Edwin H. Helfant v. George F. Kugler, Attorney General of The State of New Jersey, 500 F.2d 1188, 3rd Cir. (1974)
Edwin H. Helfant v. George F. Kugler, Attorney General of The State of New Jersey, 500 F.2d 1188, 3rd Cir. (1974)
2d 1188
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
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.
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 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.
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).
10
'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.
11
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.
12
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.' 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
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 asserts that he then did testify, and that, as a result, he
was indicted because of his allegedly coerced testimony. Helfant also avers that
a New Jersey trial court has declined his motions to dismiss indictments
emanating therefrom, on the ground that they were based on his coerced
testimony. See, e.g., United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38
L.Ed.2d 561 (1974).
14
Under the unusual circumstances of this case, can it be said that the appellant
may not vindicate his constitutional rights by a defense in 'a single criminal
prosecution'? Otherwise stated, do the administrative powers of the New Jersey
Supreme Court, in the factual complex giving rise to appellant's constitutional
claims, threaten his opportunity for the vindication of his federal rights in the
New Jersey state court system? Thus our analysis requires an examination of
the 'power parameters' of the New Jersey Supreme Court.
IV.
15
The New Jersey Constitution provides: 'The Chief Justice of the Supreme Court
shall be the administrative head of all the courts in the State.' Article VI, 7, Par.
1. 'The Chief Justice of the Supreme Court shall assign Judges of the Superior
Court to the Divisions and Parts of the Superior Court, and may from time to
time transfer Judges from one assignment to another, as need appears.
Assignments to the Appellate Division shall be for terms fixed by Rules of the
Supreme Court.' Article VI, 7, Par. 2.
16
'Thus this court is charged with responsibility for the overall performance of
the judicial branch. Responsibility for a result implies power reasonably
necessary to achieve it. More specifically, the power to make rules imports the
power to enforce them.' In re Mattera, 34 M.J. 259, 168 A.,2d 38, 45 (1961).
17
administration of all courts in the State.' State v. De Stasio, 49 N.J. 247, 253,
229 A.2d 636, 639, cert. den. 389 U.S. 830, 88 S.Ct. 96, 19 L.Ed.2d 89 (1967).
See in re Mattera, 34 N.J. 259, 271-272, 168 A.2d 38 (1961). See also
N.J.Const., Art. XI, IV, par. 5; cf. N.J.Const., Art. VI, VII, par. 1. Additionally,
compare Kagan v. Caroselli, 30 N.J. 371, 379, 153 A.2d 17, 21 (1959), wherein
the court observed that 'the Constitution places the administrative control of the
municipal court in the Supreme Court and the Chief Justice. Art. VI, 2, par. 3;
Art. VI, 7, par. 1. There is no room for divided authority.'
18
'The intent of the 1947 Constitutional Convention was to vest the Supreme
Court with the broadest possible administrative authority. Conceptually, such
authority encompasses all facets of the internal management of our courts. Cf.
Mattera, supra, 34 N.J. at 272, 168 A.2d 38. This was made clear by the
Committee on the Judiciary which considered it a fundamental requirement that
the courts be vested with 'exclusive authority over administration.' 2
Proceedings of the Constitutional Convention of 1947, at 1180, 1183.' Lichter
v. County of Monmouth, 114 N.J.Super. 343, 276 A.2d 382, 385-86 (1971).
19
Thus, it becomes readily apparent that the Supreme Court of New Jersey is
more than an appellate court. Its 'constitutional administrative power is absolute
and unqualified.' The Chief Justice 'may from time to time transfer Judges from
one assignment to another.' The Supreme Court may assign judges to the
Appellate Division for terms fixed by its own rules. The Supreme Court is
vested with formidable supervisory and administrative power extending not
only to the trial court level but to the Appellate Division as well.
20
Given the posture of this case, requiring that we assume that the allegations
charging coercion by the Supreme Court are true, the next question appears to
be whether the appellant may vindicate his constitutional rights in this case in a
state court system which functions under the 'absolute and unqualified'
administrative power of its highest court.
V.
