Petition for Writ of Certiorari — Dauer v. Conley

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Supreme Court of the Unitee

October Term, 1972

No. .. on Y

22489

ROBERT E. DAUER, JOHN CHAPAS, LOUIS DADOW-

SKI, EARL HARRIS and ANTHONY TROIANO,

individually and as City Magistrates for the City of

Pittsburgh and ROBERT W. DUGGAN, individually

and as District Attorney of Allegheny County,

1 Petitioners,

OZEL CONLEY, LEWIS STEWARD, DOUGLAS SIZE-

MORE, FRED GREEN, JOSEPH BOLAR, EARL

AGURS, MARVIN KENNEDY, CHARLES DeMEO,

DOUGLAS HAYS and CHARLES ZEITLMEN, on

behalf of themselves and all others similarly situated

and DEAN L. CRAIG and JOHN CHAWRYLUK,

Intervening Plaintiffs,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ROBERT W. DUGGAN,

District Attorney,

J. KENT CULLEY,

Assistant District Attorney,

401 Courthouse,

Pittsburgh, Pennsylvania 15219,

RALPH LYNCH, JR.,

City Solicitor,

DANIEL M. CURTIN,

Executive Asst. City Solicitor,

3100 Grant Building,

Pittsburgh, Pennsylvania 15219,

Attorneys for Petitioners.

BATAVIA TIMES, APPELLATE COURT PRINTERS, i

EDWARD W. SHANNON, REPRESENTATIVE,

1701 PARKLINE DR., PITTSBURGH, PA. 18227

412-861-7463

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= ~ INDEX.

= | or

Opinions Below o 2

JJV 5

r ere ens a Mee 4

Constitutional Provisions and Statutes Involved 5

SD OE CE èÜ1ͤ⁰]ÜÄÜÜIÜAAA edaiews's 12

Reason for Allowance of the Writ E ne 15

I. The Court of Appeals for the Third Circuit

erred by an unwarranted intrusion into and in-

II. not off dent cmgtufenaf weight i. allt

not of sufficient constitutional t in all in-

eS. ee

tion prohibi the prosecution of indigen’

sho are not provided with an attorney at Gn

III. The Court of Appeals should have dismissed

. appeal because the case is moot and peti-

tioners are not the proper parties

Appendix A— Opinion of Federal District Court

r States Court

Appeals for the Third Cireuit .

D—Motion for Stay of Mandate and the

1;Ü⁵;0ol½:nö;ĩ «ð n K .in

* E—Motion for Extension of Stay of Man-

Under Rule 41 (b) and the Court’s Order ......

a4 Tang Ree.

fins mint ot ay anne

v. Massachusetts, 293 U. 850 n 8

: aback. v. United tates, 326 U. S (19460) 22

jd lev. Landry, 401 U. S. 77 1971) de 1

B v. Peterson, 307 F. 5 en us

ts 1969 + ke’ 21 is 3 4 2

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e 95 mae

8 — u-. ai 5

ö 8 38

977800 „252521 „% „(„ „% „ „

— aaah NES

8 21 A. 24 460 (1865) LE PER ETE SS PY YE

Commonwealth ez rel: Mumford v. Cavell, 423 Pa. 252

rane et

Ke „5

9«k«•«4„„ „„

- (1972) .

N Texas, 394 U. 8. 324 (1969)

Peres v. Ledesma, 401 U. S. 82 (1971) 21

ill v. Cole, 289 F. ry Wa D. Miss. 1968) .

Powell v. Alabama, 287 U. S. 45 (1932)

Randall v. bee Housing Authority, 384 F. zd 151

397 U. 8. 82 (1970

Fate Le . S. 66 (1971)

8 410 Pa. 270, 274-75, 189 1 24 7

„ 20 8. W. $a STA, 16 Ge. . Boat lilrif 43

342 U. S. 117 (1951) 19

E @ FRR 88 BR

5, 12

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40)

CaP eS ee Oe ee

@ -@...6-'O 8%. ¢ «6

17 P

sec. 1

sec. 1,

9 secs

yivania Rules of Criminal Procedure BF

(a) (1), (b) (1) Pennsyivania Rules of Crim-

ant 1 = 4 : 8 8

ot ile EE ne ie

28 8 832 443320415

IN THE

Supreme Court of the United States

: October Term, 1972

BOBERT E. DAUER, JOHN CHAPA , LOUIS DADOW-

SKI, EARL HARRIS and ONY TROIANO

individually and as City Magistrates for the City of

Pittsburgh and ROB iT We 5006 W. DUGGAN individually

and as District Attorney of Allegheny County,

OZEL CONLEY, LEWIS STEWARD, DOUGLAS SIZE.

MORE, FRED GREEN, JOSEPH *

AdURS. MARVIN KENNEDY, CHARLES

DOUGLAS HAYS and CHARLES ZEITLMEN, on

behalf of themselves and all others similarl staat

and DFAN I. CRAIG and JOHN CHA

Intervening Plaintiffs

a! . 3

PETITION FOR WRIT or CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

2 FOR THE THIRD CIRCUIT

‘To the Honorable, the Chief Justice and the Associate

- Justices of the Supreme Court of the United States:

Petitioner, the Commonwealth of ‘Pennsylvania, by ite

_ Attorneys, Roszar W. Duacan, District Attorney; J. Kent

5 ‘Corzzy, Assistant District Attorney; and Ran Lynou, In,

City Solicitor; Daum M. wurm, Executive Assistant City

Solicitor, respectfully ys that a writ of Certiorari Issue,

dnd purtuait to Rule 23 of this Honorable Court, your peti-

tioner respectfully represents as follows:

Ozel Conley and other individuals named in the above

caption, respondents herein, all of whom claimed to be

indigents and all of whom were charged with criminal

‘violations under the law of Pennsylvania brought this

-ettion in the United States District Court for the Western

District of Pennsylvania at No. 70-1190 Civil Action against

: gs of the City of Pittsburgh and against the Dis-

trict Attorney of Allegheny County: The plaintiffs (nespor-

@enta:hereif) charged their Civil Rights and Constitutional

Rights as established in Coleman v. Alabama, 399 U. S. 1

(1970), were being violated in that the magistrates were not

advising them of their right of counsel at preliminary hear

‘ings, that they were being refused counsel when requested

an that preliminary hearings. were conducted in the

neence “of. counsel. They also pra nachos the District

"Rlioriay's practise of preseating indintuices ani! scheduling

and conducting trials against indigents not represented by

counsel at ‘preliminary hearings after the effective date of

Coleman v. Alabama, supra. The 3 —— both

deélafatory und injunctive relief.

on October 30, 1970 after! a hearing before the Honorable

‘Wallace Gourley, the Court granted the requested declara-

-tory relief with respect to the Magistrates but denied the

injunctive relief. The District Court's Opinion and Order

‘filed October 30, 1970 is attached to this petition (p. 48).

‘The Opinion reported at $21 F. Supp. 723 W. D. Pa. (1970).

0% November vember 25, 1970 the respondents appealed the Dis-

triet Court's decision to the United States Court af Appeals

‘for the Third Cireuit at No. 71-1011. ©

Alter the filing of briefs and oral argument the Court

of Appeals by its Opinion and Order of April 17, 1972,

affirmed the Order of the District Court but remanded the

ease to the District Court for a further hearing. The

Opinion and Order of the Third Cireuit Court of Appeals i

attached to this petition (67). The official report of this

ease has not been published.

On May 16, 1972, after an extension of the time for filing

was granted, petitioners filed with the Court of Appeals for

the Third Circuit a Petition for Reargument Under Rule 40

and for Rehearing by the Court En Banc under Rule 35 of

the Federal Rules. On June 27, 1972 the Court denied the

Petition for Rehearing per curiam. The Honorable Ruggero

Aldisert filed a dissenting opinion. The Cireuit Court's

Order and the dissenting opinion are attached to this peti-

tion (75). The official report of this decision and dissenting

a . have not been published.

On July 3, 1972 petitioners filed a Motion for Stay of

Mandate with the United States Court of Appeals for the

Third Circuit in connection with this case pending its filing

a petition for review by this Honorable Court on a writ

_ Of certiorari. On July 13, 1972 the Court of Appeals

panied the Motion by extending the time to August 3, 1972.

Copies of the petitioner’s Motion and the Court of

_ Appeals’ Order are attached to this petition (83).

On July 26, 1972 petitioners filed a Motion for Extention

of Stay of Mandate Under Rule 41(b) with the Court of

Appeals. On August 4, 1972 the Court of n 1

5 nme 1972. 9 9 ey

Copies of the petitioner's Motion and the Court of

5 ‘Appeals’ Order are e Petition (88)...

711

Statement of Turtedietion:.

1. ‘The above referred to order of the United States

‘Court of Appeals for the Third Circuit was entered April 17,

‘1972 and that Court's order denying the Petition for Re.

‘beating’ was entered Suis 27, 1972. rz

2 Tie juriediction of this Honorable Court is invoked

under 28 USCA, Section 1254(1).

| Questions Presented for Review

: “The Court of Appeals after affirming the issuance of

declaratory relief by the District Court, remanded the case

to the District Court for a further hearing. Determination

was to be made “whether steps have been taken to insure

that the Coleman mandate will be followed in Allegheny

J the immediate future The holding of the Court

of Appeals decision reasoned that Colemen required that

indigents be provided with counsel at all“ preliminary

‘hearings and that it was imperative that Allegheny County

ecmuply with this mandate promptly.

——ů ee Petitioner ralesa te fot

lowing questions: '

* Ba set is Court of Appeals tor the ind’ Cir.

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The Pennsylvania Act of 1919, May 27, P. L. 306 6 1, 19 P.

S. A provides:

HEARING IN ASSAULT CASES

Tn all cases of pr for assault or assault and

, the justices of the 2

ore

JUSTICE TO HOLD HEARING

In all cases of surety of the peace, the justice of the

before whom such case is insti shall, before

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quarter sessions in the meantime to keep the peace,

(Sr of another, as provided by section six

(Section 23 of this title) of the act

thousand eight h

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PROMULGATE CRIMINAL PROCEDURE RULES:

3, 4, 17 P. S. 66 2084, 2085, 2086, 2087 provides:

POWER OF SUPREME AND SUPERIOR COURTS TO

of the said general wy 1957, July

11, P. L. 819, 63.

‘COURT OFFICERS TO FURNISH INFORMATION

$2087

Sen oe ee clerks, prothono-

taries, and other officers several courts of

record in this Commonwealth, to furnish to the

This case was brought by individuals claiming to be indi-

gents, all of whom were charged with criminal violations of

the laws of Pennsylvania and all of whom were unable to

retain legal counsel at their preliminary hearings. They

charged that under b 1888 of the Civil Rights Act, their

Sixth and Fourteenth Amendment rights as established in

Coleman v. Alabama, 399 U. S. 1 (1970), were being violated

‘tn ‘that the magistrates of Allegheny County were not

adyising them, as indigents, of their right of counsel at

preliminary hearings; that they were being refused counsel

conducted in the absence of counsel. In addition, they

challenged the District Attorney’s practice of presenting

‘prosecutions against indigents who were not represented

‘by come at preliminary hearings after June 22, 1970

‘the ‘effective date of Coléman''v. Alabama, supra. The

statement of a ruling that the above practices were uncon-

stitutional. They also sought a permanent injunction

against the District Attorney of Allegheny County enjoin-

ing him from proceeding to trial in any case in which an

indigent was neither represented by counsel at his prelimi-

nary hearing nor knowingly and intelligently waived that

right and an injunction against the Allegheny County

Magistrates enjoining them from conducting any further

preliminary hearings without first fully advising indigent

defendants of their right of counsel and without appointing

counsel where requested.

The United States District Court for the Western Dis-

trict of Pennsylvania assumed jurisdiction by virtue of

28 U. S. C. § 1343, 42 U. S. C. 56 1983 and 1988 and 28

U. S. C. $§ 2201 and 2202. A hearing was held on October

19, 1970 before the Honorable Wallace Gourley, who

granted the requested declaratory relief in his Opinion and

Order of October 30, 1970, respecting the practices of the

Magistrate—defendants but denied the injunctive relief.

