In Re Justices of the Superior Court Department of the Massachusetts Trial Court

United States Court of Appeals
For the First Circuit
____________________
No. 00-1168

IN RE: JUSTICES OF THE
SUPERIOR COURT DEPARTMENT
OF THE MASSACHUSETTS TRIAL COURT,
Petitioner.

____________________

ON PETITION FOR EXTRAORDINARY WRIT

____________________

Before

Torruella, Chief Judge,

Stahl and Lipez, Circuit Judges.

_____________________

Cathryn A. Neaves, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, and Catherine E. Sullivan,
Assistant Attorney General, were on brief, for petitioner.
Max D. Stern, with whom Jonathan Shapiro, Patricia Garin,
Stern, Shapiro, Weissberg & Garin, Michael Angelini, Bowditch &
Dewey, LLP, Sara Rapport, Perkins, Smith & Cohen, LLP, Joseph
Monahan and Monahan & Padellaro were on brief, for respondent.

____________________

July 3, 2000
____________________
 TORRUELLA, Chief Judge. The Commonwealth of

Massachusetts, in name of the Justices of the Superior Court of the

Massachusetts Trial Court, asks us to exercise our mandamus

authority under the All Writs Act, 28 U.S.C. § 1651, to order the

district court to decide or otherwise dispose of a pretrial

petition for habeas corpus relief which the Commonwealth claims is

interfering with state criminal proceedings. Although this power

is used exceedingly sparingly, we determine that this case poses an

issue of such importance, and one so elemental to the proper role

of the federal judiciary in our constitutional scheme, as to
warrant the issuance of an advisory mandamus granting the requested

relief.

I. Factual Background

James N. Ellis, Jr., Nicholas Ellis, James N. Ellis, Sr.,
and Leonora Ellis1 are four former employees of the Worcester,
Massachusetts law firm of Ellis & Ellis. In 1997, they were

indicted by a Massachusetts grand jury on numerous counts of
insurance fraud and related charges following a lengthy
investigation by the Insurance Fraud Bureau of Massachusetts
("IFB"). The presentation to the grand jury, and the ongoing

criminal prosecutions, were and are being handled by assistant

1
In this Court, these four individuals are technically
respondents to the writ for extraordinary relief. In the district
court, however, they were petitioners, with respect to the
underlying petition for habeas corpus relief. And in state court,
of course, they were defendants in the criminal trial and
appellants in the appellate proceedings. In an effort to avoid
confusion, we will endeavor to refer to them as "the defendants,"
or to make explicit to whom we refer if other terminology is used.

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attorneys general in the Insurance Fraud Division of the

Massachusetts Attorney General's Office.

In November of 1997, defendant James N. Ellis, Jr., filed
a motion to dismiss the indictments or to disqualify prosecuting

counsel; the motion was subsequently joined by the other three

defendants. Defendants argued that the assistant attorney generals
prosecuting their state criminal cases were impermissibly biased,

due to the unusual statutory scheme by which the IFB and the

Insurance Fraud Division are funded.

As expressly authorized by statute, see Mass. Gen. Laws

ch. 427, § 13 (1996), the IFB is a quasi-governmental entity

created by two voluntary associations of Massachusetts insurance

carriers, the Automobile Insurance Bureau and the Workers'
Compensation Rating and Inspection Bureau, for the prevention and

investigation of fraudulent insurance transactions. The governing

board of the IFB consists of fifteen members, five from each rating
bureau and five specified public officials. The costs of

administering the IFB are borne equally by the two rating bureaus.

