Reply Brief — Collins ex rel. Shufelt v. Duggan

CASE NO.: 94-1579 |

IN THE

ert oF THe CLERK

SUPREME COURT OF THE mu_~7*«£,

OCTOBER TERM, 1994

The People &c. ex rel.

Charles E. Collins, III,

on behalf of

Charles Shufelt,

Petitioner,

Vv.

W. Dennis Duggan,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE NEW YORK STATE

COURT OF APPEALS

PETITIONER'S REPLY BRIEF

Charles E. Collins,

Petitioner - Pro se

108 Brunswick Road

Troy, New York 12180

(518) 274-1418

Dated June 1, 1995

Iil

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. PETITIONER'S REPLY BRIEF

II. POINT ONE - Petitioner Collins

has a sufficient legal interest

to support a petition for a

writ of habeus corpus on behalf

of Charles Shufelt.

III. POINT TWO - The State has

various misstatements of law

and fact in their opposition

brief

CONCLUSION

10

22

,

TABLE OF AUTHORITIES

Cases

Baldwin v. New York, 399 U.S. 66 (1970) 13

Blanton v. City of North Las Vegas, Nev

489 U.S. 538 (1989) 11

Brooke v. Family Court of the State of

New York, 420 F.2d 296 (2d Cir 1969),

cert. denied 397 U.S. 1000 13

Canty v. City of Richmond, Virginia, Police

Dept. 383 F.Supp. 1396, affirmed

526 F.2d 58, cert. denied 423 U.S. 1062 6

Chambers v. Florida, 309 U.S. 227 8

Hunt v. Murphy, 455 U.S. 478 (1982) 9

In Re Oliver, 333 U.S. 257 (1948) 7,8

In Re Rosahn, 671 F.2d 690 (2d Cir. 1982) 8

Matter of Linda G. v. Theodore G., 74

Misc.2d 516 15

Rooker v. Fedelity Trust, Co. 263 U.S.

413 (1923) 21

Tyler v. Ryan, 419 F.Supp 905 6

United States v. Craner, 652 F.2d 23 (1980) 14

United States ex rel. Griffen v. Martin, 409

F.2d 1300 (2d Cir. 1969) 13

Weinstein v. Bradford, 423 U.S. 147(1975) 9

il

28 U.S.C. § 1257 10

New York State Constitution Art. VI, § 13(a) 18, 19, 20

Statutes

Civil Practice Law and Rules § 7002 3,5

Civil Practice Law and Rules § 7004 6

County Law 722-a 15

Family Court Act § 433 16,17

Family Court Act § 435 13

Family Court Act § 439 18

Family Court Act § 439 (a) 19

Family Court Act § 439 (f) 19

Family Court Act § 454 12,13

Family Court Act § 454 (3) 5

Penal Law Article 10 15

Uniform Rules for the Family Court

§ 204.5 (22 NYCRR § 205.4) 16

ili

CASE NO.: 94-1579

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

The People &c. ex rel.

Charles E. Collins, III,

on behalf of

Charles Shufelt,

Petitioner,

Ve

W. Dennis Duggan,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE NEW YORK STATE

COURT OF APPEALS

PETITIONER'S REPLY BRIEF

The State’s arguments on behalf of Judge Duggan

highlight why this Court should grant the petition.

First, the State admits that Mr Shufelt was tried,

convicted and sentenced to jail in a secret court

proceeding pursuant to state statute; that he was

denied his right to a jury trial pursuant to state

Statute; and that the trial held to determine whether

Mr Shufelt was in willful violation of a court order

and to have him sentenced to jail were based upon

determinations of a person who is not even a judge.

Second, ihe State has refused to address the

constitutionality of Family Court Act §§ 433, 435 and

439 as required by law and as such Mr Shufelt has

been illegally imprisoned for sixteen weekends.

Third, the State has deliberately ignored state

statute in arguing Mr Collins’ right to file the writ of

habeus corpus.

POINT ONE

Petitioner Collins has a sufficient legal interest to

support a petition for writ of habeus corpus on

behalf of detainee Shufelt or to file a petition pro

se in this matter.

