# Lanza v. New York/Concurrence Harlan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
United States Supreme Court
370 U.S. 139
Lanza v. New York
Argued: April 2, 1962. --- Decided: June 4, 1962
Mr. Justice HARLAN, concurring.
I do not understand anything in the Court's opinion to suggest either that the Fourteenth Amendment 'incorporates' the provisions of the Fourth, or that the 'liberty' assured by the Fourteenth Amendment is, with respect to 'privacy,' necessarily coextensive with the protections afforded by the Fourth. On that premise, I join the Court's opinion.
Memorandum opinion of Mr. Chief Justice WARREN.
I agree with Mr. Justice BRENNAN that the decision of the New York courts comes to us resting firmly upon an independent state ground and I therefore join his memorandum opinion. However, because the opinion of the Court departs from our practice of refusing to reach constitutional questions not necessary for decision, I deem it appropriate to add a few words.
Unquestionably, all that the Court's opinion decides is that since two of the questions asked petitioner by the Committee were not in any way related to the intercepted conversation, the refusal to answer those questions alone 'fully supports the judgment as modified by the New York courts.' Ante, 370 U.S., p. 146, 82 S.Ct., p. 1222. Despite the fact that this holding deprives the Court of jurisdiction to intimate views on the other, more serious problems of constitutional dimension presented by the record, Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789; Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U.S. 157, 37 S.Ct. 318, 61 L.Ed. 644; Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429, and would warrant dismissing the writ as improvidently granted, Benz v. New York State Thruway Authority, 369 U.S. 147, 82 S.Ct. 674, 7 L.Ed.2d 634; Atchley v. California, 366 U.S. 207, 81 S.Ct. 1051, 6 L.Ed.2d 233, the opinion undertakes, as Mr. Justice BRENNAN characterizes it, a 'gratuitous exposition' upon those more difficult constitutional problems originally thought presented for decision. These expressions of dicta are in a form which can only lead to misunderstanding and confusion in future cases. Such dicta, when written into our decisions, have an unfortunate way of turning up in digests and decisions of lower courts; they are often quoted as evidencing the considered opinion of this Court, and this is so even though such intention is denied by the writer.
I am expressing my views separately because I believe that for several reasons it is particularly regrettable for the Court to depart from its normal practice in this case. The New York Court of Appeals, the highest court of the State, split 4-3 on the result reached below. And, because that court did not write a full opinion in announcing its decision, we cannot tell whether it intended to decide the constitutional issues or whether it even considered them. Its remittitur is unconvincing in determining whether its judgment was intended to rest on an independent state ground. See Benz v. New York State Thruway Authority, supra. What makes this Court's action singularly unfortunate is that the state courts, state officials and the people of New York State, have uniformly condemned the eavesdropping in this case as deplorable. The New York Appellate Division termed the action at the jail 'reprehensible and offensive,' People v. Lanza, 10 App.Div.2d 315, 318, 199 N.Y.S.2d 598, 601; earlier the court had called it 'atrocious and inexcusable,' Lanza v. New York State Joint Legislative Committee, 3 App.Div.2d 531, 533, 162 N.Y.S.2d 467, 470; also 'flagrant and unprecedented,' Matter of Reuter, 4 App.Div.2d 252, 255, 164 N.Y.S.2d 534, 538. In the Court of Appeals it was characterized as a 'gross wrong,' Lanza v. New York State Joint Legislative Committee, 3 N.Y.2d 92, 101, 164 N.Y.S.2d 9, 16, 143 N.E.2d 772, 777 (dissenting opinion), and counsel for the Joint Committee made no effort to justify or excuse the action, but on the contrary himself called it 'repulsive and repugnant,' ibid. The Governor of New York termed unchecked eavesdropping 'unwholesome and dangerous,' McKinney's 1958 Session Laws of New York, p. 1837; and the Chairman of the New York Joint Legislative Committee on Privacy of Communications called the incident 'deplorable' and reported that it had 'brought forth a storm of protest from lawyers, some of whom had not previously been audibly concerned (with) * * * efforts to protect the people's right of privacy.' Report of the New York Joint Legislative Committee on Privacy of Communications, Legislative Document (1958) No. 9, 25. It has been reported that a New York trial court judge found it necessary to release a prisoner without bail so that he would be able to consult his attorney, the judge not being able to feel confident after this incident that there was any jail in the State where the prisoner and his lawyers could be secure against electronic eavesdropping. Comment, 27 Fordham L.Rev. 390, 394, n. 35. The most striking indication of the degree to which the people of the State of New York were shocked by the incident was the enactment of Article 73 of the Penal Law of New York, making it a felony to do what the officials in this case did. And finally the Appellate Division of the Supreme Court, affirmed by the New York Court of Appeals, reduced the bizarre and unprecedented sentence of ten years for contempt of court to one year.
It seems to me that when this Court puts its imprimatur upon conduct so universally reproached by every branch of the government of the State in which the case arose, we invite official lawlessness which, in the long run, can be far more harmful to our society than individual contumacy.
Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur in this opinion.
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join.
I must protest the Court's gratuitous exposition of several grave constitutional issues confessedly not before us for decision in this case. The tenor of the Court's wholly unnecessary comments is sufficiently ominous to justify the strongest emphasis that of the abbreviated Court of seven who participate in the decision, fewer than five will even intimate views that the constitutional protections against invasion of privacy do not operate for the benefit of persons-whether inmates or visitors-inside a jail, or that the petitioner lacks standing to challenge secret electronic interception of his conversations because he has not a sufficient possessory interest in the premises, or that the Fourth Amendment cannot be applied to protect against testimonial compulsion imposed solely as a result of an unconstitutional search or seizure.
