Ohio accords to each person whose conviction of a felony has
been affirmed by its Court of Appeals the right to apply to its
Supreme Court for leave to appeal, and that Court has jurisdiction
to grant such leave and hear such appeals in its discretion. After
petitioner's conviction of a felony had been affirmed by the Ohio
Court of Appeals, he gave notice of appeal and attempted to file in
the Ohio Supreme Court motions for leave to appeal and to proceed
in forma pauperis,
supported by an affidavit of poverty.
These papers were returned to him by the Clerk of the Ohio Supreme
Court with a letter advising him, in effect, that the Court had
determined on numerous occasions that such papers could not be
filed without payment of a docket fee. In this Court, counsel for
the State conceded that the Clerk's letter is "in reality and in
effect" the judgment of the Supreme Court of Ohio.
1. Since the Ohio Supreme Court had sanctioned its Clerk's well
publicized and uniform practice of returning pauper's applications
with form letters such as that used in this case, this amounted to
a delegation to the Clerk of a matter involving no discretion, and
it sufficed to make the Clerk's letter a "final judgment" of Ohio's
highest court within the meaning of 28 U.S.C. § 1257. Pp.
360 U. S.
2. Since a person who is not indigent may have the Ohio Supreme
Court consider his application for leave to appeal from a felony
conviction, denial of the same right to this indigent petitioner
solely because he was unable to pay the filing fee violated the
Fourteenth Amendment. Griffin v. Illinois, 351 U. S.
. Pp. 360 U. S.
(a) That petitioner had already received one appellate review of
his conviction in Ohio does not require a different result, since
others similarly situated who could pay the filing fee could have
the State's Supreme Court consider their applications for leave to
appeal. P. 360 U. S.
Page 360 U. S. 253
(b) That the granting of leave to appeal is discretionary with
the Ohio Supreme Court in such a case as this does not require a
different result, since that Court did not permit petitioner to
invoke its discretion. Pp.
360 U. S. 257
Judgment vacated and cause remanded.
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
care 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. [Footnote 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. [Footnote 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
Page 360 U. S. 254
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.
Page 360 U. S. 255
Under Art. IV, § 2, of the State Constitution, the Supreme Court
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." [Footnote
] Since burglary is a felony in Ohio, [Footnote 5
] the Supreme Court had jurisdiction to
review petitioner's conviction, and petitioner sought to file his
motion asking leave to appeal. [Footnote 6
] The filing fee required by the Supreme Court
on a motion for leave to appeal is $20, [Footnote 7
] and, if that fee is paid, and the
Page 360 U. S. 256
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
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
is restated at the outset of this opinion. [Footnote 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 properly prepared, and is accompanied by the
requisite filing fee. [Footnote
In a companion case, the court observed that its clerk "acts as
the court in carrying out its instructions." [Footnote 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
Page 360 U. S. 257
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.
, 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
351 U. S. 18
351 U. S. 22
This principle is no less applicable where the State has afforded
an indigent defendant access to the first phase of its appellant
procedure but has effectively foreclosed access to the second phase
of that procedure solely because of his indigency.
proceeded upon the assumption that review
in the Illinois Supreme Court was a matter of right, 351 U.S. at
351 U. S. 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
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
Page 360 U. S. 258
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
situation. At least, in Griffin,
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
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 351 U. S. 20
The judgment below is vacated, and the cause is remanded to the
Supreme Court of Ohio for further action not inconsistent with this
It is so ordered.
MR. JUSTICE STEWART took no part in the consideration or
decision of this case.
Page 360 U. S. 259
Petitioner was also convicted of larceny and sentenced to a term
of seven years to be served concurrently with the burglary
Despite the passage of years, the appeal was timely. State
135 Ohio St. 87, 19 N.E.2d 645.
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
"(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 filling 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 succeeds, unless the court otherwise
"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."
"The Docket Fees fixed by Section 2503.17, Revised Code, must be
paid in advance. . . ."
