Opposition Brief — Deakins v. Monaghan

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NO. 86-890

IN THE

Supreme Court of the United States

Ocrosper TerM, 1986

DEAN DEAKINS, New [Jersey Division of Criminal Just IRVING DUBOW, New

jersey Division of Criminal Justice; ROBERT GRAYS Ni lersey Divi of

Criminal lustice; RONALD LEHMAN, NEW IERSEY STAT! POLICI

ALBERT G. PALENTCHAR, New Jersey Diy n of Criminal Justice; DONALD

4 PANFILE, New Jersey Department f Treasut VALTER PRICI Nev

lersey Division of Criminal Justice; WILLIAM SOUTHWICK, New Jersey Divisio

of Criminal Justice; RONALD SOST, New |] y Division of Criminal Ju

JOHN DOF, an individual co-ordinating a search of the premises of Foundatior

Structures, Inc IOHN DOE, an individual supervisu investigato! n the New

Jersey Division of Criminal Justice; and JOHN DOE, an individual training investi

s in the New Jersey Division of Criminal Justice,

— *. itor

Petitioners,

WILLIAM MONAGHAN, THEODORE DESANTIS, JOHN JAMES, FOUNDA

TIONS & STRUTURES, INC, WILLIAM I! MONAGHAN ASSOCIATES,

AND MJD CONSTRUCTION COMPANY, INC.,

Respondents

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

EDWARD N. FITZPATRICK

Attorney of Record for Respondents

Theodore DeSantis, John James, Foundations

& Structure Inc., Williams E. Monaghan

Associates and MJD Construction Company,

Inc

CLAPP & EISENBERG

A Professional Corporation

80 Park Plaza

Newark, New Jersey 07102

(201) 642-3900

PATRICK T. McGAHN, JR

Attorney of Record for Respondent

William E. Monaghan

ROBERT J. FETTWEIS McGAHN, FRISS & MILLER

KATHY M. HOOKE 1421 Atlantic Avenue

Of Counsel and Atlantic City, New Jersey 08401

on the Breef (609) 345-3261

Adams Press Corp., 1188 Raymond Boulevard, Newark, New Jersey 07102—(201) 623-8611

(1)

QUESTIONS PRESENTED FOR REVIEW

l. Does the pendency of a state

yrand jury investigation require the

urt to abstain under Younger y.

Harris from exercising jurisdiction over an

action brought under 42 U.S.C. sec. 1983

for money damages and injunctive relief

where plaintiffs allege violations of

federal constitutional rights during, and

in connection with, the execution of a

State grand jury search warrant?

2. Did the Court of Appeals for the

Third Circuit err in directing the Federa

ry; + arntk en + ih Mi « re | a _

Uistric COULFrT ~\/ LO1LOW init Circult

@®

cry

—

re)

than dismissal, of an action brought under

to dismissal under Younger v. Harris, when

the relief sought in the action includes

damages as well as equitable relief?

(11)

PARTIES TO THE PROCEEDINGS

Petitioners were sued below as

individuals acting under color of state

law. At the time of the events complained

f, petitioners Deakins, DuBow, Gray,

Palentchar, Price, Southwick and Sost were

employed by the State of New Jersey,

Division of Criminal Justice Petitioner

Lehman was an employee or agent of the New

Jersey State Police; petitioner Panfile was

an employee or agent of the New Jersey

Department of Treasury. The three John Doe

petitioners were identified by the

complaint below as, respectively, an

individual coordinating a search of the

premises of respondent Foundations &

Structures, Inc., an individual supervising

investigators in the New Jersey Division of

Criminal Justice, and an individual

(111)

Ccralining investigators in the New Jersey

O:vision of Criminal Justice.

Respondents are William Monaghan,

~-neodore DeSantis, John James, Foundations

& Structures, Inc., William E. Monaghan

Associates and MJD Construction Company,

Lnc.*

1 Pursuant to Rule 28.1, petitioners state

that Foundations & Structures, Inc. and

M.J.D. Construction Company, Inc. are

affiliated companies. Neither has any

subsidiaries or other affiliated companies.

(iv)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDINGS

TABLE OF CONTENTS

TABLE OF CITATIONS

JURISDICTION

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

—

NEITHER THE DECISION NOR

THE RECORD BELOW RAISES

THE QUESTIONS PRESENTED

IN THE PETITION

The Third Circuit

Properly Required The

Federal District Court

to Follow Controlling

Third Circuit

Precedent And Retain

Jurisdiction Over

Claims For Damages And

Attorneys Fees

The Third Circuit

Correctly Held That

The Ongoing State

Proceeding Did Not

Provide An Adequate

Forum For Respondents '

Federal Claims

(v)

II. THE QUESTION PRESENTED

FOR REVIEW IS NOW MOOT IN

LIGHT OF THE RETURN OF AN

INDICTMENT BY THE STATE

GRAND JURY

CONCLUSION

APPENDIX:

APPENDIX COMPLAINT, filed

APPENDIX

December 26, 1984

LETTER DATED JUNE

28, 1985 FROM THE

HONORABLE SAMUEL

D. LENOX, JR.,

A.J.S.C., TO

ROBERT B. DONOVAN,

DEPUTY ATTORNEY

GENERAL

LETTER DATED MAY

12, 1986 FROM THE

HONORABLE SAMUEL

D. LENOX, JR.,

A.J.S.C., TO CLAPP

& EISENBERG,

ATTENTION: KATHY

M. HOOKE, ESQ.

TRANSCRIPT OF

HEARING ON MARCH

ll, 1985 BEFORE

THE HONORABLE

SAMUEL D. LENOX,

JR., pp.48-50

52a

54a

56a

(V1)

TABLE OF CITATIONS

Brennick v Hynes,

47 Ne Dp. R86

- (D.N L979

678 F.2d. 1200 (4th

Cir.), cert. denied,

459 U.S. 860 (1982).

Crane v. Fauver,

762 F.2d 325

ee i ee os el eg et ge Se phe

Fair Assessment

in Real Estate

: Association v.

; McNary, 454 U.S.

100 (1981).

Gerstein v. Pugh,

Saw Geme BOS tEeees ©« « « « © 6 oh Banat

Hawall Housing

Authority v. Midkiff,

Ser Uelle Bae tEwmer ke ree) F

34, 7

In re Neff,

206 F.2d 149

ee . Bw t

s Beewere © @¢ © © 6 @& €@

Kaylor v. Fields,

661 F.2d 1177

cm Gs ae : > « :

Mi j - CA Ethi _O] tt .

4 ot

Association, 4o9/ U.»s. 4

‘

ID « . . . . . . 20, <

7 | >

Jil

“

I . ° Pape ; ‘ .

)

t r ° . . . . . . &&fy 2)

Onrosa V r D<

. +. f

| )

Bla Ky, ATIC « g .

\ (i95Y ° ° . . . +'

aa < A OA

iOOr! V e mS, 44

. j — -

“+ ,/Y . ‘ ° ° e ° °

Employment Service

v. Hodory, 431 U.S.

471 (1977)... :

(viii)

Ohio Civil Rights

Commission v. Dayton,

Christian Schools, Inc.,

477 U.S. , 106 S.Ct.

2718 (1986).

