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Table of Contents.

Interest of amicus curiae 2

Summary of argument 2

Argument 3

I. The concept of Federalism and the doctrine

of equitable restraint require that the federal

courts defer to the courts of the State of Flor-

ida in the presentation of the respondents’

claim. Younger v. Harris, 401 U.S. 37 (1971),

and the cases decided under its principles bar

respondents’ claim 3

II. There is no constitutional right to a prelimi-

nary hearing 18

A. The information procedure of the State of

Florida satisfies due process standards as a

method of initiating criminal proceedings 18

B. The issuance of a warrant pursuant to the

filing of an information does not violate the

Fourth Amendment

Conclusion

& &

Table of Authorities Cited.

CasEs.

Albrecht v. United States, 273 U.S. 1 (1927) 19, 24, 25

Austin v. United States, 408 F. 2d 808 (9th Cir. 1969) 20

Beal v. Missouri Pacific Railroad, 312 U.S. 45 (1941) 17

Coleman v. Alabama, 399 U.S. 1 (1970) 21, 25

Commonwealth v. Baldassini, 357 Mass. 670 (1970) 23n

Commonwealth v. Britt, Mass. Adv. Sh. (1972) 1443,

285 N.E. 2d 780 20

ii TABLE OF AUTHORITIES CITED

Costello v. United States, 350 U.S. 359 (1956) 22, 24

Dombrowski v. Pfister, 380 U.S. 479 (1965) 11, 12

Douglas v. City of Jeanette, 319 U.S. 157 (1943) „11

Ex parte United States, 287 U.S. 241 (1932) 24

Ex parte Young, 209 U.S. 123 (1908) 8

Fenner v. Boykin, 271 U.S. 240 (1926) 17

Fuentes v. Shevin, 407 U.S. 67 (1972) 14

Hurtado v. California, 110 U.S. 516 (1884) 18

In re Hooper, 52 Wis. 699 (1881) 24

In re Rule 3: 131(b), Florida Rules of Criminal Pro-

cedure, Per Curiam Opinion of The Supreme

Court of Florida, February 15, 1974, 289 So. 2d 3 25

In re Van Sciever, 42 Neb. 778 (1894) 24

Lawn v. United States, 355 U.S. 339 (1958) 21, 24

Lem Woon v. Oregon, 229 U.S. 586 (1913) 18

Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816) 7

Mitchum v. Foster, 402 U.S. 941 (1971) 12n

Morrison v. Dwyer, 143 Iowa 502 (1909) 24

Ocampo v. United States, 234 U.S. 91 (1914) 22

People ex rel. Lyman v. Smith, 352 III. 496 (1933) 24

People v. Stockwell, 135 Mich. 341 (1904) 24

Perez v. Ledesma, 401 U.S. 82 (1971) 11, 15

Pugh v. Rainwater, 483 F. 2d 778 (5th Cir. 1973) 14, 16

Railroad Commission of Texas v. Pullman Co., 312

U.S. 496 (1941) 9n

Rivera v. Government of the Virgin Islands, 375 F.

2d 988 (3d Cir. 1967) 20

Robb v. Connolly, 111 U.S. 624 (1884) —

TABLE OF AUTHORITIES CITED iii

Samuels v. Mackell, 401 U.S. 66 (1971) 11, 12, 13, 14, 15

Scarbrough v. Dutton, 393 F. 2d 6 (5th Cir. 1968) 19

Sciortino v. Zampano, 385 F. 2d 132 (2d Cir. 1967) 19

Stefanelli v. Minard, 342 U.S. 117 (1951) 17

Steffel v. Thompson, 415 U.S. , 94 S. Ct. 1209

(1974) 15, 18

United States v. Douglas, 155 F. 2d 894 (7th Cir.

1946) 19

United States v. Funk, 412 F. 2d 452 (8th Cir.

1969) 25

United States v. Hearne, 6 F.R.D. 294 (D.C. Wis.

1946) 19

United States v. Luxenberg, 374 F. 2d 241 (6th Cir.

1967) 20

Younger v. Harris, 401 U.S. 37 (1971) 2, 3, 8, 11,

12, 13, 14 et seq.

SraruTes.

United States Constitution

First Amendment 11

Fourth Amendment 3, 22, 23, 25

Fourteenth Amendment 3, 22, 25

Philippine Bill of Rights, 6 5 23

Act of April 30, 1970, c. 9, § 3 19

California Criminal Syndicalism Act 12

Civil Rights Act of 1871 16

Judiciary Act of 1875 18

1 Stat. 119 19

vi TABLE OF AUTHORITIES CITED

28 U.S.C.

§ 1253 12

§ 1343 9n

§ 2201 9n

§ 2283 9n, 12n

§ 2284 11

42 U.S.C. § 1983 9n, 12n

Mass. Gen. Laws, c. 277, § 79 23n

MISCELLANEOUS.

Articles of Confederation 2, 4, 5n

Federal Rules of Criminal Procedure

Rule 5 19

Rule 7 19

Rule 7(a) 19

Rule 9(a) 25

Florida Rules of Criminal Procedure

Rule 3: 131 19

Rule 3: 140 19

Rule 3: 140(g) 25

Carey, Federal Court Intervention in State Criminal

Prosecution, 56 Mass. L. Q. 11 (1971) —

Jonathan Eliot, ed., The Debates in the Several State

Conventions, on The Adoption of the Federal Con-

stitution (Washington, 1854) 5n

The Federalist Papers

No. 18 4

No. 19 4

— cela

TABLE OF AULHOBITIES CITED Vv

No. 20 4, 6

No. 82 7

Hart and Wechsler, The Federal Courts and the

Federal System (2d Ed. 1973) 9n, 11, 17

Kurland, Toward a Cooperative Judicial Federal-

ism: The Federal Court Abstention Doctrine, 24

F. R. D. 481 (1960) gn

Gordon S. Wood, The Creation of the American Re-

public, 1776-1787 (1969) 4, 5n, 6

Wright, The Abstention Doctrine Reconsidered,

37 Tex. L. Rev. 815 (1959) 9n

Wright, Handbook of the Law of the Federal Courts

(2d Ed. 1970) 9n, 11

Supreme Court of the United States.

