Amicus Curiae Brief — Deakins v. Monaghan

No. 86-890

IN THI

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

co-ordinating 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 ¢ riminal Justice,

Petitioners,

VS.

WILLIAM MONAGHAN, THEODORE DESANTIS, JOHN JAMES, FOUNDA

TIONS & STRUCTURES, INC., WILLIAM E. MONAGHAN ASSOCIATES,

‘ S

ind MJD CONSTRUCTION COMPANY, Ni Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES COUR]

OF APPEALS FOR THE THIRD CIRCUT!

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBER-

TIES UNION FOUNDATION AND ACLU OF NEW JERSEY

IN SUPPORT OF RESPONDENTS

JOHN A. POWELI FRANK ASKIN

DAVID B. GOLDSTEIN Counsel of Record

American Civil Liberties Union Foundation Constitutional Litigation Clinic

132 West 43d Street Rutgers Law School

New York, New York 10036 1S Washington Street

(212) 944-9800 Newark. New Jersey 07102

(201) 648-5687

ERIC NEISSER

American Civil Liberties Union

of New Jersey

38 Walnut Street

Newark. New Jersey 07102

(201) 642-2086

Attorneys for Amicus Curiae

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Come now the American Civil Liberties

Union Foundation (ACLU) and the American

Civil Liberties Union of New Jersey

(ACLU-NJ) and move for leave to file the

attached brief amicus curiae in support of

Respondents. Pursuant to Supreme Court

Rule 36, permission to file the brief was

sought from both parties. Neither party

has consented.

The ACLU is a nationwide, non-profit,

non-partisan organization of more than

250,000 members dedicated to defending the

principles embodied in the Bill of Rights.

The ACLU-NJ, with more than 8,000 members,

is one of its statewide affiliates.

Both organizations have appeared

frequently as amicus curiae before this

Court.

This case presents important issues

ii

related to the right of persons deprived

of constitutional rights hy state actors,

to seek redress in a federal forum

pursuant to 42 U.S.C. §1983. The ACLU

opposes the use of doctrines such as

exhaustion, comity, and abstention to deny

litigants access to a federal forum for

such claims.

Amici believe that the decision of

the Third Circuit below should be affirmed

for the policy reasons enumerated in the

attached brief. Amici provide empirical

data in support of the contention that

federal courts are often more responsive,

or thought to be more responsive, to

Claims that allege violations of

constitutional rights than are State fora.

Finally, amici urge that a significant

quantum of federal supervision is

necessary if the substantive rights which

§1983 seeks to safeguard are to enjoy

iii

widespread and meaningful protection.

The ACLU and ACLU-NJ therefore

respectfully move for leave to file the

attached brief amicus curiae in order to

present this Court with their views on the

need to preserve federal jurisdiction in

cases alleging violations of

constitutional

§1983.

Date: May 1987

rights under 42 U.S.C.

