Petition — Clifford v. Susan B.

Supreme Court brief1980

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IN THE

Supreme Court of the United States

October Term, 1979

Francis Cuirrorp, Commissioner of the Department of

Health of Niagara County, N. Y.,

Petitioner,

Susan B., Donna Marte Haziett and Emma G., on their

own behalf and on behalf of ali others similariy situated,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Joun V. Smmon

Niagara County Attorney

Counsel for Petitioner

Niagara County Office Building

Lockport, New York 14094

(716) 439-6171

MicHareit A. Gotp

Assistant County Attorney

Frank J. Moran

A. LAwRENCE WASHBURN, JR.

Special County Attorneys

of Counsel

February 27, 1980

PR AE LOIN) MTT

INDEX

I a cndenwaninbersccenses

ESE ELLE LT

Jurisdiction

I ces sccennecneneee

Question Presented 4

P| G:F

a eoscmennoucnce 11

REASONS FOR GRANTING THE WRIT:

The Federal Question of Abstention Herein Has

Been Decided Below in a Way Which Is In

Direct and Irreconciliable Conflict With the

Applicable Decisions of This Honorable Court 12

The Federal Question of Justiciability Herein

Has Not Heretofore Been Specifically Deter-

mined by This Honorable Court ........................ 13

Conclusion .. ; ee

Appendix A—Constitutional, Statutory and Local

Law Provisions Involved A-1

N. Y. Const., Art. IX A-1

Local Law No. 7 of Niagara County .. A-l

Appendix B—Additional Statutory Provisions .......... A-14

Municipal Home Rule Law A-14

Statute of Local Government A-15

SS A-15

PAGE

Appendix C—Order of Mr. Justice Marshall, dated

January 25, 1980, extending (ime to file this Petition A-16

Appendix D—Judgment of the United States Court

of Appeals for the Second Cireuit, dated October

30, 1979 .. A-17

Appendix E—Memorandum and Order of the United

States District Court for the Western District of

New York (Elfvin, J.), dated December 15, 1978 .... A-19

Appendix F—Opinion of the Hon. John C. Brough-

ton of the Supreme Court of the State of New

York, dated February 15, 1979 0... eeeeceeeeeee A-23

Appendix G—Memorandum and Order of the United

States District Court for the Western District of

New York (lfvin, J.), dated May 23, 1979.00.00... A-30

TABLE OF AUTHORITIES

Cases:

Adler v. Deegan, 251 N.Y. 467 (1929) an? ae

Askew v. Hargraves, 401 U.S. 476 (1971) ~.0.00.222.02...-.- 12

Breisch v. Central R., Co., 312 U.S. 484 (1941) -........... 16

City of Covington v. First National Bank, 198 U.S. 100

(1905) 17

City of Meridian v. Seathaen Bell Tel. & Tel., 358 U.S.

639, 641 (1959) ..... 4 15

Dept. of Social Services v. Dimery, 320 F. Supp. 1125

vacated and rem., 398 U.S. 322 (1970) 15

Doe v. Luckhard, 493 F2d 54 (CA 4, 1974) 0. 19

England v. La. State Board of Medicine, 375 U.S. 411,

419 (1964) 16,18

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) .......... 13, 17,19

Frasch v. Moore, 211 U.S. 1 (1908) 17

PAGE

Hagans v. Lavine, 415 U.S. 528 (1974) .... mee 13

Harris County Commrs Court v. sty 420 U.S. 77

(1975) 12, 15, 18

Hayburn’s Case, 2Dall. 408 (1792) RES aes RM ee Oa 17

Kolecki et al v. County of Niagara, igh AiO A23-

BR DRIER ey Piet TER Le © Bent Pe aa Ree ET 17

Lecci v. Cahn, 493 F2d 826 (CA2, 1974) shee 16

Lockport v. Citizens for Community Action, 430 U.S.

ya tg 3 a eer 10

Lombard v. Board “3 Education, 502 F2d 631 (CA 2,

1974) siniscibeeidhainicdaaibabiisis 17

Manes v. Goldin, 400 F. Supp. 23, affirmed without

opinion, 423 U.S. 1068 (1976) 10, 19

Matter of Elm Street, 246 N.Y. 72, 158 N.E, 24 ............ 8

McCune v. Frank, 521 F2d 1152 (CA2, 1975) -020.. 17

Murrow v. Clifford, 502 F2d 1066 (CA3, 1974) ............ 19

Oklahoma Packing Co. v. Oklahoma Gas & Electric

Co., 309 U.S. 4 (1940) ii 17

Pierce v. Cook & Co., 518 F2d 720 (CA 10, 1975) ........ 17

Railroad Comm’n. v. Pullman Co., 312 U.S. 496 (1941) 7, 14

Red Cross’ Line vy. Atlantic Fruit Co., 264 U.S. 109

(1924) 16

Reetz v. Bozanich, 397 U.S. 82 )7970) ................ 12, 13,14, 15

Robin v. Incorporated Village of Hempstead, 30 N.Y.

Oe CE ie ccnriccttepeceinrercpinenigoretiimentesennien 5, 6, 10

Siler v. Lowsville & Nashville Ry. Co., 213 U.S. 175

(1999) 13

Sonmax Inc. v. City of New York, 43 N.Y. 2d 253

CREED ‘aterm ... 10, 18

Sterling v. Constantin, 287 U.S. 378 (1932) ............ 13, 14, 19

Tipton v. Atchinson, Topeka, etc. R. Co., 298 U.S. 141,

BE CRED seeetcrepainrcirnienaiiccentenitencehetinitinninie 16

PAGE

UMW v. Gibbs, 383 U.S. 715, 726 (1966) 13

Union & Planters Bank v. Memphis, 189 U.S. 71

(1903) 16

United States v. Bedford, 519 F2d 650, 654 (CA3,

1975) 16

United States v. Ferreira, 13 How. 39, 51-53 (1851)... 17

United States v. Yale Todd, (1794) “ere |

White v. Edgar, 320 A2d 668 (Me., 1974) 15

Wright v. Georgia R. R. & Banking Co., 216 U.S. 420

(1910) 16

Constitutions and Statutes:

Local Law No. 7 of Niagara County .................-.-.... passim

N. Y. Const., Art. IX : passim

Municipal Home Rule Law sal ; A-14

Statute of Local Governments ............... A-1, A-15

Public Health Law A-15

SO UFR. RIAD etiicaiicectec lite emadeeeitainn msienes 4

28 U.S.C. 1331 4

BS TAR. TIP -wsiieecccnsianigiaion 4

28 U.S.C. 2201 5

42 U.S.C. 1983 4,5

US. Const. Art P¥, $4 ccs 16

U.S. Const., First, Fourth, Fifth, and Ninth

Amendments and the Equal Protection Clause of

the Fourteenth Amendment -.0.00..20.....-eeceseeceeeeeeeee 5

OE ee

PAGE

Other Authorities:

Comment, “Home Rule: A Fresh Start,” 14 Buff.

L. Rev. 484, 488 (1965) 9

Comment, “Municipal Home Rule in New York,” 22

Syracuse L. Rev. 736 (1970) 9

“Developments in the Law-Section 1983 and Feder-

alism,” 90 Harv. L. Rev. 1133 15

Diamond, “Some Observations on Local Govern-

ment in New York State,” 8 Buff. L. Rev. 27

(1958) 9

Field, “Abstention in Constitutional Cases: The

Scope of the Pullman Abstention Doctrine,” 122

v. Pa, L. Rev. 1071 15

Grad, “The New York Home Rule Amendment—a

Bill of Rights for Local Government?,” Local

Government Law Service Letter, June, 1964

(quoted, 66 Col. L. Rev. 1152, note 44) ...................- 9

Note, “Home Rule and the New York Constitution,”

66 Col. L. Rev. 1145 (1966) ne 9

rae “Constitutional City Home Rule in New

Part I—54 Col. L. Rev. 311 (1954) ..........02... 9

Part II—55 Col. L. Rev. 598 (1955) .................... 9

IN THE

Supreme Cowt of the United States

October Term, 1979

Francis Cuirrorp, Commissioner of the Department of

Health of Niagara County, N. Y.,

Petitioner,

Susan B., Donna Marie Hazitetr and Emma G., on their

own behalf and on behalf of all others similarly situated,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Francis Clifford, Commissioner of the De-

partment of Health of Niagara County, New York respect-

fully prays that a Writ of Certiorari issue to review the

judgment of the United States Court of Appeals for the

Second Circuit entered October 30, 1979 which affirmed a

final judgment entered June 21, 1979 by the United States

District Court for the Western District of New York

(Elfvin, J.) holding a local law of the County of Niagara

(Local Law No. 7, 1978) unconstitutional under Home Rule

Article of the New York State Constitution (Article IX).

Preliminary Statement

The Petitioner, Francis Clifford, Commissioner of the

Department of Health of Niagara County, New York has

been sued in his official capacity and the judgment below is

a judgment against the County of Niagara, holding invalid

a local law of the County and enjoining its enforcement.

Since the commencement of the action, the County has

strenuously insisted that the validity of its local law under

the Home Rule Article of the State Constitution is not a

matter to be decided by the Federal Courts. The District

Court lacked jurisdiction over this question of State law

because it would be unnecessary to decide any federal claim

if the State law claim were resolved adversely to the

County. Such adverse decision on the State law claim by a

federal court would render non-justiciable the federal ques-

tions and the State question as well. For an erroneous

resolution of the State law claim by a federal court would

not be binding on the State courts or the parties. For these

reasons, the County does not here argue or present to this

Honorable Court for decision the State constitutional ques-

tion which the District Court and Court of Appeals pur-

ported to determine. It is the County’s position that the

District Court and Court of Appeals lacked jurisdiction to

determine said question of State law under the doctrines of

abstention and justiciability.

The County of Niagara here argues and presents for a

decision by this Honorable Court the sole question of a

District Court’s jurisdiction under the doctrines of absten-

tion and justiciability.

Opinions Below

The initial Order was issued in this action by the United

States District Court for the Western District of New York

(Elfvin, J.) on December 13, 1978, whereby the Court added

Donna Marie Hazlett as a party plaintiff and is not offi-

cially reported. It and all subsequent District Court opin-

ions, judgments and orders are filed in the District Court

at Civil Action 78/823.

The District Court issued a Memorandum and Order on

December 15, 1978, granting a preliminary injunction to

plaintiffs based on a probability of success on their State

law claim. Said Memorandum and Order is reproduced in

the Appendix at pp. A19-A22.

On February 15, 1979, the Hon. John C. Broughton of

the Supreme Court of the State of New York, County of

Niagara, issued an opinion dismissing an action for declara-

tory judgment to resolve the pendant State law claim then

pending in the federal District Court for lack of standing

due to the refusal of the Plaintiffs in federal court to join

as parties. The opinion has not been reported and is repro-

duced at pp. A23-A29 of the Appendix.

