Picard v. Connor, 404 U.S. 270 (1971)

MR. JUSTICE DOUGLAS, dissenting.

With all respect, I think that, in this case, we carry the rule of exhaustion of state remedies too far. Connor’s name was added to the indictment after it was returned by the state grand jury, he being substituted for "John Doe." He raised in his brief before the Supreme Judicial Court of Massachusetts his claim that such a substitution denied him that quantum of due process required by the Fourteenth Amendment "in that he was put to trial without having been indicted by a Grand Jury."{1} He did not refer to the Equal Protection Clause, which is also a part of the Fourteenth Amendment. But that is a nicety irrelevant to the maintenance of healthy state-federal relations on which the Court makes the present decision turn. The concept of due process is broad and expansive, and "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive." Bolling v. Sharpe, 347 U.S. 497, 499. We have thus held that the denial of equal protection, viz., invidious discrimination, may be "so unjustifiable as to be violative of due process." Ibid.{2} As MR. JUSTICE BRENNAN said in Boddie v. Connecticut, 401 U.S. 371, 388 (concurring opinion),

The question that the Court treats exclusively as one of due process inevitably implicates considerations of both due process and equal protection.

That is likewise true here.

Moreover, a due process point is plainly raised where an accused claims that no grand jury found "probable cause" to indict him, that its only finding concerned someone unknown at the time.

If Connor had complained of a coerced confession, or of perjured testimony, and the facts on which he relied were developed in the State court, the constitutional questions would surely have been sufficiently raised without reference to the precise constitutional provisions involved. The situation here is no different.{3}

The judges to whom that issue of law is tendered are learned men who we must assume are knowledgeable as to the meaning of due process. A law student who tendered a brief that left due process at large would certainly not be worthy of an "A." But the nicety of analysis which we associate with scholarship has no functional role to play in this area of exhaustion of state remedies. When we go to that extreme, we make a trap out of the exhaustion doctrine which promises to exhaust the litigant and his resources, not the remedies.

I fear that our reluctance to backstop the Court of Appeals in the present case is symptomatic of this Court’s trend to sidestep all possible controversies so, as it hopes, to let them disappear. Of course we should remit a litigant to his state tribunal if facts have emerged which were not known at the time of the trial or if intervening decisions have outdated the earlier state decision. No such situation exists here. The facts are simple and uncontested: Connor’s name was substituted for John Doe after the indictment was returned. The point of law is clear now, and will be no clearer on the remand. Its vulnerability tested by due process was as obvious when the case was before the Supreme Judicial Court of Massachusetts as it now is. I think the Court of Appeals acted responsibly in ruling on it. We should decide the merits here and now. Endless repetitive procedures are encouraged by today’s ruling on exhaustion of remedies. I would bring this litigation to an end today by applying the "exhaustion of remedy" rule to terminate, rather than multiply, procedures that now engulf the state-federal regime.

1. The Court properly says that respondent tendered the validity of Commonwealth v. Gedzium, 259 Mass. 453, 156 N.E. 890, to the Supreme Judicial Court of Massachusetts. That, however, was in his first assignment of error. But in his third and fourth assignments of error, he alleged that he was prosecuted "in violation of his constitutional right to due process in that he was put to trial without having been indicted by a Grand Jury."

2. The overlap is, of course, not total. Bolling v. Sharpe, 347 U.S. 497, 499. But the extent to which the two concepts merge has been a subject of debate since Representative John A. Bingham of Ohio, an architect of the Fourteenth Amendment, used the phrases "due process" and "equal protection" interchangeably on the floor of Congress. Cong.Globe, 39th Cong., 1st Sess., 1088-1089. See, e.g., Wilson, The Merging Concepts of Liberty and Equality, 12 Wash. & Lee L.Rev. 182, Antieau, Equal Protection Outside the Clause, 40 Calif.L.Rev. 362, Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341. Compare Douglas v. California, 372 U.S. 353, and Griffin v. Illinois, 351 U.S. 12, with Gideon v. Wainwright, 372 U.S. 335, and Powell v. Alabama, 287 U.S. 45.

There is apparently a similar controversy in India, whose constitution also contains both a due process and equal protection clause. See, e.g., Narain, Equal Protection Guarantee and the Right of Property Under the Indian Constitution, 15 Int. & Comp.L.Q.199.

3. Dougharty v. Gladden, 257 F.2d 750 (CA9), which the Court cites, is instructive. Daugharty was an indigent state prisoner. He appealed the denial of state habeas corpus to the intermediate state appellate court, but that court dismissed the appeal because Daugharty could not afford to supply an appellate transcript. He then moved the state supreme court for an order requiring that he be supplied a transcript free of charge, and when that motion was denied, sought federal habeas corpus. The District Judge denied the application for a writ on the grounds Daugharty had failed to exhaust state remedies. Despite the fact that Daugharty never even mentioned the Fourteenth Amendment, much less the Equal Protection Clause, the Court of Appeals held that his motion in the state supreme court satisfied the exhaustion requirement.

In moving the Oregon Supreme Court for an order requiring that a transcript be supplied without expense to him, Daugharty called attention to his inability to pay for such a record. This provided that court with all of the facts necessary to give application to the constitutional principle upon which appellant relies. . . . [E]xhaustion of state remedies is not to be denied because the Fourteenth Amendment was not specifically mentioned.

Id. at 758.

Analogously, the Court of Appeals said in the instant case:

Petitioner did not present the constitutional question to the Massachusetts court in the particular focus in which this opinion is directed. We suggested it when the case reached us, and invited the Commonwealth to file a supplemental brief. Not unnaturally, its first contention was to assert that petitioner had not exhausted his state remedy, citing Needel v. Scafati, 1 Cir., 1969, 412 F.2d 761, cert. denied 396 U.S. 861, . . . and Subilosky v. Commonwealth, 1 Cir., 1969, 412 F.2d 691. We find these cases inapposite. This opinion considers neither facts, as in Needel, nor precedent, as in Subilosky, that was not available to the Massachusetts court when petitioner was before it. Petitioner presented the court with "an opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim." United States ex rel. Kemp v. Pate, 7 Cir., 1966, 359 F.2d 749, 751; cf. Wilbur v. Maine, 1 Cir., 1970, 421 F.2d 1327. That is enough to satisfy the requirements of the exhaustion . . . doctrine. Sullivan v. Scafati, 1 Cir., 1970, 42 F.2d 1023, 1024 n. 1. We therefore turn to the merits.

434 F.2d 673, 674.