The opinion of the court was delivered by: GOURLEY
In this civil action, the original and intervening plaintiffs are all indigent persons who have been charged with, but not yet indicted for, offenses in violation of the criminal laws of Pennsylvania. Defendants are Magistrates of the City of Pittsburgh, Pennsylvania, and the District Attorney of Allegheny County, Pennsylvania. H. David Rothman, Esquire, has intervened as amicus curiae on behalf of Allegheny County and the minor judiciary thereof.
Plaintiffs challenge the constitutionality of two practices of defendant-Magistrates in conducting preliminary hearings. Challenged in the first instance is the refusal of defendant-Magistrates to advise indigent defendants that they are entitled to the representation of counsel at their preliminary hearings and to appoint counsel for this purpose upon request. Secondly, plaintiffs challenge as unconstitutional the refusal of defendant-Magistrates to provide transcripts of preliminary hearings, without cost, to indigent defendants who have been represented by certain counsel at their preliminary hearings but will be represented by different counsel at their trials. The Court has jurisdiction by virtue of 28 U.S.C. § 1343, 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. §§ 2201 and 2202.
Both declaratory and injunctive relief are sought. Plaintiffs seek a declaration that the aforementioned practices of defendant-Magistrates are unconstitutional. They also seek an injunction: (1) restraining defendant-District Attorney from presenting an indictment and/or scheduling and proceeding to trial in any case in which an indigent defendant has neither been represented by counsel at a preliminary hearing nor knowingly, understandingly, and intelligently waived a right to such representation; (2) restraining defendant-District Attorney from scheduling and proceeding to trial in any case where an indigent defendant will be represented at trial by counsel other than the one who represented him at his preliminary hearing and a request for a transcript of the preliminary proceedings, without cost, has been denied him, and (3) restraining defendant-Magistrates from conducting any preliminary hearings without advising indigent defendants of their rights to representation by appointed counsel at said hearings and without appointing or securing appointed counsel where requested.
A final hearing upon the relief requested by plaintiffs was held on October 19, 1970. Motions to dismiss presented by defendants at the outset of the hearing were taken under advisement. The material facts are not in dispute, the parties having entered into oral and written stipulations with regard thereto.
In Allegheny County, which includes the City of Pittsburgh, indigent defendants are represented at trial either by the Office of the Public Defender of Allegheny County or, in some instances, by private attorneys appointed by the Court of Common Pleas of Allegheny County and compensated from County funds. In capital cases, indigent defendants are provided with representation by the Public Defender or courtappointed private attorneys shortly after preliminary arraignment and thereafter. Thus, in capital cases, indigent defendants are represented by counsel at preliminary hearings. In other cases, indigent defendants are provided with representation by the Public Defender or court-appointed private attorneys only upon being bound over to Court, and, therefore, they are not represented at preliminary hearings by counsel.
Prior to August 15, 1970, defendant-Magistrates provided no means of recording the proceedings at preliminary hearings. Since that date, defendant-Magistrates have provided mechanical tape recordings of said proceedings. These tape recordings are made available for the use of counsel for the defendant and may be transcribed at the expense of the defendant. No public funds have been made available to pay the cost of a transcription desired by an indigent defendant.
In this action, defendants strongly urge the Court to abstain from rendering an adjudication and dismiss the Complaint. Whether the Court should abstain from rendering declaratory relief is a question apart from whether injunctive relief should be granted. Zwickler v. Koota, 389 U.S. 241, 254, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). Abstention is a doctrine not to be lightly invoked. Discussing the broadened jurisdiction conferred upon the federal judiciary by various Congressional enactments, including the statutory provisions upon which jurisdiction is founded here, the Supreme Court stated in Zwickler v. Koota, supra, at 248, 88 S. Ct. at 395:
"In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '* * * to guard, enforce, and protect every right granted or secured by the constitution of the United States * * *.' Robb v. Connolly, 111 U.S. 624, 637, 4 S. Ct. 544, 551, 28 L. Ed. 542. 'We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.' Stapleton v. Mitchell, D.C., 60 F. Supp. 51, 55; see McNeese v. Board of Education, etc., 373 U.S. , at 674, [n. 6] 83 S. Ct. 1433, at 1437, n. 6, 10 L. Ed. 2d 622. Cf. Cohens v. Commonwealth of Virginia, 19 U.S. 264, 6 Wheat. 264, 404, 5 L. Ed. 257. The judgemade doctrine of abstention, first fashioned in 1941 in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971, sanctions such escape only in narrowly limited 'special circumstances.' Propper v. Clark, 337 U.S. 472, 492, 69 S. Ct. 1333, 1344, 93 L. Ed. 1480."
Although it has been aptly stated by my distinguished colleague, the Honorable Edward Dumbauld, that "to wander in the domain of abstention is to find oneself in a 'darksome wood' or 'obscure forest.'"
attempts have been made to delineate those "special circumstances" in which abstention is appropriate. Abstention has been deemed proper:
1. To avoid the decision of a federal constitutional question where the case may be disposed of on questions of State law.
2. To avoid needless conflict with the administration by a State of its own affairs.
3. To leave to the States the resolution of unsettled questions of state law, and
4. To ease the congestion of the federal docket.
Wright, Federal Courts, 196 (2 Ed. 1970).
Defendants contends that, before deciding the constitutional questions presented here, the Court should afford the State courts an opportunity to resolve the questions under State law. Specifically, they point to Sections 6 and 7 of the Public Defender Act, Act of December 2, 1968, P.L. -, No. ...