# Petitioners Brief — Deakins v. Monaghan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 193

## Text

3 1967.
‘ EPrF. SPANIOU, JR
takt CLERK

IN THE

Supreme Court of the United
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 co-ordinating a search of the
remises of Foundation & Structures, Inc.; JOHN DoE, an
1 supervising investigators in the New Jersey Division
of Criminal Justice; and JohN Dok, 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 Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

BRIEF OF PETITIONERS ON THE MERITS

W. Cary EDWARDS |

Attorney General of New Jersey
ALLAN J. NODES Richard J. Hughes Justice Complex
Attorney of Record Trenton, New Jersey 08625
. (609) 292-9086

ALLAN J. NODES

LarrY R. ETZWEILER
. §$TEVEN PASTERNAK
Deputy Attorneys General

Division of Criminal Justice

Of Counsel &

On the Brief
— ——— N
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 N

i

QUESTIONS PRESENTED

1. Must federal courts, by virtue of a 42 U.S.C.
sec. 1983 action for the return of property seized
pursuant to a warrant, filed by the targets of an
ongoing state grand jury investigation, intrude into
that investigation despite the Younger abstention doc-
trine where the federal complainants may seek re-
dress from the state court which supervised the grand
jury and issued the warrant?

2. Are federal courts absolutely barred from ex-
ercising their discretion to dismiss an ancillary claim
for damages when they properly abstain from the
equitable portion of a 42 U.S.C. sec. 1983 action?

‘i

PARTIES BELOW
All parties below are parties to this petition.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED .
e
—
e ccnccccesescnceresesesseres
e csnscccssacneereee
r
UNITED STATES STATUTES INVOLVED
NEW JERSEY STATUTES INVOLVED .............
NEW JERSEY RULES INVOLVED .
STATEMENT OF THE CASE . . . . .
SUMMARY OF ARGUMENT . . . . . . . .

LEGAL ARGUMENT

POINT I. THE THIRD CIRCUIT ERRED
IN REVERSING THE DIS.
TRICT COURT’S DECISION TO
11711117

POINT II. THE DISTRICT COURT HAD
DISCRETION EITHER TO DIS.
MISS OR TO STAY THE
CLAIM FOR MONEY DAM-
1

e è d 1“

21

31
43

iv

TABLE OF CITATIONS

CASES CITED: Page
Alabama Public Service Comm 'n v. Southern Rail-

way, 341 U.S. 341 (1951) ... 33
Andrea Theatres, Inc. v. Theatre Confections, Inc.,

787 F.2d 59 (2nd Cir. 1986) . . . . . . 38,39
Brennick v. Hynes, 471 F. Supp. 863 (N.D.N.Y.

1 —ů — ̃ — ů 23,36
Brillhart v. Excess Inc. Co. of America, 316 U.S.

GBT CIDER cnccvcccseccccccsccncsescossvessesece: „„ 39
Burford v. Sun Oil Co., 319 U.S. 315 (1943) ..... 20,33
Carmel v. Hillsdale, 178 N.J. Super. 185, 428 A.2d

548 (App. Div. 1981) . .. 32
Carras v. Williams, 807 F. 2d 1286 (6th Cir.

— — ———— —— 34
Cobbledick v. United States, 309 U.S. 323

. . 22
Conover v. Montemuro, 477 F.2d 1073 (8rd Cir.

1 ——— j ——ĩ 34
Craig v. Barney, 678 F.2d 1200 (4th Cir. 1982),

cert.-den. 459 U.S. 860 (1982) . . . . 29
District 9 Columbia Court of Appeals v. Feldman,

U *)..U.l UU 41
Ex Parte Young, 209 U.S. 123 (1908) . .. 22
Fair Assessment in Real Estate Ass’n v. McNary,

454 U.S. 100 (1981) .. . 4 32,34
Fornaris v. Ridge Tool Co., 400 U.S. 41 (1970) ... 33
Gibbons v. Berryhill, 411 U.S. 564 (1973) .. 26
Guerro v. Mulhearn, 498 F.2d 1249 (Ist Cir.

197) . . . . . . . . . . 34
Harlow v. Fitzgerald, 400 U.S. 800 (1982) ... 41
Hicks v. Miranda, 422 U.S. 332 (1975) ............ 29,30,31
Hudson v. Palmer, 468 U.S. —, 104 S.Ct. 3194

(1984) . . . . . . . . . . . . . . . . . . . .. . 43

Hoffman v. Pursue, Ltd., 420 U.S. 592 (1975) — 22,238

Table of Citations Continued

Page

In re Jeck, 26 N.J. Super. 514, 98 A.2d 319 (App.

Div. 1953), certif. den. 13 N.J. 429, 100 A.2d
„ EE Gs ec CE eee 22

In re Petition to Compel Testimony of Tuso, 73 N. q.
, dasccncnccccscocseccccecoces 22
Juidice v. Vail, 430 U.S. 327 (1977) .. 22,32

Kaylor v. Fields, 661 F.2d 117 (8th Cir. 1981) .. 23,28
Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d

, 43
Law Firm of Daniel P. Foster v. Dearie, 613 F.

ne 29
Levine v. United States, 362 U.S. 610 (1960) 22
Louisiana Power & Light Co. v. City of Thibodauz,

, 33
Mann v. Jett, 781 F.2d 1448 (9th Cir. 1986) 34
Martin v. Merola, 532 F.2d 191 (2d Cir. 1976) .. 34
McCurry v. Allen, 606 F.2d 795 (9th Cir. 1979) rev'd

on other grounds, 449 U.S. 90 (1980) . . 34

Middlesex County Ethics Committee v. Garden
State Bar Ass n, 457 U.S. 423 (1982).... 22,26,29.34

Moore v. Illinois, 434 U.S. 220 (1977) . 42
Moses H. Cone Memorial Hosp. v. Mercury Const.

CRP, GED UE. 1 CIBTD cceccccccccvccccccceees 20,35,37,40
Note v. Hynes, 418 F. Supp. 1320 (E. D. N. V.

I ᷣͤͤ A WEE A ROP aR 23,28,29
Ohio Civil 22 Comm n v. Dayton Christian

Schools, Inc., — U.S. __, 106 S.Ct. 2718

— 19.21.24. 25.29
Parratt v. Taylor, 451 U.S. 527 (1981) 4 43
Pennhurst State School Hosp. v. Hilderman, 465

e 20.38.39, 40

Potomac Electric Power Company v. Sachs et al.,
802 F. 2d 1527 (4th Cir. 1986) .... . .. . 27.28

Table of Citations Continued

Page

Railroad Comm'n v. Pullman Co., 312 U.S. 496

. ————5iQ 20,33
Right to Choose v. Byrne, 91 N. J. 287, 450 A. 2d

| — . ˙ 32
Rogers v. Okin, 738 F. 2d 113 (Ist Cir. 1984) 39
Sartin v. Commissioner of Public Safety of the State

of Minnesota, 535 F.2d 430 (8th Cir.

7 1» — —¶ 34
Society for Good Will to Retarded Children v.

Cuomo, 737 F.2d 1239 (2nd Cir. 1984) 39
State v. Doliner, 96 N.J. 236, 475 A.2d 552

CRED 111717ß0ß0 K0000000 23
State v. Haines, 18 N. J. 550, 115 A.2d 24

1 A 25

State v. Smith, 102 N. J. Super. 325, 246 A. 2d 35
(Law Div. 1968), aff'd 55 N. J. 476, 262 A. 2d
868 (1968), cert. den. 400 U.S. 949 (1970) 22

Stone v. Powell, 428 U.S. 465 (19760) . . 26
Tower v. Glover, 467 U.S. 914 (198 . 33
Trainor v. Hernandez, 431 U.S. 434 (1977) . 22,23
United Gas Pipe Line Co. v. Ideal Cement Co., 369

4 —T—— ee 33
Younger v. Harris, 401 U.S. 37

9 ————2— passim
STATUTES CITED:
N.J. Stat. Ann. sec. 59:1-1 et seq. (West 1982) 32
N.J. Stat. Ann. sec. 59:2-2(a) (West 1982) _.......... 32
N.J. Stat. Ann. sec. 2A:73A-2 (West 1976) 3,7
N. J. Stat. Ann. sec. 2A:73A-3 (West 1976) _........ a
N.J. Stat. Ann. sec. 2A:73A-6 (West 1976) 4,7,36

BE UBL. % 0 3

— —

vii

Table of Citations Continued

Page
, 2
r SEEN espe ree 2
I ai 2
. 3,12,20,21,32,44
RULES CITED:
r 2 2
,,,, 2
New Jersey Court Rule 3:5. 5.16.24
New Jersey Court Rule 3:6-10 . 5
New Jersey Court Rule 3:6-100 ah . 36
New Jersey Court Rule 3: 6-11 . 6
New Jersey Court Rule 3:6-1 10) . q 23.25, 36

LAW REVIEW ARTICLES CITED:

Blackmun, Section 1983 and Federal Protection of
Individual Rights—Will the Statute Remain
Alive or Fade Away?, 60 N.Y. Univ. L. Rev.
JJ 38

Wells, Why Professor Redish Is Wrong About Ab-
stention, 19 GEORGIA L. Rev. 1097 (1985) 33

——

—

har]

i264 ° @&

IN THE

Supreme Court of the United States
OCTOBER TERM, 1986

No. 86-890

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 Dog, an individual co-ordinating a search of
the premises of Foundation & Structures, Inc.; JoHN Dok,
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 Crim-
inal Justice,

Petitioners,

vs.

