Deakins v. Monaghan – Oral Argument – October 14, 1987

Media for Deakins v. Monaghan

Audio Transcription for Opinion Announcement – January 12, 1988 in Deakins v. Monaghan

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William H. Rehnquist:

You may proceed whenever you are ready, Mr. Etzweiler.

Larry R. Etzweiler:

Mr. Chief Justice, and may it please the Court, we are here today asking this Court to overturn a decision which threatens grave interference with state grand jury proceedings.

It is our concern that the lower court’s opinion will encourage disgruntled subjects of state grand jury investigations to file 1983 suits in the hopes that they can sidetrack the state grand jury process or obtain discovery under liberal civil discovery standards which are not available in the criminal context.

I will briefly summarize the facts.

Petitioners in this case are all state law enforcement officers who have been sued in a 1983 action requesting both injunctive relief and money damages.

The petitioners executed a search warrant issued by Judge Lenox, an assignment judge in New Jersey who supervises the state grand jury.

At the time of the execution of the search warrant there was a dispute.

The plaintiffs claimed that the state was not leaving an adequate inventory to explain what had been taken.

And the plaintiffs accordingly telephoned Judge Lenox and obtained from Judge Lenox an order that all of the evidence that was being taken should be sealed in evidence boxes pending judicial resolution of the inventory problem.

Also at the time of the execution the state issued three state grand jury subpoenas upon the plaintiffs, two of which the plaintiffs complied with, and a third of which and also a fourth subpoena which was issued later, the plaintiffs successfully moved to quash, again before Judge Lenox.

At a later date in an attempt to resolve the inventory dispute the plaintiffs came to the division of Criminal Justice in Trenton, went through the evidence with a court reporter to take an inventory, and in the process of doing this came upon evidence which the plaintiffs claim was being retained illegally by the state in that their Fourth Amendment or attorney-client privileges or work product privileges were being violated, and accordingly, in view of their complaint, the state again resealed this evidence, not the entirety of it but just three boxes of it pending judicial resolution of this question which the state sought by an order to show cause again before Judge Lenox compelling the plaintiff to explain why this resealed evidence should not be unsealed.

At that proceeding the plaintiffs relied upon attorney client and work product privileges.

The plaintiffs filed suit.

They did so after the motion to quash and after the first partial unsealing but before the show cause order.

The District Court in viewing these proceedings concluded that with respect to the equity portion of the lawsuit, that is, with respect to the plaintiff’s claim for an injunction for the return of property, that these proceedings showed that the Younger abstention doctrine should apply, and accordingly the District Court dismissed the equity portion.

With respect to the damages portion, the court concluded that the pendency of the damages action would substantially impede the state’s criminal investigation, and it also dismissed this portion of the suit.

The plaintiffs appealed to the United States Court of Appeals for the Third Circuit.

The Third Circuit in viewing these proceedings concluded that the District Court erred, concluding that these proceedings were not adequate to invoke the Younger abstention doctrine, and remanded the matter to the District Court for a hearing on the merits of the plaintiffs’ request for injunctive relief.

With respect to the damages portion, the Third Circuit concluded that even if the Younger abstention were applicable, the District Court would have no discretion to dismiss and it would only be allowed to stay the damages claim pending the Younger absention proceedings.

We submit that the Third Circuit erred–

William H. Rehnquist:

Mr. Etzweiler, some time in your argument are you going to address your opponent’s claim that the case is moot?

Larry R. Etzweiler:

–I wasn’t initially intending to, but I will be happy to entertain questions on that question.

William H. Rehnquist:

Well, I don’t know that I have any questions.

I was just… you are going to leave it to your brief, basically.

Well, I have a question, if I may.

What difference will it make whether we just dismiss the case or in effect adopt Judge Adams’ position in the Third Circuit?

Larry R. Etzweiler:

With respect to the damages claim?

John Paul Stevens:

Well, is basically what is at issue, what is your argument here is whether the damage claim should be dismissed?

Larry R. Etzweiler:

Well, we are arguing both that the District Court has discretion to dismiss the damage claim and also that the District Court was correct with respect to the Younger proceedings on the injunctive claim.

John Paul Stevens:

Why do we have to fight about the injunction now, when, as I understand it, they no longer seek injunctive relief, and everybody agrees you can fight these issues out in the state court?

Larry R. Etzweiler:

They have agreed that they would amend the complaint.

They haven’t yet done that.

Also, one of the points is, there is currently allegations of criminal conduct which has resulted in the issuing of state grand jury proceedings again with respect to these plaintiffs.

I guess what I am trying to say is that this issue can come up again before them.

John Paul Stevens:

But involving the same parties?

Larry R. Etzweiler:

Involving the same parties, yes.

Let me see.

Antonin Scalia:

Is there some likelihood that is going to happen?

Larry R. Etzweiler:

Well, that… I can’t–

Antonin Scalia:

It can, but is it any more likely to happen to them than it is to anybody else walking around?

Larry R. Etzweiler:

–There is an ongoing criminal investigation going on.

Subpoenas have been issued.

I, of course, am not at liberty to divulge what has happened in the course of the state grand jury proceedings, but–

Antonin Scalia:

You say they haven’t dismissed their complaint yet.

Is it clear that they can dismiss their complaint when the proceedings are up here?

Is there anything they could have done beyond saying to the appellate court, we no longer have this claim?

Larry R. Etzweiler:

–What they have said is that if this Court will dismiss the claim as moot, we will… if this Court will dismiss the petition as moot, we will amend the complaint to delete our request for injunctive damages.

Antonin Scalia:

What more could they have done?

Can you and amend a complaint when the proceeding is on appeal?

Can you go into the court of first instance and say, even though this whole proceeding is under the jurisdiction of another court, I want to amend my complaint?

Larry R. Etzweiler:

I don’t know, Your Honor, but there is another factor, and that is that not all the plaintiffs have been indicted.

The issue still remains in live controversy, for example, with respect to Mr. James, who hasn’t, as I understand it, agreed to dismiss this claim with prejudice.

He could come back later on the same claim.

Also, this type of question–

Antonin Scalia:

Mr. James is not a party.

Larry R. Etzweiler:

–Yes, he is, Your Honor, He is one of the respondents, and he is also a party who has not been indicted.

