Petitioner was sentenced by an Illinois court to 90 days in jail
for contempt. The State Supreme Court denied a direct review. The
trial court then issued an amended order adjudging petitioner
guilty of contempt and sentencing him to jail for 90 days.
Petitioner appealed from this order to an intermediate state court,
which sustained it on state grounds. The State Supreme Court
affirmed. Neither the intermediate court nor the State Supreme
Court considered petitioner's claimed denial of rights under the
Federal Constitution. Under Illinois practice, a case involving a
claim of federal right must be taken directly from the trial court
to the State Supreme Court, else the federal question is deemed
1. In appealing the amended order to the intermediate state
court, rather than directly to the State Supreme Court, petitioner
waived his claim of rights under the Federal Constitution.
Central Union Co. v. Edwardsville, 269 U.
. Pp. 333 U. S.
2. When federal rights are involved, it is for this Court to
determine whether a claimant's failure to follow the procedure
designed by a State for their protection constitutes a waiver of
them. P. 333 U. S.
3. The Illinois practice of requiring constitutional questions
to be taken directly to the State Supreme Court, and refusing to
review them if review is first sought in an intermediate state
court, affords litigants a reasonable opportunity to have
constitutional questions heard and determined by the state court,
and is valid. Pp. 333 U. S.
4. The fact that a petition to the State Supreme Court for
review of the amended order may have seemed futile, in view of that
court's denial of direct review of the original order, does not
excuse petitioner's failure to proceed in the prescribed manner.
Pp. 333 U. S.
5. If the petition to this Court for certiorari be considered as
involving only the original order, it is out of time; if it
involves the amended order, it presents federal questions which
have been waived. Pp. 333 U. S.
Page 333 U. S. 572
6. The result in this case is no different if the original and
amended orders are regarded as the same in substance, though
separate in point of time and form, since it is not unreasonable
for Illinois to refuse a second appeal. P. 333 U. S.
396 Ill. 583, 72 N.E.2d 848, affirmed.
The State Supreme Court denied direct review of an order of a
trial court sentencing petitioner to imprisonment for contempt. An
amended order of the trial court was affirmed by an appellate
court, 328 Ill.App. 46, and by the State Supreme Court, 396 Ill.
583, 72 N.E.2d 848. This Court granted certiorari. 332 U.S. 846.
p. 333 U. S.
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
Page 333 U. S. 573
authority. [Footnote 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,
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; People v. McDonnell,
Ill. 568, 569, 37 N.E.2d 159. That was the reason neither of the
courts below passed on the
Page 333 U. S. 574
federal constitutional questions tendered by petitioner.
Ill.App. 46, 55, 65 N.E.2d 457; 396 Ill. 583, 587, 72 N.E.2d 848.
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
This Court held in Central Union Telephone Co. v. City of
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
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.
; Central Union Telephone Co. v. City of
The Court said in the
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.
269 U. S.
-195. It was there held that the Illinois practice of
requiring constitutional questions to be taken directly to the
Page 333 U. S. 575
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, [Footnote 3
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. [Footnote 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
Page 333 U. S. 576
order have been the foundation for this petition for certiorari.
Review of that order was denied by the Illinois Supreme Court on
January 23, 1945. Petition for certiorari was filed here August 15,
1947. His petition for certiorari is not timely if it challenges
the earlier order. [Footnote 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. County
Commissioners of Knox County, 91 U. S.
; 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 Corporation v.
State Board of Equalization, 329 U. S. 69
329 U. S. 72
Any further proceedings in the
Page 333 U. S. 577
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. [Footnote 6
] That consequence is inherent in the rule
formulated in Central Union Telephone Co. v. City of
The contents of the documents are reviewed in 328 Ill.App. 46,
50-54, 65 N.E.2d 457.
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 Telephone Co. v. City of
Edwardsville, 269 U. S. 190
269 U. S. 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.
Cf. Great Western Telegraph Co. v. Burnham,
162 U. S. 339
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.
Sec. 8(a) of the Judiciary Act of February 13, 1925, 43 Stat.
936, 940, 28 U.S.C. § 350.
If, on the other hand, direct review of the amended order were
obtained in the Illinois Supreme Court, that court would pass not
only upon the constitutional questions, but upon all other
questions as well. Groome v. Freyn Engineering Co.,
Ill. 113, 28 N.E.2d 274; People v. Kelly,
367 Ill. 616,
618, 12 N.E.2d 612; Geiger v. Merle,
360 Ill. 497, 505,
507, 196 N.E. 497.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE BLACK and MR.
JUSTICE MURPHY agree, dissenting.
