Cooper v. Hutchinson

• Decision Date: 27 January 1950
• Docket Number: Civ. No. 1036-49.
• Parties: COOPER et al. v. HUTCHINSON.
• Court: U.S. District Court — District of New Jersey

88 F. Supp. 774

COOPER et al. v. HUTCHINSON.

Civ. No. 1036-49.

United States District Court D. New Jersey.

January 27, 1950.

COPYRIGHT MATERIAL OMITTED

Solomon Golat, Newark, N. J. (O. John Rogge, New York City, William L. Patterson, Emanuel H. Bloch, Robert H. Goldman, Murray A. Gordon, Jerome J. Bornstein, New York City, of counsel), for plaintiff.

Theodore D. Parsons, Attorney General of the state of New Jersey, John W. Griggs, Deputy Attorney General, for defendant.

Morton Stavis, New York City, for Electrical, Radio and Machine Workers of America, District Council No. 4, amicus curiae.

Witt & Cammer, New York City (Ralph Shapiro, New York City, of counsel), for Fur, Dresses and Dyers Local 140 and others, amicus curiae.

Samuel M. Sacher, New York City, for Greater New York Regional Council and others, amicus curiae.

Neuburger, Shapiro, Rabinowitz & Boudin, New York City (Leonard B. Boudin, New York City, of counsel), for Local 19, Social Service Employees Union of the United Office and Professional Workers of America, amicus curiae.

William Rossmore, Newark, N. J., for Locals 7, 11 and 15 of the United Office and Professional Workers of America, amicus curiae.

Robert K. Bell, Ocean City, for New Jersey State Bar Ass'n, amicus curiae.

George Gildea, Trenton, N. J., for the Mercer County Bar Ass'n, amicus curiae.

FORMAN, District Judge.

From the complaint in this case it appears that the plaintiffs Ralph Cooper, Collis English and James H. Thorpe, with three others, were convicted on a charge of murder in the Mercer County Court of the State of New Jersey on August 6, 1948. The sentence of death was imposed upon them by the defendant, Honorable Charles P. Hutchinson, Judge of the said court. They were represented in their trial by court appointed counsel.

During the preparation of the appeal from the plaintiffs' conviction, Messrs. Solomon Golat and Clarence Talisman of the bar of the State of New Jersey and Messrs. O John Rogge, William L. Patterson and Emanuel H. Bloch, counsel in good standing in bars other than the State of New Jersey, were chosen by the plaintiffs as their counsel in substitution for counsel appointed by the trial court and Mr. Rogge was admitted to argue their appeal pro hac vice. The conviction of all of the defendants in the murder case was reversed and a new trial ordered in an opinion of the New Jersey Supreme Court filed June 30, 1949. See State v. Cooper, 2 N.J. 540, 67 A. 2d 298. In the following month Mr. Golat moved the admission of Messrs. Rogge, Patterson and Bloch pro hac vice before Judge Hutchinson in the Mercer County Court for the retrial of the case and he granted the motion.

The said counsel appeared before him on a number of occasions to argue various motions. On December 16, 1949, following the disposition of a motion brought on by said counsel the defendant, according to the allegations of the plaintiffs, dismissed Messrs. Rogge, Patterson and Bloch as counsel for the plaintiffs.

Since the plaintiffs desire to be represented in their retrial by the said counsel, and no others, they submit that the dismissal by the defendant of the said counsel under color of law was summary, arbitrary, capricious and unreasonable, and deprives them of their right to be represented by counsel of their choice as guaranteed to them under the due process clause of the Fourteenth Amendment to the Constitution of the United States.¹ Therefore they invoked the provisions of the Civil Rights Act of the United States, 8 U.S.C.A. § 43² and 28 U.S.C.A. § 1343³ and prayed for the following equitable relief:

"1. That this Court temporarily and permanently enjoin the defendant Charles P. Hutchinson during the course of further criminal proceedings taken against the plaintiffs by the State of New Jersey in the case of State v. Cooper, et al., from refusing to recognize O. John Rogge, William L. Patterson and Emanuel H. Bloch as counsel for the plaintiffs and from appointing other counsel in their stead, without the consent of the plaintiffs.

"2. That this Court temporarily and permanently enjoin the defendant Charles P. Hutchinson from commencing the trial of State v. Cooper, et al., until plaintiffs are permitted to have counsel of their own choice for their defense.