In addition to bearing the costs of administering the

IFB, the two rating bureaus are also subject to annual assessments,

which are used to partially fund the investigatory and

prosecutorial actions of the Insurance Fraud Division of the

Attorney General's Office. By statute, the Attorney General is

required to dedicate the funds so received to matters referred to

him by the IFB, and he must further designate a total of at least

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thirteen assistant attorneys general to work full-time on matters

referred by the IFB.2

Following a nonevidentiary hearing, the judge presiding
over the state trial proceedings denied the motion to dismiss the

indictments or disqualify counsel. Construing all facts in the

light most favorable to defendants, the court found that the
statutory scheme did not violate defendants' constitutional or

statutory rights to a disinterested prosecutor. Upon defendants'

request, the trial judge reported his decision to the Massachusetts

Appeals Court, and the Supreme Judicial Court granted defendants'

application for direct appellate review.

On April 14, 1999, the Supreme Judicial Court affirmed

the denial of the motion to dismiss or disqualify, as well as the
denial of defendants' request for an evidentiary hearing. See

Commonwealth v. Ellis, 708 N.E.2d 644 (Mass. 1999). After

reviewing the statutory scheme for infirmity on its face or as
applied to defendants in particular, the court concluded that

defendants were not deprived of any constitutional right, although
a majority expressed concern that the closeness of the IFB and the

Insurance Fraud Division might be "difficult to justify on policy

grounds." Id. at 654.

On May 4, 1999, defendants filed a joint pretrial habeas

corpus petition in the United States District Court for the

2
This does not mean that the Attorney General is required to
investigate or prosecute all matters referred by the IFB, only that
these particular funds and prosecutors shall not be allocated to
matters initiated by means other than a referral from the IFB. See
Commonwealth v. Ellis, 708 N.E.2d 644, 652-53 (Mass. 1999).

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District of Massachusetts. In the petition, defendants claim that

their "custody" on personal recognizance is in violation of the Due

Process Clause of the Fourteenth Amendment because their
prosecutors are impermissibly "interested" in their cases due to

the relationship between the IFB and the Insurance Fraud Division

and because they were denied a constitutionally sufficient
opportunity to establish such unlawful influence. The petition

specifically requested discovery and an evidentiary hearing,

claiming that they had been denied the ability to develop the facts

in the state court. An initial hearing was held by the district

court on October 27, 1999, at which the Commonwealth argued that

the defendants' claim was not an appropriate subject for pretrial

habeas relief.
On December 8, 1999, approximately one month before the

first state court trial date, the district court issued an order

(1) requiring the Commonwealth to respond to defendants' discovery
requests by December 15, 1999 and (2) preliminarily setting an

evidentiary hearing date for December 22, 1999, but not addressing

the underlying issue of whether the court would accept jurisdiction

over the habeas petition. On December 17, 1999, the court issued

a second order, in which it asserted jurisdiction over the petition

and rescheduled the evidentiary hearing for December 30, 1999.

On December 16, 1999, the Commonwealth filed a petition

for extraordinary relief with this Court, seeking relief from the

district court's order scheduling an evidentiary hearing. This

Court ordered defendants to respond, and they did so on

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December 20, 1999, on which date they also moved the district court

to postpone the hearing. The district court vacated the December

evidentiary hearing, thus mooting the Commonwealth's petition,
which was subsequently withdrawn.

The district court then set a January 31, 2000 deadline

for in camera production of privileged documents requested in

discovery by defendants, and rescheduled the evidentiary hearing

for April 3, 2000. While preserving its objection to the

imposition of discovery in the habeas proceedings, the Commonwealth

complied with the January 31, 2000 deadline for in camera

production.

Defendants then, without seeking leave of court, noticed

the depositions of four board members of the IFB for January 18-19,
2000 and January 24-25, 2000. The first trial of James N. Ellis,

Jr. was scheduled to begin (and did begin) on January 14, 2000.

The district court denied motions filed by the Commonwealth and by
the IFB to quash the depositions, as well as the Commonwealth's

motion for reconsideration.

The Commonwealth filed this second petition for

extraordinary relief on February 7, 2000, claiming that the

pretrial habeas proceedings in federal court are interfering with

the criminal proceedings before the Massachusetts trial court.

