The opinion of the court was delivered by: SHAW
This action is brought by petitioners pursuant to the Federal Civil Rights Act, 42 U.S.C. § 1983,
the provisions of which the district courts of the United States have original jurisdiction to enforce. 28 U.S.C. § 1343.
Petitioners were indicted in Passaic County for murder in the first degree and trial of the indictments is scheduled for May 20, 1968. They retained F. Lee Bailey, Esquire, a member of the bar of the State of Massachusetts, to represent them as trial counsel. Leave to represent them was granted by the State trial court during September 1967 pursuant to R.R. 1:12-8. Since that time he has represented them and intends, at their request, if permitted by the court, to represent them at trial.
On April 24, 1968, Mr. Bailey wrote to the Governor of the State of New Jersey expressing his opinion as to the merits of the State's case with criticism of the continued prosecution of it. Copies of this letter were forwarded to the Attorney General of New Jersey, the United States Attorney for the District of New Jersey, the President of the New Jersey Bar Association, the Attorney General of the United States, members of the New Jersey State Legislature, Congressmen and United States Senators from the State of New Jersey, and sixteen members of the American Polygraph Association. The letter reached the hands of the press and statements made therein were published.
By letter dated April 30, 1968, addressed to the respondent by the Clerk of the Supreme Court of New Jersey, respondent was advised as follows:
The Court, on the basis of a published letter from F. Lee Bailey, Esquire, to Governor Hughes, dated April 24, 1968, directs that you revoke the permission heretofore given to Mr. Bailey to appear as counsel in the Kavanaugh and related matters unless the said Bailey or his client shows cause satisfactory to you to permit him to remain as counsel in said matters.
A hearing to that end is to be held by you forthwith. At such hearing, you shall make inquiry as to the extent of the distribution of said letter and counterparts thereof addressed to others. The foregoing is independent of such action as the Supreme Court may itself take with respect to a permanent bar of Mr. Bailey from appearing in the courts of New Jersey or other discipline.
A hearing was held by respondent in his chambers on May 3, 1968. At the conclusion of the hearing respondent ordered that the privilege extended to F. Lee Bailey, Esquire, to appear as counsel for petitioners be revoked. Thereupon, the above mentioned petition was filed in this Court and a hearing held on May 7, 1968.
Petitioners contend that: (1) The order of the respondent deprives them of rights secured to them by the Fifth
Amendments to the United States Constitution, made applicable to the States by the Fourteenth
Amendment. (2) They are entitled to an order of this Court restraining enforcement of the State court order.
The question of jurisdiction to enjoin State court criminal proceedings in a case of this kind is not entirely free of doubt. The doubt arises because of the provisions of 28 U.S.C. § 2283 which reads:
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
It has been held, however, in this Circuit that there is jurisdiction. Cooper v. Hutchinson, 184 F.2d 119 (3rd Cir. 1950). But it has been held otherwise in the Fourth Circuit. Baines v. City of Danville, 337 F.2d 579 (4th Cir.1964). Also see Island Steamship Lines v. Glennon, 178 F. Supp. 292 (D.C.Mass.1959). The United States Supreme Court left the question unsettled in the recent case of Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965) when it commented in a footnote: "We therefore find it unnecessary to resolve the question whether suits under 42 U.S.C. § 1983 (1958 ed.) come under the 'expressly authorized' exception to § 2283." Id. at 484, 85 S. Ct. at 1119. See 21 Rutgers Law Review 92 (1966). However, in Dombrowski the Court did observe that: