# Opposition Brief — Deakins v. Monaghan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1124%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 193 ## Text NO. 86-890 Ty 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 ms 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 ce mt @® ae er v = cry y) 3 — be 2) a rt a) ne C , rt @m re) VU T & ne . fw 7T Jt o nm 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 — Le NEITHER THE DECISION NOR THE RECORD BELOW RAISES THE QUESTIONS PRESENTED IN THE PETITION A. 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 15 16 24 (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 APPENDIX 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 47 la 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 ie “ 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) 46 (v ‘thompson 4 52 (1974) ] ’ Toft v. Ketchum, BN.J. 80, L113 A.2a J/-* ° + ’ * T y a . i >», " a ——T , ‘ ; f ae t ew. +t . ° ° . . . ? vv A141 4.4 > . XC A ,iiFf _ y ; + 4 ~ 4 Vad A A bh Uf | a ‘ iy ry Ff be > d . oe JO ; y )} bd A P| ‘ . . 7 . . . . . 7 | g a a 4 eo A . i , , ’ ’ : c . . . . . . . . . Ts y , _Y Y i ALiN4 . ACA i di ; ee 7 a ? . j . . . . . . . ; ; ) yg 4 4 Gy, ) ‘ 4 é ; d ‘ A 7% ,4° + + + + é } 4 *wWJ-« . c . . . . . . . . : ‘ rai d * * . . . . . . . 4 ' "eo ? . . . . . . . . . . . ; -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 ty 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 ct 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 la 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. 2a 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. 3a 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. 4a 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 7a 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 8a 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 9a 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 rm iles and records listed on the warrant located rr ’ < | ® rm rn » Amnteriors oO area, tne @entir©re fF > 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 other documents belonging to Monaghan Associates and MJD; (Cc) papers containing privileged communications between all of the plaintiffs and their attorneys. Many of these documents are essential to the conduct of the ongoing business of F. & S., Monaghan Associates and MJD. 18 a 8. While the search was progressing, plaintiff Monaghan was served with three Grand Jury subpoenae duces tecum, all issued on October 4, 1984, che day before the search. The first two subpoenae, attached to this Complaint as Exhibits B and C respectively, list as documents to be produced essentially the same documents listed on the warrant, demonstrating the unreasonable, unnecessary and pretextual nature of the search conducted on October 5, 1984. 9. The third subpoena, attached hereto as Exhibit D, contained a handprinted list of documents to be produced. The four file folders listed on the third subpoena were removed from F. & S. file cabinets by one or more of the defendants, taken into the defendants’ possession and then returned to Mr. Monaghan together with the filled in 19 a subpoena. Mr. Monaghan was then told by one of the defendants that the folders were not within the scope of the warrant and that he was to produce them before the Grand Jury on the date listed. The Signature on the third subpoena is that of a Deputy Attorney General who was at no time present during the search. The unlawful and unreasonable nature of the search as shown by the fact that the defendants intended to conduct a search for documents outside the scope of the warrant and brought a blank subpoena with them for that purpose. 10. Said search was further illegally conducted in that all or some of the aforesaid defendants conducted themselves rudely and arrogantly, refusing, inter alia, to allow certain outsiders access to telephones and initially refusing to identify themselves, and without nsenct authority making unrestrained us c & S. telephones. Ine or more of the defendants also made statements intended to be overheard Dy plaintiffs that if defendants did not find what they were looking for at the offices of F. & S., defendants would “tear the house or houses apart” or words to a similar effect. ll. Said search was further illegally conducted in that plaintiffs were not given a complete and proper return and inventory as is requirec under the laws of the State of New Jersey. l2. The above actions defendants were assisted and aided by defendant John Doe, an individual coordinating said search, with whom Defendants communicated before, after and during said search. 