On May 23, 1978, the District Court issued a Memoran-

dum and Order granting class action certification to the

plaintiffs; partial summary judgment to plaintiffs on their

State law claim and a permanent injunction against the

enforcement of Niagara County’s Local Law No. 7. Said

Memorandum and Order have not been reported and are

reproduced at pp. A30-A38 of the Appendix.

The United States Court of Appeals for the Second Cir-

euit did not render a separate opinion but affirmed “sub-

stantially on the opinions of Judge Elfvin below dated

December 15, 1978, and May 23, 1979.” (See A18.)

Jurisdiction

This is a civil action to which the County of Niagara is a

party and in which a local law of Niagara County has been

held unconstitutional only under the New York State Con-

stitution, The Plaintiffs invoked jurisdiction in the Dis-

trict Court under 42 U.S.C. Sec. 1983 and 28, U.S.C. See’s.

1331 and 1343 (1976).

The date of entry of the judgment in the U.S. District

Court for the Western District of New York sought to be

reviewed is May 23, 1979, such entry having been made

nunc pro tunc on June 21, 1979. Notice of Appeal to the

Court of Appeals was duly filed by the defendant, Francis

Clifford in the U.S. District Court for the Western District

of New York on the same day, June 21, 1979.

The judgment of the United States Court of Appeals for

the Second Circuit was entered on October 30, 1979. On

January 25, 1980, the time within which to file this Petition

was extended by Order of Mr. Justice Marshall to and

including February 27, 1980 (No. A-634).

The jurisdiction of this Honorable Court is invoked by

Petitioner under 28 U.S.C. § 1254(1).

Questions Presented

Whether the District Court lacked jurisdiction under the

doctrines of abstention and justiciability to enter a per-

manent federal injunction based solely upon a pendant

State constitutional claim.

Statement of the Case

On October 3, 1978, the Niagara County Legislature

adopted Local Law No. 7 after a public hearing held Sep-

tember 12, 1978 and continued on October 3, 1978. Local

Law No. 7 was then transmitted to and filed by the Secre-

tary of the State of New York on or about October 6, 1978.

It provided for the regulation of abortion in Niagara

County. Except for §5, dealing with the publication of

forms by the County Health Department, all of the provi-

sions of Local Law No. 7 become effective, pursuant to $12,

sixty (60) days from the date of filing with the Secretary

of State. See Record on Appeal, Docket No. 25, Transcript

of December 5, 1978, pp. 3-4.

On December 5, 1978, Respondents (hereinafter “Plain-

tiffs”) filed a class action in the United States District

Court for the Western District of New York, to enjoin the

enforcement of Local Law No. 7 [referred to in Plaintiffs’

papers by its Resolution No. 336-78] claiming jurisdiction

under 28 U.S.C. §§ 1331, 1343(3) and (4) (1976), and seek-

ing relief under 42 U.S.C. §1983 (1976), and 28 U.S.C. $2201

(1976). They alleged that Local Law No. 7 violated their

rights under the New York State Court of Appeals decision

entitled, Robin v. Incorporated Village of Hempstead, 30

N.Y. 2d 347 (1972), which interpreted Art. IX of the New

York State Constitution; the First, Fourth, Fifth, and Ninth

An idments and the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution

and “the corresponding provisions of the New York State

Constitution.” They filed a motion for a temporary re-

straining order 0: preliminary injunction. See Record on

Appeal, Docket Entry No. 29.

The Plaintiff Susan B. is an unmarried resident of

Niagara County, who at the time of the commencement of

the action was 20 years of age and between five and six

weeks pregnant. Susan B. did not want the father of her

child notified [Sic. Local Law No. 7 does not require notice

to an unmarried father], did not want to wait twenty-four

(24) hours after medical consultation to have her abortion,

did not want to see pictures of the unborn and did not want

to travel to Erie County for her abortion.

6 é

The Plaintiff Donna Marie Hazlett is a married resident

of Erie County, who at the time of her admission as a party

plaintiff on Deeember 12, 1978 was 29 years of age and

five months pregnant. Mrs. Hazlett had given birth to four

children previously and had lost one of these children due

to Downes Syndrome and pneumonia at the age of nine

months. Her physician and his hospital are located in

Niagara County. Her current pregnancy was estimated by

her physician to be defective and with only a ten per cent

chance of a live birth. Mrs. Hazlett’s chief objection was

the requirement of Local Law No. 7 that she be shown pic-

tures of the developing unborn child prior to her abortion

as part of the medical counseling required by the law. She

also objected to the required five (5) day waiting period

after notice to her husband.

The Plaintiff Emma G. is a divorced resident of Niagara

County, who at the time of her admission as a party plain-

tiff on December 15. 1978 was 24 years of age and six weeks

pregnant. She is the mother of one child and did not wish

to be shown pictures of the developing unborn child as part

of the medical counselling required by Local Law No. 7.

Her objections also included the twenty-four (24) hour

waiting period after such counselling and the provision of

information concerning the risk of medical complications

from abortion.

The Defendant, Francis Clifford, is Commissioner of the

Department of Health of Niagara County and is charged

with the administration of Local Law No. 7.

On December 15, 1978, the District Court issued a

Memorandum Opinion and Order granting a preliminary

injunction to Plaintiffs based on a substantial likelihood of

success on their pendant claim under the New York State

Court of Appeals decision, entitled Robin v. Incorporated

NACE Oe a hae ee

Villiage of Hempstead, supra, and Art. IX of the New York

State Constitution. (A19-A2z2.)

On January 23, 1979, Niagara County Legislator John

H. Kolecki, the sponsor of Local Law No. 7 and other tax-

payers commenced a declaratory action in the Supreme

Court of the State of New York, County of Niagara to

declare Local Law No. 7 valid and constitutional under Art.

IX of the New York State Constitution and the State court

decisions thereunder. A motion for summary judgment

was made and the attorney of record for the Plaintiffs in

this federal action was notified. Record on Appeal,

Exhibit 3 and Exhibits “A” through “EX” annexed thereto.

On February 15, 1979, the Hon. John C. Broughton of the

Supreme Court of the State of New York, County of Nia-

gara, issued an opinion denying the motion for summary

judgment and dismissing the action for declaratory judg-

ment on the ground that no party before him had chal-

lenged the constitutionality of Local Law No. 7. The Plain.

tiffs in this federal action had been admitted as amici curiae

and participated in the State court action. (A23-A29.)

On March 5, 1979, Plaintiffs moved in the District Court

for class certification, partial summary judgment on the

pendant claim under Art. IX of the New York State Consti-

tution and for a permanent injunction against the enforce-

ment of Local Law No. 7. Record on Appeal, Docket No. 18.

On May 23, 1979, the District Court issued a Memo-

randum Opinion and Order granting the relief requested

in Plaintiffs’ motion of March 5, 1979 in all respects and

refusing the Petitioner’s request to abstain under the doc-

trine announced in Railroad Comm’n v. Pullman Co., 312

U.S. 496 (1941). (A30-A38.) Record on Appeal, Docket

No. 27, Transcript of March 5, 1979, at pp. 3, 23-27.)

On June 21, 1°79, the District Court Clerk entered judg-

ment nunc pro tunc as of May 23, 1979 by direction of the

District Court.

On the same day, June 21, 1979, the Petitioner filed a

Notice of Appeal to the United States Court of Appeals for

the Second Circuit from the judgment of the District Court

entered May 23. 1979.

On October 30, 1979, the United States Court of Appeals

for the Second Cireuit (Meskill, Kearse and Dooling, J. J.)

unanimously affirmed “substantially on the opinions of

Judge Elfvin below dated December 15, 1978, and May 23,

1979.” (A-18.)

On January 25, 1980, Mr. Justice Marshall granted an

Order extending the time within which to file this Petition

to and including February 27, 1980. (A-16.)

Factual Setting

For nearly 100 years in New York the delicate question

of State versus local legislative power has been regulated

chiefly by State judicial interpretations of the State Con-

stitution.

The words of Chief Judge Cardozo in 1927 proved only

too prophetic:

“Home Rule for cities, adopted by the people with

much ado and after many years of agitation, will be

another Statute of Uses, a form of words and little

else if the courts in applying the new tests shall

ignore the new spirit that dictate their adoption.

The municipality is to be protected in its autonomy

against the inroads of evasion.” Matter of Elm

Street, 246 N.Y. 72, 158 N.E, 24

Municipalities were not so protected. Restrictive court

interpretations, often in conflict with one another, severely

restricted the effectiveness of the Home Rule amendments

to the State Constitution in 1924 and 1938. Comment,

“Municipal Home Rule in New York”, 22 Syracuse L. Rev.

736 (1970); Note, “Home Rule and the New York Consti-

tution” 66 Col. L. Rev. 1145, 1148-1151 (1966); Richland,

“Constitutional City Home Rule in New York (Part I), 54

Col. L. Rev. 311 (1954).

Efforts by the bench and bar to ignite the Home Rule

interpretations of the highest state court in New York have

resulted in a general state of confusion and unpredict-

ability during the last five decades. Note, “Home Rule and

the New York Constitution,” supra, 66 Col. L. Rev. 1145,

at 1153 (1966); Comment, “Home Rule: A Fresh Start,”

14 Buff. L. Rev. 484, 488 (1965) ; Diamond, “Some Observa-

tions on Local Government in New York State,” 8 Buff. L.

Rev. 27, 35 (1958); Richland, “Constitutional City Home

Rule in New York” (Part II), 55 Col. L. Rev. 598, 623

(1955).

The most recent Home Rule amendment to the New York

State Constitution was adopted in 1963, but the basic struc-

ture was “left substantially intact by the 1963 amendment.”

Note “Home Rule and the New York Constitution,” supra,

66 Col. L. Rev. 1145, at 1162 (1966).

“Tt is unlikely that the new amendment will have the

effect of changing a single court decision dealing

with home rule. The balance of power between the

state and its municipalities remains unchanged * * *.

Grad, “The New York Home Rule Amendment—e

Bill of Rights for Local Government?”, Loca)

Government Law Service Letter, June, 1964, pp. 6, 9,

quoted Id., at 1152, note 44.

One can search in vain for federal judicial interpreta-

tions in this sensitive area of State law. Review by this

Honorable Court of Art. [IX decisions of the highest State

and federal courts has been confined to the federal ques-

tions involved. See, e.g., Lockport v. Citizens for Com-

munity Aciion, 430 U.S. 259 (1977). The only exception

seems to be Manes v. Goldin, 400 F. Supp. 23, affirmed

without opinion, 423 U.S. 1068 (1976), in which an attack

upon a State law as a pendant claim under the State Con-

stitution’s Home Rule Article was brushed aside in sum-

mary fashion as too frivilous to consider. Jd. at 28.