The Court found that injunctive relief was not appropriate

since the Coleman decision had been rendered only four

months prior to this case and there was at that time no

practical way this decision could have been fully imple-

mented. The plaintiffs appealed that decision to the

United States Court of Appeals for the Third Circuit at

No. 71-1011.

After the filing of briefs, oral argument was held in

December of 1971 before the Honorable Francis L. Van

Dusen, the Honorable James Hunter III and the Honorable

Caleb R. Layton ITI, of the Third Circuit Court of Appeals.

In an Opinion by the Honorable James Hunter III, the

Order of the District Court was affirmed but the case was

remanded to the District Court for a hearing to determine,

_ “whether steps have been taken to insure that the Cole-

man mandate will be followed in Allegheny County in the

immediate future.“ This Henorable Court held that it

interpreted the Coleman decision as requiring that in-

digents be provided with counsel at Fall“ preliminary

nl with this mandate premptly. The date of the

Opinion and Order was April 17, 1972.

“Petitioners ‘thereafter ‘filed a Petition for Reargument

under Rule 40 and a Petition for Rebhearing By The Court

Eu Bone Under Rule 35 of the Federal Rules of Procedure.

The petition alleged, inter alia:

1. That the question of providing appellant’s coun-

sel at preliminary hearings was moot and consequently

there was.no controversy for the Court of Appeals to

decide ;

2. That the District Attorney was not the proper

party to this action as he has no power to effectuate

the relief sought;

3. That the Federal Courts have no jurisdietion to

fashion state procedures for the administration of

eriminal justice; that the Distriet Court erred in issu-

ing declaratory relief and that the Order of the Dis-

tiriet Court should have, at the most, been affirmed by

the Court of Appeals on the basis of the Abstention

Doctrine ; * :

4. That the Court of Appeals’ interpretation of

Coleman is so impossible that it cannot be complied

with.

The Petition was filed May 16, 1972 after an extension

.of time to file was granted by the Court of Appeals. On

Jume N, 1972 the Court of Appeals, Per Curiam, denied

PPP

ARGUMENT

Reason for Allowance of Writ

L The Court of Appeals for the Third Circuit erred by

an unwarranted intrusion into and interference with the

administration of State Court procedures in direct violation

of Younger v. Harris and companion cases and of the

Abstention Doctrine.

(a) The decision of the Court of Appeals in this case is in

direct conflict with Younger v. Harris and companion

cases and constitutes a serious affront to federal-state

relations.

Petitioners find untenable the proposition that federal

courts can become involved in fashioning the preliminary

procedures in connection with state court criminal matters.

No basis can be found by petitioners in the federal con-

stitution nor in cases adjudicated by your Honorable

Court.

It is still true that the states are sovereign entities which

have the right and the duty to fashion their own procedures

for the administration of criminal justice.

Therefore, petitioners believe that this entire proceeding

should have been dismissed as being beyond the jurisdiction

of the federal courts.

In Younger v. Harris, 401 U. S. 36 (1971) this Court

held that under well-established principles of comity,

federalism, and equity jurisprudence, federal courts must

refrain from enjoining pending state criminal prosecutions,

absent extra-ordinary circumstances which were not pres-

‘ent in Younger and are not present in the instant case.

In reversing the three-judge district court which had

enjoined the district attorney from prosecuting Harris,

dication Act (found unconstitutional by the district court),

- Justice Black; speaking’ for this Court, observed:

' \Dhe precise reasons for his longstanding public policy

vr malas, Seder). cermit Satertneonen it, tet cont

din have never been specifi Y identified

ing courts of equity from interfering with criminal

‘prosecutions is orced Aer

„ “comity”, that is a

: functions, a recognition of the fact

s country is made up of a Union of

state ts, and a continuance of the

the National Go vernment will fare best if

f that

the States and thelr i ner.

“form their separate 1 in their separate

ways.

This brief discussion iad: he ano to suggest

the reasons why it has been perfectly natural

s to repeat time and time again that the

to do when federal courts are asked to.

‘pI i in state courts is not to

1 injunctions. "U.S. 27 at 48.44.

Mr. . ttkingedl:0- lang: tila. of--enaee, in

which the traditional policy of non-interference had been

regflirmed by this Court, including Fenner v. Boykin, 271

Hai

U. S. 240 (1926); Watson v. Buck, 313 U. S. 387 (1941);

and Douglas v. City of Jeannette, 319 U. S. 157 (1943).

At the same time he distinguished and very narrowly

circumscribed Dombrowski v. Pfister, 880 U. S. 479 (1965)

which respondents in the instant case regarded as con-

The District Judge in the instant case refused injunctive

relief, concluding, even without the benefit of Younger v.

Harris which had not yet been decided, that federal inter-

vention of the kind demanded by plaintiffs was inappro-

priate. Conley v. Dauer, supra. The Court of Appeals,

although agreeing that the District Judge should have

withheld relief at the time because of the freshness of

Coleman v. Alabama, supra, remanded the case for further

inquiry into the steps that Allegheny County had taken to

comply with Coleman. Its opinion concluded with a direc-

tive that if proper procedures were not instituted forth-

with, the District Court should undertake remedial meas-

ures, and “should consider the appropriateness of injunc-

tive relief pursuant to 28 U. S. C. 4 2202”. Conley v. Dauer,

supra at 6 n. 4. This authorization of injunctive relief

and continuing federal supervision of state criminal pro-

ceedings, contravenes Younger v. Harris, supra, and Perez

v. Ledesma, 401 U. S. 82 (1971). :

Although your Honorable Court in Younger acknowl-

edged that there might be extreme instances justifying

federal interference, no such conditions exist in the instant

ease. The novel suggestion of respondents in the courts

below that petitioners were acting in bad faith by the

mere fact that they held allegedly unconstitutional pre-

liminary hearings is clearly untenable under Younger v.

Harris, since it is the prosecution as such and not proce-

dures employed during the course of it, which must be in

to defend against

criminal] not be

sidered in the special

term. 401 U. S. at 44.

“The Younger view accords with a

and

12 12.

Moreover, the Court does not find that

Pie | a

mtr se a en AS ne Cm

Harris, Perez v. Ledesma, and related cases in a footnote,

‘

— — I

eution based on oe age obtained by an allegedly

supra, at 6, n. 14, did not discuss the applicability of these

cases to the present situation. In the same footnote it

did suggest two bases for federal intervention and injunc

tive relief. First, the Court of Appeals, following an

earlier Third Cireuit case, found that 28 USC § 2202 (1964)

authorized injunctive relief in aid of the Civil Rights

Act, 42 U. S. C. § 1983 (1964) and was an “expressly au-

thorized” exception to the Federal Anti-Injunction Act, 28

USC § 2283 (1964). The correctness of this view has sub-

sequently been established by this Court in Mitchum v.

Foster,. U. & 92.8. Ct. 2151 (1972).

relief in this case, however, which are based on equitable

and comity considerations. As the majority opinion in

Mitchum v. Poster, pointed out:

Sitio S8ean2

See also the concurring opinion of Chief Justice Burger

at 92 8. Ct. 2151, 2162-63 (1972).

The second reason advanced by tlie Court of Appeals

The District Court’s decision was rendered, and the time

for appeal had expired, prior to the decision of this Court

in Samuels v. Mackeil, 401 U. S. 66 (1971); holding that

by way of declaratory judgment is improper. The Court

of Appeals, nevertheless, apparently felt that one bad turn

deserved another, concluding that although the declaratory

judgment appeared to be erroneously granted in view of

Mackell, since defendant-petitioners did not appeal that

declaratory judgment the District Court can now issue an

injunction to exact compliance, despite Younger. This

Court should not allow this bootstrap reasoning to contra-

vene its plain and emphatic holdings in Younger and

Mackell.

Regardless of the history of the present case, it is indis-

putable that despite this Couri'’s prohibition the Court of

Appeals has advised the District Court to proceed with

very real interference of the state judicial process. On this

point see the Dissenting Opinion Sur Petition for Rehear-

ing of Cireuit Judge Aldisert. The interference in the

instant case is, in fact, much more extreme than in any of

the Supreme Court cases, since here not merely one prose-

cation, or prosecutions under one particular statute, is

interrupted, but rather thousands of cases covering a broad

spectrum of complaints.

The wisdom behind the long-standing policy of federal

noninterference is underscored by the practical considera-

tions involved in the instant case. If federal intervention

is allowed at this point, the most probable consequence is

an end to many if not all preliminary hearings in Alle-

gheny County and presumably throughout the state, in

to by Mr. Justice White in Coleman, 399 U. S. at 17-18

(Concurring Opinion).

‘*dklthough there has been good faith attempt to cemply

with Coleman, the length of time which has transpired since

the District Court case suggests that Allegheny County

is unable in the foreseeable future to overcome the diffi-

culties referred to in both the opinions of District Court

and Court af Appeals. Conley v. Dower, 321 F. Supp. at

780-31. (1970) and No. 71-4011, supra at 4, n. 5 and 6, in

if this Court agrees with Petitioners that the Court of

Appeals erred in concluding that Coleman requires coun-

sel at all preliminary hearings, then an accommodation

limited to serious eases may well be practicable).

Although in Pennsylvania an accused has the right to a

preliminary hearing before indictment, in the fect of a

federal injuneticsi, the Distreit Attorney may be forced to

certify all non-represented cases to the Court of Common

Pleas fer leave to present a bill of indictment to the grand

jury without a preliminary hearing, in accordance with

Pennsylvania Rules of Criminal Procedure 224. In the

alternative, the Supreme Court of Pennsylvania may have

te consider revising the Rules of Criminal Procedure to

allow direct indictments as in some states. The other pos-

sibility, of course, is that numerous defendants charged

soith misdemeanors will entirely escape just convictions

through the inability of Allegheny County to conduet pre-

Jiminary hearings. _

On the other hand, if federal relief is withheld at this

time, then respondent’s constitutional challenges will be

considered by state appellate courts on a case-by-case basis

in aceordance with traditional procedure. Pennsylvania

appellate courts, in accordance with Coleman, can examine

‘the record to see if the absence of counsel at the prelimi-

„

such absence constitutes harmless error. :

Petitioners do not believe that there will be a significant

extra burden imposed on state appellate courts in review.

ing absence-of-counsel appeals, A review of the disposi-

tion of the criminal cases against the respondents in this

instant action suggests this. Certainly where the grand

jury subsequently dismisses the charges, as with respond-

ent Ozel Conley, the criminal defendant will have no need

to appeal. The same would be true of those defendants

found not guilty at trial, as was respondent Earl Agurs.

A guilty plea at trial (where the accused would be entitled

to counsel) would eliminate any grounds for appeal (re-

spondents Douglas Sizemore and Joseph Bolan). Those

given probation or a modest fine would seldom appeal.

Finally petitioners believe that in cases where the ac-

cused is convicted and sent to jail, rarely would absence

of counsel at preliminary hearing be the primary motiva-

tion for appealing. The myriad other constitutional chal-

lenges which defense lawyers, especially public defenders,

are able to glean from even the simplest of trials suggests

that absence of counsel will usually play a minor role on

appeal.

In any event, if petitioners are in error and appellate

burdens begin to approach the level of the acknowledged

significant difficulties in providing counsel at preliminary

hearings, Conley v. Dauer, No. 71-1011 at 5, then certainly

the Commonwealth of Pennsylvania will have to consider

the problem. But it should be permitted that choice!

“unless absolutely necessary. For example, in Harrison v.