Ohio Rev.Code §§ 2953-02, 2953.08, which
implement this constitutional provision.
Ohio Rev.Code §§ 2907.09, 1.06, 1.05.
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
"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.
As posed by petitioner, the question was
"Whether in a prosecution for Burglary, the Due Process 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
State ex rel. Wanamaker v. Miller,
164 Ohio St. 176,
177, 128 N.E.2d 110.
State ex rel. Wanamaker v. Miller,
164 Ohio St. 174,
175, 128 N.E.2d 108, 109.
Shortly after this Court's decision in Griffin v. Illinois,
the Illinois Supreme Court promulgated Rule 65-1, which
provides in part that any person sentenced to imprisonment who is
"without financial means with which to obtain the transcript of the
proceedings at his trial" will receive a transcript if it is
"necessary to present fully the errors recited in the petition. . .
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins,
It is the special obligation of this Court strictly to observe
the limits of its jurisdiction. No matter how tempting the appeal
of a particular situation, we should not indulge in disregard of
the bounds by which Congress has defined our power of appellate
review. There will be time enough to enforce the constitutional
right, if right it be, which the Court now finds the petitioner to
possess when it is duly presented for judicial determination here,
and there are ample modes open to the petitioner for assertion of
such a claim in a way to require our adjudication.
The appellate power of this Court to review litigation
originating in a state court can come into operation only if the
judgment to be reviewed is the final judgment of the highest court
of the State. That a judgment is the prerequisite for the appellate
review of this Court is an ingredient of the constitutional
requirement of the "Cases" or "Controversies" to which alone "The
judicial Power shall extend." U.S.Const. Art. III, § 2. That it be
a "final judgment" was made a prerequisite by the very Act which
established this Court in 1789. Act of September 24, 1789, § 25, 1
Stat. 85, now 28 U.S.C. § 1257. "Close observance of this
limitation upon the Court is not regard for a strangling
technicality." Republic Natural Gas Co. v. Oklahoma,
334 U. S. 62
334 U. S. 67
Such has been the undeviating constitutional, legislative and
judicial command binding on this Court and respected by it without
exception or qualification to this very day.
The requisites of such a final judgment are not met by what a
state court may deem to be a case or judgment in the exercise of
the state court's jurisdiction. See Tyler v. Judges,
179 U. S. 405
Doremus v. Board of
Page 360 U. S. 260
342 U. S. 429
can consent of the parties to the determination of a cause by this
Court overleap the jurisdictional limitations which are part of
this Court's being. Litigants cannot give this Court power which
the Constitution and Congress have withheld. Mansfield, C.
& L.M. R. Co. v. Swan, 111 U. S. 379
111 U. S. 382
The President of the United States himself cannot secure from this
Court determination of a legal question except when such a question
duly arises in the course of adjudication of a case or controversy,
even though he asks for needed help in a great national emergency.
President Washington's questions in 33 Writings of
Washington (Fitzpatrick ed. 1940) 15-19, 28, and the correspondence
between Secretary of State Thomas Jefferson and Chief Justice Jay,
in 3 Correspondence and Public Papers of John Jay (Johnston ed.
As the importance of the interrogator and the significance of
the question confer no power upon this Court to render advisory
opinions, a compassionate appeal cannot endow it with jurisdiction
to review a judgment which is not final. One's sympathy, however
deep, with petitioner's claim cannot dispense with the precondition
of a final judgment for exercising our judicial power. If the
history of this Court teaches one lesson as important as any, it is
the regretful consequences of straying off the clear path of its
jurisdiction to reach a desired result. This Court cannot justify a
yielding to the temptation to cut corners in disregard of what the
Constitution and Congress command. Burns has other paths to this
Court to assert what, forsooth, all of us may deem a failure by
Ohio to accord him a constitutional right -- other paths besides
our indifference to the rules by which we are bound. Specifically,
he has four obvious remedies for securing an ascertainment and
enforcement of his constitutional claim by this Court without
Page 360 U. S. 261
this Court treat the letter of a clerk of a court as a court's
judgment. For, although the caption of the case would indicate that
our review was of the Supreme Court of Ohio, in fact, the review
can only be of the refusal of the clerk of that court to docket
petitioner's papers until a twenty-dollar docket fee was paid. The
Supreme Court of Ohio was not asked to consider the appeal, nor did
it itself refuse to do so. The decisions in State ex rel.
