Benoit v. Gardner

• Decision Date: 29 October 1965
• Docket Number: No. 6541.,6541.
• Citation: 351 F.2d 846
• Parties: Leo F. BENOIT, Plaintiff, Appellant, v. Alfred GARDNER et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

351 F.2d 846 (1965)

Leo F. BENOIT, Plaintiff, Appellant, v. Alfred GARDNER et al., Defendants, Appellees.

No. 6541.

United States Court of Appeals First Circuit.

Heard September 15, 1965.

Decided October 29, 1965.

James W. Kelleher, Boston, Mass., with whom William C. Madden, Boston, Mass., was on brief, for appellant.

Calvin P. Bartlett, Special Asst. Atty. Gen., for the Commonwealth of Massachusetts, with whom Donald N. Sweeney, Boston, Mass., was on brief, for appellees.

Before ALDRICH, Chief Judge, J. WARREN MADDEN, Judge of the Court of Claims,^* and JULIAN, District Judge.

ALDRICH, Chief Judge.

This is an appeal by a plaintiff from the judgment of a single judge of the district court denying a prayer that he request the chief judge of the circuit to designate a three-judge district court, 28 U.S.C. § 2284, and dismissing the complaint on the merits. The complaint alleges that plaintiff had been a public official of the Commonwealth of Massachusetts for a number of years; that in connection with its investigation of corrupt practices in the Commonwealth a body known as the Massachusetts Crime Commission, created by Mass. Resolves (1962) ch. 146, summoned plaintiff before it, caused him to be investigated, and through its personnel presented material thus gained to a Suffolk County grand jury; that in May 1963, plaintiff was indicted by the grand jury for requesting and receiving a bribe; that in 1965 attorneys representing the Commonwealth informed plaintiff's counsel that they desired plaintiff's testimony in connection with indictments against other public officials and indicated that if plaintiff cooperated his own indictment would be treated leniently, but that if he did not cooperate, further indictments might be sought against him.

Plaintiff seeks a declaration that the legislation creating the Commission is unconstitutional, and an injunction restraining the Commission and its personnel from issuing further summonses to him, from preparing or continuing the preparation of any prosecutions against him, and from presenting any matter concerning him to any prosecuting officer, law enforcement agency, or grand jury. He further seeks to restrain the Massachusetts Attorney General from presenting to any grand jury any material against the plaintiff obtained in whole or in part from the Commission or its personnel, and from proceeding further under the 1963 indictment. The respondents are individuals who were the members and principal employees of the Commission, and the Attorney General of the Commonwealth.¹

As we understand it, plaintiff asserts six grounds in support of the requested relief:² (1) the Crime Commission's combination of legislative and prosecutorial functions violates the due process clause of the fourteenth amendment: (2) restriction of the Commission's activities to the field of corrupt practices in the state government denied the class of state office holders, of which plaintiff is a member, the equal protection of the laws; (3) while presenting matters to grand juries Commission personnel disclosed the grand jury proceedings to defendant Gardner, the Commission's chairman, so that the Commission could further investigate and fill in evidentiary gaps, thereby violating plaintiff's right to secret grand jury proceedings; (4) the Commission's primary purpose was the unconstitutional one of exposing and punishing individuals, rather than that of recommending legislation to the General Court; (5) plaintiff's forthcoming trial will be prejudiced as a result of unfavorable publicity directed by the Commission against state office holders; and (6) the state's promises of leniency and threat of further indictments in order to enlist plaintiff's cooperation in the trial of other officials coerces him to incriminate himself in violation of the fifth and fourteenth amendments.

28 U.S.C. §§ 2281 requires a hearing before a three-judge district court only when an "injunction restraining the enforcement, operation or execution of any State statute * * * or of an order made by an administrative board or commission acting under State statutes" is sought "upon the ground of the unconstitutionality of such statute." It does not encompass injunctions sought on the ground that a valid statute or order is being executed in a manner prejudicial to constitutional rights. See Phillips v. United States, 1941, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800; Ex parte Bransford, 1940, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249. Only the first of the six claims clearly challenges the constitutionality of the Commission's enabling legislation. By giving plaintiff the benefit of considerable doubt and assuming that the practices asserted in claims 2 to 4 flowed directly from the statute, these, too, may have formed a basis for seeking a three-judge court. Plaintiff may well have been correct in joining the various causes of action in one claim, and if any one of them required a hearing before a three-judge court all might thus be heard, with direct review in the Supreme Court. Cf. Florida Lime and Avocado Growers, Inc. v. Jacobsen, 1960, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568; 3 Moore, Federal Practice ¶ 18.07 2 (1964). We do not pause to explore this procedural matter, but, like the district court, will go direct to the dorsal aorta. At the same time, if we conclude that the single judge properly dismissed on the merits those aspects of the complaint which colorably required the empaneling of a three-judge court,³ we can consider claims 5 and 6 as an ordinary appeal from a denial of injunctive relief.

We turn first to the question whether plaintiff's claims were so lacking in merit as to warrant refusal to invoke the procedures required by sections 2281 and 2284. Plaintiff refers to no authority, and we know of none, to the effect that the Constitution of the United States imposes the same requirements of separation of governmental functions on the states that it does on the national government. Indeed, the Supreme Court has expressly held the contrary. Dreyer v. People of State of Illinois, 1902, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; and see Sweezy v. State of New Hampshire, 1957, 354 U.S. 234, 255, 77 S.Ct. 1203, 1 L.Ed. 2d 1311. Though this does not mean that certain combinations of functions in a state agency might not constitute such unfairness as to contravene the due process clause of the fourteenth amendment, plaintiff does not allege that prejudice resulted from the abstract commingling of legislative and prosecutorial functions which characterizes the Crime Commission's structure.

Plaintiff's argument that the Commission's concentration on investigating corruption among state officials denied members of that class, including himself, the equal protection of the laws is also without merit. Although discriminatorily motivated prosecutions, see Note, 61 Colum.L.Rev. 1103 (1961), and possibly even investigations, but cf. United States v. Kamin, D.Mass., 1956, 136 F.Supp. 791, 803, might under some circumstances constitute a denial of equal protection, those appointed to high public office hold a special public trust; they cannot properly complain if they are the objects of special scrutiny.

Plaintiff does not clearly allege that grand jury secrecy was breached in the course of the specific proceedings that resulted in his indictment, although he alleges a general practice to that effect. In any case, his assertion of a federal right to grand jury secrecy must fall under the weight of Hurtado v. People of State of California, 1884, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, and subsequent decisions holding that the fourteenth amendment does not require a state to initiate prosecutions by way of indictment. To be sure, even though a state need not employ the institution of the grand jury, having chosen to employ it, it cannot do so in a discriminatory manner. Cf. Cassell v....