The case at bar is the first officially reported instance of

a federal judge striking down a local law under Article

IX, the Home Rule Article of the State Constitution.

In New York a local law enjoys the status of a “state

statute” for the purpose of direct appeal to the New York

State Court of Appeals. Sonmaz, Inc. v. City of New York,

43 N.Y. 2d 253 (1977).

Niagara County is the first local government in New

York State to assert a local problem unique to the County

so as to fit within the exception in Robin v. Incorporated

Village of Hempstead, 30 N.Y. 2d 347 (1972). In that case,

the New York State Court of Appeals interpreted the Con-

stitution and general laws of New York to evince an inten-

tion on the part of the State to pre-empt regulation of

abortion and medical practice except when the local legisla-

tion was justified by a local problem unique to the local

government area as opposed to the rest of the State.

As the first United States District Court ever to strike

down local legislation under Article IX of the State Con-

stitution in a reported decision, the Court below also be-

came the first federal Court to attempt to finally determine

a question of State Constitutional law expressly left open

by the New York State Court of Appeals in Robin v. Incor-

porated Village of Hempstead, supra, and not ruled upon

since that decision.

9 eR

The question presented upon this appeal is whether said

attempted final resolution of this most sensitive question

of State law was made by a. court of competent jurisdiction

within the federal doctrines of abstention and justiciability.

FACTS

On October 3, 1978, the County Legislature adopted Local

Law No. 7 (1978) regulating the performance of abortions

in Niagara County. (Statement of the Case, at 4.)

On December 15, 1978, the United States District Court

for the Western District of New York (Elfvin, J.) en-

tered a preliminary injunction against enforcement of the

local law, based solely upon the Plaintiff’s pendant State

Constitutional claim that the County was without power

under the Home Rule Article (Art. IX) to adopt the local

law. (Id. at 6.)

On January 23, 1979, the sponsor of the local law and

other taxpayers commenced a declaratory judgment action

in the State courts to resolve the federal Plaintiffs State

Constitutiona! claim in the State courts. (Id. at 7.)

On February 15, 1979, the State courts dismissed said

declaratory judgment action because the federal Plaintiffs,

who appeared as amici in the State courts, refused to be-

come parties and submit their State Constitutional claim

in the State courts. (Id. at 7.) The entry of judgment has

been deferred pending resolution of the question of federal

abstention in the federal courts.

On May 23, 1979, in the federal court action, Judge Elfvin

expressly declined to abstain over the objection of the

County of Niagara that Plaintiffs and the Court were ob-

ligated to submit the State Constitutional claim to the State

courts in the pending declaratory judgment proceeding.

(Id. at 7.) Judge Elfvin entered a permanent injunction

against the enforcement of the local law, based solely upon

the pendant State Constitutional claim under the Home

Rule Article (Art. IX). (Id. at 7.)

Reasons For Granting the Writ:

THE FEDERAL QUESTION OF ABSTENTION HEREIN

HAS BEEN DECIDED BELOW IN A WAY WHICH IS IN

DIRECT AND IRRECONCILABLE CONFLICT WITH

THE APPLICABLE DECISIONS OF THIS HONORABLE

COURT.

Abstention

Where there is an action pending in State court that will

likely resolve the pendant state-law questions, this Honor-

able Court has regularly “ordered” abstention, Harris Co.

Commr. Court v. Moore, 420 U.S. 77, 83 (1975). This is

especially so where specialized State Constitutional provi-

sions are involved in the pendant state-law questions. Id.

at note 8. See Askew v. Hargraves, 401 U.S. 476 (1971),

wherein a dispositive State Constitutional claim was pend-

ing in State court. And where, as in the case at bar, Peti-

tioner is the first local government to claim to be within an

exception carved out by the New York State Court of Ap-

peals in interpreting the New York State Constitution (see

p. 10, swpra), failure of the federal court to abstain and

defer to a pending State court proceeding is in direct and

irreconcilable conflict with the applicable decisions of this

Honorable Court. Askew v. Hargraves, supra; Reetz v.

Bozanich, 397 U.S. 82 (1970); Harris Co. Commr. Court v.

Moore, supra.

Of equal importance, serious questions as to justiciability

are raised by a failure to obey the doctrine of abstention

under such circumstances. Since such questions have not

been specifically addressed by this Honorable Court, they

will be discussed in greater detail.

THE FEDERAL QUESTION OF JUSTICIABILITY HERE-

IN HAS NOT HERETOFORE BEEN SPECIF!CALLY DE-

TERMINED BY THIS HONORABLE COURT.

The County is not aware of any precedent, at least since

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), for a perma-

nent federal injunction of any State or local law or State

executive action premised on a pendant State constitutional

claim alone.

The reason for this lack of precedent is not hard to dis-

cover. Such a “permanent” federal injunction would rest

merely upon a prediction of State constitutional law, upon

which State courts have the final word. As such, it would

be in the nature of an advisory opinion, subject to relitiga-

tion and revision elsewhere.

Federal judgments on pendant nonconstitutional State

claims are encouraged because they avoid unnecessary con-

stitutional adjudication. Hagans v. Lavine, 415 U.S. 528

(1974) ; UMW v. Gibbs, 383 U.S. 715, 726 (1966) ; Cf. Siler

v. Louisville & Nashville Ry. Co., 213 U.S. 175 (1909) (pre-

Erie).

Also, it is perfectly clear, given adequate federal question

jurisdiction, that the federal court has power to decide the

whole case, including the issuance of a permanent federal

injunction against a State or local law premised upon a

pendant State constitutional claim alone, without ruling on

any federal question. Reetz v. Bozanich, 397 U.S. 82 (1970) ;

Sterling v. Constantin, 287 U.S. 378 (1932).

But it is respectfully sudbmitted that the power has not

been exercised, at least since rie, and that the unarticu-

lated reason for the nonexercise of the power is the rule

against advisory opinions.

In Sterling v. Constantin, swpra, the Court was careful to

state that the pendant State constitutional question was

properly before it and that it possessed the power to decide

that question. Jd. at 393-394. Nevertheless, the Court pre-

ferred to pass over the State constitutional claim and reach

and decide the Federal constitutional questions under the

Fourteenth Amendment. Id. at 396.

The Court stated:

“While we recognize the force of these observations,

and the question of the intérpretation of the provi-

sions of the state constitution is before us, it is still a

matter of local law, as to which the courts of the

State would in any event have the final word. We do

not find it necessary to determine that question and

we shall not attempt to explore the history of Texas

or to review the decisions of the state courts cited by

the appellees. We pass to a consideration of the

federal question presented, and for that purpose we

shall assume, without deciding, that the law of the

State authorizes what the Governor has done.” Jd. at

396. (emphasis supplied).

It should be recalled that Sterling v. Constantin, supra,

was a case of emergent protection of federal constitutional

rights in which the Governor of Texas had declared martial

law in an attempt to override a preliminary injunction by a

federal district court. Abstention to obtain a State court

interpretation of the Texas Constitution would not have

been possible even if the case had been decided after Rail-

road Comm’n. v. Pullman Co., 312 U.S. 496 (1941).

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

certain specialized provisions of the Alaska Constitution,

Art. VII, §§ 3 and 15, which reserved fish and wildlife in

their natural state to the people for common use and ex-

pressly prohibited exclusive rights or special privileges

in fisheries in the natural waters of the State. Plaintiffs

in federal district court challenged certain Alaskan com-

mercial fishing legislation under these provisions of the

Alaska constitution and under the Federal Constitution.

The Supreme Court held that the federal district court had

power to decide the pendant State constitutional claim but

ordered abstention. A decision on the pendant claim ad-

verse to the commercial fishing legislation would render the

Federal constitutional claims moot. Thus, if the federal

district court were inclined to decide adversely to the chal-

lenged legislation, the Alaska Constitution would have be-

come the whole “nub” of the controversy. Id. at 87.

The interpretation of State Constitutions, and the im-

portant question of when and to what extent such interpre-

tations should be changed or modified, are, of course, fully

committed to the judicial power of the highest State court.

The Supreme Court has regularly ordered federal district

courts to abstain where as in the case at bar, the pendant

claim arises under a specialized provision of the State con-

stitution which is without substantive counterpart in the

Federal Constitution. Harris County Commrs. Cowrt v.

Moore, 420 U.S. 77 (1975); Reetz v. Bozanich, supra, 397

U.S. 82 (1970); Dept. of Social Services v. Dimery, 398

U.S. 322 (1970). See White v. Edgar, 320 A2d 668, 684

(Me., 1974) ; “Developments in the Law—Section 1983 and

Federalism”, 90 Harv. L. Rev. 1133, 1256-1257 (1977);

Field, Abstention in Constitutional Cases: The Scope of

the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071,

1099, note 108 (1974).

Even where the State constitution and the Federal Con-

stitution have the same or similar substantive provisions,

the Supreme Court has ordered abstention where the chal-

lenged State or local law is part of an integrated scheme of

State law. City of Meridian v. Southern Bell Tel. & Tel.,

358 U.S. 639, 641 (1959) (Impairment of Contract Clause).

See Harris County Commrs. Court v. Moore, supra, at 77,

note 8.

It is to be noted that the question under the New York

Constitution which the court below purported to decide is

a specialized provision, without substantive counterpart in

the Federal Constitution, that the question involved an

integrated scheme of State law, including Article IX of the

New York Constitution, the Statute of Local Governments

and the Municipal Home Rule Law and that the words and

concepts employed by the drafters of all of these provisions

are derived in large part from language created by the

New York State Court of Appeals in its evolving interpre-

tation of constitutional municipal home rule in New York

State. Adler v. Deegan, 251 N.Y. 467, 473-474 (1929).

The purported final judgment of the court below cannot

prevent relitigation of the same issue by the same or dif-

ferent parties in a proper forum. The County did not sub-

mit the Home Rule question for decision or consent to its

adjudication in the federal court. Record on Appeal,

Docket Entry No. 27, Transcript of March 5, 1979, at pp.

3, 23-27. See England v. State Board of Medical Exam-

mers, 375 U.S. 411, 419 (1964); Lecct v. Cahn, 493 F2d

826 (CA2, 1974).

An interpretation of a state statute by a state court

under a misapprehension of federal law will not be binding

on a federal court, Red Cross Line v. Atlantic Fruit Co.,

264 U.S. 109 (1924); Tipton v. Atchison, Topeka, etc. R.

Co., 298 U.S. 141, 148 (1936) ; Breisch v. Central R. Co., 312

U.S. 484 (1941); Umited States v. Bedford, 519 F2d 650,

654 (CA3, 1975) cert. den. 424 U.S. 917 (1976), and the

lower court’s purported final judgment, if found to be based

upon a misapprehension of the New York Constitution and

laws, will be given no greater effect by the courts of New

York State. U.S. Const., Art. IV, $1; 28 U.S.C. §1738

(1976); Union & Planters Bank v. Memphis, 189 U.S. 71

(1903); Wright v. Georgia R.R. & Banking Co., 216 U.S.

