Opposition Brief — Wallace v. Kern

LIBRARY, eerrener

SUP

IN THE : | BICRASL ROM

Supreme Court of the United States

October Term, 1973

No. 73-681 i

DONALD WALLACE, MICHAEL McLAUGHLIN, et al.,

Petitioners,

v.

MICHAEL KERN, THE LEGAL AID SOCIETY, THE

PEOPLE OF THE CITY AND STATE OF

NEW YORK, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF IN OPPOSITION OF RESPONDENT

LEGAL AID SOCIETY

Arruur L. Liman

Pau, Weiss, Rirkinp, WHarTon & Garrison

345 Park Avenue

New York, New York 10022

(212) 935-8000

Auutan L, Groprer

Attorneys for Respondent

Legal Aid Society

.

*

-

TABLE OF CONTENTS

PAGE

ee COON PPI onc vasscscscessssevecancosssisersecscecaceccecvees 1

I a ae Nye ictal rae eee 2

Be ir aeresersectendnnavinanadsnatecessenrs 4

The District Court’s Findings and Injunction ............ 5

Argument

I—The Cireuit Court decisions are unanimous in

support of the rule followed below that a pri-

vate legal services organization ‘‘in no manner

under State or City supervision or control,’’

which performs a function ‘‘normally per-

formed for and by private persons’’ does not

act under color of state law within the meaning

pn SE 28 ee ee ne 10

Os ee 11

‘‘Involvement With the State”? 000.0000... 14

II—Review of this case is not timely since the real

issues of trial delay remain to be tried against

the state agents who can provide the necessary

resources to vindicate petitioners’ rights .......... 19

I oc eee ea a 21

RIV LGM LM ERLE GIES SL ITNT 88 9 HA EEN AES SATA REIN NNER ENN ARS CNT

SEDO EN RR:

I!

TABLE OF AUTHORITIES

' Cases:

‘Brown v. Duggan, 329 F. Supp. 207 (W.D. Pa. 1971) 14

Burton v. Wilmington Parking Authority, 365 U.S.

Ftc ak sass sasans cahaninsinibaaizenvertairts 15

‘Chambers v. Maroney, 399 U.S. 42 (1970) 0... 7

Christman v. Pennsylvania, et al., 275 F. Supp. 434

(W.D. Pa. 1967), cert. denied, 393 U.S. 885 (1968) 14

Espinoza v. Rogers, 470 F. 2d 1174 (10th Cir. 1972) 13

Evans v. Newton, 382 U.S. 296 (1966) ooo... 11

French v. Corrigan, 432 F, 2d 1211 (7th Cir. 1970),

cert. denied, 401 U.S. 915 (1971) 0... ees 13

Gardner v. Luckey, —— F. Supp. —— (M.D. Fla,

Jan. 24, 1973, No. 71-561 Civ. T-K) ..........cs 14

Grafton v. Brooklyn Law School, 478 F, 2d 1137 (2d

REAR el a aval aD ope in eo 16

Grossner v. Trustees of Columbia University in the

City of New York, 287 F. Supp. 535 (S.D.N.Y.

ea aoe crn a carcagiasasicsstucscrnmntiniincind 16

3 Jackson v. Hader, 271 F. Supp. 990 (W.D. Mo. 1967) 14

3 Lefcourt v. Legal Aid Society, 445 F., 2d 1150 (2d Cir.

j rac ccacearavensienes 10, 11, 12, 15, 16, 18

Mulligan v. Schlachter, 389 F’, 2d 231 (6th Cir.1968)... 18

Palermo v. Rockefeller, et al., 323 F. Supp. 478 (S.D.

III rissass 5254s ncssisticecdarsiadsresrriasisinesndardasineivaanrvirs 14

Peake v. County of Philadelphia, 280 F. Supp. 853

I ass says iva diatanaviaraesbascaveadansaniyi 14

Pugliano v. Staziak, 231 F. Supp. 347 (W.D. Pa. 1964),

aff’d per curiam, 345 F’, 2d 797 (8d Cir. 1965) ........ 14

%

Ber errrerccmne MEEVEE ERE P EEN SIAN LEON, PN NIN IAG ™ Ta NONE

Itt

PAGE

Reinke v. Richardson, 279 F. Supp. 155 (E.D. Wise.

TOGB) enscescsssseossessesecsersssesensenscvncevssnsosesnsesosevensassnessosenensese 14

Smith v. Allwright, 321 U.S. 649 (1944)... 11

Szijarto v. Legeman, 466 F, 2d 864 (9th Cir. 1972)... 18

Terry v. Adams, 345 U.S, 461 (19538) 00. 2

Thomas v. Howard, 455 F, 2d 228 (3d Cir. 1972) . i>: ae

United States ex rel. Wood v. Blacker, 335 F. Supp. 43

Cas BTID si sisssscsscsessssccseeseincnassnerontacasnasssenspeessessnesses 14

United States v. Senak, 477 F. 2d 304 (7th Cir, 1973),

cert. denied, 94 8, Ct. 157 (1978)... ces 13, 18

United States v. Wiseman, 445 F. 2d 792 (2d Cir.