Not all the plaintiffs have been indicted.

Byron R. White:

xxx agreed not to seek an injunction?

That is what–

Larry R. Etzweiler:

I think they have agreed to amend their complaint if this Court will dismiss the case as–

Byron R. White:

–Both the indicted and the unindicted.

Larry R. Etzweiler:

–I don’t know if they have agreed to do so dispositively on the merits and not come back into court and petition–

Byron R. White:

Yes, but they are all in the same position, all of the respondents.

Larry R. Etzweiler:

–Well, they are not quite all in the same position in that only some of them have been indicted and some have not.

Byron R. White:

As regards their agreement with respect to the injunction, they are all in the same boat.

Larry R. Etzweiler:

They are not quite in the same boat because the plaintiffs who have been indicted would of necessity resolve their Fourth Amendment claims, I presume, in the course of the state criminal litigation.

That is not necessarily true with respect to the plaintiffs–

Byron R. White:

Well, the respondents have also said it is all right just to stay, that their damage suit be stayed, haven’t they?

Larry R. Etzweiler:

–They have offered that, yes.

Byron R. White:

No injunction, and stay the damages suit until the Fourth Amendment issue is settled in the state court.

Larry R. Etzweiler:

That is the offer which they have made, yes.

John Paul Stevens:

And isn’t that the relief you seek?

Larry R. Etzweiler:

No, we seek a reinsertion of the District Court opinion.

We don’t want the damages action–

John Paul Stevens:

But the only difference is that you get a dismissal of the damage claim, but it is not with prejudice.

Larry R. Etzweiler:

–That’s correct.

John Paul Stevens:

So whether you stay it or you just, you know, close the case and let them file it two years from now, what difference does it make?

Larry R. Etzweiler:

Well, the pendency of the damages action has a chilling effect.

John Paul Stevens:

Does it have any more chilling effect than a letter to you saying, as soon as these proceedings are over I am going to refile the case?

Larry R. Etzweiler:

Psychologically it does.

John Paul Stevens:

But that is all that we are asked.

Our time is devoted to save the psychological concern.

Larry R. Etzweiler:

Well, but these are very important for the states–

John Paul Stevens:

I understand, but we generally decide lawsuits.

We don’t, you know, assuage people’s feelings about–

Larry R. Etzweiler:

–Yes, I know, but this is an important factor under the Younger comity considerations.

Even the pendency of this action is going to, for example, make it hard for our investigators to apply for credit when they apply for mortgages and their mortgage companies get nervous.

Is stands as a sword over them that makes them less enthusiastic about proceeding with the criminal matter.

It makes other investigators shy about becoming involved in the criminal prosecution.

This is why the–

Byron R. White:

–Yes, but if it was just dismissed without prejudice, people who really know what they are doing would have the same concern.

They would know that if they lose on the state proceeding on the Fourth Amendment claim, the damages action can be reinstituted.

Larry R. Etzweiler:

–I beg your pardon, Your Honor?

If they lose in the–

Byron R. White:

Can’t they file the case again?

They can file the case again if they win in the state proceeding, and there is a holding that there was a violation of the Fourth Amendment.

Larry R. Etzweiler:

–Yes.

Of course, it would be preferable if they would take all of these claims into the state system where a single judge could–

Sandra Day O’Connor:

They are not required to do that.

Larry R. Etzweiler:

–I agree.

Sandra Day O’Connor:

And you are not asserting that.

They have every right to file their 1983 damages claim in the Federal District Court, don’t they?

Larry R. Etzweiler:

That’s correct, Your Honor.

Sandra Day O’Connor:

Sure.

Now, what about if the statute of limitations runs on them because it is dismissed?

Isn’t that a consideration for the District Court to make in determining whether to dismiss or not?

Isn’t that something they should think about?

Larry R. Etzweiler:

It very well may be.

It is not a consideration which was brought to the attention of the District Court in this instance.

William H. Rehnquist:

So long as the state proceeding goes first if New Jersey law allows it you will get the benefit of res judicata from any favorable findings that the state court makes on the Fourth Amendment issue.

Larry R. Etzweiler:

I think that is probably correct, Your Honor.

William H. Rehnquist:

And that is true whether the federal damages suit is stayed or dismissed, isn’t it?

Larry R. Etzweiler:

That’s correct, but with respect to the question of the stay or dismiss, another reason we think that the District Court should have discretion in these matters is that plaintiffs whose desire is to impede the grad jury investigation are going to have an incentive to attach damage claims to equity actions when they file 1983 lawsuits.

William H. Rehnquist:

But you are not arguing here, as I understand it, and as I understand your response to Justice O’Connor, you are not arguing that there is no proper damages action here in the event that it is determined either in the state court or somewhere else that there has been a violation of the Fourth Amendment.

All you are saying is the damages action perhaps should have been dismissed without prejudice rather than stayed.

Larry R. Etzweiler:

We are arguing that the District Court has discretion, yes.

John Paul Stevens:

Let me pursue that just a second.

Suppose we were in the District Court now and they came up with a motion to dismiss all their equitable claims, and they said, all we are interested in is damages, and we are willing to wait until all the state proceedings are over.

Given those facts, would the district judge have discretion to dismiss the damage claim?

Larry R. Etzweiler:

We would submit that it would, but of course our case is much easier, because we have got the–

John Paul Stevens:

And say the statute of limitations is going to run.

Could they dismiss it and just say, I don’t want to hear this?

I mean, doesn’t a federal judge have a duty to… I don’t understand your theory.

Why would he have discretion to dismiss a valid claim?

Larry R. Etzweiler:

–He would have–

John Paul Stevens:

Say they had never filed an equitable action.

He just filed a damage action.

Could he just dismiss it because he doesn’t want to hear it?

Because if he doesn’t do it they will be unhappy.

Larry R. Etzweiler:

–Well, because we don’t view the dismissal again as a dismissal on the merits.

We don’t have… we would submit that he would have the discretion.

Of course, in the absence of a claim for–

John Paul Stevens:

Even if there had never been an equitable claim asserted?

Larry R. Etzweiler:

–We would submit that, but that it not–

John Paul Stevens:

He doesn’t like cases like this, so he will dismiss it?

