Petitioners Brief — Spomer v. Littleton

LAR LE IR GAT: EOE OORT

et se

Supreme Court, U.S.

PILED

—- JuN—S. 1973

MICHAEL RODAK, JR.,CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972.

No. 72-955

W. C. SPOMER, STATES ATTORNEY OF ALEXANDER

County, ILLINOIS,

Petitioner,

VS.

EZELL LITTLETON, ET. AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT.

BRIEF FOR PETITIONER.

JAMES B. ZAGEL,

PATRICK F. HEALY,

National District Attorneys Association,

211 East Chicago Avenue,

Chicago, Illinois 60611,

Attorneys for Petitioner.

NATIONAL DisTRICT ATTORNEYS

ASSOCIATION,

ILLINOIS STATES ATTORNEYS

ASSOCIATION,

Of Counsel.

Printed by the Authority of the State of Illinois <@ise

PETITION FOR CERTIORARI FILED JANUARY 3, 1973.

CERTIORARI GRANTED APRIL 2, 1973.

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OniiiGGe Below. icec6. cn escesentcesessacenecaveeess 1

UEIOCICUION, ooo 54c4 os chess one cs Seseeestaseeexs 2

Constitutional Provisions ...................-00005- 2

SHAtUtOLY POvViSiONS: 606% i06cowewsecssncvens beeess 2

Questions Presented ...............00 cece eee eee 3

Statement of the Case ............... 00.0.2 e eee eee 4

Summary of Argument .....................220005- 7

Argument:

I. An Injunction Compelling a State Prosecutor

to Prosecute Is Not a Remedy Under the Civil

Rights Act of 1871 .................. 00008. 10

II. The State Prosecutor is Immune from an In-

junction Compelling Him to Prosecute ...... 14

III. Respondents Have Available Civil Remedies

and Access to Criminal Process Which Are as

Adequate and More Preferable to the Unduly

Burdensome Injunction Against the State

Prosecutor ......... 00. c cece cee ee eee 33

IV. The Conclusory Complaint Drafted by Attor-

neys Is Insufficient to State a Cause of Action

Against a State Prosecutor in View of the

Abuse Potential Inherent in Such Suits and the

Very Minimal Possibility of Plaintiffs Prevail-

WAG oe ag ees eons dct ei sees 904i deunassaneyes 39

WORCIURION oc ccna sxe es udes cpa eka ede vavesaccewess 43

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AUR NG Se MY ARNE IO is agar 2

ith ies Aah aah aa a eee ak te rte ee eee eee

il

CITATIONS.

Cases.

Ackerman v. Houston, 45 Ariz. 293, 43 P. 2d 194 (1935) 24

Ah Sin v. Wittman, 198 U. S. 500 (1905) ............ 35, 42

Alderman v. United States, 394 U. S. 165 (1969) .... 27

Arensman v. Brown, 430 F. 2d 190 (7th Cir. 1970) ... 30

Bauers v. Heisel, 361 F. 2d 581 (8rd Cir. 1966) ...... 30

Board of Supervisors v. Simpson, 36 Cal. 2d 671, 227

Fe 2a ABODE) eos 5 isn ceeneshceebeadesearsase: 24

Boynton v. Fox W. Coast Theatres Corp., 60 F. 2d 851

CIOUR CIE. 9982) axcncacascsaescedeens seston ceses 42

Brack v. Wells, 184 Md. 86, 40 A. 2d 319 (1944) ...... 24

Bradley v. Fisher, 80 U. S. (13 Wall.) 335 (1872) .... 30

Brady v. Maryland, 373 U. S. 83 (1962) ............. 26

Buxbom v. City of Riverside, 29 F. Supp. 3 (S. D. Cal.

ps!) a ee career rarer are re a 35

Cicenia v. LaGay, 357 U. S. 504 (1958) ............. 32

Clemone v. United States, 137 F. 2d 302 (4th Cir. 1943) 24

Confiscation Cases, 7 Wall, 454 (1868) .......0.. 17, 23, 25

Dacy v. New York County Lawyers Association, 423

F. 2d 188 (2nd Cir. 1969) cert. denied, 398 U. S. 929

(TOTO): poceue 5004s neh s4nbeuee eee heyeg ess eens 30

Deutsch v. Aderhald, 80 F. 2d 677 (5th Cir. 1935) .... 24

Doe v. Scott, 321 F. Supp. 1885 (N. D. Tl. 1971) ..... 34

Eaton v. Bibb, 217 F. 2d 446 (7th Cir. 1954) cert.

denied 350 U.S. 915 (1955) 2.0.2... eee ce eee 30

Edelman v. California, 344 U. S. 357 (1953) ........35, 42

Ex parte Virginia, 100 U. S. 339 (1879) ............ 11

iii

Ex parte Young, 209 U. S. 123 (1908) .............. 14, 27

Fanale v. Sheehy, 385 F. 2d 866 (2nd Cir. 1967) .... 30

Fay v. Miller, 183 F. 2d 986 (D. C. 1950) ............ 17

Fenner v. Boykin, 271 U. S. 240 (1926) ............ 32

Giles v. Maryland, 386 U.S. 66 (1967) .............. 26

Goldberg v. Hoffman, 225 F. 2d 463 (7th Cir. 1955) 23, 25, 28

Greenwood v. Peacock, 384 U. S. 808 (1966) ........ 40

Grundling v. City of Chicago, 177 U. S. 183 (1900) .. 42

Haag v. State of New Jersey, 356 U. S. 464 (1958) .. 32

Hampton v. City of Chicago, Cook County, Illinois, 339

WS. G5 (D.C. 1912) asivscwscccsinwcsssues 30

Hoffman v. Halden, 268 F. 2d 280 (9th Cir. 1959) .... 40

Hurtado v. California, 110 U. S. 516 (1884) .......... 32

Hutcherson v. United States, 345 F. 2d 964 (D. C. Cir.

1965) cert. denied, 382 U.S. 894 (1965) ............ 24

Jackie Cab Co. v. Chicago Park District, 366 Ill. 474,

ON, Bi 2d 21S (1987) as ca scee coe ve daca sanvasceees 35

Jensen v. Olson, 353 F. 2d 825 (8th Cir. 1965) ...... 40

Johnson v. Mueller, 415 F. 2d 354 (4th Cir. 1969) .... 40

Kauffman v. Moss, 420 F. 2d 1270 (3rd Cir. 1970) cert.

denied 400 U.S. 846 (1970) .............. 0.00000, 40

Kenny v. Fox, 232 F. 2d 288 (6th Cir. 1955) cert.

denied 352 U. S. 885 (1956) ...................08, 30

Knapp v. Schweitzer, 357 U. S. 371 (1958) .......... 32

Kostal v. Stoner, 292 F. 2d 492 (10th Cir. 1961) cert.

denied 369 U. S. 868 (1962) ...................0.. 30

Lamar vy. 118th Judicial District Court of Texas, 440

F. 2d 383 (Sth Cir. 1971) ........... ccc ec cc cw wees 40

Leoni v. Fanelli, 194 Misc. 826, 87 N. Y. S. 2d 850 (Sup.

OU ORD) 5 oes eee ee deesg see ennenyee su uns suas: 24

6k

iv

Mac Farland v. American Sugar Refining Co., 241 U.S.

Sr RPMs ghd CCRT e RAs ans Ae omnes esas 42

Marbary v. Madison, 1 Cranch 137 (1808) .......... 25

Marin v. Pinto, 463 F. 2d 583 (3rd Cir. 1972) ........ 40

Miller v. Pate, 386.U. S. 1 (1967) .............0.05. 26

Mitchum v. Foster, 407 U. S. 225, 92 S. Ct. 2151

SUNSET: Kaks AR Sue ta eAG nd tAas eee ca ewes 13, 14, 29

Monroe v. Pape, 365 U. S. 167 (1961) .............. 11,13

Moses v. Kennedy, 219 F. Supp. 762 (D. D. C. 1963)

cS RS aie alee ale hac un te BAM Aer net ees 23, 24, 26, 30

Murphy v. Summers, 54 Tex. Crim. 369, 112 S. W.

BORO EDO) ccs cians cae eens Reus seen eee 24

Newman v. United States, 382 F. 2d 479 (D. C. Cir.

BOGE? seu deathd ewes teencieiaseine Pees 24, 27, 28

Ortega v. Regen, 216 F. 2d 561 (7th Cir. 1954) cert.

denied 304 U. B. O00 (20GB) cocccccdcesccs cadences 40

Oyler v. Boles, 368 U. S. 448 (1962) ............... 35, 42

Patten v. Dennis, 134 F. 2d 137 (9th Cir. 1948) ...... 23

Peek v. Mitchell, 419 F. 2d 575 (6th Cir. 1970) ..10, 15, 24

People v. Baron, 130 Ill. App. 588, 264 N. E. 2d 423

(IGIOY odd n dics cde vxnarccuntdaneswstoeiccacas® 31

People ex rel. Elliot v. Covelli, 415 Ill. 79, 112 N. E. 2d

156 (1953) oo. c cece eceeeecceccccceecescuuueueeecs 31

People ex rel. Keenen v. McGuone, 13 Ill. 2d 520, 150

N. E. 2d 168 (1958) 2.00... ccccceeeeeeeeeeseees 34

People v. Newcomer, 284 Ill. App. 315, 120 N. E. 244

GS) -) 23

People v. Wabash, St. L. & P. Ry. 12 Ill. App. 263

Vv

Powell v. Katzenbach, 359 F. 2d 234 (D. C. Cir. 1965)

Powell v. Workman’s Compensation Board of New

York, 327 F. 2d 182 (2nd Cir. 1964) .............- 40)

Pugach v. Klein, 193 F. Supp. 630 (S. C. N. Y. 1961)

Redmond v. United States, 384 U. S. 264 (1966) ..... 24

Robichaud v. Ronan, 203 F. 2d 533 (9th Cir. 1965) .... 30

Sanders v. Lowrey, 58 F. 2d 158 (5th Cir. 1932) .... 35

Sires v. Cole, 320 F. 2d 877 (9th Cir. 1963) .......... 30

Snowden v. Hughes, 321 U.S. 1 (1944) .............. 42

State ex rel. Spencer v. Criminal Court, 214 Ind. 551,

OS eee Se OD a i hota <hee ria Che nasews 24

Taliaferro v. Locke, 182 Cal. App. 2d 752, 6 Cal. Rptr.

813 (1960) ... ccc ccccccceccccccueeececcceceeaeees 93

Tenny v. Brandhove, 341 U. S. 367 (1951) .......... 30

Torrence v. State of Florida, 188 U. S. 519 (....... bun

Twining v. State of New Jersey, 211 U. S. 78 (1908) . 32

United States v. Brokaw, 60 F. Supp. 100 (S. D. Tl.

WR Giga ote cette oa see Susndaweadcaenanead 17, 23, 24

United States v. Cox, 342 F. 2d 167 (5th Cir. 1965)

eave acinaetenssCejevadeuesduseieybass ts 23, 24, 26, 28

United States ex rel. Hoge v. Bolsinger, 211 F. Supp.

199 (W. D. Pa. 1962), aff’d., 311 F. 2d 215 (3rd Cir.

1962), cert. denied 372 U. S. 931 (1963) .......... 38

United States v. Klein, 221 F. Supp. 776 (D. Minn.