The petitioner was convicted on several counts for failure to answer each of a number of questions put to him by a state legislative committee. On appeal, the judgment, which had imposed 10 identical sentences to run consecutively, was modified by the Appellate Division to provide that the sentences on each count should run concurrently. The record shows, affirmatively and without rebuttal, that at least two of the questions were conceived and propounded independently of the search and seizure which the petitioner claims infringed his constitutional rights; and there is nothing which supports his contention that he would not have been questioned at all but for that claimed infringement.
Under these circumstances, it is apparent that the judgment of the Court of Appeals of New York can be adequately supported by an independent ground of state law. It is the settled law of that court that there is no occasion to review a conviction on one count of an indictment or information if the judgment and sentence are sufficiently sustained by another count. Since this Court is thus able to see that the judgment of the court below-which is unelucidated by any opinion-is maintainable on an adequate, independent state ground, it should forbear from any further review of the case; for, in light of the clearly established New York law, a decision by this Court on the federal questions sought to be tendered here would be but an exercise in futility. In any event, historic principles demand that any consideration of constitutional issues at least abide a clarification from the court below as to the basis for its judgment, in order 'that this Court not indulge in needless dissertations on constitutional law.' Minnesota v. National Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920.
I do not mean, however, that I would seek clarification in this case. It taxes credulity to suppose that the court below would disagree with the majority here that two of the counts are free of any taint, or depart from its own settled doctrine that even one such count requires affirmance. And even if this Court were somehow free to disregard the law of New York, the Court has in the past limited its review of a state conviction in accordance with 'the rule, frequently stated by this court, that a judgment upon an indictment containing several counts, with a verdict of guilty upon each, will be sustained if any count is good, and sufficient in itself to support the judgment.' Whitfield v. Ohio, 297 U.S. 431, 438, 56 S.Ct. 532, 534, 80 L.Ed. 778.
While the Court does ultimately rest its disposition of the case on this ground, it does so by way of affirmance. It is at least arguable that the proper disposition is to dismiss the case because certiorari was improvidently granted. Benz v. New York State Thruway Authority, 369 U.S. 147, 82 S.Ct. 674, 7 L.Ed.2d 634; Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158. But in no event is it arguable that any of the constitutional questions the Court reaches are before it.

## Notes

* ↑ See People v. Faden, 271 N.Y. 435, 3 N.E.2d 584; People v. Cummins, 209 N.Y. 283, 103 N.E. 169; Hope v. People, 83 N.Y. 418; People v. Davis, 56 N.Y. 95. That is also the federal rule, see Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774.
* ↑ Compare Bachtel v. Wilson, 204 U.S. 36, 27 S.Ct. 243, 51 L.Ed. 357, in which the Court dismissed a writ of error to the Supreme Court of Ohio, which had written no opinion. The Court said, at p. 40, 27 S.Ct. at p. 245: 'Before we can pronounce (the judgment of the court below) in conflict with the Federal Constitution it must be made to appear that its decision was one necessarily in conflict therewith, and not that possibly, or even probably, it was * * *. We do not decide (that the state statute is to be given a construction which would render it constitutional), but we do hold that, in view of the silence of the supreme court, we are not justified in assuming that it (did not so construe the statute).'
* ↑ In Benz, as here, the Court of Appeals had granted the petitioner an amended remittitur reciting that it has necessarily passed upon a federal constitutional question, to wit: 'Whether plaintiff was deprived of just compensation in violation of the due process clause of the Fourteenth Amendment.' Notwithstanding that representation, we concluded that the Court of Appeals had 'decided no more than' a question relating to state court jurisdiction. That action was entirely consistent with Honeyman v. Hanan, 300 U.S. 14, 18-19, 57 S.Ct. 350, 352, 81 L.Ed. 476: 'A certificate or statement by the state court that a federal question has been presented to it and necessarily passed upon is not controlling. While such a certificate or statement may aid this Court in the examination of the record, it cannot avail to foreclose the inquiry which it is our duty to make or to import into the record a federal question which otherwise the record wholly fails to present.' Indeed, as Honeyman v. Hanan, supra, and Honeyman v. Hanan, 302 U.S. 375, 58 S.Ct. 273, 82 L.Ed. 312, illustrate, proper pursuit of the matter when suspicions are aroused may disclose that a state court's certificate simply did not mean what it appeared, at first glance, to say.
The remittitur in this case recited: 'Defendant argued that the imposition of penal sanctions for his refusal to answer certain questions deprived him of liberty without due process of law in violation of the Fourteenth Amendment. The Court of Appeals held that defendant's constitutional rights were not violated.' The Court of Appeals wrote no opinion, and it is understood in New York that 'affirmance without opinion is merely an adoption of the result reached by the Appellate Division, the reasoning of which is not necessarily adopted.' Carmody's New York Practice (7th ed. 1956) 678. See Commissioner of Public Welfare v. Jackson, 265 N.Y. 440, 441, 193 N.E. 262; Soderman v. Stone Bar Associates, Inc., 208 Misc. 864, 867, 146 N.Y.S.2d 233, 236. For all we can tell, the Court of Appeals concluded that the petitioner's 'constitutional rights were not violated' by reasoning that the two untainted questions supported the conviction.
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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