U N I T E D S T A T E S C O U R T O F A P P E A L S

S e c o n d C i r c u i t

CHARLES SHUFELT,Plaintiff - Appellant

a g a i n s t - 2 C C A N o . 9 5 - 2 0 4 9U S D C : 9 4 - C V. 1 3 7 0 C G C - D N H

W . D E N N I S D U G G A N

P A M U L A S H U F E L T

M A R G A R E T G I B B O N SMARY ELIZABETH DUNNE, both in her official and individual capacity,

Defendants - Respondents

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK

A P P E N D I X O F A P P E L L A N T C H A R L E S S H U F E LT

Char les Shufe l tPlaintiff - Appellant Pro sePheasant Run ApartmentsVoorhesville, New York 12186(518) 765-2660

A P P E N D I X I N D E X

Statement Under Rule 30.

Index to Record on Appeal.

Notice of Appeal dated January 24,1995.

Judgment in Civil Action dated and entered on December 28,1994,.

Order of Hon. Con G. Cholakis dated and entered December 27,1994.

Order and Report Recommendation by David N. Kurd, Magistrate Judgedated November 10,1994 and entered November 18,1994 A - 1 1

Complaint dated October 24,1994 and filed October 25,1994. A - 1 8

Exhibit 1 - Order of Commitment dated October 7,1994. A - 4 2

Answer by Margret Gibbons dated October 28,1994. A - 4 3

Motion to Dismiss by Lawrence L. Doolittle dated November 14,1994. A - 4 5

Affirmation by Lawrence L. Doolittle dated November 14,1994. A- 47

Affidavit & Memorandum of Law by Charles Shufelt dated December 2,1994. A- 49

Exhibit 1 - State Appellate Court Order dated November 15,1994. A - 5 8

Exhibit 2 - Order to Show Cause for Stay Pending Appeal datedNovember 14,1994 A - 5 9

Exhibit 3 - State Appellate Court Order dated November 28,1994.

( i )

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S TAT E M E N T U N D E R R U L E 3 0U N I T E D S TAT E S C O U RT O F A P P E A L S

S E C O N D C I R C U I T

C H A R L E S S H U F E L T

P l a i n t i f f

- against -

W . D E N N I S D U G G A NPA M E L A S H U F E LTM A R G A R E T M . G I B B O N SMARY ELIZABETH T. DUNNE, both in her official and individual capacity

D e f e n d a n t s .* ! i ! * 4 c 4 : 4 e 4 : * * * * * * * 4 : 4 c 4 c

1. The Docket Number in the court below is 94-CV-1370 CGC - DNH

2. The full names of the original parties are set forth above. There has been no

change of parties since the commencement of this action.

3. This proceeding was commenced in Federal District Court for the Northern

Dis t r ic t o f New York .

4. The proceeding was commenced by the filing of the Complaint by Charles

Shufelt on October 25,1994.

5. This is a Civil Rights complaint brought under Title 42, Sections 1983 and 1985;

and Federal District Court has jurisdiction pursuant to Title 28, Section 1343.

6. This is an appeal of the Order of Hon. Con G. Cholakis, United States District

Court Judge, signed December 27,1994 and entered December 27,1994.

7. This is also an appeal of a Judgment in a Civil Action dated December 28,1994

and entered December 28,1994.

8. Appendix method of appeal is being used.

. n .0(10002

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S U M M O N S ( E S ) i s s u e d f o r W. D e n n i s D u g g a n , P a m e l a S h u f e l t ,M a r g a r e t M . G i b b o n s , M a r y E l i z a b e t h T . D u n n e ( w b l )( E n t r y d a t e 1 0 / 2 6 / 9 4 ]

CASE REFERRED to Magistrate Judge David N. Kurd (wbl)[ E n t r y d a t e 1 0 / 2 6 / 9 4 ]

S U M M O N S R e t u r n e d E x e c u t e d a s t o W. D e n n i s D u g g a n , P a m e l aS h u f e l t , M a r y E l i z a b e t h T. D u n n e o n 1 0 / 2 5 / 9 4 : A n s w e r d u eo n 1 1 / 1 4 / 9 4 f o r M a r y E l i z a b e t h T . D u n n e , f o r P a m e l aS h u f e l t , f o r W. D e n n i s D u g g a n ( w j g ) [ E n t r y d a t e 1 0 / 2 7 / 9 4 ]F i l e t r a n s f e r r e d f r o m A l b a n y t o U t i c a . A t t n : A J , f o rc o n s i d e r a t i o n P r o S e l i t i g a n t ' s r e q u e s t f o r i m m e d i a t er e l e a s e f r o m A l b y . C o . j a i l a n d f o r a n i n j u n c t i o n , ( w b l )

F i l e r e c e i v e d i n U t i c a C l e r k ' s O f fi c e f r o m A l b a n y C l e r k ' sO f fi c e , ( b a m )

ANSWER to Compla in t by Pamela Shufe l t , Margare t M. G ibbons( A t t o r n e y M a r g a r e t M . G i b b o n s ) , ( w j g )

F i l e t r a n s f e r r e d f r o m P r o S e O f fi c e t o M a g . K u r d ' sC h a m b e r s , ( j m g ) ( E n t r y d a t e 1 1 / 0 8 / 9 4 ]

Orde r and REPORT AND RECOMMENDATIONS o f Mag i s t ra te JudgeD a v i d N . K u r d ; S e r v i c e D a t e : 11 / 1 0 / 9 4 ; R E C O M M E N D I N G t h a tc o m p l a i n t b e d i s m i s s e d p u r s u a n t o t F R C v P 1 2 ( b ) ( 6 ) , f o rf a i l u r e t o s t a t e a c l a i m i f p l t f f a i l s t o s u b m i t a n a m e n d e dc o m p l a i n t o r o b j e c t i o n s w / i n 3 0 d a y s , e t c . ( O b j e c t i o n t o Ra n d R d u e b y 11 / 3 0 / 9 4 f o r M a r y E l i z a b e t h T. D u n n e , f o rM a r g a r e t M . G i b b o n s , f o r P a m e l a S h u f e l t , f o r W . D e n n i sD u g g a n , f o r C h a r l e s S h u f e l t ) [ p l t f s e r v e d b y c e r t i fi e dm a i l ] ( c b m )

MOTION by W. Dennis Duggan, Pamela Shufe l t , Margaret M.G i b b o n s , M a r y E l i z a b e t h T. D u n n e t o D i s m i s s c o m p l a i n t o ng r o u n d s t h a t i t f a i l s t o s t a t e a c l a i m u p o n w h i c h r e l i e fc a n b e g r a n t e d , H e a r i n g s e t f o r 9 : 3 0 1 2 / 1 6 / 9 4 , R e s p o n s eD e a d l i n e 1 2 / 2 / 9 4 , R e p l y t o R e s p o n s e D e a d l i n e 1 2 / 9 / 9 4M o t i o n r e t u r n a b l e b e f o r e J u d g e / M a g . J u d g e : C h o l a k i s ( w j g )

A F F I D AV I T b y L a w r e n c e D o o l i t t l e f o r W. D e n n i s D u g g a n ,Pamela Shufelt, Margaret M. Gibbons, Mary Elizabeth T.Dunne Re: [5-1] motion to Dismiss complaint on groundst h a t i t f a i l s t o s t a t e a c l a i m u p o n w h i c h r e l i e f c a n b eg r a n t e d ( w j g )

, r

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i n c l u d e a l l e v e n t s . M A G A P P E A LS h u f e l t V . D u g g a n , e t a l C L O S E D

1 1 / 1 5 / 9 4 6 MEMORANDUM of Law and proposed order by W. Dennis Duggan,P a m e l a S h u f e l t , M a r g a r e t M . G i b b o n s , M a r y E l i z a b e t h T.Dunne in support of [5-1] motion to Dismiss complaint ong r o u n d s t h a t i t f a i l s t o s t a t e a c l a i m u p o n w h i c h r e l i e fc a n b e g r a n t e d ( w j g )

1 1 / 1 8 / 9 4 — F i l e t r ans fe r red f r om U t i ca c l e r ks o f fice to A lbany C le rkso f fi c e . AT T N : S a n d y ( b d h )

1 1 / 2 1 / 9 4 — F i le rece ived in A lbany f rom Ut ica . (ssh)

1 1 / 2 3 / 9 4 7 Return Receipt Received, Service Date: 11/21/94 re: [4-1]r e p o r t a n d r e c o m m e n d a t i o n s s e n t b y c e r t i fi e d m a i l t oChar les Shufe l t . (cbm) [En t ry da te 11 /25 /94 ]

1 1 / 2 5 / 9 4 — Deadline updated; Objections reset to 12/21/94 for [4-1]repo r t and recommenda t i ons ( cbm)

1 2 / 2 / 9 4 8 Minute entry: Defts' Dugan and Dunn motion to dismiss thecomplaint: Marked Adjourned to 12/16/94. No appearances.C o u r t R e p o r t e r : H o l l y S a n t s p r e e ( s s h )[ E d i t d a t e 1 2 / 0 2 / 9 4 ]

1 2 / 2 / 9 4 - 9 C o u r t ' s l e t t e r t o P l t f . o f 11 / 2 9 / 9 4 a d v i s i n g t h a t t h epending mot ion scheduled for 12/16/94 wi l l be re fer red toMag.Judge Hurd after the Court considers the pendingReport-Recommendation of 11/10/94. (ssh)

1 2 / 2 / 9 4 1 0 OBJECTION by Charles Shufelt to [4-1] report andr e c o m m e n d a t i o n s w /A f fi d a v i t a n d M e m o r a n d u m o f L a w fw i a )[ E n t r y d a t e 1 2 / 0 5 / 9 4 ]

1 2 / 5 / 9 4 1 1 * OBJECTION by Cha r l es Shu fe l t t o [ 4 -1 ] r epo r t andrecommendations (cbm) [Entry date 12/06/94]

1 2 / 6 / 9 4 Motion(s) referred: [5-1] motion to Dismiss complaint ong r o u n d s t h a t i t f a i l s t o s t a t e a c l a i m u p o n w h i c h r e l i e fcan be granted referred to Magistrate Judge David N. Hurd(cbm)

1 2 / 1 6 / 9 4 1 2 * Minute entry; Motion marked «*Hold"; date set by Clerk:Motion Hearing set for 9:30 2/3/95 re: [5-1] motion toD ismiss comp la in t on g rounds tha t i t f a i l s to s ta te a c la imupon which re l ie f can be granted. No appearances. CourtReporter: Theresa Berical (ssh) [Entry date 12/20/94]

12121 ISA 1 3 ORDER, to D ismiss the p la in t i f f ' s compla in t pursuant toF R C P 1 2 ( b ) ( 6 ) ; t h e r e p o r t r e c o m m e n d a t i o n o f U S M J D a v i d H u r ddated 11/10/94 is hereby accepted and adopted ( signed byJ u d g e C o n G . C h o l a k i s ) ( w j g )

1 2 / 2 8 / 9 4 1 4 JUDGMENT en te red d ismiss ing p la in t i f f ' s compla in t , i naccordance with the Order of the Hon. Con. G. Cholakis,USDJ, dated 12/27/94 (wjg) [Entry date 12/29/94]

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M A G A P P E A LC L O S E D

1 2 / 2 8 / 9 4 - - C a s e c l o s e d ( w j g ) [ E n t r y d a t e 1 2 / 2 9 / 9 4 ]

1 / 2 4 / 9 5 1 5 N O T I C E O F A P P E A L b y C h a r l e s S h u f e l t o f O r d e r o f H o n . C o n .G . C h o l a k i s d d 1 2 / 2 7 / 9 4 , d i s m i s s i n g p l a i n t i f f ' s c i v i lr i g h t s c o m p l a i n t a n d J u d g m e n t d a t e d 1 2 / 2 8 / 9 4 . F I L I N G F E E $1 0 5 . 0 0 R E C E I P T # 2 0 4 4 3 A p p e a l r e c o r d d u e o n 2 / 2 3 / 9 5 ( w j g )

1 / 2 4 / 9 5 — F i l e t r a n s f e r r e d f r o m A l b a n y t o U t i c a . ( w j g )

1 / 2 5 / 9 5 — F i l e r e c e i v e d i n U t i c a C l e r k ' s O f f i c e f r o m A l b a n y C l e r k ' sO f fi c e , ( b a m )

1 / 2 5 / 9 5 — N o t i c e o f a p p e a l a n d c e r t i f i e d c o p y o f d o c k e t t o U S C A r e :[ 1 5 - 1 ] a p p e a l b y C h a r l e s S h u f e l t ( p a r t i e s n o t i c e d ) , ( c b m )

2 / 2 / 9 5 — U S C A C a s e N u m b e r R e : [ 1 5 - 1 ] a p p e a l b y C h a r l e s S h u f e l tU S C A N U M B E R : 9 5 - 2 0 4 9 ( p e r T C w / M o n i c a J o n e s a t C C A ) ( c b m )

1 6 C l e r k ' s c e r t i fi c a t e .

IN THE UNITED STATES D ISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK

C H A R L E S S H U F E LT

P l a i n t i f f

J.S.0i.3TRIGT COURT

,4?S"i^OOO062 4 yys

aEORGEA. RAY, ClerkALBANY

N O T I C E O F A P P E A L

- against - Docket No. 94-CV-1370

W. D E N N I S D U G G A NPA M E L A S H U F E LTM A R G A R E T M . G I B B O N SMARY ELTZABEiTH T. DUNNE, both in her official and individual capacity

D e f e n d a n t s .

* * * * * * * * * * * * * * * * * * * * * * * *

S IRS:

PLEIASE TAKE NOTICE that plaintiff, Charles Shufelt, in the above captioned

proceeding hereby appeals to the United States Court of Appeals for the Second Circuit

from the Order of the Hon. Con. G. Cholaskis dated December 27,1994 Higmigging

plaintiffs civil rights complaint against the above named defendants and Judgment in Civil

Action dated and entered on December 28,1994.

D a t e d : J a n u a r y 1 9 9 5Char les Shu fe l tPheasant Rim ApartmentsBuilding 1, Apartment 1Vorheesville, New York 12186(518) 765-2660

TO: New York Attorney GeneralAsst. Att. Gen. Lawrence L. DooHttleDepartment of LawAlbany, New York 12224

2

oaooo?Pa5me& Gibbons Law FirmThe Hamilton Building579 Columbia TurnpikeEast Greenbush, New York 12061

Elaine B. Goldsmith - ClerkU.S. Court of AppealsFoley SquareNew York, New York 10007

STATE OF NEW YORK )COUNTY OF ALBANY ) SS . :

A F F I D A V I T O F S E R V I C E

I, Charles Shufelt, having been first duly sworn, state that I served the above Notice

of Appeal by mailing a copy to the attorneys for the other parties at their addresses of

r e c o r d i n t h i s c a s e . z ? / , / ? / .

