# Supplemental Brief — Gerstein v. Pugh

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Brief
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 103

## Text

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’
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0012%3A18. Public record. Not legal advice.