Reply Brief — Kugler v. Helfant

TABLE OF CONTENTS

PAGE

CouUNTER-STATEMENT OF THE CASE ......... 2

Reasons ror Denyine THE Cross-PeTITION For A Writ

OF CERTIORARI .........-.:-::2:-e00-0000+ 5

ConcLusION 21

ADDENDUM:

Resolution VIII .. : 23

Cases Cited

Acanfora v. Montgomery City Board of Education,

— U.S. —, 42 U.S.L.W. 2439 (1974)... 13

Addonizio, In re, 53 N. J. 107, 248 A. 2d 531 (1968)... 14

Allee vy. Medrano, —— U. S. —, 94 S. Ct. 2191

(1974) s 3

Bryson v. United States, 396 U. S. 64 (1969) .....2...... 13

soiardo, In re, 34 N. J. 599, 170 A. 2d 816 (1961)........ 14

California v. Byers, 402 U. S. 424 (1971)... 11

Cardinale v. Louisiana, 394 U. S. 437 (1969) -........... 14

Costello v. United States, 350 U. S. 359 (1966)............ 12

Counselman v. Hitchcock, 142 U. S. 547 (1892)... 12

Dennis v. United States, 384 U. S. 855 (1966)... is

DeVita v. Sills, 422 F. 2d 1172 (3 Cir. 1970)................ 17

Dombrowski v. Pfister, 380 U. S. 479 (1965)................ 18

Eames v. Pitcher, 468 F. 2d 905 (5 Cir. 1972)... 18

li TABLE OF CONTENTS

PAGE

Gardner v. Broderick, 392 U. S. 273 (1968)................ 13

Garrity v. New Jersey, 385 U. S. 493 (1967)................ 13

Glickstein v. United States, 222 U. S. 189 (1911)........ 12, 13 >

Harrison v. United States, 392 UJ. 8. 219 (1968).......... 11

Helfant v. Kugler, et al., 484 F. 2d 1277 (3 Cir. 1973) 2

Helfant v. Kugler, et al., —— F. 24 —— (3 Cir.

DOT) ccesesemscnesigise 2

Holmes v. Giarusso, 319 F. Supp. 832 (KE. D. La.

j 8! (0) eee : 18

Holt v. United States, 218 U. S. 24 (1910)... 12

Honey v. Goodman, 432 F. 2d 333 (6 Cir. 1970)............ 18

Kastigar v. United States, 406 U. S. 441 (1972).......... 12

Kay v. United States, 303 U.S. 1 (1938) 13

Krahm vy. Graham, 461 F. 2d 703 (9 Cir. 1972).......... 19

Lawn v. United States, 355 U. S. 339 (1958)... 12

Lefkowitz v. Turley, 414 U. S. 70 (1978)... 13

McGautha v. California, 402 U. S. 183 (1971)............ 11

Michigan v. Tucker, —— U. S. ——, 94 S. Ct. 2357

(1974) 11

Nelson v. City of Los Angeles, 362 U. S. 1 (1961)... 14

People v. Genser, 250 Cal. App. 2d 351, 58 Cal. Rptr.

290 (1967)....:...-.- weENTROUUUUED\ ssecceenscsccnsenscceasnersssensseen 13

People v. Goldman, 21 N. Y. 2d 152, 287 N.Y.S. 2d

7, 234 N. E. 2d 194 (1967)..... 13

People v. Rucker, 45 Ill. 2d 562, 262 N. E. 2d 456 ;

(1970) essere 13

os TABLE OF CONTENTS ili

PAGE

Perez v. Ledesma, 401 U. S. 82 (1971) 3, 4,18

Shaw v. Garrison, 467 F. 2d 113 (5 Cir. 1972)............ 19

Spevack v. Klein, 385 U. S. 511 (1967) . 18

State v. DeCola, 33 N. J . 335, 164 A. 2d 729 (1960)... 14

Tacon v. Arizona, 410 U. S. 351 (1973) 14

Uniformed Sanitation Men v. Sanitafion Comm’n, 392

U. S. 280 (1968)...............-.-c-cecsesno}sesseenenansseonessenenenanesosee 13

United States v. Blue, 384 U. S. 251 (1966).....2.--2---0-0- 12

United States v. Calandra, —— U. S. ——, 94 S. Ct.

7) Ee 6 ¢ ) pee ean ee ees ene eno enna er enn en 12

United States v. Kahriger, 345 U. S. 22 (1952).......... 13

United States v. Knox, 396 U. 8. 77 (1969) --y.-ccvscnee 13

United States v. Kordel, 397 U. S. 1 (1970)................. 17

United States v. Simon, 373 F. 2d 649 (2 Cir. 1967),

cert. granted Simon v. Wharton, 386 U. S. 1030,

vacated as moot, 389 U. S. 425 (1967) iW

Williams v. Florida, 399 U. S. 78 (1970) 11

Wilson v. Cook, 327 U. S. 474 (1946). 14

Younger v. Harris, 401 U. S. 37 (1971). 3

Zicarelli v. New Jersey State Comm’n of Investiga-

tion, 406 U. S. 472 (1972)...... 12

United States Constitution Cited

Fifth Amendment ... 2, 4, 6-12, 16

Fourteenth Amendment 13

New Jersey Constitution Cited

Article 6, Sections 6, 7, Paragraphs 1-3 .................... 15

p—— iv TABLE \ OF CONTENTS

, PAGE

Statute Cited

N.J.S.A. 2A :1B-1 15

io. Rules Cited

Fed. R. App. P.:

35 es 7 2

N. J. Rules of Court:

R. 1:12-1 4

BR. 1122 | . 4

; | Other Authorities Cited

Adams, Doctrine of Equity (1873):

| P. B03 oeeeeeeccneeee etic — . 5

} Barton, History of a Suit In Equity (1847): :

: p. 42 5

Story, Equity Pleadings (9th ed. 1879): |

; p. 16, See. 23 5

t

POP Ee ae A Wee OP ABAD ERLE SEV EBL PEM BOA 5 mW LA PO

IN THE

Suprene Court of the United States

Octoser Term, 1974

No.