Char les Shu fe l tPheasant Run ApartmentsBuilding 1, ^artment 1Vorheesville, New York 12186(518) 765-2660

Swornto before me on th is. day of January 1995.

Notary Public

My commission expires on -ihhs RICHARD M. CARLSONNotary Public, St^te cf Nsw York

Qualified in Aibsiiy C.iu.ityReg. No. 5C0o951 - _

Cooimission Expires March 8,

Ad,450 (Retftg/SS) Judgment In a Civii case e

JSniteh district OloijjrtN O R T H E R N D I S T R I C T O F N E W Y O R K

C H A R L E S S H U F E L T

JUDGMENT IN A CIVIL CASE

W. DENNIS DUGGAN; PAMELA SHUFELT; CASE NUMBER: 94-CV-1370 (CGC)M A R G A R E T M . G I B B O N S ; M A R Y E L I Z A B E T HT . D U N N E , b o t h i n h e r o f fi c i a l a n d i n d i v i d u a l c a p a c i t y

Q Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has renderedits verdict .

^ Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and adecision has been rendered.

I T I S O R D E R E D A N D A D J U D G E D t h a t j u d g m e n t s h a l l e n t e r d i s m i s s i n g p l a i n t i f f ' s

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000008U N I T E D S TAT E S D I S T R I C T C O U R TN O RT H E R N D I S T R I C T O F N E W Y O R K

CHARLES SHUFELT,

- a g a i n s t -

P l a i n t i f f ,

W. DENNIS DUGGAN; PAMELA SHUFELT;MARGERET M. GIBBONS; MARY ELIZABETHT . D U N N E , b o t h i n h e r o f fi c i a l a n di n d i v i d u a l c a p a c i t y.

D e f e n d a n t s .

9 4 - C V - 1 3 7 0

A P P E A R A N C E S :

CHARLES SHUFELT, PRO SEPheasant Run Apar tmentsB u i l d i n g 1 , A p a r t m e n t 1V o r h e e s v i l l e , N e w Y o r k 1 2 1 8 6

G. OLIVER KOPPELL, Attorney GeneralS t a t e o f N e w Y o r kAttorney for Defendants Duggana n d D u n n eD e p a r t m e n t o f L a wT h e C a p i t o lA l b a n y , N e w Yo r k 1 2 2 2 4

PAYNE & GIBBONS LAW FIRMA t t o r n e y f o r D e f e n d a n t s S h u f e l ta n d G i b b o n sThe Hami l ton Bui ld ing5 7 9 C o l u m b i a Tu r n p i k eEast Greenbush, New York 12061

O F C O U N S E L :

Lawrence L. Doolittle, Esq.Assistant Attorney General

Margeret M. Gibbons, Esq.

CON. G. CHOLAKIS, D.J.

O R D E R

This matter comes before the court on the Report-Recommendation of United States Magistrate Judge David N. Kurddated November 10, 1994. Magistrate Judge Kurd recommends that

00003.0

this court dismiss plaintiff's complaint pursuant to Fed. R. civ.P. 12(b)(6). The parties have been served with the Magistrate

Judge's Report-Recommendation and Plaintiff has filed an Affidavitand Memorandum of Law both objecting to the Report-Recommendation

and opposing the New York State Attorney General's pending motiont o d i s m i s s .

A f te r ca re fu l rev iew o f the en t i re fi le , inc lud ing theMagistrate Judge's Report-Recommendation and Plaintiff's Affidavitand Memorandum of Law, this court accepts and adopts the Report-Recommendation in full for the reasons stated therein. The court

agrees with Magistrate Judge Kurd and, accordingly, plaintiff'sc o m p l a i n t i s h e r e b y d i s m i s s e d .

I T I S S O O R D E R E D .

DATED: A lbany, New YorkD e c e m b e r Z 7 1 9 9 4

CON. G. CHOLAKIS, JUDGEUNITED STATES DISTRICT COURT

- 2 -

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c h i l d s u p p o r t i n a s e c r e t t r i a l o n O c t o b e r 7 , 1 9 9 4 . P l a i n t i f f

f u r t h e r c o m p l a i n s h e w a s n o t a l l o w e d t o p r e s e n t w i t n e s s e s a n d t h a t

the Family Court Act, §§ 433, 435 & 439 are unconstitutional.'

T h e d e f e n d a n t s a r e a l s o a l l e g e d t o h a v e c o n s p i r e d t o d e p r i v e t h e

p l a i n t i f f o f h i s c o n s t i t u t i o n a l r i g h t s f o r w h i c h h e s e e k s

c o m p e n s a t o r y a n d p u n i t i v e d a m a g e s . P l a i n t i f f a l s o s e e k s h i s

i m m e d i a t e r e l e a s e f r o m t h e A l b a n y C o u n t y J a i l a n d d e m a n d s a j u r y

t r i a l . F o r a m o r e c o m p l e t e s t a t e m e n t o f t h e c l a i m , r e f e r e n c e i s

m a d e t o t h e c o m p l a i n t c o n t a i n e d h e r e i n .

I n H e c k V . H u m n h r e v . 1 1 4 S . C t . 2 3 6 4 ( 1 9 9 4 ) , t h e

S u p r e m e C o u r t f o u n d t h a t w h e n " e s t a b l i s h i n g t h e b a s i s f o r t h e

d a m a g e s c l a i m n e c e s s a r i l y d e m o n s t r a t e s t h e i n v a l i d i t y o f t h e

c o n v i c t i o n . . . t h e c l a i m a n t c a n b e s a i d t o b e ' a t t a c k i n g t h e

f a c t o r l e n g t h o f c o n fi n e m e n t ' . . . " , I d . a t 2 3 6 9 - 2 3 7 0 , a n d

" t h e h o a r y p r i n c i p l e t h a t c i v i l t o r t a c t i o n s a r e n o t a p p r o p r i a t e

v e h i c l e s f o r c h a l l e n g i n g t h e v a l i d i t y o f o u t s t a n d i n g c r i m i n a l

judgments appl ies to § 1983 damages act ions that necessari ly

r e q u i r e t h e p l a i n t i f f t o p r o v e t h e u n l a w f u l n e s s o f h i s c o n v i c t i o n

o r c o n f i n e m e n t . . . " I d . a t 2 3 7 2 . A p l a i n t i f f m a v s e e k § 1 9 8 3

damages remedies fo r unconst i tu t iona l ac ts lead ing to a c r imina l

c o n v i c t i o n , b u t o n l y u p o n a s h o w i n g t h a t " t h e c o n v i c t i o n o r

s e n t e n c e h a s b e e n r e v e r s e d o n d i r e c t a p p e a l , e x p u n g e d b y e x e c u t i v e

o r d e r , d e c l a r e d i n v a l i d b y a s t a t e t r i b u n a l . . . o r c a l l e d i n t o

q u e s t i o n b y a f e d e r a l c o u r t ' s i s s u a n c e o f a w r i t o f h a b e a s c o r p u s ,

2 8 U . S . C . § 2 2 5 4 " . I d .

' This complaint has been filed-in this court by several different plaintiffs, and with the exceptionof the names and convictions specific to each plaintiff, appears to be a form complaint drafted either as acollaborative effort or by a single author.

0 0 0 0 1 3

P l a i n t i f f h a s t h u s f a r m a d e n o s h o w i n g i n t h i s c o u r t

t h a t h i s c o n v i c t i o n w a s o v e r t u r n e d o r t h a t h e h a s o t h e r w i s e m e t

t h e t h r e s h o l d c r i t e r i a f o r t h i s c i v i l r i g h t s c o m p l a i n t . I t i s

c l e a r f r o m p l a i n t i f f ' s c o m p l a i n t t h a t t h e r e l i e f h e s e e k s w o u l d

n e c e s s a r i l y i n v a l i d a t e h i s c o n v i c t i o n . W e r e t h e c o u r t t o m a k e

f a c t u a l fi n d i n g s o f t h e n a t u r e a s s e r t e d b y p l a i n t i f f , h i s j u d g m e n t

o f c o n v i c t i o n w o u l d b e d e e m e d u n c o n s t i t u t i o n a l a n d s u b j e c t t o

annu lment pu rsuan t to New York CPL § 440 .10 (1S70) .

O r d i n a r i l y, t h e c o u r t w o u l d b e b o u n d t o s t a y a § 1 9 8 3

c l a i m p e n d i n g t h e o u t c o m e o f s t a t e c o u r t p r o c e e d i n g s d u e t o

s t a t u t e o f l i m i t a t i o n s c o n c e r n s a n d p r i n c i p l e s o f a c c r u a l . M a c k v .

V a r e l a s . 8 3 5 F . 2 d 9 S 5 , 1 0 0 0 ( 2 d C i r . 1 9 8 7 ) . H o w e v e r , t h e H e c k

C o u r t h a s p r o n o u n c e d t h a t a § 1 9 8 3 c a u s e o f a c t i o n a t t r i b u t a b l e t o

u n c o n s t i t u t i o n a l c o n v i c t i o n s o r s e n t e n c e s " d o e s n o t a c c r u e u n t i l

t h e c o n v i c t i o n o r s e n t e n c e h a s b e e n i n v a l i d a t e d " , 1 1 4 S . C t . a t

2 3 7 4 , a n d t h i s c o u r t c o n c l u d e s t h a t a s t a y i s n o t j u s t i fi a b l e .

T h e u n a v o i d a b l e c o n c l u s i o n t o t h i s a n a l y s i s i s t h a t

a b s e n t s t a t e o r f e d e r a l i n v a l i d a t i o n o r o t h e r fi n d i n g o f a

c o n s t i t u t i o n a l v i o l a t i o n c e n t r a l t o h i s c o n v i c t i o n , p l a i n t i f f h a s

f a i l e d t o s t a t e a c l a i m u p o n w h i c h r e l i e f c a n b e g r a n t e d . F e d . R .

C i v . P . 1 2 ( b ) ( 6 ) .

T h e S u p r e m e C o u r t h a s d e fi n e d t h e s c o p e o f d i s m i s s a l s

f o r f a i l u r e t o s t a t e a c l a i m :

R u l e 1 2 ( b ) ( 6 ) a u t h o r i z e s a c o u r t t o d i s m i s s ac l a i m o n t h e b a s i s o f a d i s p o s i t i v e i s s u e o fl a w . H i s h o n v . K i n o & S p a l d i n g . 4 6 7 U . S . 6 9 ,7 3 ( 1 9 8 4 ) ; C o n l e v v. G i b s o n . 3 5 5 U . S . 4 1 , 4 5 -4 6 ( 1 9 5 7 ) . T h i s p r o c e d u r e , o p e r a t i n g o n t h ea s s u m p t i o n t h a t t h e f a c t u a l a l l e g a t i o n s i n t h ec o m p l a i n t a r e t r u e , s t r e a m l i n e s l i t i g a t i o n b ydispensing wi th needless d iscovery andf a c t fi n d i n g . N o t h i n g i n R u l e 1 2 ( b ) ( 6 )

3

000014

c o n fi n e s i t s s w e e p t o c l a i m s o f l a w w h i c h a r eo b v i o u s l y i n s u p p o r t a b l e . O n t h e c o n t r a r y , i fa s a m a t t e r o f l a w " i t i s c l e a r t h a t n o r e l i e fc o u l d b e g r a n t e d u n d e r a n y s e t o f f a c t s t h a tc o u l d b e p r o v e d c o n s i s t e n t w i t h t h ea l l ega t i ons , " H i shon . sup ra , a t 73 , a c l a imm u s t b e d i s m i s s e d , w i t h o u t r e g a r d t o w h e t h e ri t i s b a s e d o n a n o u t l a n d i s h l e g a l t h e o r y o ro n a c l o s e b u t u l t i m a t e l y u n a v a i l i n g o n e .

N e i t z k e v . W i l l i a m s . 4 9 0 U . S . 3 1 9 , 3 2 6 - 2 7 ( 1 9 8 9 ) . T h e C o u r t a l s o

counseled that a complaint which raises an arguable quest ion of

l a w f o u n d t o b e c o r r e c t l y r e s o l v e d a g a i n s t t h e p l a i n t i f f i s

app rop r ia te l y d i sm issed under Ru le 12 (b ) (6 ) . I d . a t 328 . The

dis t r ic t cour t has the power to d ismiss a compla in t sua sponte for

f a i l u r e t o s t a t e a c l a i m p u r s u a n t t o F e d . R . C i v . P. 1 2 ( b ) ( 6 ) .

P e r e z v . O r t i z . 8 4 9 F. 2 d 7 9 3 , 7 9 7 ( 2 d C i r . 1 9 8 8 ) ( c i t i n g L e o n h a r d

V. U n i t e d S t a t e s . 6 3 3 F. 2 d 5 9 9 , 6 0 9 n . 11 ( 2 d C i r . 1 9 8 0 ) ; R o b i n s

V. Rarback. 325 F.2d 929 (2d Cir. 1963), cert , denied, 379 U.S.

974 (1965); Taub v. Hale. 355 F.2d 201, 202 (2d Cir.), cert.d e n i e d . 3 8 4 U . S . 1 0 0 7 ( 1 9 6 6 ) ) ; T v l e r v . C a r t e r . 1 5 1 F. R . D . 5 3 7

(S.D.N.Y. 1993); 5 C. Wright & A. Miller, Federal Practice andProcedure § 1357 a t 593 (1969) . Such a d ismissa l i s jus t i f i ed

only if proper notice and opportunity to be heard is provided tothe plaintiff. Perez. 849 F.2d at 797; see also Schlesinaer Inv.

P a r t n e r s h i p v . F l u o r C o r p . . 6 7 1 F. 2 d 7 3 9 , 7 4 2 ( 2 d C i r . 1 9 8 2 )

(adequate notice helps court secure a just determination).D i s m i s s a l f o r f a i l u r e t o s t a t e a c l a i m u n d e r F e d . R .

C i v. P. 1 2 ( b ) ( 6 ) , i s o n l y a p p r o p r i a t e i f " i t a p p e a r s b e y o n d d o u b t

that the plaintiff can prove no set of facts in support of his

c l a i m w h i c h w o u l d e n t i t l e h i m t o r e l i e f . " A l l e n v . W e s t p o i n t -

P e p p e r e l l . I n c . . 9 4 5 F. 2 d 4 0 , 4 4 ( 2 d C i r . 1 9 9 1 ) ( q u o t i n g C o n l e y v .

4

0 0 0 0 1 5

Gibson. 355 U.S. 41 , 45-46 (1957) ) . A broad in te rpre ta t ion o f p ro

se pleadings enhances this standard to a greater degree. Easton v.

S u n d r a m . 9 4 7 F. 2 d 1 0 11 , 1 0 1 5 ( 2 d C i r . 1 9 9 1 ) , c e r t , d e n i e d . 11 2 S .

C t . 1943 (1992) . Thus , t he cou r t w i l l p rov ide an oppor tun i t y t o

p l a i n t i f f t o amend h i s comp la i n t .