Pennhurst State Schoo]

& Hospital v. Halderman,

465 U.S. 89 (1984)

Potomac Electric Power

Company v. Sachs, et als.,

802 F.2d 1157 (4th Cir. 1986)

Rosetty v. Hamilton

Township Committee,

82 N.J. Super. 340,

848-49 (Law Div.),

affirmed per curiam,

96 N.J. Super. 66

(App. Div. 1967)

Smith v. Butler,

366 U.S. 161 (1961).

sovereign News Co. va

Falke, 448 F.Supp. 306

(N.D. Ohio), remanded

for reconsideration in

light of intervening

State law, 610 F.2d 428

(6th Cir.), cert. denied,

447 U.S. 923 (1580)

‘thompson

(1974)

]

’

Toft v. Ketchum,

BN.J. 80, L113 A.2a

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-l-

NO. 86-890

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

DEAN DEAKINS, New Jersey Division of

Criminal Justice; IRVING DUBOW, New Jersey

Division of Criminal Justice; ROBERT GRAY,

New Jersey Division of Criminal Justice;

RONALD LEHMAN, New Jersey State Police;

ALBERT G. PALENTCHAR, New Jersey Division

of Criminal Justice; DONALD A. PANFILE, New

Jersey Department of Treasury; WALTER

PRICE, New Jersey Division of Criminal

Justice; WILLIAM SOUTHWICK, New Jersey

Division of Criminal Justice; RONALD SOST,

New Jersey Division of Criminal Justice;

JOHN DOE, an individual coordinating a

search of the premises of Foundation &

Structures, Inc.; JOHN DOE, an individual

supervising investigators in the New Jersey

Division of Criminal Justice; and JOHN DOE,

an individual training investigators in the

New Jersey Division of Criminal Justice,

Petitioners,

vs.

WILLIAM MONAGHAN, THEODORE DESANTIS, JOHN

JAMES, FOUNDATIONS & STRUCTURES, INC.,

WILLIAM E. MONAGHAN ASSOCIATES, AND MJD

CONSTRUCTION COMPANY, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

-2?-

RESPONDENTS’ BRIEF IN OPPOSITION

The respondents William Monaghan,

Theodore DeSantis, John James, Foundations

& Structures, Inc., William E. Monaghan

Associates, and MJD Construction, Inc.

respectfully oppose the application to have

a Writ of Certiorari issued to review the

Order of the United States Court of Appeals

for the Third Circuit entered in the

above-entitled proceeding on July 31, 1986.

JURISDICTION

Responden-s' complaint, filed in the

United States District Court for the

District of New Jersey, invoked federal

jurisdiction under 28 U.S.C. sec. 1331, 28

U.S.C. sec. 1343 and principles of pendent

Jurisdiction. Respondents otherwise rely

on the jurisdictional statement contained

in the "Petition For A Writ Of Certiorari

-3-

To The United States Court Of Appeals For

The Third Circuit,” hereafter "Petition."

STATEMENT OF THE CASE-

In an opinion filed July 3l, 1986, the

United States Court of Appeals for the

Third Circuit unanimously held that the

district court had ignored Third Circuit

precedents which required the federal

district court, when abstaining under

Younger v. Harris from adjudicating claims

for injunctive relief, to stay and not

dismiss claims for damages and attorneys

fees when these remedies were not available

in the pending state proceeding requiring

abstention. (Petitioners' Appendix 25a,

hereafter "Pet. App.")

The Third Circuit further held that

the district court had erred in abstaining

under Younger v. Harris because the state

grand jury proceeding at issue did not

provide an adequate forum for respondents’

-4-

federal claims. (Pet. App. 29a-30aj}. The

Third Circuit therefore reinstated

respondents' limited claims for equitable

ef as well. The Honorable Arlin M.

Adams, U.S.C.J., concurred in the holding

that the district court erred in dismissing

respondents' claims for Oamages but

dissented insofar as the reinstatement

extended to respondents' claims for

equitable relief. (Pet, App. 33a-44a).

The complaint under consideration Dy

the Third Circuit was filed on December 26,

1984. Respondents alleged that

petitioners, as individuals but under color

of state law, violated rights guaranteed

respondents under the United States

Constitution and under the common laws °

the State of New Jersey in connection with

tme execution of a state grand jury search

warrant on the premises of respondent

-5-

Foundations & Structures, Inc. on October

5, 1984.

Respondents alleged in their complaint

that those petitioners who executed the

warrant occupied the premises for nearly

eight hours, illegally barricading the

entrance to the site with a state vehicle,

searching exiting vehicles, recording

serial numbers of construction machinery on

the site and taking photographs. The

complaint alleged that petitioners used the

company telephone without authorization and

denied such use to others, and required

everyone on the multi-acre site--incluc ‘ng

non-employees--to line up and produce

identification. Respondents also alleged

that hundreds of documents that were

facially outside the scope of the warrant

or were protected by attorney-client or

work product privileges were

indiscriminately seized, including

-6-

documents in a folder plainly marked “Grand

Jury. (Respondents' Appendix A, hereafter

None of respondents had been informed

at the time the warrant was executed or at

tre time of the filing of the complaint

that they were targets of the state grand

jury investigation giving rise to the

warrant. Indeed, respondents aileged in

their complaint that. the warrant was

executed in furtherance of an unlawful

attempt to coerce respondents into

cooperating with state authorities in the

investigation of others. (Resp. App. A).

Respondents further alleged deprivation cof

liberty and interference with the right to

counsel and to be free from coerced self-

imcrimination. In addition to these

federal causes of action, respondents

asserted four causes of action arising

under state law, sounding in trespass,

-J-

conversion, unlawful confinement, and

intentional infliction of emotional

distress. (Resp. App. A).

Respondents sought compensatory and

punitive damages, limited injunctive

relief, and costs and attorneys fees

pursuant to 42 U.S.C. sec. 1983 and the

common laws of the State of New Jersey.

Respondents did not seek to enjoin any

proceeding or prosecution and did not move

for preliminary injunctive relief at the

time of the filing of the complaint.

Petitioners moved to dismiss the

complaint on or about January 28, 1985,

contending, inter alia, that the district

court should refrain from exercising

jurisdiction under the principles of

equitable abstention set forth in Younger

v. Harris, 401 U.S. 37 (1971). On or about

February 15, 1985, respondents filed papers

in opposition to the motion to dismiss and

-8-

cross~-moved for preliminary relief in the

Form of return of certain of the documents

seized by petitioners on October 5, 1984.2

On February 19, 1985, four days after

respondents filed their cross-motion in

federal court for return of documents, the

State of New Jersey, Division of Criminal

Justice, obtained an order signed by the

Honorable Samuel D. Lenox, Jr., Assignment

Judge of the Superior Court of New Jersey,

Mercer County, requiring certain of the

respondents to show cause why certain of

the documents seized on October 5, 1984 and

later sealed by consent of counsel should

not be unsealed. These documents

constituted a subset of the documents which

were the subject of respondents' cross-

motion in federal court.