Ocroser Term, 1954.

No. 73-477.

RICHARD E. GERSTEIN,

Srare ATTORNEY

OF THE

ELAVXXTN Jupicia, Cracurr or Frontba,

IN AND FOR Dape Counry,

PRTITIONER,

v

ROBERT PUGH ayn NATHANIEL HENDERSON,

AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND

THOMAS TURNER anv GARY FAULK,

ON THEIR OWN BEHALF

AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

REsPoNDEN Ts.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

. FOR THE FIFTH CIRCUIT.

Brief of the Commonwealth of Massachusetts as

AMICUS CURIAE.

2

Interest of Amicus Curiae.

Although the Commonwealth of Massachusetts does not

initiate criminal proceedings by information, the Common-

wealth files this brief as amicus curiae in compliance with

the request of the Court.

Summary of Argument.

I. The Constitution was adopted as a federal system in

response to the failure of the Articles of Confederation.

The defenders of the Constitution specifically noted that the

Constitution was a compromise document, providing not

for a consolidated national government, but, rather, for a

system of ‘‘coequal sovereignties’’ under which the states

would be allowed sovereignty in areas particularly inappro-

priate to the national government.

This Court has long recognized the compromise which

resulted in the adoption of the Constitution. The Supreme

Court has embraced ‘‘Our Federalism’’ and has delineated

specific doctrines to avoid federal encroachment in matters

peculiarly appropriate to state decision. The doctrines

have been described under the broad label of ‘‘ Abstention’’

but the ‘‘ Abstention Doctrines’’ are many and varied. The

particular doctrine applicable to the instant case is the

doctrine of ‘‘ Equitable Restraint.“

The doctrine of equitable restraint, as articulated in a

series of decisions culminating in Younger v. Harris, 401

U.S. 37 (1971), means basically that the federal courts

should refuse to intervene in pending state criminal pro-

ceedings when the state courts provide an adequate vehicle

for the presentation of federal claims. Since notions of

federal-state comity interact with traditional equity require-

ments, the doctrine of equitable restraint requires the

3

federal courts to consider the state’s interest in making a

state decision on the question as well as the potential of

irreparable harm to the state defendant.

In the instant case, the State of Florida has a pending

criminal proceeding against the respondents. Further it

would appear that Florida provides a vehicle for the re-

spondent to assert the federal constitutional claim, the

courts below were in error when they issued injunctive and

declaratory relief.

II. Preliminary probable cause hearings for defendants

held in state custody are not required by the Fourth and

Fourteenth Amendments to the United States Constitution

where prosecution is initiated either by information or

indictment.

This Court having held that prosecution by information

is constitutionally permissible and having treated informa-

tions as comparable to indictment, the lower court has

erred in applying probable cause standards required in

prosecutions upon complaint to prosecutions by informa-

tions.

The sworn information, like the indictment, sufficiently

complies with the Fourth Amendment requirement that

probable cause must be shown before a warrant shall issue.

Argument.

I. Tue Concerr or Feperatism anp THE DocrTRiNE oF

EqurrasLe Restraint Require rHat THe FeperaL Courts

Derer ro THe Courts or THe State or Fiona IN THE

PRESENTATION OF THE ResponpENTs’ CLAN. Youwnornr v.

Hanns, 401 U.S. 37 (1971), anv rue Cases Drop UNDER

rs Principtes Bar Responpents’ Cam.

The difficulty in defining the proper roles of the state and

federal systems is a problem that has been present in the

American concept of the function of its governments since

4

the adoption of the Articles of Confederation. In The

Federalist, Nos. 18, 19, and 20, James Madison and Alex-

ander Hamilton sketched an analysis of the historical fail-

ure of confederacies. In The Federalist, No. 20, they wrote

that the lesson of history was . that a sovereignty over

sovereigns, a government over governments, a legislation

for communities, as contradistinguished from individuals,

as it is a solecism in theory, so in practice it is subversive

of the order and ends of civil polity.’’ Neither Madison

nor Hamilton perceived a federal government coextensive

with a great part of the North American continent. They

could not have imagined a federal union encompassing fifty

states, nor the complexity such a union inherently portend-

ed. The Constitution they drafted was designed to cure

the defects of the Articles of Confederation by creating a

viable central government strong enough to secure the

national interest. That the creation of such a national

government would inevitably diminish local power was

obvious, but, in the eighteenth century, the question was

more confusing because the issues were so novel.

When Madison defended his constitution he was defend-

ing a conception of government which was revolutionary,

not only in terms of the individual’s relation to the state,

but also with respect to the juxtaposition of power the

Constitution established. Hamilton, Jay, Madison, and

the Federalist members of the Constitutional Convention

articulated a system of government which was virtually in-

comprehensible to the eighteenth century political mind.

This school of thought, which it is convenient to call Anti-

federalist, saw the question of federal and state power as

one of either consolidation or confederation. Wood, The

Creation of the American Republic, 1776-1787 (1969) (here-

inafter cited as Wood).

* The quotations which appear in the following paragraphs are,

except where specifically noted, taken from Gordon 8. Wood, The

Creation of the American Republic, 1776-1787, University of North

5

The eminent Virginian, George Mason, warned of the

Constitution that ‘‘. . . these two concurrent powers can-

not exist long together, the one will destroy the other.

