Supplemental Brief — Gerstein v. Pugh

IN THE

Supreme Court of the Anite

OCTOBER TERM, 1974

No. 73-477

RICHARD E. GERSTEIN, State Attorney for the

Eleventh Judicial Circuit of Florida, in and for Dade

County,

Petitioner.

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all others similarly

situated,

Respondents

RESPONDENTS’ SUPPLEMENTAL BRIEF

BRUCE S. ROGOW

Nova University Center

for the Study of Law

3301 College Avenue

Fort Lauderdale, Florida 33314

PHILLIP A. HUBBART, Public Defender

for the Eleventh Judicial Circuit

Metropolitan Justice Building

1351 N.W. 12 Street

Miami, Florida 33125

Counsel for Respondents

Washington, OC. © CLE PUBLISHERS «¢ LAW PRINTING CO. « (202) 399.0675

IV.

(i)

TABLE OF CONTENTS

THAT DUE PROCESS REQUIRES THAT

THE TAKING OF ABSOLUTE LIBERTY

BE FOLLOWED BY A PROMPT JUDICIAL

HEARING TO DETERMINE PROBABLE

GE coe ces ewenenseserewne ccce

A. The “Capable of Repetition Yet Evading

SE NEED wc ccctcoweedes

B. The Unnamed Class Members Perpetuate

ED 0 onde 6 0 h'b.0 00,0004

PREISER V. RODRIGUEZ, 411 US. 475

(1973) POSES NO BAR TO THIS ACTION.

A. There Was No Challenge To The Fact Or

Duration Of Confinement. ..........

B. If Preiser v. Rodriguez \s Applicable, The

Respondents Have Satisfied Its Require-

ments And This Court Should Act On

WEEE, se veer cer vovocsescese

THE AMICUS CURIAE BRIEFS OFFER

NO THEORY WHICH JUSTIFIES RE-

VERSAL OF THE DECISION BELOW....

D, BOE. 4:00 eaemss cape eoes

Constitutional Right. ..............

(ii)

Page

TABLE OF AUTHORITIES

Cases:

Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) ....... 10, 23

Amett v. Kennedy, _._. U.S. ____, 94. S.Ct. 1633,

40 L.Ed.2d 15 (April 16, 1974) 2... ee 7

Baldwin v. New York, 399 US. 66, 73(1970) .......... 22

Bradley v. State, 265 So.2d 532 (Fla. App. 1972),

cert. denied, 411 US. 916 (1973) 2... 6. cc eee ees 19

Coleman v. Alabama, 399 US. 1(1970) 2... . 0.00404 us 22

Conley v. Gibson, 355 U.S. 41 (1957) 2.2.6... ee ees 16

Costello v. United States, 350 U.S. 359, 363 (1956) ...... 20

Dotschay v. National Mutual Insurance Co., 246

Poe Sa, Be Gs GUTS Sescccretivcccceces 16

Fuentes v. Shevin, 407 U.S. 67 (1972) .... 20... ee eee 5

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ........065. 5, 21

Hensley v. Municipal Court, 411 U.S. 345 (1973) ........ 14

Hurtado v. California, 110 U.S. 516(1884) ............ 20

Indiana Employment Security Division v. Burney,

See es PEED. nos dccnneedecaedme €bdheos 11

Lawn v. United States, 355 U.S. 339, 349 (1958) ........ 20

Lem Woom v. Oregon, 229 US. 586 (1913) ............ 20

Calero Toledo v. Pearson Yacht Leasing, ___. US.

—_., 94 S.Ct. 2080, 40 L.Ed.2d 452 (May 15,

OGD: cceh oem s Mueiads Ab aee be be 648 GRAD Re 7

Mitchell v. W.T. Grant Company, __.. US. ___,

94 S.Ct. 1895, 40 L.Ed.2d 406 (May 13,1974) .. . passim

Moore v. Ogilvie, 394 U.S. 814, 816(1972) ............ 9

Morrissey v. Brewer, 408 US. 471, 485 (1972) ....... passim

Ocampo v. United States, 234 US. 91 (1914) ........... 20

Perez v. Ledesma, 401 US. 82(1971) 2... 06. ccc eee ee 18

(iii)

Page

Preiser v. Rodriguez, 411 U.S. 475 (1973) .......... passim

Pugh v. Rainwater, 483 F.2d 778, 788 (Sth Cir.

_. BP ITeTi itt ree tee ee ek passim

Richardson v. Ramirez, _.. US. ___, 94 S.Ct.

2655, 2675-2679, 41 L.Ed.2d 551, 557-580

SPE. oct pens 668 basen ds Oheedha 11,12

Roe v. Wade, 410 U.S. 113, 125 (1973) .. 0... eee eee 9

Samuels v. Mackell, 401 US. 66 (1971) ........000005- 18

Scarborough v. Dutton, 393 F.2d 6 (Sth Cir. 1968) ...... 19

Sibron v. New York, 392 U.S. 40 (1968) .............. 10

Southern Pacific Terminal Co. v. L.C.C., 219 US.