Since the petition was filed, the first trial of James N. Ellis,

Jr. resulted in a hung jury and a mistrial after ten weeks; no

retrial has yet been scheduled. Nicholas Ellis was scheduled to

begin trial on two indictments on June 15, and James Ellis, Jr.

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will undergo a second trial on two separate indictments beginning

on July 17. Further trials involving defendants have not yet been

scheduled. It appears that the federal court evidentiary hearing
scheduled for April 2000 was not held, due to the pendency of this

petition for extraordinary relief.

II. Law and Application

1. Standard for Advisory Mandamus

The Commonwealth's petition seeks a writ of prohibition3

under the All Writs Act, 28 U.S.C. § 1651, prohibiting the district

court from asserting jurisdiction over defendants' pretrial habeas
petition. As the parties have correctly noted, mandamus relief is
a "drastic remedy," to be used sparingly and only in unusual
circumstances. In re Recticel Foam Corp., 859 F.2d 1000, 1005 (1st

Cir. 1988). Mindful of the extraordinary nature of mandamus
relief, we have limited its availability to "those rare cases in
which the issuance (or nonissuance) of an order presents a question

anent the limits of judicial power, poses some special risk of
irreparable harm to the appellant, and is palpably erroneous."
United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994). However,
in certain rare cases, we will exercise our mandamus power even

when this exacting standard is not met. See, e.g., id. We refer

3
As our prior cases have recognized, the distinct writs of
prohibition and mandamus are often discussed interchangeably. See
United States v. Horn, 29 F.3d 754, 769 n.18 (1st Cir. 1994). The
two writs derive from the same statutory basis and incorporate the
same standards, so we will continue the practice of referring to
them interchangeably. See id.

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to such exercise of authority under the All Writs Act as advisory

mandamus. See id.4

Advisory mandamus has its roots in the Supreme Court's
reference to mandamus review of "basic, undecided question[s]."

Schlagenhauf v. Holer, 379 U.S 104, 110 (1964); see Horn, 29 F.3d

at 769; see also 16 Wright et al., supra, § 3934. It is
appropriately invoked when the action or inaction of the district

court presents an issue of great importance and novelty, and one

the resolution of which will likely aid other jurists, parties, and

lawyers. See Horn, 29 F.3d at 769-70 (citing In re Justices of the

Supreme Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982), and

In re Bushkin Assocs., Inc., 864 F.2d 241, 247 (1st Cir. 1989)).

In United States v. Horn, 29 F.3d 754, 770 (1st Cir.
1994), we found the case before us to be a "prime candidate for

advisory mandamus." We noted, inter alia, that the issue presented

had never before been squarely decided and bore importantly on the
relationship between the Judicial and Executive Branches of

government. See id. In particular, we found the argument for

mandamus in that case to be "especially compelling because [the

case] is important in the right way. It poses an elemental

question of judicial authority -- invoking precisely the sort of

4
As in previous cases, we hasten to distinguish between
supervisory mandamus and advisory mandamus. Supervisory mandamus
is used to correct an established, but significantly improper,
trial court practice. Advisory mandamus, in contrast, is
appropriate for issues of particular importance and novelty, such
as that raised in this case. See Horn, 29 F.3d at 769 n.19; 16
Charles A. Wright et al., Federal Practice and Procedure § 3934.1,
at 573 & n.5 (1996).

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'Article III-type jurisdictional considerations' that traditionally

have triggered mandamus review." Id.

2. Advisory Mandamus Is Appropriate in this Case

Like the issue presented in Horn, the issue raised by the

Commonwealth's petition is a prime candidate for advisory mandamus.