1971), cert. denied, 404 U.S. 967 (1971)... 12

Vance v. Robinson, 292 F. Supp. 786 (W.D.N.C. 1968) 14

Wardrop v. Ross, 319 F. Supp. 1299 (W.D. Pa. 1970),

aff’d per curiam, 482 F. 2d 1049 (3d Cir.1970)... 14

Wood v. Virginia, 320 F. Supp. 1227 (W.D. Va. 1971) 14

Constitutional Provision:

United States Constitution, Sixth Amendment 7, 19, 21

Statutes:

SE, CO cscs naiericitienncicecictnsssncinionenmennis 13

I GI iciscisctinsiiisisncmanmnnimnnnnnel 2, passim

New York County Law, Article 18-B ooo... 19

Miscellaneous:

Amercan Bar Association, Project on Standards for

Criminal Justice—the Defense Function (1970) 7

IN THE

Supreme Court of the United States =

October Term, 1973

No. 73-681 |

DowaLp Wauiace, Micnarn MoLavenuiy, et al.,

Petitioners,

Vv.

Micuar, Kerx, Toe Lecan Am Socrery, Tue Prorie or

rue Crry AND State or New York, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

u—— Oe

BRIEF IN OPPOSITION OF RESPONDENT

LEGAL AID SOCIETY

The Question Presented

Did the United States Court of Appeals, in a ruling

which is in accord with the unbroken authority of six

Cireuit Courts and twelve District Courts, err in holding

that a private defender organization, which is in no man-

ner under state or city supervision or control, and which,

ee

2

in defending indigents in the state courts, performs a func-

tion normally performed by private counsel, is not subject

to suit and federal court supervision under 42 U.S.C. §1983?

Statement

The petition herein seeks to review an order of the

United States Court of Appeals for the Second Circuit

which unanimously reversed a preliminary injunction en-

tered against The Legal Aid Society of New York City

(the ‘‘Society’’). The injunction, made in three consoli-

dated actions brought in the Eastern District of New York

pursuant to 42 U.S.C. §1983, among other things, restrained

the Society from accepting or acting upon additional as-

signments of felony cases in the Supreme Court of Kings

County, New York, so long as the average caseload of its

trial attorneys in such Court exceeded 40, and subjected

the Society to continuing federal court supervision concern-

ing its acceptance of new assignments in the state criminal

court.

The petitioners in this case have formulated an abstract

question resting on a premise which is unsupported by the

facts established below. Thus, the petitioners ask this Court

to determine whether the federal courts ‘‘have the power,

pursuant to 42 U.S.C. §1983, to enjoin violation of constitu-

tional rights that arise from the improper conduct of public

or governmental functions, where those functions have been

delegated to agencies that are nominally private in nature.’’

(P. 2)*

No such question is presented by the facts of this case.

The record below, upon which the Second Circuit based its

* References are to the Petition for Certiorari.

3

decision, demonstrates that 1) the Society performs not

a public or governmental function, but a function which

has traditionally been performed by the private bar; 2)

that the Society’s only obligations are to the clients it de-

fends, and that the very essence of its role as assigned

defense counsel is to oppose the State, which it does with

vigor; and 3) that, as the trier of the fact found, the So-

cicty’s ‘‘attorneys compare favorably with private attor-

neys both in quality of their work and in their results.”’

(P.16a)*

The Society has long been regarded as the very model

of an effective and independent legal defense organization ;

and petitioners offered no proof, and the trier of the fact

made no finding, to the contrary. If, as the petitioners

urge, the Society can be said to perform a public or govern-

mental function, then every private attorney who accepts an

assignment from the state court to defend an indigent can

be subjected to liability and supervision by the federal

courts under Section 1983.

On the facts before it, the Second Circuit unanimously

ruled that the Society’s representation of indigents was

not action ‘‘under color of state’’ law within the meaning

of Section 1983, and that it was inappropriate for the fed-

eral court to exercise supervision over the Society’s docket

in the state court. The result was consonant with the de-

cisions of eighteen other courts which have considered the

status of independent legal service organizations under

Section 1983. A contrary decision could not be justified

by the proof in this case and would have per se subjected

the Society and other assigned private counsel in the state

criminal courts to continuous regulation, on a day-to-day

* References are to the Appendix to the Petition for Certiorari.

ANE RS EMIS SE Ee OTR RIG I BI

Oe

ae:

4

basis, by the federal courts with respect to their assign-

ments; thrown open the doors of the federal courts to

countless actions for damages under Section 1983 against

assigned counsel by clients in the state court dissatisfied

with the results in their case; and intruded deeply both on

the power of the state courts to make assignments to pro-

} vide the most effective representation of indigents, and on

‘ the authority of a private defender organization to manage

its own affairs and to discharge its obligations to its clients

i free from interference by either state or federal officials.

