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Romero v. Pataki


March 31, 2006


The opinion of the court was delivered by: William H. Pauley III, District Judge:


Plaintiff Jose Antonio Romero ("Plaintiff") brings this putative class action challenging the constitutionality of New York Executive Law § 632-a ("Section 632-a"). In 2004, pursuant to that statute, the New York State Supreme Court preliminarily enjoined Plaintiff from disbursing certain funds. With this action, Plaintiff seeks declaratory relief and an injunction prohibiting the further application of Section 632-a against him. Two groups of defendants separately move to dismiss the Second Amended Complaint (the "Complaint") pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons that follow, Defendants' motions are granted.


I. The "Son of Sam" Law

In response to efforts by convicted serial killer David Berkowitz to profit from the sale of book and movie rights to his story, in 1977 the New York State legislature enacted the so-called "Son of Sam" Law. The original Son of Sam Law required any party contracting with an accused or convicted person for a depiction of his crime to submit to New York State's Crime Victims Board (the "Crime Victims Board" or the "Board"): (1) a copy of the contract, and (2) any payments that the accused or convicted person would receive under that contract. The Board was required to hold those funds in an escrow account "for the benefit of and payable to any victim . . . provided that such victim, within five years . . . br[ought] a civil action . . . and recover[ed] a money judgment." If no action was commenced during that five-year period, the funds were released to the accused or convicted person.

In 1991, the Supreme Court struck down that version of the Son of Sam Law as violative of the First Amendment because it "singled out speech on a particular subject for a financial burden that it places on no other speech and no other income." Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 123 (1991). To remedy that constitutional infirmity, in 1992 the New York legislature enacted a new version of the statute that broadened its scope to include any income generated from a crime. The law was broadened further in 2001 to permit a crime victim to receive compensation from any funds that a convicted felon might obtain without regard to their source, even those unrelated to his or her crime.

As currently codified at Section 632-a, the Son of Sam Law provides a victim of a felony three years to file a civil action from the time he discovers that the person convicted of that crime has received "profits from a crime" or "funds of a convicted person." N.Y. Exec. Law § 632-a(3). "Profits from a crime" are defined as those funds that derive directly from the commission of a felony. N.Y. Exec. Law § 632-a(1)(b). "Funds of a convicted person" broadly encompasses "all funds and property received from any source by a person convicted of a [felony] . . . excluding child support and earned income." N.Y. Exec. Law § 632-a(1)(c).

Additionally, the statute obligates any person or entity paying "profits of a crime" or "funds of a convicted person" in excess of $10,000 to notify the Crime Victims Board in writing. N.Y. Exec. Law § 632-a(2)(a). The Board, in turn, must notify the convicted person's known victims. N.Y. Exec. Law § 632-a(2)(c). A crime victim can either file a civil suit against the convicted person or notify the Crime Victims Board of his or her intention to do so within the three-year period. N.Y. Exec. Law § 632-a(4). Upon either event, the Crime Victims Board "shall immediately take such actions as are necessary to . . . avoid the wasting of the assets."

N.Y. Exec. Law § 632-a(5)(c). The remedies available to the Board include attachment, injunction, receivership, notice of pendency and any other remedy available to the victim plaintiff. N.Y. Exec. Law § 632-a(6).

The statute also authorizes the Board to proceed directly against any person or entity paying "profits of a crime" or "funds of a convicted person" who fails to give the Board the notice required by N.Y. Exec. Law § 632-a(2)(a). N.Y. Exec. Law § 632-a(7). The Board can impose on the payer "an assessment of up to the amount of the payment or obligation to pay and a civil penalty," the funds from which are to be held in an escrow account for the benefit of the crime victims. N.Y. Exec. Law § 632-a(7)(b).

II. The Instant Action

In 1987, Plaintiff was convicted of manslaughter for the death of Javier LaBron ("LaBron") and sentenced to a maximum term of 18 years in New York State prison. (Second Amended Complaint ("Compl.") ¶ 2; Declaration of Jeb Harben, dated Apr. 15, 2005 ("Harben Decl.") Ex. A: Sentence & Commitment, dated June 25, 1987.) In 1999, Plaintiff's wife died during childbirth and her mother commenced a wrongful death action. (Compl. ¶ 9.) The parties settled that suit for $1.35 million, of which Plaintiff received $250,000 pursuant to a January 21, 2004 decree of the Surrogate's Court. (Harben Decl. Ex. B.) As required by § 632-a(2), the Surrogate's Court notified the Crime Victims Board that Plaintiff would be receiving these funds.

