Application of Baer

• Citation: 169 F.2d 770
• Decision Date: 16 August 1948
• Docket Number: No. 9657.,9657.
• Parties: Application of BAER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

169 F.2d 770 (1948)

Application of BAER et al.

No. 9657.

Circuit Court of Appeals Third Circuit.

Argued June 10, 1948.

Decided August 16, 1948.

William A. Consodine, of Newark, N. J., for petitioners.

William P. Gannon, of Jersey City, N. J. (Horace K. Roberson, of Jersey City, N. J., on the brief), for respondent.

Before BIGGS, GOODRICH, and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

The petitioners are in the custody of the State of New Jersey pursuant to commitments issuing out of the Hudson County Court of Quarter Sessions. They sought a writ of habeas corpus in the Court of Chancery of New Jersey, were accorded a hearing, and the writ was denied. 1947, 139 N.J.Eq. 364, 51 A.2d 203. On appeal to the Court of Errors and Appeals, that decision was affirmed. 1947, 140 N.J.Eq. 571, 55 A.2d 248. They then filed a joint petition for writ of habeas corpus in the court below. Upon the response of their custodian to a rule to show cause, the writ was issued and a hearing had at which evidence was adduced. The writ was then ordered quashed. D.C., 76 F.Supp. 295. From that order this appeal was taken.

The allegations of the petition filed in this proceeding are substantially the same as those of the petition heard by the New Jersey courts. There is no serious dispute as to what the facts are, and those facts are fully reported in the three decisions cited above. It is sufficient at this time to note that the federal reason for the petition is, and was, the charge that the Hudson County Court of Quarter Sessions abridged the rights of the petitioners guaranteed by the due process clause of the Fourteenth Amendment to the federal constitution in that it put into operation prison sentences which had been imposed some three years and four months earlier, after authorizing a change in the Minutes of the Court made at the time the sentences were first imposed.¹ It is asserted that under the circumstances the Hudson County Court was without jurisdiction to act.

There is, however, a preliminary question as to whether the petition ought presently to be entertained in the federal courts. On this score, the learned District Judge was of the view that the petitioners had obtained a decision on the merits in the New Jersey courts and were not entitled to relief because they had not exhausted their state remedies, having failed to apply to the United States Supreme Court for writ of certiorari following the decision of the highest court of the State of New Jersey.

As stated, there is no dispute that the federal question raised in this proceeding was also raised and pressed in the proceedings in New Jersey. The petitioners contend, nevertheless, that the decision of the New Jersey Court of Errors and Appeals was based on a state ground, and that the federal ground was not passed upon. Accordingly, under the holding of White v. Ragen, 1945, 324 U.S. 760, 65 S. Ct. 978, 89 L.Ed. 1348, it is urged that the court below erred in quashing the writ. The portion of that decision relied on here declares, 324 U.S. at page 765, 65 S.Ct. at page 981:

"* * * where the decision of the state court is that the remedy of habeas corpus is not available under the state practice, or its decision is based upon some other adequate non-federal ground, it is unnecessary for the petitioner to ask this Court for certiorari in order to exhaust his state remedies, since we would lack jurisdiction to review the decision of the state court; and the denial of certiorari by this Court would not preclude a District Court from inquiring into the federal question presented to, but not considered by, the state court."

The test, however, is not whether the state court established its decision on a state ground, but rather whether the state ground was adequate. To put it another way, the Supreme Court will not ordinarily grant certiorari whenever the basis of the state court's decision makes consideration of the asserted federal question unnecessary. Thus, in Williams v. Kaiser, 1945, 323 U.S. 471, at page 477, 65 S.Ct. 363, at page 367, 89 L.Ed. 398, it was said:

"It is suggested, moreover, that for all we know the denial of the petition by the Supreme Court of Missouri rested on adequate state grounds. It is a well established principle of this Court that before we will review a decision of a state court it must affirmatively appear from the record that the federal question was presented to the highest court of the State having jurisdiction and that its decision of the federal question was necessary to its determination of the cause. * * * And where the decision of the state court might have been either on a state ground or on a federal ground and the state ground is sufficient to sustain the judgment, the Court will not undertake to review it. * * * We adhere to those decisions. But it is likewise well settled that if the independent ground was not a substantial or sufficient one, `it will be presumed that the State court based its judgment on the law raising the Federal question, and this court will then take jurisdiction.' * * * Thus in Maguire v. Tyler, 8 Wall. 650, 19 L.Ed. 320, and in Neilson v. Lagow, 12 How. 98, 110, 13 L.Ed. 909, it was contended that the judgments rested on adequate state grounds. In neither was there an opinion of the state court. The Court examined the record, found the state grounds not substantial or sufficient, and reversed the judgments on the federal question. We think the principle of those cases is applicable here."

The problem of determining whether the federal question was resolved, or whether the decision of the state tribunal rested upon adequate non-federal grounds, becomes more difficult where the state court disposes of the controversy without an opinion. The Supreme Court, however, itself determines its jurisdiction, and that determination "must rest upon an examination of the record." Honeyman v. Hanan, 1937, 300 U.S. 14, 18, 57 S.Ct. 350, 352, 81 L.Ed. 476. And as the quotation from Williams v. Kaiser, above, discloses, the Supreme Court does not a fortiori assume jurisdiction; if it appears that a substantial and adequate state ground was an alternative basis for the result, the Supreme Court will not then hear the federal question. Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; White v. Ragen, supra. So, it appears in Townsend v. Burke, 68 S.Ct. 1252, where the Supreme Court noted that although the state court had disposed of the case without an opinion, an examination of the record revealed that the petitioner had based his claim solely on the alleged deprivation of federal constitutional rights, and no procedural or jurisdictional issues were raised at any time in the state court.

Even where the state court does write an opinion, the Supreme Court is often faced with a similar problem; and where the state court goes so far as to enter a certificate that a federal question had been raised and passed upon, the Supreme Court will not assume jurisdiction if, on examination of the record, it does not find that the federal question was necessary to the decision. Lynch v. New York, 1934, 293 U.S. 52, 55 S.Ct. 16, 79 L.Ed. 1913; Honeyman v. Hanan, supra; Southwestern Bell Telephone Co. v. Oklahoma, 1938, 303 U.S. 206, 58 S.Ct. 528, 82 L.Ed. 751; cf. Rice v. Olson, 1945, 324 U.S. 786, 791, 65 S.Ct. 989, 89 L.Ed. 637. In Loftus v. Illinois, 68 S.Ct. 1212, the Supreme Court of Illinois, on an original writ of error, disposed of the state questions involved, but not the federal questions: it therefore became pertinent to discover whether the remedy pursued was the appropriate vehicle for the determination of the latter, and the Court continued the case in order that it could be advised thereon.

The guiding rule is laid down in the oft-cited case of Lynch v. New York, supra, wherein it was said, 293 U.S. at page 54, 55 S.Ct. at page 17:

"It is essential to the jurisdiction of this Court in reviewing a decision of a court of a state that it must appear affirmatively from the record, not only that a federal question was presented for decision to the highest court of the state having jurisdiction, but that its decision of the federal question was necessary to the determination of the cause, and that it was actually decided or that the judgment as rendered could not have been given without deciding it." (Emphasis supplied.)

The fact that the state court's opinion does not in haec verba refer to the federal constitution, properly raised, is not determinative. It is sufficient that the "decision of the federal question was necessary" and that "the judgment as rendered could not have been given without deciding it." Thus, in Malinski v. New York, 1945, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029, the Supreme Court entertained an application for certiorari, and disposed of the case on the merits, although it appears that in the state court, 1944, 292 N.Y. 360, 55 N.E.2d 353, the decision rested solely upon state law. And in Schlemmer v. Buffalo R. & P. R. Co., 1907, 205 U.S. 1, 11, 27 S.Ct. 407, 408, 51 L.Ed. 681, the Court said:

"We certainly do not mean to qualify or limit the rule that, for this court to entertain jurisdiction of a writ of error to a state court, it must appear affirmatively that the state court could not have reached its judgment without tacitly, if not expressly, deciding the Federal matter. * * * But, on the other hand, if the question is duly raised and the judgment necessarily, or, by what appears, in fact involves such a decision, then this court will take jurisdiction, although the opinion below says nothing about it." (Emphasis supplied.)

See also cases cited in 84 L.Ed. 937-939.

Accordingly, in the instant case, the petitioners' assertion that the Court of Errors and Appeals based its decision solely on non-federal grounds, and that the federal constitutional issues were not considered, would not, in view of the decisions cited, be determinative of the...