Burns v. State of Ohio

Decision Date15 June 1959
Docket NumberNo. 581,581
Citation360 U.S. 252,3 L.Ed.2d 1209,79 S.Ct. 1164
PartiesWilliam W. BURNS, Petitioner, v. STATE OF OHIO
CourtU.S. Supreme Court

Mrs. Helen G. Washington, Washington, D.C., for petitioner.

Messrs. William M. Vance, Columbus, Ohio, and Harry C. Schoettmer, Cincinnati, Ohio, for respondent.

Mr. Chief Justice WARREN delivered the opinion of the Court.

The question presented in this case is whether a State may constitutionally require that an indigent defendant in a criminal care pay a filing fee before permitting him to file a motion for leave to appeal in one of its courts.

After a trial in Ohio in 1953, the petitioner was convicted of burglary and sentenced to life imprisonment.1 That same year his conviction was affirmed without opinion by the Ohio Court of Appeals. Petitioner immediately filed a notice of appeal in the Court of Appeals but did nothing further until 1957, when he sought to file a copy of the earlier notice of appeal and a motion for leave to appeal in the Supreme Court of Ohio.2 To these papers petitioner attached an affidavit of poverty which declared that he was 'without sufficient funds with which to pay the costs for Docket and Filing Fees in this cause of action.' He also attached a motion for leave to proceed in forma pauperis.

The Clerk of the Supreme Court of Ohio refused to file the papers. He returned them with the following letter:

'This will serve to acknowledge receipt of your motion for leave to proceed in forma pauperis, motion for leave to appeal and ntic e of appeal.

'We must advise that the Supreme Court has determined on numerous occasions that the docket fee, required by Section 1512 of the General Code of Ohio, and the Rules of Practice of the Supreme Court, takes precedence over any other statute which may allow a pauper's affidavit to be filed in lieu of a docket fee. For that reason we cannot honor your request.

'We are returning the above mentioned papers to you herewith.'3

Under Art. IV, § 2, of the State Constitution, the Supreme Court of Ohio has appellate jurisdiction in many types of cases including those 'involving questions arising under the constitution of the United States or of this state' and 'cases of felony on leave first obtained.'4 Since burglary is a felony in Ohio,5 the Supreme Court had jurisdiction to review petitioner's conviction and petitioner sought to file his motion asking leave to appeal. 6 The filing fee required by the Supreme Court on a motion for leave to appeal is $207 and if that fee is paid, and the papers are otherwise proper, the motion will be considered with the possibility that leave to appeal will be granted.

We granted certiorari and leave to proceed in forma pauperis. 358 U.S. 919, 79 S.Ct. 292, 3 L.Ed.2d 238. Subsequently, an order was entered, 358 U.S. 943, 79 S.Ct. 354, 3 L.Ed.2d 350, expressly limiting the grant of certiorari to the question posed by petitioner in his per se petition which is restate at the outset of this opinion.8

The State's commendable frankness in this case has simplified the issues. If has acknowledged that the clerk's letter to petitioner is 'in reality and in effect' the judgment of the Supreme Court. Only recently, that court had occasion to comment on the function of its clerk in these words:

'It is the duty of the clerk of this court, in the absence of instructions from the court to the contrary, to accept for filing any paper presented to him, provided such paper is not scurrilous or obscene, is properly prepared and is accompanied by the requisite filing fee.'9

In a companion case, the court observed that its clerk 'acts as the court in carrying out its instructions.'10 The State represented that the clerk had been instructed not to docket any papers without fees and also that the Supreme Court had not deviated from its practice in this respect. Moreover, the State asserted that it was impossible for petitioner to file any action at all in the Supreme Court without paying the fee in advance. There is no showing that these instructions have been modified or rescinded in any way and the Supreme Court has sanctioned the clerk's well-publicized procedure of returning pauper's applications, without exception, with the above-quoted form letter. This delegation to the clerk of a matter involving no discretion clearly sufficies to make the clerk's letter a final judgment of Ohio's highest court, as required by 28 U.S.C. § 1257, 28 U.S.C.A. § 1257.

