498 F.2d 802 | 2d Cir. | 1974
Lead Opinion
Between September 9 and 13, 1971, a disturbance by the inmates at the Attica Correctional Facility (Attica) resulted in many acts of violence and many deaths. A not unexpected aftermath has been an attempt to ascertain, both inside and outside prison walls, such persons as might have been responsible. Outside the prison a special grand jury was impaneled to consider possible criminal charges; inside the walls there remains the possibility of disciplinary hearings against inmates who took part in the disturbance.
Anticipating criminal and/or disciplinary action against them, nine
Plaintiffs-appellants (as Petitioners) asked that a three-judge court be convened. This request was denied; on appeal the denial was reversed by this court and remanded, Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973). On remand plaintiffs withdrew their request for an injunction. This left only the declaratory issue for the District Court’s determination.
The District Court carefully considered each contention raised by plaintiffs, namely, (1) fear of self-incrimination in connection with matters pending before the special grand jury; (2) inability to be present to confront and cross-examine witnesses; (3) failure to require testimony under oath; (4) no opportunity to present evidence in own behalf; (5) lack of counsel or counsel substitute; (6) failure to provide an impartial tribunal; and (7) failure to provide for a written decision based upon substantial evidence. More specifically, the Court also dealt with charges that the rule allegedly violated was not made known to the inmate, that the rules were too general and vague, and that copies of the rules were not given to inmates.
The Court then proceeded to analyze the Rules (in order as they appear in the District Court’s opinion, §§ 251.5, 252, 253, 253.2, 253.3, 253.4, 253.5, 270.2, 270.4, 260.4, 261, and 261.3). 7 N.Y.S. C.R.R. Chap. V.
In a rather lengthy opinion the trial court held, in substance, that to protect the inmate against self-incrimination which might arise in any disciplinary hearing, the inmate should have (1) an adequate opportunity to consult counsel prior to the proceeding; (2) a prison employee to assist the inmate designated pursuant to section 253.2 of the New York State Code of Rules and Regulations (N.Y.S.C.R.R.), Chapter V, Volume 7; (3) presence of counsel at the ini: tal meeting between inmate and the desig
In short, the Court held that: “To condone a procedure whereby an inmate goes into those proceedings uninformed or ill advised as to the dangers involved, then makes an incriminating statement and is left with the solé remedy of a pretrial suppression hearing, appears to this Court to be inconsistent with the requirements of due process when received in the context of the present situation.” Having satisfied itself that counsel was required, the Court granted the right, subject to certain limitations. The trial Court concluded that the “defendants are permanently enjoined from conducting any and all disciplinary hearings concerning charges against inmates arising from their claimed participation in the events at Attica between September 9 through 13, 1971, inclusive, unless and until such inmates are provided the assistance of retained or appointed counsel to act in the capacity detailed in this opinion.” The Court, noting our en banc decision in Sostre v. McGinnis, 442 F.2d 178 (2d Cir.), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1971), 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), qualifies its opinion with the caveat that it “should not be considered as holding that the right to counsel is required in all cases of prison disciplinary proceedings.”
The case now comes to us on appeal both by plaintiffs who inveigh against the limitations placed by the trial court on the “due process safeguards” that were granted and by defendants who object to that portion of the court’s opinion which grants the prisoners the assistance of counsel.
Because it is not known at this time what, if any, charges may be leveled against these particular inmates, the District Court’s opinion must, of necessity, have been somewhat hypothetical in character. The Court stated:
Although the services thus provided may afford the inmate an alternative means of establishing a defense to the disciplinary charge, it does little to protect him from self-incrimination, either through ignorance or otherwise, as far as possible criminal charges of murder, kidnaping and the like which may flow from his involvement in the September revolt.
During the course of those disciplinary hearings, there must certainly come a time when a determination has to be made concerning what statements on his part may or may not be incriminating and what conduct on his part may or may not be consistent with a defense to the potential criminal charges presently under investigation by the special grand jury. These are determinations not to be made by an untrained layman but rather by a qualified attorney competent in that area of law.
