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De Vita v. Sills

decided: March 9, 1970.

RALPH DE VITA, APPELLANT,
v.
ARTHUR J. SILLS, AS AND FOR THE STATE OF NEW JERSEY, ATTORNEY GENERAL, JAMES R. GIULIANO, SUPERIOR COURT JUDGE OF THE STATE OF NEW JERSEY, JOSEPH WEINTRAUB, CHIEF JUSTICE, SUPREME COURT OF NEW JERSEY, NATHAN L. JACOBS, JOHN J. FRANCIS, HAYDON PROCTOR, FREDERICK W. HALL, C. THOMAS SCHETTINO, VINCENT S. HANEMAN, JUSTICES OF THE SUPREME COURT OF NEW JERSEY. (D.C. CIVIL ACTION NO. 2-70)



Freedman, Aldisert and Gibbons, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of New Jersey denying plaintiff's application for a preliminary injunction. Federal jurisdiction was invoked under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. The application for a preliminary injunction was made on notice to the defendant respondents pursuant to Rule 65(a) (1), on a verified complaint to which no responsive pleading was filed. The order is appealable. 28 U.S.C. § 1292(a) (1). This court, acting pursuant to Rule 8, Federal Rules of Appellate Procedure, granted plaintiff ad interim relief pending a disposition of the appeal by a panel of this court.

Plaintiff, a member of the Bar of New Jersey, and a judge of the Union County District Court of New Jersey, seeks to enjoin the defendants the Attorney General of New Jersey; James R. Giuliano, a judge of the New Jersey Superior Court; and all the members of the Supreme Court of New Jersey, from proceeding with a judicial inquiry looking toward his disbarment and removal from judicial office. He alleges that a criminal indictment is pending in the Superior Court of New Jersey which makes essentially the same charges that are set forth in the civil proceeding for disbarment and removal, and that if the defendants are permitted to proceed with the latter before the completion of his trial on the criminal indictment, he will be deprived of civil rights guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.

Plaintiff's verified complaint establishes that Michael R. Imbriani, Prosecutor of Somerset County, New Jersey, disclosed to the Supreme Court of New Jersey in an affidavit that the plaintiff had offered him a bribe, described as "ten big ones", to influence Imbriani's handling of certain indictments then pending in Somerset County. On December 3, 1969 the supreme court issued the order here complained of, appointing Judge Giuliano as a Master to hear and make findings with respect to the following charges:

1. That he did corruptly attempt to bribe Honorable Michael R. Imbriani, Prosecutor of Somerset County, with respect to the Prosecutor's performance of his duties in relation to an indictment pending in Somerset County against Nicholas Guida, Jr., and David Tenney, Docket No. 9-59-S;

2. That the said Ralph DeVita did conspire with persons unknown to obstruct justice by bribing the said Prosecutor with respect to the handling of said indictment;

3. That the said Ralph DeVita did attempt to obstruct the administration of justice by attempting to bribe the said Prosecutor with respect to the said indictment.

The order provided the Master with the powers and authority vested by the New Jersey Rules of Court in an Ethics Committee. See N.J.R. 1:20. It appointed the Attorney General or such person as he might designate to prosecute the charges. It fixed January 6, 1970 as the time for the commencement of the hearing, directed that it be held in camera, and ordered the Master to send all testimony and exhibits to the supreme court with his findings and recommendations. The order also provided:

It is FURTHER ORDERED that any testimony given by the said respondent in these proceedings shall not be used against him in the trial of any indictment:

On December 9, 1969, the plaintiff applied to the New Jersey Supreme Court for a stay of the disciplinary proceeding before Judge Giuliano because an indictment was probably imminent, and the indictment should be tried before the disciplinary proceeding. The supreme court, by an order dated December 9, 1969, denied this application. On the same date it entered a separate order suspending the plaintiff from the practice of law and from the office of Judge of the Union County District Court pending final disposition of the charges set forth in the December 3, 1969 order.

On December 10, 1969, the State Grand Jury*fn1 handed up a two count indictment charging essentially the same misconduct as is set forth in the order for the disciplinary hearing. Plaintiff thereupon filed in the supreme court a petition seeking rehearing and reconsideration of its denial of his application for a stay of the disciplinary hearing. This application was denied by order dated December 17, 1969.

Thus, the disciplinary hearing before Judge Giuliano would have gone forward on January 7, 1970 in the state court had not this court by its order granted a stay pending appeal. There has been no trial of the criminal indictment.

The gravamen of plaintiff's complaint is that the time sequence of the disciplinary and criminal hearings which results from the supreme court's order is highly prejudicial, and that this prejudice is of constitutional dimensions. He asserts that holding the disciplinary hearing in advance of the criminal trial will coerce him to disclose his defense, in violation of the privilege against self-incrimination guaranteed by the Fifth Amendment. He claims that he has already been subjected to extensive pretrial publicity, and that additional publicity may result from the disciplinary proceeding, which may prejudice the fair trial on the criminal indictment guaranteed by the Sixth and Fourteenth Amendments. He contends that the disciplinary hearing will afford to the state an opportunity to cross-examine his witnesses in advance of trial, and will reveal to the state the thrust of cross-examination of the state's witnesses by his counsel. This is alleged to deprive him of the effective assistance of counsel guaranteed by the Sixth Amendment, and to amount to impermissible self-incrimination prohibited by the Fifth Amendment. All these effects of the time sequence of the hearings are said to be violations of the Civil Rights Act, 42 U.S.C. § 1983, actionable in the United States District Court under 28 U.S.C. § 1343(3).

The appeal presents three questions:

(1) Is there equitable jurisdiction in the United States District Court to grant the injunctive relief sought in view of the provisions of 28 U.S.C. § 2283, the anti-injunction statute?

(2) Assuming such jurisdiction, is the case one in which the federal courts should abstain from deciding the case in deference ...


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