Respectfully submitted,

aS

FRANK ASKIN

Constitutional Litigation

Clinic

Rutgers Law School

15 Washington Street

Newark, NJ 07102

201/648-5687

Counsel of Record for

Amicus Curiae

iv

TABLE OF CONTENTS

See Ge APEC MEEENO 66666006 scdecben vi

Somes GF BT scsccceces ee se 1

STATEMENT OF THE CASE ........ cccccceces 1

SUMMARY OF ARGUMENT .......... ccccccce 4

ARGUMENT) ...cceees CCC CeCe eeeccoeeceocos 8

I IN THE ABSENCE OF NARROWLY

PROSCRIBED "EXCEPTIONAL

CIRCUMSTANCES" LITIGANTS

HAVE THE RIGHT TO CHOOSE

FEDERAL COURT ADJUDICATION OF

CLAIMS FOR VIOLATION OF

FEDERAL CONSTITUTIONAL

REGED Scccccscseenecesesececce 8

II THE NEED FOR A FEDERAL FORUM

REMAINS AS COMPELLING TODAY

AS IT WAS IN 1871 AND IN 1961,

WHEN MONROE v. PAPE WAS

DOSEN SOS CECE SOSEESSO SOOO CC. 13

A. Reasons Why Litigants

Might Choose Federal Over

State Courts for

Adjudication of Their

PORBOERS ChOiGBe ccccccccccce 16

Page

l. State trial courts tend

to be less responsive to,

and have less expertise in,

federal law claims ...... 16

2. The problems associated

with State trial court

adjudication of federal

claims are not mitigated

by the Appellate Process 24

B. Reasons for the Primary

Jurisdiction of Federal Courts

As Adjudicators of Federal

ClaimS ccccccvccccsccscccces 31

II! THE COURT OF APPEALS WAS CORRECT

IN HOLDING THAT THE DISTRICT

COURT MISAPPLIED ABSTENTION

DOCTRINE NOT ONLY AS TO

PLAINTIFFS' CLAIMS FOR DAMAGES

BUT AS TO THEIR CLAIMS FOR

INJUNCTIVE RELIEF AS WELL .«eees 33

CONCLUSION) ccccccccccccevceeseseseeeeses 45

vi

TABLE OF AUTHORITIES

Page

CASES

Allen v. McCurry,

SSr GeGe FS (A9G8) ccccccces 6,14,29,

Colorado River Water Conservation

Dist. v. United States,

424 U.S. 800 (1976)......... 4,31,

Doran v. Salem Inn., Inc.,

422 U.S. 922 (1975)......... 35,

England v. Louisiana Bd. of Medical

Examiners,

375 U.S. 411 (1964)......... 30,

Ex parte Bain,

ON Ey

Fair Assessment in Real Estate

Ass'n v. McNary,

454 U.S. 100 (1981) ....... 13,

Gibson v. Berryhill,

Sik U.8. 566 (1973) cccccccs

Harlow v. Fitzgerald,

See Dele GE Chee ccceccecs

Hawaii Housin Authority v. Midkiff,

467 U.S. 229 (1984)... cccce ;

Hicks v. Miranda,

422 U.S. 332 (1975) ....... 3,36,41,

31

32

36

31

40

17

41

16

42

42

vii

Page

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975).-eeeeees 35

In Re Neff,

206 F.2d 149 (3d Cir.

WSS) ccccccccccesesecccseess 40

Juidice v. Vail,

430 U.S. 327 (1977). eeeeees 35

take Carriers Assn. v. MacMullan,

406 U.S. 498 (1972)..eeee-- 38

McNeese v. Board of Education,

373 U.S. 668 (1963) .w.eeeees 10,11

Middlesex County Ethics Committee

v. Garden State Bar Association,

457 U.S 423 (1982) ..ceeees 43

Miara v. Warren City Bord of

Education,

465 U.S. 75 (1984) .eececececes 31

Mitchum v. Foster,

407 U.S. 225 (1972). eeeees 4,14,17,24

Monroe v. Pape,

365 U.S. 167 (1961)....-. 4,7,9,10,24,37

Monell v. Dept. of Social Services

of New York City,

436 U.S. 658 (1958) «.-eeeeee 16

Mt. Healthy Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) .--eeeee 25

viii

Page

Pennzoil Co. v. Texaco, Inc.,

55 U.S.L.W. 4457

Se Bs SUED cecdccsceccce 2,34,37

Rosetty v. Hamilton Township

Committee,

82 N.J. Super. 340, 197 A.2d

600 (Super. Ct., Law

Dewees Be o66s6e6eeescccece 39

Stapleton v. Mitchell,

60 F. Supp. 51 (D. Kan.,

1945), appeal dismissed

Pursuant to stipulation,

BaD Goto Geweseceececacecece 11,12

Stefanelli v. Minard,

pa Gea Bae See EPecocecececs 33

Steffel v. Thompson,

S23 GoBe GSS CAST). cccecece 5,14,24,36,38

Stone v. Powell,

428 U.S. 465 (1976) ........ 29

Townsénd yv. Sain,

372 U.S. 293 (1963)........ 31

Trainor yv. Hernandez,

SSE Gee GEG CASTIT) ccccccece 35,41

Village of Arlington Heights

v. Metropolitan Housing Div Corp.,

S2e U.B. 254 (ASTI dccvccccse 25

Washington yv. Davis, 5

S20 GU.8. 2a CATE). cccccce * 25

ix

Page

Webb v. Bd. of Education

of Dyer County,

471 U.S. 234 (1985) cccccccccces 44

Younger v. Harris,

401 U.S. 37 (19T7L)cccccceccs 5,6,29,30,33,

34,35,37,41,42

Zwickler v. Koota,

389 U.S. 241 (1967)... eees 8,9,36,37

OTHER AUTHORITIES

Adams & Travis, The Supreme Court's

Shell Game: The Confusion of Jurisdiction

& Substantive Rights in 1983 Litigation,

24 B.C.L. Rev. 635 (1983)......20e- 8

ALI, Study of the Division of

Jurisdiction Between State and

Federal Courts (1969)....... 17,18,20,30

Chevigny, Section 1983 Jurisdiction:

A Reply, 83 Harv. L. Rev. 1352

(DSTO) cccccccccccecceceseeeessecces 19,20

Cong. Glove, 42nd Cong., lst Sess.

(WD Apc cccccccccecesceeseseseeccoscs 14

(1975) cc cccccnncenceeeeeseseesseces 25,26

Frankfurter & Landis, The Business of

the Supreme Court:A Study in the

Federal Judicial System (1928)..... 4

Page

Marvell, The Rationales for Federal

: rion Jurisdiction: An Empirical

Examination of Students' Rights

Litigation, 1984 Wisc. L. Rev.

| eT ar) a

Mishkin, The Federal "Question"

he Dj ; ;

53 Colum. L. Rev. 157 (1953)........ 26

Nahmod, Civil Rights and Civil

“

Liberties Litigation: The I.aw of 1983,

BOSeeee SebS Taree esoeeeseceacece ee 23

Neuborne, The Myth of Parity,

90 Harv. L. Rev. 1105 (1977)....... 18,25, 26

Note, The Supreme Court - 1985 Term:

- IV, The Statisti

100 Harv. L. Rev. 304 (1986) ....... 30

Redish, Federal Jurisdiction:

Tensions In the Allocation of

Judicial Power (1980).......cccccees 19,26

Solimine and Walker, Constitutional

Liti ion ij d nd ts:

An Empirical Anal is of Judicial Parity,

10 Hastings Const. L.Q. 213 (1983)... 26,27,28

Whitman, Constitutional Torts,

79 Bich. be BROW. 3S CASGS) ccccccccce 19

"Wilentz Residency May Not End Debate,”

119 N.J.L.J. 539 (Apr. 2, 1987) ... 18

Page

STATUTES AND RULES

42 U.S.C. S19BS cee ecereeessess 4,8,13,14

42 U.S.C. $1988 «eeeees weececececs 44

28 U.S.C. $1343 coe eeeeeeececes 4,8

New Jersey Court Rule 3:5-7 «..««-- 42,44

.

New Jersey Courr Rule 3:6 «««-«- 40,41

INTEREST OF AMICI

The interest of the Amici is fully

set forth in the motion for leave to file

Brief Amicus Curiae.

STATEMENT OF THE CASE

Amici rely upon the Statement of the

Case as set forth in the Respondents’

brief, but wish to emphasize those facts

which trigger their concern for the

integrity and autonomy of the federal

system should Petitioners’ arguments be

upheld.

