Gabrilowitz v. Newman

• Decision Date: 21 June 1978
• Docket Number: No. 77-1565,77-1565
• Citation: 582 F.2d 100
• Parties: Steven A. GABRILOWITZ, Plaintiff-Appellee, v. Frank NEWMAN, President of the University of Rhode Island, and Jack Shay, Vice President for Student Affairs of the University of Rhode Island, Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 100

582 F.2d 100

Steven A. GABRILOWITZ, Plaintiff-Appellee, v. Frank NEWMAN, President of the University of Rhode Island and Jack Shay, Vice President for Student Affairs of the University of Rhode Island Defendants-Appellants.

No. 77-1565.

United States Court of Appeals First Circuit.

Argued March 8, 1978.

Decided June 21, 1978.

Daniel J. Murray, Providence, R. I., with whom Joseph DeAngelis and Letts, Quinn & Licht, Providence, R. I., were on brief, for defendants-appellants.

Milton Stanzler, Providence, R. I., with whom Richard A. Boren and Abedon, Stanzler, Biener, Skolnik & Lipsey, Providence, R. I., were on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal by defendants-appellants, officials of the University of Rhode Island, pursuant to 28 U.S.C. § 1292(a) from an order of the United States District Court for the District of Rhode Island granting a preliminary injunction restraining appellants from conducting a disciplinary hearing against plaintiff-appellee, Steven A. Gabrilowitz, unless he is allowed to be represented by an attorney of his choice.

At the outset, we note that the issue before us is somewhat different than that presented by the terms of the injunction. We interpret the injunction to mean, as counsel did in their briefs, that appellee's attorney, if allowed to represent him at the hearing, would do so in the traditional sense, I. e., he would conduct direct and cross-examination. At oral argument, counsel for appellee stated in response to a question from the bench that it was not necessary for the lawyer to participate in direct or cross-examination; all that appellee wanted was that a lawyer be at his side during the hearing for consultation and advice. It is in this context, therefore, that we address ourselves to the case.

On November 11, 1977, the South Kingstown, Rhode Island, Police Department charged appellee, a senior at the University of Rhode Island (U.R.I.), with assault with intent to commit rape on another student on October 18, 1977. ¹ While appellee was at the police station being charged, a U.R.I. employee delivered a letter to him notifying him that he had been suspended from the school and barred from entering the campus. On November 16, 1977, U.R.I. sent appellee another letter informing him that the campus police had charged him with violating the U.R.I. Community Standards of Behavior. ² Gabrilowitz was directed to defend against the specific allegations of assault with intent to rape and an additional allegation of a later assault on the same student before the University Board on Student Conduct (U.B.S.C.). The letter outlined the procedures of the hearing and informed appellee of the existence of rules defining his rights at the hearing. One of the rules prohibits the existence or presence of legal counsel at the hearing. Appellee, thereupon, petitioned the district court for an injunction pursuant to 42 U.S.C. § 1983.

The procedural guidelines for a disciplinary hearing are set forth in Section 23 of Part 2 of RamPages, a student's guide to the University. While the student is not "permitted to employ professional legal counsel or other persons from outside the University community to present the case before the hearing board," he "shall have the right to request the assistance of an advisor of his/her choice from the community." Section 23.6.

"The technical rules of evidence applicable to civil and criminal trials are not applicable and the board shall rule on the admissibility of evidence." Section 23.8.

"During the hearing, the accused student and/or his/her advisor shall have the right to cross-examine all witnesses and to view and question all evidence presented to the judicial board. . . ." Section 23.9.

"Decisions shall be based only upon evidence and testimony introduced at the hearing." Section 23.10.

"In cases in which a student denies an allegation, the burden of proof shall rest upon the person bringing the charge." Section 23.11.

"All decisions made by a judicial board shall be by a majority vote. . . ." Section 23.12.

There is a right of appeal: "Such appeals shall be based only on specific evidence, presenting (Sic ) in writing, of fraud, denial of rights, procedural error, or on the claim of new evidence not previously available which would have materially affected the decision of the board." Section 23.22.