1963)

United States ex rel. Rauch v. Deutsch, 456 F. 2d 130

(ON: SAY BRO) 4.9506 58e 48 hana venvedeuesvaudess 30

United States v. Thompson, 251 U. S. 407 (1920) .... 17

vi

United States v. Woody, 2 F. 2d 262 (D. Mont. 1924) 23

Wilson v. County of Marshall, 257 Ill. App. 220 (1930) 23

Wilson v. Sharp, 42 Cal. 2d 675, 268 P. 2d 1062 (1954) 24

Yick Yo-v. Hopkins, 118 U. S. 356 (1886) .......... 35, 42

Younger v. Harris, 401 U. S. 37 (1971) ......... 14, 27, 32

CoNnsTITUTIONS AND STATUTES.

U. S. Constitution, Article IT, See. 3 ............ 2, 24, 25

Illinois Constitution of 1970, Article II, Sec. 1 ...... 30

Illinois Constitution of 1970, Article V, See. 8 ....... 30

Illinois Constitution of 1970, Article XIII, See. 1 .... 34

Ku Klux Klan Act of 1871 (April 20, ch. 22, 17 Stat.

| Pe ee oe 10, 13

42 U. S. C. 1981, 1982, 1983, 1985 ........ 2, 4, 6, 10, 14, 34

18 U. S. C. See. 241, 242 ..... 0. eee 12, 13, 34

OS AS eG, POR OED ac as kes see oy saws s viens eee 18

Civil Rights Act 1866 (April 9, 1866, 14 Stat. 27) §2... 138

Ill. Rev. Stat., Chapt. 14, See. 5 (1971) ............ 18

Ill. Rev. Stat., Chapt. 14, See. 9 (1971) ............ 34

Ill. Rev. Stat., Chapt. 38, See. 124-2 ...........0.00... 34

Ill. Rev. Stat., Chapt. 38, See. 1005-5-5 (eff. January

| eae |: 6. } aR are 34

ARTICLES AND MISCELLANEOUS.

*ABA Code of Professional Responsibility (Final

Drath, 19G8) ocak sso unsiesspe nes axea eve cenexcees 16

“ABA Standards Relating to the Prosecution Function

and the Defense Function, The Prosecution Fune-

tion (Approved Draft, 1971) ................ 15, 16, 21

' . $ RS RS EAR URS SO Da

vii

A. L. R. Annotations, 155 A. L. R. 11 (1945) ........ 18, 24

Arnold, Law Enrorcement—An Attempt at Socran

Dissection, 42 Yale L. J. 1 (1932) ............---. 23

Baker and DeLong, Tue Prosecutinc Atrorney: THE

Process or Prosecution, 26 J. Crim. L. & Crim. 647

CORY she eee hace daa sews ssa eentteusesess 17

Breitel, Controts 1s CrrmtnaL Law EnrorceMent, 27

U. of Chi. L. Rev. 427, 430 (1960) ................ 19

Cates, Caxn We Icnore Laws—A Discretion Not To

Prosecute, 14 Ala. L. Rev. 1 (1961) ...........-.. 20

Comment, ProsecurortaL Discretion—A_ ReE-EvaLva-

TION OF THE ProsecuTor’s UNBRIDLED DiscRETION AND

its PorentiaL For AsBvuseE, 21 DePaul L. Rev. 485

CUFEEY oie eea nd eens ee he awe swe be eee ee eases aes 23

Comment, Private Prosecution; A Remepy For Dts-

trict AtrtorNgeys UNwarrantep Inaction, 65 Yale

L. J. 209, 213 (1955) 2... ce eee 24

a

Comment, ProsecuTor1AL DiscrETION IN THE INITIATION ’

or CriuinaL Comprarnts, 42 S. Cal. L. Rev. 519, 513 -

;

oo) i ee ee eee eee ere t.... 21

Comment, THe Ricut to NonpiscriMinatTory ENForce- ‘

MENT oF Stare Penat Laws, 61 Col. L. Rev. 1103, ‘

BEEROE CURE) cc aue ne ewes ees vse en cessancnetess 35, 42

Congressional Globe, 42d Congress, 1st Session, pp.

244, 374-376, 428, 460, 653, App. 216 (1871) ........ 11,12

*F. Miller, Prosecution: The Decision to Charge a Sus-

pect with a Crime, p. 187 (1969) .................. 19

*K. Davis, Discretionary Justice 4 (1969) ........... 17 ;

Kadish, Lega Norm anp Discretion In THE POoLice :

AND SENTENCING Process, 75 Harv. L. Rev. 904 (1969) 19 ‘

:

:

Kaplan, Tue ProsecvroriaL DiscretTion—A CoMMENT,

60 N. W. U. L. Rev. 174 (1965) 2.2.0.0... 0.0.00 0.. 17

ess

*L. Miller, Double Jeopardy and the Federal System,

TTD Bi 655 bk N0 6 oie cas esncdccncossvicesncs 19

LaFave, Tue Prosecvutor’s Discretion my THE UNITED

Srares, 18 Am. J. Comp. L. 532, 534 (1970) ....17, 18,19

Nedrud, Tue Rove or tus Prosecutor 1x CRIMINAL

Procepure, 32 U. M. K. C. L. Rev. 142, 148 (1964) 18

*Packer, Tae Linrts or tHE Criminat Sanction, 290-

91 (1968) ... 2. ccc ccc eee 23

Plascowe & Spiero, THe Prosecutinc Attorney's

Orrice AND THE ConTROL oF OrGaNniIzED Crime, Man-

ual for Prosecuting Attorneys, 317 .............. 19

*Pound, Discretion, Dispensation anp Mrrication:

Tue or THE InpivipwaL Specian Case, 35 N. Y. U. L.

Rev. 925 (1960) ....... chen yee oe seen gees baatens 17

*President’s Commission on Law Enforcement and

Administration of Justice, Task Force Report:

CRIME aND Its Impact—An AssessMENT, 5-8, 25-41

CRUD 456 is eee ns cn tae ve cana en veseeaness 20, 22

*R. Jackson, Exrorcine tHe Law, 53-54 (1967) ...... 22

Silkenat, Limitations on Prosecutror’s DiscrETIONARY

Power to Initiate CrimtnaL Suits; Movement

Towarp a New Era, 5 Ottawa L. Rev. 104, 107 (1971) 19

Tue Prosecutor, Vol. 8, No. 6, p. 460 .............. 15

ee ee de ae ee ce

9S

Supreme Court of the Gnited States

OcTOBER TERM, 1972

No. 72-955.

W. C. SPOMER, STATES ATTORNEY OF ALEXANDER

County, ILLINOIS,

Petitioner,

VS.

| EZELL LITTLETON, ET. AL.,

Respondents.

| ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT.

| BRIEF FOR PETITIONER. :

OPINIONS BELOW.

.

The Opinion of the Court of Appeals for the Seventh

Circuit is reported at 468 F. 2d 389 and appears in full in

the Appendix to the Petition for Certiorari (Al). The

Opinion of the District Court for the Eastern District of

Illinois is not reported and appears in full in the Appendix

to the Petition for Certiorari (A1).

| | | :

PS ak nse ACS

JURISDICTION.

The judgment of the Court of Appeals for the Seventh

Cireuit was entered on October 6, 1972. This Court’s juris-

diction was invoked under 28 U. S. C. § 1254(1). The Peti-

tion for Writ of Certiorari was filed on January 3, 1973,

and granted on April 2, 1973.

&

CONSTITUTIONAL PROVISIONS.

Article II, Section 3 of the Constitution of the United

States provides in pertinent part:

‘*{the President] shall take care that the laws [shall]

be faithfully executed.”’

STATUTORY PROVISIONS.

Sections 1981, 1982, 1983, and 1985 of 42 U. S. C. appear

in full in the Appendix to the Petition for Certiorari (A1),

pp. 61-63.

QUESTIONS PRESENTED.

. Whether an injunction compelling a state prosecutor

to prosecute is a remedy under the Civil Rights Act

of 1871?

Whether a state prosecutor is immune from an injunc-

tion compelling him to prosecute?

. Whether respondents have available civil remedies and

access to criminal process which are as adequate and

more preferable to the unduly burdensome injunction

against the state prosecutor?

. Whether the conclusory complaint drafted by attorneys

is insufficient to state a cause of action against a state

prosecutor in view of the abuse potential inherent in

such suits and the very minimal possibility of respond-

ents prevailing?

BE POEM Se Nee cece metre TIT 4 fe Ar Brent tm pene

PURARERENNRT Mie BROT. ca AREt pane RBM TSC

STATEMENT OF THE CASE.

This case arises from an amended complaint bringing a

civil rights elass action filed in the United States District

Court for the Eastern District of Illinois. Nineteen named

plaintiffs, all but two of whom are black citizens of Cairo

and Alexander County, Illinois, seek damages and injunc-

tive relief against the State’s Attorney of Alexander

County, his investigator, and a Magistrate and Associate

Cireuit Judge of the Cireuit Court for Alexander County.

The action, premised on 42 U. S. C. See. 1981, 1982, 1983

and 1985, sought damages and injunctive relief against

the named functionaries of Alexander County for claimed

deprivations, under color of law, custom, and usage, of

various rights and immunities secured to the plaintiffs

and their class under the Constitution and the above named

sections of Title 42.

During the past few years Cairo, Illinois has been an

area of major civil rights activity by the black citizens

seeking to alleviate alleged racial discrimination. Part of

the civil rights activities involved an economic boycott

of local merchants who were alleged to have engaged in

racially discriminatory practices. As a result of the eco-

nomic boycott and general civil rights activities in Cairo

the investigative, prosecutorial and judicial officials of

Alexander County were required to act. It is on the basis

of the resultant actions by the local officials that the specific

allegations against the Alexander County functionaries

rest.

The State’s Attorney is alleged to engage in a pattern

of discriminatory conduct in that he refuses to allow blacks

to give evidence of crimes committed by white citizens

5

against black citizens of Cairo, refuses to initiate criminal

proceedings against whites who batter blacks, employs the

grand jury as a means of delaying and defeating the com-

plaints brought by blacks, purposely prosecutes white

offenders inadequately, and discriminatorily makes bond,

sentence and charging recommendations. Respondents

sought injunctive relief prohibiting the State’s Attorney

from depriving them of their constitutional rights and re-

quiring the State’s Attorney to file periodic reports to the

district court on the disposition of complaints filed by

respondents and members of the class (Appendix to brief,

p. 24).

The named judges of Alexander County are alleged to

set bond in criminal cases in a discriminatory manner and

sentence black defendants to longer criminal terms and

| imposes harsher conditions than they do for white persons

| charged with similar offenses. The district court, after

| allowing the filing of an amended complaint, entered a

| Memorandum and Order dismissing the complaints for

want of jurisdiction and the immunity of the officials for

their judicial and quasi-judicial actions. The district court

reasoned that in seeking to enjoin the elected officials of

Alexander County for their discretionary acts the plaintiffs

attempt to cause the federal court to substitute its judg-

ment for that of the duly elected local officials—an action

beyond the jurisdiction of the court. The lower court also

held that the doctrine of judicial immunity was applicable

to the named judges because the actions alleged in the

complaint were taken in the course of the judicial duties.

Similarly, the court held that the prosecutor and his in-

vestigator were also immune from damage claims arising

out of their judicial or quasi-judicial acts.

The Court of Appeals reversed and remanded the case

to the district court on the basis that the action was im-

properly dismissed. The Court of Appeals found that

>

shee Sree MEETS em et

6

jurisdiction under 42 U. S. C. Sec. 1981 and 1983 did

exist and more importantly, the reviewing court considered

at length the history, nature, and scope of judicial im-

munity. The court analyzed the recent decisions on the

scope of injunctive relief under Section 1983 and found

the ‘‘exceptional circumstances’’ for federal court inter-

vention by injunction of state court criminal prosecutions.