Larry R. Etzweiler:

–I beg your pardon?

John Paul Stevens:

I don’t understand your theory.

How can a federal judge say, I don’t like these 1983 suits, I will just dismiss it as a matter of discretion.

Larry R. Etzweiler:

Well, he can do it under the comity considerations which underlie the Younger abstention doctrine, underlie, for example, this Court’s opinion in Fair Assessment versus McNulty on the theory that the pendency even of the stayed damages action is going to have a chilling effect upon these investigators as they attempt to pursue the criminal prosecution, and also for policy–

John Paul Stevens:

It seems to me you have got pretty timid investigators in New Jersey.

Larry R. Etzweiler:

–We also have in this case other facets which supported the district court’s discretion in this matter, and that’s the many questions of state law that were very much entwined… intertwined with the federal claims.

For example, part of the federal claim here is that–

John Paul Stevens:

xxx stay.

That–

Larry R. Etzweiler:

–They may be resolved.

They won’t necessarily be resolved with respect to the parties who aren’t in the state criminal–

John Paul Stevens:

–But they are not… the difference in whether the federal court resolves them first has nothing to do with whether you have a stay or a dismissal.

That is a totally irrelevant factor.

Larry R. Etzweiler:

–That’s correct, Your Honor, yes.

Going back to the… with respect to the Third Circuit’s opinion again, which had covered not only the damages action but also, of course, the request for injunctive relief, it is our posture that the Third Circuit’s opinion will enable subjects of grand jury investigations to chill investigations, to use discovery that they cannot obtain in the course of the criminal investigation, and also will result in dual litigation, enmeshing both the federal court and the state court in supervising the state grand jury procedures which are contrary to our system of federalism and the comity principles that lie at the basis of Younger.

Larry R. Etzweiler:

Perhaps I could talk a bit about the discovery question.

Even with respect to the… with the injunctive portion of this suit, the plaintiffs would also have access to discovery.

In this instance, at the time of the filing of the suit, with that filing they served a request for deposition and for the production of documents.

Among the documents which they wanted were documents which divulge what the instructions our investigators had been given before they went to execute the search warrant.

It is apparent that that type of information could divulge or might divulge to the plaintiffs the theory of the state’s case.

Sandra Day O’Connor:

Presumably you could get a protective order from the Federal District Court if the District Court is going to delay hearing the case in any event.

Larry R. Etzweiler:

Yes, Your Honor, but of course the… ascertaining whether the protective order is appropriate may very well require the federal judge to look into the grand jury investigation to ascertain what information should be privileged, what information should not be privileged.

It might require the federal judge to pull in the prosecutor, to ask him what is happening in the course of this criminal investigation.

Essentially it requires the federal judge or may require the federal judge to supervise the grand jury process just… or as the state judge should be doing.

We submit that this is contrary to our notions of federalism.

John Paul Stevens:

But again that would not happen if you were to enter an order vacating the judgment of the Court of Appeals and directing that in accordance with the representation of the opponents, the equitable claims all be dismissed and the damage action be stayed.

You would be protected from this particular risk.

Larry R. Etzweiler:

We would be protected, but the rule allowing a permanent stay is not necessarily a good rule for this Court to adopt as national policy.

John Paul Stevens:

I am just wondering about disposing of this litigation.

That would protect your interest in this litigation.

Maybe not your views of national policy.

Larry R. Etzweiler:

Well, it is still going… it would not protect our investigators as they go out and apply for mortgages as they have the–

John Paul Stevens:

Well, it would protect them… you were talking about the concerns of discovery and the federal judge butting into the state procedure.

It would protect you from that.

Larry R. Etzweiler:

–Yes, it would protect us from that.

It would not–

John Paul Stevens:

But not the credit rating of the officers involved.

I agree with that.

Larry R. Etzweiler:

–Right.

It would not offer us the full protection which–

John Paul Stevens:

Nothing but a judgment on the merits will do that.

Larry R. Etzweiler:

–Or a judgment of dismissal not on the merits.

John Paul Stevens:

Well, if the claim isn’t destroyed, if it isn’t with prejudice, it won’t protect them.

Larry R. Etzweiler:

But the pending litigation will not be hanging over these… the subjects of the investigation.

Also, if these plaintiffs, it would be preferable if these plaintiffs would pursue all their claims in the state court system where they have remedies, including 1983 remedies, because in a coordinated system we can then have a state judge ascertaining, for example, from his review of the grand jury process, whether limited aspects of discovery could go forward whether limited aspects of the damages action could go forward.

Larry R. Etzweiler:

It is possible that through limited proceedings, for example, the damages action could be determined to be subject to dismissal under the Harlow versus Fitzgerald standard.

That would certainly be preferable to these plaintiffs other than letting this action hang completely in the federal court pending the Younger abstention proceedings.

Antonin Scalia:

Of course, I suspect the only reason in Younger itself we didn’t enter a stay instead of direct dismissal is simply because what was asked for was something we simply would not do.

That is, enjoin a state criminal proceeding.

It had nothing to do with psychological impact.

And had not the request been something we are just not unwilling to do by reason of federal-state comity, I expect that… why should a stay be the normal remedy rather than dismissal unless what you are asking for is something that comity absolutely prevents the federal courts from doing, and damages, comity, there is no reason why granting damages interferes with a state’s proceeding, right?

If the federal court damages suit went forward and concluded before the stage proceeding there would be res judicata there.

Larry R. Etzweiler:

There very well may be, yes.

Antonin Scalia:

At least there would have to be a stay.

Larry R. Etzweiler:

I think Mr. Justice–

Antonin Scalia:

Why do you oppose a stay?

Larry R. Etzweiler:

–We oppose… we submit that the matter should be in the discretion of the district court.

Byron R. White:

Why?

As Justice Scalia… why should that be so?

Larry R. Etzweiler:

Because… essentially for three reasons.

The Younger opinion will be intimidating, the continuation of the damages action will be intimidating investigators.

If the stay is not mandatory, these plaintiffs will be continually coming back, asking for a lifting of the stay, which will involve the federal judge in looking into the grand jury process.

