The opinion of the court was delivered by: FOLEY
MEMORANDUM-DECISION and ORDER
JAMES T. FOLEY, Chief Judge.
The two lady plaintiffs for themselves and on behalf of alleged class members, similarly wronged it is claimed, seek injunctive and declaratory relief and the composition of a three-judge court. (28 U.S.C. §§ 2281-2284). The claims are always ones of serious nature in that they assert Article 3-A of the Personal Property Law, McKinney's Consol. Laws, c. 41, and Article 9 of the Banking Law, McKinney's Consol. Laws, c. 2, of New York State are unconstitutional on their face and as applied. Such laws are stated in the substantial complaint in paragraph VIII, Claims for Relief, to be unconstitutional "insofar as they provide for execution against wages by service of wage assignment on employers without actual notice to the assignor (wage earner) and opportunity to be heard, in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution"; and further that such laws are unconstitutional in like manner "insofar as they fail to exempt from wage assignment the first $85.00 of weekly income in violation of the Equal Protection Clause of the Fourteenth Amendment." Jurisdiction is based expressly by what has become a familiar recitation upon 42 U.S.C. § 1983, 28 U.S.C. §§ 1343(3), (4), 2281 and 2284. Sections 2201 and 2202, Title 28, are invoked apparently for jurisdiction but such deal with declaratory judgment and possess no jurisdictional conferral as such.
The usual flurry of motions came on the scene inevitable it seems in this type action. Their filing takes a federal District Judge away from many pressing problems into immediate research and study of a ponderous and complex field of law even for the preliminary decisions. It should be appreciated that lawsuits of this kind engender treatment of issues highly important to the federal-state relationship and should not be filed with casualness in the federal courts. Judge Henry Friendly of the Court of Appeals, Second Circuit, dramatized the plight of the District Judge when confronted by such unexpected constitutional challenges to state action and statutes in Negron v. Wallace, 2 Cir. 1971, 436 F.2d 1139, Judge Friendly commenced by the statement that the Court of Appeals, Second Circuit, yields to none in recognizing the high place in our legal system held by 42 U.S.C. § 1983 and its jurisdictional implementation, 28 U.S.C. § 1343(3). This District Court also takes no backseat to the entertainment and processing of civil rights actions when they contain issues proper for such federal treatment. This District Court receives and has received for a number of years a steady flow of civil rights complaints from more than 6,000 state prisoners confined within this District. (See Wright v. McMann, 2 Cir., (1967) 387 F.2d 519; (NDNY) 321 F. Supp. 127.) It is only in the past year or two that the Court began to be confronted by filings of such actions as this one by legal aid, neighborhood services and civil rights organizations. (LaPrease v. Raymours Furniture Company (NDNY) 315 F. Supp. 716; Boddie v. Wyman, 2 Cir., 434 F.2d 1207; see also Cook v. Board of Education, 2 Cir., 424 F.2d 995).
The application here for a temporary restraining order that often unfortunately calls for instant and hurried decision was unnecessary to decide inasmuch as the attorneys for the two finance companies which held the wage assignments of such named plaintiffs as security for their small loans made to them by Beneficial and Protective agreed in open court to lift and not further execute upon such written individual wage assignments pending resolution of the other questions before the Court. The application for the composition of a three-judge court and for authorization for the action to proceed as a class action pursuant to specified provisions of Rule 23 of the Federal Rules of Civil Procedure remain for decision. The position of plaintiffs in such respects has been met by vigorous briefing for the corporate defendants with opposition in depth that not only disputes the essentials for three-judge court jurisdiction being present but contends further there is not sufficient federal question of substance presented by the complaint to uphold federal single judge jurisdiction.