Thus it is evident that the Court was addressing itself to procedural safeguards in serious eases such as “charges of murder, kidnaping and the like.”
In our view, this case now on appeal for the second time is at this stage in a troublesomely obscure posture. In part, this is due to the fact that events relevant to the issues have occurred since the District Court’s order; also the class as defined below may not properly recognize certain sub-classes with different problems and “standing”. Furthermore, on November 26, 1971 and again on May 21, 1973, after the decision of the “April panel” of this Court, 477 F.2d 1109 (1973), counsel stipulated to a temporary stay of disciplinary hearings respecting plaintiffs’ class. According to the trial Court, the November 26, 1971 stay of such hearings was to continue “until the special [Wyoming County]
Mr. Stenger: . . . Now, what I would like to propose, your Honor, is this, appreciating the dilemma because of the pending criminal investigation, I am authorized to state that the respondent will consent to a temporary injunction of a limited degree, namely, that no administrative disciplinary hearings will be heard as against any charges arising from the Attica insurrection up until such time as the grand jury, now about to convene and sit, has returned a report and any indictments, and the actual targets of that investigation are known.
The Court: You mean a final report?
Mr. Stenger: Yes, or until such time as this action is determined. In other words, we will relieve voluntarily any of these inmates of the dilemma by not proceeding, under the Court’s direction, with the holding of any administrative hearings where they may be placed in this position that has been suggested, until such time as it is known whether they are the target of investigation or not, and, of course, at that time when it is known, we should be free to go ahead with those who are not a target, and then we can 'discuss continuation of an injunction as to those who have been determined to be a target. We are prepared and willing to consent to that, pursuant to the Court's direction, and I think that will solve the temporary dilemma in which these people find themselves with regard to this one point. So as far as the request for injunctive relief of a temporary nature, I will make that concession on behalf of the respondent.
In light of this language and of developments before the special grand jury, therefore, it may still be the precise position of the State of New York that: (1) it will proceed with disciplinary hearings against those plaintiffs and class members who are now known not to be grand jury targets, and (2) it will consider further stays as to those members of the class who are existing or potential targets. If this be true, then it would follow that such members of plaintiffs’ class who are currently protected by the stay have no present standing to press for a determination of the merits by the district court at the present time.
But, as Judge Oakes in dissent forcefully argues, this may not have been the intent of the parties, most particularly the State of New York, on November 26, 1971, or, if it was then, it was not so when counsel entered the written stipulation, which is part of the very judgment of the district court here appealed from, on May 21, 1973. The operative language of that written “stay” makes no reference to the Wyoming County grand jury and its proceedings, but simply provides that the disciplinary hearings “shall be stayed pending the final outcome of this litigation. . . .” Possibly then, it can be inferred, as does Judge Oakes, that this new language reflects the understanding of the parties that the stay is effective pending the outcome of this case — i. e., that the parties do not wish to wait upon the special grand jury proceedings and other criminal investigations but prefer to have the merits of this case resolved in the federal courts.
Notwithstanding that this construction of the intentions of the parties and their counsel may be correct, our notions of sound federalism and of the aforementioned ambiguity of the record, sug
The motivating reasons for this conclusion are that until the special grand jury has acted, the inmate will not know whether or not a true bill has been returned against him. If not, then there still may be a possibility that charges will be preferred against him for some prison infraction. What these may be, if any, cannot be known until the occasion arises. Once the nature of the charges is known, the accused should be given all necessary protection. This protection can be best formulated by the District Court in light of the facts before it. If indictments have already been returned, the Court can mold necessary relief accordingly.
Specifically, the trial Court should have the parties by their counsel supplement and flesh out the record to show in reasonable detail the actions of the special grand jury and other investigative bodies to date, with particular concern, of course, for information as to which members of the plaintiffs’ class have been indicted and for what charges. In this connection, we note that, since argument of this appeal, there have been newspaper reports of indictments returned by the special grand jury in Wyoming County.
