state facts tending to show that the juvenile is endangering his own welfare or the welfare of others. The Judge to whom the application is made may decide either after or without a hearing whether or not it is in the best interest of the juvenile to compel his return to the State. If he so decides he may present to the appropriate court or to the executive authority of the State
Concededly the compact has not received the approval of Congress. Nevertheless, it' is not repugnant to the provisions of the third clause of section 10 of article I of the Constitution of the United States insofar as they provide that no State shall, without the consent of Congress, enter into any agreement or compact with another State. The constitutional prohibition does not apply to every possible compact or agreement between one State and another, but is directed to the formation of any combination tending to increase the political power in the States which may encroach upon or interfere with the just supremacy of the United States (Virginia v. Tennessee, 148 U. S. 503, 519; Landes v. Landes, 1 N Y 2d 358, 365). The compact on juveniles has no such purpose or effect.
Neither is the compact repugnant to the provisions of the Fourteenth Amendment of the United States Constitution in the sense that it denies these infants equal protection of the law or abridges their privileges and immunities as citizens of the United States. The equal protection clause of the Fourteenth Amendment does not take from the States the power to classify in the adoption of laws designed to implement the authority of the State as parens patries or to protect the public safety and welfare, and it does not appear that there has been any arbitrary or unreasonable classification in the compact, insofar as it applies to runaways. Since the compact applies uniformly to all runaways from States which are parties to it, petitioner may not complain that the infants have been denied equal protection of the law. Neither does it appear that any of their privileges or immunities have been abridged if they are properly subject to the restraint authorized by the compact. A more serious question is presented, however, by their claim
If the provisions of the compact are to be literally and strictly interpreted, little argument is required to demonstrate the merit of petitioner’s criticism of them. So interpreted, they permit an ex parte determination that those making application for a requisition in the demanding State are entitled to custody of the infants, that the infants are endangering their own welfare, or the welfare of others, and that it is in their best interests to compel their return to the demanding State. When a requisition is issued, an order may be made, again without notice to them, directing their arrest and restraint, and although they must be taken before a Judge, he must deliver them over to the officer appointed to receive them, to be returned if he finds that the requisition is “ in order ” although he may fix a reasonable time for the purpose of testing the legality of the proceeding. Nowhere does the compact expressly provide that a hearing of any kind must be given the infants, either before or after their return to the State to which they are to be returned, although they are to be subject, on their return, to “ such further proceedings as may be appropriate, under the laws of that State. ’ ’
Although due process of law cannot be defined with precision, the very least which it requires is “ an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing or an opportunity to be heard is absolutely essential” (Stuart v. Palmer, 74 N. Y. 183, 191; Matter of Coates, 9 N Y 2d 242, 249).
The compact, as has been stated, provides for a finding that it is for the best interests of a juvenile, who has run away from parental or other legal custody, to compel his return, without notice to the juvenile, but a requisition may not issue, nor may he be arrested or detained under it, unless an application for the requisition has been made by a parent, guardian or other person who has at least a prima facie right to custody, and who may be presumed, in the absence of proof to the contrary, to speak for the juvenile and to act in his best interests. The requisition issues, and the arrest and detention of the juvenile is directed, when the Judge to whom the application is made is satisfied that it is in his best interests that he be
It must be conceded that more appropriate language could have been employed to express that intent. It is, however, consistent not only with the expressed purposes of the compact but also with the concern of the State with the welfare of infants, and that of the Legislature, acting on behalf of the State as parens patrice (cf. Matter of Brock, 245 App. Div. 5) and it has been frequently held, in giving effect to the legislative intent, that when power to act is given to public officers, by language permissive in form, the language must be construed as mandatory, whenever the public interest, or individual rights, call for the exercise of the power (People ex rel. Otsego County Bank v. Board of Supervisors of Otsego County, 51 N. Y. 401, 407; Phelps v. Hawley, 52 N. Y. 23; People ex rel. Reynolds v. Common Council, 140 N. Y. 300).
It is not necessary, however, in this proceeding, to determine whether the compact should be so construed. Whatever the intent of the compact may be, the facts alleged and conceded establish that these infants are not aggrieved, even if the compact does not, by its provisions, afford them a hearing. They have asked for and received an adjournment of the proceedings before the Family Court, and have made application to this court for the determination of their right to remain with and under the custody of their sister. The same application might have been made to the Family Court (see 1ST. Y. Const., art. VI, § 13, subd. b, par. [2]). It is provided by the Constitution that the Supreme Court is continued and shall have general jurisdiction in law and equity (1ST. Y. Const., art. VT, §§ 6, 7). It follows that its jurisdiction cannot be limited by the Legislature or by any authority conferred or duty
Petitioner’s final contention, that the enforcement of the compact is not within the jurisdiction of the Family Court, or a Judge thereof, may not be sustained. The court has complete
Petitioner’s motion to further amend her petition by pleading as to the infant Victoria Yen the provisions of section 913-a of the Code of Criminal Procedure will be granted on condition that the motion to dismiss shall be deemed to be directed against the petition as so amended. The amendment, however, does not provide sufficient grounds for a denial of that motion. The meaning of section 913-a insofar as it relates to the compact is not clear. If it was intended to provide that infants over 16 who have been adjudicated wayward minors shall be subject to the provisions of article IV of the compact only if they have left their homes without just cause, and are morally depraved or in danger of becoming morally depraved, it has no application whatever to Victoria, since she has never been adjudicated a wayward minor. If it means, as seems more likely, that the provisions of article IV of the compact shall apply to infants over 16 who may be deemed wayward minors, only under such circumstances, it will be for the Family Court Judge to determine the facts upon which he must decide whether he has jurisdiction to enforce the compact. Belief in the nature of prohibition should not be granted in such a case (cf. Matter of Kenler v. Murtagh, 12 A D 2d 662). Petitioner’s motion to correct the caption of the proceeding will also be granted. Insofar as the respondent Wyman is concerned, the petition reveals that no determination, action or inaction on his part with respect to which relief may be granted, is involved in the proceeding. Respondents’ motion to dismiss is granted, and an order may be submitted accordingly on notice.