The opinion of the court was delivered by: LASKER
Esther Gesicki, Marion Johnson and Dominica Morelli have all been committed to terms in custody
under the Wayward Minor statute, New York Code of Criminal Procedure, §§ 913-a through 913-dd.
They sue under the Civil Rights Act and the Habeas Corpus Act to set aside their convictions, for a declaration that the statute is unconstitutional, and for injunctive relief, and seek to have the case determined a class action. Jurisdiction is predicated on 28 U.S.C. § 1343(3) and (4), as well as 28 U.S.C. § 2254(a). They claim that the statute violates their rights (a) under the due process clause of the Fourteenth Amendment because it is unconstitutionally vague, (b) it is in derogation of the equal protection clause of the Fourteenth Amendment since it punishes the behavior of persons between the ages of 16 and 21 which is not criminal or punishable for persons older than 21 or younger than 16, and (c) under the Eighth Amendment because it imposes cruel and unusual punishment, since it permits commitment under penal discipline of minors who have not been found guilty of a crime, and does not afford them proper treatment.
The plaintiffs presently move for an order convening a three-judge court under 28 U.S.C. § 2281 ff.
The defendants oppose on the grounds that, since the relief sought is that of habeas corpus, a single judge may decide the case, and that the complaint fails to set forth a substantial federal question.
The defendants contend that, because the plaintiffs seek to set aside their convictions, they may not, under the rationale of Rodriguez v. McGinnis, 451 F.2d 730 (2d Cir., 1971), and Katzoff v. McGinnis, 441 F.2d 558 (2d Cir., 1971), proceed under the Civil Rights Act. While the argument might be sound in other circumstances, it is not applicable here, since the New York Court of Appeals has more than once upheld the constitutionality of the Wayward Minor statute against the attack made by these plaintiffs. In such circumstances, it would be a futility to compel the plaintiffs to exhaust their state remedies (as required by the rule of Rodriguez and Katzoff), and, indeed, exhaustion is not required. United States ex rel. Hughes v. McMann, 405 F.2d 773 (2d Cir. 1968); Smith v. Follette, 69 Civil 5182 (S.D.N.Y. 1970); Benton v. Copinger, 291 F. Supp. 141 (D. Md. 1968).
In People v. Salisbury, 18 N.Y. 2d 899, 276 N.Y.S. 2d 634, 223 N.E. 2d 43 (1966), the Court of Appeals sustained (without opinion) the constitutionality of the statute against the proposition that it was unconstitutionally vague. Two years later, after the decision of the Supreme Court in In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), establishing new standards of due process in juvenile proceedings, the Court of Appeals declined to reconsider the Salisbury decision, observing:
"The court, as recently as 1966, has sustained the constitutionality of the statute (People v. Salisbury, 18 N.Y. 2d 899, 276 N.Y.S. 2d 634, 223 N.E. 2d 43) against the argument that 'morally depraved' was too vague a statutory prescription * * *; and for the reasons which are developed here leading to reversal of these convictions on the merits it is unnecessary to reconsider the constitutional issue." People v. Allen, 22 N.Y. 2d 465, 293 N.Y.S. 2d 280, 239 N.E. 2d 879 (1968).
Thereafter, in People v. Martinez, 23 N.Y. 2d 780, 782, 297 N.Y.S. 2d 144, 244 N.E. 2d 711 (1968), the court again overruled a challenge to the constitutionality of the statute; this time on the grounds that its provisions required the incarceration of wayward minors in penal institutions and violated the equal protection clause of the Fourteenth Amendment and the cruel and unusual punishment clause of the Eighth Amendment.
The latest case to deal with the question is People v. Gregory E. (Anon), 26 N.Y. 2d 622, 307 N.Y.S. 2d 465, 255 N.E. 2d 721 (1970). There the court refused to rule further on constitutionality, although the constitutional issues were apparently raised.
With such a history of construction of the statute by New York's highest court, the plaintiffs here find themselves in the situation of the petitioner in United States ex rel. Hughes v. McMann, supra, 405 F.2d at 775-776, as to whom the court observed:
"Hughes manifests no desire to resort again to the New York courts. This is understandable since he would have scant prospect of success. * * * We see no reason why Hughes should be put to a further journey through the New York courts that will almost certainly be futile; he is entitled to have his claim passed upon by a federal court without further ado."
With the case in this posture, we see no reason why the claims made under the Civil Rights Act may not be entertained, and accordingly we pass to the propriety of convening a ...