420 (1910) ; City of Covington v. First National Bank, 198

U.S. 100 (1905); Oklahoma Packing Co. v. Oklahoma Gas

& Elec. Co., 309 U.S. 4 (1940) ; McCune v. Frank, 521 F2d

1152 (CA2, 1975) ; Lombard v. Board of Education, 502 F2d

631 (CA2, 1974), cert. den. 420 U.S. 976 (1975).

Because it will not bar relitigation and authoritative

determination in another forum of the same issue by the

same or different parties, the purported final judgment of

the lower court was in the nature of an advisory opinion.

Frasch v Moore, 211 U.S. 1 (1908) ; Hayburn’s Case, 2 Dall.

409, 412 (1792); United States v. Yale Todd, 1794, sum-

marized in note by Chief Justice Taney in United States v.

Ferreira, 13 How. 39, 51-53 (1851).

Even if not relitigated by the same parties in State court,

the purported final judgment of the court below would be

subject to reargument, collateral attack or unenforceability

by a controlling decision on Local Law No. 7 by the New

York State Court of Appeals. Pierce v. Cook & Co., 518

F2d 720 (CA10, 1975), cert. den. 423 U.S. 1079 (1976).

The Tenth Circuit Court of Appeals stated:

“!T ]he federal courts in which plaintiffs were forced

to litigate have given them substantially different

treatment than that received in state court by an-

other injured in the same accident. The outcome:

determination principle mandated by Erie v. Tom-

kins has been violated.” Id. at 723.

Jurisdiction was clearly lacking in the court below under

the federal doctrines of abstention and justiciability. The

imposition of the so-called permanent injunction was par-

ticularly offensive, however, in view of the State court pro-

ceeding then pending. The Hon. John C. Broughton of the

Niagara County Supreme Court and the parties to Kolecki

et al. v. County of Niagara had eliminated all except the

Home Rule issue and were ready to proceed to a determi-

nation of the validity of Local Law No. 7 with a direct

appeal to the New York State Court of Appeals. ‘See

Opinion of Broughton, J., Appendix, at A 26. State court

determination of the issue was prevented only because

the plaintiffs in the federal action, who had joined as amici

in the state action, Jd. at A 23, refused an invitation to

become parties challenging Local Law No. 7 so that the

State action could proceed to judgment, as Judge Brough-

ton had indicated would have occurred. Id. at A28.

Prior to the entry of the final judgment in the ease at bar,

the federal District Court below was requested to vacate

the preliminary federal injunction against Local Law No.

7, to retain jurisdiction of the federal question and to rele-

gate the plaintiffs to Judge Broughton’s court for determi-

nation of their claim under the New York Constitution.

See Record on Appeal, Docket No. 27, Transcript of March

0, 1979, at pp. 3, 23-27; Cf. Exhibit 3 to Record on Appeal.

If that request had been granted, it is very likely that a

ruling by the New York State Court of Appeals on the

validity of Local Law No. 7 under Art. LX of the New York

Constitution would now be in place.

The District Court below should not have sanctioned the

refusal by Plaintiffs in this action to join as parties in the

action before Judge Broughton in State court. The federal

preliminary injunction could continue to protect all federal

rights, the plaintiffs in this action could clearly reserve

their federal claims while in State court, England v. La.

State Board of Medicine, supra, 375 U.S. 411, 419 (1964),

and the direct appeal to the New York State Court of

Appeals where the only question involved is the constitu-

tionality of a local law, Sonmaz, Inc. v. City of New York,

43 N.Y. 2d 253 (1977), provided a plain adequate and

efficient remedy for resolution of the issue under Art. [IX

of the New York State Constitution. Harris County

Commrs. Court v. Moore, swpra, 420 U.S. 77 (1975).

The Court stated:

“Where there is an action pending in state court that

will likely resolve the state-law questions underlying

the federal claim, we have regularly ordered absten-

tion.” Id. at 83.

The same federal policies which would dictate retention

of jurisdiction if the District Court believed the State con-

stitutional claim would be rejected, Manes v. Goldin, supra,

400 F. Supp. 23, aff’d without opinion, 423 U.S. 1068 (1976),

also dictate the opposite procedures of abstention, or of

passing by the State constitutional claim without deciding

it, Sterling v. Constantin, supra, 287 U.S. 378, 396 (1932),

if the District Court believes the State constitutional claim

would be sustained. It is preferable, and indeed man-

datory, to avoid an unnecessary State constitutional ad-

judication by a federal court which would, in any event,

amount to little more than an advisory opinion, since the

State courts must have the final word under Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938). Compare Murrow v. Clif-

ford, 502 F2d 1066 (CA 3, 1974).

In an analagous situation, the Third Circuit Court of

Appeals stated:

“T]he same policy which dictates [one] procedure

when [the District Court] believes the supremacy

claim should be sustained dictates the opposite pro-

cedure if [the District Court] is inclined to reject it.

The other two members of the three-judge district

court might well disagree with [the single judge],

on the suprem xcy issue, and by deciding in plaintiff’s

favor on thai ground avoid a more serious constitu-

tional adjudication. See Judge Winter’s opinion in

Doe v. Lukhard, 493 F2d 54 (CA4, 1974). We hold,

therefore, that it is improper for a single district

judge to decide a supremacy clause claim against the

claimant when it is pendant to a constitutional claim

which must be decided by a three-judge district

court. Id. at 1070.

In the case at bar, the District Court had determined in

its Memorandum and Order granting a preliminary injunc-

tion that there was a substantial likelihood that the State

constitutional claim would be sustained and that upon that

issue, no evidentiary hearing would be required. (A22.)

When the County urged abstention, as noted in the

District Court’s Memorandum and Order granting a per-

manent injunction (A 31), the District Court should have

abstained rather than proceed to a final judgment on the

New York State Constitution which would amount to an

advisory opinion.

Conclusion

For the foregoing reasons, the Petition should be

granted,

Respectfully submitted,

Joun V. Stmon

Niagara County Attorney

Counsel for Petitioner

Niagara County Office Building

Lockport, N.Y. 14094

MicHaret A. GoLp

Assistant County Attorney

Frank J. Moran

A. LAwRENCE WASHBURN, JR.

Special County Attorneys

of Counsel

February 27, 1980

A-1

APPENDIX A

Constitutional, Statutory and

Local Law Provisions Involved

New York Constitution

Article IX, §2, subdivision (¢c), sub-paragraph (ii) in

pertinent part: “In addition to powers granted in the stat-

ute of local governments or in any other law, * * * (ii)

every local government shall have power to adopt and

amend local laws not inconsistent with the provisions of

this constitution or any general law relating to the follow-

ing subjects, whether or not they relate to the property,

affairs or government of such local government, except to

the extent that the legislature shall restrict the adoption of

such a local law relating to other than the property, affairs

or goverment of such local government: * * *

***(10) The government, protection, order, conduct

safety, health and well-being of persons or property there-

in. * * * (emphasis added)

Local Law No. 7 of Niagara County

Wuereas, the State of New York has failed to establish

any abortion standards designed to ensure that the abortion

decision will be made with truly informed consent, and

Wuereas, the primary duty of any society is to protect

the life and well-being of each of its members, and

Wuereas, it follows that Niagara County, through its

lawful power to protect the health and safety of its citizens,

may enact a local law designed to offer maximum protec-

tion to the life and health of the mother who seeks to obtain

an abortion, and

A-2

Wuereas, the natural right of spouses and parents or

guardians to oversee the welfare of their minors requires

that they should be notified prior to an abortion, and

Wuereas, abortion constitutes a major surgical proce-

dure which can result in complications and which ought,

therefore, to require fully informed consent on the part of

the patient—so that she may fully understand the nature

of the act to be performed as well as its possible conse-

quences for her health, and

Wuereas, such fully informed consent is possible only

when the pregnant woman is presented with the scientific

evidence which led the pro-abortion physician editors of the

Journal of the California State Medical Association (Sep-

tember, 1970) to write “...of the scientific fact, which

everyone really knows, that human life begins at conception

and is continuous whether—intra—or extra-uterine until

death”, and

Wuereas, failure to be fully informed of the above-men-

tioned scientific fact might allow a woman to have an abor-

tion and—only at some later time—come to be the awesome

realization that this act involved the taking of a human life

—a realization which might cause her serious, and poten-

tially irreversible, mental and emotional harm, and

Wuereas, the keeping of adequate and confidential rec-

ords of this major surgical procedure as well as the periodic

publication, by the Niagara County Health Department of

a statistical report based upon such data would contribute

to the health, safety, and welfare of the citizenry, now,

therefore, be it

A-3

Resotvep, that the County of Niagara proposes the adop-

tion of the following Local Law:

Section 1. Definitions

“Abortion” means an act committed upon or with

respect to a female, whether by another person or by

the female herself, whether she is pregnant or not,

whether directly upon her body or by the administer-

ing, taking or prescription of drugs or in any other

manner, with an intent to cause a miscarriage of

such female.

“Department” shall mean the Niagara County

Health Department.

“Medical Counselling” shall mean the description

of the abortion procedure, description of the particu-

lar medical risks incurred through the particular

medical consequences of the abortion procedure

either to the woman or to her unborn child. .

“Medical Emergency” shall mean that an immedi-

ate and grave threat to the life or physical health of

the female would be caused by the delay occasioned

by the requirements of consent or notice imposed by

Sections “2” or “3” of this Local Law.

Section 2. Consent of Female

(A) Except as provided in Section “4” of this

Law, no physician shall perform or induce an abor-

tion upon any female unless said female certifies her

consent to the abortion in writing. Said consent must

contain a statement by the female that it is informed

and freely given, that it is not the result of coercion,

and that the materials specified in Section “5” (A)

of this Law, have been provided, that the female has

read and understood them, or, if she cannot read,

that she has had their contents explained to her.

(B) Except as provided in Section “4” of this Law,

the consent of a female to an abortion shall be

A-4

obtained not more than 30 days before the abortion

and not less than twenty-four hours before said abor-

tion. The time of obtaining said consent shall be

certified in writing by the physician performing or

inducing the abortion.

no abortion shall be performed or induced unless,

prior to said abortion the attending physician: (1)

certifies in writing that the female has been provided

with the written materials specified in Section “5”

(A) of this Law, and (2) causes any notice and mate-

rial to be given to the extent required and in the

manner specified by Section “3” of this Law and (3)

engages in the medical counselling of the female at

least 24 hours prior to the proposed abortion at which

time the physician shall inform the female of the

following in order to insure that her written consent

is informed and freely given.

