motion to dismiss — Winters v. Lavine

Supreme Court, U.

FILED

NOV 24 1976

IN THE

Supreme Court of the United Grate * ox

OCTOBER TERM, 1976

No. 76-407

Miau WINTERS,

Plaintiff -A ppellant,

against

Ase Lavryg, et ano.,

Defendants-A ppellees.

On APPEAL FROM THE Unirep States District Court

FOR THE EASTERN District or New York

MOTION TO DISMISS OR AFFIRM ON BEHALF

OF APPELLEE ABE LAVINE

Louis J. Lerxowrrz

Attorney General of the State of

New York

Attorney for A e Abe Lavine

Office & P.O. Address

Two World Trade Center

New York, New York 10047

Tel. (212) 488-4178

Samus. A. HirsHowrrz

First Assistant Attorney General

Raps L. McMurry

Assistant Attorney General

of Cownsel

—— —

TABLE OF CONTENTS

. y eee

D nie ne Seed eee ne des

I co

D . e

ArcuMEntT—The District Court correctly held that ap-

pellant’s nursing care claim was barred by res

judicata. A majority of the District Court prop-

erly abstained from deciding appellant’s practi-

tioner services claim; in the alternative the com-

plaint should be dismissed ..................

eee esse e dees

ese ess sesess eee

. —̃

TaBLe or Cases

American Surety Co. v. Baldwin, 287 U.S. 156 (1932)

Barsky v. Board of Regents, 347 U.S. 442 (1954) ....

Belotti v. Baird, 44 U.S.L.W. 5221 (7/1/76) ........

Boehning v. Indiana Employees, 423 U.S. 6 (1975)

England v. Board of Medical Examiners, 375 U.S. 411

A 606006 éncuees

Grubb v. Public Utilities Commission, 281 U.S. 470

5 „„en

aon Oo +

ii TABLE OF CONTENTS

Harris County Commrs. Court v. Moore, 420 US. 77

SERED ccccceccecccssceseageseenceteneeuéucee

Kusper v. Pontikes, 414 U.S. 51 (1973) .............

Lake Carriers Assn. v. Mac Mullan, 406 U.S. 498

c

Lecci v. Cahn, 493 F. 2d 826 (2d Cir. 1974)

Lombard v. Board of Education of City of New York,

502 F. 3d GBl (3d Cir. 1974) /

McRedmond v. Wilson, 533 F. 2d 757 (2d Cir. 1976). .

Newman v. Board of Education, 508 F. 2d 277 (2d

Cir.) cert. den. 420 U.S. 1004 (1975) ...........

Preiser v. Rodriguez, 411 U.S. 475 (1973) ..........

Railroad Commission v. Pullman Co., 312 U.S. 496

DT binduekssesba cabebeusedadeasesseaudess

Reetz v. Bozanich, 397 U.S. 82 (1970) ..............

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ...

Sherbert v. Verner, 374 U.S. 398 (1963) ............

Stegel v. National Periodical Pub., Inc., 508 F. 2d 909

Une eee eee esse

Tang v. Appellate Division, 487 F. 2d 138 (2d Cir.

1973), cert. den. 416 U.S. 906 (1974)

Thistlewaite v. City of New York, 497 F. 2d 330 (2d

9K nsécncuasenausdéusnsasouéeonce

Venitron Corp. v. Benjamin, 440 F. 2d 105 (2d Cir.),

cert. den. 402 U.S. 987 (1971) .................

Winters v. Miller, 446 F. 2d 65 (2d Cir. 1971) ......

Statutes Cirep

PP PD noc . ö

New York Social Services Law § 365-a ............

Can =

Ly THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-407

Misiam WInTERs,

against

Ase Lavine, et ano.,

Defendants-A ppellees.

Plaintiff-Appellant,

Ox APPEAL From THE Unttep States District Court

FoR THE Eastern District or New York

1

*

MOTION TO DISMISS OR AFFIRM ON BEHALF

OF APPELLEE ABE LAVINE

Appellee Abe Lavine moves pursuant to Rule 16 of the

Rules of this Court for dismissal of the appeal from the

judgment of the United States District Court for the East-

ern District of New York, entered July 21, 1976, dismissing

the complaint on grounds of res judicata as to one claim

and abstaining as to another claim. In the alternative,

appellee moves for affirmance of the judgment below.

Opinion Below

The opinion below is not reported and is reproduced in

Appellant’s Jurisdictional Statement.

