Alcala v. Wyoming State Board of Barber Examiners

365 F. Supp. 560, 1973 U.S. Dist. LEXIS 11278

• Court: District Court, D. Wyoming
• Decided: November 1, 1973
• Docket: Civ. 5851
• Status: Published

Opinions

KERR, District Judge.

Plaintiff, pursuant to 28 U.S.C. §§ 2201-2202 (1964), brings this action seeking to have Ch. 67 § 12, Wyoming Session Laws, 1931, declared unconstitutional, which allegedly precludes the defendant Board of Barber Examiners from issuing plaintiff a barber’s license. Plaintiff seeks to have the Court exercise its jurisdiction pursuant to 28 U.S.C. § 1343 and 42 U.S.C.A. § 1983. On request by the plaintiff, a three-judge court was convened. 28 U.S.C. § 2284.

The essential facts are not in dispute, having been admitted in the pleadings or established by stipulation. Plaintiff, in 1970, was convicted of manslaughter, a felony, in the District Court for Laramie County, Wyoming. At the time of his conviction plaintiff was self-employed as a barber, holding a valid Wyoming barber’s license. On appeal, the Wyoming Supreme Court affirmed the conviction. Alcala v. State, 487 P.2d 448 (Wyo.Sup.Ct.1971). The United States Supreme Court denied certiorari. Alcala v. Wyoming, cert. denied, 405 U. S. 997, 92 S.Ct. 1259, 31 L.Ed.2d 466 (1972). During this period of approximately two years plaintiff continued to work as a barber. Following exhaustion of his right of appeal, plaintiff was incarcerated in the Wyoming State Penitentiary in April, 1972, to begin serving his sentence. On June 30, 1972, his Wyoming barber’s license expired.

Some six months after expiration of his license, plaintiff initiated procedures to have it renewed. The Secretary of the Board of Barber Examiners by letter dated January 22, 1973, informed plaintiff that Ch. 67 § 12 (compiled at § 33-95, Wyoming Statutes, 1957, and hereinafter referred to as § 33-95), barred any renewal of the expired license. Section 33-95 reads:

“After the passage of this Act, the Board shall refuse to issue or renew, and shall revoke, any certificate of registration for any of the following causes: 1. Conviction of a felony”, (emphasis supplied).

Section 33-95 of the Wyoming Compiled Statutes, 1957, substituted the word “may” for the mandatory “shall”, as provided in the original Session Law. By stipulation of the parties, and by research, it is clear that the original enactment must prevail over the erroneous compilation. See Ch. 154 § 2, Wyoming Session Laws, 1945; Fidelity and Columbia Trust Co. v. Meek, 294 Ky. 122, 171 S.W.2d 41 (Ct.App.Ky.1943); 1A Sutherland, Statutory Construction § 28.04.

Prior to denial of renewal of plaintiff’s license, no hearing was held by the Board. Such hearing was deemed to be futile and any consideration of the case, under the law, to be prohibited. See Wyoming Administrative Procedure Act, § 9-276.19 et seq. (1973). Plaintiff did not seek review of the denial in the state courts as provided by the Wyoming Administrative Procedure Act. Id., at § 9-276.32.

When plaintiff brought this action he was incarcerated within the physical confines of the penitentiary. Since that time plaintiff has been placed on a so-called “work-release” program. The exact nature and status of this program is not entirely clear. Apparently inmates are selected at the discretion of the Warden and placed in gainful employment in various towns in Wyoming. These inmates are still serving their sentence, even though they are not restricted to the physical confines of the penitentiary. Suffice it to say that the manner of selection of inmates, standards of guidelines to be followed by the inmates, effect of misbehavior on the inmate’s previously imposed sentence are among various facets of this program which remain unsettled in the minds of the court. Plaintiff is working as an automobile body repairman and apparently would be placed as a barber but for the fact that he does not have a valid Wyoming barber’s license. The record does not reveal, and the parties do not claim, that plaintiff has a right to remain in the work-release program.

Plaintiff challenges § 33-95 with its mandatory language, as being facially unconstitutional in that it violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiff also alleges that the statute constitutes cruel and unusual punishment under the Constitution of the United States. The Board, through the office of the Attorney General for Wyoming, denies that the statute is an irrational classification, or that it violates the provisos of the United States Constitution, and affirmatively alleges that the statute is a valid exercise of the state’s police power. In short, it appears that this suit would not be here if the statute under attack, § 33-95, were to read “may refuse to issue or renew”, instead of as it in fact reads, “[Sjhall refuse to issue or renew . . . ” (emphasis supplied). The statute has never been construed or interpreted by the Wyoming State Courts.