(i) that according to the best judgment of the

attending physician, she is pregnant;

(ii) the number of weeks elapsed from the prob-

able time of conception, based upon information

previded by the female with regard to the time of

her last menstrual period and/or after a history

and medical examination and appropriate labora-

tory tests.

(iii) A description in detail of the following

anatomical physiological characteristics of the

particular unborn child at the gestational point of

development at the time that the abortion is to be

performed: appearance, mobility, tactile sensitiv-

ity, brain and heart function, the presence of

internal organs and external members.

Said description shall also include a visual pre-

sentation through photographs of the development

of a human fetus, with emphasis on the state of

development at which the proposed abortion is to

be performed.

A-5

(iv) that an unborn child may be viable and

capable of surviving outside the womb by natural

or artificial life support systems and that an

attending physician has an obligation to provide

immediate medical care for a viable child that is

the result of an abortion.

(v) that abortion is a major surgical procedure

which could result in the following complications:

hemorrhage, perforated uterus, infection, mens-

tural disturbances, sterility, miscarriage, pre-

maturity in subsequent pregnancies psychological

problems and emotional disturbances.

(vi) that the public and private agencies are

available to assist the female during pregnancy,

and after birth, and that various agencies are

available to assist in placing a child for adoption.

(vii) such other and further information as the

physician in the exercise of his medical judgment

shall determine to be necessary for the female to

give an informed consent to the proposed abor-

tion, with full knowledge of its nature and conse-

quences.

(D) The attending physician shall also give the

female instructions on how to insure a healthy and

safe recovery should the female decide to proceed

with the proposed abortion.

(KE) Except as provided in Section “4” of this Law,

no abortion shall be performed or induced upon or

with respect to any female who is married except

if her written informed consent is obtained in the

manner provided in Section “2” (a) and (b) above

and except by a physician who is in possession of

proof that at least five (5) days before the abor-

tion, the spouse of said female received written

notice of the proposed abortion and copies of the

materials provided in Section “5” of this Law.

A-6

Section 3. Consent of Minor: Notice

(A) Except as provided in Section “4” of this

Law, no abortion shall be performed or induced

upon with respect to any female under the age of

18 who has never been married, except if her writ-

ten informed consent is obtained in a manner pro-

vided in Section “2” of this Law and except by a

physician who:

(i) is in possession of a written consent to the

abortion signed nor more than thirty (30) days

prior to said abortion nor less than twenty-four

(24) hours before said abortion by a parent,

guardian or other person having legal custody of

such female; or

(ii) is in possession of proof that at least five

(5) days before the abortion, a parent, guardian,

or other person having legal custody of such female

received written notice of the proposed abortion

and copies of the materials provided in Section

“5” (A) of this Law, or

(iii) is in possession of a written waiver of

notice of the abortion, signed no more than thirty

(30) days, no less than twenty-four (24) hours

before the proposed abortion by a parent, guard-

ian or other person with legal custody; or

(iv) is in possession of a consent obtained by

order of a Justice of the Supreme Court of the

State of New York for good cause shown, after

such hearing as said Justice deems necessary; or

(v) has made a reasonable judgment, in good

faith, based upon decumentary evidence, that such

female is eighteen (18) years of age or older or

has been or is married.

(B) The proof of written notice, specified in sub-

division (e) of Section “2” in paragraph (ii) of sub-

(a) of Section “3” of this Law, shall consist of:

A-7

(i) a return receipt evidencing delivery and re-

ceipt of the notice by registered or certified mail or

if acceptance was refused, the original envelope

bearing a notation by .the postal authorities that

receipt was refused and an affidavit by or on be-

half of the person seeking to establish the giving

of notice that a copy of such written notice and

refusal to accept was forthwith sent to the parent,

guardian, or other person having legal custody

of such person, by ordinary mail to the same ad-

dress; or

(ii) an affidavit or affirmation by a physician

licensed to practice medicine in this state that he

or she has personally delivered the notice.

Section 4. Medical Emergency

The requirements of notice under Section “3” of

this Law and/or consent required by Section “2”

shall not be imposed when a physician makes a find-

ing in good faith and based upon reasonable medical

judgment that a medical emergency exists. The

existence of a medical emergency shall be certified

in writing by the attending physician and the

grounds upon which the physician relies to make

such determination shall also be stated.

Section 5. Printed Information; Forms; Promul-

gation

(A) The department shall cause to be published

printed materials to be supplied by the attending

physicians as provided in Sections “2”(a), “2”(c)

and “3”(a) (ii) of this Law:

(i) materials designed to inform concerned par-

ties of public and private agencies and services

available to assist the female through pregnancy,

at childbirth (and while the child is a minor), in-

cluding a list of reputable adoption agencies.

A-8

Such materials shall include a comprehensive list

of the agencies available and a description of the

manner in which they might be contacted.

(ii) materials designed to inform concerned

parties of the anatomical and physiological char-

acteristics of the unborn child at various gesta-

tional points of development including appearance,

mobility, tactile sensitivity, brain and heart func-

tion, the presence of internal organs and external

members, Said materials shall include a visual

presentation through photographs of the develop-

ment of a human fetus from conception to birth.

(iii) materials designed to inform concerned

parties that it is the policy of the County of Niag-

ara to favor childbirth over abortion.

(iv) the materials required under subsection

(a), (b) and (ce) of this Section shall be available

from the Department upon request and in appro-

priate number to any persons, facility or hospital.

(B) The Department shall also make available to

physicians performing abortions in the County of

Niagara notice laws, consent forms, abortion report

forms and complication report forms.

_ (C) The requirement of giving notice, or obtain-

ing written consent, of distributing the materials

listed in Section “5”(A) of this Law, or of comple-

tion of abortion reports or complication reports shall

not be imposed whenever the Department certifies in

writing that the forms required by this Law are not

presently available. The Department shall use its

best efforts to insure that all of the forms required

by this Law are in existence and are available to any

interested person, facility or hospital.

Section 6. Records

(A) All abortion facilities and hospitals in which

abortions are performed or induced shall keep

A-9

records, including admission and discharge notes,

histories, results of tests and examinations, nurses

work sheets, social service records, aud progress

notes, and shall further keep a copy of all written

certifications provided for in this Local Law as well

as a copy of records of notice and consent forms,

proofs of written notice, abortion reports, and com-

plication reports required under this Local Law.

Such records shall be maintained in the permanent

tiles of the hospital or abortion facility for a period

of not less than seven (7) years.

Section 7. Inspection

(A) The medical records and the physical facili-

ties of all abortion facilities and hospitals in which

abortions are performed shall be open to inspection

at any time by the Department for purposes of gath-

ering statistical data and insuring compliance with

the provisions of the Local Law. |

(B) The medical records of abortion facilities and

hospitals in which abortions are performed and all

information contained therein shall remain confiden-

tial and shall be used by the Department only for the

purposes set forth in paragraph (A) of this Section.

abortion facilities at least once every six (6) months

to insure compliance with this Local Law and all

laws, ordinances, rules and regulations of the State

of New York and County of Niagara concerning

health and sanitation.

Section 8. Reporting

(A) An individual abortion report for each abor-

tion performed or induced upon a woman shall be

completed by the attending physician. The report

shall be confidential and shall not contain the name

of the female. This report shall include:

(1) Patient number

A-10

(2) Name and address of the abortion facility

or hospital

(3) Date of abortion

(4) Zip code of residence of pregnant female

(5) Age of pregnant female

(6) Race

(7) Marital status

(8) Number of previous pregnancies

(9) Years of education

(10) Number of living children

(11) Number of previous induced abortions

(12) Date of last induced abortion

(15) Date of last live birth

(14) Method of contraception at time of con-

ception

(15) Date of beginning of last menstrual period

(16) Medical condition of female at time of

abortion

(17) R H Type of pregnant female

(18) Type of abortion procedure

(19) Complications by type

(20) Type of procedure done after the abortion

(21) Type of family planning recommended

(22) Type of additional counselling given

(23) Signature of attending physician

(24) The certifications provided for in this Local

Liaw

(B) An individual complication report for any

post-abortion care performed upon a woman shall

be completed by the physician providing such post-

abortion care.

> +e

A-11

This report shall include:

(1) The date of abortion

(2) The name and address of the abortion facil-

ity or hospital where the abortion was performed

(3) The nature of the abortion complication

diagnosed or treated

attending physician and submitted to the Depart-

ment within thirty (30) days from the date of the

abortion. All complication reports shall be signed

by the attending physician and submitted to the

Department within thirty (30) days from the date of

the post-abortion care.

(D) A copy of the abortion report shall be made a

part of the medical record of the patient of the

facility or hospital in which the abortion was per-

formed.

(EK) The Department shall be responsible for col-

lecting all abortion reports and complication reports

and collating and evaluating all data gathered there-

from, and shall annually publish a statistical report

based on such data from abortions performed in the

previous calendar year.

Section 9. Enforcement; Penalties

(A) The County Attorney or any person whose

consent is required either pursuant to this Local Law

or under common law, may petition the Supreme

Court for an order enjoining the performance of any

abortion performed contrary to the provisions of

this Local Law.

(B) Any person who willfully violates any of the

provisions of this Local Law shall be subject to a

fine and civil penalty of not less than $500.00 nor

more than $1,000.00 for each violation.

A-12

Section 10. Severability

(A) Should any provision of this Local Law be

construed by any court of competent jurisdiction to

be invalid, unconstitutional, or otherwise unenfor-

cible, such invalidity, illegality, unconstitutionality,

or unenforcibility shall not extend to any other pro-

vision or provisions of this Local Law.

Section 11. Construction

(A) Nothing in this new law shall be construed:

(i) to alter common law and statutory require-

ments of informed consent to medical procedures;

(11) to diminish the common law and statutory

rights of a parent, guardian or other person having

legal custody of minor children; or

(iii) to limit the jurisdiction of any court of this

state; or

(iv) to deny any person access to any court of

this state.

Section 12.

This law shall take effect on the sixtieth (60) day

after it shall have become a law except that the pro-

visions of Section “5” with regard to the publication

and distribution of forms by the Niagara County

Department of Health shall take effect immediately.

Resoivep, that the Laws and Legislation and Public

Health Committees are hereby designated as the Commit-

tees of this Legislature to conduct a public hearing upon

said proposed Local Law at the Legislative Chambers in

the Court House, Lockport, New York, on the 12 day of

September, at 7:30 P.M., and be it further

A-13

Resouvep, that the Clerk of the Legislature shall post at

least six days in advance of such hearing a notice upon the

bulletin board in the Niagara County Court House and the

County Buildings in Niagara Falls, North Tonawanda, and

Lockport, and publish such notice once in the Union-Sun

and Journal, the Niagara Gazette and the Tonawanda News

each; such notice shall contain the title of the Local Law,

and an abstract of the text to be prepared by the Clerk of

the Legislature with the assistance of the County Attorney.

