# Amicus Curiae Brief — Spomer v. Littleton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0225%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 414 U.S. 514 ## Text SUPREME COURT, U. SyppEME ME COURT OF THE UNITED STATES} October Term, 1972 No. 72-955 W. C. SPOMER, State's Attorney of Alexander County, Illinois, Petitioner, Vv. EZELL LITTLETON, et al., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT | BRIEF OF THE DISTRICT ATTORNEY OF THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AS AMICUS CURIAE JOSEPH P. BUSCH District Attorney of Los Angeles County 18-709 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012 Attorney for Amicus Curiae Of Counsel: HARRY B. SONDHEIM Acting Head, Appellate Division . ARNOLD T. GUMINSKI Deputy District Attorney Appellate Division Office of the District Attorney County of Los Angeles 849 South Broadway Los Angeles, California 90014 Telephone: 213-624-2761 TOPICAL INDEX Page Interest of the Amicus Curiae 2- 8 Summary of the Argument 8=11 Argument . 11-39 I While 42 USC § 1983 Authorizes 11-15 Injunctive Relief for Viola- tions of the Equal Protection Clause, the Injunctive Relief Contemplated by the Court Below Violates the Principles of Comity, Federalism, and Equity established by this Court II The Doctrine of the Court 16-26 Below Respecting Equitable Relief Subverts the Purposes of the Immunity of State Judges or Prosecuting Attorneys Under 42 USC } 1983 III The Supervision of State Court 26-31 Judges or Prosecuting Attorneys Contemplated by the Court Below is Singularly Inappro- priate as a Judicial Function IV Assuming that Equitable 31-39 Relief Authorized by 42 USC $ 1983 Encompasses the Type of Mandatory Injunction Contemplated by the Court Below, it Should Be Limited to those Officials who have Intentionally and Knowingly Failed to Enforce Criminal Laws. based upon Unjustifiable Classification of Victims Conclusion 39 Appendix A: Relationship between rf Ethnic Group and Pattern of Treatment ig TABLE OF AUTHORITIES CITED Cases Page Adams v. City of Park Ridge, 293 F.2d 585 36 Agnew v. City of Compton, 239 36 F.2d 226 Ah Sin v. Wittman, 198 U.S. 500 32 Bauers v. Heisel, 361 F.2d 581 16 Boyle v. Landry, 401 U.S. 77 33 Bramlett v. Peterson, 307 #*.Supp. 19 1311 Byrne v. Karalexis, 401 U.S. 216 33 Cleary v. Bolger, 371 U.S. 392 25 Cobb v. City of Malden, 202 F.2d 701 36 Collins v. State of Florida, 432 F.2d 60 35 Coolidge v. New Hampshire, Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321 35 .36,357,38 Diamond v. Pitchess, 411 F.2d 565 36 District of Columbia v. Carter, 13 34 L.Ed.2d 613 Dyson v. Stein, 401 U.S. 200 33 Educational Equality League v. Tate, 472 F.2d 612 36 Ganger v. Peyton, 379 F.2d 709 29 Garren v. City of Winston-Salem, 36 North Carolina, 463 F.2d 54 Gibson v. Berryhill, 41 L.W. 4576 14 Greenwood v. Peackock, 384 U.S.-808 Fete Haley v. Troy, 338 F.Supp 794 19 Handy Cafe v. Justices of the 33,354,536 Superior Court, 248 F.2d 485 38 iii Harkless v. Sweeny Independent School District, 427 F.2d 319 Hewitt v. City of Jacksonville, 188 F.2d 423 Hilliard v. Williams, 465 F.2d 591 Jacobson v. Scheefer, 441 F.2d 127 Kenney v. Fox, 288 F.2d 228 Ker v. California, 374 U.S. 23 Kostal v. Stoner, 292 F.2d 492 Law Students Civil Rights Research Counsel, Inc. v. Wadmond, 299 F.Supp 117 Lehman v. City of Pittsburgh, 474 F.2d 21 Littleton v. Berbling, 468 F.2d 389 Loux v. Rhay, 375 F.2d 55 Madison v. Gerstein, 440 F.2d 338 Marlowe v. Coakley, 404 F.2d 70 McCray v. State of Maryland, 456 F.2d 1 Meyer v. State of New Jersey, 460 F.2d 1252 Mills v. Larson, 56 F.R.D. 63 Mitchum v. Foster, 407 U.S.225 Monroe v. Pape, 365 U.S. 167 Moor v. County of Alameda, 41 L.W. 4627 Moss v. Hornig, 314 F.2d 89 Newman v. U.S., 382 F.2d 479 Oyler v. Boles, 368 U.S. 448 Page 36,37 13 13 ,36,37 36,37 le 26 ,28,29 oe iv Palermo v. Rockefeller, 323 F.Supp 478 Peckham v. Scanlon, 241 F.2d 761 Perez v. Ledesma, 401 U.S. 82 Pierson v. Ray, 386 U.S. 547 Puett v. City of Detroit, Department of Police, 52> £ 620 594 Rakes v. Coleman, 318 F.Supp 181 Robichaud v. Ronan, 351 F.2d 533 Rouselle v. Perez, 293 F.Supp 298 Samuels v. Mackell, 401 U.S. 66 SanAntonio School District v. Rodriquez, 36 L.Ed.2d 16 Schnell v. City of Chicago, 407 F.2d 1084 Shadwick v. City of Tampa, 407 U.S. 345 Shock v. Tester, 405 F.2d 852 Silver v. Dickson, 403 F.2d 642 Smith v. U.S., 375 F.2d 243 Snowden v. Hughes, 321 U.S. 1 Spillman v.-U.S8,, 413 F.2d, 527 Stambler v. Dillon, 288 F.Supp 646 Stefanelli v. Minard, 342 U.S. 117 Turack v. Guido, 464 F.2d 535 _ Tenney v. Brandhove, 341 U.S. 367 Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582 United States v. Brokaw, 60 F.Supp 100 Page 19 19 43 13,18,20,21, 22,23 17 16 18,20,21,23 “33 28 U.S. v. Clark, 249 F.Supp 720 U.S. ex rel. Gittlemacher v. County of Philadelphia, 413 F.2d 84 U.S. v. Kysar, 459 F.2d 422 U.S. v. McLeod, 385 F.2d 734 U.S. ex rel. Lee v. People of the State of Illinois, 343 F.2d 120 Williford v. People of Calif., 352 F.2d 474 Yick Wo v. Hopkins, 118 U.S. 356 Younger v. Harris, 401 U.S. 37 Statutes 28 USC § 42 USC 42 USC 2283 L972 1983 tOr tO? 42 USC § 1988 U.S. Supreme Court Rule 42 Other Authorities A Study of the California Penalty Jury in First—Degree Murder Cases, ol Stanf. L.R. ot Gace issue, June 1969) A 4 "Prosecution of Adult Felony De- fendants in Los Angeles County: A Pol:cy Perspective," Rand Corporation, by Peter W. Greenwood, Sorrel Wildhorn, Eugene C. Poggio, Michael J. Strumwasser and Peter DeLeon Page 19 35 26 12,19 35 35 6,12 14,33 13 37 2,8,9,10,11,12, 13,16,18,21,25, Fs Pe 3 PR Se Pe ee 36,37,38 36 5 12 6,7 IN THE SUPREME COURT | OF THE UNITED STATES October Term, 1972 No. 72-955 W.C. SPOMER, State's Attorney of Alexander County, Illinois, Petitioner, di T. EZELL LITTLETON, MANKER HARRIS, JAMES WILSON, CARL HAMPTON, HAZEL JAMES, WALTER GARRETT, CHARLES KOEN, FRANK WASHINGTON, CURTIS JOHNSON, CHERYL GARRETT, YVONDA