Ezell Littleton v. Peyton Berbling, Individually and as State's Attorney for Alexander County, Illinois

DILLIN, District Judge

(dissenting).

The majority holds, for the first time, that a federal district court has the power to supervise and to regulate by mandatory injunction the discretion which state court judges and state’s attorneys may exercise within the limits of the powers vested in them by law. I respectfully suggest that no such power exists.

It is true, as a generality, that the immunity doctrine which protects such judicial and quasi-judicial officials against damage actions does not preclude the granting of equitable relief against them. Jacobson v. Schaefer, 441 F.2d 127 (7 Cir. 1971). However, in the cases cited by the majority 1 in which this doctrine has been applied, the equitable relief granted has invariably been in the form of a prohibitory injunction, confining such officials to the limits of their legal authority. There is a great difference between ordering an official not to do a particular act, measurable by objective standards, and in ordering him to exercise his discretion in a certain general way, measurable only by subjective standards.

Many pages of the majority opinion are devoted to an argument, derived from the legislative history of the Civil Rights Acts, to the effect that it was the congressional purpose that there should be no exceptions to the apparently *416 all inclusive wording of those Acts. However much I might agree if this case were the first to interpret that legislation, the fact remains that those same arguments have been eloquently expressed and the same history reviewed by Mr. Justice Douglas in his dissenting opinions in cases similar to ours, and have been found wanting. Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967); City of Greenwood v. Peacock, 384 U.S. 808 , 86 S.Ct. 1800 , 16 L.Ed.2d 944 (1966).

Greenwood v. Peacock, supra, is particularly instructive here. That case involved the question of whether another of the Civil Rights Acts, 28 U.S.C. § 1443 (1), 2 permits removal of a criminal case from state to federal court when a state statute, although valid and nondiseriminatory on its face, is applied in a discriminatory fashion, for racial reasons, in violation of the equal rights of the accused. The Fifth Circuit held in the affirmative, 3 in disregard of a long line of cases beginning with Strauder v. West Virginia, 100 U.S. 303 , 25 L.Ed. 664 (1880), and ending with Kentucky v. Powers, 201 U.S. 1 , 26 S.Ct. 387 , 50 L.Ed. 633 (1906). The Fifth Circuit was reversed, the Court holding with reference to such previous cases, after considering the question anew, as follows:

“Those cases all stand for at least one basic proposition: It is not enough to support removal under § 1443(1) to allege or show that the defendant’s federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. The motives of the officers bringing the charges may be corrupt, but that does not show that the state trial court will find the defendant guilty if he is innocent, or that in any other manner the defendant will be ‘denied or cannot enforce in the courts’ of the State any right under a federal law providing for equal civil rights. The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under § 1443 (1), the vindication of defendant’s federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. [State of] Georgia v. Rachel, 384 U.S. 780 , [ 86 S.Ct. 1783 , 16 L.Ed.2d 925 ]; Strauder v. [State of] West Virginia, 100 U.S. 303 [, 25 L.Ed. 664 ].” 384 U.S. at 827-828, 86 S.Ct. at 1812.

The situation presented in Greenwood and the situation alleged in the complaint here are, for all practical purposes, identical. In that case it was alleged, as a basis for removal of criminal actions brought against black defendants in a state court, that the local officialdom was applying statutes, valid on their face, in a racially discriminatory manner to deny defendants of their civil rights. In this case, the same kind of discriminatory conduct is alleged: that the officials apply the criminal laws harshly to blacks, and lightly, if at all, to whites. In Greenwood, recognition of the right to remove under the circumstances outlined would have required the federal district court, in each instance where removal had been taken and a petition for remand filed, to conduct an evidentiary hearing to determine wheth *417 er a pattern of discrimination existed. In addition to placing an intolerable burden upon the federal courts, such an interpretation of § 1443(1), it was said, would have operated to work a wholesale dislocation of the historic relationship between the state and federal courts in the administration of criminal law. Such was not the intent of the Congress, the majority concluded.

