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When a pair of Bucks County, Pa., detectives looking into child pornography allegations conducted a raid on the offices of two Internet service providers in January and seized some of their computers, they set in motion a series of hotly contested court battles that are now pending in four different courts. In the latest development, a federal judge has refused to abstain from hearing a civil rights suit brought by Voicenet Communications Inc. and Omni Telecom Inc. after concluding that a pending state grand jury investigation is no reason for the federal courts to step aside. In her 13-page opinion in Voicenet Communications Inc. v. Pappert, U.S. District Judge Mary A. McLaughlin rejected Bucks County’s argument that she should abstain under the U.S. Supreme Court’s 1971 decision Younger v. Harris. In Younger, the justices held that a federal court should not enjoin a state criminal proceeding unless the plaintiff would suffer irreparable injury “both great and immediate.” Applying that test to the plaintiff, the justices found he could not meet it since any threat to his federally protected rights could be fully addressed in the defense of the criminal prosecution. But McLaughlin found that Voicenet’s case posed a more difficult question since no charges have yet been filed and the case is still before a state grand jury. In the suit, Voicenet and Omni, both of Ivyland, Pa., claim that agents who raided their offices and seized several computer servers in January violated their rights and the rights of their innocent subscribers. The suit alleges that the property was “illegally seized” and that the raid effectively shut down a portion of their business — providing service for dozens of “Usenet” groups conducting Internet discussions and posting forums. The raid violated the First Amendment, the suit says, because it “denied plaintiffs’ right to disseminate millions of articles, images, discussion groups and movies to their customers and subscribers.” The agents also violated the Pennsylvania Internet Child Pornography Law, the plaintiffs’ lawyers argue, since the law includes explicit protections for ISPs. Under the ICPL, the suit says, ISPs must be notified by the state attorney general of the existence of alleged child pornography on their systems and “must be given a chance to disable, block or remove the pornography within five days or face criminal prosecution.” The suit seeks an injunction ordering the return of the servers, alleging that the raid and seizure “constitute an impermissible prior restraint of free speech … and trample upon the statutory and constitutional privacy rights of plaintiffs and plaintiffs’ subscribers.” But lawyers for Bucks County argued that the suit was an improper attempt to use the federal courts to shut down an ongoing criminal investigation. They urged McLaughlin to abstain from hearing the injunctive aspects of the case and to stay the plaintiffs’ claims for money damages. But Voicenet’s lawyers — Richard A. Sprague, Geoffrey R. Johnson and Mark B. Sheppard of Sprague & Sprague — argued that abstention was inappropriate. The plaintiffs’ team argued in court papers that the 3rd U.S. Circuit Court of Appeals had already addressed the question in its 1986 decision in Monaghan v. Deakins, which held that a Younger abstention is not required when a case is before a state grand jury because the grand jury does not have the power to adjudicate the merits of a federal claim. But Bucks County’s lawyers — Frank A. Chernak, Eric W. Sitarchuk and Christin E. Connolly of Ballard Spahr Andrews & Ingersoll — argued that the validity of Monaghan is questionable because the U.S. Supreme Court vacated the ruling as moot after the parties agreed that the claims for equitable relief had been withdrawn. And even if Monaghan is still good law, the Ballard lawyers argued, it is distinguishable because it dealt with a New Jersey grand jury. The defense team urged McLaughlin to adopt the reasoning of U.S. District Judge Sylvia Rambo of the Middle District of Pennsylvania, who concluded in her 1991 decision in Trone v. Preate that a Younger abstention might be appropriate when a case is before a Pennsylvania grand jury because the judge supervising a state grand jury has the power to hear constitutional objections. Although Rambo ultimately opted to abstain on other grounds, the defense team argued that McLaughlin should follow her conclusion in dicta that abstention under Younger “appears sensible when a grand jury has been convened and plaintiffs have an opportunity to engage in motion practice in that grand jury proceeding.” Now McLaughlin has sided with Voicenet and ruled that a Younger abstention is not called for because the supervising judge of the Bucks County grand jury has no power to hear Voicenet’s federal constitutional claims. McLaughlin found that under Pennsylvania’s Investigating Grand Jury Act, the powers of the grand jury and its supervising judge are strictly limited. “The focus of the Investigating Grand Jury Act is on investigation, not adjudication,” McLaughlin wrote. The law “does not appear to authorize the grand jury or the supervising judge to reach the merits of federal claims such as the claims raised in this case,” McLaughlin wrote. McLaughlin noted that Voicenet’s lawyers were rejected when they attempted to raise their federal issues before Bucks County Common Pleas Judge Kenneth G. Biehn. Biehn’s rulings, she said, were “consistent with the Investigating Grand Jury Act when he refused to consider the validity of the search warrant or Voicenet’s argument that the investigation was pre-empted by the ICPL.” Such matters were premature, Biehn ruled, since the grand jury has not yet issued any presentments and no criminal charges have yet been filed. As a result, McLaughlin concluded that a Younger abstention was not required because “the investigating grand jury proceedings did not provide the plaintiffs with an adequate opportunity to the relief requested in this court.” But Voicenet’s lawyers are not only battling it out before McLaughlin and Biehn. In recent weeks, they’ve also filed appeals before the 3rd Circuit and the Pennsylvania Supreme Court. The 3rd Circuit appeal was filed in early July when Voicenet’s lawyers grew exasperated at what they described as a long delay in getting a ruling from McLaughlin on their request for a preliminary injunction. In court papers, the plaintiffs’ lawyers said they had agreed to withdraw a request for an emergency temporary restraining order when McLaughlin promised in a conference that she would expedite the case and rule quickly on their request for a preliminary injunction. In their appeal, they argued that by delaying her ruling for more than three months, McLaughlin had “effectively” denied their request for an injunction. Soon after the appeal was filed, McLaughlin handed down an opinion in which she denied the request for a preliminary injunction on the grounds that the plaintiffs no longer faced any irreparable injury since most of the computers had been returned. Although the plaintiffs argued that the return of the equipment was not sufficient to resolve their motion for a preliminary injunction, McLaughlin concluded that it would cost only $20,000 for the plaintiffs to replace the equipment retained by the prosecutors. “The plaintiffs can replace the [equipment] and recover the cost as money damages at the end of [this] case if they succeed on the merits,” McLaughlin wrote. McLaughlin also rejected the plaintiffs’ request that the court declare that they have a right to notice and an opportunity to be heard before any future seizures of their servers. The plaintiffs’ team argued that without such a ruling, they would suffer a “chilling effect” because they face the possibility of criminal prosecution and the uncertainty of whether they are protected by statutes such as the federal Communications Decency Act and the Pennsylvania ICPL. But Bucks County’s lawyers argued that the harm the plaintiffs complained of is “speculative.” McLaughlin agreed, finding that the plaintiffs were able to resume their business after she urged Bucks County to return most of the equipment. “Even assuming that the seizure and retention of the equipment could have caused irreparable harm, the return of the equipment has changed the analysis,” McLaughlin wrote. Voicenet also filed an emergency appeal in the Pennsylvania Supreme Court to challenge Biehn’s rulings, but the justices have not yet issued any decision.

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