James Winthrop: W. shall find it impossible to please

two masters. Logic seemed to require either a national

government or the separate state governments to exercise

absolute sovereignty in their spheres. ‘‘I have never

heard,’’ said William Grayson, ‘‘of two supreme co-ordi-

nate powers in one and the same country before. I cannot

conceive how it can happen. It surpasses everything that

I have read of concerning other governments, or that I can

conceive by the utmost exertions of my faculties.’’

The most democratic of the revolutionaries of 1776 balked

at a constitution which they regarded as intending to eradi-

cate state power. Samuel Adams said of the Convention:

J confess, as I enter the Building, I stumble at the thresh-

old. I meet with a National Government, instead of a

Federal Union of Sovereign States.’’ Perhaps William

Lenoir of North Carolina placed the Antifederalist argu-

ments in their clearest modern perspective. ‘Instead of

securing the sovereignty of the states,“ the constitution

„. .. is caleulated to melt them down into one solid em-

pire.’’ Lenoir’s empire would be oppressive because

no exten» empire can be governed upon republican

Carolina Press, 1969. Professor Wood’s work is a survey of the

Articles of Confederation, the making of the Constitution, and,

in general, political thought from the Revolution to the Constitu-

tion. All quotations are from what the author designates as pri-

mary sources, ¢.g., Jonathan Eliot, ed., The Debates in the Several

State Conventions, on the Adoption of the Federal Constitution.

(Washington, 1854). See Wood, supra, 619-620 (A Note on

Sources).

The quotations are not intended to be a definitive historical

analysis but are cited with the intention that the thoughts of

some of the Founding Fathers may be useful in placing ‘‘Our

Federalism’’ in its proper perspective.

principles, and that such a government will degenerate to

a despotism, unless it be made up of a confederacy of

small states, each having the full powers of internal regula-

tion.“ To Lenoir, and the Antifederalists, different states

meant different interests, different climates, different habits,

different needs, requiring different laws and different regu-

lations. Wood, supra, 525-527.

The result of the Antifederalist reaction to the adoption

of a new constitution was to force a balance which Madison

said was a constitution. . . not completely consolidated,

nor is it entirely federal. It was, said Madison, of a

mixed nature’’ made up ‘‘of many coequal sovereignties.’’

In retrospect, perhaps, ‘‘coequal sovereignties’’ may be

confused with the ‘sovereignty over sovereigns’’ that Madi-

son had condemned in The Federalist, No. 20, but the con-

clusion is unnecessary because what the Federalists had

created was a living, vibrant document: a written Constitu-

tion in which power and the perogutives of the sovereign

itself were distributed and balanced not only for the eigh-

teenth century but for as long as this balance served the

needs and liberties of the people.

The allocation of power which the Constitution effected

was the key to its survival. If the structure, if its allocation

of power was sound, the document would endure. If the

divisions of federal power were unsound or if state peroga-

tives were recklessly abused, the Constitution was unlikely

to prove a viable instrument of government. The test would

be in the flexibility of the document itself.

The erection of a new government, whatever care

or wisdom may distinguish the work, cannot fail to

originate questions of intricacy and nicety; and these

may, in a particular manner, be expected to flow from

the establishment of a constitution founded upon the

total or partial incorporation of a number of distinct

7

sovereignties. ‘Tis time only that can mature and per-

fect so compound a system, can liquidate the meaning

of all the parts, and can adjust them to each other in

a harmonious and consistent WHO. Hamilton, The

Federalist, Number 82.

Thirty years after Hamilton wrote the Federalist papers

a Supreme Court Justice appointed to the court by James

Madison wrote on the subject of the powers granted by the

Constitution :

The constitution, unavoidably, deals in general

language. It did not suit the purposes of the people,

in framing this great charter of our liberties, to pro-

vide for minute specifications of its powers, or to de-

clare the means by which those powers should be

carried into execution. It was foreseen that this would

be a perilous and difficult, if not an impracticable,

task. The instrument was not intended to provide

merely for the exigencies of a few years, but was to

endure through a long lapse of ages, the events of

which were locked up in the inserutable purposes of

Providence. It could not be foreseen what new changes

and modifications of power might be indispensable to

effectuate the general objects of the charter; and re-

strictions and specifications, which at the present

might seem salutary, might, in the end, prove the

overthrow of the system itself.“ Martin v. Hunter’s

Lessee, 1 Wheat. 304, 326 (1816) (Story, J.)

Power was the essential subject of the Constitution.

Who should possess it and how it should be used were

questions that the Founding Fathers sought to answer.

Containing the flexibility noted by both Hamilton and

Justice Story, the Constitution endured precisely because

it embodied ‘‘a proper respect for state functions, a recog-

nition of the fact that the entire country is made up of a

Union of separate state governments, and a continuance of

the belief that the National Government will fare best if the

States and their institutions are left free to perform their

separate functions in their separate ways. Younger v.

Harris, 401 U.S. 37, 44 (1971).

This Court has long recognized that one of the primary

concerns of Our Federalism’’ is the... independence

and integrity of the state courts, their important role in

our federal system, and except in the most extraordinary

circumstances, their right to conduct proceedings free

from federal court interference. See Carey, Federal

Court Intervention in State Criminal Prosecution, 56 Mass.

