*1 necessary pass upon plaintiff’s claim that for us to to elicit the son lady mother’s other issues. “messed with” his some bag. shopping of the District Court reversed, and the cause is remanded law it is clear that Ohio Under the com- with instructions to dismiss binding of a defendant over plaint. prima grand jury by a establishes probable F. cause. C. facie evidence of Robertson, 16 Ohio C.C.R.
Adams Co. v.
1908), aff’d,
(Cuyahoga
(n.s.)
Co.
;
(1910)
92 N.E.
82 Ohio St.
Palmer,
L.Abs.
Neff v.
Ohio
(C.P.C. Fayette
.2d
Co.
N.E
aff’d,
had a warrant sworn and that there legal
was no to advise the client basis prosecu-
interfere with the course of the
tion.” Mr. Borowitz doubtless
fluenced the fact that Mrs. Hruska leaving the
was detained as she was shopping in her
store with stolen dress bag, police. to the that she lied
Under all the circumstances we are probable es- cause was law, as a matter of
tablished and that directing the District Court in not erred
a verdict in favor of the defendant. Ro- gers supra. Barbera,
Appellant assigns further as error the give
refusal of the Court to to the special instructions,
certain the Court’s given jury, and cer- instructions
tain comments made the Court on the
evidence, appellant which comments destroyed credibility
claims manager
store a witness. Gould as disposition
view our it is
Plaintiffs-appellants
(as Petitioners)
three-judge
asked that a
court be con-
request
denied;
vened.
ap-
This
on
peal
the denial was reversed
remanded,
and
(2d
1973).
nated
(4)
copy
any, charges
what,
investigatory procedures;
be leveled
investigation
inmates,
particular
employee’s
these
written
during
must,
of neces-
report;
District Court’s
hypothetical in
sity, have been
hearing
inmate.
somewhat
to consult with the
safeguards
The Court
character.
stated:
Court limited
declaring
not to
such counsel was
Although
provided
thus
the services
*3
personal
“conduct his own
have leave to
investigation
may
an
afford the inmate
alternative
of the
within the confines
establishing
of
a defense to the
means
prison”
witnesses
or “to cross-examine
charge,
disciplinary
it does little to
in
to those
nor to call witnesses
addition
self-incrimination,
protect him from
by
hearing officer.”
interviewed
through ignorance
otherwise,
or
either
possible
of
far as
criminal
In
“To
short,
the Court held that:
murder, kidnaping
the like which
and
procedure whereby
inmate
condone a
an
may
goes
flow from
involvement
his
into those
uninformed
September revolt.
dangers involved,
or ill
to the
advised as
incriminating
then makes an
statement
During
discipli-
of
those
course
remedy
and
is left with
solé
a
nary hearings,
certainly
there must
pretrial
appears
suppression hearing,
come a time
determination has
when a
this
requirements
to be
with the
inconsistent
concerning
made
what statements
of due
when re
may
part may
on his
not be incrim-
or
ceived
the context of the
situ
inating
part
and
on his
what conduct
Having
ation.”
satisfied itself
may may
or
consistent
not be
with a
granted
required,
counsel was
the Court
potential
defense to
right, subject
to certain limitations.
charges presently
investigation
The trial
“de
Court concluded that the
grand
by
special
jury.
These are
permanently enjoined
fendants are
determinations not to be made
conducting any
disciplinary
and all
hear
layman
untrained
qualified
ings concerning charges against inmates
competent
attorney
in that
arising
participation
from their claimed
area of law.
Septem
events Attica between
Thus it is evident that the Court was
through 13, 1971, inclusive,
ber 9
unless
addressing
procedural
itself
safe-
and
provided
until such inmates are
guards
“charges
serious eases
appointed
assistance
retained
coun
murder, kidnaping
the like.”
and
capacity
sel to act in the
detailed
opinion.”
noting
Court,
en banc
our
view,
appeal
In our
now on
this case
decision in
Sostre
442 F.2d
stage
for the second
time is at this
(2d Cir.),
denied,
cert.
troublesomely
part,
posture.
