Parker v. Illinois/Dissent Rutledge
Mr. Justice RUTLEDGE, with whom Mr. Justice BLACK and Mr. Justice MURPHY agree, dissenting.

Petitioner has been held in contempt and sentenced to imprisonment for complying with an order of court to produce specified documents. Technically he was ordered to show cause why the documents should not be produced. After his objections to that order were overruled he complied by bringing the documents into court and filing them with the clerk.  Thereupon he was cited for contempt because the documents reflected on the court's integrity and was sentenced to 90 days in jail.

Whether or not the documents would have given ground for punishment if they had been published voluntarily by petitioner,  the effect of the contempt judgment coupled with that of the order for production  has been first to compel petitioner to publish the statements by filing them and then to send him to jail for obeying the court's order. Cf. Entick v. Carrington, 19 How.St.Tr. 1029, 1073. I know of no constitutional power which permits a state to force a citizen into such a dilemma, and I think the most elementary conception of due process under the Fourteenth Amendment forbids any such action.

Yet this Court now acquiesces in this substantial and unconstitutional deprivation of petitioner's liberty by accepting an asserted procedural waiver of petitioner's substantive rights which, in my opinion, no more comports with basic conceptions of due process than does the substantive order for commitment. Constitutional rights may be nullified quite as readily and completely by hypertechnical procedural obstructions to their effective assertion and maintenance as by outright substantive denial. Marino v. Ragen, 332 U.S. 561, concurring opinion at page 563, 68 S.Ct. 240, at page 241.

The entire basis of the Court's action is that the original contempt order of January 15 and the so-called amended order of January 23 are different orders; petitioner is deemed to have waived his constitutional rights by taking an appeal from the latter order to the Illinois Appellate Court rather than to the Illinois Supreme Court. The case seems simple because it is said to be 'wel -settled Illinois law' that both federal and state constitutional rights are waived by taking this appellate route, and because this Court has previously determined that this appellate practice gives litigants a reasonable opportunity to be heard. See Central Union Telephone Co. v. City of Edwardsville, 269 U.S. 190, 194, 195, 46 S.Ct. 90, 91, 70 L.Ed. 229.

I cannot accept this hypertechnical procedural nullification of constitutional rights in a case involving the liberty of the individual. The original order of January 15 and the so-called amended order are in reality the same order. Moreover, prior to this case there was no 'well-settled Illinois law' to apprise petitioner that his appeal to the intermediate court would constitute a waiver of his rights in circumstances such as these, where he had already sought review of his federal questions in the state supreme court. And finally, even if the contrary had been true, I would not consider this appellate practice reasonable within the doctrine of the Central Union case.

Petitioner filed the 'scurrilous affidavits' which led to the contempt order on two different occasions. The first was on January 4 in response to the motion to produce them for inspection. The second was on January 15 as part of his answer to Shamberg's motion for a rule to show cause why he should not be adjudged in contempt for filing documents which he was only required to produce for inspection. On this second occasion the documents were included in the pleadings because relevant to his defense that the statements made therein were true.  The court adjudged petitioner in contempt for both filings. 

In the original contempt order of January 15 the court specifically referred to the fact that the documents had been filed twice before, identified them carefully and stated that they 'should be by reference incorporated in this order and made a part hereof for greater certainty.' At a a ter point in the order the documents were again listed and adjudged to be 'hereby incorporated by reference in this order and made a part hereof with the same force and effect as if set forth herein.' Thus the documents which gave rise to the contempt order were twice made a matter of public record and twice incorporated in the original contempt order.

The so-called amended order of January 23 is absolutely identical with the original order with the immaterial exception that the documents in addition to being incorporated in the order by reference were also 'made a part hereof and marked Exhibits 'A' and 'B' respectively.' The reason for the change is probably explained by Illinois cases such as People v. Hogan, 256 Ill. 496, 100 N.E. 177, holding that the record on review of a contempt order is limited to the order itself. But respondent has not called our attention to any Illinois cases holding that incorporation of matter of public record into an order by reference is insufficient to make that matter part of the order. Indeed this very proceeding indicates that this requirement is not strictly applied. For the Illinois Appellate Court set aside one order adjudging petitioner in contempt for the tone of his answer to a certain pleading filed by Shamberg on the ground that the charges in Shamberg's pleading, which was not made a part of the contempt order justified the tone of the answer. 328 Ill.App. 46, 60-68, 65 N.E.2d 457. But even if it is assumed that the amendment was necessary to satisfy the requirements of Illinois law it was of such a trivial and ministerial nature that it obviously did not affect the merits of petitioner's constitutional allegations.