L.Q. 11 (1971). The interest of the states in the admini-

stration of their criminal law is obvious. Probably in no

other context is the state interest likely to be as high as in

an instance where the basis of the violation of the principles

of federalism is the presumption that state official action to

enforce its criminal laws is working a denial of a constitu-

tional right. The premise of virtually all federal court

interference with state action is conduct by an official or

officials of a state which is alleged, in a federal forum, to

constitute a violation of a federal right. When the right

purportedly being violated is being violated in a state judi-

cial proceeding, federal intervention calls into question the

very integrity of the state process. By intervening, in any

way, the federal court has acted upon the assumption that

state judges will not enforce the United States Constitution.

though their duty to do so differs in no way from their

federal counterparts. Cf. Robb v. Connolly, 111 U.S. 624

(1884).

Since the decision in Er parte Young, 209 U.S. 123

(1908), this Court has developed various theories designed

to mitigate the generally abrasive effect any federal inter-

vention will have on state procedure. In the instant case

the respondents filed class actions in the federal court

seeking declaratory and injunctive relief against their ar-

rest and detention pursuant to the Florida information

procedure. The respondents had been arrested and were

incarcerated under Florida law. They then sought adjudi-

cation of a federal constitutional question concerning their

right to a pretrial hearing on the issuc of probable cause

to arrest.

Beginning with Douglas v. City of Jeanette, 319 U.S. 157

(1943), this Court has addressed the question of when de-

claratory and injunctive relief may be appropriate to inter-

vene in a state matter. After disposing of the jurisdiction-

al question * Chief Justice Stone said, at 162-163:

See generally, Hart and Wechsler, The Federal Courts and the

Federal System (2d Ed. 1973), 926-1056; Wright, Handbook of

the Law of the Federal Courts, (2d Ed. 1970). See also, Kurland,

Toward A Cooperative Judicial Federalism: The Federal Court

Abstention Doctrine, 24 F. R. D. 481 (1960); Wright, The Absten-

tion Doctrine Reconsidered, 37 Tex. L. Rev. 815 (1959).

As will be presented in the text of the Amicus brief the specific

doctrine of Abstention applicable to this case is quite narrow

and the doctrine of Railroad Commission of Teras v. Pullman Co.,

312 U.S. 496 (1941), cited by the petitioner, is not on point, nor

is the reference to 28 U.S.C. 5 2283. See fn. 4, infra. Brief for

Petitioner, p. 19.

10

The power reserved to the states under the Con-

stitution to provide for the determination of contro-

versies in their courts may be restricted by federal

district courts only in obedience to Congressional

legislation in conformity to the judiciary Article of the

Constitution. Congress by its legislation, has adopted

the policy, with certain well defined statutory excep-

tions, of leaving generally to the state courts the trial

of criminal cases arisilg under state laws, subject to

review by this Court of any federal questions involved.

Hence, courts of equity in the exercise of their discre-

tionary powers should conform to this policy by re-

fusing to interfere with or embarrass threatened pro-

ceedings in state courts save in those exceptional cases

which call for the interposition of a court of equity to

prevent irreparable injury which is clear and immi-

nent.

The Chief Justice said it was a familiar rule that courts

of equity ordinarily do not restrain criminal prosecutions.

The imminence of the prosecution was not a ground for

equitable relief since the state court as well as the federal

court could determine the lawfulness or constitutionality

of the statute in question :

Where the threatened prosecution is by state

officers for alleged violations of a state law, the state

courts are the final arbiters of its meaning and applica-

tion, subject only to review by this Court on federal

grounds appropriately asserted. Id., at 163.

v. Camden Ins. Aen., 296 U.S. 64, 69: Pennsylvania v. Wil-

liams, 294 U.S. 176, 181-82, may nevertheless, in the discretion

of the court, be objected to on its own motion. Twist v.

Prairie Oil C., 274 U.S. 684, 690: Pennsylvania v. Williams,

supra, 185. Especially should it do so where its powers are

11

The doctrine enunciated in Douglas has been termed

‘Equitable Restraint. Hart and Wechsler, The Federal

Courts and The Federal System (2d Ed. 1973), 1009-1050.

Since purely equitable considerations are not controlling,

Douglas dealt with the broader question of federalism and

the principle that ‘‘. . . notions of federal-state comity

intersect traditional equity requirements in connection

with the more inclusive requirement that the plaintiff in

equity show irreparable harm, and more particularly in

connection with equity’s traditional reluctance to inter-

fere with criminal proceedings unless such harm would re-

sult. Hart and Wechsler, supra, at 1010.

The Douglas doctrine of equitable restraint stood un-

questioned until 1965 when Dombrowski v. Pfister, 380 U.S.

479 (1965), distinguished certain First Amendment ques-

tions which may be subject to a ‘chill. effect when

there is a threatened state prosecution. Dombrowski

appeared to many to have modified the Douglas line of

cases and in 1971 this Court decided a series of cases

designed, it is suggested, to reaffirm the principles of the

doctrine of equitable restraint. Younger v. Harris, supra,

401 U.S. 37; Samuels v. Mackell, 401 U.S. 66, Perez v.

Ledesma, 401 U.S. 82, were all decided February 23, 1971,

and are, in the view of at least one respected commentator,

among the most significant cases affecting the law of the

federal court decided in years. Wright, Handbook of the

Law of the Federal Courts (2d Ed. 1970), Foreword to 1972

Pocket Part.

Younger dealt with the question whether, after Dom-

browski, a federal court could issue an injunction to restrain

a pending state criminal proceeding. The District Court,

sitting with three judges pursuant to 28 U.S.C. § 2284,

enjoined Younger, the District Attorney for Los Angeles

12

County, from entorcing the California Criminal Syndical-

ism Act and from further prosecution of the currently

pending action against Harris. Younger appealed directly

to this Court pursuant to 28 U.S.C. § 1253 and Justice

Black writing for the Court“ reversed the three-judge

District Court. The Court held. the Dombrowski

decision should not be regarded as having upset the settled

doctrines that have always confined very narrowly the

availability of injunctive relief against state criminal prose-

cutions.’’ Younger, supra, at 53. Moreover, . . the

possible unconstitutionality of a statute ‘on its face’ does

not in itself justify an injunction against good-faith at-

tempts to enforce it. The failure of Harris . . to

make any showing of bad faith, harassment, or any other

unusual circumstance that would call for equitable relief,“

bars federal intervention. Id., at 54.