21
Supreme Court, 28 U.S.C. 1257(3), and if given a custodial sentence, will have
the additional right to apply to a federal forum for federal habeas corpus relief,
28 U.S.C. 2254.
22
23
We have not been directed to, nor has our research disclosed, any procedure by
which this factual determination may be made by a jury. In New Jersey
criminal law procedures, as is the case in federal practice, ultimate facts found
by criminal court juries are merely verdicts of guilty or not guilty. The factual
determination of the 'free and unconstrained will' question within the state
system will be made by a New Jersey state judge, a state judge subject to the
'absolute and unqualified' administrative power of the Supreme Court, whose
findings are presumably reviewable by an Appellate Division, assignment to
which shall be by terms fixed by the rules of the Supreme Court, with a
possibility of ultimate review by the New Jersey Supreme Court itself.4 Thus,
the New Jersey state court system would play an important role in both the
factfinding process and the review thereof, although upon acceptance of
certiorari, 'it is . . . (the U.S. Supreme Court's) duty . . . to examine the entire
record and make an independent determination of the ultimate issue of
voluntariness.' Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761,
1764, 16 L.Ed.2d 895 (1966).
24
A litigant has come into a federal court asking for vindication of a federal
constitutional right which is critically dependent upon a finding arising out of
circumstances in which six of seven members of the New Jersey Supreme
Court as then constituted are alleged to be directly involved. If denied federal
relief, appellant will be restricted to a judicial procedure in which the resolution
or modification of factual determinations would be committed to a court system
under the administrative supervision of the participants in the factual complex.
This presents an extremely awkward position.
VI.
25
26
In the sensitive and delicate area of federal-state relations, where the power of
government is divided between a federation and its member states, there is no
constitutional barrier, and since Mitchum v. Foster, supra, no absolute
Congressional barrier, to federal court intervention in state criminal
proceedings.
27
'The power reserved to the states under the Constitution to provide for the
determination of controversies in their courts may be restricted by federal
district courts only in obedience to Congressional legislation in conformity to
the judicial Article of the Constitution. Congress, by its legislation, has adopted
the policy, with certain well-defined statutory exceptions, of leaving generally
to the state courts the trial of criminal cases arising under state laws, subject to
review by this Court of any federal questions involved.' Douglas v. City of
Jeannette, 319 U.S. 157, 162-163, 63 S.Ct. 877, 880-881, 87 L.Ed. 1324 (1943).
28
In Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138
(1951), Mr. Justice Frankfurter emphasized that this policy of federal court
restraint is based on 'the special delicacy of the adjustment to be preserved
between federal equitable power and State administration of its own law . . ..'
'Regardless of differences in particular cases, however, the Court's lodestar of
adjudication has been that the statute (Civil Rights Act) 'should be construed so
as to respect the proper balance between the States and the federal government
in law enforcement.' Screws v. United States, 325 U.S. 91, 108, (65 S.Ct. 1031,
89 L.Ed. 1495).' Ibid., at 121, 72 S.Ct. at 121.5
29
Mr. Justice Black would emphasize in Younger v. Harris, supra, 401 U.S. at 44,
91 S.Ct. at 750: 'This underlying reason for restraining courts of equity from
interfering with criminal prosecutions is reinforced by an even more vital
consideration, the notion of 'comity,' that is, a proper respect for state functions,
a recognition of the fact that the entire country is made up of a Union of
separate state governments, and a continuance of the belief that the National
Government will fare best if the States and their institutions are left free to
perform their separate functions in their separate ways. This, perhaps for lack of
a better and clearer way to describe it, is referred to by many as 'Our
Federalism,' and one familiar with the profound debates that ushered our
Federal Constitution into existence is bound to respect those who remain loyal
to the ideals and dreams of 'Our Federalism.' The concept does not mean blind
deference to 'States' Rights' any more than it means centralization of control
over every important issue in our National Government and its courts. The
Framers rejected both these courses. What the concept does represent is a
system in which there is sensitivity to the legitimate interests of both State and
National Governments, and in which the National Government, anxious though
it may be to vindicate and protect federal rights and federal interests, always
endeavors to do so in ways that will not unduly interfere with the legitimate
activities of the States.'
30
31
at 755. We have not been persuaded that Helfant will be precluded from
asserting constitutional rights in his defense of a single criminal proceeding.
Younger v. Harris, supra.
32
33
34
Since Helfant has a statutory right to have a claim for declaratory relief
adjudicated in the federal courts, and will be denied the opportunity to be heard
only if there is a threat to the delicate structure of comity between the federal
and state systems, our next task is to examine the effect of limited federal
factfinding under these highly sensitive circumstances.