If, as the Court said in Greenwood, it was not the intent of Congress that § 1443(1) be applied as contended by the State court defendants, a fortiori it could not have been intended that “a wholesale dislocation of the historic relationship between the state and federal courts in the administration of criminal law” be accomplished by enabling federal trial courts to “put their brethren of the state judiciary on trial,” as the majority would do in cases such as the one before us.

In the Greenwood situation, had the Court ruled the other way, the duties of the federal trial court would be at an end once it had concluded the required hearing. The Court would either find no pattern of discrimination, and remand the case, or it would find such a pattern and either dismiss or try the case, as the circumstances warranted. In the case at hand, however, the federal court’s task would be never ending, assuming that plaintiffs could make their case. The court would first need to conduct an evidentiary hearing to determine whether a pattern of discrimination could indeed be discerned; if so, it would presumably order the state’s attorney to cease discriminating. Within the context of the complaint, this would mean not only that he should not ask for disproportionately high penalties against blacks, but that he should do a more vigorous job of investigating and filing charges made by blacks against whites, and try harder to obtain convictions in such cases as might be filed. Enforcement would necessarily be by contempt proceedings, which would require continuing hearings ad infinitum to examine the subjective motivation of the state’s attorney in performing, or in allegedly failing to perform, his discretionary duties. For example, if the charge was made, and found to be true, that he failed to do his best to convict a white, who was acquitted, the defendant would remain free for double jeopardy reasons, but the prosecutor would go to jail. Similarly, a judge operating under a nebulous order not to discriminate in fixing bonds and in sentencing would thereafter be confronted with the possibility of a contempt citation and the necessity to defend his motivation in each instance when he performed either function to the dissatisfaction of a minority race defendant.

Nor is this the only difficulty with the majority’s position. The principal complaint against the state’s attorney is that he will not prosecute whites: therefore, he should be compelled to do so. But it was held in the Confiscation Cases, 74 U.S. (7 Wall) 454, 19 L.Ed. 196 (1868), that whether or not prosecution is to be instituted, or whether a nolle prosequi is to be filed in a pending action, is wholly within the discretion of the official in the executive branch of the government cloaked with such power. The functions of prosecutor and judge are incompatible, and the right in the executive branch to prosecute or not to prosecute is not subject to control by judicial discretion. Ex parte United States, 287 U.S. 241 , 53 S.Ct. 129 , 77 L.Ed. 283 (1932); United States v. Thompson, 251 U.S. 407 , 40 S.Ct. 289 , 64 L.Ed. 333 (1920); Peek v. Mitchell, 419 F.2d 575 (6 Cir. 1970); United States v. Cox, 342 F.2d 167 (5 Cir. 1965), cert. den. Cox v. Hauberg, 381 U.S. 935 , 85 S.Ct. 1767 , 14 L.Ed.2d 700 ; Powell v. Katzenbach, 123 U.S.App.D.C. 250 , 359 F.2d 234 (1965), cert. den. 384 U.S. 906 , 86 S.Ct. 1341 , 16 L.Ed.2d 359 (1966); Goldberg v. Hoffman, 225 F.2d 463 (7 Cir. 1955); United States v. Brokaw, 60 F.Supp. 100 (S.D.Ill.1945). Cf. Clark v. State of Washington, 366 F.2d 678 (9 Cir. 1966).

Upon the analogy to Greenwood, the additional reasons just stated, as well as upon application of the principles of “Our Federalism,” as expounded in Younger v. Harris, 401 U.S. 37 , 91 S.Ct. *418 746 , 27 L.Ed.2d 669 (1971), and its companion cases, 4 I would affirm dismissal of the injunctive claims, claims one and six of the amended complaint, for failure to state a claim upon which relief could be granted. Rule 12(b)(6), Federal Rules of Civil Procedure.

I likewise disagree with the majority’s action in reversing dismissal of the damage claims asserted against the state’s attorney and his investigator in claims two, three, and four. The majority rather grudgingly concedes that all federal courts, including this one, hold that the immunity doctrine protects state’s attorneys from damage actions arising out of the discharge of official duties, but suggests, without deciding, that perhaps investigation of charges of crime may not be a prosecutorial function and, again perhaps, some liability might lie in this area if only plaintiffs would redraft their complaint to plead something actionable.