Samuels v. Mackell, supra, rested on the same foundation

as Younger, holding that when declaratory relief is sought,

the requirement of irreparable harm applicable to tradition-

al equity actions must govern the propriety of federal

intervention. There are at least two principles present in

Younger and Samuels, which are specifically relevant to

the instant cases.

1. There must be a pending state criminal prosecution

for the doctrine to apply.

*In Younger, Justice Black wrote for a majority. Mr. Justice

Brennan, Mr. Justice White, and Mr. Justice Marshall concurred

in the result, because Harris had not alleged bad faith harassment.

Mr. Justice Stewart, with whom Justice Harlan joined, concurred

with the notation that the Court was specifically avoiding the

question whether 28 U.S. C. § 2283 applied to a declaratory judg-

ment or whether 42 U.S.C. 6 1983 was an expressly authorized

exception to the anti-injunction statute. Mr. Justice Douglas

dissented.

In Mitchum v. Foster, 402 U.S. 941 (1971), the Court held 42

U.S.C. § 1983 was an expressly authorized exception to 28 U.S.C.

§ 2283.

13

2. If there is a pending state prosecution, the federal

plaintiff must have an opportunity to present his federal

claim during the course of the proceeding.

The Attorney General of Massachusetts, as amicus

curiae, would suggest the Younger-Samuels rule must be

absolute if the state’s interest is to be respected. That is,

where a state defendant may raise his federal claim in the

state proceeding no federal intervention is justifiable to

interfere with a pending state criminal action.

In the case at the bar the respondents were arrested and

incarcerated. The State of Florida took custody of them

under its criminal laws. From this it would appear un-

disputed that Florida had a pending prosecution against

persons concerning whom the state attorney had filed

informations certifying probable cause to arrest. The

request for relief, however, was not directed at the statute

under which the state defendants were being held. In this

instance the federal claim was that a state procedure occur-

ring between arrest and trial was inadequate. The Court

of Appeals for the Fifth Circuit found this distinguishing

feature sufficient to remove the case from the F. ounger-

Samuels rule:

„This court has declined to issue declaratory or

injunctive relief interfering with pending or future

state court prosecutions, unless the state statute under

which the plaintiffs were being prosecuted was alleged-

ly unconstitutional on its face. However, we have not

declined to adjudicate federal questions properly pre-

sented merely because resolution of these questions

would affect state procedures for handling criminal

cases. Where, as here, the relief sought is not ‘against

any pending or future court proceedings as such.’

Younger is inapplicable.

14

The relief sought by these plaintiffs was not against

any state prosecution as such but only against the

state’s practice of considering the state attorney a

sufficient judge of probable cause to hold arrestees un-

til arraignment or trial. Simply declaring that the

plaintiffs were entitled to pre-trial procedural rights,

the District Court said that the plaintiffs should ‘im-

mediately be given a preliminary hearing to determine

probable cause by a committing magistrate unless their

cases have been otherwise concluded.’’ By recognizing

that some plaintiffs’ cases might have been concluded,

the Court demonstrated that its declaration of pre-trial

rights was not to impede the plaintiffs’ prosecutions.”’

Pugh v. Rainwater, 483 F. 2d 778, 781-782 (5th Cir.

1973) (emphasis in original, citations omitted).

The amicus curiae would respectfully suggest to the Court

that the distinction between prosecutions and prosecutions

‘tas such’’ is simply not tenable. The question is whether

or not a state prosecution has commenced. In the instant

case it clearly had. The Fifth Circuit’s reliance on Fuentes

v. Shevin, 407 U.S. 67 (1972), is not well placed if only be-

cause Fuentes had nothing to do with a pending state

criminal prosecution. The doctrine of equitable restraint

that the amicus curiae submits as applicable to the present

cases applies only to state criminal prosecutions and reaches

no further. It is true as the Fifth Cireuit implies that

since the relief sought would not enjoin further prosecu-

tion of the statute under which the respondent was arrested

the precise Younger situation does not exist. However, the

Court ignored the fact that another situation covered by

the Younger principle might exist.

In Samuels the request was for declaratory relief and

even though there would be no interference with the state

15

proceeding until the declaratory judgment was issued the

intrusive effect of the federal proceeding was seen as suffi-

cient to require federal restraint. Indeed, in Perez v.

Ledesma, supra, this Court reversed the District Court’s

grant of unjunctive relief which did not enjoin a prosecu-

tion, but which did order illegally seized materials returned

to the state defendants and barred the use of the material

at the state trial. Justice Black said this action was im-

proper under the Younger doctrine because it . . would

effectively stifle the then-pending state criminal prosecu-

tion. Id. at 84.

Justice Black then restated the basic Y ounger rule, at 85.

Only in cases of proven harassment or prosecutions

undertaken by state officials in bad faith without hope

of obtaining a valid conviction and perhaps in other

extraordinary circumstances where irreparable injury

can be shown is federal injunctive relief against pend.

ing state prosecutions appropriate.“

In view of the above, the amicus curiae would suggest

that it cannot be seriously contended that the injunctive

relief granted below did not have exactly the same ‘‘in-

trusive’’ effect on the Florida prosecution condemned in

Perez. Neither Younger, nor Samuels, nor Perez, nor

Steffel v. Thompson, 415 U.S. 94 S. Ct. 1209 (1974),

made any distinction between state prosecutions and state

prosecutions ‘‘as such.’’ The question is, as characterized

by Justice Black in Younger, at 44. a proper respect

for state functions,’’ and this respect must be paid to the

state courts if the federal system is to have continuing

vitality.