Moreover, the District Court should inquire what the intent of the State now is respecting disciplinary hearings for (1) those class members who presently can be identified as non-targets of the special grand jury or any other state criminal investigation and (2) for those who are or still may be targets of such proceedings. As was noted in Sostre v. McGinnis, 442 F.2d 178, at 196 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972) and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), and Nieves v. Oswald, 477 F.2d 1109, at 1113 (2d Cir. 1973), due process safeguards must vary depending upon the factual setting.
Accordingly, we remand the case to the district court with directions to vacate the order appealed from and reopen the hearing to supplement the record along the two main lines heretofore described. Further, once the record has been supplemented, we note that the trial judge may wish to hear further argument relevant to the “new” or additional facts, make further findings and enter a new order or orders to properly adjudicate the rights of parties in light thereof. No costs.
. By amendment dated November 23, 1971, eight other plaintiffs were added.
. Nieves was the only plaintiff filing on this date.
. There is a substantial difference between the named plaintiffs quite apart from probably greater differences between other members of the class. Thus, by way of illustration, the charges against these nine appear to be:
Nieves — giving a note to a Correctional Officer to the effect that Nieves is a member of the “Young Lords”.
Sumpter — threatening Correctional Officers.
Merkel — assaulting Correctional Officers.
Roberts — throwing weapons to other inmates.
Pelow — attempting to break into gate and organizing inmates to take over offices ; also with threatening a Correctional Officer.
Ortiz — striking officers with objects thrown from his cell.
Figueroa — striking an officer.
Little — assaulting officers.
Hieks — guarding hostages for four days.
Dissenting Opinion
(dissenting):
Seldom, in a case of such importance, has so little been decided after so much
It goes almost without saying that the majority’s opinion fails to reach the merits of the case: whether inmates involved in the Attica riot, which included “except for Indian massacres . the bloodiest one-day encounter between Americans since the Civil War,”
These “grave constitutional issues” are only “hypothetical,” according to the majority, because “it is not known at this time what, if any, charges may be leveled against these particular inmates.” Such a determination flies in the face of the decision of this court in Nieves I, which did not find the issues hypothetical at all, although it had fewer facts before it than the present panel, but rather found the issues so substantial as to require the convening of a three-judge court to rule on the merits. The majority here is now saying that the court in Nieves I was wrong and that it should have dismissed the claims as hypothetical, or at least have remanded the case to “flesh out the record.” The majority, without acknowledging that it is doing so, is in effect rejecting the law of the case and overruling Nieves I, an action normally requiring an en banc court.
But this unwarranted and unauthorized action is inexplicable on the basis of the facts before us, unless the majority has simply closed its eyes to those facts, or unless, after six months, the facts have merely been forgotten. For instance, it is stated that “what, if any, charges may be leveled against these particular inmates” is “not known at this time.”
The majority states in its opinion: “Once the nature of the charges are [sic] known, the accused should be given all necessary protection.” As shown above, at least as to three of the named plaintiffs, the nature of both the disciplinary and criminal charges is known. And these plaintiffs’ charges are representative of those of their class.
In Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), this court did not deny due process to prison inmates in disciplinary hearings, but rather stated that the process due would depend on the circumstances and factual setting. 442 F.2d at 196. See Nieves I, 477 F.2d at 1113. The majority, while citing both of these passages, notes that plaintiffs and the members of their class
What the majority totally misses, however, is that the factual setting here which calls for special attention is not the charge or penalty in the disciplinary hearing at all; rather it is that an inmate’s only means of defending himself from the disciplinary charge according to the challenged regulations is to explain in his own words, unaided by counsel, what happened. Ordinarily this might well suffice, and the regulations as generally applied are not challenged here. In this set of circumstances, however, where the inmate is already indicted for serious crimes (as are three of the named plaintiffs and more than 57 other inmates) arising out of, or where the grand jury is engaged in an investigation of, the same incidents furnishing the basis for disciplinary charges, the inmate is forced to choose between possibly incriminating himself in the criminal proceeding or presenting no defense at all in the disciplinary hearing. Thus, this case does not turn on what the particular disciplinary or criminal charge may be, but rather on the dual jeopardy involved where the State is proceeding with both disciplinary and criminal actions against inmates involved in the Attica disturbance.
