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VAIL v. QUINLAN

January 13, 1975

Harry VAIL, Jr., et al., Plaintiffs,
v.
Lawrence M. QUINLAN, Individually and in his capacity as Sheriff of Dutchess County, et al., Defendants


Cannella, District Judge.


The opinion of the court was delivered by: CANNELLA

MEMORANDUM DECISION

CANNELLA, District Judge:

 This civil rights action, which is brought pursuant to 42 U.S.C. § 1983, asks that the Court declare unconstitutional and enjoin the enforcement of a panoply of sections contained in Article 19 of the New York Judiciary Law, McKinney's Consol.Laws, c. 30 (New York Judiciary Law §§ 756, 757, 765, 767, 769, 770-775) as being in derogation of the due process and equal protection clauses of the Fourteenth Amendment. It is presently before the Court on plaintiff's motion to convene a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284 and upon the defendant's cross-motion to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), upon a predicate finding by the Court that no substantial constitutional issue is raised. As the Court is of the view that the plaintiffs have satisfied the prerequisites for convening a three-judge court, their motion is hereby granted and, of course, the defendants' cross-motion is hereby denied.

 The contours of the statutory scheme here at issue were recently well stated by one commentator. Alderman, Imprisonment for Debt: Default Judgments, The Contempt Power & The Effectiveness of Notice Provisions in the State of New York, 24 Syracuse L.Rev. 1217, 1222-24 (1973).

 
A money judgment is a special kind of debt which affords the judgment creditor remedies not available to other creditors. However, even money judgments do not collect themselves. In order to enforce his judgment the creditor either must locate and attach the debtor's assets, or, assuming no attachable assets, compel payment from the debtor himself.
 
In order to assist the judgment creditor in his search for assets, New York allows the judgment creditor to compel the judgment debtor to disclose the nature, value and location of all his assets. Section 5223 of the New York Civil Practice Law & Rules (CPLR) provides that: "At any time before a judgment is satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment." Section 5223 further provides that the disclosure shall be effectuated "by serving upon any person a subpoena . . . . [Failure] to comply with the subpoena is punishable as a contempt of court."
 
Although three types of subpoenas are statutorily authorized, the most commonly used forms are (1) the subpoena requiring attendance of the debtor for the taking of a deposition, and (2) the information subpoena, which is accompanied by written questions to be answered and returned by the debtor. Upon service of either of these subpoenas the judgment debtor must, under penalty of contempt, comply with its directions. Assuming proper service by the judgment creditor and compliance by the judgment debtor, assets will be disclosed and the judgment satisfied. Alternatively, a disclosure of no attachable assets will temporarily appease the judgment creditor or force him to look elsewhere to satisfy the judgment. In the event that the judgment debtor fails to comply with the judgment creditor's subpoena, however, the CPLR provides that the debtor may be found in contempt and punished accordingly. The procedures that the judgment creditor must follow to have the recalcitrant debtor held in contempt are found in the judiciary law. [The statutes here challenged.] While the court has the power to punish the judgment debtor summarily, the practice generally followed in the case of nondisclosure is the issuance of a show cause order and a subsequent hearing to determine the guilt or innocence of the alleged contemnor.
 
In the event that the judgment debtor fails to appear at the show cause hearing he will be adjudged in contempt in absentia, the burden of proof having shifted to the debtor to show cause why he should not be held in contempt. After return of the show cause order and a determination that the judgment debtor is in contempt, the debtor may be fined an amount sufficient to indemnify the aggrieved creditor, or to pay him an amount not exceeding costs plus $250. Immediately thereafter a commitment order will issue, directing that the judgment debtor stand committed to the local jail until such time as the fine is paid. The judgment debtor may then remain incarcerated without the assignment of counsel or judicial review, for up to 90 days. The fine, when paid, is remitted directly by the court to the judgment creditor and is applied to the debt. *fn1"

 As regards the precise factual allegations giving rise to the instant controversy the Court can be brief, as the facts advanced are squarely within the pattern of statutory enforcement suggested by Alderman, supra. Each plaintiff (as well as the proposed plaintiff-intervenor) is a judgment debtor who has failed to respond to or comply with a post-judgment discovery subpoena. Each has been served with an order to show cause requiring that he demonstrate why he should not be adjudged in contempt of court for failure to obey such subpoena and each has failed to appear at the show cause hearing. Accordingly, each was adjudged in contempt of court and, upon failure to pay the fine specified by the County Court in its contempt order, has been incarcerated or subjected to an immediate threat of incarceration pursuant to an ex parte commitment order issued in compliance with § 756 of the Judiciary Law.

 With this statutory and factual framework in mind, we turn to consider plaintiffs' motion to convene a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284. As Judge Lasker has recently stated,

 
[the] motion should be granted if the complaint at least formally alleges a basis for equitable relief and raises a substantial constitutional question (Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962)), if it attacks a state statute's general application and names a state officer as a defendant (Ince v. Rockefeller, 290 F. Supp. 878, 881 (S.D.N.Y.1968)).1a

 Sugar v. Curtis Circulation Co., 377 F. Supp. 1055, 1061 (S.D.N.Y.1974). See also, Nieves v. Oswald, 477 F.2d 1109, 1111-1112 (2 Cir. 1973); 227 Book Center, Inc. v. Codd, 381 F. Supp. 1111, 1113 (S.D.N.Y.1974); Johnson v. Rockefeller, 58 F.R.D. 42, 48 (S.D.N.Y.1973). The only prerequisite to the convening of a three-judge court which the Attorney General alleges has not been met by plaintiffs, is whether this case gives rise to a substantial constitutional question. *fn2" We now turn to consider such issue.

 A determination of substantiality in the present context "hangs on whether or not the constitutional issue presented is foreclosed by decisions of the Supreme Court which are analogous to the case at hand" and, as such, "[the] 'foreclosure' hurdle is not a high one." Sugar v. Curtis Circulation Co., 377 F. Supp. at 1061. The doctrine of "substantiality" was recently reviewed by the Supreme Court in Hagans v. Lavine, 415 U.S. 528, 536-538, 94 S. Ct. 1372, 1378, 39 L. Ed. 2d 577 (1974) (in which the Court quoted extensively from its earlier opinion in Goosby v. Osser, 409 U.S. 512, 93 S. Ct. 854, 35 L. Ed. 2d 36 (1973)):

 
Over the years this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are "so attenuated and unsubstantial as to be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, [24 S. Ct. 553, 557, 48 L. Ed. 795] (1904); "wholly insubstantial," Bailey v. Patterson, 369 U.S. 31, 33, [82 S. Ct. 549, 550-551, 7 L. Ed. 2d 512] (1962); "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, [216 U.S. 285, 30 S. Ct. 326, 327, 54 L. Ed. 482] (1910); "plainly unsubstantial," Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, [53 S. Ct. 549, 550, 77 L. Ed. 1062] (1933); or "no longer open to discussion," McGilvra v. Ross, 215 U.S. 70, 80, [30 S. Ct. 27, 31, 54 L. Ed. 95] (1909). One of the principal decisions on the subject, Ex parte Poresky, 290 U.S. 30, 31-32, [54 S. Ct. 3, 4-5, 78 L. Ed. 152] (1933), held, first, that "[in] the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented"; second, that a three-judge court was not necessary to pass upon this initial question of jurisdiction; and third, that "[the] question may be plainly unsubstantial, either because it is 'obviously without merit' or because 'its unsoundness so clearly results from the previous decisions ...

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