We don’t want to encourage plaintiffs who are simply seeking to hinder the process of the grand jury investigation to join a damages action along with their injunctive claim, and we think that this is consistent with the Younger doctrine, somewhat responding to Justice Scalia’s question in that Younger was concerned about federal processes which would enmesh the Federal District Court in disrupting or having a negative impact upon matters of importance in state proceedings.

Antonin Scalia:

A negative impact would have occurred in Younger no matter when you did it.

So long as you enjoin a state criminal proceeding, you are going to have that impact.

So we said, get out of here, we are not going to do that.

Whereas in this case it is not the case that giving damages will inevitably impair the state criminal proceeding.

It depends entirely on when they are given.

So why is the stay the only remedy that you should be able to obtain?

Larry R. Etzweiler:

A rule which would always mandate that stay would again… I guess there’s two possibilities with the stay.

Number One, it is subject to being lifted.

Or, Number Two, it is not subject to being lifted.

Neither of those possibilities is necessarily good.

Subject to being lifted, of course, upon the plaintiff’s contention that the grand jury proceedings are not going expeditiously, then you’ve got the federal judge intervening.

If it is not subject to being lifted, then a preferable rule would be for the states to take the matter over so that it can ascertain whether the damages action can continue without interference upon the grand jury process.

Larry R. Etzweiler:

May I reserve–

Byron R. White:

Could I ask you a question?

Wasn’t the grand jury proceedings terminated before we even granted certiorari?

Larry R. Etzweiler:

–An indictment was returned.

That’s correct.

Byron R. White:

An indictment was returned.

Larry R. Etzweiler:

With respect to this–

Byron R. White:

And what is the status of the criminal proceeding?

Larry R. Etzweiler:

–The indictment?

It is still in pretrial proceedings.

Byron R. White:

Well, has there been a motion to return the material, and is there some proceeding pending to decide whether there was a violation of the Fourth Amendment?

Larry R. Etzweiler:

My understanding is that the plaintiffs have not yet filed such a motion.

But I got that from the last time I talked with the attorney who is prosecuting the matter.

I presume they still will file such a motion.

Byron R. White:

Isn’t there some limit, some time limit on when they can do that?

Larry R. Etzweiler:

There may be.

My understanding… I can’t answer that question.

There is, of course, a time limit, but often judges extend the time limit, especially in very complex cases such as this.

Thank you.

William H. Rehnquist:

Thank you, Mr. Etzweiler.

Mr. Fitzpatrick, we will hear now from you.

Let me ask you, Mr. Fitzpatrick, your brief on Page 21 talks about the mootness issue, and you say at the sentence beginning on the fourth line from the bottom of that page,

“Under these circumstances, plaintiffs have no further interest in pursuing their claim for injunctive relief in the federal courts. “

“If this case is remanded to the District Court, plaintiffs will amend their complaint to eliminate any claim for injunctive relief and will further move to stay the damages portion of their Section 1983 action. “

Now, I take it that is your position.

Edward N. Fitzpatrick:

That is our position, and it is our position for all of our clients, including Mr. James, who is not under indictment.

William H. Rehnquist:

And you speak for all of your clients.

Edward N. Fitzpatrick:

I speak for all of our clients in this Court and below, and we said that, Mr. Chief Justice, because in essence what has occurred here is, events have overtaken the need for injunctive relief.

There is an indictment.

There are motions pending.

Edward N. Fitzpatrick:

One motion has already been granted.

Our Fourth Amendment claim with respect to lawyer-client privilege has been vindicated in the Superior Court in Bridgeton, New Jersey, by Judge Serata.

Indeed–

Byron R. White:

That just relates to some of the material.

Edward N. Fitzpatrick:

–It relates to some of the materials, and there is a motion pending with respect to our other Fourth Amendment claims as well.

We had a forum, at the time there was an indictment, we had a forum for those claims.

We raised those claims in the New Jersey forum.

Indeed, the Court has disposed very early on of the lawyer-client privilege document and returned certain documents to us as a result of our Fourth Amendment claims, and has under consideration today, and has a motion before him today with respect to other of our Fourth Amendment–

Byron R. White:

Has that motion been argued, Mr. Fitzpatrick?

Edward N. Fitzpatrick:

–It has not been argued, Your Honor.

We have asked for an October 31st date.

We are trying to move that along because… for practical reasons.

We have clients who have essentially been put out of business by the pendency of the indictment, so we are making efforts to move that along.

We made the motion and we believe it will be heard, if it is not October 31st of this year, it will be shortly thereafter.

Well, I take it the answer to the mootness argument is that this case isn’t moot because the entire case should have been dismissed by the district judge.

We are prepared to argue that.

We are prepared to support the majority of the Third Circuit.

Byron R. White:

I know.

There is a good argument that it shouldn’t have been dismissed, but there is an argument that it should have been, and that is the issue here, so why is the case moot?

Edward N. Fitzpatrick:

That was the issue when we were seeking injunctive relief, because it is the injunctive–

Byron R. White:

I know, but the claim is that the entire case should have been dismissed.

Edward N. Fitzpatrick:

–I understand that, but it should have been dismissed because of the alleged intrusion on the investigative process by our seeking injunctive relief, not by our seeking damages, and what they argue, that since we sought injunctive relief, our claim not only for injunctive relief but for damages should be dismissed–

Byron R. White:

And that still is the claim.

Edward N. Fitzpatrick:

–And that still is the claim, but we are not making it–

Byron R. White:

That raises an issue right here in this Court.

Edward N. Fitzpatrick:

–But we are not seeking, we are no longer seeking the injunctive relief.

Byron R. White:

I know, but you are seeking to stay in court on the damages claim.

Edward N. Fitzpatrick:

Yes, we are.

Byron R. White:

The other side says you shouldn’t even be in court on that basis.

Edward N. Fitzpatrick:

Yes, Justice, we are.

Edward N. Fitzpatrick:

We are seeking to stay in court, and we are seeking to stay in the federal court on the damage issue albeit stayed, and we have agreed to the stay.

Byron R. White:

Yes, you want to stay there and the other side says, no, you shouldn’t even be there on that.

Edward N. Fitzpatrick:

That’s correct.

That’s exactly what this–

Byron R. White:

And so we have an issue under Younger.