According to the factual allegations

of the federal complaint which must be

accepted as true for purposes of this

proceeding, Respondents were the victims

of an unconstitutional search on October

5, 1984. They filed suit in federal court

to vindicate their rights under the Fourth

and Fourteenth Amendments to the United

-2-

States Constitution to be free from

unreasonable searches and seizures and

deprivation of property withou due

process of law, seeking both monetary

damages and the return of their unlawfully

seized property.

As a result of the District Court's

action dismissing, in toto, their

complaint, not only is Respondents’

property still being withheld some 2 1/2

years later, but they also are without any

prospect of financial vindication for the

constitutional wrongs done to them.

Indeed, one of the individual Respondcents,

John James, who has not been charged with

any Criminal wrongdoing by the State of

New Jersey, even at this late date,! is

4 In its most recent decision dealing with

abstention, this Court noted that on appeal it

must address the issues as they existed at the

time the district court was considering them.

-, 55 U.S.L.W. 4457,

4461 (April 6, 1987)("In this opinion, we have

addressed the situation that existed on the

-~ 3-

not a party to any proceeding to which he

might present his federal constitutional

grievances.

morning of December 10, 1985, when this case was

filed in the United States District Court for

the Southern District of New York.”") Although

subsequent events might affect the district

court's jurisdiction to adjudicate, see Hicks Vv.

Miranda, 422 U.S. 332 (1975) (federal plaintiffs

indicted prior to any proceedings of substance

in the federal court), no such relevant events

occurred in this case prior to the District

Court's dismissal of plaintiffs’ complaint.

-4-

SUMMARY OF ARGUMENT

The individual's right of access to

federal court for the Purpose of seeking

relief from unconstitutional state action

must be reaffirmed. The 42nd Congress, in

enacting what is today 42 U.S.C. $1983 and

its jurisdictional counterpart, 28 U.S.C.

§1343(3), intended to provide a federal

cause of action in federal court for state

violations of individual rights

irrespective of the availability of

alternative state fora and state remedies,

Monroe v. Pape, 365 U.S. 167 (1961),

including actions for injunctive relief,

Mitchum v. Foster, 407 U.S. 225 (1972).

The individual's right to choose a

federal forum for redress of such

grievances may be denied only under

"exceptional circumstances" where an

important countervailing interest would be

served. Colorado River Water Conservation

-5-

Dist. v. United States, 424 U.S. 800, 813

(1976).

The District Court's approach to this

case, which is now urged by Petitioners,

ignores these celebrated and essential

principles and threatens their vitality.

In Younger v. Harris, 401 U.S. 37

(1971), and its progeny, this Court has

carved an exception to the basic principle

of access to a federal forum for

injunctive actions that would interfere

with state judicial proceedings already

pending at the time of initiation of the

federal suit and in which the federal

claims could be litigated. See Steffel v.

Thompson, 415 U.S. 452 (1971). But

barring such “exceptional circumstances,"

the individual's right of access to a

federal forum must be preserved. Amici do

not challenge here the Younger exception.

But because determinations in state

-6-

proceedings may bar subsequent federal

damage actions as well, Allen v. McCurry,

449 U.S. 90 (1980), it is vital that the

Younger exception be confined to its

federalist purpose -- of avoiding

interference with on-going state judicial

proceedings.

A grand jury is not a judicial

proceeding; it is an ex parte

investigating body of citizens guided by a

prosecutor. There are no parties before a

grand jury. It does not become a judicial

proceeding because a judge signs a warrant

Or is assigned to supervise its selection

Or give it legal instructions. Moreover,

the opportunity under state law for an

aggrieved citizen to initiate a separate

proceeding before a judge has no bearing

on the Younger status of a grand jury.

Amici challenge Petitioners' attempt

to paint this as a Younger v. Harris case.

~E

This is in reality a Monroe v. Pape case.

Should Petitioners prevail, it would be

the case in which the Younger exception

might swallow the Monroe rule.

-8-

ARGUMENT

I. IN THE ABSENCE OF NARROWLY PROSCRIBED

"EXCEPTIONAL CIRCUMSTANCES, *

LITIGANTS HAVE THE RIGHT TO CHOOSE

FEDERAL COURT ADJUDICATION OF CLAIMS

FOR VIOLATION OF FEDERAL

CONSTITUTIONAL RIGHTS

Congress intended the Civil Rights

Act of 1871, now 42 U.S.C. §1983, to

provide a private federal judicial remedy

to anyone whose constitutional rights were

being violated by a person acting "under

color of any statute, ordinance,

regulation, custom or usage, of any State

--" 42 U.S.C. §1983; and assigned

jurisdiction over such claims to the

federal district courts . Zwickler Vv.

Koota, 389 U.S. 241, 247 (1967). See Adams

& Travis, The Supreme Court's Shell Game:

The Confusion of Jurisdiction &

Substantive Rights in 1983 Litigation, 24

B.C.L. Rev. 635, 639-41 (1983). The

Federal courts were to be used as "the

Primary and powerful reliances for

-9-

vindicating every right given by the

Constitution, the laws, and treaties of

the United States.” Zwickler v. K ay

supra, 389 U.S. at 247 (emphasis added)

(quoting Frankfurter & Landis, The

Business of the Supreme Court: A Study in

the Federa udicial System 65 (1928)).

In Monroe vy. Pape, supra, this Court

recognized that in enacting the Civil

Rights Act, Congress intended to provide

citizens with the federal right to choose

a federal forum irrespective of the

availability of State remedies for the

same wrong. The Court's opinion stated:

It is abundantly clear that one

reason the legislation was passed

was to afford a federal right in

federal courts because, by reason of

prejudice, passion, neglect,

intolerance or otherwise, state laws

might not be enforced and claims of

citizens to the enjoyment of

privileges, rights and immunities

guaranteed by the Fourteenth

Amendment might be denied by state

agencies.

