his motion, and that he, the District Attorney, informed this Court that the Attorney General of Pennsylvania had been informed of this case, and after study that high officer might wish to intervene. Nonetheless, they adhered to their original position that the $ 12 fee was mandatory and that the State had a right to demand this fee. The Attorney General did not intervene.
This Court, of course, does not have the right or intention of passing any opinion on the right or policy of the Commonwealth in proscribing its own rules and regulations. All we held was that if a prisoner is barred by poverty from appealing under the State's rules then this was an exceptional circumstance that allowed an inferior United States Court to pass on an alleged constitutional violation without the highest court of the State having an opportunity to first pass on the question.
This Court feels that on the facts before it a proper hearing was held. It feels that a violation of a citizen's constitutional rights were shown. The question thus presents itself as to whether the Commonwealth should be given another opportunity to show that under certain other facts that the federal court might not have heard the testimony showing the constitutional violation. To put it another way, should this Court blind itself to the constitutional violation of which it is now aware and give the Commonwealth, their first position being untenable, another chance to show that the defendant Woods had not exhausted his state remedies.
Comity does not go that far. The federal district courts have a proper reluctance to interfere with state processes. But that does not mean that they are to remain deaf to all the pleas of the violations of rights of a citizen of the United States. We operate as dual sovereignties under a federal-state relationship. But the Constitution and the laws made under it are the supreme law of this land.
It has been pointed out that:
'* * * where it is clear that a fundamental right was or in all probability may have been violated, there is a definite tendency to regard good faith attempts to comply with other procedural remedies, especially if greatly complicated, as sufficient.' 19 A.L.R.2d 789, 810.
Here even the Commonwealth's Attorney in this case alleges in effect that he was confused and mistaken as to the proper procedural remedies available in the State of Pennsylvania as is apparent by the inconsistent position taken before the Court in respect to filing fees. How then can we say that this borderline moron, who was impoverished and having been incarcerated in the penitentiary without the benefit of legal counsel, could know all the possible rules of appellate procedure in Pennsylvania. It certainly appears to this Court that he made good faith attempts to comply with the procedural remedies known to him.
The petition for rehearing states no authority for the Commonwealth's new position. No explanation is given now for disregarding the Act of May 19, 1897, P.L. 67, 3, 12 Purdon's Pa.Stat.Ann. 1135. However, we need not decide this question at this time. See Motion to Dismiss, supra. The proper exceptional circumstances were presented to this Court to allow it to afford the petitioner and the Commonwealth a hearing.
The writ of habeas corpus has been granted. Unlawful custody has been found.
I am not unmindful of the need for the federal judiciary to use judicial self-restraint in cases such as this. But even so they must not act with timidity when they feel a constitutional right has been invaded. In my opinion, the Constitution as interpreted by the United States Supreme Court has given this defendant in these circumstances a right to counsel. This right the Commonwealth of Pennsylvania has denied him. Substantial justice does not allow me to reopen this case after a fair hearing.
The one matter that causes me some concern in this motion is whether indirectly it involves a question of jurisdiction. Jurisdiction, of course, cannot be stipulated. It can be raised at any time and should be even on the court's own motion. But the question of exhaustion of state remedies is not the usual clear cut question of jurisdiction. Exceptional circumstances can in one case give the inferior United States Court jurisdiction where on an apparently analogous set of circumstances it would and should be refused. Even if the new position of the Commonwealth should be true and apparently exhaustive research uncovered this hitherto unknown procedure to the District Attorney's Office, it nevertheless remains true that at the time that petitioner made his effort to appeal that the $ 12 filing fee was demanded. The Commonwealth felt then and at the time of the hearing a mandatory fee was necessary. I realize that the sovereign is not bound by its agents' remarks; that estoppel may not apply here. By this I am not inferring any lack of learning of the Commonwealth Attorney. On the contrary, he is extremely well versed in habeas corpus procedures. He convincingly and ably set forth the state's position. And this includes the legal position that in this case the $ 12 filing fee was mandatory. Certainly this Court, even assuming arguendo that an unknown path was open to petitioner, was not under the duty to explore every musty tome in an endeavor to prove the state representative had not presented what apparently was the clearly accepted law of Pennsylvania. Nor was the petitioner Woods under such a duty. The exceptional circumstances required to be found by the district court were present.
'There comes a point where federal judges in discharge of their present statutory duty are obliged to give a hearing to a convicted state prisoner petitioning for a writ of habeas corpus, however delicate and distasteful the performance of this duty may be -- otherwise the petitioner may justifiably have the impression that he is being treated to a grand 'run-around' between the state and federal courts.' Robbins v. Green, 1 Cir., 1954, 218 F.2d 192, 195.
We think such a point has been reached here.
The Commonwealth had ample opportunity to present its case. It had its day in court. The litigation must end somewhere and no good reason has been shown to this Court as to why a re-hearing should be granted. Therefore, its petition for re-hearing for leave to file an amended answer should be and hereby is denied.