The opinion of the court was delivered by: CHARLES L. BRIEANT
On April 5, 1993, the Petitioner Kenneth Ellman filed a Petition for a Writ of Habeas Corpus pursuant to Section 2254 of Title 28 of the United States Code. 28 U.S.C. § 2254. At the time the Writ was filed, Mr. Ellman was being detained in this district, at the Westchester County Penitentiary in Valhalla, New York, for continuing civil contempt of the Orders of the Honorable Aldo A. Nastasi, Justice of the Supreme Court of the State of New York, County of Westchester, entered on July 31, 1989 and February 5, 1991, respectively, which were issued in connection with a civil corporate dissolution proceeding brought by the Attorney General of New York and entitled "PEOPLE OF THE STATE OF NEW YORK, by ROBERT ABRAMS, Attorney General of the State of New York v. WESTCHESTER COUNTY S.P.C.C., a Not-For-Profit Corporation, and KENNETH ELLMAN and JOHN and JANE DOE, as Officers and/or Directors and/or Agents of the WESTCHESTER COUNTY S.P.C.C., Index No. 22360/87". Mr. Ellman was not sued except in his capacity as a corporate officer.
On April 8, 1993, Gary J. Needleman, Esq., appeared on behalf of the Petitioner before the Hon. Morris E. Lasker, the United States District Court Judge presiding in Part I, and presented the Court with a proposed Order to Show Cause to be issued pursuant to Section 2243 of Title 28, 28 U.S.C. § 2243, directing the respondent Warden to show cause why a writ of habeas corpus should not be granted releasing the Petitioner from custody on the grounds that he is being detained pursuant to a facially invalid order of civil contempt, that his rights under the due process clause of the United States Constitution have been violated and that his continued detention constitutes cruel and unusual punishment under the Eighth Amendment. See Doc. No. 4. The Order to Show Cause was issued and made returnable before me on April 16, 1993.
On the return date, Hon. David G. Samuels, an Assistant Attorney General for the State of New York, appeared before this Court and agreed to defend the respondent county official because the allegations concern the actions of the Attorney General of the State of New York in the above referenced state court proceeding and the Court orders issued therein. See April 16, 1993 Transcript, at 2-3. On April 16, 1993, this Court granted the petitioner's application for bail after concluding that "the petitioner has demonstrated that the habeas petition raises substantial claims, and that extraordinary circumstances exist which make the grant of bail necessary to make the habeas corpus remedy effective." See April 16, 1993 Transcript, at 40 and discussion at 40-47. Petitioner was released on bail on the same date, having been in custody since July 24, 1992, a total of 266 days.
On May 28, 1993, this Court held a hearing to determine whether the petition should be dismissed for a failure to exhaust state court remedies and, after oral argument, the Court reserved decision. See 28 U.S.C. § 2254(b). On June 8, 1993, this Court issued an Order converting the motion to dismiss into a motion and cross-motion for summary judgment on the ground that the procedural issue of exhaustion is inextricably intertwined with the merits, or lack thereof, of the petition. The matter was marked fully submitted on July 1, 1993, the date of the last submission by counsel. There are no genuine disputed issues of material fact. The following constitutes this Court's decision on all issues.
This relatively straightforward civil corporate dissolution proceeding seems to have taken on a life of its own. Accordingly, this Court will recount the background of the case in some detail. Beginning in 1875 and until November 1, 1989, the New York State Legislature authorized the incorporation of voluntary Societies for the Prevention of Cruelty to Children. See N.Y. Not-For-Profit Corp. Law § 1403(b) (McKinney 1970 & Supp. 1993);
N.Y. Times, February 7, 1989, § B, at 1. Members of these societies were given "peace officer" status under Section 2.10 of New York's Criminal Procedure Law, which empowered them to make summary arrests, file charges, take custody of children, and possess and carry handguns without a permit. N.Y. Crim. Proc. Law §§ 2.10, 2.20, 140.25 (McKinney 1992 & Supp. 1993). However, in November of 1987, the New York Legislature amended Section 2.10 of the Criminal Procedures Law by adding a subsection (7-a) which now requires peace officers to apply for a firearms license pursuant to Section 400.00 of New York's Penal Law. See N.Y. Crim. Proc. Law §§ 2.10 (7-a); N.Y. Penal Law § 400.00(12.c)(1989 & Supp. 1993).
