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NEW YORK STATE ASSN. FOR RETARDED CHILDREN

September 20, 1977

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al. and PATRICIA PARISI, et al., Plaintiffs,
v.
HUGH L. CAREY, Individually and as Governor of the State of New York, et al., Defendants. UNITED STATES OF AMERICA, Amicus Curiae. THOMAS A. COUGHLIN, III, Individually and as Deputy Commissioner of the New York State Department of Mental Hygiene, Petitioner, v. THE CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., and RONNIE A. SMITH, appearing on behalf of himself and others similarly situated, Respondents



The opinion of the court was delivered by: BARTELS

BARTELS, District Judge

 Motion by Thomas A. Coughlin, as Deputy Commissioner of defendant New York State Department of Mental Hygiene ("the Department"), to join the Civil Service Employees Association, Inc. and a representative union officer (hereinafter collectively referred to as "the union") to this action *fn1" for the limited purpose of determining whether a proposed contract between the Department and United Cerebral Palsy ("UCP") would infringe on any rights of the employees at Willowbrook; for a preliminary injunction against the union's prosecution of a related action in state court; and to consolidate the application for a preliminary injunction with a trial on the merits of the claim. Motion partially granted as set forth in the Order of this court of September 7, 1977, and as supported by this opinion.

 On March 10, 1977, in partial settlement of a contempt motion brought by plaintiffs against defendants Kolb, Coughlin and Mesnikoff, all of the present parties to this action agreed to a Stipulation and Order on Consent which was signed by the court. In the Stipulation, the defendants admitted "that there is non-compliance with portions of the Consent Judgment and agree that there is need for a substantial increase and redirection of efforts to achieve compliance with the Consent Judgment . . . ." To this end, paragraph 3 of the Stipulation required the defendants to seek a contract for the operation by UCP of five (later increased to seven) buildings at Willowbrook Developmental Center, and at the same time stated that there was no intention to abrogate rights of state employees under existing collective bargaining agreements. Paragraph 28 required the defendants to take all action within their lawful authority, including the state constitution and state laws and any necessary legislative approval, in order to execute and implement this Stipulation.

 Negotiations between the Department and the UCP were proceeding to a conclusion when, on May 11, 1977, the union, which represents state employees at Willowbrook, obtained a temporary restraining order in Supreme Court, Albany County, against certain named officials of the Department enjoining further negotiations on the ground that the operation of these Willowbrook facilities by UCP would violate state civil service and mental hygiene laws with the effect of illegally eliminating civil service positions presently filled by union members. The Department removed the action to the United States District Court for the Northern District of New York and sought its transfer to this court but Chief Judge Foley held that there was no federal jurisdiction in his court over the claim and remanded it to the state court. On remand, the state court entered an order denying a preliminary injunction on the ground that the union would not suffer irreparable harm during the pendency of the action.

 The Department, through Deputy Commissioner Coughlin, also a defendant in this action, thereupon commenced the instant proceeding in this court by an order directed to the union to show cause why it should not be joined for the limited purpose of litigating its rights under its employment contract with the state and under state law and for injunctive and declaratory relief. *fn2"

 Limited Joinder of the Union

 The union expressly rejected an invitation to intervene in this action and accordingly objects to being joined, preferring to litigate the issues raised in the state court. Nonetheless, we hold that under the circumstances the union should be joined as a party under Fed.R.Civ.P. 19(a). The union claims certain state law rights which are clearly related to the subject matter of this action and we believe that as a practical matter the ability of both the union and the Department to protect their respective interests in this court would be impaired by the union's absence. See, e.g., Lynch v. Sperry Rand Corp., 62 F.R.D. 78 (S.D.N.Y. 1973); Morris v. Steele, 253 F. Supp. 769 (D.Mass. 1966). Moreover, in view of the potential conflict between the UCP contract and the union's alleged rights, complete relief to the plaintiffs and defendants in this action may not be possible under the March 10, 1977, Stipulation in the absence of the union. In addition, as contended by the Department, the state may be subject to substantial risk of double liability should the Department conclude a contract with the UCP and thereafter discover it had no authority to do so.

 The union raises a technical objection that it is being joined to an already terminated subsidiary contempt action and not to the main action, asserting that the Stipulation is only the result of the contempt proceeding instituted against certain of the defendants. The Stipulation was signed pursuant to an order of the court for the purpose of carrying out the Consent Judgment and to protect plaintiffs' § 1983 rights. Consequently the Stipulation is part of the judgment in the principal action over which this court has continuing jurisdiction to the same degree as any other portion of the Consent Judgment. See United States v. A.S.C.A.P., 442 F.2d 601 (2d Cir. 1971). Further, the union objects to joinder on the ground that there is no provision in the federal rules for "limited joinder", and asserts that if it is to be drawn into this action, it must be able to litigate the issues which the present parties have long since settled in the Consent Judgment and later orders. This, of course, would make no sense. Rule 21 permits the court to add parties "at any stage of the action and on such terms as are just." There is no reason to allow the union to litigate that which has already been adjudicated or anything more than it is presently litigating in the state court action. Finally, contrary to the union's claim, limited joinder will not deprive the union of due process since its sole purpose is to determine what union rights, if any, would be affected by the proposed UCP contract. If it is determined that the union has any rights which would be violated by the UCP contract, it will then be necessary for the court to fashion a proper remedy.

 Subject Matter Jurisdiction

 The union challenges this court's subject matter jurisdiction to entertain the Department's claims against the union. From the Department's application, it appears that the Department seeks a declaratory judgment that the proposed UCP contract (i) does not violate the civil service provisions of Art. 5, § 6 of the New York Constitution (McKinney's 1969); (ii) does not constitute a discontinuance of the Willowbrook Developmental Center in violation of New York Mental Hygiene L. §§ 7.13 & 7.15 (McKinney's 1976); and (iii) does not constitute a contracting of goods and services in violation of the rights of permanent employees under Art. 22.1 of the state's collective bargaining agreement with the union.

 We discuss item (iii) at the outset because the collective bargaining agreement expires on March 31, 1979, and there is no showing that any permanent employees will be laid off at Willowbrook by that date by reason of the UCP contract. Since the union has not joined the Department in raising this contractual issue in the state court, the question whether an actual case or controversy exists in this respect must await the hearing on the merits.

 Turning to the claims under the state constitution and mental hygiene law, the Department claims that this court has federal question jurisdiction on the ground that if the union has any employment rights which the UCP contract would infringe, such rights would have to be balanced against plaintiffs' federal constitutional rights to the relief provided by the UCP contract, and it further claims that this court has ancillary jurisdiction over the proceeding.

 1. Federal Question Jurisdiction

 There is a serious question whether the Department, as a defendant in this action, is in a position to assert federal question jurisdiction predicated upon the claim that the plaintiffs may have constitutional rights which override the state laws relied on by the union. If there is an assertion that the state laws are unconstitutional as applied to the facts of this case, plaintiffs are in a far better position to raise this federal question. See Tileston v. Ullman, 318 U.S. 44, 87 L. Ed. 603, 63 S. Ct. 493 (1943). For this reason we believe it is doubtful whether we can rest our jurisdiction on defendant's theory. Nor is there federal question jurisdiction simply because a federal court order requires the Department to do something which the union, until now not a party to the action, asserts would be in violation of state law. A question arising under a federal court order does not arise under "the Constitution, laws, or treaties of the United States." 28 ...


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