State of New Jersey v. Chesimard, Joanne D., (A/k/a) Assata Shakur

555 F.2d 63, 1977 U.S. App. LEXIS 14385
CourtCourt of Appeals for the Third Circuit
DecidedMarch 9, 1977
Docket77-1104
StatusPublished
Cited by34 cases

This text of 555 F.2d 63 (State of New Jersey v. Chesimard, Joanne D., (A/k/a) Assata Shakur) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of New Jersey v. Chesimard, Joanne D., (A/k/a) Assata Shakur, 555 F.2d 63, 1977 U.S. App. LEXIS 14385 (3d Cir. 1977).

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The major question for decision is whether the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), as reiterated in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (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 [65]*65banc, we grant appellee’s motion for summary affirmance of the judgment of the district court.1 We do so on the basis of Huffman, supra, 420 U.S. at 609, 95 S.Ct. at 1211 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.”

I.

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).2 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 [66]*66Jersey Court Rule 2:2-53 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 “[e]ven 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(e)4 and 2:5-6(a),5 any rule of court may be relaxed in the interest of justice under New Jersey Court Rule 1:1-2.6

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 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.7

II.

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, 91 S.Ct. at 751. 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 [67]*67criminal 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, 95 S.Ct. at 1211. Whether federal intervention would be justified in the absence of state procedures for interlocutory review, or upon af-firmance 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, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). “By requiring exhaustion of state appellate remedies for the purposes of applying Younger, we in no way undermine Monroe v. Pape,

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Bluebook (online)
555 F.2d 63, 1977 U.S. App. LEXIS 14385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-new-jersey-v-chesimard-joanne-d-aka-assata-shakur-ca3-1977.