State of Wis. v. Schaffer, s. 76-2234 and 76-2235

• Decision Date: 03 November 1977
• Docket Number: Nos. 76-2234 and 76-2235,s. 76-2234 and 76-2235
• Citation: 565 F.2d 961
• Parties: STATE OF WISCONSIN, Plaintiff-Appellee, v. Kathleen SCHAFFER, Defendant-Appellee, Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 961

565 F.2d 961

STATE OF WISCONSIN, Plaintiff-Appellee, v. Kathleen SCHAFFER, Defendant-Appellee, Appellant.

Nos. 76-2234 and 76-2235.

United States Court of Appeals, Seventh Circuit.

Argued May 2, 1977.

Decided Nov. 3, 1977.

Stephen M. Glynn, James M. Shellow, Milwaukee, Wis., for defendant-appellant.

William J. Mulligan, U. S. Atty., John A. Nelson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, DUFFY, Senior Circuit Judge, and SWYGERT, Circuit Judge.

FAIRCHILD, Chief Judge.

The appellant, Kathleen Schaffer, was charged with first degree murder of William Weber and was tried for this offense in the Circuit Court for Milwaukee County, Wisconsin.

During the course of this trial Schaffer caused the circuit court to issue a subpoena duces tecum requiring William Mulligan, the United States Attorney for the Eastern District of Wisconsin, to produce certain documents, including the minutes of a federal grand jury relating to the Weber homicide. Having been served with the subpoena, the United States Attorney moved the circuit court to quash it as it related to the grand jury transcripts. The circuit court denied the motion and ordered the United States Attorney to produce the grand jury materials or show cause why he should not be held in contempt.

Mulligan promptly filed a petition for removal in the United States District Court. Although the petition was captioned State of Wisconsin v. Kathleen Schaffer, it is clear from the text that no attempt was being made to remove the criminal case against Schaffer, but only the proceeding directed at the United States Attorney to compel him to produce the grand jury minutes or show cause why he should not be held in contempt. The petition cited 28 U.S.C. § 1442, and, echoing its language, characterized the action to be removed as one civil in nature commenced in a state court against an officer of the United States for an act under color of such office or on account of a right or authority claimed under an Act of Congress. The removal was to embrace only the issue of the subpoena requiring the United States Attorney to produce grand jury minutes, and the copies of pleadings attached related only to that matter.

Hearings were had before the district court on November 26 and 30, 1976. On December 3, the district court entered an order, embodying the views announced by the court November 30. The court found that it had jurisdiction under 28 U.S.C. § 1442; that the removal related only to the issue of the circuit court order denying the motion to quash the subpoena and the order to show cause, and did not remove the state court murder trial. In its order the district court vacated the order for the production of grand jury minutes and order to show cause why the United States Attorney should not be held in contempt. Kathleen Schaffer appealed (No. 76-2234).

During the course of the hearings on the removed contempt matter, and in response to the suggestion of the court as to the proper procedure, counsel for Ms. Schaffer filed a petition under Rule 6(e), Fed.R.Crim.P., for the release of testimony before grand juries "relating to the death of William Weber, the activities of William Weber prior to his death and the transactions between such witnesses and William Weber." A further hearing was held December 1.

On December 3, 1976, the district court denied the petition, finding that petitioner had failed to show particularized need sufficient to overbalance the strong policy in favor of the secrecy of grand jury proceedings. The court declined to assume the burden of an in-camera inspection of the minutes identified by the United States Attorney to determine the presence of exculpatory material, although the court did ascertain that none of the persons identified by petitioner in connection with the State proceedings appeared before the grand jury. Ms. Schaffer appealed (No. 76-2235).

Her trial in state court proceeded, and resulted in her conviction and sentence to life imprisonment.

I. The Vacation of the Subpoena Contempt Order, Appeal No. 76-2234

Appellant does not argue the merits of the decision of the district court that the circuit court order requiring the United States Attorney to make disclosure or face contempt proceedings must be vacated. We think it clear that a court may not compel such disclosure in violation of the obligation of secrecy imposed by Rule 6(e), and that if the merits be reached, the order of the district court was correct.