The court then considered the limitations on the concept

of prosecutorial immunity and concluded that investigative

activities by the prosecutor were not one of the quasi-

judicial duties for which he had immunity. Though the

court did not hold that the actions of Alexander County

State’s Attorney complained of in the pleadings were

‘‘investigative’’ in nature, it specifically directed the dis-

trict court to consider the limitations on the prosecutor’s

immunity when performing investigative functions. The

Court of Appeals concluded by holding that quasi-judicial

immunity does not extend complete freedom from injunction

to the prosecutor and that the allegations made in the

complaint, if established, could merit injunctive relief.

The court, noting that its holding created a case of first

impression as to the type of relief approved, volunteered

guidelines as to what type of remedy might be imposed,

suggesting that periodic reports containing data on bail,

sentencing and dispositions of complaints be made by the

local officials to the federal district court.

i a See * Fortes Die rn sree a AC agai cit) a, WA ah

SUMMARY OF ARGUMENT.

The effect of the injunction authorized by the Seventh

Circuit will be to compell the state prosecutor to initiate

criminal proceedings on complaints filed by respondents

or members of respondents class.

The congressional debates surrounding the enactment of :

the Civil Rights Act of 1871, as well as this Court’s inter-

pretation of the Act, make it clear that an injunction com-

pelling a state prosecutor to prosecute is not a remedy :

under the Civil Rights Act of 1871.

Throughout the entire history of American criminal

jurisprudence, the prosecutor, in the exercise of his execu- .

tive discretion, has remained immune from judicial control. e

In authorizing this injunction against the state prosecutor,

the Seventh Circuit ignored the fact that the prosecutor’s

role in the criminal justice system, the nature of and need

for prosecutorial discretion, and the compelling need for

such discretion to remain free from judicial control dic-

tates that the state prosecutor continue to remain immune :

from the type of injunction authorized by the Court.

Respondents have available civil remedies and access to

criminal process at law which are as adequate and more

preferable to the unprecedented remedy authorized by the

Seventh Circuit. Notwithstanding these remedies, the

Court authorized a remedy which would require federal

judges to act as state prosecutors, seriously disrupt the

historic federal-state relationship in the administration

of criminal justice, and unduly burden both the state prose-

cutor and the federal courts. Such a choice of remedy

should not be affirmed by this Court.

The Seventh Circuit improperly held that respondents’

conclusory, unsupported complaint sufficiently alleged a

8

cause of action against the state prosecutor. The potential

for undue burden and abuse inherent in the present suit,

and the improbability of respondents prevailing at trial

requires that respondents’ conclusory allegations be

deemed insufficient to state a cause of action against the

state prosecutor.

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1a RAE URES $8 ee 8 sha aE OTR

kc SRR EEE ey Fp SRST RST REBEL ae eR,

ARGUMENT.

A.

The Seventh Circuit held that the state prosecutor was

subject to the injunctive relief sought by the respondents.’

The Court of Appeals suggested that ‘‘An initial decree

might set out the general tone of rights to be protected

and require only periodic reports of various types of ag-

gregate data on actions on bail and sentencing and disposi-

tions of complaints .. .”’ The Court expressed ‘‘, . . com-

plete confidence in the district court’s ability to set up

further guides as required and, if necessary, to consider

individual decisions.’”* (Emphasis added).

The Court envisioned a general decree prohibiting dis-

crimination against respondents or members of their class.

The state prosecutor would then be required to submit to

1. Respondents prayed that the defendant State’s Attorney be

preliminarily and premanently enjoined from:

A. Depriving plaintiffs and members of the plaintiff class of

their constitutional rights (by refusing to prosecute, per-

mit plaintiffs to give evidence, proceed by information,

properly interrogate, adequately prosecute, recommend

equal bonds, charge equally), and that defendant be re-

quired to submit a monthly report to this Court con-

cerning the nature, status and disposition of any com-

plaint brought to him by plaintiffs or members of their

class, or by white persons against plaintiffs or members

of their class.

B. Neglecting his duties of office in failing to interrogate

impartially and without discrimination witnesses before

a grand jury.

C. Requesting more severe bond and sentences for plain-

tiffs and members of their class than for white persons.

D. Setting more severe charges against plaintiffs and mem-

bers of their class than against white persons. Amended

Complaint, Appendix, p. 24.

2. Littleton v. Berbling, 468 F. 2d 398, 415 (7th Cir. 1972).

J RD CARTIER ORE dt ENTE ge Se

10

the district court periodie reports on-his actions, and his

‘individual decisions’’ would there be reviewed. If the

district court were not satisfied by the prosecutor’s deci-

sions, presumably the prosecutor would be held in contempt

or he would be compelled by mandatory injunction to ‘‘cor-

rect’’ his actions in whatever manner appeared satisfac-

tory to the district court. In either event, the ultimate

effect of the original decree, as authorized by the Seventh

Circuit, would be to compel the state prosecutor to prose-

cute complaints filed by respondents or members of their

class and to prosecute such complaints in a manner satis-

factory to the federal court. In effect, the Seventh Circuit

authorized a mandatory injunction compelling a_ state

prosecutor to prosecute and to prosecute in a manner satis-

factory to a federal court.’ Such a remedy is improper for

the following reasons.

I.

AN INJUNCTION COMPELLING A STATE PROSECUTOR TO

PROSECUTE IS NOT A REMEDY UNDER THE CIVIL

RIGHTS ACT OF 1871.

The congressional debates surrounding the enactment of

the Civil Rights Act of 1871, as well as this Court’s inter-

pretation of the Act, make it clear that an injunction com-

pelling a state prosecutor to prosecute is not a remedy

under the Civil Rights Act of 1871.

The congressional debates surrounding the Ku Klux

Klan Act of April 20, 1871, ch. 22, 17 Stat. 13* evidence the

3. The reference to and reliance upon Peek v. Mitchell, 419 F.

2d 575 (6th Cir. 1970) (... ‘‘ where the court denied a similar

affirmative injunction to require prosecution’’) and other refer-

ences to compelling prosecution in the majority opinion clearly

indicate that the Seventh Circuit was aware of the effect of the

‘‘veneral guidelines’’ it suggested. But the ultimate effect of the

authorized injunction was squarely confronted only by Judge

Dillin in the dissenting opinion.

4. 42 U. S. C. § 1983 derives from §1 of this Act and 42

U. 8S. C. § 1985(3) from § 2 of the Act.

CIS te DO

11

intent to provide federal remedy for deprivations of con-

stitutional rights under color of state law.° There was

henceforth to be a remedy in federal court for federally

secured rights. As stated by Representative Lowe:

‘*{The] records of the [state] tribunals are searched

in vain for evidence of effective redress [of federally

secured rights] . .. What less than this [the Civil

Rights Act of 1871] will afford an adequate remedy?

The Federal Government cannot serve a writ of man-

damus upon State Executives or upon State Courts to

compel them to protect the rights, privileges and im-

munities of citizens ... The case has arisen when

the Federal Government must resort to its own

agencies to carry its own authority into execution.

Hence this bill throws open the doors of the United

States courts to those whose rights under the Consti-

tution are denied or impaired.* (Emphasis added.) —

A similar view was expressed by Senator Osborn: ‘‘If the

State Courts has proven themselves to suppress the local

disorders, or to maintain law and order, we should not

have been called upon to legislate ... We are driven by

existing facts to provide for the several states ... what

they have been unable to fully provide for themselves; i.e.

full and complete administration of justice in the courts.

And courts with reference to which we legislate must

be the United States Courts.’"* (Emphasis added.) And

as clarified by Senator Thurman:

‘Tt authorizes any person who is deprived of any right,

5. As Representative Shellabarger stated: The Civil Rights

Act of 1871 ‘‘not only provides a civil remedy for persons whose

former condition may have been that of slaves, but also to all

people where, under color of state law, they or any of them may

be deprived of rights to which they are entitled under the Consti-

tution by reason and virtue of their national citizenship.’’ Cong.

Globe, 42d Cong., Ist Sess., App. 68 (1971). See also Monroe v.

Pape, 365 U. S. 167 (1961); Ex parte Virginia, 100 U. S. 339,

25 L. Ed. 676.

6. Cong. Globe, 42d Cong. 1st Sess. 374-376 (1871).

7. Id., at 653.

ORES NE Oe RNS RO Ie

OPA Si

12

privilege or immunity secured to him by the Constitu-

tion of the United States, to bring an action against

the wrongdoer in the Federal Courts, . . . by this

section jurisdiction of that civil action is given to the

Federal courts instead of its being prosecuted as now

in the courts of the States.’”* (Emphasis added.)

The remedy authorized under the Act was to be rendered

directly by the federal courts in the course of a civil action

holding liable those persons acting under color of state law

who had deprived others of their federal rights. That the

federal courts were to compel state executives or state

courts to provide a remedy was neither authorized nor en-

visioned. It was well understood that state executives

and state courts were unable or unwilling to provide

appropriate sanctions.* Representative Coburn said that:

‘“‘The United States courts are further above mere

local influences than the county courts; their judges

ean act with more independence; cannot be put under

terror, as local judges can; their sympathies are not

so nearly identified with those of the vicinage; the

jurors are taken from the State, and not the neighbor-

hood; they will be able to rise above prejudice or bad

passions or terror more easily.’”°

The Act was not designed to authorize direct federal com-

pulsion of state executives to prosecute violators of civil

rights in state courts. Congress had provided for such

criminal prosecution in the federal courts by previously

enacting 18 U.S. C. §§ 241, 242 (Enforcement Act of 1870)"

8. Jd., App. 216.

9. See the message sent to Congress by President Grant, #d.,

p. 224; (Mr. Lowe) p. 374; (Mr. Beatty), p. 428; (Sen. Osborn)

p. 653.

10. Jd., p. 460.

11. Section 241 is a conspiracy statute. It reads as follows:

‘‘If two or more persons conspire to injure, oppress,

threaten, or intimidate any citizen in the free exercise or

enjoyment of any right or privilege secured to him by the

Constitution or laws of the United States, or because of his

having so exercised the same; or

13

which were the criminal analogues to the civil remedies

provided in the Ku Klux Klan Act (42 U. S. C. §§ 1983,

1985 (3)).

Interpretation by this Court of the Act and the debates

surrounding the Act supports this view. In Monroe v. Pape,

this Court recogni It is abundantly clear that one

reason the legislation passed was to afford a federal

right in the federal courts because, by reason of prejudice,

passion, neglect, intolerance or otherwise, state laws might

not be enforced . . .’"* And in Mitchum vy. Foster, this

Court stated:

‘*This legislative history makes evident that Con-

gress clearly conceived that it was altering the relation-

ship between the States and the Nation with respect to

the protection of federally created rights; it was con-

cerned that state instrumentalities could not protect

‘*If two or more persons go in disguise on the highway, or

on the premises of another, with intent to prevent or hinder

his free exercise or enjoyment of any right or privilege so

secured—

‘*They shall be fined not more than $5000 or imprisoned

not more than ten years, or both.’’

Section 242 first came into law as §2 of the Civil Rights Act,

Act of April 9, 1866, 16 Stat. 140, 144. After passage of the Four-

teenth Amendment, this provision was re-enacted by § 18 of the

Enforcement Act of 1870. As originally enacted this section

provided :

“$2. And be it further enacted, That any person who,

under color of any law, statute, ordinance, regulation, or

custom, shall subject or cause to be subjected, any inhabitant

of any State or Territery to the deprivation of any right

secured or protected by this act, or to different punishment,

pains, or penalties on account of such person having at any

time been held in a condition of slavery or involuntary

servitude, except as a punishment for crime whereof the party

shall have been duly convicted, or by reason of his color or

race, than is prescribed for punishment of white persons,

shall be deemed guilty of a misdemeanor, and, on conviction,

shall be punished by a fine not exceeding one year, or both,

in the discretion of the court.’’