The majority, unable to sweep all the way under the rug this grave constitutional issue noted by this court in Nieves I, by the court below, and by a number of other courts,
The intent of the State in consenting to the 1971 stay is clearly seen even in the language quoted by the majority once that language is viewed in context. On November 26, 1971, plaintiffs argued before the district court for a preliminary injunction against all disciplinary hearings arising out of the events at Attica. The State consented to such a temporary injunction except that it
Such stay, by agreement of the parties, is to continue either until the Special Grand Jury has made its report or until the merits of this action have been determined, whichever event occurs first.
Nieves v. Oswald, Civil 1971-526 (W.D.N.Y. Mar. 8, 1972) (emphasis added). Thus, it is absolutely certain that this 1971 stay can provide no basis for avoiding decision here on the clearly fabricated notion that the 1971 stay prevents the issue from being ripe until the grand jury makes its report — a claim never suggested by the State.
Moreover, even were it otherwise— and this makes the majority opinion border on the incredible — the 1971 stay was supplanted by a written stipulation between the parties on May 23, 1973, which stated that disciplinary proceedings would be stayed only “pending the final outcome of this litigation.”
The majority, however, does not let mere logic, plain language, or the intent of the parties stand in the way of a determination to avoid the merits. Rather the majority suggests that it may be the position of the State that “it will consider further stays as to those members of the class who are existing or potential targets,”
More importantly, however, the majority does not explain the relevance of what the State might “consider” in the future to the present ripeness of the issues or the “present standing” of the plaintiffs. The present ripeness or standing is determined by the present adverse controversy. The State has admitted its intent to proceed with the disciplinary hearings and has never suggested its willingness to do otherwise.
I have tried to demonstrate that the majority’s nondecision today results in a senseless waste of judicial resources, not only of this court both in Nieves I and the present case, but also of the district court, which attempted to do what the majority here commands it to do once again — fashion the necessary protection for the inmates in light of the facts. The majority in vacating the reasoned protections already worked out by the district court — protections which, to be sure, I think somewhat insufficient —gives no legal basis for its action. Rather it claims ignorance of facts before it; it finds an ambiguity in the record where none exists; and its “notions of sound federalism” are unexplained. I also think they are nonexistent in law.
On the merits, I think that the teachings of Sostre itself, when viewed in the light of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U. S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) —cases neither referred to nor apparently considered by the majority —compel us to reach essentially the results already reached in First Circuit, Seventh Circuit, Eighth Circuit and a host of recent district court cases simply noted here.
Accordingly, with some dismay, I dissent.
. New York State Special Commission on Attica Official Report, xi (1972).
. B. g., Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973), petition for cert. filed, 41 U.S.L.W. 3555 (U.S. Apr. 9, 1973) (No. 72-1359).
. The class actually designated by the district judge in the order of May 23, 1973, presently under appeal is comprised of those inmates who may he subject to disciplinary charges and criminal charges stemming from the same incident or incidents occurring at the Attica Correctional Facility during the period September 9-13, 1971.
. Rosario v. Rockefeller, 458 F.2d 649, 651-652 n. 2 (2d Cir. 1972), aff’d, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1, rehearing denied, 411 U.S. 959, 93 S.Ct. 1920, 36 L.Ed.2d 419 (1973); Carter v. McGinnis, 351 F.Supp. 787, 789 n. 2 (W.D.N.Y.1972). See also Thoms v. Heffernan, supra note 2. Here the State as in Thoms was cooperative by stipulating to a stay of disciplinary proceedings penning resolution of this appeal, so that plaintiffs would not have to seek a temporary injunction, with consequent three-judge court convention, and so that the merits could be reviewed by this court more expeditiously.
