MONAGHAN v. DEAKINS

[38] ADAMS, Circuit Judge, concurring in part and dissenting in part.

The principal holding of the majority is that the district court erred when it abstained under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), in order to avoid interfering with an ongoing state grand jury investigation and concomitant state court proceedings regarding the propriety of a seizure of plaintiffs' documents. Although I concur with the majority that the district court erred in dismissing plaintiffs' claims for money damages, I respectfully disagree on the Younger issue. In my view, abstention is appropriate with regard to plaintiffs' request for an order requiring state officials to return documents obtained allegedly in violation of the fourth amendment, since a means exists by which that constitutional claim may be raised in the pending state court proceedings.

It is helpful to an understanding of the abstention issue in this case to recount some of the pertinent facts in the factual and procedural history of this appeal not referred to in the majority's opinion. On October 4, 1984, Judge Samuel D. Lenox, Jr. of the New Jersey Superior Court issued a warrant authorizing state police officers and investigators of the New Jersey Division of Criminal Justice to search the premises of Foundations Structures, Inc. (F S) for evidence of theft, bribery, and tampering with records. Judge Lenox had been assigned the responsibility of supervising a state grand jury investigating alleged corruption in the construction industry pursuant to N.J.Stat.Ann. § 2A:73A-6 (West 1976). The warrant was executed on October 5. On the same day, three state grand jury subpoenas were served on plaintiff Theodore DeSantis, requiring the production of certain records of F S and Monaghan Associates. These incidents gave rise to plaintiffs' claim under the fourth amendment.

At the time of the search, plaintiffs protested that they had received an inadequate inventory of the documents seized. To resolve the dispute, plaintiffs and the state officials telephoned Judge Lenox, as the supervising judge who had issued the search warrant. Judge Lenox ordered that all documents in dispute be placed in sealed cartons, that were not to be opened until the adequacy of the inventory could be determined. The documents seized were then placed in the evidence vault at the Division of Criminal Justice in Trenton.

Plaintiffs filed this lawsuit under 42 U.S.C. § 1983 (1982) on December 26, 1984, claiming abridgements of their rights under the fourth, fifth, sixth, and fourteenth amendments, as well as stating several pendant claims under state tort law. They sought a preliminary injunction requiring defendants, the state investigative authorities involved, to return all documents seized that were privileged or beyond the scope of the warrant, and a permanent injunction requiring the return of all documents. Plaintiffs also requested preliminary and permanent injunctions against future unreasonable searches and seizures, compensatory and punitive damages, and attorney fees. Defendants answered the complaint on January 28, 1985, by moving in the district court to dismiss the case under Younger v. Harris. Plaintiffs responded to this motion on February 15 by again requesting preliminary injunctive relief.

On February 19, 1985, while the federal court proceedings remained in the pleadings stage, defendants returned to Judge Lenox and obtained an ex parte order to show cause why the sealed documents should not be opened. Plaintiffs then moved to quash the order on the grounds that it had been improperly issued on an ex parte basis and that defendants had sought the order solely as a device to induce the federal court to abstain pursuant to Younger. At a hearing before Judge Lenox on the motion to quash held March 11, 1985, plaintiffs urged the state court not to interfere with their federal action by allowing the state authorities to unseal the documents.

The state court, however, asserted that when it ordered the documents sealed on October 5, 1984, it contemplated that the parties would return to it to resolve further disputes concerning the propriety of the seizure. The court also pointed out to plaintiffs that if they wished to raise a fourth amendment claim in the state proceedings, they could file a motion for return of the documents under New Jersey Court Rule 3:5-7. Finding that the order to show cause had not been improperly issued and that it was not divested of jurisdiction by plaintiffs' filing of a federal action, the state court denied plaintiffs' motion to quash.

Meanwhile, on March 8, 1985, the federal district court heard oral argument on defendants' motion to dismiss under Younger and on plaintiffs' request for preliminary relief. At the close of the hearing, the district court ordered that all discovery be stayed, and that the disputed documents remain sealed pending a further decision by the district court on the Younger issue.

Judge Lenox held a second state court hearing on the order to show cause on March 25, 1985. At that hearing, the parties discussed the procedure to be used in determining which, if any, of the seized documents were covered by the attorney-client privilege. Plaintiffs also raised the issue whether some of the documents were subject to suppression or return because they were beyond the scope of the warrant. Judge Lenox again informed plaintiffs that if they wished to assert that certain documents had been unconstitutionally seized, they could file a motion under Rule 3:5-7. At the close of the hearing, the parties agreed to submit an order embodying the procedure for review of the documents. Judge Lenox further told the state officials that if they wished to contest any factual allegations made by plaintiffs, they could request a hearing.