12. 365 U. S. 167, 180, 81 S. Ct. 473, 481 (1961).

PRN 0 Raptr

14

those rights; it realized that state officers might, in

fact, be antipathetic to the vindication of those rights ;

and it believed that the failings extended to the state

courts ... The very purpose of § 1983 was to inferpose

the federal courts between the States and the people,

as guardians of the people’s rights—to protect the

people from unconstitutional action under color of

state law . . ."* (Emphasis added.)

As opposed to standing above the states and mandating

state executives to provide protection in state courts,

§ 1983 was to interpose the federal courts between the states

and the people.’’ placing a direct burden on the federal

courts and federal authorities to provide relief in individual

eases where the states had not done so. While in Mitchum

this Court authorized injunctive relief under § 1983, only

prohibitory injunctive relief against a state court proceed-

ing has been authorized by this Court; never has this Court

authorized injunctive relief to compel initiation of a state

criminal proceeding because such a federal mandamus is

not a remedy under the Civil Rights Act of 1871.

II.

THE STATE PROSECUTOR IS IMMUNE FROM AN

INJUNCTION COMPELLING HIM TO PROSECUTE.

The Seventh Cireuit held that while the defendant State’s

Attorney was at least partially immune from suit for

damages under the Civil Rights Acts, the State’s Attorney

was subject to injunctive proscription. The Court reasoned

that since—(A) a federal court has the power to enjoin a

state prosecutor from instituting criminal proceedings ;“

(b) an ‘*... affirmative injunction to require prosecution’’®

13. 407 U. S. 225, 92 S. Ct. 2151, at 2162 (1972).

14. Ex parte Young, 209 U.S. 123 (1908) ; Younger v. Harris,

401 U. S. 37 (1971); Mitehum v. Foster, 407 U. S. 225, 92 S. Ct.

2151 (1972).

15. Littleton v. Berbling, 368 F. 2d 389, 411 (1972).

II EN Bates ea. ANAS enna. Mae

15

was impliedly authorized by the Sixth Circuit in Peek v.

Mitchell ;** and (c) plaintiff’s remedy at law was inadequate,

an injunction to secure ‘‘, .. prompt and effective prosecu-

tion under the criminal laws’ was proper. The Court

recognized prosecutorial discretion, but held that ‘‘a dis-

eretionary action is subject to review and reversal for

abuse of discretion.’’* In holding that injunctive relief was

proper, and suggesting that ‘‘if necessary’’ the district

court should ‘‘consider individual decisions’? by the en-

joined state prosecutor, the Court virtually ignored the

role of the prosecutor in the administration of criminal

justice, the nature of and necessity for prosecutorial dis-

cretion in the initiation of criminal proceedings, the degree

to which American courts have consistently preserved such

prosecutorial discretion, and the compelling need for such

discretion to remain free from judicial control.

7s 8

The prosecutor stands at a critical point in the American

criminal justice system. He functions at the hub of the

system, working directly with the police, the courts, the

people." The duty of the prosecutor is to ‘‘seek justice.’

Although an advocate operating within an adversary sys-

tem, he is obliged to protect the innocent as well as convict

16. 419 F. 2d 575 (6th Cir. 1970). The Sixth Circuit noted

that ‘‘It is . . . apparent that the federal cagrts must achieve a 4

balance between the protection of individual Tights and the free-

dom of public officials to exercise their necessary expertise in

performing their duties . . . and the courts must shield the

responsible public officials against any abusive use of the civil

rights legislation,’’ and held. ]

17. Supra, note 15, at 412. :

18. Id.,at 412.

19. See Remarks to the Law Enforcement Assistance Adminis-

tration Court Specialists Throughout the United States, by Carol }

S. Vance, President of the National District Attorneys Associa- .

tion, The Prosecutor Vol. 8, No. 6,

20. ABA Stanparps RELATING TO THE PROSECUTION FUNCTION

AND THE DEFENSE FUNCTION, THE PROSECUTION FUNCTION, Sec-

tion 1.1(¢) (Approved Draft, 1971) [hereinafter cited as ABA

STANDARDs | .

16

the guilty, to guard the rights of the accused as well as

enforce the rights of the public :”

The prosecutor has a dual role which reflects in a sense

the ambivalence of public attitudes on law enforcement

and is the source of some difficulties. On the one hand,

the prosecutor is the leader of law enforcement in the

community. He is expected to participate actively in

marshaling society’s resources against the threat of

crime. When a crisis in the enforcement of criminal

law arises in the community, the public press and

others clamor for a ‘‘war against crime’’ and he may

be drawn into the maelstrom of political controversy

by the demand that he ‘‘stamp out the criminals.’’ He

is called upon to make public statements, to propose

legislative reforms, or to direct the energies of the law

enforcement machinery of the community. On the

other hand, the office demands and on sober thought

the public expects, that the prosecutor will respect the

rights of persons accused of crime. Our nation began

with resistance to oppressive official conduct and our

traditions, embodied in the national and state constitu-

tions, demand that the prosecutor accord basic fairness

to all persons. Because of the power he wields, we

impose on him a special duty to protect the innocent

and to safeguard the rights guaranteed to all, including

those who may be guilty. The conflicting demands on a

prosecutor may exert pressures on him which his sense

of fairness as a lawyer rejects. Both his public respon-

sibilities as well as his obligations as a member of the

bar require that he be something more than a partisan

advocate intent on winning cases.”

In this role as quasi-judicial ‘‘minister of justice’’,* the

American prosecutor exercises a vast amount of discre-

21. ABA Cope or Proressionat Respostpiuity EC 7-13 (Final

Draft, 1969) [hereinafter cited as ABA Cone] ; United States v.

Kline, 221 F. Supp. (D. Minn. 1963).

22. ABA STANDARDS, THE PROSECUTION FuNcTIoN, Introduc-

tion, p. 19.

23. See the Commentary to ABA STanparps, PROSECUTION

Function, Section 1.1.

ALI REE. Noe ce PN

a

‘ *

17

tion.* The proseeutor’s discretion is most pronounced with

respect to the initiation and discontinuance of criminal

proceedings.* Prosecutorial discretionary power in the

initiation of criminal proceedings arises not by statute but

from the common law.” Courts throughout the country

24. Various commentators have advanced the following defini-

tions of ‘‘diseretion’’ in this context: ‘‘an authority conferred

by law to act in certain conditions or situations, in accordance

with the official’s or the official agencies’ own considered judgment

and conscience,’’ La Fave, The Prosecutor’s Discretion in the

United States, 18 Am. J. Comp. L. 532 n.1 (1970); Professor

Davis posits that a ‘‘public officer has discretion whenever the

effective limits on his power leave him free to make a choice among

possible courses of action,’’ K. Davis, Discretionary Justice 4

(1969) [hereinafter cited as Davis]; See generally Pound, Dis-

cretion, Dispensation and Mitigation; The Problem of the Indi-

vidual Spectal Case, 35 N. Y. U. L. Rev. 925 (1960); Baker &

DeLong, The Prosecuting Attorney: The Process of Prosecution,

26 J. Crim. L. & Crim. 647 (1935); Kaplan, The Prosecutorial

Discretion—A Comment, 60 Nw. U. L. Rev. 174 (1965).

25. The complaint in the present case is directed against the

failures of the prosecutor :

a) to inittate criminal proceedings when the victims are mem-

bers of the plaintiffs’ class ;

b) to proceed on plaintiffs’ complaints by complaint and in-

formation rather than by grand jury actions;

ec) to interrogate properly before the grand jury;

d) to prosecute adequately cases involving respondents as

complainants.

The Seventh Circuit has authorized injunction which would com-

pel the state prosecutor to initiate and prosecute complaints.

Considering the nature of the complaint and the Seventh Circuit

holding, particular focus here will be made upon the discretion

of the prosecutor in the initiation and discontinuance of criminal

proceedings. Certainly the prosecutor exercises a vast amount of

discretion in the manner of prosecution (i.e., order and examina-

tion of witnesses, motions, strategy, ete.) once prosecution has

been initiated. The nature of and considerations underlying pros-

ecutorial discretion in initiation and discontinuance decisions ap-

ply equally to the prosecutor’s discretionary decisions throughout

prosecution.

26. At Common Law the prosecuting attorney had absolute con-

trol of the criminal prosecution. See United States v. Thompson,

251 U. S. 407, 40 S. Ct. 289 (1920); Confiscation Cases, 7 Wall

454, 19 L. Ed. 196 (1868) ; United States v. Brokaw, 60 F. Supp.

100 (S. D. Ill. 1945); Fay v. Miller, 183 F. 2d 986 (D. C. Cir.

1950).

: tei ~

6-18

have consistently interpreted the common directory stat-

utes” so as to permit substantial discretion to abstain from

prosecution. The courts have reasoned that the terms of

the statutes are not to be viewed as a mandate to act against

all possible offenders ; that such mechanical enforcement of

all criminal law would be undesirable and impractical.

Underlying this reasoning is a desire for leniency in par-

27. Most statutes, such as that of Illinois simply provide that

the duty of the states attorney:

shall be (1) to commence and prosecute all actions, suits,

indictments and prosecutions, civil and criminal, in any court

of record in his country, in which the people of the state or

county, may be concerned. (emphasis added)

(2) To institute and prosecute all actions and proceedings

in favor of or for the use of the state, which may be

necessary in the execution of the duties of any state

officer.

(12) To attend to and perform any other duty which may,

from time to time, be required of him by law. Illinois

Revised Statutes, Chapter 14, § 5 (1969).

The federal rules are equally general and indefinite by defining

the duties of the district attorney as simply to: ‘‘(1) prosecute

for all offenses against the United States; (4) . . . unless satisfied

in investigation that justice does not require the proceeding,”’

28 U.S. C. § 547 (1964).

28. See generally Annot., 155 A. L. R. 11 (1945):

The cases passing upon this question seem to be agreed upon

the proposition that a duty rests upon a district or prosecut-

ing attorney to prosecute the violators of the criminal laws

of the state whom he knows or has reason to believe to be

guilty of such violations. (citations omitted), [sic] but that

this duty is not absolute but qualified, requiring of him only

the exercise of a sound discretion, which permits him to

refrain from prosecuting, or having commenced a p

tion, to enter a nolle prosequi, whenever he, in good faith and

without corrupt motives or influences, thinks that a prosecu-

tion would not serve the best interests of the state,

under the circumstances, a conviction could not be

that the guilt of the accused is doubtful or not capable of

adequate proof.

See also: Nedrud, The Role of the Prosecutor in Criminal Proce-

dure, 32 U. M. K. C. L. Rev. 142, at 148 (1964); LaFave, The

Prosecutor’s Discretion in the United States, 18 Am. J. Comp.