In
obscure
due to
this is
the fact
events rele-
(1971),
vant to the issues have occurred since
(1972), qualifies
opin
its
order;
the District
also
Court’s
the class
ion with the caveat that it
not
“should
properly
may
as defined
rec-
below
holding
right
be considered as
that the
ognize certain
with different
sub-classes
required
to counsel is
in all cases of problems
“standing”. Furthermore,
prison disciplinary proceedings.”
again May
on November
on
appeal
The case now
comes to
on
“April
us
after
the decision
plaintiffs
inveigh
both
panel”
who
Court,
of this
charges arising in- from the Attica fully argues, may this not have been up surrection until such time as the parties, particularly intent of the most grand jury, to convene and now about York, State of New on November any sit, report has returned and 1971, or, then, it if was not so targets dictments, and the actual stipu- when counsel entered the written investigation that are known. lation, part very judg- which is of the appealed final ment of from, You mean a re- Court: district court here port? May operative 1973. The language “stay” of that written makes Stenger: Yes, or until such Mr. Wyoming County no reference to the time as this action is determined. In grand jury proceedings, and its but sim- words, we will relieve voluntari- ply provides that the hear- ly any of these of the dilem- ings stayed pending “shall be final byma proceeding, litigation. outcome of this .” holding direction, with Court’s then, Possibly inferred, it can be does hearings where administrative Judge Oakes, language that new re- may position they placed in be understanding parties flects the of the suggested, that has been until pending that effective they time as it is known whether par- outcome e., of this case—i. that the target investigation not, and, upon special ties do not wish to wait course, time when grand jury proceedings and other crimi- known, go we should be free to ahead investigations prefer nal to have the target, with those who are not and merits of this case resolved the feder- then we can 'discuss continuation al courts. injunction to those who been have Notwithstanding target. determined to a be We are this construc- prepared willing parties tion of the intentions of the and consent pursuant may correct, their that, direc- be our Court's notions tion, and I of sound federalism of the think will solve afore- sug- temporary ambiguity record, mentioned dilemma in of the which these remanding proceedings. noted in Sostre v. approach As was gest cautious (2d Cir. at 196 442 F.2d forth here- directions set case with denied, 1971), S. cert. inafter. Ct. motivating con- for this reasons 31 L.Ed.2d clusion are that until jury acted, not know the inmate will has (2d due at 1113 re- bill been whether not a true upon safeguards depending vary must against not, then there turned him. If light setting.3 this, it the factual charges may be still particularly premature, for an would be against preferred will be him for some panel, appellate minimum to delineate be, infraction. What process requirements the non- due any, the occa- be known until cannot target until it is members of the class nature of the Once the sion arises. charges specific established known, accused should penalties may them and what given necessary protection. This be protection regard imposed. to those members With be best formulated can targets, who are or light Court in be- District already they noted, would not as standing already fore If indictments have it. press their claims returned, can mold neces- Court agrees event before the sary accordingly. relief forego certain disci trial Court either Specifically, the trial should *5 plinary entirely or to parties by supple- have the their counsel disciplinary least until the hearings, at ment and flesh out the record to show grand jury and crimi other state spe- reasonable detail the of actions investigations nal have run their course. investigative jury cial and other Accordingly, to particular concern, we remand the case date, bodies with va- course, district court with directions to for information as which appealed reopen cate the order from and members hearing supplement charges. been the record indicted and for along connection, that, the two main lines heretofore de- this gument we note since ar- Further, once appeal, scribed. the record has there have been supplemented, newspaper reports we note re- indictments judge special grand trial wish to turned hear further ar- gument Wyoming County. relevant to the or “new” addi- facts, findings tional make and further Moreover, in the District Court should properly enter a new order or orders quire what the intent of the now State adjudicate rights parties light respecting disciplinary for thereof. No costs. (1) presently those class who members non-targets can be identified as Judge OAKES, (dissenting): Circuit special grand jury any other state investigation criminal Seldom, and