V. A. 4. C. P., 360 U. S. 167, 176 (1959), where the N. A.

the constitutionality of state enactments

fairly to —— ong until the state courts have

been to pass

them [Citations — ted. he pra does oar ef

federal jurisdiction,

—— — its exercise; it serves the

See also Reete v. Bozanich, 397 U. S. 82 (1970), where the

Court vacated a judgment that state fishing laws and regu-

lations were unconstitutional in giving special rights to

those who had held licenses before. Despite the fact that

the plaintiffs would suffer harm through delay and loss

of any fishing rights in the interim, the High Court re-

quired that the District Court abstain so that the Alaska

State Court could determine the state constitutional ques-

In the instant case petitioners assert, as they have in

the courts below, that the constitutional questions advanced

by respondents should have been first considered by the

state courts in a proceeding for appointment of counsel

under Sections 6 and 7 of the Public Defender Act, Act of

December 2, 1968, P. L., No. 385, 16 P. S. § 9960.6-7

(1970 Supp.). These provide, in relevant part:

„

rson is charged with an indietable

and has been held for grand jury action.

—

But there have been instances where the Pennsylvania

‘Courts have given the word “may” a mandatory interpre-

tation. Commonwealth v. Johnson, 440 Pa. 342, 352, 269

A. 2d 752 (1970); Seligsohn Appeal, 410 Pa, 270, 274-75,

189 A. 2d 746, 748 (1963); Commonwealth ex rel. For v.

Swing, 409 Pa. 241, 245, 46, 186 A. 2d 24, 26 (1962).

It is submitted that in view of Coleman v. Alabama,

supra, Pennsylvania Courts might well extend the mean-

ing of these sections of the Public Defender Act and the

Rules of Criminal Procedure to include, if not all prelimi-

nary hearings, at least those for the more serious crimes.

¥ 27

The State Courts should be given this opportunity to

interpret the scope of Coleman and adjust their procedures

to it. Respondents have not allowed them this oppor-

tunity. Although the Pennsylvania Supreme Court was

asked to take original jurisdiction of their case, Conley v.

Dauer, No. 3328 Mis. Docket (1970), this was an extra-

ordinary proceeding under the Appellate Court Jurisdic-

tion Act of 1970, P. L. ___, No. 223, 17 P. S. § 211.206

and was properly refused. Respondents have never in-

stituted a suit in the Court of Common Pleas seeking the

relief they have now been authorized by the federal appel-

late court.

Not only is there an unresolved issue of state law inter-

woven into the case, but the issue involves the state courts

themselves. Where the responsibilities of state courts are

concerned, it is all the more vital that deference be given

the state system!

In Randall v. Newark Housing Authority, 384 F. 2d 151

(3rd Cir. 1967), the plaintiff sought to enjoin allegedly

unconstitutional eviction proceedings. The District Court

dismissed the Complaint for want of subject matter juris-

diction. This Honorable Court remanded to allow plain-

tiffs the opportunity to brief and argue fully the question

of subject matter jurisdiction. In remanding, the Court

of Appeals pointed out that abstention was especially ad-

visable where it gave state courts “a chance to act and to

construe their own duty.” 384 F. 2d at 157. See also

Tribune Review Publishing Company v. Thomas, 120 F.

Supp. 363, 373 (W. D. Pa. 1954).

Finally, abstention may co-exist with the grant of declar-

atory relief. The court below apparently believed that

_ abstention and the grant of declaratory relief were mutu-

ally exclusive (R. 16a-17a). On the contrary, where state

law issues. in a ense go to the question of remedies, the

any action with regard te remedies. Note, Federal-Ques-

tion Abstention, 80 Harv. L. Rev. 604, 621 (1967). Your

Homerable Court is requested te do se here where a ques-

tim of state court procedure is at issue.

II. The right of counsel at a preliminary hearing is not

ef sufficient constitutional weight in all instances to require

a Court te order an injunction prohibiting the presecution

of indigents who are not provided with an attorney at that

(e) There is no constitutional requirement that counsel be

. provided for indigents at all preliminary hearings.

hearing as a “critical stage” of the prosecution in that

tienal basis for such an assertion. The dilemma in Cole-

man was suammarized by Mr. Chief Justice Burger in his

dissent at 399 U. S. 1:

S. at 24.

de Coleman Majority could not themselves determine

wrote the majority opinion and used “the principle of

Powell v. Alabama, 287 U. S. 45 (1932) and succeeding

ceases’. . . {which require that the Court] scrutinize any

ee eee to determine whether the pres-

ence, af counsel is. necessary to preserve the defendant's

basic right to a fair trial.” 399 U. S. at 8. However, this

basic right to a fair trial was rejected as a basis by others

in the majority. Justices Black and Douglas declared that

this alleged right was guaranteed by the Sixth Amend-

ment, not by any obscure inferred “right to a fair trial.”

But as both Stewart and Burger noted, these interpreta-

tions surely strain the “plain meaning” of the sections of

the Constitution quoted by the majority. Perhaps the most

revealing opinion was that of Mr. Justice Harlan who, in

concurring, admitted that were it not for the recent deci-

sions of Miranda v. Arizona, 384 U. S. 436 (1966), United

States v. Wade, 388 U. S. 218 (1967), Gilbert. v. California,

388 U. S. 263 (1967), Mathis v. United States, 391 U. S. 1

(1968), and Orozco v. Texas, 394 U. S. 324 (1969) he would

have voted to affirm the convictions. He most reluctantly

agreed to strain the facts of those cases to the facts of

Coleman.

The inability of the Court to agree upon a “basis for the

decision” in Coleman is evidence that, rather than inter-

preting the Constitution, the Court instead was engaged

wa renee anes r

— — — of what is desirable.” 399 U. 8.

at 24.

Following Adams v. Illinois, 92 S. Ct. 916 (1972), which

rejected Coleman’s retroactivity, Mr. Chief Justice Burger

again make this point: “Nothing could better illustrate the

extraconstitutional scope of Coleman than its interpreta-

tion how to explain why we do not make it retroactive.”

92 & Ct. at 921. In Adams, Justice Blackmun, who had

not joined in, Coleman made it clear that he felt that the

ener ae OA ae ene 92 8. Ct. at 91.

„A eompatison of the remedy provided by Coleman with

that’ off ‘remedies’ of ‘violations’ of constitutional’ rights in

other ateas (see below) makes it difficult to assert that an

actual constitutional right was newly discovered by the

Coleman Court. It is even more difficult to reach this con-

clusion after the holding of Adams v. Illinois, swpra. Peti-

tioner thus urges that despite the Coleman decision, no

new right was declared, upon which the presently sought

injunctive relief could lie. ‘i

* @) “The violation of the right to counsel at the preliminary

hearing ie not co basic to « fair trial that a possible

ae ~ violation should require extraordinary equitable relief.

mn a 62 decision, the United States Supreme Court, in

Coleman, ruled that failure to provide counsel at his pre-

limitiary heating might have affected Coleman’s right to

a fair trial. The case was remanded to the state courts for

t determitiation of whether such denial of the right to

counsel was harmless or prejudicial error. 399 U. S. at 26.

Mr: Justice Brennan, writing for the six majority mem-

sini aualian r techn Wena e

stage” 80 us to require the furnishing of counsel to protect

Coleman 'n rights. Five justices agreed to remand the case

to the state court to determine if Coleman’s rights had been

prejudiced at the preliminary hearing even though the state

had not used, at trial, anything that had occurred at the

hearing. Justice Black based his concurring opinion upon

this right being within the Sixth Amendment. Justice

Harlan felt that the conviction should not be reversed un-

leas the défendants could show that the laek of counsel re-

suited ir actual prejudice; and Chief Justice Burger and

Justice Stewart dissented, holding that the Constitution

simpy does no require the assistance of counsel at the pre-

liminary hearing stage.

Despite the Court’s determination of the “constitution-

ality” of the right to counsel at a preliminary hearing, the

remedy set forth by the Coleman Court gives sufficient

foundation to petitioners’ allegation here that this right

is not so constitutionally mandated that an injunction

would lie against prosecuting all indigents not represented

by counsel at their preliminary hearings.

The test which the Supreme Court applied was that of

the “harmless error” test of Chapman v. California, 386

U. S. 18 (1967). In Chapman, the Court squarely faced

whether the presence of constitutional errors, regardless

of the facts and circumstances, must always be deemed

harmful “. . . (and) would require an automatic reversal

of . . . convictions.” The Court declined to adopt such

a rule, stating: “We decline to adopt any such rule

386 U. S. at 21-22. The Court noted that “there may be

some constitutional errors which in the setting of a par-

ticular case are so unimportant and insignificant that they

may, consistent with the Federal Constitution, be deemed

harmless, not requiring the automatic reversal of the con-

viction.” 386 U. S. at 22.

By applying the “harmless error” rule in the Coleman

case, the Court clearly indicated the status of the right to

counsel at a preliminary hearing. The Chapman Court

had indicated that “some Constitutional rights are basic to

a fair trial that their infraction can never be treated as

harmless error. . 386 U. S. at 23. Examples of this

are Gideon v. Wainwright, 372 U. S. 335 (1963), and Glass-

er v. United States, 315 U. S. 60 (1942), requiring auto-

matic reversal.

_ Clearly this is not the Court's approach taken im Cole-

men! The Court instead adopted the reasoning in Chap

S78 (1929); Bollenback v. United States, 326 U. S. GT

(2946) ; Brows . Allen, 344 U. & 443 (1953); „„

Waited States, 383 U. S. 463 (1966); Herrington . Cal

forsia, U. S 250 (1969).

From the above cited cases it is clear that there can be

We note that the question of whether an error was harm-

less within 6 269 of the Judicial Code (28 USC 391- Now 28

USC 2111) is not to be determined as a matter of presump-

tion, but rather according to the situation involved in the

particular case. (Kotteakos v: United States, 38 U. 8.

750 (1946).-

It is significant to note that the Court in Coleman did not

follow its earlier decisions in Hamilton v. Alabama, 368

U. & 52 (1961), and White „ Maryland, 373 U. 8 8

(1963). While both of these cases dealt with lack of coun-

sel at the preliminary hearing, both cases revealed actual

prejudice at the prelimmary hearing stage itself which

“injured” the acoused at that point, not at his later trial.

In those two cases, the Court reversed the convictions. In

the instant case, however, no prejudice has yet occurred.

If prejudice does occur in any case, there is an adequate

remedy through the Colemes application of the Chapman

“harmless error” doctrine. Therefore, petitioner asserts

‘that an injunction at this point would be inconsistent with

the Coleman holding and other relevant decisions on this

subject as discussed above.

In addition, in light of Arsenault +. Massachusetts, 393

U. 8. 5 (1968) the denial of Coleman's retroactivity by the

Supreme Court in Adams . Illinois, supra, weakens the

argument that Colemen established a “hasie” right to coun.

sel at the preliminary hearing.

The Supreme Court noted in Arsenault that decisions

pertaining to “the right to counsel [of an accused in a state

prosecution] at the trial, on appeal, and at the other

‘critieal’ stages of the criminal proceedings have all been

made retroactive, since the ‘denial of the right must almost

invariably deny a fair trial. 393 U.S at 6. Such cases

affording retroactive treatment have been: Gideon vo.

Woiewright, supra, right to counsel at trial; Douglag v.

California, 373 U. 8 353 (1963)—right to counsel on ap-

peal; at sentencing—Mempa v. Rhay, 389 U. S. 128 (1967):

and at other proceedings in which the rights of an accused

were adversely affected White +. Maryland, supra, and

Hamilton v. Alabama, supra.

4 aa Hil HIE iis

* 0

In Adame 8 swpra, this Honorable Court failed

to bold that Colemes was to be applied retroactively. The

Court declared that it gives complete retroactive effect to

@ mew rule “where the major purposes of the new

justice.” 92S. Ct. at 920. (Emphasis supplied), then the

Court should now take similar note in the case before it.

Court has linked the Coleman right with other “lineup”

rights as in Wade and Gilbert, does this mean that next

until counsel is provided? Surely this is not what the

Constitution means to protect when it speaks of the right

to counsel at criminal convictions. Surely the havoc

whieh such a decision would play upon the system of jus-

‘tice im America warrants a firm refusal to enjoin poten-

tial” ‘violations of this Coleman right The Coleman de-

cision has provided the apparatus through appellate

scrutiny and the “harmless error” test to deal with any

actual prejudices which might occur. Injunctive relief at

this point not only is impractical, but also against the pro-

fessed spirit of Coleman as held in Adams v. Idol.

