Ohio Eaton v. Price

• Decision Date: 08 June 1959
• Docket Number: No. 699,699
• Citation: 79 S.Ct. 978,3 L.Ed.2d 1200,360 U.S. 246
• Parties: OHIO ex rel. EATON, Appellant, v. PRICE, Chief of Police
• Court: U.S. Supreme Court

360 U.S. 246

79 S.Ct. 978

3 L.Ed.2d 1200

OHIO ex rel. EATON, Appellant,

v PRICE, Chief of Police.

No. 699.

Decided June 8, 1959.

On Appeal from the Supreme Court of Ohio.

Mr. J. Harvey Crow, for appellant.

Messrs. Charles S. Rhyne and Joseph P. Duffy, for appellee.

PER CURIAM.

Probable jurisdiction is noted.

Mr. Justice BRENNAN, who voted to note probable jurisdiction, filed a separate memorandum.

Mr. Justice FRANKFURTER, Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITTAKER, who voted against noting probable jurisdiction, filed a separate memorandum.

Mr. Justice CLARK, who voted against noting probable jurisdiction, filed a separate memorandu.

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

Mr. Justice BRENNAN.

The Court's practice, when considering a jurisdictional statement whereby a litigant attempts to invoke the Court's jurisdiction on appeal, is quite similar to its well-known one on applications for writs of certiorari.That is, if four Justices or more are of opinion that the questions presented by the appeal should be fully briefed and argued orally, an order noting probable jurisdiction or postponing further consideration of the jurisdictional questions to a hearing on the merits is entered.Even though this action is taken on the votes of only a minority of four of the Justices, the Court then approaches plenary consideration of the case anew as a Court; votes previously cast in Conference that the judgment of the court appealed from be summarily affirmed, or that the appeal be dismissed for want of a substantial federal question, do not conclude the Justices casting them, and every member of the Court brings to the ultimate disposition of the case his judgment based on the full briefs and the oral arguments.Because of this, disagreeing Justices do not ordinarily make a public notation, when an order setting an appeal for argument is entered, that they would have summarily affirmed the judgment below, or have dismissed the appeal from it for want of a substantial federal question.Research has not disclosed any instance of such notations until today.¹

The reasons for such forbearance are obvious.Votes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case, and public expression of views on the merits of a case by a Justice before argument and deci- sion may well be misunderstood; the usual practice in judicial adjudication in this country, where hearings are held, is that judgment follow, and not precede them.Public respect for the judiciary might well suffer if any basis were given for an assumption, however wrong in fact, that this were not so.Thus, the practice of not noting dissents from such orders has been followed, regardless of now strongly Justices may have felt as to the merits of a case or how clearly they have thought decision in it controlled by past precedent.²A precedent which appears to some Justices, upon the preliminary consideration given a jurisdictional statement, to be completely controlling may not appear to be so to other Justices.Plenary consideration can change views strongly held, and on close, reflective analysis precedents may appear inapplicable to varying fact situations.I believe that this approach will obtain in this case despite the unusual notation made today by four of my colleagues.

Mr. Justice FRANKFURTER, Mr. Justice CLARK, Mr.Jus tice HARLAN and Mr. Justice WHITTAKER are of the view that this case is controlled by, and should be affirmed on the authority of, Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804.

The Frank case was decided on May 4.Application to reviewthis case came before us within two weeks of the Frank decision.Since we deem the decision in the Maryland case to be completely controlling upon the Ohio decision, we are of the opinion that it would manifest disrespect by the Court for its own process to indicate its willingness to create an opportunity to overrule a case decided only a fortnight ago after thorough discussion at the bar and in the briefs and after the weightiest deliberation within the Court.

Mr. Justice CLARK.

This case cannot be considered in isolation.In his jurisdictional statement filed February 12, 1959, appella...