Jurisdiction

Appellant purports to invoke the jurisdiction of this

Court pursuant to 28 U.S.C. 5 1253.

Statute Involved

New York Social Services Law § 365-a.

Questions Presented

1. Whether the District Court correctly ruled that appel-

lant’s constitutional claim for reimbursement for nursing

care was foreclosed by res judicata?

2. Whether a majority of the District Court properly

abstained from deciding appellant’s constitutional claim for

reimbursement for practitioner services, and in the alterna-

tive whether the failure of such practitioners to be licensed

under New York Law constitutes a grounds for dismissing

the complaint entirely?

Statement of the Case

Appellant Miriam Winters purports to be a follower of

the beliefs and practices of the Christian Science faith,

although she is not actually a member of the Church. She

claims not to believe in employing the services and treat-

ments of ordinary medical doctors and nurses in treating

Ulness. Rather, she claims to believe that any illness can

be effectively cured by religious treatments administered

by certain Christian Science practitioners and nurses,

whether or not licensed by the State of New York.

On four different occasions appellant incurred expenses

for the services of Christian Science nurses and practi-

tioners. Each time appellant sought reimbursement from

the New York City Department of Social Services pur-

suant to the New York Medicaid program.

One of the four claims was for reimbursement for

Christian Science nursing services. The claim was denied

by the New York City Department of Social Services in

November, 1973, and the denial was affirmed by the State

Department of Social Services in February, 1974, on the

ground that Social Services Law § 365-a(2) did not au-

thorize such reimbursement. The Appellate Division of

the State Supreme Court affirmed the denial in October,

1975.

The other three claims involved requests for reimburse-

ment for the services of Christian Science practitioners.

In one instance, the State Department of Social Services

granted reimbursement. In another instance, the State

Department denied reimbursement; an appeal to the Ap-

pellate Division was pending at the time of the decision

below. In a third instance, a request for reimbursement

had not been answered at the time of filing the complaint.

Plaintiff contends that her First Amendment right to

pursue her religious beliefs was violated in those instances

in which she was denied reimbursement.

The court below found it unnecessary to reach the merits

of plaintiff’s First Amendment claim. The entire court

found that the doctrine of res judicata barred the claim

for nursing care reimbursement. Two members of the

court found that the doterine of abstention required the

court to stay its hand as to the practitioner reimburse-

ment claim. A third member of the court found that no

First Amendment issue was raised as to reimbursement for

practitioner services since the practitioners in question were

not licensed to practice under New York law.

The disposition of the court below was entirely correct

for the reasons set forth below.

4

ARGUMENT

The District Court correctly held that appellant’s

nursing care claim was barred by res judicata. A

majority of the District Court properly abstained

from deciding appellant’s practitioner services claim;

in the alternative the complaint should be dismissed.

Res Judicata

The entire panel found that appellant’s nursing care

reimbursement claim was barred by the doctrine of res

judicata. In so concluding, the court simply applied ele-

mentary and established principles of law to a simple set

of facts. It has been widely held, as this Court noted in

Preiser v. Rodriquez, 411 U.S. 475, 497 (1973), that the

doctrine of res judicata, based on State court determina-

tions, may be applied in federal civil rights actions. See,

also Thistlewaite v. City of New York, 497 F. 2d 330 (2d

Cir. 1974); American Surety Co. v. Baldwin, 287 U.S. 156,

164-165 (1932) (Full Faith and Credit Clause requires that

State court judgments be given the same res judicata ef-

fect in Federal court as in State court, even when federal

constitutional questions are involved). Appellant cites no

authority to the contrary. Newman v. Board of Education,

508 F. 2d 277 (2d Cir.) cert. denied, 420 U.S. 1004 (1975),

cited by appellant, is totally inapposite, since there the

Court of Appeals found that plaintiff had failed completely

to raise her federal constitutional claims in State court.

In this case the court below found, after an examination

of the briefs submitted by both parties to the Appellate

Division, First Department, that the appellant’s nursing

reimbursement claim of unconstitionality was “clearly and

explicitly” submitted to that court in her Article 78 pro-

ceeding in State court.

Appellant does not now deny that her constitutional

claim was presented to the State court. Rather, she

“rgues that her claim was made in the context’’ of a

„

*

5

state law claim, and implies that the claim was merely men-

tioned in State court. However, appellant offers no evi-

dence to support that view.* Further, the court below

was well aware that mere mentioning of a constitutional

claim in State court would be insufficient for res judicata

purposes, citing Newman v. Board of Education, supra.