365 U.S. at 180 (emphasis added). And

-10-

several pages later, the Court added: "The

Federal remedy is supplementary to the

State remedy, and the latter need not be

first sought and refused before the

federal one is invoked.” Id. at 183.

Justice Harlan, with whom Justice

Stewart joined, concurring, said that the

Statute reflected the legislature's view

that "... a deprivation of a

constitutional right is significantly

different from and more serious than a

violation of a state right and therefore

deserves a different remedy even though

the same act may constitute both a state

tort and the deprivation of a

constitutional right." Id. at 196.

The Court reiterated its Support for

this construction of §1983 in McNeese vy.

Board of Education, 373 U.S. 668 (1963),

where §1983 was invoked to combat a

discriminatory policy of segregating black

-ll-

and white school children in Illinois.

The Court held that the purpose of §1983

would be defeated if petitioners were

forced to litigate in the state courts

first before being permitted access to the

federal system. Id. at 672. The Court

held that federal courts were created to

enforce federal rights, and unless an

"underlying issue of state law control([s]

thle] litigation," the federal courts

should always exercise their jurisdiction

to decide federal questions. Id. at 673-

74. Finally, the Court observed: "We like

to believe that wherever the Federal

courts sit, human rights under the Federal

Constitution are always a proper subject

for adjudication, and that we have not the

right to decline the exercise of that

jurisdiction simply because the rights

asserted may be adjudicated in some other

forum." Id. at 674 n.6 (quoting Stapleton

-12-

v. Mitch , 60 F. Supp. 51, 55 (D. Kan.,

1945), dismi d n

Stipulation, 326 U.S. 690).

In the instant case, the Court of

Appeals acted properly to protect

plaintiffs' Congressionally-conferred

right to choose a federal forum. The

District Court provided no explanation for

its extraordinary action in not only

abstaining from deciding plaintiffs'

equitable claims (as to which, see Point

III, infra), but also dismissing their

Claims for damages. Petitioners attempt

to explain that action with the

observation that "[t]he courts of New

Jersey provide a forum for suits premised

upon 42 U.S.C. §1983, and will award

attorneys’ fees to successful plaintiffs."

(Brief of Petitioners, at 32.) Under

Petitioners’ view, plaintiffs not only had

to forego their right to a federal forum

-l13-

on their claims for return of property,

but had to institute state court actions

in order to pursue their claims for legal

relief under $1983. Such a theory ignores

the Congressional mandate contained in the

Civil Rights Act? as well as the

principles enunciated by this Court since

Monroe v. Pape to implement that mandate.

Il. THE NEED FOR A FEDERAL FORUM REMAINS

AS COMPELLING TODAY AS IT WAS IN

1871 AND IN 1961, WHEN MONROE v. PAPE

WAS DECIDED

Congress provided plaintiffs the

option of an original federal forum for

vindication of constitutional rights,

2 As four members of this Court noted

in Fair Assessment in Real Estate

Association v. McNary, 454 U.S. 100, 117

(1981): "Subject only to constitutional

constraints, it is exclusively Congress’

responsibility to determine the

jurisdiction of the federal courts,” while

it is up to the federal courts to exercise

that “assigned jurisdiction in accordance

with established principles respecting the

prudent exercise of equitable power."

(Opinion of Justice Brennan, with whom

Justices Marshall, Stevens and O'Connor

joined, concurring in the judgment.)

~14-

partly out of concern for the adequacy of

state courts as forums for such claims.3

That concern is still valid today.

Studies indicate that, to a

meaningful degree, state trial judges are,

Or are perceived to be, less responsive to

federal law claims than are federal judges

and lack the expertise of federal judges

in interpreting and applying federal law.

3 The legislative debates leading to

the passage of §1983's predecessor are

replete with references to the special

role of federal courts to protect

constitutional rights. See Steffel vy.

Thompson, 415 U.S. 452, 463-68 (1974).

Representative Coburn stated most

eloquently: "The United States Courts are

further above mere local influence than

the county courts; their judges can act

with more independence; cannot be put

under terror, as local judges can; their

sympathies are not so nearly identified

with those of the vicinage ... we believe

we can trust our United States courts, and

we propose to do so." Cong. Globe, 42nd

Cong., lst Sess., 460 (1871). See also

, 449 U.S. 90, 106-10

nn.3-9 (1980) (Blackmun, J., with whom

Justice Brennan and Justice Marshall,

joined, dissenting); Mi v

407 U.S. 225, 238-42 nn. 28-32 (1972).

-15-

The problem is not alleviated by

state appellate review since state

appellate judges may be subject to the

same parochial pressures as trial judges

and have only limited authority to review

fact findings. Nor is the problem reduced

by the possibility of review by this

Court. Such review, based on a

discretionary writ of certiorari, 1s

seldom granted and, even when granted, is

limited by the state trial judge's

findings of fact.

Conversely, the right of access to a

federal trial court provides an impartial

forum for the construction of a factual

rece rd.4 Further, it offers access to

a It is, of course, true that,

depending on the litigational

circumstances, many factual decisions will

be made by juries, be it in federal or

state court. However, even jury decisions

are highly controlled by judicial

oversight of the discovery process and the

presentation of evidence, jury comment and

instruction, and the power to grant

-~16-

greater expertise in questions of federal

law, and greater opportunity for federal

review of trial court determinations.