Whether the single judge should act alone, or make the request that is easy to do to the Chief Judge of the Circuit for the statutory three-judge court has been the subject of continuous and extensive writing at every level of the Federal Courts. (See Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794; Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442; Utica Mutual Ins. Co. v. Vincent, 2 Cir., 375 F.2d 129; Bynum v. Conn. Commission on Forfeited Rights, 2 Cir., 410 F.2d 173; McMillan v. Board of Education, 2 Cir., 430 F.2d 1145; Astro Cinema Corp. v. Mackell, 2 Cir., 422 F.2d 293; Green v. Board of Elections, 2 Cir., 380 F.2d 445; Rosado v. Wyman, 2 Cir. 1970, 437 F.2d 619; Latham v. Tynan, 2 Cir., 435 F.2d 1248; Dale v. Hahn, etc., 2 Cir. 1971, 440 F.2d 633; Hall v. Garson, 5 Cir., 430 F.2d 430). On the latest go-around in Rosado, supra, December 21, 1970, Judge Feinberg stated that the prior proceedings were complex due in part to the subtle oddities of three-judge court jurisdiction. It must be accepted, of course, that nice distinctions are to be expected in the law, (Galveston, H. & S.A.R. Co. v. Texas, 210 U.S. 217, 225, 28 S. Ct. 638, 52 L. Ed. 1031 (Holmes, J.), and to expect a tidy formula even though it may satisfy the longing for certainty would ignore the movement of a free society. (Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (Frankfurter, J.). The questions here first, whether to request convention of three judges or not, to ascertain the power of the single judge to dismiss if there is no federal substance, and the extent to which the single judge can enter into the merits or factual situation in the resolution of these questions, are substantial and close as evidenced by the great diversity of judicial viewpoints in the above listed cases.
There is a mix of problems at this initial stage, invariably involved in suits of this kind, that would be difficult for court determination if presented singly. The difficulty of decision regarding the convocation of three judges is compounded when the search for the required substantiality necessitates interpretation of concepts of law described as elusive, incapable of precise and rigid definition for all purposes, and ones that mean entry into a murky and uncertain area of the law. Due Process and Equal Protection necessarily are of this nature, and even the superabundance of writing has yet to provide any yardstick for the differing factual situations. Hannah v. Larche, 363 U.S. 420, 442, 80 S. Ct. 1502, 4 L. Ed. 2d 1307; Cafeteria and Restaurant Workers Union Local 473, A.F.L.-C.I.O. v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230; LaPrease v. Raymours Furniture Company, supra, 315 F. Supp. at p. 724. It is hard at times for the single judge at the outset to know how far he can penetrate into areas that by intricate reasoning of the federal Courts may be a function reserved to the statutory three-judge court.
Abstention is strongly urged by the defendants here and there may be in my judgment a solid basis for its application at the appropriate stage. However, it is clear from the decision of the Court of Appeals, Second Circuit, in the Idlewild Bon Voyage case, affirmed in the Supreme Court, supra, that the decision to abstain is a different question from the preliminary one of determining whether the case embodies a substantial federal question, and if there is enough substance for three-judge assembly, the decision to abstain is only to be made by a three-judge district court. (Idlewild Bon Voyage Liquor Corp. v. Rohan, 289 F.2d 426, 429; see also Moreno v. Henckel, 5 Cir., 431 F.2d 1299). I would think that this convolution that confronts the single district judge in the beginning is a major reason why the Judicial Conference of the United States at its October 1970 Session approved draft legislation and authorized its transmittal to the Congress to amend Sections 2281 and 2282, Tit. 28 U.S.C., to eliminate the three-judge district court requirement. (Rept. of Proceedings of Judicial Conf. of U.S., October 29-30, 1970, Session, p. 78; see also Latham v. Tynan, supra, 435 F.2d at p. 1252).