EE PE Pe ee 9

State ex rel. Hardy v. Blount, 261 So.2d 172, 174

> GEE 00.0% cccteneeeareueded saan4 3, 4, 15, 20

Steffel v. Thompson, _... US. ___., 94 S.Ct.

oe le 19

Widener v. Croft, 184 So.2d 444 (Fla. 1966) ........... 20

Williams v. Richardson, 481 F.2d 358, 361 (8th Cir.

SE. 2 che wenn’ s Ve Chk ooh sesbes 20 eekneN 16

Wilwording v. Swenson, 404 U.S. 249(1971) ........... 16

Wolff v. McDonnell, _.. US. __., 94 S.Ct.

2963, 2973, 41 L.Ed.2d 935, 949 (June 26,

SOE Ka bied otc BESCHRIL 6 hb 08 Teen ndicdbe 12, 13

Younger v. Harris, 401 U.S. 37 (1971) ........0055. 18, 20

Statutes:

TF Ge HEE Sv be dewbneccperewhoonndedns 16

Ti Ge BOE occ connie ceiedéeecstesdeceni 13

Rule 3.040, Florida Rules of Criminal Procedure ......... 3

Rule 3.190(cX4), Florida Rules of Criminal

SD: 9:0 bl beth tedden’ <a wena) 1440000 uns 4

(iv)

Rule 3.190(d), Florida Rules of Criminal Procedure

Rule 3.131(a) and (b), Florida Rules of Criminal

ED 5\4 4 ng chk edhe 04 680 40892 00.0%

Rule 3.130, Florida Rules of Criminal Procedure ....

Rule 3.131(a), Florida Rules of Criminal Procedure ....

Rule 3.191(a(1) & (2), Florida Rules of Criminal

ID eink ee eke 5 eee ewes ORS CEC ROC

Rule 2%(b\(2), Federal Rules of Civil Procedure ....

Rule 5(c), Federal Rules of Criminal Procedure .....

Other Authorities:

Anderson, The Preliminary Hearing—Betier Alter-

natives or More of the Same? 35 Mo. L.Rev.

SNEED Se EWE SE Ob rte ccccccccens

Report On Courts, Standard 4.5 (1973) ........->

2A Moore’s Federal Practice, §8.14 ....-----505-

eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-477

RICHARD E. GERSTEIN, State Attorrey for the

Eleventh Judicial Circuit of Florida, in and for Dade

County,

Petitioner,

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all others similarly

situated,

Respondents.

RESPONDENTS’ SUPPLEMENTAL BRIEF

INTRODUCTORY STATEMENT

This case was originally argued on March 25, 1974.

Several weeks later, the Court ordered reargument.

Subsequently, the Court invited the Solicitor General of

the United States to submit his views on the issves

presented, and the Attorney Generals of the fifty states

were issued similar invitations.

2

Nine of the states’ and the Solicitor General have

filed amicus curiae briefs. The Respondents submit this

brief to reply to the states’ views and to address the

questions of mootness and jurisdiction which concerned

the Court during the initial argument. In addition, the

brief will focus upon the more recent decisions of this

Court which are relevant to the case. The views of the

Solicitor General, submitted only recently, are addressed

in a Second Supplemental Brief for Respondents.

This brief supplements the original arguments sub-

mitted by the Respondents. The authorities cited

therein retain their validity. The intervening decisions of

this Court merely reaffirm that: (1) The Due Process

Clause requires preliminary hearings for defendants

incarcerated prior to trial solely upon a State

Attorney’s information; (2) This case is not moot

because it is a classic example of the “capable of

repetition, yet evading review” exception to the

mootness doctrine; (3) Preiser v. Rodriguez, 411 US.

475 (1973) offers no bar to the maintenance of this

action.

Before addressing each of those points, it is

important to remind the Court of the factual and

procedural background of this case.

THE FLORIDA PROCEDURES WHICH

PRESENT THE CONSTITUTIONAL

QUESTIONS.

In Florida, criminal actions are usually initiated by

informations filed by a state attorney or one of his

assistants. The informations are based upon facts

‘Massachusetts, Georgia, Vermont, Utah, Washington,

Louisiana, New Jersey, Texas and California.

3

presented to the State Attorney’s office by police

officers (App. 47-50). The filing of an information

constitutes a binding determination of probable cause

which justifies the detention of a defendant until trial.

As the Florida Supreme Court put it:

When a prosecuting attorney files an information

against a defendant, he conclusively determines

that the evidence is adequate to establish probable

cause to put the defendant on trial.

State ex rel. Hardy v. Blount, 261 So.2d 172, 174

(Fla. 1972).

The Florida Rules of Criminal Procedure, Rule

3.131(a) and (b), provide for preliminary hearings for

felony defendants if no information is filed within 96

hours after the defendants first appearance. (Accused

misdemeants are never entitled to probable cause

hearings). The first appearance, which is to set bail and

inform the defendant of his rights, takes place within

24 hours of arrest. Rule 3.130, Florida Rules of

Criminal Procedure. Thus, a state attorney has at least

five days in which to obviate a preliminary hearing by

filing an information.?