While the exact contours of the perceived

and actual distinctions between the

federal and state courts with reocard to

constitutional adjudication may vary among

jurisdictions, the constitutional Claimant

is entitled to choose the forum in which

to litigate the claim absent exceptional

Circumstances.

A. Reasons Why Litigants Might

Choose Federal Over State

Courts for Adjudication of

Their Federal Claims

1. State trial courts tend to

be less responsive to, and

have less expertise in,

federal law claims

summary judgment and direct verdicts.

Moreover, in constitutional] litigation,

outcomes are often determined by complex

doctrines of liability and immunity,

involving mixed questions of law and fact

relatively unique to federal law. See,

€&:de, Monell vy. Dept. of Social Services

of New York City, 436 U.S. 658 (1978); and

Harlow vy. Pitzgerald

, 457 U.S. 800 (1982).

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-~18-

serious concern in many jurisdictions.

ALI, Study of the Division of Jurisdiction

Between State and Federal Courts, 167-68

(1969) (hereinafter cited as ALI Study).

The perception of state court bias

against individual federal rights is

grounded in part in the close relationship

of state trial judges to countervailing

State or local interests. State judges

who must stand for re-election are subject

to majoritarian pressure when deciding

public issues.5 Neuborne, The Myth of

Parity, 90 Harv. L. Rev. 1105, 1127-28

> We refer here to general perceptions

and common differences between federal and

state courts. In New Jersey, e.g., where

this case originated, state judges are

appointed, subject to tenured

reappointment after an initial 7-year

term. The political pressures posed by

the reappointment process are similar to

those of electoral pressures in other

States, as illustrated by the recent

reappointment of Chief Justice Robert

Wilentz by a vote of 21-19 in the New

Jersey Senate. See "Wilentz Residency May

Not End Debate,” 119 N.J.L.J. 539 (April

2, 1987).

-19-

(1977) (hereinafter cited as Neuborne).

See also M. Redish, Federal Jurisdiction:

Tensions In the Allocation of Judicial

Power 2-3 (1980) (hereinafter cited as

Redish). State judges confronted with

federal law claims against other state

officials are more likely to feel

protective of such defendants. Whitman,

onstitution Torts, 79 Mich. L. Rev. 5,

23-24 (1980).

While federal judges must also often

balance the interests of the state against

the rights of an individual when the two

conflict, they can do so from a more

impartial stance. "Without a direct,

ongoing role in the state activities in

question, the federal court can weigh the

competing interests without having to

leave one eye open to the potential

effects of a decision on its role in the

process." Chevigny, Section 1983

-20-

Jurisdiction: A Reply, 83 Harv. L. Rev.

1352, 1358-60 (1970) (hereinafter cited as

Chevigny).

A second reason that constitutional

Claimants may prefer a federal forum is

that "federal courts have acquired a

considerable expertness in the

interpretation and application of federal

law..." ALI Study at 164-65. State

courts cannot match this expertise because

State trial judges try predominantly

State cases and must concentrate

on incorporating superior court

rulinaos into their legal lexicon.

Moreover, those federal questions

that they do hear ascend through

so many levels of state appellate

review before reaching the United

States Supreme Court as to insulate

the trial court effectively from

direct federal review. This

combination of insulation and infre-

quency limits the state judge's

incentive to familiarize himself with

the intricacies of federal

decisions.

Chevigny, supra at 1357.

These conclusions are supported by

data from a recent study measuring

=-2l-

lawyers' attitudes in the choice of forum

for constitutional litigation. See

Marvell, The Rationales for Federal

Question Jurisdiction: An Empirical

Examination of Students’ Rights

Litigation, 1984 Wisc. L. Rev. 1315

(hereinafter cited as Marvell).

Marvell surveyed lawyers' attitudes

toward the choice of forum for a single

type of federal law, students’ rights

litigation. More than 1,300 interviews

were conducted with lawyers involved in

students'rights litigation during a four-

year period, 1977-81. Marvell, Supra at

1343-52.

Of the plaintiff lawyers who had

filed in federal rather than state court,

over half gave a reason related to their

perceptions of the sympathies and

philosophies of the judge, while more

than a third cited reasons related to the

-22-

judges’ abilities. Id. at 1354. The two

major sympathy-related reasons were

beliefs that (1) federal "[j]Judges are

more sympathetic to civil rights,

individual rights, or constitutional

Claims," (2) federal "[j]Judges are less

inclined to protect the interests of local

schools or governments.” The single

dominant ability-related reason was:

federal "[j]Judges are more familiar with

the law in the case or with the type of

case." Id.

When asked to comment generally on

perceived differences between state and

federal judges, both plaintiffs' and

defendants’ lawyers found that sympathy

for individual rights was more common

among federal judges than among state

judges. Plaintiffs' lawyers agreed by a

margin of nearly 9 to 1 (44% to 5%) while

defendants' lawyers agreed by 42 to 1 (42%

-23-

to 1%). Id. at 1370.

Thus, it is not surprising that

the overwhelming majority of

Section 1983 plaintiffs sue in

federal court. They are so motivated

... by factors such as a perceived

sympathy for, and understanding of,

Section 1983 claims by federal judges

and a correspondingly perceived

antipathy for, and lack of competence

in connection with, such claims on

the part of state judges. Reinforcing

the view of Section 1983 plaintiffs

that state courts are unfavorably

disposed toward them is the fact that

many Section 1983 cases are either

brought by so-called unpopular

plaintiffs or raise controversial and

politically sensitive matters or

both.

S. Nahmod, Civil Rights and Civil

iti ion: T Law oO 983,

Section 1.13 at 26 (1986). This is, of

course, not true in all jurisdictions. In

some states, a majority of lawyers may

prefer to litigate constitutional claims

in state courts. The point is that

Congress created a right of a federal

forum because of an express belief in the

bias or lack of independence or expertise

-24-

of state judges, as this Court expressly

recognized in Monroe, Steffel v. Thompson,

and Mitchum v. Foster, all supra.