The amicus curiae would not, however, contend that feder-

al intervention cannot occur where the state proceeding

does not allow an individual to raise a federal constitution-

16

al claim. In the instant case there is from the opinions

below a question whether Florida does provide any pro-

cedural vehicle for the presentation of the federal claim.

Assuming, arguendo, that the Florida information pro-

cedure might be inadequate, a point that will be discussed

below, it does not appear to the amicus curiae that Florida

does not provide a means for one to raise the question of

probable cause to arrest.

The Fifth Cireuit in its Pugh v. Rainwater opinion said:

Arraigument is the first opportunity for a magi-

strate to inspect the state attorney’s information set-

ting forth the cause upon which the defendant was

arrested.’’ 483 F. 2d at 781.

The question occurs as to why the issue cannot be raised

at this time. An examination of the brief for the respond-

ents indicates that they do not aflirmatively argue that

the question may not be raised. Moreover, the Court of

Appeals went even further on whether there was a means

of raising the federal question. In a footnote to the sen-

tence quoted above:

„For purposes of this appeal, we assume that be-

cause Florida Statutes § 906.06 requires the state

attorney to state the offense on the information form

and § 906.07 says that ‘the court, on motion, may order

the prosecuting attorney to furnish a bill of particu-

lars,’ the defendant could challenge the information

for failure to show sufficient probable cause upon

which to continue the prosecution. Otherwise, the

trial itself would present the first such opportunity for

a probable cause challenge before a judicial officer.

While bail hearings apparently are afforded even where

the state prosecutes by information, there is no show-

17

ing on this record that these hearings have ever been

utilized to require the State Attorney to show prob-

able cause for arresting as well as the reasons for

setting bail at a particular level or for denying bail

altogether.’’ (Emphasis supplied.)

It must be suggested that if a proper reading of the doctrine

of equitable restraint is as suggested by the amicus curiae

the state defendant must first ‘‘set up and rely upon his

defense in the state courts . . unless it plainly appears

that this course would not afford adequate protection.“

Younger v. Harris, supra, at 45, citing Fenner v. Boykin,

271 US. 240 (1926).

It is the function of the state of Florida to decide the

legal question of probable cause. See Beal v. Missouri

Pacific Railroad, 312 U.S. 45 (1941). Indeed, the doctrine

of equitable restraint has been held to apply a fortiori

where the request is to intervene piecemeal to try collateral

issues in a criminal proceeding. Cf. Stefanelli v. Minard,

342 U.S. 117 (1951); Hart and Wechsler, supra, 1012. If

Florida provides a means of raising the federal claim, as

the Court of Appeals assumes, then federal intervention

is barred.* The remedy a state provides in any particular

„It should also be noted that when the instant case was origi-

nally argued, counsel for the respondent admitted that a vehicle

to test the question of probable cause existed

The Chief Justice: The state mentioned a motion to dis-

miss as a method of testing probable cause once the information

is filed. What do you think of that?

Well, I don’t think so because the state’s attorney can get

around it. 42 L.W. 3550

It would appear to the amicus curiae that the question whether

or not the state’s attorney can get around“ the motion to dis-

miss is irrelevant to the question of equitable restraint.

18

instance may not be one speciiically desired by an individual

state defendant, but, if an adequate remedy is provided it

precludes the federal court from intervention.

There is no question that in the wake of the Civil War

it was a pervasive sense of nationalism which led to the

adoption of the Civil Rights Act of 1871 and the Judiciary

Act of 1875. See opinion of Mr. Justice Brennan in

Steffel v. Thompson, supra. The amicus curiae would

agree explicitly that the overriding import of this nationalist

expansion was to the benefit of the country and the security

of the liberties of the people. There comes a point, how-

ever, when one must question whether the system of

federalism, of ‘‘coequal sovereignties,’’ to quote Madison,

is not being slighted. There is no basis to assume that

any right secured by the Constitution of the United States

will be sacrificed by allowing a state court to first hear ques-

tions bearing on that right. A proper respect for state

functions dictates that the federal courts recognize that

state judges owe the same duty and bear the same devo-

tion to our Constitution as their federal brothers. That,

in essence, is the rationale of the doctrine of equitable

restraint.

II. Tere ts No CoxsrrrurioxaL Ricur ro a

Pretiminary Hearrne.

A. The Information Procedure of the State of Florida

Satisfies Due Process Siandards as a Method of Initiating

Criminal Proceedings.

It is well settled that due process of law does not require

that a state initiate criminal process by an indictment

returned by a grand jury. Hurtado v. California, 110 US.

516 (1884) ; Lem Woon v. Oregon, 229 U.S. 586, 589 (1913).

——ůlb——

19

Since 1790, lesser federal crimes have been prosecuted by

information. Act of April 30, 1970, e. 9, § 3; 1 Stat. 119.

Rule 7, Fed. R. Cr. P., provides for prosecution by infor-

mation for offenses which are punishable by imprisonment

for less than one year. Both Florida procedure and the

federal rules provide that if an information is filed, a

defendant’s statutory right to a preliminary hearing will

be vitiated. Rule 5, Fed. R. Cr. P. Historically, leave of

court was required before an information could be filed.

United States v. Douglas, 155 F. 2d 894 (7th Cir. 1946).

