483 F.2d 778 (5th Cir. 1973), 72-1585, Pugh v. Rainwater

Docket Nº:72-1585.
Citation:483 F.2d 778
Party Name:Robert PUGH and Nathaniel Henderson, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellees, v. James RAINWATER et al., Defendants-Appellants. Thomas Turner and Gary Faulk, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Intervenors,
Case Date:August 15, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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483 F.2d 778 (5th Cir. 1973)

Robert PUGH and Nathaniel Henderson, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellees,

Thomas Turner and Gary Faulk, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Intervenors,


James RAINWATER et al., Defendants-Appellants.

No. 72-1585.

United States Court of Appeals, Fifth Circuit.

Aug. 15, 1973

Certiorari Granted Dec. 3, 1973, See 94 S.Ct. 567.

Certiorari Denied Dec. 3, 1973, See 94 S.Ct. 595.

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Leonard R. Mellon, Asst. State Atty., Barry Richard, Asst. Atty. Gen., Miami, Fla., for defendants-appellants.

Bruce Rogow, Miami, Fla., for Pugh & Henderson.

Phillip A. Hubbart, Public Defender of Dade Co., Miami, Fla., for Pugh.

Lewis Jepeway, Jr., Peter L. Nimkoff, Miami, Fla., amicus curiae for Dade County Bar Assn.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.

TUTTLE, Circuit Judge:

We review here a District Court's holding that each Dade County, Florida arrestee held for trial upon an information filed by the state attorney is entitled by the Fourth and Fourteenth Amendments to an expeditious hearing before a judicial officer on the question of probable cause for arrest. 1 To implement this holding, the court later adopted a plan submitted by Sheriff E. Wilson Purdy (hereinafter the Purdy Plan), which required, inter alia, that persons arrested with or without warrants in Dade County, be accorded expeditious preliminary hearings before a magistrate and that those not accorded such hearings be released immediately. 2 Implementation of the Purdy Plan was stayed by this court's order of March 31, 1972, pending appeal, during which time Dade County's judiciary moved voluntarily to establish its own plan for providing preliminary hearings. Following oral argument, on October 18, 1972, we vacated the stay order, directed the District Court to make specific findings on the constitutional deficiencies, if any, of the then-current preliminary hearings practices, and authorized implementation of the Purdy Plan.

On December 6, 1972, the Florida Supreme Court issued its Amended Rules of Criminal Procedure. These rules, which took effect February 1, 1973, provide for a committing magistrate system. The differences between the Purdy Plan and these Amended Rules provided the focus for the District Court's findings pursuant to our order, which were filed on March 12, 1973.

In light of the aforementioned intervening developments, we must resolve

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the following questions: (1) Should the District Court have abstained from ruling on the constitutionality of Dade County's lack of preliminary hearings in cases proceeded upon by information filed by the state attorney? (2) Do arrestees prosecuted upon informations certifying probable cause for arrest by the state attorney have a constitutional right to preliminary hearings before a magistrate? and (3) In what respects, if any, are the Amended Rules constitutionally deficient in their provisions for preliminary hearings?

I. Background

Persons arrested for felonies and most misdemeanors in Dade County, Florida are routinely brought to the Metropolitan Dade County Jail. Aside from capital cases, which must be tried on indictment by a grand jury, all other criminal cases in Florida may be commenced by "information filed by the prosecuting attorney under oath." Florida Statutes § 904.01. Although preliminary hearings on probable cause for arrest with or without warrant are mandated by statute, 3 the Florida judiciary has consistently held that such hearings are not required where the state prosecutes by filing an information certifying probable cause for arrest. 4 Though the Florida Supreme Court has not been insensitive to the constitutional ramifications of incarceration without any preliminary probable cause hearing, it has declined to hold these practices unconstitutional or to fashion relief for arrestees held upon informations. 5 Amended Rule 3.131, 33 F.S.A., which provides for a right to a preliminary hearing on any felony charge " unless charged in an information or indictment," (Emphasis added), preserves the previous practice of permitting the state attorney's certification to obviate the need for a preliminary hearing.

Criminal actions in Dade County, therefore, often proceed upon information sworn to by the state attorney either before or after arrest without any judicial scrutiny prior to arraignment. 6 If unable or unwilling to post bail, arrestees remain in jail at least until arraignment. This incarceration may last as long as 30 days, 7 and at least three

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days must pass before an information is filed against an arrestee and the case is calendared. During this period, the defendant sees no judicial officer other than the bail judge. Arraignment is the first opportunity for a magistrate to inspect the state attorney's information setting forth the cause upon which the defendant was arrested. 8

The plaintiffs in this action, charged with various offenses under Florida law, 9 filed a class action in the federal court on behalf of themselves and all other Dade County arrestees detained solely upon direct informations in which the state attorney certified probable cause for arrest and detention. They alleged that their pre-trial detention was in violation of the Constitution, and sought declaratory and injunctive relief entitling them to preliminary hearings.

II. Abstention

Fully cognizant that "A federal lawsuit to stop a prosecution in a state court is a serious matter." Younger v. Harris, 401 U.S. 37 at 42, 91 S.Ct. 746 at 749, 27 L.Ed.2d 669 (1971), we nevertheless find that the plaintiffs' claim is not barred by considerations of federal-state comity.

This suit, a class action by arrestees contesting the quality of their present detention pending trial, sought no relief which would impede pending or future prosecutions on various charges in the state courts of Florida. Rather, while accepting that the state courts were the proper forum for consummation of criminal proceedings against them, the plaintiffs argued that the State was nevertheless obligated to submit them to preliminary probable cause hearings.

This court has declined to issue declaratory or injunctive relief interfering with pending or future state court prosecutions, Becker v. Thompson, 459 F.2d 919 (5 Cir. 1972), cert. granted, sub nom Steffel v. Thompson, 410 U.S. 593, 93 S.Ct. 1424, 35 L.Ed.2d 686 (1973), unless the state statute under which the plaintiffs were being prosecuted was allegedly unconstitutional on its face, Jones v. Wade and Dyson, 479 F.2d 1176, 5 Cir., decided May 30, 1973. However, we have not declined to adjudicate federal questions properly presented merely because resolution of these questions would affect state procedures for handling criminal cases. Where, as here, the relief sought is not "against any pending or future court proceedings as such." Fuentes v. Shevin, 407 U.S. 67, 71, n. 3, 92 S.Ct. 1983, 1989, n. 3, 32 L.Ed.2d 556, n. 3, (1971) ,

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(Emphasis added), Younger is inapplicable.

The relief sought by these plaintiffs was not against any state prosecution as such but only against the state's practice of considering the state attorney a sufficient judge of probable cause to hold arrestees until arraignment or trial. Simply declaring that the plaintiffs were entitled to pre-trial procedural rights, the District Court said that the plaintiffs should "immediately be given a preliminary hearing to determine probable cause by a committing magistrate unless their cases have been otherwise concluded." 332 F.Supp. at 1115, (Emphasis added). By recognizing that some plaintiffs' cases might have been concluded, the Court demonstrated that its declaration of pre-trial rights was not to impede the plaintiffs' prosecutions.

Not every unconstitutional pre-trial procedure, of course, will entitle a state court defendant to relief in federal court. For example, an unconstitutional search and seizure does not entitle the state court defendant to any injunction, but only to have the evidence excluded when presented in state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). On the other hand, when a plaintiff who happens also to be a defendant in a simultaneous state court proceeding seeks to challenge an aspect of the criminal justice system which adversely affects him but which cannot be vindicated in the state court trial, comity is no bar to his challenge.

If these plaintiffs were barred by Younger from this forum, what relief might they obtain in their state court trials? Since their pre-trial incarceration would have ended as of the time of trial, no remedy would exist. Their claims to pre-trial preliminary hearings would be mooted by conviction or exoneration.

Plaintiffs' due process claim is closely analogous to that made in Morgan v. Wofford, 472 F.2d 822 (5th Cir. 1972). In Morgan, we held that Younger did not bar a claim by a probationer who had been afforded no hearing to ascertain the amount of restitution he owed the victim of his crime. We said:

"Abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970) was never intended where there is no possible state proceeding through which appellant may raise his constitutional objections to a state proceeding which has already occurred . . . . we have never intimated that abstention is appropriate where there is no state court prosecution to be interfered with and where the plaintiff seeking relief in federal court has no alternative forum in which to raise his constitutional claim." Id. at 826.

In Morgan, the plaintiff had...

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