The opinion of the court was delivered by: BRODERICK
In a courtroom packed with the conflicting emotional reactions which the present school teachers strike in Philadelphia has engendered, this court held a hearing to determine whether the leaders of the Union, Frank Sullivan and John Ryan, who are presently serving a sentence of six months to four years in the Philadelphia County Prison for violating an order of the Court of Common Pleas, should be released on bail pending disposition of their appeals in the State Court System. The Court takes judicial notice of the school teachers strike and the irreparable injury which it must be inflicting on its innocent victims -- the public school students in Philadelphia. We hope and pray that before this opinion is filed the strike will be settled. The determinations in this opinion will not, however, settle the strike. This Court must simply determine whether the Relators' Eighth or Fourteenth Amendment rights have been violated under circumstances which permit this Court to grant habeas corpus relief.
The instant petition was filed in this Court on Tuesday, February 13, 1973. On that same date, this Court issued the following Order:
And NOW, this 13th day of February 1973, after consideration of relators' petition for a writ of habeas corpus, it is
Ordered that the respondent, Louis Aytch, make a return certifying the true cause of the detention.
Ordered that the petition is set for hearing on the merits on February 16, 1973 at 10:00 A.M. in Courtroom No. 13 of this United States Courthouse, 9th and Market Streets, Philadelphia, Pennsylvania.
Ordered that counsel for relators or their authorized representative be and is hereby authorized to make service of the petition herein and a copy of all other papers which have been filed of record in this Court, said service to be made before 10:00 A.M. on February 14, 1973 on the respondent, the President Judge of the Court of Common Pleas for the County of Philadelphia, the District Attorney of Philadelphia, and the Attorney General of the Commonwealth of Pennsylvania, and the Board of Education of the School District of Philadelphia, and the City Solicitor of Philadelphia.
Ordered that proposed Findings of Fact and Conclusions of Law, with briefs, in support thereof, shall be filed, in duplicate, by all parties with respect to the merits of the petition on or before 5:00 P.M. Thursday, February 15, 1973.
On Wednesday, February 14, 1973 this Court, after a hearing, entered a Memorandum and Order denying Relators' petition for bail pending the hearing and determination of the matter on the merits. There is presently pending in the Circuit Court of Appeals a petition for a Writ of Mandamus and an appeal in connection with this Court's Order of February 14, 1973.
At the hearing which took place on February 16, 1973 both Frank Sullivan and John Ryan were present. They were represented by Leonard M. Sagot, Esq. and John Poserina, Esq., Judith Dean, Esq., Assistant District Attorney, presented the Commonwealth's case urging the Court to deny the writ. Also appearing in opposition to the Writ was Stanley Bluestein, Esq., representing the President Judge of the Court of Common Pleas. Philip J. Berg, Esq. appeared on behalf of the Attorney General, responding solely to the Relators' allegations relating to the unconstitutionality of Section 1003 of the Public Employe Relations Act of 1970 through its counsel. The School District of Philadelphia, through its counsel, Vincent J. Salandria, Esq., urged the Court by letter to "grant the petitioners reasonable bail." The City Solicitor of Philadelphia, Martin Weinberg, Esq., advised the Court by letter that the District Attorney's Office would file an answer and argue the matter.
At the bar of the Court all the parties agreed that the Relators were found guilty of criminal contempt and that the relevant facts are as follows:
Relator John Ryan, chief negotiator of the Philadelphia Federation of Teachers, Local 3, AFT, AFL-CIO, and Relator Frank Sullivan, President of the Philadelphia Federation of Teachers, Local 3, AFT, AFL-CIO, are citizens of the United States and the Commonwealth of Pennsylvania. On January 4, 1973, the Board of Education of the School District of Philadelphia filed a Complaint in Equity pursuant to Section 1003 of the Public Employe Relations Act of 1970, 43 P.S. § 1101.1003, in the Philadelphia Court of Common Pleas as of January Term, 1973, No. 558, seeking to enjoin Relators and twenty-six (26) other named defendants including the Philadelphia Federation of Teachers from engaging in a work stoppage within the Philadelphia School District during the school year scheduled to commence in September 1972 and end on June 30, 1973.
And NOW, to wit, this 5th day of January, 1973, defendants' preliminary objections raising the question of jurisdiction is sustained to the extent it deals with the jurisdiction of the Court in this case to grant an injunction before a strike actually occurs.
The complaint is listed for hearing on Monday, January 8, 1973, in Room 653, City Hall.