Not only is the availability of pretrial federal habeas relief for

"disinterested prosecutor" claims an issue of first impression, but

the greater issues of federalism underlying this case implicate the

concerns with judicial overextension of jurisdiction that the

mandamus writ has traditionally been used to correct. See id. (and
cases cited therein).

a. Federal Policy Against Interference with State
Court Proceedings

The federal courts have long recognized the "fundamental
policy against federal interference with state criminal

proceedings." Younger v. Harris, 401 U.S. 37, 46 (1971). This
policy is rooted firmly in the basic federal structure of our
government. Two fundamental concepts underlie our constitutional

system of government; one is the precept of "separation of powers"

and the other is the doctrine of federalism. The latter concept,
which is most acutely at issue in this case, reflects the Founders'

determination that the best governance would result if sovereignty,

rather than being collected entirely within the new government,

were split between the new national government and the various

state governments, as was expressed somewhat "after the fact" in

the Tenth Amendment to the Constitution. See id. at 44.

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 As early as 1793, Congress manifested its understanding

and intention that the state courts be allowed to conduct state

proceedings free from interference by the federal courts, when it
prohibited the federal courts from issuing injunctions to stay

proceedings in state court. See 1 Stat. 335, ch. 22, § 5 (current

version at 28 U.S.C. § 2283); Younger, 401 U.S. at 43. This
congressional policy, subject to only a few exceptions, has

remained essentially unaltered to this day, see 28 U.S.C. § 2283;

Younger, 401 U.S. at 43, and is reflected in the federal courts'

own policies, including most notably the abstention doctrine

developed in Younger v. Harris, 401 U.S. 37 (1971), and its

progeny, see, e.g., Middlesex Ethics Comm. v. Garden State Bar

Ass'n, 457 U.S. 423, 431 (1982).
As the Supreme Court has recognized, the policy against

federal interference with state judicial proceedings is premised on

a proper respect for state functions, a
recognition of the fact that the entire
country is made up of a Union of separate
state governments, and a continuance of the
belief that the National Government will fare
best if the States and their institutions are
left free to perform their separate functions
in their separate ways. . . . The concept
does not mean blind deference to "States'
Rights" any more than it means centralization
of control over every important issue in our
national Government and its courts. . . .
What the concept does represent is a system in
which there is sensitivity to the legitimate
interests of both State and National
Governments, and in which the National
Government, anxious though it may be to
vindicate and protect federal rights and
federal interests, always endeavors to do so
in ways that will not unduly interfere with
the legitimate activities of the States.

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Younger, 401 U.S. at 44. It is this fundamental consideration that

has led the federal courts to abstain from interfering with state

court proceedings even where defendants claim violations of
important federal rights. See, e.g., Younger, 401 U.S. at 53

(First Amendment claims); Cruz v. Melecio, 204 F.3d 14 (1st Cir.

2000) (freedom of speech and association, right to vote, and equal
protection claims); Casa Marie, Inc. v. Superior Court, 988 F.2d

252 (1st Cir. 1993) (fair housing claim under Civil Rights Act of

1968); Bettencourt v. Bd. of Registration in Medicine, 904 F.2d 772

(1st Cir. 1990) (due process and equal protection claims); Davis v.

Lansing, 851 F.2d 72, 77 (2d Cir. 1988) (Batson claim of race-based

peremptory challenges).

b. Applicability of Abstention Principles to Habeas
Cases Generally

Defendants argue that the abstention doctrine and its
underlying principles do not apply to this case, emphasizing that

they are not seeking an injunction or other equitable relief
against the state proceedings (such as was involved in Younger),

but rather are pursuing a habeas remedy provided for and governed

by statute. We find this position unavailing primarily for two

reasons.
First, although we appreciate the difference between a

request for equitable relief and a request for statutory relief
generally, the practical difference between the relief requested in
defendants' habeas petition and an ordinary injunction is minimal.

Defendants' petition for writ of habeas corpus specifically asks

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the district court to "grant the writ and discharge petitioners

from custody." Pet. for Writ of Habeas Corpus, Commonwealth v.

Ellis, Case No. 99-CV-10915-NG (D. Mass.), at 9. Such discharge,
of course, would be tantamount to an injunction requiring the

defendants' release and prohibiting the state from proceeding with

the current prosecution. Whatever distinctions might exist between
the two remedies, the difference in this case is essentially

"semantic." Davis v. Lansing, 851 F.2d 72, 76 (2d Cir. 1988)

(affirming dismissal of pretrial habeas petition on abstention

grounds).