Of course, even if a preliminary hearing is held, and

no probable cause found, the state attorney can

overrule the magistrate’s decision.

? Actually a state attorney has at least seven days to act, since

Rule 3.040 of the Florida Rules of Criminal Procedure provides

that Saturdays, Sundays and holidays are to be excluded in the

computation when the period of time involved is less than seven

days. The Rules which set the time frames mentioned above were

implemented after the District Court decision in this case. At

that time, a month or more sometimes passed between arrest and

first appearance while the State Attorney was processing the

information (App. 56-57, 47-48).

4

... even if a defendant were granted a preliminary

hearing and the committing magistrate discharged

the defendant for lack of probable cause, the

prosecuting attorney could nevertheless determine

that probable cause exists and file an information

charging the defendant with the commission of the

offense.

State ex rel. Hardy v. Blount, 261 So.2d at 174.

The effect of the Rules and Florida Supreme Court

decisions is to make state attorneys the final arbiters of

probable cause. Absolutely no remedy exists to review a

finding of probable cause which flows from an

information. The filing of a habeas corpus petition

would be futile because the prosecutor’s action is

conclusive. State ex rel. Hardy v. Blount, 261 So.2d at

174. A Motion to Dismiss the information under Rule

3.190(c\(4) of the Florida Rules of Criminal Procedure

is unavailing because the State need merely traverse or

demur to the Motion and it will be denied. Rule

3.190(d). Consequently, even if one argued that due

process is protected by a defendant’s ability to initiate

a right to be heard on probable cause, the argument

would be devoid of merit in the Florida scheme.’

The question presented by the Florida practice has

®The Respondents submit that as a due process matter, it is

the State, not a defendant, who must initiate the hearing process.

If there is a constitutional right to be heard shortly after arrest,

then waiver of that right must be “an intentional relinquishment

or abandonment of a known right or privilege.” Johnson v.

Zerbst, 304 US. 458, 464 (1938). That waiver cannot be

presumed from a silent record. Camiey v. Cochran, 369 US. 506,

516 (1962). Only if the State makes clear offer of a preliminary

hearing can the constitutional standards begin to be met. Compare

Morrissey v. Brewer, 408 U.S. 471 (1973).

5

been constant throughout this litigation. Is a person

held in custody upon a State Attorney’s information

constitutionally entitled to a prompt judicial hearing to

determine if probable cause exists to deprive him of his

liberty?

THE RECENT DECISIONS OF THIS COURT

REAFFIRM THE PRINCIPLE THAT DUE

PROCESS REQUIRES THAT THE TAKING

OF ABSOLUTE LIBERTY BE FOLLOWED

BY A PROMPT JUDICIAL HEARING TO

DETERMINE PROBABLE CAUSE.

The arrest and incarceration of a person suspected of

having committed a crime deprives him of his

unencumbered, absolute right to liberty. People convic-

ted of crimes, whose rights to liberty are merely

conditional, i.e., parolees and probationers, are entitled

to “preliminary hearings” to determine if probable

cause exists to consider termination of their parole or

probation. Morrissey v. Brewer, 408 U.S. 471, 485

(1972), Gagnon v. Scarpelli, 411 U.S. 778 (1973). The

Respondents, whose claim to liberty is stronger, merely

ask for similar treatment.

The Court’s recent decisions reinforce the due

process contentions made in Respondents’ original brief

and oral argument.

In Mitchell v. W.T. Grant Company, _.. US.

—__.., 94 S.Ct. 1895, 40 L.Ed.2d 406 (May 13, 1974),

the Court retreated from the broad rule announced in

Fuentes v. Shevin, 407 U.S. 67 (1972) which required a

6

hearing before personal property could be temporarily

taken. Mitchell upheld a Louisiana sequestration statute

which provided for hearings immediately after the

property was seized. The Court took pains to point out

that the Louisiana practices offered more protection

than did the Florida statutes struck down in Fuentes.

In the parish where Mitchell arose, before a writ of

sequestration could be issued:

... the requisite showing must be made to a judge

and judicial authorization obtained. Mitchell was

not at the unsupervised mercy of the creditor and

court functionaries. The Louisiana law provides for

judicial control of the process from beginning to

end. This control is one of the measures adopted

by the State to minimize the risk that the ex parte

procedure will lead to a wrongful taking. It is

buttressed by the provision that should the writ be

dissolved there are ‘damages for the wrongful

issuance of a writ’ and for attorney’s fees ‘whether

the writ is dissolved on motion or after trial on

the merits.’ Art. 3506.

Mitchell v. W.T. Grant Company, _._. U.S. —_.,

94 S.Ct. at 1904-1905, 40 L.Ed.2d at 419.

(footnote omitted).

