Dismissal of civil rights complaint against Connecticut prosecutors by United States District Court for the District of Connecticut, T. F. Gilroy Daly, Chief Judge, reversed as to claim relating to alleged prosecutorial leaking of secret information to the media, subject, however, to a qualified immunity defense; in other respects dismissal affirmed.
Oakes, Kearse, and Winter, Circuit Judges.
This appeal is by Arthur B. Powers, former Commissioner of the State of Connecticut Department of Transportation, from the dismissal of his civil action for damages under 42 U.S.C. § 1983. Powers sued Austin J. McGuigan, Chief State's Attorney for the State of Connecticut, and Assistant State's Attorney Glenn E. Coe,*fn1 McGuigan's former chief trial counsel, in connection with their initiation and conduct of a one-person grand jury investigation into the Connecticut Department of Transportation, and the subsequent prosecution of Powers. Numerous claims of deprivations of federal constitutional rights were made in Powers' complaint, stemming from alleged prosecutorial misconduct and vindictiveness, primarily involving alleged injuries to Powers' reputation, his ability to hold state office, and his right and capacity to defend himself from the charges. This section 1983 action, which was brought one day before Powers' criminal trial was to commence in state Superior Court, sought an injunction against the state proceedings as well as declaratory relief and damages. The United States District Court for the District of Connecticut, T. F. Gilroy Daly, Chief Judge, denied the injunction under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). Approximately three weeks later the court granted the various state defendants' motion to dismiss on the grounds that the complaint failed to state a claim upon which relief could be granted, Fed. R. Civ. P. 12(b)(6), and that in view of the disposition*fn2 of the state criminal proceedings, the complaint was moot. We affirm in part and reverse in part.
With the appeal in this posture, we are, of course, required to construe the allegations of the complaint in the light most favorable to the plaintiff, irrespective of whether recovery is remote or unlikely. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). We are well aware, as the appellees note, that many of the facts are in dispute, but following a dismissal for failure to state a claim we must look solely to the complaint. We note also that while the appellees' motion to dismiss and their accompanying papers related solely to Powers' claim for injunctive relief, the district court dismissed all of Powers' claims for relief, and that "the practice of dismissing claims 'on the basis of the barebone pleadings is a precarious one with a high mortality rate.'" Madison v. Purdy, 410 F.2d 99, 100 (5th Cir. 1969), citing Barber v. M/V "Blue Cat", 372 F.2d 626, 627 (5th Cir. 1967).
For purposes of this appeal at least the parties seem to agree on certain facts. In September, 1981, Chief State's Attorney*fn3 McGuigan applied for the convening of a one-person grand jury*fn4 to investigate charges of corruption in Connecticut's Department of Transportation, and appointment of a person to conduct the grand jury was duly made. Powers was of course at that time Transportation Commissioner. Between September and December of 1981, Powers testified three times before the one-person grand jury. On October 23, 1981, on the occasion of Powers' second appearance, McGuigan agreed that if Powers resigned his office, he would not be prosecuted, with the proviso that no evidence subsequently uncovered showed that Powers had engaged in serious felonious conduct in the performance of his duties. Powers accordingly resigned as Commissioner on October 26, 1981.
In December, 1981, and January, 1982, Powers received certain telephone calls from one Joseph Hirsch pertaining to Hirsch's forthcoming appearances before the grand jury. Hirsch evidently was a contractor who did business with the Department of Transportation but he was also a close friend of Powers and the godfather of one of Powers' children. In any event, these telephone calls to Powers were, with Hirsch's consent, wiretapped and on the basis of what was said in those calls an information charging Powers essentially with obstruction of justice was filed on April 15, 1982. Powers was arrested on those charges that same day. Both the Connecticut printed press and television media carried stories on the entire Powers' matter from the beginning.
On October 4, 1982, Powers moved in state court to dismiss the information against him or in the alternative for an evidentiary hearing on the ground that the Chief State's Attorney had engaged in prosecutorial misconduct by leaking secret information from the one-person grand jury investigation to the media. These leaks, according to Powers, included accounts of his testimony and that of other witnesses before the grand jury, identification both of documents subpoenaed by the grand jury and of individual targets of the investigation, identification of the specific types of criminal conduct on which the grand jury was focusing, and reports of the daily activities of the investigators, as well as predictions as to future arrests. Powers' motions were denied without prejudice on October 6, 1982.
In November of 1982, the one-person grand jury was reconvened, and a substituted or superseding information charging Powers with four additional felonies was filed later that month. Powers' motion to dismiss or for an evidentiary hearing was renewed on December 14, 1982. Another state court judge, succeeding upon the death of the original trial judge, denied this motion in January, 1983. Powers' appeal to the state Supreme Court was dismissed in March, 1983. The section 1983 complaint in the present action was filed in federal court on March 14, 1983, one day before trial began on the criminal charges in state court. Chief Judge Daly denied the prayer for injunctive relief, and trial commenced on schedule. On April 4, 1983, Powers pleaded guilty to two misdemeanor counts in the Connecticut Superior Court on a plea bargain under which the other charges were dropped. On April 18, 1983, the district court dismissed the complaint in this case, and it is from that dismissal that this appeal is taken.
