422 F.2d 1172 (3rd Cir. 1970), 18423, De Vita v. Sills

Docket Nº:18423.
Citation:422 F.2d 1172
Party Name:Ralph DE VITA, Appellant, v. Arthur J. SILLS, as and for the State of New Jersey, Attorney General, James R. Giuliano, Superior Court Judge of the State of New Jersey, Joseph Weintraub, Chief Justice, Supreme Court of New Jersey, Nathan L. Jacobs, John J. Francis, Haydon Proctor, Frederick W. Hall, C. Thomas Schettino, Vincent S. Haneman, Justices
Case Date:March 09, 1970
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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422 F.2d 1172 (3rd Cir. 1970)

Ralph DE VITA, Appellant,

v.

Arthur J. SILLS, as and for the State of New Jersey, Attorney General, James R. Giuliano, Superior Court Judge of the State of New Jersey, Joseph Weintraub, Chief Justice, Supreme Court of New Jersey, Nathan L. Jacobs, John J. Francis, Haydon Proctor, Frederick W. Hall, C. Thomas Schettino, Vincent S. Haneman, Justices of the Supreme Court of New Jersey. (D.C. Civil Action No. 2-70)

No. 18423.

United States Court of Appeals, Third Circuit.

March 9, 1970

Argued Feb. 5, 1970.

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Hyman Isaac and Barry M. Epstein, Reibel, Isaac, Tannenbaum & Epstein, Elizabeth, N.J., for appellant.

Stephen Skillman, Asst. Atty. Gen., Trenton, N.J. (George F. Kugler, Jr., Atty. Gen. of New Jersey, Virginia Long Annich, Deputy Atty. Gen., Trenton, N.J., on the brief), for appellees.

Before FREEDMAN, ALDISERT and GIBBONS, Circuit Judges.

OPINION

GIBBONS, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of New Jersey denying plaintiff's application for a preliminary injunction. Federal jurisdiction was invoked under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. The application for a preliminary injunction was made on notice to the defendant respondents pursuant to Rule 65(a)(1), on a verified complaint to which no responsive pleading was filed. The order is appealable. 28 U.S.C. § 1292(a)(1). This court, acting pursuant to Rule 8, Federal Rules of Appellate Procedure, granted plaintiff ad interim relief pending a disposition of the appeal by a panel of this court.

Plaintiff, a member of the Bar of New Jersey, and a judge of the Union County District Court of New Jersey, seeks to enjoin the defendants the Attorney General of New Jersey; James R. Giuliano, a judge of the New Jersey Superior Court; and all the members of the Supreme Court of New Jersey, from proceeding with a judicial inquiry looking toward his disbarment and removal from judicial office. He alleges that a criminal indictment is pending in the Superior Court of New Jersey which makes essentially the same charges that are set forth in the civil proceeding for disbarment and removal, and that if the defendants are permitted to proceed with the latter before the completion of his trial on the criminal indictment, he will be deprived of civil rights guaranteed by

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the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.

Plaintiff's verified complaint establishes that Michael R. Imbriani, Prosecutor of Somerset County, New Jersey, disclosed to the Supreme Court of New Jersey in an affidavit that the plaintiff had offered him a bribe, described as 'ten big ones', to influence Imbriani's handling of certain indictments then pending in Somerset County. On December 3, 1969 the supreme court issued the order here complained of, appointing Judge Giuliano as a Master to hear and make findings with respect to the following charges:

1. That he did corruptly attempt to bribe Honorable Michael R. Imbriani, Prosecutor of Somerset County, with respect to the Prosecutor's performance of his duties in relation to an indictment pending in Somerset County against Nicholas Guida, Jr., and David Tenney, Docket No. 9-59-S; 2. That the said Ralph DeVita did conspire with persons unknown to obstruct justice by bribing the said Prosecutor with respect to the handling of said indictment; 3. That the said Ralph DeVita did attempt to obstruct the administration of justice by attempting to bribe the said Prosecutor with respect to the said indictment.

The order provided the Master with the powers and authority vested by the New Jersey Rules of Court in an Ethics Committee. See N.J.R. 1:20. It appointed the Attorney General or such person as he might designate to prosecute the charges. It fixed January 6, 1970 as the time for the commencement of the hearing, directed that it be held in camera, and ordered the Master to send all testimony and exhibits to the supreme court with his findings and recommendations. The order also provided:

It is FURTHER ORDERED that any testimony given by the said respondent in these proceedings shall not be used against him in the trial of any indictment:

On December 9, 1969, the plaintiff applied to the New Jersey Supreme Court for a stay of the disciplinary proceeding before Judge Giuliano because an indictment was probably imminent, and the indictment should be tried before the disciplinary proceeding. The supreme court, by an order dated December 9, 1969, denied this application. On the same date it entered a separate order suspending the plaintiff from the practice of law and from the office of Judge of the Union County District Court pending final disposition of the charges set forth in the December 3, 1969 order.

On December 10, 1969, the State Grand Jury 1 handed up a two count indictment charging essentially the same misconduct as is set forth in the order for the disciplinary hearing. Plaintiff thereupon filed in the supreme court a petition seeking rehearing and reconsideration of its denial of his application for a stay of the disciplinary hearing. This application was denied by order dated December 17, 1969.

Thus, the disciplinary hearing before Judge Giuliano would have gone forward on January 7, 1970 in the state court had not this court by its order granted a stay pending appeal. There has been no trial of the criminal indictment.

The gravamen of plaintiff's complaint is that the time sequence of the disciplinary and criminal hearings which results from the supreme court's order is highly prejudicial, and that this prejudice is of constitutional dimensions. He asserts that holding the disciplinary hearing in advance of the criminal trial will coerce him to disclose his defense, in violation of the privilege against self-incrimination guaranteed by the Fifth Amendment. He claims that he has already been subjected to extensive pretrial publicity, and that additional publicity may result from the disciplinary proceeding, which may prejudice

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the fair trial on the criminal indictment guaranteed by the Sixth and Fourteenth Amendments. He contends that the disciplinary hearing will afford to the state an opportunity to cross-examine his witnesses in advance of trial, and will reveal to the state the thrust of cross-examination of the state's witnesses by his counsel. This is alleged to deprive him of the effective assistance of counsel guaranteed by the Sixth Amendment, and to amount to impermissible self-incrimination prohibited by the Fifth Amendment. All these effects of the time sequence of the hearings are said to be violations of the Civil Rights Act, 42 U.S.C. § 1983, actionable in the United States District Court under 28 U.S.C. § 1343(3).

The appeal presents three questions:

(1) Is there equitable jurisdiction in the United States District Court to grant the injunctive relief sought in view of the provisions of 28 U.S.C. § 2283, the anti-injunction statute?

(2) Assuming such jurisdiction, is the case one in which the federal courts should abstain from deciding the case in deference to comity and state sovereignty?

(3) Assuming the case should be decided, does the complaint state a claim upon which injunctive relief should be granted under the Civil Rights Act?

I. JURISDICTION

The Attorney General of New Jersey, appearing for all of the defendants, contends that 28 U.S.C. § 2283 deprives the district court of equitable jurisdiction to enjoin state court proceedings. That statute provides:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

The plaintiff relies on 42 U.S.C. § 1983 as an instance of an injunction 'expressly authorized by Act of Congress.' That reliance is, in this circuit at least, well placed, for Cooper v. Hutchinson, 184 F.2d 119 (3 Cir. 1950) so holds. Vigliano v. Thevos, 390 F.2d 55 (3 Cir. 1968), cert. denied, 393 U.S. 897, 89 S.Ct. 161, 21 L.Ed.2d 178 (1968), is not contra. It assumes the rule of Cooper v. Hutchinson, supra, but declines relief on the basis of abstention.

In the absence of a controlling decision in the United States Supreme Court, Cooper v. Hutchinson, supra, may only be overruled by this full court sitting en banc, and this panel does not feel that there is any reason to request our brothers to convene an en banc court for that purpose. The decision has been criticized, in another circuit which reached an opposite result, for having '* * * stated its conclusion without elucidating the problem or its reasoning.' Baines v. City of Danville, Va., 337 F.2d 579, 590 (4 Cir. 1964). 2 But the elucidation of reasons in Baines v. City of Danville, Va., supra, is not convincing, and the treatments of the problem in Sexton v. Barry, 233 F.2d 220 (6 Cir. 1956), cert. denied, 350 U.S. 838, 76 S.Ct. 75, 100 L.Ed. 747 (1955), and Smith v. Village of Lansing, 241 F.2d 856 (7 Cir. 1957), in which the Sixth and Seventh Circuits reached an opposite result, are as cryptic as that in Cooper v. Hutchinson, supra. 3

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The United States Supreme Court was aware of this circuit's holding in Cooper v. Hutchinson, supra, when it decided Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951). That was a suit to enjoin use in a state criminal trial of the fruits of an unlawful search and seizure. The same basis for federal jurisdiction was asserted as is asserted here. The Supreme Court could have reached the same result which it reached in Stefanelli v. Minard, supra, by overruling Cooper v. Hutchinson and holding that the anti-injunction statute applied and that the Civil Rights Act was not an instance of express congressional exception. Instead, it decided the case on an abstention basis. Abstention from...

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