filed: March 9, 1977; As Amended March 24, 1977, March 29, 1977.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. D.C. Crim. No. 77-26-1.
Seitz, Chief Judge, and Maris, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Adams, Circuit Judge, dissenting in part. Judges Maris and Van Dusen join in this opinion. Gibbons, Circuit Judge, with whom Judges Maris and Van Dusen, join, dissenting in part.
The major question for decision is whether the principles of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), as reiterated in Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975), bar a federal court from prohibiting sessions on Friday, the Islamic Sabbath of appellant, in a pending criminal trial in state court when available state procedures to remedy the alleged constitutional infringement have not been exhausted. Joanne D. Chesimard, the appellant in this court and the defendant in the state criminal proceedings, is a Sunni or Orthodox Muslim who observes Jumah or Jumuah (Friday) as her weekly holy day. She asserts her First Amendment right to free exercise of religion as the basis of her request for federal injunctive or declaratory relief prohibiting state officials from conducting proceedings on Friday in her trial. The district court denied the requested relief. Acting on appellant's motion for a stay of the district court's order and on appellee's petition for summary affirmance, a panel of this court granted appellant declaratory relief on her First Amendment free exercise contention. The full court vacated the panel's order and granted rehearing in banc. After additional briefing and oral argument before the court in banc, we grant appellee's motion for summary affirmance of the judgment of the district court.*fn1 We do so on the basis of Huffman, supra, 420 U.S. at 609, which requires "that Younger standards must be met to justify federal intervention in a state judicial proceeding as to which a losing litigant has not exhausted his state appellate remedies."
Indicted in New Jersey on two counts of murder, one count of armed robbery, one count of illegal possession of a weapon, and four counts of assault on two police officers, Joanne Chesimard filed numerous pre-trial motions in the state trial court. Concentrating our attention on the First Amendment claim, the account of the New Jersey proceedings discloses that on April 12, 1976, Judge Theodore Appelby, of the Superior Court of New Jersey, denied appellant's motion to recess court on Fridays during the trial in order to permit her to observe her Muslim Sabbath. Ms. Chesimard moved for leave to appeal the adverse decision to the Superior Court, Appellate Division. The Appellate Division denied her request.
New Jersey court rules explicitly permit a litigant to seek leave to appeal to its Supreme Court from an interlocutory order of the Appellate Division, "when necessary to prevent irreparable injury." New Jersey Court Rule 2:2-2(b).*fn2 The essence of appellant's claim for federal injunctive or declaratory relief is that she will suffer irreparable injury. If this can be asserted in this court system, the same argument may be asserted in the New Jersey court system under N.J. Ct. R. 2:2-2(b) to obtain Supreme Court review of the Appellate Division's order. We therefore reject appellant's contention that by virtue of New Jersey Court Rule 2:2-5*fn3 she had "no recourse whatsoever to the Supreme Court". Appellant's Supporting Memorandum at 4. We are instructed by the New Jersey Attorney General that "even at this late stage of the proceeding, the New Jersey Supreme Court may entertain a motion to proceed nunc pro tunc." Amicus Curiae Brief of New Jersey Attorney General at 5. The Attorney General argues that although there is generally a 15-day time limit on the filing of interlocutory appeals, see New Jersey Court Rules 2:4-1(c)*fn4 and 2:5-6(a),*fn5 any rule of court may be relaxed in the interest of justice under New Jersey Court Rule 1:1-2.*fn6
Given the nature of Ms. Chesimard's important and sensitive claim, we cannot characterize it as frivolous nor can we assume that the New Jersey Supreme Court would ignore it. The New Jersey Supreme Court is a distinguished tribunal which has been most solicitous of the First Amendment rights of members of the Muslim faith. For example, in Holden v. Board of Education of the City of Elizabeth, 46 N.J. 281, 216 A.2d 387 (1966), the court held that Muslim school children who, for religious reasons, refuse to pledge allegiance to the American flag cannot be excluded from New Jersey's schools. The Court there recognized "a religion known as Islam [whose members] are taught that their sole allegiance is to Almighty God Allah. . . . Their religious teachings are based on the Quran, as interpreted to them by one Elijah Muhammad, whom they regarded as their leader and spiritual prophet." 216 A.2d at 389. Particularly in light of Holden, we cannot assume that the New Jersey Supreme Court would be unwilling to give appellant's important First Amendment claim priority consideration similar to that afforded by this court.*fn7
