The opinion of the court was delivered by: WARD
Defendants S. Samuel DiFalco ("DiFalco") and Millard L. Midonick ("Midonick") move pursuant to Rules 12(b)(1) and (6) and Rule 56, Fed.R.Civ.P., for an order dismissing this action or, in the alternative, granting summary judgment. The Court finds that plaintiff lacks standing to maintain this action and, accordingly, the complaint is dismissed.
Plaintiff Thomas Hoffman ("Hoffman"), an attorney admitted to practice in the State of New York, seeks in this action declaratory and injunctive relief to prevent the defendants, judges of the Surrogate's Court, New York County, from continuing certain alleged practices which Hoffman claims are in derogation of his rights under the first, fifth and fourteenth amendments to the United States Constitution and 42 U.S.C. § 1983. This Cour's jurisdiction is predicated upon 28 U.S.C. §§ 1343(3), 1343(4), 2201, and 2202.
In January 1975, Hoffman wrote a letter to DiFalco identifying himself and expressing an interest "in receiving appointments from the Surrogates Court in Estate proceedings." He indicated that he had experience, considered himself qualified, and requested to be advised of "the procedure and/or regulations I need to follow in order that I may receive such an appointment." Plaintiff did not communicate such a request to Midonick. He received neither a response from DiFalco nor any appointments from either defendant.
The appointments at issue are made by Surrogate's Court judges pursuant to § 403 of the New York Surrogate's Court Procedure Act (S.C.P.A.) (McKinney 1967), which provides in part:
Appointment of guardian ad litem
2. By the court. A person under disability who does not appear by his guardian or committee pursuant to 402 shall except as otherwise expressly provided appear by a guardian ad litem appointed by the court on nomination or on its own initiative whenever such person is a necessary party or for other reason the court deems it necessary to appoint a guardian ad litem to protect the interests of such party.
Section 404(1) of the S.C.P.A. sets forth the broad requirement that "(a] guardian ad litem shall be an attorney admitted to practice in New York." (McKinney Supp. 1975).
Plaintiff asserts that defendants have violated his first amendment rights by making appointments allegedly based upon personal and political associations. Furthermore, Hoffman claims that his rights under the fifth and fourteenth amendments have been breached in that the appointments are not grounded on objective standards but are instead arbitrary and capricious. He purports to represent all attorneys similarly situated.
Hoffman seeks a judgment declaring unlawful and enjoining, both preliminarily and permanently, the appointment of guardians based on political and personal considerations as well as barring the use of arbitrary and discretionary policies in making these appointments pursuant to the S.C.P.A. He further demands a preliminary and a permanent injunction ordering defendants to adopt a procedure establishing a list "open to all attorneys meeting an objective criteria of competence," from which guardians ad litem could be chosen on a rotating basis. Hoffman also requests whatever further relief justice requires, including costs and attorney's fees.
Defendants assert that plaintiff lacks standing. This preliminary question must be examined in some depth.
Merely denominating a suit as a class action does not obviate the requirement of a personal injury. "[If] none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 675, 38 L. Ed. 2d 674 (1974). This Court's standing analysis must, therefore, focus on Hoffman himself.
The concept of standing has been described as among "the most amorphous in the entire domain of public law," Hearings on S. 2097 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 89th Cong., 2d Sess., pt. 2, 465, 498 (1966) (statement of Professor Paul A. Freund), and as a "complicated specialty of federal jurisdiction." United States ex rel. Chapman v. FPC, 345 U.S. 153, 156, 73 S. Ct. 609, 97 L. Ed. 918 (1953). However, recent cases handed down by the Supreme Court and by the Court of Appeals for the Second Circuit have further defined the limits imposed by this doctrine. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976); Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Evans v. Lynn, 537 F.2d 571 (2d Cir. 1976) (en banc). These decisions make it clear that, although it is to be hoped that there is a remedy for every wrong, the Courts are not always the appropriate forum for relief.
The standing test is two pronged: ... first, whether the plaintiff-appellees allege "injury in fact," that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court's Art. III jurisdiction, and, second, whether, as a prudential matter, the plaintiff-appellees ...