First of all, I think that the amended complaint must stand or fall as drafted, particularly since the majority has elected to treat the lower court’s dismissal as one for failure to state facts. The pleading, although lengthy, does not contain the rambling gibberish typical of a pro se complaint — a situation which frequently causes courts of review to search carefully for an actionable theory, inexpertly expressed — but to the contrary is expertly drafted by counsel who are obviously quite competent. The question, therefore, is as to whether the amended complaint states any facts at all upon which relief could be granted, and having to do with investigation. I find none.

The charge is not that the prosecutor and his investigator have overinvestigated — have applied undue pressure to obtain convictions of blacks, or have otherwise overreached, as in the two cases cited by the majority. 5 Rather, the charge is that they have not done enough in that they have failed to investigate charges by blacks against whites, and have failed to permit the filing of certain complaints. In other words, the charge is of nonfeasance or misfeasance in the discharge of the prosecutor’s official duty to “commence and prosecute all actions ... in which the people of the State or county may be concerned.” 6

Thus, as a matter of logic, we are down to this: if investigation is a function of the state’s attorney’s office, then the complaint must fail because of the immunity doctrine. If it is not, then the complaint is equally bad, since the state’s attorney can hardly be held liable for failure to perform a task he is not required to do. Finally, it has been expressly held that failure to investigate alleged criminal conduct is clearly privileged as in the exercise of official, quasi-judicial functions. Scolnick v. Winston, 219 F.Supp. 836 (S.D.N.Y. 1963), aff’d 329 F.2d 716 (2 Cir. 1964). The amended complaint alleges no more against the investigator than against his superior, and must fail for the same reasons.

The rationale for the rule of immunity from damage actions was well expressed by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579 (2 Cir. 1949), as follows:

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it *419 were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. . . . As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

“The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. ...” 177 F.2d at 581 .

I submit that the reason for the rule against damage actions applies with equal force to mandatory injunctions which seek to regulate the exercise of discretion of judicial 7 and quasi-judicial officers. It would be cold comfort for such an official to be told by this Court: “Be of good cheer! We will protect your pocketbook, even as we send you to jail.”

I would affirm the judgment of the lower court in its entirety.

. Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908); United States v. McLeod, 385 F.2d 734 (5 Cir. 1967); United States v. Clark, 249 F.Supp. 720 (S.D.Ala.1965); Phillips v. Cole, 298 F.Supp. 1049 (N.D.Miss.1968); Bramlett v. Peterson, 307 F.Supp. 1311 (M.D.Fla.1969). Cf. Dombroski v. Pfister, 380 U.S. 479 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965); Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886); Ex parte Virginia, 100 U.S. 339 , 25 L.Ed. 676 (1880).

. § 1443. “Any of the following civil actions or criminal prosecutions commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; . .

. Peacock v. City of Greenwood, 347 F.2d 679 (5 Cir., 1965).

. Samuels v. Mackell, 401 U.S. 66 , 91 S.Ct. 764 , 27 L.Ed.2d 688 ; Boyle v. Landry, 401 U.S. 77 , 91 S.Ct. 758 , 27 L.Ed.2d 696 ; Perez v. Ledesma, 401 U.S. 82 , 91 S.Ct. 674 , 27 L.Ed.2d 701 ; Dyson v. Stein, 401 U.S. 200 , 91 S.Ct. 769 , 27 L.Ed.2d 781 ; Byrne v. Karalexis, 401 U.S. 216 , 91 S.Ct. 777 , 27 L.Ed.2d 792 .

. Robichaud v. Ronan, 351 F.2d 533 (9 Cir. 1965); Lewis v. Brautigam, 227 F.2d 124 (5 Cir. 1955).

. Ill.Rev.Stat. 1971, Oh. 14, § 5, as amended.

. If corruption indeed exists in the IIlinois judiciary, then that State should clean its own house. Ample procedures exist for accomplishing this end, which can be set in motion by concerned citizens such as plaintiffs. Constitution of Illinois (1970), Art. 6, § 15.