Burns v. Ohio

360 U.S. 252, 79 S. Ct. 1164, 3 L. Ed. 2d 1209, 1959 U.S. LEXIS 810, 84 Ohio Law. Abs. 570, 10 Ohio Op. 2d 404

Opinions

Mr. Chief Justice Warren

delivered the opinion of the Court.

The question presented in this case is whether a State may constitutionally require that an indigent defendant in a criminal case pay a filing fee before permitting him to file a motion for leave to appeal in one of its courts.

After a trial in Ohio in 1953, the petitioner was convicted of burglary and sentenced to life imprisonment.¹ That same year his conviction was affirmed without opinion by the Ohio Court of Appeals. Petitioner immediately filed a notice of appeal in the Court of Appeals but did nothing further until 1957, when he sought to file a copy of the earlier notice of appeal and a motion for leave to appeal in the Supreme Court of Ohio.² To these papers .petitioner attached an affidavit of poverty which declared that he was “without sufficient funds with which to pay the costs for Docket and Filing Fees in this. cause of action.” He.also attached a motion for leave to proceed in forma pauperis.

The Clerk of the Supreme Court, of Ohio refused to file the papers. He returned them with' the following letter ':

“This will serve to acknowledge receipt of your motion for leave to proceed in forma pauperis, motion for leave to appeal and notice of appeal.

“We must advise that the Supreme Court has determined on numerous occasions that the docket fee, required by Section 1512 of the General Code of Ohio, and the Rules of Practice of the Supreme Court, takes precedence over any other statute which may allow a pauper’s affidavit to be filed in lieu of a docket fee. For that reason we cannot honor your request.

“We are returning the above mentioned papers to you herewith.” ³

Under- Art. IV, § 2, of the State Constitution, the Supreme Cburt of Ohio has appellate jurisdiction in many types of cases, including those “involving questions arising under the constitution of the United States or of this-state” and “cases of felony on leave first obtained.”⁴ Since burglary is a felony in Ohio,⁵ the Supreme Court had jurisdiction to review petitioner’s conviction and petitioner sought to file his motion asking leiave to appeal.⁶ The filing fee required by the Supreme Court on a'motion for leave to appeal is $20⁷ and if that fee is paid, and the papers are otherwise proper, the motion will be considered with the possibility that .leave-to appeal will be granted.'

We granted certiorari and leave to proceed in forma pauperis. 358 U. S. 919. Subsequently, an order was entered, 358 U. S. 943, expressly limiting the grant of certiorari to the question posed by petitioner in his pro se petition which is restated at the outset of this opinion.⁸

The State’s commendable frankness in this case has simplified the issues. It has acknowledged that the clerk’s letter to petitioner is “in reality and in effect” the judgment of the Supreme Court. Only recently, that court had occasion to comment on the function of its clerk in' these words.:

“It is the duty of the clerk of this court, in the absence of instructions from the court to the contrary,. to accept for filing any paper presented to him, provided such paper is not scurrilous or obscene, is propérly prepared and is accompanied by the requisite filing fee.”⁹

In a companion case, the court observed that its clerk “acts as the court in carrying out its instructions.” ¹⁰ The State represented that the clerk had been instructed not to docket any papers without fees and also that the Supreme Court had not deviated from its practice in this respect. Moreover, the State asserted that it was impossible for petitioner to file any action at all in the Supreme Court without paying the fee in advance. There is no showing that these instructions have been modified or rescinded in any way and the Supreme Court has sanctioned the clerk’s well-publicized procedure of returning pauper’s applications, without exception, with the' above-quoted form letter. This delegation to the clerk of a matter involving no discretion clearly suffices to make the clerk’s letter a final judgment of Ohio’s highest court, as required by 28 U. S. C. § 1257.

Although the State admits that petitioner “in truth and in fact” is a pauper, it presses several arguments which it claims distinguish Griffin v. Illinois, 351 U. S. 12, and justify the Ohio practice. First, the State argues that petitioner received one appellate review of his conviction in Ohio, while in Griffin, Illinois had left the defendant without any judicial review of his conviction. This is a distinction without a difference for, as Griffin holds, once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty. 351 U. S., at 18, 22. This principle is no less applicable where the State has afforded an indigent defendant access to the first phase of its appellate procedure but has effectively foreclosed access to the second phase of that procedure solely because of his indigency.