Petitioner has been held in contempt and sentenced to
imprisonment for complying with an order of court to produce
specified documents. Technically, he was ordered to show cause why
the documents should not be produced. After his objections to that
order were overruled, he complied by bringing the documents into
court and filing them with the clerk. [Footnote 2/1
] Thereupon he was cited
Page 333 U. S. 578
for contempt because the documents reflected on the court's
integrity, and was sentenced to 90 days in jail.
Whether or not the documents would have given ground for
punishment if they had been published voluntarily by petitioner,
] the effect of the
contempt judgment, coupled with that of the order for production,
] has been first to
compel petitioner to publish the statements by filing them and then
to send him to jail for obeying the court's order. Cf. Entick
19 How.St.Tr. 1029, 1073. I know of no
constitutional power which permits a state to force a citizen into
such a dilemma, and I think the most elementary conception of due
process under the Fourteenth Amendment forbids any such action.
Yet this Court now acquiesces in this substantial and
unconstitutional deprivation of petitioner's liberty by accepting
an asserted procedural waiver of petitioner's substantive rights
which, in my opinion, no more comports with basic conceptions of
due process than does the substantive order for commitment.
Constitutional rights may be nullified quite as readily and
completely by hypertechnical procedural obstructions to their
effective assertion and maintenance as by outright substantive
denial. Marino v. Ragen, 332 U. S. 561
concurring opinion at 332 U. S.
Page 333 U. S. 579
The entire basis of the Court's action is that the original
contempt order of January 15 and the so-called amended order of
January 23 are different orders; petitioner is deemed to have
waived his constitutional rights by taking an appeal from the
latter order to the Illinois Appellate Court, rather than to the
Illinois Supreme Court. The case seems simple, because it is said
to be "well settled Illinois law" that both federal and state
constitutional rights are waived by taking this appellate route,
and because this Court has previously determined that this
appellate practice gives litigants a reasonable opportunity to be
heard. See Central Union Telephone Co. v. City of
Edwardsville, 269 U. S. 190
269 U. S.
I cannot accept this hypertechnical procedural nullification of
constitutional rights in a case involving the liberty of the
individual. The original order of January 15 and the so-called
amended order are, in reality, the same order. Moreover, prior to
this case, there was no "well settled Illinois law" to apprise
petitioner that his appeal to the intermediate court would
constitute a waiver of his rights in circumstances such as these,
where he had already sought review of his federal questions in the
state supreme court. And finally, even if the contrary had been
true, I would not consider this appellate practice reasonable
within the doctrine of the Central Union
Petitioner filed the "scurrilous affidavits" which led to the
contempt order on two different occasions. The first was on January
4, in response to the motion to produce them for inspection. The
second was on January 15, as part of his answer to Shamberg's
motion for a rule to show cause why he should not be adjudged in
contempt for filing documents which he was only required to produce
for inspection. On this second occasion, the documents were
included in the pleadings because relevant
Page 333 U. S. 580
to his defense that the statements made therein were true.
] The court adjudged
petitioner in contempt for both filings. [Footnote 2/5
In the original contempt order of January 15, the court
specifically referred to the fact that the documents had been filed
twice before, identified them carefully, and stated that they
"should be by reference incorporated in this order and made a part
Page 333 U. S. 581
greater certainty." At a later point in the order, the documents
were again listed, and adjudged to be "hereby incorporated by
reference in this order and made a part hereof with the same force
and effect as if set forth herein." Thus, the documents which gave
rise to the contempt order were twice made a matter of public
record and twice incorporated in the original contempt order.
The so-called amended order of January 23 is absolutely
identical with the original order, with the immaterial exception
that the documents, in addition to being incorporated in the order
by reference, were also "made a part hereof and marked Exhibits "A"
and "B" respectively." The reason for the change is probably
explained by Illinois cases such as People v. Hogan,
Ill. 496, 100 N.E. 177, holding that the record on review of a
contempt order is limited to the order itself. But respondent has
not called our attention to any Illinois cases holding that
incorporation of matter of public record into an order by reference
is insufficient to make that matter part of the order. Indeed, this
very proceeding indicates that this requirement is not strictly
applied. For the Illinois Appellate Court set aside one order
adjudging petitioner in contempt for the tone of his answer to a
certain pleading filed by Shamberg on the ground that the charges
in Shamberg's pleading, which was not made a part of the contempt
order, justified the tone of the answer. 328 Ill.App. 46, 60-68, 65
N.E.2d 457. But even if it is assumed that the amendment was
necessary to satisfy the requirements of Illinois law, it was of
such a trivial and ministerial nature that it obviously did not
affect the merits of petitioner's constitutional allegations.