2 Petitioners imply that respondents had

previously moved for injunctive relief.

See Petition, p.6. The record clearly

shows that this suggestion is inaccurate.

-9-

The Order to Show Cause was obtained

from the state court ex parte and without

notice to respondents’ counsel. Papers

Filed in support of the Order to Show Cause

did not inform the state court of

respondents' pending motion before the

federal court which encompassed the very

Same documents. The subsequent appearances

of counsel before Judge Lenox in connection

with the Order to Show Cause focused

exclusively on the narrow issue of the

applicability of the attorney-client

privilege to the subset of documents that

had been sealed by consent of counsel.

During an appearance by counsel on March

ll, 1985, Judge Lenox informed respondents'

counsel that any relief by way of return of

documents would have to be obtained by

filing a separate motion under New Jersey

Court Rule 3:5-7(a) which might not even

have been heard by him. (Resp. App. D).

-10-

Judge Lenox denied respondents' motion

to quash the Order to Show Cause on March

ll, 1986 and on March 25, 1985, ordered

further submissions and affidavits on the

issue of the applicability of the asserted

orivileges. Having successfully defended

the ex parte Order to Show Cause in state

court, petitioners relied heavily on that

Order in arguing before the federal

district court that abstention was

required.

On March 8, 1985, the Honorable

Stanley S. Brotman, U.S.D.J., heard oral

argument on petitioners’ motion to dismiss

and on respondents' cross-motion.

Brotman reserved decision, ordering a stay

of all discovery and ordering the sealing

of the disputed documents pending

determination of the motions by the Court.

An order to this effect was entered on

March 25, 1985. (Pet. App. A).

elie

Subsequently, the State of New Jersey

allowed its application before Judge Lenox

to languish. On or about June 28, 1985,

Judge Lenox requested the State of New

Jersey to comply with orders of the state

court by specifying factual assertions in

the submitted affidavits to be the subject

of a hearing. (Resp. App. B). The State

of New Jersey took absolutely no action in

response to this letter for over 10 months.

Finally, on or about May 12, 1986, Judge

Lenox notified all parties that he

considered the State's motion withdrawn.

(Resp. App. C).

On August 6, 1985, the federal

district court dismissed respondents'

federal action under Younger vy. Harris.

The district court further held that

respondents had not met the requirements

for issuance of a preliminary injunction.

(Pet. App. C).

- i?-

Respondents filed a timely Notice of

Appeal on September 4, 1985. On December

3¢, 1985, over four months after dismissal

>= the federal complaint, two ct the six

respondents, William E. Monaghan and

Treodore DeSantis, were informed that they

were targets of a state grand jury

investigation.

On July 31, 1986, a unanisous United

States Court of Appeals for the Third

Circuit, reversing the federal district

ccurt, held that under controlling Third

Circuit precedent, the district court

plainly erred in not entering a stay and

retaining jurisdiction over respondents'

Claims for money damtiages and attorneys

fees. (Pet. App. 25a). The unanimous

Circuit court also affirmed the denial of

preliminary relief (Pet. App. 32a-33a). A

majority of the Third Circuit panel further

held that abstention was improper because

-l|3-

no state proceeding was ongoing which could

adjudicate the merits of respondents’

federal claims and because no indictments

had been returned against respondents at

the time that they filed their complaint in

the federal court. (Pet. App. 29a-30a).

The Honorable Arlin M. Adams, U.S.C.J.,

dissented from this part of the decision in

4 separate opinion.

On August 14, 1986, petitioners sought

en banc rehearing. A majority of the

active judges of the Third Circuit- denied

the petition in an order filed August 29,

1986 and again in an amended substitute

order filed September 4, 1986. (Pet. App.

E & F, respectively). Judge Adams again

dissented from these orders in separate

statements.

On September 10, 1986, over one year

after the complaint had been dismissed,

respondents William E. Monaghan, Theodore

-14-

DeSantis and Foundations & Structures, Inc.

were indicted by a state grand jury. As of

the date of this brief, three of the

respondents, John James, William E.

Monaghan Associates, and MJD Construction

Company, Inc., not only have not been

indicted, they have not even been informed

that they are targets of any continuinc

investigation.

4 Petitioners continually identify

respondents as “targets of a state grand

jury proceeding.” This characterization is

factually inaccurate with respect to all

respondents when the Complaint was

Gismissed and remains inaccurate with

respect to respondents John James, William

E. Monaghan Associates and MJD Construction

Company, Inc. Moreover, all respondents

alleged in the complaint that prosecutorial

activities were being directed against them

in an effort to intimidate respondents into

cooperating in an investigation of’ others.

-15-

REASONS FOR DENYING THE WRIT

NEITHER THE DECISION NOR THE

RECORD BELOW RAISES THE

QUESTIONS PRESENTED IN THE

PETITION.

Petitioners present two questions for

review: (1) whether federal courts are

barred from dismissing a claim for damages

when they abstain from adjudicating claims

for equitable relief in a suit brought

under 42 U.S.C. sec. 1983; and (2) whether

federal courts “must intrude” into an

ongoing state grand jury investigation by

virtue of a 42 U.S.C. Sec. 1983 action

Filed by targets of that investigation,

when the federal court plaintiffs may seek

redress from the State court which

supervised the grand jury and issued the

warrant. Neither the decision of the

Circuit Court of Appeals for the Third

Circuit nor the record below, fairly read,

-l16-

oresent these questions, and the petition

for certiorari must therefore be denied.

A. The Third Circuit Properly

Required The Federal District

Court To Follow Controlling

Third Circuit Precedents And

To Retain Jurisdiction Over

Claims For Damages and

Attorneys Fees.

The Third Circuit unanimously held

that the district court “plainly erred” in

dismissing respondents’ claim for money

damages and attorneys fees rather than

Staying the federal case pending the

outcome of proceedings at the state level.

(Pet. App. 25a, 33a, Adams, U.S.C.J.,

concurring in this part of the decision).

This determination was based on cases in

the Third Circuit which hold that the

federal district court should retain

jurisdiction over claims for damages and

attorneys fees when these remedies are not

available in an ongoing state proceeding

even when the pendency of that proceedine

-lj-

requires the district court to abstain from

adjudicating claims: for injunctive relief.

Crane v. Fauver, 762 F.2d 325, 328-29 (3d

Cir. 1985); Williams v. Red Bank Board of

Education, 662 F.2d 1008, 1022-24 (3d Cir.

1981). Because respondents' claims for

damages and attorneys fees could not have

been considered in the pending state

proceedings petitioners relied on, the

circuit court held that the district court

erred by dismissing those claims.

Petitioners offer as a question for

review a much broader question than that

actually determined by the Third Circuit.

The circuit court did not hold that federal

courts are barred from dismissing damage

claims in all cases when they abstain from

adjudicating claims for equitable relief

under 42 U.S.C. sec. 1983. Rather, the

circuit court's decision was limited to the

proper treatment of damage claims and

-18-

claims for attorneys fees when those claims

cannot be heard in the ongoing state

proceeding which counsels abstention. The

prior decisions of Williams v. Red Bank

Board of Education and Crane v. Fauver

established the parameters of what

constituted proper treatment of such claims

within the Third Circuit and the district

court was unanimously reversed for failing

to observe those parameters. The actual

holding of the circuit court in this

portion of the opinion simply reaffirms

basic principles of stare decisis and is

hardly worthy of the Court's certiorari

jurisdiction.

