Samuel Britt v. Elwood S. McKenney, 529 F.2d 44, 1st Cir. (1976)
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Scribd Government DocsSamuel Britt v. Elwood S. McKenney, 529 F.2d 44, 1st Cir. (1976)
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Scribd Government Docs529 F.
2d 44
Samuel BRITT et al., Plaintiffs-Appellants,
v.
Elwood S. McKENNEY et al., Defendants-Appellees.
No. 75--1279.
United States Court of Appeals,
First Circuit.
Argued Oct. 9, 1975.
Decided Jan. 23, 1976.
Henry Paul Monaghan, Boston, Mass., with whom Wallace W. Sherwood,
Brian W. LeClair, Richard W. Benka, and Foley, Hoag & Eliot, Boston,
Mass., were on brief, for appellants.
Robert V. Greco, Asst. Atty. Gen., Crim. Div., with whom Francis X.
Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Crim. Bureau,
Boston, Mass., were on brief, for appellees.
Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
ALDRICH, Senior Circuit Judge.
On this appeal five plaintiff appellants seek to maintain a class action for a
declaratory judgment to the effect that Massachusetts criminal defendants who
are unable to afford stenographers or other means to record the testimony at
probable cause hearings, Mass. G.L. c. 276, 38, 42, have been
constitutionally deprived by the Commonwealth's failure to create a transcript.
They are faced at the outset with a claim that jurisdiction for declaratory relief
does not exist. If none of the named plaintiffs may maintain this action on their
own behalf, they may not seek such relief on behalf of a class. O'Shea v.
Littleton, 1974, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674.
It is agreed that all five plaintiffs are indigent, and had probable cause
determinations made against them at hearings at which there were no
stenographers or tape recordings, it not being the court's practice to make such
records,1 although Massachusetts permits parties to do so on their own. All five
were thereupon 'bound over' to the grand jury, and subsequently indicted. Two
have been tried and acquitted. Except on the claim that they may commit future
crimes, so as to raise the question in futuro, it is impossible to see how these
two plaintiffs have any interest in the issue.2 A speculative future interest is not
enough. Golden v. Zwickler, 1969, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113.
The remaining three plaintiffs were tried and convicted. One is presently
incarcerated, another has been released on parole, and the third is on probation.
We may assume that they are all sufficiently in custody to maintain petitions
for habeas corpus. See Jones v. Cunningham, 1963, 371 U.S. 236, 83 S.Ct. 373,
9 L.Ed.2d 285 (parole); Hensley v. Municipal Court, 1973, 411 U.S. 345, 93
S.Ct. 1571, 36 L.Ed.2d 294 (released on own recognizance).
3
However, the complaint seeks relief not against plaintiffs' custodians but
against state court judges. Federal courts normally have no jurisdiction to
decide cases which present no active controversy between the parties at the
time of decision. Golden v. Zwickler, ante.3 With regard to any present
connection with the named plaintiffs, defendants are functus officio and are not
exposed even to a civil action for damages. Pierson v. Ray, 1967, 386 U.S. 547,
553-55, 87 S.Ct. 1213, 18 L.Ed.2d 288. Declaratory relief against the judges is
accordingly inappropriate.
Nonetheless, plaintiffs correctly argue that it would be a simple matter to
substitute their custodians, who would presumably be represented by present
counsel, and with whom there does exist a live controversy, as defendants.
There seems no good reason to avoid a decision on the merits, if there is a
legitimate defendant. Cf. Hensley v. Municipal Court, ante, 411 U.S. at 352, 93
S.Ct. 1571. Even if declaratory relief is inappropriate, that fact would not alone
prevent treating this action as a habeas corpus proceedings. See Scruggs v.
Henderson, 6 Cir., 1967, 380 F.2d 981 (per curiam); Coronado v. United States,
5 Cir., 1965, 341 F.2d 918 (per curiam), cert. denied, 381 U.S. 943, 85 S.Ct.
1782, 14 L.Ed.2d 707; cf. United States v. Morgan, 1954, 346 U.S. 502, at 505
& n. 3, 507, 74 S.Ct. 247, 98 L.Ed. 248; Gajewski v. United States, 8 Cir.,
1966, 368 F.2d 533 (per curiam), cert. denied, 386 U.S. 913, 87 S.Ct. 865, 17
L.Ed.2d 786. On the other hand, if a decision on the merits is to be justified by
the existence of actual controversies with individual custodians, the basis for a
class action would seem highly attenuated, even though a technical argument
might be made that each custodian is an agent for the state, the more
particularly because before a writ would be granted the state would be entitled
to show that any alleged error was harmless. We will proceed with the suit on
the assumption that the correct defendants will be named, but not as a class
action.4
No useful purpose would be served by our repeating the extensive discussion
contained in the majority and dissenting opinions of the Massachusetts
Supreme Judicial Court, Commonwealth v. Britt, 362 Mass. 325, 285 N.E.2d
780. We merely add a few observations.
Although the Massachusetts probable cause hearing is of a substantive
character, see Myers v. Commonwealth, 363 Mass. 843, 298 N.E.2d 819,
causing it to constitute a 'critical stage' in the proceedings under Coleman v.