When petitioner sought review of the original contempt order in
the Supreme Court of Illinois, he obtained the only review of those
constitutional contentions which
Page 333 U. S. 582
the state procedure offered him. That court, by denying the writ
of error, must be presumed to have passed on the merits of the
constitutional questions in the case. It is inconceivable that the
supreme court would have passed on them any differently if review
of the so-called amanded order had later been requested. For, as
far as that court is concerned, it is likely that the law of the
case as to the constitutional issues was already settled. But, even
if it were taken that the supreme court might have reversed its
decision, the fact remains that the so-called amended order was the
same order as the original January 15, order of which review had
already been denied. Petitioner is deemed to have waived his
federal constitutional rights not because he failed to seek review
in the supreme court, but because he failed to do so twice.
It is definitely not "well settled Illinois law" that a waiver
results in these circumstances. In all of the cases cited in the
opinion of the Court and in respondent's brief, the petitioner
initially sought review in the intermediate appellate court. In
none did he do so only after having the state supreme court deny as
application for review. There is no "well settled Illinois law" to
the effect that two applications to the state supreme court must be
made in order to avoid waiver of constitutional rights. And if such
a requirement did exist, it certainly would not be reasonable.
] Consequently, I am
unable to agree that the doctrine of waiver applied here to deprive
a man of his personal freedom in violation of
Page 333 U. S. 583
his constitutional rights is a reasonable state procedure within
the Central Union
case. [Footnote 2/7
By stating that the petition for certiorari is not timely if it
challenges the original order, the Court repeats its mistake of
treating the so-called amended order as something entirely separate
and distinct from the original contempt order. But, with the two
orders viewed as the same, there is clearly no question of
timeliness. For the denial of writ of error by the Illinois Supreme
Court left state issues that went to the core of the litigation for
determination by appeal through the intermediate state court. The
situation, therefore, is not the one presented in Richfield Oil
Corp. v. State Board of Equalization, 329 U. S.
, where the only things remaining to be done were
ministerial acts in the trial court. Here, even if nothing more was
left for the trial court to do, a great deal more was left to be
done by the Illinois Appellate Court -- namely, to review and
determine all questions of state law presented in the case.
decision had no relation to a split procedure
for review in the state courts such as this, sending federal
questions to one tribunal and state questions to another. Until the
final judgment was entered by the Supreme Court of Illinois on May
19, 1947, in review of the Illinois Appellate Court's judgment, the
core of the litigation had not been terminated "by fully
determining the rights of the parties." Gospel Army v. Los
Angeles, 331 U. S. 543
331 U. S. 546
For only then were the state questions finally adjudicated. Hence,
any earlier application for certiorari would have met with the
Page 333 U. S. 584
obstacle that we were without jurisdiction for want of any final
judgment. [Footnote 2/9
Petitioner was thus placed in a second dilemma, arising in the
appellate stage of the state proceedings. He first followed the
only course afforded by the state procedure for securing review of
his federal constitutional questions. When they were determined
against him, he was barred from coming here, because state
questions remained to be decided by the intermediate appellate
court, and thus, as a matter of federal law, under our decisions,
the judgment was not final. In order to surmount this
jurisdictional hurdle, petitioner then went to the only place he
could go -- the intermediate appellate court. When it decided the
state issues against him, he took the necessary further step of
going again to the state supreme court. Its adverse decision
finally closed the trap upon him. For the first time, a judgment
dispositive of the whole controversy was rendered, and thus the way
opened under federal law for review of the federal questions here.
But, at the same instant, that door was closed by application of
the Illinois rule that taking appeal to the intermediate court
"waived" petitioner's federal rights. And that ruling held on his
application for rehearing.
I can imagine no better way to annihilate constitutional rights,
both substantively and procedurally, than
Page 333 U. S. 585
thus dovetailing federal jurisdictional limitations with state
procedural ones. To secure review of federal questions here,
petitioner mus exhaust his state remedies. But, if he exhausts
those remedies, he "waives" the federal questions.
This is not waiver. It is nullification. I do not think Congress
intended to countenance such a denial by the requirement of
finality, or that its effect, in conjunction with state procedures,
should be to cut off the very rights which the jurisdictional
authorization for reviewing final judgments was enacted to
The issue of federal procedure in this case is not one of
timeliness. It is, rather, one of finality, now applied to deny,
rather than to assure, review in protection of personal liberty
from invasion by unconstitutional state action. Central Union
Telephone Co. v. City of Edwardsville, supra,
such paradox. [Footnote 2/10
Nor, to my knowledge, has any other decision of this Court. As a
matter of federal procedure, petitioner did not waive his
constitutional rights, either by failing to seek certiorari from
the Illinois Supreme Court's judgment of January 23, 1945, or by
taking the necessary steps to seek the writ when he appealed to the
state intermediate appellate court.