TAYLOR, RUSSELL DEBERRY, ROBERT MARTIN, PRESTON EWING, JR., JAMES BROWN, HERMAN WHITFIELD, WALLACE WHITFIELD, LEROY LAMBERT, By His Father and Next Friend, HOBERT LAMBERT, MORRIS GARRETT, By His Father and Next Friend, LEVI GARRETT, Individually and as Representatives of a Class, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF OF THE DISTRICT ATTORNEY OF THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AS AMICUS CURIAE This brief is filed with this Court pur- suant to the authority found in paragraph 4 of Rule 42 of the Supreme Court Rules. on Dias , INTEREST OF THE AMICUS CURIAE The United States Court of Appeals for the Seventh Circuit has announced in the instant casel/ the novel doctrine that where. it is "alleged and proved .. . that state officials consisttntly, designedly and egre- giously have, under color of law, deprived an entire group of citizens of their civil rights " (468 F.2d at 415), then a federal court, pur- suant to 42 USC § 1983,2/can grant injunctive relief which incluges provision for continuing supervision of state court judges or prose- cuting attorneys in order to prevent unconsti- tutional class discrimination in the enforce- ment of the criminal laws of the state. The court below, although eschewing the implication | that the injunctive relief "require[s] the district court to sit in constant, day-to-day supervision of either state court judges or 1. The case is reported as Littleton v. Berbling (1972) 468 F.2d 389. 2. 42 USC § 1983 provides: "Every person who, under color of any statute, ordinance, reguletion, custom or usage, of any State or Territory, subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 4 the State's attorney," provided the district court with "some guidelines as to what type of remedy might be imposed." (468 F.2d at 414.) The injunctive relief contemplated by the court below was indicated as follows: “An initial decree might set out the — general tone of rights to be protected and require only periodic reports of various tyres of ageregate data‘*on actions on bail and sentencing and dispositions of compliants. Neverthe- less, we have complete confidence in the district court's ability to set up further guides as required”~ and if ngcessary to consider individual decisions.”” Difficulty of formu- lating a remedy if s complaint is proved following a trial cannot be grounds for dismissing the complaint ab initio. We cannot so easily belittle the powers of 2 court of equity.nor the ability of district judges who have grappled with dif- ficult remedies before, €-£:» school desegregation orders, railroad .re- ss organizations." [Note] "52 E-g-» Abrams, internal Policy: Guiding the Exercise of Pre secutorial Discretion. 19 UcC.L.A. L. Revs 2. (1971). [9] i [Note] 53 Id. at 45-49 discussing Regina v. Commissioner of Police ex rel. Blackburn. [1968] 1 Q.B. 118." (468 F.2d at 414-415.) There can be no doubt that District Judge Dillin in his dissenting opinion was quite right in declaring that "[t]he majority holds, for the first time, that a federal district court has the power to supervise and to reg- ulate by mandatory injunction the discretion which state court judges and state's attorneys “may exercise within the limits of the powers vested in them by law." (468 F.2d at 415.) The expression of confidence by the court below "in the district court's ability to set up further guides as required and if necessary to consider individual decisions" (468 F.2d at 415) warrants petitioner W.C. Spomer's interpretation that the court below holds that "[t]he District Court can require, under pain of contempt, that the prosecutor bring a particular change and prosecute it in a manner the District Court regards as sufficiently competent." (Petition by W.C. Spomer, States Attorney of Alexander County, Illinois,at page 7.)o/ 3. Although we submit this brief generally in support of petitioner W.C. Spomer (No. 72-955) much of what we say is relevant to the contentions made by petitioners Michael O'Shea and Dorothy Spomer (No. 72-953) and petitioners Berbling and Shepherd (No. 72-1107). This Court has granted certiorari as to both No. 72-953 and No. 72-955. ‘ -5- * : A decision by this Court uphoiding the doctrine announced by the court below would have a profound impact upon the administra- tion of criminal justice in state proceedings and would seriously dislocate federal-state relations in this sensitive area. The District Attorney of Los Angeles County is responsible for the prosecution of felonies and many misdemeanors in the County of Los Angeles which has a population o} over 7,000,000. With 450 prosecuting attorneys uncer his supervision, his office is the .- fas 4 ita] 49) r prosecuting agéncy in thé United States. Like many counties or municipalities, the County of Los Angeles has a population comprising a multiplicity of racial, ethnic, religious ‘or other groups based’upon “suspect” classifications, such as race, national origin, alienage, indi- gency, or illegitimecy. (See concurring opinion by Stewart, J., San Antonio School Dietrict v. Rodriquez (1973) U.S... ° =, 36 L.ed.ed 16. 