# Parker v. Ellis/Dissent Douglas

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United States Supreme Court
362 U.S. 574
Parker v. Ellis
Argued: Jan. 20, 1960. --- Decided: May 16, 1960
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.
I do not take the dim view of fictions that the opinion of the Court reflects. Fictions are commonplace to lawyers. In Delaware, prior to its adoption of a modern code of civil procedure, the action of ejectment was based on a series of fictions. The declaration averred a lease to a fictious lessee, the entry by a fictitious lessee, and the ouster by a fictitious ejector 'which when proven or admitted by the consent rule' left 'the question of title as the only matter to be determined in the case.' 2 Woolley, Practice in Civil Actions (1906), § 1591.
We know from English history how the King's Bench and Exchequer contrived to usurp the Court of Common Pleas-by alleging that the defendant was in custody of the king's marshal or that the plaintiff was the king's debtor and could not pay his debt by reason of the defendant's default. See 3 Reeves' History of the English Law (Finlason ed. 1869), 753.
We are told by Maine, Ancient Law (New ed. 1930), 32, that in old Roman law 'fictio' was a term of pleading and signified a false averment which could not be traversed, 'such, for example, as an averment that the plaintiff was a Roman citizen, when in truth he was a foreigner.'
The list is long, and the case for or against a particular fiction is often hotly contested. See Fuller, Legal Fictions, 25 Ill.L.Rev. 363, 513, 877.
Some fictions worked grievous injustices such as the presupposition that a defendant, though far away, was within the jurisdiction and should be proceeded against by outlawry. Bentham inveighed against 'the pestilential breath of Fiction.' Yet fictions were often expedients to further the end of justice. '(T)he purpose of any fiction is to reconcile a specific legal result with some premise.' Fuller, op. cit., supra, at 514. As Justice Holmes once said, 'To say that a ship has committed a tort is merely a shorthand way of saying that you have decided to deal with it as if it had committed one, because some man has committed one in fact.' Tyler v. Judges of Court of Registration, 175 Mass. 71, 77, 55 N.E. 812, 814, 51 L.R.A. 433.
We have here an injustice to undo. Parker was convicted in a Texas court of a crime without benefit of counsel; and the nature of the charge, the kind of defense available, and the capabilities of Parker to defend himself, make it plain to all of us, I assume, that due process of law was denied him under the standards laid down in our cases, the most recent one being Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557. No remedy against this invasion of his constitutional rights was available to him except by habeas corpus. While in prison, he followed the federal route. The writ was applied for, the District Court ordered respondent to answer, see Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. 830, and a hearing on affidavits, other documents, and the trial record was held. The petition was dismissed and the Court of Appeals affirmed. 258 F.2d 937. Then a petition for a writ of certiorari was filed here. More than seven months after his petition for certiorari was filed with us and over three months after we granted certiorari he was released from prison. That was June 6, 1959. So the Court now rules that he has no relief by way of habeas corpus because the illegal detention he challenged has been terminated. And so it has. But his controversy with the State of Texas has not ended. The unconstitutional judgment rendered against him has a continuing effect because under Texas law '(a)ll persons convicted of any felony except those restored to full citizenship and right of suffrage or pardoned' are disqualified from voting. Texas Election Code, Art. 5.01, V.A.T.S. The loss of these civil rights prevents a case from becoming moot, even though the sentence has been satisfied. Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196; Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 484, 1 L.Ed.2d 393. The controversy that Parker has with Texas is a continuing one.
If this were a federal conviction, Parker would have a remedy under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255. See Pollard v. United States, supra. But we were advised on oral argument that Texas provides no such remedy and that Parker has no known method of removing the civil disabilities that follow from the unconstitutional judgment of conviction. He may be pardoned. But pardons are matters of grace. There is no remedy which he can claim as a matter of right, unless it is this one. I cannot therefore be party to turning him from this Court empty-handed.
Any judgment nunc pro tunc indulges in a fiction. But it is a useful one, advancing the ends of justice. A man who claims to be unlawfully in the custody of X is not required to start all over again if X has died and Y has been substituted in X's place. We treat the habeas corpus petition as the facts were when the issue was drawn and enter judgment nunc pro tunc 'as of that day.' Quon Quon Poy v. Johnson, 273 U.S. 352, 359, 47 S.Ct. 346, 348, 71 L.Ed. 680. The same is done when other parties die before final decision. See Mitchell v. Overman, 103 U.S. 62, 26 L.Ed. 369; Harris v. Commissioner, 340 U.S. 106, 112-113, 71 S.Ct. 181, 184 185, 95 L.Ed. 111. These cases can all be distinguished from the present one. But the principle is deep in our jurisprudence and was stated long ago in Mitchell v. Overman, supra, 103 U.S. at pages 64-65, as follows:
'(T)he rule established by the general concurrence of the American and English courts is, that where the delay in rendering a judgment or a decree arises from the act of the court, that is, where the delay has been caused either for its convenience, or by the multiplicity or press of business, either the intricacy of the questions involved, or of any other cause not attributable to the laches of the parties, the judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up. In such cases, upon the maxim actus curiae neminem gravabit, which has been well said to be founded in right and good sense, and to afford a safe and certain guide for the administration of justice,-it is the duty of the court to see that the parties shall not suffer by the delay. A nunc pro tunc order should be granted or refused, as justice may require in view of the circumstances of the particular case.'
It is the fault of the courts, not Parker's fault, that final adjudication in this case was delayed until after he had served his sentence. Justice demands that he be given the relief he deserves. Since the custody requirement, if any, was satisfied when we took jurisdiction of the case, I would grant the relief as of that date.

## Notes

* ↑ 9 Holdsworth, A History of English Law (3d ed. 1944), 254 et seq. As to corporations, churches, and boroughs see 1 Pollock and Maitland, History of English Law (2d ed. 1899), 486, 669-670.
* ↑ 1 Bentham's Works (Bowring ed. 1843), 235.
* ↑ 9 Holdsworth, op. cit., supra, note 1, at 250-251:
* ↑ And see the dissenting opinion of Judge Rives below, 258 F.2d 937, 941-944.
* ↑ The fact that there are other felony convictions which would be unaffected by our action seems to me to be immaterial. Petitioner is entitled here and now to start untangling the skein. If we grant relief, we will have undone the wrong which our own delay made possible. We have no way of knowing what other measures may be available to relieve petitioner of the stigma of the other felonies. Only if we were certain (as we are not) that there are or will be none could we fail to give him relief against the wrong done here by the processes of the law.
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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