The opinion of the court was delivered by: RYAN
This action is brought for a declaratory judgment and for an injunction. 28 U.S.C.A. § 2201.
Plaintiff, Hermon Hoffman, is a citizen and resident of the City and State of New York and president of plaintiff, New York County Criminal Courts Bar Association, incorporated under the laws of the State of New York.
Defendant, William P. O'Brien, is the Police Commissioner of the City of New York and in this capacity is charged with the supervision and direction of the members of the Police Department of the City. Defendant, Frank Hogan, is the District Attorney of the County of New York, New York, City. It is his duty to investigate and prosecute all crimes committed in violation of state law within the County. Defendant, Nathaniel L. Goldstein, is the Attorney-General for the State of New York and the chief law enforcement officer of the State.
The complaint seeks a judgment declaring invalid and in violation of Section 605 of the Federal Communications Act, 47 U.S.C.A. § 605, the following: (1) the provisions of Article 1, Section 12 of the Constitution of the State of New York, which authorizes telephone and telegraph interceptions by state law enforcement officers, through the issuance of warrants or ex parte court orders; (2) Section 813-a of the New York Code of Criminal Procedure, which defines the procedural steps which state officers are required to follow in order to obtain such judicial permission to intercept; (3) all orders made by judicial officers of the State of New York pursuant to said state statutory and constitutional provisions; and (4) interceptions and divulgences by defendants. The complaint also seeks a permanent injunction restraining the issuance of orders by judicial officers of the State of New York, permitting interceptions, and enjoining interceptions and divulgences of such communications by defendants.
These constitutional and statutory provisions of the State of New York authorize telephone and telegraph interceptions by state law enforcement officers under a system of judicial supervision through the issuance of warrants and ex parte orders. N.Y. Constitution, Art. 1, Sec. 12; N.Y.C.C.P. Sec. 813-a. Applications for interception orders may be made only by the attorney general, a district attorney or a police officer having rank above that of sergeant. Such applications must be on oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained. They may be made only to a judge of the Court of General Sessions, a County Court or the New York Supreme Court. All these courts have superior criminal jurisdiction and jurisdiction of the prosecution and trial of felonies. In the case of telephones, the actual line to be intercepted, the person or persons using it and the purpose of the interception must be particularly described. It is further provided that the judge to whom application is made may examine witnesses under oath, and shall issue the order only when satisfied that there is reasonable ground for the belief that evidence of the commission of crime can be obtained.
Section 605, 47 U.S.C.A., Federal Communications Act of 1934 provides in part that, 'No person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.'
Defendants separately and simultaneously move for an order under Federal Rules of Civil Procedure, Rule 12(b) 28 U.S.C.A., dismissing the complaint on the ground that (1) it fails to show that plaintiffs have been deprived of any right secured by the Constitution of the United States or by any act of Congress providing for equal rights of citizens or all persons within the jurisdiction of the United States, and (2) there is not present a justiciable controversy within the jurisdiction of the court.
The real claim asserted is that Article 1, Section 12 of the State Constitution and Section 813-a, C.C.P., violate the civil rights of plaintiffs because they 'constitute a deprivation of the rights, privileges and immunities secured to its citizens by the Constitution and laws of the United States.' This is so, plaintiffs allege because interceptions and divulgences made pursuant to these statutory and constitutional provisions 'constitute a violation of U.S.C.A., Section 605, Title 47 of the Laws of the United States aforesaid, that U.S.C.A. Section 605, Title 47 of the Laws of the United States was intended by Congress as a declaration of public policy affecting fundamental human liberties of citizens of the United States, which is binding upon the State and its public officers * * * .' Par. 10, complaint.
The complaint alleges further that defendants acting in their official capacity have applied for and obtained ex parte orders from judicial officers of the State of New York, permitting the interception and divulgence of telegraphic and telephonic communications of citizens of the State and of the United States; that many of such orders are now in effect and that defendants, under such orders, have been and are still engaged in the interception and divulgence of interstate and intrastate telegraphic and telephonic communications. Par. 7, complaint.
'That pursuant to the said orders, interceptions and divulgences of interstate and intrastate telegraphic or telephonic communications are widespread within the City and State of New York; that upon information and belief, the said communications of many citizens of the United States and residents of the City and State of New York including the plaintiffs have been and are being intercepted and divulged.' Par. 8, comp.
'That the said interceptions and divulgences under the said orders affect many public telephones in the City and State of New York widely used by its residents, including the plaintiffs, as well as many private telephones belonging to or used by its residents; that an endless chain of interceptions and divulgences is thereby created affecting citizens and residents who are in no way involved in the commission of crimes or offenses but whose communications are intercepted and divulged on the mere speculation that information may be thereby obtained which might in turn lead to information desired in connection with the detection or punishment of crime.' Par. 9, comp.
' * * * That this court has jurisdiction of the subject matter of this action without any requirement for diversity of citizenship and without any requirement as to amount in controversy; that the matters in controversy herein relating solely to the protection of the rights and privileges of citizens of this country under the Constitution of the United States and the appropriate statutes hereinafter referred to.' Par. 3, comp.
And, further, 'That plaintiffs have no adequate remedy at law and therefore bring this proceeding for redress of the aforesaid injuries pursuant to the statutes of the United States providing therefor including U.S.C.A., Section 43, ...