UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: December 30, 1976.
BARBARA BOYD ET AL., ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
THE JUSTICES OF SPECIAL TERM PART I, OF THE SUPREME COURT OF THE STATE OF NEW YORK, BRONX COUNTY, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, ET AL., DEFENDANTS-APPELLEES
Appeal from an order of the United States District Court for the Southern District of New York, Kevin T. Duffy, Judge, dismissing the complaint.
Mulligan, Timbers and Van Graafeiland, Circuit Judges.
Author: Per Curiam
Some thirteen individuals who are allegedly indigent brought an action in the United States District Court for the Southern District of New York in December 1975 pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) seeking declaratory and injunctive relief against all the Justices of Special Term, Part I of the Supreme Court of the State of New York, Bronx County, to vindicate plaintiffs' claimed constitutional right to the assignment of counsel in their state divorce proceedings. The plaintiffs moved for certification of the action as a class action and also for the convening of a statutory three-judge court. In response, the defendants moved for dismissal on various grounds. On April 20, 1976 District Judge Kevin T. Duffy, finding that there was no case or controversy, dismissed the action. It is conceded that the named plaintiffs are currently represented in their divorce proceedings by counsel appointed by the Bronx office of the Legal Aid Society. Since the plaintiffs now have the relief which they sought in their federal action, counsel for their matrimonial litigation in the state court, we have no jurisdiction. "Federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971). No class action was certified below. Therefore appellants are not within any relaxation of the mootness doctrine provided by Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975). Board of School Commissioners v. Jacobs, 420 U.S. 128, 43 L. Ed. 2d 74, 95 S. Ct. 848 (1975).
Appellants' counsel argues that dismissal will only involve the bringing of a new action which will presumably add to the burgeoning calendars of the district court. We are therefore urged to forget that the case is moot and either decide the merits or direct the court below to call for a statutory three-judge court.*fn1 Since article III of the Constitution provides that we only have jurisdiction over cases and controversies, we have no power to act and thus dismiss this appeal. The Attorney General of the State of New York, who submitted a brief but did not argue, has asserted a variety of defenses to this action but not the mootness issue. We express no opinion upon the merits of the issues raised by either of the parties.*fn2
Appeal dismissed as moot.