By way of th is Report and Recommendat ion, plaint i ff is

hereby g iven not ice tha t th is cour t p roposes to d ismiss h is

comp la in t pu rsuan t t o Fed . R . C i v. P. 12 (b ) (6 ) f o r f a i l u re t o

s t a t e a c l a i m . B e c a u s e p l a i n t i f f m a y n o t a t t a c k t h e v a l i d i t y o r

c o n s t i t u t i o n a l i t y o f h i s c o n v i c t i o n i n a § 1 9 8 3 a c t i o n a b s e n t a

s h o w i n g t h a t " t h e c o n v i c t i o n o r s e n t e n c e h a s b e e n r e v e r s e d o n

d i rec t appeal , expunged by execut ive order, dec lared inva l id by a

s t a t e t r i b u n a l . . . o r c a l l e d i n t o q u e s t i o n b y a f e d e r a l c o u r t ' s

i s s u a n c e o f a w r i t o f h a b e a s c o r p u s , 2 8 U . S . C . § 2 2 5 4 " , H e c k ,

supra, and because plaintiff 's current sentence of incarcerationi n d i c a t e s t h a t s u c h r e v e r s a l h a s n o t o c c u r r e d , t h i s c o u r t

recommends that the complaint be dismissed. This court has not

c o n s i d e r e d t h e f a c t u a l a l l e g a t i o n s c o n t a i n e d i n t h e p l a i n t i f f ' s

compla int ; the unders igned's recommendat ion rests so le ly on the

Supreme Court pronouncement in Heck that a § 1983 cause of actiona t t r i b u t a b l e t o u n c o n s t i t u t i o n a l c o n v i c t i o n s o r s e n t e n c e s " d o e s

n o t a c c r u e u n t i l t h e c o n v i c t i o n o r s e n t e n c e h a s b e e n i n v a l i d a t e d " .

11 4 S . C t . a t 2 3 7 4 . B e c a u s e t h e p l a i n t i f f ' s § 1 9 8 3 a c t i o n h a s n o t

acc rued , he has fa i l ed to s ta te a c la im fo r wh ich th i s cour t i s

a b l e t o g r a n t r e l i e f a n d i t i s , t h e r e f o r e , p r o p e r l y d i s m i s s e d

p u r s u a n t t o F e d . R . C i v . P. 1 2 ( b ) ( 6 ) .

The p la in t i f f may fi le ob jec t i ons o r submi t a p roposed

amended compla in t to present a c la im reflect ing that h is cause of

5

A O 7 2 A

0 0 0 G 1 6

a c t i o n h a s i n d e e d a c c r u e d a s d e fi n e d a b o v e ; i n w h i c h c a s e t h i s

c o u r t w o u l d r e c o m m e n d i t s o w n m o t i o n b e d e n i e d .

Wherefore, based on the above, this court recommends

t h a t t h i s 4 2 U . S . C . § 1 9 8 3 c i v i l r i g h t s c o m p l a i n t b e d i s m i s s e d

without prejudice pursuant to Fed. R. Civ. P. 12(b)(6) for failure

to s ta te a c la im upon wh ich re l ie f can be g ran ted un less p la in t i f f

submits objections or an amended complaint within 30 days

demonst ra t ing that h is § 1983 cause of act ion has accrued. I f the

plaintiff fails to object or submit such an amended complaint andthe act ion is d ismissed, he may ref i le h is § 1983 c la im i f and

when he meets the Heck standard showing the requisi te inval idat ion

o f h i s c o n v i c t i o n . I n t h a t r e g a r d , p l a i n t i f f i s a d v i s e d t h a t h e

m u s t e x h a u s t h i s s t a t e c o u r t r e m e d i e s b e f o r e r e s o r t i n g t o f e d e r a l

c o u r t f o r h a b e a s c o r p u s r e l i e f :

"An app l ica t ion for a wr i t o f habeas corpuso n b e h a l f o f a p e r s o n i n c u s t o d y p u r s u a n tt o t h e i u d c m e n t o f a S t a t e c o u r t s h a l l n o tb e g r a n t e d u n l e s s i t a p p e a r s t h a t t h e a p p l i c a n th a s e x h a u s t e d t h e r e m e d i e s a v a i l a b l e i n t h ec o u r t s o f t h e S t a t e , o r t h a t t h e r e i s e i t h e r a na b s e n c e o f a v a i l a b l e S t a t e c o r r e c t i v e p r o c e d u r e so r t h e e x i s t e n c e o f c i r c u m s t a n c e s r e n d e r i n gsuch p rocess i ne f f ec t i ve t o p ro tec t t her i g h t s o f t h e p r i s o n e r.

28 U .S .C . § 2254 (emphas i s added ) .

T h e c o u r t a l s o n o t e s t h a t p l a i n t i f f h a s e f f e c t e d s e r v i c e

on the defendants , th ree o f wh ich have fi led an answer. The

defendants a re d i rec ted to submi t any ob jec t ions to th is Repor t -

Recommendat ion w i th in ten days o f rece ip t thereof , o r, in the

alternative, will be granted fourteen days within which to respondto any object ions raised by the plaint i ff .

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Upon an examinat ion of the complaint , i t is hereby

ORDERED, that the Clerk forward a copy of this Report

Recommendat ion to the p la in t i f f by ce r t i fied ma i l , and to the

d e f e n d a n t s b y r e g u l a r m a i l , a n d i t i s f u r t h e r

RECOMMENDED, that this complaint be dismissed pursuant

t o F e d . R . C i v. P. 1 2 ( b ) ( 6 ) , f o r f a i l u r e t o s t a t e a c l a i m i f t h e

plaintiff fails to submit an amended complaint or objectionswithin 30 days demonstrat ing that his § 1983 cause of act ion has

a c c r u e d d u e t o t h e i n v a l i d a t i o n o f h i s c o n v i c t i o n , a n d i t i s

f u r t h e r

ORDERED, that defendants fi le any object ions to th is

Report-Recommendation within ten days and any response to

plaintiff 's objections, should he choose to file them , wrthmfou r t een days a f t e r t hey a re fi l ed w i t h t he cou r t .

P l a i n t i f f i s h e r e b y g i v e n n o t i c e t h a t t h i s c o u r t h a s , o ni t s o w n i n i t i a t i v e , r a i s e d a m o t i o n t o d i s m i s s t h i s a c t i o n f o rFAILURE TO STATE A CLAIM UPON WHICH RELIEF HAY BE GRANTED pursuantt o F e d . R . C i v . P. 1 2 ( b ) ( 6 ) . P u r s u a n t t o 2 8 U . S . C . § 6 3 6 ( b ) ( 1 ) ,a n d F e d . R . C i v . P. 6 ( b ) , t h e p l a i n t i f f h a s t h i r t y ( 3 0 ) d a y sw i t h i n w h i c h t o fi l e w r i t t e n o b j e c t i o n s t o t h e f o r e g o i n g r e p o r t o ran amended complaint. Such amended complaint or object ions shal lb e fi l e d w i t h t h e C l e r k o f t h e c o u r t . F A I L U R E T O O B J E C T T O T H I SREPORT WITHIN THIRTY DAYS WILL PRECLUDE APPELLATE REVIEW. RoldanV . R a c e t t e . 9 8 4 F . 2 d 8 5 ( 2 d C i r . 1 9 9 3 ) ( c i t i n g S m a l l v . S e c r e t a r yo f H . H . S . . 8 9 2 F. 2 d 1 5 ( 2 d C i r . 1 9 8 9 ) ) ; 2 8 U . S . C . § 6 3 6 ( b ) ( 1 ) ;F e d . R . C i v . P . 6 ( a ) , 6 ( e ) , & 7 2 .

. S O O R D E R E D .

D a t e d : N o v e m b e rU t i c a , N Y

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0 0 0 0 1 8I N T H E U N I T E D S TAT E S D I S T R I C T C O U RTF O R T H E N O RT H E R N D I S T R I C T O F N E W Y O R K

: W ' . v . ,

C H A R L E S S H U F E LT

- against -

P l a i n t i fi f

2 ^ '994

^EORGiiAhAY, ClerkALBAMY

C O M P L A I N TW . D E N N I S D U G G A NP A M E L A S H U F E L T Q hM A R G A R E T M . G I B B O N S ' ^MARY ELIZABETH T. DUNNE, both in her official and individual capacity

D e f e n d a n t s . A A

Plaintiff Charles Shufelt complains against defendants as follows:

J U R I S D I C T I O N A L A L L E G A T I O N

Jurisdiction in this case is based on the existence of a federal question. The actionarises under the Fourteenth Amendment to the United States Constitution and Title 42U.S.C. Section 1983 as shown more fully in this complaint.

I . P a r t i e s :

1. Plaintiff - Charles Shufelt resides at Pheasant Run Apartments, Building 1,

Apartment 1, Voorheesville, New York 12186 (hereinafter, Mr Shufelt).

2. Defendant - W. Dennis Duggan is employed by the Uniform Court System of

New York as an Albany Coimty Family Court Judge at 1 Van Tromp Street, Albany, New

York 12207 (hereinafter. Judge Duggan).

3. Defendant - Pamela Shufelt resides at RR # 1 Box 94A, Westerlo, New York

12193 (hereinafter, Ms Shufelt).

4. Defendant - Margaret M. Gibbons is a self employed attorney practicing at 579

Columbia Turnpike, East Greenbush, New York 12061 (hereinafter, Ms. Gibbons).

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5. Defendant - Mary EUrabeth T. Dunne is employed by the Unified CourtSystem of New York as an Albany Couniy Hearing Examiner at One Van TVomp, Albany.New York 12207 (hereinafter, Ms. Dunne),

Plaintiff, complaining of the Defendants,6. That this action is brought by Plaintiff pursuant to U.S.C A Title 42, Section

1983 for the deprivation ofhis constitutional rights to a public trial, jury trial, right to callwitnesses on his behalf, due process and equal protection of the law.

7. TTiat Mr Shufelt is currently serving sixteen (16) consecutive weekends inthe Albany County Jail. (Order of Commitment dated October 7,1994 attached)

8. That the above named defendants have conspired to have Mr Shufelt tried,convicted and sentenced to jail in a secret trial in violation of Mr Shufelfs Kfth Amendmentnght to a public trial and therefore he has been illegally

9. That the above named defendants have conspired to deprive Plaintiff of hisSixth Amendment right to a jury trial as he feced a potential sentence that exceeded sixmonths m jail or a $6,000.00 fine or both pursuant to state statute and his SixthAmendment right to Assistance of Counsel.

10. That O" October 7,1994 Judge Duggan sentenced Mr Shufelt to the AlbanyCounty Jail.

11. That plaintiff was not given the opportunity to present witnesses for hisdefense as required by the Sixth Amendment to the United States Constitution and by^ SilYgStrigy. Silvffftrifl, A . Div. 266 N.YH.2d 173 held that Family Court Act'

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§ 433 ''requires that a re^ondent 'shall be given the opportunity to be heard and to present

witness*" and Abbondola v. Abbondola. App. Div. 338 N.Y.S.2d 1975 stated "In our opinion,

appellant did not get an adequate hearing and was not afforded his statutory right of an

opportunity to be heard and to present witnesses".

12. That the defendants deprived plaintifif of his constitutional right to a public

trial pursuant to Family Court Act Section 433.

13. That Family Court Act § 433 is imconstitutional as it allows the court to be

summarily closed in a civil or criminal contempt proceeding where the litigant faces

imprisonment.

14. That the Family riniirt in thft nf T jnHn ft v Theodore G.. (1973^ 34fi

N.Y.S.2d 361 at 366 held that faiiiire to pay support pursuant to court order was a "crune"%

under County Law § 722(a) stating:

... In this matter, it is; the respondent-husband clearly, at some stage of theproceeding, is liable to a loss of his liberty. We respectfully believe that the clearintent of the Appellate Division to ever widen the availability of counsel must alsobe construed and/or effectuated as a mandate to lower Courts to extend the mostliberal constructioQ, consistent with its written terms, to (Coimty Law) Article 18-B.Accordingly, although the statute by its terms (County Law Section 722) is framedto encompass persons "accused of crime". Section 722-a, defines a crime as "afelony, misdemeanor, or the breach of any law of this state. . . other thanone that defines a trafdc infraction', for which a sentence for a term ofimprisonment is authorized upon conviction thereof. Under this definition,incarceration for violation of a support order is not excluded under thestatute's only exclusionary clause, viz. that of a "traffic infi^ction".

15. That under the New York State Penal Law failure to pay support is an

offense and as the potential sentence can exceed 15 days is considered a misdemeanor.

Penal Law Article 10 - Definit ions:

1. "Offense" means conduct for which a sentence to a term ofimprisonment or a fine is pi^ovided by any law of this state or by any law.

4

Q 0 0 U 2 1local law or ordinance of a political subdivision of this state, or by any order, ruleor regulation of any governmental instrumentality authorized by law to adopt thes a m e .

4. "Misdemeanor" means an offense, other than a "traffic infraction," for which asentence to a term of imprisonment in excess of fifteen days may be imposed, butfor which a sentence to a term of imprisonment in excess of one year cannot beimposed.

5. "Felony" means any offense for which a sentence to a term of imprisonment inexcess of one year may be imposed.

6. "Crime" means any misdemeanor or a felony.

As contempt of a court order for failure to pay support is punishable by at least six

months incarceration under Family Court Act § 454, it is therefore, classified as a

misdemeanor and is therefore, considered a "crime".

16. That both the State and Federal Court have held that a person cannot be

sentenced to jail in a secret trial.

In Re Rosahn. 671 F.2d 690 at 695,696,697 (2nd Cir. 1982):

[9] Auother argument not raised below is that the contempt proceeding wasconducted in a manner that violated her right to due process because a fulladversary hearing was not held, no witnesses were called, she was notinformed of her yight to call witnesses, and she was not offered anopportunity to address the court before issuance of a CIVIL contempto r d e r . . .

[10] .. . In lnReOhver. 333 U.S. 257,68 S.Ct. 499, (1948) which struck down asecret criminal contempt trial as violative of due process, the Supreme Courtstressed that at the heart of due process clause is "[tjhe traditional Anglo-American distrust for secret trials," which throughout history have beenassociated with ^Institutions [that] obviously symbolized a menace toliberty." Id. at 268-69,68 S.Ct. at 505."In view of this nation's historic distrust of secret proceedings [and] their inherentdanger to fieedom,... the guarantee [of public proceedings] has alwaysbeen recognized as a safeguard against any attempt to employ our courtsas instruments of persecution." Id. at 270,273,69 S.Ct. at 507.