Mr Collins filed the writ of habeus corpus, pro se,

on behalf of Mr Shufelt pursuant to New York State

Civil Practice Law and Rules § 7002. CPLR § 7002

states:

(c) Content. The petition shall be verified and

shall state, or shall be accompanied by an

affidavit which shall state,

1. that the person in whose behalf the petition is

made is detained, naming the person by whom

he is detained and the place of detention if

they are known, or describing them if they are

not known; where the detention is bv virtue of

a mandate, a copy of it shall be annexed to the

petition, or sufficient reason why a copy could

not be obtained shall be stated;

2. the cause or pretence of the detention, accord-

ing to the best knowledge and belief of the

petitioner;

3. that a court or judge of the United States does

not have exclusive jurisdiction to order him

released;

4. if the writ is sought because of an illegal de-

tention, the nature of the illegality;

5. whether any appeal has been taken from any

order by virtue of which the person is detained,

and if so, the result;

6. the date, and the court or judge to whom

made, of every previous application for the

writ, the disposition of each such application

and of any appeal taken, and the new facts, if

any, presented in the petition that were not

presented in any previous application; and

7. if the petition is made to a county judge out-

side the county in which the person is de-

tained, the facts which authorize such judge to

act.

Mr Collins does not even have to know the person

or the name of the person, but merely has to describe

the person pursuant to the State statute. The State in

its Opposition Brief is relying upon federal law con-

cerning who may file a writ of habeus corpus in

federal court. Here we are dealing with a state court

writ of habeus corpus and therefore, the state proce-

dures concerning the writ of habeus corpus are appli-

cable and not federal court procedures.

CPLR § 7002 does not require that Mr Collins

provide evidence that Mr Shufelt ever sought or

authorized his representation by Mr Collins nor does

it require that Mr Collins show a special relationship

to Mr Shufelt as argued by the State (Opposition

Brief p. 4, 5). Mr Collins complied with what was

required to be contained in the writ of habeus corpus

as required by CPLR § 7002 (c)(1) thru (c)(7). The

State has provided no state case law to support their

argument concerning Mr Collins filing the writ of

habeus corpus on behalf of Mr Shufelt in a state

court proceeding. Therefore, their argument is with-

out merit.

On October 7, 1994, Family Court Judge W.

Dennis Duggan, referring to Mr Shufelt's willful vio-

lation of earlier orders, issued an order pursuant to

Family Court Act § 454(3)(a) requiring Mr Shufelt to

be committed to the Albany County Jail for a term of

16 consecutive weekends from Friday at 6:00 p.m. to

Sunday at 6:00 p.m., commencing October 7, 1994

(Petition, Exh 4, p 1).

The State in its brief (p 2) states that "the peti-

tion erroniously named Judge Duggan, who was at

no time Shufelt's custodian, as a respondent in this

matter. See, New York Civil Practice Law and Rules

§ 7004(b) (petition should name as respondent the

person having custody of the person detained).

The courts have consistently held that pro se

litigants should not be held to the same technical

standards as attorneys if allegations provide for

relief on any possible theory (Tyler v. Ryan, 419

F.Supp 905 (D.C.Mo. 1976); Canty v. City of

Richmond, Virginia, Police Dept., 383 F.Supp 1396,

affirmed 526 F.2d 587, cert. denied 423 U.S. 1062).

Here we have the State of New York asking this

Court to dismiss this petition because there was a

technical mistake in the pleading as the wrong per-

son was named. Judge Duggan participated in and

violated Mr Shufelt's constitutional right to a public

trial, a jury trial when he was found in willful viola-

tion of a court order and sentenced to jail ina deed

court proceeding. A closed court proceeding is a

secret proceeding. The State wants this Court to hold

Mr Collins to technical standards of pleadings while

the State deliberately violates litigants’ constitu-

tional rights to public and jury trials. The State of

New York wants to cover up the fact that we are now

hack to the "English Court of Star Chamber” which

was abolished in 1641.