On June 26, 1985, the state officials asked for such a hearing, asserting that there were disputed factual issues relevant to the determination as to which documents were privileged. The state court responded that it would schedule a hearing if defendants identified the issues they wished to raise. But the defendants did not identify the issues allegedly in dispute, and no such hearing was ever scheduled.

The state grand jury investigation of plaintiffs and their activities had been proceeding throughout this period: on February 14, 1985, the records of J.E.T. Charter Service, Inc., a subcontractor of plaintiffs, were subpoenaed; the following day, F S's bank records were subpoenaed; and on March 8, 1985, plaintiff William Monaghan was ordered to appear at the Trenton Criminal Justice Complex to provide handwriting exemplars.

Judge Brotman, the district court judge, issued his opinion denying plaintiffs' request for a preliminary injunction and dismissing the action under Younger on August 6, 1985. After a timely appeal was filed, plaintiffs DeSantis and Monaghan were subpoenaed to appear at the Trenton Criminal Justice Complex, where they were informed on December 30, 1985 that they are targets of the state grand jury investigation.

In Younger, the Supreme Court held that, absent special circumstances, a federal court should abstain from enjoining or interfering with a pending state criminal prosecution. The holding was based upon the rationale that federal-court interference with pending state proceedings is inconsistent with the principles of federalism and comity, which reflect "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." 401 U.S. at 44, 91 S.Ct. at 750.

The abstention doctrine has been expanded considerably over the years since Younger was decided. See, e.g., Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (applying abstention to state bar disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434 (1977) (applying abstention in favor of a civil action by the state to recover wrongfully-obtained welfare benefits); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (applying abstention where federal plaintiff is involved in state court contempt proceedings as judgment debtor); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying abstention in deference to civil nuisance action brought by county officials against theatres showing pornographic film). Most recently, the Supreme Court in Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., ___ U.S. ___, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), held that the federal courts must abstain from adjudicating employment discrimination claims that are pending in state administrative tribunals. "[T]he proper respect for the fundamental role of states in our federal system," id. at ___, 106 S.Ct. 2723, the Court held, dictates that states should not be enjoined from vindicating important interests in state judicial or administrative proceedings. Id. In his opinion for the Court, Justice Rehnquist emphasized that even if the administrative proceedings would not provide a forum for resolution of constitutional claims, state judicial review of any agency decision would be sufficient for protection of any constitutional interests. Id. at ___, 106 S.Ct. at 2723-24.

The "strong policies counseling against the exercise of [federal] jurisdiction where particular kinds of state proceedings have already been commenced", id. at ___, 106 S.Ct. at 2722, are also controlling in this case, where pending state criminal proceedings undeniably present the important state interests at issue in Younger and its progeny. The district court quite properly abstained in favor of the New Jersey state courts in deference to the principles of federalism and comity that are central to our federal union.

In Middlesex County Ethics Committee, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116, the Supreme Court set forth the analysis to be applied when a federal court is urged to abstain under Younger in deference to a state proceeding. As stated there, the appropriate inquiry is three-part: " first, do [the pending state proceedings] constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges." Id. at 423, 102 S.Ct. at 2517.

Applying the first component of the prescribed analysis to this matter, it appears that the district court correctly ruled in its decision of August 1985 that the ongoing proceedings before Judge Lenox concerning the seized documents required it to abstain under Younger. At that time, the parties had appeared twice before Judge Lenox in New Jersey Superior Court and were involved in proceedings to determine which documents were subject to suppression because of the attorney-client privilege. Plaintiffs had further been invited by the state judge to raise their fourth amendment claim by way of a motion for return of the documents under N.J. Court Rule 3:5-7. Furthermore, during the hearing March 25, 1985, plaintiffs themselves attempted to raise the issue whether certain documents were seized beyond the scope of the warrant.