56, 93 '°S.Ct. 327. | > - It is quite obvious, wé feel, that a litigation with-the view cf obtaining the « type of injunctive relief contemplated by the court below in the instant case would severely burden the administration of justice in both w - > federal and state courts. wallet: In view of the foregoing, we think it appro- priate to communicate to this Court our views respecting the novel doctrine announced by the court below. We modestly think that the expres- sion of our concern in this matter will be seen in the light of the fact that it is consistent with our determination that criminal justice in the County of Los Angeles will not be "applied ahd administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations be- tween persons in similar circumstances, ..." Yick Wo v. Hopkins (1886) 118 U.S. 356, 373, 30 L.Ed. 220, 227, 6 S.Ct. 1064. An evidence of our determination to that end can be seen in the release on April 24, 1973, noticed in the : national press, of a Rand Corporation report entitled PROSECUTION OF ADULT FELONY DEFENDANTS IN LOS ANGELES COUNTY: A POLICY PERSPECTIVE, Prepared for the Los Angeles County District Attorney's Office, with Support of the National Institute of Law enforcement and Criminal Justice, L.E.A.A., Department of Justice, R-1127-DOJ, March 1973, by Peter W. Greenwood, Sorrel Wildhorn, Eugene C. Poggio, Michael J. Strumwasser, and Peter De Leon. This report contains comparative statistical data ay 3 4/ This report was prepared pursuant to our concerning racial and ethnic groups. request and with our encouragement in order to 4. We include pages 56 through 59 of the report in Appendix A to this brief to show how, while acquittal and conviction rates, dis- tribution of conviction levels, and distribution of sentence levels reflect "moderate to small (but statistically significant) disparities in the treatment of defendants by ethnic group in the courts" (Ibid.at 59), it cannot be con- ciuded by such evidence alone that "state offi- cials consistently, designedly and egregiously have, under color of law, deprived an entire ‘roup of citizens of their civil rishte, .« .-." ("Slipheet" opinion of court below, at p. 40.) That is, a superficial pattern of dis- crimination can be established but such a pat- tern may lead to fallacious inferences without a thoroughgoing, in-depth, statistical study which removes various sociological aspects other than the classification in issue. It is interesting to consider the Rand finding that "(t]he black acquittal rate is considerably higher than that of the Anglo- Americans and, to somewhat lesser extent, higher than that of the Mexican-Americans" (Op. cit. at 56)in the light of this Court's observation in Greenwood v. Peackock (1966) 384 U.S. 808, 842, 16 L.Ed.2d 944, 959, 86 S.€t. 1800, in disapproving the notion that a a) criminal case in a state court could be removable to a federal court upon a petition alleging that the defendant wis being prosecuted because of his race, that "such removal petitions could, of course, be filed not only by Negroes, but also by members of the Caucasian or any other race." (384 U.S. at-832,_16 L.Ed.2d at O59 n. 35is3 _ ascertain, inter alia, what improvements could be made in the criminal justice system with respect to patterns of law enforcement which suggest that justice is not meted out even- handedly in the County of Los Angeles. With this concern in mind, we submit this brief in order that bona fide efforts by the Office of the District Attorney of the County of Los Angeles to improve law enforcement will not be impeded by unnecessary litigation in federal courts. SUMMARY OF THE ARGUMENT We are not concerned with the questions of injunctive relief pursuant to 42 USC § 1983 which have hitherto been considered by federal courts with respect to state court judges or state prosecuting attorneys. Thus, we are not con- cerned with injunctive relief requiring the performance of ministerial duties, or which would prohibit pending or threatened prose- cutions. Rather, the instant case involves the development of a novel doctrine which would authorize an on-going supervision of state court judges or state prosecuting attorneys in order to prevent the non-enforcement of criminal laws\ as to real or purported victims and where such , supervision would necessarily or probably require review of individual cases where prosecutions have not been undertaken at the requests of real or purported victims of crimes, -G- ° We argue that such equitable relief, in the form or nature of 3 mandatory injunction, would be inconsistent with those principles of federalism, comity, and equity which have been formulated and applied by this Court. Moreover, we contend that the doctrine. announced by the court below is inconsistent with the purposes underlying the doctrine that 42 USC § 1983 did not abolish the common-law immunities of state ofticials performing judi- cial or quasi-judiciai duties. We do not urge that 42 US all injunctive relic! with respect to the judicial or quasi-gucicial act officials to wnom the common-law immunities apply. We do, however, contend that the supervision by way of mandatory injunction such as that contemp ated by the court below: of state officiais performing judicial or quasi-judicia™ dutic* wnich invoive discretion not to prosecute woula so undermine the purposes of the common-law immunities. that no reason ‘ could be discerned for maintaining such im- munities even in Jdamege suits uncer S$ 1983. Furthermore, .! would appear that under the constitutional separation o1 powers, there is no reason for bel «ving (but every reason to the contrary) thic, vederad suiges should review the aiseretioniry acts ol federal ~10~- prosecuting officers by the type of supervision contemplated by the court below. Any doctrine that the Supremecy Clause overrides any con- stitutional separation of powers pertaining to the states cannot be without limitation in view of the nature of each branch of government. The reasons underlying separation of powers are based upon common-law ideas and prudential considerations which apply equally to the states. Such factors should cause this Coui't to be especially leary of permitting federal courts to embark on the supervision of state officials on a grand scale. Even if the civil rights complaint herein would be deemed, in other circumstances, to be legally sufficient to state a’claim under 42 USC § 1983, it does not follow that it is legally sufficient to state a claim for injunctive relief of the type contemplated by the court below. Moreover, the evidence which would justify such injunctive relief must necessarily be more compelling than that which would justify some lesser and more traditional type of equitable relief, such as a prohibitory -injunction respecting actual or threatened prosecutions. Finally, we contend, that even if equitable relief which would entail comprehensive super- vision of state court judges or state prose- cuting attorneys such as is contemplated by the court below can be proper in some cases, we urge ti. that such relief should only extend to those state officials who have intentionally and knowingly engaged in unconstitutional law enforcement rather than also to their col- leagues or successors in office who are not alleged and found to have abused their positions. ARGUMENT I WHILE 42 USC § 1983 AUTHORIZES INJUNCTIVE RELIEF FOR VIOLATIONS OF THE EQUAL PROTECTION CLAUSE, THE INJUNCTIVE RELIEF CONTEMPLATED BY THE COURT BELOW VIOLATES THE PRINCIPLES OF COMITY, FEDERALISM, AND EQUITY ESTABLISHED BY THIS COURT Of course, it must be conceded that mere failure to prosecute other offenders is no basis for a finding that there has been a denial of equal protection of the laws. One must show an intentional or purposeful dis- criminetion in-order to show that unequal administgation of a state statute offends the etion clause. The conscious exercise of some selectivity in. enforcement is not in itself «= federal constitutional violation. Statistics might imply a policy of selective oi TS iindorcenent ;- but a finding of a denial of equal protection is not-supported unless the selection was deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification. See, generally, Yick Wo v. Hopkins (1886) 118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064; Snowden v. Hughes (1944) 321 U.S. 1, 88 L.Ed. 497, 64 S.Ct. 397; Oyler v. Boles (1962) 368 U.S. 448, 7 L.Ed.2d 446, 82 S.Ct. 501;. Moss v. Horni¢ (2d Cir. 1963) 314 F.2d 89. We agree, of course, that "the sharp edge of the Supremacy Clause cuts across all. such generalizations" such as that "(a] federal court is-always reluctant to interfere with state criminal proceedings, because of statutory restraints and because of respect for the doctrine of comity." (United States v. McLeod (5th Cir.1967) 385 F.2d 734, 745; footnotes omitted.) But in considering whether 42 USC § 1983 authorizes a federal court to grant injunctive relief of a nature as set forth by the court below, we bear in 5. An in-depth statistical study may dis- close that, Once the effects of other sociolog- ical aspects are removed, a defendant's race becomes a neutral factor in the administration of criminal justice although some data may superficially suggest racial bi:s. See, for example, A Study of the California Penalty Jury in First-Degree Murder Cases, 21 Stanford L.Rev. (Special Issue, June 1969) 1297, 1420-1421. ob Se mind the words of Mr. Justice Douglas in his dissenting opinion in Pierson v. Ray, infra, 386 U.S. at 558, 565, 18 L.Ed.2d at 297, 301, that "{t]Jhe question presented is not of constitutional dimension; it is solely a question of statutory interpretation." There can be no doubt that in the light of the history of the ancestor of 42 USC § 19830/ as set forth in the opinions of this Court con- cerning it, that it "is proper for a person adversely affected to bring an action under 42 USC § 1983 on the grounds that he has been denied his rights under the equal protection clause of the Constitution." (Shock v. Tester (8th Cir. 1969) 405 F.2d 852, 855.) Section 1983 provides for equitable relief as a remedy and this Court in Mitchum v. Foster, 407 U.S. 225, has held that this statute constitutes an "ex- pressly authorized" exception to the federal anti-injunction statute (28 USC §.2283) which © 6. The statute is derived from § 1 of the Ku Klux Klan Act of 1871, Act of April 20, 1871, ¢ 22, 9 1, Stat-i13. 7. See Monroe v. Pape (1960) 365 U.S. 167, 172-178, 5 Lebd.2d 492, 497-500, 6] 5.Cih. 4733 Mitchum v. Foster (1972) 407 U.S. 225, 32. L.ma.2a 05, Ti 5#th7 9a SeCb.: 21943 District of Columbia v. Carter (1973) U.S. » Je we tced 615, 621-623, 25 SeUts 602. Ah. provides that a federal court "may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to promote or effectuate its judgments." But’ this Court has just recently re-affirmed in Gibson v. Berryhill (1973) U.S. » Gl LW 4576, 4579, that: "As we expressly stated in Mitchum, nothing in that decision purported to call into question the established principles of equity, comity and federalism which must, under appropriate Circumstances, restrain . a federal court from issuing such injunc- tions. Id., at 243. These’ principles have been emphasized by this Court many times in the past, albeit under a variety of different rubrics... .. Secondly, there is the basic principle of federalism, restated as recently as 1971 in Younger v. Harris, 401 U.S. 37 (1971), that a federal court may not enjoin a pending state criminal proceeding in the absence of special circumstances suggesting bad faith, harrassment or irreparable injury that is both serious and immediate." This Court in Younger v. H.rris, 401 U.S. at 44, 27 L.Bd.2d at 675, 91 S.Ct. 746, said that a vital consideration for restraining courts of ‘4 a1 5- equity from interfering with criminal prose- cutions is "the notion of ‘comity,' that is, a proper respect for state functions, a recog- nition of the fact that the entire country is made up of a Union of separate state govern- ments, and continuance of the belief that the National Government will fare best if the states and their institutions are left free to perform their separate functions in their separate ways." | However, what is Dhvolved in the instant ‘case is not an a¢-zion which merely seeks injunctive relief to enjoin state proceedings. Rather, it is an action which would, if suc- cessful, result in injunctive relief entailing provisions for supervision and review of dis- cretionary acts of state court judges and prosecuting attorneys which’ would generate undue