(e) Under Pennsylvania law, an secused hes no right to

counsel et the preliminary hearing.

In Pennsylvania, there is no general legislation requiring

preliminary hearings (Commonwealth v. O’Brien, 181 Pa.

Superior, Ct. 382, 124 A. 2d 666 (1956). Preliminary hear-

ings are required in assault cases and assault and battery

cases (Bee 19 P. S. 21; 19 P. S. 24; 19 P. S. 681). However,

the Pennsylvania Rules of Criminal Procedure have_sec-

The Pennsyivania Rules are adopted as authorized by

17 P. S 2084-2087. Rule 116 gives an arrestee by warrant

a period of from 3 to 10 days. Both sections also mention

the défendant’s attorney, but neither make any provision

for providing counsel for indigents.

Rule 120 discusses the rights of the parties at the pre-

liminary hearing, but only Section d of Rule 120 mentions

court-assigned counsel :

Rule 318, Assignment of Counsel (designed to implement

Gideon v. Wainwright, supra) states that in capital cases,

counsel shall be assigned as soon as practicable after the

preliminary arraignment (Rule 318 (a) (1)). In non-capi-

tal cases, if the defendant is indigent, counsel is appointed

“to represent him in his trial and on a direct appeal from

any judgment of sentence” (Rule 318 (b)(1)). This assign-

ment is to be made “as soon as practicable after the case

has been docketed in the office of the Clerk of Court but in

any event before indictment” (Rule 318 (b) (2)) or counsel

can be assigned by the court “whenever the interests of

justice require it” (Rule 318 (b) (3)).

Thus, the statutory basis for requiring counsel to be

appointed at the preliminary hearing in Pennsylvania is

very shallow, if non-existent. Since the Rules do provide

for appointment of counsel as soon as practicable after the

preliminary arraignment in capital cases (Rule 318 (a)(1)),

but no such time is mentioned in non-capital cases, then

by application of the canon of construction of expressio

wnius it must be assumed that there exists only the right

to such appointed counsel in capital cases.

Pennsylvania case law supports this conclusion as well.

Unlike White v. Maryland, supra, and Hamilton v. Ala

bama, supra, in this state a defendant need not plead at the

P Rundle, 229 F. Supp.

506 (E D Pa. 1964); and even if he does plead, no rights

are lost (United States ex rel. Parker v. Myers, 233 F.

Supp. 563 (E D Pa. 1964, aff. 341 F. 2d 303, 3rd Cir. 1965).

Thus, it has been held, prior to Coleman, that in Pennsyl-

-vania the preliminary hearing is not a “critical phase” of

the criminal, process, (C ommancealth.v..F rye, 433 Pa. 473,

2. A. did 0 (1969), cert. 4. 386 U. S. . (1969). It

was noted ‘that absent unenal and preyuceial circum.

stances which transform the proceedings into a critical

stage, failure to be represented by counsel at the prelim

‘mary ‘hearing is vot a violation of constitutional rights

| (Commomecalth-ex. rel. Fonnse v. Russell, 22 Pa. 313, 220

‘A. 2d 76 (1966) ; Commonwealth ex rel. Hobbs v. Russell,

“$20 Pa. 1, 216 A. 2d 888 (1966); Commonwealth ex rel.

MeCant.v. Rundle, 418 Pa. 394, 211 A. 24-460 (1965) ;

Commonwealth ex rel. Mumford v. Covell; 423 Pa. 312, 228

‘A720 640 (2967).

Only when actual, prejudice occurred whereby an element

of the crime was not established at the preliminary hear-

ing (Commonwealth v..Taylor, 219 Pa. Superior Ct. 334,

280 A. 2d 405 (1971) or where the victim failed to identify

‘the defendant (Commonwealth v. Brown, 217 Pa. Superior

190, 269 ‘A. 2d 383 (1970)' have the courts found substantial

‘prejudice through the tack of counsel at the preliminary

‘hearing. ‘In effect, in these cases, the courts are followmg

ite v. Maryland, swpra, and Hamilton v. Alabama, supra.

The Pennsylvania Supreme Court in Commonwealth v.

dames, 440 Pa. 205, 269 A. 2d 898 (1970), in a decision

following Coleman, diseussed the denial of counsel at a

juvenile certification hearing (“similar if not the same as a

preliminary hearing,” the Court stated at 440 Pa. at 210).

“The Court there detlared that denial of counsel at this

point cannot be “equated with the denial of sueh assistance

at trial or during proceedings to determine guilt.” 440 Pa.

at 200. The Court held that it vas quite apparent from

stated that absence of counsel . would, if were were

an absence of prejudice, constitute harmless error. Cer-

tainly, the denial of counsel at trial would never be harm

less error.” 440 Pa. at 210.

It is thus petitioners’ opinion that there is neither statu-

fact that at preliminary hearings the evidence is generally

not presented by a District Attorney, but by the arresting

police officer or the complainant, who are not schooled in

the law. It appears obvious as it was to Mr. Justice White

in the Coleman decision, that “requiring the appointment of

counsel (at preliminary hearing stage) may result in fewer

is free t6 avoid them by taking a case directly to a grand

inary hearing system entirely.” (399 U. S. at 18.

‘ Certainly, Vr. Justice White’s warning applies in this

case. With 64 elected district magistrates, 5 City of Pitts-

burgh Police Magistrates, and 44 Justices of the Peace

‘and aldermen qualified to conduct the some 15,000 pre-

liminary hearings that occurred in 1970 alone (Statistics

taken from Safer Community; An Analysis of Crime and

Criminal Justice of Allegheny County, Pennsylvania, Alle-

gheny Regional Planning Council for the Governor’s Jus-

tice Commission, pg. 50 Feb. 1972) the implications of such

justice system would be staggering.

Despite the lack of a clear state legislative mandate

encouraging or requiring the provision of counsel at this

point, the Public Defender’s Act of December 2, 1968, No.

358, 16 P. S. 9960, 6-7 (1970 Supp.) provides:

4¹

of the Public Defender has received the approval of the

Regional Planning Council for a federal grant for, and has

begun hiring, 12 full-time attorneys to defend only indigents

at preliminary hearings (RPC report, supra, pgs. 55-56).

Surely this is not the time to issue an injunction which

would bring a halt to the entire criminal justice process

within this county when good faith attempts at implement-

ing Coleman are now underway. The public at large would

suffer severely from such a stoppage. Even more directly

“inconvenienced” would be hundreds of arrestees who would

normally be released following a preliminary hearing but

who, following such an injunction, would have to languish

for extensive periods while the state’s fiscal and statutory

provisions catch up with the judicial mandates.

Such reasoning was also the thrust of the opinions of

Justices Powell and Rehnquist in the recent case, Arger-

slinger v. Hamlin, 92 S. Ct. 2006 (1972). Although both

justices concurred in the result reached by the majority,

i.e. that the lower court had erred in denying defendant,

an indigent, his right to counsel at trial for a “petty

offense”, neither agreed that a defendant, absent a valid

waiver, may not be imprisoned for even petty offense, un-

jess he was represented by counsel at his trial.

Mr. Justice Powell, in a well-reasoned opinion, exposed

the practical weaknesses in the Majority’s rigid rule and

rejected this expansion of due process. He stated:

Despite its overbreadth, the easiest solution would be

a prophylactic rule that would 8 the appoint-

in — its adverse impact on the administration

of the criminal justice systems of 50 States. This is

tion figure of 37,047 as of April 1, 1970 (statistics from the

Commercial Atlas). In Bramlett, the population of Volusia

County was somewhat larger—169,487 as of April 1, 1970

(statistics from Commercial Atlas)—but even this falls

ridiculously short of Allegheny County’s population of

1,606,160 as of the same date (U. S. Bureau of Census

figures) !

The folly of fashioning a similar type remedy in cases of

such different factual bases (i-e., the population to be af.

fected) should be readily apparent. A result which might

have worked im lightly populated, mainly-rural, Southern

counties should not be the guide im this case of a densely-

populated, highly urban, industralized city of the North.

Such an order in this case could only create undue havoc

im an already-straining judicial system—havoc creating

more detriment to ali county residents than any potential

benefits which might arise in some individual and isolated

In State v. Green, 470 S. W. 2d 571, 10 Cr. L. 2041 (1971),

the Supreme Court of Missouri recognized that the problem

of providing attorneys for indigent defendants should not

be the burden of the-courts nor the attorneys alone.

In spite of Gideon v. Wainwright, swpra, which held that

the federal Constitution requires the states to furnish coun-

sel to indigent defendants, the Court in Green noted (10

Cr. L. at 2042) that only defense attorneys are not provided

with compensation by Missouri State law. Others essen-

‘tial to the criminal justice system—prosecuting attorneys,

assistance to the Attorney General, psychiatrists, et al.

receive compensation for their services through legislative

provisions. Therefore, despite a long history of providing

such gratuitous services, the Court takes notice of the in-

creasing demand on attorneys both in assignment numbers

and in the extensive demands of a criminal case itself and

holds that no longer will the Court compel attorneys to

discharge a “duty which constitutionally is the burden of

the State.” (10 Cr. L. at 2042).

The Court invited the legislature to remedy the situation

by enacting appropriate legislature to provide for attor-

ney's fees and expenses and thus resolve this problem with

a permanent solution.

In deciding the Ozel Conley case, your Honorable Court

should follow the rationale of the Green case. Just as in

Green, the Commonwealth of Pennsylvania has failed to

provide by statute sufficient legal resources to meet the

ay which constitutionally i is the burden of the State.”

As the Court in Green has promised to no longer provide

“free” counsel. in the face of legislative inaction, so too

should this Court refuse to place such an ever-increasing

burden upon the states to provide for services which are

not mandated by statute. Just as the Court in Green held

tliat the legal profession should not continue to bear this

burden of providing counsel alone, the Court in the present

ease should refuse to apply court-made remedies to a prob-

lem which is; in essence, within the peculiar domain of the

State legislatare.

m Wee

CTT

Jef e

Artiche III, Section 2, of the Constitution of the United

States empowers federal courts to adjudicate only actual

mne,

In Summary, the respondents claimed that they had been

denied defense counsel at preliminary hearings for serious

offenses and that basically as a consequence they could not

properly defend against these charges at trial. The funda-

mental problem complained of was the alleged patent in-

ability of trial counsel to defend properly.

During the pendency of their appeal, the respondents had

their criminal charges disposed of in the state courts. Your

checked the appropriate court records, deter-

mined the status of respondents’ cases, and listed the dis-

eee Cty ee Ser Bebearing, prgee © ants, ue

follows:

4 Orel che November 1970 dis-

(a) Conley I grand jury

1 (b) Lewis Steward—no charges pending;

1 — Beigiary

N No. nce Se January 7, 5

“ an was paved on 10 year’ probation; 7

“ “tay — Fred Green—was found of Use of Nareotic

‘Drage at Ne. 686 February Sa

4 * i 9

rey

— fe) J — — ty to Solicitation to Com-

“ rast Bodomny at o. June, 1970 and was placed

on probation for a period of one year;

11 00 Enn of Armed Reb-

. bery, Receiving Stolen Goods Violation of the

oe n 6252 September 1971

on September 27, 1971;

8 (8) Marvin Kennedy was found guilty of Larceny of

an Automobile at No. 6951 October 1970 on Decem-

ber 11, 1970 and was sentenced to serve a term of

imprisonment of from six to eighteen months ;

(h) Charles De Meo—was found guilty of Violation of

the Dangerous Drug and Cosmetic Act at No. 7228

October Term 1970 on March 26, 1971 and was

sentenced to serve a term of imprisonment of 1 i

to 2 years, concurrent with a previous sentence.

(i) Douglas Hays, Charles Zeitimen, Dean C and

John Chawryluk were not listed in Kg Sor

court according to the crime charged. However,

appellee was able to determine that indictments

were brought against them as follows: Hays has

no indictment pertinent to sity of 2 in ques-

en; — * yt — 1 15

a Fglary at No. 1145 February 1 —

13971 and was placed on 1 year probation; Craig

Was indicted at 1052 February 1971 for B

- Larceny and Receiving Stolen Goods—he failed to

appear for trial on May 2, 1972 and his bond was

-- forfeited. And John Chawryluk was found guilty

af Violation of the Dangerous & Cosmetic

Act at No. 1172 February 1971 on July 23, 1971

and was placed on probation for a period of three

Fears.