2la 13. All of the above actions of the named defendants and of defendant John Doe were in violation of plaintiff's rights under the Fourth and FPourteenth Amendments to the United States Constitution and plaintiffs were injured thereby. In particular and without limitation, the early morning arousal of Mr. Monaghan, the subsequent harassment and attempted coercion by defendants, the extreme nature of the search and the arrogant and deliberately intimidating manner in which it was conducted resulted plaintiff Monaghan's incurring a serious insulin reaction on the afternoon of October Sth, causing him great physical and emotional distress. Further, and without limitation, Mr. DeSantis has a serious heart condition, for which he takes medication and undergoes nitroglycerin treatments. He is under a 22 a doctor’s care and must avoid emotional stress. The aforementioned unlawful acts of the defendants caused Mr. DeSantis great emotional stress, posing great risk to his health and well-being. Further, and without limitation, Mr. James is severely afflicted with rheumatoid arthritis which is aggravated by emotional stress, and has other health problems. Mr. James is also under a doctor's care. The aforementioned unlawful acts of defendants caused Mr. James great emotional distress, further aggravating his arthritic condition and impairing his health. 14. All of the foregoing acts by defendants were done intentionally and maliciously or with reckless and wanton disregard for plaintiffs’ constitutional rights. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis, John James, 23a F. & S., Monaghan Associates and MJD demand judgment against Defendants Dean Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald A. Panfile, Walter Price, William Southwick, Ronald Sost, and John Doe, an individual co-ordinating the aforesaid search, jointly and severally, for: l. Compensatory damages; 2. Punitive damages; 3. Preliminary injunction requiring the return of all documents seized by the Defendants outside the scope of the warrant and all privileged documents; 4. Permanent injunction requiring the return of all documents seized by Defendants; 24a 5.- Preliminary and permanent injunctions enjoining future unreasonable searches and seizures; and 6. Such other relief as the Court deems just, including costs of suit and attorneys fees. COUNT 2. l. Plaintiffs incorporate Paragraphs 1-18 and Paragraphs 1-14 of Count I as if set forth fully herein. 2. During the illegally conducted search of the premises of F. & S., Inc., one or more of the defendants made statements to Mr. Monaghan and Mr. DeSantis to the effect that any information which plaintiffs Monaghan and DeSantis might give at that time would be considered voluntary. 25 a 3. The illegally conducted search of the premises of F. & S. by defendants was initiated after plaintiffs Monaghan and DeSantis refused to speak with certain of the defendants without the presence of counsel, and was intended to harass, intimidate and coerce plaintiffs Monaghan and DeSantis into giving their cooperation with defendants’ investigation. 4. Defendant John Doe, an individual co-ordinating the search of F. & S. premises, aided and assisted in the illegal use of the aforesaid search warrant as a tool to crverce and intimidate plaintiffs Monaghan and DeSantis. 5. All of the above actions of defendants were in violation of piaintiffs Monaghan and DeSantis‘ rights to liberty and due process under the Fifth and Fourteenth Amendments and plaintiffs 26 a Monaghan and DeSantis were injured thereby. 6. The aforesaid actions of defendants were also in violation of the rights of all of the plaintiffs under the Fourth and Fourteenth Amendment in that the search of F. & S. premises under color of the warrant and the seizure of documents within and without the scope of the warrant was unlawfully motivated. 7. All of the foregoing acts by defendants were done maliciously and intentionally or with wanton and reckless disregard of the rights of the plaintiffs under the United States Constitution. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis, John James, F. & S., Monaghan Associates and MJD demand judgment against Defendants Dean Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald A. 27 a Panfile, Walter Price, William Southwick, Ronald Sost, and John Doe, an individual co-ordinating and assisting the aforesaid search, jointly and severally, for: l. Compensatory damages; 2. Punitive damages; 3. Permanent and preliminary injunction requiring the return of all documents seized by Defendants; 4. Preliminary and permanent injunctions against future use of warrants for purposes of intimidation and coercion; and 5 Such other relief as the Court deems just, including costs of suit and attorneys fees. COUNT 3. l. Plaintiffs repeat Paragraphs 1-18, Paragraphs 1-14 of Count I, and Paragraphs 1-7 of Count II as if fully set forth herein. 28 a 2. After plaintiffs DeSantis and Monaghan stated that they did not wish to discuss certain matters without counsel being present and after agreeing with counsel that further discussions would not take place, defendants (1) continued to pressure and coerce plaintiffs Monaghan and DeSantis without counsel being present; (2) attempted to use the execution of a search warrant to elicit communications from plaintiffs Monaghan and DeSantis without counsel being present; (3) seized numerous privileged communications between and among ali plaintiffs and their attorneys and numerous privileged communications which were outside the scope of the warrant and otherwise deprived plaintiffs of rights, privileges and immunities secured to them by the Fifth, Sixth and Fourteen Amendments to the United States 29 a Constitution and plaintiffs Monaghan and DeSantis were injured thereby. 3. Defendant John Doe, an individual co-ordinating the search of PF: & S. premises, aided and assisted in the foregoing violations of plaintiffs’ constitutional rights. 4. All of the foregoing acts by defendants were done maliciously and willfully or with wanton and reckless disregard of plaintiffs' constitutional rights. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis, John James, FP. & S., Monaghan Associates and MJD demand judgment against Defendants Dean Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald Panfile, Walter Price, William Southwick, Ronald Sost, and John Doe, an individual 30 a co-ordinating the aforesaid search, jointly and severally, for: l. Compensatory damages; 2. Punitive damages; 3. Preliminary injunctions requiring the return of all privileged documents; 4. Preliminary and permanent injunction enjoining future seizure of privileged materials and interference with plaintiffs' right to counse-; and 5. Such other relief as the Court deems sust, including costs of suit and attorneys fees. COUNT 4. l. Plaintiffs repeat Paragraphs 1-18, Paragraphs 1-14 of Count I, Paragraphs 1-7 of Count II, and Paragraphs 1-4 of Count III as if fully set forth herein. 3la 2. The property located at Route 49 in Tuckahoe, New Jersey which was entered by defendants Sost, Deakins, DuBow, Gray, Lehman, Palentchar, Panfile, Price and Southwick was, and is lawfully owned by plaintiffs F. & S. and Monaghan Associates. Although said Defendants entered upon said property under color of State law, their actions thereafter exceeded the scope of the privilege conferred by the warrant and they committed a trespass ab initio on said premises in violation of the rights of plaintiffs F. & S. and Monaghan Associates and plaintiffs F. & S. and Monaghan Associates were injured thereby. Defendants also committed a trespass ab initio against personal property owned by each of the plaintiffs in seizing documents outside the scope of the warrant and all plaintiffs were injured thereby. 32 a 3. All of the aforementioned acts of the named defendants were done maliciously and willfully and in reckless and wanton disregard of rights secured to plaintiffs under the common law of the State of New Jersey. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis, John James, F. & S., Monaghan Associates and MJD demand judgment against Defendants Dean Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald A. Panfile, Walter Price, William Southwick, Ronald Sost, jointly and severally, for: l. Compensatory damages; 2. Punitive damages; 3. Preliminary and permanent injunctions requiring the return of all documents seized by Defendants; 33 a 4. Preliminary and permanent injunction enjoining future unlawful trespasses on plaintiffs’ property and against plaintiffs’ personal property; and 5. Such other relief as the Court deems just, including costs of suit and attorneys fees. COUNT 5. l. Plaintiffs repeat Paragraphs 1-18, Paragraphs 1-14 of Count I, Paragraphs 1-7 of Count II, Paragraphs i-4 of Count III, and Paragraphs 1-3 of Count IV as if fully set forth herein. 2. Although defendants Sost, Deakins, DuBow, Gray, Lehman, Palentchar, Panfile, Price and Southwick entered upon 34 a the property of F. & S. and seized documents, books and records belonging to all of the plaintiffs under color of state law, their actions exceeded the authority conferred upon them by that state law. Said defendants wrongfully converted the property of the plaintiffs and plaintiffs were injured thereby. 3. Defendant John Doe, an individual co-ordinating the search of the premises of F. & S., aided and assisted in the wrongful conversion of plaintiffs’ property in violation of plaintiffs’ rights under the common law of the State of New Jersey and plaintiffs were injured thereby. 4. The aforementioned acts of said defendants were done maliciously and willfully, or with wanton and reckless disregard for the rights secured to the 35 a plaintiffs under the common law of the State of New Jersey. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis, John James, F. & S., Monaghan Associates and MJD demand judgment against Defendants Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald A. Panfile, Walter Price, William Southwick, Donald Sost, and John Doe, an individual co-ordinating and assisting the aforesaid search, jointly and severally, for: l. Compensatory damages; 2. Punitive damages; 3. Preliminary and permanent injunctions requiring the return of all privileged documents and all documents seized by the Defendants outside the scope of the warrant; and 36 a 4. Such other relief as the Court deems just, including costs of suit and attorneys fees. COUNT 6. l. Plaintiffs repeat Paragraphs 1-18, Paragraphs 1-14 of Count I, Paragraphs 1-7 of Count II, Paragrapns 1-4 of Count III, Paragraphs 1-3 of Count IV, and Paragraphs 1-4 of Count V as if set forth fully herein. 2. The property upon which the offices of F. & S. are located is enclosed by a wire fence at all points from which access by road is possible. Heavy woods surround the remainder of the property. The single main entrance to the property is through a gate at the front of the property. Another gate in the fence at the front of the property is normally left —_oe 37 a closed and was closed on October 5, 1984. At approximately 8:00 a.m. on October 5, 1984, defendants parked a vehicle across the front of the main gate, blocking all access and exit from the F. & S. property from that time until approximately 5:30 p.m. 3. By blocking said gate, defendants intended to confine all persons on the F. & S. property within the boundaries of said property and unlawfully did so confine these plaintiffs Monaghan and DeSantis, who were at all time aware of said unlawful confinement and were injured thereby. 4. Defendant John Doe, an individual co-ordinating the search of the premises of F. & S. property, at all times aided and assisted in the unlawful confinement of plaintiffs Monaghan and DeSantis whe were injured thereby. 38 a 5. The acts of defendants described in this Count VII were done maliciously and willfully and with wanton and reckless disregard for the rights of plaintiffs Monaghan and DeSantis under the common law of the State of New Jersey. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis, and John James demand judgment against Defendants Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald A. Panfile, Waiter Price, William Southwick, Ronald Sost, and John Doe, an individual co-ordinating and assisting the aforesaid searcn, jointly and severally, for: 1. Compensatory damages; 2. Punitive damages; and os Such other relief as the Court deems just, including costs of suit and attorneys fees. 39 a COUNT 7. l. Plaintiffs repeat Paragraphs 1-18, Paragraphs 1-14 of Count [, Paragraphs 1-7 of Count II, Paragraphs 1-4 of Count III, Paragraphs 1-3 of Count IV, Paragraphs 1-4 of-Count V and Paragraphs 1-6 of Count VI as if fully set forth herein. 2. The actions of defendants in confining plaintiffs Monaghan, DeSantis and James to the property of F. & S. unlawfully deprived them of their liberty without due process in violation of said plaintiffs’ rights under the Fifth and Fourteenth Amendments to the United States Constitution and plaintiffs were injured thereby. 3. Defendant John Doe, an individual co-ordinating the search of the premises of F. & S. property, aided and assisted in the aforementioned violations 40 a of plaintiffs' constitutional rights and plaintiffs were injured théreby. 4. The acts of said defendants described in this Count VIII! were done maliciously and willfully or with reckless and wanton disregard of plaintiffs’ constitutional rights. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis and John James Cemand judgment against Defendants Dean Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald A. Panfile, Walter Price, William Southwick, Ronald Sost, and John Doe, an individual co-ordinating and assisting the aforesaid search, jointly and severally, for: l. Compensatory damages; 2. Punitive damages; and 3. Such other relief as the Court deems just, 4la including costs of suit and attorneys fees. COUNT 8. Plaintiffs repeat Paragraphs 1-18, Paragraphs 1-14 of Count i, Paragraphs 1-7 of Count II, Paragraphs 1-4 of Count III, Paragraphs 1-3 of Count IV, Paragraphs 1-4 of Count v, Paragraphs 1-6 of Count VI and Paragraphs 1-4 of Count VII as if fully set forth herein. 2. The acts of defendants described in the foregoing Counts I-VIII constituted extreme and Outrageous conduct intentionally or recklessly causing physical injury and severe emotional distress to plaintiffs Monaghan, DeSantis and James. WHEREFORE, Plaintiffs William Monaghan, Theodore, DeSantis and John James demand judgment against Defendants 42 a Dean Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald A. Panfile, Walter Price, William Southwick, Ronald Sost, and John Doe, an individual co-ordinating and assisting the aforesaid search, jointly and severally, for: Re Compensatory damages; 2. Punitive damages; 3. Preliminary and permanent injunctions enjoining defendants from intentionally inflicting emotional distress on plaintiffs Monaghan and DeSantis in the future; and 4. Such other relief as the Court deems just, including costs of suit and attorneys fees. 43 a COUNT 9. lL. Plaintiffs repeat Paragraphs 1-18, Paragraphs 1-14 of Count I, Paragraphs 1-7 of Count II, Paragraphs 1-4 of Count III, Paragraphs 1-3 of Count IV, Paragraphs 1-4 of Count V, Paragraphs 1-6 of Count VI, Paragraphs 1-4 of Count VII and Paragraphs 1-2 of Count VIII as if fully set forth herein. 2. At all times relevant to this Complaint, Defendants Deakins, Sost, Palentchar, DuBow, Gray, Price, Southwick, investigators with the New Jersey Division of Criminal Justice, were acting under the direction and control of Defendant John Doe, a supervisor of investigators in the New Jersey Division of Criminal Justice. 3. Said defendant John Doe had a duty to instruct, supervise, control and discipline the investigator defendants to execute search warrants and conduct 44a investigations in a manner consistent with plaintiffs' rights under the (U'nited States Constitution and under the common laws of the State of New Jersey. 4. Said defendant John Doe, acting under color of state law, negligently, or intentionally and willfully, failed to properly instruct, Supervise, control and discipline said defendants. 5. Said defendant John Doe had knowledge or, had he or she diligently exercised his or her duty to instruct, Supervise, control and discipline on a continuing basis, should have had knowledge that the wrongs done, as heretofore alleged, were about to be committed. Said defendant John Doe had power to prevent or aid in preventing the commission of said wrongs, could have done so by reasonable dilicence, and, acting 45 a under color of state law, neglected or intentionally refused to do so. 6. Said defendant John Doe, directly or indirectly, under color of law, approved or ratified the unlawful, deliberate, malicious, reckless and wanton conduct of the defendant members of the New Jersey Division of Criminal Justice. 76 As a direct and proximate result of the acts of said defendant John Doe, more particularly described in Paragraphs 4-6 of this Count IX, plaintiffs have been deprived of their rights and privileges under the Fourth, Pifth, Sixth and Fourteenth Amendments to the United States Constitution and under the common laws of the State of New Jersey. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis, John James, F. & S., Monaghan Associates and MJD 46 a demand judgment against Defendant John Doe, an individual supervising investigators in the New Jersey Division of Criminal Justice, jointly and severally for: lL. Compensatory damages; re Punitive damages; 3. Preliminary injunctions requiring the return of all documents seized by the Defendants outside the scope of the warrant and all privileged documents; 4. Permanent injunction requiring the return of all documents seized by Defendants; and - ¥ Such other relief as the Court deems just including costs of suit and attorneys fees. 47 a NT_ 1 l. Plaintiffs repeat Paragraphs 1-18, Paragraphs 1-14 of Count I, Paragraphs 1-7 of Count II, Paragraphs 1-4 of Count III, Paragraphs 1-3 of Count IV, Paragraphs i-4 of Count V, Paragraphs 1-6 of Count VI, Paragraphs 1-4 of Count VII, Paragraphs 1-2 of Count VIII, and Paragraphs 1-7 of Count IX as if fully set forth herein. 2. Defendant John Doe, an individual training and instructing the defendant investigators in the New Jersey Division of Criminal Justice, had a duty to train and instruct said defendant investigators to execute search warrants and conduct investigations in a manner consistent with plaintiffs' rights under the United States Constitution and under State law. 48 a 3. Said defendant John Doe, acting under color of law, negligently or intentionally and willfully failed to properly train and instruct said defendant investigators. 4. As a direct and proximate result of failure described in Paragraph 3 of this Count X, plaintiffs have been deprived of their rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and under the common laws of the State of New Jersey. WHEREFORE, Plaintiffs William Monaghan, Theodore DeSantis, John James, FP. & S., Monaghan Associates and MJD demand judgment against Defendants Dean Deakins, Irving DuBow, Robert Gray, Robert Lehman, Albert Palentchar, Donald A. ~ _ Panfile, Walter Price, William Southwick, Ronald Sost, and John Doe, an individual — mt lll - 49 a training and instructing the defendant investigators in the New Jersey Division of Criminal Justice, jointly and severally, for: l. Compensatory damages; Be Punitive damages; 3. Preliminary injunctions requiring the return of all documents seized by the Defendants outside the scope of the warrant and the return or all privileged documents; 4. Permanent injunction requiring the return of all documents seized by Defendants; and 5. Such other relief as the Court deems just, including costs of suit and attorneys fees. 50 a MCGAHN, FRISS & MILLER 1421 Atlantic Avenue Atlantic City, New Jersey 08401 Attorneys for William Monaghan, Foundations & Structures, William E. Monaghan Associates, and MJD Construction Company, Inc. By: _/s/ Patrick T. McGahn, Jr. Patrick T. McGahn, Jr. CLAPP & EISENBERG A Professional Corporation 80 Park Plaza Newark, New Jersey 07102 Attorneys for Theodore DeSantis and Co-Counsel for Foundations & Structures, Inc., William E. Monaghan Associates and MJD Construction Company, Inc. By: /s/ Kathy M. Hooke Kathy M. Hooke DEMAND FOR JURY TRIAL Plaintiffs William Monaghan, Theodore DeSantis, John James, Foundations & Structures, Inc., William E. Monaghan Associates and MJD Construction Company, Inc. hereby demand a trial by jury with respect to all Counts of the Complaint. Sl a MCGAHN, FRISS & MILLER 1421 Atlantic Avenue Atlantic City, New Jersey 08401 Attorneys for William Monaghan, Foundations & Structures, William E. Monaghan Associates, and MJD Construction Company, Inc. By:_/s/ Patrick T. McGahn, Jr. Patrick T. McGahn, Jr. CLAPP & EISENBERG A Professional Corporation 80 Park Plaza Newark, New Jersey 07102 Attorneys for Theodore DeSantis and Co-Counsel for Foundations & Structures, Inc., William E. Monaghan Associates and MJD Construction Company, Inc. By:_/s/ Kathy M. Hooke Kathy M. Hooke 52a APPENDIX B SUPERIOR COURT OF NEW JERSEY Law Division {Seal} Chambers of Mercer County Court Samuel D. Lenox, Jr. House, P.O. Box 8068 Assignment Judge Trenton, New Jersey 08650 Mercer County June 28, 1985 Robert B. Donovan, Deputy Attorney General Division of Criminal Justice 25 Market Street CN-085 