Edward N. Fitzpatrick:

–Well, you have an issue under Younger, but what we say is essentially it is a moot issue because the reason that Younger would be applicable, or the reason it was argued that Younger was applicable to us below is that we were seeking certain injunctive relief which we are no longer seeking.

That didn’t happen–

Sandra Day O’Connor:

Well, but up here the attorney for the state is telling us that even if the injunctive relief is no longer sought, that somehow Younger principles mandate that the trial court’s decision to dismiss the remaining damages action is appropriate.

Edward N. Fitzpatrick:

–They have argued that, Justice.

Sandra Day O’Connor:

Yes, so why don’t you address yourself to that?

Edward N. Fitzpatrick:

Well, with respect to that, I would say where is the intrusion, where is the necessity… where to comity principles come into play so as to deprive us of what the Congress… deprived our clients of what the Congress has given them, that is, a right to go into the federal court with a 1983 lawsuit.

The Congress passed the law and said that essentially under the jurisdiction section, that we have the right to original jurisdiction in the federal courts.

It is defeated… that is a right that was given to us.

It is defeated only if by our bringing that particular action we are now going to impose ourselves in a way that would violate the federalism principle on the state process, that is, the investigative process, the grand jury process, or some other state process.

In this case it would be investigative and grand jury.

What we say is, at that stage we were seeking certain injunctive relief which they could argue would impose upon that particular state those particular state processes.

We say that is no longer the case.

That happened, unfortunately, about ten or fifteen days after the Circuit Court decided this case.

So that what we argue at this stage with respect to mootness, Justice, is that there is no longer any reason for the Federal Court to abstain from a case which is validly before it based on comity principles and based on federalism principles.

Byron R. White:

You are arguing the merits of one of the issues that is before us now.

Edward N. Fitzpatrick:

I am sorry, Your Honor.

Byron R. White:

You are arguing the merits of an issue that is before us now.

Is that the rule under Younger?

Edward N. Fitzpatrick:

Yes, we believe the rule under… we believe that Younger allows, obviously, and mandates abstention under certain circumstances, and what are the circumstances?

It was essentially a three-pronged test.

William H. Rehnquist:

Abstention on the damages claim or on the injunctive claim?

Edward N. Fitzpatrick:

Well we say that only on the injunctive claim.

We say if we brought a damage suit only originally in the federal court there would be no basis for Younger abstention.

William H. Rehnquist:

Well, would there be a basis for staying the claim until–

Edward N. Fitzpatrick:

Yes.

Edward N. Fitzpatrick:

We think there would be an argument.

At that point in time, Chief Justice, we may very well have argued against it, but today we will not argue against it, and I believe our briefs have indicated that.

William H. Rehnquist:

–So then the life part of this case is the petitioners are saying the District Court has discretion to dismiss rather than stay a damages claim in this situation.

You say, no, they must only stay it.

And does that really make a lot of difference?

Edward N. Fitzpatrick:

Whether they stay it or dismiss it?

William H. Rehnquist:

Yes.

Edward N. Fitzpatrick:

Yes.

I think it makes a lot of difference, because as has been pointed out here we have statute of limitation problems in the event it is not.

I mean, there is a two-year statute of limitations.

The two years is long past.

Byron R. White:

But the reason that there is no interference is that in this criminal proceeding where you are… the state proceeding that is going on is a criminal proceeding in which you are making a motion to return certain evidence, and there is no way in that proceeding to get damages.

Edward N. Fitzpatrick:

That is only partially so, Justice, because–

Byron R. White:

Well, if there was an ongoing state proceeding that would give you the remedy, you would be interfering with a state court.

Edward N. Fitzpatrick:

–Justice, you see, our case goes far beyond our Fourth Amendment claims.

Byron R. White:

Yes.

Edward N. Fitzpatrick:

And what we say is, we now have a forum for Fourth Amendment claims.

Where is our forum, Justice, where is our forum for our claim of deprivation of liberty?

Where is our forum for our Fifth Amendment claims?

Where is the forum for our claim in our complaint that we were deprived of our property, at least on a temporary basis?

Those are all claims that cannot be litigated in the present criminal proceeding in New Jersey.

William H. Rehnquist:

Now, were any of those claims other than the Fourth Amendment claim embraced in your request for an injunction against the state proceeding?

Edward N. Fitzpatrick:

No, they were not.

Just the Fourth Amendment claim, Your Honor, was embraced in the injunctive request, is my recollection.

So that the injunctive request really only went to part of our case, and what we argue to this Court is that we are entitled to a federal forum on damages because that is all that is left in this case.

Had the situation been as it is today, we would have never moved for injunctive relief.

John Paul Stevens:

May I ask you a question?

Edward N. Fitzpatrick:

Because it wasn’t necessary.

John Paul Stevens:

You say about the injunction you are not fighting for it.

Would it be your position that it would be appropriate for this Court to vacate the judgment of the Third Circuit insofar as it contemplated further proceedings for equitable relief?

John Paul Stevens:

Do you have any… as a litigant–

Edward N. Fitzpatrick:

Your Honor, we believe that would dispose of the–

John Paul Stevens:

–I know it would dispose.

Do you have any interest in a litigant in not seeing that happen, just–

Edward N. Fitzpatrick:

–As a litigant, no.

As a lawyer, obviously, I do.

But our litigants do not have an interest in that, because they do not seek–

John Paul Stevens:

–So your litigants really have no interest in defending that portion of the Court of Appeals’ judgment.

Edward N. Fitzpatrick:

–That’s correct.

John Paul Stevens:

The only thing you want to do is be able to maintain your damage action.

Edward N. Fitzpatrick:

That’s correct.

Indeed, the dissent at the Court of Appeals was a dissent only with respect to–

John Paul Stevens:

I understand.

You would be happy with Judge Adams’ position.

Edward N. Fitzpatrick:

–We will take either of the opinions at the Third Circuit at this stage.

I must say we argued at the Third Circuit–

John Paul Stevens:

But you really don’t care, your litigants really don’t care.

Edward N. Fitzpatrick:

–The litigants do not care.

It is of no moment to any litigant in this case that injunctive relief would be available.

They are not looking for it and don’t want it.

Antonin Scalia:

The correctness of the District Court’s action, whether it should dismiss or… should have dismissed or should have stayed depends on what the factual situation was at that time, at the time that it took that action, and at that action the injunction matter was alive.

Could we reverse the District Court on the basis of a new state of facts?

It seems to me that its action was either right at the time or wrong at the time.

Edward N. Fitzpatrick:

Well, that’s correct.

Antonin Scalia:

And if there should have been a dismissal then because there was an injunction pending, why shouldn’t we say that?

You should say that if that’s what the judgment of this Court is based on those facts.

I haven’t gotten to argue that, but I would argue to this Court that the District Court was there.

But you can say that, and if this Court were to say precisely what Your Honor has just said, and leave our damage case in place, it would be of no moment to our litigants.

Now, I think it is important again taking up the different stages, and I had intended to argue that, because frankly, it is our position before this Court that at no stage was there… was Younger abstention appropriate even as events came about.

The one thing that we would point out to the Court is that we did not seek to enjoin the prosecution, as they did in Younger.

Antonin Scalia:

We did not seek to declare unconstitutional the statute which the investigation such as it was was going forward.

We did not attack the investigation.

That was not the focus of the attack in this case.

The attack in this case was an attack on the conduct of individual state officers in performing that investigation.

We didn’t say the state shouldn’t be able to indict these people because there is something wrong with the statute, it is unconstitutional, or it is in bad faith.

We don’t allege that the investigation in this case was in bad faith.

You allege it violated the Fourth Amendment, among other things.

Edward N. Fitzpatrick:

We allege that the investigation as carried out by the individual defendant petitioners in this case was conduct which violated the constitutional rights of the respondent.

We allege that.

And in doing so we did not ask to enjoin the prosecution, and today we do not ask to enjoin even those acts.

We ask that the case go forward with respect to damages.

Byron R. White:

You have got, in this criminal proceeding you have got the rest of your Fourth Amendment claim pending.

Edward N. Fitzpatrick:

Yes, we do, Your Honor.

No, we do not.

We have another part of our Fourth Amendment claim pending.

If Your Honor please, let me explain that to you.

Byron R. White:

Part of it is over.

Edward N. Fitzpatrick:

Part is decided, part is before the Court, and part–

Byron R. White:

You don’t want to go forward on the damages claim on that part in the federal court.

Edward N. Fitzpatrick:

–See, we don’t have–

Byron R. White:

Because if you did and had it decided, it would foreclose the state court.

Edward N. Fitzpatrick:

–You see, Your Honor, we don’t have a Fourth Amendment claim for damages per se.

What we have alleged in our complaint is that there are a host of constitutional violations which were caused by an improper effort by the state to coerce several of the clients to give testimony against other individuals in Cape May County.

Our Fourth Amendment claim is really threefold.

One, it had to do with return of documents that were subject to lawyer-client privilege.

It had to do with the return of documents that were outside the scope of the warrant.

And it had to do with the officers going… the way they conducted the search, the way they went out into the yard of this particular area and looked at the serial numbers, for instance, on all of the construction equipment that was there, had nothing whatever to do with what the warrant was issued for.

It was simply an effort to find out really–

William H. Rehnquist:

What were your clients indicted for?

Edward N. Fitzpatrick:

–They were indicted for conspiracy, a bribery case essentially, conspiracy and bribery.

Edward N. Fitzpatrick:

It had nothing to do at all with the equipment.

The effort was to see if they could pick up a serial number off the piece of equipment that was stolen or some problem with it so that they could then come in and use that to browbeat them to give testimony against other people who they wished to indict.

That was the effort we allege… that we have no… we have no forum for that; even today, because it doesn’t challenge the warrant.

The warrant didn’t say that they could go out in the yard and look at the equipment in the yard.

The magistrate, the judge who issued the warrant, he didn’t say they could do that.

They took that upon themselves.

The magistrate or the judge in this case who issued the warrant did not say, listen, fellows, go in there with a blank subpoena and if you see something that you want, we will have an attorney sign the subpoena in blank, and if you see something that isn’t under the warrant but you want to pick it up later, fill out this grand jury subpoena and hand it to him, which is what we allege in our complaint occurred.

They stacked up all these documents that weren’t… had nothing to do with the warrant, sat down with their blank subpoena, and issued a blank subpoena.

We can’t challenge the warrant on that basis because the judge didn’t authorize that type of–

William H. Rehnquist:

You can challenge all of… you can raise all of these Fourth Amendment questions in state court now, the same way that you could sue for damages on them in the federal court, can’t you?

Edward N. Fitzpatrick:

–We can raise them only insofar as they affect documents that are presently in the possession of the state or those that would be offered, say, in evidence, those that are evidence against us.

Byron R. White:

Or any verbal testimony by officers gained contrary to the warrant.

Edward N. Fitzpatrick:

Correct, Your Honor.

Yes, Justice, we could.

Byron R. White:

Well, could I ask to make sure–

Edward N. Fitzpatrick:

But there won’t be.

You see–

Byron R. White:

–Weren’t there more… how many defendants have been indicted?

Three?

Edward N. Fitzpatrick:

–Two defendants, two at one company.

One company, one partnership, and one individual.

Byron R. White:

How many of the plaintiffs have not been indicted?

Edward N. Fitzpatrick:

Three.

Byron R. White:

Three, and two of them–

Edward N. Fitzpatrick:

Three, but one individual, one partnership, and one company.

Byron R. White:

–And one company.

Now, so those… those are still… those are unindicted plaintiffs.

Edward N. Fitzpatrick:

Yes, Your Honor.

Yes.

Now, if… at different times in the progeny of Younger the Court has looked at what facts should we look at in determining whether or not Younqer should apply.

Edward N. Fitzpatrick:

For instance, in Middlesex County, the belated effort by the New Jersey Supreme Court to provide that petitioner a remedy for his constitutional claims was considered even though that didn’t occur until after the Third Circuit’s decision.

In the Hicks case there was an indictment that was considered.

What we argue to this Court is, we are prepared to analyze this case at any stage and argue to the Court that there was never an ongoing state proceeding which was an adequate forum for all of the relevant issues which we raised in the District Court, and that is because there was never a forum even today that would allow us to raise those constitutional claims except for some of the constitutional claims under the Fourth Amendment.