»

—

| EDWIN H. HELFANT,

Petitioner,

vs.

GEORGE F. KUGLER, Jr., Attorney General of the

State of New Jersey, JOSEPH A. HAYDEN, Jr.,

Deputy Attorney General of the State of New Jersey,

CHIEF JUSTICE JOSEPH. A. WEINTRAUB, ASSO-

CIATE JUSTICES NATHAN L. JACOBS, HAYDN

PR OR, FREDERICK W. HALL, WORRALL F.

MOUNTAIN, Jr., and MARK A. SULLIVAN of the

Supreme Court of New Jersey, and THE STATE OF

NEW JERSEY,

ANSWER TO CROSS-PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Respondents.

Counter-Statement of the Case

On July 8, 1974, the Court of Appeals for the Third

Circuit, sitting en banc, rendered its decision in Helfant v.

Kugler, et al., F. 2d (3 Cir. 1974).? Distilled, to

its essence, the majority concluded that the New Jersey

Supreme Court’s disciplinary investigation, which immedi-

ately preceded petitioner’s appearance before the State

Grand Jury, constituted such “extraordinary circum-

stances” as to compel federal intervention in a pending

State criminal prosecution. This novel holding was pre-

mised upor ~*titioner’s assertion that the State Supreme

Court’s preliminary inquiry into his ability to continue

to preside as a municipal court judge compelled him to

waiye his Fifth Amendment privilege against self-inerim-

ination. Suecinctly stated, the majority decided that the

“factual involvement of the Supreme Court would destroy

the objectivity of the entire State [judicial] system in

proressing [petitioner's] constitutional claim” (A115). <Al-

though rejecting petitioner's application for an injunction,

“the majority directed that the case be remanded to the

district court “for the entry of an order temporarily en-

joining” the trial of the State indictment and for a “de-

termination of whether Helfant’s testimony before the

grand jury ... was the product of a free and uncon-

strained will” (A4).

1A three judge panel of the Court of Appeals had previ-

ously rendered a decision on September 7, 1973. See Helfant

v. Kugler, et al., 484 F.2d 1277 (3 Cir. 1973). Immediately

thereafter, we petitioned for a rehearing. The Court of Appeals

then granted the petition and subsequently, pursuant to Rule

35 of the Federal Rules of Appellate Procedure, and at our

request, consented to a reconsideration of the matter en banc.

AE NS ONAN LS SONI NIE 8 eR EE Rat MAIR Wiha he TANG BONE TS

aN TSP SER NRO NE RE ERS HOTT

3

Three judges vigorously dissented. In their view tra-

ditional principles of comity militated against federal

interference. The dissenting judges were unwilling to

presume that members of the New Jersey Supreme Court

would be unable to impartially adjudicate petitioner’s con-

stitutional claim or that they would seek to advance their

own interests “by a devious, obsequious sycophancy” (A8).

Further, the dissenting opinion disavowed the correctness

of the postulate, presumably adopted by the majority, that

the Supreme Court would be “so venal and vindictive as

to mete out some administrative ‘punishment’” in the

event that a trial court accepted petitioner’s theory (A28).

We immediately obtained a stay of the Court’s mandate

and applied for a writ of certiorari. Petitioner’s un-

founded contentions to the contrary, our purpose was not

to prevent or to delay a public airing of the allegations

set forth in the complaint. Rather, we sought further re-

view because, in our view, this case presents delicate ques-

tions of federal-state comity. Thus, in our petition, we

noted that this appeal raisé¢s the novel question of wheth-

er the “extraordinary circumstances” exception to Young-

er’s® interdiction was intended to establish a distinct

category justifying federal- intervention in an ongoing,

state criminal prosecution in the absence of “bad faith”

or “harassment” (P30). We further pointed out that the

contours of the “extraordinary circumstances” exception

have never been delineated and that scattered statements

seem to indicate doubt on the part of several justices thai

such a distinct class exists (P19). See, e.g., Mr. Chief Jus-

tice Burger’s opinion in Allee v. Medrano, —— U. 8S. —,

, 94S. Ct. 2191, 2211 (1974), and Mr. Justice Black’s

opinion in Perez v. Ledesma, 401 U. S. 82, 85 (1971). We

a

2 Younger v. Harris, 401 U.S. 37 (1971).

SANE

Ne Few ‘ mR es ‘ RCRD NONE, PERE

emphasized that if a separate category exists at all, it

must be equated with the unavailability of a state forum

for remedying the claimed constitutional depriyation. See

Mr. Justice Brennan’s opinion in Perez v. Ledesma, supra

at 93. Our petition stressed that the State courts could

impartially resolve petitioner’s Fifth Amendment claim

and that there was no basis for federal intervention. We

pointed out that it is the constitutional duty of the New |

Jersey Supreme Court to initiate disciplinary proceedings

and that there was nothing ominous in its conference with

petitioner. Under these circumstances, we considered it

a slur on the entire State judicial system to presume, as

the majority below evidently did, that individual judges

incapable of remaining impartial would not disqnalify

themselves pursuant to settled New Jersey practice (R.

1:12-1; R. 1:12-2) and that members of our highest court

would refuse to obey the law they are bound to enforce.