The Board, in turn, identified LaBron's daughters, Aida M. Quiles ("Quiles") and Angela Gutierrez ("Gutierrez"), as the "crime victims" under the statute and notified them of the settlement proceeds. On April 23, 2004, Quiles and Gutierrez informed the Board that they intended to pursue a civil claim against Plaintiff. (Harben Decl. Ex. D.) On April 29, 2004, as mandated by § 632-a(5), the Board initiated a suit in New York Supreme Court, Albany County to restrain Plaintiff's portion of the settlement funds. (Harben Decl. Ex. C.) On September 15, 2004, Justice Thomas J. McNamara issued a preliminary injunction pursuant to Section 632-a prohibiting Plaintiff and his garnishees from disposing of the funds.*fn1 (Harben Decl. Ex. I.) Plaintiff did not appeal and the preliminary injunction remains in effect. Quiles and Gutierrez have not initiated a proceeding against Plaintiff.

Plaintiff commenced this federal civil rights action on June 4, 2004. The Second Amended Complaint, filed on January 10, 2005, names as defendants the Governor, Attorney General and Deputy Attorney General of the State of New York and the members of the Crime Victims Board (collectively, the "New York State Defendants"). Plaintiff also asserts claims against Quiles and Gutierrez (together with the New York State Defendants, the "Defendants"). Plaintiff claims that the application of Section 632-a violates his First, Fifth, Eighth and Fourteenth Amendment rights and constitutes a bill of attainder and an ex post facto law in violation of Article I of the Constitution. Plaintiff seeks to enjoin Defendants from enforcing Section 632-a against him and all others similarly situated. Plaintiff further seeks a declaration that Defendants conspired to deprive him of his property rights and that the New York State Defendants acted with deliberate indifference to his constitutional rights.


The New York State Defendants and Quiles and Guitterez each move to dismiss the Complaint on myriad grounds. Because this Court holds that it must abstain from adjudicating certain of Plaintiff's claims pursuant to Younger v. Harris, 401 U.S. 37 (1971), and that the remainder of Plaintiff's claims are not ripe for adjudication, this Court addresses only those grounds for dismissal.

I. Younger Abstention

In Younger, an individual being criminally tried in California state court commenced a federal action to enjoin that prosecution on the ground that the criminal statute was unconstitutional. 401 U.S. at 39. The Supreme Court held that, absent certain exceptions not applicable here, a federal court should not stay or enjoin an ongoing state criminal proceeding "when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Younger, 401 U.S. at 43-44. The Supreme Court has extended the Younger doctrine to federal declaratory judgment actions that affect ongoing state criminal proceedings, Samuels v. Mackell, 401 U.S. 66, 69-74 (1971), and to federal actions that affect ongoing state civil proceedings implicating important state interests, Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987).

Thus, "Younger generally requires federal courts to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings." Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002). Where a federal plaintiff brings a broad facial attack on a state statute, it creates a "threat to our federal system of government posed by 'the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes.'" Moore v. Sims, 442 U.S. 415, 429 (1979) (quoting Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 471 (1945)). As the Supreme Court explained:

State courts are the principal expositors of state law. Almost every constitutional challenge . . . offers the opportunity for narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests. When federal courts disrupt that process of mediation while interjecting themselves in such disputes, they prevent the informed evolution of state policy by state tribunals.

Moore, 442 U.S. at 429-30.

Following Younger and its progeny, a court must abstain when: (1) there is an ongoing state proceeding; (2) an important state interest is implicated; and (3) the plaintiff has an open avenue for review of constitutional claims in state court. Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001); Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 105 (2d Cir. 1997); Hansel v. Town Court for the Town of Springfield, 56 F.3d 391, 393 (2d Cir. 1995).

Plaintiff represents that he does not challenge the preliminary injunction issued by the New York State Supreme Court. (Plaintiff's Memorandum in Opposition to Motions to Dismiss ("Pl. Mem.") at 16; Tr. at 7-8.) At the same time, Plaintiff describes his claims as "directed to the statutory scheme as a whole." (Pl. Mem. at 18.) Moreover, the Complaint identifies § 632-a(1)(e)'s definition of "specified crime" as "constitutionally offensive." (Compl. ¶ 20.) It is that provision that brings Romero within the scope of Section 632-a and thereby supplies the legal basis for the preliminary injunction.*fn2

To the extent Plaintiff seeks to attack the preliminary injunction collaterally by impugning the constitutionality of Section 632-a, this Court must abstain under the Younger doctrine. This action involves an important interest of the State of New York. This Court's adjudication would interfere with an ongoing state court proceeding in which Plaintiff has an open avenue to raise his constitutional defenses.