L. 532 (1970) [hereinafter cited LaFave].

gts a RO octet pa URES SR RET Sia RS 6 ESE BRE SRS ES

19

ticular cases,” a flexible procedure necessary to effectuate

that end, and adherence to the theories of criminal law

which are aimed to some degree at societal purposes other

than crime prevention.* Implicit in the attitude of the

courts is a basic recognition that the nature of the decision

to prosecute requires that it be discretionary with the prose-

eutor for the decision to prosecute involves a delicate

~weighing of a myriad of subjective and objective factors:

[D]iseretionary judgment is the product of the inevi-

table need for mediation between generally formu-

lated laws and the human values contained in the

varieties of particular circumstances in which the law

is technically violated.™

The President’s Commission has suggested several sub-

jective factors that may be weighed in determining whether

to decline prosecution:

(1) the seriousness of the crime;

(2) the effect upon the public sense of security and

justice if the offender were to be treated without

criminal conviction ;

(3) the place of the case in effective law enforcement

29. Two desires are apparent: The first is the need on the

part of the public and the courts for personalized justice, ‘‘rather

than literalistie adherence’’ to laws. L. Minter, Dous_Le JEoPARDY

AND THE FEDERAL SysTEM, 118 (1968). See LaFave, supra, note 16,

at 534 (1970) ; Silkenat, Lamttations on Prosecutor’s Discretionary

Power to Initiate Criminal Suits: Movement Toward a New Era,

5 Orrawa L. Rev. 104, at 107 (1971). The second is the desire by

prosecutors that their function not appear to be one of ‘‘persecu-

tors’’. Ploscowe & Spiero, The Prosecuting Attorney’s Office and j

the Central of Organized Crime, MANUAL FoR PRosECcUTING ATTOR- 2

NEYs, at 317; F. Mmuuer, Prosecution: THE Decision To CHARGE

A Suspect WITH A Crime 187 (1969) [hereinafter cited as F.

Miller}.

30. Justice Breitel favors lenient discretion, a discretionary

power which would ‘‘ameliorate or avoid the effective application

of the literal criminal code.’’ Breitel, Controls in Criminal Law

Enforcement, 27 U. Cui. L. Rev. 427, at 430 (1960) [hereinafter

cited as Breitel].

31. Kadish, Legal Norm and Discretion in the Police and

Sentencing Process, 75 Harv. L. Rev. 904, at 913 (1969).

FSM WF Ep

TR NVM NT

20

policy where deterrent factors may loom large,

e.g., tax evasion, white collar crimes, first convic-

tion juvenile offenses;

(4) whether the offender has medical, psychiatric,

family, or vocational difficulties ;

(5) whether there are agencies in the community

capable of dealing with his problem;

(6) whether there is reason to believe that the offender

will benefit from and cooperate with a treatment

program ;

(7) what the impact of criminal charges would be

upon the witnesses, the offender, and his family.*”

Objective considerations include 1) sufficiency of the

evidence ;** 2) witness availability and willingness to co-

32. PRESIDENTS COMMISSION ON LAW ENFORCEMENT AND AD-

MINISTRATION OF JUSTICE, TASK Force Report: CRIME AND Its

ImpActT—aN ASSESSMENT, 25-41 (1967) See also Cates, Can We

Ignore Laws—A Discretion Not to Prosecute, 14 Awa. L. Rev. 1

(1961).

33. The Los Angeles District Attorney compiled the following

list of reasons for refraining to file a complaint:

(1) Departmental policy

(2) No Corpus Delecti

(a) no specific intent

(b) no criminal act

(3) No connecting evidence

(a) astatement problem

(b) witness problem

(ce) physical evidence problem

(4) Insufficient evidence

(a) facts weak

(b) evidence not available

(ec) incomplete investigation

(d) witnesses not available

(e) evidence inadmissible

illegal detention

fruit of the poisoned tree

search warrant problem

search & seizure problem

warrant of arrest

. Miranda plus

(5) Lack of jurisdiction

(6) Statute of limitations

os

SP YN we 0 1D

‘NS

|

21

operate; 3) cooperation of the accused in the apprehension

of other offenders; 4) strength of the defendants case; 5)

possibility for non-criminal disposition.** Additionally, a

(7) Offense—misdemeanor

(a) filed

(b) referred

(8) Interest of justice.

nal Complaints, 42 S. Cau. L. Rev. 519, 531 (1969).

34. Consider also the ABA STANDARDs, PROSECUTION FUNCTION,

Section 3.8, 3.9:

3.8 Discretion as to non-criminal disposition. 4

(a) The prosecutor should explore the availability of

non-criminal disposition, including programs of re-

See Comment, Prosecutorial Discretion in the Initiation of Crimi- }

;

K

habilitation, formal or informal, in deciding whether ’

to press criminal charges; especially in the case of a 4

first offender, the nature of the offense may warrant :

non-criminal disposition.

(b) Prosecutors should be familiar with the resources

of social agencies which can assist in the evaluation

of cases for diversion from the criminal process.

3.9 Discretion in the charging decision.

(a) In addressing himself to the decision whether to

charge, the prosecutor should first determine whether

there is evidence which would support .a conviction.

(b) The prosecutor is not obliged to present all charges

which evidence might support. The prosecutor may :

in some circumstances and for good cause consistent §

?

with the public interest decline to prosecute, not- |

withstanding that evidence exists which would sup-

port a conviction. Illustrative of the factors which ;

the prosecutor may properly consider in exercising “

his discretion are : }

(i) the prosecutor’s reasonable doubt that the ac- :

cused is in fact guilty ;

(ii) the extent of the harm caused by the offense ;

(iii) the disproportion of the authorized punish-

ment in relation to the particular offense or

the offender ;

(iv) possible improper motives of a complainant ;

(v) prolonged non-enforcement of a statute, with

community acquiescence ;

(vi) reluctance of the victim to testify ;

(vii) cooperation of the accused in the apprehension

or conviction of others ;

(viii) availability and likelihood of prosecution by

another jurisdiction.

4

aa ee

a

ss

92

prosecutor’s office may informally have a policy not to

prosecute certain types of offenses.*

The decision to prosecute is necessarily an individualized

decision. The facts, crime, victim and defendant vary with

each and every case:

The principle that seems to emerge . . . is that there

should be a tolerably consistent pattern in serious

offenses within the particular legal system. Conduct

that is criminal in the eyes of the law should, where

the offenses are comparable, result in prosecution or

no prosecution irrespective of the locality. ... But

however strong the tendency may be to secure uni-

formity, a decision whether to prosecute or not has to

be made on the particular facts and circumstances of

the particular case.**

Discretion is necessary to dispose quickly of the obviously

faulty case, to permit early disposition and screening of

cases in which the accused is apparently innocent, or for

any of the factors listed above, the case would be a waste of

time to pursue. Discretion is necessary to allow the prose-

cutor a choice of weapons sufficiently flexible to cover any

35. The President’s Commission suggests that the following are

offenses not likely to be prosecuted :

(1) domestic disturbances ;

(2) assaults and petty thefts in which the victim and offender

are in a family or social relationship ;

(3) statutory rape when both the boy and girl are young;

(4) first offense car thefts, the ‘‘ joyride’’;

(5) checks drawn upon insufficient funds;

(6) first offense shoplifting, particularly where restitution is

made ;

(7) where the criminal acts involve offenders suffering from

emotional disorders short of legal insanity ;

(8) eases involving annoying or offensive behavior other than

a dangerous or serious crime, e.g. drunkeness, disorderly

conduct, minor assault, vagrancy, and petty theft.

President ’s Commission, supra, not 19, at 5-8.

36. R. Jackson, Enrorcine THE Law, 53-54 (1967).

nemmentti, pmuameeed retain ooh tanh a

Lh ee Mh Hitt EA PATE

single course of conduct.” Even if criminal laws were

drafted with exquisite specification, it would still be neces-

sary for the prosecutor to exercise judgment. Indeed, dis-

cretion is forced upon the prosecutor for ‘‘. . . no prosecutor

can even investigate all of the cases in which he receives

complaints . . . What every prosecutor is practically re-

quired to do is select the cases for prosecution and select

those which the offense is most flagrant, the public harm

the greatest, and the proof the most certain.’’*

The prosecutor’s decisions can only be made on a case by

case basis. In this regard, his decisions are clearly dis-

tinguishable from other common decisions of public officials

substantially affecting the public interest, e.g. decisions as

to who is to have housing, who is to be employed, attend

particular schools, utilize public facilities, ete. The prose-

cutor cannot decide in advance who is to be prosecuted.

Each particular case involves the delicate weighing of

numerous factors and an evaluation based upon judgment

and sound discretion.

The courts have consistently refused to interfere with

prosecutorial discretion in making this delicate decision.

37. See generally Arnold, Law Enforcement—An Attempt at

Social Dissection, 42 Yate L. J. 1 (1932) ; Comment, Prosecutorial

Discretion—A Re-evaluation of the Prosecutor’s Unbridled Dis-

cretion and its Potential for Abuse, 21 DePaut L. Rev. 485 (1971).

38. Packer, THE LIMITS OF THE CRIMINAL SANCTION, 290-91

(1968).

39. United States v. Cox, 342 F. 2d 167 (5th Cir. 1965) ; Powell

v. Katzenbach, 359 F. 2d 234, cert. denied 88 S. Ct. 1341 D. C.

Cir. 1965) ; United States v. Brokaw, 60 F. Supp. 100 (S. D. IIL

1945) ; Moses v. Kennedy, 219 F. Supp. 762 (D. D. C. 1963);

United States v. Woody, 2 F. 2d 262 (D. Mont. 1924); Pugach v.

Klein, 193 F. Supp. 630 (S. C. N. Y. 1961) ; Goldberg v. Hoffman,

225 F. 2d 463 (1955) ; Patten v. Dennis, 134 F. 2d 137 (9th Cir.

1943) ; Confiscation Cases, 74 U. S. (7 Wall.) 454 (1893).

State Cases: Wilson v. County of Marshall, 257 Ill. App. 220

(1930); People v. Wabash, St. L. & P. Ry., 12 Ill. App. 263

(1883) ; People v. Newcomer, 284 Ill. App. 315, 120 N. E. 244

(1918) ; Taliaferro v. Locke, 182 Cal. App. 2d 752, 6 Cal. Rptr.

EY ROE Ty ES ne EN

eet es

24

The courts have repeatedly refused to force a prosecutor

to either initiate criminal proceedings,*° continue criminal

proceedings, *’ reinstate a case wherein a nolle proseque

had been entered,* or charge a particular offense,** what-

ever his reasons for acting.**

The courts have presented sound reasons for refusing to

interfere with prosecutorial discretion. Article II, Section

813 (1960) ; Bd. of Supervisors v. Simpson, 36 Cal. 2d 671, 227

P. 2d 14 (1951); Wilson v. Sharp, 42 Cal. 675, 268 P. 2d 1062

(1954) ; Leoni v. Fanelli, 194 Mise. 826, 87 N. Y. S. 2d 850 (Sup.

Ct. 1949) ; Murphy v. Summers, 54 Tex. Crim. 369, 112 S. W.

1070 (1908); Ackerman v. Houston, 45 Ariz. 293, 43 P. 2d 194

(1935) ; Brack v. Wells, 184 Md. 86, 40 A. 2d 319 (1944); State

ex rel. Spencer v. Criminal Court, 214 Ind. 551, 15 N. E. 2d 1020

(1938) ; Also see generally Annot. 155 ALR 11 (1945).

40. United States v. Cox, id; Moses v. Kennedy, id., and cases

cited therein.

41. Consider Petite v. United States, 361 U. S. 529 (1960)

wherein this Court granted a government motion to vacate the

lower court judgment and remand for dismissal based upon the

‘‘formulation and implementation of enlightened and proper

prosecutorial policy.’’ Defendant’s Brief on Motion to Vacate

and Dismiss, p. 3; and Redmond v. United States, 384 U. S. 264

(1966), wherein this Court again granted a government motion

te vacate and dismiss based upon a Departmental policy of non-

prosecution of obscenity statute violators, and the policy to act

only against ‘‘strategic cases.’’ Respondents Brief for Certiorari,

pp. 3-4.