No malevolent intent having been shown, we further urged

that there could be no violation of petitioner’s Fifth

Amendment privilege. That is so because “coercion”, in

the constitutional sense, requires a compelled waiver of a

right by virtue of some unlawful act or unconscionable

promise. Finally, we noted that petitioner had utterly

failed to allege a constitutional injury which was both

great andymmediate. If petitioner was coerced into tes-

tifying, that would in no sense provide him with a license

to lie. Thus, the false swearing charges would retain

their efficacy. Further, with regard to the subs

not incriminatory. Hence, there is no likelihood fhat his

statements will be used against him>~Tt is indeed\difficult

to perceive what “great, immediate and irreparable” in-

jury confronts the petitioner so as to justify federal in-

tervention.

Although Helfant has not filed a document labelled an

“answer,” he has undertaken to respond to our petition by

filing a cross-application for a writ of certiorari. We

deem the cross-petition an answer to our initial petition.

The sole question raised in the cross-petition relates to the

majority's refusal to issue an injunction barring prosecu-

tion. Petitioner concludes by asking this Court to deny

our petition and to review the Court of Appeals’ decision

to direct declaratory but not injunctive relief. This an-

swer is in opposition to petitioner’s cross-application. It

would, of course, be fruitless to recount the facts at length

since our petition contains a complete recital of the sali-

ent features of this case. Rather, our argument which

follows refers to what we perceive to be the pivotal facts

necessary for this Court’s determination.

Reasons for Denying the Cross-Petition for a

Writ of Certiorari \

In our petition for certiorari, we suggested that Hel-

fant had not displayed the candor required of a suiter in

equity. We suggested that the complaint alleged sun-

dry factual matters, but did not disclose their context so

that the reader might glean the nature of the asserted con-

stitutional injury. The necessary basis for such an un-

derstanding required an explanation of the purpose of the

conference between the Supreme Court and _ petitioner.

As to this, we stressed that Helfant neither stated the ob-

8Story, Equity Pleading, §23, p. 16 (9th ed. 1879). See

also Adams, Doctrine of Equity, p. 303 (1873); Barton, His-

tory of a Suit In Equity, p. 42 (1847).

ject of the meeting nor asserted that the Supreme Court

had not made the purpose perfectly plain to him.

Helfant continues his course of studied ambiguity. In

our petition, we noted that the Stipreme Court did not

institute any proceeding against IHelfant or against Judge

Moore. That is beyond dispute. There was no complaint,

order to show cause or order suspending either of them

from sitting in their respective courts. The purpose of

the conferences with both men was to learn whether they

would agree not to sit pending disposition of the charges

before the grand jury. We noted in our petition that

each of them agreed not to sit, thereby obviating the need

to consider whether to institute proceedings for such in-

terim suspension. As the basis for that inference we

noted that court records, which may be judicially noticed,

revealed that neither Helfant nor Moore presided in their

respective courts following their meetings with the Su-

preme Court. We further alluded to Helfant’s admission

during the hearing on his application for a preliminary in-

junction that he had taken a “voluntary leave of absence”

(CPA16). In support of the proposition that the eonfer-

ences were for the purpose we have stated, our petition

described Helfant’s undisputed testimony regarding Chief

Justice Weintraub’s abject refusal to discuss the merits oi

the charges before the grand jury as to which petitioner

had previously invoked the Fifth Amendment privilege. .

So too, Helfant, in an affidavit annexed to his complaint

stated that the Chief Justice “did not want to [discuss]

the merits of the matter and rightfully so.”

*Helfant, in his complaint, alleged that the Administrative

Director did not advise him as'‘to the purpose of the confer-

ence (A66). But the complaint does not state that petitioner

was not apprised by the Supreme Court with respect to the

object of the conference.

Se ee

7

Thus, Helfant swore that the Chief Justice considered

a discussion of the merits of the criminal charges beyond

the purpose of the meeting. Yet he persists in obscur-

ing the object of that conference. Rather, referring to

an affidavit executed by Judge Moore (we will presently

comment upen that afiidavit), Helfant says in his cross-

petition (CPAQ):

“... this belies the allegation of the State that the

Court was merely attempting to determine whether

the two judges intended to remain on the bench in

their temporary positions.” (emphasis ours).

We have italicized the word “merely”. This is as close

as petitioner comes to acknowledging that the stated pur-

pose was indeed to discuss whether he and Moore would

agree not to sit pending resolution of the charges before

the grand jury. Helfant seems te be saying in his quoted

statement that, notwithstanding the Court’s admonition,

it secretly harbored an intention to explore the merits

of the underlying criminal charges. This is plainly be-

lied by the record.

The relevant fact, so far as this litigation is concerned.

is that the Supreme Court did not order petitioner to

waive his Fifth Amendment privilege or threaten reprisal

if he declined. Nor did the Court offer any reward to en-

courage Helfant to testify. This Helfant concedes.’ We re-

5 The following colloquy between petitioner and the State’s attor-

ney plainly belies Helfant’s contention that the Court's secret

intention was to coerce him into testifying:

“Q. Now when you returned November 8th, I believe

when you appeared before the Supreme Court?

A. Yes, sir.

(Footnote continued on following page)

peat that the Fifth Amendment was not the focus of the

meeting. Judge Moore, who had previously testified freely ~ -

before the grand jury, was dealt with in precisely the

(Footnote continued from preceding page) .

©. Now at any time did any member of the Supreme

Court threaten to move against you to remove your license?

A. Absolutely not.

QQ. Did they threaten at all to remove you as a Municipal

Judge?

A. No, sir, not verbal threats; no, sir.

(J. It is a fact, is it not, that at least approximately three

weeks prior thereto you had indeed taken the Fifth Amend-

ment before the Grand Jury?

A. Yes, sir. te

©. And there had been no action taken against you, had

there, as a lawyer or Municipal Judge?