2. The problems associated

with State trial court

adjudication of federal

Claims are not mitigated by

the Appellate Process

Neither state appellate review nor

the possibility of review by this Court

can entirely eliminate the problems posed

by less responsive or less experienced

state trial courts. First, state

appellate judges have limited authority to

review the trial court's fact findings,

and may be subject to the same

majoOritarian pressure as state trial

judges. Second, the likelihood of review

by this Court through writ of certiorari

is remote. In any event, such review is

restricted by the findings of fact in the

state trial court.

(a) State Appellate Review

-25-

The effectiveness of state appellate

courts in reviewing trial court

determinations of federal constitutional

matters is limited by two factors. First,

state appellate review of credibility

issues and fact findings is restricted. %

Neuborne, supra at 1116 n.45. This

limitation is a critical drawback,

especially in those areas in which the

Court has emphasized the importance of

intent and motive in constitutional

adjudication. See, e.g., Mt. Healthy Bad.

of Educ. v. Doyle, 429 U.S. 274, 284-87

(1977); Vi Arlin D ights v.

M olit ing Div Corp., 429 U.S.

252, 264-66 (1977); Washington v. Davis,

426 U.S. 229, 247-48 (1976).

Second, the selection process for

state appellate judges is generally the

same as that for the state trial judges.

See Escovitz, Judicial Selection and

-26-

Tenure 17-42 (1975). Thus, state

appellate judges may be subject to the

Same majoritarian pressures as are state

trial judges. Neuborne, supra at 1116

n.45.

Conversely, federal district judges,

insulated from majoritarian pressure by

the protections of Article III, are more

likely to vigorously protect individual

federal rights. See Redish, supra, at 2,

3. See also, Mishkin, The Federal

“Question” in the District Courts, 53

Colum. L. Rev. 157, 157-59 (1953).

The institutional limitations of

State appellate courts translate into a

lesser rate of success for claimants with

federal constitutional claims. See

Solimine and Walker, Constitutional

Empirical Analysi f Judicial Parity, 10

Hastings Const. L.Q. 213 (1983).

-27-

In 1983, Solimine and Walker

published a survey of more than a thousand

cases raising a federal constitutional

claim, and covering a seven-year period

from 1974 to 1980. The sample consisted of

438 federal district court cases and 608

cases from state intermediate appellate

and supreme courts. Id. at 238, 250.

Thus, the study compares a claimant's

first opportunity to litigate a federal

constitutional claim concerning the First,

Fourth or Fourteenth Amendment in federal

court to the second, or possibly third,

opportunity to litigate a similar claim in

a state court.

While the authors conclude that there

is "no widespread disregard for the

vindication of federal rights in state

appellate courts,” Id. at 252, their

statistical results show a significant

advantage to litigating federal claims in

-28-

a federal court.®

According to the results of the

study, the federal constitutional claimant

is more likely to prevail in federal

district court than in a state appellate

court by a $9-point margin, 41% to 32%.

Id. at 240. Where the federal

constitutional claim was raised in a civil

action, the gap expanded to 12 points, 45%

to 33%. In criminal cases, the gap

reduced to 3 points, 34% to 31%.

Thus, when a federal constitutional

Claimant must forego a federal civil

action in favor of a state criminal

defense, the likelihood of success is

reduced from 45% to 31%, a decline of more

than 30%.

6 Had the comparison been to state

trial level courts, it is not unreasonable

to assume that the disparity in results

between state and federal fora would have

been even greater than that reflected in

the reported results.

-29-

Unlike other federal claims raised in

State criminal proceedings, Fourth

Amendment claims, such as those raised

here, cannot be reviewed in federal court

on habeas corpus. Stone vy. Powell, 428

u.S. 465 (1976). In any event, no federal

constitutional claims adjudicated in a

State criminal proceeding may be the basis

for a federal civil action. Allen v.

McCurry, 449 U.S. 90 (1980). Thus, the

application of Younger abstention here

would deprive federal courts of concurrent

jurisdiction and bestow exclusive State

jurisdiction on this class of cases in

contravention of Congress’ Article Ill

powers.

(b) Supreme Court Review

The possibility of review in this

Court does not mitigate the problem.

First, such review is unlikely. In the

1985 Term, this Court docketed over 4,200

-30-

cases, and review was granted in 6 per

cent. This resulted in full Opinions in

102 federal court cases, but only six

state court civil cases. Note, The

Statistics, 100 Harv. L. Rev. 304, 308-10

(1986). Second, even assuming review, the

result would be conditioned by the

findings of fact made in the State trial

court. ALI Study at 167-68.

[S]uch review, even when available

by appeal rather than only by

Giscretionary writ of certiorari,

is an inadequate substitute for the

initial District Court determination

-+ to which the litigant is entitled

in the federal courts. This is true

as to issues of law; it is especially

true as to issues of fact.

ans ee

Examiners, 375 U.S. 411 (1964).7

/ In order to protect the litigant's

entitlement to a federal forum,

permitted him to preserve his federal

Claims for federal court adjudication

following the disposition of state law

issues by the state court under Pullman

abstention. Younger abstention, on the

-3l-

B. Reasons for the Primary Jurisdiction

of Federal Courts As Adjudicators of

Federal Claims

This Court has reaffirmed the right

to and importance of a federal fact finder

for constitutional claims. in Enaland v.