"3. For such other and further relief as this Court may deem proper."

The matter is presently before this court on a notice of motion given to the defendant by the plaintiffs that they would apply for an order restraining the defendant from refusing to recognize Messrs. Rogge, Patterson, Bloch and Golat as defense counsel and from appointing other counsel in their stead without their consent and for an order restraining the defendant from commencing the trial until they are permitted to select counsel of their own choice for their defense.

The defendant has countered with a motion to dismiss the cause because:

(1) this court lacks jurisdiction of the subject matter of the litigation (2) the complaint fails to state facts showing that this court has jurisdiction of this action or jurisdiction that the court will exercise;

(3) the complaint fails to state a claim upon which the relief prayed for can be granted; and

(4) the complaint fails to state a claim against the defendant upon which relief can be granted.

Argument on the motions has been made by counsel of the parties as well as by counsel representing a committee of the Mercer County Bar Association, all of whom submitted briefs, the latter as amicus curiae. The defendant requested that arguments raised in the brief of the Bar Association in support of his motion should be considered as his arguments. Other briefs of amici curiae were permitted to be filed as noted at the head of this opinion.

It is the contention of the plaintiffs that their right to counsel is guaranteed to them under the Sixth Amendment to the Constitution of the United States,⁴ and that it has been interpreted by the courts to intend that persons accused of crime shall achieve effective representation, to include the right to choose counsel, referring among others, to the case of Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. They also contended that any lessor construction deprives them of the fundamental fairness that should characterize a criminal trial, lack of which is violative of the Fifth and Fourteenth Amendments to the United States Constitution. Therefore, their first point is that they were deprived of their constitutional right to counsel of their choice by the action of the defendant when he dismissed their counsel. They contended that the fact that their counsel were not members of the bar of the court in which they were being tried did not detract from their right to avail themselves of their services, for they argued that in the case of U. S. v. Bergamo, 3 Cir., 154 F.2d 31, the Court of Appeals of this Circuit specifically held that the constitutional guarantees were such as to make it mandatory upon the trial court to admit as counsel of the choice of an accused, a lawyer from another state.

The plaintiffs also urged that this court has jurisdiction to afford them the relief they seek against the defendant under the Civil Rights Act, 8 U.S.C.A. § 43, and 28 U.S.C.A. § 1343. They argued that it is established that an official acts under color of a statute where the power he is alleged to have misused is that which he possessed by virtue of the state law and his exercise of it is made possible only because he is clothed with the authority of the state law; that deprivations so occasioned extend the cause of action provided under the Civil Rights Act to include the right to sue state judges when their actions contravene it and cited a number of cases to support this proposal, including Picking v. Pennsylvania R. Company, 3 Cir., 151 F.2d 240, 250. They also submitted that it has been held that it is not essential to exhaust state court remedies before resorting to action under the Civil Rights Act and that the statute under which a court of the United States is ordinarily prohibited from granting an injunction to stay proceedings in a state court, 28 U.S.C.A. § 2283⁵ is not operative here because the Civil Rights Act falls within its exception in its express authorization. Moreover, the plaintiffs contend the relief they seek here is not to stay the state court proceedings but merely to have this court order that the lawyers of their choice should be recognized by the state court, as otherwise they will have suffered irreparable injury, prejudice and deprivation of their constitutional rights.

The plaintiffs and the various parties who support their position in a brief as amici curiae stress the public importance and deleterious effect of a decision that would sustain the principle that a defendant in a criminal case could not be represented by counsel of his choice in the person of a lawyer or lawyers of bars other than that of the forum in which he was being tried.

In the argument and brief of the defendant (which will be considered to comprehend the arguments advanced by the committee of the Mercer County Bar Association pursuant to his request), he contended that he is bound by Rule 1:8-10(b)⁶ of the Supreme Court of New Jersey, which in turn derives its power to regulate the practice and procedure of the courts of the State from Article VI, Section II, Paragraph 3 of the New Jersey Constitution of 1947, N.J.S.A.⁷ Under it he claimed discretion was reposed in him which he exercised by removing three of plaintiffs' lawyers by declaring that they no longer had a right to appear in the case. The defendant submitted that if he abused his discretion in this respect, or if the Rule of the Supreme Court of New Jersey is in conflict with rights guaranteed under the United States Constitution the test is by way of appeal through the State Court system and thence to the United States Supreme Court, provision existing in the New...