the exhaustion requirement] only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief. . . .").
This Court concludes that the petitioner in this case has demonstrated that the remedy available to him in the state court is ineffective to protect his rights. The State Court remedies available to the petitioner in this case are virtually inexhaustible. This is because every ninety days a new Recommitment Order issues. People ex rel. Reamy v. Director Central Islip State Hosp., 35 A.D.2d 595, 313 N.Y.S.2d 434 (2d Dept 1970); Castille v. Peoples, 489 U.S. 346, 350, 103 L. Ed. 2d 380, 109 S. Ct. 1056 (1989) ("It would be inconsistent with [Section 2254(b)], as with underlying principles of comity, . . . permanently to bar from federal habeas prisoners in States whose post-conviction procedures are technically inexhaustible."). There would be no point in sending Mr. Ellman back to the state court to make repetitive and futile efforts to satisfy the exhaustion requirement.
Moreover, the State cannot complain of lack of exhaustion when the State itself was responsible for this failure. See, e.g., Harris v. Kuhlman, 601 F. Supp. 987 (E.D.N.Y. 1985). In this case, without objection from the Attorney General, Justice Nastasi declined to enter an order in appealable form, and instead "so ordered" the transcript of the proceeding in which he decided that Petitioner's 90 day civil contempt sentence was "an indeterminate conditional sentence" and that the Petitioner "would be subject to continuing sentencing. . . ." See Record, at 46-47; 377-378; Court Doc. No. 12, Ex. 6, at 24-25. The Appellate Division, some four months later, to the surprise of no one except possibly the pro se Petitioner, held that this type of "order" is not appealable.
Despite this procedural obstacle thrown in his way, which was not the fault of the Petitioner, the Petitioner attempted to challenge this decision by direct appeal and also by filing a Writ of Prohibition. Both of these avenues of attack were unsuccessful. With respect to the writ of habeas filed in the State Court, Judge Nastasi either failed to or refused to enter an appealable order until January 13, 1993, some four months after that petition had been denied, during which time the Petitioner remained incarcerated. Again, the Petitioner tried, albeit unsuccessfully, to challenge this decision, without an appealable order, by seeking a Writ of Prohibition and also by direct appeal. Thus, the State effectively impeded petitioner's ability to exhaust his state remedies.
We do not fault the Supreme Court Justice for this momentary lapse; we understand that the Supreme Court in Westchester County handles many more cases per judicial officer than any federal court in the nation, and does so with far less supporting personnel. However, the Attorney General of the State of New York, as chief legal officer, had actual and constructive knowledge from the inception that the order was not appealable. A government lawyer dealing with the liberty of a citizen owes such a litigant and the Court something more than merely remaining silent for four months while an incarcerated person acting pro se thereafter attempted to appeal a visibly non-appealable order. Indeed, the entire record reeks of extreme vindictiveness against a person who, in all events, has gone to New Jersey and taken his guns with him. Surely, there are better things to do.
The Attorney General's Office does not dispute these facts. Instead, the Attorney General's Office argues that Petitioner should have exhausted his state remedies, by perfecting, rather than withdrawing the appeals he filed on February 2, 1993, after the state court decided to issue orders in appealable form.
This Court disagrees. At the time this petition was filed in federal Court, the petitioner had already spent 9 months in jail on a civil contempt adjudication. There is no telling how long he would have remained incarcerated if he were required to reargue issues previously presented to the New York appellate courts.
It would be futile to require any further exhaustion in this case. The petitioner has attempted repeatedly to challenge his incarceration, by way of appeals, and a state Writ of Prohibition and a state Writ of Habeas Corpus. As Judge Friendly observed, exhaustion of remedies does not mean exhaustion of the petitioner. United States ex rel Kling v. LaVallee, 306 F.2d 199, 203 (2d Cir. 1962) ("I would not wish to be committed to a rule that when a state prisoner has exhausted all remedies the state had made available to him up to the date when he sought Federal habeas corpus, he must always be sent back on another journey through the state courts if the state, commendably, enlarges its post-conviction remedies thereafter. . . . Always to require a second, not to speak of a third or a fourth [exhaustion] might well invite the reproach that it is the prisoner rather than the state remedy that is being exhausted.")
Exhaustion of remedy is neither a constitutional requirement, nor a jurisdictional limitation on the federal courts. See e.g., Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987); Granberry v. Greer, 481 U.S. 129, 131, 95 L. Ed. 2d 119, 107 S. Ct. 1671 (1987) ("failure to exhaust state remedies does not deprive an appellate court of jurisdiction to consider the merits of a habeas corpus application"). Instead, this procedural requirement to exhaust state remedies is a matter of comity between the federal and state courts. Forbearance is based upon the assumption that the state remedies available to petitioners are adequate and effective to vindicate federal constitutional rights. When, as in this case, those state procedures become ineffective or inadequate, or are deliberately frustrated by state actions, the foundation of the exhaustion requirement is undercut and the federal courts may act.