Examiners, supra, 375 U.S. at 416-17,

this Court noted:

How the facts are found will often

dictate the decision of federal

claims. ‘It is the typical, not the

rare case, in which constitutional

claims turn upon the resolution of

contested factual issues.' Townsend

v. Sain, 372 U.S. 293 .«-«- Thus in

cases where, but for the application

of the abstention doctrine, the

primary fact determination would have

been made by the district court, a

litigant may not be unwillingly

deprived of that determination.

In Colorado River Water Conservation

Dist. v. United States, supra, Justice

other hand, together with the finality

principles established by this Court in

, Supra, and Migra vy.

ion, 465 U.S.

75 (1984), creates an absolute bar to

federal adjudication of original federal

claims.

-32-

Stewart stressed the importance of

Original federal jurisdiction over

questions of federal law because of the

familiarity and experience of federal

judges in interpreting and applying

federal law and the greater likelihood of

federal review of the trial court

Getermination. 424 U.S. at 826-27

(Stewart, J., with whom Justice Blackmun

and Justice Stevens joined, dissenting).

Justice Stewart explained the greater

likelihood of federal review as follows:

If tried in a federal court, these

issues of federal law will be

reviewable in a federal appellate

court, whereas federal judicial]

review of the state courts’

resolution of issues of federal law

will be possible only on review by

this court in the exercise of its

certiorari jurisdiction.

-33-

III. THE COURT OF APPEALS WAS CORRECT

IN HOLDING THAT THE DISTRICT

COURT MISAPPLIED ABSTENTION

DOCTRINE NOT ONLY AS TO

PLAINTIFFS' CLAIMS FOR DAMAGES

BUT AS TO THEIR CLAIMS FOR

INJUNCTIVE RELIEF AS WELL

From the earliest application of

abstention principles to prohibit federal

court interference with state criminal

prosecutions, it was held that the

doctrine was inapplicable to damages

actions. See Stefanelli v. Minard, 342

U.S. 117, 122 (1951): "(U]nder the very

section now invoked [referring to the

Federal Civil Rights Act], we have

withheld relief in equity even when

recognizing that comparable facts would

create a cause of action for damages."

Thus, irrespective of the applicability of

Younger v. Harris abstention principles to

plaintiffs’ claims for injunctive relief,

the District Court was unauthorized to

decline to entertain the claims for

-34-

damages.

But amici further contend that

abstention was also inappropriate in

respect to plaintiffs' equitable claims --

that its application in the circumstances

of this case would cut the Younger

doctrine even further "adrift from its

Original doctrinal moorings." Pennzoil

Co. v. Texaco, Inc., 55 U.S.L.W. 4457,

4465 n.2 (April 6, 1987) (Stevens, J.,

concurring).

The Younger doctrine was intended to

reflect "a system in which there is a

sensitivity to the legitimate interests of

both State and National Governments ...."

Younger v. Harris, 401 U.S. at 44

(emphasis added). As the Court's opinion

emphasized, it does not contemplate "blind

deference to '‘States' Rights',"” but rather

a recognition that "the National

Government will fare best if the States

-35-

and their institutions are left free to

perform their separate functions in their

separate ways." Id. (emphasis added.)

Thus, Younger required that federal courts

refrain from interceding on behalf of a

federal claimant who is already involved

in a pending state proceeding which

provides an adequate forum for

adjudication of those federal claims. See

also Trainor v. Hernandez, 431 U.S. 434

(1977); idic Vail, 430 U.S. 327

(1977); n v. Pursue td., 420 U.S.

592 (1975).

In every case in which this Court has

required Younger abstention, the state

proceeding in which the federal issues

could be adjudicated was either already

pending at the time of filing of the

federal complaint, or, as in, Doran v.

ale nn nce., 422 U.S. 922, 929

(1975), was initiated while "the federal

-36-

litigation was in an embryonic stage and

no contested matter had been decided." To

the same effect is Hicks v. Miranda, 422

U.S. 332 (1975), discussed in footnote 9,

infra. In such situations, it would

clearly intrude upon a state's ability "to

perform [its] separate functions” for the

federal court to attempt to interrupt

those proceedings.

On the other hand, when a litigant

invokes a federal court's protection from

unconstitutional state action in the

absence of a pending state proceeding,

abstention "would turn federalism on its

head", Steffel y. Thompson, Supra, 415

U.S. at 472, and would ignore "the duty

[Congress imposed] upon all levels of the

federal judiciary to give due respect to a

Suitor's choice of a federal forum for the

hearing and decision of his federal

constitutional claims." Zwickler v.

@37<

Koota, supra, 389 U.S. at 248. As this

Court emphasized in Zwickler, "abstention

cannot be ordered simply to give state

courts the first opportunity to vindicate

the federal claim." Id. at 25l.

Distinguishing deference to a

"pending state proceeding,” from a

requirement that a federal litigant seek

out and exhaust available state forums, is

not mere semantics. It is the essence of

the distinction between the Younger duty

to abstain and the Monroe duty of the

federal court to adjudicate. It 1s

through the combination of these two

interacting principles that federal courts

attempt to counterbalance a "sensitivity

to the legitimate interests of both State

and National Governments ..." Pennzoil Co.

v. Texaco, Inc., supra, 55 U.S.L.W. at

4460 (quoting from Younger v. Harris,

Supra). The reasons supporting abstention

-38-

"have little force in the absence of a

=

pending state proceeding.” Lake Carriers

Assn. v. MacMullan, 406 U.S. 498, 509

(1972). Thus, just as pendency of an

ongoing state proceeding requires federal

deference, the absence thereof mandates

that the federal court perform its

function as the "primary guardian[ ] of

constitutional rights." Steffel V.

Thompson, supra, 415 U.S. at 463.