In de several 8 where 3 were found

not guilty, they certainly did not suffer from the failure of

the magistrate to appoint counsel. Those who plead guilty

waived all non-jurisdictional defenses by virtue of their

plea, 80 they could not challenge on appeal the question of

counsel at preliminary — or few ee

who were found guilty nad ap adequate state remedy by

virtue of the state appellate process. They have not exer-

cised their right to 4 direct appeal and the time period in

whieh to do so has lapsed. The same remedy advanced by

this Court in Coleen, that of a remand for a state court

evidentiary hearing, would have been available to these

respondents. However, they specifically chose not to pursue

the matter further. With the exception of Dean Craig who

failed to appear for trial, not a singie appellant had stand

ing to pursue the appeal before the Court of Appeals.

Under these circumstances, the Court of Appeals should

not have comsidered the case because the controversy is

moot and its opamion is merely advisory as it affects others.

It is true that the District Court in this case found that

respondents adequately represented several classes of indi-

viduals charged with state criminal offenses: a class com-

prised of those indigent defendants who have had prelim-

inary hearings without being afforded counsel and who

have been bound over to court, a class comprised of all

indigent defendants who await preliminary hearing sched-

nied in the future, and persons presently in jail in liew of

bond and others who have been released on bond. Almost

it is unlikely that any original class plaintiffs still maintain

the same status or any status which would give them stand-

ing. Tt is submitted that new criminal defendants, not

charged at the time this action was commenced, are not

proper plaintiffs, under this Court's decisions in Younger

v. Ferris, supra, and Boyle v. Landry, 401 U. S. 77 (1971).

Finally, the parties against whom this action was org

ally brought, are improper parties Neither the Magis

tzates of the City of Pittsburgh nor the District Attorney

have the power to appoint counsel or provide counsel to

indigents in preliminary hearings.

For the reasons stated above it is urged that the Petition

be granted and that this Honorable Court issue Certiorari

to the United States Court of Appeals for the Third

Cirenit.

Respectfully submitted,

DEAN L. CRAIG, JOHN CHAWR

+ Intervensng Plasntrff s,

—

Appen A—Opinion of Federal District Cowrt

Esquire, has intervened as amicus cwria on behalf of Alle

gheny County and the minor judiciary thereof.

_ Plaintiffs challenge the constitutionality of the practices

of defendant Magistrates in conducting preliminary bear-

ings. Challenged in the first instance is the refusal of

defendant Magistrates to advise indigent defendants that

they are entitled to the representation of counsel at their

preliminary hearings and to appoint counsel for this pur

pose upon request. Secondly, plaintiffs challenge as un-

constitutional the refusal of defendant-Magistrates to pro-

vide transcripts of preliminary hearings, without cost, to

indigent defendants who have been represented by certain

counsel at their preliminary hearings bat will be repre

sented by different counsel at their trials. The Court has

jurisdiction by virtue of 28 U.S.C. $1343, 42 U.8.C.

$4 1983 and 1988, and 28 U. S. C. 6 2201 and 2202.

Plaintiffs seek to maintain this action as a class action

pursuant to Rule 23 of the Federal Rules of Civil Proce-

dure. They contend, and the Court finds, that plaintiffs

adequately represent what are, in effect, three classes of

elass is comprised of those indigent defendants who have

sentation of counsel and who have been bound over to court

to await grand jury proceedings. The second class is com-

prised of those indigent defendants who have been afforded

the representation of counsel at preliminary hearings, have

been bound over to court to await grand jury proceedings,

will be represented at trial by counsel other than those

which represented them at the preliminary hearings, and

have been refused free transcripts of the preliminary hear-

ings. The third class is comprised of all indigent defend-

ants who await. preliminary hearings. scheduled in the

future. Within each class are persons who are presently

confined’ in jail in lien of bond and others who ‘have been

released on bond. ieee:

e vomit. Plain-

tiffs seek a declaration that the aforementioned practices of

defendant-Magistrates are unconstitutional. They also

seek an injunction: (1) restraining defendant-District At-

torney from presenting an indictment and/or scheduling

and proceeding to trial in any case in which an indigent

preliminary bearing nor knowingly, understandingly, and

intelligently waived a right to such representation; (2) re-

straining defendant-District Attorney from scheduling and

proceeding to trial in any case where an indigent defendant

will be represented at trial by counsel other than the one

which represented him at his preliminary hearing and a

request for a transcript of the preliminary proceedings,

without cost, has been denied him, and (3) restraining de-

Yendant-Magistrates from conducting any preliminary hear-

ings without advising indigent defendants of their rights to

representation appointed counsel at said hearings and

without appointi Se

reheated.

ch Snel hensing: vpen the relial sequseted by plsintiffs

was held on Getober 19, 1970, Motions to dismiss presented

by defendants at the outset of the hearing were taken under

avivisement...The material facts are not in dispute, the

r ueencices net

Appendia A—Opimion of Federal District Court

In Allegheny County, which includes the City of Pitts-

burgh, indigent defendants are represented at trial either

by the Office of the Publie Defender of Allegheny County

or, in some instances, by private attorneys appointed by

the Court of Common Pleas of Allegheny County and com-

pensated from County funds. In capital cases, indigent

defenders are provided with representation by the Public

Defender or court-appointed private attorneys shortly after

preliminary arraignments and thereafter. Thus, in capital

cases, indigent defendants are represented by counsel at

preliminary hearings. In other cases, indigent defendants

are provided with representation by the Public Defender or

court-appointed private attorneys only upon being bound

over to Court, and, therefore, they are not represented at

preliminary hearings by counsel.

Prior to August 15, 1970, defendant-Magistrates pro-

vided no means of recording the proceedings at preliminary

hearings. Since that date, defendant-Magistrates have pro-

vided mechanical tape recordings of said proceedings.

These tape recordings are made available for the use of

counsel for the defendant and may be transcribed at the

expense of the defendant. No public funds have been made

available to pay the cost of a transcription desired by an

‘indigent defendant.

In this action, defendants strongly urge the Court to

abstain from rendering an adjudication and dismiss the

‘Complaint. Whether the Court should abstain from rea-

dering declaratory relief is a question apart from whether

injunctive relief should be granted. Zwickler v. Koota, 389

U. S. 241, 254 (1967). Abstention is a doctrine not to be

lightly invoked. W See See

. Cohens v. Virgini

™ attempts have been made to

forum.

see McNeese v.

6. Cf.

aids

in the domain of absention is to find oneself in a ‘darksome

or ‘obscure forest’,”

delineate those “special circumstances” in which abstention

> 1 lark. Bllendogen, et al., Civil Action 70-185, W. P. Pa, decided

September 23, 1970, at pl. -

Wood

Appendiz 4—Opinion of Federal District Court

I. To avoid the decision of a federal constitutional

question where the ears may be disposed of on ques-

tions of State law.

2. To avoid needless com et with the administration

by a state of its own affairs.

3. To leave to the States the resolution of unsettled

questions of state law, and

4. To ease the congestion of the federal docket.

Wright, Federal Courts, 196 (2ed 1970).

Defendants contend that, before deciding the constitu-

tional questions presented here, the Court should afford

the State courts an opportunity to resolve the questions

under State law. Specifically, they point to Sections 6 and

7 of the Public Defender Act, Act of December 2, 1968,

P. L. No. 358, 16 P. S. § 9960.6-7 (1970 Supp.). Sec

tion 6 provides in pertinent part:

“(a) The public defender shall be ible for fur-

nishing legal counsel, in the follo of

cases, to any who, for ~~ cient

Ne,

(2) Where a is with 43 —

able offense —— — held for grand

tion. In accordance with the r the

cases,

vided at earlier of the tion for

ense;

***" (Emphasis ee,

5⁴

Appendic. A—Opinion of Federal District Court

Section 7 provides:

For cause, the court of common pleas may, on its own

motion or upon the application of the defender,

.. the defendant, or person charged with being a juvenile

in int an attorney other than the publie

i defender to represent the person charged at any stage

for expenses necessarily incurred, to be fixed by the

ee ee and guid tayo county”

or of the case paid by the county.”

_ (Emphasis supplied.)

The aforequoted provisions cannot be interpreted as man-

dating representation of indigent defendants by counsel at

preliminary hearings. Clearly the language “may” as

used in the two provisions is permissive, not mandatory,

for the Legislature used the word “shall” in the Act where

a mandate was intended. No matter of interpretation is

presented, nor would the application of Sections 6 and 7 of

the Act by the State courts obviate the necessity of deciding

the constitutional questions presented here. There is no

intertwining of the constitutional rights asserted here with

questions of State law, and abstention on that ground is not

warranted.

While abstention. may well be appropriate to avoid need-

less conflict with the administration by a State of its own

affairs, the Supreme Court has indicated in Zwickler v.

Koota, supra, that the federal courts may not abdicate their

responsibility to entertain requests for declaratory relief

tive relief upon such claims would be deemed improper.

Declaratory relief here does not involve such an interfer-

ence with the administration of State affairs as would

warrant abstention.

— of, Raderal. Distviet.C

1 turn then to plaintiffs“ contention that defendant-

Magistrates are violating the cenatitutienal rights of plain-

tiffs and others similarly situated by refusing to advise

them that they are entitled to be represented by counsél at

‘their prélimi ‘heari aud ‘by réfesion “to 10

counsel for this purpose where the presence of counsel has

not been knowingly and understandingly waived. I believe

the recent decision of the Supreme Ceurt:in the ease of

Coleman v. Alabama, 399 U. S. 1 (1989) does require such

a: conclusion. In the Coleman. ease, decided on June 22,

hearing to be a “critical stage“ in that State's criminal

process, at which the provision of counsel. is. constitution-

ally required. The purposes of the Alabama preliminary

hearing are to determine whether there is sufficient evi-

dence against the accused to warrant. presenting his case.to

the grand jury, and, if so, to fix bail if the. offense. is. bail-

able. Defendants concede that the purposes of the Penn-

sylvania preliminary hearing are the same. The Pennsyl-

vania, preliminary hearing must, therefore, also be regarded

as a “critical stage” in this State’s criminal process, and the

provision of counsel at the preliminary hearing is equally

required here.

Defendants argue, nevertheless, that Coleman v. Ala-

sbama, supra, only requires counsel to be furnished in a

situation where the -aceused ultimately will be able to

demonstrate actual prejudice resulting from the faiture to

“have cannsel at his preliminary hearing. In 80 asserting,

‘defendants rely on the fact: that, in Coleman the Supreme

Court remanded the case to the Alabama Courts to deter-

ine whether the denial of counsel at, petitioners’ .prelim-

mary hearing resulted in prejudiee to .petitioners’ trial,

sas

ning the test of harmless error under Chapman v. Cali-

fornia, 386 U. S. 16 (1967).

Defendants interpretation of the Coleman decision is a

strained one. The Supreme Court stated at p. 9 of the

decision:

“The determination whether the hearing is a ‘critical

state’ requiring the provision of counsel depends, as

. . con-

8 ion and the ability of counsel to help avoid that

wadice.” United States v. Wade, supra at 227.”

It is the potential prejudice existing in any preliminary

Bearing confrontation and not the actual prejudice resulting

im any given case which led the Court to conclude that the

preliminary hearing is a critical stage in the criminal

process, requiring the presence of counsel. —

To assert that counsel is required only at a preliminary

hearing where actral prejudice ultimately will result from

counsel’s absence is to confuse the constitutional right with

‘stated in the Chapman case, supra, at 222

te “We:coneinde that there may be seme constitutional

i a particular case are so

$27 —

not requiring the automatic reversal of the conviction.”