ADDITIONAL ALLEGATIONS TAKEN AS TRUE
Factual allegations of the complaint which, though disputed, we must take as true for purposes of this appeal are Powers' allegation that the Chief State's Attorney and his office leaked grand jury information to the press "maliciously and in bad faith in order to prejudice public opinion against [Powers], deprive [Powers] of his right to an unbiased jury and a fair trial, pressure [Powers] to plead guilty to the charges against him, and further [the Chief State's Attorney's] own political ambitions . . . ." Specifically, Powers identifies a Hartford Courant investigative reporter and a television news and anchor person in Hartford, as having privately met with the Chief State's Attorney at various times and places attested to by Powers' private investigators. Some sixty-nine articles published between September of 1981 through August of 1982, allegedly only a sample, are said to reveal secret information that was before the grand jury. The complaint also alleges that shortly after Powers filed his alternative motion either to dismiss or for an evidentiary hearing on October 4, 1982 (hereinafter "the Alternative Motion"), the Chief State's Attorney maliciously and in bad faith recommenced the dormant grand jury and misused it for discovery purposes with regard to the outstanding information. The Chief State's Attorney is also alleged to have filed maliciously and in bad faith the substituted information charging Powers with four additional felony counts. In addition, the complaint alleges that the Chief State's Attorney fraudulently induced Powers to enter the agreement of October 23, 1981, which required Powers to resign as Commissioner, and that the Chief State's Attorney almost immediately undertook to breach that agreement.
The Chief State's Attorney breached his agreement with Powers, according to the complaint, by directing Joseph Hirsch repeatedly to engage Powers in wiretapped telephone conversations to create a charge of tampering, thereby permitting the State to disavow its agreement not to prosecute, and then by obtaining a ten-count information charging Powers with numerous crimes for which McGuigan had already agreed not to prosecute plaintiff. Powers alleges that in these wiretapped telephone conversations, Hirsch "importuned [Powers] to discuss [Powers'] grand jury testimony and to discuss Hirsch's forthcoming testimony with [Powers]", and that "the sole purpose of these telephone calls was to fabricate a violation of the agreement between the State and [Powers], so that the state could claim that [Powers] breached the agreement." It is also alleged that on the occasion of Powers' first appearance before the one-person grand jury on September 25, 1981, the statement was made on the record that Powers was "a target" of the grand jury investigation.
Powers claims that at all times the Chief State's Attorney and the members of his office knew that Powers was represented by counsel and was a target of the grand jury. Nevertheless, on his account, they maliciously and in bad faith deprived him of effective assistance of counsel by using Hirsch in an attempt to induce the commission of criminal acts by Powers. It is also alleged that the Connecticut courts have absolutely denied Powers an evidentiary hearing on his claims of egregious prosecutorial misconduct so that he has no further recourse in the Connecticut courts. Moreover, he claims he has been denied due process of law because the Connecticut Supreme Court, which appoints the Chief State's Attorney, cannot constitutionally review the acts of its own appointed prosecutorial official.
ISSUES INVOLVED OR SAID TO BE INVOLVED
The parties do not agree as to the particular claims for relief presented by the wide-ranging complaint. Powers claims that by the systematic leaks to the press he was deprived of his rights to a fair trial, to fundamental fairness, and to due process. He also claims that the prosecutorial misconduct resulted in compensable damage to his reputation, and that the allegedly illegal wiretaps violated his Sixth and Fourteenth Amendment right to counsel and his Fifth Amendment right to due process. Powers also contends that the failure of the state courts to furnish him with an evidentiary hearing to prove the charges of prosecutorial misconduct made in his Alternative Motion, coupled with the failure of the Chief State's Attorney or his office to provide countervailing affidavits or evidence, violated due process. Finally, he alleges further denial of due process stemming from the Chief State's Attorney's breach of his agreement not to prosecute, and from the claimed misuse of the grand jury.
Not surprisingly, the appellees contend that none of Powers' allegations states a claim for which relief may be granted. They argue that the alleged deprivation of the right to a fair trial resulting from the alleged leaks was mooted by Powers' guilty plea. With respect to Powers' assertion that his reputation was injured by the prosecutors' unlawful conduct, the appellees cite Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), for the proposition that injury to reputation alone is not cognizable under the Constitution, and hence will not support a section 1983 claim. In response to Powers' charges arising out of the wiretaps, the appellees maintain that this conduct was lawful and that appellant's Sixth Amendment claim is accordingly totally without merit. With respect to Powers' complaint that the state courts denied him an evidentiary hearing on his claim of prosecutorial misconduct, the appellees assert that there is no federal right to have a state judge act any particular way, and that there is no basis for holding prosecutors responsible for a court's holding. Finally, the appellees point to Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 ...