42. United States v. Brokaw, id., and the case cited therein.

43. Hutcherson v. United States, 345 F. 2d 964 (D. C. Cir.

1965) ; cert. denied, 382 U. S. 894 (1965) ; Peek v. Mitchell, 419 F.

2d 575 (6th Cir. 1970) ; Newman v. United States, 382 F. 2d 479

(D. C. Cir. 1967); Powell v. Katzenbach, 359 F. 2d 234 (D. C.

Cir. 1965) ; cert. denied, 384 U. S. 906 (1966) ; Clemone v. United

States, 137 F. 2d 302 (4th Cir. 1943) ; Deutsch v. Aderhald, 80 F.

2d 677 (5th Cir. 1935).

44. See Pugach v. Klein, supra note 26; United States v. Bro-

kaw, supra, note 28; Petite v. United States, supra, note 27.5;

Redmond v. United States, supra, note 2715; Even where courts

or statutes have required reasons for absence of prosecution or

for nolle pros, the resulting judicial review in a mandamus pro-

ceeding has been a mere ‘‘formality’’. Comment, Private Prosecu-

tion: A Remedy for District Attorneys Unwarranted Inaction, 65

Yate L. J. 209, 213 (1955).

in BR ie

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3 of the Constitution of the United States provides that

‘‘(the President] shall take care that the laws [shall] be

faithfully executed.’’ Accordingly the federal courts have

always held that ‘‘The prerogative of enforcing the crim-

inal laws was vested by the Constitution therefore, not in

the Courts, nor in private citizens, but squarely in the

executive arm of the government.’ As early as Marbury

v. Madison, *° Mr. Chief Justice Marshall established the

pattern for the relationship between the judicial and execu-

tive branches of government:

. Where the head of a [executive] department acts

in a case in which executive discretion is to be exercised

...it is again repeated that any application to a court

to control, in any respect, his conduct would be re-

jected without hesitation.** (Emphasis added.)

In the Confiscation Cases, this Court held that: ‘‘ Public

prosecutions are within the exclusive direction of the dis-

trict attorney, and, even after they are entered in court,

they are so far under his control that he may enter a nolle

prosequi at any time before the jury is impaneled for the

trial of the case.** Later cases, while all relying upon the

separation of powers doctrine, have cited an equally im-

portant reason for refusing to interfere with the prosecutor.

In Pugach v. Klein, the court recognized the delicate nature

of the decision to prosecute:

Surely it is for the United States Attorney to decide

whether the public interest is better served by prose-

cuting or declining to prosecute . . . the likelihood of

conviction . . . the degree of criminality, the weight of

the evidence, the credibility of witnesses, precedent,

45. Pugach v. Klein, 193 F. Supp. 630, at 634 (S. D. N. Y.

1961).

46. 1 Cranch 137 (1808); See also Goldberg v. Hoffman, 225

F. 2d 463 (7th Cir. 1955).

47. Id., at pages 170-171.

48. 7 Wall. 454, 19 L. Ed. 196 (1893).

DAE EER ARI Ons iue Rp TEINS se REY

policy, the climate of public opinion, timing, gravity

of the offense . .

Still other factors are the relative importance of the

offense compared with competing demands of other

cases on the time and resources of investigation, prose-

cution and trial. All of these numerous other intangi-

ble and unponderable factors must be carefully weighed

and considered by the United States Attorney in de-

ciding whether or not to prosecute.

All of these considerations point up the wisdom of

vesting broad discretion in the United States Attorney.

The federal courts are powerless to interfere with his

discretionary power. The Court cannot compel him

to prosecute a complaint or even an indictment, what-

ever his reasons for not acting. The remedy for derelic-

tion of his duty lies, not with the courts, but, with

the executive branch of our government and ultimately

with the people.’

In United States v. Cox, the Fifth Circuit recognized

that; ‘‘The executive’s absolute and exclusive discretion to

prosecute may be rationalized as an illustration of the

doctrine of separation of powers, but it would have evolved

without the doctrine and exists in countries that do not

purport to accept this doctrine.’

The courts have carefuly preserved prosecutorial discre-

tion even in cases where the prosecutor’s conduct in a par-

ticular case is reviewed by the courts. Certainly a prosecu-

tor’s conduct in a given case has been and is subject to

control by the courts. When a prosecutor withholds fav-

orable evidence to the defense," or refuses to disclose the

49. Supra, note 45, at 635; Later cases have strictly adhered

to this view. See Moses v. Kennedy, 219 F. Sapp. 762 (D. D. C.

1963) ; Powell v. Katzenbach, 359 F. 2d 235 (D. C. Cir. 1965)

cert. denied, 88 8, Ct. 1341,

50. 842 F. 2d 167 (Sth Cir. 1965), cert. dented, 85 S. Ct. 1767.

51. Brady v. Maryland, 373 U. 8. 83 (1962); Giles v. Mary-

land, 386 U. S. 66 (1967); Miller v. Pate, 386 U. S. 1 (1967).

— ee we ore

cs et AO ORL

27

- content of government wiretaps,” or engages in misconduct

at trial to the prejudice of a particular defendant, his case

against such defendant is dismissed or reversed on appeal.

Similarly, courts are willing under certain limited circum-

stances, to prohibit the prosecutor, by way of injunction,

from tnstituting criminal proceedings against an irrepar-

ably injured or prejudiced defendant.” Such prohibitory

relief is in the nature of accelerated appellate review.

Such review of prosecutorial misconduct or prohibitory re-

lief, however, is not directed toward the prosecutor’s dis-

cretion, but only toward his particular conduct prejudicial

to a particular defendant either before or about to be

brought before the court. While particular cases may be

dismissed or reversed, the courts have been careful to al-

ways preserve prosecutorial discretion. The prosecutor al-

ways retains his discretion and power to refuse disclosure

or engage in misconduct though his case may be dismissed

or reversed as a consequence. The prosecutor’s discretion

is never reviewed nor divested by the courts, even though

the courts may prohibit his goal—suecessful prosecution—

as a consequence of his prejudicial action. The Court which

reviews the prosecutor’s conduct in these contexts does not

involve a right of direct control over the prosecutor. Rather

the court reviews the conduct of the courtroom or judicial

process. It is the action of the trial court, not of the

prosecutor that is the basic subject of review. As Chief

Justice Burger recognized in Newman v. United States

|The prosecutor] is at once an officer of the court and

the attorney for a client; in the first capacity he is

responsible to the Court for the manner of his conduct

of a case,... but in the second capacity, as agent and

attorney for the Executive, he is responsible to his

52. See Alderman vy, United States, 394 U.S. 165, 89S. Ct. 961

(1969).

538. Ex Parte Young, 209 U. S. 123 (1908) ; Younger v. Harris,

401 U. 8. 37 (1971).

dab

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28

principal and the courts have no power over the exer-

cise of his discretion or his motives as they relate to

the execution of his duty within the framework of his

professional employment . . . The concurring opinion

would reserve judicial power to review ‘‘irrational’’

decisions of the prosecutor. We do our assigned task

of appellate review best if we stay within our own

limits, recognizing that we are neither omnipotent so

as to have our mandates run without limit nor omni-

scient so as to be able to direct all branches of govern-

ment. The Constitution places on the Executive the

duty to see that the ‘‘laws are faithfully executed”’

and the responsibility must reside with that power.™.

«Emphasis added.)

And as succinctly stated by the Seventh Circuit in Goldberg

v. Hoffman, ‘‘Discretion is always subject to abuse, but

the framers of our constitution have indicated their con-

viction that the danger of abuse by the executive is a lesser

evil than to render the acts left to executive control sub-

ject to judicial encroachment.’

The attitude of the courts in preserving prosecutorial

discretion is well supported by the policy considerations

which, in part, underlie the separation of powers doctrine.

As stated in United States v. Cox, ‘The functions of prose-

cutor and judge are incompatible.’** The prosecutor, fune-

tioning as an elected law enforcement officer and ad-

vocate for the public interest, must not only be a skilled

courtroom advocate, but shrewd investigator, an efficient

administrator, and a perceptive judge of the public interest

he represents. To weigh competently the innumerable

factors to be considered in the decision to prosecute he

must have knowledge of and experience with the police,

investigators, victims, defendants and witnesses as well as

D4. 382 RB. 2d 479, at 481, 482 n. 9 (D.C. Cir, 1967 ).

55, 225 F, 2d 463, 466 (7th Cir.1955).

56. 342 F. 2d 167, 192 (Sth Cir. 1965), cert. denied, _____ U. S.

cise ee B.A. BT.

29

with the courts, juries, and correctional policy and prac-

tices. Without such knowledge, experience and expertise,

the public interest is compromised. The judge, functioning

as ‘‘umpire’’ in the adversary system, has as his primary

duty the interpretation and proper application of the law.

While a judge may, in some cases, have general knowledge

of prosecutorial policies and procedures, nothing in his

judicial knowledge or experience renders him competent to

weigh the factors inherent in the decision to prosecute.

And his lack of ‘‘on-the-scene’’ participation in the basic

investigation, his remoteness (in many cases) from the

community and its police agencies are factors which will

render him incapable of exercising a sound prosecutorial

discretion. Moreover, the judge has a basic responsibility

to remain neutral in the adversary process. Participation

by the judge in a decision to prosecute would destroy his

neutrality.”

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The Seventh Circuit failed to consider the role of the gy

prosecutor, the nature of and need for prosecutorial dis- .

cretion, or the respect for such repeatedly asserted by the

courts. Apparently the Court reasoned that either the Civil

Rights Act abrogated prosecutorial immunity from the

type of injunction authorized, or that the state prosecutor,

in the exercise of his executive discretion, did not have the

immunity from control by the federal judiciary traditionally

enjoyed by the federal prosecutor.

It is well established however, that the Civil Rights Acts

did not abrogate the common law immunities of public

57. Consider the questions raised in Petitioner’s Petition for

Certiorari, p. 14.

~

58. The Circuit Court’s repeated reference to the holding by

this Court in Mitchum v. Foster, supra, note 1, both of these

theories.

a od ae

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30

officials.” Moreover, as recognized in Moses v. Kennedy,”

nothing in the legislative history of the Civil Rights Act

indicates that the judiciary is to have the power to force a

discretionary executive act. In Hampton v. City of Chicago,

Cook County, Illinois" the court specifically held that the

common law immunity of the States Attorney was not

abrogated by the enactment of the Civil Rights Act.

Like the United States Constitution, the Illinois Consti-

tution of 1970 divides state government into the legislative,

executive and judicial branches. Article II, Section 1 spe-

cifically provides that: ‘*The legislative, executive, and

judicial branches are separate. No branch shall exercise

powers properly belonging to another.’’ Article V Section

8 provides that: ‘‘The Governor shall have the supreme

executive power, and be responsible for the faithful execu-

tion of the laws.’’ In Illinois, as in all other states, the

State’s Attorney is considered a member of the executive

branch of government, and the powers exercised by him

are executive powers. Accordingly, state courts have re-

59. In Tenney v. Brandhove, 341 U. S. 367 (1951); this Court

held that the Civil Rights Act did not abrogate legislative immunh-

ity. On the basis of Bradley v. Fisher, 80 U. S. (18 Wall.) 335

(1872), and Tenney, lower courts have repeatedly held that both

judicial (judges) and quasi-judicial (prosecutors) immunity re-

mains viable under the Civil Rights Acts. Bauers v. Heisel, 361

F. 2d 581 (3rd Cir. 1966) ; Sires v. Cole, 320 F. 24 877 (9th Cir.

1963) : Robichaud v. Ronan, 203 F. 2d 533 (9th Cir. 1965) ; Fanale

v. Sheehy, 385 F. 2d 866 (2nd Cir. 1967); Dacy v. New York

County Lawyers Association, 423 F. 2d 188 (2nd Cir. 1969) cert.

denied, 398 U.S. 929 (1970): United States ex rel. Rauch v.

