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May 6, 1976

Bruce Malcolm GRAS, Plaintiff,
The Honorable Harold A. STEVENS, Presiding Justice of the Supreme Court of the State of New York, Appellate Division, First Judicial Department and all the Justices thereof, et al., Defendants

The opinion of the court was delivered by: FRIENDLY

FRIENDLY, Circuit Judge:

This action, wherein federal jurisdiction is predicated on the Civil Rights Act, 42 U.S.C. § 1983 and its jurisdictional implementation, 28 U.S.C. § 1343(3), *fn1" concerns § 237 of the Domestic Relations Law of New York.

The complaint alleged that plaintiff Bruce Malcolm Gras had instituted an action for divorce in the Supreme Court of New York County against his wife, Linda Gras. They were married on October 21, 1963 in Detroit, Michigan, and have one child who is now eleven years old, but have lived separate and apart since December, 1975. Under § 237(a) of the Domestic Relations Law, Mrs. Gras would be entitled to apply to the New York court for an order requiring Mr. Gras "to pay such sum or sums of money to enable the wife to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." There is no provision entitling a husband to make such an application against a wife. Mr. Gras asked that the court declare the statute to be in violation of the Federal Constitution as denying him the equal protection of the laws and to enjoin the defendants from directing any payment to Mrs. Gras. Judge Brieant, to whom the case was referred, sought and obtained the convocation of a three-judge court, 28 U.S.C. §§ 2281 and 2284. On March 17, 1976, the day after oral argument on plaintiff's motion, Mrs. Gras filed an answer in the New York divorce action asserting counterclaims for divorce or, in the alternative, for separation and seeking "counsel fees as and for the defense of [the divorce] action and the prosecution of Defendant's counterclaims, together with costs and disbursements." So far as we are aware, no motion for counsel fees has yet been made, and it is wholly uncertain how, apart from constitutional questions, any such motion would be decided.

 The defendants in the complaint as amended are Presiding Justice Stevens of the Appellate Division of the Supreme Court of the State of New York for the First Department (in which New York County is located), all the Justices of the Supreme Court of the State of New York, the State of New York, Governor Carey, Attorney General Lefkowitz, and Mrs. Gras. All parties have moved for summary judgment. Defendants contend that the statute does not violate the equal protection clause since the differing treatment between husbands and wives is based upon the common law and upon a "reasonable distinction" considered by the legislature. See Kahn v. Shevin, 416 U.S. 351, 94 S. Ct. 1734, 40 L. Ed. 2d 189 (1974).

 Neither the amended complaint nor any papers subsequently submitted makes any attempt to show on what basis plaintiff has a controversy justiciable under the Civil Rights Act with respect to any of the defendants. Somewhat incredibly, neither the Attorney General nor counsel for Mrs. Gras has raised the issue. However, the court is bound to consider whether there is the "exigent adversity" which is an essential condition precedent to federal court adjudication. See Poe v. Ullman, 367 U.S. 497, 506, 81 S. Ct. 1752, 1757, 6 L. Ed. 2d 989, 997 (1961).

 We begin by eliminating the State as a defendant since it is not a "person" within the Civil Rights Act, Monroe v. Pape, 365 U.S. 167, 187-92, 81 S. Ct. 473, 484-86, 5 L. Ed. 2d 492, 505-07 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S. Ct. 2222, 2226, 37 L. Ed. 2d 109, 116 (1973); Curtis v. Everette, 489 F.2d 516 (3 Cir. 1973), cert. denied sub nom., Smith v. Curtis, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974); Williford v. People of California, 352 F.2d 474 (9 Cir. 1965); United States ex rel. Lee v. People of the State of Illinois, 343 F.2d 120 (7 Cir. 1965); Collins v. Moore, 441 F.2d 550, 551 (5 Cir. 1971). With respect to most of the other defendants we find guidance in the Second Circuit's recent discussion of a rather similar attempt to invoke the declaratory judgment and injunctive powers of federal courts in an action challenging the two-year durational residency requirements for instituting an action for divorce under § 230(5) of the New York Domestic Relations Law. Mendez v. Heller, 380 F. Supp. 985 (E.D.N.Y.1974) (three-judge court), vacated and remanded for the entry of a fresh decree to permit an appeal to the Court of Appeals on the issue of justiciability, 420 U.S. 916, 95 S. Ct. 1107, 43 L. Ed. 2d 386 (1975), aff'd 530 F.2d 457 (2 Cir. 1976), slip opinions 1841.