. It may be questioned by what authority the district court may retain jurisdiction over this case to “flesh out the record,” as directed by the majority, when the case has been found too “hypothetical” to decide. My understanding has always been that if a case is too conjectural or hypothetical to present a ease or controversy, then a federal court has no jurisdiction over it. See O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (U.S. Jan. 15, 1974); Roe v. Wade, 410 U.S. 113, 127-129, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). On the other hand, a federal court presented with a case or controversy is bound to decide it, not to postpone decision until such time as further facts may make a decision easier or, for that matter, even better. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821) (Marshall, C. J.) :
It is most true, that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction, if it should .... Questions may occur which we would gladly avoid; but we cannot avoid them.
The majority, however, without citation to any authority whatsoever ignores these fundamental principles of federal jurisprudence and strikes off on what can be described at best as a novel approach to federal abstention.
. If indeed the majority does not know this and other facts it deems important to a decision on the merits, it is not clear why it is necessary to remand the case to determine them. It is not beyond the power or propriety of this court itself to check the public records of the Wyoming County Supreme Court or to communicate with both the parties and to ask them to supply such information. This could be achieved either through written communications or reargument. Cf. Brown v. Board of Education, 344 U.S. 141, 73 S.Ct. 124, 97 L.Ed. 152 (1952). In either case, this self-same panel could then actually decide the case presented to it. By rejecting these possibilities, the majority demonstrates not its “notions of sound federalism” but its desire to avoid decision, with a consequent waste of judicial time and resources.
. Plaintiff Ortiz has been charged with having thrown objects out of his cell and striking officers with the objects as well as cursing officers. Plaintiff Roberts has been charged with providing other inmates with weapons and carrying a gas mask and tear gas canister. Plaintiff Merkel has been charged with assaulting two correctional officers and acting in concert with others. Plaintiff Sumpter has been charged with threatening two correctional officers. Plaintiff Nieves has been charged with carrying a note. The other named plaintiffs are no longer inmates.
Merkel — Indictment No. 11.
6 counts of 1st Degree Assault
2 counts of Illegal Possession of Weapons as a Felony
2 counts of Promoting Prison Contraband
Ortiz — Indictment No. 7.
6 counts of 2d Degree Kidnaping
6 counts of 1st Degree Unlawful Imprisonment
6 counts of 1st Degree Coercion
5 counts of 2d Degree Assault
—Indictment No. 8.
9 counts of 2d Degree Kidnaping
9 counts of 1st Degree Unlawful Imprisonment
9 counts of 1st Degree Coercion
—Indictment No. 17.
2 counts of 2d Degree Assault
—Indictment No. 31.
2 counts of 2d Degree Assault
Sumpter — Indictment No. 8.
9 counts of 2d Degree Kidnaping
9 counts of 1st Degree Unlawful Imprisonment
9 counts of 1st Degree Coercion
—Indictment No. 9.
3 counts of 2d Degree Kidnaping
3 counts of 1st Degree Unlawful Imprisonment
3 counts of 1st Degree Coercion
The foregoing is a matter of public record of which we may take judicial notice. Brown v. Board of Education, 344 U.S. 1, 3, 73 S.Ct. 1, 97 L.Ed. 3 (1952); Bryant v. Carleson, 444 F.2d 353, 357-358 (9th Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 344, 30 L.Ed.2d 287 (1971); Wagner v. Fawcett Publications, 307 F.2d 409 (7th Cir. 1962), cert. denied, 372 U.S. 909, 83 S.Ct. 723, 9 L.Ed.2d 718 (1963). Verification is a local telephone call (212-488-4044) away from the United States Courthouse at Foley Square.
. This was reported in T. Wicker, Attica Reopened, N.Y. Times, Jan. 4, 1974, at 29, col. 1 (city ed.), but if that report were doubted it too is subject to easy verification.
. See note 3 supra.
. Bee, e. g., Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. Nov. 16, 1973); Sands v. Wainwright, 357 F.Supp. 1062, 1092-1093 (M.D.Fla.1973); Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157, 1167 (E.D.Wis.1973); Carter v. McGinnis, 351 F.Supp. 787, 792-795 (W.D.N.Y.1972); Clutchette v. Procunier, 328 F.Supp. 767, 783 (N.D.Cal.1971).