And the State’s further argument that Mr Collins

did not properly raise a constitutional issue worthy of

the State Court’s review is absurd. The United States

of America was founded upon open court proceedings

as enumerated In Re Oliver, 333 U.S. 257, 68 S.Ct.

aaa

| 499 (1948) which struck down a secret criminal

contempt trial as violative of due process. The Su-

preme Court stressed that at the heart of due process

clause is “[t]he traditional Anglo-American distrust

for secret trials,” which throughout history have been

associated with “institutions [that] obviously symbol-

ized a menace to liberty.” Jd. at 268-69, 68 S.Ct. at

505. As documented In Re Rosahn, 671 F.2d 690 (2d

Cir. 1982) the Oliver case is typical of a civil con-

tempt proceeding because of its conditional nature of

the punishment (petition, pp. 10-11).

In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, (1948)

this Court held:

It is “the law of the land” that no man’s life,

liberty or property be forfeited as a punish-

ment until there has been a charge fairly

made and fairly tried in a public tribunal.

See, Chambers v. Florida, 309 U.S. 227, 236, 237,

60 S.Ct. 472, 477, 84 L.Ed. 716. The petitioner

was convicted without that kind of trial.

Mr Shufelt was deprived of his liberty as he spent

16 weekends in the Albany County jail for the will

violation of a family court order based upon closed

court proceedings (secret trials).

Even though Mr Shufelt has served his sixteen

(16) weekends in the Albany County jail the issues

raised in this proceeding are not moot. Hunt v.

Murphy, 455 U.S. 478, 102 S.Ct. 1181 (1982) held

that if a controversy between the parties is capable of

repetition the matter was not moot under the stan-

dard stated in Weinstein v. Bradford, 423 U.S. 147,

96 S.Ct. 347 (1975).

Mr Shufelt has 18 more years to go before his

youngest child reaches the age of 21 and therefore

has at least 18 more years to go in family court and

certainly the issues of a public trial, jury trial and a

competent person to try the case will be raised again

if Mr Shufelt should be held in contempt.

POINT TWO

The State has made various misstatements

of law and fact in their opposition brief.

This Court has the authority to review the consti-

tutional challenges pursuant to 28 U.S.C. Section

1257. It should be noted that the State has provided

no case law or statute that would deprive this Court

of jurisdiction in this matter.

Mr Collins has clearly argued that as Mr Shufelt

faced imprisonment pursuant to Family Court Act §

454 he was entitled to 1) a public trial and 2) a jury

trial as the potential penalty that may be imposed

pursuant to Family Court Act § 454 exceeds six

months in jail or a $5,000.00 fine or both.

Mr Collins’ fully documented on page 20 of the

petition Mr Shufelt’s potential penalty pursuant to

Fam. Ct. Act §454. The State in its opposition brief

10

refers only to Fam. Ct. Act § 454 3(a) which is the

term of imprisonment not to exceed six month. This

Court in Blanton v. City of North Las Vegas, Nev.,

489 U.S. 538, 109 S.Ct. 1289 (1989) held:

[1] In using the word “penalty” we do not

refer solely to the maximum prison term

authorized for a particular offense. A

legislature’s view of the seriousness of an

offense also is reflected in the other penal-

ties that it attaches to the offense.

The State has not denied that Mr Shufelt faced

the following potential punishment pursuant to Fam.

Ct. Act § 454 in addition to six months in jail as

documented on page 20 of petitioner’s brief.

1. a judgment in the amount of $10,000.00

2. Income attached by Support Collection

3. post collateral or cash in the amount of

$10,375.56

. sequestration of his property

pay his ex-wife’s attorney fees which could

exceed $5000.00

6. sentence to six months in jail; plus another six

months in jail if he was unable to pay the

attorney fees or post the collateral as required

7. Probation for at least 18 years

OU

1l

The above potential penalty certainly exceeds six

months in jail or a $5000.00 fine or both. Six months

in jail plus probation for 18 years certainly exceeds a

penalty of six months in jail.

The State is deliberately misleading this Court in

its appendix by only providing Family Court Act §

454 (3) and (3a). The State deliberately left out the

punishments which are required to be imposed pur-

suant 454 (1) and (4). To wit: 454 (2-a), (2-b), (2-c),

(2-d), and (3-b) which can be found in petitioner’s

petition (pp. 20, 22-24).