WILLIAM MONAGHAN, THEODORE DESANTIS,
JOHN JAMES, FOUNDATIONS & STRUCTURES, INC.,
WILLIAM E. MONAGHAN ASSOCIATES, and
MJD CONSTRUCTION COMPANY, INC.,
Respondents.

On Writ Of Certio ari To The
United States Court Of Appeals
For The Third Circuit

BRIEF FOR PETITIONERS

OPINIONS BELOW

The Order and written opinion of the United States
District Court for the District of New Jersey is reproduced
as Appendix B to the petition for a writ of certiorari.

The written opinion of the United States Court of
Appeals for the Third Circuit, published at 798 F.2d 632
(3d Cir. 1986), is reproduced as Appendix D to the petition
for a writ of certiorari.

The Order of the United States Court of Appeals for
the Third Circuit denying the petition for an en banc re-
hearing is reproduced as Appendix E to the petition for
a writ of certiorari.

The amended Order of the United States Court of
Appeals for the Third Circuit denying the petition for an
en banc rehearing is reproduced as Appendix F to the
petition for a writ of certiorari.

JURISDICTION

Invoking federal jurisdiction under 28 U.S.C. sec. 1331,
respondents filed a complaint in the United States District
Court for the District of New Jersey. On August 6, 1985,
the District Court entered an order dismissing the com-
plaint.

Respondents filed a Notice of Appeal to the United
States Court of Appeals for the Third Circuit under 28
U.S.C. sees. 1291 and 1292(a). The United States Court
of Appeals for the Third Circuit filed its opinion on July
31, 1986. -

Thereafter, petitioners filed a timely petition for an en
bane rehearing under Fed. R. App. P. 35(b) and 40{a). The

United States Court of Appeals for the Third Circuit de-
nied that petition in an order filed August 29, 1986. There-
after, the court issued an amended order, filed September
4, 1986, to substitute for its order of August 29, 1986.

Petitioners filed a petition for a writ of certiorari on
November 26, 1986. This Court granted the petition on
January 27, 1987. This Court has jurisdiction pursuant to
28 U.S.C. sec. 1254(1).

UNITED STATES STATUTES INVOLVED
42 U.S.C. sec. 1983

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress. For the pur-
poses of this section, any Act of Congress ap-
plicable exclusively to the District of Columbia
shall be considered to be a statute of the District
of Columbia.

NEW JERSEY STATUTES INVOLVED
N.J. STAT. ANN. sec. 2A:73A-2 (West 1976)
2A:73A-2. Permanent impaneling; petition for
impaneling of additional grand jury; determi-
nation by assignment judge
There shall be at least one grand jury which shall
have jurisdiction extending throughout the State

serving at all times. Such State grand jury shall
be impaneled by an assignment judge of the su-

4

perior court designated for this purpose by the
Chief Justice.

Whenever the Attorney General or the Director
of the Division of Criminal Justice deems it to
be in the public interest to convene one or more
additional State grand juries, he may apply in
writing to the aforementioned assignment judge
for an order in accordance with provisions of this
act. Said assignment judge may, for good cause
shown, order the impaneling of such additional
State grand juries in accordance with said ap-
plication, in which event each said grand jury
shall have Statewide jurisdiction.

N. J. STAT. ANN. sec. 2A:73A-3-(West 1976)

2A:73A-3. Powers and duties; applicable law;
rules and regulations

A State grand jury shall have the same powers
and duties and shall function in the same manner
as a county grand jury established pursuant to
Title 2A of the New Jersey Statutes except that
its jurisdiction shall extend throughout the State.
The law applicable to county grand juries shall
apply to State grand juries except insofar as they
are inconsistent with this act. The Supreme Court
may promulgate such rules and regulations as it
deems necessary to govern particularly the pro-
cedures of State grand juries.

N.J. STAT. ANN. sec. 2A:73A-6 (West 1976)
2A:73A-6. Judicial supervision

Judicial supervision of the State grand jury shall
be maintained by the assignment judge who is-
sued the order impaneling such grand jury, and
all indictments, presentments and formal returns

of any kind made by such grand jury shall be
returned to such judge.

NEW JERSEY COURT RULES INVOLVED
NEW JERSEY COURT RULE 3:5-7(a)

3:5-7. Motion to Suppress Evidence and for Re-
turn of Property

(a) Notice; Time. On notice to the prosecutor of
the county in which the matter is pending or
threatened, to the applicant for the warrant if
the search was with a warrant, and to co-indic-
tees, if any, and in accordance with the applicable
provisions of R. 1:6-3 and R. 3:10, a person claim-
ing to be aggrieved by an unlawful search and
seizure and having reasonable grounds to believe
that the evidence obtained may be used against
him in a penal proceeding, may apply to the Su-
perior Court only and in the county in which the
matter is pending or threatened to suppress the
evidence and for the return of the property seized
even though the offense charged or to be charged
may be within the jurisdiction of a municipal
court. Such motion shall be made within 30 days
after the initial plea to the charge unless the
court, for good cause shown, enlarges the time.
A motion made before the trial shall be deter-
mined before trial. The motion may be made after
trial has commenced only if the trial court finds
that defendant could not reasonably have made
it prior thereto.

NEW JERSEY COURT RULE 3:6-10
3:6-10. Discharge; Continuance of Term

(a) Term. A grand jury shall serve until dis-
charged by the Assignment Judge, but not longer
than 20 weeks unless the Assignment Judge shall
order it continued as hereinafter provided. A

grand jury shall not be discharged before the
expiration of its term of service except for good

cause. The continuance of such grand jury shall
not affect the usual drawing, selecting and serv-
ing of further grand juries.

(b) Order for Continuance. Whenever it appears
to the Assignment Judge that the grand jury has
not completed its labors, although its ordinary
term is about to expire, he may, if satisfied of
the necessity therefor, order that its term be con-
tinued. The order shall be made and filed within
the session of court for which such grand jury
shall have been drawn, and shall provide a con-
tinuance for a definite period of time not ex-
ceeding 3 calendar months, provided, however,
that the Assignment Judge may make a further
order, or orders, continuing such grand jury in
office for a further term or terms of 3 calendar
months each.

NEW JERSEY COURT RULE 3:6-11

3:6-11. Impanelment and Judicial Supervision
of State Grand Jury

(a) Generally. All rules relating to grand juries
shall apply to the State Grand Jury except as
otherwise specifically provided by statute or rule.

(b) Designation of Assignment Judge. The Chief
Justice shall designate an Assignment Judge of
the Superior Court to impanel and supervise the
State Grand Jury or Grand Juries. The Chief Jus-
tice may also designate one or more Judges of
the Superior Court to assist said Assignment
Judge with regard to impanelment and supervi-
sion of the State Grand Jury or Grand Juries and
to perform such other duties and responsibilities
with regard thereto as ordered by the Chief Jus-
tice or the designated Assignment Judge.

STATEMENT OF THE CASE

The Honorable Samuel D. Lenox, Jr., is the Assignment
Judge of the Superior Court of New Jersey for Mercer
County, New Jersey. He is also the judge who has been
designated by the Chief Justice of the New Jersey Supreme
Court, pursuant to N.J. Stat. Ann. secs. 2A:73A-2, 2A:73A-
3, and 2A:73-6 (West 1976) and New Jersey Court Rule
3:6-11(b), to supervise the state grand jury, which is the
only grand jury established under state law having juris-
diction throughout the state. (App. B. to the Petition for
a Writ of Certiorari, p. 16a).

On October 4, 1984, petitioner Palentchar, who is a state
investigator assigned to the New Jersey Division of Crim-
inal Justice, appeared before Judge Lenox and applied for
a search warrant to search for evidence of various criminal
activities such as theft, bribery, and tampering with rec-
ords at the premises of respondent Foundations & Struc-
tures, Inc., in Tuckahoe, New Jersey. Judge Lenox agreed
to issue and did issue the warrant, which authorized the
seizure of numerous file materials including contracts, bid
documentations, change orders, job meeting minutes, site
logs, truck logs, tipping fee records, purchase orders, ven-
dors’ payments and invoices, disbursements and receiva-
bles records, correspondence, memoranda, deeds, cancelled
checks, and appraisals pertaining to several business agree-
ments in which Foundations & Structures was involved.
(JA 37-38 ). Foundations & Structures, Inc., is owned by
respondents DeSantis, Monaghan, and James, and is en-
gaged in the engineering and construction business. (App.
D to the Petition for a Writ of Certiorari, p. 22a). Mon-
aghan, DeSantis, and James, are also owners of respondent
Monaghan Associates and MJD Construction Company, Inc.
Id.