On January 8, 1973 a strike occurred by the Philadelphia Federation of Teachers against the Philadelphia School District. On January 11, 1973 the Court issued an Injunction pursuant to the Complaint of January 4, 1973 and § 1003 of the Public Employe Relations Act of 1970, enjoining the defendants from engaging in a strike or work stoppage for the remainder of the 1972-1973 school year. (See Exhibit P-3.) It was agreed by all parties that the injunction be considered a final order. On January 12, 1973, the defendants filed an appeal to the Commonwealth Court of Pennsylvania, said appeal being docketed as No. 46 CD 1973. In the appeal to the Commonwealth Court from the Order of January 11, 1973, defendants challenged the jurisdiction of the lower court to entertain the Complaint in Equity subsequent to sustaining Preliminary Objections on a jurisdictional basis, and said appeal also challenged the legal propriety of the injunction in accordance with § 1003 of the Public Employe Relations Act of 1970. The parties to the appeal have filed briefs, and oral argument on the appeal was heard by the Commonwealth Court on January 29, 1973. The Court took the matter under advisement, and at the present time the parties are presently awaiting its decision. (See Exhibit P-4.) On January 18, 1973 the Philadelphia Board of Education filed two applications, one for indirect criminal contempt against all named defendants in the original complaint and the other citation for civil contempt. Preliminary objections were filed to the application for civil contempt citation. The Court determined that the indirect criminal contempt citation should issue and that the civil contempt citation be held in abeyance and ordered the District Attorney to prosecute the indirect criminal contempt citation. (See Exhibit P-5.) On January 18, 1973, the Relators appeared before the Court of Common Pleas for their preliminary arraignment with respect to the indirect criminal contempt charges brought against them. At that time, the President Judge of the Court of Common Pleas ruled that the Act of 1931, the Indirect Criminal Contempt Act, controlled the procedure before the Court. On January 18, 1973, the Relators and all other Defendants were arraigned and pled not guilty to the criminal contempt bills lodged against them, and the President Judge of the Court of Common Pleas afforded the Relators bail pending trial and permitted them to sign their own bond pending the commencement of the trial. (See Exhibit P-6.) On January 22, 1973, prior to the commencement of the trial by jury, the President Judge of the Court of Common Pleas granted Defendants' Motion for Severance and ordered that Relators Frank Sullivan and John Ryan and the Philadelphia Federation of Teachers be tried separate from the remaining named defendants. (Exhibit P-7 (a), (b) and (c).) Prior to and throughout the course of the trial the Court ruled that the criminal trial of Relators would be governed and controlled by the rules and procedures specifically set forth in the Indirect Criminal Contempt Act of 1931, 17 P.S. § 2048. (See Exhibits P-8(a) and (b).) On January 22, 1973 the trial court denied Defendants' Motion to Quash the application for citation for Indirect Criminal Contempt, which Motion alleged in part that the Court was without jurisdiction to issue the injunction of January 11, 1973, thus rendering the application for Indirect Criminal Contempt void ab initio. (See Exhibits P-9; P-10 (a), (b) and (c).) The trial court in its opening statements to the jury and throughout the duration of the trial repeatedly ruled that it had a narrow issue before it for decision. The issue according to the court was merely whether or not an Order of the Court had been issued, validly served and then violated. The Court repeatedly indicated any evidence and/or arguments beyond that scope would be immaterial and irrelevant. On January 25, 1973 the jury returned a verdict of guilty against Relators and the Philadelphia Federation of Teachers. (See Exhibit P-11.) Upon receipt of the verdict of guilty, the trial court specifically stated that the indirect criminal contempt proceedings were governed by Pennsylvania Rules of Criminal Procedure, and thus afforded the Defendants a right to file Motion for New Trial and Arrest of Judgment within seven days. The trial court further ruled that defendants would be permitted to remain on one thousand dollars ($1,000) bail (release on their own recognizance). The deputy district attorney who prosecuted the case on behalf of the school board, Robert Gabriel, Esq., voiced no objections to the continuance of bail on personal recognizance. (See Exhibit P-12.) On February 8, 1973 the trial court denied Defendants' Motion for New Trial and Arrest of Judgment. On February 9, 1973 the court sentenced Relator Frank Sullivan to pay a fine of five thousand dollars ($5,000) and undergo a term of imprisonment of not less than six (6) months and not more than four (4) years. At the same time the Court ordered Relator John Ryan to serve a term of imprisonment of not less than six (6) months and not more than four (4) years. (See Exhibits P-14, 15 and 16.) In sentencing Relators, the Court specifically held that § 2048 of the Indirect Criminal Contempt Act of 1931, 17 P.S. § 2048, was inapplicable to the sentencing of Relators and that the Court would sentence pursuant to the Public Employe Relations Act of 1970, Section 1007 of which reads as follows:
In the event any public employee refuses to obey an order issued by a court of competent jurisdiction for a violation of the provisions of this article, the punishment for such contempt may be by fine or imprisonment in the prison of the county where the court is sitting or both in the discretion of the court.
Section 2048 of the Indirect Criminal Contempt Act of 1931, 17 P.S. § 2048 specifically provides that punishment for Indirect Criminal Contempt shall not exceed a fine of one hundred dollars ($100) and/or fifteen (15) days' imprisonment. (See Exhibit P-18.) Section 1009 of the Public Employe Relations Act of 1970 provides as follows:
In fixing the amount of the fine or imprisonment for contempt, the court shall consider all the facts and circumstances directly related to the contempt including but not limited to (i) any unfair practices committed by the public employer during the collective bargaining processes; (ii) the extent of the wilful defiance or resistance to the court's order; (iii) the impact of the strike on the health, safety or welfare of the public, and (iv) the ability of the employe organization or the employe to pay the fine imposed. (See Exhibit P-19.)