On November 16, 1987, Robert Abrams, the Attorney General of the State of New York, commenced the proceeding previously mentioned in the Supreme Court of the State of New York, County of Westchester, under Sections 112(a)(1) and 1101 of New York's Not-For-Profit Corporation Law for judicial dissolution of the Westchester County Society for the Prevention of Cruelty to Children ("the Society"). See Court Doc. No. 19, at 3; Court Doc. No. 16, Ex. 6, P 4. The Attorney General alleged, among other things, in the Verified Complaint that the Society and its principal officer, Kenneth Ellman, had abused their special powers under Section 1403(b) New York's Not-For-Profit Corporation Law by acting as a "private police department," and by willfully failing to register and file annual financial reports pursuant to Section 8-1.4 of the New York EPTL, and by specific ultra vires actions more particularly set forth in the complaint. Furthermore, no cases of child abuse or neglect had been brought by the Society in the Family Court for more than two years. The Attorney General also alleged that Mr. Ellman breached his duty as the principal officer of the Society to act in good faith and in a prudent manner, and had, instead, become a vigilante in the War on Drugs. See Court Doc. No. 12, Ex. 1, P 1.
The Attorney General moved for preliminary and permanent injunctive relief against the Society, Mr. Ellman, and its officers, directors, agents and peace officers. By Order dated January 26, 1988, the New York Supreme Court preliminarily enjoined Mr. Ellman, the Society and its representatives from using any facility other than a municipal jail to detain persons, fingerprinting or photographing any person for any reason, and falsely representing to the public that the Society is an agency of the State, that it is a police agency, or that its agents are police officers. The order, as resettled in May 1988, apparently also ordered Mr. Ellman individually, in connection with six specified handguns purchased in 1984, to comply with the registration requirements of Penal Law § 400(12-c) within twenty days and submit proof of compliance to the court.
On July 27, 1989, Justice Nastasi granted the Attorney General further injunctive relief and ordered the "defendants to report and turnover to a government law enforcement agency designated by the Court, all handguns that were acquired by defendants and registered with the New York State Police on the basis of Westchester SPCC peace officer authority and for which no license has been obtained as required by Criminal Procedure Law Section 2.10(7-a). . . ." See Court Doc. No. 16, Ex. 11, at 3 (Order entered on July 31, 1989). Justice Nastasi also adjudged the defendants to be in contempt of Court pursuant to Section 5104 of the New York's Civil Practice Law & Rules based on defendants' continued misrepresentation to the public, that the Society is a government agency and its agents police officers. Id. The Court declined at that time to grant the Attorney General's motion for civil contempt against Mr. Ellman based upon his failure to register six handguns in accordance with Penal Law § 400.00(12-c), but stated that the Attorney General could renew this motion or "pursue a criminal prosecution against defendants under Penal Law Section 400.00(15)." Id at 2.
On or about January 17, 1990, the State of New York, Division of Criminal Justice Services, removed Mr. Ellman's name from the peace officer registry. See Court Doc. No. 16, Ex. 14. In March of 1990, the Attorney General moved for an order, inter alia, holding Mr. Ellman and the Society in civil contempt based on their failure to comply with the Court's Order, which was entered on July 31, 1989, to turn over the handguns. In a decision dated September 5, 1990, Justice Nastasi ordered a hearing on the application for contempt and further enjoined Mr. Ellman and the Society from securing official license plates for motor vehicles and ordered them to surrender all such official plates in their possession.
