United States District Court, E.D. Pennsylvania
August 5, 2004.
VOICENET COMMUNICATIONS, INC., et al., Plaintiffs,
GERALD J. PAPPERT, et al., Defendants.
The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
MEMORANDUM AND ORDER
The Court decides here the question of whether a pending
Pennsylvania investigating grand jury is an "ongoing proceeding"
under Younger v. Harris, 401 U.S. 37 (1971), obligating the
Court to abstain. The Court finds that it is not.
The plaintiffs, Voicenet Communications, Inc. ("Voicenet") and
Omni Telecom, Inc. ("OTI"), have sued various law enforcement
representatives,*fn1 alleging violations of their
constitutional and statutory rights by the defendants' seizure of
Quikvue's computer equipment, pursuant to a search warrant. The plaintiffs provide computer access to Usenet, an internet
discussion and posting forum, for their subscribers.*fn2
Usenet consists of newsgroups that contain articles posted daily
on many different topics. Compl. ¶¶ 19, 21-23. OTI and Voicenet
designed, maintained, and made Quikvue, a Usenet newsreader
service, available to its customers in September of
2003.*fn3 Quikvue is a web-based newsreader that allows its
users to access and view Usenet content. Compl. ¶¶ 31-32.
The Affidavit of Probable Cause alleges that the defendant
Deery received a complaint in November of 2003 regarding the
possible distribution and possession of child pornography on
Quikvue. See Aff. of Probable Cause for Search Warrant, at 2-4.
The Bucks County District Attorney's Office obtained a search
warrant on January 20, 2004. On January 21, 2004, the defendants
seized equipment used for the operation of Quikvue. See Compl.
The plaintiffs filed a complaint and motion for a temporary
restraining order and a preliminary injunction against the
defendants on March 26, 2004. The complaint alleges that the
defendants' seizure of the plaintiffs' servers was illegal and
that the defendants' actions were an impermissible prior restraint on free speech.*fn4 In the complaint, the
plaintiffs request money damages and injunctive and declaratory
The Court held a conference with counsel on March 29, 2004, at
which time the plaintiffs agreed to withdraw their motion for a
temporary restraining order. Counsel then agreed to a hearing to discuss the legal issues raised in the motion for a
preliminary injunction, including Younger abstention issues.
The Court held oral argument on April 12, 2004.
The Court next held conferences with counsel on April 20, 2004
and April 23, 2004. The Court told counsel its view at that time
that abstention was not appropriate because there was no ongoing
state proceeding. The Court urged the defendants to return the
equipment, based on concern about possible First Amendment
violations. The defendants agreed to the return. The defendants
also agreed not to review any subscriber information that was
seized without giving advance notice to the plaintiffs.
The Court sent a letter to counsel on June 21, 2004 explaining
that the Court was planning to issue a decision by July 2, 2004
on the plaintiffs' motion for preliminary injunction. On July 2,
2004, however, the Court received a letter from the defendants
explaining that an investigating grand jury had been convened in
Bucks County and renewing its request that the Court abstain
The Court scheduled a hearing for July 13, 2004 to discuss the
defendants' renewed motion to abstain. On July 12, 2004, the
defendants Pappert and Deery filed a motion to quash subpoenas of
Special Agent Deery and Senior Supervisor Special Agent Arter of
the Computer Forensics Unit. On the same day, the defendants
Gibbons, McDonough, and Thiel filed a motion to vacate this
Court's Order of July 7, 2004, or, in the alternative, to quash subpoenas.*fn6 The Court issued an Order stating that
the motions to quash, as well as the Younger abstention issues,
would be argued at the hearing the next day, but no witnesses
need attend at that time.
At the hearing on July 13, 2004, counsel made arguments about
the new developments and whether abstention is now appropriate.
Counsel informed the Court that the plaintiffs' counsel had
entered their appearance on behalf of Voicenet and OTI before the
Honorable Kenneth G. Biehn of the Bucks County Court of Common
Pleas on June 17, 2004. On June 22, 2004, Judge Biehn, as the
supervising judge of the grand jury, granted the plaintiffs'
Petition for a Continuance of Grand Jury Appearance and Access to
Documents Relating to Grand Jury Administration. On June 30,
2004, the plaintiffs filed an Omnibus Motion to Quash Grand Jury
Investigation. The supervising judge denied that motion and
issued an opinion denying the appeal of that decision on July 7,
2004. The plaintiffs filed an emergency application for review on
July 9, 2004 with the Pennsylvania Supreme Court.