On October 5, 1984, petitioner Palentchar and the re-
maining petitioners, all of whom are state law enforcement
officers, executed the search warrant. The circumstances

surrounding the execution of this warrant gave rise to the
federal litigation.

According to the federal complaint which respondents
later filed, the warrant was executed at approximately 9:00

a.m. (JA 18, Count I, para. 5). Respondents allege that
the execution of the warrant was objectionable for several
reasons. Specifically, petitioners unreasonably refused to
defer to the advice of the employees of Foundations and
Structures, Inc., as to where the pertinent files could be
located and chose, instead, to conduct their own thorough
search of the premises for seizable files and documents.
(JA 18, 1 „ the prem-
ises, including respondents M DeSantis,
James, were required to enter the main office and
‘illegally detained’’ until each presented identification. (JA
19, Count I, para. 7(c); JA 28, Count VI, para. 3). The
entrance to Foundations & Structures, Inc., was barri-

Count I, para. 7(d)). . ie tates
(JA 19, Count I, para. 7(b)), and serial numbers of con.
struction machinery and vehicles were “illegally recorded.”

(JA 19, Count I, para. 7(e)). Petitioners * ‘conducted them-

to the phones. (JA 20, Count I, para. 10). The search itself

within the scope of the warrant (JA 19-20, Count I, para.
8), and the third of which was blank when petitioners
arrived and was completed only after the search was in
progress. (JA 20, Count I, para. 9).

Beyond this, respondents allege that petitioners refused
to give respondents ‘‘a complete and proper return and
inventory as is required under the laws of the State of
New Jersey.“ (JA 20, Count I, para. 11). According to
respondents, “‘[hjundreds of documents outside the scope
of the warrant were taken away by petitioners.’”’ (JA 19,
Count I, para. 7(f)). Moreover, many of the seized docu-
ments were protected by the attorney-client privilege. Id.

Respondents also claim that petitioners Deakins and Sost
visited respondent Monaghan’s home at approximately 7:00
a.m., prior to the execution of the warrant, and solicited
Monaghan’s cooperation in the state’s investigation. (JA
16-17, Count I, para. 2). Similarly, at approximately 9:15
a.m. (after two of the petitioners were unable to find
respondent DeSantis at his home), petitioners Palentchar
and Deakins visited respondent DeSantis at his place of
business and solicited his cooperation. (JA 17-18, Count I,
para. 4). According to the complaint, petitioners were
aware that both respondents had retained counsel and con-
tinued to seek respondents’ cooperation after respondents
declined to cooperate, after they invoked the protection of
their counsel, and after petitioners talked with counsel and
agreed that further discussions would not take place. (JA
24, Count III, para. 2). In particular, respondents claim
that petitioners used the threats of further investigations
and the forthcoming execution of the search warrant as
coercive devices designed to gain respondents’ cooperation.
(JA 16-17, Count I, para. 2; JA 24, Count III, para. 2).
Nevertheless, respondents declined to cooperate, and
petitioners left.

Although much of what transpired at the time of the
execution of the search warrant remains a subject of un-
tried controversy, at least two matters are undisputed.
First, while the warrant was being executed, respondents’
lawyers, Edward N. Fitzpatrick and Patrick T. McGahn,
Jr., arrived at the scene. They examined the receipt of
inventory supplied by petitioners, and took exception to

10

its adequacy. The lawyers contended that petitioners had
an obligation under the laws of New Jersey to provide a
more detailed inventory, listing with specificity just what
was being seized. (JA 57, 60-61).

To resolve the matter, the parties placed a telephone
call to Judge Lenox. The judge ordered that all seized
evidence be sealed in the removal cartons, and that they
were not to be opened until he could determine the ade-
quacy of the inventory. The cartons were sealed and taken
to the evidence vault at the New Jersey Division of Crim-
inal Justice in Trenton, New Jersey, located in Mercer
County, where Judge Lenox presides as the Assignment
Judge. (JA 57, 61-62, 81-82; see also App. B to the Petition
for a Writ of Certiorari, p. 7a; App. D, p. 34a).

The second undisputed matter pertains to the subpoenae
duces tecum. As alleged in respondents’ complaint (JA 19-
20), at the time the search warrant was executed, three
state grand jury subpoenae duces tecum were served upon
respondents. The first two subpoenae called for the pro-
duction of records from the two respondent corporations,
Foundations & Structures, Inc., and William F. Monaghan
Associates. The records requested in the subpoenae did
substantially overlap those set forth in the search warrant,
with the exception that the subpoenae requested docu-
ments predating September 8, 1978, whereas the search
warrant authorized the seizure only of documents which
postdated that date. (JA 39-44; see also App. B to the
Petition for a Writ of Certiorari, pp. 7a-8a; App. D, p.
23a, note 1). Respondents later responded to these sub-
poenae by noting that many of the documents requested
were already seized when the search warrant was exe-
cuted, and by supplying additional documents which were
not seized. The third subpoena (JA 45), and also a fourth
served after October 5, 1984, were the subject of
respondents’ motion to quash which was heard before
Judge Lenox on November 15, 1984. At that hearing the

11

state withdrew these subpoenae. (App. C. to the Petition
for Writ of Certiorari, p. Sa).

Thus, the enforcement of the subpoenae was resolved
by the parties, both before and during the November 15,
1984 hearing before Judge Lenox. However, the question
of the adequacy of the inventory was not so easily re-
solved. On October 15, 1984, Deputy Attorney General
Julian Wilsey, who is an attorney employed by the New
Jersey Division of Criminal Justice, sent a ietter to
respondents’ lawyers which advised them that they could
send a representative to prepare a detailed list of the items
seized during the execution of the search warrant on Oc-
tober 5, 1984. Wilsey told counsel that the state would
return any items seized which exceeded the scope of the
warrant, and that the state, moreover, would provide cop-
ies of the documents necessary for respondents to conduct
their business affairs. On October 23, 1984, counsel and
respondent Monaghan came to the New Jersey Division of
Criminal Justice in Trenton, New Jersey, and were per-
mitted to break the seals on the cartons containing the
documents and to examine their contents. However, upon
conducting this examination, counsel alleged that many
documents were outside the scope of the search warrant,

or alternatively were protected by the attorney-client or

attorney work product privilege. Thus, the parties once
again agreed to reseal these disputed documents, pending
a judicial resolution of the propriety of their seizure. (App.
B to the Petition for a Writ of Certiorari, p. 8a). As
discussed below, the state court judge, Judge Lenox, con-
cluded in a later hearing involving this matter that this
resealing which occurred on October 23, 1984 could not
have occurred without his initial sealing order of October
5, 1984. (JA 81). Moreover, Judge Lenox further concluded
that it was the parties’ intent that the judicial resolution
which was to occur after this resealing was supposed to
occur before him. (JA 82).

12

Instead, on January 3, 1985, respondents filed their civil
complaint in the United States District Court for the Dis-
trict of New Jersey. (JA 4). Based upon the allegations
which are summarized above, respondents claimed federal
causes of action under 42 U.S.C. sec. 1983 premised upon
illegal search and seizure (Count I), unlawful motivation
for conducting the search (Count II), deprivation of the
right to counsel and the right not to incriminate them-
selves (Count III), and illegal arrest or detention (Count
VII). They also sought relief against three John Doe“
defendants who failed in their obligation to train, super-
vise, and coordinate the activities of the named defendants.
(Count I, para. 12, 13; Count II, para. 4; Count III, para.
3; Count VII, para. 3). Relying upon pendent jurisdiction,
respondents also claimed state-law causes of action, arising
under the common law of New Jersey, premised upon
trespass (Count IV), conversion (Count V), unlawful con-
finement (Count VI), and the intentional or reckless infl-
iction of emotional distress (Count VIII). Respondents
sought compensatory and punitive damages, and injunc-
tions requiring the return of all of the documents and
proscribing future tortious conduct. (JA 13-35).