The Court, in listening to and considering this case, is faced with a threshold question: Assuming that the Federal court has jurisdiction, should it, as a matter of sound equitable discretion, exercise that jurisdiction in the present matter? Accord, Burford v. Sun Oil Co., 319 U.S. 315, 318, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The question merely asks in another form, whether a federal court should exercise its power of abstention. Tied inextricably to the question, and necessitating our consideration, is the matter of plaintiff’s “standing”, infra. The doctrine of abstention was first approved and applied in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The policies underlining the doctrine there approved were that federal courts should avoid deciding state issues; that state courts might resolve the ease in a manner that would avert the need for reaching the federal constitutional claims; and that abstention would avoid any friction with the delicate balance of federal-state relationships.

Abstention is a collection of formalized principles of federal judicial restraint; it “sanctions escape from immediate decision only in narrowly limited special circumstances”, e. g., Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949). Its invocation rests within the Court’s discretionary exercise of its equitable powers. Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1969). These special circumstances are sufficient justification for the additional delay and expense to which application of the abstention doctrine inevitably gives rise. See Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1971); England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). These “special circumstances” demonstrate a need for federal courts to “[Rjestrain their authority because of ‘scrupulous regard for the rightful independence of the state governments’ and for the smooth working of the federal judiciary . . .” Railroad Commission v. Pullman Co., supra, at 501 of 312 U.S., at 645 of 61 S.Ct.

“Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitu-. tional adjudication . . . The doctrine . . . contemplates that deference to state court adjudication . be made.” Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965).

The Court is persuaded that the case at bar presents substantial questions of unsettled state law, resolution of which could conceivably make any decision on the federal constitutional claims unnecessary. The program here involved, a “work-release” program, is substantially different from the concept of parole and probation so as to make comparison difficult. It appears to be an act of grace on the part of the Warden of the penitentiary whether an inmate is placed on “work-release”. See Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1934). The program has no statutory authority, being solely an experimental program developed at the discretion of penal authorities. It is uncertain what standards the inmate must achieve in order to qualify for the program; likewise, it is unclear what an inmate must do to retain this status, once granted leave to be on the program. In short, participation in the program appears to be a “favor” or “indulgence” granted by the Warden. In such a case as we have here this Court “[Sjhould hold its hand, lest it render a constitutional decision unnecessarily.” Reetz v. Bozanich, 397 U.S. 82, 85, 90 S. Ct. 788, 790, 25 L.Ed.2d 68 (1970). Indeed, plaintiff’s indefinite status, and that he is still in fact incarcerated, could transform any decision merely into an advisory opinion.

“The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining . . . whether there is . . .a controversy. Basically, the question ... is whether . . . there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1940). (emphasis supplied)

A case or controversy must admit of specific relief, as distinguished from an advisory opinion on matters not ripe for decision. See Hurst v. United States, 203 F.2d 710 (10th Cir. 1953); Rozelle v. Quinn, 47 F.Supp. 740 (S.D.Cal.1942). Due to the muddled status of plaintiff, it would appear that there is some doubt as to “immediacy” of plaintiff’s danger and the “directness” of any injury he might incur. See Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). In addition, there remain some questions as to the effect of the Wyoming Administrative Procedure Act, § 9-276.19 et. seq., upon the mandatory terms of the statute, § 33-95, here in question.

It is clear that administrative agencies are competent to pass upon constitutional issues germane to proceedings before them. Indeed, such action is necessary so as to better focus the issues for judicial review, if such action is later necessary. In the present case, the Board never fully considered the constitutional issues, nor did they hold a full scale hearing, relating to the statute under attack.

It is thus apparent that although the statute under attack may not be ambiguous or uncertain, the fact that it has never been construed by the courts of Wyoming and the many corollary questions which might render an opinion merely advisory in nature, leads this Court, at this time, in the exercise of its sound judicial discretion, to abstain from deciding the constitutionality of the statute.

It has been held that the federal court should stay its hand even though not requested to by a litigant and that complainant cannot avoid the invocation of the doctrine by failing to allege that the law, the constitutionality of which is attacked, is invalid under state law. See Catoggio v. Grogan, 149 F.Supp. 94 (D.C.N.J.1957); Pierce v. Hildebrand, 103 F.Supp. 396 (S.D.Ia.1952). It is conceivable that a definitive opinion by the state courts on some of the questions expressed herein could render a decision on the federal claim unnecessary. The facts are not in controversy so that no undue delay would result; and in any case, state courts have the solemn duty, equally with the federal courts, to guard, enforce and protect every right granted or secured by the Constitution of the United States. See e. g., Robb v. Connolly, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542 (1884).

This memorandum constitutes the Findings of Fact and Conclusions of Law and no additional findings-or conclusions are necessary.

An order of abstention will be entered and the proceedings stayed to afford plaintiff an opportunity to exhaust his state remedies. If, after a period of ninety (90) days, plaintiff has failed to proceed, either before the administrative body or the courts of this state, an order will be entered dismissing the complaint without prejudice. See American Trial Lawyers Assn., New Jersey Branch v. New Jersey Supreme Court, 409 U.S. 467, 469, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973).