The fact that the failure to afford counsel at a preliminary

“hearing may not, in the circumstances of a given case, be

0 prejudicial as to require vaeation of the conviction does

not render the presence of counsel at a preliminary hearing

‘any less of a constitutional right or the failure to provide

Appendix A—Opinion of Federal District Court

counsel at such a hearing any less of a violation of that

right. I therefore conclude that the present practice of

defendant-Magistrates in conducting preliminary hearings

without providing counsel for indigent defendants is viola-

tive of their rights under the Sixth and Fourteenth Amend-

ments to the Constitution. — *

Plaintiffs’: second contention is that the Constitution re

quires -the State to provide a free transeript of a prelim-

inary hearing to an indigent defendant who has been repre-

sented by a particular counsel at the hearing but will be

represented by different counsel at trial. An indigent de-

fendant’s constitutional right to a free transeript of his

preliminary hearing for use at trial has been recognized

in Roberts v. La allee, 389 U. S. 40 (1987). In that case,

the Supreme Court ruled violative of the Equal Protection

Clause of the Fourteenth Amendment a New York statute

which provides that a transeript of a preliminary hearing

would be furnished to a defendant only upon payment of a

fee and reversed the conviction of an indigent defendant

who had requested but had been denied a free transcript

of his preliminary hearing for use at trial. The Court

stated at p. 42:

“Our decisions for more than a decade now have made

clear that differences in access to the instruments

needed to vindicate legal rights, when based upon the

financial situation of the defendant, are repugnant to

the Constitution. ar b. Draper v. N ton, 372

U. S. 487 (1963) ; Griffin v. Illinois, 351 U. 8. og

Only last term in Long v. District Court of Iowa,

US 192 (1966), we reiterated the statement first made

in Smith v. Bennett, 365 U. S. 708, 709 (1961), that

‘to interpose any financial consideration an

indigent prisoner of the State and his exercise of

a state right to sue for his liberty is to deny. that

Appendia A—Opinion of Federal District Court

2 ion of the laws.“ We have

Wie Mock Court of Appeals in Montgomery, us applied

do den a free to an indigent, could not meet

ato. the test of our prior decisions.“

In Roberts v. LaVallee, supra, the Supreme Court appar-

ently was confronted with a procedure in New York where-

by reporters customarily recorded preliminary hearings

but only provided written transcriptions of the records

thereof upon payment by the defendant of a fee. The deci-

sion has been deemied applicable, however, to require also

the recording of preliminary hearings where previously

none had been made. In Gardner v. United States, 407 F.

2d 1266 (D. C. Cir. 1969), the United States Court of

Appeals for the Distriet of Columbia, while refusing on the

basis of harmless error to set aside the conviction, held that

the failure of the District to record preliminary hearing

proceedings and to provide indigent defendants with tran-

scripts of such proceedings violated the defendants’ rights.

The Court of Appeals stated at p. 1268:

The rampant confusion in the present case as to what

happened in the Court of General Sessions, com-

pounded by conflicting and blurred recollections, gives

- gubstance to our worst fears about the consequences

of failing to record a preliminary hearing. In some

: eases denial of a written transcript may in fact be

- harmless error. But where, in contrast to the unusual

cireumstances of this case, there is any colorable claim

of prejudice, it will be impossible for us to find the

error harmless if there is no authoritative way for us

to discover what actually transpired. Moreover, where

nds an erroneous denial of written transcript is general-

“=< ly remediable, a prejudical failure even to record the

Proceedings may often be incurable. Therefore, espe-

„Kalz in view of the constitutional status accorded an

i” imdigent’s right to a transcript by Roberts v. La Fallee,

Appendiæ A—O pinion of Federal District Court

supra, tt now appears essential that every preliminary

hearing be transcribed, whether by court recorder or by

tape recording, regardless of whether any request for

transcription is made. In the exercise of our super-

visory responsibility we so instruct the courts and the

Commissioners of the District of Columbia. It is ex-

pected that appropriate procedures will be taken to

assure that transcriptions once made are preserved.

(Emphasis added.)”

As interpreted, Roberts v. LaVallee, supra, requires both

that the preliminary hearing proceedings be recorded and

that a transcription, in one form or another, be made avail-

able on request to an indigent defendant for use at trial.

While plaintiffs assert this right only on behalf of those

indigent defendants who have been represented by one

counsel at their preliminary hearings and will be repre-

sented by another counsel at trial, the right must be re-

garded as equally applicable to those indigent defendants

who are represented by the same counsel throughout the

proceedings.

The decision of the Supreme Court in Coleman v. Ala-

bama, supra, merely serves to reinforce the importance of

the right of an indigent defendant to a free transcript of

his preliminary hearing upon request. In Coleman, the

Supreme Court concluded that the presence of counsel at

a preliminary hearing is essential for the following rea-

sons, stated at p. 9g:

„First, the lawyer's skilled examination and eross

examina ion of witnesses may expose fatal weaknesses

in the State's case that may lead the magistrates to

refuse to bind the accused over. Second, in any event,

the skilled interrogation of witnesses by an i-

enced lawyer can fashion a vital impeachment for

use in cross examination of the State’s witnesses at the

trial, or preserve testimony favorable to the accused

second enumerated benefit of counsel's presence, to fashion

a vital impeachment tool or to preserve the favorable test.

mony of one who does not appear at the trial, is a benefit

which, as a practical matter, cannot be realized without

there being available to counsel! at trial a verbatim tran.

script of the preliminary hearing.

While Roberts v. LaVelle, swpra, requires that prelim-

imary hearing proceedings be recorded and that a free

transcript of those proceedings be made available to an

indigent defendant for use at trial, either the services of

a court reporter or a reasonable alternative thereto may

be used to record the proceedings. Draper v. Washengton,

872 U. & 487, 405 (1962), Grifith o. . 351 U. S. 12,

20 (1955), Gardner v. United States, supra, at 1268. The

provision and use of a tape recorder at preliminary bear

ings will satisfy the State's obligation provided that counse!

may have effective use of the recording at trial. Because

one of the primary uses of the recording is for purposes

of impeachment, | conclude that a typewritten transenption

must be provided, if mot by secretarial services supplied

by the State, at least at the expense of the State.

stantially different from those which governed the deter

mination to render declaratory relief. In Douglas v. Jcan-

ente, 319 U. 8. 157, 163 (1942), the Supreme Court stated

after the Coleman decision. members of the Court of

Common Pleas of Allegheny County, the Commissioners of

Allegheny County, the Public Defender of Allegheny Coun-

ty, the District Attorney of Allegheny County, the Solici.

Appendaz A—Opwmon of Federal Dratriet Cowrt

tor of Allegheny County, the Solicitor of the City of

Pittsburgh and members of the Neighborhood Lega! Ser.

views Association met to consider the umplications of the

decision and the manner in which it could be implemented.

Applications have been made to the Pennsylvania Crime

Commission to secure funds for the representation of

imdigents at preliminary hearings.

However, it is evident that not only the City of Pitts

bargh and the County of Allegheny but also the entire

State of Pennsytvania will be required to make substantia!

changes in criminal procedures in order to accommodate

the decision. Throughout the State, there is an extremely

large number of members of the minor judiciary who have

the power to preside over criminal proceedings. In AI

five members of the minor judiciary are empowered to

preside over preliminary hearings. The impracticality. if

not the impocsibility, of having counsel appointed by «

court of general jurisdiction to attend proceedings before

the minor judiciary, in some instances many miles away.

was recognised prior to the Coleman decimon. See Rale

318 of the Pennsylvania Roles of Civil Procedure, Com-

ment of the Criminal Procedural Rules Committee. More.

over, the financial burden which would result from requiring

court-appointed counsel to travel to remote locations is

formidable. For these reasons, State officials are present.

ly considering the possibility of limiting the number of

members of a minor judiciary empowered to condart

preliminary hearings.

It is clear that to accommodate the Coleman case, sub

stantial procedural changes will have to be made, some by

Appender A —Opamon of Federal Dastrict Cowrt

the State Legisiature and others by the Supreme Court of

Pennsylvania through its rule making power. To accommo

date the requirements of Roberts +. LaV allee, repre, amilar

changes will be required. The Coleman decision having

been rendered only four months ago, it could not reason

Moreover, the Court does not find that plaintiffs and

eters similariy situated will suffer irreparable injery by

Appendix A—Opinion of Federal District Court

a chilling effect on First Amendment rights of freedom

of expression. There is no allegation here that any of the

prosecutions against plaintiffs have been brought in bad

faith. Nor are rights of freedom of expression involved.

demeanants for want of representation of counsel at trial,

the State minor judiciary continued to deny indigent mis-

accomplished what, in every instance, would have been

accomplished by appeal subsequent to trial. Such is not

the case here. There may be expected to be many instances

in which deprivation of the right to counsel at a prelimi-

nary hearing will not result in such prejudice to the indi-

gent defendant at trial as would warrant reversal of the

conviction.

Also the injunctive relief sought here would not be

without detriments to plaintiffs and others similarly situ-

stages in the criminal prosecutions of indigent defendants,

the trial itself, until such time as their rights to the

representation of counsel at their preliminary hearings

and to transcriptions of the hearings are afforded to them.

The likely result of such an injunction would be the delay

of their criminal proceedings. This delay would favor

neither those who would languish in jail during the pen-

dency of the proceedings nor those released on bond during

that period.

It is concluded that there are not existent in the instant

case such special circumstances as would warrant the

This Opinion shall constitute the Court’s findings of

faet and conclusions of law, consistent with Rule 52(a) of

the Federal Rules of Civil Procedure. An appropriate

order is entered.

Appen A—Opumon of Federal District Court

ORDER

Ab Now, this 30 day of October, 1970, Ir = Hunzsy

Oban axp Denn, consistent with the within Opinion,

that the prayer for declaratory judgment is granted, and

it is hereby declared :

1. That the practice of defendant-Magistrates in con

tiffs and others similarly situated of their rights to

representation by counsel at said hearings and with-

out counsel being appointed to represent indigent

defendants at said hearings where the right to counsel

is not knowingly and understandably waived con-

stitutes a violation of the rights accorded plaintiffs

and others similarly situated under the Sixth and

Fourteenth Amendments to the Constitution.

That the failure of defendant-Magistrates to provide

With a free written transcription of tape recordings

1 of their preliminary hearings, if not through utiliza-

tion of the stenographic services of the State at least

at the expense of the State, constitutes a violation of

the rights accorded plaintiffs and others similarly

situated be the Fourteenth Amendment to the Con-

stitution.

Ir n Fouernes Ona that plaintiffs’ request for a

preliminary injunction be and the same is hereby denied.

/s/ WALLACE S. GOURLEY,

Senior District Judge.

Opinion of the Court

(Filed April 17, 1972)

Received

Apr 19 1972

— ey

Judge, U. S. District

UNITED STATES COURT OF APPEALS

For tae Tarp Crmourr

No. 71-1011

OZEL CONLEY, LEWIS STEWARD, DOUGLAS SIZE-

MORE, FEED GREEN, JOSEPH BOLAR, EARL

—— — —— — —

DEAN L. CRAIG and JOHN CHAWRYLUK,. Inter-

ae Be .

Arr. From Toe Usrrep Starzs Distaict Court

For rae Western Duwraicr or Pewnsyivania

Argued December 14, 1971

Before Vax Dusex and Huwren, Circuit Judges,

and Lartox, Semior District Judge

Appendia B—Opimion of the Court

; nurn, C Judge.

Aenne ate H Who have been charged with

violations of the criminal laws of Pennsylvania and who

are unable to afford or otherwise obtain counsel at their

preliminary hearings. They brought this 6 1983' Civil

Rights action on behalf of themselves and others similarly

situated“ against appellees, the District Attorney of Alle-

gheny County, Pennsylvania, and five city of Pittsburgh

‘magistrates, claiming that their 6th and 14th Amendment

rights as established by Coleman v. Alabama, 399 U. 8. 1

(1970), are being systematically violated. Specifically,

they ‘challenge the Magistrates’ practices of (1) refusing

*The District Court found that ts adequately represented

several classes of individuals with state criminal offenses.

Incladed is a class comprised of those indigent defendants who have

had hearings without being afforded counsel and who

have over to court; a class com of all indigent defen-

ee — — uled in the future and.

been released on bond.

Fu. 4 on SS 8. L. W. 4255 (U. S. March 6, 1972),

the Supreme Court held that Coleman would not be applied retro-

Appendia B—Orpinion of the Court

Plaintiffs sought declaratory relief in the nature of a

ruling that the stated practices were unconstitutional, as

well as a permanent injunction (1) enjoiming the District

Attorney from proceeding to trial in any case in d an

indigent neither was represented by counsel at his pre

that right, and (2) restraining the Magistrates from c

that decision. Conley v. Dauer, 321 F. Supp. 723 (W. D.

Pa. 1970). There is no cross-appeal from the declaratory

ruling of uncenstitutionality or from any of the other M-

Appendsz B—Opwmuon of the Court

: The facts are not in dispute and are for the most part

drawn from the parties stipulation. In Allegheny County,

which encompasses the City of Pittsburgh, indigent crim-

imal defendants are represented at trial either by the Public

Defender or private court-appointed counsel. However,

only im capital éases are indigents apprised by the presid-

img authority of their right to counsel and, in fact, provided

free counsel at the preliminary hearing stage. In all other

eriminal prosecutions, counsel is not provided unless a

prima facie case of a defendant’s guilt is established at

the hearing and the defendant held for further proceedings.

See generally Pa. R. Crim. P. 120-123; Public Defender

Act 35 6, 7, supra n. 4.

This situation is apparently the unfortunate result of

Although Coleman did not decide that a preliminary

hearing was constitutionally required, it did hold that when

® state utilised the preliminary hearing as « stage of its

$1301 of seq. (Supp.1971).

adoption of the — em erm =e . te

are empowered to conduct preliminary hearings.

7²

Appendiæ B Opinion of the Court

‘The District Court, sitting only four months after

Coleman was decided,” quite properly concluded that it

time period that had elapsed. It therefore refused to grant

injunctive relief.

tion,” we do not deem it appropriate to grant injunctive

relief at this time.“ Rather, we remand the case to the

n The District Court sat October 19, 1970. Coleman was handed

down on June 22, 1970.

u On November 22, 1971, (effective December 1, 1971) the Penn-

sylvania Supreme Court adopted an amendment to a Pa. R. Crim. P.

156 which would in effect allow the President J of a Pennsylvania

Judicial District the discretion to determine t classes of cases

necessitate centralized i hearings and would require him

1 1e of those preliminary

hearings. application amended would, presumably,

require the services of fewer attorneys than the current system.

n We have also been notified by counsel for the lees that the

Local Planning Council of the Governor's Justice ission has

a request from the Court of Common Pleas of Allegheny

Gon for e funds to hire twelve additonal fall tim

ee a ee use at preliminary hearings. v

the Justice Commission is . 10

ö isions in Younger v. Harris, 401 U.S. 37 (1971) ;

v. Mackell, 401 U. S. 66 (1971) ; Boyle v. Landry, 401 U. 8.

Epo Cap DR mae i . 8. 82 (1971) ; Dyson v. Stein,

401 U.S. 200 (1971) ; and Byrne v. Karalexis, 401 U. S. 216 (1971).

court may riately enjoin a pending

which a federal court may involve itself in a state criminal proceeding

(Footnote continued on following page)

Appendia B—Opinion of the Court

District Court for the holding, promptly, of further proceed-

ings to determine whether steps have been taken to insure

— —

Footnote continued from preceding page ) ;

i relief t to the Decla J t

ct 28 U. 8. 2% 0 e

oi (1967), „ ~ ~ nae

decision in . ———

— upe 401'U.

8 No appeal was

* a Fm Fog W. 4997 (U.S. Pebrasey 24

1979) Gao Pres Tne r City of Philadciphia 418 F 2d 82, 85

)

«Bane rin ens

t and is one of the express exceptions to

Act, 28 U. 8. C. § 2283 (1964). See also

3 v. — 184 F. 2d 119, 124 (3d Cir. 1950) (8 1983

Rights action falls within the “expressly authorized by Cougress”

n 1 *

proper relief based in a declaratory

ey after reasonable notice and

nat ye + Bory adverse party whose rights have been deter-

Agrar on th stata ators te Supreme Court stated that :

declaratory judgment can be used as a predicate to further relief,

2 = rs Powell v. McCormack, 395 U. 8, 486, 499

oat Adams, 345 U.S. 461 (1953); 6A Moore

{eens mac 10. Samuels v. Mackell, supra, 401. U. S. at 72.

Although voluntary compliance with the orders of Federal courts

is the norm and desideratum,” American Law InstiTvTe Stupy or

consider the — of injunctive relief pursuant to

The Court will, of course, also determine whether the developments

described above, supra nn. 12, 13 have rendered the case moot.

Appender B—>pemon of the C owrt

that the Colemes mandate wil! be followed m Allegheny

County im the immediate future. Included in the District

Court's inquiry should be a determination of the bone Ades

of governmental action as well as « determination of

whether the proposed new developments wil) be instituted

and operable forthwith and whether these developments

will, in fact, act to remedy the situation. In the event that

the District Court fimds that necessary steps are not being

taken, it Shall fashion whatever remedies it deems appro

Printe, consistent with our holding that Colemen must te

followed and unjustifiable delay cannot be tolerated.

The case will be remanded to the District Court for fur-

ther proceedings not inconsistent with this opinion.

A True Copy:

Teste

APPEMIMK C

On Petition for Rehearing Before the Court Eu Bence

UNITED STATES COURT OF APPEALS

For rae Temp Crscorr

DOUGLAS HAYS and CHARLES ZEITLMEN, on be-

half of themselves and all others 7 ag —

DEAL L CRAIG, and-JOHN CHA

vening Plaintiffs,

Appellants.

IIe Ne

SKI, EARL and ANTHO 5

1 for the City of

and — W. AN, individually and as

Before Sarr, Chief Judge, and Va» Dusex, Atoemmer,

Apams, Gueeows, Rosewx, Reer and Herrn Circuit

Judges, and LAN. Senior District Judge.

Pee Com:

and to all the other available circuit judges of the circuit in

Append O Petation for Rehearmg before

, the Cowrt En Banc

peguiar active services, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court em bemc, the peti.

tion for rehearing is denied.

Chief Judge Sutz does not desire rehearing only because

the defendants did not appeal the judgment.

Dated: June 27, 1972.

tition for Rehearing.

I dissent from the denial! of the petition for rehearing.

In my view, this court should have remanded the pro-

ceedings with a direction to dismiss the complaint because

the alleged constitutional deprivation—failure of the state

to provide counsel for indigents at preliminary hearings—

concerns the assertion by each plaintiff of a federal right

which may be vindicated in a defense in a single state erm

inal proceeding. Younger v. Harris, 401 U. 8. 37 (1971);

Samuels o. Mackell, 401 U.S. 66 (1971); Boyle v. Landry,

401 U. S 77 (1971). *

Younger, Samuels, and Boyle, all decided subsequeut to

the district court order, provide that federal interference in

state prosecutions is severely circumscribed; that “excep

ence presume a showing of irreparable injury, Douglas v.

City of Jeannette, 319 U. 8. 157, 163 (1943) ; that the injury

must be “showing in the record,” and not merely alleged,

Appende C Fe for Rehearing before

the Cowrt Ex Bamc

Samuels, 401 U.S. at 68; that to overcome the “longstand-

img publie policy against federal court interference with

state court proceedings,” Younger, 401 U.S. at 43, “even

irreparable

;

100

111

single criminal prosecution, could not by themselves be

considered irreparable Ibid.

Thus, the district court was eminently correct in denying

the requested injunction. That portion of its order should

County’s rejection of that judgment. This we cannot accept.

Given the unique posture of this case, the District Court on

remand should consider the appropriateness of injunctive

relief pursuant to 28 U.S.C. § 2202.” (Slip opinion at 7,

a 4)

Appendir C—On Petition for Rehearing before

the Court En Banc

The panel's opinion closes with an instruction to the

district court to “fashion whatever remedies it deems ap-

propriate, consistent with our holding that Coleman must

be followed and unjustifiable delay cannot be tolerated.”

Indeed! Tolerated by whom! A federal district court has

"0 supervisory or review power over any state court. The

seminal case of Fay v. Nota, 372 U. S. 391, 430 (1963), mere-

ly gave federal district courts jurisdiction to inquire into

“detention simpliciter.” When a non-custodial sentence is

imposed by the state, a federal district court lacks even

habeas corpus jurisdiction. United States ex rel. Dessus v.

Commonwealth of Pennsylvania, 452 F. 2d 557, 559-60 (3d

Cir. 1971). Similarly, a court of appeals has no power to

review a state criminal proceeding. We may inquire only

whether there has been an unconstitutional imposition of

‘custody by the state.

Even more questionable is the notion that under the

guise of § 1983, a federal district court may enjoin the state

of Pennsylvania from prosecuting in Allegheny County,

and the state courts from holding preliminary hearings,

unless the panel’s concept of Coleman be respected. There

is simply no authority and no precedent for this federal

intrusion into state criminal processes.

Douglas v. City of Jeannette, supra, announced the gener-

al rule that a federal court should refuse to “interfere with

or embarrass threatened proceedings in state courts save

in those exceptional cases which call for the interposition

of # court of equity to prevent irreparable injury which is

elear and imminent.” 319 U.S. at 163. Later, in Stefanelli

v. Minard, erm. 120 (1951), the Court observed

the Court Bw Banc

‘that dictates of ‘federalism demand that the federal judi-

diary respect state enforcement procedures except, as stated

in ‘Douglas, in “exceptional cireumstances,” beeanse 'this

area represents perhaps the most sensitive source of: fric-

‘tien between States and Nation, namely, the active intru-

seen of the federal courts in the administration of the erim-

inal law for the prosecution of crimes solely within the

‘power of the States.” ‘Severely limiting the concept of

irreparable harm, the Younger Court reaffirmed this prin-

ciple of comity as “a proper respect for state functions, a

mecognition of the fact that. the National Government

will fare best if the States and their institutions are left to

perform their separate functions in their separate ways.”

401 U. S. at 44.

Moreover, I am not convinced that this court lacks juris-

diction to right the wrong of an improperly issued decla-

ratory judgment affecting the delicate area of federal state

relations, simply because no appeal was taken. No appeal

was taken, however, and declaratory judgment considera-

tions are not before us.” (Slip opinion at 7, u. 14.) There

are two answers to this. First, the panel stated in ohe

not before us,” and then proceeded in the very next para-

‘graph to address itself to the “appropriateness of injune-

‘tive relief pursuant to 28 U. S. C. § 2202." Thus, the very

injuneti ve relief proposed by the panel inexorably brings

into appellate purview the declaratory judgment, the sab-

-stantive underpinning of the relief suggested by the panel.

Further

Appendin€—On Petition for Rehearing before

tue Court Ew Banc

Sedondly, I would notice the faulty declaratory judg.

ment on appeal because the absence of true adversity be-

tween the parties to these proceedings raises a serious ques-

‘tion: of justiciability, and therefore jurisdiction. It is a

well settled principle that the question of subject matter

@urisdiction is always open. It cannot be conferred or sup-

plied by consent of both parties or by estoppel, laches, or

waiver-of either party. Eldridge v. Richfield Oil Corpora-

tien [247 F. Supp. 407 (S. D. Cal. 1965), aff'd 364 F. 2d 909

« (9th. Cir., 1966)] > Page v. Wright, 116 F. 2d 449 (7th Cir.

18400 Brown v. Fennell, 155 F.Supp. 424 (E. D. Pa.

91957).” Knee v. Chemical Leaman Tank Lines, Inc., 293 F.

“Supp. 1004, 1095 (E. D. Pa. 1968). Similarly, in Moore v.

eae Inc., 454 F. 2d 81, 84 (3d Cir. 1972), we

noted that “[i]t is proper for this court to inquire into the

prerequisites sua sponte.”

pllfae tented. the twee adbmennsiry i the premedings

im the. distriet court fairly leaps from the panel’s opinion.