There are a number of federal court opinions, many recently from the Court of Appeals, Second Circuit, that in my judgment indicate a growing resistance, and even resentment, to the institution of these actions with their accompanying burdens almost exclusively in the federal courts. This deliberate by-pass of state courts and administrative tribunals or agencies is unexplainable to many responsible lawyers as well as the citizenry inasmuch as the issues arise basically from the wording and purposes of State laws. Courts in difficulty will stretch to divert or abstain when valid and new distinctions can be found to limit the open door policy of unrestricted entry if the choice be made continuously to file in the federal court system when competent and clearly available judicial remedy is present unquestionably in the state court system. (Negron v. Wallace et al., supra; Alberda v. Noell (D.C.E. Mich. 1971) 322 F. Supp. 1379; Tichon v. Harder et al., 2 Cir. 1971, 438 F.2d 1396; Farrell v. Joel et al., 2 Cir. 1971, 437 F.2d 160, (Ch. J. Lumbard, concurring); see also Wisconsin v. Constantineau, 1971, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (Ch. J. Burger, dissenting); Askew et al. v. Hargrave et al., 1971, 401 U.S. 476, 91 S. Ct. 856, 28 L. Ed. 2d 196, referring for principles on proper exercise of abstention to Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68). Every federal judge is aware there are forceful Supreme Court writings that dependent on the circumstances the federal remedy is supplementary to the state one and the state one need not be invoked and refused before the federal one is invoked. (Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 5 L. Ed. 2d 492; McNeese v. Board of Education, 373 U.S. 668, 671, 83 S. Ct. 1433, 10 L. Ed. 2d 622; Zwickler v. Koota, 389 U.S. 241, 248, 88 S. Ct. 391, 19 L. Ed. 2d 444). Justice Black just as forcefully points out that from the beginning this country has had essentially two separate legal systems that proceed independently of the other, both with ultimate review in the United States Supreme Court of federal questions raised in either system. (Atlantic C.L.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S. Ct. 1739, 26 L. Ed. 2d 234; see also Younger v. Harris, 1971, 401 U.S. 37, at p. 43, 91 S. Ct. 746, at p. 750, 27 L. Ed. 2d 669).
There is no basis for concern that State court rulings on federal constitutional questions might be shunted off unfairly into limbo and prevented from presentation for review in the Supreme Court of the Land. Our system of justice guarantees such right no matter the court of initial filing or its status in the court systems. (See Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654). In fact, and it is especially noteworthy, inasmuch as the plaintiffs place their greatest reliance upon it to prevail on the merits of this suit, that Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349, that struck down the Wisconsin garnishment statute came to the Supreme Court through the State courts of Wisconsin. Justice Black, dissenting, described the opinion of the Supreme Court of Wisconsin in that case as an outstanding one on constitutional law. The courts of New York, in my experience as a New York lawyer and federal judge sitting in New York, are manned by qualified judges with the same capacity to construe federal constitutional questions as the federal judges possess who sit in New York. State judges have the same responsibility to uphold the federal constitution. Both come from the same melting pot with a background of educational training for the law and duly admitted to practice law in New York by the New York courts.
The Court of Appeals, New York, has been historically recognized as one always in the vanguard of distinguished and competent appellate courts of the Nation. It has been involved in countless decisions of substantial federal constitutional questions as the highest court of one of the most populous and industrialized states of the Union with immense commercial, financial and agricultural activity. It has passed upon since our early days, with a distinguished record of accomplishment, complex federal constitutional issues that later were subject to serious consideration and extensive opinions in the United States Supreme Court and affected in many instances the mainstream of American life. State courts throughout the nation should be given their just due and not demeaned by irresponsible assertion that federal constitutional interpretation and application is beyond their ken.
Whitney North Seymour in writing the "Cover Story" for the American Bar Association Journal, March 1971 issue, in regard to the cover photograph of The Court of Appeals Hall in Albany, New York, described the Court in this complimentary fashion:
"At the apex of a court structure which deals with all sorts of questions, the New York Court of Appeals over the years has provided leadership in the development of the law to meet the needs of a changing society. Federal and other state courts frequently cite its decisions. This may be attributed in large part to a succession of strong judges of recognized stature."
The threshold question of prime importance is raised by the motion for a three-judge court composition. Such decision enters a troubled and confused area wherein a reasonable degree of certainty in the interests of the proper and efficient administration of justice is difficult to find. (See Dale v. Hahn, supra; Hall v. Garson, supra; Latham v. Tynan, supra, 435 F.2d 1248, in which Judge Friendly dissenting believes there is enough substance for convening under California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S. Ct. 865, 82 L. Ed. 1323; Bynum v. Conn. Commission on Forfeited Rights, supra; McMillan v. Board of Education, supra; Astro Cinema Corp. v. Mackell, supra; Johnson v. Harder, 2 Cir. 1971, 438 F.2d 7.) There are startling examples that indicate the uncertainty leads often at times to a long road through the federal judicial system that may make very questionable the "short-cut" advantage discussed by the Chief Justice in his dissent in Constantineau, supra, sought to be attained when the federal three-judge statutory procedure is invoked under 28 U.S.C. § 2281. E.g. Swift & Co. v. Wickham, supra; Idlewild Bon Voyage ...