A. No, sir; that’s what upset—

Q. Excuse me.

A. That’s what upset me. They would call 3:30 on a

Monday afternoon and tell me to be there without notice,

without any reason and tell me to be there at 9:50 in

the morning when I had a Grand Jury appearance and

I was nervous enough about that.

Q. Did they indicate what the consequences of your—

A. They didn’t discuss anything with me Mr. Laird, other

than what are my intentions and do I think it right.

(Q. Did Mr. Hayden threaten to take any action against

you to have your license removed?

A. Mr. Hayden didn’t threaten in that manner. Mr.

Hayden said if I didn’t cooperate—

©. Just answer the question.

A. About the Supreme Court?

Q. No, did Mr. Hayden threaten to take any action

against you to have your license removed as a lawyer; yes

or no?

A. Not to take it away from me, no.

Q. Did he threaten to take any action to remove you as

a Municipal Judge?

A. No.” (CPA26-27).

POA ENE RAMPS LN A a 2 BA OR ELA LEENA NEU I I DIR OO eae

6 RE TIE ORME iain

same fashion as was Helfant, who had asserted his Fifth

Amendment privilege. An agreement was sought from

each not to preside pending resolution of the charges.’

‘

*As noted in our petition, Helfant had previously appeared

| before the same grand jury on October 18, 1972, when he invoked

his Fifth Amendment privilege. He was, thereafter, requested

{ to reappear on November 8, 1972. Plainly, no adverse inference

can be drawn against the Attorney General by virtue of the

decision to’ yesubpoena petitioner after he had previously asserted

his Fifth’ Amendment privilege. As Helfant acknowledges, the

grand jury was investigating other charges pertaining; to Abe

Schusterman. One charge was that Helfant arranged for a gift

oi an ice machine by Schusterman to a County Court judge who

was scheiluled to sentence him in several unrelated criminal mat-

ters. . Helfant was subpoenaed to testify regarding those other

events on November 8, 1972. Helfant’s attorney testified that

he could not recall whether petitioner wished to invoke the Fifth

Amendment privilege with respect to those matters (A13-14).

* We add that Moore’s affidavit (which is annexed to the cross-

petition) is not part of the record in this case. Helfant included

this affidavit in his brief in the Court of Appeals. Although we

cbjected to this offer, the court below never ruled upon our

motion to strike. In any event, the alleged reference to Helfant’s

signature on the withdrawal endorsement (A39) which appeared

on the criminal complaint for atrocious assault and battery mere-

ly reflects Moore’s testimony before the grand jury on October

25, 1972. Moore's testimony with reference to Helfant’s signa-

ture is quoted at length in Count V of the indictment involved

in these proceedings. As that testimony reveals, the clerk of

Judge Moore’s court testified that Moore directed him to dis-

miss the criminal complaint. Moore testified that he had -

ing to do with the criminal complaint, and pointed an accusing

finger at Helfant. Moore swore that Helfant’s signature ap-

peared on the withdrawal endorsement. We will again refer to

Moore’s testimony of October 25, 1972, as set forth in the in-

dictment, in discussing the claim in the cross-petition that the

State was guilty of foul tactics in subpoenaing Helfant to testify

hefore the grand jury. Our point, at this juncture, is that the

Moore affidavit in no sense conflicts with our contention that the

purpose of the meeting with the Supreme Court was as we have

stated.

ee Sees

10

In point of fact, Helfant’s own affidavit states that he vol-

unteered the statement that he “would testify without in-

voking the Fifth Amendment.”*

We will deal first with the issue upon which the Court

of Appeals divided, t.e., whether federal intervention was

warranted by virtue of Helfant’s assertion that the Su-

preme Court “coerced” him into waiving his Fifth Amend-

ment privilege. It bears repeating that petitioner’s con-

tention must be viewed against the backdrop of his dam-

aging concession that no member of the Supreme Court |

ordered him to testify or threatened sanctions if he did

not withdraw his previous assertion of the Fifth Amend-

ment. Helfant’s position, at its best, is that he harbored

a fear that if he refused to testify, members of the Su-

preme Court would violate their oaths of office and visit

some hurt upon him. In our petition, we argued that,

as a matter of law, “coercion” in the constitutional sense

cannot be found in the exercise by the Supreme Court

of its constitutional responsibility with respect to mem-

bers of the bench and bar. Nor can “coercion” be found

in any apprehension a judge or an attorney may claim

in response to the existence or exercise of that consti-

tutional power. It would serve no valid purpose to re-

peat at length our argument in that regard. Suffice it

to say, there are many pressures that come to bear on

a defendant in a criminal trial, but not every “compelling”

® The cross-petition states that “. . . the true coercive purpose

of the Court was borne out by the very last question posed to

Helfant by the Chief Justice: ‘What do you intend to do today?” |

(CPA8). If petitioner seeks to suggest that the Chief Justice

initiated a discussion of waiver of the Fifth Amendment privilege,

his own affidavit plainly belies that contention, Helfant, in that

affidavit, swore that he volunteered the statefnent ‘regarding his

intention to testify.

11

influence leading to a decision to testify violates the Fifth

Amendment.. See e.g.: plurality opinion. of Mr. Chief

Justice Burger in California v. Byers, 402 U. S. 424, 427

(1971) ; MeGautha v. California, 402 U. S. 183, 213 (1971) ;

Williams v. Florida, 399 U. S. 78, 83-84 (1970); Harrison

v. United States, 392 U. S. 219, 222 (1968). Rather, the

Fifth Amendment privilege is rooted in the desire to pro-

tect against governmental misconduct. See e.g., Michigan

v. Tucker, —— U. S. , —, 94 S. Ct. 2357, 2361-62

(1974). As we noted in our petition, the mere existence

of the removal or disciplinary powers cannot be found to

constitute “coercion” no matter how overwhelmed a judge

or an attorney may say he is because of the existence

‘of the Court’s constitutional responsibility. We stress,

at this posture of the case, that the cross-petition does

not respond to our contention. Rather, Helfant says

only that there was some misconduct which had a coercive

effect upon him. We submit, however, that there is noth-

ing in the pleadings or the proof which could support that

claim.