The agency charged with supplying public defenders con

eededly is Allegheny County, Pennsylvania, yet, it is not

a party to the action. Nevertheless, the panel’s opinion

states, “we expect Allegheny County to fully comply with

the District Court’s declaratory judgment.” (Slip opinion

at 7, n. 14.) The defendants are six magistrates of the City

of Pittsburgh and the County District Attorney. None of

the defendants has authority or jurisdiction to implement

the district court’s deelaratory judgment or the panel's

invitation to eonsider use of mandating an injunction to

compel performance. Putting aside the recognized im-

munity’ of state judges under actions brought under 42

U. S. C. § 1983, Pierson v. Ray, 386 U. S. 547 (1967) ; Bauers

Appendic . Petition for Rehearing before

the Court En Banc

attorney’s office is prose-

relief against the appropriate

by Younger vw.

charged with the direction of the

f. 1 13 2 di ti which

Publie Defender program was not barred

1. Heisel, 361 F. 2d 581 (3d Cir. 1966),

the very function of the district

entiom, not defense, even if

This defect goes to the heart of

state government agency

may be raised by the court sua sponte.*

—

Er i at i

11 ate BLT 1110 tH

So ghee ee 12 if .

771 gh If Hebi 111

it 1 i it

15 11 fine aH 111

141 i ee Hi: 110

Deren

These proceedings, like Swarb v. Lennon, supra, illus-

tions rather. than limiting decisions to concrete cases in

«which a question is precisely framed by a clash of genuine

adversary argument exploring every aspect of the issue.”

Wright, Law or FL Counts, § 12, p. 37, citing United

States:-v; Fruchauf; 36 U. S. 146 (1961); Golden v.

Stickler, 394 U. S. 103 (1969). Mts!

‘Therefore, I respectfully dissent from the denial of the

petition for rehearing en banc.

A True Copy:

Teste :

Clerk of the United States Court of Appeals

For the Third Circuit.

and defendant. Swarb has created a jurisprudential vacuum

Pennsylvania. In Recommendation No. 37, the Procedural Rules

Committee of the a ee

Court ‘said that the ised by the three-judge court decision

8 . iate grist for the legislative mill.“ The

aleo noted three- decree in Swarb remains in

. The Legal Intelligencer,

e &PPENDIX v

Motion for Stay of Mandate by Robert W. Duggan, Appellee

_ IN THE

UNITED STATES COURT OF APPEALS

Fon tae Taro Crovrr

- behalf of themselves and all other si

ing Plaintiffs, |

ROBERT E. DA JOHN CHAPAS, LOUIS DAD.

OWSKI, EARL and ANTHONY TROIANO

individually and as Ci Magistrates for the City of

Pittsburgh and ROBERY W. DUGGAN, individually and

as District Attorney of Allegheny County, 4

No. 71-1011.

— D: ———

The appellee above named respectfully moves this Honor-

able Court to stay the mandate in the above entitled action

and not permit the same to be issued out of said cause

until the further order of the court, on the ground and for

the reason that appellee expects and intends, in good faith,

within the time allowed by law, to apply to the Supreme

Court of the United States of Amcrica by petition for a

review on writ of certiorari of the decision and judgment

rendered in favor of appellants and against appellee in

the above entitled action, and. :

-Appendia D—Botion for Stay of Mandate by

Robert . Duggan, Appellee

Appellee further shows to the court that he is ready,

able and willing to make a good and sufficient bond, con-

ditioned as provided by law, in said cause.

Nins, appellee. prays that the court make and

enter an appropriate order herein staying the issuance of

‘order of the court, and that the court fix the amount of

‘the bond required of appellee, and that he be given a

reasonable time in which to make, execute and file said

bond. |

Appendix D—Motion for Stay of Mandate by

Robert W. Duggan, Appellee

Cano. Mary Los, upon oath, says:

That she is one of the attorneys of record for the appel-

lee in the above entitled action; that she served a copy of

the above and foregoing motion upon appellants by mail-

ing to Neighborhood Legal Services, 310 Plaza Building,

Pittsburgh Pennsylvania 15219, Counsel for appellants,

said copy being mailed by regular United States mail with

the postage duly paid thereon, and the same having been

deposited in the post office at Union Trust Building, Pitts-

burgh, Pennsylvania 15219 on June 3, 1972.

_ CAROL MARY LOS.

Sworn to and subscribed before me

. this 3rd day of July 1972.

Notary Public, Pittsburgh, Allegheny County Pa.

My Commission Expires October 2, 1972.

— —

Appendiz D—Motion for Stay of Mandate by

+ Office of the Clerk

UNITED STATES COURT OF APPEALS

2046 U. S. Courthouse .

Ninth & Chestnut Streets

Philadelphia 1907

Thomas F. Quinn -

Clerk Sih : ; ? .

ee 215-597-2995

cen a July 13, 1972

Re: Oxzel Conley, et al., Appellants v. Dauer, et al.

a No. 71-1011 — ;

_. Enclosed herewith is conformed copy of order entered

Very truly yours, —

THOMAS QUINN

T. F. Oumx,

Clerk.

Appendia D—Motion for Stay of Mandate by

Robert W. Duggan, Appellee

UNITED STATES COURT OF APPEALS

Fon tae Tarp Cncurr

No. 71-1011

VS.

ROBERT E. DAUER, JOHN CHAP LEWIS DAD-

individually

DEAN J. CRAIG, JOHN CHAWRYLUK,

(Intervening Plaintiffs in D. C.).

D. C. Civil Action No. 71-1130)

Pursuant to Rule 41 (b) of the Federal Rules of Appel-

late Procedure, it is Onpzrep that issuance of the certified

judgment in lieu of formal mandate in the above cause be,

and it is hereby stayed until August 3, 1972.

JAMES HUNTER, III

Circuit Judge.

‘Dated: July 13, 1972.

Motion for Extension of Stay of Mandate under Rule 41 (b)

IN THE

UNITED STATES COURT OF APPEALS

For tas. Tarp Cncorr

co STEWARD DOUGLAS SIZE-

. lerer i situated and

BAN I. CRAIG ond JOHN CRAWRYL . Interven-

ing Plaintffs,

Psy Appellants,

ROBERT R DAUER, JOHN LOUIS DAD-

OWSKI, EARL HARRIS and ANTHONY TROIANO

and for the City of

ROBERT DUGGAN X, sndividal

No. 71-1011.

Axp Now, eomes the Commonwealth of Pennsylvania

by. its Attorneys, Rosert W. Ducaan, District Attorney of

Allegheny County, Pennsylvania and J. Kent Cutiey,

Assistant Distriet Attorney and requests that the Motion

For Extension of Stay of Mandate Under Rule 41 (b) be

granted for the following reasons:

1. On June 27, 1972 your Honorable Court denied ap-

pellee’s Petition for Rehearing Before the Court En Banc

in connection with the above-captioned matter.

Appenda; E—M otion for Extension of Stay of Mandate

Under Rule 4 (6)

2 On July 13, 1972 your Honorable Court ordered a

Stay of Mandate, pursuant to Rule 41 (b), until August 3,

1972.

3. At the present time appellees are preparing and will

file a Petition for a Writ of Certiorari to the United States

Supreme Court and requests that your Honorable Coart

grant an Extension of the Stay of Mandate untit September

N, 1972.

i. Appellees expects to file its Petition for a Writ of

Oertiorari prior to the 90 day appeal period but are cur-

rently seeking information from all other jurisdictions of

the United States concerning their efforts to comply with

the ruling of Coleman v. Alabama, 399 U. S. 1 (1970), and

need additional time beyond August 3, 1972 in order to

complete its investigation. .

5. Appellees have requested those jurisdictions whom it

“has contacted to reply as early as possible but it is believed

that such an investigation may not be complete until mid

August and appellees’ petition to the Supreme Court, there.

fore, will not be able to be completed and filed until late

August or early September.

Wuenerore, for the reasons set forth above, appellees

respectfully requests your Honorable Court grant an Ex-

tension of its Stay of Mandate until September 27, 1972.

Respectfully submitted,

ROBERT W. DUGGAN,

Distriet Attorney. -

J. KENT CULLEY,

Assistant District Attorney.

— —

Appendir E—Motion for Extension of Stay of Mandate

Under Ride.41 (

eee eee

989 nt tlaghon *

"AFFIDAVIT

Before me the undersigned ——. e ap-

peared J. Kur Cum, who being duly sworn according

0 law, deposes and says that he is an Assistant District

Attorney anil as such is authorized to make this ‘affidavit

that the facts contained in the foregoing are true and cor-

P ² wernt, eformation end -beliet

J. KENT CULLEY.

Sworn to and subscribed before me

' this 26th day of July 1972.

Maria 8. Schuetz,

_ Notary Publie, Pittsburgh, Allegheny County, Pa.

e e en

0 .

Under Rule 41 (6)

| } in etit, ann a

THE: UNITED STATES COURT OF APPEALS.

Fon tae Tap Curt a

OZEL CONLEY, LEWIS STEWARD, DOUGLAS SIZE-

MORT, FRED GREEN, JOSEPH EARL

DOUGLAS HAYS AND CHARLES — on

behalf of themselves an other similarly situated,

DEAN L. CRAIG and JOHN CRAWRYLUK, Interven-

ing Plaintiffs,

Appellants,

ROBERT E. DAUER, JOHN CHAPAS, LOUIS DAD.

OWSKI, EARL HARRIS and ANTHONY TROIANO

individually and as City Magistrates for the City of

Pittsburgh and Robert W. DUGGAN, individually and

as District Attorney of Allegheny County.

Appellees.

No. 71-1011.

J. Kent Corax, upon oath, says:

That he is one of the attorneys of record for the appel-

lee in the above entitled action; that he served a copy of

the above and foregoing motion upon appellants by mail-

ing to Neighborhood Legal Services, 310 Plaza Building,

Pittsburgh Pennsylvania 15219, counsel for appellants,

said copy being mailed by regular United States mail with

i Under Réle 41 (b)

the postage duly paid thereon, and the same having been

burgh, Pennsylvania 15219 on July 27, 1972.

IJ. KENT CULLEY.

Swern to and subscribed before me

Geis 28th day of July 1972.

ia 8, Schuets, : :

Notary Public, Pittsburgh, Allegheny County, Pa.

My Commission Expires October 2, 1972.

‘Appendix E Motion for Extension of Stay of Mandate

Onder Rule 41 (b)

Office of the Clerk

UNITED STATES COURT OF APPEALS

For tae TRD Circurr

2046 U. S. Courthouse

Ninth & Chestnut Streets

Philadelphia 19107

Clerk r ; 215-597-2995

: August 4, 1972

J. Kent Culley, Esquire

Assistant District Attorney

301 Court House

Pittsburgh, Penna. 15219

Re: Ozel Conley, et al., Appellants vs. Dauer, et al.

No. 71-1011

Dear Mr. Culley:

Enclosed herewith is a conformed copy of the order

staying issuance of the mandate to Sept. 25, 1972, in the

above-entitled case. If during the period of the stay we

receive notification from the Clerk of the Supreme Court

that a petition for writ of certiorari has been filed, the

stay shall continue until final disposition by the Supreme

Court.

Very truly yours,

M. ELIZABETH FERGUSON,

Chief Deputy Clerk.

bjr

ec: R. Stanton Wettick, Jr., Esquire

Dugene B. Strassburger, III, Esquire

9⁴

- Appendix E—Motion for Extension of Stay of Mandate

Under Rule 41 (b

ee eee neee

No. 71-1011 ce :

OEE CONLEY, LEWIS STEWARD, DOUGLAS SIZE-

enn FRED GREEN, JOSPH BOLAR, RAR.

DOUGLAS HAYS AND

behalf of themacives end all ober ‘situated and

2 and JOHN CRAWRTLUR, Interven-

ing e png.

: Apne”.

ROBERT K. 8 CHAPAS, LOUIS 0

e si Soest for 5

* — 7

e ee 333

Jate Procesture, it ia Oxomanp that issuance of the certified

Judgment in lien of formal mandate in the above cause, be,

and it is hereby further stayed until September 25, 1972.

’. JAMES HUNTER,

Dated: August 4, 1972.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.