The State in its brief on page 8 states:

Petitioner Collins further errs in his claim that

Family Court Act § 454 permits the court to

impose upon a violator of a support order penal-

ties of incarceration in excess of “six months...

or $5,000.00 fine or both” without a jury trial

(Petition, pp 21-27). Instead, that section directs

the Family Court, in response to a person’s willful

failure to comply with a support order, to compel

the violator to pay arrears and attorney fees; it

also permits the court, in appropriate instances,

to jail the violator for up to six months. It is well

established that this imprisonment provision does

not violate the Sixth Amendment. United States

ex rel. Griffen v. Martin, 409 F.2d 1300 (2d Cir.

1969 (imprisonment for up to six months under

Family Court Act § 454 for contempt of support

does not infringe upon Sixth Amendment rights);

Brooke v. Family Court of the State of New York,

420 F.2d 296 (2d Cir 1969) , cert denied, 397 U.S.

1000 (1970) (same); Baldwin v. New York, 399

U.S. 66 (1970).

Family Court Act § 454 has been modified sev-

eral times since 1969 to increase the “severity” or “se-

riousness” of the penalty for contempt of court for

failure to pay support. The “seriousness” of the

offense was increased in L. 1971, Ch. 1097; L. 1977,

Ch. 516; L. 1978, Ch. 456; L. 1980, Ch. 241; L. 1982,

Ch. 654; L. 1983, Ch. 746 and L. 1986, Ch. 892.

Therefore, due to the changes in the severity of the

punishment under section 454 of the Family Court

Act since the Court of Appeals rulings in Griffin and

Brooke these cases are no longer applicable and this

Court should reconsider whether § 435 of the Family

13

Court Act violates the Sixth Amendment to the

United States Constitution to a jury trial as Family

Court Act § 454 is currently written. This Court must

look beyond the imprisonment and look to the entire

potential penalty that may be imposed and in certain

cases is required to be imposed pursuant to Family

Court Act § 454.

United States v. Craner, 652 F.2d 23 (1980) held

that a litigant facing six months in jail or a $5,000.00

fine or both, plus payment of costs, was a “serious”

one for which the Federal Constitution guaranteed

trial by jury.

As Mr Shufelt, by the State’s own admission faced

six months in jail plus the payment of attorney fees

he should be entitled to a jury trial based upon this

decision.

The State in its opposition brief (page 7) states

14

that imprisonment for contempt for a period in ex-

cess of 15 days does not constitute confinement for a

criminal offense. The State does not contradict Mr

Collins’ contention (petition, p. 8-10) that the Family

Court in Matter of Linda G. v. Theodore G, 74

Misc.2d 516, 345 N.Y.S.2d 361 held that failure to

pay support pursuant to a court order was a “crime”

pursuant to County Law § 722-a. The State has not

denied that according to the Penal Law Article 10 a

“crime” is any misdemeanor or felony and that the

definition of a misdemeanor is a term of imprison-

ment for a term not less than 15 days and not more

than 1 year.

The State admits on pages 7 and 8 that Mr

Shufelt did not receive a public trial and then takes

the position that “there is no contention that Mr

Shufelt even requested that his contempt proceeding

15

be open to the public”.

The State states on page 7:

Petitioner Collins errs in his assertion that con-

finement for contempt following a hearing which

may be held as a closed proceeding pursuant to

Family Court Act § 433 constitutes “sentencling]

to jail in a secret trial (Petition, pp 10, 11-18).

Contrary to petitioner’s suggestion, section 433

neither considers nor establishes the propriety of

exclusion of the public from a contempt proceed-

ing over the contemnor’s objection. Instead, that

section merely declares that the public may be

excluded from the Family Court support proceed-

ing in a proper case....

