# Cleary v. Bolger/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Goldberg
* Dissenting Opinions Douglas Brennan
United States Supreme Court
371 U.S. 392
Cleary v. Bolger
Argued: Nov. 14 and 15, 1962. --- Decided: Jan 14, 1963
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE concurs, dissenting.
I join in the dissenting opinion of my Brother DOUGLAS and add a few words in support of his conclusion.
The Court concedes arguendo that it was proper to enjoin the federal officers from testifying in state proceedings against respondent as to the fruits of their violations of Rules 5 and 41 of the Federal Rules of Criminal Procedure. But having made this concession-compelled, I should think, by Rea v. United States, 350 U.S. 214, 76 S.Ct. 292-the Court then excludes petitioner from the injunction: 'injunctive relief against this petitioner (cannot) find justification in the rationale that it was required in order to make the injunction against the federal officers effective. Such relief as to him must stand on its own bottom.' The Court finds no 'bottom,' because petitioner did not himself violate the Federal Rules or otherwise misconduct himself. This reasoning, I submit, cannot withstand scrutiny.
In so refusing incidental relief against petitioner, surely the Court flouts settled principles of equity. Equity does not do justice by halves; its remedies are flexible. 'A writ of injunction may be said to be a process capable of more modifications than any other in the law; it is so malleable that it may be moulded to suit the various circumstances and occasions presented to a court of equity. It is an instrument in his hands capable of various applications for the purposes of dispensing complete justice between the parties.' Tucker v. Carpenter, 24 Fed.Cas.No.14217 (Cir.Ct.D.Ark. 1841); see 1 Joyce, Injunctions (1909), § 2; 1 Pomeroy, Equity Jurisprudence (5th ed. Symons, 1941), § 114. 'Complete justice' has not been done if the fruits of the violations of federal law by federal officers may nevertheless be used against respondent in state proceedings by a state officer who witnessed, indeed abetted, those violations.
The vacation of the injunction against the state officer on the ground that he himself was not a wrongdoer wholly misconceives the nature of equitable relief. Such relief is not punitive but remedial, and it is measured not by the defendant's transgressions but by the plaintiff's needs. Thus, to protect a trade secret, equity will enjoin third persons to whom the secret has been divulged if they have notice of the breach of trust. See, e.g., Colgate-Palmolive Co. v. Carter Products, Inc., 230 F.2d 855, 864 865 (C.A.4th Cir.1956). Such third persons are not themselves malefactors, any more than this state officer is; they are enjoined in order to give the victim of the wrong effective protection. The respondent herein is entitled to effective protection against the federal officers' violations of federal law, which comprehends ancillary relief against petitioner qua witness to the unlawful conduct. Though innocent of the federal officers' misconduct, the state officer may not avail himself of its fruits to the harm of respondent. I repeat: the Court errs in asserting that the injunction against the state officer must stand on its own bottom; such a supplemental decree is fully justified, in accordance with the conventional principles of equity, by the issuance of an injunction against the federal officers.
The incidental nature of the relief granted against the state officer should dispel any fear that such relief threatens impairment of the harmonious workings of federalism. To be sure, it was part of the state officer's official duties to cooperate fully with federal officers. But it was no part of his duty to abet and facilitate federal officers' unlawful conduct. To enjoin him as a witness to such conduct does no more than forbid him to profit from it. In overruling the 'silver platter' doctrine a few Terms ago, we anchored our holding in the disruptive effect upon the federal system of allowing the introduction into federal courts of evidence unlawfully seized by state officers. Elkins v. United States, 364 U.S. 206, 221, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669. Surely the converse situation is no less productive of needless conflict. In truth, to enjoin the introduction into state courts of evidence unlawfully seized by federal officers is to promote, not retard, a healthy federalism.
In invoking the bogey of federal disruption of state criminal processes the Court relies heavily on Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, where it was held to be improper to enjoin the introduction in a state criminal trial of evidence seized by state officers in violation of the Fourteenth Amendment. But Stefanelli is manifestly inapt. That decision was compelled by Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, where the Court, while confirming that the Fourth Amendment had been absorbed into the Due Process Clause of the Fourteenth Amendment, nevertheless left the States free to devise appropriate remedies for violations of this constitutional protection. To have authorized the Federal District Courts to order the exclusion in state criminal trials of evidence unlawfully obtained by state officials would have sanctioned accomplishing indirectly what Wolf forbade directly. But Wolf has been overruled in this particular. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and the accommodation of Wolf which required the decision in Stefanelli is no longer a concern.
Moreover, the instant petitioner is not sought to be enjoined as a state officer whose misconduct ought to be remedied by the State, as was the case in Stefanelli, but as a witness to the misconduct of federal officers. The Federal Rules are not directed at state officers, nor was this state officer found to have engaged in conduct violative of them. Responsibility for enforcing the Federal Rules lies precisely with the federal courts, whereas under the regime of Wolf responsibility for enforcing the Fourteenth Amendment's right of privacy lay exclusively with the state court. Indeed, it is in light of the difference between violations of the Federal Rules and violations of the Fourteenth Amendment that the Stefanelli and Rea decisions emerge as perfectly consistent; and it is significant that the author of the Court's opinion in Stefanelli joined the Court's opinion in Rea.
