# Jennings v. Illinois/Dissent Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Minton Frankfurter
United States Supreme Court
342 U.S. 104
Jennings v. Illinois
Argued: Nov. 5, 6, 1951. --- Decided: Dec 3, 1951
Mr. Justice FRANKFURTER, dissenting.
We all agree, I assume, that we ought not to impute an obstinate flouting of this Court's repeated adjudications to the highest court of a State unless its action precludes any other fair inference. This is more than a mere gesture of courtesy. It does to the very conception of the relationship of the State courts to this Court in our federal system. Accordingly, just as reasonable legal ground must be attributed to our dispositions without opinion, so explanations rationally consonant with legality must be attributed to the Illinois orders.
One difficulty with the remand of the cases to Illinois is that the explanatory opinion leaves uncertainty regarding the issue on which this Court is asking the Illinois Supreme Court for clarification. The orders under review may rest on one of two legally entertainable grounds: that (a) the Illinois proceedings disclose no infraction of the Fourteenth Amendment, or (b) as a matter of local procedural law, the claim of such infraction was not properly presented.
If we think that a substantial federal claim is raised in these cases, for which a hearing was required but denied, and the denial could only be justified because allowable local procedure was disregarded in the manner in which this federal right was pursued, it would be appropriate, of course, for us to ask the Illinois Supreme Court to tell us explicitly whether these cases went off on such a non-federal ground, and if no what it is. See State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920. If this is what the Court means to do, it ought not to be too difficult for the opinion to say so very simply. But to adopt this course, we must be convinced that a federal claim of substance is presented by the record which, but for the legitimate State procedural requirement, is entitled to be heard. We should, then, at least suggest what that claim is.
Alternatively, these Illinois orders may rest, not on a procedurally justifiable refusal to entertain a substantial federal claim, but on the view of the Illinois court that no such substantial federal claim is in issue. If the Court disagrees, it is certainly proper to remand the case to the State court with instructions to accord a hearing to the claim of federal right presented.
But in either case, is it not incumbent on this Court to state without any roundaboutness what the substantial federal question is and how it is properly before us? It seems to me that the formulation of the substantial federal claim, to which the Illinois Supreme Court is said to have been deaf, is the crucial issue in these cases. We would be exactly where we now are if the Illinois Supreme Court were most respectfully to reply to our request for clarification by saying: 'Why of course a hearing is required under Illinois law of a substantial claim under the United States Constitution. But in these cases we found no such substantial federal claim.'
What is the substantial federal question? Certainly whether a claim which could have been raised by the method of direct review of the trial proceedings but was not, must be allowed to be raised in some collateral attack, is not a substantial federal question. Such a requirement cannot be made of the States under the Fourteenth Amendment. It is not enforceable even as to federal prosecutions. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982.
Is then the federal claim the denial by Illinois of stenographic minutes of a trial to an indigent defendant? I appreciate that such a denial might be found to be in violation of the Fourteenth Amendment, and more particularly of its Equal Protection Clause, in a State which has a system of criminal appeals. Is this being decided now? And is so far-reaching a general claim decided inferentially, without argument or consideration of all the relevant subsidiary questions that the general proposition would raise?
Or does the Court hold that, in the circumstances of this case, the petitioners are entitled, as a matter of federal right, to an independent inquiry into the constitutional validity of their convictions even though the questions raised were, or could have been, determined at the trials? And if so what are the circumstances which provide a basis for that conclusion?
A reading of the Court's opinion with the care and deference that should be accorded it by a doubter has not revealed which if any of these possible federal claims has been denied so as to provide the necessary basis for a remand to the State court.
My difficulty, however, is not merely with ambiguity or, perhaps, obscurity in defining the federal right which was, or may have been, denied by the Illinois proceedings here for review. The fatal weakness, as I see it, is that the question of a denial of one or more putative federal rights is nowhere properly raised on the record before us.
It is true that petitioners allege they were convicted on the basis of coerced confessions and perjured testimony admitted in evidence in violation of the Fourteenth Amendment. But so far as appears from the record, these issues were fully litigated and determined at the trials. Until the cases came to this Court, no showing was made, or sought to be made, that circumstances were such as to warrant a new and independent inquiry into those determinations as a matter of federal right.
Whether these petitioners could have appealed from their convictions but did not, what procedures were available for perfecting an appeal, whether the circumstances were such as effectively to deny to these petitioners the opportunity for direct review of their convictions-answers to all these questions are indispensable to a judgment on the nature and scope of the federal right, if any, which Illinois may have denied these prisoners in this proceeding. But they are questions entangled in the procedural law of Illinois and in the facts and circumstances surrounding the conviction of these petitioners. The Illinois courts have never passed on them because they were never raised. And neither they nor we can pass on them unless they are raised in some appropriate way. Whitney v. People of State of California, 274 U.S. 357, 379-380, 47 S.Ct. 641, 649-650, 71 L.Ed. 1095, Mr. Justice Brandeis, concurring.
Of course, we read the self-composed claims of an indigent defendant with generous inferences and do not require elegance of pleading. We do not make such an exaction even of lawyers' pleadings. We ought to dig out of a complaint what is in it, and State courts surely feel themselves under a similar obligation when questions of constitutional right are involved. But this is entirely different from constructing a new case not even vaguely adumbrated in the complaint which moves a court to action. Still less ought this Court to originate litigation in this way when to do so is to disrespect the judgment of a State court and to decide, at least implicitly, difficult constitutional questions without the foundation of fact and circumstance needed to illumine their consideration.
In light of these views, I cannot join the Court's position of these cases. I think the writs should be dismissed for want of a properly presented federal question. Such a dismissal would not, of course, bar a new proceeding, differently conceived, tendering one or more of the federal questions here discussed. Certainly if, for whatever reason, the Illinois courts fail to afford corrective relief for the denial of a right guaranteed by the United States Constitution, the road to the federal court is open. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215. At the core of the problem remains the precise definition of the basis for invoking the Fourteenth Amendment.

## Notes

* ↑ Indeed, it is difficult to interpret the orders before us for review as saying anything else: 'It is further considered by the Court that after having examined and reviewed the petition and record in the post conviction hearing the same is found to disclose no violation or denial of any substantial constitutional rights of the petitioner under the constitution of the United States * * *.'
* ↑ It is at least relevant to remind that under existing federal habeas corpus procedure, the judge who presided at the trial resulting in conviction may prepare a certificate 'setting forth the facts occurring at the trial' for use in the habeas corpus court. 28 U.S.C. § 2245, 28 U.S.C.A. § 2245 (I am not unmindful of § 2250 enacted in 1948). And the 'judge's notes' is the historic basis for appellate review in England, which, I take it, is a mode not unlike that of the 'bystander's record' in some of the States. I do not now mean to argue the main question nor its subsidiary problems nor to intimate any considered view upon them. But as an indication of the kind of issues that are raised before reaching a conclusion on the general and abstract proposition that failure to provide stenographic minutes without cost to an indigent defendant in a violation of a guaranty of the Fourteenth Amendment, it is useful to recall something of the history touching the means by which errors at nisi are brought to the attention of an appellate court.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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