Even if the question presented by

petitioners could be read to challenge the

rule established within the Third Circuit

by the Williams and Crane v. Fauver cases,

certiorari would not be appropriate.

-l|9-

First, the Third Circuit rule on this

issue, although solidly grounded in

applicable law, has limited impact. It

rvy

affects only those rare Section 1983 cases

where an ongoing state proceeding is

involved but the relief sought includes

jJamages as well as injunctive relief and

out of those cases, only those within the

Third Circuit. No conflict arising with

the decisions of any other circuit court

appears to be involved.

Second, the Third Circuit rule is a

logical extension of the policies governing

Younger abstention. An adequate forum in

the ongoing state proceeding for the

plaintiffs' federal claims is required in

order for Younger abstention to be

appropriate. See, @.g., Hawaii Housing

Authority v. Midkiff, 467 U.S. 229, 237

(1984); Gerstein v. Pugh, 420 U.S. 103, 108

n.9 (1975). Williams v. Red Bank Board of

-20-

Education and its progeny in the Third

Circuit adapt this basic principle to |

preserve federal claims for damages and

attorneys fees which are unable to be

adjudicated in the state proceeding which

requires abstention. Refusing to dismiss

mitigates some of the practical

difficulties which a dismissal creates,

such as the possible running of the statute

of limitations.* See Williams v. Red Bank

4 The facts of this case demonstrate the

importance of preserving access to the

federal forum where there are allegations

of a bad faith prosecution and the

defendants in the damages action can

control the length of time that the state

proceedings will take. The relevant period

of limitations in this case is two years.

See N.J.S.A. 2A:14-2: Wilson v. Garcia, 471

U.S. 261 (1985). Most of the events giving

rise to respondents’ causes of action

occurred on October 5, 1984; formal

proceedings against respondents’ Monaghan,

DeSantis and Foundations & Structures, Inc.

were not even initiated until September 10,

1986, when the statutory period would

almost have run had the complaint not been

filed on or about December 26, 1984.

Without a stay, the federal claims of all

respondents, including those who were never

(footnote continuec)

-21-

Board of Education, 662 F.2d at 1023-24 «&

n.16. At the same time, as the Third

Circuit pointed out in the Williams case,

the mechanism of a stay accommodates the

State's interest in allowing its own

proceedings to go forward unimpeded, thus

furthering the underlying purposes of

Younger abstention. Id. at 1024. The

result thus achieved is consistent with,

and a logical extension of, Supreme Court

precedents. Indeed, Williams v. Red Bank

Board cf Education recently was cited with

general approval by this Court. See Ohio

Civil Rights Commission v. Dayton Christian

(footnote continued from previous page)

indicted or even told they were targets,

could be simply snuffed out by the State of

New Jersey--which employs all of the

defendants below--by simple lack of

diligence in pursuing its investigation.

Consider, for example, how the State of New

Jersey allowed the proceedings before Judge

Lenox to lapse once the abstention argument

had been made before the federal district

court.

-22-

Schools, Inc., 477 U.S. , 91 L.Ed.2d

512, 522 2.2, 106 S.Ct. 2718 (1986).

Petitioners argue, however, that the

State courts of New Jersey can award

damages and attorneys fees in suits brought

under 42 U.S.C. sec. 1983. It has long

been settled, however, with respect to

Section 1983 actions that: “(t]he federal

remedy is supplementary to the state remedy

." Monroe v. Pape, 365 U.S. 167, 183

(1961). Fair Assessment in Real Estate

Association v. McNary, 454 U.S. 100 (1981),

relied upon by petitioners, is wholly

inapposite. That case held that an action

for damages under 42 U.S.C. sec. 1983 could

not be brought to challenge the allegedly

unconstitutional administration of a state

tax system. The Court expressly limited

its holding to the unique area of state

taxpayer suits. Id. at 105.

-23-

Petitioners’ further arguments, that

respondents’ state law claims may only be

adjudicated in state court by virtue of the

doctrine of Pennhurst State School &

Hospital v. Haldecman, 465 U.S. 89 (1984)95

and that a stay rather than dismissal may

still interfere with the state court

proceeding, touch on discretionary factors

which may have influenced the district

court in dismissing the complaint in its

entirety. As the Third Circuit opinion

makes clear, however, the precedents

controlling the decision at the district

level do not make the decision to dismiss

Or stay discretionary but require a stay

under the circumstances of this case.

Petitioners’ arguments therefore miss the

point.

2 The Third Circuit rejected petitioners'

arguments under Pennhurst State School &

Hospital v. Halderman as being totally

unsupported by any authority or credible

argument. (Pet. App. 26a).

-24-

Thus, petitioners’ question for review

on this issue ignores the limited nature of

the circuit court's holding and the

fsndamental principles of stare dec

Further, any unarticulated challenge to the

circuit rule which was reaffirmed in this

case is totally without merit and not of

sufficient national impact to require the

attention of the Court pursuant to its

certiorari jurisdiction. The petition for

certiorari must therefore be denied.

B. The Third Circuit Correctly

Held That The Ongoing State

Proceeding Did Not Provide An

Adequate Forum For

Respondents' Federal Claims.

Contrary to what is suggested by

petitioners’ first question presented for

review, the Third Circuit did not require

the federal court to ignore Younger

abstention precepts and to intrude into an

ongoing state grand jury investigation

“where the federal complainants may seek

-25-

redress from the state court which

supervised the grand jury and issued the

warrant." The Third Circuit reversed the

district court's decision to abstain

precisely because what it called the

"critical factor" in the abstention

analysis was missing, that is, “the

availability in the pending state

proceeding of an adequate opportunity to

adjudicate the constitutional claims raised

in the federal litigation." (Pet. App.

29a), emphasis added. Petitioners gloss

over the precise ruling of the court by

referring very vaguely to the availability

of “redress from the state court" and

therefore suggest for review a question

that was never determined below.

A long line of Supreme Court cases

requires the adequate forum for the

piaintiff's federal claims to be provided

by the ongoing state proceeding which

-26-

otherwise counsels abstention. A forum

provided by a separate state proceeding is

not sufficient. See Ohio Civil Rights

Comm'n v. Dayton Christian Schools, 91

L.Ed.2d at 522 (State administrative

proceedings implicating important state

interests can give rise to abstention so

long as federal plaintiff will have full

and fair opportunity to litigate

constitutional claims “in the course of

those proceedings”); Hawaii Housing

Authority v. Midkiff, 467 U.S. at 237

(Comity and federalism counsel abstention

whenever federal claims have been or could

have presented in state judicial proceeding

implicating important state interest);

Middlesex Ethics Committee v. Garden State

Bar Association, 457 U.S. 423, 432 (1982)

(Pertinent inquiry is whetter state

proceeding giving rise to abstention

affords adequate opportunity to raise the

-27-

constitutional claims, quoting Moore v.