Since Griffin proceeded upon the assumption that review in the Illinois Supreme Court was a matter of right, 351 U. S., at 13, Ohio seeks to distinguish Griffin' on the further ground that leave to appeal to the Supreme Court of Ohio is a matter of discretion. But this argument misses the crucial significance of Griffin. In Ohio, a defendant who is not indigent may have the Supreme Court consider on the merits his application for leave to appeal from a felony conviction. But as that court has interpreted §1512 and its rules of practice, an indigent defendant is denied that opportunity. There is no rational basis for assuming that indigents’ motions for leave to appeal will be less meritorious than those of other defendants. Indigents must, therefore, have the same opportunities to invoke the discretion of the Supreme Court of Ohio.

The State’s action in this case in some ways is more final and disastrous from the defendant’s point of view than was the Griffin situation. At least in Griffin, the. defendant might have raised in the Supreme Court any claims that he had that were apparent on the bare record, though trial errors could not be raised. Here, the action of the State has completely barred the petitioner from obtaining any review at all in the Supreme Court of Ohio. The imposition by the State of financial barriers restricting the availability of appellate review for indigent criminal defendants has no place, in .our heritage of Equal Justice Under Law. .

What was said in Griffin, might well be said here: “We are confident that the State will provide corrective rules to meet the problem which this case lays bare.” 351 U. S., at 20.¹¹

The judgment below is vacated and the cause is remanded to the Supreme Court of Ohio for further action not inconsistent with this opinion;

It is so ordered.

Mr. Justice Stewart took no part in the consideration or decision of this case.

1 Petitioner was also convicted of larceny and sentenced to a term of seven years to be served concurrently with the burglary sentence.

2 Despite the passage of years the appeal was timely. State v. Grisafulli, 135 Ohio St. 87, 19 N. E. 2d 645.

3 The Rules of Practice of the Supreme Court of Ohio obviously-referred to in the clerk’s letter are Rules VII and XVII.

§ 1512 (Rev. Code § 2503.17):

“The clerk of the supreme court shall charge and collect the following fees:

“(A) For each case entered upon the minute book, including original actions in said court, appeal proceedings filed as of right, . . . for each motion ... for leave to'file a notice of appeal in criminal cases . . . twenty dollars ....

“(B) For filing assignments of error . . . upon allowance of a motion for leave to appeal . . . five dollars

■“Such fees must be paid to the clerk by the party invoking the action of the court, before the case or motion is docketed and shall be taxed as costs and recovered from the other party, if the party invoking the action succeéds,' unless the court otherwise directs.”

Rule VII:

“Section 1. Felony Cases. In felony cases, where leave to appeal is sought, a motion for leave to appeal shall be filed with the Clerk of this-Court along with a copy of the notice of appeal which was filed in .the Court of Appeals, upon payment of the docket fee required by Section 2503.17, Revised Code.

“Section 4. Appeal as of Right. In any criminal case, whether felony or misdemeanor, if the notice of appeal shows that the appeal involves a debatable question arising under the Constitution of the United States or of this state, the appeal may be docketed upon filing the transcript of the record and any original papers in the case, upon payment of the fee required by Section 2503.17, Revised Code.”

Rule XVII:

“The Docket Fees fixed by Section 2503.17, Revised Code, must be paid in advance. ...”

4 See also Ohio Rev. Code §§ 2953.02, 2953.08, which implement this constitutional provision.

5 See Ohio Rev. Code §§ 2907.09, 1.06,1.05.

6 In his notice of appeal filed in the Court of Appeals, petitioner stated “This appeal is on questions of law and is taken on condition that a motion for leave to appeal be allowed.” But in the motion for leave to appeal to the Supreme Court, petitioner stated, among other contentions, that his conviction conflicted with his “Constitutional Guarantees of the Fourteenth Amendment (14) to the Constitution of the United States; and, Article I, Section 10. of the Constitution of the State of Ohio.” This might indicate that petitioner was claiming an appeal as of right to the Supreme Court.' However, since petitioner has consistently characterized his appeal as one which requires leave, we so consider it here.

7 See n. 3, supra.

8 As posed’ by petitioner, the question was

“Whether in a prosecution for Burglary, the Due Prdcess Clause, And The Equal Protection Clause, of the Fourteenth (14) Amendment to the United States Constitution .are violated by the refusal of the Supreme Court of Ohio, to file the aforementioned legal proceedings, because Petitioner was unable to secure the costs.”

9 State ex rel. Wanamaker v. Miller, 164 Ohio St. 176, 177, 128 N. E. 2d 110.

10 State ex rel. Wanamaker v. Miller, 164 Ohio St. 174, 175, 128 N. E. 2d 108, 109.

11 Shortly after this Court’s decision in Griffin v. Illinois, supra, the Illinois Supreme Court promulgated Rule 65-1, which provides impart that any person sentenced to imprisonment who is “without financial means with which to obtain the transcript of the proceed-' ings at his trial” will receive a transcript if it is “necessary to present fully the errors recited in the petition.....”