Deutsch, 465 F. 2d 130 (3rd Cir. 1972); Kostal v. Stoner, 292 F.

2d 492 (10th Cir. 1961), cert. denied, 369 U. S. S68 (1962);

Kenny v. Fox, 232 F. 2d 288 (6th Cir. 1955), cert. dented, 352

U.S. 855 (1956): Eaton v. Bibb, 217 F. 2d 446 (7th Cir. 1954),

cert. denied, 350 U.S. 915 (1955); Hampton v. City of Chicago,

Cook County, Hlinois, 339 F. Supp. 695 (D. C. Til. 1972).

60. 219 F. Supp. 762 (D. D. C. 1963).

61. Supra, note 59; See also Arensman v. Brown, 430 F. 2d 190

(7th Cir. 1970). bs

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31

fused to interfere with the discretionary decisions of the

prosecutor.

The rationale and policy underlying prosecutorial im-

munity for the federal prosecutor clearly dictates that

equal immunity from federal court review and control be

granted the state prosecutor. It is clear that the state

prosecutor is in the same role in the criminal justice

system as-is the federal prosecutor, they simply prosecute

different offenses. As prosecutors, both exercise the same

type of executive discretion. The rationale and underlying

policy asserted by the federal courts for immunizing the

federal prosecutor from judicial control is the same

rationale and underlying policy asserted by state courts

for immunizing the state prosecutor. Given identical roles

and equivalent executive discretion which is respected by

courts for identical reasons, state and federal prosecutors

should be equally immune from judicial control by any

court. It is obvious that the discretion exercised by a state

prosecutor would be as adversely affected by review and

control by a federal court, as it would be by review and

control by a state court. It is equally obvious that a federal

judge is no more competent to make prosecutorial deci-

sions, nor any more able to remain neutral after exercising

prosecutorial discretion than is a state court judge. The

executive discretion exercised by a prosecutor, whether he

be a state or federal prosecutor, should not be reviewed or

controlled by either state or federal courts.

The Seventh Circuit, for the first time in the history of .

American criminal jurisprudence, authorized an injunction

to be issued by the federal court which would compel a

state prosecutor to prosecute. Such an injunction would

divest the state prosecutor of discretion which only he has

exercised in the past.

62. People v. Baron, 130 Ill. App. 2d 588, 264 N. E. 2d 423:

People ex rel. Elliot v. Covelli, 415 Ill. 79, 112 N. E. 2d 156

(1953) ; see the state cases cited in note 39.

32

In Younger v. Harris, this Court spoke to the notion of

‘* ‘comity’, that is, a proper respect for state functions, a

recognition of the fact that the entire country is made up

of a Union of separate state governments, 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 ways.’’ This Court recognized that this

concept represents ‘‘a system in which there is sensitivity

to the legitimate interests of both State and National Gov-

ernments, anxious though it may be to vindicate and protect

federal rights and federal interests, always endeavors to

do so in ways that will not unduly interfere with the legiti-

mate activities of the States.’’** This Court has often

recognized that it is of the ‘‘very essence of our federalism

that the States should have the widest latitude in the

administration of criminal justice.’

In Fenner v. Boykin, this Court stated that ‘‘ Ordinarily,

there should be no interference with [state prosecutors] ;

primarily, they are charged with the duty of prosecuting

offenders against the laws of the state, and must decide

when and how this is to be done. The accused should first

set up and rely upon his defense in the state courts ...’’*

While Younger authorized, under very limited cireum-

stances, injunctive relief against state criminal prosecu-

tion, the Seventh Circuit has now authorized injunctive

relief to compel state prosecution. Petitioner submits that

nothing would be more harmful, more disruptive, or cause

more friction in the federal-state relationship, than for this

63. 401 U.S. 37, 91S. Ct. 750 (1971).

64. Haag v. State of New Jersey, 356 U. S. 464, 78 S. Ct. 829

(1958) ; Cicenia v. La Gay, 357 U. S. 504, 78 S. Ct. 1297; Knapp

v. Schweitzer, 357 U. S. 371; 78 S. Ct. 1302 (1958); See also:

Hurtado v. California, 110 U. 8. 516, 4.8. Ct. 111 (1884) ; Twining

v. State of New Jersey, 211 U. S. 78, 29 S. Ct. 14 (1908).

65. 271 U.S. 240, at 243-244, 46 S. Ct. 492, at 493 (1926).

PLES RANG ON EPL ELLIE LEIS: EAI ee

eS

: 33

Court to allow federal courts to review and control neces-

sarily discretionary decisions of state prosecutors.

Aside from the notion of ‘‘Our Federalism,’’ the role of

the prosecutor in the criminal justice system, the nature of

and need for prosecutorial discretion, and the need for such

discretion to remain free from judicial control dictates that

the state prosecutor continue to remain immune from an

injunction compelling him to prosecute.

Ill.

RESPONDENTS HAVE AVAILABLE CIVIL REMEDIES AND

ACCESS TO CRIMINAL PROCESS AT LAW WHICH ARE

AS ADEQUATE AND MORE PREFERABLE TO THE UN-

DULY BURDENSOME INJUNCTION AGAINST THE STATE

: PROSECUTOR.

The Seventh Circuit held that ‘‘This is not a case in

which it can be said that there is an adequate remedy at

law and therefore there is proper basis for equitable re-

lief... We... would retund credulity to say that a private

action (for damages) is the equivalent of prompt and

effective prosecution under the criminal laws . .. While, in

some instances, the private damage action may have deter-

ring effects, it seems unlikely it will obviate the necessity

for a system of criminal justice.’*** The Court found other

remedies either unavailable or inadequate, e.g. political

remedies, criminal prosecution for official misconduct, pri-

vate enforcement of criminal law. Lastly, the Court held

that the ‘‘injunctive remedy proposed by plaintiffs .. .

must be found preferable to holding that the criminal laws

cannot.be enforced against blacks who assault whites so

_long as whites are not being punished for assaults on

blacks. ’’*

66. Littleton v. Berbling, 468 F. 2d 389, 412 (1972).

67. Id., pp. 38-39.

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34

Respondents’ numerous alternative remedies are as

adequate and infinitely preferable to compelling the state

prosecutor to prosecute. Both the prosecutor and the indi-

viduals he declined to prosecute may be subject to criminal

liability in the federal courts for violation of respondents’

civil rights.** No remedy is more effective against the

prosecutor, for if convicted of violating plaintiffs’ civil

rights, the prosecutor will be automatically removed from

office under Illinois law.

In both state and federal courts, respondents have an

action for damages against the alleged assailants who the

prosecutor declined to prosecute.*® Clearly these remedies

are preferable to compelling the state prosecutor, against

his judgment, to prosecute these alleged assailants in state

courts.

Indeed, even the remedies the Cireuit Court prohibited

or deemed ‘‘less preferable’’ are infinitely more preferable

to the remedy it authorized. Subjecting the prosecutor to

liability for damages would at least confine the action to a

particular dispute between the parties and not require

supervision of the prosecutor. The injunction authorized,

68. 18 U. 8. C. §§ 241, 242 provide adequate federal criminal

remedies against persons acting under color of state law or indi-

viduals conspiring to deprive persons of their constitutional rights.

Additionally, on the State level, the Illinois Attorney General is

authorized by statute to ‘‘undertake necessary enforcement meas-

ures’’ for the prevention of discrimination against persons by

reason of race, color, or creed. Chapt. 14, Section 9, Illinois Re-

vised Statutes (1971). See also Doe v. Scott, 321 F. Supp. 1385

(N. D. Ill. 1971), and consider the exhaustion issue raised in the

Amicus Curie Brief of Evelle J. Younger, Attorney General of

the State of California, p. 11.

69. See Ill. Rev. Stat. Ch. 38, See. 124-2; Ill. Rev. Stat. Ch.

38, See. 1005-5-5 (eff. January 1, 1973); Illinois Constitution,

Article XIII, See. 1; People ex rel. Keenen v. MeGuone, 13 III.

2d 520, 150 N. E. 2d 168 (1958).

70. 42 U. S. C. 1985(3) and available tort remedies in state

courts provide adequate civil remedies.

\

35

however, would require the federal judiciary to assume the

role of the state prosecutor and subject potentially inno-

; cent third parties to federally forced state prosecution.

Clearly damages are preferable to a wholesale dislocation

of the historic relationship between the state and federal

courts in the administration of the criminal law.

In Yick Yo v. Hopkins,” this Court refused to uphold a

misdemeanor conviction under a municipal ordinance after

a finding of discriminatory enforcement against persons of

Chinese ancestry. The defense of discriminatory enforce-

ment, assertable by persons against whom a statute is

sought to be enforced, was impliedly recognized by this

Court in Ah Sim v. Wittman,” Edelman v. California,”

and Oyler v. Boles.“ If there be a right to nondiscrimina-

tory enforcement of state penal law,” the Yick Yo defense

remedy is clearly preferable to an injunction compelling

state prosecution. As opposed to such injunction, the Vick

Yo remedy would preserve the necessary discretion of the

state prosecutor, be less disruptive to the federal-state

relationship and be potentially more effective in securing

even-handed _ prosecution.”®

Notwithstanding respondents’ alternative legal remedies,

the Seventh Circuit preferred to authorize a remedy that

would clearly unduly burden both the state prosecutor and

71. 118 U.S. 356, 6 S. Ct. 1064 (1886). :

72. 198 U.S. 500, 508 (1905). |

73. 344 U.S. 357, 359 (1953). See brief for petitioner, pp. 6,

14-16; Comment, The Right to Nondiscriminatory Enforcement of

State Penal Laws, 61 Col. L. Rev. 1103 (1961).

74. 368 U.S. 448, 82S. Ct. 501 (1962).

75. Many courts deny Yick Yo applicability to discriminatory

penal enforcement. See Buxbom v. City of Riverside, 29 F. Supp.

3 (8. D. Cal. 1939); Sanders v. Lowrey, 58 F. 2d 158 (5th Cir.

1932) ; Jackie Cab Co. v. Chicago Park Dist., 366 Ill. 474, 9 N. E.

2d 213 (1937): See Comment, id., at 1106.

76. It is suggested that nothing will secure non-discriminatory

prosecution faster than subjecting those favored by discrimination

to the experience of those disfavored.

|

36

the district court. The state prosecutor must first comply

with extensive discovery procedure and defend himself in

all the hearings pursuant to the desired initial decree. If

the deeree be issued as envisioned by the Seventh Circuit,

he must then periodically report to the district court all of

his previously discretionary decisions within the scope of

the decree. After endless pleadings, discovery procedures

and hearings in the district court as these decisions are

challenged and reviewed, the prosecutor must then take

whatever further action the district court desires—which

again will be reviewed and the entire process repeated.

Moreover, since this remedy is available, invariably other

‘‘classes’’ of angry citizens (e.g. Latins, college students,

store owners, rape victims, ete.) will bring action for a

similar injunction. Ultimately the state prosecutor will

need a branch office at the district court solely to defend

his discretionary decisions.

For the district court the burden will be even greater.

