Opinion · United States Court of Appeals for the Second Circuit

BOYD v. JUSTICES OF SP. TERM, PART I, SUPR. CT, 546 F.2d 526 (2nd Cir. 1976)

546 F.2d 526

Type
Opinion
Court
United States Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1976-12-30
Topic
general

BOYD v. JUSTICES OF SP. TERM, PART I, SUPR. CT, 546 F.2d 526 (2nd Cir. 1976) BARBARA BOYD ET AL., ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLYSITUATED, PLAINTIFFS-APPELLANTS, v. THE JUSTICES OF SPECIAL TERM, PART I, OFTHE SUPREME COURT OF THE STATE OF NEW YORK, BRONX COUNTY, INDIVIDUALLY ANDIN THEIR OFFICIAL CAPACITIES, ET AL., DEFENDANTS-APPELLEES.

Citator

UpLaw has not yet analyzed BOYD v. JUSTICES OF SP. TERM, PART I, SUPR. CT, 546 F.2d 526 (2nd Cir. 1976). The absence of a flag is not a finding that it is good law.

BOYD v. JUSTICES OF SP. TERM, PART I, SUPR. CT,546 F.2d 526(2nd Cir. 1976)
BARBARA BOYD ET AL., ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY
SITUATED, PLAINTIFFS-APPELLANTS, v. THE JUSTICES OF SPECIAL TERM, PART I, OF
THE SUPREME COURT OF THE STATE OF NEW YORK, BRONX COUNTY, INDIVIDUALLY AND
IN THEIR OFFICIAL CAPACITIES, ET AL., DEFENDANTS-APPELLEES.
No. 319, Docket 76-7234.
United States Court of Appeals, Second Circuit.
Argued December 16, 1976.
Decided December 30, 1976.
John E. Kirklin, Director of Litigation, Legal Aid Society, New York City (Kalman Finkel, Attorney-in-Charge, Legal Aid Society, Civ. Div., New York City, Michael D. Hampden, Attorney-in-Charge, Legal Aid Society, New York City), for plaintiffs-appellants.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Michael P. Fogarty, Asst. Atty. Gen., New York City, of counsel, for defendants-appellees.
Appeal from the United States District Court for the Southern District of New York.
Before MULLIGAN, TIMBERS and VAN GRAAFEILAND, Circuit Judges.Page 527
PER CURIAM:
[1] Some thirteen individuals who are allegedly indigent brought an action in the United States District Court for the Southern District of New York in December 1975 pursuant to42 U.S.C. § 1983and28 U.S.C. § 1343(3) seeking declaratory and injunctive relief against all the Justices of Special Term, Part I of the Supreme Court of the State of New York, Bronx County, to vindicate plaintiffs' claimed constitutional right to the assignment of counsel in their state divorce proceedings. The plaintiffs moved for certification of the action as a class action and also for the convening of a statutory three-judge court. In response, the defendants moved for dismissal on various grounds. On April 20, 1976 District Judge Kevin T. Duffy, finding that there was no case or controversy, dismissed the action. It is conceded that the named plaintiffs are currently represented in their divorce proceedings by counsel appointed by the Bronx office of the Legal Aid Society. Since the plaintiffs now have the relief which they sought in their federal action, counsel for their matrimonial litigation in the state court, we have no jurisdiction. "[F]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them."North Carolina v. Rice,404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). No class action was certified below. Therefore appellants are not within any relaxation of the mootness doctrine provided bySosna v. Iowa,419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).Board ofSchool Commissioners v. Jacobs,420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975).

[2] Appellants' counsel argues that dismissal will only involve the bringing of a new action which will presumably add to the burgeoning calendars of the district court. We are therefore urged to forget that the case is moot and either decide the merits or direct the court below to call for a statutory three-judge court.1Since article III of the Constitution provides that we only have jurisdiction over cases and controversies, we have no power to act and thus dismiss this appeal. The Attorney General of the State of New York, who submitted a brief but did not argue, has asserted a variety of defenses to this action but not the mootness issue. We express no opinion upon the merits of the issues raised by either of the parties.2Page 528
  1. 28 U.S.C. § 2281, on which appellants' demand for a three-judge court is based, was repealed by P.L. 94-381 (Aug. 12, 1976). The earlier statute does stay in effect for all litigation commenced before August 13, 1976. Since this action began in December 1975 appellants'28 U.S.C. § 2281request would still be alive if the action presented a case or controversy. ↩
  2. This is not a case in which certification of the class action can be related back to the date of the filing of the complaint so as to keep the controversy alive. SeeGerstein v.Pugh,420 U.S. 103, 110, n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975);Sosna, supra,419 U.S. at 402 n. 11, 95 S.Ct. 559. The relation back exception created inGersteinandSosnacontemplates controversies so transitory that mootness inevitably intervenes before the District Court can "reasonably be expected to rule on a certification motion". Such was not the case here.

    Nor do we think thatFrost v. Weinberger,515 F.2d 57, 62-65 (2d Cir. 1975), cert. denied,424 U.S. 958, 96 S.Ct. 1435, 47 L.Ed.2d 364 (1976) (Friendly,J.), requires us to apply the relation back exception in this case. A mootness problem arose there because an administrative proceeding ordered by the District Court as interim relief for the named plaintiff was concluded before the District Court completed the business of certifying the class. In the instant case the circumstances leading to mootness occurred after the District Court had dismissed it and arose as the result of independent action taken by the named plaintiffs and their counsel. ↩