pressures upon such officers to institute criminal prosecutions, when otherwise such prosecutions would not have been instituted, in order to avoid cOmplaints that state laws are being unequally and unlawfully enforced. ~ Such federal judicial interference with the administration of state criminal justice. would, it seems to us, be of far greater magnitude and intens ity than that which would be entailed ar only. preventive injunctive relief were pranted: alo II. THE DOCTRINE OF THE COURT BELOW RESPECTING BPQUITABLE RELIEF SUBVERTS THE PURPOSES - OF THE IMMUNITY OF STATE JUDGES OR PROSECUTING ATTORNEYS UNDER 42 USC § 1983 Again, while not questioning the avail- ability of equitable relief against state judges or prosecuting attorneys as they have been generally provided for in the reported cases, we are nevertheless of the opinion that the doctrine set ,forth by the court below expands the scope: of equitable relief as to such state officials ir violation of the principles supporting the immunity of state judges or prosecuting attorneys under § 1983 against suits. Our contention is based upon the following argument. It is generally maintained hat prosecut- ing attorneys should have the same immunity as is afforded judges in civil rights actions un- der 42 USC § 1983, although such immunity is not without limitation. In addition to the Seventh Circuit, as evidenced by its opinion in the instant case, see also: Bauers v. Heisel (3d Cir, 1966) 3561 F.2d 581y 589-591; Turack v. Guido (3d Cir. 1972).464 F.2d 535, 536; McCray v. State of Maryland (4th Cir. 1972) 456 F.2d.1, 2-3; Madison v. Gerstein (5th Cir. 1971) e440 Fld 338, 340-341; Kenney v. Fox (6th Cir. 1956) 288 F.2d 228, 290; Puett v. = me City of Detroit, Department of Police (6th Cir. 1963) 323 F.2d 591, 593; Hilliard v. Williams (6th Cir. 1972) 465 F.2d 1212; Robichaud v. Ronan (9th Cir. 1965) 351 F.2d 553, 535-536; Marlowe v. Coakley (9th Cir. 1968) 404 F.2d 70; ———— Kostal v. Stoner (10th Cir. 1961) 292 F.2d 492, 493-494, Such prosecutorial immunity is not generally understood to encompass acts clearly outside a prosecutor's jurisdiction; that is, a prosecuting attorney who acts outside the scope of his jurisdiction without authorization of law cannot shelter himself by the plea that he is act- ing under color of office. It is well said that "(t]he immunity of 'quasi-judicial' officers such as prosecuting attorneyS « « + derives, not from their formal association with the judicial process, but from the fact they exercise a discretion similar to that exercised by judges [and that] [1]ike judges,.they require the in- sulation of absolute immunity to assure the courageous exercise of their discretionary duties." (McCray V. State of Maryland, supra, 456 F.2d at 3.) It should be noted that wftjhe key to the immunity previously hela tc be protective to the prosecuting attorney is that the acts, alleged to have been wrongful, were committed by their officer in the performance of an integral part of the judicial process." (Robichaug v. Ronan, supra, 351 F.2d at 536.) At least in damage. suits, a prosecutor can have no vicarious liabil- ity for the acts of his assistant against which -18— the assistant is immunized. (Madison v. Gerstein, supra, 440 F.2d at 340.) The almost uniform stand taken by the courts of appeal, and we omit citations to decisions by other courts, is a sufficient reason, considered in the light of the opinions by this Court in Tenney v. Brandhove (1951) 341 U.S. 367, 95 L.Ed. 1019, 71 S.Ct. 783 and Pierson v. Ray (1967) 386 U.S. 547, 18 L.Ed.2d 288, 87 S.Ct. 1213, for the generally approved doctrine that immunity for prosecutors is not abolished by 42 USC § 1983. Since it seems warranted for us to conclude that this Court would hold that the common-law immunity of prosecutors applies to actions brought under 42 USC § 1983 (or related statutes), the question arises to what extent does the doctrine of immunity for judges or quasi-judicial officers (particularly prosecuting attorneys) apply to injunctive relief. It has been generally held, declared by dictum, or otherwise indicated that under 42 usc § 1983 (or other similar civil rights statutes), the immunity of state judges or state officers performing quasi-judicial func- tions (such as prosecuting attorneys) pertains to damage suits but does not preclude declar-— atory or injunctive relief if prayed for. See, e.g.: Silver v. Dickson (9th Cir. 1968) 403 F.2d 642, 643; Jacobson v. Schaefer (7th Cir. «i9= 1971); 441 F.2d 127, 130; United States v. McLeod (5th Cir. 1967) 385 F.2d 734, 738 n. 353 United States v. Clark (S.D.Ala. 1965) 249 : F.Supp. 720, 727; Stambler v. Dillon (S.D.N.Y. 1968) 288 F. Supp. 646, 649; Rouselle v. Perez (E.D.La. 1968) 293 F.Supp. 298, 299; Law Students Civil Rights Research Council, Inc. vy. Wadmond (S.D.N.Y. 1969) 299 F.Supp. 117, 123-124, aff'd, 401 U.S. 154, 27 L.Ed.2d 749, 91 S.Ct. 720; Bramlett v. Peterson (M.D. Fla. 1969) 3C7 F.Supp. 1311, 1321-1322; Rakes v. Coleman (E.D.Va. 1970) 318°%.Supp. 181, 192; Palermo v. Rockefeller (S.D.N.Y. 1971) 323 F.Supp. 478, 482; Haley v. Troy (D.Mass. 1972) 338 F.Supp. 794, 800; Mills v. Larson (W.D.Pa. 1972) 56 F.R.D. 63, 67-68, and, of course, the instant case. Of course, as the majority opinion recognizes, the comprehensive nature of the equitable relief which it contemplates compels the conclusion that "this appears to be a case of first impression as to the type of relief approved, . . ." (468 F.2d at 414.) This case does not involve injunctive relief pertaining to civil actions, or which prohibits pending or 8, Although the court below noted Peckham v. Scanlon (7th Cir. 1957) 241 F.2d 761 in its opinion in the instant case (468 F.2d at 406), it appears that it did not notice that it sub silencio overruled Scanlon because the plaintiff therein prayed for both damages and equitable relief (241 F.2d at 762-763). pT threatened