A. Ongoing State Proceeding

Plaintiff argues that there is no ongoing state proceeding in New York State court because the Crime Victims Board has already obtained the relief it sought. This Court disagrees.

A preliminary injunction is by definition provisional relief in contemplation of further proceedings. The state court's order does not set a date on which the injunction will automatically dissolve (Harben Decl. Ex. I), and the case remains open on the court's docket. Further, in New York State practice, a party seeking to vacate a preliminary injunction must make an application to "the judge who granted it," unless that judge is absent or disabled. N.Y. C.P.L.R. 6314; accord Morris v. 702 East Fifth Street HDFC, 8 A.D.3d 27, 29, 778 N.Y.S.2d 20, 22 (1st Dep't 2004) ("[T]he CPLR provides that a party enjoined by a preliminary injunction may move at any time to vacate or modify it, upon notice to the other party."); see also N.Y. C.P.L.R. 2221(a) ("A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order."). The New York State Supreme Court therefore maintains sole jurisdiction over the preliminary injunction in the ongoing proceeding initiated by the Crime Victims Board.*fn3

Additionally, even when a claim has been adjudicated in the state trial court, Younger abstention is mandated if the federal plaintiff has not exhausted his state appellate remedies. Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975); Kirschner v. Klemons, 225 F.3d 227, 234 (2d Cir. 2000) ("The Supreme Court has clearly held that a would-be plaintiff who has been subjected to a state proceeding which he seeks to challenge in federal court must first exhaust all available state appellate remedies."); see also Harris v. New York State Dep't of Health, 202 F. Supp. 2d 143, 154 (S.D.N.Y. 2002). At the time he commenced this action, Plaintiff was able to appeal the preliminary injunction but failed to do so. See N.Y. C.P.L.R. 5513(a) (stating that an appeal of right must be taken within thirty days after service of the order); N.Y. C.P.L.R. 5701(a)(2)(i) (stating that an order is immediately appealable if it "grants, refuses, continues, or modifies a provisional remedy"). Since Plaintiff failed to exhaust his available state appellate remedies before bringing this federal action, this Court is required to abstain. See Huffman 420 U.S. at 608; Kirschner, 225 F.3d at 234; Harris, 202 F. Supp. 2d at 154.

B. Important State Interest

For Younger abstention to be warranted, the federal action must implicate an important state interest. Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100-01 (2d Cir. 2004); Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 75 (2d Cir. 2003). The Supreme Court has recognized that New York's Son of Sam Law addresses the state's "compelling interest in ensuring that victims of crime are compensated by those who harm them." Simon & Schuster, 502 U.S. at 118; see also Ciafone v. Kenyatta, 807 N.Y.S.2d 114, 121 (2d Dep't 2005); Snuszki v. Wright, 193 Misc. 2d 490, 494 (N.Y. Sup. Ct. 2002), aff'd, 767 N.Y.S.2d 749 (4th Dep't 2003); New York State Crime Victims Bd. v. Majid, 193 Misc. 2d 710, 714 (N.Y. Sup. Ct. 2002). Because Plaintiff challenges the constitutionality of Section 632-a, this action implicates an important state interest.

C. Open Avenue for Review

State courts are fully competent to hear constitutional challenges to state statutes. See Moore, 442 U.S. at 430; Spargo, 351 F.3d at 78-79; Capellan v. Riley, 975 F.2d 67, 72 (2d Cir. 1992) (noting that New York courts are "fair and competent forums for the adjudication of federal constitutional rights" (internal quotation omitted)). In fact, New York courts have considered constitutional challenges to Section 632-a. See Ciafone, 807 N.Y.S.2d at 117-22 (upholding the constitutionality of Section 632-a in a proceeding for damages brought by crime victims); Snuszki, 193 Misc. 2d at 492-95 (same); Majid, 193 Misc. 2d at 713-15 (rejecting constitutional challenges to the provisions authorizing the Crime Victims Board to seek provisional relief).

Accordingly, to the extent Plaintiff challenges the preliminary injunction issued by the state court and the provisions of Section 632-a upon which it was issued, this Court must abstain.

II. Ripeness

Plaintiff also challenges provisions of Section 632-a other than those authorizing the Crime Victims Board to seek a preliminary injunction. Those claims are not ripe for review.