However, in Albrecht v. United States, 273 U.S. 1 (1927),

the Court indicated that the requirement that leave of

court be obtained could be satisfied without verification or

affidavits.

„The United States Attorney, like the Attorney

General or Solicitor General of England, may file an

information under his oath of office ; and, if he does so,

his official oath may be accepted as sufficient to give

verity to the allegations of the information. 273 U.S.

at 6.

Subsequently, with the enactment of the Federal Rules

of Criminal Procedure, Rule 7(a) made it unnecessary for

leave of court to be obtained prior to the filing of an infor-

mation. See United States v. Hearne, 6 F. R. D. 294 (D.C.

Wis. 1946).

The procedure followed by Florida authorities is con-

sistent with the Federal Rules. Fla. R. Cr. P., Rule 3: 131,

3: 140.

The lower federal courts have consistently held that the

right to a preliminary hearing is procedural and that sub-

stantive and constitutional rights are not involved. Scar-

brough v. Dutton, 393 F. 2d 6 (5th Cir. 1968) ; Sciortino v.

Zampano, 385 F. 2d 132 (2d Cir. 1967); United States v.

Luwxenberg, 374 F. 2d 241 (6th Cir. 1967); Austin v. United

States, 408 F. 2d 808 (9th Cir. 1969). °

In Rivera v. Government of the Virgin Islands, 375 F. 2d

988 (3d Cir. 1967), the court stated: ‘‘Thus the filing of an

information in the Virgin Islands is the full equivalent of

the presentment of an indictment by a grand jury [citation

omitted], just as it is in the United States district courts

in those cases in which it is employed. 375 F. 2d at 990

(emphasis supplied).

Respondents and the Court of Appeals sought to distin-

guish the above-cited cases on the ground that the validity

of the trial as affected by the lack of a preliminary hearing

was the issue in those cases, while in the instant case, the

respondents are attacking their pretrial detention as un-

constitutional because they have not been granted a pre-

liminary hearing.

The Commonwealth of Massachusetts, as amicus curiae,

submits that the distinction is without merit. The basic

question raised in the above-cited cases and the question

presented in the instant case is: Whether a person held in

state custody has a constitutional right to a preliminary

hearing? Whether the Constitution mandates that such a

hearing be provided is not, we submit, conditional on

whether the question is raised prior to trial or after trial.

Had the courts in these prior cases held that the defendants

had been denied a constitutional right to a preliminary

hearing, the result may well have been the same as in

*In the Commonwealth of Massachusetts, the Supreme Judicial

Court has held that a defendant has no constitutional right to a

preliminary or probable cause hearing, and that ‘‘the prosecutor

may seek an indictment without such a hearing even after the

defendant has been arrested. Commonwealth v. Britt, Mass.

Adv. Sh. (192) 1443, 1447, 285 N.E. 2d 780.

——

21

Coleman v. Alabama, 399 U.S. 1, 11 (1970), where the

Court held that, on the issue of relief, inquiry must be

made as to whether the denial of counsel at the preliminary

hearing was harmless error. Therefore, we submit that the

only distinction between the above-cited cases and the

instant case concerns itself with the relief to be granted and

not the constitutional issue raised.

When confronted with cases raising the question whether

preliminary hearings should be afforded to defendants in

order to test the evidence supporting an indictment by a

grand jury, the Supreme Court has equated the indict-

ment with the information and refused to find a constitu-

tional basis for granting a preliminary hearing.

“*. . this Court has several times ruled that an

indictment returned by a legally constituted non-

biased grand jury, like an information drawn by a

prosecutor, if valid on its face, is enough to call for a

trial of the charge on the merits and satisfies the

requirements of the Fifth Amendment.“ (Emphasis

supplied.) Lawn v. United States, 355 U.S. 339, 349

(1958).

This Court has consistently refused to require a series

of mini-trials to test the sufficiency of the indictment or

information.

I indictments were to be held open to challenge

on the ground that there was inadequate or incom-

petent evidence before the grand jury, the resulting

delay would be great indeed. The result of such a rule

would be that before trial on the merits a defendant

could always insist on a kind of preliminary trial to

determine the competency and adequacy of the evidence

before the grand jury. This is not required by the

Fifth Amendment. An indictment returned by a

legally constituted and unbiased grand jury, like an

information drawn by the prosecutor, if valid on its

face, is enough to eall for trial of the charge on the

merits. The Fifth Amendment requires nothing

more. Costello v. United States, 350 U.S. 359, at 363

(1956) (emphasis supplied).

B. The Issuance of a Warrant Pursuant to the Filing

of an Information does Not Violate the Fourth Amend

ment.

The Court below has held that the issuance of a warrant

upon the filing of an information violates the Fourth and

Fourteenth Amendments to the United States Constitution.

The Court below has focused on the lack of judicial scrutiny

of probable cause as the basis for its decision. However,

when the information system is employed the requirements

for probable cause differ much as they do under the grand

jury system. The analysis by the Court in Ocampo v.

United States, 234 U.S. 91 (1914), is on point.

It is insisted that the finding of probable cause is a

judicial act, and cannot properly be delegated to a

prosecuting attorney. We think, however, that it is

erroneous to regard this function, as performed by

committing magistrates generally. .. as being judicial

in the proper sense.... A finding that there is no

probable cause is not equivalent to an acquittal, but

only entitles the accused to his liberty for the present,

leaving him subject to rearrest.... In short, the func-

tion of determining that probable cause exists for the

arrest of a person accused is only quasi-judicial, and

not such that, because of its nature, it must necessarily

be confided to a strictly judicial officer or tribunal.’’