In our petition for certiorari, we contended that, for

still other reasons, there was no basis for federal inter-

vention with respect to the self-incrimination issue. For

the purpose of analysis, we separated the counts of the

indictment charging substantive offenses (conspiracy to

obstruct justice, obstruction of justice and compounding

a felony) from those charging Helfant with false swear-

ing in his testitmony before the grand jury. With re-

gard to the substantive counts, we pointed out that peti-

tioner’s testimony was wholly exculpatory, and hence there

was no conceivable basis for intervention. At best, peti-

tioner’s claim would not justify the issuance of an in-

junction since it is beyond cavil that reception before

a grand jury of evidence procured in violation of an in-

dividual’s constitutional wes not serve to vitiate

a“

/

12

the resulting indictment. See e.g., United States v. Calan-

dra, —— U.S. , 94S. Ct. 618 (1974); United States

v. Blue, 384 U. S. 251 (1966) ; Lawn v. United States, 355

U. S. 339 (1958) ; Costello v. United States, 350 U. 8. 359

(1966) ; Holt v. United States, 218 U. S. 24 (1910). When

a witness has been wrongfully deprived of his privilege

against self-incrimination, he can be returned to the status

quo ante merely, by the suppression of the coerced testi-

mony and its derivative use. Kastigar v. United States,

406 U. S. 441 (1972); Zicarelli v. New Jersey State

Comm'n of Investigation, 406 U. 8. 472 (1972); Cownsel-

man v. Hitchcock, 142 U. S. 547 (1892). Here, there was

no need for judicial intervention since the State had stipu-

lated that Helfant’s grand: jury testimony would be used,

if at all, only to impeach any inconsistent statement he

might utter were he to testify. We pointed out that the

constitutional injury sought to be averted .was thus con-

jectural, depending for its very existence upon a hypo-

thetical series of events that is most unlikely to occur.

We emphasize that Helfant does not respond in any

meaningful way to our argument. In short, he does not

even attempt to support the basis for intervention upon

which the majority rested its judgment; 7.e., that there

was a triable issue as to whether. Helfant’s will not to

testify was overborne. Rather, Helfant’s cross-petition

speaks only to the counts charging false swearing. We

pointed out in our petition that the majority in the Third

Cireuit did not discuss our contention that the Fifth

Amendment privilege does not excuse or justify the com-

mission of perjury or false swearing, notwithstanding that

the dissenting opinion dealt a length with that issue. As

properly noted by the dissenting judges, perjury cannot

be “self-incriminatory,” since the scope of the Fifth

Amendment privilege “does not endow the person who

testifies with a license” to lie. Glickstein v. United States,

13

222 U. S. 139, 141 (1911). See also United States v.

Knox, 396 U.S. 77, 82 (1969); United States v. Kahriger,

345 U.S. 22, 32 (1952). Cf. Acanfora v. Montgomery City

Board of Education, —— U. 8. —, ¥%2 U.S.L.W. 2439

(1974) ; Bryson v. United States, 396 U. 8S. 64, 72 (1969) ;

Dennis v. United States, 384 U. S. 855, 867 (1966); Kay

v. Uinted States, 303 U. S. 1, 6 (1938). Even assuming

that petitioner testified before the grand jury because he

feared remova! ficm office or disbarment, see Lefkowitz

v. Turley, 414 U. S. 70 (1973); Gardner v. Broderick, 392

U.S. 273 (1965) ; Uniformed Sanitation Men v. Sanitation

Comm'n, 392 U. 8. 280 (1968) ; Garrity v. New Jersey, 385

U.S. 493 (1967) ; Spevack v. Klein, 385 U. S. 511 (1967),

that would not permit him to lie with impunity. See

People v. Genser, 250 Cal. App. 2d 351, 58 Cal. Rptr. 290

(1967) ; People v. Rucker, 45 Ill. 2d 562, 262 N. E. 2d 456

(1970); People v. Goldman, 21 N. Y. 2d 152, 287 N.Y.S.

2d 7, 234 N. E. 2d 194 (1967). If petitioner’s testimony was

compelled, as he contends, the “coercion” exercised was

to testify truthfully, not falsely.® Any other conclusion

would reduce the witness’ oath to a meaningless shibbo-

leth. >

Significantly, Helfant’s cross-petition fails to state

whether the majority in the Third Circuit in fact dealt ,

with this issue. More than that, Helfant does not challenge

the validity of the authorities which we presented and

upon which the dissenting opinion relied. Rather, peti-

tioner now advances a totally different claim. Specifically,

® The factual pattern here is to be distinguished from a situa-

tion in which the government has unlawfully coerced a witness

tu testify to certain facts. Where the witness has been forced

to testify falsely, a perjury charge might well be a violation of

the Fourteenth Amendment. But here, there is no allegation that

Helfant was compelled to lie. Rather, petitioner’s contention is

that he felt himself compelled to testify.

14.

he contends that there was “entrapment” or some viola-

tion of due process for ‘the Attorney General to summon

him before the grand jury allegedly for the sole purpose

of instituting falsq@-swearing charges.

Our response to the issue Helfant seeks to inject is as

follows. First, this issue is simply not in the case, The

complaint did not make this allegation, nor was such a

charge advanced or accepted by either the district court

or the Third Cirenit.!° Second, there is nothing in the

record to support it. In substance, Helfant contends that

because the State advised him that he was a “target”,

it must follow that the Attorney General expected him

to lie. He argues that the Attorney General summoned

him before the grand jury for the sole purpose of adding

the false swearing charges to the substantive counts. But

to say that a witness is a “target” is not to suggest that

the investigation is completed. Nor does .it necessarily

follow that an indictment against such a witness is a

certainty. Jt means only that information in the pos-

session of the grand jury may lead to an indictment."

- It is not uncommon for a “target” to accept, and even to

insist upon, an opportunity to testify in the hope that an

indictment will not ensue. This is especially true with

respect to men in public life, as to whom the bare fact of

an indictment is harmful whatever ‘the outcome of the

ultimate trial. Moreover, there is no basis in the record

for a charge that the Attorney General was guilty of

10 See ¢.g., Tacon v. Arizona, 410 U. S. 351 (1973); Cardinale

v. Louisiana, 394 U. S. 437 (1969) ; Nelson v. City of Los Angeles,

362 U. S. 1 (1961) ; Wilson v. Cook, 327 U. S. 474 (1946).

11 See e.g. In ‘ve Addonizio, 53 N. J. 107, 248 A. 2d 531

(1968); In re Boiardo, 34 N. J. 599, 170 A. 2d 816 (1961);

' State v. DeCola, 33 N. J. 335, 164 A. 2d 729 (1960).

15

bad faith in summoning Helfant. The only relevant part

of the record in this connection is the Fifth Count of

the indictment. There appears the testimony of Judge

Moore’s clerk to the effect that the judge ordered him

to dismiss the complaint for atrocious assault and battery

saying that the county prosecutor had consented to that

course, The same count furtlier notes that on October 25,

1972, Judge Moore swore before the grand jury that his

clerk had lied and that he (Judge Moore) had nothing

to do with the dismissal. To the contrary, Judge Moore

testified that Judge Helfant was the culprit and that

the latter’s signature appeared on the withdrawal en-

dorsement. Thus, the record starkly reveals that it was

incumbent upon the grand jury to determine whether to

indict Judge Moore or Judge Helfant or both. In light

of the conflicting testimony then before the grand jury,

it was fair, rather than oppressive, to summon Judge

Helfant. Our third response to this new allegation is

tliat it could not justify intervention by the federal ju-

diciary. The focus of Helfant’s attack is upon the At-

torney General, not upon the Supreme Court, and thus

there could be no basis to assume that the State judiciary

would not fairly adjudicate the issue.

The cross-petition continues to urge that the Supreme

Court violated the State and Federal Constitutions, by

requesting the grand jury testimony and communicating

with the Attorney General with regard to the status of

the criminal investigation. We pointed out in our peti-

tion that the Supreme Court is charged by the State Con-

stitution with the administration of the judicial systern

including the removal of judges and the discipline of. at-

torneys. Constitution of New Jersey, Article 6, Section

6, paragraphs 2 and 3, and Constitution of New Jersey,

Article 6, Section 7, paragraphs 1 and 2. See also N.J.

S.A. 2A:1B-1, et seq. We think it plainly frivolous to

16

say, as petitiomer asserts here, that any constitutional

concept bar: this essential role. We note that the ma-

jority opinion nowhere indicated that it found any merit

in that issue, for as already noted, the court below ordered

intervértion only with respect to the allegation that Iel-

fant’s will to plead the, Fifth Amendment was over-

whelmed. os

We pointed out in our petition that no constitutional

injury was presented by virtue of the Supreme Court’s

communications with the Attorney General. The allega-

tions presented to the grand jury, if true, plainly justi-

fied the initiation of disciplinary proceedings against

Judge Helfant, Judge Moore, or both. Surely, the Attor- .

ney General was duty-bound to apprise the Supreme Court

of these serious charges. Petitioner’s unsupported asser-

tion to the contrary, the separation of powers doctrine is

not offended when one branch of government cooperates

with another, Nor can a constitutional issue be gener-

ated by petitioner’s naked assertion that there was “col-

lusion” between the»Supreme Court and the Attorney

General. Surely, a’litigant cannot precipitate federal

intervention in a state criminal proceeding by the mere

willingness to allege “collusion” or “corruption” or the

like, and to rest that charge upon the mere fact that the

Supreme Court took steps which are perfectly consistent

with propriety and the discharge of its constitutional re-

sponsibility.

In this connection, we comment upon the footnote which

appears at page 18 of the cross-petition. Helfant there

says that the record does not contain proof of the com-

municatjons between the Supreme Court and the Ad-

ministrative Director. He further_asserts that the record

is barrén of any evidence relating to the Supreme Court’s

practice of initiating disciplinary proceedings during the

11

pendency of related criminal investigations. All of this

is a matter of record within thé. Supreme Court and as_

such may be judicially noticed. In point of fact, as we

specifically noted in our petition, this practice has been

recognized and approved by the Third’-Circuit. . See De-

Vita v. Suls, 422 F. 2d 1172 (3 Cir. 1970).* But even if

this were not judicially noticed, it would not matter. It.

can be of no moment as to how the Supreme Court learned

of the grand jury inquiry. Nor would it be significant if

Judges Moore and Helfant were the only ones ever called

into such a conference. It is perfectly sensible and rea-

sonable to explore the possibility of an agreement not

to sit pending resolution of criminal charges against a

judge.

Petitioner also contends that the Supreme Court “de-

prived [him] of the right to counsel” (CP27-28). We do

not know whether-Helfant seeks to create the impression

that the Supreme Court refused to permit counsel to at-

tend the conference. If that is the thrust, then we point

out that there is no such allegation in the complaint; and

nothing in the record to suggest a factual basis for such

a charge. The right of a judge (or an attorney) to have

counsel with him has never been denied, and Helfant no-

where says otherwise.

