Nieves v. OswaldNieves v. Oswald
John H. Stenger, Sp. Asst. Atty. Gen., Buffalo, N. Y. (Louis J. Lefkowitz, Atty. Gen. of N. Y., on the brief), for defendants-appellees-appellants.
FEINBERG, Circuit Judge:
Once again we find ourselves dealing with the complexities of
Appellants are nine prisoners at the Attica Correctional Facility who sue for themselves and on behalf оf all other inmates who were at that institution at the time of the notorious prison revolt in September 1971, and who, as a result of alleged misconduct during that uprising, are subject to disciplinary hearings. Appellants are also possible targets of a special grand jury empaneled in November 1971 to investigate the unfortunate events at Attica. The complaint, brought under
In November 1971, defendants consented to a temporary stay of disciplinary hearings involving any charges against inmates arising from the events at Attica until the special grand jury made its report or until the merits of plaintiffs’ action were determined. Plaintiffs moved to convene a three-judge court, as the complaint effectively sought to restrain “the enforcement, operation, or execution” of state regulations,
In Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (per curiam), the Supreme Court stated that when an application for a three-judge court is addrеssed to a district judge, his inquiry is limited to determining (1) whether the constitutional question is substantial; (2) whether the complaint at least formally alleges a basis for equitable relief; and (3) whether the case otherwise comes within the requirements of the three-judge statute. If all criteria are established, the single judge must convene a statutory three-judge court. See Abele v. Markle, 452 F.2d 1121, 1126 (2d Cir. 1971).
Whether these criteria were met in this case depends in turn on the allegations of the complaint, see Goosby v. Osser, 409 U.S. 512, 521 n. 7, 93 S.Ct. 854, 860, 35 L.Ed.2d 36 (1973), all of which are deemed to be true. Id. Plaintiffs claim that the procedures governing disciplinary hearings commenced or to be commenced—procedures required by New York regulations cited at note 3 supra—are constitutionally deficient in, inter alia, the following respects: Inmates are denied an opportunity to present witnesses in their defense and tо confront adverse witnesses against them, since they are not permitted to be present when adverse testimony is taken; the rules governing prisoner conduct are so vague as to be void; the testimony of adverse witnesses is unsworn; inmates are not given Miranda-type warnings even though statements made in disciplinary proceedings may be used in subsequent criminal prosecutions; inmates are denied assistance of counsel or of effective counsel substitute; inmates receive inadequate notice of the rule allegedly violated, of the rules under which fact-finding is to be had, and of the precise facts underlying the charges; and inmates are denied a decision by an unbiased decision-maker and are not accorded a written opinion by the deciding tribunal based upon substantiаl evidence.
As Judge Henderson perceived in his June 1972 decision on the merits, plaintiffs’ constitutional attack is really based on two distinct theories. Most broadly, plaintiffs challenge the application of the regulations, which do not require the above-claimed procedural safeguards, to any serious disciplinary proceeding in state prisons. Indirectly, by raising questions of self-incrimination, рlaintiffs also challenge on a somewhat narrower basis the absence of these safeguards when inmates are threatened, as are plaintiffs, with prison-disciplinary and subsequent criminal proceedings. Judge Henderson believed that neither theory required a three-judge court. While his March 1972 opinion denying plaintiffs’ motion to convene did not squarely address the first, more general, theory, his later opinion reflects his conclusion that the constitutional questions thus raised were insubstantial. As to the narrower theory, he concluded in the earlier opinion that it failed to satisfy the requirements of section 2281, as the claim raised “not . . . a question of state-wide concern, but rather only local concern precipitated as a result of the unusual . . . occurrences at Attica.” We think bоth conclusions were erroneous.
Turning to plaintiffs’ broader theory, an insubstantial federal question is presented if the claim is ” ‘obviously without merit’ or because ‘its unsoundness so clearly results from the previous decisions of [the Supreme C]ourt as to foreclose the subject . . . .’ ” Ex Parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933) (citations omitted). Decisions of this court, binding as they are on the district courts within this circuit, whether they be of the single or three-judge vаriety, may also foreclose a constitutional challenge as insubstantial. See Lewis v. Rockefeller, 431 F.2d 368, 371 (2d Cir. 1970). Judge Henderson believed that plaintiffs’ more general constitutional attack was “a mirror image of the arguments presented to and rejected” by this court, sitting en banc, in Sostre v. McGinnis, 442 F.2d 178 (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). We do not believe, however, that our decision in Sostre renders plaintiffs’ Constitutional theory “essentially fictitious” or “wholly insubstantial,” Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), or “obviously without merit,” Ex Parte Poresky, supra. As the Supreme Court has only recently informed us:
The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions which merely render claims of doubtful or questionable merit do not render them insubstantial for the purрoses of
28 U.S.C. Sec. 2281 .
Goosby v. Osser, supra, 409 U.S. at 518, 93 S.Ct. at 858.