The family court was closed to the public during

Mr Shufelt’s trial on the contempt charge and when

he was sentenced to jail for sixteen weekends. The

State has provided no documentation that the judge

issued a finding before closing the court to the public

as required by the Uniform Rules for the Family

Court § 205.4 - Access to Family Court proceedings

(22 NYCRR § 205.4). The State also fails to define

what a “proper case” is to close the court. In a “proper

case” the court should be open until there is a public

hearing to close the court and the judge issues a

finding as to why the court should be closed as re-

quired by law. The State has provided no case law

that holds that a litigant facing imprisonment must

demand their constitutional right to a public trial

before they are tried, convicted and sentenced to jail.

All persons facing imprisonment are entitled to

public trials. There are no exceptions.

The Court was summarily closed to the public

pursuant to Family Court Act § 433 in a proceeding

in which Mr Shufelt was tried and convicted of a

willful violation of failure to pay child support pursu-

ant to a court order and was sentenced to jail for

sixteen weekends. Therefore, § 433 of the Family

Court Act is unconstitutional as it is written and/or

as it is being applied.

17

co ast a aaa

Concerning the office of the hearing examiner and

the constitutionality of Family Court Act § 439. The

State states “Nothing in the State Constitution bars

the appointment of hearing examiners for Family

Court proceedings. In any case this claim improperly

invokes this Court’s jurisdiction to assert rights

purportedly derived for the State Constitution rather

than the Federal Constitution.”

§13. [Family court established; composition;

election and appointment of judges; jurisdic-

tion]

a. The family court of the state of New York is

hereby established. It shall consist of at least

one judge in each county outside the city of

New York and such number of additional

judges for such counties as may be provided

by law. Within the city of New York it shall

consist of such number of judges as may

be provided by law. The judges of the family

court within the city of New York shall be

residents of such city and shall be appointed

by the mayor of the city of New York for terms

of ten years. The judges of the family court

outside the city of New York shall be chosen by

18

the electors of the counties wherein they reside

for terms of ten years.

The New York State Constitution Article VI, § 13

states the composition of the family court. It author-

izes the election of judges outside the city of New

York and the appointment of judges within the city of

New York. It does not authorize the appointment or

election of hearing examiners in family court to

determine any issue including the issues of support

or contempt.

The State on p. 9 of its brief states:

. . . Family Court Act § 439(f) plainly provides

for the selection of qualified hearing examiners

for the Family Courts, section 439(a) empowers

such examiners to conduct hearing and to make

and grant any relief under Article 4.

Mr Collins in his petition (pp 28-31) has clearly

documented that the Legislature is not authorized to

change the composition of the family court without

amending the State Constitution. The Legislature by

19

q

i

i

3 PARE SAIS ictal Si Ale valle wo HS

enacting Family Court Act § 439 which employers

family court hearing examiners to determine support

and contempt proceedings changes the composition of

the family court without amending the State

Constitution and is therefore, unconstitutional.

More importantly, Family Court Act § 439 de-

prived Mr Shufelt of his right to a duly elected family

court judge pursuant to the New York State

Constitution, Article VI, § 13 and thereby deprived

him of due process under the Fourteenth Amend-

ment as it was a non-judicial employee of the Unified _

Court System who held the trial and then deter-

mined that Mr Shufelt had willfully violated the

order of the Family Court. Whether or not a family

court judge has the authority to review the determi-

nations of the hearing examiner is not relevant. The

fact is that it was the determinations of a non-judi-

20

cial employee, and not a judge, who determined that

Mr Shufelt had violated the family court order and

who presided over the trial deprived Mr Shufelt of

his right to due process as guaranteed by the Four-

teenth Amendment.

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

held:

If the constitutional questions stated in the bill

actually arose in the cause, it was the province

and the duty of the state courts to decide them;.

The New York State courts have refused to decide

the constitutionality of these statutes when they

were required to do so by law and thereby have

deprived Mr Shufelt of due process and equal protec-

tion of the law as required by the Fourteenth Amend-

ment to the United States Constitution.

21

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Dated: Troy, New York

June 1, 1995

Respectfully submitted,

CHARLES E. COLLINS, III

Petitioner - Pro se on

behalf of Charles Shufelt

108 Brunswick Road

Troy, New York 12180

(518) 274-1418

22