Opinion — Mintzes v. Buchanon

SUPREME COURT OF THE UNITED STATES

BARRY MINTZES, WARDEN v. NEALY BUCHANON

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

No. 84-501. Decided April 15, 1985

CHIEF JUSTICE BURGER, dissenting.

In this case, the District Court and the Court of Appeals

for the Sixth Circuit ordered that respondent either be re-

leased or given a new hearing on the degree of his crimes and

a resentencing. This was ordered despite the passage of 25

years since respondent’s convictions for two murders com-

mitted while he was a fugitive on escape from prison. Both

courts held that laches did not bar respondent’s claim that he

did not knowingly and intelligently waive his right to counsel

at the hearing and sentencing in 1956. Understandably

troubled by the possible ramifications of such a drastic hold-

ing and concerned that even in this particular case it would be

prejudiced in its defense to the allegations, given the loss of

records, faded memories, and intervening deaths, the State

of Michigan sought certiorari to review the judgment of the

Court of Appeals. We granted the State’s petition and set

the case for argument. —— U. S. —— (1984).

Now, having been informed that the respondent has died,

the Court simply directs that our order granting certiorari be

vacated and the petition for certiorari dismissed, thereby

leaving the Court of Appeals opinion standing. In reaching

this surprising result, the Court relies upon a single author-

ity which, it is clear upon analysis, does not support, let alone

require such a disposition, see Warden v. Palermo, 431 U. S.

911 (1977). And it ignores the one precedent which does

directly control on this question. See McMann v. Ross, 396

U. S. 118 (1969) (per curiam); McMann v. Richardson, 397

U. S. 759, n. 1 (1970).

2 MINTZES v. BUCHANON

In Mean v. Ross, the only case to have presented the

precise issue we have here, the Court vacated the judgment

and opinion of the Court of Appeals and remanded to the Dis-

trict Court with instructions to dismiss the respondent’s peti-

tion for writ of habeas corpus as moot. I would, as peti-

tioner urges, dispose of this case in the same way. This is

the course we have chosen to pursue in every civil case that

becomes moot either pending a decision on certiorari or after

we have granted a writ of certiorari, except Warden v. Pa-

lermo, which even if it were correct is plainly distinguish-

able. Thirty-five years ago, the Court noted that,

At he established practice of the Court in dealing with a

civil case from a court in the federal system which has

become moot while on its way here or pending our deci-

sion on the merits is to reverse or vacate the judgment

below and remand with instructions to dismiss.”

United States v. Munsingwear, Inc., 340 U. S. 36, 39

(1950) (footnote omitted) (emphasis added).

Indeed, as the Court said in Duke Power Co. v. Greenwood

County, 299 U. S. 259, 267 (1936), this is the “duty” of this

Court. Such a disposition “clears the path for future

relitigation of the issues between the parties.” Mun-

singwear, supra, at 40. In this case it is possible, for exam-

ple, that by applying collateral estoppel offensively, relatives

of the defendant might well invoke the Sixth Circuit’s deci-

sion in a subsequent civil suit for damages. Moreover, by

vacating the Court of Appeals’ judgment and opinion and re-

manding with instructions to dismiss as moot, we “elimi-

nate[ ] a judgment, review of which was prevented through

happenstance.” Jbid. And it is only through this procedure

that “the rights of all parties are protected.” Ibid.

The Court mistakenly believes that our four-line order in

Palermo, supra, requires that we only vacate the order

granting certiorari and dismiss the petition. I do not

understand how Palermo can possibly be regarded as con-

trolling the disposition here. Palermo is significantly differ-

MINTZES v. BUCHANON 3

ent from this case in at least one obvious respect—there, we

had not granted the petition for certiorari. So also was the

case in Dove v. United States, 423 U. S. 325 (1976), the au-

thority we relied upon for our dismissal of the petition in

Palermo. While in some circumstanees we may wish to

treat cases in which we have granted certiorari similarly to

those in which a petition for certiorari has merely been filed

here, it is inconceivable to me that we would ever consider

ourselves bound to treat these two patently different catego-

ries of cases identically.