for those importance, in a case of such targets who are or still of such so little been decided after so much assaulting There is a substantial difference between Correctional Officers. Merkel — plaintiffs quite apart proba- throwing weapons named from to other Roberts — bly greater differences mem- between other mates. way Thus, by gate bers attempting of the class. illustra- into break Pelow — tion, charges against appear organizing these nine and inmates to take over of- to be: ; threatening fices with also Correctional Officer. giving a note to a Correctional Nieves — striking objects with officers Ortiz — Officer to the effect that Nieves is a thrown from his cell. “Young member of the Lords”. Figueroa striking an officer. — Sumpter threatening assaulting Correctional Offi- officers. — Little — days. guarding hostages cers. four Hieks — expenditure they may ef- of so much duct that defense time and the be forced to judges With incriminate And fort alike. themselves. between majority opinion today nor I dis- neither hesitation reluctance and the intri is, three-judge procedure,2 sent from a decision that without cacies of court my view, question in unwar- this will be the second time both authority, plaintiffs ranted in law but an abne- the inmate will gation duty. appeal judicial ruling This have been denied on the merits. “expedited” by which was order In Nieves v. F.2d 1109 (2d argued July 1973) (Nieves wholly I), and was different n morethan six months panel ago, not here faced with the same claims being majority’s decided, presented since “deci- panel. to this nothing prison inmates,3 sion” decides at all. After and their class of who briefing time, pro after careful argument, able ceedings the case back to is sent prosecution, as well as criminal the district court out seeking “flesh injunction against there were record,” which, inevitably, it will regula the enforcement of certain state again knowing rise once governing disciplinary hearings. our tions legal more about the than we do reaching issues court, This while not mer now. do not will believe the case its in its a three- determination that simply appar- disappear, judge convened, stated ently hopes. duty I believe we have a unequivocally that the inmates’ claim of it, decide regulations one which the ab- “unconstitutionality of the jures. applied where both proceedings against an inmate goes saying almost without offing unquestionably majority’s are in raises fails to reach — grave I, merits of in the case: whether constitutional issues.” Nieves riot, volved in the Attica included added) (emphasis “except for Indian massacres (footnote omitted). The district court one-day the bloodiest encounter between granted *6 on with remand motion to a War,”1 the Americans since Civil would injunctive relief, request the draw process by having be denied due to un making thereby three-judge court dergo disciplinary hearings an of before unnecessary,4 declaratory and entered by unprotected ficer of the coun May 23, dated 1973. Both sel, unable to call in their witnesses be parties appealed the order then from be half, and unable to or con cross-examine low, today free so that we be to against front the witnesses them—hear on the reach the inmates’ claims merits ings only in which their allowed defense majority’s present not for the were it explain is to their in their own actions words, “unquestionably own to that with the result con- non-decision these that Special Rockefeller, 649, 1. v. New York 4. 458 651- on At- Rosario State Commission (2d aff’d, 752, Report, (1972). 1972), 410 tica Official xi 652 n. 2 Cir. U.S. rehearing 1245, 1, de 93 36 L.Ed.2d S.Ct. g., Heffernan, 2. B. v. Thoms F.2d 478 473 1920, nied, 36 L.Ed.2d 411 U.S. 93 S.Ct. (2d petition filed, 41 for cert. (1973) ; F. 351 419 Carter v. (U.S. (No. Apr. 9, 1973) U.S.L.W. 3555 1359). 72- (W.D.N.Y.1972). Supp. 787, 2 See 789 n. supra Heffernan, 2. note also Thoms v. cooperative actually designated by 3. The as in Thoms was the dis- Here the State disciplinary pro judge by stipulating May trict to a order of presently appeal penning appeal, comprised ceedings this is of those resolution may seek a have to inmates who he so would not to consequent charges charges stemming injunction, temporary and criminal convention, occurring three-judge the and so that same or at court incident incidents during Facility court the the this Attica the merits could be reviewed Correctional period September 9-13, expeditiously. 1971. more 808 normally requiring grave action constitutional issues” an en banc . only “hypothetical.”
are,
all,
court.
after
“grave
issues”
this unwarranted
and unauthor
These
constitutional
But
according
inexplicable
“hypothetical,”
to
ized
the basis
action is
majority
us,
majority,
not known at
“it
facts before
unless
because
is
facts,
charges
eyes
what,
may
simply
any,
has
to those
time
if
closed its
particular
unless,
months,
against
or
after
the facts
inmates.”
six
these
leveled
forgotten.
merely
in
For
in the face
have
been
Such
determination
flies
I,
any,
“what,
stance,
Nieves
of this
it
is stated that
court
decision
against
hypotheti-
may
these
did
find the issues
be leveled
although
all,
particular
it
fewer
facts
is “not known
cal at
inmates”
present panel,
simply not
true.
it
this time.”6
than
This
disciplinary charges,
they
As
the issues
substantial as
for the
found
so
convening
Complaint
require
a three-
stated in the Amended
judge
rule on
merits. The
in its
court
admitted
Answer.7
State
They
saying
in footnote 3
here is now
are even summarized
wrong
majority opinion.
it
fur
in Nieves was
court
hy-
discipli
the claims as
ther
Answer
should have dismissed
admits
nary hearings
against
pothetical,
least
remanded
held
or at
have
will be
inmates, except
stayed by
ma-
out the record.” The
court
case
“flesh
acknowledging
jority,
order,
it is
without
and that
certain
doing
so,
rejecting
already
in effect
law
held
during
overruling
I,
case and
activities
inmates because of
authority
questioned
does
know
If indeed the
jurisdiction
important
de
district
retain
over
to a
and other
it deems
record,”
why
merits,
out
as di
this case
“flesh
is not clear
on the
cision
majority,
necessary
has
rected
the case
case
determine
when
remand
My
“hypothetical”
power
propri
beyond
decide.
been found too
understanding
or
them.
ety
It is not
always
public
if a case
been that
itself to check the
conjectural
hypothetical
Supreme
Wyoming County
is too
or
records
par
controversy,
a federal court
ease
then
with both
Court or to communicate
jurisdiction
supply
infor
has no
over
See O’Shea
it.
ask
ties and to
them
Littleton,
either
38 L.Ed.
be achieved
414 U.S.
S.Ct.
This
mation.
could
reargument.
(U.S.
15, 1974) ;
Wade,
through
2d 674
Jan.
Roe
written communications
Education,
113, 127-129,
L.Ed.
v. Board of
C
Brown
f.
(1973).
Refugee
2d 147
Joint Anti-Fascist
L.Ed.
73 S.Ct.
Cf.
McGrath,
panel
Committee v.
this self-same
either
(Frank
actually
presented
L.Ed.
could then
decide
*7
J.,
hand,
furter,
concurring).
possibilities,
By rejecting
other
On the
to
majority
these
it.
presented
a
a
federal
case
its “notions
with
demonstrates
controversy
it,
de
is bound to decide
avoid
federalism”
its desire to
sound
cision,
but
judicial
postpone
consequent
as further
decision until such time
waste
with
may
or,
facts
make a
easier
decision
time and resources.
Virgin
matter,
even better. Cohens
ia,
Wheat.)
(6
404,
charged
hav-
9 counts of 1st Unlawful supra. ment 10. See note 3 variety discipli- question yet ripe of the to a wide is not because nary charges, majority injunction” “temporary see at the State con (herein swpra, it note and that would concludes sented to on November “premature” process stay”). majority the to determine after the “1971 learning passage due before each inmate is the what lifts a out of context from charged possible hearing day discover, or, and the dis- what more to imagine penalties by ciplinary accurately, the are. to an intent disciplinary not to hold State totally misses, majority What the against anyone grand special until the setting however, that the here is factual jury report, makes its final and addi for attention is calls willingness tionally by the to State disciplinary charge penalty the in the stays further to mem “consider those hearing all; it that an in- at is . bers of the class tar who defending mate’s means himself gets.” By rejecting the record as according charge disciplinary from the presented majority court, the to this challenged regulations is ex- to euphemistically “the takes what it calls by plain words, in his own unaided coun- remanding approach” cautious Ordinarily happened. sel, what this case intent to discover what State’s might regulations suffice, well willing it and what is consider challenged generally applied are not say, now.12 this “cautious Needless to circumstances, here. set of how- this approach” will cost courts ever, already indict- where the inmate is literally de hundreds of extra hours to (as ed for are three serious crimes respect in to each inmate termine facts plaintiffs than 57 the named and more respect in member of when inmates) arising of, or other out where representative inmate members engaged in an is investi- already class there are sufficient gation furnishing of, the same incidents grave panel to this resolve is disciplinary charges, basis suppose presented. sues One pos- inmate is forced choose between that, despite majority, merits incriminating sibly himself crimi- passed upon by will this court have to be proceeding presenting no nal defense someday perhaps than later. sooner hearing. Thus, disciplinary at all in the — regret busy But must one par- does not turn on what trial York the Western District New charge disciplinary ticular or criminal judges spend time their “flesh may be, jeopardy rather on the dual ing already record. sufficient out” proceeding involved where is State with both and criminal ac- consenting The intent against At- tions inmates involved in the clearly seen