BO aan

The Second Circuit decision was clearly correct. Peti-

tioners’ quarrel is with the facts, which demonstrate the

Society’s independence. There is no issue of law to be

brought before this Court.

ea Ae eae

‘Ott

The Proceedings Below

The three actions in which the preliminary injunction

was entered were commenced by inmates in the Brooklyn

House of Detention then awaiting trial on felony charges.

The first of the actions, Wallace, et al. v. Kern, et al., named

as defendants all of the judges of the Kings County Su-

preme Court, other Court personnel, and the Kings County

District Attorney. The Society was not a defendant. The

complaint sought, among other things, an effective speedy

trial rule, a declaration that the defendants’ practices vio-

lated the Constitution, and an injunction requiring defend-

ants to accord all indigents in state court their constitu-

tional right to effective representation.

BAS PD aaa” Seb ieee,

Sh IRDA ee,

Postponing consideration of the request for an effective

speedy trial rule, the Court proceeded to hold evidentiary

ae as RMN Ty WEIL ELL GALI LEP IGOR SDL AME AE. LO MARI TOLLE ETEL LY LIP ON TT BEEN BNI SEIS HERPES TOR

eT Res @ 5 oe a SISVE Ess ow .

CASEMENT PRINS Ty PR OIRE T Y RL RR BSRE OE SR I

5

hearings limited to petitioners’ application for preliminary

relief against the judicial authorities, directing them to

afford indigents more adequate representation in the state

court. These hearings were later consolidated with hear-

ings in the pro se, independently commenced McLaughlin

actions, which named the Society as a defendant and sought

similar relief.

Extensive proof was offered at the hearings concerning

the cause of the calendar congestion in Kings County and

the conditions under which the Society was required to

labor. But no proof was offered by petitioners to support

their contention here that the Society was subject to state

or city control and all of the evidence confirmed that the

Society is managed independently and that its attorneys’

only duty is to their clients.

The District Court’s Findings and Injunction

The District Court’s principal opinion, filed simultane-

ously with its preliminary injunction against the Society,

reflected a deep and justifiable concern over the then cal-

endar conditions in the criminal courts in Kings County,

a concern which the Court of Appeals shared. The District

Court found that the criminal parts of the Supreme Court

in Kings County were in a ‘‘state of deep crisis,’”’ attribut-

able in large part to a ‘‘dramatic increase”’ in indictments

without a corresponding increase in trial parts and other

judicial resources. With the courts unable to try the bur-

geoning number of indictments, defendants often lan-

guished in jail for 12 to 15 months awaiting the trial of

their cases.

ee

sin |

FE ON es

6

In seeking relief under Section 1983 against the Society

for the calendar conditions in the Kings County Supreme

Court, the petitioners chose the wrong party, the wrong

relief, and the wrong forum. As a private organization,

the Society has and had no power to provide the additional

judges and supporting facilities necessary to afford de-

fendants their right to a fair and speedy trial.

The District Court was desirous of providing some re-

lief for the crisis in the state court but, mindful of ‘‘a

federal court’s limited power,’’ and in ‘‘the interests of

comity,’’ concluded that it should limit itself at the prelimi-

nary injunctive stage to relief against the sole private de-

fendant, the Society.* Consequently, the Court could fo-

cus only on one of the effects, not the cause, of the calendar

paralysis in Kings County—the backlog of immobilized

cases assigned to the Society’s attorneys. The Society had

increased its staff in Kings County from 16 attorneys in

December of 1971 to 57 by June of 1973. It had also filed

numerous applications for speedy trial, and pressed ap-

peals on this issue to the New York State Court of Appeals.

But increases in the Society’s staff and motions in individ-

ual cases could not eliminate the bottleneck of too few

judges and courtrooms for too many cases, and the inven-

tory of frozen cases awaiting trial remained.

The District Court found that there was no evidence

that the Society was responsible for the log-jam, that any

Legal Aid attorney was failing to do his best under exist-

ing circumstances (P. 7a), or that representation on an

* The District Court also enjoined the Court Clerks from failing

to calendar pro se motions brought by indigent defendants. This

aspect of the decree was also vacated by the Second Circuit, but it

was not brought before this Court by petitioners. (P. 10, n. 5)

CEL ARLE IE TL OTIS cathe PRE EP LIAN zs ELPA TELL IIOF

SRR RE LOM NIT AY FETT BEEN

7

actual trial had failed to meet traditional standards of

effective assistance of counsel (P. 27a). Indeed the Dis-

trict Court specifically found that ‘‘Legal Aid attorneys

compare favorably with private attorneys both in quality

of their work and in their results’’ (P. 16a).

Nevertheless, the Court ruled that in considering pro-

spective injunctive relief under §1983, the ‘‘adequacy of

representation by The Legal Aid Society may be measured

by a different standard’? than that utilized in post-trial

habeas corpus petitions based on denial of Sixth Amend-

ment rights to effective counsel (P. 30a). The Court found

that prospective standard in the provisions governing

‘‘effective assistance of counsel’’ in the American Bar As-

sociation’s Project on Standards for Criminal Justice—The

Defense Function (1970). In so acting, the District Court

also disregarded this Court’s reluctance to lay down uni-

form prospective rules to govern Sixth Amendment rights.