In November of 1990, some three years after the commencement of state court litigation in New York, Mr. Ellman obtained a license for 17 handguns in New Jersey.
See Court Doc. No. 17, 1993, at 5; Court Doc. No. 19, P 28, at p. 8. In November of 1990, Mr. Ellman also moved for an order modifying the July 31, 1989 Order insofar as it required him to turn over all handguns for which no New York license had been obtained pursuant to Section 400.00(12-c) of the Penal Law and to vacate the September 5, 1990 decision insofar as it set a hearing on the application for contempt. Justice Nastasi denied Mr. Ellman's motion on November 26, 1990.
The contempt hearing was commenced on January 3, 1991 and was concluded on February 1, 1991. At the close of the hearing, Justice Nastasi rendered his decision from the bench. Justice Nastasi adjudged Mr. Ellman to be in civil contempt and sentenced him to 90 days in the Westchester County Penitentiary.
See Record on Appeal from October 20, 1992 Order, at 89 (which is Exhibit K to Court Doc. No. 27, and hereinafter referred to as "Record"). The Court concluded, however, that Mr. Ellman could purge his contempt and avoid imprisonment if, by February 8, 1991, Mr. Ellman turned over to the New York State Police seventeen certain handguns which he admitted were in his possession at his residence in New Jersey and which the Court concluded had been acquired by him in New York based on his status as a peace officer. Record, at 89-90. Justice Nastasi directed the Attorney General to prepare an Order. Record, at 90-91.
On February 5, 1991, Justice Nastasi reaffirmed on the record, and in the presence of Mr. Ellman, his February 1, 1991 decision and signed a written Order implementing that decision. See Record, at 157-165. The tenth decretal paragraph of that Order states that "if defendant Ellman fails to comply with any of the provisions of this order as they apply to him, defendant Ellman is to be imprisoned in the Westchester County Jail for a period not exceeding 90 days or until discharged according to law." Record, at 164-65.
On February 7, 1991, Mr. Ellman applied to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, for a stay of the February 5, 1992 Order pending appeal, which was denied. He did not surrender the handguns to either the Attorney General's representative or to the New Jersey State Police, and Justice Nastasi issued a Warrant of Arrest for Civil Contempt on February 8, 1991. Record, at 166-169.
On March 21, 1991, the Attorney General moved by Order to Show Cause for an adjudication of criminal contempt based upon Mr. Ellman's "willful disobedience" of the Court's Orders of July 31, 1989 and February 5, 1991. See Record, at 170. By Decision and Order dated May 9, 1991, Justice Nastasi granted the application and imposed a sentence of 90 days on each of two criminal contempt adjudications, to run consecutive to each other and consecutive to the previously imposed 90 day civil contempt. See Court Doc. No. 6, Ex. B. On May 14, 1991, on the Court's own motion, Justice Nastasi modified these sentences "to reflect that the terms of imprisonment for defendant Ellman's criminal contempt shall be thirty (30) days." See Record at 174, 182. On June 7, 1991, Justice Nastasi issued two Warrants for Arrest for the two separate adjudications of criminal contempt. See Record, at 252, 255.
On May 31, 1991, Judge Nastasi "permanently enjoined defendant [Ellman] from serving as an officer, director or agent of any Society for the Prevention of Cruelty to Children." See New York Law Journal, May 21, 1991, at 21. The Court also directed the parties to settle a judgment on notice which provided for the dissolution of the Society. While noting that the Attorney General's remaining requests for relief against Mr. Ellman must be denied as "academic" once the Society is dissolved, the New York Court stated that if "such relief [had] not been granted, the relief sought herein as to defendant Ellman would have been granted in all respects." Id. On August 2, 1991, a Final Judgment dated July 29, 1991 dissolving the Society was entered in the Office of the County Clerk. Record, at 405-407. The Court purported to "retain jurisdiction of the action for the purpose of the enforcement of the Judgment and Order." Id. A timely Notice of Appeal was filed with the Appellate Division ...