The majority asserts that, since the district court dismissed plaintiffs' action under Fed.R.Civ.P. 12(b)(6), state court proceedings that took place after the filing of the federal complaint are not relevant to the determination whether Younger abstention is appropriate. Majority Typescript at 17. However, while the district court may have described its action in disposing of the case as a dismissal of the complaint, it is plain that the court based its decision on the Younger doctrine. And the Supreme Court has clearly stated that state court proceedings occurring after the filing of a federal complaint are not to be ignored in deciding questions of Younger abstention. See Ohio Civil Rights Commission, 54 U.S.L.W. at 4863 n. 2 (holding that Younger abstention is appropriate where, as here, state proceedings were "begun before any substantial advancement in the federal action took place"); Middlesex County Ethics Committee, 457 U.S. at 436-37, 102 S.Ct. at 2523-24; Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2291, 45 L.Ed.2d 223 (1975) ("[W]here state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in federal court, the principles of Younger v. Harris should apply in full force.") In this case, as in Middlesex County, "[t]hus far in the federal-court litigation the sole issue has been whether abstention is appropriate." 457 U.S. at 437, 102 S.Ct. at 2524. It is therefore clear that this Court not only may, but must take into consideration any developments in the state court proceedings occurring subsequent to the filing of the federal complaint.

Furthermore, under the second element of the inquiry prescribed by Middlesex County, the state court proceedings plainly implicate important state interests. The injunction sought by plaintiffs would require the suppression of documents obtained by the state pursuant to a facially valid search warrant for use in an ongoing criminal investigation. In Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), decided the same day as Younger, the Supreme Court recognized that a request that evidence to be used in a state criminal trial be suppressed by federal court order constitutes nearly as great an interference in the state proceedings as would the enjoining of the proceedings themselves. In Perez the evidence sought to be suppressed was to be used in an ongoing criminal prosecution. Admittedly, no such prosecution has as yet been initiated in this case. Nonetheless, the state's interest in the unhindered enforcement of its criminal laws has been repeatedly recognized by the Supreme Court as a state interest deserving of the greatest deference in cases posing problems under Younger. See, e.g., Trainor, 431 U.S. at 443, 97 S.Ct. at 1917 ( Younger abstention is appropriate in deference to state civil proceedings to enforce laws in aid of and related to criminal statutes); Huffman, 420 U.S. at 604-05, 95 S.Ct. at 1208-09 (same). The state court proceedings at issue here, concerning the propriety of the seizure of documents to be used in an ongoing state grand jury proceeding and criminal investigation, implicate that interest in a very direct manner.

As to the third point of the Middlesex County analysis, it appears that plaintiffs' fourth amendment claim can be raised in the pending state proceedings. Judge Lenox twice alerted plaintiffs to the possibility of filing a motion for return of the seized documents pursuant to N.J. Court Rule 3:5-7. That rule permits persons whose property has been seized pursuant to a warrant in an unlawful search and seizure to request the return of the improperly seized property. And the New Jersey courts have held that relief is available under Rule 3:5-7 not only to one who has been charged with a crime, but also to one who has reason to believe that the property seized may be used as evidence against him in a penal proceeding. See, e.g., In re C Co., 115 N.J. Super. 262, 279 A.2d 130, 132 (App. Div. 1971); State v. Fioravanti, 78 N.J. Super. 253, 188 A.2d 308, 309-10 (App. Div. 196 3). When plaintiffs may raise their fourth amendment claim in the state proceedings under Rule 3:5-7, there is no valid reason for a federal court to adjudicate that claim.

The majority concludes that the availability of relief in the state court pursuant to Rule 3:5-7 does not require the federal court to abstain under Younger. Its apparent rationale is that, by filing a motion for the return of the seized documents, plaintiffs would not be raising their fourth amendment claim in an ongoing state court proceeding but rather would be initiating a new and distinct legal proceeding in state court.

It is true that Judge Lenox stated during the March 11, 1985 hearing that if plaintiffs filed a motion under Rule 3:5-7, the motion might be assigned to a different judge "because that motion is typically heard by a judge of the Criminal Division." App. at 485. However, at the hearing on March 25, 1985, Judge Lenox suggested that such a motion by plaintiffs would come before him as part of the pending proceedings regarding the seizure of the documents. App. at 535. In either case, a motion for the return of the documents would involve factual issues that overlap extensively with those underlying the current state court proceeding and would therefore constitute a related aspect of that proceeding. Where this is so, it can hardly be said that "state law clearly bars the interposition of the constitutional claims." Moore, 442 U.S. at 426, 99 S.Ct. at 2379. Further, in Middlesex County the Supreme Court found that a sufficient opportunity to raise a constitutional claim existed in state administrative disciplinary proceedings where the claim could be asserted in the state supreme court on appeal. 457 U.S. at 436, 102 S.Ct. at 2523. See also Ohio Civil Rights Commission, ___ U.S. ___, 106 S.Ct. at 2717-18 (it is sufficient that constitutional claims may be raised in state court judicial review of an administrative proceeding). It is thus not a prerequisite to Younger abstention that a constitutional claim may be raised at any particular stage in a state proceeding. Similarly, that plaintiffs' Rule 3:5-7 motion might be heard by a state judge other than Judge Lenox is insufficient reason to conclude that the state proceedings do not provide adequate opportunity to raise the constitutional claim being asserted by the plaintiffs.

