State of N. J. v. Chesimard, 77-1104

• Decision Date: 09 March 1977
• Docket Number: No. 77-1104,77-1104
• Citation: 555 F.2d 63
• Parties: STATE OF NEW JERSEY, v. CHESIMARD, Joanne D., (a/k/a) Assata Shakur, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 63

555 F.2d 63

STATE OF NEW JERSEY, v. CHESIMARD, Joanne D., (a/k/a) Assata Shakur, Appellant.

No. 77-1104.

United States Court of Appeals, Third Circuit.

Argued Jan. 25, 1977.

Reargued In Banc Feb. 18, 1977.

Decided March 9, 1977.

As Amended March 24 and 29, 1977.

William Kunstler, Lewis Meyers, Nat. Conference of Black Lawyers, New York City for appellant.

John W. Corwin Center for Constitutional Rights, New York City, Stephen M. Latimer, Rutgers University Law School Prison Law Clinic, Newark, N. J., Sa'ad El-Amin, World Community of Islam in the West, Chicago, Ill., Sanford M. Katz, Yasim Mosque, New York City, amici curiae in support of appellant.

C. Judson Hamlin, Middlesex County Prosecutor, William Welaj, Nicholas J. Stroumtsos, Jr., Asst. Prosecutors, New Brunswick, N. J., for appellee.

William F. Hyland, Atty. Gen. of N. J., Trenton, N. J., Daniel Louis Grossman Deputy Atty. Gen., Div. of Criminal Justice, Appellate Section, David S. Baime, John De Cicco, Deputy Attys. Gen., Princeton, N. J., amici curiae in support of appellee.

Before VAN DUSEN, MARIS and ADAMS, Circuit Judges.

Reargued in banc Feb. 18, 1977.

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

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The major question for decision is whether the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), as reiterated in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), bar a federal court from prohibiting sessions on Friday, the Islamic Sabbath of appellant, in a pending criminal trial in state court when available state procedures to remedy the alleged constitutional infringement have not been exhausted. Joanne D. Chesimard, the appellant in this court and the defendant in the state criminal proceedings, is a Sunni or Orthodox Muslim who observes Jumah or Jumuah (Friday) as her weekly holy day. She asserts her First Amendment right to free exercise of religion as the basis of her request for federal injunctive or declaratory relief prohibiting state officials from conducting proceedings on Friday in her trial. The district court denied the requested relief. Acting on appellant's motion for a stay of the district court's order and on appellee's petition for summary affirmance, a panel of this court granted appellant declaratory relief on her First Amendment free exercise contention. The full court vacated the panel's order and granted rehearing in banc. After additional briefing and oral argument before the court in banc, we grant appellee's motion for summary affirmance of the judgment of the district court. ¹ We do so on the basis of Huffman, supra, 420 U.S. at 609, 95 S.Ct. at 1211 which requires "that Younger standards must be met to justify federal intervention in a state judicial proceeding as to which a losing litigant has not exhausted his state appellate remedies."

I.

Indicted in New Jersey on two counts of murder, one count of armed robbery, one count of illegal possession of a weapon, and four counts of assault on two police officers, Joanne Chesimard filed numerous pre-trial motions in the state trial court. Concentrating our attention on the First Amendment claim, the account of the New Jersey proceedings discloses that on April 12, 1976, Judge Theodore Appelby, of the Superior Court of New Jersey, denied appellant's motion to recess court on Fridays during the trial in order to permit her to observe her Muslim Sabbath. Ms. Chesimard moved for leave to appeal the adverse decision to the Superior Court, Appellate Division. The Appellate Division denied her request.

New Jersey court rules explicitly permit a litigant to seek leave to appeal to its Supreme Court from an interlocutory order of the Appellate Division, "when necessary to prevent irreparable injury." New Jersey Court Rule 2:2-2(b). ² The essence of appellant's claim for federal injunctive or declaratory relief is that she will suffer irreparable injury. If this can be asserted in this court system, the same argument may be asserted in the New Jersey court system under N.J.Ct.R. 2:2-2(b) to obtain Supreme Court review of the Appellate Division's order. We therefore reject appellant's contention that by virtue of New Jersey Court Rule 2:2-5 ³ she had "no recourse whatsoever to the Supreme Court". Appellant's Supporting Memorandum at 4. We are instructed by the New Jersey Attorney General that "(e)ven at this late stage of the proceeding, the New Jersey Supreme Court may entertain a motion to proceed nunc pro tunc." Amicus Curiae Brief of New Jersey Attorney General at 5. The Attorney General argues that although there is generally a 15-day time limit on the filing of interlocutory appeals, see New Jersey Court Rules 2:4-1(c) ⁴ and 2:5-6(a), ⁵ any rule of court may be relaxed in the interest of justice under New Jersey Court Rule 1:1-2. ⁶