Alabama, 1970, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, we think it clear
that if no transcript were obtainable by anyone there would be no deprivation of
due process. Under Massachusetts law any further proceedings are de novo. 'A
decision that there is probable cause does not assure further prosecution; a
decision that there is no probable cause does not preclude further prosecution.'
Commonwealth v. Britt, ante, 285 N.E.2d at 783. The state need not provide
such a probable cause hearing before prosecuting on an indictment, and an error
at such a hearing would not void a subsequent indictment or conviction. See id.,
285 N.E.2d 783--84; Gerstein v. Pugh, 1975, 420 U.S. 103, 119, 95 S.Ct. 854,
43 L.Ed.2d 54. We do not believe there is an affirmative due process obligation
to record testimony just because it might be of use to a defendant.
With regard to plaintiffs' equal protection claim, the question is not whether the
state has denied equal protection in furnishing a transcript to a defendant who
can pay for it but not to one who cannot, cf. Roberts v. LaVallee, 1967, 389
U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (per curiam), but simply whether there is
a constitutional violation in not providing plaintiffs with a transcript when
affluent defendants could provide their own.
The matter of equal protection in this area is a question of degree. Ross v.
Moffitt, 1974, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341. We cannot agree
with plaintiffs that the same reasoning applies for providing a transcript of a
probable cause hearing as does for requiring counsel. A defendant's need for
counsel is far greater. In Coleman the plurality opinion noted four reasons
counsel are important at probable cause hearings: (1) for purposes of crossexamination; (2) to obtain testimony useful at trial; (3) for discovery, and (4) to
be heard on bail and other preliminary matters. Some of these reasons do not
require the recording of the testimony at all, and others make recording of at
least secondary importance. 399 U.S. at 9, 90 S.Ct. 1999. Furthermore, the
deciding opinion of Mr. Justice Black rested upon the specific constitutional
right to counsel.
Non constat that a recording, if effected by the state, cannot be withheld
because of lack of ability to pay, Roberts v. LaVallee, ante; cf. Britt v. North
Carolina, 1971, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400. Roberts has been
read to mean that a transcript is always so important that any difference
between the indigent and nonindigent is per se impermissible. Gardner v.
United States, 1969, 132 U.S.App.D.C. 331, 407 F.2d 1266, cert. denied, 395
U.S. 911, 89 S.Ct. 1757, 23 L.Ed.2d 225. However, there must be a point at
which a state need not submit to a demand based on indigency. Ross v. Moffitt,
ante, 417 U.S. at 616, 94 S.Ct. 2437. We think it appropriate to contrast the
need for counsel at a probable cause hearing with the need for a transcript.
While there is no black and white answer to this question, the need for a
transcript does not seem great enough to include the provision thereof within
the category of states' affirmative equalizing obligations just because some
parties are able to record transcripts on their own. We accept the view of the
Massachusetts court.
10
Affirmed.
A few comparable Massachusetts courts have been making recordings on an
experimental basis. Plaintiffs, correctly, do not contend that this is a denial of
equal protection in those courts that are not part of the experiment. Cf. Aguayo
v. Richardson, 2 Cir., 1973, 473 F.2d 1090, 1108--10, cert. denied sub nom.
Aguayo v. Weinberger, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101
Although the two acquitted plaintiffs were incarcerated for want of bail,
awaiting trial, when the action was brought, their claim is mooted even if
regarded as a habeas proceeding, since there is no present custody, or
conviction, cf. Carafas v. LaVallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20
L.Ed.2d 554; Robson v. United States, 1 Cir., 1975, 526 F.2d 1145
The 'evading review' exception, Roe v. Wade, 1973, 410 U.S. 113, 125, 93
S.Ct. 705, 35 L.Ed.2d 147, is inapposite
We realize that since plaintiffs are losing the case on the merits, post, the
Commonwealth now may be the one to regret that plaintiffs' class action claim
fails