The safeguard of open proceedings not only represents "an effective restraint onpossible abuTO of power," Id^..., but also reflects "the notion, deeply rooted

«

5

0 U 0 0 2 2in common law, 'that justice must satisfy the appearance of justice."*(Citations omitted)

While the passages quoted from In re Oliver were written primarily with criminaltrials in mind, it is significant that the contempt sentence overturned by the OliverCourt on the ground that the contempt proceeding below had been improperlyclosed to the pubUc was a conditional jail sentence that would have terminated uponcompliance with the trial court's order. Accordin^y, the Oliver analysis was appliedto invalidate a contempt sanction whose central characteristic—^its conditionalnature—is typical of a dvU contempt

[11,12] The government argues that whatever may be the rule in a criminalcontempt trial, there is no Fifth Amendment requirement that a civil contempt trialpursuant to 28 U.S.C. § 1826 be held in public. We are unpersuaded by thisdistinction. As we noted in In re Bella. 518 F.2d 955,958-59 (2nd Cir. 1975):

"Admittedly ... a proceeding [under § 1826] is basically civil in nature. The puiposeof holding a witness in contempt is to coerce him to answer the grand jury'squestions, not to punish him for reprehensible conduct.... Yet, the burden ofimprisonment is just as great, regardless of what we call the order thatimposed it. It is this fact that fosters the need for procedural protection."

Given the burden that imprisonment imposes on an individual, a civil contempttrial that could result in an order of conHnement carries with it the sameconcerns and purposes that lead to the requirement of a public trial in thecriminal context, such as the need to assure accountability in the exercise ofjudicial and governmental power, the preservation of the appearance of fairness,and the enhancement of the public's confidence in the judicial system....

[13] Our conclusion that alleged civil contemner's, like criminalcontemner's, have some right to a public proceeding is supported by andconsistent with the trend in this and other Circuits to afford the same or similarprocedural safeguards to persons charged with civil contempt as to thosecharged with criminal contempt. * * We are satisfied that the protectionagainst unnecessary secret proceedings extends beyond the criminalcontext. {One court has held that to comport with due process requirementscertain quasi-judicial administrative proceedings "that involve importantconstitutional rights" must "be open to the press and the public." Fitzgerald v.Hampton. 467 F.2d 755, 763,766 [D.C.Cir. 1972])

We hold, therefore, that Rosahn's due process rights were violated when thetrial court ordered the entire contempt proceeding closed over herobjection. We need not and do not decide whether the due process clause extendsthe same degree of protection to civil contenmor's who do not face imprisonment.

H

60 0 U 0 2 3

InrePiBeUa. 518 F.2d 955 (2n<i Cir. 1975): '

In Argersingerv 407 U.S. 25,37,92 S.Ct. 2006, the Court held that, absenta knowing and intelligent waiver, no person may be imprisoned for *any*offense, whether classified as petty, misdemeanor, or felony, unless he isrepresented by counsel at his trial. The Circuits with the opportunity to do so haveconcluded that this right must be extended to contempt proceeding, be it civil orcriminal, where the defendant is faced with .the prospect of imprisonment.See, United States v. Sun Kung Rang. 468 F.2d 1368 (9th Cir. 1972); InreKilgo.484 F.2d 1215 (4th Cir. 1973); Henkelv. Bradahaw. 483 F.2d 1386 (9th Cir. 1973).We agree.

United States v. Sun Kunf Kanpr, dRA F.2d 1368 (1972):

Appellant, an indigent, had requested appointment of counsel to represent inthe civil contempt proceeding....

Threat of imprisonment is the coercion that makes a civil contemptproceeding effective. The civil label does not obscure its penal nature. iCf,Harris v. United States. (1965) 382 U.S. 162,86 S.Ct. 352.

i n g e r v . S.Ct. 2006 (1972) at 2008 holds:

[1] The Sixth amendment, which enumerated situations has been made applicableto the states by reason of the Fourteenth Amendment (citations omitted); and In ReOUver,..., 68 S.Ct. 499, ..., provides specified standards for **331 criminalprosecutions".

One is the requirement of a "public trial". In re Oliver, supra, held that the right to a"public trial" was applicable to a state proceeding even though only a 60 daysentence was involved ,68 S.Ct., at 507.

Another guarantee is the right to be informed of the nature and cause of theaccusation. Still another, the right to confinntation. Pointer v. Tevaa, supra. Andanother, compulsoiy process for obtaining witnesses in one's favor. Waaliin .nn vTexas, supra. We have never limited these rights to felonies or to lesser but seriousoffences .

In Washington v. Texas, aupra^ we said, "We have held that due process requires thatthe accused have the assistance of coimsel for his defense, that he be confronted withwitnesses against him, and that he have a right to a speedy and public trial." 388U.S., at 18,87 S.Ct. at 1922. Req)ecting the right to a speedy and public trial, the rightto be informed of the nature and cause of the accusation, the right to confiiont andcross-examine witnesses, the right to compulsoiy process for obtaining witnesses, itwas resently stated. *lt is simply not arguable, nor has any court ever held,that the trial <of a petty offefise may be held in secret, or without notice to the

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accused of the charges, or that such cases the defendant has no right to confinnt hisaccusers or to compel the attendance of witnesses in his own behalT Junker TheRight to Counsel in Misdemeanor Cases, 43 WashX Jlev. 685,705 (1968).

17. If a father is entitled to his constitutional right to counsel why is he not

entitled to his constitutional right to a public trial when he faces imprisonment? Certainly,state statute and case law are all holding that failure to pay support is a "crime".

18. The United States Supreme Court has stated the rights of individuals

charged with the crime of "contempt".

In Re Oliver. (1948^ 68 S.Ct. 499 held:

[7] First, Counsel have not cited and we have been unable to find a «inglA instanceof a criminal trial conducted in secret in any federal, state or municipal court duringthe history of this country. Nor have we fotmd any record of even one such secrettrial in England since abolition of the Court of Star Chamber in 1641, and whetherthat courft ever convicted people secretly is in dispute. Summary trials foralleged misconduct called contempt of court have NOT been regarded asan exception to this universal rule against secret trials.

[8]..., no court in this country has ever before held, so far as we can find,that an accused can be tried, convicted and sent to jail, when everybody else isdenied entrance to the court, except the judge and his attaches. And withoutexception all courts have held that an accused is at the very least entitledto have his friends, relatives and counsel present, no matter what offensehe has been charged.

[15] Nor is there any reason suggested why "demoralization of the court'sauthority" would have resulted firom giving the petitioner a reasonable opportunityto appear and offer a defense in open court to a charge of perjury or to thecharge of contempt.... The right to be heard in open court before one isconderrmed to too valuable to be whittled away under the guise of "demoralizationof the court's authority".

[16] It is "the law of the land" that no man's life, liberty or property beforfeited as a punishment until there has been a charge fairly made andfairly tried in a Pttbliff trftHnal» See nhpmkArff v, 309 UJS. 227,236,237,60 S.Ct. 472,477,84 L.Ed. 716. The petitioner was convicted without that kind of trial.

8 U O 0 0 2 5

Matter of Chase. Family Court, 446 N.Y.S.2d 1000 (1982), 112 Misc.2d 436:

[1] Richmond Newspapers. Inc. v. Virginia. — U.S. —, 100 S.Ct. 2814, commandsrespect not only for its holding but for its jurisprudential and conceptualunderpinnings. The Supreme Court instructs that all trials, civil and criminal,are presumptively open, in vindication of an independant right of access of thepublic and the press. Indeed, Richmond, at 100 S.Ct. 2829-30, holds "that the rightto attend criminal trials is implicit in the guarantees of the FirstAmendment.... Absent an overriding interest articulated in findings, the trial ofa criminal case must be open to the public."

[2] The opinion of the Chief Justice and concurring opinions demonstrateunequivocally that the historical and analytical bases for the public rightof access in criminal trials pertain equally to civil proceedings. Thosegrounds reflect a profound Anglo-American commitment to open justicein criminal and civil proceedings. As identified in Richmond, supra, whichtreats each groimd comprehensively:

People V. Bovd.ADP. Div. 397 N.Y.S.2d 150; 59 A.D.2d 558:

[2-5] The Sixth Amendment to the United States Constitution guarantees toeveryone accused of a crime "the right to a speedy and public trial"(emphasis supplied). By the Fourteenth Amendment, the States are bound togive the accused these same rights (see, Duncan v. Louisiana. 88 S.Ct. 1444).This same right to a pubHc trial is provided in this State by statute (see JudiciaryLaw 4; Civil Rights Law, § 12). Where this fundamental right has beenupjustly abridged, a new trial is mandated "without an affirmative showingprejudice" (see People v. Jelke. 308 N.Y. 56,67,123 N.E.2d 769) Also, theclosing of the courtroom is to be done sparingly and only in unusual circumstances(See People v.Hil^n. 31 N.Y.2d 71,334 N.Y.S.2d 885).

People V, (jpnalez, 426 N.Y.S.2d 318:

[1,2] It is error to close a trial court to the public where such a closing is notpreceded by an inquiry careful enough to assure the court that the defendant's rightto a public trial is not being sacrificed for less than compelling reasons, and such anerror is reversible per se requiring no showing of prejudice (People v. Jones.47 N.Y.2d 409,418 N.YjS.2d 359)...

The People, etc. v. Warren P.. App. Div. 447 N.Y.S.2d 517,518; 86 A.D.2d 895:

[1] Defendant's right to a public trial was violated when the trial courtexcluded all spectators from the courtroom, except the defendant's mother andan unidentified man, on the prosecutor's representation that he "might want to usethem" as witnesses. The persons removed included defendant's brother. The courtfailed to make«any inquiry as t6 the identity of the persons present, their

9

000026relationship to the defendant, their purpose for being there or whether they hadany possible connection to the case. In fact, the defense counsel flatly stated thatthe persons present had no connection with the case, and otherwise objected totheir exclusion. Absent showing of compelling necessity, exclusion ofspectators deprives a defendant of his right to a public trial (People v.Jones. 47 N.Y.2d 409,418 N.Y.S.2d 359; People v. Brown. 79 A.D.2d 659,434N.Y.S.2d 445). Since there was no showing of necessity in this case and nofindings of fact with respect to such issues were made, reversal is required(See, People v. Cuevas. 50 N.Y.2d 1022, 431 N.Y.S.2d 686).

Herald Co.. Inc. v. Weisenberg. App. Div. 455 N.Y.S.2d 413, 89 A.D.2d 224:

[2] Turning to the merits, it is first observed that every citizen may freely attend thesittings of every court in this state (Judiciary Law, § 4). That right may beasserted by the public and the press in both criminal and civil proceedings. (Cit.Omitted). It is clear, therefore, that all judicial proceedings in this state arepresumptively open to the public and the press. This is so because publicaccess to judicial proceedings promotes public participation in government andprovides a safeguard for the integrity of the judicial process (Cit. Omitted).

[3-5] The right of attendance is not absolute, of course (Cit. omitted), and wherethere are compelling reasons for closure the right may be denied. (Cit. omitted). Itis established, at least in criminal cases, that it may not be denied summarily andthat the trial court must conduct a preliminary inquiry to determine the need forclosure (Cit. omitted)...

While the First Amendment constitutional right of attendance has thus far beeninsured only at criminal trials (102 S.Ct. 2613), the Supreme Court has notedthat historically both civil and criminal trials have been presumptivelyopen (100 S.Ct. 2814,2829 n. 17)

19. No finding was issued stating why the court was closed in violation of the

Uniform Rules of New York Trial Courts § 205.4 (22 NYCRR § 205.4).

§ 205.4 Access to Family Court Proceedings

(a) In exercising the inherent and statutory discretion possessed by the judge whois presiding in the courtroom to exclude any person or the general public from aproceeding in the Family Court, the judge may consider, among other factors,w h e t h e r :

(1) the person is causing or is likely to cause a disruption in the proceeding;

(2) the presence of a person is objected by one of the parties;

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(3) the orderly and sound administration of justice, including the nature of theproceeding and the privacy of the parties, requires that all observers be excludedfrom the cour t room.

Whenever the judge exercises discretion to exclude any person or thegeneral public from a proceeding or part of a proceeding in Family Court,the judge shall make findings prior to ordering exclusion.

(b) The judge shall, when necessary to preserve the decorum of the proceedings,instruct representatives of the news media and others regarding the permissibleuse of the courtroom and other facilities of the court, the assignment of seats torepresentatives of the news media on an equitable basis, and any other matters thatmay affect the conduct of the proceedings.

21. That Mr Shufelt was never served with any Order to Show Cause or a

Summons to appear for trial on the charge of failing to pay support pursuant to a court order

as required by law.

22. That upon information and belief the violation petition demanded that Mr

Shufelt be dealt with according to Family Court Act § 454 and 5242 of the Civil Practice

Law and Rules.

23. That upon information and belief Judge Duggan relied upon Family Court

Act § 454 as Family Court Act § 454 states the potential sentence that may be imposed by

the Family Court.

24. That based upon information and belief Mr Shufelt faced the following

potential sentence when he was tried, convicted and sentenced to jail by Judge Duggan

under Family Court Act § 454 which must be imposed pursuant to Family Court Act § 454

subd. 4:

a) Under § 454(2-a) Mr Shufelt would have a judgment issued in the amount

the court determines his arrears to be. That this amount would be in excess of

$10,000.00

0 1 10 0 0 0 2 8

b) Under § 454(2-b) Mr Shufelt would have his income attached by the Albany

County Support Collection Unit.

c) Under § 454(2-c) Mr Shufelt would be required to post a cash deposit or

collateral which would equal his next three (3) years payments. Weekly support

obligation $ 66.51 times 156 weeks = $ 10,375.56. (This figure does not include his

percentage of day care and uncovered medical bills.

d) Under § 454(2-d) an order of sequestration would be issued against Mr

Shufelt's property.

e) Under § 454(3) Mr Shufelt would have to pay his ex-wife's attorney fees

which could potentially exceed $5,000.00.

f) Under § 454(3-a) Mr Shufelt could be sentenced to a jail term of six months

plus he would be facing another six months in jail if he was not able to comply with

items c and e above. Therefore, he faces a potential sentence of one year or more

as the six months for the failing to pay attorney fees or post a cash deposit or

collateral are factually linked.

g) Under § 454(3-b) Mr Shufelt could face probation for at least the next nine

(18) years as his youngest child by Ms Shufelt is three years old at this time and Mr

Shufelt is required to support her until she is 21 under Family Court Act § 413.

25. That Mr Shufelt's potential sentence at the time of trial and sentencing

exceeded six months in jail or a $5,000.00 fine or both.

26. That Family Court Act § 435 states:

§ 435. Procedure; adjournment; confidentiality of requests.

(a) Hearings are conducted by the court without a jury. ...

f 1 20 0 0 0 2 9

27. That Family Court Act § 435 is unconstitutional as it deprives a litigant of a

jury trial when they face a potential sentence that exceeds six months in jail or a $5,000.00

fine or both in violation of the Sixth Amendment under Family Court Act § 454.

28. Before the Family Court can deny a respondent a jury trial the court must first

determine what the potential maximum penalty is for failure to pay support. Therefore,

Family Court must look to Family Court Act, Article 4, § 438 and 454 which states:

§ 438. Counsel fees.

