# Amicus Curiae Brief — Deakins v. Monaghan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1124%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 193 ## Text 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). A h general isd era cei rt ’ | ~ di “a. | : os inferior federal questi iction, Congress att¢ l law plaintiffs to ved prejudices of sta . See Pair Assessment Brenna ae iAP Or ( “> nt). Ong Tate ~+ prote riaqnt offic antit rT ry e rhe 7 - - > r l ] ’ > a Ts ral tea id ¢t a a > _ - * fan) ( irt to enac ne ai oe > Gua Esta -~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 ; » 3 > : > F : : . ATW . ; » , > : " : ; -” : : . “ ; 4 , , "wT - : i. We : 4 . — ' 5 7 - : _ : > Wy . " ; . > 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1124%3A12. Public record. Not legal advice.