Sims, 442 U.S. 415, 430 (1979)); Gerstein

v. Pugh, 420 U.S. at 108 n.9 (Federal claim

not barred by Younger v. Harris where it

cculd not be raised as defense in criminal

prosecution); Qhio Bureau of Employment

Services v. Hodory, 431 U.S. 477, 477

(1970) (Younger abstention concerned with

considerations of comity and federation as

they relate to State's interest in pursuing

ongoing state proceeding and as they

involve ability of state courts to consider

federal constitutional claims in that

context), emphasis added. That the

required state forum for adjudicating

federal claims must be provided by the same

ongoing proceeding otherwise warranting

abstention is also indirectly supported by

the longstanding principle that generally

“available” state remedies need not be

exhausted before the federal forum is open, -

-28-

e.g., Monroe v. Pape, 365 U.S. 167, 183

(1961).

At the core of the Third Circuit's

opinion was the limited role of the state

grand jury to which the federal court was

being asked to defer. The Third Circuit

pointed out that under the state law, the

state grand jury is primarily accusatory in

function; it can do no more than issue a

charge that a defendant has violated the

Criminal law. (Pet. App. 30a). Therefore,

under Hawaii Housing Authority and

Middlesex County Ethics Committee, the

Third Circuit found that the state grand

jury investigation at issue in this case

could not qualify as a proceeding

warranting abstention because the grand

jury did not function in an adjudicatory

role and because, at the time of the filing

of the complaint, there had been no formal

-29-

charge to initiate any judicial proceeding.

(Pet. App. 29c-30a).®

This reasoning and result are clearly

correct. Under New Jersey state law, a

grand jury proceeding is not a "judicial

proceeding™ because it makes no binding

determinations of law and fact. See

Rosetty v. Hamilton Township Committee, 82

N.J. Super. 340, 348-49 (Law Div. 1964),

affirmed per curiam, 96 N.J. Super. 66

(App. Div. 1967).

Hawaii Housing Authority v. Midkiff

demonstrates that Younger abstention is not

required when state judicial proceedings

have not been initiated at the time when

proceedings of substance take place in

federal court. See 467 U.S. at 238-239.

By the time appellees in Hawaii Housing

® Cf. Steffel v. Thompson, 415 U.S. 452

(1974) (Abstention not appropriate where

prosecution is merely threatened, not

pending).

- 30-

Authority filed suit in federal district

court, the Hawaii Housing Authority had

held a public hearing concerning the

proposed acquisition of some of the

appellees’ property, had found that

acquisition of those lands would effectuate

the public purposes of the Hawaii Land

Reform Act, had directed appeliees to

negotiate a price for the sale of the

designated properties with existing lessees

and, when those negotiations were

unsuccessful, had ordered appellees to

submit to compulsory arbitration. 467 U.S.

at 234.

In a unanimous opinion by all those

Justices participating in the decision,’

the Court held that the decision not to

abstain had been properly made. The Court

stated that:

7 Justice Marshall did not participate in

the decision.

-3l-

Under Younger-abstention

doctrine, interests of comity

and federalism counsel federal

courts to abstain from juris-

diction whenever federal claims

have been or could be presented

in ongoing state judicial pro-

ceedings that concern important

state interests.

Id. at 237-38, emphasis added. The Court

held that in the case before it, “state

judicial proceedings had not been initiated

at the time proceedings of substance took

place in federal court.” Id. at 238,

emphasis added.8

The Court further held that the

extensive administrative proceedings which

had taken place did not satisfy the

requirement of a state judicial proceeding

8 Although not part of the circuit court's

discussions, proceedings of substance had

already taken place in the federal court as

early as March 25, 1985 when the district

court entered an order prohibiting the

State of New Jersey from reviewing

documents which were the subject of

respondents’ cross-motion in the federal

court. (Pet. App. A). That Order was in

effect until August 6, 1985. (Pet. App.

3).

-32-

because the administrative proceedings were

not part of, and were not themselves, a

*sdicial proceeding. Id. at 238.?

The adjudicatory nature of the-ongoing

State proceeding was equally important in

Viddlesex Ethics Committee v. Garden State

Bar Association, 457 U.S. at 433. The

Supreme Court noted that the attorney

disciplinary proceedings at issue in that

case were initiated by the filing of a

complaint and found that the New Jersey

Supreme Court considered those proceedings

to be “judicial in nature,” id., quoting

vy. K hum, 18 N.J. 280, 284, 113 A.2d

671, cert. denied, 350 U.S. 887 (1955).

Contrary to petitioners’ arguments,

Ohio Civil Rights Comm'n v. Dayton

9 The Court based this conclusion on a

provision in the Land Reform Act which

stated that the mandatory arbitration

proceeding would be in advance of and would

not constitute any part of, a condemnation

or eminent domain action.

-~3j-

Christian Schools does not undercut the

principles of Hawaii Housing Authority and

Ethics Committee. Ohio

Civil Rights Comm'n reiterates the

principle that abstention is applicable tc

State administrative proceedings “in which

important state interests are vindicated,

so long as in the course of those

proceedings the federal plaintiff would

have a full and fair opportunity to

litigate his constitutional claim.” 91

L.Ed. 2d at 522, emphasis added. The

acministrative proceeding at issue in Qhic

ivii Rights Comm'n was a state division of

>ivil rights hearing which had commenced by

way of the filing of formal complaint

against the appellee private school after a

finding of probable cause. The proceeding

was Clearly adjudicative in nature and nm

extended discussion of this issue was

necessary. Moreover, in light of the

-34-

Court's requirement that a forum for the

appellee's constitutional claims be

provided in the course of the

administrative proceeding and its

conclusion that the proceeding at issue met

that standard, the Court's further

Statement that judicial review of the

administrative proceeding was “in any

event” sufficient to provide a forum, 91

L.Ed.2d at 523, must be read as obiter

dictum. In a footnote, the Court

reaffirmed the Hawaii Housing Authority

determination that administrative

proceedings that are not judicial in nature

under state law do not give rise to

abstention. 91 L.Ed.2d at 522 n.2.

Even if Qhio Civil Rights Comm'n could

be read to hold that a forum for the

federal claims exists as long as those

Claims may be raised in a judicial review

of the state proceeding, neither logic nor

-35-

the facts in this specific case support the

conclusion that a “review” of the state

grand jury proceedings through a criminal

prosecution provides an adequate forum for

respondents' federal claims. First, a

criminal trial is in no sense a "review" of

the grand jury proceeding; it is a wholly

separate inquiry to determine guilt or

immocence. See In re Neff, 206 F.2d 149,

152 (3d Cir. 1953); Rosetty v. Hamilton

Township Committee, 82 N.J. Super. at 348-

49.

Second, even putting aside the

question of remedies, a criminal trial

cannot provide judicial review of all of

the federal claims of the respondents in

this case. For example, respondents’

Claims of unlawful coercion and deprivation

of liberty stand independently of any

Claims which may be raised by way of

defense. See Middlesex Ethics Committee,

-36-

457 U.S. at 437 (State forum must be

available for “all relevant issues");

Gerstein v. Pugh, 420 U.S. at 108 n.9

(Abstention not appropriate where claim

relating to pretrial detention may not be

raised as a defense at trial). Moreover,

three of the respondents have not been

indicted at all and the indictments of

respondents Monaghan, DeSantis and

Foundations & Structures, Inc. may yet be

dismissed.