(b) In any proceeding for failure to obey any lawful order compelling payment ofsupport of a spouse or former spouse and children or of children only, the courtshall, upon the finding that such a failiu-e was willful, order respondent to paycounsel fees to the attorney representing the petitioner or person on behalf of thechildren. Representation by an attorney representing the petitioner pursuant toparagraph (b) of subdivision nine of section one hundred eleven (b) of the socialservices law shall not preclude an award of counsel fees to an applicant which wouldotherwise be allowed under this section.

§ 454. Powers of the court on violation of a support order.

1. If a respondent is brought before the court for failure to obey any lawfulorder of support and if, after hearing, the court is satisfied by competent proof thatrespondent has failed to obey any such order, the court may use any or all of thepowers conferred upon it by this part. The court has the power to use any or allenforcement powers in every proceeding brought for violation of a court orderunder this part regardless of the relief requested in the petition.

2. Upon finding that a respondent has failed to comply with any lawful order ofsupport:

(a) the court shall enter a money judgment under section foxir himdred sixty ofthis article; and

(b) the court may make an income deduction order for support enforcementunder section fifty-two hundred forty-two of the civil practice law and rules;

(c) the court may require the respondent to post an undertaking imder sectionfour hundred seventy-one of this article.

(d) the court may make an order of sequestration imder section four hundred

0U0030fifty-seven of this article.

3. Upon a finding by the court that a respondent has willfully failed to obey anylawful order to support, the court shall order the respondent to pay counsel feesto the attorney representing petitioner pursuant to section four hundred thirty-eight of this act and may in addition to or in lieu of any or all of the powersconferred in subdivision two of this section or any other section of law;

(a) commit the respondent to jail for a term not to exceed six months. Suchcommitment may be served upon certain specified days as the court may direct,and the court may, at any time within the term of such sentence, revoke suchsuspension and commit the respondent for the remainder of the originalsentence, or suspend the remainder of such sentence. For the purposes of thissubdivision, failure to pay support, as ordered, shall constitute prima faciaevidence of a willful violation. Such commitment does not prevent thecourt from subsequently committing the respondent for failurethereafter to comply with any such order.

(b) place respondent on probation under such conditions as the court maydetermine and in accordance with the provisions of the criminal procedure law;o r

Family Court Act, Article 4, § 456 - Probation(a) No person may be put on probation imder this article unless the courtmakes an order to that effect, either at the time of the making of an order ofsupport or under section four hundred fifty-four. The period of probationmay continue so long as an order of support, order of protection ororder of visitation applies to such person.

4. The court shall not deny any request for relief pursuant to this sectionunless the facts and circumstances constituting the reasons for its determinationare set forth in a written memorandum of decision.

Under part 4, the court is required to use all of these sanctions. The judge is to state

why he does not impose all of the sanctions imder this section.

29. In 1969 the Court of Appeals for the 2nd Circuit ruled in United States Ex

Rel. Griffen v. Martin. 409 F.2d 1300 that Family Court Act Section 454 did not violate a

persons right to a juiy trial as the potential sentence at that time did not exceed six months

in jail. Family Court Act § 454 has been modified several times since then to increase the

"severity" or "seriousness" of the penalty for contempt of court for failure to pay support.

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The "seriousness" of the offense was increased in 1971, 1977,1978, 1980,1982, 1983 and

1986. Therefore, due to the changes in this section of the Family Court Act since this

federal court ruUng, that decision is no longer applicable and this Court § 435 of the Family

Court Act violates the Sixth Amendment to the United States Constitution as the

potential punishment pursuant to Family Court Act § 454 is in excess of six

months incarceration or $5000 fine or both and is therefore, no longer a "petty"

offense but a "serious" offense pursuant to federal standards.

Blanton v. Citv of North Las Vegas. Nev.. 109 S.Ct. 1289 (1989) held:

[1] In using the word "penalty" we do not refer solely to the maximumprison term authorized for a particular offense. A legislature's view of theseriousness of an offense also is reflected in the other penalties that itattaches to the offense. See United States v. Jenkins. 780 F.2d 472, 474, and n. 3(CA4), cert, denied 476 U.S. 1161,106 S.Ct. 2283. We thus examine "whether thelength of the authorized prison term for the seriousness of other pimishment isenough in itself to require a jury trial." Duncan, supra, 88 S.Ct. at 1453; see alsoFrank. 395 U.S. at 152, 89 S.Ct. at 1507 (three years' probation is not "onerousenough to make an otherwise petty offense 'serious"'). Primary emphasis, howevermust be placed on the maximum authorized period of incarceration. Penalties suchas probation, or a fine may engender "a significant infHngement of personalfreedom," i^ at 151, 89 S.Ct. 1506, but they cannot approximate in severity the lossof liberty that a prison term entails. Indeed, because incarceration is an "intrinsicallydifferent" form of punishment, Mimiz v. Hoffman. 422 U.S. 454,477,95 S.Ct. 2178,2190 (1975), it is the most powerful indication whether an offense is "serious".[2,3] Although we did not hold in Baldwin, that an offense canying a maximumprison term of six months or less automatically qualifies as a "petty" offense, anddecline to do so today, we do find it appropriate to presume for purposes of the SixthAmendment that society views such an offense as "petty". A defendant is entitledto a jury trial in such circumstances only if he can demonstrate that anyadditional statutory penalties, viewed in conjunction with the maximumauthorized period of incarceration, are so severe that they clearly reflect alegislative determination that the offense in question is a "serious" one.This standard, albeit somewhat imprecise, should ensure the availabilityof a jury trial in the rare situation where the legislature packs an offenseit deems "serious" with onerous penalties that nontheless "do notpunc tu re the 6 -month inca rce ra t ion l i ne . "

Pursuant to FCA § 454 the severity of the maximum potential penalty sufficiently

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reflects the legislature's determination that contempt for failure to pay support pursuant to

court order is a serious offense for which a jury trial would be mandated pursuant to

federal standards even if the attorney fees that could be assessed were less than $5000.

United States v. ARBO. 691 F.2d 862 (1982) held:

[1] The Supreme Court has accorded constitutional stature to the common-law rulethat "petty offenses may be tried without a jury. (Citations omitted). In determiningthe line between "petty" and "serious" offenses for purposes of the SixthAmendment right to a jury trial, the Supreme Court has more recentlyemphasized the maximum authorized penalty as an objective criterion ofthe gravity of the offense. Craner. supra, 652 F.2d at 24. "In deciding whether anoffense is 'petty,' we have sought objective criteria reflecting the seriousness withwhich society regards the offense ... and we have found the most relevantsuch criteria in the severity of the maximum authorized penalty." BaldwinV. New York. * * *, 90 S.Ct. 1886,1887, * * * (1970) * * *. Thus, the Court hasheld that offenses carrying terms in excess of six months and fines ofmore than $500.00 must be tried before a jury....

In ordinary criminal prosecutions, severity of penalty authorized not penaltyactually imposed is relevant criterion in determining whether a particular offensecan be classified as "petty" for purposes of determining right to a jury trial. Frank v.U.S.. 89 S.Ct. 1503.

United States v. Rvlander. 714 F.2d 966,1005 (1983):

[19-22] There is a sixth amendment right to a trial by jury in serious, but not petty,criminal contempt cases. Bloom v. Tllinms^..., 88 S.Ct. 1477,1480,..., (1968).Whether a criminal contempt is serious or petty is determined by the severity of thepenalty authorized. Frank v. United States...., 89 S.Ct. 1503,1505,..., (1969). Ifthe contempt is charged under a statute that authorizes a maximumpenalty greater than $500.00 or six month's imprisonment, there is a rightto a jury trial regardless of the penalty actually imposed. Muniz v. Hoffman...., 95 S.Ct. 2178, 2190-91,... (1975). ..

U.S. V. Pina. 844 F.2d 1,12-13 (1988):

It is apparent, therefore, that the Court has refused to make any exception to therule that the right to a jury trial attaches when, in any single proceeding, adefendant is subject to total imprisonment of more than six months.

... On each occasion, "the salient fact remains that the contempts arose from asingle trial, were charged by a single judge, and were tried in a single proceeding

1 6

U 0 0 0 3 3CodisDOti. 418 U.S. at 517, 94 S.Ct. at 2693 (emphasis supplied). The Supreme Courtexplicitly has refused to make any exception to the rule that the right to a jurytrial attaches any time one is subject to imprisonment in excess of sixmonths in a single sentencing proceeding; we cannot create a contrary rule ofl a w .

U.S. V. Bencheck. 926 F.2d 1512 at 1518 (1991) held:

[2] ... For example, the state may not circumvent the right to a jury trial bycharging someone with a serious crime Hke murder, and then stipulate before trialthat, if convicted, the accused will receive no more than six months. Such a tactic, iftried by the state, would run up against the policy that no single offense "can bedeemed 'petty' for purposes of right to trial by jury where imprisonment for morethan six months is authorized" by the legislature. Baldwin. 399 U.S. at 69,90 S.Ct. at1888. Nor may the right to a jury trial be denied when the state files charges forpetty offenses that individually do not carry a possibility of more than six months*incarceration, but carry "an [actual] aggregate potential of greater than six months'imprisonment". Haar, 708 F.2d at 1553. Finally, the presumption announced inBlanton. allows an accused to successfully claim the right to a jury triali n t h a t " r a r e s i t u a t i o n " w h e r e t h e o f f e n s e o r o f f e n s e s a r e s e r i o u s b e c a u s eof "onerous penalties that nontheless 'do not puncture the 6-monthi n c a r c e r a t i o n l i n e ' . "

18 U.S.C A. § 1 (3) Any misdemeanor, the penalty of which, as set forth in theprovision defining the offense, does not exceed imprisonment for a period of sixmonths or a fme of not more than $5,000.00 for an individual and $10,000.00 for aperson other than an individual, or both is a petty offense.

30. That defendants Ms Gibbons and Ms Shufelt have conspired with Judge

Duggan and Hearing Examiner Dunne to deprive Mr Shufelt of his constitutional and civil

rights to due process and equal protection of the law as well as others rights that he is

entitled to as well as to have him illegally imprisoned and therefore do not have immunity

and are liable for their actions.

Arment v Cnmmnnwealth Nat. Bank. D.C.Pa. 1981, 505 F.Supp. 911 holds thatwhere it is alleged that the attorney "joined" or "cooperated with" or "conspiredwith'* state officers who acted under color of state law, state action will exist. See,also, Antelman v. Lewis. D.C.Mass.l979,480 F.Supp. 180.

Rankin v. Howard. 633 F.2d 844:

[13] The supreme Court resolved the issue in Dennis v. Sparks. -U.S. 101 S.Ct.

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0 0 0 0 3 4183 (1980). The court held that immune judge's private coconspirators do not enjoyderivative immunity.

[14] It follows that "[pjrivate parties who corruptly conspire with a judge inconnection with such conduct are . . . acting under color of state law within themeaning of § 1983. Id at S.Ct. at 187.

Hostrop V. Board of Jr. College, district 515.523 F.2d 569:

The doctrine of civil conspiracy extends liability for a tort, here the deprivation ofconstitutional rights, to persons other than the actual wrongdoer. W. Presser, TheLaw of Torts § 46 at 293 (4th Ed. 1971), but it is the acts causing damage to theplaintiff that give rise to liability for damages, not the conspiracy itself.

"The damage for recovery may be had in a civil action is not the conspiracy itself bythe injury to the plaintiff produced by specific overt acts. [Citations omitted.] Thecharge of conspiracy in a civil action is merely the string whereby the plaintiff seeksto tie together those who, acting in concert may be responsible for any overt act oracts." Rutkin v. Reinfield. 229 F.2d 248, 252 (2nd cir. 1956) cert, denied 352 U.S. 844.

32. That there is a cause of action recognizable by federal comt.

Dinwiddle v. Brown. C A.Tex. 1956, 230 F.2d 465, cert, denied 76 S.Ct. 1041, 351U.S. 971 held where state officers conspire with private individuals to defeat orprejudice litigant's right in state court, litigant is thereby denied equal protection ofthe laws by persons acting under color of state law and cause of action is createdcognizable by federal courts under this section.

33. That a Federal injunction be issued against the above named defendants

ordering the immediate release of Mr Shufelt from prison.

When there is deprivation of constitutionally guaranteed right, duty of federal court

to use injunctive power to interfere with the conduct of state officers cannot be avoided.

Woods V. Wright. 334 F.2d 369 (1964).

Where there is clear and imminent threat of irreparable iiyury amoimting to

manifest oppression, it is duty of court to protect against loss of asserted right by

temporary restraining order. Woods v. Wright. 334 F.2d 369 (1964).

A federal district court has authority to issue injunctive relief against commission of

> 1 8 0 u 0 0 3 5

acts in violation of a plaintiffs civil rights by state judges acting in their official capacity and

by an officer appointed by a state court. Staud v. Stewart. 1973, 366 F.Supp. 1398, affd. 547

F.2d 1164.

Sostre V. Rockefeller. 312 F.Supp. 863, 884 (D.C.N.Y. 1970), affirmed in part, reversed

in part on other grounds 442 F.2d 178, cert, denied 92 S.Ct. 719 held:

[23] The cases in which injunctions have been issued against state officials forviolating Fourteenth Amendment rights in the last two decades are legion. Suchinjunctions issue, as a matter of right, where a violation of constitutional rightshas been proved. This court has no discretion to deny injunctive relief to aperson who clearly establishes, after trial on merits, that he is beingdenied his constitutional rights. Cf. Henrv v. Greenville Airport CnmTmgsinn,et al.. 284 F.2d 631 (4th Cir. 1960). In addition, the court's decree, wherewarranted, may provide for the retention of jurisdiction to insure thatthe injunctive order is carried out in an orderly fashion. Brown v. Board ofEducation of Toneka. 349 U.S. 294, 75 S.Ct. 753,99 L.Ed. 1083 (1955); ; or toallow the amendment of state rules to conform with the decree, Sostre v.McGinnis. supra, 334 F.2d at 912-913. However, the injunction must issue.

Injunctive relief against higher public officials is available in situations where they

have foimd to supervise and authorize unconstitutional activities. Farber v. Rochford. 407

F.Supp. 529 (1975).

Suits may be brought against public officials to enjoin them fiom invading

constitutional rights. Buffier v. Frank. D.C.N.Y. 1975, 389 F.Supp. 502

Javits V. Stevens. 382 F.Supp. 131 (D.C.N.Y. 1974):

[5] ... Our Court of Appeals (2nd Circuit) has held that:

"[N]o soimd reason exists for holding that federal courts should not have thepower to issue injunctive relief against commission of acts in violationof plaintiffs civil rights by state judges acting in their officialcapaci ty. "

34. That the Office of Hearing Examiner is unconstitutional as it deprived

Mr Shufelt of his constitutional right to due process and/or equal protection of the law

1 90 U 0 0 3 6

as he was sentenced to jail based upon the determinations of person who is not even

a judge and whose office is not authorized by the New York State Constitution.