Aside from the original pleadings, hearings, and orders,

the initial decree, as envisioned by the Seventh Circuit, will

breed an even greater number of ‘‘review’’ hearings,

throughout which the district court judge must himself

assume the role of the state prosecutor. While these hear-

ings proceed, the district court can expect to be repeatedly

challenged for its prosecutorial decisions and the actions it

forces the prosecutor to take.

One can easily foresee the intense difficulties a district

court will encounter. Will a potential defendant stand

mute when some angry ‘‘class’’ of citizens is demanding

his prosecution in federal court? The court may, for ex-

ample, order a state prosecutor to proceed on given case

because its court thinks there is enough to go to a jury. If

the same kind of evidence is presented in a federal prosecu-

tion, will the court be able to hear the defendant’s motion

for a directed verdict with a clear, uncommitted mind? If

37

the court orders a state prosecutor to adopt certain prac-

tices to insure that certain cases will be well prosecuted,

what posture will the court take if a convicted state court

defendant challenges those practices in a federal habeas

corpus proceeding? Will the state court defendant have the

right to question sufficiency of evidence in state court when

the federal court has already ruled on the issue? Will the

state court defendant be able to argue to the jury that he

is being prosecuted by order to the federal court? Will the

federal court be able to inquire of grand jurors as to why

they refused to indict upon a charge that the federal court

has order brought? Will the federal court exercise the same

control over the state grand jury that it does over the

prosecutor? If the prosecutor refuses to obey a court order

as to an individual case, accepts a contempt citation and

appeals it, will the state statute of limitations be tolled

while the appeal is being decided without violating the

state court defendant’s rights? What remedy will a state

court defendant have if he is charged and put to trial and

a federal appeals court later decides that the state prose-

eutor could properly have declined to proceed? Will the

potential state court defendant have the right to intervene

in the federal proceeding challenging the prosecutor’s re-

fusal to prosecute him? Will the federal court have to con-

sider questions of admissibility of confessions, physical

and identification evidence in determining whether a given

case is a proper one on which to proceed? If the court does

so what effect will its rulings have in state trial courts, on

state appeal, on federal habeas corpus?

The Circuit Court considered none of these problems

(and the list is not exhaustive)—it resolved the question in

terms of its faith that the district court could somehow

find its way through to a solution. The petitioner suggests

that these problems cannot be fully solved. Even the at-

tempt to solve them will open floodgates of pointless futile

litigation.

38

B.

While the Seventh Circuit recognized that in Civil Rights

Act cases highly specific factual averments are required to

defeat a motion to dismiss (otherwise ‘‘every complaint

against a State official by the simple expedient of averring

conclusions would be cognizable in the federal courts.’’’),

the Court found it ‘‘preferable that dismissal should be

sparingly used whenever it appears that a basis for federal

jurisdiction in fact exists or may exist and can be stated

by plaintiff.’’* The Court later noted, however, that this

was a case of ‘‘first impression as to the type of relief

approved,’’” that ‘‘. . . a prosecutor’s time is necessarily

limited .. .,’ and that there was ‘‘the possibility of sub-

stantial additional burden being placed on the federal

judiciary by our decision.’*’ Additionally, the Court

seemed to recognize that the invidious discrimination al-

leged by respondents would be a difficult proposition for

the respondents to prove.*

As against petitioner, the Courts permissive attitude

toward respondents’ complaint was improper for the fol-

lowing reason.

77. United States ex rel. Hoge v. Bolsinger, 211 F. Supp. 199,

201 (W. D. Pa. 1962), aff’d., 311 F. 2d 215 (3rd Cir. 1962), cert.

denied, 372 U. S. 931 (1963).

78. Littleton v. Berbling, supra, note 66, at 394.

79. Id., at 414.

80. Id., at 413.

81. Id., at 415.

&2. Id., at 408, 414.

39

IV.

THE CONCLUSORY COMPLAINT DRAFTED BY AT-

TORNEYS IS INSUFFICIENT TO STATE A CAUSE OF

ACTION AGAINST A STATE PROSECUTOR IN VIEW OF

THE ABUSE POTENTIAL INHERENT IN SUCH SUITS

AND THE VERY MINIMAL POSSIBILITY OF PLAINTIFFS

PREVAILING.

Respondent’s complaint, drafted by lawyers, alleges that

the defendant state’s attorney ‘‘. . , willfully and with

intent to deprive plaintiff and members of their class of the

benefits of the criminal justice system in Alexander County

. .’’ a) refuses to initiate criminal proceedings against

Whites upon complaints filed by Blacks (6 examples cited) ;

b) submits complaints filed by Blacks to a grand jury

rather that proceeding by information, and then inter-

rogates Black complainants before the grand jury with an

intent to discriminate (1 example cited); ¢) fails to in-

terrogate Black complainants and key witnesses before

the grand jury with intent to discriminate (2 examples

cited); d) inadequately prosecutes complaints filed by

Blacks (no examples cited); files more serious charges

against Blacks (no examples cited); requests or. recom-

mends greater bonds and sentences against Blacks (no

examples cited); seeks to drop charges against Whites (1

example cited).

The Seventh Circuit was satisfied that respondents com-

plaint sufficiently alleged that the State’s Attorney ‘‘han-

dles complaints and prosecutes cases in a blatently discrim-

inatory and arbitrary manner.’ It is clear that the Court

relied solely upon respondents’ conclusory allegations, for

the supporting factual examples cited by respondents are

blatently insufficient to indicate any discrimination whatso-

83. Amended Complaint, par. 14 (Appendix p. 19).

84. Littleton v. Berbling, supra, note 66, at 411-412.

=

fi

&

i

3

ever on the part of the State’s Attorney. No examples were

cited which demonstrates that the prosecution brought or

was willing to bring charges against Blacks supported by

the same quantum of evidence presented by White com-

plainants. No examples were cited which in any way indi-

’ eates that the prosecutor prosecuted cases involving White

complainants any differently than those involving Black

complainants. There are no facts pleaded whicl give rise

to an inference of intentional and systematic discrimination

by the state prosecutor, only facts which indicate the prose-

cutor refused to proceed or took certain actions on a few

complaints filed by Blacks.

Conclusory allegations, unsupported by facts, have con-

sistently been rejected as insufficient to constitute a cause

of action under the Civil Rights Act.** Respondents failure

to support factually their allegation of discrimination

renders the complaint insufficient to state a cause of-action

against petitioner.

The policy for requiring factual support of conclusory

allegations in complaints under the Civil Rights Act is well

reasoned. An overly permissive attitude toward suits under

the Civil - Rights Act would place a heavy burden on public

officials as well as subject them to abuse. Additionally and

especially in suits alleging intentional discrimination, the

requirements of proof are often difficult to meet. It would

85. <A similarly conclusory petition was held insufficient to

justify federal action in Greenwood v. Peacock, 384 U. S. 808

(1966); se also Marin v. Pinto, 463 F. 2d 583 (3rd Cir. 1972);

Kauffman v. Moss, 420 F. 2d 1270 (3rd Cir. 1970) cert. denied

400 U.S. 846, 91S. Ct. (1970) ; United States ex rel- Hoge v. Bol-

singer, 311 F. 2d 215 (3rd Cir. 1962) cert. denied 372 U.S. 931,

83.8. Ct. 878 (1963); Ortega v. Regen, 216 F. 2d 561 (7th Cir.

1954) cert. denied 349 U. 8S. 940, 75 S. Ct. 786 (1955) ; Hoffman v.

Halden, 268 F. 2d 280 (9th Cir. 1959); Powell v. Workman's

Compénsation Board of New York, 327 F. 2d 132 (2nd Cir. 1964) ;

Johnson v. Mueller, 415 F. 2d 354 (4th Cir. 1969); Lamar v.

118th Judicial District of Texas, 440 F. 2d 383 (5th Cir. 1971):

Jensen vy. Olson, 353 F. 2d 825 (8th Cir. 1965).

AES

41

be unwise for the courts to allow a suit to proceed without

some indication that plaintiffs can prevail at trial.

The potential burden on state prosecutors and the federal

courts arising from the present suit is awesome (See.Argu-

ment III). The abuse potential of such suits is also great.

Respondents brought a class action. While the Seventh

Cireuit held that ‘‘the number of suits charging discrimina-

tion against classes of citizens is not predictably substan-

tial ...”’,** the Court ignored the fact that class actions may

be filed by innumerable civic groups seeking to compel

prosecution of certain classes of offepages which they claim

are being inadequately prosecuted for improper motives.

Those who oppose abortion or pornography could file such

suits where the prosecutor fails to act vigorously enough

to please them. The criminal laws affecting landlords and

their tenants many not be enforced consistently enough or

well enough to suit either group and both may bring their

complaints to a federal court and ask it to regulate state

prosecution. Environmentalists and the industrialists will

want to litigate prosecution policy in a similar fashion. —

The list of real or imagined grievances that a class of

citizens may have against a local prosecutor for failure to

bring certain charges or to prosecute them adequately is

endless. And it is never difficult to allege that the prosecu-

tor’s motives ar® based upon racial, religious or political

prejudice. Lastly, considering the requirements of proof

86. Littleton v. Berbling, supra, note 66, at 413.

87. A permissive attitude toward development of suits like

“these will inevitably embroil the District Court in local political

disputes to a degree we think is unacceptable. It would not be

difficult for the supporters of a challenger for the prosecutor's

office to file an adequate complaint and use the litigation process

to harass and attack the incumbent. Each ruling of the District

Court for either side during the campaign would assume substan-

tial political significance.

42

that this Court“ and lower courts™ have established in

eases alleging discriminatory enforcement of laws, it is

highly improbable that respondents would prevail at trial.

Petitioner submits that the potential for undue burden

and abuse inherent in the present suit, and the improb-

ability of respondents prevailing at trial requires that the

conclusory, unsupported allegations in respondent’s com-

plaint be deemed insufficient to state a cause of action

against the state prosecutor.

88. Oyler v. Boles, 368 U. S. 448, 82 S. Ct. 501 (1962); Edel-

man v. People of the State of California, 344 U. S. 356, 73 S. Ct.

293 (1953) (dictum); Ah Sin v. Wittman, 198 U. S. 500, 506-507,

25 S. Ct. 756 (1905) ; Snowden v. Hughes, 321 U. 8S. 1, 8, 64 S. Ct.

397, 401 (1944); MacFarland v. American Sugar Refining Co.,

241 U. S. 79, 86-87, 39 S. Ct. 498; Yick Yo v. Hopkins, 118 U.S

356, 373-374, 6 S. Ct. 1064 (1886); Torrence v. State of Florida,

188 U. S. 519, 520, 23 S. Ct. 683 (....); Grundling v. City of

Chicago, 177 U. S. 183, 186, 20 S. Ct "633, 635 (1900).

89. Boynton v. Fox W. Coast Theatres Corp., 60 F. 2d 851

(10th Cir, 1932); see generally Comment, The Right to Non-

Discriminatory Enforcement of State Penal Laws, 61 Colum.

L. Rev. 1103, 1122-31 (1961).

Ne eg

*»

43

CONCLUSION.

} ' For the reasons given above, Petitioner urges this court

to reverse the decision of the United States Court of Ap-

peals for the Seventh Circuit, and affirm the decision of

) the United States District Court for the Eastern District of

i Illinois. ‘

i Respectfully submitted,

James B. Zack,

Parnrick F. ——

National Attorneys Association,

211 East Avenue,

Chicago, Illinois Coico Avene

Attorneys for Petitioner.*

Nationa, Disrricr ATTORNEYS

ASSOCIATION,

Ituineots States ATTORNEYS

ASSOCIATION,

Of Counsel.

Se a Ve

* The Attorneys for Petitioner were assisted in the ration of this brief

by John Allen O'Malley. —