A-14

APPENDIX B

Additional! Statutory Provisions

Municipal Home Rule Law

By §$ 10 and 11 of the Municipal Home Rule Law, Chap-

ter 36-a of the Consolidated Laws of New York (Mc-

Kinney’s vol. 35¢), the New York State Legislature imple-

mented the provisions of Art. IX, § 2, subdivision (c) of the

New York State Constitution. (See p. A-1, supra.)

Subparagraph [a] of subd. [1] of §10 of said Law in

pertinent part:

§10 General powers of local governments to adopt and

amend local laws

a. A county, city, town or village:

*** (11) The government, protection, order, con-

duct, safety, health, and well-being of persons or

property therein. This provision shall include but

not be limited to the power to adopt local laws pro-

viding for the regulation or licensing of occupations

or businesses provided, however, that:

(b) Except in a case where and to the extent that a

county is specifically authorized to regulate or license

an occupation or business, the exercise of such power

by a county shall relate only to the area thereof out-

side any city, village or area of any town outside the

village or villages therein during such time as such

city, village or town is regulating or licensing the

occupation or business in question. (emphasis sup-

plied)

§ 11 of the Municipal Home Rule Law. pursuant to the

same provision of Art. IX, § 2, subdivision (c) of the New

Reiscin emen —

A-15

York State Constitution (p. A-1, supra) restricts the power

of local governments to adopt a local law which supersedes

a state statute within their local area. The subject matters

so restricted are not relevant to Local Law No. 7 or the

issues presented by this Petition.

Statute of Local Governments

The Statute of Local Governments, Chapter 58-A of the

Consolidated Laws of New York (McKinney’s vol. 35c) also

implements Art. IX of the New York State Constitution in

ways not pertinent to Local Law No. 7 or to the issues

presented by this Petition.

Other General Laws

Prior to the adoption of Local Law No. 7, the Niagara

County Legislature received an opinion of independant

counsel that under then existing court interpretations the

proposed local law would be consistent with and supple-

mental to the following general laws of the State of New

York: Public Health Law, §17 (medical records); § 347

(county ordinance); § 2305 (excuses notice to parent in

cases of veneral disease); Art. 24-A (informed consent for

human subjects of experiments) ; § 2504 (consent to medical

treatment over age 18, etc.); §2805-d (definition of in-

formed consent in malpractice); Title III (birth records;

definition of live birth); Title V (fetal deaths, def.) ; Title

V-A (induced viable birth); § 2503 (drug information to

expectant mother); Title XII (toxic substances; Niagara

County) ; § 2500-c (drug DES; importance of mother’s med-

ical history for pregnant minor). See Record on Appeal,

Exhibit No. 2, pp. 36-37.

A-16

APPENDIX C

SUPREME COURT OF THE UNITED STATES

No. A-634

FRANcIS CLIFFORD, COMMISSIONER OF THE DEPARTMENT OF

HeautH or Niacara County, New York,

Petitioner

Susan B., Er AL.

Respondents

—

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consmeration of the application of counsel for

petitioner(s),

Ir Is Orperep that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same

is hereby, extended to and including February 27, 1980.

THURGOOD MARSHALL

Associate Justice of the Supreme

Court of the United States

Dated this 25th

day of January, 1980.

A-17

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the Thirtieth day of

October one thousand nine hundred and seventy-nine.

Present: HonorasLte THomas J. MESKILL,

HonorasBte Amaya L, Kearse, Circuit Judges,

HonoraBLe Joun F. Dootine, District Judge.*

+:79-7443

Susan B., Donna Marte Hazterr and Emma G., on their

own behalf and on behalf of all others similarly situated,

Plaintiff s-A ppellees,

Francis Cuiirrorp, Commissioner of the Department of

Health of Niagara County, N.Y.,

Defendant-A ppellant.

rr > ir

Appeal from the United States District Court for the

Western District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Western District of New York, and was argued by counsel.

* Hon. John F. Dooling, United States District Judge for the East-

ern District of New York.

A-18

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment

of said District Court be and it hereby

affirmed substantially on the opinions of Judge Elfvin below

dated December 15, 1978, and May 23, 1979.

Tuomas J. MESKILL

Thomas J. Meskill, U.S.C.J.

Amaya L. KEArse

Amalya L. Kearse, U.S.C.J.

Joun F. Doorine

John F. Dooling, U.S.D.J.

A-19

APPENDIX E

CIV-78-823

MEMORANDUM and ORDER

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Susan B. and Donna Marte Hazzett, on their own behalves

and on behalf of all others similarly situated,

Plaintiff s,

Francis Currrorp, Commissioner of the Niagara County

Health Department,

Defendant.

—_——— ae

Plaintiffs allege that Niagara County Ordinance 336-78

(Exhibit A to the complaint herein) infringes upon their

constitutional rights to seek abortions and that the ordi-

nance is invalid under New York State Law. Plaintiffs

request and defendant opposes the issuance of a temporary

restraining order (“TRO”).

When the action was initiated and the motion for the

TRO argued, “Susan B.” was the sole named plaintiff.

After oral argument on the motion, the complaint was

amended to include Donna Marie Hazlett as a plaintiff. She

is alleged to be a married woman who has been told by her

doctor that the fetus she is carrying is probably dead or

has defects. Hazlett has decided to have an abortion and

A-20

does not want to undergo the counseling mandated by Ni-

agara County Orinance 336-78, nor does she want to wait

five days from the date of notification to her husband to

have her abortion. Although Hazlett resides in Erie

County, her attending physician practices in Niagara

County and is associated with a hospital in Niagara

County. The provisions of the Niagara County ordinance

apply to any female having an abortion in Niagara County.

Susan B. is alleged to be a young unmarried woman who

desires an abortion. Susan B. is her pseudonym. Her

existence and status have not yet been satisfactorily demon-

strated to the court. For present purposes the presence of

Hazlett makes unnecessary any present inquiry re Susan B.

Oral argument on plaintiffs’ request for a TRO was held

December 5, 1978. Three individuals were allowed to argue

as amici curiae.! At the end of the argument, there was a

discussion concerning the need for further hearings and/or

arguments before a decision could be made on plaintiffs’

request for a preliminary injunction. Plaintiffs’ position

was that no further hearings were necessary if the court

found the state law argument sufficient to permit the issu-

ance of a preliminary injunction but that, if the court

decided it had to reach the constitutional issues in order to

rule concerning a preliminary injunction, an evidentiary

hearing would be necessary. The defendant and the amici

stated that an evidentiary hearing was needed before the

court could decide the constitutional issues.

Jurisdiction over the subject matter of plaintiffs’ consti-

tutional claims exists under 28 U.S.C. §1331(a). This

court has pendent jurisdiction over the state law claim.

1. The individuals are Marie Crosson, a young woman residine

in Niagara County who wishes the ordinance io ners it in effect, ond

James and Pat Foltz, parents of a twelve-year old girl suffering from

a heart condition, who would want to be notified if their daughter

were scheduled to undergo an abortion.

A-21

Injunctive relief, whether of a temporary or a permanent

nature, requires the showing of irreparable harm and either

probable success on the merits or sufficiently serious liti-

gable questions and a balance of hardships tipping decid-

edly toward the party requesting such relief. Rondeau v.

Mosinee Paper Corp., 422 U.S, 49 (1975). A finding of

irreparable harm in the instant case is dependent upon

plaintiffs’ showing a likelihood of success on the merits.

In Robin v. Incorporated Vil. of Hempstead, 334 N.Y.S.

2d 129 (1972), the New York Court of Appeals held that

local authorities were prohibited from passing regulations

dealing with abortion because the state had pre-empted that

field. The court cited New York’s Public Health Law

§ 2800 in support of its conclusion. The language of sec-

tion 2800 has not changed since the New York State Court

of Appeals issued its decision in Robin; therefore, there is

no reason to believe that the Robin case does not accurately

reflect the present law of New York. Crosson argued that

Robin creates an exception when there are unique local

circumstances justifying local action and cites the “Love

Canal” situation? as such justification for the enactment of

the present abortion ordinance. This argument is without

merit. The first eight paragraphs of the ordinance set forth

the reasons for its enactment without any mention of the

2. The Love Canal is the popular name tag for a phenomenon

that was discovered—rather, uncovered—during 1978 in one part

of the City of Niagara Falls in Niagara County. At an earlier date

one William Love had dug a canal which was purposed at chan-

neling certain waters from their source to a point of industrial use.

The project was not completed and, at a later time, a Niagara

County manufacturer of chemicals utilized a portion of the excava-

tion as a depository of its chemical wastes. Residences and a school

more recently came into being at or near such depository and in

1978 there was great alarm (which continues) concerning the toxic

effects upon human beings and upon humans yet to be born. A

national emergency was declared.

A-22

Love Canal or any comparable circumstances, The sections

governing medical counseling of the female and distribution

of printed material to the female do not mention the topic of

printed material to the female do not mention the topic of

chemical or other local toxicity. The Robin case is a clear

pronouncement of New York State law. There are no

questions of fact to be considered in resolving the state

law claim; therefore, there is no need for an evidentiary

hearing. Plaintiff’s request for a preliminary injunction

is hereby consolidated with her request for a TRO. How-

ever, this disposition is without prejudice to the right of

any party to request further hearings and to move for

vacatur of the preliminary injunction now being granted.

Although Niagara County Ordinance 336-78 does not

prevent a woman from having an abortion, it does place

restrictions thereupon. In view of the statutory pre-

emption of the field by the state, Niagara County does not

have the authority to regulate abortions; therefore, the

ordinance is an unwarranted local interference with the

practice and allowability and control of abortions on a

state-wide basis. The continuing local interference estab-

lishes irreparable harm. New York Path. & X-Ray Lab.,

Inc. v. Immigration & N.S., 523 F.2d 79 (2d Cir, 1975).

It is therefore hereby

ORDERED that defendant, his agents, employees and

successors are preliminarily enjoined from enforcing or

executing the restrictions and regulations contained in

Niagara County Ordinance No. 336-78.

Dated: Buffalo, N. Y.

December 15, 1978

JoHN T. ELFVIN

US.D.J.

A-23

APPENDIX F

SUPREME COURT

STATE OF NEW YORK

COUNTY OF NIAGARA

Joun H. Kotecxt, Louis BE. Caccatano, James Foutz, Parrt-

cia Foirz and Mary Creieste Crosson, Individually and on

behalf of all others similarly situated,

Plaintiffs

—against—

Tue County Or NIAGARA

and

Joun V. Smon, County Attorney and Francis CLiFForp,

Commissioner of the Niagara County Health Department

in their official capacities,

Defendants.