Trenton, New Jersey 08625 Re: In the Matter of a Search Warrant Dated October 4, 1984 Dear Mr. Donovan: I have your letter of June 26, 1985 providing “a list of those individuals who have made factual assertions that (your) office wishes to be the subject of a plenary hearing." This letter does not provide full compliance with the order of April 15, 1985. That order provides: -- the State of New Jersey shall give notice to the Court and to defendants of factual assertions, if any, made in said affidavits which it wishes to be the subject S53 a of a plenary hearing. The order requires notice be given of both the identity of the witnesses and the substance of the factual assertions being contested. You should designate those portions of the affidavits which you dispute and provide your own factual assertions with regard thereto. it is only by framing the issues in this manner that the parties may prepare to present evidence at the plenary hearing. Very truly yours, /s/ Samuel D. Lenox, Jr. Samuel D. Lenox, Jr., A.J.S.C. SDL,Jr.:mt CC: Kathy M. Hooke, Esquire Sharon Donofrio, Esquire 54 a APPENDIX C SUPERIOR COURT OF NEW JERSEY Law Division (Seal } Chambers of Mercer County Court Samuel D. Lenox, Jr. House, P.O. Box 8068 Assignment Judge Trenton, New Jersey 08650 Mercer County May 12, 1986 Clapp & Eisenberg 80 Park Plaza Newark, New Jersey 07102 Attention: Kathy M. Hooke, Esquire Re: In the Matter of a Search Warrant Dated October 4, 1984 Gentlemen: In view of the time lapse described in your letter of May 7, 1986, I consider the motion to have been impliedly withdrawn. If you wish I will enter a formal order dismissing it without prejudice. Any further judicial activity in connection with this matter should be brought before the court by the filing of new pleadings. 55 a Very truly yours, /s/ Samuel D. Lenox, Jr. Samuel D. Lenox, Jr., A.J.S.C. SDL,Jr.:mt CC: Robert B. Donovan, DAG Sharon Donofrio, Esquire Patrick T. McGahn, Esquire 56 a APPENDIX D SUPERIOR COURT OF NEW JERSEY LAW DIVISION MERCER COUNTY IN THE MATTER OF A SEARCH : STENOGRAPHIC WARRANT DATED OCTOBER 4, 1984: TRANSCRIPT --~-~------------------------; OF MOTION in Camera Heari ng Place: Mercer County Courthouse Trenton, New Jersey Date: March ll, 1985 HONORABLE SAMUEL D. LENOX, JR., A.J.S.C. Transcript Ordered By: Patrick T. McGahn, Jr., Esq. (Messrs. McGahn, Friss, Gindhart & Miller) (See inside) 57 a THE COURT: Well -- MR. DONOVAN: Your Honor, I see no reason why any arguments as to the attorney-client privilege can't be raised. Any arguments as to the sealed documents cannot be raised in the immediate future. If they research that, they are going to make arguments dealing with other aspects of the material or the manner in which materials were seized, Your Honor. Those arguments can well be made at any point in time. THE COURT: Well -- MR. McCGAHN: Your Honor, I would submit -- THE COURT: They can also be made before any judge. MR. DONOVAN: Correct, your Honor. THE COURT: That is a separate motion. Rule 4:5-7 is entitled Motion to Suppress Evidence and for return of property, and it requires a motion by your client and it can be made at any time until after 30 days from the date of the plea, if an indictment is returned. That's really not what I have before me. I have an Order to Show Cause in connection with sealed documents. If you file another motion, it may not come to me because that motion is typically heard by a judge of the Criminal Division. Right now, my only question involves the documents under seal. MS. HOOK: Well, as to those documents, your Honor, we still think it 58 a would be helpful, your Honor, for you to have the applicable law. THE COURT: Oh, certainly, yes. I am talking about your statement that you are going to broaden the issue. You are not going to broaden the issue on this Order to Show Cause because the Order to Show Cause frames the issue. If you intend to raise other issues, you will do so by your own motion. MS. HOOKE: And is your Honor saying that that motion should be brought in the normal course and assigned out under the normal course? THE COURT: You will file it and we will decide what we will do with it procedurally. MS. HOOKE: Okay. THE COURT: I don't know. I have to see. Sia.” ery 7 Oe ee a ee, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1124%3A03. Public record. Not legal advice.