The judgment of the Illinois Supreme Court should be
At this time petitioner was not represented by counsel, and
there was a slight deviation from a strictly accurate compliance
with the court's directive. But even if he had had counsel, the
deviation was minuscule. It could not have furnished a sufficient
basis, without more, for sustaining an order of contempt and
commitment as for disobedience. The court's order, indeed, did not
rest on any such ground. It rested, rather, on the grounds that
"filing of said scurrilous affidavit and exhibits . . .
constitutes an obstruction of justice and an abuse of the [court's]
processes, and tended to lessen [its] dignity and authority. . .
Obviously the mere filing of documents not scurrilous could have
given no ground for entering or sustaining such an order.
Cf. Craig v. Harney, 331 U. S. 367
Pennekamp v. Florida, 328 U. S. 331
Bridges v. California, 314 U. S. 252
The state makes a weak effort to avoid the order's effect by
attempting to distinguish between an order to show cause why the
documents should not be produced and one for their production. We
have been cited to no authority holding that, in Illinois, the
order to show cause does not have the effect of an order for
production if cause is not shown, or, in that event, would not
support an order of contempt for failing to produce.
Petitioner never obtained a hearing on the truth of the
statements in the documents, even though that issue was relevant to
the merits of the slander action against Shamberg which gave rise
to the contempt proceedings. Since this slander action was
dismissed on the merits without trial, it is of interest that the
Illinois Appellate Court pointed out, in review of the contempt
order discussed in 333
fn2/5|>note 5, infra:
"When Shamberg's petition is considered in the light of the fact
that Parker had demanded a jury trial in the slander case, it seems
reasonably clear that the trial court should not have ruled Parker
to answer the petition, as the evident purpose of that pleading was
to have the trial court prejudge facts that Parker insisted should
be submitted to a jury."
328 Ill.App. 46, 63, 65 N.E.2d 457, 464.
On January 23, the court also issued an additional contempt
order based on the tone of petitioner's answer to still another
motion filed by Shamberg asking that petitioner be placed in
contempt for not producing all of the documents listed in the
motion to produce. This contempt order was set aside by the
Illinois Appellate Court. See 333
fn2/4|>note 4, supra.
Among other things,
that court stated:
"[Shamberg's] petition is a highly provocative pleading, and
Shamberg probably intended that it should have that effect. There
is some force in the contention of Parker that the petition was
designed to provoke him into making some answer or statement that
would subject him to criminal prosecution or contempt proceedings.
There is also force in Parker's argument that, if the statements he
made in his answer, upon which Shamberg now relies, constitute
contempt of court, why did not the many charges made against Parker
in the petition also constitute contempt of court? . . . We think
that, when the statements made by Parker in his answer are
considered in the light of the serious charges that were made
against Parker and the Puritan Church in the petition, the answer
seems to be a fairly temperate pleading."
328 Ill.App. 46, 67, 68, 65 N.E.2d 457, 466.
Even the opinions of the Illinois appellate courts in this
proceeding would not enlighten future litigants, because they do
not mention the fact that writ of error was denied by the supreme
court before review in the appellate court was sought. See
328 Ill.App. 46 and 396 Ill. 583.
That case declared that the state procedure "should bind us
unless so unfair or unreasonable in its application to those
asserting a federal right as to obstruct it." 269 U.
, 269 U. S.
These questions are discussed in 328 Ill.App. 46 and 396 Ill.
Cf. Prudential Ins. Co. of America v. Cheek,
567, 259 U. S. 259
530. It has been suggested that, on the record, we cannot ascertain
whether the Illinois Supreme Court's denial of review of the order
of January 15th was on federal or state grounds. But, when the only
purpose of review under state law can be to secure decision of
federal questions, and no more appears from the state court's order
than that the application for review was denied, this Court has
refused to allow a presumption that the denial was on state grounds
only to cut off review here of federal constitutional questions
determinative of the citizen's liberty. Williams v.
Kaiser, 323 U. S. 471
323 U. S. 478
and authorities cited.
It is suggested that the Central Union
held that a judgment of the Illinois Supreme Court adjudicating the
federal issues in a case is final even though state issues remain
unresolved. That case, however, was decided on the express
assumption that the Illinois Supreme Court would pass on the
federal question, "together with all the other questions in the
" 269 U. S. 269
190, 269 U. S. 195
(Emphasis added.) Of course, the state supreme court judgment is
final when it settles all the state issues, as well as the federal