Helfant v. Kugler, 73-1386

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before STALEY, ADAMS and GIBBONS; Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH; ALDISERT; Black; Such limited use of authorized power will free the New Jersey court system of any suggestion that a
• Citation: 500 F.2d 1188
• Parties: Edwin H. HELFANT, Appellant, v. George F. KUGLER, Attorney General of the State of New Jersey, et al.
• Docket Number: No. 73-1386,73-1386
• Decision Date: 07 September 1973

Page 1188

500 F.2d 1188 Edwin H. HELFANT, Appellant,
v.
George F. KUGLER, Attorney General of the State of New Jersey, et al. No. 73-1386. United States Court of Appeals, Third Circuit. Argued Sept. 7, 1973, Submitted under Third Circuit Rule
12(6) Nov. 19, 1973, Reargued April 10, 1974.
Decided July 8, 1974, Certiorari Granted Nov. 18, 1974, See
95 S.Ct. 492.

Page 1189

Perskie & Callinan, by Marvin D. Perskie, Wildwood, N.J., Patrick T. McGahn, Jr., Atlantic City, N.J., Norman L. Zlotnick, Wildwood, N.J., for appellant.

George F. Kugler, Jr., Atty. Gen. of N.J., Trenton, N.J., David S. Baime, Alfred J. Luciani, Edward C. Laird, Deputy Attys. Gen., for appellees.

Before STALEY, ADAMS and GIBBONS, Circuit Judges.

Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Presenting a delicate question of federal-state comity, this appeal requires us to decide whether federal fact-finding should be utilized to determine whether a New Jersey municipal court judge's testimony before a state grand jury was the product of a free and unconstrained will. Contending that his Fifth Amendment rights as guaranteed by the Fourteenth Amendment will not be vindicated by the New Jersey state court system, appellant argues that the federal courts should provide relief because highly unusual circumstances dictate an exception to the familiar restrictive rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

I.

This is an appeal from an order of the district court which (1) denied plaintiff's request for a preliminary injunction prohibiting the Attorney General of New Jersey and others from proceeding with the prosecution of an indictment pending in that state, ¹ and (2) granted the defendants' motion, under Rule 12(b)(6) F.R.Civ.P., to dismiss the complaint for failure to state a claim upon which relief could be granted. The district court held an evidentiary hearing on the motion for a preliminary injunction, and made limited findings of fact. The appeal was argued before a panel of this court on September 7, 1973. Deeming the issues raised to be substantial, the trial on the challenged indictment being scheduled to commence on September 10, 1973, and the Attorney General of New Jersey declining to postpone it until the panel could decide the case, the

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panel entered an order enjoining the prosecution until such time as the appeal could be decided. Panel opinions were filed on September 10 reversing and remanding for further proceedings. Thereafter, representing that the State was willing to delay plaintiff's trial until disposition of the application for rehearing, the state attorney general petitioned for rehearing. Based on that representation, we recalled our mandate on September 21, 1973. Rehearing was granted before the panel; supplemental briefing was ordered on certain issues suggested by the appeal which had not been previously briefed or argued; and the panel subsequently granted some relief, one judge dissenting. Because of important federal-state comity questions, the full court subsequently agreed to hear the case in banc.

II.

Plaintiff-appellant, Helfant, a member of the New Jersey bar and a former municipal court judge of that state, alleged in a verfied complaint that he had been advised that he was the target of a state grand jury investigation into an alleged withdrawal of a criminal charge of atrocious assault and battery. Armed with this information, and asserting a Fifth Amendment privilege, Helfant refused to testify when he first appeared before the state grand jury on October 18, 1972. He was subsequently subpoenaed to appear again before the grand jury on November 8, 1972, which was then sitting at the Trenton State House Annex on the same floor as the chambers of New Jersey State Supreme Court justices. Helfant was also directed to appear before the justices of the Supreme Court in their private chambers 10 minutes before his scheduled re-appearance before the grand jury.