The Court ruled that elaboration of the claim with sup-

porting citations of authority would be required (A. 49),

and appellant does not dispute that her claim was not

elaborated in this fashion.

Appellant claims that the opinion of the Appellate Divi-

sion does not mention any constitutional issue. This, of

course, is irrelevant for purposes of res judicata analysis.

Grubb v. Public Utilities Commission, 281 U.S. 470, 477-

478 (1930). Accord, Lecci v. Cahn, 493 F. 2d 826, 830 (2d

Cir. 1974); Tang v. Appellate Division, 487 F. 2d 138, 141,

n. 2 (2d Cir. 1973) cert. den. 416 U.S. 906 (1974). As the

Court below correctly noted, under State law a final judg-

ment on the merits is conclusive as to the rights of all

parties with respect to issues actually raised and litigated

even if not decided by the court and has res judicata effect.

Under the authorities discussed above such res judicata

effect would, of course, apply in a federal civil rights

action.

* The appellant’s Ap te Division Brief, on which the Court

below based its concl that the claim had been “cl and

explicitly” presented to the state courts, has not been included in

appellant’s jurisdictional statement. However, it is clear that

that brief did not simply “mention” the constitutional claim as

was the case in Newman, supra. Rather, one of the two main

“Poms” in the brief was entitled, “The Decision of the Depart-

ment of Social Services Not to Authorize Public Assistance for

ing Care is Violative of the

issue,

Verner, supra, and Winters v. Miller, 446 F. 2d 65 (2d Cir. 1971).

6

In this connection, it must be noted that the Appellate

Division found, inter alia, that there was “insufficient [sie

probably should be ‘‘evidence’’] in the record to indicate

either the nature of her illness or of the treatment which

she received.“ (A. 111). Apart from any alleged constitu-

tional issue, it is clear that this factual determination is

final and binding on a Federal court; appellant may not

relitigate the sufficiency of her evidence in Federal court.

Siegel v. National Periodical Pub., Inc., 508 F. 2d 909, 913

(2d Cir. 1974); Fenitron Corp. v. Benjamin, 440 F. 2d

105, 108 (2d Cir.), cert. den. 402 U.S. 987 (1971) in accord,

Rooker v. Fidelity Trust Co., swpra.

In view of all the above circumstances, and since the

parties in the Federal and State proceedings were identi-

cal, the conclusion that res judicata applied in the § 1983

action was inexorable.*

A related issue in this case and not recognized by appel-

lant is the question of primary forum choice. Having

chosen to litigate federal claims in a state forum, no salu-

tary purpose is served by ignoring the State court’s dis-

position and relitigating the issue all over again in Fed-

eral court. England v. Board of Medical Examiners, 375

U.S. 411 (1964). ‘“‘[W]here a constitutional issue is ac-

tually raised in the state court . . the litigant has made

his choice and may not have two bites of the cherry.“

Lombard v. Board of Education of City of New York, 502

F. 2d 631, 636-637 (2d Cir. 1974). See also Tang v.

Appellate Division, supra; Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923). A second bite at the cherry is pre-

cisely what appellant is seeking.

dann ee nm: aime thet the State Court of Appesis sus sponte

lismissed an appeal to that Court because “no substantial ques-

tion is directly involved” (A. 112). According to the appendix,

that decision was rendered April 29, 1976. The subsequent opinion

of the court below (A. 50) suggests that that court was unaware

of this. In any event, in view of the disposition of the State

Court of Appeals, the authorities and reasoning of the court below

remain fully applicable.

Abstention

As to the claims for reimbursement for practitioner

services, two members of the panel (Hays, C.J. and

Barres, D. J.), found that the court should abstain. This

conclusion was entirely correct. In deciding to abstain

the majority simply applied basic principles of law to an

uncomplicated set of facts.

When a constitutional claim involving a state statute is

at issue, it is appropriate for a Federal court to abstain

when (1) the state statute involved is unclear or its in-

terpretation uncertain; (2) the resolution of the constitu-

tional issue must depend on the interpretation of state

law, and (3) the state law must be susceptible to an inter-

pretation which would avoid the federal constitutional

issue. See Railroad Commission v. Pullman Co., 312 U.S.

496 (1941); Kusper v. Pontikes, 414 U.S. 51, 54 (1973);

Lake Carriers Assn. v. Mac Mullan, 406 U.S. 498 (1972);

Reetz v. Bozanich, 397 U.S. 82 (1970); McRedmond v. Wil-

son, 533 F. 2d 757 (2d Cir. 1976).