John Paul Stevens:

Is it not true that the claims that are not… could not be decided in a state forum are all damages claims?

Edward N. Fitzpatrick:

No, there are other claims which… there are other claims… I am sorry.

I missed part of your question.

Are you saying to me that–

John Paul Stevens:

Are those claims that you say can only be decided in the federal court, such as trying to put pressure on your people to testify?

There is no state forum for that, but you are not seeking… you never sought an injunction against that, did you?

Edward N. Fitzpatrick:

–No, we did not.

John Paul Stevens:

You just wanted damages.

Edward N. Fitzpatrick:

We did not, and there is a state forum.

John Paul Stevens:

Oh, sure.

Edward N. Fitzpatrick:

In all honesty I must say that we could file the exact pleading in the state court, but the Congress allowed us to file it in the federal court, and we chose to do it.

John Paul Stevens:

Yes.

Edward N. Fitzpatrick:

So there is a forum.

The question, as I–

John Paul Stevens:

But it seems to me that to the extent that you are describing claims that you think you have no state remedy other than a 1983 claim are basically damage claims.

Edward N. Fitzpatrick:

–Yes.

Yes.

Correct.

John Paul Stevens:

And you are willing to–

Edward N. Fitzpatrick:

On all of them, even the one aspect of the Fourth Amendment that we can’t raise as a damage claim.

It is not an injunctive claim.

We have no injunctive claims any longer.

The injunctive claims were mooted by what occurred.

William J. Brennan, Jr.:

–You did say, Mr. Fitzpatrick, you could have brought your 1983 claims for damages in the state court if you chose?

Edward N. Fitzpatrick:

Yes, we could have.

William J. Brennan, Jr.:

But you had the option of federal or state court.

Edward N. Fitzpatrick:

Yes, Justice, we had an option.

Edward N. Fitzpatrick:

We believe the Congress gave us that option.

We selected the federal court.

And we believe that in applying Younger this Court ought to respect, and we argue to you you should respect our choice of forum, unless what we are doing is so offensive to the principles of comity–

Byron R. White:

Let’s just assume that the only claim that you had in the federal court for which you ask an injunction and damages was simply that there was a… certain of the evidence was seized in violation of the Fourth Amendment, and you won an injunction, and then there was an indictment, and you could raise… every claim you had except damages could be raised in the criminal proceeding.

Would you say that the federal proceeding could go forward just on damages?

Edward N. Fitzpatrick:

–I would argue yes, and I also know I would be in a lot of trouble in this Court in arguing yes, but I would argue to you yes, but the fact is that–

Byron R. White:

Well, yes, but–

Edward N. Fitzpatrick:

–that is not our case.

Byron R. White:

–Well, I know, but you keep saying you could go forward on your damages claim, but if that proceeding, if the federal case was decided before the state case, you would be foreclosing the state court from deciding your Fourth Amendment claim.

Edward N. Fitzpatrick:

Justice, I don’t believe that in the real world, that there is any chance that that could happen, especially given the calendars, what they are in New Jersey today.

We would never get a decision.

Byron R. White:

Just say that you would never go forward on your damages claim in my example in the federal court.

Edward N. Fitzpatrick:

I am sorry, you lost me.

Or maybe I lost myself.

Byron R. White:

I don’t think the state criminal proceeding is as much, almost as much interfered with by a holding in the federal court that evidence has been seized in violation of the Fourth Amendment.

Edward N. Fitzpatrick:

Yes, Your Honor, and I can understand it makes it a much closer–

Byron R. White:

And if it takes as long to get to the criminal proceeding as this, as it may be that the federal court could get your damages case decided before anything significant happens in the state court.

Edward N. Fitzpatrick:

–Most doubtful that that could happen, but let me get back to the earlier point, Justice, which you made.

If that were the only case, that is, our Fourth Amendment claims that we now have pending in New Jersey, that would make this case a closer case.

That would make it a much closer case respecting whether there ought to be Younger abstention, because obviously the state provided us a forum.

It did it in a way that we didn’t appreciate.

That was through an indictment.

But we have a forum to test it except for damages.

But that is not this case.

This case goes far beyond anything which we are now or can litigate in the state court.

It goes to violations of… 1983 violations far beyond those aspects of the Fourth Amendment, and that is why we most respectfully argue to this Court, you must look at our entire case.

Look at and find out whether or not there was an ongoing state proceeding at any stage which could have allowed us to litigate those claims, the claims of deprivation of liberty, the claims of deprivation of property, having nothing whatever to do with the matters under which our clients are indicted.

Indeed, I say to you, whether or not our clients are convicted is irrelevant to that lawsuit because either the state officers on October 5th, 1984, when they went there, they either violated the constitutional rights of our clients or not, and even if they were guilty of something, even if they were guilty of something, they were entitled not to have their rights violated, and we allege they were violated in more ways that merely the seizing of the documents which are now being challenged pursuant to our Fourth Amendment motions in the state court.

John Paul Stevens:

May I ask you one question about state procedure?

Edward N. Fitzpatrick:

Yes, sir.

John Paul Stevens:

In this case, I don’t remember his name, there is one state court judge that seems to have been supervising the grand jury, issued the–

–Lenox.

Lenox.

He operated in about three different areas of the law.

Is that typical, or is that just kind of a coincidence?

Edward N. Fitzpatrick:

That is most unusual.

If we were to file a state case it would be in Cape May County, and Judge Lenox is in Trenton.

It happens because Judge Lenox is the assignment judge in Trenton.

The state grand jury sits in Trenton, and Judge Lenox has been assigned to supervise the procedure of the state grand jury.

John Paul Stevens:

He doesn’t automatically do that as assignment judge?

Edward N. Fitzpatrick:

No, but he also had a second role.

It happened that he was the issuing magistrate for the warrant as well, but the state could have gone to any judge.

Indeed, municipal magistrates are available, and others.

In this case they chose, because they regularly take their business to that court… it just happens it is across the street, so that is why they go there.

John Paul Stevens:

He is the one who is ruling on things like whether some documents were seized that were not described in the warrant and so forth.