The complaint averred that upon his appearance in the Supreme Court chambers, several justices asked questions about the subject matter of the grand jury investigation, including matters not then made public and also including inquiries concerning certain witnesses who had testified against Helfant before the grand jury. ²

His complaint averred the 'after . . . (he) left the Supreme Court chambers, he was in a state of confusion and bewilderment and had to go immediately before the State Grand Jury. * * * As a result of these questions, (by justices of the Supreme Court,) the plaintiff, whose previous counsel-advised intentions and will were completely discarded

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and overcome and who was quite emotionally upset by the confrontation, indicated to the Justices that he would indeed waive his Fifth Amendment privilege and testify in full before the State Grand Jury, fearing not only the loss of his Judgeship, but his accreditation as a member of the bar as well.'

Helfant also averred that Deputy Attorney General Hayden, conducting the grand jury investigation, entered the Supreme Court chambers after plaintiff left and that Hayden had also preceded the plaintiff into the chambers.

Finally, his complaint alleges:

14. As a result of the intrusion by the Deputy Attorney General and the disclosure to the Supreme Court of factual matters involved in a Grand Jury investigation during pendency of that investigation, and because of the intrusion of the New Jersey Supreme Court into the Grand Jury investigation and the communication between the Supreme Court of New Jersey and the Deputy Attorney General conducting the Grand Jury investigation, the plaintiff herein is made to suffer great, immediate, substantial and irreparable harm in that he must attempt to defend criminal charges brought in a State in which there has been prejudicial collusion directly affecting plaintiff, whether intentional or inadvertent between the Judicial and Executive branches of the New Jersey State government. Plaintiff is being made to defend criminal charges which have been obtained, inter alia, as a result of that collusion, and the deprivation of plaintiff's constitutional rights by not too subtle cooperative coercion on the part of the defendants. Furthermore, in the event of his conviction upon any one of the charges presently pending against him, plaintiff's only recourse would be review by the State Courts and ultimately the New Jersey Supreme Court, which Court he has alleged has been involved in the prosecution of the charges against him.

At the injunction hearing Helfant presented the testimony of Patrick T. McGahn, one of his attorneys, and testified himself. Relevant testimony by Helfant is set forth in the margin. ³

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By oral opinion the district court denied preliminary injunctive relief on the ground that Younger v. Harris, supra, precluded federal intervention. It also dismissed the complaint for failure to state a claim for which relief can be granted. In the posture in which this case is before us, the district court has ruled only on the legal sufficiency of the complaint, pursuant to the Rule 12(b)(6) motion. 'Findings of fact . . . are unnecessary on decisions of motions under . . . (Rule) 12 . . ..' Rule 52(a), F.R.Civ.P. Although an evidentiary hearing on the injunction request was conducted, and the court made limited findings thereon, it did not find facts with respect to the merits of Helfant's 1983 claim. Thus, there have been no fact-findings on the crucial issue of whether Helfant's testimony before the grand jury was the product of his free and unconstrained will. Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Haynes v. Washington, 373 U.S. 503, 514, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).

'Since Chambers v. Florida, 309 U.S. 227 (60 S.Ct. 472, 84 L.Ed. 716), . . . (the Supreme) Court has recognized that corercion can be mental as well as physical . . ..' Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). 'When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal.' Watts v. Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801 (1949). The decision must be freely as well as rationally made. Blackburn v. Alabama, supra, 361 U.S. at 208, 80 S.Ct. 274.

III.

Because we are reviewing a Rule 12(b)(6) dismissal order, we must take as true Helfant's allegations that his testimony before the grand jury was not the product of a free and unconstrained will and that he is about to be tried on an indictment containing charges emanating from that coerced testimony.

Younger v. Harris, supra, 401 U.S. at 53, 91 S.Ct. at 755, holds that a federal court should not enjoin a pending state prosecution in the absence of a showing of bad faith, harassment or other 'extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.'

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Conover v. Montemuro, 477 F.2d 1073, 1080 (3d Cir. 1973); See, Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971). Neither the Supreme Court nor this court has considered what extraordinary circumstances will justify federal intervention in a pending state prosecution. But the predicate of Younger v. Harris is an assumption that defense of the pending state prosecution affords an adequate remedy at law for the vindication of the federal constitutional right at issue. Thus, invocation of the 'extraordinary circumstances' exception must bring into play the suggestion of an inability of the state forum to afford an adequate remedy at law.

By his complaint, plaintiff alleges that he was coerced by members of the State Supreme Court into relinquishing his Fifth Amendment right not to testify before the grand jury. He...