It is also worth observing that Congress has taken pains to specify the conditions under which a federal court shall withhold injunctive relief in respect of a pending state court proceeding. See 28 U.S.C. § 2283, 28 U.S.C.A. § 2283. The Court nowhere mentions this provision, surely because its total inapplicability to the case at hand is plain: an injunction against this state officer would not stay the state proceedings against respondent but only preclude the use of certain evidence in them. Since Congress in § 2283 set out specific conditions for withholding federal equity relief, and these conditions have not been met in the case at bar, I submit that we are obligated to allow such relief to be granted in conformity with the accepted usages of equity procedure.
With all respect I cannot share the view of my Brother GOLDBERG that relief should be denied here because the probable exclusion of the challenged evidence, in whole or part, by the New York courts would sufficiently serve to deter lawless conduct by federal officers. My view is that equitable actions grounded in violations of the Federal Rules of Criminal Procedure should be governed by the accepted principles of equity. Among them is the principle that an adequate remedy at law bars equitable relief. This principle seems to me to be applicable even where the remedy is given by the state courts, so long as the source of the remedy is federal law. See Henrietta Mills v. Rutherford County, 281 U.S. 121, 126-127, 50 S.Ct. 270, 272, 74 L.Ed. 737. I further believe that one who has an adequate remedy by way of appeal, as well as one who has a more conventional adequate remedy at law, is thereby disbarred from equitable relief. 1 Joyce, supra, § 29. But for a remedy to be adequate, it must have more than a merely theoretical availability. If 'a court of law can do as complete justice to the matter in controversy * * * as could be done by a court of equity, equity will not interfere. * * * But in order that the general principle may apply, the sufficiency and completeness of the legal remedy must be certain; if it is doubtful, equity may take cognizance.' 1 Pomeroy, supra, § 176. How certain, complete, and sufficient is the remedy by way of appeal in the instant case? My Brother GOLDBERG concedes uncertainty as to whether the New York courts, though they have generally interpreted Mapp v. Ohio, supra, will exclude all the challenged evidence involved in this case, or whether Mapp or any other decision of this Court compels such exclusion. Nor is it certain that a State is obliged to exclude evidence which is the product of violations of the Federal Rules-no decision of this Court has yet so held and Rea was premised on a contrary assumption, see 350 U.S., at 217; Wilson v. Schnettler, supra, at 391, 81 S.Ct. at 638 (dissenting opinion) and finally, while petitioner herein was enjoined from testifying the state administrative proceeding against respondent, as well as in the criminal proceeding, it has not yet been settled whether Mapp applies to administrative proceedings. Thus, to remit respondent to his remedy by appeal in the state courts is to set him adrift on a sea of legal uncertainties, and very possibly to deprive him, in the end, of any remedy whatever. Since respondent's remedy by law is uncertain, conventional equity principles require that the injunction issue against this state officer, premised not on constitutional grounds but on violations of the Federal Rules by federal officers.

## Notes

* ↑ In Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620, I joined the dissenting opinion of my Brother DOUGLAS because I thought (and still do) that the Court was making dangerous inroads upon the Rea decision. Happily, the Court in the instant case makes no suggestion that the authority of Rea has been impaired by Wilson. At all events Wilson is distinguishable from the case at bar, for here there was no failure to allege a violation of federal law and a lack of an adequate remedy at law.
* ↑ 'The governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in the one suit the rights and duties of all the parties, which really grow out of or are connected with the subject-matter of that suit. * * * Its fundamental principle concerning parties is, that all persons in whose favor or against whom there might be a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and the relief granted, that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall by made parties to the suit. * * * The primary object is, that all persons sufficiently interested may be before the court, so that the relief may be properly adjusted among those entitled, the liabilities properly apportioned, and the incidental or consequential claims or interests of all may be fixed, and all may be bound in respect thereto by the single decree.' 1 Pomeroy, supra.
* ↑ The Court's intimation, in note 7 of the opinion of doubt as to the existence of federal jurisdiction in the instant case seems to me totally unwarranted. The Court was unanimous in Rea as to the existence of federal jurisdiction; the only dispute was as to the propriety of exercising it. See 350 U.S., at 219, 81 S.Ct. at 295 (dissenting opinion). To predidicate federal jurisdiction in the instant case, we need not decide whether the Federal Rules are civil rights statutes within the intent of 28 U.S.C. § 1343(4), 28 U.S.C.A. § 1343(4), nor need we resort to any other jurisdictional statute. For the federal courts have the inherent authority to issue orders to protect their processes, here, as in Rea, governed by the Federal Rules of Criminal Procedure. See 350 U.S., at 217, 81 S.Ct. at 294; Wise v. Henkel, 220 U.S. 556, 558, 31 S.Ct. 599, 600, 55 L.Ed. 581.
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