II. Merits of Claim
Based on the facts set forth above, and the following additional facts which are uncontested, this Court concludes that there was no justification under the Constitution, either procedurally or substantively, for the incarceration of Mr. Ellman.
All evidence in the state court record shows that it was appropriate that the Westchester County Society for the Prevention of Cruelty to Children be dissolved, be required to turn over its own property to the state, and refrain from attempting to exercise any of its corporate or statutory powers. This was accomplished by final judgment of the Supreme Court of Westchester County entered July 29, 1991. Ellman was a party to that litigation only in his representative capacity as an officer and director of the Society. Except for the appeal, this civil dissolution proceeding was then concluded. The Attorney General could have moved to dismiss that appeal for neglect of the Society to perfect it, but he did not.
Both parties agree that Ellman has not been a resident of New York State since approximately November, 1987. Indeed, this fact was relied on affirmatively by the Attorney General in the dissolution proceedings to support the legal conclusion that being a non-resident of the state, Ellman was unauthorized to act as a peace officer for the Westchester Society.
At no point in the state court record is it claimed that the handguns, however many there may be, are the property of the dissolved Society. The contention presented by the Attorney General seems to be that although Ellman purchased the handguns with his own personal funds, whereby they became his own personal property, he was enabled to purchase them without a handgun permit solely because of his status as a peace officer. The conclusion of the Attorney General, a total non-sequitur, is that upon losing his status as a peace officer he lost his property right in the handguns and had to surrender the handguns (then legally held by him in New Jersey) to the New York State Police. There is no jurisprudential basis for this remarkable conclusion, and indeed, the state court did not even attempt to state such a finding or conclusion, or support it with any statutory reference, or by caselaw, when it was first advised by the Attorney General.
It is uncontroverted that at all times, at least since the dissolution of the Society, and at the present time, Mr. Ellman possesses the guns, or some of them, at his residence in New Jersey. This possession is represented to be pursuant to a facially valid permit issued by the State of New Jersey, and the Attorney General of New York presents no evidence to the contrary. See Court Doc. 17 at p. 5 and 19, p.8. The Attorney General of New York has argued before me that this permit was obtained by misrepresentation, and indeed, his office has so informed the New Jersey authorities. This is hardly a basis for the coercive civil contempt power to be exercised in New York. Under our federalism, it is of no legitimate concern to the Supreme Court of Westchester County, New York that a New Jersey resident may be owning and possessing handguns in New Jersey, whether or not under a facially valid permit issued by the State of New Jersey. The New Jersey state government has adequate means at its disposal to enforce peace and tranquility within its own borders, without any need to rely on the efforts of a New York court or the New York Attorney General. It is not the province of the New York Attorney General's Office, or for that matter the Supreme Court of the State of New York, to enforce or interpret the laws of the State of New Jersey pertaining to firearms, whatever they may be.
There is no need for a civil contempt order to protect the public interest in New York State, which is the only legitimate interest of the Attorney General, because should Ellman ever come, armed, within the borders of the State of New York he would immediately be subject to criminal prosecution for the possession of a handgun in the absence of a New York permit.
His continued incarceration to compel compliance with interlocutory orders entered in a New York civil proceeding, which has long since been dissolved, for the dissolution of a corporation, which has long since been concluded, has no possible claim to procedural or substantive due process.
Since it is not disputed that these handguns are Ellman's personal property, there is no way for the state to get them away from him without compensation, in light of the Fourteenth Amendment of the United States Constitution. Guns may not be politically correct property, but they remain property.
Furthermore, these ostensibly civil commitments, at least by now, have developed into a criminal contempt. The confinement is no longer coercive, but punitive in nature, and invokes the right to greater procedural due process, including trial by jury.
There being no further purpose in New York of coercing plaintiff to do anything as of the present time, and petitioner having more than adequately paid his debt to society for whatever criminal contempt he showed to the Supreme Court, it is abundantly clear that the writ should issue.
For the foregoing reasons, this Court grants Mr. Ellman's writ and joins all persons having actual notice from conducting any further prosecutions of civil or criminal contempt of court against Mr. Ellman for any facts pertaining to his firearms existing as of the date of the final judgment to be entered herein. Lest this rather intransigent litigant should misunderstand the force and extent of this court's order, Mr. Ellman must understand that if he were to re-establish his residence in New York State, or simply transport, carry, or possess these or any other handguns within New York State without a lawful New York permit, he will be subject to well deserved criminal prosecution in the New York courts for any such violation.
Settle a final judgment on notice.
Dated: White Plains, New York
October 12, 1993
Charles L. Brieant