Petitioners Deakins, DuBow, Palentchar and Price were
served with this complaint on January 8, 1985. Petitioners
Gray, Lehman, Panfile, Southwick and Sost were served
on January 16, 1985. (JA 4). Accompanying the complaint,
notices for taking depositions and requiring the production
of documents were served upon eight of the petitioners.
Specifically, some of the petitioners were instructed to
make themselves available for deposition on February 13,
1985, and others were instructed to make themselves avail-
able for deposition on February 14, 1985. (JA 47). Each
deponent was instructed to bring copious documents, in-
cluding all documents which set forth or identified the
assignments and duties of all persons involved in the Oc-
tober 5, 1984 search of respondent Foundations & Struc-
tures, Inc.; all documents which identified or recorded the

13

names of persons entering the vault or storage area where
the seized records were held; all documents generally gov-
erning the procedures to be used in conducting search
warrants; all documents generally governing the proce-
dures to be used in interrogating witnesses and targets
of grand jury investigations; and all documents generally
describing the procedures governing the use or service of
grand jury subpoenae. (JA 46-50). On January 18, 1985,
petitioners served respondents with their notice of objec-
tions pertaining to irregularities in the plaintiffs’ notices
for taking depositions. (JA 4).

On February 1, 1985, without having submitted an an-
swer to the complaint, petitioners filed in the district court
their motion for a dismissal, premised upon abstention
grounds, and for such additional relief as the court might
deem appropriate. (JA 4). The respondents countered with
a motion for a preliminary injunction ordering the return
of the documents. (JA 4; see also App. D to the Petition
for a Writ of Certiorari, p. 24a).

While this was happening, the state court proceedings
were progressing. On February 19, 1985, the State of New
Jersey sought and obtained an ex parte order from Judge
Lenox requiring some of the respondents— DeSantis, Mon-
aghan, Foundations & Structures, Inc., and William E.
Monaghan Associates—to appear and show cause why the
sealed documents should not be unsealed so that the state
could use them for the purpose of the grand jury inves-
tigation. (JA 65).

In his ex parte affidavit in support of the show cause
order, Deputy Attorney General Wilsey alleged that the
fact that the documents were still under seal was impeding
the state’s criminal investigation. Wilsey also apprised
Judge Lenox that

Messrs. Monaghan and DeSantis have joined in
a suit presently pending in the federal district
court wherein the defendants [the respondents

14

* * . penta
herein] are suing various State employees con-

tending that their civil rights were violated as a
result of the search on October 5, 1984. The
defendants [respondents herein] in that action are
seeking, in part, discovery of the State’s criminal
investigation file. _

(JA 63).

The federal district court hearing on the motions oc-
curred on March 8, 1985, three days before the state court
hearing on the show cause order. At the district court
hearing, the Honorable Stanley S. Brotman, U.S.D.J., re-
served decision on both petitioners’ motion for dismissal
and respondents’ motion for a preliminary injunction or-
dering the return of the documents. However, to maintain
the status quo, the judge issued a temporary restraining
order forbidding the state from unsealing the sealed doc-
uments. He also ordered that discovery in this lawsuit
should be stayed pending his decision on the motions. (App.
A to the Petition for a Writ of Certiorari, pp. 1a-2a).

Three days later, on March 11, 1985, the matter pro-
ceeded to Judge Lenox in the state court system. At the
hearing before Judge Lenox, respondents moved for a dis-
charge of the show cause order and relied upon two bases
in support of this motion. First, respondents contended
that the state’s attorney, Mr. Wilsey, had failed adequately
to disclose, in the ex parte affidavit, the nature and details
of the concurrent federal litigation. (JA 71-72). Judge
Lenox found this basis to be without merit. (JA 83-84).

Second, respondents contended that the state court
should abstain because of the pending federal litigation.
Respondents’ counsel argued:

If this Court were to also assert jurisdiction over
this matter and continue hearings in this matter,
it would simply end up with duplicitas [sic] liti-

15

gation. It is not an efficient use of judicial re- -
sources.

(JA 74). Counsel for respondents requested the state court
to abstain from the issues involving the state litigation by
arguing that
[wle are trying to avoid, Your Honor, a conflict
between the State Court and the Federal Court.
It is totally unnecessary. Everybody’s interest is
served by getting an adjudication over who has
the right to possession and use of the documents
that have been sealed .... So, it is all before
the Federal Court now. We can get an adjudi-
cation there. There is no reason at this point for
the State Court to intervene .... [Wie would
urge in the interest of comity between the two
judicial systems and in the interest of avoiding
piecemeal and repetitious litigation that as a sec-
ond basis this Court discharge the Order to Show
Cause without further hearing because of the
pendency of the matter before Judge Brotman.

(JA 74-75). Judge Lenox similarly rejected this ground for
discharge. (JA 85-86).

Additionally, Judge Lenox took the position that the
second sealing, made by the consent of counsel on October
23, 1984, was simply a continuation of the first sealing
ordered by Judge Lenox on October 5, 1984, to preserve
the status quo. As the judge asserted, “It was only because
of that [first] sealing that anything was sealed. Absent
that [first] sealing, nothing would have been sealed. (JA
81). Moreover, the judge asserted, “I would not have per-
mitted any sealing were there not to be an application
before me under that agreement.” (JA 81). He continued,

There was absolu no reason why the

Attorney General should not have expected that
you would be coming before me [after the second

Having failed to convince the state court to abstain,
counsel for respondents then suggested that respondents
might “broaden [their] application in State court to include
the return of other documents which were not under
seal. (JA 90). Judge Lenox noted that the instant show
cause proceedings, filed by the state, pertained only to
documents under seal, and “[yJou are not going to broaden
the issue on this Order to Show Cause because the Order
to Show Cause frames the issue. (JA 92). Judge Lenox
instructed respondents that in order to broaden the issues
in the manner suggested by counsel, they should file a
motion under New Jersey Court Rule 3:5-7. (JA 91).' The
court terminated the proceedings by instructing both
counsel to file briefs on the merits of the show cause order
and instructing counsel to return to court at a later date.
(JA 93).

A second hearing occurred before Judge Lenox on March
25, 1985. At that hearing the judge ordered that
ts would be permitted to make copies of any
documents kept under seal. (App. B. to the Petition for
a Writ of Certiorari, p. 15a). The parties sent the federal
judge, Judge Brotman, copies of the transcripts of the
state court proceedings so that he could use them in ren-
dering his decision. (See, e.g., App. B to the Petition for
a Writ of Certiorari, p. 12a, footnote).

The transcript notes that the judge referred to Rule 4:5-7."" This
was an obvious typographical error.

; i and
opinion denying respondents’ request for preliminary in-
junction and dismissing their complaint. (App. B. to the
Petition for a Writ of Certiorari). As of that date,
respondents ir ri

court should have stayed, rather than dismissed,
respondents’ claim for money damages. The Honorable Ar-

:
2
2

uments. This petition was denied in an
29, 1986 (App. E to the Petition for a

a

rit of

18

and again in an amended, substitute order filed September
4, 1986. (App. F to the Petition for a Writ of Certiorari).

Although it is not part of the record, this Court should
be aware that on September 10, 1986, the state grand
jury returned an indictment against some of the
respondents, namely, William Monaghan, Theodore De-
Santis, Foundations & Structures Inc., as well as other
criminal defendants not parties to the instant federal ac-
tion. Howéver, an active investigation is still continuing,
and further indictments may be returned. (See App. A to
the Petitioners’ Reply Brief, filed January 20, 1987).

On January 27, 1987, this Court granted the petitioners’
Petition for a Writ of Certiorari.

/

SUMMARY OF ARGUMENT

1. The majority opinion in the circuit court conceded
that respondents had available state procedures by which,
without waiting to be indicted, they could immediately seek
a state court adjudication of their demand for the return
of documents whieh, they alleged, were improperly seized
(App D to the Petition for a Writ of Certiorari, pp. 30a
to 3la and note 7). Moreover, the record demonstrates
that the documents which were to be used in a state grand
jury investigation were seized pursuant to a warrant issued
by the state court judge who supervised the grand jury.
At the time of the search respondents disputed the ade-
quacy of the receipt which the state was preparing con-
cerning the seized documents. When contacted by the
parties at respondents’ demand, the judge stated that the
documents should be sealed and that an application for
unsealing should be made before him. The parties later
disagreed as to whether some of the documents were im-
properly seized and whether the state’s retention of these
documents violated the attorney-client privilege. These doc-
uments were also sealed. The state judge found that this
sealing would not have occurred absent his previous order

19

to seal documents and to appear before him concerning
the unsealing of the documents. It is thus clear that this
dispute stemmed from an ongoing state grand jury pro-
ceeding, rr
in which to resolve their dispute, and that the use of this
forum was initiated by respondents and expected by the
state judge. Nevertheless, the circuit court concluded ab-
stention was not permitted. The court held that for
Younger abstention to apply [Younger v. Harris, 401 U.S.
37 (197) the state grand jury itself would have to be
the forum in which respondents could obtain the relief they
sought. Since the grand jury, being an ex parte proceeding,
could not provide this relief, it followed, according to the
court, that Younger abstention must fail. The fact that
relief was available from the state court which issued the
warrant and which supervised the grand jury was deemed
to be irrelevant. The court stated, “‘[I]}n no case has the
Supreme Court or this court ever turned the propriety of
a Younger dismissal upon the mere availability of a State
judicial proceeding. (App. D. to the Petition for a Writ
of Certiorari, pp. 30a to 31a).