E.g., Chambers v. Maroney, 399 U.S. 42 (1970).

Measuring the Society against the ABA’s Standards,

and stressing the large number of cases awaiting trial, the

Court concluded that ‘‘the overburdened, fragmented sys-

tem used by Legal Aid does not measure up to the consti-

tutionally required level’’ (P. 32a).

The relief which the Court fashioned fixed an average

caseload of 40 for each of the attorneys assigned to the

trial parts of the Supreme Court, and it added a require-

ment that new assignments could not be undertaken with-

out the professional certificate of the local Brooklyn office

chief. In such respect, the Court intruded deeply into the

Society’s internal affairs, shifting responsibility from its

officials to the federal court for determining the staffing

HMI EA PALLY LAE AYE WYRE RN A Hi MATIN

4 . e ‘. -. ba a io sal

SEALS TAL OER ES AEE i BE

pat

gO ERE REO ELEROBSS,

8

needs of the Society in state court. To the extent that the

Society was to be consulted on the subject, the Court by-

passed the Society’s principal officers, and lodged respon-

sibility in the local office in Kings County to certify whether

the Society could undertake further cases there.

Having postponed consideration of petitioners’ request

for a speedy trial rule, and choosing to grant relief only

against a private organization with no power to command

public resources for the courts, the District Court’s order

failed to act upon the heart of the crisis in the adminis-

tration of justice in Kings County—the delay which per-

vaded all aspects of the criminal process there—even though

it recognized that it would have to modify its injunction

against the Society if ‘‘defendants did not stay in jail as

long’ (P. 35a). But the failure of cases to proceed to

trial was not the result of caseloads of the Society, but of

the lack of sufficient trial parts to keep up with the indict-

ments. The decision did not and could not create one addi-

tional trial part, or advance the day on which a single case

could be heard. The only effect of the injunction was to

direct the division of the same quantity of the stacked-up

cases for which trial parts did not exist among a greater

number of lawyers.

The relief granted by the District Court was worse than

cosmetic. Because of its unwillingness to act against the

public officials who control the funding for assigned coun-

sel, the District Court took no steps to assure that quali-

fied private counsel would be available to provide repre-

sentation for indigents whom the Society was barred from

representing, and it rejected the prayer by the Wallace

plaintiffs that the State be directed to provide the Society

. = Preenn” a w pote m ae) A Re naa

r ORI RS Sra > TEI ree Ce DaNRT ~ r

PE b v ¥ r

9

with additional funds to increase the number of attorneys.

Thus, the District Court’s preliminary injunction had the

unintended effect of relegating indigents to representation

by private attorneys drawn from a panel who all witnesses

agreed were not as effective and diligent as the Society’s

attorneys, and who could be paid only nominal fees for their

services. And the ultimate irony was that these attorneys,

who had to combine their private practices with their as-

signed cases, were in no way subject to the District Court’s

caseload limitation.

In granting the injunction, the District Court departed

from an unbroken long line of decisions holding that inde-

pendent defender organizations are not engaged in ‘‘state

action’’ within the meaning of Section 1983. Its injunction,

if upheld, would have had the effect of saddling the Society

with mechanical and arbitrary caseload limitations stated

as constitutional imperatives. If upheld, the order would

also have required the Society, and all assigned defense

counsel, to divert scarce resources to defending a flood of

§1983 lawsuits seeking damages.

On the record before it, the Court of Appeals properly

reversed this preliminary injunction, leaving it to the So-

ciety and its attorneys to make the professional judgment

as to the number of cases that they could effectively handle.

Subsequent to the Court of Appeals’ decision, the Society

created a formal mechanism to insure that it would not

accept assignments which it could not effectively discharge,

a matter which it had always attempted to assure by less

formal methods.* At the same time, the number of indict-

* The question of the existence of a possible professional case over-

load is to be determined by a panel consisting of the Dean of

Columbia Law School and the Presidents of the State and City Bar

Associations. This mechanism was incorporated into an agreement

with the Society’s attorneys.

4

¢

J

A

¢

uy

H)

Py

CVRALALLMO NGI SO

10

ments in Kings County has dropped and the average case-

load handled by the Society’s attorneys there is well below

that set by the District Court. The question of caseload is,

therefore, essentially moot.

ARGUMENT

I

The Circuit Court decisions are unanimous in sup-

port of the rule followed below that a private legal

services organization “in no manner under State or City

supervision or control,” which performs a function

“normally performed for and by private persons” does

not act under color of state law within the meaning of

Section 1983.*

Petitioners misconceive the function of assigned counsel

when they state that they perform ‘‘ public or governmental

functions.’’