The Florida procedure for depriving a person of

liberty via an information contains none of those

safeguards. There is no judicial control over the issuance

of the information nor is there judicial review of the

information before trial. Damages and attorneys fees are

not available upon a finding of no probable cause or an

acquittal.*

“Such damages might be available if one could show a

knowing and malicious false arrest. But the cases which are most

affected by preliminary hearings are those in which the officer

7

At issue in Mitchell was personal property (a stove,

stereo, refrigerator and a washing machine) in which the

buyer and the seller shared interests. The property was

never wholly the buyer’s. Down payments were made

and the vendor transferred possession to the purchaser

but retained a right to the goods until payment was

completed. Mr. Mitchell had conditional possession of

the merchandise. At issue in this case is liberty which is

absolutely possessed until the State acts. Certainly, if

the taking of the Mitchell property requires an

opportunity for an immediate hearing, subsequent to

the sequestration, the taking of liberty cannot require

less.

Mitchell, Calero Toledo vy. Pearson Yacht Leasing,

—_.. U.S. —__.,, 94 §.Ct. 2080, 40 L.Ed.2d 452 (May

15, 1974) and Arnett v. Kennedy, _. U.S. ____._ ,, 94

S.Ct. 1633, 40 L.Ed.2d 15 (April 16, 1974) all have

reaffirmed the need for flexibility in determining what

process is due. The Respondents’ position respects that

concern. As they stated in their original brief, at page 13:

The Government function involved here is the

State’s duty to charge and arrest persons suspected

of the commission of a crime. An adversary

hearing prior to the exercise of that function

believed he made a valid arrest, only to learn later that he had

the wrong person, or a witness no longer could identify him, or

that indeed, no actual crime had been committed. Those good

faith arrests should not be subjected to civil damage actions. If

every discharged arrestee could maintain such suits prosecutors

and police would be unable to function. The only remedy for a

good faith taking of liberty which is later determined to lack

substance is the speedy return of liberty. Only a prompt

preliminary hearing can mitigate the potential harm.

might undermine the State’s ability to apprehend a

suspect. The accommodation which the plaintiffs

urge — a prompt hearing subsequent to arrest —

protects the Government interest and the private

interests, the fundamental right to absolute liberty.

A hearing is mandated by the due process decisions

of this Court.

Il.

THIS CASE IS NOT MOOT.

A.The “Capable of Repetition Yet Evading

Review” Doctrine.

The right to be heard at a preliminary probable cause

hearing arises in the time between arrest and trial. In

Florida, the speedy trial rule calls for felony cases to be

heard within 180 days of arrest and misdemeanors must

be called for trial within 90 days. If a demand for a

speedy trial is made, the time shrinks to 60 days from

the date of the demand. Florida Rules of Criminal

Procedure, Rule 3.191(a)(1) and (2). The Respondents

and the class they represent contest the State’s ability

to deprive them of their liberty during that time solely

upon a prosecutorial information. Once a trial is held,

their claim evaporates.’ Consequently, the passage of

It is important to reiterate that the Respondents do not

claim that a preliminary hearing is a prerequisite to a fair trial.

The issue here is whether a pretrial deprivation of liberty may be

fairly accomplished without a preliminary hearing. Respondents’

Brief, pp. 30-31. The State of Florida and several of the amicus

curiae briefs overlook this distinction when they rely upon cases

which hold that preliminary hearings are not required by the Due

9

time will invariably prevent a complaining plaintiff from

directly benefiting from the hearing he sought. Pugh

and Henderson, although they were members of the

denied class when they filed their suit in March, 1971,

no longer are in need of a preliminary hearing. They

have been tried.

This case is a classic example of the “capable of

repetition yet evading review” doctrine enunciated in

Southern Pacific Terminal Co. v. L.C.C., 219 U.S. 498,

515 (1911). It meets the dual test of the rule.® The

denial of preliminary hearings continue under the

Florida practices. The claims continually evade review

because of the short time in which they ripen. The

analogy to the Southern Pacific progeny, i.e., Moore v.

Ogilvie, 394 U.S. 814, 816 (1972) and Roe v. Wade,

410 U.S. 113, 125 (1973) is apt. In each of those cases

the Court found that the issues presented (validity of

voter residence requirements and the Texas abortion

statute) were “capable of repetition yet evading

Process Clause. Without exception, those cases involved an

attempt to reverse an otherwise valid conviction because a

preliminary hearing was denied. That argument has never been

made in this case. It is singularly inappropirate because Florida

has broad pretrial discovery which enables a defendant to

extensively prepare for trial. Florida Rules of Criminal Procedure,

Rule 3.220. Thus the focus of this case is narrow. It is concerned

only with the pretrial less of liberty upon an information.

*See the dissenting opinion of Mr. Justice Marshall in

Richardson v. Ramirez, _. US. —_._., 94 S.Ct. 2655,

2675-2679, 41 L.Ed.2d 551, 557-580 (June 24, 1974). In

concluding that the claim was moot, Justice Marshall points to

all the reasons which compel the conclusion that Pugh’s claim is

not moot under the Southern Pacific rule.

10

review.”” Therefore the Court decided the questions,

even though the named plaintiffs no longer suffered the

deprivation originally claimed. The plight of those

denied preliminary hearings is equally within the

evading review doctrine.’