. Again, it is hard to understand why the majority is so reluctant to ask the State the very questions it directs the district court to ask. Either by letter or reargument — the majority not having asked any of these questions in initial argument — the majority could answer its own questions and thereby “flesh out” its own record which it finds so lacking.
. The entire stipulation is as follows :
1. It is hereby stipulated that the attached judgment may he entered by the Court in lieu of the previously entered injunctive order, to obviate the need for a three-judge court and to expedite the appeal from such judgment, without prejudice to the parties’ respective challenges to the substance of such judgment.
2. It is further stipulated that the disciplinary proceedings described in paragraph 1 of the attached judgment shall be stayed pending the final outcome of this litigation, but plaintiffs shall not assert the delay in holding such hearings resulting from such stay, as a basis for challenging such hearings when they are in fact held.
. See id.
. As explained above, this language in context in 1971 referred to the State’s willingness to consider further stays pendente lite if the special grand jury made its reports before the action was finally determined. It was not referring to any willingness to extend stays beyond the pendency of the litigation. Indeed, the State’s Answer admits that disciplinary hearings “will be held” against plaintiffs, and there has been no suggestion or indication that the State is forbearing from proceeding for any reason other than the stay pending the determination of this action.
. See id.
. See, e. g., Gomes v. Travisono, 490 F.2d 1209 (1st Cir. Dec. 28, 1973); Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. Nov. 16, 1973); McDonnell v. Wolff, 483 F.2d 1059 (8th Cir.), cert. granted, 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108 (U.S. Jan. 21, 1974); United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973); Rhem v. Malcolm, 371 F.Supp. 594 (S.D.N.Y. Jan. 7, 1974); Wesson v. Moore, 365 F.Supp. 1262 (E.D.Va.1973); Collins v. Hancock, 354 F.Supp. 1253 (D.N.H.1973); Batchelder v. Geary, No. C-71-2017 RFP (N.D.Cal. Apr. 13, 1973); Sands v. Wainwright, 357 F.Supp. 1062 (M.D.Fla.1973); Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157 (E.D.Wis.1973); Carter v. McGinnis, 351 F.Supp. 787 (W.D.N.Y.1972); Rankin v. Wainwright, 351 F.Supp. 1306 (M.D.Fla.1972); Colligan v. United States, 349 F.Supp. 1233 (E.D.Mich.1972); Stewart v. Jozwiak, 346 F.Supp. 1062 (E.D.Wis.1972); Nelson v. Heyne, 355 F.Supp. 451 (N.D.Ind.1972); Brown v. Schubert, 347 F.Supp. 1232 (E.D.Wis.1972); United States ex rel. Neal v. Wolfe, 346 F.Supp. 569 (E.D.Pa.1972); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.l971); Bundy v. Cannon, 328 F.Supp. 165 (D.Md.1971); Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971).
Rehearing
ON PETITION FOR REHEARING
Following this court’s decision of January 30, 1974, Nieves v. Oswald, a petition for rehearing was granted in order to clarify certain aspects of the record. Argument was heard on April 4, 1974. Familiarity with the facts at issue will be assumed.
In response to this court’s question in the January 30th opinion about the state’s intentions concerning the holding of disciplinary hearings, counsel for the state secured and filed a statement from Peter Preiser, Commissioner of the New York State Department of Correctional Services. In that statement, the Department made it clear that it will not hold disciplinary proceedings concerning the behavior of any of the inmates in the Attica disturbance of September 9-13, 1971. Defendants-Appellants Second Supplemental Brief, filed April 3, 1974. At oral argument the following day, leave to submit briefs on the issue of mootness was granted. The last of these briefs was received on May 6, 1974, and decision by this court is now appropriate. We conclude that this case is moot.
In DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (April 23, 1974), the Supreme Court, in a case analogous to the instant one, vacated the judgment of the state court because it found that events occurring subsequent to the filing of the suit had rendered the case moot. DeFunis involved a challenge to the procedures and criteria employed by the Law School Admissions Committee of the University of Washington on the grounds that they violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, the petitioner, DeFunis, claimed that he had been denied admission to the law school because of his race. The trial court ordered his admission to the law school, and by the time the case reached oral argument before the Supreme Court, DeFunis had registered for the final quarter of his last year in law school. Furthermore, respondents stated that regardless of the outcome of the appeal, DeFunis would be awarded his J.D. degree at the end of the academic year. The Supreme Court held that “[bjecause the petitioner will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. Ill of the Constitution, consider the substantive constitutional issues tendered by the parties.” 416 U.S. at 319, 94 S.Ct. at 1707.
The reasoning of the Supreme Court in DeFunis is controlling in the instant case. There is no longer a possibility that any of the members of plaintiffs’ class
It does not matter, in this case, that the circumstances which have led to the dropping of any possible disciplinary proceedings stem from the voluntary action of the state. The state has made its decision not to proceed with disciplinary proceedings as a matter of record, and there is certainly no reason to believe that, once this ease is dismissed, the state will then reinstitute disciplinary charges. As was pointed out in DeFunis, 416 U.S. at 317, 94 S.Ct. at 1706, “[i]t has been the settled practice of the Court, in contexts no less significant, fully to accept representations such as these as parameters for decision. See Gerende v. Elections Board, 341 U.S. 56 [71 S.Ct. 565, 95 L.Ed. 745] (1951); Whitehill v. Elkins, 389 U.S. 54, 57-58 [88 S.Ct. 184, 19 L.Ed.2d 228] (1967); Ehlert v. United States, 402 U.S. 99, 107 [91 S.Ct. 1319, 28 L.Ed.2d 625] (1971); cf. Law Students Research Council v. Wadmond, 401 U.S. 154, 162-163 [91 S.Ct. 720, 27 L.Ed.2d 749] (1971).” Moreover, this is not one of those cases where the respondent has changed its disciplinary practices and thus attempted to deprive the court of the power to hear the case. See, e. g., United States v. Phosphate Export Assn., 393 U.S. 199, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 19 L.Ed.2d 821 (1963); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). As in DeFunis, the general policy here remains unchanged, but the individuals bringing the suit are no longer the present targets of disciplinary proceedings.
It is of course, true that some of the members of the present class still remain in prison and hence may possibly become once again the subject of both disciplinary and criminal proceedings. This is not a case, however, like Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1, (April 16, 1974), where the governmental activity “by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.” 416 U.S. at 122, 94 S.Ct. at 1698. In Super Tire, the issue was whether striking workers were eligible for assistance from state welfare programs. The Supreme Court, in a 5 to 4 decision, held the case not to be moot even though before the case was tried the strike had come to an end. The court found that the availability of state welfare assistance had a continuing effect on the present interests of the parties. As petitioners there argued, the eligibility of striking workers to receive benefits “[a]ffects the collective bargaining relationship,, both . . . when a collective bargaining agreement is in process of formulation, and in the ongoing collective-bargaining relationship, so that the economic balance between labor and management, carefully formulated and preserved by Congress in the federal labor statutes, is altered by the State’s beneficent policy toward strikers.”
416 U.S. at 124, 94 S.Ct. at 1699.
In the instant case, the disciplinary procedures employed by the state do not have such an effect on any legitimate present interests of the class members. Furthermore, the threat of governmental action here, unlike in Super Tire, is “two steps removed from reality.” 416 U.S. at 123, 94 S.Ct. 1694. In Super Tire, once the workers went on strike, the reception of welfare assistance was automatic. Here, even if inmates commit a criminal offense, the state must still decide, in each case, if it is going to hold disciplinary as well as criminal proceedings.
Since this case involves governmental action, the question as to whether or not the issues here are “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), must be considered. Super Tire, 416 U.S. 115, 94 S.Ct. at 1694, 40 L.Ed. 2d 1; Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
Because disciplinary hearings are no longer contemplated against any of the inmates involved in the Attica disturbances of September, 1971, we remand this case to the district court with the direction to enter an order dismissing the action as moot.
. The class designated by the district judge was composed of all those inmates who may be subject to disciplinary charges and criminal charges stemming from the Attica disturbance of September 9-13, 1971.