At the July 13, 2004 hearing before this Court, the parties
agreed that the Court could not dismiss the entire case even if
Younger is applicable, because the plaintiffs seek money damages in addition to injunctive and declaratory
relief.*fn7 The Court then issued a Memorandum and Order
denying the motion for a preliminary injunction on July 15, 2004.
The plaintiffs have appealed the denial of the preliminary
injunction. The Court now turns to the Younger abstention
issues for the rest of the case.
The defendants ask the Court to abstain from deciding this case
under Younger. The Third Circuit has stated, "Abstention under
Younger is appropriate only where: (1) there are ongoing state
proceedings that are judicial in nature; (2) the state
proceedings implicate important state interests; and (3) the
state proceedings afford an adequate opportunity to raise the
federal claims." Lui v. Comm'n on Adult Entm't Establishments of
Del., 369 F.3d 319, 326 (3d Cir. 2004) (citing Gwynedd Props.,
Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir.
1992)). The question is whether an investigative grand jury satisfies
the requirement of Younger.*fn8 The plaintiffs rely on a
case from this circuit in which the Court of Appeals held that a
New Jersey grand jury proceeding did not invoke Younger
abstention. Monaghan v. Deakins, 798 F.2d 632 (3d Cir. 1986),
aff'd in part and vacated in part, 484 U.S. 193 (1988). The
court ruled that the grand jury does not have the power to
adjudicate the merits of a federal claim and that it can only
issue an indictment. Id. at 637. Until that indictment had been
issued and the party had been charged, the federal courts need
not abstain under Younger. Id.
The Supreme Court vacated as moot the relevant part of the
Monaghan decision, because the parties agreed that the claims
for equitable relief were withdrawn. 484 U.S. at 200. The
defendants contend that the Supreme Court's opinion brings the
Third Circuit's holding in Monaghan into question. They cite to
the concurrence to show that the Supreme Court implied that Younger was applicable to a pending grand jury proceeding.
See 484 U.S. at 205 (White, J., concurring).
The defendants also rely on dictum in Trone v. Preate,
770 F. Supp. 994 (M.D. Pa. 1991), to argue that Monaghan can be
distinguished. The case focused on an ongoing investigative grand
jury proceeding in Pennsylvania. The court distinguished the
Pennsylvania grand jury from the New Jersey grand jury discussed
in Monaghan. The court assumed that a Pennsylvania judge could
hear constitutional objections as soon as the district attorney
files a notice of submission of a matter to the grand jury. Id.
at 998. The court stated that Younger may have been
appropriate, but because of the uncertainty of the law, the court
abstained under Pullman. Id. at 999.
The Investigating Grand Jury Act, 42 Pa. Cons. Stat. § 4541,
et seq., sets out the powers of an investigating grand jury and
the authority of the supervising judge. The focus of the
Investigating Grand Jury Act is on investigation, not
adjudication. Section 4548 sets out the powers of the
investigating grand jury. It states:
The investigating grand jury shall have the power to
inquire into offenses against the criminal laws of
the Commonwealth alleged to have been committed
within the county or counties in which it is
summoned. Such power shall include the investigative
resources of the grand jury which shall include but
not be limited to the power of subpoena, the power to
obtain the initiation of civil and criminal contempt
proceedings, and every investigative power of any
grand jury of the Commonwealth. Such alleged offenses
may be brought to the attention of such grand jury by the
court or by the attorney for the Commonwealth, but in
no case shall the investigating grand jury inquire
into alleged offenses on its own motion.