This statement, quite simply, is wrong. This Court has
done precisely what the circuit court said it has not done
in several opinions, including the recent opinion in Ohio
Civil Rights Comm’n v. Dayton Christian Schools, Inc., ~
U.S. — , 106 S.Ct. 2718 (1986), which the majority opin-
ion did not cite, and upon which the dissenting opinion
relied. It is thus clear that the circuit court’s opinion is
in error. Moreover, abstention from the equitable portion
of respondents’ complaint is consistent with, and indeed
compelled by, Younger and its progeny, a conclusion
reached by every other court that has addressed the first
question presented for review.

2. Petitioners’ argument concerning the second question
presented for review assumes the Younger doctrine applies
if the federal complainants may seek redress from the
state court which supervised the grand jury and issued

20

the warrant whose execution led to the state’s seizure and

plies the Younger doctrine to the equitable portion of

42 U.S.C. sec. 1983 action. Although the Younger decision,
like the Pullman decision [Railroad Comm'n v. Pullman
Co., 312 U.S. 496 (4941) and the Burford decision [Burford
v. Sun Oil Co., 319 U.S. 315 (1943)] purported to rest, in

The district court’s decision whether to dismiss, or simply
to stay, the ancillary claim for damages when it dismisses
the equitable portion of a 42 U.S.C. sec. 1983 action rests
on a careful balancing of the important factors as they
apply in a given case. Moses H. Cone Memorial Hosp. v.
Mercury Const. Corp., 460 U.S. 1, 16 (1983).

Several factors supported dismissal in this case. Even
if a stay had been granted, the pendency of the damages
claim would have hovered over the state officials’ inves-
tigation of respondents’ criminal conduct. Moreover,
respondents may well have sought a lifting of the stay
premised upon their allegation that the state had been
dilatory in its grand jury investigation. The doctrine of
eleventh amendment sovereign immunity as explicated by
this Court’s opinion in Pennhurst State School Hosp. v.
Hilderman, 465 U.S. 89 (1984) would have foreclosed fed-
eral court litigation of respondents’ claims premised upon
state law. Additionally, respondents’ federal claims for
damages are integrally dependent upon and inextricably
interconnected with questions of state law. These several
factors sufficed to uphold the district court's decision to
dismiss, rather than to stay, the claims for damages.

21

LEGAL ARGUMENT

POINT I. THE THIRD CIRCUIT ERRED IN RE-
VERSING THE DISTRICT COURT'S DE-
CISION TO ABSTAIN.

Respondents, the subjects of a state grand jury inves-
tigation, filed a 42 U.S.C. sec. 1983 action demanding,

inter alia, the return of property seized pursuant to a

property, and also to the state judge who supervised the
grand jury, issued the warrant, and explicitly invited
respondents to invoke that mechanism, petitioners re-
under Younger v. Harris, 401 U.S. 37.

(1971). The third circuit, over a strong dissent, reversed
the judgment of the district court and ruled that abstention
as not permissible. Petitioners’ motion for a rehearing
issue raised in the first point of this brief was

denied by a vote of six to four. The decision of the third
circuit is i conflict with the decisions of at least two other
Court in Younger

i joining or interfering
with a pending state criminal prosecution. The holding was
based, in part, upon the rationale that federal-court in-
terference with pending state proceedings is inconsistent
with principles of federalism and comity, which reflect a
proper respect for state functions, a a recognition of the
fact that the entire country is made up of a Union of
separate state governments, and a — 2 of te to
lief that the national government will fare best if the states
and their institutions are left free to perform their sep-
arate functions in their separate ways.” 401 U.S. at 44.

The full scope of the abstention doctrine has been ex-

plicated in a number of cases over the years since Younger
was decided. See, e g., Ohio Civil Rights Comm'n v. Dayton

Christian Schools, Ine. U.S. —_, 106 S. Ct. 2718 (1986)

bar disciplinary proceedings); Trainor v. Hernandez, 431
U.S. 434 (1977) (applying abstention in favor of a civil
action by the state to recover wrongfully-obtained welfare
benefits); Juidice v. Vail, 430 U.S. 327 (1977) 1
abstention where federal plaintiff is involved in state court
contempt proceedings as judgment debtor); H
Pursue, Ltd., 420 U.S. 592 (1975) (applying
deference to civil nuisance action brought

grand jury proceedings are proceedings.

United gta 362 U.S. 610, 617 (1960); Cobbledick v.
United States, 309 U.S. 323, 327 (1940); Ex Parte Young,
209 U.S. 123, 163 (1908). As the district court recognized
(App. B to the Petition for a Writ of Certiorari, pp. 12a,
16a), this is equally true under state law. E. g., In re
ee 73 N. J. 575, 587,

State
v. Smith, 21 _ Super. $25, 396, 246 A.24 36, 41 (Law
262 0 cert.

23

den. 400 U.S. 949 (1970); In re Jeck, 26 N.J. Super. 514,
519, 98 A.2d 319, 321 (App. Div. 1953), certif. den. 13
N.J. 429, 100 A.2d 215 (1953). Indeed, it is well established
that a grand jury proceeding is considered a pending state
action for purposes of Younger abstention. See Kaylor v.
Fields, 661 F.2d 117 (8th Cir. 1981); Notey v. Hynes, 418
F. Supp. 1320, 1326 (E.D.N.Y. 1976).’

With regard to the second condition: grand jury pro-
ceedings do implicate an important state interest, namely
the investigation of criminal conduct and the indictment
of alleged wrongdoers. The state’s interest in the unhin-
dered enforcement of its criminal laws has been repeatedly
recognized by this Court in Younger itself (401 U.S. at
43-46) and, in cases which have relied on Younger, as a
state interest deserving of the greatest deference See, e. g.,
Trainor, 431 U.S. at 443; Hoffman, 420 U.S. at 604-605.
See also State v. Doliner, 96 N.J. 236, 250-251, 475 A.2d
552, 560 (1984).

It is the third condition which was not present in this
case according to the majority opinion of the circuit court.
The court erroneously concluded that respondents did not
enjoy an adequate opportunity in the ongoing state judicial
proceedings to raise their constitutional challenges.

Initially, there can be no dispute that state law afforded
respondents mechanisms by which they could obtain relief.
In fact, these mechanisms have been invoked. By statute
and by court rule, the Superior Court assignment judge,
Judge Lenox, supervises the state grand jury. New Jersey
Court Rule 3:6-11(b). Respondents knew to turn to Judge
Lenox when they had a dispute over the adequacy of the
inventory, and they obtained relief. Respondents knew to

The only caveat to this general rule is that there must be a state
forum in which recourse is available. Brennick v. Hynes, 471 F. Supp.
863, 867 (N.D.N.Y. 1979). As will be discussed below there is a state
forum in which recourse is available in this case.

24

turn to Judge Lenox when they sought to quash subpoe-
nae, and they again got relief. With respect to the demand
for the return of documents, Judge Lenox invited
respondents to file a motion under New Jersey Court Rule
3:5-7.° Instead, at this point in the proceedings, they de-
cided to bring this portion of the action to the federal
courts.

The third circuit clearly found that the relief which
respondents sought—return of their property—could be ob-
tained in state court. (App. D to the Petition for a Writ
of Certiorari, p. 3la note 7). Thus, the issue disturbing
the majority of the third circuit was not the adequacy of
the relief under state law. Rather, it was whether there
were ongoing proceedings in which“ relief was technically
available. (App D to the Petition for a Writ of Certiorari,
p. 29a).

The court concluded that for the third condition to be
met, the relief must be available from the grand jury itself.
The court noted that “[a] grand jury proceeds ex parte“
and does not have the authority to adjudicate anything.“
(App. D to the Petition for a Writ of Certiorari, p. 30a).
By this crabbed interpretation of the third condition, the
court concluded that Younger abstention was inappro-
priate.

The circuit court clearly erred. Its concern that the state
grand jury itself cannot litigate respondents’ fourth amend-
ment claims is of no inoment. Plaintiffs in Ohio Civil Rights
Comm'n expressed the same concern with respect to the
Ohio Civil Rights Commission. This Court responded that
“it is sufficient . . . that constitutional claims may be raised
in state court judicial review... Id. at 2724. Thus, as

The majority opinion of the circuit court purported to harbor un-
certainty as to whether an action under this rule or an action in the
nature of replevin was the appropriate mechanism for obtaining the
relief which respondents sought, namely the return of documents. (App.
D to the Petition for a Writ of Certiorari, p. 3la note 7).