Second, even accepting the distinction between equitable

relief and statutory remedies, Younger speaks of the policy against

federal interference with state court proceedings, a reference
which we do not read as limited exclusively to equitable relief.

See Younger, 401 U.S. at 43; see also Davis, 851 F.2d at 76

(affirming dismissal of habeas petition on abstention grounds);
Neville, 611 F.2d at 676 (same). Furthermore, although defendants

quote language from a Supreme Court decision referring to the

"statutes, rules, precedents, and practices that control the

[habeas corpus] writ's exercise," Lonchar v. Thomas, 517 U.S. 314,

323 (1996), and suggest that the body of law surrounding the writ

of habeas corpus is self-contained and exclusive of other

considerations, there is nothing in the Lonchar decision (or any

other case that we are aware of) that purports to render

inapplicable one of the fundamental characteristics of our

governmental structure -- federalism and its mandate that the

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federal government, including the Judiciary, avoid undue

interference with state matters.

c. Abstention Principles in Pretrial Habeas Context

The applicability of comity and abstention principles to

habeas proceedings is amply demonstrated by the courts' treatment

of habeas petitions brought prior to conviction in the state

proceedings. With only two exceptions to date,5 the federal courts

have routinely rejected petitions for pretrial habeas relief

raising any variety of claims and issues. See, e.g., Carden v.

Montana, 626 F.2d 82, 83-85 (9th Cir. 1980) (recognizing general
rule prohibiting pretrial habeas relief as "a logical implication

of the abstention doctrine announced in Younger v. Harris");

Neville v. Cavanagh, 611 F.2d 673 (7th Cir. 1979) (affirming denial

of pretrial habeas petition even though defendant had exhausted

state court remedies, because of abstention considerations); see

also Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484, 493
(1973) ("We emphasize that nothing we have said would permit the

5
Notwithstanding the general rule against pretrial habeas
petitions, we will "in appropriate circumstances entertain a claim
that permitting a nascent (but as yet incomplete) state court
prosecution to go forward would violate the Double Jeopardy
Clause." Allen v. Attorney General of Maine, 80 F.3d 569, 572 (1st
Cir. 1996). But see Doe v. Donovan, 747 F.2d 42, 44 (1st Cir.
1984) (double jeopardy claim failed to justify exception to
Younger abstention doctrine). Pretrial habeas petitions claiming
violation of the defendant's right to a speedy trial have also been
permitted when the requested relief is an immediate trial, see
Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484
(1973), although when the petitioner seeks dismissal of the charges
against him his habeas action must await the conclusion of state
proceedings, see Carden v. Montana, 626 F.2d 82, 84-85 (9th Cir.
1980).

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derailment of a pending state proceeding by an attempt to litigate

constitutional defenses prematurely in federal court."). We

particularly note the Seventh Circuit's decision in Neville v.

Cavanagh, 611 F.2d 673 (7th Cir. 1979), a case "on all fours" with

this one. There, the court affirmed the district court's denial of

pretrial habeas relief even though defendant had litigated his
claim all the way to, and received a ruling on the merits from, the

Illinois Supreme Court. The Seventh Circuit noted that the

defendant did indeed "seek to derail a pending state criminal

proceeding, and that he may be acquitted at trial." Id. at 676.

The Court therefore concluded that federal adjudication of the

defendant's claim was correctly postponed "until 'a time when

federal jurisdiction will not seriously disrupt state judicial
processes.'" Id. We fully agree with the Seventh Circuit's

analysis of the issue, and we reach a like conclusion.

d. Abstention Is Required in this Case

Given the importance of the federalism concerns at issue

in this case, and the degree to which the district court's orders
threaten the delicate and important balance between vigorous
protection of federal rights and an appropriate respect for the

state conduct of state matters,6 this case is "a classic case for

6
Although we conclude that the district court should not have
asserted jurisdiction over defendants' habeas petition at all, our
conclusion is bolstered by the court's imposition of discovery and
its apparent intention to conduct an evidentiary hearing in the
habeas action. The practical burden of such proceedings is not
insignificant, and the inquiry by a federal court into the
prosecutorial decisions of a state attorney general poses
"separation of powers" issues in addition to federalism issues.