the 1971 is even tica disturbance. quoted language by majority sweep majority, language all the unable to once that viewed context. rug grave way argued constitu On November by prelimi- tional noted issue before the for a district court below, I, nary injunction the court courts,11 hearings arising number avoids At- out of the events question due in this tica. The State consented suggesting injunction except temporary situation that somehow Bee, g., Palmigiano Baxter, why Again, e. hard understand v. (1st 1973) ; majority is so reluctant to ask the Cir. Nov. Sands very questions Wainwright, F.Supp. district court 1092-1093 it directs the reargument (M.D.Fla.1973) ; ask. of Milwaukee Either letter or Inmates —the County F.Supp. 1157, having ques- Petersen, of these Jail v. asked (E.D.Wis.1973) argument ; could tions in initial Carter —the thereby ; questions F.Supp. 787, (W.D.N.Y.1972) “flesh answer its own 792-795 F.Supp. Procunier, *9 finds so lack- Clutchette out” its own record which it (N.D.Cal.1971). ing. stay provide proceed can for avoid- no basis with disci- able wished be ing clearly against any hearings here on the fabricat- decision plinary inmate prevents stay grand jury, notion that the special ed be- the cleared being ripe the from until the issue not sub- an inmate would be cause such grand jury report makes its claim ject to the self-incrimina- —a suggested by never the State. until But could not be known tion. it grand special jury had finished its the Moreover, it even were otherwise— report and made its work makes the this indicted. had been cleared and which stay on the incredible —the 1971 border tempo- Thus, consented to a the State stipulation supplanted by was a written against rary injunction pendente lite parties May between the hearings arising from disciplinary proceed which stated that disturbances, during events the Attica ings stayed only “pending the would be grand special jury but made its if the litigation.” final No outcome this litigation ended, report final grand special mention is made of proceed would free to then the State pursuant stipulation, at all. This against anyone indicted, and would judgment appealed from which the temporary discuss extension governs entered, is what this case. injunction pendente lite as to those suggest beyond It is as the ma belief language quoted the ma- dicted. The jority State, does that which entered jority understanding reflects as it stipulation express pur into the for the stating disjunctive, is in that pose expediting appeal on the injunction temporary un- will last either merits,14 thereby destroy the intended jury’s report til the or un- standing” “present and conse til the action’s If there determination. quently adjudication lose an on the mer any doubt, been which there was its. it, majority’s until invention of majority, however, does not let district order have elimi- court’s should logic, plain language, mere or the intent nated it: parties way stand de agreement stay, par- Such Rather termination to avoid the merits. ties, until is continue either majority suggests Special Jury Grand made its re- position consid of the State that “it will port or until the merits of this action stays er to those members further as determined, whichever existing potential who are event occurs targets,”15 reasoning first. “further that such any (W. stays” the inmates from Civil 1971-526 save 8, 1972) added). (emphasis their Mar. and that thus D.N.Y. immediate threat Thus, absolutely ripe is are not for determination. certain that claims stipulation 13. 14. The entire : id. follows See hereby stipulated 1. It the at- judgment language explained above, in con- tached As he entered willing- previously lieu of the entered in- text 1971 referred to the State’s stays junctive pendente order, lite further to obviate the need for ness to consider reports ap- special grand jury three-judge expedite made its court and peal finally preju- judgment, It determined. from such without before the action was willingness referring any parties’ respective challenges ex- dice to the was not litiga- pendency stays beyond judgment. to the tend substance such Indeed, stipulated admits Answer is further the disci- tion. State’s hearings plinary held” paragraph “will be described plaintiffs, stayed has been and there of the attached shall be suggestion pending litiga- indication final outcome of this proceeding tion, forbearing reason assert the de- shall not pending lay resulting holding hearings the determina- than the such stay, challenging this action. from such tion of a basis for they when are in fact held. *10 812 I ques- in Nieves time, court both of this it must be third For present dis- majority of the why itself and the but also does not tioned court, attempted consider, what to do rath- trict it will what ask majority judges’ it to do wasting here commands
er than
counsel’s
again
necessary pro-
re- once
on a needless
and resources
time
—fashion
light
moreover,
may,
questioned
of the
tection for the inmates in
It
mand.