Potomac Electric Power Company v.

Sachs, et als., 802 F.2d 1157 (4th Cir.

1986), upon which petitioners rely is

factually distinguishable. The only

federal claim in that case was PEPCO's

claim that the federal Toxic Substances

Control Act preempted Maryland's laws and

regulations concerning the disposal of

hazardous wastes. The Fourth Circuit held

that this claim could be raised as a

-37-

defense if PEPCO were indicted by the state

grand jury. Moreover, the opinion does not

consider the general adequacy of a criminal

prosecution as a “review” of grand jury

action and does not analyze the function of

the state grand jury under Maryland law.19

The clear holding of the Third Circuit

was that the state grand jury investigation

was not adjudicative in nature under New

Jersey law and that it therefore could not,

in the pre-indictment stage, provide an

adequate forum for the consideration of

respondents' federal claims. Accord,

Brennick v. Hynes, 471 F. Supp. 863 (D.N.Y.

10 The PEPCO court also relied heavily on a

peses Fourth Circuit decision, Craig v.

Barney, 678 F.2d 1200 (4th Cir.), cert.

denied, 459 U.S. 860 (1982). Craig vy,

Barney, like Kaylor v. Fields, 661 F.2d

1177 (8th Cir. 1981) and Notey v. Hynes,

418 F. Supp. 1320 (E.D.N.Y¥. 1976), also

cited by petitioners, was decided prior to

Middlesex County Ethics Committee and

Hawaii Housing Authority and contains no

substantive discussion of the relevant

issues.

-38-

1979). In reaching this determination, the

circuit court correctly relied on Hawaii

Housing Authority and Middlesex County

The circuit court also correctly

rejected petitioners’ vague reliance upon

N.J.Ct.R. 3:5-7(a) and the ex parte Order

to Show Cause which petitioners obtained

from Judge Lenox. N.J.Ct.R. 3:5-7(a) is

strictly limited to providing a mechanism

for a return of documents unlawfully

seized. Moreover, that rule, as the Third

Circuit correctly determined and as

petitioners attempt to obscure in their

petition, is a general rule of criminal

procedure, outside of and independent of,

the state grand jury proceeding which was

the purported basis for abstention. (Pet.

App. 30a-3la). Even putting aside

-39-

questions of standing!! and the limited

nature of the relief available, the Third

Circuit correctly held that the mere

availability of this independent remedy

does not counsel abstention. Monroe vy.

Pape, 365 U.S. at 183. Petitioners have

ignored the context.of the circuit court's

discussion in accusing the Third Circuit of

writing “new law” which conflicts with

Supreme Court precedents. (Pet. at 10).

: a |

~+ R. 3:5-7(a) allows an application for

return of documents to be made only by “a

person aggrieved by an unlawful search and

seizure and having reasonable grounds to

believe that the evidence may be used

against him in a penal proceeding,” Pet. at

pp.3-4, emphasis added. At the time the

complaint was dismissed, respondents had

not even been informed that they were

targets of the state grand jury

investigation and in fact alleged that the

documents had been seized as part of a

general pattern of unlawful coercion and

intimidation. Three of the respondents,

even at this date, have no basis to believe

that any of the documents will be used

against them in a penal proceeding. Under

these circumstances, the Third Circuit's

reservations concerning the availability of

the R. 3:5-7(a) procedure were well

founded.

-40-

The appearance of counsel before Judge

Lenox on three occasions in connection with

the Order to Show Cause was even more

limited in scope than an application under

R. 3:5-7. The only issue before Judge

Lenox was the applicability of the

attorney-client and work product privileges

to the small subset of documents that were

the subject of the Order to Snow Cause.

hese

The Third Circuit correctly held

proceedings, instituted ex parte by the

State of New Jersey, were not relevant to

the full scope of respondents’ claims.

(Pet. App. 3la-32a).

Petitioners also suggest that

certiorari is appropriate because the

circuit court “has held abstention

inappropriate when a state judiciary is

immediately available and has explicitly

expressed its willingness to adjudicate the

m in . laims” and that this

-4l-

decision is likely to confuse the

development of this area of the law.”

(Pet. at 10), emphasis added.

As has already been demonstrated, this

was not the holding of the Third Circuit.

Moreover, this argument rests on a complete

Gistortion of the record not only as to the

scope of the claims before Judge Lenox but

as to the “expressed wiliingness” referred

to above and elsewhere in the petition,

e.g., Pet. at 9, 13, 18-19. Far from

expressing willingness to adjudicate

respondents’ federal claims, Judge Lenox

expressly declined to hear any issues other

than those relating to attorney-client

and/or work product privileges. (Resp.

App. D).

It is clear therefore that the factual

premise for petitioners’ first Question

Presented For Review is missing, that is,

respondents had no redress for their claims

-42-

in the pending state proceeding allegedly

warranting abstention and the Third Circuit

so held. Certiorari of this question

should therefore be denied. Smith v.

Butler, 366 U.S. 161 (1961).

II. THE QUESTION PRESENTED FOR

REVIEW IS NOW MOOT IN LIGHT

OF THE RETURN OF AN INDICT-

MENT BY THE STATE GRAND JURY

As the Third Circuit aptly stated, the

issue underlying respondents’ request for

equitable relief is “whether the Younger

doctrine requires a district court to

abstain in a case in which the federal

plaintiff is a target of an ongoing New

Jersey state grand jury investigation.”

(Pet. App. 26a-27a). It is this question

which forms the basis of the petitioners’

application for the issuance of a writ of

certiorari from this Court.

But the question presented for review

is no longer germane to this case. As the

-43-

petitioners have dutifully reported to this

Court, a state grand jury indicted

respondents Monaghan, DeSantis, and

Foundations & Structures, Inc. on September

10, 1986, six days after the Third Circuit

denied the petition for rehearing en banc.

The grand jury did not, however, include

respondents James, William J. Monaghan

Associates and MJD Construction Company,

Inc. in this indictment. It is apparent

that the grand jury has concluded its

investigation in this matter. The State's

argument that the Third Circuit's decision

will interfere with an ongoing grand jury

proceeding is therefore moot.

With regard to the three indicted

respondents, neither the district court nor

the Third Circuit has had the opportunity

to consider the changed circumstances

Drought about by the recent indictment.

Neither of these courts has ruled on

-44-

whether the return of this state grand jury

indictment would, at this point, require

federal court abstention under the Younger

doctrine. Upon remand from the Third

Circuit, the district court would have to

address this subsequent development. The

discrict court should be given this

opportunity, especially since there is no

longer any ongoing grand jury proceeding

which the Third Circuit's ruling could even

arguably impair. The question presented

for review is limited to the grand jury

proceeding.

As to the other three respondents--

James, William E. Monaghan Associates, and

MID Construction Company, Inc.--the record

in this case is absolutely devoid of even

the slightest hint that they were ever

targeted in the grand jury investigation.

Petitioners have never contended that these

respondents were targets of the grand

-45-

jury's—probe, and they have not been

indicted. Given the apparent conclusion of

the grand jury's investigation, the Third

Circuit's decision in favor of these

respondents can in no way be said to have

any impact whatever on the state grand jury

process.}2 As to these respondents, then,

12 Indeed, the concerns expressed by

petitioners and the amici curiae herein

regarding the impact which the Third

Circuit decision could have on the state

grand jury process would appear to be

greatly overblown. In the fifteen years

Since Younger v. Harris was handed down by

-his Court, only a handful of courts have

been called upon to address abstention

issues in the context of a state grand jury

investigation. See in addition to the

cases discussed at pp.36-38 and n.10 supra,

Sovereign News Co. v. Falke, 448 F. Supp.

306 (N.D. Ohio’. remanded for

reconsideratio.. in light of intervening

state law, 610 F.2d 428 (6th Cir.), cert.

denied, 447 U.S. 923 (1980). This relative

infrequency dispels the notion that the

Third Circuit's decision could cause

widespread disruption in state law

enforcement activities. At the same time,

the rarity of the issue demonstrates its

relative lack of importance within the

federal system. In all other respects, the

brief filed by amici curiae simply restates ~

the mischaracterizations of petitioners

(footnote continued)

-46-

the question presented for review is, and

always has been, factually inapposite.}3

In light of the mootness of the.

question which the petitioners have

presented for review, the grant of a writ

of certiorari would be both improvident and

unnecessary. Vitek v. Jones, 436 U.S. 407

(1978); ne v “ ne., 359

U.S. 180, 183 (1959). Respondents

Monaghan, DeSantis and Foundation &

Structures, Inc., respectfully request that

(footnote continued from previous pace)

which have been fully addressed herein.

The amici curiae brief is particularly

notable, however, by its failure to

distinguish actual prosecution with

threatened prosecution. See Steffel vy.

Thompson, 415 U.S. 452 (1974). Finally,

Since the questions presented for review in

this case are moot, the amici curiae are

essentially seeking an advisory opinion of

this Court.

13 may in Potomac Electric Power

Company v. Sachs, supra, the petitioners

have filed a supplemental brief with this

Court, informing it chat the State of

Maryland has recently notified them that

they are no longer the subject of an

ongoing Grand Jury investigation.

-~47-

tris Court deny the writ of certiorari and

allow the matter to be remanded to the

Sistrict Court for further proceedings in

light of the state grand jury indictment.

ONCLUSION

For the foregoing reasons, this Court

should deny the writ.

Respectfully submitted,

EDWARD N. FITZPATRICK

Attorney of Record for

Respondents Theodore

DeSantis, John James,

Foundation & Structures,

Inc., William E. Monaghan

Associates, and MJD

Construction Company, inc.

CLAPP & EISENBERG

A Professional

Corporation

80 Park Plaza

Newark, New Jersey 07102

(201) 642-3900

PATRICK T. MCGAHN

Attorney of Record for

Respondent William E.

Monaghan

-48-

MCGAHN, FRISS & MILLER

1421 Atlantic Avenue

Atlantic City, New

Jersey 06401

(609) 345-3261

- - —— ee

ROBERT ETTWEIS

"a v BrOK E

> '* ss a

+ e 7 -~ a - -

insei anc m tne srie

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

McGahn, Friss & Miller

1421 Atlantic Avenue

Atlantic City, New Jersey 08401

Attorneys for William Monaghan, John James,

Foundations & Structures,

Inc.,

William E. Monaghan

Associates

and MJD Construction Company,

Inc.

(609) 345-3261

Clapp & Eisenberg

A Professional Corporation

80 Park Plaza

Newark, New Jersey 07102

Attorneys for Theodore DeSantis and Co-

Counsel for

John James, Foundations &

Structures, Inc.,

William E. Monaghan

Associates

and MJD Construction Company,

Inc.

(201) 642-3900

COMPLAINT AND DEMAND FOR JURY TRIAL

* To The Members of the Court: We have

lodged 9 copies of the Exhibits A-D to

the Complaint with the Clerk's Office.

WILLIAM MONAGHAN, THEODORE DESANTIS,

JOHN JAMES, FOUNDATIONS & STRUCTURES,

INC., WILLIAM E. MONAGHAN ASSOCIATES,

and MJD CONSTRUCTION COMPANY, INC.

Plaintiffs,

vs.

DEAN DEAKINS, New Jersey Division of

Criminal Justice; IRVING DUBOW, New

Jersey Division of Criminal Justice;

ROBERT GRAY, New Jersey Division of

Criminal Justice; RONALD LEHMAN, New

Jersey State Police; ALBERT G.

PALENTCHAR, New Jersey Division of

Criminal Justice; DONALD A. PANFILE, New

Jersey Department of Treasury; WALTER

PRICE, New Jersey Division of Criminal

Justice; WILLIAM SOUTHWICK, New Jersey

Division of Criminal Justice; RONALD

SOST, New Jersey Division of Criminal

Justice; JOHN DOE, an individual co-

ordinating a search of the

premises of Foundations & Structures,

Inc.; JOHN DOE, an individual

supervising investigators in the New

Jersey Division of Criminal Justice; and

JOHN DOE, an individual training

investigators in the New Jersey Division

of Criminal Justice,

Defendants.

Plaintiffs, William Monaghan,

Theodore DeSantis, John James, Foundations

& Structures, Inc. ("F. & S."), William E.

Monaghan Associates (“Monaghan

Associates"), and MJD Construction

Company, Inc. ("MJD"), say:

l. This is a civil action

arising under the United States

Constitution, particularly under the

Fourth, Fifth, Sixth and Fourteenth

Amendments to the United States

Constitution; under federal law,

particularly the Civil Rights Act of 1964,

Title 42 of the United States Code,

Section 1983; and under the laws of the

State of New Jersey.

2. The court has

jurisdiction over this action pursuant to

28 U.S.C. 1343 and principles of pendent

jurisdiction.

3. The jurisdiction of the

court is further invoked pursuant to 28

U.S.C. § 1331.

4. Venue 1s proper pursuant

to 28 U.S.C. § 1391(b).

5. Plaintiff William

Monaghan is a citizen of the United States

of America and a resident of Seaville in

the Township of Upper, Cape May County,

State of New Jersey. Mr. Monaghan is a

part owner of F. & S., Monaghan Associates

and MJD.

6. Plaintiff Theodore

DeSantis is a citizen of the United States

of America and a resident of the Borough

of Woodbine, County of Cape May, State of

New Jersey. Mr. DeSantis is a part owner

of F. & S., Monaghan Associates and MJD.

7. Plaintiff John James is a

citizen of the United States of America

and a resident of Somers Point, County of

5 a

Atlantic, State of New Jersey. Mr. James

is a part owner of F. & S., Monaghan

Associates and MJD.

8. Plaintiff F. & S. is a

New Jersey corporation with its principal

place of business at Route 49, Tuckahoe,

New Jersey.