42 Pa. Cons. Stat. § 4548(a). The investigating grand jury is
also authorized to issue a presentment. 42 Pa. Cons. Stat. §
4548(b). Section 4542 defines the investigative resources of the
The Investigatory Grand Jury Act does not
appear to authorize the grand jury or the supervising judge to
reach the merits of federal claims such as the claims raised in
The Pennsylvania Supreme Court's analysis of the Investigating
Grand Jury Act, in In re Investigating Grand Jury, Appeal of
Krakower, 459 A.2d 304, 306 (Pa. 1983), further supports this conclusion. The court stated that it knew "of no
authority to suggest" that an investigating grand jury could "go
beyond that which the legislature explicitly and carefully
The Krakower court determined that the Investigating Grand
Jury Act did not authorize the use of a successive investigating
grand jury in an attempt to "cure the error" of the first grand
jury which had considered misleading evidence before making its
presentment. Id. at 305-06. The court held that "[c]entral to
the Act's purpose is the necessity of the grand jury's
resources in order to adequately investigate and uncover
criminal activity." Id. at 307 (emphasis in original). The
decision in Krakower does not suggest any authority of the
grand jury or supervising judge to decide arguments unrelated to
submissions to and the operations of the grand jury.
The decision of the supervising judge of the grand jury in the
case at hand was consistent with the Investigating Grand Jury Act
and Krakower. The supervising judge did not consider the
validity of the search warrant. The supervising judge also did
not consider Voicenet's argument that the investigation is
preempted by the ICPL, CDA, or the Constitution. The court
reasoned that any determination regarding these matters would be
premature, as there has been no presentment yet and no charges
have been filed against the plaintiffs. See In re Bucks County
Investigating Grand Jury, Appeal of Voicenet, Inc., No. 12 Misc. 2002, slip op. at 11 (Bucks County Ct. Com. Pl.
July 7, 2004), attached to Pls.' Supplemental Reply to Bucks County
Defs.' Letter Brief (hereinafter "Pls.' Supp. Reply"), ex. A;
Investigative Grand Jury, July 13, 2004 Hr'g Tr. at 13 15,
attached to Pls.' Supp. Reply, ex. B; see also July 13, 2004
Hr'g Tr. at 13-14.
The supervising judge of the grand jury did hear the
plaintiffs' argument alleging bad faith by the defendants, which
the plaintiffs also raise in this case. The plaintiffs argued
that the defendants used the investigating grand jury to impede
the case before this Court. The supervising judge held that there
was no support for this allegation, but there was otherwise no
other discussion of the issue. See In re Bucks County
Investigating Grand Jury, slip op. at 8; see also July 13,
2004 Hr'g Tr. at 13.
Although the plaintiffs raised the same or similar arguments in
both the state court and this Court, the supervising judge could
not, and did not, address any arguments raised by the plaintiffs
at this stage because no criminal charges have been filed. There
is no indication whether criminal charges will ever be filed
against Voicenet or OTI. See Apr. 12, 2004 Hr'g Tr. at 9. The
investigating grand jury proceedings did not provide the
plaintiffs with an adequate opportunity to the relief requested
in this Court. After considering the language of the Investigatory Grand Jury
Act and the actions of the supervising judge in this case, the
Court finds that the supervising judge of the investigating grand
jury cannot adjudicate the merits of this federal claim. In
addition, it is important to note that "[a]bstention . . . is the
exception and not the rule. `The federal courts' obligation to
adjudicate claims within their jurisdiction [is] virtually
unflagging.'" Marks v. Stinson, 19 F.3d 873, 881 (3d Cir. 1994)
(citing New Orleans Pub. Serv., Inc. v. Council of New Orleans,
491 U.S. 350, 359 (1989) (citations omitted)). The Court
therefore holds that Younger abstention is not
An appropriate Order follows. ORDER
AND NOW, this 5th day of August, 2004, upon consideration of
the plaintiffs' Renewed Motion to Abstain, and all responses
thereto, and following a hearing held on July 13, 2004, IT IS
HEREBY ORDERED that the motion is DENIED for the reasons stated
in a memorandum of today's date. IT IS FURTHER ORDERED that the
defendants Deery and Papperts' Motion to Quash Subpoenas (Docket
No. 46) and the defendants Gibbons, McDonough, and Thiel's Motion
to Vacate this Court's Order of July 7, 2004, or, in the
Alternative, Quash Subpoenas (Docket No. 47) are DENIED as moot.