criminai prosecutions, or the en- forcement of an unconstitutional law, or re- quiring the performance of ministerial acts. Rather, as Judge Dillin in his dissenting’ opir.ion observed, "(t]he majority holds, for the first time, that a federal district court has the power to supervise and to regulate by mandatory injunction the discretion which state court judges and state's attorneys may exercise within the limits of the powers vested in them by law" and that "in the cases cited by the majority e « « the equitable relief granted has in- variably been in the form of a prohibitory injunction, confining such officials to the limits of their legal authority." (468 F.2d at 415; footnote omitted. ) Bearing in mind that we are thus concerned with the issue of availability of injunctive relief which includes provision for the compre- hensive supervisory review of discretionary acts by state judges and prosecutors in criminal prosecutions, it behooves us to see why this Court in Tenney and Pierson held respectively that the common-law immunity of legislators for acts within the legislative role and that the immunity of judges for acts within the judicial role were not abolished by $ 1983. In Tenney the Court explained: "The claim of an unworthy purpose does not destroy the privilege. Legislators a are immune from deterrents to the un- inhibited discharge of their legislative duty, not for their private indulgence but for the pubiic good. One must not expect. uncommon courage even in legis- lators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's spec- ulation as to motives." (341 U.S. at 377, 95 L.Ed. at 1027.) In Pierson, the Court,in explaining its holding that the common-law doctrine of judicial immunity applies to damage suits wnder § 1983, said: "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall 335, 20 L ed 646 (1872). ° This immunity applies even when the judge is accused of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest Se it is that the judges should be at liberty to exercise their functions with indepen- dence and without fear of consequences,' (Scott v Stansfield, LR 3 Ex 220, 223 (1868) quoted in Bradley v Fisher, supra, 349; note;.at 350, 20 L ed at 650.) It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging maiice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation." (386 U.S. at 554, 18 L.Ed.2d at 294-295.) It is noteworthy that, although Mr. Justice Douglas dissented from that holding, he ac- knowledged the importance of exempting judges from liability for the consequences of their honest mistakes and that the judicial function involves an informed exercise of judgment. (386 U.S. 558, at 566, 18 L.Ed.2d 297, at 301.) When one considers the reasons why there should be immunity from damage suits for state judges and prosecuting attorneys, the conclusion is compelled that the reasons justify the appli- cability of the immunity to such injunctive a2 Fa relief which would accomplish the same results as the absence of the immunity from damage suits. Judge Dillin clearly saw the necessity of this conclusion when he maintained in his dissent- ing opinion in ,the instant case that’ "the reasgn for the rule against damage actions applies with equal force to man- datory injunctions which seek to regulate the exercise of discretion of judicial and quasi-judicial officers. It would be cold comfort for such an official to be told by this Court; 'Be of good cheer! We will protect your pocketbook, even as we send you to jail.'" (468 F.2d at 419; footnote omitted.) But it is not, of course, merely the threat of jail that would undermine the ration- ale for judicial or quasi-judicial immunity as the explanations by this Court in Tenney and Pierson make clear. It is also the ap- prehension of a comprehensive inquiry by the federal judiciary of discretionary acts of state judicial or quasi-judicial officers and the inconveniences and distractions incident thereto which would unduly inhibit such officers in the exercise of their powers. Whatever supposed gain for civil rights, the present "ecological" equilibrium would be radically upset were it now deemed that the immunity doctrine does not encompass immunity ue =-2hn from mandatory injunctions which entail the supervision and review of discretionary judicial and quasi-judicial acts. Clearly, the doctrine propounded by Judge Dillin is consistent with those holdings which have permitted equitable relief against judges and prosecutors because the federal courts did not undertake a supervisory direction of the administration of state criminal justice with a provision for review of discretionary acts, including review of decisions not to prosecute. However, the doctrine announced by the court below would be inconsistent with the contrary philosophy held by this Court as evidenced, for example, in Ker v. California (1963) 374 U.S. 23, 33, 10 L.Wi.2d 726, 736, $5 S.Ct. 1625, where the Court declared that, "although the standard of reasonableness is the same under the Fourth and Fourteenth Amendments, the demands of our federal system compel us to distinguisn between evidence held inadmissible because of our supervisory powers over federal courts | and that held inadmissible because prohibited by the United States Constitution." The overall supervisory review, albeit not "constant, day-to-day supervision," contemplated by the court below if actually undertaken would constitute "direct intrusion in state processes [which] does not comport with proper federal- Se state relationships," to use the words of this Court in Cleary v. Bolger (1963) 371 U.S. 392, 401, 9 L.Ed.2d 390, 397, 83 S.Ct. 355. Or, to borrow words from Stefanelli v. Minard (1951) 342 U.S. 117, 120, 96 L.Ed. 138, 142, Je S.Ct. a8) "For even if the power to grant the relief here sought may fairly and consti- tutionally be derived from the generality of language of the Civil Rights