An attorney or defender organization which provides

legal representation to a defendant in a criminal prosecu-

tion brought by the State owes his duty to his client, not

to the State. His responsibility is to oppose the will of the

* The quoted words in this heading are from the decision of the

Court of Appeals for the Second Circuit in Lefcourt vy. Legal Aid

Society, 445 F. 2d 1150 (2d Cir. 1971), at 1157, 1156. The Lefcourt

decision, made after a meticulous review of the status of The Legal

Aid Society, rejected the plaintiff's contention there that the Society

acted “under color of” state law. The Court of Appeals in its decision

herein found it necessary only to cite Lefeourt to reverse the order

of the District Court. Although petitioners here assert that it is

“noteworthy” that “public support for the Legal Aid Society, official

influence over its policies, and its intimate involvement in criminal

justice planning have all increased dramatically since Lefcourt was

decided” (P. 16, n. 8), there is no indication in the record to that

effect and the relevant facts are to the contrary.

ow Pete the La LES ate RS IRF Ah SD ACERS

’ PRN ATONE RENCE SELON, ENGEL LOOSE OTE BO

~

11

State with every ethical and professional means at his dis-

posal. Such action, whose very essence is adverse to the

State, and which has traditionally been provided by pri-

vate members of the bar, cannot be converted into ‘‘state

action.’’ Similarly, petitioners cannot find any support in

the record herein for their contention (P. 16) that the State

has ‘‘significant control’’ or ‘‘official influence’’ over the

Society, or that the State’s ‘‘intimate involvement’’ with

the Society and its alleged ‘‘collaborat[ion]’’ with the So-

ciety ‘‘in planning or policy decisions’’ is such as to make

the Society a state agent within the meaning of $1983.

“Public Function”

Petitioners contend that the representation of an indi-

gent defendant by a court-appointed attorney or defender

organization constitutes the performance of a ‘‘public’’ or

‘‘essential state function’’ within the line of cases repre-

sented by Evans v. Newton, 382 U.S. 296 (1966), Smith v.

Allwright, 321 U.S. 649 (1944) and Terry v. Adams, 345

U.S. 461 (1953). This contention, that a private attorney

becomes a state agent merely by acceptance of an appoint-

ment to defend an indigent, has been rejected by the unani-

mous authority of the federal courts in decisions of at

least six Courts of Appeals and twelve District Courts.

These cases have recognized that counsel for an indigent

defendant is not an agent of the State whose responsibili-

ties are to the State, but an attorney whose sole duties are

to his client. The rationale underlying this principle was

cogently set out by the Second Circuit in Lefcourt:

««* * * the representation of persons accused of crimes,

far from being the function of any agency which ‘tradi-

tionally serves the community’ is normally performed

?

b

<r

ia

ys

Ox

,

2

BA

5

ee ee Pm

het te Ma wires ’

12

for and by private persons. Those who can afford their

own counsel value the fact that their relationship with

their attorney will be protected by the Courts through

the attorney-client privilege. The person with a re-

tained attorney knows that that attorney will use his

best efforts consistent with ethics and law, and that no

State official is in a position to alter this in any way.

The City has sought to have the Society function under

similar circumstances. Under the contract, the City

retains few controls over the Society, and the Society’s

obligation under the contract is to its clients and not

to the City.’’ 445 F. 2d at 1156 (emphasis supplied).*

The Second Circuit in Lefcourt also recognized that the

duty of an attorney to oppose the State cannot be converted

into state action on the theory that the State is required to

defend indigent prisoners. As the Circuit there stated, it

is the duty of the State not to defend an accused it is try-

ing to put in jail, but to provide the means for a defense

for those who cannot afford private counsel. No decision

of this Court has implied otherwise.

Every other Circuit which has considered the status un-

der Section 1983 of private and public defender organiza-

tions, as well as assigned counsel, has reached precisely

tat hc ana call ani

* Petitioners try to distinguish Lefcourt (P. 15-16), and they

contend that the Second Cirguit, in its decision herein and in its

unanimous refusal to rehear this case en banc, mistakenly relied on

its own earlier opinion. Undoubtedly, the Court of Appeals under-

stood its own prior decision as well as the clear distinction between

Lefcourt and Pnited States v. Wiseman, 445 F. 2d 792 (2d Cir.

1971), cert. denied, 404 U.S. 967 (1971), which held that the signing

of a false affidavit of service of process by a process server was within

“the narrow class of cases where state action can be found on the

basis” of the “public function” theory, In Wiseman the Second

Circuit specifically said; “Unlike most functions involved in the con-

duct of a lawsuit by private gorse the service of summons is essen-

tially and traditionally a public function.” 445 F, 2d at 796 (empha-

sis supplied).

13

the same conclusion. In Espinoza v. Rogers, 470 F. 2d 1174

(10th Cir. 1972), an action brought against Colorado pub-

lic defenders, the Tenth Circuit found that a public defend-

er’s professional duties and responsibilities toward his

client are the same as those of all other attorneys, and that

public defenders in the office of the Colorado State Public

Defender do not act under color of state law so as to be

amenable to suit under Section 1983. In French v. Corri-

gan, 432 F, 2d 1211 (7th Cir. 1970), cert, denied, 401 US.