There is an additional argument for the mootness

exception in the case at bar. It is found in Sibron v. New

York, 392 U.S. 40 (1968):

Many deep and abiding constitutional problems are

encountered primarily at a level of ‘low visibility’

in the criminal process — in the context of

prosecutions for ‘minor’ offenses which carry only

short sentences. We do not believe that the

Constitution contemplates that people deprived of

constitutional rights at this level should be left

utterly remediless and defenseless against repeti-

tions of unconstitutional conduct.

Id. 392 US. at 52-53.

The Respondents and their class would be placed in

that quandary if the Court declined to act.

"It may even be a more compelling example. The Fifth

Circuit called for the earings to take place between four and

seven days from arrest. Pugh v. Rainwater, 483 F.2d 778, 788

(Sth Cir. 1973). Every subsequent day without a preliminary

hearing gives rise to an irreparable deprivation of liberty.

Compare Argersinger v. Hamlin, 407 US. 25, 37 (1972). So it

may be said that the time for vindication of the right to be

heard is but five to eight days after arrest. A far shorter time

than that involved in the voting and abortion cases.

B. The Unnamed Class Members Perpetuate The

Controversy.

At the time the Respondents and other intervening

plaintiffs filed suit they were part of a class of persons

arrested by law enforcement officers in Dade County,

Florida who were incarcerated upon informations filed

by State Attorney Gerstein and therefore denied

preliminary hearings (App. 3). The District Court

determined that the case was properly maintained as a

class action. Pugh v. Rainwater, 332 F.Supp. 1107,

1115 (S.D. Fla. 1971).

Since the Respondents no longer are part of the

class, the Court, at oral argument, expressed some

doubt about the ability of unnamed class members to

perpetuate the controversy in light of /ndiana Employ-

ment Security Division v. Burney, 409 U.S. 540 (1973).

(Tr. of Oral Arg. 38-39). See also, Richardson v.

Ramirez, U.S. _., 94 S.Ct. 2655, 2664, 41

L.Ed.2d 551, 562 (1974). In Burney, the named

plaintiff's unemployment insurance benefits were termi-

nated without a prior hearing. Several months later she

received a hearing in the Indiana Employment Security

Division and eventually was reinstated with complete

retroactive compensation.

Burney is distinguishable from this case. First, the

claims of Mrs. Burney and her class did not evade

review. It was possible that the termination of

unemployment insurance without a prior hearing could

still pose a back payment problem after the post-

termination hearing. In order to resolve that dispute the

Court would have to address the need for a prior

12

hearing. Thus, the Southern Pacific doctrine was not

applicable.®

In addition, persons denied pre-termination hearings

could eventually be made whole, as was Mrs. Burney.

But the effect of a denied preliminary hearing is

different. Liberty, once lost, is not retrievable. Money

damages, even if appripriate,? cannot replace freedom.

So the question initially posed by Pugh is very much

alive. The present and future members of the class

Originally represented by the Respondents perpetuate

the controversy. They are daily denied an opportunity

to be heard. If that opportunity is commanded by the

Constitution, only this Court can articulate it and end

the dilemma.

PREISER V. RODRIGUEZ, 411 U.S. 475

_ (1973) POSES NO BAR TO THIS ACTION.

Preiser v. Rodriguez, 411 U.S. 475 (1973) held that

when state prisoners challenged “the very fact or

duration of their confinement and were seeking a

speedier release, their sole federal remedy was by writ

of habeas corpus, 411 U.S. at 500, with the

concomitant requirement of exhausting state remedies.”

Wolff v. McDonnell, US. , 94 S.Ct. 2963,

2973, 41 L.Ed.2d 935, 949 (June 26, 1974).

® Richardson v. Ramirez, _._. US. ____, 94 S.Ct. 2655,

2678-2679, n. 12, 41 L.Ed.2d 551, 579-580 (1974) (Mr. Justice

Marshall, dissenting).

*See footnote 4, supra.

13

The Respondents in this case, proceeding under Title

42 U.S.C. § 1983, did not challenge the fact or duration

of their confinement. But even if their challenge were

read differently and habeas corpus was the proper

vehicle, the District Court had jurisdiction since state

remedies were non-existent. Therefore exhaustion was

not required and the suit could be treated as a habeas

corpus petition.

A.There Was No Challenge To The Fact Or

Duration Of Confinement.

The Court described the relief sought in Preiser y.

Rodriguez, 411 U.S. 475 (1973) this way:

Alleging that the Department had acted unconsti-

tutionally in depriving them of the [good time]

credits, they [the plaintiffs] sought injunctive

relief to compel restoration of the credits, which

in each case would result in their immediate

release from confinement in prison.

Id. 411 U.S. 476-477.

In Wolff v. McDonnell, U.S. ___._ , 94 S.Ct. 2963,

41 L.Ed.2d 935, the plaintiff similarly sought infer alia,

“restoration of good time.” /d. at 2963.

The plaintiffs in Pugh never requested relief which

would have directly returned their liberty or shortened

the duration of their confinement. They asked that the

defendants be enjoined:

from failing to accord plaintiffs and members of

their class due process hearings immediately after

arrest to determine whether or not probable cause

exists for the detention of the plaintiffs and their

class. (App. 12).