Dissenting Opinion
(dissenting):
I dissent.
This rather incredible case, which commenced November 16, 1971, and first came to the court for decision rendered on April 20, 1973, Nieves v. Oswald (Nieves I), 477 F.2d 1109 (2d Cir. 1973), is now declared moot because the current Commissioner of Correctional Services is said by the State under date of April 3, 1974, on reargument after the second trip to this court, .to take the position that
In sum, the delay of more than two and a half years in conducting disciplinary hearings occassioned [sic] by the court injunction, has destroyed the Department’s ability to properly conduct and enforce internal disciplinary measures against the inmates in question and the Department must defer to the criminal prosecutions.
Defendants-Appellants’ Second Supplemental Brief at 7.
I have previously stated in dissent in the second appeal to us, Nieves v. Oswald (Nieves II), supra, 802, 806 et seq., that the majority decision then rendered was “unwarranted in law or authority” and “an abnegation of judicial duty.” There, it will be recalled, the majority sent the case back to the late Chief Judge Henderson to “flesh out the record,” at 806, although the dissent urged rather strongly that the factual setting was quite sufficiently set forth to decide the “grave constitutional issues,” Nieves I, 477 F.2d at 1113, presented in the case-Nieves II, at 809-811. The dissent previously labored almost tiresomely to get the majority to ask the State its intentions outright and “questioned by what right the majority can suggest to the State a means by which it might destroy the ripeness of plaintiffs’ claims . . . [or] means ... to avoid a possible adverse judgment by destroying the court’s jurisdiction or the justiciability of a claim.” Id. at 812. So now the claim is not justiciable as moot. The State can (and does) blame the federal courts, and the “grave constitutional issues,” certain to arise anew unless now the State changes its procedures and regulations better to conform to the decisions of the day,
Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. ... A controversy may remain to be settled in such circumstances, e. g., a dispute over the legality of the challenged practices. . . . The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.
345 U.S. at 632 (citations and footnote omitted).
There is nothing here to stop the State of New York, under a new Commissioner of Corrections and Services, from recommencing disciplinary proceedings against any of the plaintiffs’ class here. The disciplinary procedures and regulations of the State remain in force and would govern future proceedings. As said in Gray v. Sanders, 372 U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821 (1963), “the voluntary abandonment of a practice does not relieve a court of adjudicating its legality, particularly where the practice is deeply rooted and long standing.” Only a few days ago the Court said, “It is settled that an action for an injunction does not become moot merely because the conduct complained of has terminated, if there is a possibility of recurrence, since otherwise the defendants ‘would be “free to return to [their] old ways.’ ” Allee v. Medrano, - U.S. -, 94 S.Ct. 2191, 2198, 40 L.Ed.2d 566 (U.S. May 21, 1974).
Moreover, if what has happened in this court, see Nieves II dissent, supra, is any sample, this is precisely a case where the issues are “capable of repetition, yet evading review.” Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (U.S. Apr. 16, 1974), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). We still have a three-judge court procedure; I had always thought it was cumbersome, intricate and, as I said in a little piece, a “morass and mystery, if not miasma . . . . ” Oakes, The Three-Judge Court and Direct Appeals to the Second Circuit, 48 St. John’s L.Rev. 205, 210 (1973). In comparison to this direct appeal, at least, a straight three-judge court proceeding would have been streamlined.
I would, as the Nieves II dissent intimated, decide this case on the merits, and not — in these days of burgeoning dockets and heavy case loads — pass the judicial buck to another future panel. Accordingly, I dissent — not with the “dismay” of Nieves II — but with wonderment at having witnessed what turns out to be a Punch and Judy show rather than a momentous judicial struggle involving “grave constitutional issues” and yes, real live (and some dead) people.
. It is to be noted that the State consented to a stay of disciplinary proceedings and was not enjoined; had it been enjoined, appeal would have lain only to the Supreme Court.
. In addition to the cases referred to in the Nieves II dissent, note 17, at 812, add the compelling Ninth Circuit opinion of Judge Hufstedler (joined by Judge Tuttle of the