234 U.S. at 100.

— —

— se

The Court then held that the use of the information pro-

cedure which denied to an inhabitant of Manila a prelimi-

nary examination as to probable cause did not violate the

prohibition of the Philippine Bill of Rights, 4 5, „It Ihat

no warrant shall issue, but upon probable cause, supported

by oath or affirmation. 234 U.S. at 100.

The Court stated :

„Here we find clear warrant for modifications of

the practice and procedure; and since § 5 of the same

act (quoted above) does not prescribe how ‘probable

cause’ shall be determined, it is, in our opinion, as

permissible for the local legislature to confide this

duty to a prosecuting officer as to entrust it to a justice

of the peace. Consequently, a preliminary investiga-

tion conducted by the prosecuting attorney . and

upon wich he files a sworn information against the

party accused, is a sufficient compliance with the

requirement ‘that no warrant shall issue but upon

probable cause, supported by oath or affirmation.’ ”’

234 U.S. at 100-101.

The respondents and the Court below appear to equate

the initiation of criminal proceedings by information with

the initiation of criminal proceedings by complaint. The

Commonwealth of Massachusetts, as amicus curiae, sub-

mits that the two procedures are not equatable and that

Fourth Amendment requirements differ. The Fourth

Amendment contains no rigid definition of probable cause.“

Under the prescribed statutory forms of indictments as con-

tained in Mass. Gen. Laws, e. 277, § 79, there is no requirement

that the facts constituting probable cause be recited. Nor for a

warrant based upon indictment to issue is there any requirement

that the facts constituting probable cause be recited. Common-

wealth v. Baldassini, 357 Mass. 670, 676-677 (1970).

24

A showing of probable cause appropriate to protect a

defendant arrested upon an information need not, we sub-

mit, be the same as that required at the complaint stage

because in the former instance the information is in general

verified by the prosecutor’s oath of office. Such an oath

has been deemed to be of sufficient integrity to support the

information. Albrecht v. United States, supra.

This Court has equated informations with an indictment.

Costello v. United States, supra; Lawn v. United States,

supra. And, for the purposes of rendition, the courts of

several states have in fact equated informations with

indictments.

There is no doubt that a charge of crime in this

form [information] where it is legal according to the

laws of a state though not technically an indictment

and not mentioned in the law of Congress, comes within

the meaning of the law and would, and should be so

regarded for the purpose of extradition if properly

made. People ex rel. Lyman v. Smith, 352 III. 496

(1933). See also Morrison v. Dwyer, 143 Iowa, 502

(1909) ; People v. Stockwell, 135 Mich. 341 (1904); In

re Van Sciever, 42 Neb. 778 (1894); In re Hooper, 52

Wis. 699 (1881).

While the rendition issues involved in these cases are

not on point, the analysis by the various courts does in-

dicate that informations are analogous to an indictment,

rather than to a complaint. Therefore, we submit that,

like an indictment, no judicial scrutiny of probable cause

is required before a warrant may issue on the information.

Rather, as with an indictment, if the information is fair

on its face, the warrant should issue upon the request of

the government as a matter of course. Ex parte United

States, 287 U.S. 241 (1932).

25

Moreover, the Federal Rules do not require more.

Upon request of the attorney for the government

the court shall issue a warrant for each defendant

named in the information, if it is supported by oath,

or in the indictment.’’ Rule 9(a), Fed. R. Or.

As amicus curiae, the Commonwealth of Massachusetts

submits that the existence of probable cause may be pre-

sumed from the fact that prosecution is instituted by a

state attorney under oath stating his good faith. Fla.

Cr. P. Rule 3: 140(g); Albrecht v. United States, supra.

An order for arrest based upon the filing of an information

conforms to the requirements of the Fourth Amendment.

United States v. Funk, 412 F. 2d 452 (8th Cir. 1969). Also,

we submit, it is a fair assumption that an information

would not be filed in the absence of a determination that

evidence sufficient to put before a grand jury exists and

that, in addition, there exists sufficient admissible evidence

to prove the case beyond reasonable doubt at trial.“

Therefore, as amicus curiae, the Commonwealth of Mas-

sachusetts suggests that there is no constitutional man-

date under the Fourth or Fourteenth Amendments to the

United States Constitution which requires that a prelim-

inary hearing be afforded to defendants who are prosecuted

either by indictment or information. In reaching this con-

clusion, we respectfully direct the court’s attention to the

words of Mr. Chief Justice Burger in his dissenting opinion

in Coleman v. Alabama, 399 U.S. 1, 23-24 (1969) :

Constitutional interpretation is not an easy mat-

ter, but we should be especially cautious about sub-

* See In re Rule 3: 131(b), Florida Rules of Criminal Procedure,

Per Curiam Opinion of the Supreme Court of Florida, filed Feb-

ruary 15, 1974, 289 So. 2d 3.

26

stituting our own notions for those of the Framers.

1 heed Mr. Justice Black's recent admonition on ‘the

difference .. . between our Constitution as written by

the Founders and an unwritten constitution to be for-

mulated by judges according to their ideas of fairness

on a case-by-case basis. North Carolina v. Pearce,

395 U.S. 711, 744 (1969) (separate opinion of Black, J.)

(emphasis in original).’’

Conclusion.

For the reasons stated above, the Commonwealth of Mas-

sachusetts, as amicus curiae, respectfully suggests that the

decision of the lower court be reversed.

Respectfully submitted,

ROBERT H. QUINN,

Attorney General,

JOHN J. IRWIN, IR.,

Assistant Attorney General,

Chief, Criminal Division,

DAVID A. MILLS,

Assistant Attorney General,

Chief, Criminal Appellate Section,

BARBARA A. H. SMITH,

Assistant Attorney General,

MICHAEL C. DONAHUR,

Deputy Assistant Attorney General.