14

By granting that relief, the Courts below merely

provided a procedural mechanism to test the State

Attorney’s information. There was no automatic release

from confinement flowing from the decisions. Nor did

the plaintiffs want the federal court to release them

from custody. They did not contend that their custody

was illegal. Throughout, they have recognized that the

State had the power to arrest and hold them for a short

time without a hearing.'°It was the denial of a hearing

which they claimed to be illegal. They wanted only the

right to be heard. If, after a preliminary hearing, a State

magistrate found no probable cause, the release from

custody would be his decision."'

Respondents’ Brief, p. 13, Tr. of Oral Arg. 54-55.

In the order which provided for a preliminary hearing plan,

the District Court, as a sanction, called for release if no preliminary

hearing was granted. Pugh v. Rainwater, 336 F. Supp. 490, 493

(S.D. Fla. 1972). But that was merely an enforcement measure

which assumed possible non-compliance with the District Court's

substantive order. The Fifth Circuit thought the sanctions

inappropriate and vacated them. Pugh v. Rainwater, 483 F.2d at

790. No one contests that ruling and thus release, in any form, is

not an issue here.

Had the Respondents sought habeas corpus relief, the District

Court would have been put in the position of ordering many

Jefendants released from physical custody unless preliminary

hearings were granted. Not only would that have caused

unnecessary federal-state friction. it would have avoided the issue.

The pretrial releases would not provide an opportunity to

determine probable cause. The defendants then would be in a

different form of custody. Cf Hensley v. Municipal Court, 41)

U.S. 345 (1973), which would permit them to renew their

habeas corpus actions. The only effective relief available then

would be for the District Court to order preliminary hearings or

outright dismissal of the prosecutions. That gross interference

15

Unlike the plaintiffs in Preiser and Wolff, the

Respondents custody could only be affected by a State

decision on probable cause. Since they sought only the

right to be heard, and not the right to liberty, their

challenge was not to the fact or duration of their

custody and Preiser is inapplicable.

B.If Preiser v. Rodriguez 1s Applicable, the

Respondents Have Satisified Its Requirements

and This Court Should Act On The Merits.

There is no question that an attempt to seek habeas

corpus relief in the Florida courts would be futile. The

Florida law is adamant. A prosecutor's information

determined probable cause and no preliminary or

judicial inquiry of any kind can review that decision.

State ex rel. Hardy v. Blount, 261 So.2d 172 (Fla.

1972). Florida Rules of Criminal Procedure, Rule

3.131{a). A petitioner need not attempt to exhaust

futile remedies. Preiser v. Rodriguez, 411 U.S. at 493;

Wilwording v. Swenson, 404 U.S. 249 (1971). Therefore

no jurisdictional barrier prevented the Respondents

from maintaining a habeus corpus action in the District

Court under Title 28 U.S.C. §2254.

If the Court concludes that habeas corpus is the

proper mode of relief, the Court should redesignate this

action as a habeas corpus petition and reach the merits

with state court proceedings would be unnecessary if the form of

relief were injunctive. Failure to honor the injunction and

provide hearings would subject the State Attorney to contempt

proceedings. But the chance of that happening is non-existent,

for there can be no doubt that the State Attorneys in Florida

will abide by an order of this Court. Therefore a § 1983 action

was proper both as a matter of law and as a method of

minimizing the federal role.

16

of the claims. That would be consistent with this

Court’s statement in Conley yv. Gibson, 335 US. 41

(1957):

Following the simple guide of Rule 8(f) [Federal

Rules of Civil Procedure] that ‘all pleadings shall

be so constructed as to do substantial justice’, we

have no doubt that petitioners’ complaint ade

quately set forth a claim and gave the respondents

fair notice of its basis. The Federal Rules reject

the approach that pleading is a game of skill in

which one mis-step by counsel may be decisive to

the outcome and accept the principle that the

purpose of pleading is to facilitate a proper

decision on the merits.

Id. 355 US. at 48.

Choosing the wrong theory of relief does not bar any

relief. Dotschay v. National Mutual insurance Co., 246

F.2d 221, 223 (Sth Cir. 1957), 2A Moore's Federal

Practice § 8.14.'?

It would even be appropriate to treat the case as a

class action habeas corpus under Rule 23(b)(2), Federal

Rules of Civil Procedure. Williams v. Richardson, 481

F.2d 358, 361, (8th Cir. 1973).

If Preiser is pertinent, redesignation is sensible

because it will be judicially economical. Since 1971, the

Pugh case has been the subject of three District Court

"*Pair notice has been had by all interested parties. Every

relevant governmental legal office was represented in the initial

phases of this case. The Florida Attorney General’s office, the

State Attorney's office and the Dade County Attorney's office

fully participated in the District Court. On the appeal, only the

State Attorney's office contested the preliminary hearing issue.

Thus, no interest would be unprotected by the redesignation of the

action from a §1983 suit to habeas corpus.

for ultimately this Court must resolve the questions

presented by the Respondents.

IV

THE AMICUS CURIAE BRIEFS OFFER NO

THEORY WHICH JUSTIFIES REVERSAL

OF THE DECISION BELOW.