Is that because he was in charge of the grand jury, because he was the assignment judge, or because he issued the warrants?

Edward N. Fitzpatrick:

It is because… frankly, I arrived on the scene on October 5th and got Judge Lenox on the phone, and I was the lawyer who complained that we weren’t getting a receipt for these documents, so when Judge Lenox said that, he said, seal them all, and he put them under seal.

The federal case… you have to understand the chronology.

John Paul Stevens:

You did that because he was the issuing–

Edward N. Fitzpatrick:

He was the issuing magistrate or the issuing judge, but the chronology is important, Justice.

This case was started before the state filed an ex parte order to show cause.

There was no proceeding pending.

There was no state proceeding pending when this complaint was filed, so if this Court were to look at where we were on December 27th, 1984, when this complaint was filed, there were no state proceedings pending.

The state proceeding came, and I wrote it down, but it is some time in February or March of 1985, by virtue of an order to show cause that the state brought.

They brought it, and then, of course, let that order to show cause sit there.

We argue to you reason tells us that they did that so that they could have created a proceeding that they could go to the federal court and say, oh, look, there is a proceeding in New Jersey on some of these same matters, so you ought to throw these plaintiffs out of the Federal District Court because they, despite the urging of Judqe Lenox, for over a year they did absolutely nothing with the order to show cause.

Nothing occurred.

It just sat there.

And then when something happened we wrote to Judge Lenox, and Judge Lenox said this case is deemed withdrawn because of this hiatus and this inaction.

So that while they were bound and determined to get this order to show cause, certainly the state showed not so great diligence on following up on the order to show cause, although they obviously pointed to it at every stage in the federal proceeding.

Edward N. Fitzpatrick:

Finally, Justices, let me say that the Potomac case, the Potomac Electric Company case, juxtaposed to our case, I think amply demonstrates what the true differences are.

In that case the plaintiff sought to have declared unconstitutional the underlying statutes with which they were threatened an indictment, and they sought to have… essentially affect the investigation by having the statute it was based on declared unconstitutional.

Not so here.

In our case we did not do that, and that is the difference, because if there was an… if you consider the grand jury to be an ongoing state proceeding, we would argue to the Court that it is not an ongoing state judicial proceeding, and that there is no certainty that Potomac Electric would have forgotten to argue its case.

Indeed, since there was no indictment, what we argue indeed came true in Potomac Electric.

They never got to be able to argue the constitutionality of the ongoing statute because there was no indictment, but in our case that is not what occurred.

We are not challenging that.

We are not challenging any statute, and therefore we are in a different position.

We are in a position where there is absolutely no adequate forum in the state court by virtue of an ongoing proceeding even if there is an indictment.

Thurgood Marshall:

–After you have gone over all of this, do you agree that if we say injunction is out, damages are in, you are satisfied?

Edward N. Fitzpatrick:

I am satisfied and I will go home, Your Honor.

Thurgood Marshall:

Well, what is all this argument about?

Edward N. Fitzpatrick:

It is over as far as I am concerned, Justice Marshall.

Thank you.

William H. Rehnquist:

Thank you, Mr. Fitzpatrick.

Mr. Etzweiler, you have four minutes remaining.

Larry R. Etzweiler:

With respect to the mootness question, and it is particularly with respect to the mootness of the question whether state grand jury proceedings are judicial proceedings for the purposes of the Younger abstention doctrine, this is certainly a case which is capable of repetition but evasive of review.

This Court has before it two cases, the PEPCO versus Sachs case out of the Fourth Circuit, it has this case out of the Third Circuit holding directly conflicting theories.

In the PEPCO case the grand jury chose not to return an indictment.

In this case the grand jury chose to return an indictment.

It is very likely every time this issue arises in the Third Circuit by the time it gets to this Court, even in a very complex case as of this nature in which the grand jury pleadings were extensive, one status or the other is going to arise.

Therefore, it would be a basis of review… evasive of review.

It is certainly capable of repetition in this case because there are grand jury proceedings outstanding with respect to the plaintiffs because these plaintiffs may again have a search warrant or other proceedings in the course of those grand jury proceedings because these plaintiffs have agreed to abandon their injunctive claim with respect to this indictment but they haven’t agreed to abandon these claims with respect to any future criminal proceedings which may ensue and which currently are under investigation.

Also, what we are reviewing here is the propriety of the District Court opinion in which a dismissal was entered.

That dismissal was premised in part upon the facts as existed at the time it entered its judgment, and it was premised in part upon its conclusion that Younger applied by virtue of the ongoing grand jury proceedings.

To review that judgment and to review whether that dismissal was proper requires an adjudication of the first question which we have raised, that is, whether the grand jury proceedings are state proceedings for purposes of the Younger abstention doctrine.

That is with respect to mootness.

With respect to when the state proceedings were started and with respect to part of what my opponent here was saying in his argument, we submit that the proceedings, the state proceedings were started first of all with Mr. Fitzpatrick’s telephone call to Judge Lenox seeking the sealing order.

They may have been started earlier with the Judge’s issuing of a search warrant.

In our last brief filed in this matter we made some comparison.

Larry R. Etzweiler:

A search warrant is very much like an ex parte writ of attachment.

State officials go to a judge.

They submit an affidavit.

They get an order which is called a search warrant.

That allows them to go and take property, and to retain that property until such time as the plaintiffs come into Court in New Jersey under a Rule 357 motion explaining why the state should not retain that property.

That is very much like an ex parte writ of attachment which this Court, I think, in Trainor versus Hernandez found sufficient for a state ongoing proceeding, so we dispute the proceedings in this case started at the late date which my opponent says.

We submit they started much earlier.

Third, with respect to the question whether these plaintiffs are seeking to enjoin the grand jury, I want to point out, first of all, the Perez versus Ledesma case, which… the Third Circuit had no problem with this question.

They agreed taking documents away from a grand jury investigation which would substantially interfere with these proceedings, and they partially relied upon case law from this case.

I think if you look at Perez versus Ledesma you will find, that was one of the companion cases to Younger, that in this case this Court held that the District Court’s adjudication that Texas officials had to return property was a substantial interference.

Thank you.

William H. Rehnquist:

Thank you, Mr. Etzweiler.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.