WARREN, C. J., dissenting. 362 U.S. indicate whether Parker has been relieved of the civil consequences of any of these convictions under statutes designed to mitigate the effect of civil disability laws.26 Moreover, Harwell v. Morris, 143 S. W. 2d 809 (Tex. Civ. App.), the decision which the concurring opinion cites as establishing that Parker's convictions outside of Texasif still effective-would deprive him of his voting rights in Texas, is not persuasive authority. Not only was the decision not reviewed by the Texas Supreme Court, but it was rendered in the context of an election dispute, where the real issue was not the impact upon the voter but the impact upon the candidates. Cf. Logan v. United States, 144 U. S. 263, 303. In any event, even conceding the accuracy of the assumption with respect to Parker's prior convictions and the Harwell issue, it is entirely possible that the conviction in this case would operate to augment the punishment should Parker ever again be adjudged guilty of a crime in Texas or in any other State. Aside from these considerations, however, there is something fundamentally wrong with the theory that mootness should turn upon whether or not a convicted person can run for office or cast a ballot. The principal policy basis for the doctrine of mootness, when that term is employed in the "case or controversy" context, is to insure that the judiciary will have the benefit of deciding legal questions in a truly adversary proceeding in which there is the "impact of actuality," " and in which the contentiousness of the parties may be relied upon to bring to light all relevant considerations.28 Here the 26 See 19 St. John's L. Rev. 185; 59 Yale L. J. 786, 787, n. 3. 27 Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 1006. 28 See United States v. Johnson, 319 U. S. 302, 304-305; Bischoff, Status to Challenge Constitutionality, in Supreme Court and Supreme Law (Cahn ed.), 26 et seq.; Freund, On Understanding the Supreme Court, 84-86; Note, 103 U. of Pa. L. Rev. 772–773. 574 WARREN, C. J., dissenting. issue is surely not abstract. The case comes to us after the actions complained of have occurred, and we have the entire trial record before us. Moreover, George Parker's interest in this litigation is quite substantial enough to insure that his case has been fully presented. Conviction of a felony imposes a status upon a person which not only makes him vulnerable to future sanctions through new civil disability statutes, but which also seriously 20 20 Of opinions expressing a view consistent with the concurring opinion, the Supreme Court of Washington has said, "Those decisions, it seems to us, lose sight of... that damaging effect of such a judgment which everybody knows reaches far beyond its satisfaction by payment of a fine or serving a term of imprisonment." State v. Winthrop, 148 Wash. 526, 534, 269 P. 793, 797. See also In re Byrnes, 26 Cal. 2d 824, 161 P. 2d 376; People v. Marks, 64 Misc. 679, 120 N. Y. Supp. 1106; Village of Avon v. Popa, 96 Ohio App. 147, 121 N. E. 2d 254; Roby v. State, 96 Wis. 667, 71 N. W. 1046; Note, 103 U. of Pa. L. Rev. 772, 779-782, 795. But cf. St. Pierre v. United States, 319 U. S. 41, where the Court held moot on direct appeal the case of a person who had served his sentence for contempt before certiorari was granted. That case is readily distinguishable in view of the factors the Court stressed as relevant. For example, the Court stated that it did not appear "that petitioner could not have brought his case to this Court for review before the expiration of his sentence." Moreover, the Government admitted that petitioner would again be required to testify before a grand jury and that his commitment would again be sought if he refused, so that, as the Court noted, there might very well be "ample opportunity to review such a judgment. . . ." Id., at 43. It seems reasonably clear also that the "collateral consequences" cases have considerably undermined the philosophy of St. Pierre. See Pollard v. United States, supra, at 358; United States v. Morgan, 346 U. S. 502, 512-513; Fiswick v. United States, 329 U. S. 211, 220-223. See also Lafferty v. District of Columbia, 107 U. S. App. D. C. 318, 277 F. 2d 348, where the Court of Appeals for the District of Columbia Circuit set aside a decree of unsoundness of mind after the individual-concerned was no longer in a mental institution and was not mentally ill. Possibly it should be noted, for the sake of completeness, that no one has suggested that the State's interest in upholding the validity of this conviction is insubstantial. WARREN, C. J., dissenting. 362 U.S. 30 affects his reputation and economic opportunities." And the fact that a man has been convicted before does not make the new conviction inconsequential. There is, after all, such a thing as rehabilitation and reintegration into the life of a community. In this case, for example, none of Parker's previous convictions were in Texas, and he had been out of jail for over five years at the time of the 1954 forgery trial. Five years of law-abiding life in a new community give Parker a significant enough stake in the outcome of this adjudication to preclude a finding of mootness. Furthermore, there is an important public interest involved in declaring the invalidity of a conviction obtained in violation of the Constitution, and, under the Court's decisions, this is a consideration relevant to the mootness question. 31 In sum, I cannot agree with the Court that George Parker's case comes to us too late. It is too late, much too late, to undo entirely the wrong that has been inflicted upon him; but it is not too late to keep the constitutional balance true. I dissent from the notion that, because we cannot do more, we should do nothing at all. 30 For example, under § 504 of the Labor-Management Reporting and Disclosure Act of 1959, persons who have been convicted of specified crimes are ineligible to serve for a five-year period in various positions for labor unions or employer associations. 73 Stat. 536537. For a discussion of the "status degradation ceremony" represented by criminal conviction, see Goldstein, Police Discretion Not to Invoke The Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L. J. 543, 590-592. See also Waite, The Prevention of Repeated Crime, 30-31; Frym, The Treatment of Recidivists, 47 J. Crim. L., Criminology & Police Science 1; United States v. Hines, 256 F. 2d 561, 563. 31 See Walling v. Reuter Co., 321 U. S. 671, 674–675; Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U. S. 498, 516; United States v. Trans-Missouri Freight Assn., 166 U. S. 290, 574 DOUGLAS, J., dissenting. MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICL 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 fictitious 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 pesti 19 Holdsworth, A History of English Law (3d ed. 1944), 254 et seq. As to corporations, churches, and boroughs see 1 Pollock and Maitlana, History of English Law (2d ed. 1899), 486, 669-670. DOUGLAS, J., dissenting. 362 U.S. lential 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 21 Bentham's Works (Bowring ed. 1843), 235. 39 Holdsworth, op. cit., supra, note 1, at 250-251: "Of all these methods of beginning an action the most common was a capias ad respondendum, i. e. a writ directing the sheriff to arrest the defendant. This process was possible in all the most usual personal actions; and, where it was possible, it became the practice, in the course of the eighteenth century, to 'resort to it in the first instance, and to suspend the issuing of the original writ, or even to neglect it altogether, unless its omission should afterwards be objected by the defendant. Thus the usual practical mode of commencing a personal action by original writ is to begin by issuing, not an original, but a capias.' As the author of the Pleader's Guide said: 'Still lest the Suit should be delayed, A Victory full oft is won Ere Battle fairly is begun; 'Tis true, the wisdom of our Laws Has made Effect precede the Cause, In fictione aequitas.' "But the original was always supposed; and the defendant could always object to its absence, and compel the plaintiff to procure it from the office of the cursitor. It should be noted also that in the procedure by bill against persons actually privileged, or supposed to be privileged, there was necessarily no original. The bill took the place of the original, and also operated as the plaintiff's declaration." And see 2 Bouvier's Law Dictionary (8th ed. 1914), 1213–1214. |