Nine of the fifty states accepted the Court's

invitation to submit their views on this case. From their

briefs, it appears that only one, the State of

Washington, shares a pre-trial procedural system which

closely resembles Florida’s and would therefore be

substantially affected by an affirmance. New Jersey and

Massachusetts would be unaffected. California and

Texas share concern over preliminary hearings for

misdemeanants since felony defendants are entitled to

probable cause determinations in these states. An

affirmance would require several changes in the

Vermont procedures for both felony and misdemeanor

cases. The extent to which Utah, Georgia and Louisiana

would be affected is not clear from their respective

briefs.

At the time this brief ‘was prepared for timely

submission to the Court, the Solicitor General's

arguments had not been filed. On October |, 1974 a

manuscript copy of his brief was provided to

Respondents’ counsel. A separate, Second Supplemental

Brief is being filed in response to the Solicitor General.

The submitted amicus curiae briefs echo the

arguments previously made by Florida. A concern over

comity, and reliance upon the early indictment-

information decisions are common threads among them.

The Respondents have addressed nearly all of those

arguments in their original brief, in oral argument, or in

this brief. But a short reply to several of the amicus

curiae suggestions is necessary.

A.The Comity Issue.

Younger v. Harris, 401 U.S. 37 (1971), is a recurring

authority in the briefs of several states. However, each

has neglected to accurately assess the scope of the relief

sought and the unavailability of state remedies. Those

factors make Younger v. Harris inapplicable.

Unlike Younger, Samuels v. Mackell, 401 U.S. 66

(1971) or Perez v. Ledesma, 401 U.S. 82 (1971), a

declaratory judgment and an injunction compelling

preliminary hearings would not “effectively stifle the

then pending state criminal prosecutions.” Younger vy.

Harris, 401 U.S. at 84. The Respondents did not seek a

federal determination of probable cause. They asked the

federal court to decide if someone other than

a prosecutor must determine probable cause. The lower

court orders placed the determination in the hands of

the state judiciary. Any impact upon state court

proceedings would occur only when a state magistrate

decided that no valid resaon existed to hold a person

19

for trial. Consequently, the strictures of Younger do

not apply to this case.'*

Even if Younger were applicable, the case at hand

would be an exception to its principles because:

(1) The Respondents cannot be protected in state

courts; (2) great and immediate irreparable injury (loss

of liberty) is present; and (3) the threatened constitu-

tional deprivation cannot be eliminated by a single

defense to the state prosecution.'* Massachusetts

concedes as much when it states: “The amicus curiae

would not, however, contend that federal intervention

cannot occur where the state proceeding does not allow

an individual to raise a federal constitutional claim.”

Massachusetts Brief, pp. 15-16.

It is uncontroverted that an information is an

inviolable determinant of probable cause, State ex rel.

'3Compare, Steffel v. Thompson, US. ,94S.Ct. 1209,

39 L.Ed.2d 505 (1974), which permitted a declaratory judgment

to be issued against threatened prosecutions. Although no

pending action is threatened by an anticipatory declaratory

judgment, the final effect is federal foreclosure of a state

criminal proceeding. In contrast, Pugh poses absolutely no

intrusion. State prosecutions, pending or threatened, can always

be carried out if the state magistrate finds probable cause.

“The mere denial of a preliminary hearing is not a defense to

a criminal prosecution. Scarborough v. Dutton, 393 F.2d 6 (Sth

Cir. 1968). Cf. Coleman v. Alabama, 399 U.S. 1 (1970). See also,

Bradley v. State, 265 So.2d 532 (Fla.App. 1972), cert. denied,

411 U.S. 916 (1973). Recognizing those holdings to be sensible,

the Respondents never sought to obviate otherwise valid

convictions. Florida’s broad discovery rules underscore the fact

that a fair trial is possible in the absence of a preliminary

mea For these reasons, the “single defense” which Younger

contemplates has no meaning when preliminary hearing is denied.

,

f

<

20

Hardy v. Blount, 261 So.2d 172 (Fla. 1972); Widener v.

Croft, 184 So.2d 444 (Fla. 1966); Rule 3.131(a),

Florida Rules of Criminal Procedure. Massachusetts is

in error in suggesting that a motion to dismiss the

information for lack of probable cause provides a means

of raising the federal claim. Massachusetts Brief, pp.

16-17. The applicable Florida Rule of Criminal

Procedure, Rule 3.190(d), mandates that such a motion

be denied if the state attorney files a traverse or

demurrer under oath. That is nothing more than a

reaffirmation of the information which once again

terminates probable cause review.

It is obvious that a loss of liberty constitutes

irreparable injury. The combination of that injury, the

unavailability of state remedies, and the limited federal

relief sought, makes the equitable restraint doctrine of

Younger v. Harris inappropriate in this proceeding.

B.The Right to a Preliminary Hearing is a

Constitutional Right.

The amici curiae resist the Respondent’s arguments

by relying upon Hurtado y. California, 110 U.S. 516

(1884); Lem Woom vy. Oregon, 229 U.S. 586 (1913);

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

more recent cases in which the information process was

never at issue: Costello yv. United States, 350

U.S. 359, 363 (1956); Lawn v. United States, 355 U.S.

