The opinion of the court was delivered by: FORMAN
From the complaint in this case it appears that the plaintiffs Ralph Cooper, Collis English and James H. Thorpe, with three others, were convicted on a charge of murder in the Mercer County Court of the State of New Jersey on August 6, 1948. The sentence of death was imposed upon them by the defendant, Honorable Charles P. Hutchinson, Judge of the said court. They were represented in their trial by court appointed counsel.
During the preparation of the appeal from the plaintiffs' conviction, Messrs. Solomon Golat and Clarence Talisman of the bar of the State of New Jersey and Messrs. O. John Rogge, William L. Patterson and Emmanuel H. Bloch, counsel in good standing in bars other than the State of New Jersey, were chosen by the plaintiffs as their counsel in substitution for counsel appointed by the trial court and Mr. Rogge was admitted to argue their appeal pro hac vice. The conviction of all of the defendants in the murder case was reversed and a new trial ordered in an opinion of the New Jersey Supreme Court filed June 30, 1949. See State v. Cooper, 2 N.J. 540, 67 A.2d 298. In the following month Mr. Golat moved the admission of Messrs. Rogge, Patterson and Bloch pro hac vice before Judge Hutchinson in the Mercer County Court for the retrial of the case and he granted the motion.
The said counsel appeared before him on a number of occasions to argue various motions. On December 16, 1949, following the disposition of a motion brought on by said counsel the defendant, according to the allegations of the plaintiffs, dismissed Messrs. Rogee, Patterson and Bloch as counsel for the plaintiffs.
Since the plaintiffs desire to be represented in their retrial by the said counsel, and no others, they submit that the dismissal by the defendant of the said counsel under color of law was summary, arbitrary, capricious and unreasonable, and deprives them of their right to be represented by counsel of their choice as guaranteed to them under the due process clause of the Fourteenth Amendment to the Constitution of the United States.
Therefore they invoked the provisions of the Civil Rights Act of the United States, 8 U.S.C.A. § 43
and 28 U.S.C.A. § 1343
and prayed for the following equitable relief:
'1. That this Court temporarily and permanently enjoin the defendant Charles P. Hutchinson during the course of further criminal proceedings taken against the plaintiffs by the State of New Jersey in the case of State v. Cooper, et al., from refusing to recognize O. John Rogge, William L. Patterson and Emanuel H. Bloch as counsel for the plaintiffs and from appointing other counsel in their stead, without the consent of the plaintiffs.
'2. That this Court temporarily and permanently enjoin the defendant Charles P. Hutchinson from commencing the trial of State v. Cooper, et al., until plaintiffs are permitted to have counsel of their own choice for their defense.
'3. For such other and further relief as this Court may deem proper.'
The matter is presently before this court on a notice of motion given to the defendant by the plaintiffs that they would apply for an order restraining the defendant from refusing to recognize Messrs. Rogge, Patterson, Bloch and Golat as defense counsel and from appointing other counsel in their stead without their consent and for an order restraining the defendant from commencing the trial until they are permitted to select counsel of their own choice for their defense.
The defendant has countered with a motion to dismiss the cause because:
(1) this court lacks jurisdiction of the subject matter of the litigation;
(3) the complaint fails to state a claim upon which the relief prayed for can be granted; and
(4) the complaint fails to state a claim against the defendant upon which relief can be granted.
Argument on the motions has been made by counsel of the parties as well as by counsel representing a committee of the Mercer County Bar Association, all of whom submitted briefs, the latter as amicus curiae. The defendant requested that arguments raised in the brief of the Bar Association in support of his motion should be considered as his arguments. ...