Immediately subsequent to sentencing, counsel for Relators requested the Court for a Supersedeas of its Order and to continue and/or set bail pending appeal. The Court denied said request for Supersedeas and for bail pending appeal. Deputy District Attorney Robert Gabriel informed the Court that his office took no position with respect to the continuance of bail pending appeal. Relators were then remanded forthwith to the custody of the Philadelphia County Sheriff and taken to the Philadelphia House of Corrections where they are presently incarcerated. (See Exhibit P-20, (a) and (b).) On February 9, 1973, Relators filed a Petition for Special Supersedeas and Stay of Execution of Sentence Pending Appeal in the Supreme Court of Pennsylvania, said petition being docketed as 313 Miscellaneous Docket No. 19. In a letter dated February 9, 1973 to the Honorable Benjamin R. Jones, Chief Justice of the Supreme Court of Pennsylvania, the District Attorney for the City of Philadelphia, Arlen Specter, Esq., informed the Supreme Court that his office did not object to the setting of bail for Relators pending appeal, on the grounds that the Relators "are entitled to equal consideration afforded to others who are convicted in a criminal court." On February 12, 1973 the Supreme Court of Pennsylvania informed counsel for Relators that their Petition for Special Supersedeas and Stay of Execution of Sentence Pending Appeal was denied. As a consequence thereof, Relators remain incarcerated in the House of Correction but are permitted to be released from 10:00 A.M. to 4:00 P.M. Monday to Friday in custody of two guards. Relators are two officers of the Philadelphia Federation of Teachers with no previous criminal history and of undisputedly high standing in the community. (See Exhibits P-23 and 24.) Throughout the duration of the criminal trial, which proceeded as an indirect criminal contempt trial, Relators were released on their own recognizance and appeared at each and every stage of the proceeding. Relators presently maintain, and have maintained throughout their adult life, residency in the City of Philadelphia, and there is no dispute that they will not leave the jurisdiction of the Court pending disposition of the numerous legal issues in the instant matter.
This is a Petition for a Writ of Habeas Corpus. There is no question that this Court has jurisdiction in this matter. 28 U.S.C. § 2254 specifically provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
There is no question that the Relators are in custody pursuant to the judgment of a State court and that they have alleged that they are in custody in violation of the United States Constitution. However, before proceeding to the determination of the issue of whether their custody is in violation of the Constitution of the United States, we must consider the cautions specifically set forth in subsection (b) of Section 2254 that "a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner."
In addition, subsection (c) of Section 2254 provides that "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented."
There is no question that subsections (b) and (c) of Section 2254 mean what they say. Our United States Supreme Court has said in Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971):
It has been settled since Ex parte Royall, 117 U.S. 241 [29 L. Ed. 868, 6 S. Ct. 734] (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. See, e.g., Nelson v. George, 399 U.S. 224, 229 [26 L. Ed. 2d 578, 90 S. Ct. 1963] (1970); Irvin v. Dowd, 359 U.S. 394, 404-405 [3 L. Ed. 2d 900, 79 S. Ct. 825] (1959); Ex parte Hawk, 321 U.S. 114, 88 L. Ed. 572, 64 S. Ct. 448 (1944). The exhaustion of state remedies doctrine, now codified in the federal habeas corpus statute, 28 U.S.C. § 2254(b), (c), reflects a policy of federal-state comity, Fay v. Noia, 372 U.S. 391, 419-420 [9 L. Ed. 2d 837, 83 S. Ct. 822] (1963); Bowen v. Johnston, 306 U.S. 19, 27 [83 L. Ed. 455, 59 S. Ct. 442] (1939), "an accommodation of our federal system designed to give the State the initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. 249, 250 [30 L. Ed. 2d 418, 92 S. Ct. 407, 408] (1971). We have consistently adhered to this federal policy, for "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation." Darr v. Burford, 339 U.S. 200, 204 [94 L. Ed. 761, 70 S. Ct. 587] (1950) (overruled in other respects, Fay v. Noia, supra, [372 U.S.] at 435-436). It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied. See, e.g., Wilwording v. Swenson, supra, [404 U.S.] at 249-250; Roberts v. LaVallee, 389 U.S. 40, 42-43 [88 S. Ct. 194, 19 L. Ed. 2d 41] (1967); Brown v. Allen, 344 U.S. 443, 447-450 [97 L. Ed. 469, 73 S. Ct. 397] (1953).
Furthermore it is the law of the Supreme Court of the United States that federal habeas corpus may not be used in lieu of an appeal itself, since this would permit the use of habeas corpus "as a matter of procedural routine to review state criminal rulings." Brown v. Allen, 344 U.S. 443, 448-49, n. 3 [97 L. Ed. 469, 73 S. Ct. 397] (1953); Williams v. Oriscello, et al., 441 F.2d 1113, 1114 (3d Cir. 1971).
Now, have the Relators exhausted the remedies available to them in the State Court? Let us examine each of the allegations set forth by the Relators as grounds for the issuance of the ...