Appellant challenges the jurisdiction of the district court to decide the merits for the reason that the removal petition was legally insufficient to bring the subpoena contempt matter before the court.

She contends that the state court's order to show cause did not commence a removable "civil action" or "criminal prosecution" within the removal statute, that no independent action was initiated against the United States Attorney, and, therefore, no removable action existed. The appellant argues that the proceeding involving the United States Attorney was merely ancillary to the trial of the criminal case, and an exercise of the inherent power of a court to secure compliance with its subpoena.

28 U.S.C. § 1442(a) provides that "A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court . . . ." Subparagraph (1) includes among these persons "Any officer of the United States, . . . for any act under color of such office . . . ." None of the parties questions the fact that Mr. Mulligan qualified as an officer acting under color of his office. This case was removable, therefore, if the proceeding against him can be characterized as a civil action or criminal prosecution for the purpose of § 1442(a).

The appellant argues that the order to show cause did not initiate an action against Mr. Mulligan. However, by statute a trial judge is empowered to commence contempt proceedings and use an order to show cause as the notice of process. Wis.Stat. §§ 295.01, 295.03(1) (1976). Although the court was not informed of the United States Attorney's refusal to comply with the subpoena by verified petition, as required by § 295.03, the court was made aware of the non-compliance by Mr. Mulligan's own motion to quash the subpoena. The subsequent denial of Mulligan's motion and the issuing of an order to show cause sufficiently commenced the contempt proceeding against Mulligan.

We think the language "civil action or criminal prosecution" should be broadly construed in the light of the purpose of the subsection, and find ourselves in agreement with the statements of the Fourth Circuit in State of North Carolina v. Carr, 386 F.2d 129, 131 (4th Cir. 1967):

The issue is whether or not the contempt proceedings constituted a 'civil action or criminal prosecution commenced in a State court' within the meaning of 28 U.S.C. § 1442(a). The District Court classified the present proceeding as 'criminal.' The Government argues that it was 'civil.' The State urges that it was neither, but rather 'sui generis.' Accordingly, the State says, it was not either a 'civil action' or 'criminal prosecution' within the meaning of the removal statute. We think it unfruitful to quibble over the label affixed to this contempt action. Regardless of whether it is called civil, criminal, or sui generis, it clearly falls within the language and intent of the statute.

To repeat, the central and grave concern of the statute is that a Federal officer or agent shall not be forced to answer for conduct assertedly within his duties in any but a Federal forum. Thus the statute looks to the substance rather than the form of the state proceeding; this is the reason for the breadth of its language. Accordingly, the applicability of the statute to the present case is perfectly apparent. By citing Carr for contempt, the State Court attempted to subject him to incarceration until such time as he complied with the Court's order and thus disobeyed the directive of his superior officers. A statute designed to permit Federal officers to perform their duties without State interference clearly applies to such a situation, regardless of the label the State chooses to affix to its action.

We conclude that the proceeding here, although ancillary to the murder trial, constituted a sufficient separate action against Mr. Mulligan for an act in his official capacity as United States Attorney. The resultant case, whether deemed criminal or civil in nature, placed Mulligan in jeopardy for his refusal, based on his official duty, to comply with a state court order. He was required to defend his actions and face the consequences of his disobedience. Whatever the docketed title of this case, it represented a distinct action against Mulligan, commenced by the order to show cause. Clearly the petition did not seek removal of the entire state murder prosecution. The issue in the proceeding against Mulligan was, in our opinion, distinct and separable from the charge against Kathleen Schaffer, and, as such, validly removed without also removing the murder case. United States v. Penney, 320 F.Supp. 1396, 1397 (D.C.1970).

The purpose of the removal statute is to insure a federal forum for cases where federal officials must raise defenses arising out of their official duties. Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). Mr. Mulligan's refusal to comply with the subpoena was based on the proposition that he could not disclose the requested material without violating Rule 6(e) of the Federal Rules of Criminal Procedure. This rule prohibits his disclosure of grand jury transcripts unless done in the performance of his duties or unless directed by the district court. His defense to the charge of contempt thus was based on his duty under federal law. The removal statute is clearly broad enough " . . . to cover all cases where...