In this case, all three conditions were present. As the

majority below noted, the State Department of Social Serv-

ices had taken contradictory action on two identical claims

for reimbursement of practitioner services. Thus, plainly

the statute in question was unclear. As to the other two

criteria, the majority below noted that the terms of the

statute were broad and non-exclusive and would be sus-

ceptible to an interpretation favorable to appellant and

which would save the constitutional question. The ma-

jority further noted that such an interpretation was a dis-

tinct possibility since appellant had already one favorable

ruling by the State Department of Social Services. Clearly,

all the prerequisites for abstention were present here.

On numerous recent occasions, conveniently ignored by

appellant, this Court has ordered abstention in a wide

variety of contexts where the State statute was unclear

or susceptible to an interpretation that would save the

constitutional issue. Belotti v. Baird, 44 U.S.L.W. 5221

8

(7/1/76); Boehning v. Indiana Employees, 423 US. 6

(1975); Harris County Commrs. Court v. Moore, 420 U.S.

77 (1975). The same principles are clearly applicable to

the case at bar.

Appellant urges that she is in a procedural box, and

that the court below has in effect told her that both going

and not going to State courts” prevents vindication of her

federal rights. This claim is without merit.

Appelant appears to be deliberately confusing and mix-

ing the nursing reimbursement claim and the practitioner

reimbursement claim.* It is important to separate these

two claims. The res judicata portion of the Court’s rulin

applies only to the nursing“ constitutional claim, whic

was litigated in State court. The “abstention” portion of

the decision applies only to the ‘“‘practitioner’’ consti-

tutional claim. As of the decision of the court below, no

state court decision had yet been rendered on the New

York Statute’s applicability to Christian Science practi-

tioners.

Thus, appellant faces no “dilemma” here, as there is no

“deadly combination” of res judicata and abstention. The

court below applied these concepts to two separate claims.

The purpose of abstention is to afford state courts a

chance to interpret or clarify state law so as to avoid con-

stitutional questions. The purpose is not to afford state

courts a chance to pass on federal constitutional claims.

Thus, the res judicata bar will not arise in a case in which

a Federal court abstains unless the claimant chooses to

* See First “Question Presented,” Jurisdictional Statement, p.

5; see letter of counsel to three-judge court dated August 10, 1976

(A. 126), referring to footnotes “8” and “9” of the Court’s deci-

sion and suggesting that abstention is no longer appropriate. In

fact, footnotes “8” and “9” were footnotes to a discussion of the

— o the decision on which turned on res judicata, not

abstention. The Court below evidently apprised counsel of his

error in a “phone call” (Jurisdictional Statement, p. 9), —

appellee herein was not privy to this phone call.“ See also su

5 entitled Deadly Combination” (Jurisdictional Statement,

p. 5

— eee

litigate fully in State court not only his state law claims

but his federal constitutional claims, as appellant did with

her nursing care claim. Thus, there is no procedural box

here.

Appellant says she only wants her day in court. As to

the nursing claim, appellant has already had her day in

court. As to the practitioners claim, she is being afforded

her day in court. 1

Judge Dooling’s concurring opinion“ on the question of

reimbursement for practitioner services is a valid inde-

pendent basis for dismissing the complaint entirely. Judge

Dooling found that as to these practitioner claims no con-

stitutional issue was raised since appellant’s practitioners

were not licensed under New York Law and the State had

the right to license practitioners of medicine provided there

was no blanket exclusion of therapies in which prayer or

beliefs are the active agents simply because, and for no

other reason, the agent is characterized as “religious.” In

view of the State’s broad discretion in the exercise of its

police power especially in the field of health, such a conclu-

sion was entirely correct. Barsky v. Board of Regents,

347 U.S. 442, 449 (1954).

* Incorrectly referred to by appellant as a “dissent.” See

Jurisdictional Statement, p. 17.

10

CONCLUSION

The appeal from the judgment below should be

dismissed. In the alternative, the judgment below

must be affirmed.

Dated: New York, New York, November 19, 1976.

PRespectfully submitted,

Louis J. Lerxowirz

Attorney General of the State of

New York

Attorney for Appellee Abe Lavine

Sauukl A. HirsHowiTz

First Assistant Attorney General

Ralrn L. McMurry

Assistant Attorney General

of Counsel