915 (1971), and Mulligan v. Schlachter, 389 F. 2d 231 (6th

Cir. 1968), attorneys appointed by the state court to rep-

resent indigent defendants were held to have been ap-

pointed solely to serve the interest of the client, and thus

not acting under color of state law.” Similarly, in Thomas

v. Howard, 455 F.2d 228 (3d Cir. 1972), the Third Cireuit

concluded that an attorney appointed by the Court could

not be sued under Section 1983. The Court ruled that, since

the attorney was ‘‘* * * performing his duties solely for

[his client], to whom he owed the absolute duty of loyalty,

as if he were a privately retained attorney * * * [he] was

not acting ‘under color of state law, custom or usage’

within the meaning of the Civil Rights Act * * *.”’ 455 F.

2d at 229-30 (citations omitted).**

* See also Szijarto v. Legeman, 466 F. 2d 864 (9th Cir. 1972)

(attorney, whether retained or appointed, does not act under color

of state law) ; United States v. Senak, 477 F. 2d 304 (7th Cir. 1973),

cert, denied, 94 S. Ct. 157 (1973), where the defendant public de-

fender was indicted under 18 U.S.C. $242 on the ground that he had

used his ay peer to extort fees from the poor; the District Court had

summarily dismissed for failure to show state aciion and the Seventh

Circuit remanded for a factual hearing to determine the conditions

which attached to the defendant's appointment as a sg defender

and the representations he made to his clients to exact fees from them ;

the “essential state function” theory was not relied on.

** The same conclusion—that defender organizations are not sub-

— to Section 1983 since they do not act under color of state law—

1as been reached by the District Courts in a variety of suits brought

Ee ee eT ee

=

new 2 ere

14

Petitioners attempt to belittle this line of authority,

suggesting that there is a more permissive standard of

jurisdiction under Section 1983 for injunctive relief than

for damages (P. 15). But the touchstone of liability for

both injunctive relief and damages under Section 1983 is

the same: Was the defendant acting ‘‘under color of

state’? law? Since the Society was not performing a ‘*pub-

lic function” in defending its clients, there is no basis for

an action against it under Section 1983.

“Involvement With the State”

After taking lengthy testimony subsequent to its initial

order denying the Society’s motion to dismiss for failure

against attorneys under Section 1983, including a recent decision in

an action strikingly similar to the instant case: Gardner v. Luckey,

—— F. Supp. (M.D. Fla., Jan. 24, 1973, No. 71-561 Civ. T-K).

There, plaintiffs, in an action under Section 1983 against the Public

Defenders for two judicial circuits for failure to provide adequate

representation, sought, among other things, a caseload limitation.

Although the office of public defender was created by statute, and

funded by the state, the Court held that those facts did not “endow

such public defenders with the color of state law in representing their

clients * * * nor immediately transform an attorney-client relationship

into state action” (Opinion, p. 6). The Court concluded: “An

attorney for an indigent defendant, whether court-appointed or a

public defender, is not an officer or servant of the state. His duty is

to oppose the efforts of the state to convict his client. His actions,

good or bad, are not done for the state nor under color of any statute.”

(/d., pp. 4-5) (emphasis in original). See also: United States ex

rel. Wood v. Blacker, 335 F. Supp. 43 (D.N.J. 1971) 5 Pugliano v.

Staziak, 231 F. Supp. 347 (W.D. Da, 1964), rd per curiam, 345 F.

2d 797 (3d Cir. 1965) ; Wardrop v. Ross, 319 F. Supp. 1299 (W.D.

Pa. 1970), aff'd per curiam, 432 F, 24 1049 ( 3d Cir, 1970) ; Palermo

v. Rockefeller, et al., 323 F. Supp. 478 ( S.D.N.Y. 1971); Hood v.

Virginia, 320 F. Supp. 1227 (W.D. Va. 1971); Peake v. County of

Philadelphia, 280 F. Supp. 853 (E.D. Pa. 1968) ; Vance v. Robinson,

292 F. Supp. 786 (W DNC. 1968) : Brown v. Duggan, 329 F. Supp.

207 (W.D. Pa. 1971) ; Reinke v. Richardson, 279 F. Supp. 155 (ED.

Wisc. 1968) ; Christman vy. Pennsylvania, et al., 275 F. Supp. 434

(W.D. Pa, 1967), cert. denied, 393 U.S. 885 (1968); Jackson v.

Hader, 271 F. Supp. 990 (W.D. Mo. 1967).

,

ZZ Titan a chat dnseliena ane ont

= |

15

to show ‘‘color of state law’’ (which assumed petitioners’

facts to be true), the District Court did not make a single

finding supportive of petitioners’ contention that the So-

ciety’s ‘‘involvement”’ with the State makes it an agent

thereof. The Court of Appeals, which had carefully ‘‘sifted

the cireumstances’’ and had reviewed the contacts between

the State and the Society in the Lefcourt ease, obviously

rejected petitioners’ contention that state ‘implication in’’

or “involvement with’’ the work of the Society transforms

private conduct into state action. Yet petitioners again

contend here, without any factual support, that the ‘‘affinity

between the Legal Aid Society and the State’’ (P. 7) is

such as to make the Society a state agent within the Burton

v. Wilmington Parking Authority, 365 U.S. 715 (1961), line

of authority.