The centerpiece of the Younger principle is the requirement that one seeking federal intervention in a pending criminal proceeding must show not merely the irreparable injury which is a normal prerequisite for an injunction, but also that the injury would be "great and immediate": "The threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution." 401 U.S. at 46. The claim is made here that Ms. Chesimard's free exercise right could not be asserted as a defense to the criminal prosecution. But it is equally true that the right could not be raised in the absence of a criminal prosecution and that it has, in fact, been asserted as part of an ongoing criminal prosecution. Ms. Chesimard raised her free exercise claim by pre-trial motion in the state court. Although the state system provides for interlocutory review of the adverse ruling she received, Ms. Chesimard has chosen not to pursue her available state remedies to their fullest extent. Under these circumstances, we believe the federal hand must be stayed. Like the Huffman Court, "we do not believe that a State's judicial system would be fairly accorded the opportunity to resolve federal issues arising in its courts if a federal district court were permitted to substitute itself for the State appellate courts." Huffman v. Pursue, Ltd., supra, 420 U.S. at 609. Whether federal intervention would be justified in the absence of state procedures for interlocutory review, or upon affirmance by the state Supreme Court, is a question we need not decide because Huffman makes clear that irreparable injury cannot exist when available state procedures have not been exhausted.
Nor does the withholding of federal relief under these circumstances do violence to the traditional notion that exhaustion of state judicial remedies is ordinarily not a prerequisite to relief sought under 42 U.S.C. § 1983, as it is to relief sought under 28 U.S.C. § 2254, Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). "By requiring exhaustion of state appellate remedies for the purposes of applying Younger, we in no way undermine Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1967). There we held that one seeking redress under 42 U.S.C. § 1983 for a deprivation of federal rights need not first initiate state proceedings based on related state causes of action. 365 U.S. at 183. Monroe v. Pape had nothing to do with the problem presently before us, that of the deference to be accorded to state proceedings which already have been initiated and which afford a competent tribunal for the resolution of federal issues." Huffman v. Pursue, Ltd. supra, 420 U.S. at 609 n.21.
Although we affirm the district court on Younger principles because we find that Ms. Chesimard has not exhausted her state appellate remedies, it is necessary to discuss briefly the contention that Younger is not applicable to this case because of the peculiar nature of the relief sought. It is contended that the request for Friday recesses is a collateral matter, not related to the central guilt-determination process, and that such collateral matters are not within the Younger rationale. While we recognize this distinction, suggested in Conover v. Montemuro, 477 F.2d 1073, 1082 (3d Cir. 1973), and noted in Gerstein v. Pugh, 420 U.S. 103, 108 n.9, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), we are not persuaded that it commands a different result in the present posture of this case. The Gerstein Court's entire discussion of the point was as follows:
The District Court correctly held that respondent's claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions. Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). The injunction was not directed at the state prosecution as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits. See Conover v. Montemuro, 477 F.2d 1073, 1082 (3d Cir. 1972); cf., Perez v. Ledesma, 401 U.S. 82, 27 L. Ed. 2d 701, 91 S. Ct. 674 (1971); Stefanelli v. Minard, 342 U.S. 117, 96 L. Ed. 138, 72 S. Ct. 118 (1951).
Conover, like Gerstein, did not involve the guilt-determination process; it concerned the right to a preliminary hearing prior to the filing of charges in a juvenile case. Federal action in Conover did not affect the adjudication of the merits of any charge. Indeed, Conover placed express precedential reliance on Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971), and recognized the narrow compass of that decision:
Even if a state prosecution is pending, injunctive or declaratory relief against state officers with respect to violations of federal constitutional rights not amounting to an injunction which will halt or substantially interfere with a pending prosecution may still be available. Lewis v. Kugler, supra at 1349.
Conover v. Montemuro, supra, 477 F.2d at 1080 (emphasis added).