 The portion of the opinion of the Court of Appeals concerning the inappropriateness of designating Justice Heller as a defendant in that case applies equally to the designation of Presiding Justice Stevens of the Appellate Division, First Department, and all the Justices of the New York Supreme Court in this one. Action which any of these Justices may take on an application by Mrs. Gras under § 237(a) will be in their capacity as judges who, like us, have taken an oath or affirmation to support the Constitution of the United States Article IV. If Mr. Gras is right in thinking that § 237(a) of the Domestic Relations Law offends the equal protection clause of the Fourteenth Amendment, they are as bound to strike it down as we are. *fn2" Cases sustaining actions against Justices of the Appellate Division under the Civil Rights Act concerning rules for admission to the bar prescribed by them, e.g., Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F. Supp. 117, 123 (S.D.N.Y.1969) (three-judge court), aff'd without discussion of this point, 401 U.S. 154 (1971), or their institution of a disciplinary proceeding against a lawyer, Erdmann v. Stevens, 458 F.2d 1205, 1207-08 (2 Cir.), cert. denied, 409 U.S. 889, 93 S. Ct. 126, 34 L. Ed. 2d 147 (1972), are readily distinguishable; see also Hadnott v. Amos, 394 U.S. 358, 89 S. Ct. 1101, 22 L. Ed. 2d 336 (1969). As said in the Law Students case, 299 F. Supp. at 123:

Plaintiffs do not challenge a state court's disposition of an individual case, but attack as "overly broad and vague regulations of expression," the rules and regulations promulgated and administered by the appellate divisions and their delegates. The alleged infringement of First Amendment rights of law students cannot be dissipated by the processing of particular individuals' applications for admission to the bar. (Citations omitted.) *fn3"

 We likewise have little to add to the Court of Appeals' discussion of the impropriety of naming the Attorney General as a defendant. The Attorney General has no interest in the outcome of a divorce suit and no duty to enforce any order made in it. His position with respect to this controversy is wholly different from that of the Attorney General of Minnesota in Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), who was implicitly charged by statute with the duty of collecting an allegedly unconstitutional tax, or of a local prosecutor who is charged with the duty of enforcing an allegedly unconstitutional criminal statute. Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). The facts that the Attorney General is bound to support the constitutionality of challenged New York statutes, N.Y. Exec.Law § 71, and to defend actions in which the state is "interested," id. § 63(1), do not overcome the point that when plaintiff began this action, the Attorney General was not threatening to deprive him of anything. Cf. Ex parte Young, supra, 209 U.S. at 131, 28 S. Ct. at 445, 52 L. Ed. at 717.

 Since the complaint in Mendez did not name the Governor as a defendant, the opinion of the Court of Appeals does not aid us in deciding with respect to him. The argument for plaintiff would be that the Governor is charged by Article IV, § 3, of the New York Constitution to "take care that the laws are faithfully executed," and that if a New York Supreme Court Justice should make an award to Mrs. Gras under § 237(a) despite plaintiff's constitutional objection and this should be affirmed by New York's higher courts, it would then become the Governor's duty to see to it that "the whole power of the state will be put forth, if necessary" *fn4" to enforce it. The argument would continue that although Fitts v. McGhee, 172 U.S. 516, 530, 19 S. Ct. 269, 274, 43 L. Ed. 535, 542 (1899), held that the ban of the Eleventh Amendment could not be avoided by suing state officers in the absence of "any special relation" on their part "to the particular statute alleged to be unconstitutional," this was altered by the statement in Ex parte Young, supra, 209 U.S. at 157, 28 S. Ct. at 453, 52 L. Ed. at 728:

The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists.

 In our view this would extend Ex parte Young beyond anything which the Supreme Court intended or has subsequently held.The statement just quoted followed a more general one:

In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.

 The cases that have applied the statement first quoted have been concerned with the enforcement of programs, civil or criminal, dealing with the relations between the state and the individual - the regulation of railroad rates as in Ex parte Young itself; the forfeiture of civil rights upon imprisonment, Johnson v. Rockefeller, 58 F.R.D. 42, 45-46 (S.D.N.Y.1972), aff'd sub nom., Butler v. Wilson, 415 U.S. 953, 94 S. Ct. 1479, 39 L. Ed. 2d 569 (1974); the rules determining access to a position on the ballot, Socialist Workers Party v. Rockefeller, 314 F. Supp. 984 (S.D.N.Y.) (three-judge court), aff'd, 400 U.S. 806, 91 S. Ct. 65, 27 L. Ed. 2d 38 (1970); and water control, City of Altus v. Carr, 255 F. Supp. 828, 834-37 (W.D.Texas) (three-judge court), aff'd, 385 U.S. 35, 87 S. Ct. 240, 17 L. Ed. 2d 34 (1966). Even in such cases there is an opposing view as to the propriety of joining a governor as a defendant, see Coon v. Tingle, 277 F. Supp. 304, 306-07 (N.D.Ga.1967) (three-judge court) (statute prohibiting employment of females in liquor stores); Oliver v. Board of Education, 306 F. Supp. 1286, 1288 (S.D.N.Y.1969) (election procedures for local board of education). ...

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