Because application of the three-part inquiry outlined in Middlesex County leads ineluctably to the conclusion that Younger abstention is appropriate in this case, the district court did not err in abstaining from adjudicating plaintiffs' claim for injunctive relief unless extraordinary circumstances exist warranting that an exception be made. Id. at 437, 102 S.Ct. at 2524; Younger, 401 U.S. at 53-54, 91 S.Ct. at 754-55. Although plaintiffs argue that they have been harrassed and that the investigation into their alleged misconduct is in bad faith, they have provided no support for these assertions. Similarly, they cannot claim that the state is attempting to enforce against them a law that is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941), quoted in Younger, 401 U.S. at 53-54, 91 S.Ct. at 754-55; see also Middlesex County, 457 U.S. at 437, 102 S.Ct. at 2524; Juidice, 430 U.S. at 338, 97 S.Ct. at 1218.

Since consideration by a federal court of plaintiffs' fourth amendment claim for injunctive relief in the context of this appeal would constitute an undue interference with New Jersey's important interest in investigating criminal conduct within its borders and in determining whether evidence to be used in that investigation was improperly obtained, I would affirm the district court's decision to abstain as to the request for injunctive relief.

The Supreme Court has stated that "the only pertinent inquiry [in a case raising an issue of Younger abstention] is whether the state proceedings afford an adequate opportunity to raise the constitutional claims." Moore, 442 U.S. at 430, 99 S.Ct. at 2381. In my view, the pending proceeding in New Jersey Superior Court concerning the seizure of plaintiffs' documents provides an adequate forum for the assertion of their fourth amendment claim.

Furthermore, the application of Younger abstention in this case is more than an intellectual exercise dealing with the important issues of federalism and comity. The decision whether to abstain in this matter may have considerable consequences for the state proceedings at issue. Under the result reached by the majority, the federal district court will proceed to adjudicate plaintiffs' right to the return of documents that may be crucial to the state grand jury proceeding and criminal investigation. Refusal to abstain here will create a substantial risk of federal-state friction as well as a delay in the criminal investigation. By contrast, under the approach employed by the district court, plaintiffs' fourth amendment claim would be decided in the ongoing state court proceeding along with the privilege issue, thereby eliminating federal intervention in the state investigation and avoiding duplicative litigation.

This case provides no occasion for casting aside the interwoven precepts of federalism and equitable jurisdiction that combine to make up the Younger doctrine of non-intervention. Accordingly, I respectfully dissent from that portion of the majority's opinion holding that the district court erred in dismissing plaintiffs' claim for injunctive relief.

[65] Statement by Circuit Judge ADAMS Sur Petition for Rehearing in Banc

I respectfully dissent from the action of the court today because I believe that the issue posed by this appeal is of sufficient importance to command the attention of the full court.

In contrast to the panel's determination that the district judge erred when he declined to interrupt a state grand jury proceeding, recent Supreme Court decisions construing the abstention doctrine have held unswervingly to the principle that federal courts must defer to ongoing state proceedings in a variety of contexts and most especially in a criminal law setting. Thus, in Ohio Civil Rights Comm'n v. Dayton Christian Schools, ___ U.S. ___, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), the Supreme Court held that federal tribunals must take into consideration any developments in state court proceedings, even when such developments occur after the filing of the federal complaint. The panel's holding — that post-complaint developments are irrelevant to the question whether to abstain — is therefore contrary to controlling precedent.

Further, and equally important, I am persuaded that the issue presented by this appeal is significant both as a matter of federal jurisprudence and as an example of the deference essential to the functioning of a federal system of government. The state court here is fully prepared to adjudicate the constitutional claims raised by the plaintiffs. To permit plaintiffs to invoke the processes of the federal court in such a situation would unduly obstruct state grand jury proceedings and in some cases abort them.