"For a case to be deemed justiciable under Article III, it must be ripe. Indeed, ripeness is a constitutional prerequisite to exercise of jurisdiction by federal courts." Marchi v. Bd. of Coop. Educ. Servs. of Albany, 173 F.3d 469, 478 (2d Cir. 1999) (citations and internal quotation omitted); accord Ohio Forrestry Ass'n v. Sierra Club, 523 U.S. 726, 732 (1998); Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005); AMSAT Cable Ltd. v. Cablevision of Conn. Ltd. P'ship, 6 F.3d 867, 872 (2d Cir. 1993). The ripeness doctrine's "basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967); see also Motor Vehicle Mfrs. Ass'n v. N.Y. State Dep't of Envtl. Conservation, 79 F.3d 1298, 1305 (2d Cir. 1996) (noting that the doctrine "prevents the premature adjudication of issues that may never arise").

In determining whether a challenge to a law is ripe for judicial review, a court must consider: (1) whether the issue is fit for adjudication and (2) the hardship to the plaintiff that would result from withholding review. Abbott Labs., 387 U.S. at 149; Marchi, 173 F.3d at 478; Motor Vehicle Mfrs. Ass'n, 79 F.3d at 1305. For a justiciable case or controversy to exist, "the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation omitted).

Particularly when a plaintiff seeks to invalidate a law, the court must ensure that the claim is ripe to protect legislative bodies from federal judicial interference where no injury has been sustained. Moore, 442 U.S. at 428-29; see also Motor Vehicle Mfrs. Ass'n, 79 F.3d at 1305. "Where a party seeks to challenge a statute or policy prior to its enforcement, the ripeness doctrine requires that the challenge grow out of a 'real, substantial controversy between parties' involving a 'dispute definite and concrete.'" Marchi, 173 F.3d at 478 (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)); accord In re Bean 252 F.3d 113, 118 (2d Cir. 2001).

Plaintiff asserts that his claims are fit for review because he is "imminently threatened with an action pursuant to § 632-a." (Pl. Mem. at 41.) Specifically, Plaintiff contends that the fact that Quiles and Gutierrez have notified the Crime Victims Board of their intent to file suit places Plaintiff in imminent danger of having Section 632-a applied against him. However, "an Article III court cannot entertain a claim which is based upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir. 1998) (internal quotation omitted)); see Motor Vehicles Mfrs. Ass'n, 79 F.3d at 1305 ("The likelihood -- or even the possibility -- [of a particular occurrence] makes plaintiffs' claim entirely hypothetical and unfit for adjudication."). In a similar scenario, the New York Supreme Court held a convicted felon's constitutional challenge to Section 632-a unripe for adjudication. Majid, 193 Misc. 2d at 712-13. In Majid, the defendant raised constitutional challenges to Section 632-a during the Crime Victims Board's action for a preliminary injunction under § 632-a(6). Even though the victims in that case had already notified the Board of their intent to file suit, the court held that the constitutional claims were not ripe because no such action had commenced. Majid, 193 Misc. 2d at 712-13; see Motor Vehicle Mfrs. Ass'n, 79 F.3d at 1305-06 (holding that the plaintiffs' challenges to the validity of a state regulation were unripe because the regulation had not yet been implemented and therefore had not yet caused the anticipated injury to the plaintiffs).

Here, to the extent Plaintiff challenges aspects of Section 632-a other than the provisions authorizing the temporary restraint on his assets, any injury is pure conjecture. Notwithstanding Quiles and Gutierrez's notification to the Board, it remains uncertain whether they will bring a tort action against Plaintiff. Section 632-a does not obligate a crime victim to commence a civil action after giving the Board notice of her intention to do so. As such, Plaintiff's preemptive claims invite "the premature adjudication of issues that may never arise." Motor Vehicles Mfrs. Ass'n, 79 F.3d at 1305.*fn4

The second factor this Court must consider is the hardship, if any, that Plaintiff would undergo if his claims were not adjudicated at this time. See Motor Vehicle Mfrs. Ass'n, 79 F.3d at 1305. Where a plaintiff will be able to bring his claims in the future, there is no present hardship to the plaintiff in denying jurisdiction. Am. Sav. Bank, FSB v. UBS Fin. Servs., Inc. 347 F.3d 436, 440 (2d Cir. 2003); Lennon v. Seaman, 84 F. Supp. 2d 522, 527 (S.D.N.Y. 2000). Here, Plaintiff may raise his broad constitutional challenges to Section 632-a in any tort proceeding brought by Quiles and Gutierrez or any action brought by the Board to impose a civil penalty.

Accordingly, Plaintiff's challenges to Section 632-a are not ripe, except to the extent Plaintiff contests the statute's authorization of provisional remedies. As discussed supra, for prudential reasons, that claim cannot be adjudicated in this forum because Plaintiff has an open avenue in the New York Supreme Court.


For the foregoing reasons, Defendants' motions to dismiss the Second Amended Complaint are granted. The Clerk of the Court is directed to mark this case closed.



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