339, 349 (1958). A reading of those cases makes it

apparent that each of them responded to questions

which differ from those posted here. No cases yet

21

decided by this Court bar the relief sought by the

Respondents. On the contrary, the cases which are most

closely analogous (and much more recent) present due

process and Fourth Amendment principles which firmly

support the Respondents’ position. Morrissey v. Brewer,

408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S.

778 (1973). The amici curiae have failed to distinguish

those cases from this one.

Instead, an effort has been made to seek shelter

under the Federal Rules of Criminal Procedure which

permit informations to determine probable cause in

misdemeanor prosecutions. Rule 5(c), Federal Rules of

Criminal Procedure. The mere existence of a federal

rule does not answer the constitutional issue posed by

the Florida practices. If the Respondents are correct,

the federal procedures, to the extent that they permit

pre-trial incarceration on prosecutorial probable cause,

would also be invalid.'*

The issue in this case has always been: May a prosecu-

tor, by filing an information, deprive a person of liberty

for a substantial period of time prior to trial without a

hearing? The deprivation of liberty places a defendant in

a ““brutal need’ situation.” Mitchell v. W.T. Grant Co.,

U.S. __., 94 S.Ct. 1895, 1909, 40 L.Ed.2d

406, 474 (1974) (Justice Powell, concurring). A few

days in jail may result in the loss of a job, loss of home

'SSee the original Brief for Respondents, pp. 22-26, 31-32, for

their arguments regarding misdemeanor preliminary hearings and the

impact upon the federal practices.

22

and car, and family reliance upon welfare.'* None of

the amici curiae have shown a competing governmental

interest which overrides the need for a prompt judicial

determination of probable cause after arrest.

The Attorney General of Washington hypothesizes that

preliminary hearings are not functionally important

enough to make them constitutionally “imperative.”

Washington Brief, p. 18. But that assessment overlooks

the positive attributes which flow from preliminary

hearings: Early release for innocent people; reduced

charges in overstated cases; entry of pleas at an early

Stage; rapid determination of the need for psychiatric

determinations. These, and other reasons, have led the

National Advisory Commission on Criminal Justice

Standards and Goals to conclude that prompt prelimi-

nary hearings should be held in felony cases. Report on

Courts, Standard 4.5 (1973). This Court has recognized

the important functions of preliminary hearings.

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

commentator relied upon in the Washington Brief

recognizes that preliminary hearings can play an

important and beneficial role in the administration of

criminal justice. Anderson, The Preliminary Hearing —

Better Alternatives or More of the Same?, 35 Mo.L.Rev.

281 (1970). The fear of a diminished prosecutorial role

‘*The Court said in Baldwin v. New York, 399 US. 66, 73

1970):

The prospect of imprisonment for however short a time will

seldom be viewed by the accused as a trivial or “petty”

matter and may well result in quite serious repercussions

affecting his career and his reputation.

That comment was reinterated in Argersinger v. Hamlin, 407

US. 25, 37 (1972).

rE —_

23

is unfounded. Those officials will continue to make

initial determinations to prosecute or to decline to press

charges. They will remain the primary screening force.

Only after a prosecutor has exercised his option will

judicial review become a constitutional necessity.

Finally, an affirmance by this Court will not have an

unsettling effect upon the administration of criminal

justice. Every jurisdiction has statutes or rules which

envision prelimioary hearings. Brief for Respondent's

Appendix, pp. la-2a. Many of the states, including

some of the nine which submitted amicus curiae briefs,

already provide probable cause hearings to accused

defendants. Even if pessimism were a_ legitimate

response to constitutional arguments, such an attitude

exhibits an unwarranted lack of faith in our ability to

provide justice. Recent experience has shown that the

Chief Justice was correct when he wrote in Argersinger

v. Hamlin, 407 U.S. 25 (1972):

The holding of the Court today may well add large

new burdens on a profession already overtaxed,

but the dynamics of the profession have a way of

rising to the burdens placed on it.

Id., 407 U.S. at 44 (Concurring opinion).'’

As a result of the original decision in this case, Dade

County implemented a preliminary hearing plan which

resulted in a twenty-five percent reduction in felony

caseloads. Pugh v. Rainwater, 483 F.2d at 787. Thus the

facts of this case compel the conclusion that an

affirmance will enhance the efficient administration of

criminal justice.

‘Nin 1973, seve. states adopted full-time, state-wide public

defender systems in response to Argersinger. National Legal Aid

and Defender Association, Washington Memo, Vol. lll, August

1974, p. 2.

24

CONCLUSION

For the reasons advanced above and in the original

Brief for Respondents, the decision below should be

affirmed.

Respectfully submitted,

BRUCE S. ROGOW

Nova University Center

for the Study of Law

3301 College Avenue

Fort Lauderdale, Florida 33314

PHILLIP A. HUBBART,

Public Defender for the

Eleventh Judicial Circuit

Metropolitan Justice Building

1351 N.W. 12th Street

Miami, Florida 33125

Counsel for Respondents