After a two-day hearing, the district court found irreparable harm and, while noting that the weight of authority supported the position of appellant, decided that, under the circumstances of this case, there was a due process violation.

We note preliminarily that this action is not barred by the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger applies to some civil and administrative proceedings, Geiger v. Jenkins, 401 U.S. 985, 91 S.Ct. 1236, 28 L.Ed.2d 525 (1971), but is not a bar to a challenge to a state proceeding claimed to be constitutionally defective. Withrow v. Larkin, 421 U.S. 35, 44 n. 8, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). Younger presupposed the existence of a competent state forum. The U.R.I. Community Standards of Behavior prohibit legal counsel under all circumstances. There is no opportunity here to present the federal claim in a state judicial proceeding. Cf. Juidice v. Vail, 430 U.S. 327, 337 n. 15, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977).

The issuance of a preliminary injunction lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion, Grimard v. Carlston, 567 F.2d 1171 (1st Cir. 1978), or a clear error of law, Automatic Radio Mfg. Co. v. Ford Motor Company, 390 F.2d 113, 115 (1st Cir.), Cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). The power of a federal court to stay a civil proceeding because of a nexus between that proceeding and a pending criminal case is well established. United States v. Kordel, 397 U.S. 1, 12 n.25, n.27, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970); Arthurs v. Stern, 560 F.2d 477, 479 (1st Cir. 1977); Silver v. McCamey, 95 U.S.App.D.C. 318, 221 F.2d 873 (1955).

Appellants' position is that the district court committed errors of law of such magnitude in issuing the injunction as to amount to an abuse of discretion. In addition to claiming that the order requiring the appointment of counsel in a student disciplinary hearing is contrary to authority, appellants also claim that it was error for the district court to take into consideration the effect that the disciplinary proceeding might have on the pending criminal action.

We deal first with the alleged error of considering the implications of the criminal case. We reject at the outset appellants' assertion that criminal and civil proceedings arising out of the same facts are unrelated and must be treated as separate entities. Judicial deference to academic autonomy is not a before-the-fact policy. Rather, it emerges from a balancing of the interests of the parties. See e. g., Downing v. LeBritton, 550 F.2d 689 (1st Cir. 1977); Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967).

Were the appellee to testify in the disciplinary proceeding, his statement could be used as evidence in the criminal case either to impeach or as an admission if he did not choose to testify. Appellee contends that he is, therefore, impaled on the horns of a legal dilemma: if he mounts a full defense at the disciplinary hearing without the assistance of counsel and testifies on his own behalf, he might jeopardize his defense in the criminal case; if he fails to fully defend himself or chooses not to testify at all, he risks loss of the college degree he is within weeks of receiving and his reputation will be seriously blemished. Appellants respond that appellee risks nothing by mounting a full defense at the hearing because his words would be compelled testimony precluded from admission at the criminal case under the doctrine of Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). See also Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). It is our opinion that neither Garrity nor Lefkowitz apply to the facts of this case.

In Garrity v. New Jersey, supra, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, police officers were questioned in the course of a state investigation of ticket fixing.

Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office. Id. at 494, 87 S.Ct. at 617.

In setting aside the convictions that resulted from testifying at the investigation, the Court focused on the fact that "(t)he choice imposed on petitioners was one between self-incrimination or job forfeiture." Id. at 496, 87 S.Ct. at 618. The Court found: "Where the choice is 'between the rock and the whirlpool,' duress is inherent in deciding to 'waive' one or the other." Id. at 498, 87 S.Ct. at 619. ³

Duress was also the key factor in Lefkowitz v. Cunningham, supra, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1. At issue was the constitutionality of a New York statute providing that, if an officer of a political party was subpoenaed by a grand jury to testify about the conduct of his office and refused to testify or waive immunity against criminal prosecution, his term of office would be terminated and he would be disqualified from holding any party or public office for five years. In holding the statute unconstitutional, the Court said: "These cases settle that government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel...