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CONLEY v. DAUER

October 30, 1970

Ozel CONLEY, Lewis Steward, Douglas Sizemore, Fred Green, Joseph Bolar, Earl Agurs, Marvin Kennedy, Charles DeMeo, Douglas Hays and Charles Zeitlman, on behalf of themselves and all others similarly situated, Plaintiffs, and Dean L. Craig, John Chawryluk, Intervening Plaintiffs,
v.
Robert E. DAUER, John Chapas, Lewis Dadowski, Earl Harris and Anthony Troiano, individually and as City Magistrates for the City of Pittsburgh, and Robert W. Duggan, individually and as District Attorney of Allegheny County, Defendants


Gourley, Senior District Judge.


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.

 Plaintiffs seek to maintain this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. They contend, and the Court finds, that plaintiffs adequately represent what are, in effect, three classes of individuals charged with State criminal offenses. The first class is comprised of those indigent defendants who have had preliminary hearings without being afforded the representation of counsel and who have been bound over to court to await grand jury proceedings. The second class is comprised of those indigent defendants who have been afforded the representation of counsel at preliminary hearings, have been bound over to court to await grand jury proceedings, will be represented at trial by counsel other than those which represented them at the preliminary hearings, and have been refused free transcripts of the preliminary hearings. The third class is comprised of all indigent defendants who await preliminary hearings scheduled in the future. Within each class are persons who are presently confined in jail in lieu of bond and others who have been released on bond.

 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:

 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.'" *fn1" 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. ...


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