Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE SCALIA join, dissenting.

We are a Court of limited jurisdiction. One of the basic limits that Congress has imposed upon us is that we may only review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U.S. C. §1257. The purposes of this restriction are obvious, and include notions of efficiency, judicial restraint, and federalism. See Construction Laborers v. Curry, 371 U.S. 542, 550 (1963); Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1945). Over the years the Court has consistently applied a strict test of finality to determine the reviewability of state-court decisions remanding cases for further proceedings, and the reviewability of pretrial discovery orders. Given the plethora of such decisions and orders and the fact that they often lead to the settlement or termination of litigation, the application of these strict rules has unquestionably resulted in this Court’s not reviewing countless cases that otherwise might have been reviewed. Despite that consequence -- indeed, in my judgment, because of that consequence -- I regard the rule as wise and worthy of preservation.

I

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the Court recognized some limited exceptions to the general principle that this Court may not review cases in which further proceedings are anticipated in the state courts. One of these exceptions applies

where the federal claim has been finally decided, with further proceedings in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case.

Id. at 481. The concern, of course, is that the petitioning party not be put in a position where he might eventually lose on the merits, but would have never had an opportunity to present his federal claims for review. Ibid. The most common example of this phenomenon is where a State seeks review of an appellate court’s order that evidence be suppressed. In such a case, if the State were forced to proceed to trial prior to seeking review in this Court, it could conceivably lose its case at trial, and, because of the double jeopardy rule, never have a chance to use what we might have held to be admissible evidence. See, e.g., New York v. Quarles, 467 U.S. 649, 651, n. 1 (1984).

This case does not fit into that exception. Were we to decline review at this time, there are three possible scenarios on remand. First, the Children and Youth Services (CYS) might refuse to produce the documents under penalty of contempt, in which case appeals could be taken and this Court could obtain proper jurisdiction. See United States v. Ryan, 402 U.S. 530 (1971). Alternatively, if CYS were to produce the documents, the trial court might find the error to be harmless, in which case Ritchie’s conviction would stand and the Commonwealth would not have been harmed by our having declined to review the case at this stage. Finally, the trial court could determine that Ritchie’s lack of access to the documents was constitutionally prejudicial, and thus order a new trial. If the Commonwealth would then have no recourse but to proceed to trial with the risk of an unreviewable acquittal, I agree that the Cox exception would apply. Under Pennsylvania law, however, the Commonwealth would have the opportunity for an immediate interlocutory appeal of the new trial order.

Pennsylvania Rule of Appellate Procedure 311(a)(5) affords the Commonwealth a right to an interlocutory appeal in criminal cases where it "claims that the lower court committed an error of law." An argument that the trial court erred in evaluating the constitutionally harmless-error issue would certainly qualify under that provision.{1} Moreover, the Commonwealth could, if necessary, reassert the constitutional arguments that it now makes here. Although the claims would undoubtedly be rejected in Pennsylvania under the law-of-the-case doctrine, that would not bar this Court from reviewing the claims. See Barclay v. Florida, 463 U.S. 939, 946 (1983); Hathorn v. Lovorn, 457 U.S. 255, 261-262 (1982); seegenerally R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 132 (6th ed. 1986).

The fact that the Commonwealth of Pennsylvania cannot irrevocably lose this case on the federal constitutional issue without having an opportunity to present that issue to this Court takes this case out of the Cox exception that the Court relies upon. Nonetheless, the Court makes the astonishing argument that we should hear this case now because, if Ritchie’s conviction is reinstated on remand, "the issue of whether defense counsel should have been given access will be moot," and the Court will lose its chance to pass on this constitutional issue. Ante at 48. This argument is wholly contrary to our long tradition of avoiding, not reaching out to decide, constitutional decisions when a case may be disposed of on other grounds for legitimate reasons. See Ashwander v. TVA, 297 U.S. 288, 346-347 (1936) (Brandeis, J., concurring); Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947). Indeed, the Court has explained that it is precisely the policy against unnecessary constitutional adjudication that demands strict application of the finality requirement. Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 70-71 (1948).

II

The Court also suggests that a reason for hearing the case now is that, if CYS is forced to disclose the documents, the confidentiality will be breached and subsequent review will be too late. Ante at 48-49, and n. 7. This argument fails in light of the longstanding rule that if disclosure will, in and of itself, be harmful, the remedy is for the individual to decline to produce the documents, and immediately appeal any contempt order that is issued. This rule is exemplified by our decision in United States v. Ryan, 402 U.S. 530 (1971), a case in which a District Court denied a motion to quash a subpoena duces tecum commanding the respondent to produce certain documents located in Kenya. The Court of Appeals held that the order was appealable, but we reversed, explaining:

Respondent asserts no challenge to the continued validity of our holding in Cobbledick v. United States, 309 U.S. 323 (1940), that one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena, but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey. Respondent, however, argues that Cobbledick does not apply in the circumstances before us, because, he asserts, unless immediate review of the District Court’s order is available to him, he will be forced to undertake a substantial burden in complying with the subpoena, and will therefore be "powerless to avert the mischief of the order." Perlman v. United States, 247 U.S. 7, 13 (1918).