Given the nature of Ms. Chesimard's important and sensitive claim, we cannot characterize it as frivolous nor can we assume that the New Jersey Supreme Court would ignore it. The New Jersey Supreme Court is a distinguished tribunal which has been most solicitous of the First Amendment rights of members of the Muslim faith. For example, in Holden v. Board of Education of City of Elizabeth, 46 N.J. 281, 216 A.2d 387 (1966), the court held that Muslim school children who, for religious reasons, refuse to pledge allegiance to the American flag cannot be excluded from New Jersey's schools. The Court there recognized "a religion known as Islam (whose members) are taught that their sole allegiance is to Almighty God Allah. . . . Their religious teachings are based on the Quran, as interpreted to them by one Elijah Muhammad, whom they regarded as their leader and spiritual prophet." 216 A.2d at 389. Particularly in light of Holden, we cannot assume that the New Jersey Supreme Court would be unwilling to give appellant's important First Amendment claim priority consideration similar to that afforded by this court. ⁷

II.

The centerpiece of the Younger principle is the requirement that one seeking federal intervention in a pending criminal proceeding must show not merely the irreparable injury which is a normal prerequisite for an injunction, but also that the injury would be "great and immediate": "The threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution." 401 U.S. at 46, 91 S.Ct. at 751. The claim is made here that Ms. Chesimard's free exercise right could not be asserted as a defense to the criminal prosecution. But it is equally true that the right could not be raised in the absence of a criminal prosecution and that it has, in fact, been asserted as part of an ongoing criminal prosecution. Ms. Chesimard raised her free exercise claim by pre-trial motion in the state court. Although the state system provides for interlocutory review of the adverse ruling she received, Ms. Chesimard has chosen not to pursue her available state remedies to their fullest extent. Under these circumstances, we believe the federal hand must be stayed. Like the Huffman Court, "we do not believe that a State's judicial system would be fairly accorded the opportunity to resolve federal issues arising in its courts if a federal district court were permitted to substitute itself for the State appellate courts." Huffman v. Pursue, Ltd., supra, 420 U.S. at 609, 95 S.Ct. at 1211. Whether federal intervention would be justified in the absence of state procedures for interlocutory review, or upon affirmance by the state Supreme Court, is a question we need not decide because Huffman makes clear that irreparable injury cannot exist when available state procedures have not been exhausted.

Nor does the withholding of federal relief under these circumstances do violence to the traditional notion that exhaustion of state judicial remedies is ordinarily not a prerequisite to relief sought under 42 U.S.C. § 1983, as it is to relief sought under 28 U.S.C. § 2254, Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). "By requiring exhaustion of state appellate remedies for the purposes of applying Younger, we in no way undermine Monroe v. Pape, 365 U.S. 167 (81 S.Ct. 473, 5 L.Ed.2d 492) (1967). There we held that one seeking redress under 42 U.S.C. § 1983 for a deprivation of federal rights need not first initiate state proceedings based on related state causes of action. 365 U.S. at 183 (81 S.Ct. at 482). Monroe v. Pape had nothing to do with the problem presently before us, that of the deference to be accorded to state proceedings which already have been initiated and which afford a competent tribunal for the resolution of federal issues." Huffman v. Pursue, Ltd. supra, 420 U.S. at 609 n. 21, 95 S.Ct. at 1211.

III.

Although we affirm the district court on Younger principles because we find that Ms. Chesimard has not exhausted her state appellate remedies, it is necessary to discuss briefly the contention that Younger is not applicable to this case because of the peculiar nature of the relief sought. It is contended that the request for Friday recesses is a collateral matter, not related to the central guilt-determination process, and that such collateral matters are not within the Younger rationale. While we recognize this distinction, suggested in Conover v. Montemuro, 477 F.2d 1073, 1082 (3d Cir. 1973), and noted in Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 860, 43 L.Ed.2d 54 (1975), we are not persuaded that it commands a different result in the present posture of this case. The Gerstein Court's entire discussion of the point was as follows:

The District Court correctly held that respondent's claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions. Younger v. Harris, 401 U.S. 37 (91 S.Ct. 746, 27 L.Ed.2d 669) (197...