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JAVITS v. STEVENS

September 24, 1974

Lily JAVITS et al., Plaintiffs,
v.
Harold STEVENS et al., Defendants


MacMahon, District Judge.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Defendants, the Justices and Clerk of the Appellate Division, First Department, of the Supreme Court of the State of New York (Appellate Division), move to dismiss the complaint in this action for insufficiency. Rule 12(b)(6), Fed.R.Civ.P. Since we have considered material outside the complaint, we will treat defendants' motion as one for summary judgment. Rule 12(b). Plaintiffs cross move, pursuant to Rule 56, Fed.R.Civ.P., for summary judgment on Counts I, II and III of the complaint.

 This is an action under the Civil Rights Act, 42 U.SC. § 1983, brought by the executors of the Estate of Benjamin A. Javits, a New York attorney who died on May 18, 1973, and his widow, children, grandchildren and assignee for injunctive and declaratory relief vacating an order of the Appellate Division, which suspended Javits from the practice of law for a period of three years, effective February 5, 1971.

 Benjamin Javits was admitted to the Bar of the State of New York on December 22, 1922 and remained in active practice of law until 1961. During that period, he also authored a number of books, including "Peace by Investment" and "Ownerism."

 On October 30, 1969, Javits was served with a petition by the Association of the Bar of the City of New York (Bar Association) to the Appellate Division, seeking "such action be taken as justice may require" and charging him with:

 
"Attempting to perpetrate a fraud upon the Courts of Mexico and the United States by paying monies to Mexican public officials and another Mexican national in order to improperly obtain and subsequently defend a nullification of a Mexican divorce decree . . . .

 Javits answered, denying the allegations of the petition, and the matter was referred by the court to George Trosk, as referee, for hearings, which were held on March 23, April 1, and April 17, 1970. Due to ill health, Javits did not testify at these hearings. Following the hearings, Referee Trosk found, in a report dated June 9, 1970, that "the evidence leaves me no alternative but to find, as I do, that the charge [contained in the petition] has been sustained."

 The Bar Association then moved to confirm the referee's report, and the Appellate Division, in a per curiam opinion, granted the motion and, by order entered January 5, 1971, suspended Javits from the practice of law for three years. Matter of Javits, 35 A.D.2d 442, 316 N.Y.S.2d 943 (1st Dep't 1971). *fn1"

 Javis then moved in the Appellate Division for leave to appeal to the New York Court of Appeals, but leave was denied on March 18, 1971 on the ground that an appeal could be taken as of right. The Court of Appeals, however, dismissed the appeal on May 13, 1971, holding that an appeal could not be taken as of right but granted leave to reargue the appeal in the Appellate Division. 28 N.Y.2d 923, 323 N.Y.S.2d 172, 271 N.E.2d 701 (1971). Javits again moved in the Appellate Division for leave to appeal to the Court of Appeals. Leave was denied by the Appellate Division on October 14, 1971, and a similar motion was denied by the Court of Appeals. 29 N.Y.2d 488, 328 N.Y.S.2d 1025, 278 N.E.2d 654 (1972). A petition for certiorari to the Supreme Court was also denied on November 6, 1972. 409 U.S. 980 (1972).

 Javits died on May 18, 1973, and plaintiffs brought this action on December 6, 1973. Jurisdiction is predicated on the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985; 28 U.S.C. § 1343(c).

 The first three counts of the complaint allege that defendants, acting under color of state law, deprived Javits of his right to due process because he "was given no notice or opportunity to be heard" on the charges underlying the order of suspension. Count I, brought be decedent's estate, and Count II, brought by an assignee, allege that book royalties, payable to them, have been reduced because decedent's reputation was injured by the order of suspension. Count III, brought by decedent's widow, children and grandchildren, claims damages to their own reputations as a result of the order of suspension.

 In Counts IV and V, all plaintiffs seek a declaratory judgment that § 90 of the New York Judiciary Law (29 McKinney's Consol.Laws 1968 c. 30), as related to §§ 5501 et seq. and 5601 et seq. of the New York Civil Practice Law and Rules (7B McKinney's Consol.Laws 1963 c. 8), is unconstitutional on due process and equal protection grounds.

 Defendants raise numerous jurisdictional and procedural questions which must be resolved before considering the merits.

 I

 Defendants first contend that this action is "moot" because the right to practice law and, consequently, to bring this action is personal and was extinguished by decedent's death. We think this raises questions more of standing than of mootness, although standing may involve discussion of issues of mootness. *fn2"

 We begin with the proposition that one may not sue under 42 U.S.C. § 1983 for deprivation of another's constitutional rights. *fn3" Since the decedent's relatives and assignee seek relief, in Counts II and III, based solely on violation of the decedent's constitutional rights, not their own, they lack standing to sue under § 1983. *fn4" Defendants are, therefore, entitled to summary judgment on Counts II and III and on Counts IV and V insofar as the latter counts are asserted by plaintiffs in their individual capacities rather than as the executors of the decedent's estate.

 Defendants also contend that the decedent's estate lacks standing to assert the § 1983 claim asserted in Count I because (1) the decedent's death and the expiration of the order of suspension *fn5" have made the matter moot, and (2) claims under § 1983 do not survive. We disagree.

 Defendants cite several New York and federal cases holding that professional disciplinary proceedings are mooted by the death of the professional or the expiration of the punishment imposed. *fn6" If this were a disbarment or disciplinary proceeding, we would agree that the matter is now moot, but this is an action for injunctive relief under 42 U.S.C. § 1983, based on the alleged deprivation of the decedent's constitutional rights and consequent damage to his estate. Thus, we must look to the cases under § 1983 to determine (1) whether the decedent, had he lived, could have brought this action despite the expiration of the suspension order, and (2) if so, whether the § 1983 claim survives to his estate.

 In a series of § 1983 cases involving suspension of students from high schools and universities and their later reinstatement, it has been held that the reinstatement does not moot the controversy because the "collateral consequences" of the suspension may prejudice the students. *fn7" The rationale of these holdings is derived from Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), *fn8" where the Supreme Court held that a prisoner's release from incarceration did not moot his petition for a writ of habeas corpus because the collateral consequences of his conviction, such as loss of the right to vote, continued in effect after his release. 391 U.S. at 237, 88 S. Ct. 1556. Similarly, in the school cases, the ...


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