vacating
majority
suggest
the rea-
by
right
can
facts.
what
by
already
might
protections
worked out
soned
which it
a means
the State
which,
protections
destroy
ripeness
the district
court—
beyond
sure,
ju- be
I think somewhat insufficient
not be
claims. While
legal
—gives
suggestions
for its action.
propriety
no
basis
to make
dicial
ignorance of
be-
settlement,
perhaps
it claims
in some Rather
aimed at
ambiguity
it;
controversy,
in the
fore
a court
to mediate a
finds
cases
exists;
suggesting
“no-
sides,
record where none
and its
take
means
cannot
party
are unex-
party
tions of sound federalism”
plained.
one
that will enable that
they
nonexist-
possible
I also think
de-
avoid a
adverse
stroying
jurisdiction
ent in law.
or the
the court’s
justiciability of a claim.
merits,
think
On the
teach
importantly,
major
however, the
More
ings
itself,
of Sostre
when viewed
ity
explain
does not
the relevance of
light Morrissey
Brewer,
v.
might
“consider”
92
In DeFunis
quired
proceedings,
(April
designated by
charges stemming
judge
1. The class
inal
from the
the district
Attica dis
composed
September 9-13,
of all
those inmates
turbance of
who
disciplinary charges
and crim
ing
forego
presence,
well be
casts
not decided
the state
inter-
on the
effect
surely
one.
substantial adverse
proceedings,
an academic
petitioning parties.”
ests of
matter,
in this
It does
Super
at 1698.
U.S. at
led to
which have
the circumstances
striking
Tire,
was whether
the issue
any possible
dropping of
eligible
for assistance
workers were
voluntary
ac-
stem from the
Supreme
programs. The
state welfare
made
The state
tion of the state.
decision,
Court,
held the
a 5 to
*12
proceed
not to
with disci-
its decision
though
moot even
not to be
plinary proceedings
rec-
as a matter of
strike had come
case was tried the
ord,
certainly
reason to
and there is
the avail-
found that
The court
an end.
dismissed,
that, once
believe
this ease
ability
welfare assistance
of state
discipli-
the state will then reinstitute
continuing
present
on the
effect
nary
pointed
charges.
in
As was
out
petitioners
parties. As
terests
317,
DeFunis,
at
416
at
94
U.S.
S.Ct.
striking
eligibility
argued,
there
1706,
practice
has been the settled
“[i]t
“[a]ffects
receive benefits
workers to
Court,
signifi-
in contexts no
less
relationship,,
bargaining
the collective
cant, fully
accept representations
bar-
a collective
both .
when
parameters
as these as
for decision.
agreement
gaining
for-
Board,
v.
See Gerende Elections
341 U.S. mulation,
ongoing
in the
collective-
565,
(1951);
56
S.Ct.
95 L.Ed.
[71
745]
bargaining relationship,
the eco-
so that
Elkins,
54,
Whitehill v.
389
57-58
U.S.
man-
nomic balance between labor
184,
(1967);
S.Ct.
19 L.Ed.2d
[88
228]
agement,
pre-
carefully formulated and
States,
99,
Ehlert v. United
402
107
U.S.
by Congress in
labor
the federal
served
1319,
(1971);
[91 S.Ct.