Seitz, Chief Judge, and Van Dusen, Aldisert, Adams, Gibbons, Max Rosenn, James Rosen and Hunter, Circuit Judges, and Layton, Senior District Judge. Aldisert, Circuit Judge (dissenting opinion Sur Petition for Rehearing).
Appellants are indigents who have been charged with violations of the criminal laws of Pennsylvania and who are unable to afford or otherwise obtain counsel at their preliminary hearings. They brought this § 1983*fn1 Civil Rights action on behalf of themselves and others similarly situated*fn2 against appellees, the District Attorney of Allegheny County, Pennsylvania, and five City of Pittsburgh magistrates, claiming that their 6th and 14th Amendment rights as established by Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), are being systematically violated. Specifically, they challenge the Magistrates' practices of (1) refusing to advise indigents that they are entitled to counsel at preliminary hearings; (2) refusing to appoint counsel where requested; and (3) conducting preliminary hearings in the absence of counsel. In addition, they challenge the District Attorney's practice of presenting indictments, scheduling trials, and conducting criminal prosecutions against indigents who were not represented by counsel at preliminary hearings after June 22, 1970, the effective date of Coleman, supra.*fn3
Plaintiffs sought declaratory relief in the nature of a ruling that the stated practices were unconstitutional, as well as a permanent injunction (1) enjoining the District Attorney from proceeding to trial in any case in which an indigent neither was represented by counsel at his preliminary hearing nor knowingly and intelligently waived that right, and (2) restraining the Magistrates from conducting any further preliminary hearings without first fully advising indigent defendants of their right to courtappointed counsel and without appointing counsel where requested.
A final hearing was held in the District Court on October 19, 1970. The requested declaratory relief was granted. Injunctive relief was denied, however, and plaintiffs appeal that decision. Conley v. Dauer, 321 F. Supp. 723 (W.D.Pa.1970). There is no cross-appeal from the declaratory ruling of unconstitutionality or from any of the other rulings of the District Court.*fn4
The facts are not in dispute and are for the most part drawn from the parties' stipulation. In Allegheny County, which encompasses the City of Pittsburgh, indigent criminal defendants are represented at trial either by the Public Defender or private court-appointed counsel. However, only in capital cases are indigents apprised by the presiding authority of their right to counsel and, in fact, provided free counsel at the preliminary hearing stage. In all other criminal prosecutions, counsel is not provided unless a prima facie case of a defendant's guilt is established at the hearing and the defendant held for further proceedings. See generally Pa.R. Crim.P. 120-123, 19 P.S. Appendix; Public Defender Act §§ 6, 7, supra n. 4.
This situation is apparently the unfortunate result of the organization and structure of Allegheny County's minor judiciary. Pursuant to the Commonwealth's 1968 Constitutional Convention -- which revised the Judiciary Article of the State Constitution -- there are now several thousand authorities throughout Pennsylvania who are empowered to preside over preliminary hearings.*fn5 Thus in Allegheny County alone there are 64 magisterial districts in which preliminary hearings are conducted at numerous localities by some 246 magistrates, justices of the peace, and aldermen.*fn6
Although Coleman did not decide that a preliminary hearing was constitutionally required, it did hold that when a state utilized the preliminary hearing as a stage of its criminal proceedings, the accused was entitled to counsel. 399 U.S. 1 at 9-10, 90 S. Ct. 1999, 26 L. Ed. 2d 387.*fn7 Further, Coleman requires that indigents be provided counsel at all preliminary hearings, and not simply in those cases in which a defendant is accused of a capital offense.*fn8 The Court's clear and unequivocal holding cannot be thwarted by the simple -- albeit truthful -- assertion that the structure of a county's minor judiciary makes compliance difficult. Nor can that holding be ignored by a county administration*fn9 which has apparently failed to make even those appropriations which would promptly insure at least partial compliance.*fn10
The District Court sitting only four months after Coleman was decided,*fn11 quite properly concluded that it could not reasonably expect Allegheny County officials to make the necessary procedural changes within the short time period that had elapsed. It therefore refused to grant injunctive relief.
It is now more than 20 months since Coleman and County authorities have yet to comply with its mandate. On oral argument, however, counsel for appellees unequivocally stated that changes are imminent.*fn12 In light of this assertion and subsequent supporting documentation,*fn13 we do not deem it appropriate to grant injunctive relief at this time.*fn14 Rather, we remand the case to the District Court for the holding, promptly, of further proceedings to determine whether steps have been taken to insure that the Coleman mandate will be followed in Allegheny County in the immediate future. Included in the District Court's inquiry should be a determination of the bona fides of governmental action as well as a determination of whether the proposed new developments will be instituted and operable forthwith and whether these developments will, in fact, act to remedy the situation. In the event that the District Court finds that necessary steps are not being taken, it shall fashion whatever remedies it deems appropriate, consistent with our holding that Coleman must be followed and unjustifiable delay cannot be tolerated.
The case will be remanded to the District Court for further proceedings not inconsistent with this opinion.
ON PETITION FOR REHEARING BEFORE THE ...