We think that respondent’s assertion misapprehends the thrust of our cases. Of course, if he complies with the subpoena he will not thereafter be able to undo the substantial effort he has exerted in order to comply. But compliance is not the only course open to respondent. If, as he claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review. But we have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Cobbledick v. United States, supra; Alexander v. United States, 201 U.S. 117 (1906); cf. United States v. Blue, 384 U.S. 251 (1966); DiBellav. United States, 369 U.S. 121 (1962); Carroll v. United States, 354 U.S. 394 (1957). Only in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims have we allowed exceptions to this principle.

Id. at 532-533.

In the case before us today, the Pennsylvania Supreme Court has instructed the trial court to order CYS to produce certain documents for inspection by the trial court and respondent’s counsel. Although compliance with the order might be burdensome for a different reason than the burden of obtaining documents in Kenya, the burden of disclosure is sufficiently troublesome to CYS that it apparently objects to compliance.{2} But as was true in the Ryan case, it has not yet been given the chance to decide whether to comply with the order, and therefore has not satisfied the condition for appellate review that we had, until today, consistently imposed.{3}

III

Finally, the Court seems to rest on the rationale that, because this respondent has aLReady been tried, immediate review in this particular case will expedite the termination of the litigation. See ante at 48-49, n. 7. I am not persuaded that this is so -- if we had not granted certiorari, the trial court might have reviewed the documents and found that they are harmless a year ago -- but even if it were, the efficient enforcement of the finality rule precludes a case-by-case inquiry to determine whether its application is appropriate. Only by adhering to our firm rules of finality can we discourage time-consuming piecemeal litigation.

Of course, once the case is here and has been heard, there is natural reluctance to hold that the Court lacks jurisdiction. It is misguided, however, to strain and find jurisdiction in the name of short-term efficiency when the long-term effect of the relaxation of the finality requirement will so clearly be inefficient. If the Court’s goal is expediting the termination of litigation, the worst thing it can do is to extend an open-ended invitation to litigants to interrupt state proceedings with interlocutory visits to this Court.

I would therefore dismiss the writ because the judgment of the Supreme Court of Pennsylvania is not final.

1. See Commonwealth v. Blevins, 453 Pa. 481, 482-483, 309 A.2d 421, 422 (1973) (whether "the testimony offered at trial by the Commonwealth was insufficient to support the jury’s finding" is appealable issue of law); Commonwealth v. Melton, 402 Pa. 628, 629,168 A.2d 328, 329 (1961) (citing case "where a new trial is granted to a convicted defendant on the sole ground that the introduction of certain evidence at his trial was prejudicial error" as example of appealable issue of law); Commonwealth v. Durah-El, 344 Pa.Super. 511, 514, n. 2, 496 A.2d 1222, 1224, n. 2 (1985) (whether trial counsel provided ineffective assistance of counsel is appealable as asserted "error of law"); Commonwealth v. Carney, 310 Pa.Super. 549, 551, n. 1, 456 A.2d 1072, 1073, n. 1 (1983) (whether curative instruction was sufficient to remedy improper remark of prosecution witness is appealable as asserted "error of law").

2. It is not clear to what extent counsel for the Commonwealth in this case represents CYS, or whether he only represents the Office of the District Attorney of Allegheny County. CYS is certainly not a party to this case; in fact, it has filed an amicus curiae brief expressing its views. That CYS is not a party to the case makes it all the more inappropriate for the Court to relax the rule of finality in order to spare CYS the need to appeal a contempt order if it fails to produce the documents.

3. The Court has recognized a limited exception to this principle where the documents at issue are in the hands of a third party who has no independent interest in preserving their confidentiality. See Perlman v. United States, 247 U.S. 7 (1918); see also United States v. Ryan, 402 U.S. 530, 533 (1971). This case presents a far different situation. As far as the disclosure of the documents goes, it is CYS, not the prosecutor, that claims a duty to preserve their confidentiality and to implement Pennsylvania’s Child Protective Services Law. See Brief for Allegheny County, Pennsylvania, on behalf of Allegheny County Children and Youth Services as Amicus Curiae in Support of Petitioner 2.

Nor does this case come within the exception of United States v. Nixon, 418 U.S. 683, 691-692 (1974), where the Court did not require the President of the United States to subject himself to contempt in order to appeal the District Court’s rejection of his assertion of executive privilege. As Judge Friendly explained, the rationale of that decision is unique to the Presidency, and is "wholly inapplicable" to other government agents. See National Super Suds, Inc. v. New York Mercantile Exchange, 591 F.2d 174,177 (CA2 1979); see also Newton v. National Broadcasting Co., 726 F.2d 591 (CA9 1984); United States v. Winner, 641 F.2d 825, 830 (CA10 1981); In re Attorney General of the United States, 596 F.2d 58, 62 (CA2), cert. denied, 444 U.S. 903 (1979); but see In re Grand Jury Proceedings (Wright II), 654 F.2d 268, 270 (CA3), cert. denied, 464 U.S. 1098 (1981); Branch v. Phillips Petroleum Co., 638 F.2d 873, 877-879 (CA6 1981).