APPEARANCES: Frank J. Moran

A. Lawrence Washburn, Jr.

Attorneys for Plaintiffs.

John V. Simon

Attorney for Niagara County,

Michael A. Gold of Counsel.

Steven R. Shapiro

Barbara Ellen Handschu

Attorneys for amicus curiae,

Susan B. and Donna Marie Hazlett.

BROUGHTON, J. This is an action for a declaratory

judgment adjudging that the County of Niagara acting

A-24

through its County Legislature, lawfully adopted Local

Law No. 7 regulating the performance of abortions in that

county. The plaintiffs have moved for summary judgment

upon the basis that only a question of law is involved as to

the power of the County Legislature to adopt the measure

within the provisions of the New York State Constitution,

Article IX, Section 2, Subd. (c).

The plaintiffs John H. Kolecki and Louis E. Caggiano

are residents of the County and are both members of the

County Legislature who voted in favor of the adoption of

Local Law No. 7. The plaintiffs James and Patricia Foltz

are also residents of the County and are the parents of a

minor child said to be of child bearing age. The plaintiff

Mary Celeste Crosson is a county resident of child bearing

age attending and residing on the Niagara University

Campus.

The defendants, John V. Simon, County Attorney of

Niagara County and Francis Clifford, M.D., Commissioner

of the Niagara County Health Department have been

eliminated as defendants upon stipulation during oral argu-

ment of the motion for summary judgment leaving the

County of Niagara as the sole defendant.

By an earlier order of this Court certain individuals who

are plaintiffs in a declaratory judgment and an injunction

action now pending in the U.S. District Court involving the

same Local Law No. 7 were granted status as amicus curiae

in this action.

Briefly stated, the events which precipitated this action

began with the adoption of Local Law No. 7 by the Niagara

County Legislature on October 3, 1978 to become effective

on the 60th day after its passage.

That ordinance, while it does not prohibit the perfor-

mance of abortion procedures in the County of Niagara,

A-25

does contain rather detailed requirements concerning in-

formed consent, notice to spouses and parents, and report-

ing provisions coupled with authorization for the imposi-

tion of a fine or penalty of not less than $500 nor more than

$1,000 in the event of violation.

On December 5, 1978 an action was commenced in the

U.S. District Court for Western New York against Dr.

Clifford as Commissioner of the Niagara County Health

Department by one Susan B., a pseudonyn for young un-

married female said to be a resident of Niagara County

who desired to have an abortion performed. That action

sought a declaration that Local Law No. 7 was an uncon-

stitutional interference with the right of the plaintiff and

others similarly situated to obtain an abortion and sought

a permanent injunction against its enforcement.

Following commencement of that action a motion was

made for a temporary restraining order which was merged

with the application for a preliminary injunction and

granted on December 15, 1978. Upon argument of that ap-

plication in the District Court, one Donna Marie Hazlett,

alleged to be a pregnant married woman uot a resident of

Niagara County who desired to have an abortion per-

formed there by her physician, was added as a party plain-

tiff.

It further appears that a third plaintiff, Emma G. (also

a pseudonym), a married, pregnant Niagara County res*

dent has also been joined in the action as a plaintiff. James

and Patricia Foltz and Celeste Crosson, plaintiffs in the

subject action have been granted standing and status as

amicus curiae in the District Court proceeding.

As matters now stand then, implementation of Local Law

No. 7 is and has been enjoined by the U.S. District Court

since December 15, 1978 and a motion is now pending before

A-26

that Court, returnable on March 5, 1979 for a summary

judgment sranting, inter alia, a permanent injunction

against the enforcement of Local Law No. 7 upon the prin-

cipal ground that it is invalid as a matter of State law and

because its enforcement would violate the federal plaintiffs’

rights under the Ist, 4th, 5th, 9th and 14th amendments to

the United States Constitution.

The District Court, in granting the preliminary injunc-

tion held that as a matter of State law local political sub-

divisions in the State of New York were precluded from

adopting local laws or ordinances regulating the perform-

ance of abortions since the State of New York itself had

preempted that field to exclusion of all local authorities. In

reaching that determination the District Court relied upon

a decision of the New York State Court of Appeals in Robin

v. Incorporated Village of Hempstead, 30 N.Y. 2nd 347

(1972), which struck down an ordinance of that Village

requiring that abortions be performed only in an accredited

hospital.

Specifically, the Court of Appeals held that the Village

was without power to enact the ordinance since the State

itself had pre-empted the subject of abortion legislation

and occupied the entire field so as to prohibit additional

regulation by local authorities of the same area.

The plaintiffs in the present suit do not question the

applicability of the Robin decision, but seek a declaration

that the so called “Love Canal” situation constitutes a local

problem enabling the County Legislature to validly adopt

Local Law No. 7. They desire that this question be deter-

mind by this Court so that an appeal may be taken directly

to the New York Court of Appeals and the issue resolved

as a matter of State law.

Unfortunately, this Court is precluded from rendering a

determination upon that question because no justiciable

oe cen eA PAS ne

A-27

controversy is presented by the plaintiffs’ complaint or the

affidavits submitted in support of their motion for a sum-

mary judgment. It must be recalled that the present action

is one to have a law declared to be constitutional, not an

action by persons who claim that enforcement of the ordi-

nance would constitute infringement of their rights.

Local Law No. 7 as adopted enjoyed the presumption of

constitutionality extended to any duly enacted law, be it

State or local, People v. Epton, 19 N.Y. 2nd 496, and while

that presumption is rebutable (Lincoln Bldg. Associates v.

Barr, 1. N.Y. 2nd 413) it continues until the statute or ordi-

nance is declared to be invalid by a court of competent

jurisdiction, (Town of Babylon v. Conte, 61 Mise. 2nd 626).

In this action the plaintiffs seek a declaration that Local

Law No. 7, adopted by the defendant County of Niagara is

constitutional while the defendant County of Niagara must

perforce also support the validity of its own enactment.

Whatever the personal professional opinion of the

County Attorney may be (and he did appear in the District

Court to argue against the granting of the preliminary

injunction), the position of the County of Niagara cannot

be otherwise than in favor of the ordinance adopted by its

own legislative body. As between these parties then, there

is no controversy for the Court to resolve and no basis for

a declaratory judgment pursuant to CPLR 3001. (Good-

man & Co. v. New York Tel. Co., 309 N.Y. 258).

The only dispute here arises from the fact that the plain-

tiffs, as many others may be, are disappointed by the Dis-

trict Court’s injunction against the enforcement of Local

Law No. 7. This is made plain by the statement in the affi-

davit of plaintiffs’ counsel that “The controversy herein is

created by the Federal Court preliminary injunction .. .”

(Plaintiffs’ “Affirmation in Support of Summary Judg-

A-28

ment ...”, p. 7, par. 15). That does not create a justiciable

controversy between these parties subject to resolution in

this Court.

The plaintiffs have constructed a rather elaborate argu-

ment to the effect that since the federal court’s finding that

the plaintiffs there showed a likelihood of success on the

basis of the Robin case is merely a forecast of New York

law and is non-final in nature that this Court may proceed

to determine that question for itself. That is to say that

parallel actions for the same relief involving different

plaintiffs might proceed simultaneously in both state and

federal courts. That may well be, but the real difficulty is

that we do not now have two bona fide actions proceeding

at once. Aside from the fact that there is no actual dispute

or controversy present in this action, none of these plain-

tiffs, unlike those in the federal suit, has any personal

standing to maintain this proceeding. (Roe v. Wade, 410

US 113, 352, Ed 2 694; Doe v. Bolton, 410 US 179, 35 L. Ed

2 201).

Had an action been commenced in this Court by parties

having the requisite standing to challenge the constitution-

ality of Local Law No. 7 the plaintiffs’ arguments would be

in point and this Court might well have proceeded to deter-

mine whether or not Local Law No. 7 was a valid enactment

as a matter of State law. In as much as that is not the case

here, the plaintiffs’ motion for summary judgment must be

denied and since the complaint does not state a cause of

action upon which relief may be granted, the complaint

itself must be dismissed. (CPLR 3212 (b).)

It should be noted that this result does not leave the

plaintiff without a forum in which their claims can be pre-

sented. The plaintiffs Foltz and Crosson have been granted

standing as amicus curiae by the District Court and presum-

DCs Sa ok WN FR ate

A-29

ably others of similar persuasion could also apply for that

status. In addition, the District Court in granting the pre-

liminary injunction of December 15 did so, “Without pre-

judice to the right of any party to request further hearings

and to move for vacatur of the preliminary injunction now

being granted”. Thus an avenue for relief has been left

open should the defendant County of Niagara desire to

present additional arguments or proof with respect to the

so called local problem “exception” relied upon here to

‘sustain the validity of Local Law No. 7.

Submit order.

Joun C. BrouGHTon

SUPREME COURT JUSTICE

Dated: February 15, 1979

A-30

APPENDIX G

MEMORANDUM and ORDER

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CIV-78-823

Susan B., Donna Marte Hazitetr and Emma G., on their

own behalf and on behalf of all others similarly situated,

Plaintiffs,

—vs—

Francis Cuirrorp, Commissioner of the Department of

Health of Niagara County, N. Y.,

Defendants

—_—_—_———EE-—

Plaintiffs move for class action certification and for par-

tial summary judgment on their state law claim (as set

forth in paragraph 23 of their Second Amended Com-

plaint). Defendant opposes the motion for partial sum-

mary judgment.

Class Action Motion

Plaintiffs satisfy the criteria set forth in Fed.R.Civ.P.

rule 23(a). The class is so numerous that joinder is im-

practical, there are questions of law and fact common to

the class, the aims of the representative parties are typical

of the class and it appears at this time that plaintiffs will

fairly and adequately protect the interests of the class.

Certification pursuant to rule 23(b)(2) is proper in this

case inasmuch as defendant has acted on grounds generally

applicable to the class, thereby making final injunctive or

A-31

declaratory relief appropriate with respect to the class as

a whole.

Amici wrote the court stating that plaintiffs’ proposed

class was too broad because it included women who did not

object to Local Law No. 7 of 1978 (“‘Local Law No. 7”). A

class should be so defined that all members of the class

have standing to maintain the action. Lamb v. Hamblin,

57 F.R.D. 58 (D. Minn. 1972). Consequently, the plaintiff

class shall include all women who are or may become preg-

nant and who desire or may desire an abortion to be per-

formed in Niagara County by the physician of their choice

and who do not wish to be subject to the mandates of Local

Law No. 7.

Motion for Partial Summary Judgment

Defendant opposes the motion, arguing that the court

should abstain from deciding the state law question. De-

fendant contends that the state courts are in a better posi-

tion to decide whether the health problems caused by ex-

posure to toxic chemicals are a special local condition justi-

fying the local legislation involved in the instant case.

