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November 24, 1976

Paula CICERO et al., Plaintiffs,
Ennis J. OLGIATI, Individually and as Chairman of the New York State Board of Parole, et al., Defendants

The opinion of the court was delivered by: LASKER


 LASKER, District Judge.

 Defendants move for a certification under 28 U.S.C. § 1292(b) permitting immediate appeal from the court's order of March 17, 1976, denying in part their motion to dismiss this case. (Familiarity with the earlier opinion at 410 F. Supp. 1080 is assumed.) Certification is proper if the district court is of the "opinion" that "such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Bearing in mind the fact that this motion is addressed to the discretion of the district court; that the usual requirement of a "final order" as a predicate for appellate jurisdiction is designed to implement the policy against piece-meal litigation; and that this circuit applies a rigorous definition of what a "controlling question of law" means, see Brown v. Bullock, 294 F.2d 415, 417 (2d Cir. 1961); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515, 525 (S.D.N.Y.1973), we consider each of the certifiable questions as proposed by the defendants.

"(1) Under the doctrine of Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), should the within action be dismissed for plaintiff's failure to exhaust their State remedies?"

 This question can better be asked as follows: May state prisoners who challenge the method by which parole release decisions are made, but who do not seek speedier release or even new parole hearings, proceed under § 1983 for declaratory relief or are their claims so close to the "core of habeas corpus jurisdiction" as set forth in Preiser that they must be pursued in accordance with the requirement of exhaustion of state remedies contained in 28 U.S.C. § 2254?

 There is no doubt that plaintiffs have made no effort to exhaust state remedies, and it appears that the state courts would entertain these claims for relief. See, e.g., Solari v. Vincent, 46 A.D.2d 453, 363 N.Y.S.2d 332 (2d Dept.), dismissed as moot, 38 N.Y.2d 835, 382 N.Y.S.2d 48, 345 N.E.2d 591 (1976); Cummings v. Regan, 45 A.D.2d 222, 357 N.Y.S.2d 260 (4th Dept. 1974). An argument could be made that the underlying purpose of the original enactment of what became § 1983 would not be thwarted by requiring exhaustion of state remedies in this situation, where there not only is an available statutory remedy in the state courts under Article 78 but where there is no indication that in practice the state courts would be biased against, indifferent to or neglectful of plaintiffs' constitutional claims. Monroe v. Pape, 365 U.S. 167, 174-80, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).

 However that may be, certification of the question would not materially advance the litigation, nor is the question open to substantial doubt. In Wolff v. McDonnell, 418 U.S. 539, 555, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) the Court held an action for a declaratory judgment that good time credits had been improperly taken away from a state prisoner appropriate under § 1983 as interpreted by Preiser. Under McDonnell, then, a prisoner would be entitled to seek a declaratory judgment on whether he had been wrongly denied parole; a fortiori the court has jurisdiction under § 1983 of an action for declaratory relief for violation of federal due process rights in the parole decision process. In Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975) the Court of Appeals decided on the merits a constitutional challenge to certain aspects of New York State's parole release procedures brought under 42 U.S.C. § 1983. Had it been doubtful of its own or the district court's jurisdiction to decide these questions, it would have been under a duty to decide the jurisdictional point. See F.R.Civ.Proc. 12(h)(3); Bernstein v. Universal Pictures, Inc., 517 F.2d 976, 979 (2d Cir. 1975); Williams v. United States, 42 F.R.D. 609, 612 (S.D.N.Y.1967).

 Accordingly, this issue is inappropriate for certification.

"(2) Is it proper to convene a three-judge court in this certified class action seeking inter alia, to void Section 213 of the New York Correction Law, where, although declaratory relief is facially sought, a final decree would of necessity result in injunctive or other coercive type of relief."

 This does not present a question as to which defendants have shown any substantial ground for difference of opinion. That plaintiffs are proceeding as a class is without significance and is frequently the case in actions for declaratory relief. The defendants have cited no case nor has research disclosed one in which failure to convene a three judge court to decide a class action seeking declaratory relief alone has been held to be error. It is worth noting in this regard that Congress has recently repealed 28 U.S.C. § 2281 so as to eliminate altogether the requirement of a three judge court where the constitutionality of a state statute is challenged under § 1983. Public L. 94-381, 94th Cong., August 12, 1976. Although this change in law does not apply to "any action commenced on or before the date of enactment," it indicates that expansion of the classes of cases in which three judge courts are convened under the former statute would not be in accordance with congressional intent.

"(3) Should the Federal Court decline to exercise jurisdiction of this 42 U.S.C. 1983 action under the principles of abstention and federalism, as recently enunciated in Rizzo v. Goode [423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561], 44 U.S.L.W. 4095 (January 20, 1976) and Carey v. Sugar, [425 U.S. 73, 96 S. Ct. 1208, 47 L. Ed. 2d 587] 44 U.S.L.W. 4416 (March 24, 1976)?"

 Defendants raise two questions here which must be considered separately.

 A. Traditional Abstention

 The traditional doctrine of abstention as articulated in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) and Carey v. Sugar, supra, requires the federal court to defer its own action where a state court interpretation of a state statute might control resolution of federal constitutional questions. Although the New York courts have been receptive to constitutional attacks on state parole release decision making procedures in recent years, the authoritative construction of the New York State statute remains that of the Court of Appeals in Hines v. New York State Bd. of Parole, 293 N.Y. 254, 56 N.E.2d 572 (1944) and Matter of Briguglio v. New York State Bd. of Parole, 24 N.Y.2d 21, 29, 298 N.Y.S.2d 704, 710, 246 N.E.2d 512 (1969), which indicate that the Parole Board is empowered to exercise in full the vast discretion granted it under the statute plaintiffs now challenge. ...

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