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abstention." Davis, 851 F.2d at 76. Just as in the Neville case,

the fact that defendants have in a real sense exhausted their state

court remedies7 does not alleviate the damage caused by federal
intervention at this early stage of state court proceedings, for at

least two reasons. First, the existence of concurrent federal

proceedings may, in any number of practical ways, interfere with
the state court's administration of the state prosecutions of these

defendants. Second, and perhaps more important, to permit pretrial

habeas relief in this case could dangerously distort the incentives

acting upon state courts in their adjudication of claims such as

defendants' "disinterested prosecutor" claim. Ordinarily, state

trial judges have a number of incentives to favor immediate appeal

of their determinations of constitutional challenges to the
propriety of proceedings, such as defendants' claim here. Allowing

immediate appeal, in appropriate cases, protects the rights of

individual defendants and also promotes the efficient
administration of justice. However, if immediate appeal through

state court channels were to then lead to intrusive contemporaneous

federal habeas proceedings, state courts would face a very real

disincentive to the certification of such decisions for immediate

appeal. This result would benefit no one, and would have negative

consequences for both courts and criminal defendants.

7
As the Seventh Circuit noted, the decision of the highest state
court "is, without doubt, the law of the case, and [defendant]
cannot realistically anticipate a different result on this issue at
trial or on direct appeal." Neville, 611 F.2d at 676.

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 In light of the foregoing, the need for federal

abstention in this case is "'perfectly clear.'" Davis, 851 F.2d at

76. With the notable exceptions of cases involving double jeopardy
and certain speedy trial claims, federal habeas relief, as a

general rule, is not available to defendants seeking pretrial

review of constitutional challenges to state criminal proceedings,
and this case does not present the kind of "special circumstances"

which might require a different result. Braden, 410 U.S. at 489.

To the contrary, the weighty federalism concerns implicated by the

petition for writ of habeas corpus and by the district court's

assertion of jurisdiction make pretrial federal adjudication of

defendants' claim inappropriate.8 Defendants are not entitled to

consideration of their federal habeas claims "until 'a time when
federal jurisdiction will not seriously disrupt state judicial

processes.'" Neville, 611 F.2d at 676.

8
Although we are not greatly impressed by the Commonwealth's
allegations of harm to the Attorney General's Office in this case,
see, e.g., In re Justices of the Supreme Court of Puerto Rico, 695
F.2d at 20 ("The Supreme Court has made clear in another context
that the expense of litigation ordinarily does not constitute
irreparable injury, and this court has specifically rejected the
general burdensomeness of litigation as a basis for assuming
mandamus jurisdiction.") (citing Renegotiation Bd. v. Bannercraft
Co., 415 U.S. 1, 24 (1974), and In re Continental Investment Corp.,
637 F.2d 1, 5-6 (1st Cir. 1980)), the structural injuries to our
federal system threatened by the district court's order are
sufficient to satisfy any harm requirement that may apply to
advisory mandamus cases, see In re Justices of the Supreme Court of
Puerto Rico, 695 F.2d at 20 (noting that, even in advisory mandamus
cases, petitioners must demonstrate "something about the
circumstances here that would make ordinary appeal inadequate to
protect their interests.").

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III. Conclusion

For the reasons stated, the Commonwealth's petition is

granted, and a writ of advisory mandamus will issue forthwith

instructing the district court to dismiss the defendants' petition

for writ of habeas corpus without prejudice to refiling after trial

if any defendant is convicted and sentenced in the state

proceedings.

Petition granted. Costs to the Commonwealth of

Massachusetts.

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