Amici originally argued the case on the merits, but now

take the position that abstention is warranted. Amici

claim that “[t]he question of what, if any, abortion-related

local laws will fit within the exception delineated by the

New York Court of Appeals in the Robin case [infra] is an

uncertain question of state law under the rule of McRed-

mond v. Wilson, [533 F.2d 757 (2d Cir. 1976)].” (Wash-

burn affirmation dated March 3. 1979.) Plaintiffs assert

that Robin v. Incorporated Vii. of Hempstead, 30 N.Y.2d

347 (1972), is a clear pronouncement of state law and that

resolution of the issues presented in the instant case in-

volves only an application of adequately defined state law.

A-32

Plaintiff’s argument is well taken. This case does not

involve an uncertain question of state law as such term is

used in Railroad Comm’n v. Pullman Co., 312 U.S. 496

(1941), and Reid v. Board of Education of City of New

York, 453 F.2d 238 (2d Cir. 1971). New York State’s Court

of Appeals has found an intent upon the part of the state

“to preempt the subject of abortion legislation and occupy

the entire field so as to prohibit additional regulation by

local authorities in the same area.” Robin v. Incorporated

Vil. of Hempstead, 30 N.Y.2d at 350. Where the state has

preempted an area, local legislation that inhibits what the

state has allowed is considered to be inconsistent with the

state legislation. People v. Cook, 34 N.Y.2d 100, 109

(1974); S. H. Kress & Co. v. Department of Health, 283

N.Y. 55, 59 (1940); Kim v. Town of Orangetown, 66 Mise.

2d 364, 521 N.Y.S.2d 724 (S.Ct., Rock. Co. 1971). How-

ever, such inconsistent legislation may be upheld if it is

based on a unique local situation. People v. Cook, supra;

Robin v. Incorp. Vil. of Hempstead, supra; S. H. Kress &

Co. v. Department of Health, supra; Kim v. Town of

Orangetown, supra. The parameters of the home rule

power available to Niagara County in the instant case have

been clearly set forth by the New York courts. The

question is whether this particular local law falls within

the ambit of such power. This is not the type of state law

question that requires abstention.

Amici argue that the Love Canal situation (as to which

reference should be had to page 3 of my Memorandum and

Order filed December 15, 1978) is a special condition per-

mitting the enactment of Local Law No. 7. They assert that

the Niagara County legislature believed an increase in the

number of abortions would result from people’s fears con-

cerning the effects of exposure to toxic chemicals on a fetus

awl aac teed tecnica

Bin weet cette ns biel asians nett ince Soa) niet a ae

A-33

and wanted to insure that women would make an informed

choice on the question whether to have an abortion.

Defendant joins in the argument. Plaintiffs contend that

the Love Canal situation was not a substantial moving force

behind the passage of Local Law No, 7 and, therefore, can-

not be used to support the law. The file accompanying Local

Law No. 7 was submitted by amici. The file contains writ-

ten statements sent by mail or submitted at the time of the

public hearing on the law. I have reviewed the file and find

that none of the speakers addressed pregnancy-related

problems in relation to prolonged exposure to toxic chem-

icals. Furthermore, none of the speakers favoring the law

asserted that it was necessitated by the Love Canal

situation.

Amici set forth a “chronology of facts” preceding enact-

ment of Local Law No. 7, arguing that such facts demon-

strate that the Love Canal situation was in the minds of the

Niagara County legislators at the time they passed Local

Law No. 7. After reviewing these “facts”, I cannot accept

amici’s argument that the Love Canal situation was a sub-

stantial reason for the enactment of Local Law No. 7. The

passage of title XII (sections 1385-1389) of the Public

Health Law by the state legislature does not provide

Niagara County with a justification for all health-related

legislation. There must be a nexus between the legislation

and the problems posed by exposure to toxic substances.

Cf., Good Humor Corporation v. City of New York, 290

N.Y. 312 (1943). Furthermore, title XII does not increase

the home rule power given to Niagara County; it authorizes

the department of health to conduct a study to determine

the extent to which toxic substances are exposing citizens of

the state to unnecessary hazards. Although a Dr. Clifford

spoke to the Niagara County legislature on the Love Canal

A-34

situation, there is no indication that his remarks were con-

nected to Local Law No. 7. Dr. Dennis Bonnette’s remarks

concerning the Lovel Canal were extremely brief; his state-

ment makes it clear that he believed the local law deserved

“enactment on its own merits”. There is no suggestion in

his remarks that the legislation was needed to cope with

problems arising from exposure to toxic chemicals. Former

United States Senator James L. buckley’s comments do not

deal with the issue of exposure to toxie chemicals. Ms.

O’Connor, in her address, briefly remarked upon the lack of

knowledge concerning the effects of chronic exposure to

toxic wastes and the problems such could cause an anes-

thesiologist. This problem is not touched upon in Local

Law No. 7.

Niagara County Legislator Kolecki, the sponsor of the

legislation, spoke on its behalf at the outset of each of the

public hearing’s two sessions. He stated that, while he

respecied and honored the United States Supreme Court’s

decision legalizing abortions, he viewed it as having many

shortcomings. It was, he said, for that precise reason that

he sponsored the resolution. He submitted that the court

fell short “of safeguarding the health and welfare of preg-

nant women who choose to have an abortion, and to safe-

guard the civil rights of parents, guardians and spouses.”

This void, he hoped, would be eliminated by his proposal

which had as its main thrust the protection of the health

and welfare of pregnant women who are contemplating

abortion. Legislator Kolecki did refer to the Love Canal in

his remarks at the opening of the initial session of the

public hearing as follows:

“To many of us it is common knowledge that we

are living in a permissive society, and yet few of us

can decide how permissive we want our society to be,

a cle cent ae

A-35

or how nonpermissive we think our society should

become. Moreover, most of us today are divided on

the subjects of obscenity, Proposition 15 needless to

say, and we are faced with the cripling [sic] problem

of Love Canal & the crucial issue of abortion.”

Attorney A. Lawrence Washburn, who represents an ami-

cus here, spoke at the public hearing concerning the serious

concern expressed by the County Attorney of Niagara

County with the Robin decision. He said:

“TN ]Jothing in the [Robin] case precludes you from

adopting a local law dealing with health conditions

peculiar to Niagra [sic] County as opposed to the

rest of the State.***

“The existence of local health problems peculiar to

Niagra [sic] County as opposed to the rest of the

State has been expressly recognized by our State

Legislature *** in dealing with Toxic Substances

[sie] and [citing] certain landfill conditions believed

to exist in Niagra [sic] County as showing the need

for immediate legislative action. It would be pre-

posterous to say that Niagra [sic] County does not

have a serious local health problem affecting preg-

nant women, some of whom may be panicked into

seeking unnecessary abortions.

“The proposed local law *** seeks to place at the

disposal of the pregnant woman and her physician

all of the facts concerning the condition of the woman

and her unborn child. Clearly, facts relating to the

environment in which the pregnant woman has lived

may be known to her husband, but unknown to

her.***”

Although the toxic chemical problem in Niagara County

is a unique local condition, it cannot be used to support

Local Law No. 7. Inconsistent local laws must be based

upon special conditions existing in the county. People v.

A-36

Cook, supra; Robin v. Incorporated Vil. of Hempstead,

supra; Kim v. Town of Orangetown, supra. In other words,

the law must be an attempt to deal with the unique local

problem.

It is important to note that Love Canal as a local prob-

lem—a serious local problem—does not support this legis-

lative effort. Whatever can be said of the justification for

the adoption of Local Law No. 7, its purpose is not to make

abortions easier to obtain in Niagara County. Whereas

prior to its effective date consent to the procedure must have

been obtained or given as with any surgical procedure,

thereafter such consent must be certified and in writing and

state affirmatively that the consent is an informed one and

freely given and not the result of coercion. It cannot be

obtained later than the 24th hour before the operation. The

woman and the physician each must certify that the former

has received and read and understands certain specified

materials none of which speak of or deal with effects of

ambient toxicity upon unborn children and all of which

expose the woman to persuasions to carry the fetus for the

full period of gestation and to produce a living child. (Sec-

tion 5(A)(iii) flatly states “that it is the policy of the

County of Niagara to favor childbirth over abortion.”) The

physician must have proof that the woman’s spouse (if any)

has received five days’ notice of the abortion and copies

of said materials. If the woman is a minor who has never

married, the physician must have proof that her parent or

guardian or legal custodian had five days’ notice of the

abortion and copies of said materials and must possess a

consent obtained by a court order after a hearing. The

local law does not limit itself in its applicability to women

who live or have lived in an area or atmosphere of toxic

wastes. It does not limit itself even to abortions performed

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A-37

on Niagara County residents but applies as fully to foreign

residents who might, for very good reasons, wish to have an

abortion performed in Niagara County.

The language of Local Law No. 7 shows that it was en-

acted in the belief that women should be warned of the

possible medical complications of an abortion and that

minors should not undergo an abortion without the consent

of their legal guardian or without an order of the Supreme

Court of New York State. The whereas clauses of Local

Law No. 7 demonstrate that the prime motivating factor be-

hind the passage of the law was the legislature’s desire to

insure that women considering an abortion were presented

with “evidence” tending to show that human life begins at

conception. These reasons are not related to the issue of

exposure to toxic wastes. The topic of toxic wastes is not

mentioned in the law. The law does not require that physi-

cians inform women, their spouses or their parents of the

medical problems that could occur during an abortion or

during pregnancy as a result of exposure to toxic wastes,

nor does it require that physicians inform women of the

chances of their encountering such problems. During the

public hearings on Local Law No. 7, many of the speakers

addressed themselves to the physical and psychological

ramifications of abortions and the paucity of information

available dealing with such to women contemplating an

abortion. Although abortions can have physical and psy-

chological consequences, such are not peculiar to women re-

siding in Niagara County and are not the result of expo-

sure to toxic wastes. Local Law No. 7 does not fall within

the special local condition exception set forth in Robin v.

Incorporated Vil. of Hempstead, supra.

A-38

It is therefore hereby

ORDERED that the action herein shall be maintained as

a class action pursuant to Fed.R.Civ.P. rule 23(b)(2) and

that the class shall be comprised of all women who are or

may become pregnant and who desire or may desire an

abortion to be performed in Niagara County by the physi-

cian of their choice and who do not wish to be subject to

the mandates of Local Law No. 7; and it is further

ORDERED that plaintiffs’ motion for partial summary

judgment on their state law claim is granted; and it is

further

ORDERED that defendant, his agents, employees and

successors are permanently enjoined from enforcing or ex-

ecuting the restrictions and regulations contained in Local

Law No. 7.

Dated: Buffalo, N. Y.

May 23, 1979

JoHn T. ELFvin

U.S.D.J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.