The instant facts illustrate the

wisdom of this distinction. As the

uncharged victims of an allegedly

unconstitutional search, respondents had

their federal rights violated but they

were not parties to any ongoing state

proceeding. It may have been true that a

State grand jury was looking into their

activities connected with that search, but

respondents were strangers to that

proceeding and might not receive word of

-39-

its investigations for months, or even

years, to come.®

A grand jury is not 4 judicial

proceeding for adjudication of

constitutional challenges to searches.

There are no parties before a grand jury,

only possible targets. A New Jersey court

has described the grand jury as an

inquisitional, informing, and

accusing body, but is generally

not regarded as a judicial body

or tribunal; it always proceeds

ex parte and it is not a trial body

or the ultimate fact-finder.

: n wnshj , 82

N.J. Super. 340, 348, 197 A.2d 600, 605

(Super. Ct., Law Div., 1964), quoting in

S Respondent James, as far as the

record shows, has heard nothing of the

grand jury's determinations as to him for

over 2 1/2 years. A similar dilemma would

be faced by the victim of a warrantless

search, who would have even less reason to

know whether any official body was

examining the seized materials and when or

whether a state proceeding might eventuate

at which federal claims regarding the

search might be advanced.

-40-

Re Neff, 206 F.2d 149, 152 (3d Cir. 1953),

which further stated:

It is clear, therefore, that the

investigation of a grand jury is a

proceeding which is wholly separate

and distinct from, and of a

different nature than, the

subsequent trial of the defendant

206 F.2d at 152, Citing Ex parte Bain, 121

U.S. 1, 11 (1887). A grand jury does not

become a judicial proceeding because the

prosecutor or law enforcement officers

apply, in the course of the grand jury

investigation, to a judge for a search

warrant. Only the applying officials are

part of the warrant-application process.

Likewise, a grand jury does not

become a judicia] proceeding for

adjudication of constitutiona] Challenges

because a judge is assigned to “supervise”

it. While a judge charges the grand jury

on the general standards governing its

work, no judge presides over the jury's

-4l-

deliberations. N.J.R. 3:6.

As this Court emphasized in Trainor

v. Hernandez, supra, Younger abstention

“naturally presupposes the opportunity to

raise and have timely decided by a

competent state tribunal the federal

issues involved.” 431 U.S. at 441

(quoting Gibson vy. Berryhill], 411 U.S.

564, 577 (1973) (emphasis added)).

Pendency of an ex parte grand jury

investigation at the time of filing of the

federal law suit does not guarantee the

convening of a timely state proceeding to

which respondents can present their

federal objections to the search -~ as the

experience of respondent James amply

illustrates. ?

a The requirement of a state proceeding

that can provide “timely” relief also

distinguishes Hicks v. Miranda, 422 U.S.

332 (1975). Although Hicks held that

Younger abstention was appropriate even

though the federal plaintiffs were not

indicted until shortly after the filing of

—EE—

-42-

Nor does New Jersey Rule 3:5-7

provide the kind of "pending state

proceeding" required for Younger

abstention.19 The issuance of a search

warrant itself is an ex parte proceeding.

While Rule 3:5-7 provides a mechanism for

applications for return of illegally

seized property, it requires the aggrieved

the federal complaint, there was a related

Criminal proceeding already pending in the

state court at the time of filing of the

federal complaint and the federal

plaintiffs were added as co-defendants

prior to any proceedings of substance on

_.the federal action. Id. at 249-50. In

the instant case, it was nearly two years

after institution of the federal action

and after proceedings in both the District

Court and Court of Appeals had been

completed before two of the three

individual federal plaintiffs were

indicted -- while the third plaintiff

remains unindicted to this day.

10° In some respects, the “judge

supervising the grand jury procedures --

in this instance Judge Lenox -- resembles

more an administrative officer than a

judicial officer. "(A]bstention for ...

administrative proceedings [is] not

required.”

Midkiff, 467 U.S. 229, 239 (1984).

———

-~43-

party to initiate a proceeding, which is

not necessarily heard by the supervisory

judge who issued the warrant. (See

Appendix D to Respondents' Brief in

Opposition to Certiorari.) In any event,

Judge Lenox recognized that such a

proceeding would be different, and

separate from, those before him as 4

supervising judge. Thus, this is not a

case of which it can be said that the

availability of “an adequate state forum

for all relevant issues” had been

demonstrated “prior to any proceedings on

the merits in federal court." Middlesex

County Ethics Committee v. Garden State

Bar Assocition, 457 U.S. 423, 433 (1982).

The fact that respondents could have

applied to 4 State judge to protect their

federal rights does not satisfy the

Younger requirement of an ongoing state

proceeding any more than the mere

—————

-44-

existence of a state trial court in which

respondents might have filed a complaint

for damages for violation of their federal

rights satisfies it.11 To so hold would

do great violence to the settled principle

that federal claimants do not have to

exhaust available state remedies before

opting for a federal forum, if, indeed,

one would still be available after

application of collateral estoppel.

it Clearly, the State judge, even if

favorably entertaining a motion to return

Respondents’ property under N.J.R. 3:5-7

for violation of the federal Constitution,

would have no authority to award damages

Or attorney fees under §1988. If

respondents' federal complaint remained

pending after return of their property,

they possibly could have applied to the

federal judge for the award of fees for

the time spent vindicating their federal

rights in the state proceeding. See

generally

federal complaint had been dismissed, it

is not clear whether or where respondents

might file a new action to claim attorney

fees in connection with the state

proceeding.

CONCLUSION

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Counsel for amici gratefully

acknowledge the assistance of Irena

Goldstein, Jim Williams and Ted Bohn,

students enrolled in the Constitutional

Litigation Clinic of Rutgers Law School,

in the preparation of this brief.