Equally unpersuasive is petitioner’s contention that the

Majority failed to consider his allegation of bad faith.

In our petition, we said that it was conceded that neither

12 In a related context, this Court has held that civil and ad-

ministrative hearings need not await the conclusion of related crim-

inal charges. See United States v. Kordel, 397 U. S. 1 (1970).

See also United States v. Simon, 373 F. 2d 649 (2 Cir. 1967),

cert. granted Simon v. Wharton, 386 U. S. 1030, vacated as moot,

389 U. S. 425 (1967).

seco ede aS te a ae ak OPN SHE OLR I aaa shia v

18

bad faith nor harassment were present in Helfant’s pros-

ecution. In a footnote (P29), we added that “bad faith”

and “harassment” signify that a prosecution is being in-

stituted with no reasonable hope or expectation of obtain-

ing a valid conviction.’* In no sense does petitioner’s con-

;

18“Bad faith” and “harassment” signify that a prosecution

is being instituted or threatened with,.,me, reasonable hope or

expectation of obtaining a valid conviction. Perez w. Ledesma,

401 U. S. 82, 85 (1971). Under such cireumstances, it is plain

that the federal plaintiff's constitutional rights cannot be vindi-

cated in the state criminal trial. Jbid. Honey v. Goodman, 432

F. 2d 333 (6 Cir. 1970), is illustrative of “bad faith” prosecu-

tions. There, plaintiffs mailed letters to persons protesting the

arrest and trial of several persons. As a result, they were charged

with the offense of embracery. The plaintiffs petitioned the fed-

eral court to enjoin their prosecution, on: the grounds that the

prosecutions were instituted in bad faith, with no real hope of

ultimate success, for the sole purpose of deterring them from the

expression of unpopular ideas. The district court dismissed the

complaint. On appeal, the Court of Appeals held that the lower

court had erred in dismissing the suit because if the plaintiffs

proved that the prosecution had been instituted without expecta-

tion of ultimate success and for the purpose of discouraging the

exercise of their rights, they would have proven the bad faith

necessary to secure an ,injunction against a pending State pro-

ceeding. See also Eames v. Pitcher, 468 F. 2d 905 (5 Cir. 1972) ;

Holmes v. Giarusso, 319°F. Supp. 832 (E. D. La. 1970).

The factual pattern in Dombrowski v. Pfister, 380 U. S. 479

(1965), is similar. There, the appellants had offered to prove

that their offices had been raided and all their files and records

seized pursuant to search and arrest warrants that were later

summarily vacated by a state judge for lack of probable cause.

They also offered to prove that despite the state court order quash-

ing the warrants and suppressing the evidence seized, the prose-

cutor was continuing to threaten the initiation of new prosecutions

of appellants under the same statutes, was holding public hear-

ings at which photostatic copies of the illegally seized documents

(Footnote continued on following page)

w ae ery grr PLONE A INE" RIE SRN RT RY ITE ON REM MON RAE Ce RM RR Ce BI DI ais Bree ery

Ee RR .

19

clusory allegation of “bad faith” meet this standard. J udge

Moore’s testimony, as set forth in the indictment which is

a part of the record in this case, plainly reveals petition-

(Footnote continued from preceding page)

were being used, and was threatening to use other copies of the

illegally seized documents to obtain grand jury indictments against

the appellants on charges of violating the same statutes.

Federal relief against a pending state prosecution was also

granted in Shaw v. Garrison, 467 F. 2d 113 (5 Cir. 1972).

The plaintiff had been charged with conspiring to assassinate

‘ President Kennedy and was found not guilty. Following his

acquittal, the District Attorney secured an indictment charging

the plaintiff with committing perjury at his trial. The federal

court enjoined the perjury prosecution because it believed that

there was a serious question as to whether the conspiracy charge

had any basis and it found that the prosecutor had taken extreme

measures in extracting information from the State’s witnesses, thus

raising serious questions as to the validity and objectivity of the

State’s case. The Court issued the injunction in order to prevent

the District Attorney from hounding an innocent person.

A state prosecution was also enjoined in Krahm v. Graham, 461

F. 2d 703 (9 Cir. 1972). There, bookstore owners were charged

‘with violating obscenity statutes. Eleven cases came fo trial and

none resulted in convictions. As a result, city officials insti-

tuted more prosecutions against the store owners. The federal

court issued an injunction against.the prosecutions because the

multiplicity of charges filed against the plaintiffs made it im-

possible for them to raise their constitutional claims in a single

criminal proceeding.

The foregoing cases illustrate the kind of conduct by state

authorities that would constitute “bad faith” or “harassment” and

which would give rise to a right to federal equitable relief dur-

ing the pendency of a state prosecution. The cases can be divided

into two categories: (1) where a prosecutor brings a prosecu-

tion with no expectation of securing a conviction, and (2) where

state authorities have pursued a course of continuous harassment,

(Footnote continued on following page)

. * 7

PSL RAIS eS EP ES RIES OP EF wee eee) tak s ay Serre alia bh

20

er’s involvement in a criminal enterprise.: Petitioner’s

own complaint sets forth the undisputed fact that other

witnesses had appeared and had testified before the grand

jury and, further, that their “testimony if believed would

incriminate” him (A68). Succinctly stated, no triable is-

sue was presented with respect to the allegation of bad,

faith.

