Norvell v. Illinois/Dissent Goldberg

by Arthur Goldberg

United States Supreme Court

373 U.S. 420

Norvell  v.  Illinois

 Argued: April 24, 1963. --- Decided: May 27, 1963

Mr. Justice GOLDBERG, with whom Mr. Justice STEWART joins, dissenting.

I must respectfully dissent because the majority ignores what to me is the key to disposition of this matter. The Illinois Supreme Court decided this case under a misapprehension as to a crucial point of federal constitutional law, but for which it might have resolved the ultimate question in favor of, rather than against, the petitioner.

The Illinois court concluded that the decision of this Court in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, operated prospectively, and not retroactively, in the sense that it invalidated only 'existing financial barriers' to appeal. Given its view of Griffin, it was unnecessary for the state court to consider whether the petitioner, who concededly could not obtain a transcript at the time of his original conviction in 1941 because of his indigency, was at that time deprived of his constitutional rights. Enabled by this erroneous interpretation of Griffin to put aside this basic constitutional issue, the Illinois Supreme Court held only that its present rule, as applied to deny the petitioner a transcript now on his delayed appeal, was not unconstitutional because that denial was based solely upon the present unavailability of the transcript, and not upon anything related to the petitioner's indigency. The majority of this Court seems today to approve at least that holding of the state court, though on grounds different from those relied upon below.

The State Supreme Court was in error in its belief that the principles of Griffin have no application to denials of transcripts which occurred before Griffin was decided. Griffin was a constitutional decision vindicating basic Fourteenth Amendment rights and is no more to be restricted in scope or application in time than other constitutional judgments. This, it seems to me, is the clear import of this Court's decision in Eskridge v. Washington, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269.

Of course, we do not know how the Illinois court would have resolved the petitioner's claim that he is entitled either to a transcript or a new trial if it had viewed Griffin as having retroactive effect and as controlling with respect to the constitutional deprivation which may have occurred in 1941. Illinois has shown a broad and commendable latitude in implementing the principles enunciated in Griffin, and I would not presume to predict what its courts might do under a proper reading of that case. Because Illinois has not passed upon what is perhaps the controlling issue in the case, and because we ought not to anticipate and resolve difficult constitutional questions unless necessary, I would vacate and remand the case to the Supreme Court of Illinois to permit it to decide the question which it treated as foreclosed only because it believed Griffin's application not to be fully retroactive.

Notes