35. Mathiasen v. Niagara County Legislature. 484 N.Y.S.2d 197 at 400 (1984):

[3-5] .. . When a statute affords a broader preference than granted by theconstitution, it will be struck down (see, e.g.. Matter of Kevmer. 148 N.Y. 219,42N.E. 667).

AG Shin Maintenance v. Lezak. 69 N.Y.2d 1,511 N.Y.S.2d at 218:

Under the State Constitution the authority to regulate practice and procedures inthe courts is delegated primarily to the Legislature (N.Y. Const., art. VI, § 30).There are some matters which are not subject to legislative controlbecause they deal with the inherent nature of the judicial function (see,e.g. Riglander v. Star Co.. 98 App.Div. 101, 90 N.Y.S. 772, affd. 181 N.Y. 531).(jenerally, however, the Legislature has the power to prescribe rules of practicegoverning court proceedings, and any rxiles the courts adopt must be consistentwith existing legislation and may be subsequently abrogated by statute Cobn v.Borchard Affiliations. 25 N.Y.2d 237, 303 N.Y.S.2d 633). In addition, the courtrules must be adopted in accordance with procedures prescribed by theConstitution and statute (N.Y. Const, art. VI, § 30; Judiciary Law § 211[l][b]).

The starting point for any constitutional question must be the language of the

constitution itself. People v. Carroll. 3 N.Y.2d 686,689,191 N.Y.S.2d 812, 814:

When the language is clear and leads to no absurd conclusion there is no occasion,and indeed, it would be improper, to search beyond the instrument for an assumedintent. 3 N.Y.2d 688,171 N.Y.S.2d at 814.

Cnrnmissioner of Social Services v. Robert G.. 72 A.D.2d 9,423 N.Y.S.2d 155 at 162:

[9] The Legislature may not constitutionally regulate the details of themanner of performance of the court's jurisdictionally mandated duties(Riglander V. Star Co.. 98 App.Div. 101, 90 N.Y.S. 772, affd. 181 N.Y. 531).

36. The New York State Constitution, Article 6, § 1 creates the Family Coiirt as

part of the Unified Court System for the State of New York. Article 6, §13, subd. (a),

establishes the Family Court of the State of New York. Article 6, § 13 (b) and (c), state the

jurisdiction of the Family Court. Family Court Act § 113 implements these Constitutional

2 0

000037

provisions. It is well settled that Family Court is a Constitutional Court. As, such it cannot

be changed or abolished without amending the State Constitution.

In enacting § 439 of the Family Court Act, the Legislature unquestionably changed

Family Court by interfering with and displacing Family Court Judges. Article 6, § 13 of the

New York State Constitution empowers Family Court to hear enforcement and

modification petitions concerning support and custody when referred to the Family Court

by the Supreme Court, paternity, among others. § 439 of the Family Court Act invests the

Hearing Examiners it created with all the powers of the Family Court Judges in matters

designated within their jurisdiction.

§ 439 Hearing Examiners

(a) ... Except as hereinafter provided, hearing examiners shall be empowered tohear, determine and grant any relief within the powers of the court in anyproceeding under this article (article 4), article 5 and five-a of this act,...

Thus, the Hearing Examiner, a non-judicial employee of the Unified Court System,

is for all purposes a judge possessing all the powers of a Family Court Judge duly elected

pursuant to Article 6, § 13(a) of the Constitution in support proceedings, USDL

proceedings, proceedings involving enforcement or support orders by income executions,

and the fact-finding part of contempt proceedings.

Family Court Act, Article 4, Section 439 of the Family Court Act is unconstitutional

as it transfers the powers vested in duly elected Supreme Court judges and Family Court

judges to non-judicial, non-elected employees of the Unified Court System by changing the

composition of the Family Court as defined by the New York State Constitution Article 6,

Section 13(a) without amending the State Constitution. The State Constitution does not

authorize the creation of the hearing examiner's office to determine support or violations

2 1

0O003.8of support. The State Constitution has specifically given that authority to the Supreme

Court judges and to the Family Court when referred to it by the Supreme Court. The men

and women of the State of New York have the right to have all their issues concerning

support decided by a judge who is elected by them or appointed as dictated by the state

constitution. They have a corollary right not to have such matters decided by a non-judicial

employee of the Unified Court System chosen by the Chief Administrator, who is himself

appointed by the Chief Judge of the Court of Appeals.

The fact that the Legislature excludes certain proceedings for the Hearing

Examiner's jurisdiction does not lessen its Constitutional impact. For if today the Legislature

presumes to exempt disputed paternity proceedings and commitment proceedings from the

Hearing Examiners preview, tomorrow it can include them. If § 439 of the Family Court Act,

as it now stands, is held to be Constitutional, there is no point at which the Court can say

that a Legislative amendment increasing the scope of the Hearing Examiner's authority

becomes unconstitutional. If § 439 today is Constitutional, an amendment to § 439 tomorrow

empowering Hearing Examiners to hear and determine all matters that a Family Court

Judge can hear and determine can scarcely be held unconstitutional.

§ 439 does indeed change Family Court, one of the high courts "embedded

thoroughly in our fundamental law" -- the State Constitution. Moreover, it potentially

abolishes the Family Court created by the Judiciary Article by authorizing the wholesale

transfer of its powers from Constitutionally elected Judges to non-judicial, non-elected

employees of the Unified Court System.

Pursuant to this section a litigant is forced to have a person who is not a judge

determine whether or not they committed a "criminal act" (contempt of a court order) for

2 2

000039which the litigant can be sentenced to a term of imprisonment that exceeds six months in

jail or $5000.00 fine or both. Whether or not this is considered a "civil" or "criminal"

proceeding the result is the same — Mr Shufelt in prison based upon the determinations of

a person who is not a judge. In short, we have non-judicial employees of the Unified Court

System guilt and innocence in secret trials.

Handa v. Handa. 103 A.D.2d 794 (1984) holds family court is a constitutional

court. The theory of the judiciary article of the constitution is to simphly the judicial

system by reducing the number of high courts and to embed those retained so thoroughly

in the fundamental law that they cannot be changed or abolished without

amending the state constitution. People v Luce. 204 NY 478 (1912), Koch v. Mavor.

152 NY 72 (1897).

N.Y.S. CONST., Article 6, Section 13 states:

§13. [Family court established; composition; election and appointment of judges;jur isdict ion]

a. The family court of the state of New York is hereby established. It shall consist ofat least one judge in each county outside the city of New York and such numberof additional judges for such counties as may be provided by law. Within the city ofNew York it shall consist of such number of judges may be provided by law. Thejudges of the family court within the city of New York shall be residents of such cityand shall be appointed by the mayor of the city of New York for terms of ten years.The judges of the family court outside the city of New York shall be chosen by theelectors of the coimties wherein they reside for terms of ten years.

The Appellate Court in Carella v. CoUins. 144 A.D.2d at 78 held that EGA § 439 was

Constitutional stating:

We find without merit respondent's contention that Family Court Act § 439 isunconstitutional insofar as it authorizes the transfer of Family Court's powers fromConstitutionally elected judges to non-judicial, non-elected employees of the UnifiedCourt System. N.Y. Constitution, Article VI, § 30 vests broad powers in theLegislature to make procedural rules for the courts.

2 3

0 0 0 0 4 0

The State Appellate Court is fully aware that the composition and the jurisdiction of

the Family Court are not dependent on the procedures the court must follow. The

procedures the court must follow must conform to the composition and jurisdiction of the

family court as defined by the state constitution. Vesting jurisdiction in non-judicial

employees, to determine issues of support and contempt proceedings for failure to pay

support pursuant to court order, and depriving supreme court judges and family court

judges of their jurisdiction is not a procedural act. The Legislature has no authority to

deprive either the supreme court or the family court judges of their jurisdiction as defined

by the state constitution.

I I I . R e h e f R e q u e s t e d :

37. That the Dist r ic t Court order the immediate re lease of Mr Shufel t f rom the

Albany County Jail.

38. That the Court issue an injunction against defendants or anyone acting on

their behalf from taking any further action against Mr Shufelt in violation of his

constitutional right to a public trial or a jury trial or any other right that he may be entitled

to under the law.

39. That this Court assume jurisdiction over the Family Court matter as Mr

Shufelt's constitutional rights to a pubHc trial and a jury trial have been and continue to be

v io la ted .

40. That this Court set a trial date for this proceeding to be heard as soon as

possible in Federal Court.

41. That this Court declare Family Court Act § 433 unconstitutional as it relates

0UU041

to closing the court to the public in a contempt proceeding where imprisonment is a

possibility.

42. That this Court declare Family Court Act § 435 unconstitutional as it relates

to depriving a litigant a jury trial where the potential punishment exceeds six months in jail

or a $5,000.00 fine or both.

43. That this Court declare Family Court Act § 439 unconstitutional as it allows a

non-judicial employee make determinations that have lead to the imprisonment of Mr

Shufelt in violation of his right to due process and equal protection of the law.

44. That each of the defendants Ms. Dunne, Ms. Gibbons and Ms Shufelt be

ordered to pay compensatory damages in an amount in excess of $100,000.00.

42. That each of the defendants Ms. Dunne, Ms. Gibbons and Ms Shufelt be

ordered to pay punitive damages in an amoimt in excess of $200,000.00.

43. That Mr Shufelt demands a jury trial.

WHEREFORE, Plaintiff respectfully prays that said relief requested in this

complaint be granted hereinbefore set forth and for such other and further relief as this

Court may deem just and proper.

I declare under penalty of perjury that the foregoing is true and correct.

Dated October 24,1994Charles l^ufelt aPlaintiff - pro se

A t a t e r m o f t h e F a m i l y C o u r t o f t h e S t a t e o fNew Yo rk , he ld i n and f o r t he Coun ty o f A lbany,a t A l b a n y , N e w Y o r k , o n O c t o b e r 7 , 1 9 9 4

PRESENT: HONORABLE W. DENNIS DUGGAN, Judge OOOG42I n t h e M a t t e r o f a P r o c e e d i n g D o c k e t N u m b e r F - 8 4 3 - 9 4u n d e r A r t i c l e 4 o f t h eF a m i l y C o u r t A c t

PA M E L A S H U F E LT,P e t i t i o n e r , O R D E R O F C O M M I T M E N T

- a g a i n s t -

C H A R L E S S H U F E LT,R e s p o n d e n t .

T h e p e t i t i o n o f P a m e l a S h u f e l t s w o r n t o o n M a y 6 , 1 9 9 4 h a v i n gb e e n fi l e d i n t h i s C o u r t a l l e g i n g t h a t t h e a b o v e - n a m e d R e s p o n d e n th a s f a i l e d t o o b e y t h e o r d e r o f t h i s C o u r t m a d e h e r e i n , d a t e dD e c e m b e r 2 , 1 9 9 2 ; a n d

An o rder hav ing been made here in , da ted May 19 , 1994 ad judg ingt h e a b o v e - n a m e d R e s p o n d e n t t o b e i n w i l l f u l v i o l a t i o n o f s a i do r d e r ; i t i s t h e r e f o r e

ORDERED that the above-named Respondent be^ and he hereby isc o m m i t t e d t o t h e A l b a n y C o u n t y J a i l f o r a t e r m o f 1 6 c o n s e c u t i v eweekends f r om F r i day a t 6 :00 p .m . t o Sunday a t 6 :00 p .m . commenc ingO c t o b e r 7 , 1 9 9 4 .

N O W , T H E R E F O R E , W E C O M M A N D Y O U , a n y P e a c e O f fi c e r , o r t h eS h e r i f f o f t h e C o u n t y o f A l b a n y , o r t h e S h e r i f f o f a n y C o u n t yw h e r e i n R e s p o n d e n t m a y b e f o u n d , t h a t y o u t a k e t h e b o d y o f s a i dR e s p o n d e n t a n d s a f e l y k e e p h i m i n c l o s e c u s t o d y i n t h e j a i l o f t h ea b o v e - n a m e d C o u n t y f o r a p e r i o d o f 1 6 c o n s e c u t i v e w e e k e n d s .

IN WITNESS THEREOF, I , W. Dennis Duggan, a Judge of the FamilyC o u r t o f t h e S t a t e o f N e w Y o r k , h e r e u n t o s e t m y h a n d , s u b s c r i b e m yn a m e a n d c a u s e t h e S e a l o f t h e C o u r t t o b e h e r e u n t o a f fi x e d .

D A T E :

E n t e r e d i n t h e o f fi c e o f t h eC l e r k o f t h e F a m i l y C o u r t o ft h e S t a t e o f N e w Y o r k , o n t h e

V . day of October, 1994.n v r u L L

E N T E R

J . F . C .

0 0 0 0 4 3U N I T E D S T A T E S D I S T R I C T C O U R TN O R T H E R N D I S T R I C T O F N E W Y O R K

C H A R L E S S H U F E LT,P l a i n t i f f ,

- a g a i n s t - A N S W E RC i v i l A c t i o n N u m b e r :9 4 - C V - 1 3 7 0

W. D E N N I S D U G G A N ,PA M E L A S H U F E LT,M A R G A R E T M . G I B B O N S a n dM A RY E L I Z A B E T H T. D U N N E , b o t h i n h e ro f fi c i a l a n d i n d i v i d u a l c a p a c i t y .

D e f e n d a n t s .

The Defendants, MARGARET M. GIBBONS and PAMELA SHUFELT, bytheir attorney, MARGARET M. GIBBONS, ESQ., as and for their Answert o t h e P l a i n t i f f ' s C o m p l a i n t s t a t e a s f o l l o w s :

1. The Defendants, MARGARET M. GIBBONS and PAMELA SHUFELT,

deny knowledge or information sufficient to form a belief as to theal legations contained in the Paragraphs numbered 1, 2, 5, 14, 15,16, 17, 18, 22, 23, 24, 25, 26, 28, 29, 32, 33, 34, 35, 36, 37, 38,3 9 , 4 0 , 4 1 , 4 2 , a n d 4 3 .

2. The Defendants, MARGARET M. GIBBONS and PAMELA SHUFELT,

deny each and every allegation contained in the paragraphs markedand numbered 6, 8, 9, 11, 12, 13, 19, 21, 27, 30, 44 and "42".

3. The Defendants, MARGARET M. GIBBONS and PAMELA SHUFELT,admit the al legat ions contained in Paragraphs 3, 4, 7 and 8.

A S A F O R A N A F F I R M A T I V E D E F E N S E

4 . P u r s u a n t t o R u l e 1 2 o f t h e F e d e r a l R u l e s o f C i v i l

Procedure, Plaintiff's Complaint fails to state a claim upon whichrelief can be granted. Said lawsuit is without merit and frivolous

0 0 0 0 4 4

as against the Defendants, MARGARET M. GIBBONS and PAMELA SHUFELT,a n d . s h o u l d s u b j e c t t h e P l a i n t i f f t o s a n c t i o n s .