Finally, we reply. to that part of the cross-petition that

says our application should be denied because the judg-

ment of the Third Circuit is interlocutory. We dealt

(Footnote continued from preceding page)

characterized by repeated arrests and prosecutions. Proof that

a prosecutor has engaged in the conduct outlined above merits

federal intervention in the state criminal process only because it

clearly demonstrates that the prerequisite to federal injunctive

relief, i.e., irreparable harm or the inability to remove the threat

by defense against a single criminal prosecution, has been met.

When a prosecutor secures an indictment against an individual

without expectation of securing a conviction, he is not interested

in bringing the case to trial. Consequently, if the defendant were

not entitled to federal relief, he would be left without a forum

in which to assert his constitutional rights. Similarly, the crim-

inal defendant who is subjected to continuous harassment and

repeated prosecutions needs the assistance of the federal courts if

his constitutional rights are to be protected because even a success-

ful defense of those rights in the state courts results in further

prosecution. Such a defendant cannot eliminate the threat to his

constitutional rights in defending a single criminal prosecution.

Plajnly, nothing in the complaint reveals bad faith in bringing

the prosecution in this case. Nor does Helfant’s new claim of

entrapment, first raised in his cross-petition, support a finding of

bad faith. As we have noted, even assuming that Helfant was

“entrapped,” there is no reason to presume that the State court

system cannot properly adjudicate that issue. Clearly, Helfant’s

constitutional rights can be vindicated in a single prosecution in the

State courts.

je APRA SO PT ANT ARIE WT Hate OY RO CRATO UR ARLENE Ne nel RT AD

21

with that question in our petition (P64) and stressed the

need for an immediate review of the issues we had raised. |

We pointed out that there would not be an opportunity \

for us to seek a review of a favorable final judgment. In

that regard, we emphasized the extraordinary import of

the Third Circuit’s judgment upon the relations between

the federal and state judiciaries. Although the majority

thought its decision could have no precedential impact

outside of New Jersey, we noted that other states had

similar judicial systems. We repeat that the impact of the

Third Cireuit’s decision cannot be minimized. In this

connection, we invite this Court’s attention to a resolu-

tion recently adopted by the Conference of Chief Justices

at its meeting in Hawaii on August 9, 1974 (Addendum

A). This resolution alludes to the problem of judicial ad-

ministration and the effect of federal intervention upon it.

We ask this Court to grant our petition for a writ of cer-

tiorari and to deny petitioner’s cross-application so that

these significant issues can be resolved.

CONCLUSION

For all the foregoing reasons, we respectfully pray

that our petition for a writ of certiorari be granted

and the cross-petition be denied.

Respectfully submitted,

Wiriuiam F. Hyuann,

Attorney General of New Jersey,

Attorney for Respondents.

Davip S. Bare,

‘Deputy Attorney General,

Division of Criminal Justice,

Chief, Appellate Section,

Of Counsel and on the Brief.

[ApvENDUM F'oLLows]

wi

SEL Ad Dee es ea a Re ee ee ee eC te oak ls ee ee ek

ADDENDUM

Resolution VIII

' Wuereas, the Conference of Chief Justices in 1971 en-

dorsed the efforts of the Chief Justice of the United

States to improve the channels of communications be-

tween state and federal courts and to eliminate abrasive-

ness in state-federal judicial bein ae and

Wuereas, much improvement between state and federal

judicial relations has resulted from an interchange of

ideas and a discussion of mutual problems between state

and federal judges eeOuBD State-Federal Judicial Coun-

cils; and

Wuereas, in recent months there have been in a few

federal district courts and circuit courts of appeals cer-

tain decisions which threaten to negate the effectiveness

of efforts to improve state and federal judicial relation-

ships in that these federal courts, below the United States

Supreme Court level, unreasonably have invaded areas

- which historically and traditionally are recognized to be

within the exclusive jurisdiction of state courts, as for ex-

ample the matter of state bar admissions and the internal

administration of state court systems;

Now, THEREFORE, BE IT Resotvep by the Conference of

Chief Justices duly assembled in Plenary Session on Aug-

ust 16, 1974, as follows:

1. That each state jadicial system is urged to con-

tinue its efforts to bring about a cooperative and

cordial relationship between state and federal judi-

cial systems through open communication and with

the interchange of ideas and mutual recognition of

[23]

BF SEMEL INT RIT PDEA EES IEE DE LOLOL IETS ELLIE EDAD MG ai rat)

’

24

~

the responsibilitifs of each system through State-

Federal Judicial Councils and other means.

2. That the “exhaitstion of state remedies” doctrine

must be’strictly adhered to in areas which have his-

torically_and traditionally been within the exclusive

jurisdiction of stat® courts, including state bar ad-

; missions ‘and internal adniinistration of state court

a _ systems and in the joint jurisdiction of the federal

3 ’ and state authorities; otherwise, the marked im-

provement -in state-federal judicial relationships

which has occurred in recent months will be sub-

stantially eroded. !

3

: 3. That various organizations interested in proper

° state-federal judicial relationships, including State-

2. Federal Judicial Councils, the Federal Judicial Cen-

ter, the Administrative Office of United States

f

Courts, the National Conference of Federal Trial

Judges, the Judicial Conferences of United States

Courts, and the State-Federal Judicial Relations

Committee of the American Bar Association, be

4 , called upon to bring to the attention of their judi-

4 cial members the importance of maintaining proper

and cooperative relationship between state and fed-

eral judiciaries in the areas above delineated.

4. That Congress is called upon to enact legislation

requiring the exhaustion of state judicial remedies

before federal courts may entertain jurisdiction of

matters which have been traditionally and histori-

cally within the exclusive jurisdiction of state court .

systems such as bar admissions and the internal

administration of state judicial systems.

. en Tp eS ys F re

spp 3 PET VIR T SP tae es oy OF

REIL WELLL AO EVE DOLE IEE SEL EF ALIBI OED OE ame