Parker v. Illinois

Mr. Justice Douglas

delivered the opinion of the Court.

Petitioner, who was engaged in litigation in the Illinois courts with one Shamberg, was ordered on a motion for discovery to produce certain documents. He produced them by filing them with the clerk of the Illinois courts. Shamberg thereupon moved that petitioner be punished for contempt because the documents reflected on the integrity of the court. After a hearing petitioner was adjudged guilty of contempt. The court held that the order required only that petitioner produce the documents, not that he file them in court so as to make them public records; and that the filing of the documents containing statements deemed to be scurrilous constituted an obstruction of justice and an abuse of the processes of the court, tending to lessen the court’s dignity and authority.¹ Petitioner was sentenced to jail for 90 days. That was on January 15, 1945. Petitioner thereupon sought a writ of error in the Illinois Supreme Court for review of the order of January 15. The writ of error was refused on January 23, 1945. Later in the same day the trial court, over petitioner’s objection and in his presence, issued an amended order adjudging him guilty of contempt and sentencing him to jail for 90 days. This amendment was made, it is said, to cure certain defects in the order of January 15 and to bring it into conformity with the requirements of Illinois law.

The amended order of January 23 is the one before us. Petitioner did not seek to take it directly to the Illinois Supreme Court. Rather, he took it first to the Appellate Court of Illinois where he sought to attack it on the grounds, inter alia, that it violated the First and Fourteenth Amendments of the Federal Constitution. But the Illinois Appellate Court did not consider those constitutional questions. It sustained the amended order of January 23 on state grounds. 328 Ill. App. 46, 65 N. E. 2d 457. On writ of error the Illinois Supreme Court affirmed the judgment of the Appellate Court. 396 Ill. 583, 72 N. E. 2d 848. It likewise did not consider the constitutional questions which petitioner presented. For it is well-settled law in Illinois that if an appellant takes his case to the Appellate Court where errors are assigned of which that court has jurisdiction, he is deemed to have waived any constitutional questions. People v. Rosenthal, 370 Ill. 244, 247, 18 N. E. 2d 450, 452; People v. McDonnell, 377 Ill. 568, 569, 37 N. E. 2d 159, 160. That was the reason neither of the courts below passed on the federal constitutional questions tendered by petitioner.² See 328 Ill. App. 46, 55, 65 N. E. 2d 457, 461; 396 Ill. 583, 587, 72 N. E. 2d 848, 850-851. The circumstance that the petitioner had taken the order of January 15 directly to the Illinois Supreme Court did not cause that Court to except this case from that well-settled rule of Illinois practice.

This Court held in Central Union Co. v. Edwardsville, 269 U. S. 190, that federal constitutional questions which Illinois held had been waived for failure to follow its procedure would not be entertained here. The nature of the questions presented in the present case seemed to us to warrant a grant of the petition for writ of certiorari to determine whether the rule of the Edwardsville case was applicable to the peculiar circumstances presented here.

When federal rights are involved, it is, of course, for this Court finally to determine whether the failure to follow the procedure designed by a State for their protection constitutes a waiver of them. Davis v. O’Hara, 266 U. S. 314; Central Union Co. v. Edwardsville, supra. The Court said in the Edwardsville case that when the waiver is founded on a failure to comply with the appellate practice of a State, the question turns on whether that practice gives litigants “a reasonable opportunity to have the issue as to the claimed right heard and determined” by the state court. 269 U. S., pp. 194-195. It was there held that the Illinois practice of requiring constitutional questions to be taken directly to the Illinois Supreme Court and of refusing to review them if review was first sought in the Appellate Court satisfied the requirement. We adhere to that decision. The channel through which the constitutional questions, raised by petitioner in his attack on the amended order, could have been taken all the way to this Court was not only clearly marked, it was also open and unobstructed.