WHEREFORE, the Defendants, MARGARET M. GIBBONS and PAMELAS H U F E LT, d e m a n d s J u d g m e n t a g a i n s t t h e P l a i n t i f f d i s m i s s i n g t h eComplaint herein together with the costs and disbursements of thisa c t i o n .

D a t e d : O c t o b e r 2 8 , 1 9 9 4E a s t G r e e n b u s h , H e w Y o r k

/ ' H j M AW A ! - ( 4 M f C ^MARGA/ET M. ( IMONS, ESQBat ^11 No. :1^ 458P A Y N E & G I B B O N SA t t o r n e y f o r D e f e n d a n t s ,M A R G A R E T M . G I B B O N S a n dP A M E L A S H U F E L TO f fi c e & P o s t a l A d d r e s s :579 Co lumb ia Tu rnp i keE a s t G r e e n b u s h , N Y 1 2 0 6 1( 5 1 8 ) 4 7 7 - 2 0 0 0

C H A R L E S S H U F E L TP h e a s a n t R u n A p a r t m e n t sB u i l d i n g 1A p a r t m e n t 1V o o r h e e s v i l l e , N Y 1 2 1 8 6

t j U 0 0 4 5

U N I T E D S T A T E S D I S T R I C T C O U R TN O R T H E R N D I S T R I C T O F N E W Y O R K

C h a r l e s S h u f e l t ,P l a i n t i f f ,

- a g a i n s t -

W . D e n n i s D u g a n , P a m e l a S h u f e l t ,Margare t M. G ibbons and MaryE l i z a b e t h D u n n e , b o t h o f fi c i a l l ya n d i n h e r o f fi c i a l c a p a c i t y .

D e f e n d a n t s .

PLEASE TAKE NOTICE , t ha t upon t he a f fi rma t i on o f Lawrence L .

D o o l i t t l e , d a t e d N o v e m b e r 1 4 , 1 9 9 4 , t h e u n d e r s i g n e d w i l l m o v e

p u r s u a n t t o R u l e 1 2 ( b ) o f t h e F e d e r a l R u l e s o f C i v i l P r o c e d u r e t o .

j dismiss the complaint on the grounds that it fails to state aclaim upon which relief may be granted.

T h i s m o t i o n i s r e t u r n a b l e o n D e c e m b e r 1 6 , 1 9 9 4 b e f o r e t h e

H o n o r a b l e C o n . G . C h o l a k a s , U n i t e d S t a t e s D i s t r i c t C o u r t J u d g e ,

i n A l b a n y, N e w Yo r k a t t h e U n i t e d S t a t e C o u r t H o u s e a t 9 : 3 0 A . M .

A c c o r d i n g t o t h e F e d e r a l R u l e s o f C i v i l P r o c e d u r e a n d t h e L o c a l

R u l e s f o r N o r t h e r n D i s t r i c t o f N e w Y o r k , y o u m u s t fi l e y o u r

r e s p o n s e w i t h t h e C l e r k o f t h e C o u r t i n A l b a n y, N e w Yo r k , 1 4 d a y s

b e f o r e t h e r e t u r n d a t e , i n t h i s i n s t a n c e , D e c e m b e r 2 , 1 9 9 4 .

N O T I C E O F M O T I O N9 4 - C V - 1 3 7 0

C G C D N H

0 0 0 0 4 6

D a t e d : A l b a n y , N e w Y o r kN o v e m b e r 1 4 , 1 9 9 4

G . O l i v e r K o p p e l lA t t o r n e y G e n e r a l o f t h e

S t a t e o f N e w Y o r kA t t o r n e y f o r D e f e n d a n t

U p s t a t e M e d i c a l C e n t e rT h e C a p i t o lA l b a n y , N e w Yo r k 1 2 2 2 4R o l l N o . 1 0 1 5 2 8

L A W R E N C E L - D O O L ' I T T L Q E ^A s s i s t a n t A t t o r n e y G e n e r a lT e l e p h o n e : ( 5 1 8 ) 4 7 4 - 2 2 3 4

T O : C h a r l e s S h u f e l tB u i l d i n g 1 , A p t 1P h e a s a n t R u n A p a r t m e n t sV o o r h e e s v i l l e , N Y 1 2 1 8 6

M a r g a r e t M . G i b b o n s , e s q .5 7 9 C o l u m b i a T u r n p i k eE a s t G r e e n b u s h , N Y 1 2 0 6 1

0 0 0 0 4 7U N I T E D S T A T E S D I S T R I C T C O U R TN O R T H E R N D I S T R I C T O F N E W Y O R K

C h a r l e s S h u f e l t ,P l a i n t i f f , A F F I R M A T I O N

- a g a i n s t - 9 4 - C V - 1 3 7 0C G C D N H

W . D e n n i s D u g a n , P a m e l a S h u f e l t ,M a r g a r e t M . G i b b o n s a n d M a r yE l i z a b e t h D u n n e , b o t h o f fi c i a l l ya n d i n h e r o f fi c i a l c a p a c i t y ,

D e f e n d a n t s .

LAWRENCE L . DOOLITTLE , an a t t o rney du l y adm i t t ed t o p rac t i ce

a f fi r m s , u n d e r p e n a l t y o f p e r j u r y :

1 . I a m a n A s s i s t a n t A t t o r n e y G e n e r a l i n t h e o f fi c e o f

G . O l i v e r K o p p e l l , A t t o r n e y G e n e r a l o f t h e S t a t e o f N e w Y o r k ,

a t t o r n e y f o r d e f e n d a n t s F a m i l y C o u r t J u d g e W. D e n n i s D u g a n a n d

H e a r i n g E x a m i n e r M a r y E l i z a b e t h T. D u n n e . I m a k e t h i s

a f fi r m a t i o n i n s u p p o r t o f t h e i r m o t i o n t o d i s m i s s t h e c o m p l a i n t .

2 . T h i s i s a m o t i o n t o d i s m i s s o n b e h a l f o f t h e a b o v e n a m e d

" S t a t e D e f e n d a n t s " b a s e d o n t h e f a i l u r e o f t h e c o m p l a i n t t o s t a t e

a c l a i m u p o n w h i c h r e l i e f m a y b e g r a n t e d . T h e m o v i n g d e f e n d a n t s

a r e i d e n t i fi e d i n t h e c o m p l a i n t a t p a r a g r a p h s 2 a n d 5 a s F a m i l y

C o u r t J u d g e W. D e n n i s D u g a n a n d H e a r i n g E x a m i n e r M a r y E l i z a b e t h

T. D u n n e , B o t h m o v i n g d e f e n d a n t s a r e a l s o i d e n t i fi e d a s

e m p l o y e e s o f t h e N e w Yo r k S t a t e U n i fi e d C o u r t S y s t e m , a s t a t e

a g e n c y .

3 . A s b e s t a s c a n b e g l e a n e d f r o m t h e c o m p l a i n t , p l a i n t i f f

s e e k s t o h a v e t h i s C o u r t o v e r t u r n a n d s e t a s i d e a j u d i c i a l

d e c i s i o n o f t h e N e w Yo r k S t a t e F a m i l y C o u r t s i t t i n g i n A l b a n y

000048

C o u n t y w h i c h d e t e r m i n e d t h a t p l a i n t i f f h a d c o m m i t t e d a c o n t e m p t

o f a p r i o r o r d e r m a d e o n D e c e m b e r 2 , 1 9 9 2 . ( A c o p i e s o f t h e

d a t e d O c t o b e r 7 , 1 9 9 4 i s a t t a c h e d t o t h e c o m p l a i n t .

4 . T h i s c o m p l a i n t m u s t b e d i s m i s s e d a s a g a i n s t t h e m o v i n g

d e f e n d a n t s b e c a u s e b o t h a r e n t i t l e d t o a b s o l u t e j u d i c i a l i m m u n i t y

f r o m s u i t f o r t h e a c t s c o m p l a i n e d o f a n d a d d i t i o n a l l y b e c a u s e

t h i s s u i t i s b a r r e d b y t h e R o o k e r - F e I d m a n d o c t r i n e w h i c h , a s m o r e

f u l l y d i s c u s s e d i n t h e m e m o r a n d u m s u b m i t t e d h e r e w i t h , h o l d s t h a t

f e d e r a l d i s t r i c t c o u r t s a n d c o u r t s o f a p p e a l a r e w i t h o u t p o w e r t o

r e v i e w s t a t e c o u r t d e c i s i o n s .

5 . I n a d d i t i o n , d e f e n d a n t s s u b m i t t h a t t h i s c a s e i s i n a n y

e v e n t a p r o p e r c a s e f o r a b s t e n t i o n .

W H E R E F O R E , y o u r d e p o n e n t r e s p e c t f u l l y r e q u e s t s a j u d g m e n t

d i s m i s s i n g t h e c o m p l a i n t , t o g e t h e r w i t h s u c h o t h e r r e l i e f a s m a y

b e p r o p e r .

D a t e d : A l b a n y , N YNovember 14, 1994

^ '^LATOENCE^'L. DOOLITTLE

2

0 0 0 0 4 3IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK • J \ ^ . , \ \

CHARLES SHUFELT

- against -

P l a i n t i fl f

- :31994

GECvi'-— A iiAY) C!6rKALBAi rV"

A F F I D AV I T &MEMORANDUM OF LAWW . D E N N I S D U G G A N M E M O R A N D U M O F L A W

P A M E L A S H D L J F E L T , ^ y / / 9 * 7 ^M A R G A R E T M . G I B B O N S S ' ' C V f ^ ^ ^A-LARY ELIZABETH T. DUNNE, both in her official and individual capacity

D e f e n d a n t s .

STATE OF NEW YORK )COUNTY OF ALBANY ) SS:.

CHARLES SHUFELT, being duly sworn deposes and says:

1. That 1 am the plaintiff pro se in the above captioned matter and make this

affidavit in opposition to the Order and Report-Recommendation of U.S. Magistrate Judge

David N. Hurd dated November 10,1994 and in opposition to the Motion to Dismiss by the

Attorney General of the State of New York.

2. Judge Hurd states in his Order and Report-Recommendation "Plaintiff

further complains he was not allowed to call witnesses and that the Family Court Act, §§

433,435 & 439 are unconstitutional."

3. That Mr Shiifelt has clearly argued that these statutes deprived him of his

constitutional right to a public trial, jury trial and a judge to hold a trial to determine his

quilt or innocence as opposed to a non-judicial employee.

4. That Mr Shufelt has clearly ai^gued that these statutes on their face are

unconstitutional and as appHed during Family Court proceedings where a litigant faces the

2

0G0050

possibility of imprisonment for contempt.

5. That Mr Shufelt has already been imprisoned for 5 weekends based upon a

proceeding in which he was dehberately deprived of his fundamental constitutional rights

based upon imconstitutional state statutes.

6. That on November 15,1994 the Supreme Court Appellate Division, Third

Department refused to grant a writ for habeus corpus into the illegal detention of Mr

Shufelt (Exhibit 1).

7. That on November 14,1994 Judge James N. White issued an Order to Show

Cause on Application for a Stay Pending Appeal (Exhibit 2).

8. That on November 28,1994 the Supreme Court Appellate Division, Third

Department denied Mr Shufelt's Motion for a Stay pending appeal of his incarceration

(Exhibit 3).

9. That Mr Shufelt is to begin serving his prison term again on Friday

December 2,1994 as the Stay of his imprisonment has been denied.

10. That by the time the Appellate Court makes a ruling on Mr Shufelt's appeal

he will have served his 16 weekends in the county jail.

11. That a Petition for Writ of Habeus Corpus raised the constitutional questions

of the Family Court Act §§ 433, 435 and 439.

12. That this court is obligated under the law to render a decision as to the

constitutionality of these state statutes as they relate to the United States Constitution.

Moore v. Sims. 422 U.S. 415,423, 99 S.Ct. 2371,2377 (1979)

In Huffman^ we noted these well established circumstances where the federal courtneed not stay its hand in the face of pending state proceedings.

3

f t

3 000051

'Tounger, and its civil counterpart which we apply today, do of course allowintervention in those cases where the District Court properly finds that the stateproceeding is motivated by a desire to harass or is conducted in bad faith, or wherethe challenged statute is ' "flagrantly and patently violative of express constitutionalprohibitions in every clause, sentence and paragraph, and in whatever manner andagainst whomever an effort might be made to apply it." '" 420 U.S., at 611, 95 S.Ct.,a t 1212 .

Middlesex Countv Ethics ComTnittpp y. Garden. Etc.. 457 U.S. 423,102 S.Ct. 2515,2521 (1082)

The policies imderlying Younger are fully applicable to noncriminal judicialproceedings when important state interests are involved. Moore v. Sims. 422 U.S.415,423, 99 S.Ct. 2371, 2377 Where vital state interests are involved, a federalcourt should abstain "unless state law clearly bars the interposition of theconstitutional claims." Moore. 442 U.S., at 426, 99 S.Ct., at 2379.

Younger v. Harris. 401 U.S. 37, 91 S.Ct. 760 (1971)

Dombrowski represents an exception to the general rule that federal courts shouldnot interfere with state criminal prosecutions. The exception does not arise merelybecause prosecutions are threatened to which the First Amendment will be theproffered defense. Dombrowski governs statutes which are a blunderbuss bythemselves or when used en masse—those that have an "overbroad" sweep. "If therule were otherwise, the contours of regulation would have to be hammered outcase by case—and tested only by those hardy enough to risk criminal prosecution todetermine the proper scope of regulation." Id. at 487, 85 S.Ct., at 1121. ...

The special circumstances when federal intervention in a state criminal proceedingis permissible are not restricted to bad faith on the part of state officials or thethreat of multiple prosecutions. They also exist where for any reason the statestatute being enforced is unconstitutional on its face. As Mr. Justice Butler, writingfor the Court, said in Terrace v. Thompson. 263 U.S. 197, 214,44 S.Ct. 15,17,68L.Ed. 255;

"Equity jurisdiction will be exercised to epjoin the threatened enforcement of astate law which contravenes the federal Constitut ion wherever i t is essential inorder effectually to protect property rights and rights of persons against injuriesotherwise irremediable; and in such a case a person, who as an officer of the stateis clothed with the duty of enforcing its laws and who threatens and is about tocommence proceedings, wither civil or criminal, to enforce such a law againstparties affected, may be enjoined from such action by a Federal court of equity."

A State law enforcement officer is someone acting under "color of law" even thoughhe may be misusing his authority. Monroe v. Pane. 365 U.S. 167, 81 S.Ct. 473. Andprosecution under a patently unconstitutional statute is a "deprivation of * * *

14 0 0 0 0 5 2

rights, privileges, or immunities secured by the Constitution," "Suit[s] in equity"obviously includes injunctions.