25

Judge Adams noted in his dissent below, this Court’s hold-
ing in Ohio Civil Rights Comm’n emphasized that even
if the administrative proceedings would not provide a forum
for resolution of constitutional claims, state judicial review
of any agency decision would be sufficient for protection
of any constitutional interests.” (App. D to the Petition
for a Writ of Certiorari, p. 38a). This holding fully applies
to this case and is directly at odds with the circuit court
opinion. It must also be remembered that in this case a
motion could have been made before and was actually in-
vited by the very judge who signed the search warrant
and who presides over the state grand jury.

Under the rationale of the circuit court, intervention of
federal courts into state grand jury investigations would
always be required at the will of those under investigation
any time a search has occurred in the course of that in-
vestigation. Grand jury proceedings are, by their very na-
ture ex parte proceedings. Grand juries do not have the
ability or the authority to adjudicate federal claims made
by those who are touched by their investigations. This is
the very reason that a judge is required by New Jersey
law to supervise the grand jury. See New Jersey Court
Rule 3:6-11(b). To hold that this inability to adjudicate
claims requires the federal courts to become involved in
matters intricately related to grand jury investigations pro-
motes form over substance and ignores comity. It makes
little difference whether the grand jury itself decides the
claim or the court which supervises the grand jury makes
the adjudication. In either event those aggrieved by the
investigation have recourse to state judicial review. In a
system in which the grand jury operates as an arm of the
court [(State v. Haines, 18 N.J. 550, 557, 115 A.2d 24, 28
(1955)] there is no reason to hold that a motion made
before the court which is charged with supervision of the
grand jury is outside the grand jury proceeding.

This is particularly true in a case such as that presently
before the Court. Respondents have requested the return

26

of documents seized pursuant to a warrant. In large meas-
ure, respondents’ assertions amount to a claim that the
state has possession of documents which it should not have
been allowed to seize. Although the search was conducted
in connection with a grand jury investigation, the grand
jury did not empower the search—the search was author-
ized by the court which oversees the grand jury. The in-
terests of comity are ill served by ruling that recourse to
that same court does not provide an adequate forum for
relief. Any action taken by the grand jury can be contested
before the judge who supervises it. Certainly the actions
taken by the judge in his role as overseer of the grand
jury are not so divorced from the grand jury as to be
considered outside the pending state action for purposes
of Younger abstention.

As to the possible claim that grand jury proceedings are
not judicial in nature, it should be noted that this Court
has applied Younger in administrative proceedings [(Gib-
bons v. Berryhill, 411 U.S. 564, 576-577 (1973)] and even
lawyer disciplinary proceedings which were within the ap-
pellate jurisdiction of the state courts. Middlesex County
Ethics Committee, supra. Similarly, the grand jury is an
arm of the court and grand jury actions are immediately
subject to judicial review. The function and nature of a
grand jury proceeding, combined with the fact that the
grand jury is subject to the supervision and control of the
courts suffices for purposes of Younger abstention. While
the hearing itself is not adversarial, any action taken by
the grand jury is immediately subject to full adversarial
review by the court.

It is worthy of note that this Court has found that the
state courts are sufficiently adept in ruling on claims re-
lating to searches and seizures that their determinations
in this regard should not be reviewed by the federal courts
in habeas corpus actions. Stone v. Powell, 428 U.S. 465
(1976). It would be anomalous to hold that even though a
post-conviction federal review of state court fourth amend-

27

ment decisions would unnecessarily violate the tenets of
federalism, comity permits federal rather than state review
of fourth amendment claims at the pretrial stage. Fortu-
nately such a result is not required by Younger.
Instructive in this regard is the recent opinion of the
United States Court of Appeals for the Fourth Circuit in
Potomac Electric Power Company v. Sachs et al., 802 F.2d
1527 (4th Cir. 1986), which is in direct conflict with the
third circuit's opinion in the present case. In that case the
plaintiff Potomac Electric Power Company (hereinafter re-
ferred to as ‘“‘PEPCO”) sought a declaratory judgment that
the federal Toxic Substances Control Act preempted Mary-
land law. However, in the district court it was established
that the State of Maryland had initiated a grand jury
proceeding to investigate whether plaintiff PEPCO had
violated Maryland’s criminal laws and regulations govern-
ing hazardous waste disposal. It was further established
that these proceedings were in progress at the time the
district court action was filed. The district court refused
to abstain because of its conclusion that there was no
adequate opportunity for the plaintiff PEPCO to raise its
preemption claim before the grand jury. Moreover, since
it was possible that PEPCO would not be indicted, the
district court concluded that it was possible that PEPCO
would never be able to present its federal claim in state
court. The United States Court of Appeals for the Fourth
Circuit disagreed noting that this Court’s opinions
demonstrate that not only is the immediate pro-
ceeding relevant in determining whether there is
an opportunity to present a federal claim, but
subsequent state judicial proceedings in which the
claim can be raised are also relevant. Grand jury
investigation and indictment initiate a criminal
prosecution in Maryland’s system of criminal en-
forcement. If indicted, PEPCO can present its
claim of federal preemption ... as a defense to
the criminal prosecution, and therefore has an

28

adequate opportunity to present the claim in the
ongoing proceedings.

Id. at 1532 (footnote omitted).

The abstention holding adopted by the court in Potomac
Electric Power Company is not unique. On the contrary
the third circuit stands virtually alone among those courts
which have addressed the issue whether the Younger
stention doctrine should y to state jury
ceedings. For example, in Kaylor v. Fields, the court was
faced with a situation in which plaintiffs had brought suit
under 42 U.S.C. sec. 1983 to enjoin a state prosecutor
from enforcing subpoenae he had issued pursuant to a

i
:
f
3
1
3
f

action. Since plaintiffs had the opportunity to present their
claims in relation to this proceeding in the state courts.
abstention was required. Kaylor, 661 F. 2d at 1181-1182.

The Kaylor court cited with approval the decision in
Notey v. Hynes, supra. In Notey the court, reviewing re-
quests for injunctive and declaratory relief in regard to a
matter which was then pending before a state grand jury,
stated:

In other words, when a grand jury has been im-
panelled and is sitting and investigating, there is
a “criminal case” and in New York a criminal
proceeding, and most significantly there is the
State court responsible for and having jurisdic-
tion of such grand jury from which relief from
constitutional abuses may be obtained. Interfer-
ence with such state criminal proceedings would
appear clearly to be within the prohibitions con-
templated by Younger and its progeny.

29

Notey v. Hynes, 418 F. Supp. at 1326. See aiso Craig v.
Barney, 678 F.2d 1200 (4th Cir. 1982), cert. den. 459 U.S.
860 (1982); Law Firm of Daniel P. Foster v. Dearie, 613
F. Supp. 278, 280 (E.D. N.Y. 1985).

Thus, the third circuit's opinion in this case is contrary
to the general rule that grand jury proceedings are pend-
ing state proceedings for the purposes of Younger absten-
tion.

In ruling that grand jury proceedings do not suffice for
purposes of Younger abstention the third circuit majority
also incorrectly held that the district court was required
to disregard all post-complaint state court proceedings.
(App. D to the Petition for a Writ of Certiorari pp. 3Ia-
32a.) This conclusion which will impact on many, if not
most, cases involving continuing criminal investigations is
flawed both factually and legally. As Judge Adams, noted,
in dissent, the post-complaint proceedings were actually a
continuation of proceedings which began on the day of the
search, prior to the filing of the complaint, (See p. 11
supra). Thus, the majority opinion is factually wrong.

The opinion also ignores the principle of law repeatedly
endorsed by this Court that federal courts considering
Younger abstention issues may consider proceedings which
take place after the filing of the complaint provided that
no substantial advancement in the federal action has taken
place. Ohio Civil Rights Comm n v. Dayton, 106 S.Ct. at
2723 n.2; Middlesex County Ethics Committee, 457 U.S. at
436-437; Hicks v. Miranda, 422 U.S. 332, 349 (1975). In-
deed in Middlesex County this Court specifically took into
account state court proceedings initiated subsequent to the
filing of the federal complaint in determining whether
respondent had an adequate state forum. 457 U.S. at 436-
437.

In Hicks v. Miranda, 422 U.S. 353 (1975), this Court
was presented with a situation in which no criminal pro-
ceedings were pending against appellees when their federal

Younger v. Harris could not be avoided on the
ground that no criminal prosecution was pending
against appellees on the date the federal com-
plaint was filed.
Id. at 349.
This case demonstrates that proceedings which take
place after the filing of a federal complaint can be con-
sidered for purposes of Younger abstention where these
proceedings concern an investigation which is in progress
prior to the filing of the complaint. it also made clear
that Younger abstention may be invoked even if the sub-
jects of a criminal investigation have not specifically been

that the federal litigants must have a substantial interest
in the pending proceedings and that they must have an
available state forum for litigation of their federal claims.

As in Hicks, respondents in the present case obviously
have an interest in pending proceedings since their prop-

31

erty was seized and they were and are
grand jury investigation. As in Hicks, the state court rules

involvement in any
respondents.