Act, to sustain the diaim would disregard the power of courts of equity to exercise discretion when, in a matter of equity jurisdiction, the balance is against the wisdom of using their power. Here the considerations governing that dis- cretion touch perhaps the most sensitive source of friction between States and Nation, namely, the active intrusion of the federal courts in the administration of the criminal law solely within the power of the States." The very fact that the doctrine announced by the court below is novel justifies the in- ference that "the provisions of [42 USC § 1983] do not operate to work a wholesale dislocation of the historic relationship between the state and the federal courts in the administration of criminal justice." (Cf. Greenwood v. Peacock (1966) 384 U.S. 808, 831, 16 L.Ed.2d -26— 944, 959, 86 S.Ct. 1800.) Tits THE SUPERVISION OF STATE COURT JUDGES: OR PROSECUTING ATTORNEYS CONTEMPLATED BY THE COURT BELOW IS SINGULARLY INAPPROPRIATE AS A JUDICIAL FUNCTION | The discretion of the Attorney General of the United States in choosing whether to pros- ecute or not to prosecute, or to abandon a prosecution already started, is absolute. Courts are not free to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions. See, e.g., Smith v. United States (5th Cir. 1967) 375 F.2d 243, 246-247; United States v. Kysar (10th Cir. 1972) 459 F.2d 422, 424; Spillman v. United States (9th Cir., 1969) 413 F.2d 527, 530. Although this all follows as an incident to the constitutional separation ~» of powers, as Chief Justice (then Circuit Judge) Burger observed in Newman v. United States (D.C. Cir. 1967) 382 F.2d 479, 480: "Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding. _ once brought." milan The discretion of the prosecuting attorney for the Unized States to be free from judicial supervision of the discretionary control of criminal prosecutions, including attempts to compel a prosecuting attorney to initiate proceedings », presupposes that. the conscious ‘exercise of some selectivity ‘in enforcement is not in itself a federal constitutional violation. As Chief Justice Burger commented: "T>. say that the United States Attorney must. literally treat every offense and every offender alike is to delegate him an impossible task; of course this concept would negate discretion. Myriad factors can enter into the prosecutor's decision. Two persons may have committed what is precisely the same legal offense but the prosecutor is not compelled by law, duty or tradition to treat them the same as to charges. On the contrary, he is expected to exercise discretion and common sense to the ena that if, for example, one is a young first offender and the other older, with ‘a criminal record, or one played a lesser and the other a dominant role, one the instigator and the other a follower, the prosecutor can and should take such .actors into account; no court has any jurisdiction to inquire into -28— or review his decision. "It is assumed that the United States Attorney will perform his duties and ex- ercise his powers consistent with his oaths; and while this discretion is sub- ject to abuse or misuse just as is judicial -discretion, deviations from his duty as an agent of the Executive are to be dealt with by his superiors." (382 F.2d at 481l- 482; footnotes omitted. ) It must be remembered, as was noted in United States v. Brokaw (S.D.111.1945) 60 F. Supp. 100, 101: "That the United States District At- | torney in his capacity as the public pros- ecutor in his district is clothed with the power and charged with the duties of the Attorney General in England under the common law is generally recognized and supported . by the Federal Courts. [Citations omitted. ] In this connection the federal prosecutor. acts in an administrative capacity. He is the representative of the public in whom is lodged a discretion to be exercised for the general public welfare, a dis- cretion which is not to be controlled by the courts, or by an interested individual, or by a. group of interested individuals who seek redress for wrongs committed . -29- against them by use of the criminal process." If the discretionary liberty of prosecut- ing attorneys from judicial interference with or review of discretion is grounded in the common law (see Ganger v. Peyton (4th Cir. 1967) 379 F.2a 709, 713) and if "[fjew subjects are less adapted to judicial review than the ex- ercise by the Executive of his discretion in deciding when and whether to institute crim- inal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding ence brought" (see Newman v. United States, supra, 382 F.2d at 480), then there is all the more reason to conclude that 42 USC § 1983 should not be used to permit federal courts to systematically and comprehensively supervise state court judges and prosecutors in the exercise of their discretion merely as a pro- phylactic measure to prevent racial or ethnic discrimination. The separation of executive and judicial functions is grounded upon prudential consid- erations. Thus, Coolidge v. New Hampshire (1971) 403 U.S. 443, 449-453, 29 L.Ed.2d 564, 572-575, 91 S.Ct. 2022, held that search warrants could not be issued by the state at- torney general, acting as a justice of the peace, under the Fourth Amendment, because such an official was not a neutral and detached -30— magistrate. But it is the very confusion of judicial and executive roles which compelled the holding for as this Court explained: "Without disrespect to the state law enforcement agent here involved, the whole point of the basic rule so well expressed by Mr. Justice Jackson is that prosecutors and policemen simply cannot be asked to maintain the requisite neutyality with regard to their own investigations - the ‘competitive enterprise’ that must rightly engage their single-minded attention." (403 U.S. at 450, 29 L.Ed.2d at 573. Footnote omitted. ) : Cf. Shadwick v. City of Tampa (1972) 407 U.S. 345, 32 L.Ed.2d 783, 92 S.Ct.2119. Thus, we submit that, quite apart from federal-state rela- tions, the exercise by a federal court judge of executive powers, such as is involved in super- vising and reviewing decisions not to institute or further prosecute criminal charges, is a con- founding of roles not at all contemplated by those who framed and adopted the Constitution. Moreover, even if, at the outset, an adoption of the executive power by the federal courts is limited to the supervision of state officers ,the exercise of such executive power by federal court judges may well give rise to the fear that 'fwjere it [the power of judging] joined to the executive power, the judge might behave with =3l0 all the violence of an oppressor." Montesquieu, SPIRIT OF LAWS, quoted in THE FEDERALIST No.