When petitioner sought review of the original contempt order in the Supreme Court of Illinois he obtained the only review of those constitutional contentions which the state procedure offered him. That court by denying the writ of error must be presumed to have passed on the merits of the constitutional questions in the case. It is inconceivable that the supreme court would have passed on them any differently if review of the so-called amanded order had later been requested. For, as far as that court is concerned, it is likely that the law of the case as to the constitutional issues was already settled. But even if it were taken that the supreme court might have reversed its decision, the fact remains that the so-called amended order was the same order as the original January 15 order of which review had already been denied. Petitioner is deemed to have waived his federal constitutional rights not because he failed to seek review in the supreme court, but because he failed to do so twice.

It is definitely not 'well-settled Illinois law' that a waiver results in these circumstances. In all of the cases cited in the opinion of the Court and in respondent's brief the petitioner initially sought review in the intermediate appellate court. In none did he do so only after having the state supreme court deny as application for review. There is no 'well-settled Illinois law' to the effect that two applications to the state supreme court must be made in order to avoid waiver of constitutional rights. And if such a requirement did exist it certainly would not be reasonable.  Consequently I am unable to agree that the doctrine of waiver applied here to deprive a man of his personal freedom in violation of his constitutional rights is a reasonable state procedure within the Central Union case. 

By stating that the petition for certiorari is not timely if it challenges the original order, the Court repeats its mistake of treating the so-called amended order as something entirely separate and distinct from the original contempt order. But with the two orders viewed as the same, there is clearly no question of timeliness. For the denial of writ of error by the Illinois Supreme Court left state issues that went to the core of the litigation for determination by appeal through the intermediate state court. The situation therefore is not the one presented in Richfield Oil Corporation v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, where the only things remaining to be done were ministerial acts in the trial court. Here, even if nothing more was left for the trial court to do, a great deal more was left to be done by the Illinois Appellate Court, namely, to review and determine all questions of state law presented in the case.  The Richfield decision had no relation to a split procedure for review in the state courts such as this, sending federal questions to one tribunal and state questions to another. Until the final judgment was entered by the Supreme Court of Illinois on May 19, 1947, in review of the Illinois Appellate Court's judgment, the core of the litigation had not been terminated 'by fully determining the rights of the parties.' Gospel Army v. City of Los Angeles, 331 U.S. 543, 546, 67 S.Ct. 1428, 1430. For only then were the state questions finally adjudicated. Hence any earlier application for certiorari would have met with the insuperable obstacle that we were without jurisdiction, for want of any final judgment. 

Petitioner was thus placed in a second dilemma, arising in the appellate stage of the state proceedings. He first followed the only course afforded by the state procedure for securing review of his federal constitutional questions. When they were determined against him he was barred from coming here because state questions remained to be decided by the intermediate appellate court and thus as a matter of federal law under our decisions the judgment was not final. In order to surmount this jurisdictional hurdle petitioner then went to the only place he could go, the intermediate appellate court. When it decided the state issues against him, he took the necessary further step of going again to the state supreme court. Its adverse decision finally closed the trap upon him. For the first time a judgment dispositive of the whole controversy was rendered, and thus the way opened under federal law for review of the federal questions here. But at the same instant that door was closed, by application of the Illinois rule that taking appeal to the intermediate court 'waived' petitioner's federal rights. And that ruling held on his application for rehearing.

I can imagine no better way to annihilate constitutional rights, both substantively and procedurally, than thus dovetailing federal jurisdictional limitations with state procedural ones. To secure review of federal questions here, petitioner mus  exhaust his state remedies. But if he exhausts those remedies he 'waives' the federal questions.

This is not waiver. It is nullification. I do not think Congress intended to countenance such a denial by the requirement of finality or that its effect in conjunction with state procedures, should be to cut off the very rights which the jurisdictional authorization for reviewing final judgments was enacted to safeguard.

The issue of federal procedure in this case is not one of timeliness. It is rather one of finality, now applied to deny rather than to assure review in protection of personal liberty from invasion by unconstitutional state action. Central Union Telephone Co. v. City of Edwardsville, supra, contemplated no such paradox.  Nor, to my knowledge, has any other decision of this Court. As a matter of federal procedure petitioner did not waive his constitutional rights either by failing to seek certiorari from the Illinois Supreme Court's judgment of January 23, 1945, or by taking the necessary steps to seek the writ when he appealed to the state intermediate appellate court.

The judgment of the Illinois Supreme Court should be reversed. 

Notes