Although the State admits that petitioner 'in truth and in fact' is a pauper, it presses several arguments which it claims distinguish Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and justify the Ohio practice. First, the State argues that petitioner received one appellate review of his conviction in Ohio, while in Griffin, Illinois had left the defendant without any judicial review of his conviction. This is a distinction without a difference for, as Griffin holds, once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty. 351 U.S. at pages 18, 22, 76 S.Ct. at pages 590, 592. This principle is no less applicable where the State has afforded an indigent defendant access to the first phase of its appellant procedure but has effectively foreclosed access to the second phase of that procedure solely because of his indigency.

Since Griffin proceeded upon the assumption that review in the Illinois Supreme Court was a matter of right, 351 U.S. at page 13, 76 S.Ct. at page 588, Ohio seeks to distinguish Griffin on the further ground that leave to appeal to the Supreme Court of Ohio is a matter of discretion. But this argument misses the crucial significance of Griffin. In Ohio, a defendant who is not indigent may have the Supreme Court consider on the merits his application for leave to appeal from a felony conviction. But as that court has interpreted § 1512 and its rules of practice, an indigent defendant is denied that opportunity. There is no rational basis for assuming that indigents' motions for leave to appeal will be less meritorious than those of other defendants. Indigents must, therefore, have the same opportunities to invoke the discretion of the Supreme Court of Ohio.

The State's action in this case in some ways is more final and disastrou fr om the defendant's point of view than was the Griffin situation at least in Griffin, the defendant might have raised in the Supreme Court any claims that he had that were apparent on the bare record though trial errors could not be raised. Here, the action of the State has completely barred the petitioner from obtaining any review at all in the Supreme Court of Ohio. The imposition by the State of financial barriers restricting the availability of appellate review for indigent criminal defendants has no place in our heritage of Equal Justice Under Law.

What was said in Griffin, might well be said here: 'We are confident that the State will provide corrective rules to meet the problem which this case lays bare.' 351 U.S. at page 20, 76 S.Ct. at page 591.11

The judgment below is vacated and the cause is remanded to the Supreme Court of Ohio for further action not inconsistent with this opinion. It is so ordered.

Judgment vacated and cause remanded with direction.

Mr. Justice STEWART took no part in the consideration or decision of this case.

Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.

It is the special obligation of this Court strictly to observe the limits of its jurisdiction. No matter how tempting the appeal of a particular situation, we should not indulge in disregard of the bounds by which Congress has defined our power of appellate review. There will be time enough to enforce the constitutional right, if right it be, which the Court now finds the petitioner to possess when it is duly presented for judicial determination here, and there are ample modes open to the petitioner for assertion of such a claim in a way to require our adjudication.

The appellate power of this Court to review litigation originating in a state court can come into operation only if the judgment to be reviewed is the final judgment of the highest court of the State. The a judgment is the prerequisite for the appellate review of this Court is an ingredient of the constitutional requirement of the 'Cases' or 'Controversies' to which alone 'The judicial Power shall extend.' U.S.Const. Art. III, § 2. That it be a 'final judgment' was made a prerequisite by the very Act which established this Court in 1789. Act of September 24, 1789, § 25, 1 Stat. 85, now 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. 'Close observance of this limitation upon the Court is not regard for a strangling technicality.' Republic Natural Gas Co. v. State of Oklahoma, 334 U.S. 62, 67, 68 S.Ct. 972, 976, 92 L.Ed. 1212. Such has been the undeviating constitutional, legislative and judicial command binding on this Court and respected by it without exception or qualification to this very day.

The requisites of such a final judgment are not met by what a state court may deem to be a case or judgment in the exercise of the state court's jurisdiction. See Tyler v. Judges, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; Doremus v. Board of Education 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475. Nor can consent of the parties to the determination of a cause by this Court overleap the jurisdictional limitations which are part of this Court's being. Litigants cannot give this Court power which the Constitution and Congress have withheld. Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462. The President of the United States himself cannot secure from this Court determination of a legal question except when such a question duly arises in the course of adjudication of a case or controversy, even hou gh he asks for needed help in a great national...

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