° 47 (ed. by Jacob E. Cooke, Meridian Books - 1961) at 326. Our conclusion is that the exercise of the executive power which is im- plicit in the equitable relief sanctioned by the court below is so incompatible with the functions of the federal judiciary that this Court should disapprove such use as a type of the equitable relief permitted by 42 USC § 1983. IV ASSUMING THAT EQUITABLE RELIEF AUTHORIZED expressly noted that "the question... continued on page -37- (379 F.2a at 324.) The court then proceeded to declare: : "Nor can this action be maintained . against defendant McCanless, Attorney | General of the State of Tennessee, under : (continued from page 36) © whether a municipality may be sued for equit- , able relief under § 1983 - simply is not presented here." (41 L.W. at 28 n. 2.) : Justice Douglas in his dissenting opinion remarked, "There may be overtones in Monroe v. Pape, that even suits in equity are barred Tout} by et we never have so held." (41 L.W. at 4636. For an able exposition of the reasons why the doctrine of equitable relief should not be obtained under § 1983 against a state, or its agency or subdivision, or an officer in his official or representative capacity (regardless of his personal involvement in causing any deprivation of rights), see Harkless v. Sweeny Independent School District (S.sD.Tex. 56842305 FoSunp 75%, 800-007 (albeit re- versed by the Court of Appeals for the Fifth Circuit in 427 F.2d 319). Also compare § 1983 with 42 USC § 1971 which provides concerning a suit by the United States Attorney General for preventive relief that "(co) «eo s [w]henever, in a proceeding instituted under this subsection any official of a State or. subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State." 3.0 oF A. 36.5 aacd Q:. 1..? 5 las 30. “ax canwAmericarn | ...7 each e.4 | li.e —ea ij 28.2 J 16.3 rl 12.5 “sazpie © 20.7 thetr celesccics ia 1970 countwerce felony defendant file. by Statisi.ca.ly significas. (it eveaces. IEE A Wee ALENT Ri Na ow eae ces in acquittal rate. The most significant cause for the higher black acquit- al rate can be found by iooring at guilty p.ca rates. Whiie 62.4 percent of the Anglo-American defendants and 56.7 percent of \V.exican-American ‘defendarts pleac cui ty, only 39.9 percent of blacks do so. If w> exclude all guilty pleas from the sample and base acqui*ta: rate on this smaller group. we find a reversa/ in the disparities; the black acquittal rate of 28.7 percent is /ower than either the Anglo- American acquittal rate of 33.7 percent or the Mexican-American rate of 31.2 per- cent. Of course, the salient question, which rem2ins unanswered, is whether the lower rate of guilty pleas among black defendants reflects a distrust of the judicial system independent of the defendants’ guilt, or a greater willingness to fight their cases because of a higher proportion of unwarranted prosecutions. If we believe that trials are accurate measures of true guilt, and if we further believe that no defend- ant pleads guilty who is not guilty, then in fact, the higher black acquittal rate is attributable to an over-prosecution of blacks. But it can also be argued that there is a positive probability that any prosecution, regardless of its merits, will result in an acquittal if contested; if this argument is true, then the higher black acquittal rate would not necessarily support the over-arrest expianation. It is also reasonable to ask whether blacks more frequentiy contest prosecutions because they fare better at trials than Anglo-Americans or Mexican-Americans. An examination of the conviction rates by SOT, court trial, and jury trial shows that this is not the case. Blacks are convicted slightly more often than Anglo-Americans in a contested disposition, but are more likely to have the charge reduced or to receive a misdemeanor sentence. In summary, there are moderate to small (but statistical'y significant’ dispari- ties in the treatment of defendants by ethnic group in the courts. The apparent greater frequency of acquittals for blacks over either Anglo-Americans or Mexican- Americans is probably attributable to a lesser likelihood that black defendants wi!) plead guilty; 39.9 percent of blacks but 62.4 percent of Angio-American.defendants plead guilty. Both blacks and Mexican-Americans tend to be convicted of the orig:- nal felony charged (robbery or burglary) about 9 percent ‘ess frequently than Anglo- Americans. Convicted blacks receive felony sentences rough'y 5 percent iess fre- quently than Anglo-Americans, and Mexican-Americans rcugh!y 4 percent less. In contested dispositions, blacks are convicted slightly more o‘ten than Anglo-Ameri- cahs, but are more likely to be convicted of a lesser charge and to receive a mis- demeanor sentence. The most provocative question ‘eft unresolved is whether these disparities can be attributed to over-prosecution. The question of over-arres* is simply not amenable to analysis solely by use of the data at our disposal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0225%3A05. Public record. Not legal advice.