Even morе significantly, plaintiffs’ more particularized theory of relief—the unconstitutionality of the regulations as applied9 where both disciplinary and criminal proceedings against an inmate are in the offing—unquestionably raises grave constitutional issues. Under these special circumstances, plaintiffs say, a prisoner‘s dilemma is particularly acute: Since he cannot speak for fear оf self-incrimination and cannot call favorable witnesses or cross-examine adverse ones, he can neither explain his actions nor refute the charges against him. See Clutchette v. Procunier, 328 F.Supp. 767, 778-779 (N.D.Cal.1971). Moreover, this claim is not, as the district judge recognized, foreclosed by Sostre. In his view, however, it was a matter of local concern only, resulting from the specialized situation growing out of the Attica revolt. Rеsolution of the merits by a single judge was therefore appropriate as plaintiffs did not meaningfully seek to enjoin the operation of a statute statewide. Concededly, because a court of three judges is only necessary to protect against “improvident state-wide doom by a federal court of a state‘s legislative policy,” Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941), the Supreme Court has permitted single-judge аdjudication where local ordinances are sought to be enjoined, see, e. g., Ex Parte Collins, 277 U.S. 565, 568, 48 S.Ct. 585, 72 L.Ed. 990 (1928); or where action taken pursuant to a state statute in fact affects only a particular region or district within a state, e. g., Moody v. Flowers, 387 U.S. 97, 102, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). See generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 29-37 (1964). More recently, the Court has indicated that a complaint seeking to enjoin regulations promulgated by a stаtewide authority with jurisdiction over specialized institutions throughout a state will not require a three-judge court if the regulation in fact applies merely to a relatively small proportion of those institutions. Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972).
A few further observations seem appropriate. We recognize that the three-judge court statutes are technical enactments, to be restrictively construed. Phillips v. United States, supra, 312 U.S. at 251, 61 S.Ct. 480. In this spirit, we have previously declined to reverse decisions of single district judges, even where sections 2281 or 2282 might literally apply, when we unhesitatingly agreed with the resolution of the merits of a case by the court below, and where convening a statutory district court seemed therefore a patently wasteful formality.14 We also agree with those who note the anomaly of requiring three judges to decide a case in which, as here, the state, for whose protection statutory courts were originally devised, is content to litigate the case before a single federal judge. See, e. g., Currie, supra, at 77. Nevertheless, though adherence to the letter of section 2281 (and judicial gloss thereon) may appear unduly formalized, and though it regrettably adds to the growing Supreme Court caseload, it may also forestall further delay that results from ultimately meaningless efforts, following disposition by a court of appeals, to obtain Supreme Court review: The Court apparently will consider, on its own motion, whether three judges were initially required, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Currie, supra, at 76, and, if so, the entire litigation must commence anew before a court of three judges. See, e. g., Goosby v. Osser, supra; Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963) (per curiam). Thus, in appropriate cases, we have not hesitated to reverse a single judge disposition with instructions to convene a three-judge court. E. g., Gold v. Lomenzo, supra note 6; Kramer v. Union Free School District, 379 F.2d 491 (2d Cir. 1967). But for the development discussed below, that course is the one we would follow here.
Our decision to remand is somewhat complicated, but eventually reinforced, by what has occurred in this case on appeal. Following submission of briefs in which plaintiffs urged and defendants opposed the necessity for a three-judge court, and following oral argument at which the three-judge court issue was vigоrously pursued by the panel, with the parties adhering to their positions, plaintiffs moved in this court for permission to withdraw their prayer for injunctive relief. Obviously, if such a motion had been made and granted in the district court, the troublesome questions regarding jurisdiction of the single judge would not be before us. Compare 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 (1973); Carter v. McGinnis, supra note 4, 351 F.Supp. at 789 n. 2.15 But we do not believe that resolution of the issue of district court jurisdiction can be so easily manipulated after submission of an appeal.16 Even more significantly, if plaintiffs’ application were granted by us, then the limited injunction that Judge Henderson has already entered and from which defendants cross-appeal, would also fall away. This would suggest a remand to the district court as the sensible course, in any event, to consider the changed situation anew, since plaintiffs do not suggest that they are uninterested in preserving the substance of what they already have. Accordingly, we deny plaintiffs’ motion, without prejudice to renewal before Judge Henderson following remand. If renewed and granted at that time, plaintiffs should seek entry of a fresh decree declaratory in form only, from which a timely appeal to this court can again be taken.17 Should plaintiffs elect to stand on their prayer for injunctive relief, a three-judge court is required for adjudication of the claims.
Case remanded to the district court for further proceedings consistent with this opinion.