The state’s interest in the unhindered enforcement of
its criminal laws will be seriously disrupted if the majority
opinion of the lower court is permitted to stand. Federal
court involvement on behalf of disgruntled subjects of state
grand jury investigations will constitute both an undue
interference with and an immense burden upon New Jer-

:
|
1
8
2
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nowhere is the Younger abstention doctrine more needed
than in the area of pending criminal investigations. Still,
the third circuit’s opinion virtually eliminates the possi-
bility of abstention in this situation. The circuit court's
decision should be reversed so that the federal courts may
defer to the state courts with respect to the conduct of
this important function.
POINT II. THE DISTRICT COURT HAD DISCRETION
EITHER TO DISMISS OR TO STAY THE
CLAIM FOR MONEY DAMAGES.

If this Court agrees that abstention was appropriate,
the question remains as to the appropriate disposition in
entire complaint should be dismissed. The circuit court
concluded that, if abstention were applicable, then the dis-
trict court would have been mandated to stay and had no
discretion to dismiss respondents’ claim for money dam-

The courts of New Jersey provide a forum for suits
premised upon 42 U.S.C. sec. 1983 and will award
attorneys fees to successful plaintiffs. See, e.g., Right to
Choose v. Byrne, 91 N.J. 287, 314-318, 450 A.2d 925, 939-
941 (1982); Carmel v. Hillsdale, 178 N.J. Super. 185, 428
A.2d 548 (App. Div. 1981). In Fair Assessment in Real
Estate Ass n v. McNary, 454 U.S. 100, 116-117 (1981), this
Court considered the willingness of the state court system
to entertain such suits when it ordered the plaintiffs to
proceed in the state, rather than the federal court system.
Significantly, the courts of New Jersey also provide a
forum for respondents’ claims against the state officers
premised upon state tort principles. Indeed, the state
courts, from respondents’ perspective, provide a superior
forum to the federal courts, because the state has, in cer-
tain broadly defined circumstances, waived sovereign im-
munity for its vicarious liability occasioned by its agents
when the lawsuit is brought in state court under the New
Jersey Tort Claims Act, N.J. Stat. Ann. sec. 59:1-1 et seg.
(West 1982). See N.J. Stat. Ann. sec. 59:2-2(a). In sum,
the district court judge, Judge Brotman, was certainly cor-
rect when he concluded that “{ajll state law claims raised
by plaintiffs [respondents herein] can, of course, be pur-
sued in [the state] forum.” (App. B to the petition for a
Writ of Certiorari, p. 17a). The question remains whether
the district court could seek to compel respondents to uti-
lize that forum.

At the outset, petitioners note that this Court has
deemed it to be an open question whether Younger may

apply to a lawsuit in which only money damages are
sought. Juidice v. Vail, 430 U.S. 327, 339 n.16 (1977); see

also Tower v. Glover, 467 U.S. 914, 923 (1984). This case
does not fall within this open question because respondents
sought both money damages and (primarily) equitable re-
lief. Nevertheless, the Younger decision, like the Pullman
decision [Railroad Comm'n v. Pullman Co., 312 U.S. 496
(1941) and the Burford decision [Burford v. Sun Oil Co.,
319 U.S. 315 (1943) purported to rest in part upon the
special limitations and powers of courts of equity. For
example, the plaintiff in Younger did not receive the in-
junction he wanted because he could not meet the tra-
ditional prerequisite to obtaining an injunetion, including
the requirement of irreparable injury, due to lack of an
adequate remedy under state law. Younger, 401 U.S. at
46. Pullman and Burford abstention had similar rationales
premised upon the equitable nature of the relief which the
plaintiffs sought. Pullman, 312 U.S. at 500-501; Burford,
319 U.S. at 332-334.

However, “{tjhis link between equity and the Court's
rules [concerning the various abstention doctrines} was ten-
uous even in the early abstention cases. As the rules have
evolved, the Court has relied less and less on equity and
instead has stressed values of federalism as the basis of
these doctrines. Wells, Why Professor Redish Is Wrong
About Abstention, 19 Georcia L. Rev. 1097, 1108 (1985).
For example, this Court, upon at least two occasions, or-
dered Pullman abstention where plaintiffs sought only

and not .njunctive relief. Fornaris v. Ridge Tool
Co., 400 U.S. 41 (1970); United Cas Pipe Line Co. v. Ideal
Cement Co., 369 U.S. 134 (1962). In Louisiana Power &
Light Co. v. City of Thibodaux, 360 U.S. 25 (1959), this
Court met the contention that the absence of a request
for injunctive relief distinguished the case from Pullman
by pointing out that the issues of federalism were just as
significant in that case as in cases involving requests for
injunctions. Jd. at 28. In Alabama Public Service Comm'n
v. Southern Railway, 341 U.S. 341 (1951), this Court in-
voked Burford abstention and premised its holding pri-

34

marily upon the “rule of comity.” Jd. at 350. In Middiesex
County Ethics Committee v. Garden State Bar Ass'n, 457
U.S. 423, 431-432 (1982), this Court’s invocation of Younger
abstention rested exclusively upon considerations of com-
ity, and not equitable restraint. Similarly, in Fair Assess-
ment in Real Estate Ass'n v. iJeNary, supra, this Court's
invocation of abstention did at all rely upon equitable

inciples. Rather, this Court relied upon the principle of
comity.” 454 U.S. at 107, 110, 111, 113, 116. This Court
emphasized that the McNary principle was not limited to
tax cases (the McNary plaintiffs had sued for the collection
of state taxes already paid) by quoting extensively from
Younger, where comity received ſiſts fullest articulation.”
Id. at 111-112.

Consistent with this reasoning, and as noted by the
district court in this case (App. C to the Petition for a
Writ of Certiorari, p. 14a), many lower courts have held
that Younger applies in damages cases. Mann v. Jett, 781
F.2d 1448 (9th Cir. 1986); McCurry v. Allen, 606 F.2d
795, 799 (8th Cir. 1979) (staying the action for money
damages), rev'd. on other grounds, 449 U.S. 90 (1980),
Martin v. Merola, 532 F.2d 191, 195 (2nd Cir.
1976\Xdismissing the complaint for damages but allowing
plaintiffs to refile after the state proceedings were accom-
plished); Guerro v. Mulhearn, 498 F.2d 1249, 1253 (Ist
Cir. 1974Xwhether to dismiss the damages claim depends
upon the facts of the case); Conover v. Montemuro, 477
F.2d 1073, 1080 (3rd Cir. 1973); accord Sartin v. Com-
missioner of Public Safety of the State of Minnesota, 535
F.2d 430, 433-434 (8th Cir. 1976); , Carras v. Williams,

ages portion of suit is inappropriate lin the absence of
a vital state interest in the underlying proceeding’).
Nevertheless, the question remains whether application of
Younger afforded the district court discretion to dismiss,
rather than to stay.

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37

become enmeshed in the job of supervising the reasonable
progress of this very complex criminal investigation. As
time proceeded, respondents would surely have returned
to the district court seeking a lifting of the stay. All of
the choices confronting the district court judge, at that
point, would have had a serious impact upon the interest
of comity.

The district court judge could have deferred to the state
judge, who was already familiar with the charges, having
issued the warrant, ordered the sealing of the seized doc-
uments and reviewed respondents’ motion to quash two
of the subpoenae. See Moses H. Cone, 460 U.S. at 15, 21
(one factor in the district court’s decision to defer to par-
allel state litigation is which court first assumed jurisdic-
tion over the property). However, deference to the state
judge would not be completely satisfactory. Since the civil
complaint would be in the federal court, rather than the
state court, the state judge’s supervision of the grand jury
investigation would not have included consideration of the
complaint. A judge, in considering the civil complaint,
might, for example, conclude that without unduly harming
the state’s criminal investigation, the complaint could pro-
ceed at least through certain limited stages of discovery,
so long as protective orders fully shielded the underlying
substance of the grand jury investigation. The district court
judge might thus choose to determine for himself how the
civil litigation should proceed, but it is obvious that that
determination, no matter how carefully it was made and
how fully it was accompanied by protective orders limiting
discovery and other mischief by which plaintiffs could
impede upon the criminal investigation, could adversely
affect the criminal investigation and negatively impact upon
the interest of comity.

Moreover, the mere process of the determination would
have a negative impact upon the interest of comity. The
district court judge’s investigation of the state grand jury’s
progress would necessitate intrusion into the state grand

38

jury process and might necessitate testimony from pros-
ecutors and, possibly, witnesses. If that testimony were
available to the plaintiffs, it might ruin the state’s criminal
investigation. More likely the judge would conduct his in-
vestigation ex parte, and would foreclose the plaintiffs from
obtaining it. In a complex case such as this, the ex porte
nature of the proceeding would enhance the district court
judge’s already difficult task, and it might enhance the
district court’s burden upon the state prosecutors as they
attempted to apprise the judge concerning the details of
the criminal investigation. All in all, the district court judge
was well within his discretion to conclude that the entire
complaint should be pursued in the state courts, where a
state judge was already assigned to supervise the grand
jury and, if necessary, to determine its progress.