35
Judges in a free society regard even the appearance of a biased decision as more
harmful than a result they personally disapprove. Lord Herschell's remark to Sir
George Jessel comes to mind: 'Important as it was that people should get
justice, it was even more important that they should be made to feel and see
that they are getting it.'6
36
37
Such limited use of authorized power will free the New Jersey court system of
any suggestion that a fact-finding on the voluntariness issue by a trial judge in
this case would be influenced, consciously or unconsciously, by the 'brooding
omnipresence' of the New Jersey Supreme Court. At the same time if the case
proceeds to a state appellate level, judges of the reviewing courts will be able to
adjudicate any federal constitutional questions with maximum freedom.
Moreover, if the case should proceed to the New Jersey Supreme Court, that
court will not be placed in an untenable situation of being a court of review as
to findings of facts in which they are allegedly participants.
38
We are persuaded that there will be total 'sensitivity to the legitimate interests
of both State and National Governments, and in which the National
Government, anxious though it may be to vindicate and protect federal rights
and federal interests, always endeavors to do so in ways that will not unduly
interfere with the legitimate activities of the States.' Younger v. Harris, supra,
401 U.S. at 44, 91 S.Ct. at 751. Thus, by a federal resolution of this limited
issue, the factual predicate of the appellant's federal claim will be resolved in
the federal forum and, at the same time, the state will be completely free to
proceed with the state prosecution and therein to vindicate appellant's
constitutional rights.
39
Such limited declaratory relief does not have the force of an injunction,
Younger v. Harris, or a declaratory judgment couched in such terms as would
have 'virtually the same practical impact as a formal injunction would.' Samuels
v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971). The use
of the declaratory judgment here fits in precisely with the exception articulated
by Mr. Justice Black in Samuels v. Mackell, 401 U.S. at 73, 91 S.Ct. at 768:
'There may be unusual circumstances in which an injunction might be withheld
because, despite a plaintiff's strong claim for relief under the established
standards, the injunctive remedy seemed particularly intrusive or offensive; in
such a situation, a declaratory judgment might be appropriate and might not be
contrary to the basic equitable doctrines governing the availability of relief.'
40
We are quick to recognize that it may be contended that even such limited
federal intervention in a state criminal proceeding would set an unwholesome
precedent. Because of the high incidence of judicial fact-finding in pretrial
hearings ancillary to state prosecutions, it can be envisioned that wholesale
resort to this technique would be attempted. We are persuaded that any
precedential value to our holding is miniscule. The factors which prompt our
decision also limit its precedential value. First, perforce, the operative facts are
limited to the State of New Jersey, where its constitution vests in the Chief
Justice and the state's highest court the total and complete administrative
control over judges of the trial level and appellate division. Second, this case
alleged involvement by the Supreme Court with a municipal court judge, who
allegedly was the target of state grand jury proceedings and who was
summoned to appear before the Supreme Court minutes prior to a scheduled
grand jury appearance. Third, it is alleged that prior to such appearance before
the state's highest court, Helfant had resolved to invoke the Fifth Amendment
before the grand jury and that questioning by the Supreme Court appearance so
unnerved him that he was unable to exercise a totally free will. Absent presence
of these factors we see no future case receiving much precedential nourishment
from the decision we reach today.7
41
Accordingly, the order dismissing the complaint will be reversed. The order
denying the motion for a preliminary injunction will be vacated and the case
will be remanded to the district court for the entry of an order temporarily
enjoining the trial of Indictment No. SGJ-10-72-10 in the New Jersey courts
until completion of the proceeding in the district court,8 unless the State of New
Jersey stipulates to a postponement thereof. The district court proceeding shall
be limited to a determination of whether Helfant's testimony before the state
grand jury on November 8, 1972, was the product of a free and unconstrained
will. It shall issue a declaratory judgment setting forth its conclusions. We
direct that the trial be commenced forthwith, and that the district court shall
make findings of fact and conclusions of law within thirty days from the
issuance of the mandate of this court. The mandate of this court shall issue
forthwith.
42
43
The majority, while conceding that this case presents 'a delicate question of
federal-state comity,' resolves that question by sanctioning federal interference
in an ongoing state criminal proceeding. Warrant for this interference is
purportedly found in the 'extraordinary circumstances' exception to the antiinjunctive strictures of Younger v. Harris.1 I conclude that this case, unusual as
its facts may be, provides no occasion for casting aside the interwoven precepts
of federalism and equitable jurisdiction that combine to make up the Younger
doctrine of non-intrusion. Accordingly, I dissent.
44
The majority's exposition of the rule of Younger is fair: a federal court may not
interfere in an ongoing state criminal proceeding2 absent a showing of
prosecutorial bad faith or harassment, or other 'extraordinary circumstances.' It
is conceded that neither bad faith nor harassment are present in Helfant's
prosecution.3 Rather, the majority holds that the alleged involvement of the
New Jersey Supreme Court in Helfant's prosecution embodies an 'extraordinary'
situation.
45
What the majority appears to overlook is that Younger, while setting out an
nucleus of rules, did more. It expressed a spirit. Though some of the historical
antecedents of the Younger decision undoubtedly extend further,4 the first
formal expression of the Younger spirit in federal law came in 1793, when
Congress imposed an absolute ban on federal injunctions issued 'to stay
proceedings in any court of a state.'5 Two apparent motives behind the statutory
inhibition of the 1793 Act were to prevent encroachments by federal courts
upon the then well-established state-court domain, and to cidify the prevailing
prejudices against extensions of equity jurisdiction and power.6 One hundred
and fifty years later the theme was repeated in Oklahome Packing Co. v.
Oklahoma Gas & Electric Co.7 There the anti-injunction statute was viewed as
necessary, in part, to 'prevent needless friction between state and federal
courts.'8 And only this term the Supreme Court reiterated its sensitivity 'to
principles of equity, comity, and federalism.'9
46
Of course, the Supreme Court has recently acknowledged that section 1983,
under which Helfant's suit has been brought, is a specific exception to the
absolute interdiction of the anti-injunction statute.10 Nonetheless, section 2283
expresses a 'long standing public policy'11 against federal interference in state
proceedings. The emanations from that policy must thus be heeded even in a
1983 suit.11A Accordingly, the same considerations that underlay the 1793 Act
and its successors-- a respect for state sovereignty and 'basic doctrine(s) of
equity' which 'restrain . . . equity jurisdiction within narrow limits'12 -- have
been imported into our civil rights jurisprudence.
47
48
A. 'Comity'
49
The concept of comity, though often invoked, tends to elude precise definition.
'a proper respect for state functions, a recognition of the fact that the entire
country is made up of a Union of separate state governments, and a continuance
of the belief that the National Government will fare best if the States and their
institutions are left free to perform their separate functions in their separate
ways.'15
51
52
While avowing its recognition of this notion of respect for state functions, the
majority concludes that the presumption in favor of the state criminal justice
system is punctured and deflated by the circumstances of this case. The
majority's view distills to this: because the New Jersey Supreme Court
exercises rather plenary 'administrative power' over the lower state courts, and
because certain of the Justices of the New Jersey Supreme Court itself were the
alleged instrument of Helfant's 'coercion,' there is likelihood of partiality on the
part of the state trial court that would, ordinarily, resolve the factual questions
embodied in Helfant's Fifth Amendment claim.18
53
The erection and entertainment by this Court of the foregoing scenario, and its
use as a justification for interfering in a state criminal proceeding, appears to me
to be squarely in the teeth of the spirit of comity expressed in Younger. The
scenario presumes, for example, that the state trial judges act with a constant
eye on the New Jersey Supreme Court, seeking not to apply the law fairly but to
preserve or advance their own interests by a devious, obsequious sycophancy. It
seems to postulate, further, that the New Jersey Supreme Court itself might be
so venal and vindictive as to mete out some administrative 'punishment' in the
event that a trial court determined that Helfant had been 'coerced.' Finally, the
majority's view overlooks what is the case in the federal system as well as in
the states-- that courts are sometimes asked to resolve controversies in which a
party holds some power to affect adversely the very judges who are deciding
the dispute.19 In such instances, there is not imputed to the federal courts a hint
of partiality. 'Mutual respect among equals'-- the generic definition of 'comity'-would seem to demand, then, that no such imputation be made concerning the
state courts either.
54
The majority, perhaps in recognition of the narsh light in which their decision
might seem to cast the New Jersey courts, try to meliorate the implications of
their opinion by speaking in terms of the mere 'appearance' of a less than
impartial state court process.
55
In sum, the majority's assertion that the possible 'appearance of a biased (state)
decision' warrants federal intrusion smacks of the federal high-handedness that
section 2283 and Younger were fashioned to prevent. In my view, the spirit of
comity, properly conceived and applied, would be reason enough to reject
Helfant's plea for federal relief at this stage of the controversy.20
B. 'Great and Immediate' Harm
56
57
The majority, having correctly determined that there is no basis in law for an
outright injunction against Helfant's prosecution, concludes that if the facts are
as Helfant alleges, declaratory relief should issue to the effect that the 'coerced'
testimony may not be introduced at Helfant's trial. The edict thus fashioned by
the majority is bottomed on what is, at best, mere speculation that the state will
in fact attempt to introduce against Helfant the testimony elicited from him at
the grand jury hearing. At oral argument, counsel for the state represented to
this Court that Helfant's grand jury testimony will be used, if every, only to
impeach any inconsistent statements Helfant might utter should he take the
witness stand.23 The 'harm' that the majority's decision seeks to avert is thus
conjectural, depending for its very existence upon events that may never occur.
Consequently, the majority's result tends to ignore or flout the 'great and
immediate' requirement.
58
Another point should be mentioned briefly here. Helfant was indicted for three
'substantive' offenses,24 as well as for false swearing before the grand jury.
Insofar as the false swearing counts are concerned, it would appear that
Helfant's grand jury testimony will be admissible in evidence in any event, even
if it should be determined that that testimony was 'coerced.' The Supreme will
be used, if ever, only to impeach that the Fifth Amendment does not confer
upon a witness the privilege to lie while under oath.25 Thus, though 'coerced'
testimony may not be used to establish Helfant's commission of 'substantive'
offenses, it would appear that the state may use it to prove that he swore falsely.
59
The majority's disregard of the 'great and immediate' limitation thus emerges in
sharp focus. There is no reasonable assurance that Helfant's grand jury
utterances will ever be introduced at trial of the substantive counts, and there is
a positive indication that Helfant can suffer no unconstitutional harm at all by
introduction of his testimony at trial of the false swearing counts. The equitable
doctrine that harm must be imminent before an injunction will issue against a
state criminal proceeding-- a precept whose substance is an integral part of the
doctrine of federal nonintrusion-- is, therefore, disregarded by the result the
majority reaches.25A
60
61
Among the central limiting principles of equity jurisprudence is the maxim that
equity will act only when there is no adequate remedy at law. 26 This notion,
too, has its roots in the historical bifurcation-- and the resultant conflict-between courts of law and of equity.27 The requirement that a plaintiff show
'irreparable injury' before an injunction will issue is but an alternative statement
of the 'adequate remedy' rule.
62
63
Even prior to Younger the Supreme Court had explained, in forceful language,
why challenges to certain types of unconstitutionality would not ordinarily
support federal interruption of a state criminal trial. First, the state criminal
process is presumed to be an 'adequate' channel for vindicating federal rights.
Second, if federal relief were granted in the midst of a state criminal
proceeding,
65
'every question of procedural due process of law-- with its far flung and
undefined range-- would invite a flanking movement against the system of State
courts by resort to the federal forum . . . to determine the issue. Asserted
unconstitutionality in the impanelling and selection of the grand and petit juries,
in the failure to appoint counsel, in the admission of a confession, in the
creation of an unfair trial atmosphere, in the misconduct of the trial court-- all
would provide ready opportunities . . . to subvert the orderly, effective
prosecution of local crime in local courts.'29
66
67
68
sort of 'federal fact finding' adverted to by the majority. Yet, this alternative
remedy-- habeas corpus-- would not cause so severe a wrench to federal-state
relations as the one advanced by the majority. Should Helfant lose his Fifth
Amendment claims in the state courts and receive a custodial sentence,31 he
may seek a writ of habeas corpus. The habeas statute would appear to require
full federal fact finding on Helfant's 'coercion' claim,32 given the circumstances
Helfant alleges.
69
70
D. 'Extraordinary Circumstances'
71
72
73
74
75
joined by two other members of the Court, offered a reading of Younger that
seems to leave no room for any extraordinary circumstances exception:
76
'To meet the Younger test the federal plaintiff must show manifest bad faith
and injury that is great, immediate, and irreparable, constituting harassment of
the plaintiff in the exercise of his constitutional rights, and resulting in a
deprivation of meaningful access to the state courts.'39
77
While it cannot be said that these statements affirmatively establish that there is
no 'extraordinary circumstances' exception, they do indicate that uncertainty
exists concerning what circumstances, if any, will warrant federal intrusion
under that circumscribed exception. Absent a clear benchmark to guide us in
identifying 'extraordinary circumstances,' we should hew closely to the
concepts of equitable restraint and comity, concepts which, after all, Younger
was designed to preserve, protect and perpetuate.
E. Practical Considerations
78
Thus far, I have sought to point out how historical and doctrinal considerations
weigh against a federal incursion into the midst of Helfant's state prosecution.
But more is called for in this case than 'a merely doctrinaire alertness to protect
the proper sphere of the States in enforcing their criminal law.'40 A glance at
pragmatics and at the realities of time and cost emphasize how damaging to
federal-state relations the majority's decision may prove.
79
Helfant was first subpoenaed to appear before the state grand jury in October of
1972. On January 17, 1973, an indictment was returned, charging Helfant with
the commission of crimes that occurred as early as 1968. It has now been more
than a year-and-a-half since New Jersey has been thwarted from proceeding
with the prosecution because of the federal intervention sought by Helfant.
During that time, a critical witness has died and the administration of the
prosecutor's office has changed. The prospect now is for further delay, since
'fact finding' has been ordered in the district court, and because there is the
possibility of another appeal to this Court from the fact finding proceeding. It
is, therefore, not unlikely that a two-year suspension in the state prosecution
will result. A delay of such duration in a state criminal proceeding, sanctioned
by a federal court, and predicated solely on a challenge to the admissibility of
evidence-- evidence that may never be offered-- would certainly seem to be an
'insupportable disruption.'41 This is particularly true in these times when special
efforts are being made to expedite criminal proceedings. 42
80
Looming large among the doctrinal premises of Younger, of section 2283, and
of the recent proliferation of commentary justifiably decrying the 'denigration
of state courts,'43 is the idea that, for our federal system to function as it ought,
the states must be accorded a full measure of dignity, respect and confidence.
When a federal court, on the occasion of a criminal defendant's objection to
evidence, imposes a substantial impediment upon a state criminal trial, little is
done to enhance the prestige of either court, state or federal.
81
What is at stake in this case is the need to strike a balance between the regimen
of non-intrusion on the one hand, and a citizen's right to federal disposition of
his federal claims on the other. The two are not irreconcilable. Helfant, under
the view expressed in this dissent, could have his day in federal court by
certiorari or by habeas. And, of course, by declining to permit federal
interference now we would save to the state its sovereign prerogative to try an
accused without delay. The majority's solution of the problem, however,
disrupts and disdains the state process for no other reason than to assure
Helfant of an immediate federal forum for a factual claim that may never ripen
into controversy. Comity thus suffers, not in the interest of preserving intact the
right to be heard in federal court, but solely as a guarantee that that right be
vindicated instanter.
82
For all of the reasons set forth, I dissent, and would affirm the judgment of the
district court.
83
the appearance of the defendant before the grand jury on November 8, 1972.
2
Q. What was your intention with regard to appearing and testifying before the
State Grand Jury on that date before you arrived at Trenton?
A. Well actually I had no intention, Mr. Perskie, because Mr. Sullivan had said
something about immunity and I had already invoked the Fifth Amendment and
I didn't intend to testify about anything. I asked you in the car what are they
going to give me immunity for?
Q. Were they sitting in their robes?
A. Yes, sir, I think they were; yes, sir.
he asked me who had purchased the liquor for the Bar Mitzvah, whether Mrs.
Schusterman was there and whether I had purchased any other gifts for Judge
Rauffenbart. He asked if formal invitations were sent out. It was basically
things pertaining to Abe Schusterman who I had known had testified on the
25th of October, one week before.
Q. Now was there any file in the presence of the Chief Justice?
A. There was a file in front of the Chief Justice, Mr. Perskie, but it was closed
and it was with the same brown folder that was submitted to you by Mr.
Hayden in your request with the clasp on the top of it. I don't absolutely recall
Mr. Perskie, everything that went on in front of the Supreme Court.
Q. How long would you say you were totally, the total time you were before the
Court?
A. It wasn't longer than ten or twelve minutes, Mr. Perskie.
Q. And when you came out-A. Well, there was one other question the Chief asked me and I think it was the
tone, when he said, what do you intend to do today?
Q. And what did you him?
A. I said, Mr. Chief Justice, I am going to testify.
N.T. 22-26.
4
The New Jersey Supreme Court has set forth in detail the scope of appellate
review of facts found by a trial judge: 'There can be no doubt of the power of
the appellate tribunals of this State . . . to review the fact determinations of a
trial court in all cases heard without a jury and to make new or amended
findings. * * * The aim of . . . review . . . is . . . to determine whether the
findings could reasonably have been reached on sufficient credible evidence
present in the record. * * * But if the appellate tribunal is thoroughly satisfied
that the finding is clearly a mistaken one and so plainly unwarranted that the
interests of justice demand intervention and correction . . . then, and only then,
it should appraise the record as if it were deciding the matter at inception and
make its own findings and conclusions.' State v. Johnson, 42 N.J. 146, 199
A.2d 809, 816-818 (1964). See also, State v. Yough, 49 N.J. 587, 231 A.2d
598, 602 (1967); State v. Daly, 126 N.J.Super. 313, 314 A.2d 371, 373 (1973).
The Supreme Court, in reviewing the decision of the Appellate Division, may
itself deem it appropriate to conduct a de novo review. State v. Johnson, supra,
'Mr. Justice Holmes dealt with this problem in a situation especially appealing:
'The relation of the United States and the Courts of the United States to the
States and the Courts of the States is a very delicate matter that has occupied
the thoughts of statesmen and judges for a hundred years and cannot be
disposed of by a summary statement that justice requires me to cut red tape and
intervene.' Memorandum of Mr. Justice Holmes in V. Sacco/Vanzetti Case,
Transcript of the Record (Henry Holt & Co., 1929) 5516.' Ibid., 342 U.S. at
124-25, 72 S.Ct. at 122
There was some suggestion that this court should construe the New Jersey
public employee immunity statute, N.J.S.A. 2A:81-17.-2a2 in the context of
Helfant's grand jury appearance. The litigants agree that this statute is not
applicable since Helfant's presence before the grand jury was not associated
with his role as a municipal court judge, but as a private attorney
'A court of the United States may . . . grant an injunction to stay proceedings in
a State court . . . where necessary in aid of its jurisdiction 28 U.S.C. 2283
The term 'anti-injunctive' is, of course, shorthand for the notion that any federal
interference in ongoing state criminal proceedings, be it by injunction,
declaratory judgment, or otherwise, is to be disfavored. See Samuels v.
Mackell, 402 U.S. 66, 91 S.Ct. 764, 27 L.Ed. 688 (1971)
Compare Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505
(Mar. 19, 1974)
For example, the conflict between law and equity, particularly as embodied in
the practice of equity of enjoining proceedings at law, extends back at least into
the seventeenth century. See O. Fiss, Injunctions 12 (1972). Justice Frankfurter,
speaking more particularly, stated 'the maxim that equity will not enjoin a
criminal prosecution summarizes centuries of weighty experience in AngloAmerican law.' Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96
L.Ed. 138 (1951)
1 Stat. 335, the forebear of 28 U.S.C. 2283. See Note, Anti-Suit Injunctions
Between State and Federal Courts, 32 U.Chi.L.Rev. 471, 480 (1965). The
statutory ban is today subject to several clearly delineated exceptions. See
Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)
6
See C. Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345, 347
(1930); Toucey v. N.Y. Life Ins. Co., 314 U.S. 118, 131, 62 S.Ct. 139, 86 L.Ed.
100 (1941)
309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 447 (1940)
10
See Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)
11
Younger v. Harris, 401 U.S. 37, 43, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971);
Mitchum v. Foster, supra, 407 U.S. at 230, 92 S.Ct. 2151
11A See O'Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 38 L.Ed.2d 674
(1974); Mitchum v. Foster, supra, 407 U.S. at 243, 92 S.Ct. 2151.
12
13
It must be noted that the Supreme Court, in Younger, emphasized that the antiintrusive spirit adumbrated there was not a departure from the Court's prior
decisions. See, e.g., Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed.
927 (1926); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed.
1324 (1943); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d
22 (1965)
14
Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971)
15
16
See Railroad Comm'n v. Pullman, 312 U.S. searched Baker's person upon his
arrest See also Aldisert, Judicial Expansion of Federal Jurisdiction, 1973
Ariz.St.U.L.J. 557, 572 (1973). lying unconscious on the floor of Thibodaux,
360 U.S. 25, 30, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959)
18
Of the Justices that were on the New Jersey State Supreme Court at the time of
the incident referred to in Helfant's complaint, only four remain as members of
the Court, and more specifically the Chief Justice, who exercises the
To cite an obvious example, federal courts quite often assess the constitutional
validity of Congressional legislation. Congressmen, of course, may grant or
withhold a salary increase to federal judges at any time. There thus exists
something of an economic motivation for a federal judge to be less than
impartial in reviewing federal legislation. Yet I do not think the probity of a
federal court decision may be properly questioned on such bases
20
Only recently, a three-judge federal district court sitting in New Jersey rejected
the notion that the New Jersey state courts are incapable of fairly adjudicating
issues implicating their own state Supreme Court. In American Trial Lawyers
Ass'n v. New Jersey Supreme Court, No. 64-72 (D.N.J., June 20, 1972), where
there was attacked by a bar association a rule promulgated by the New Jersey
Supreme Court setting forth the ground rules for contingent fees, the district
court in rejecting the complaint stated:
'Rather (plaintiffs) emphasize that by leaving (their claims) to the state courts
they ultimately must have their cause decided by the same body which took the
action they attack. Admittedly, this is so. Nevertheless, we cannot conclude
that the state courts will listen with deaf ears to plaintiffs' challenge simply
because plaintiffs attack the rulemaking authority of the State Supreme Court.'
21
Younger v. Harris, supra, 401 U.S. at 46, 91 S.Ct. 746; Fenner v. Boykin,
supra, 271 U.S. at 243, 46 S.Ct. 492
22
Fletcher v. Bealey, 28 Ch. 688 (1885). See Story, Equity Jurisprudence 377
(1919)
23
The colloquy at oral argument between the Court and counsel for New Jersey
was as follows:
Judge Aldisert: Is the state representing to this federal court that it does not
intend to and will not use the testimony elicited from the plaintiff at the grand
jury proceeding?
A. At this time there is no present intention of using that testimony. But were
the appellant to take the stand, were his testimony to deviate in strong terms,
that testimony then, of course, under Harris v. New York, might well be . . ..
Judge Aldisert: . . . Now we do not have as strong a position that I thought we
had a minute ago.
Judge Aldisert: The question now comes if the plaintiff is not entitled to federal
The three 'substantive' state offenses with which Helfant is charged are
conspiracy, obstructing justice, and aiding in the compounding of a crime
25
See United States v. Knox. 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969);
Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911);
United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973). See also United
States ex rel. Annuziato v. Deegan, 440 F.2d 304 (2d Cir. 1971)
25A See O'Shea v. Littleton, supra, 414 U.S. at 498, 94 S.Ct. 669.
26
27
28
Younger v. Harris, supra, 401 U.S. at 46, 91 S.Ct. at 751; see also Watson v.
Buck, 313 U.S. 387, 400, 61 S.Ct. 962, 85 L.Ed. 1416 (1941)
29
Stefanelli v. Minard, 342 U.S. 117, 123-124, 72 S.Ct. 118, 122 (1951); see also
Cleary v. Bolger, 371 U.S. 392, 397, 83 S.Ct. 385, 9 L.Ed.2d 390 (1963)
30
401 U.S. at 44, 91 S.Ct. at 750. It is significant to note that Justice Brennan,
writing for the majority in Dombrowski v. Pfister, supra, 385 U.S. at 485 n. 3,
85 S.Ct. at 1120, adverted to a situation closely analogous to that presented in
this case. He said:
'It is difficult to think of a case in which an accused could properly bring a state
prosecution to a halt while a federal court decides his claim that certain
evidence is rendered inadmissible by the Fourteenth Amendment.'
31
See 28 U.S.C. 2254; United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557
(3d Cir. 1971), cert. denied, 409 U.S. 853, 93 S.Ct. 184, 34 L.Ed.2d 96 (1972)
32
to afford a full and fair hearing; or '(6) . . . the applicant did not receive a full,
fair, and adequate hearing in the state court proceeding; or '(7) . . . the applicant
was otherwise denied due process of law in the State court proceeding.'
If Helfant is convicted by use of improperly procured evidence, his conviction
thus could be set aside by such a finding by a federal district court
33
34
35
36
37
38
416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (May 20, 1974)
39
416 U.S. at 836, 94 S.Ct. at 2210 (Burger, C.J., concurring and dissenting)
40
41
Id
42
See, e.g., Rule 50(b), Federal Rules of Criminal Procedure; ABA Project on
Standards for Criminal Justice, Standards Relating to Speedy Trial (Approved
Draft, 1968)
43