As record support for the asserted ‘‘affinity’’ between

the Society and the State, petitioners rely on New York

State law, which requires the provision of defense counsel

for accused indigents, and the contract between the City

of New York and the Society under which the Society has

undertaken to provide such representation. Petitioners

also rely on the fact that various governmental agencies

(state, city and federal) supply a very large percentage of

the Society’s operating funds, and that the Society’s per-

sonnel serve on planning boards and have ‘‘regularly en-

gaged in meetings with state and city officials regarding

policy’’ (P. 8).

But the contract with the City recognizes explicitly that

the Society ‘‘shall alone be responsible for their [its attor-

neys’, investigators’ and other employees’) work, and the

direction thereof,’’ and judgment as to staffing and handling

ae Aa ha eee | ie he aie a me, a eh aah del Sad

16

cases is left exclusively to the Society. Under its contract

with the City, the Society has been the model of a private

defender organization free from all vestige of state super-

vision and control, as this Court well knows from the num-

ber of cases the Society has brought before it.*

: Similarly, petitioners confuse funding with control. By

3 seeking and obtaining funds from the City, the Society does

i not submit to the control of its affairs—any more than the

j government controls our great private universities. See

; Grafton v. Brooklyn Law School, 478 F. 2d 1137 (2d Cir.

1973) ; Grossner v. Trustees of Columbia University in the

City of New York, 287 F. Supp. 535 (S.D.N.Y. 1968). The

Society has made continuing efforts to insure that its need

for funds does not compromise its independence, and to

this end it has expended millions of dollars of privately

raised money on its criminal defense efforts.

The plaintiff in Lefcourt v. Legal Aid Society, who at-

tempted to make a record which would show state control

over the Society, wholly failed to do so. The plaintiff there,

the Second Circuit concluded, had not established ‘‘that the

City or any other governmental subdivision or agency had

any right whatever to intervene in any significant way with

the affairs of the Society with respect to its employment

practices or otherwise.’’? (445 F. 2d at 1155.) It further

found that: ‘‘It cannot be said that the Society acts under

* In addition, the Society has now, or has had within the last year,

lawsuits pending against the Governor, the Mayor, the Presiding

Justice of the Appellate Division, Second Department, all the Judges

of the Criminal Court of the City of New York, all the Justices of

the Supreme Court of the State of New York authorized to sit in

the First Department, the Police Commissioner, the Commissioner

of Corrections of the City of New York, the Commissioner of Cor-

rections of the State of New York, and numerous other public offi-

cials.

Beers LAPT EG LIE TOIT EN CEN A TD ee eee ors |

17

color of State law by virtue of the financial and other bene-

fits which it receives from the City and various other gov-

ernmental agencies, courts and subdivisions, since there has

been no sufficient showing of governmental control, regula-

tion or interference with the manner in which the Society

conducts its affairs.’’ (Ibid.) The petitioners in this case

failed even to attempt to make a record below which would

show state control over the Society, and their failure to do

so makes it particularly inappropriate to grant certiorari

in this action.

The emptiness of petitioners’ claim of state action is

best illustrated by their contention that the Society’s in-

volvement in ‘‘the planning and administration of the

Criminal Term of Kings County Supreme Court’’ (P. 9)

has compromised its independence. Petitioners cite such

acts as participation in meetings and study groups for

court reform under the auspices of the State Judicial Con-

ference and the Appellate Division. If, as petitioners argue

(P. 8-9, 13-14), it is ‘‘state action’’ to argue that the Su-

preme Court be kept open in the summer, and to offer to

maintain Legal Aid parts at full staff; or to plead for

more public funds so as to be able to hire more attorneys;

or to urge that cases with retained counsel not be assigned

to the Legal Aid parts; or to discuss techniques for dis-

posing of more felonies at the Criminal Court level; or to

seek to persuade the District Attorney to reduce bail de-

mands; or to serve on a committee to recommend methods

to alleviate overcrowded conditions in the jails; or to at-

tempt to work out with the Appellate Division mechanics

for bringing on speedy trial motions; or to devise methods

for improving the continuity of representation of indigents

VOC Un eae emma

18

and for keeping track of Legal Aid cases after indictment—

then every defense lawyer who seeks to promote the goal

of a fair and speedy trial for his clients is vulnerable to

an attack on his independence. The Society’s continuing

advocacy of reform—which petitioners see as proof of

collusion—is in reality the best evidence of the Society’s

devotion to the interests of its clients. The record below

fully supports the Second Circuit’s conclusion in Lefcourt

that:

‘‘ Although the Society by contract has undertaken

to make available to indigents legal services which

otherwise governmental agencies might have to assume,

its history, constitution, by-laws, organization and

management definitely establish that it is a private

institution in no manner under State or City super-

vision or control. Its very independence from any

such control is an assurance that those who receive

the benefits of its services will obtain these services

in accordance with the highest standards of the Bar.’’

(445 F. 2d at 1157; emphasis supplied).

In sum, all of the lower courts which have considered

the issue have concluded that assigned defense attorneys,

who act independently and for the good of their clients,

are not subject to suit under Section 1983. Compare

United States v. Senak, supra. In this case, the record at-

tests to the Society’s independence and devotion to the in-

terests of its clients. Indeed, the District Court specifically

found that there was no evidence that the Society’s attor-

neys were failing to do their best under the circumstances.

There is, therefore, no legal issue in this case for this Court

to consider.

19

Review of this case is not timely since the real is-

sues of trial delay remain to be tried against the state

agents who can provide the necessary resources to vin-

dicate petitioners’ rights.

- RNR teen :

The District Court’s order in this action enjoined the

Society from accepting further assignment of felony cases

in Brooklyn Supreme Court so long as its attorneys’ aver-

age caseload exceeded 40. In imposing a caseload limitation

on the Society, the Court resorted to a novel remedy, not

binding on other assigned counsel, with which the Court held

the Society’s attorneys compare favorably. It is not sur-

prising therefore that the consequence of the decision below

was to assign the representation of indigents to private at-

torneys who are not subject to any caseload limitation, who

work without the supervision available to the Society’s

attorneys, and who are not adequately compensated for

their time under state law. Every witness asked to compare

the Society with private attorneys appointed under Article

18-B of the New York County Law expressed a preference

for the Society.*

While asking this Court to review a wholly hypothetical

question, petitioners are silent on the consequences of the

actual injunction which the Second Circuit vacated. They

now argue that as an abstract matter a failure of this

Court to reverse the order of the Second Circuit would

‘‘deprive petitioners of the possibility of meaningful relief

to vindicate their Sixth Amendment rights’’ (P. 18). As

* See, e.g., pp. 125, 232, 297, 381 of the transcript of the Wallace

hearings ; pp. 311, 312, 669, 721 of the transcript of the McLaughlin

hearings.

20

an even more abstract matter, petitioners contend that the

order below leaves all indigent defendants ‘‘without an

effective remedy’’ (P. 19), and they even state the only

effective remedy would be one which gives the federal courts

power to enjoin both ‘‘the public and the private partici-

pants in criminal justice administration’? (P. 19).*

The actual facts of this case show how groundless these

contentions are. The decision of the District Court did not,

in actuality, further the right to counsel in Kings County,

and the decision of the Circuit Court did not in any way

impair that right. The interest to be vindicated herein was

the right of indigents to effective representation. That right

was not protected by an order which only enjoined defense

counsel from representing clients and relegated indigents

to a panel of private attorneys which was straining to dis-

charge its limited responsibilities even before the District

Court’s order. It must be emphasized in this regard that

the District Court did not find that a single Legal Aid attor-

ney was not doing his best under the circumstances, and

that since the injunction was dissolved the Society’s case-

load in Kings County has dropped well below the limit set

by the District Court.

Petitioners’ request—which the Society supports on be-

half of its clients—for injunctive relief against trial delay

in Kings County is still pending and demonstrates the

fallacy in petitioners’ claims that they have no effective

remedy in this case. The real issues remain to be tried,

is

4

k

"

F

‘

4

@

‘

Ad

5

¥

.

;

‘al

a

é

%

4

:

4

* Petitioners contend that “The ruling below draws an artificial

distinction between the public and private participants in criminal

justice administration” (P. 19). Even if this were so, and it is not,

it is the same distinction drawn by the Constitution and 42 U.S.C.

§1983.

etre ivan:

21

and all of the relief necessary to vindicate petitioners’

rights to a speedy and fair trial with effective assistance

of counsel can still be granted by relief against the remain-

ing defendants. Thus, even if there were any substantial

legal questions presented by the Petition—which there are

not—the entire case is not before this Court, and this

Court should not act on the basis of a partial record on a

preliminary injunction motion.

Conclusion

The Circuit Court’s order is a proper application of

principles laid down by the decisions of this Court and

is consistent with authority in every other Circuit which

has considered the matter. In addition, the order does

not preclude the formulation of effective relief to vindi-

cate petitioners’ Sixth Amendment rights. Thus, the

Petition does not raise any substantial question merit-

ing consideration by this Court. Moreover, the essen-

tial mootness of the issues presented herein makes this

an inappropriate case in which to grant a writ of cer-

tiorari. The Petition should be denied.

Respectfully submitted,

Artuur L. Liman

Paut, Weiss, RirKinp, WHARTON & GARRISON

345 Park Avenue

New York, New York 10022

(212) 935-8000

ALLAN L. Groprer

Attorneys for Respondent

Legal Aid Society

re

bs

z

Dy

ax

:

a