In my view, the Court has a higher duty when it learns

that a case has become moot after it has granted review than

when it discovers that a case in which review is being sought

has become moot. In the former instance, the Court has, by

its grant of the writ, asserted jurisdiction over the case, and

brought the judgment of the lower court before it. If the

Court simply vacates its order granting certiorari, it forces

upon the parties and the courts below the problems it avoids

for the sake of its own convenience. The Court’s action

today leaves unclear, for instance, whether the Court of

Appeals opinion remains as precedent as between the parties

or their successors in any future proceeding. It is likewise

unclear whether the opinion is generally to have precedential

value in the Sixth Circuit. Finally, there remains consid-

erable uncertainty over whether the Court of Appeals is

required or permitted to vacate its opinion. Indeed, I sup-

pose there will be a question whether the Court of Appeals

even has jurisdiction to vacate or otherwise modify its opin-

ion, given that our writ of certiorari is still lodged in that

court; at the very least, the Court should vacate its writ of

certiorari. Cf. Westinghouse Zlectric Corp. v. Vaughn,

— U. 8. —— (1984); Colorado v. Nunez, —— U. S. ——

(1984); Gillette Co. v. Miner, 459 U.S. 86 (1982). The

Court’s disposition leaves the status of the Court of Appeals’

judgment and opinion in limbo. I believe we have an institu-

tional obligation to avoid such confusion. This is easily

4 MINTZES v. BUCHANON

achieved by following what heretofore, with the exception of

Warden v. Palermo, has been our “established practice.”

Even if one accepts the dubious proposition that the Court

is duty-bound to treat granted cases identical to cases where

the petition for a writ of certiorari is pending, I still believe

the Court’s disposition is incorrect because I am convinced

the Court disposed of Palermo improperly. Palermo, it is

true, was a case before us on habeas and we did dismiss the

certiorari petition. The Court relied entirely, however, on

Dove, a case which was before us on direct review, not ha-

beas. In a case on direct review, it may be necessary simply

to dismiss the petition to avoid the result in Durham v.

United States, 40i U. S. 481 (1971), of having a defendant’s

indictment dismissed, which in turn has the effect of “wip-

[ing] the slate entirely clean of a federal conviction which was

unsuccessfully appealed throughout the entire appeal process

to which the petitioner was entitled as of right,” id., at 484

(BLACKMUN, J., dissenting). The only alternative—and

surely an unsatisfying one—would be for the Court to decide

case-by-case whether it believes the decision in question to

be correct or incorrect, and dismiss the petition for certiorari

or vacate the judgment accordingly.

But plainly there is no such dilemma presented when a case

is before us on writ of certiorari to review a judgment

obtained on habeas. In such a case, our objectives of elimi-

nating as precedent an opinion and judgment of which no final

review is possible and clearing the path for any future litiga-

tion are achievable—and incidentally, without at the same

time embracing a principle that would require dismissal of

indictments—by vacating the opinion below and remanding

with instructions to dismiss the habeas petition.

Even the Court in Durham recognized the validity of dis-

tinguishing in this context between cases on direct and ha-

beas review; the Court very carefully limited its holding to

cases on direct review, see 401 U. S., at 482-483. Our order

in Dove also contemplated this distinction. In Dove, we

MINTZES v. BUCHANON 5

overruled Durham only “{t]o the extent that Durham] may

be inconsistent with” our disposition in Dove. We thereby

removed any doubt that McMann—which otherwise one

might have thought the Court also intended to overrule—was

still valid precedent. Under the circumstances, especially

since Palermo not only relied upon inapposite authority but

failed even to acknowledge McMann, I would not, as the

Court does, read Palermo as limiting us to a dismissal.

If it were true, however, as the Court implicitly must be-

lieve, that we are required now to overrule either McMann

or Palermo, I would “overrule” the latter. Palermo is the

case inconsistent with our asserted “established practice.”

Palermo, not McMann, is the disposition in search of a

rationale.

Because I believe we should not compound the evils of a

dad practice by repeating the error here, | dissent.