The issue raised under the Gerstein formulation is whether the federal order sought would "prejudice the conduct of the trial on the merits." 420 U.S. at 108 n.9. Or, as stated by this court in Conover, the question is whether the federal order will "substantially interfere with a pending prosecution." 477 F.2d at 1080. Persuasive arguments can be made on either side of the question whether an order that requires that a pending state trial not be conducted on Fridays creates a sufficient degree of interference with the "conduct of the trial on the merits" to require application of Younger principles. But it cannot be gainsaid that, even if the order would not substantially interfere with the conduct of the trial, to permit federal intervention here when state interlocutory appellate review remains available would unnecessarily displace the state's supreme court of its role in supervising the conduct of trials in state courts. Unlike the situation in Conover, in which the order sought did not have reference to any particular trial court ruling in an ongoing proceeding, intervention here would deprive the New Jersey Supreme Court of an opportunity to review a discrete judicial ruling in a pending trial.
Accordingly, we conclude that Younger is applicable in the present posture of the case and need not consider its applicability to the situation in which state appellate review is unavailable or completed.
Moreover, the fact that the relief sought here can be characterized as collateral to the central fact-finding and guilt determination process does not necessarily remove it from Younger's reach. Kugler v. Helfant, 421 U.S. 117, 44 L. Ed. 2d 15, 95 S. Ct. 1524 (1975), vacating and remanding 500 F.2d 1188 (3d Cir. 1974) (in banc), reminded this court that even collateral issues may substantially interfere with the conduct of the trial on the merits, requiring application of the principles of equity and comity which underlie Younger : "If the federal equity power must refrain from staying State prosecutions outright to try the central question of the validity of the statute on which the prosecution is based, how much more reluctant must it be to intervene piecemeal to try collateral issues." Ibid., 421 U.S. at 130, quoting Stefanelli v. Minard, 342 U.S. 117, 123, 96 L. Ed. 138, 72 S. Ct. 118 (1951).
Finally, the Supreme Court has crisply answered the contention that although Younger precludes injunctive relief, federal declaratory relief is nevertheless available: "The basic policy against federal interference with pending state prosecutions would be frustrated as much by the declaratory judgment procedure ordered by the Court of Appeals as it would be by the permanent injunction originally sought by [petitioner]." Kugler v. Helfant, supra, 421 U.S. at 131, citing Samuels v. Mackell, 401 U.S. 66, 73, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971).
Appellee's motion for summary affirmance is granted and the judgment of the district court will be affirmed. The mandate of the court will issue forthwith.
I respectfully dissent from the Court's disposition of the Younger v. Harris*fn1 issue.*fn2 My grounds for disagreement with the majority are two-fold. First, I believe that Younger is not applicable in the situation before us, but rather, that federal remedial relief is available under the principle of Gerstein v. Pugh.*fn3 Second, even if it were to be decided that this case does not fit within the Pugh guidelines but instead falls within the general ambit of Younger, I would conclude that we are presented here with one of the "exceptional" cases referred to in the latter formulation where federal intervention is nonetheless per missible.
In recognition of the perception that "a federal lawsuit to stop a prosecution in a state court is a serious matter,"*fn4 the Supreme Court in Younger v. Harris*fn5 and its progeny*fn6 has enunciated a regime of comity between federal and state judicial processes, that has deep roots in American jurisprudence.*fn7 Younger declares that a federal court may not interfere in an ongoing state criminal proceeding absent a showing of prosecutorial bad faith or harassment or other extraordinary circumstances.*fn8 And even in those instances where the initial predicate for federal intervention has been made out, a federal court must still stay its hand unless the party seeking relief can demonstrate that without a federal equitable remedy he will suffer harm that is both great and immediate and has no adequate remedy at law.*fn9
The principles set forth in Younger are most salutary. Younger calls upon us ungrudgingly to show "a proper respect for state functions," and to recognize that in our federal system state courts as well as federal courts have a solemn obligation to preserve the constitutional rights of the citizenry.*fn10 Moreover, because the administration of the criminal process is one of the core functions of the states and since constitutional rights may normally be vindicated in the ordinary course of an unfolding prosecution, we should exhibit considerable reticence when requested to intrude in a state criminal trial.*fn11
That Younger is an important ingredient in the preservation of the frictionless operation of our federal system does not at all answer the question whether its strictures apply to the factual setting that is presented ...