Other factors peculiar to this case favor dismissal rather
than a stay. A significant portion of respondents’ com-
plaint sought damages from state officials, acting under
color of state law, for their alleged commission of state
torts. These claims are foreclosed from adjudication in the
federal courts by virtue of the doctrine of Pennhurst State
School Hosp. v. Hilderman, 465 U.S. 89 (1984). Under the
Pennhurst doctrine ‘‘a plaintiff with both state and federal
claims against a state official no longer is able to seek
relief for those claims in federal court. Blackmun, Section
1983 and Federal Protection of Individual Rights—Will the
Statute Remain Alive or Fade Away?, 60 N.Y. UNIV. L.
REV. 1. 24 (1985). Since respondents were able to obtain
at most partial relief in the federal courts, it was appro-
priate for the distriet eourt to send them into the state
court system where they could obtain full relief.

In this regard, the second circuit has held that a district
court should normally not abstain because of parallel state
court litigation if the plaintiff raises a claim for which the
federal courts have exclusive jurisdiction. Andrea Theatres,
Inc. v. Theatre Confections, Inc., 787 F.2d 59, 63 (2nd Cir.
1986). This case essentially presents the reverse of the

39

Andrea doctrine. That is, a federal court is well advised
to abstain if the plaintiff raises a claim for which the state
courts have exclusive jurisdiction. “Ordinarily it would be
uneconomical as well as vexatious for a federal court to
proceed ... where another suit is pending in a state court
presenting the same issues, not governed by federal law,
between the same parties.” Brillhart v. Excess Ins. Co. of
America, 316 U.S. 491, 495 (1942).

Of course, if respondents had been willing to abandon
their state tort claims, the situation might have been dif-
ferent. However, these respondents have shown no incli-
nation to abandon those claims. Rather, respondents have
continued to press these claims as they argued in the
district court, in the circuit court, and apparently, in this
Court that the Pennhurst doctrine does not foreclose ad-
judication of their state tort claims. See Respondents’ Brief
in Opposition to the Petitioner’s Petition for a Writ of
Certiorari, p. 23 n.5. However, respondents are wrong. As
this Court noted in Pennhurst, it is difficult to think of
a greater intrusion on state sovereignty than when a fed-
eral court instructs state officials on how to conform their
conduct to state law. Pennhurst, 465 U.S. at 106. Accord,
Society for Good Will to Retarded Children v. Cuomo, 737
F.2d 1239, 1248 (2d Cir. 1984); Rogers v. Okin, 738 F.2d
1, 3 (Ist Cir. 1984).

Respondents’ confusion concerning the Pennhurst doc-
trine might explain the confusion of the majority opinion
in the circuit court concerning petitioners’ reliance upon
the Pennhurst doctrine. That opinion erroneously asserted
that .

[t]he defendants’ [petitioners herein] principal
contention is that the eleventh amendment, as
interpreted by the Supreme Court in Pennhurst
State School & Hospital v. Halderman, 465 U.S.
89, 97-124 (1984), bars the district courts from
awarding damages against them individually, even

40

with respect to alleged violations of the Federal
Constitution. The state officials neither cite any
authority nor proffer any credible argument for
such an extreme position, and we reject it.

(App. D to the Petition for a Writ of Certiorari, p. 26a).
The circuit court may be correct that this position is ex-
treme, but the court is wrong to claim that petitioners
have ever advanced it. Petitioners did not advance this
construction of the Pennhurst opinion in their briefs to
the district or circuit court. See Brief in Support of Motion
to Dismiss Made on Behalf of the Defendants, filed in the
district court on February 1, 1985, p. 17 et seq.; Brief on
Behalf of Appellees, filed in the circuit court on January
3, 1986, p. 40. Petitioners did not advance this construc-
tion in any oral argument before either court. Rather,
petitioners have consistently argued, and continue to ar-
gue, that Pennhurst bars federal adjudication only of
respondents’ state tort claims.

Nevertheless, petitioners have also argued, and continue
to argue, that respondents’ insistence upon pressing these
claims means that all claims should be adjudicated in the
only court which has jurisdiction over all claims, namely
the state court. This will nurture the “avoidance of pie-
cemeal litigation.“ Moses H. Cone, 460 U.S. at 19. As
respondents themselves noted in their argument (albeit in
a slightly different context) before the state judge, Judge
Lenox, the district court’s retention of the federal claim
would result in “duplicitous litigation, would fail to con-
stitute ‘‘an efficient use of judicial resources of either sys-
tem“ (JA 74), would strain the interest of comity,” and
would negate the wisdom “‘of avoiding piecemeal and rep-
etitious litigation.” (JA 75). Thus, it is somewhat unfor-
tunate that respondents have resisted the district court's
proper efforts to thrust them into one forum, the state
court system.

41

There is yet another reason, somewhat peculiar to this
case, which supported the district court’s decision to dis-
miss, rather than to stay. Respondents’ claims for damages
are “inextricably intertwined’’ with state law claims. See
District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 482-483 n.16 (1983). For example, Count I of
respondents’ complaint seeks damages for an illegal search
and seizure. (JA 16-22). Count II seek damages because
the search was “unlawfully motivated.” (JA 23). This por-
tion of Count II should not survive a dismissal motion
under Harlow v. Fitzgerald, 457 U.S. 800 (1982). More to
the point, both causes of action (if, in fact, the allegations
state causes of action) are largely premised upon
respondents’ contention that petitioners did several things
which were bad. However, these bad actions were pri-
marily violations of state law and not federal law.

One of respondents’ allegations is that petitioners re-
moved documents protected by the attorney-client or
attorney work product privilege. The attorney-client and
attorney work product privileges are essentially creatures
of state law. It should be noted that at the time of the
execution of the search, none of the respondents was under
arrest, and none had been charged with or indicted for
criminal conduct. Thus the right to counsel afforded by
the sixth amendment had not yet attached. Moore v. II.
linois, 434 U.S. 220 (1977). Not only does this render
problematic the claim in Count III that respondents were
denied their right to counsel, but it also makes clear that
the attorney-client and attorney work product portion of
Count I, incorporated by reference also into Count II,
rested exclusively upon state law.

Respondents also alleged that the search was illegal be-
cause they were not given a complete and proper return
and inventory as is required under the laws of the State
of New Jersey. (JA 20, Count I, para. 11). They further
complained that petitioners brought a blank subpoena with
them which they (and not an attorney) filled in as the

42

search progressed. (Jd. para. 9). Whether the return and
invento y were adequate and whether persons who are not
attorneys may draft subpoenae are obviously questions of
state law which are inextricably intertwined with
— — complaint.

quash a served subpoena, are further implicated in
respondents’ complaint. Count I alleged that petitioners
removed documents which were beyond the scope of the
warrant. In the proceedings before Judge Lenox,
respondents charged that petitioners had removed docu-
ments predating September 8, 1978, and the search war-
rant covered only documents after this date. (JA 70).
However, at the time of the warrant’s execution,
petitioners served respondents with subpoenae demanding
documents which predated September 8, 1978. Respondents
did not move to quash these subpoenae; rather they com-
plied by noting that many of the requested documents
were already in the state’s possession, having been seized
at the time of the warrant’s execution, and by supplying
additional documents which were not seized. Thus, the
validity of the subpoenae under state law, and the con-
sequences of respondents’ failure to move to quash, be-
come a significant question with respect to the damages
ge eee ee
valid, then respondents’ failure to on Se wy:
constitute either a waiver of their objection to the

illegal seizure or a limitation on their damages claim to
the period between October 5, 1984, — agg
rant was executed, and the subsequent date when
respondents formally complied with the subpoenae.

In addition, petitioners have alleged (JA 60), and
respondents have apparently agreed (JA 75), that some of
the “illegally seized” documents were contained in a file
marked “Grand Jury,” which petitioners sealed upon sei-
zure at the time of the warrant’s execution so that a judge

and Gallagher v. Krut, 744 F.2d 955, 962 (3rd Cir. 1984).
In some sense, this procedure was employed in this case

should be retained by the state and what should be re-
turned to respondents. See Parratt v. Taylor, 451 U.S.
527 (1981); Hudson v. Palmer, 468 U.S. 517 (1984). Again,
this should be done in a state forum because the criminal

plainants in a 42 U.S.C. sec. 1983 action who seek the
return of property seized pursuant to a warrant, but who

5

44

ancillary claim for damages when it properly chose to ab-
stain from the equitable portion of the 42 U.S.C. sec. 1

Respectfully submitted,

W. Cary EDWarps-

Attorney General of New Jersey
Attorney for Petitioners

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1124%3A07. Public record. Not legal advice.