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Magaziner v. Montemuro

decided: September 29, 1972.


Resubmitted August 18, 1972.

Staley, Aldisert and Hunter, Circuit Judges.

Author: Aldisert


ALDISERT, Circuit Judge.

The question presented is whether the district court should have reached the merits of a claim sounding under the Civil Rights Acts, 42 U.S.C. §§ 1981 and 1983, wherein appellants, children of parties to a state court civil action adjudicating rights to their custody, and the children's counsel, have charged a state judge of depriving the children of federal constitutional rights by vacating the ex parte appearance of counsel on their behalf. The district court held that appellants had an adequate remedy at law, ruling that "if we have jurisdiction in this case, we decline to exercise it under the circumstances here involved on the state of the record as it exists today, and we shall, therefore, grant the defendants' motion to dismiss."

The Magaziner children are not adults: Robert Lee was born on January 8, 1955; Jonathan M., on June 19, 1958, and Diane, on February 6, 1960. The complaint stated that following certain trial and appellate proceedings brought by their parents over their custody, "they [the children] retained as counsel, Lisa Aversa Richette, Esquire, who on December 22, 1970, entered her appearance on their behalf in the custody case pending in the Family Court Division of the Court of Common Pleas of Philadelphia County." The entry of appearance was challenged, and following argument on the issue, the appearance was quashed by order on March 17, 1971. Appellants took no further action in the state court system, although the vacating of the appearance was a final and, therefore, appealable order under state law. At the time of the entry of the attorney's appearance the appellants were ages 15, 12 and 10 respectively.

Notwithstanding their tender years, they describe themselves in their complaint as "mature children." Neither the children nor their self-styled "next friend" and lawyer petitioned any state court for appointment of Mrs. Richette as guardian ad litem. They have alleged:

53. There is no statute, regulation, or court-promulgated rule in Pennsylvania providing for the representation of mature children by counsel of their own choosing and full due process hearing in contested custody cases and the common custom and usage of the Family Court Division of the Court of Common Pleas is to refuse to allow such representation and hearing.

We will affirm the judgment of the district court dismissing this action.


Initially, there exists a serious problem of mootness. Notwithstanding the general nature of the relief demanded, as couched in requests for injunctive and declaratory relief, the specific case or controversy before the court was the action of the defendant, Judge Montemuro, in vacating the appearance of the children's self-styled next friend, Mrs. Richette, as their lawyer. Mrs. Richette is no longer a practicing attorney. She is now serving as Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania.*fn1 The Pennsylvania Constitution provides that "judges shall devote full time to their judicial duties, and shall not engage in the practice of law. . . ." Art. 5, § 17, P.S.

Under these circumstances, appellants' claim stands in the same posture of mootness as did Zwickler's claim in Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969). That is, it is impossible for this court to order the requested relief because of Mrs. Richette's present inability to serve as counsel. Thus, even if a federal court reached the merits and were inclined to grant the requested relief, it would be impossible to effectuate the court's judgment. A comparison is invited to the facts of Golden v. Zwickler, supra, the appeal following the remand to the district court ordered in Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). Zwickler was a printer who had published certain handbills relating to the re-election campaign of Congressman Multer in the congressional elections of 1964. The complaint alleged that Multer would again be a candidate in 1966. At issue was the validity of a New York statute requiring that there be printed on political handbills the identity of those responsible for their publication. Subsequent to the original appeal in Zwickler v. Koota, Congressman Multer left the House of Representatives and was elected to a fourteen-year term on the New York Supreme Court. The district court held that election to the judicial post did not seem "to moot the controversy and thus to abort a declaration of constitutional invalidity," holding that at the time the action was filed a ripe controversy was presented. A unanimous Supreme Court reversed, holding that "Zwickler did not establish the existence at the time of the hearing on the remand of the elements governing the issuance of a declaratory judgment." 394 U.S. at 110, 89 S. Ct. at 960.

The Court said: "'The federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite. This is as true of declaratory judgments as any other field.' United Public Workers of America v. Mitchell, 330 U.S. 75, 89, 67 S. Ct. 556, 91 L. Ed. 754 (1947)." 394 U.S. at 108, 89 S. Ct. at 959.*fn2

Because Judge Richette lacks the capacity to participate in the requested relief as counsel, the matter sub judice becomes simply a request for an advisory opinion. "The oldest and most consistent thread in the federal law of justiciability is that the federal courts ...

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