9. Plaintiff William E.

Monaghan Associates ("Monaghan

Associates") is a New Jersey general

partnership with offices located at Route

49, Tuckahoe, New Jersey.

10. Plaintiff MJD

Construction Company, Inc. ("MJD") is a

New Jersey corporation with offices

located at Route 49, Tuckahoe, New Jersey.

ll. Defendants Dean Deakins,

Irving DuBow, Robert Gray, Albert

Palentchar, Walter Price, Ronald Sost,

William Southwick are now, and at all

times material hereto were, duly

6 a

appointed, employed and acting

investigators of the State of New Jersey

Division of Criminal Justice.

12. Defendant Donald A.

Panfile is now, and at all times material

hereto was, a duly appointed, employed and

acting investigator of the State of New

Jersey Department of Treasury.

13. Defendant Ronald Lehman

is, and at all times material hereto, was,

a duly appointed, employed and acting

investigator of the New Jersey State

Police.

14. Defendant John Doe, an

individual coordinating a search of the

premises of F. & S. on October 5, 1984,

is, and at all times material hereto, was,

duly appointed, employed and acting as an

investigator, or in a related capacity

with, the New Jersey Division of Criminal

Justice, or other division or agency of

the State of New Jersey.

15. Defendant John Doe, an

individual supervising investigators in

the New Jersey Division of Criminal

Justice, is, and at all times material

hereto was, duly appointed, employed and

acting as a supervisor of investigative

personnel within the New Jersey Division

of Criminal Justice.

16. Defendant John Doe, an

individual training investigators in the

New Jersey Division of Criminal Justice,

is, and at all times material hereto was,

duly appointed, employed and acting as a

trainer of investigators in the New Jersey

Division of Criminal Justice.

17. At all times material to

this Complaint, except as expressly set

forth in Counts IV, V, VI and VIII, ali

defendants acted toward plaintiffs under

color of the iaws of the State of New

Jersey and under color of the regulations,

sustoms and practices of the New Jersey

Division of Criminal Justice, the New

Jersey Department of the Treasury, the New

Jersey State Police, or similar state

agency.

ls. Plaintiffs sue all

Gefendants in their individual capacities.

Paragraphs 1-18 as if set forth fuliy

nerein.

2. On October 5, 1984,

plaintiff William Monaghan was awakened at

approximately 7:00 a.m. at his home by

defendants Dean Deakins and Ronald Sost

who identified themselves to Mr. Monaghan

as investigators for the New Jersey

Division of Criminal Justice. Mr. Monaghan

has a serious diabetic condition; he

follows a strict morning routine which was

completely upset by defendants’ early

arrival. Defendants gave no explanation

or apology for the earliness of their call

Defendants’ early arrival and insistence

on a special “private” place to talk also

upset the normal routine of other

household members, causing distress to

them and to Mr. Monaghan. Defendants

Deakins and Sost sought to interview Mr.

Monaghan and to gain his cooperation as a

witness in connection with certain

investigations being conducted in Cape May

County Mr. Monaghan had previously

testified before a Grand Jury on related

matters and had retained counsel as

defendants Deakins and Sost knew. He

Stated that his attorney had instructed

him not to answer questions about these

matters except with the attorney present

10 a

and called his attorney. After agreeing

with the request of Mr. Monaghan's

attorney not to interview Mr. Monaghan

further until a meeting at 12:30 p.m. that

day, defendants Deakins and Sost continued

to pressure Mr. Monaghan concerning

certain construction projects in Cape May

County, threatening to make him and his

construction companies the focus of

further criminal investigations and

possible prosecutions and otherwise

attempting to coerce certain statements

from Mr. Monaghan.

3. After leaving the home of

plaintiff Monaghan early on the morning of

October 5, 1984, defendants Deakins and

Sost were seen to communicate with unknown

individuals on a walkie-talkie.

4. On or about 7:30 a.m. on

the morning of October 5, 1984, two of the

dGefendants arrived at the home of Theodore

lla

DeSantis in Woodbine, New Jersey. Mr.

DeSantis was not home. Defendants used

their vehicle to block Mr. DeSantis’

driveway until Mr. DeSantis’ son told them

that Mr. DeSantis was at a job location in

Sea Isle City. Two of the defendants

approached Mr. DeSantis shortly thereafter

on location in Sea Isle City, and

addressed plaintiff DeSantis ina

threatening and coercive manner concerning

his acting as a witness in certain

investigations which were ongoing in Cape

May County. Mr. DeSantis had also

previously testified before the Grand Jury

and had retained counsel which defendants

knew. When Mr. DeSantis told defendants

that he refused to discuss the matter

without consulting with counsel, said

defendants left. Defendants Deakins and

Palentchar returned at about 9:15 a.m.,

Stating that plaintiff DeSantis had to

l2 a

make an immediate decision and otherwise

harassing and attempting to coerce Mr.

DeSantis, despite Mr. DeSantis’ refusal to

discuss the matter without counsel

present. Defendants Deakins and

Palentchar left after Mr. DeSantis engaged

in a telephone conversation with his

attorney.

5. On or about 8:00 a.m. on

the morning of October 5, 1984, defendants

William Southwick, Donald A. Panfile,

Irving DuBow, Ronald Lehman, Walter Price,

and Robert Gray appeared at the premises

of F. & S. in Tuckahoe, New Jersey and

gained access to those premises by

presenting to plaintiff John James a

search warrant issued on October 4, 1984

by a judge of the Superior Court of New

Jersey, Law Division, Mercer County,

attached hereto as Exhibit A. Defendants

Deakins, Palentchar and Sost arrived

l3 a

subsequently and also gained access to the

premises under authority of said search

warrant.

6. Said warrant did not

authorize the arrest of any individuals

and did not state that the items subject

to search were contraband or

instrumentalities of a crime. Plaintiffs

Monaghan, James and DeSantis have done

business at the Route 49, Tuckahoe

location for approximately 20 years.

7. The above named

defendants, who remained on the property

f F. &6 S. for approximately eight hours

purporting at all times to act pursuant to

the authority of the aforesaid warrant,

proceeded to conduct a general and illegal

search of the premises of F. & S. beyond

the scope of the warrant in that:

Re All files, boxes,

desks, drawers,

liéa

briefcases and

receptacles within the

were iilegaliiy searched

were informed almost

immediately how files

were organized and were

given an index so that

iles and records

listed on the warrant

located

’

< |

Amnteriors oO

S. property which

15 a

consists of several

acres, the exterior and

interior of repair and

maintenance buildings,

and of construction

machinery and vehicles

no matter where located

on the property.

3. All persons

present on the

premises, including

non-employees of F. &

S., were required to

enter the main office

and were illegally

detained until each

presented

identification

l6 a

4. The entrance tc

che property of F. & S.

was Darricaded for the

entire day by placing

one of defendants’

vehicles across the

open gate and vehicles

which attempted to

leave were illegally

searched.

5. Serial numbers of

construction machinery

and vehicles located on

the property and in

out-buildings were

illegally recorded.

6. Hundreds of

documents outside the

scope of the warrant

l7 a

were taken away by

defendants, including

(a) personal papers of

the individual

plaintiffs; (b)

financial records and