Dawson v. Roberts,
165 Ohio St. 341, 135 N.E.2d 409, and
State ex rel. Wanamaker v. Miller,
164 Ohio St. 174 and
176, 128 N.E.2d 108 and 110, mandamus denied sub nom. Wanamaker
v. Supreme Court of Ohio,
350 U.S. 881, demonstrate
conclusively that the Ohio court has retained the ultimate power to
determine what papers will be permitted to be filed. There is not
the remotest indication in the record that this petitioner's claim
to file his appeal without paying the customary filing fee, because
of indigence, was brought to the attention of the Ohio Supreme
Court, nor is there any showing in the record that in writing his
letter the clerk was acting at the specific behest of that court in
(1) Petitioner may make a direct application addressed in terms
to the judges of the Supreme Court of Ohio. Such applications
informally expressed by way of letters are frequently addressed to
this Court, and are accepted here as the basis for judgments by
this Court. We are not to assume that an application so addressed
to the judges of the Ohio Supreme Court will not be transmitted to
that court and acted upon by it. This is not merely an appropriate
assumption about the functioning of courts. It is an assumption one
can confidently make based upon the records in this Court. See
Wanamaker v. Supreme Court of Ohio, supra.
(Papers filed here
in connection with the Wanamaker
case make it clear that
the Supreme Court of Ohio does consider letters
Page 360 U. S. 262
asking that that court instruct its clerk to accept petitions
for filing.) The Supreme Court of Ohio might well yield to this
claim of Burns as other courts in like situations have yielded
since Griffin v. Illinois, 351 U. S.
. But, in any event, a denial of Burns' application or
refusal to entertain it would constitute a judgment of that court
as an appropriate prerequisite for review here.
(2) Ever since § 13 of the Act of September 24, 1789, 1 Stat.
81, as amended, 28 U.S.C. § 1651, this Court has had power to issue
mandamus in protection of its appellate jurisdiction in order to
avoid frustration of it. This is an exercise of anticipatory review
by bringing here directly a case which could be brought to this
Court in due course.
(3) Under the Civil Rights Act, R.S. § 1979, 42 U.S.C. § 1983,
Burns, like others before him who have allegedly been denied
constitutional rights under color of any statute of a State, may
have his constitutional rights determined and, incidentally, secure
heavy damages for any denial of constitutional rights. See Lane
v. Wilson, 307 U. S. 268
(4) Burns' claim, in essence, is unlawful detention because of a
denial of a constitutional right under the Fourteenth Amendment.
That lays the foundation for a habeas corpus proceeding in the
United States District Court. See Johnson v. Zerbst,
304 U. S. 458
be sure, if the right he claims be recognized in habeas corpus
proceedings, he would not be released as a matter of course, but
merely conditionally on the State Supreme Court's entertaining his
petition for review as an indigent incapable of meeting court
costs. The contingent nature of the release would not impair the
availability of habeas corpus. See Chin Yow v. United
States, 208 U. S. 8
Thus, it cannot be urged that necessity compels what the
Constitution and statutes forbid -- adjudication here of a claim
which has not been rejected in a final judgment
Page 360 U. S. 263
of a state court. Adherence to the dictates of the laws which
govern our jurisdiction, though it may result in postponement of
our determination of petitioner's rights, is the best assurance of
the vindication of justice under law through the power of the
courts. We should dismiss the writ of certiorari inasmuch as there
has been no final judgment over which we have appellate power.