Zwickler v. Koota. 389 U.S. 241, 88 S.Ct. 301, 399 (1967)

[11] This conclusion was error. Dombrowski teaches that the questions ofabstention and of injunctive relief are not the same. The question of the proprietyof the action of the District court in abstaining was discussed as an independentissue governed by different considerations. We squarely held that "the abstentiondoctrine is inappropriate for cases such as the present one where ♦ ♦ *statutes are justifiably attacked on their face as abridging free expression* * *." 380 U.S. at 489-490, 85 S.Ct., 1122. This view was reaffirmed in Kevishian v.Board of Regents. 385 U.S. 589, 601, 87 S.Ct. 675, 682, n. 9, when a statute wasattached as unconstitutional on its face and we said, citing Dombrowski. andBaggett V. Riillifl, snprfl, '[tlhis is not a case where abstention pending state courtinterpretation would be appropriate * *."

[12] It follows that the District Court's views on the question of injimctive relief areirrelevant to the question of abstention here. For a request for a declaratoryjudgment that a state statute is overbroad on its face must be consideredindependently of any request for injimctive relief against the enforcement of thatstatute. We hold that a federal district court has the duty to decide theappropriateness and the merits of its conclusion as to the propriety of the issuanceof the injunction.

Bartholomew v. Port. 309 F.Supp. 1340 (1970)

The plaintiffs invoke the jurisdiction of this court pursuant to 28 U.S.C. §§ 1343(3),1343(4), 2201, 2202, and 42 U.S.C. §§ 1983. The defendants contend that "there isno substantial federal question sufficient to invoke the jurisdiction of this court"and they argue that the court should decline to exercise jurisdiction over the casesince the plaintiffs have an adequate remedy under state law.

Title 28 U.S.C. § 1343 provides in relevant part: (Cites § 1343, and subds. (3) and (4).

Title 42 U.S.C. § 1983 provides in relevant part:

These sections and 28 U.S.C. § 2201 and 2202 provide this court withjurisdiction to hear a claim that ordinances or state statutes areunconstitutional on their face or as applied. Dombrowski v. Pfister. 380 U.S.479, 85 S.Ct. 1116,14 L.Ed. 2d 22 (1965).

I reject the defendants' contention that the court should decline to exercise itsjurisdiction because the plaintiffs have an adequate state remedy. A district courtshould not, for reasons of comity, abstain or decline jurisdiction to grant declaratoryrelief under the circumstances set forth in the present case. Zwickler v. Koota. 389

0

5 U U 0 0 5 3

U.S. 241, 88 S.Ct. 391.

Furthermore, although the plaintiffs seek to enjoin prosecutions in state courtwhich are currently pending against them, the circumstances of this case make itinappropriate, not withstanding 28 U.S.C. § 2283, to abstain from considering themerits of the plaintiif s case. In Dombrowski v. Pfister. 380 U.S. 479,489-490, 85S.Ct. 1116,1122 (1965). The Supreme Court said:

"We hold the abstention doctrine is inappropriate for cases such as thepresent one where, unlike Douglas v. City of Jeannette {319 U.S. 157, 63 S.Ct.877, 87 L.Ed. 1324}, statutes are justifiably attacked on their face as abridgingfree expression or as applied for the purpose of discouraging protectedactivities." (emphasis added)

In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. the fountainhead offederal injunctions against state prosecutions, the Court characterized the powerand its proper exercise in broad terms: it would be justified where state officers * ** threaten and are about to commence proceedings, either of a civil or criminal

nature, to enforce against parties affected an unconstitutional act, violating theFederal Constitution * * * ." 209 U.S., at 156, 28 S.Ct., at 452.

But the allegations in this complaint depict a situation in which defense of theState's criminal prosecution will not assure adequate vindication of constitutionalrights. They suggest that a substantial loss or impairment of freedoms ofexpression will occur if appellants must await the state court'sdisposition and ultimate review in this Court of any adversedetermination. These allegations, if true, clearly show irreparable injury.

When the statutes also have an overbroad sweep, a is here alleged, the hazardof loss or substantial impairment of those precious rights may be critical. For insuch cases, the statues lend themselves too readily to denial of those rights. Theassumption that defense of a criminal prosecution will generally assure amplevindication of constitutional rights is unfoimded in such cases. See, Baggett v.Bullitt, supra, 377 U.S., at 379,84 S.Ct., at 1326.

It follows that the District Court erred in holding that the complaint fails to allegesufficient irreparable injury to justify equitable relief.

The District court also erred in holding that it should abstain pending authoritativeinterpretation of the statutes in the state courts, which might hold that they didnot apply to SCEF, or that they were unconstitutional as applied to SCEF. We holdthe abstention doctrine is inappropriate for cases such as the present one where,unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face asabridging free expression, or as applied for the purpose of discouraging protecteda c t i v i t i e s .

0 0 0 G 5 4

First, appellants have attacked the good faith of the appellees in enforcing thestatutes , claiming that they have invoked, and threaten to continue to invoke,criminal process without any hope of ultimate success, but only to discourageappellants' civil rights activities. If these allegations state a claim imder the CivilRights Act, 42 U.S.C. 1983, as we believe they do, see Beauregard v. Wingard,230 F.Supp. 167 (D.C.S.D. Calif.1964); Bargainer v. Michael. 233 F.Supp 270(D.C.N.D.Ohio 1964), the interpretation ultimately put on the statutes by the statecourts is irrelevant. For an interpretation rendering the statute inapplicatble toSCEF would merely mean that appelants might ultimately prevail in state courts. Itwould not alter the impropriety of appellees' involking the statute in bad faith toimpose continuing harassment in order to discourage appellants' activities, asappellees allegedly are doing and plan to continue to do.

Second, appellants have challenged the statutes as overly broad and vagueregulations of expression. We have already seen that where, as here, prosecutionsare actually threatened, this challenge, if not clearly frivolous, will establish thethreat of irreparable injuiy required by traditional doctrines of equity Webelieve that those affected by a statute are entitled to be free of the burdens ofdefending prosecutions, however expeditious, aimed at hammering out thestructure of the statute piecemeal, with no likelihood of obviating similaruncertainty for others. Here , no readily apparent construction suggests itself as avehicle for rehabilitating the statutes in a single prosecution, and appellants areentitled to an injunction. The state must, if it is to invoke the statutes afterinjmictive relief has been sought, assume the burden of obtaining a permissiblenarrow construction in a noncriminal proceeding before it may seek modification ofthe injunction to permit future prosecutions.

... In these circumstances, to abstain is to subject those affected to theuncertainties and vagaries of criminal prosecution, whereas the reasons for thevagueness doctrine in the area of expression demand no less than freedom fromprosecution prior to a construction adequate to save the statute. In such casesabstention is at war with the purposes of the vagueness doctrine, which demandsappropriate federal relief regardless of the prospects for expeditious determinationsof state criminal prosecutions.

We conclude that on the allegations of the complaint, if true, abstention and thedenial of injunctive relief may well result in the denial of any effective safeguardsagainst the loss of protected freedoms of expression, and cannot be justified.

13. Mr Shufelt would refer this Court to page 17, item 33 of his complaint in

which he clearly documents that he is entitled to injunctive relief.

When there is deprivation of constitutionally guaranteed right, duty of federal court

t7

G00055

to use injunctive power to interfere with the conduct of state officers cannot be

avoided. Woods v. Wright. 334 F.2d 369 (1964).

Where there is clear and imminent threat of irreparable injury amounting to

manifest oppression, it is duty of court to protect against loss of asserted right by

temporary restraining order. Woods v. Wright. 334 F.2d 369 (1964).

A federal district court has authority to issue injunctive relief against commission of

acts in violation of a plaintiffs civil rights by state judges acting in their official

capacity and by an officer appointed by a state court. Staud v. Stewart. 1973, 366

F.Supp. 1398, affd. 547 F.2d 1164.

Sostre V. Rockefeller. 312 F.Supp. 863, 884 (D.C.N.Y. 1970), affirmed in part,

reversed in part on other grounds 442 F.2d 178, cert, denied 92 S.Ct. 719 held:

[23] The cases in which injunctions have been issued against state officials forviolating Fourteenth Amendment rights in the last two decades are legion. Suchinjunctions issue, as a matter of right, where a violation of constitutionalrights has been proved. This court has no discretion to deny injunctiverelief to a person who clearly establishes, after trial on merits, that heis being denied his constitutional rights. Cf. Henrv v. Greenville Airport.Commission, et al.. 284 F.2d 631 (4th Cir. 1960). In addition, the court's decree,where warranted, may provide for the retention of jurisdiction to insurethat the injunctive order is carried out in an orderly fashion. Brown v.Board of Education of Toneka. 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955);....; or to allow the amendment of state rules to conform with the decree, SostreV. McGinm's. supra. 334 F.2d at 912-913. However, the injunction must issue.

Injunctive relief against higher public officials is available in situations where they

have found to supervise and authorize unconstitutional activities. Farber v.

Rochford. 407 F.Supp. 529 (1975).

Suits may be brought against public officials to enjoin them from invading

constitutional rights. Buffier v. Frank. D.C.N.Y. 1975, 389 F.Supp. 502

9

8 0 0 0 0 5 6

Javits V. Stevens. 382 F.Supp. 131 (D.C.N.Y. 1974);

[5] ... Our Court of Appeals (2nd Circuit) has held that:

"[N]o sound reason exists for holding that federal courts should not have thepower to issue injunctive relief against commission of acts inviolation of plaintil^s civil rights by state judges acting in theirofficial capacity.**

WHEREFORE, your deponent, Charles Shufelt, prays that this Court will

determine the constitutionality of Family Court Act §§ 433,435 and 439 and issue an

injimction to prevent his further incarceration until the constitutionality of these state

statutes as relate to the U.S. Constitution can be resolved and for such other and further

relief as this Court may deem just and proper.

Pheasant Rim ApartmentsBuilding 1 Apartment 1Voorheesville, New York 12186(518) 765-2660

Sworn to before me this2nd day of December 1994.

LINDA A. LEHMANNKOTAHY PUBUC. state op new YopfC

QUAUflEO IN ALBANY COUNTY yNO. 4637343 ,bi/^

COMMISSION mmJJlLLP

TO; Payne & Gibbons Law FirmMargaret Gibbons, Esq.The Hamilton Building579 Columbia TurnpikeEast Greenbush, New York 12061

Notary Pidblic

My commission expires

000G57

G. Oliver KoppellNew York State Attorney GeneralJustice BuildingAlbany, New York 12224

A F F I D A V I T O F S E R V I C E

I, Charles Shufelt, having been first duly sworn, state that I served the Affidavit

dated December 2,1994 by hand delivering a copy to the U.S. District Court Clerk's Office

at the U.S. Post Office Building on Broadway in Albany, New York and by mailing a copy

to the attorneys listed above at their addresses of record in this case and mailing a copy to

Judge David N. Kurd, U.S. Federal Building, 10 Broad Street, Utica, New York 13501.

Charles Shufelt ^Pheasant Run ApartmentsBuilding 1 Apartment 1Voorheesville, New York 12186(518) 765-2660

Sworn to before me this2nd day of Decemben4994

/ N o t a i y P u b h c

My commission eiqiires

LINDA A. LEHiv/iA ^KOTARY PUBUC. STATE OF NEW YORK

QUAUFIEO IN ALBANY COUNTY iNO. 4637343 , 1/

COMMISSION EXPIRES '

t

t Supreme Court - SlppdCate (Dwisionn1uT(C Judicial (Department 0 0 0 0 5 8

N o v e m b e r 1 5 , 1 9 9 4

7 2 4 0 3 - T H E P E O P L E O F T H E S T A T E O FN E W Y O R K e x r e l . C H A R L E S E .C O L L I N S I I I , o n B e h a l f o fC H A R L E S S H U F E L T, P e t i t i o n e r ,

V

W. DENNIS DUGGAN, Respondent.

Application, pursuant to CPLR 7002 (b) (2) , for writ ofh a b e a s c o r p u s d e n i e d , w i t h o u t c o s t s .

MIKOLL, J .P. , CREW I I I , YESAWICH JR. and PETERS, JJ . , concur.

At a Term of the Appellate Division of theI S u p r e m e C o u r t o f t h e S t a t e o f n e w Y o r k , '

in and for the Third Judicial Department, !; h e l d a t t h e J u s t i c e B u i l d i n g i n t h e C i t y o f ;

Albany. New York, on the day of Ii N o v e m b e r , 1 9 9 4I

j P R E S E N T ; H O N . , J A M E S N - V J H I T H . 0 0 0 0 5 ^j A s s a c . i a . * . e , P f e j i i i i i i g J u s t i c e! STATE OF NEW YORX' A P P E L L A T E D I V I S I O N T H I R D D E P A R T M E N T

— j

1

P e t i t i o n e r - R e s p o n d e n t , '

ORDER TO SHOW CAUSEON APPUCATION FOR A STAYP E N D I N G A P P E A LDocket No. F-843-92-B

I

Respondent-Appellant.

Upon reading and filing the annexed Affidavit of Charles A. Shufelt,sworn to on the 10th day of November, 1994, and the papers thereto attached,it is hereby

ORDERED, that the petitioner-respondent show cause at a term of thisCourt to be held at the Appellate Division of the Third Department of theSupreme Court of the Slate of New York, Justice Building, Albany, New York onthe - j day of November. 1994, at *= '50 o'clock in the forenoon of thatday or as soon thereafter as counsel can be heard why an Order should not begranted staying the Order of Commitment of the Horn W. Dennis Duggan,dated October 7, 1994, until the determination of the appeal from the Order of

PAMELA S. SHUFELT.

-against-

; CHARLES A SHUFELT,

L t \ ' 2 ^

OUOOoO

the Hon. Gerard E Maney dated November 10, 1994 and the Order of 'Commitment can be heard, and it is further

ORDERED, that tmtil the hearing and the determination of this Order to •S h o w

thirjenforcement of the Order of Commitment of the Hon, W. Dennis Duggan 'd a t e d O c t o b e r 7 , 1 9 9 4 b e s t a y e d , * !

SIGNED this day of November. 1994 at Albany, New York. i

/^tlce of the Appellate Divisionof the Supreme Court

* 0«>eiZ£D +ha1- personal or ei<prcss rrwiil service of• QCOCN ordor +d CouV- onci 44\e popeis u.p<m whrc^ii'4- Is « rt»n4 XAary oHonne ftr pc fiWr or> or UitjvcNjoJ««ter /V i< c,A

4+vMrtet.

The notion l)rcn5>.t on "b7 thisto Bhow causo shall not bo orally arguedun less counse l a re no t i fied to thotrary. by. .the Glerh of .tho Court^i

Suprcms Court - SjppdfaU (Division'IlixrcC Judicial Department

N o v e m b e r 2 8 , 1 9 9 4

7 2 4 2 0 - I n t h e M a t t e r o fP A M E L A S . S H U F E L T ,

R e s p o n d e n t ,V

C H A R L E S A . S H U F E L T ,A p p e l l a n t .

W H I T E , J .

M o t i o n f o r s t a y o f o r d e r o f F a m i l y C o u r t , A l b a n yC o u n t y , d e n r e d , v v ^ t h o u t c o s t s .

X I ' 3