Petitioner appears here pro se. But at the critical stages of this litigation he was represented by counsel of record. For the lawyer the choice was plain. Under these circumstances petitioner plainly had a reasonable opportunity to have his federal questions passed upon by the state court. When petitioner acting through counsel decided to seek review in the Appellate Court he made a choice which involved abandonment of the constitutional issues which he had raised in the proceedings. There is a suggestion that petitioner deemed it useless to try to take the amended order of January 23 to the Illinois Supreme Court since access to that court had been denied him when review of the order of January 15 was sought. But even though the attempt may have seemed futile,³ it was only by first seeking review in the Illinois Supreme Court that he could bring to this Court the constitutional questions raised under the amended order of January 23. It is not an answer to say that he went to the Illinois Supreme Court for review of the order of January 15.⁴ That is not the order under which he stands committed; it is not the order reviewed by the Illinois Supreme Court in this case. Nor could denial by the Illinois Supreme Court of his petition for a review of that earlier order have been the foundation for this petition for cer-tiorari. Review of that order was denied by the Illinois Supreme Court on January 23, 1945. Petition for cer-tiorari was filed here August 15, 1947. His petition for certiorari is not timely if it challenges the earlier order.⁵ It presents federal questions which have been waived if it involves, as it plainly does, the amended order.

The result is no different if the orders are treated as being the same in substance though separate in point of time and form. For if the January 15 order be regarded as merely an interlocutory version of the amended order of January 23, the fact remains that the latter order was not taken directly to the Illinois Supreme Court but to the Illinois Appellate Court, with the consequences we have indicated. We find it no more unreasonable for Illinois to require a second appeal than for this Court to do so, as it does when it refuses to review the judgment of a lower state court absent a second appeal to the highest court of the State, though that be a mere formality because governed by the law of the case established in an earlier appeal. McComb v. Commissioners of Knox County, 91 U. S. 1; Great Western Telegraph Co. v. Burnham, 162 U. S. 339.

It is suggested that in this case there could be no final judgment within the meaning of § 237 of the Judicial Code, 28 U. S. C. § 344, which could be brought here by certiorari until all questions of state law had been resolved by the Illinois courts. But there would be nothing other than ministerial acts left to be done by the trial court once the Illinois Supreme Court denied direct review of the order. Cf. Richfield Oil Corp. v. State Board, 329 U. S. 69, 72-73. Any further proceedings in the Illinois courts would be solely at the option of petitioner. In these circumstances, a judgment is no less final for purposes of our jurisdictional statute because it has been sustained solely on federal constitutional grounds.⁶ That consequence is inherent in the rule formulated in Central Union Co. v. Edwardsville, supra.

Affirmed.

1 The contents of the documents are reviewed in 328 Ill. App. 46, 50-54, 65 N. E. 2d 457, 459-461.

2 Constitutional questions are to be reviewed directly by the Illinois Supreme Court. Ill. Rev. Stat. c. 110, § 199 (1947). As held in this case those include questions arising under the Federal Constitution. And see Central Union Co. v. Edwardsville, 269 U. S. 190, 194. The procedure is applicable in criminal as well as civil cases. People v. Terrill, 362 Ill. 61, 199 N. E. 97; People v. Rosenthal, supra; People v. McDonnell, supra.

3 Cf. Great Western Telegraph Co. v. Burnham, 162 U. S. 339.

4 The writ of error by which petitioner challenged the order of January 15 does not appear in the present record. We assume most favorably to petitioner that the same constitutional questions were presented there as petitioner seeks to have adjudicated here.

5 Sec. 8 (a) of the Judiciary Act of February 13, 1925, 43 Stat. 936, 940,28 U. S. C. § 350.

6 If direct review of the amended order were obtained in the Illinois Supreme Court, rather than denied for lack of a substantial constitutional question, that court would pass not only upon the constitutional questions but upon all other questions as well. Groome v. Freyn Engineering Co., 374 Ill. 113, 28 N. E. 2d 274; People v. Kelly, 367 Ill. 616, 618, 12 N. E. 2d 612, 613; Geiger v. Merle, 360 Ill. 497, 505, 507, 196 N. E. 497, 500-501.