In a prosecution charging petitioners with disseminating
obscenity in violation of Ohio law, the trial court granted their
motions to dismiss the complaints on the ground that they had been
subjected to selective and discriminatory prosecution in violation
of the Equal Protection Clause of the Fourteenth Amendment. The
Ohio Court of Appeals reversed and remanded the case for trial,
finding the evidence insufficient to support the allegations of
discriminatory prosecution. The Ohio Supreme Court affirmed.
Held: Because the Ohio Supreme Court's decision was not
a final judgment within the meaning of 28 U.S.C. § 1257, the writ
of certiorari previously granted by this Court is dismissed for
want of jurisdiction. In the context of a criminal prosecution,
finality of judgment is normally defined by the imposition of a
sentence. Here there has been no finding of guilt and no sentence
imposed. Nor is the Ohio Supreme Court's decision a final judgment
within any of the four exceptions to the general rule identified in
Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469. Resolution of the question whether the obscenity
prosecution of petitioners was selective or discriminatory in
violation of the Equal Protection Clause can await final judgment
in the state criminal proceeding without any adverse effect upon
important federal interests.
Certiorari dismissed. Reported below: 63 Ohio St.2d 132, 407
N.E.2d 15.
Page 451 U. S. 620
PER CURIAM.
On July 14, 1976, criminal complaints were issued against
petitioners charging them with disseminating obscenity in violation
of Ohio Rev.Code Ann. § 2907.32 (1975). The Municipal Court granted
petitioners' motions to dismiss the complaints on the ground that
petitioners had been subjected to selective and discriminatory
prosecution in violation of the Equal Protection Clause of the
Fourteenth Amendment. The Court of Appeals of Ohio reversed,
finding the evidence insufficient to support petitioners'
allegations of selective and discriminatory prosecution. The case
was remanded for trial. The Ohio Supreme Court affirmed. 63 Ohio
St.2d 132, 407 N.E.2d 15 (1980). We granted certiorari. 449 U.S.
1033 (1980). Because the decision of the Ohio Supreme Court was not
a final judgment within the meaning of 28 U.S.C. § 1257, we dismiss
the writ for want of jurisdiction.
Consistent with the relevant jurisdictional statute, 28 U.S.C. §
1257, the Court's jurisdiction to review a state court decision is
generally limited to a final judgment rendered by the highest court
of the State in which decision may be had.
Cox Broadcasting
Corp. v. Cohn, 420 U. S. 469,
420 U. S.
476-477 (1975). In general, the final judgment rule has
been interpreted
"to preclude reviewability . . . where anything further remains
to be determined by a State court, no matter how dissociated from
the only federal issue that has finally been adjudicated by the
highest court of the State."
Radio Station WOW, Inc. v. Johnson, 326 U.
S. 120,
326 U. S. 124
(1945). Applied in the context of a criminal prosecution, finality
is normally defined by the imposition of the sentence.
Parr v.
United States, 351 U. S. 513,
351 U. S. 518
(1956);
Berman v. United States, 302 U.
S. 211,
302 U. S. 212
(1937);
see also Whitus v. Georgia, 385 U.
S. 545,
385 U. S. 547
(1967). Here there has been no finding of guilt, and no sentence
imposed.
The Court has, however, in certain circumstances, treated state
court judgments as final for jurisdictional purposes, although
Page 451 U. S. 621
there were further proceedings to take place in the state court.
Cases of this kind were divided into four categories in
Cox
Broadcasting Corp. v. Cohn, supra, and each category was
described. We do not think that the decision of the Ohio Supreme
Court is a final judgment within any of the four exceptions
identified in
Cox.
In the first place, we observed in
Cox that in most, if
not all, of the cases falling within the four exceptions, not only
was there a final judgment on the federal issue for purposes of
state court proceedings, but also there were no other federal
issues to be resolved. There was thus no probability of piecemeal
review with respect to federal issues. Here, it appears that other
federal issues will be involved in the trial court, such as whether
or not the publication at issue is obscene.
Second, it is not even arguable that the judgment involved here
falls within any of the first three categories identified in the
Cox opinion, and the argument that it is within the fourth
category, although not frivolous, is unsound. The cases falling
within the fourth exception were described as those situations:
"[w]here the federal issue has been finally decided in the state
courts with further proceedings pending in which the party seeking
review here might prevail on the merits on nonfederal grounds, thus
rendering unnecessary review of the federal issue by this Court,
and where reversal of the state court on the federal issue would be
preclusive of any further litigation on the relevant cause of
action, rather than merely controlling the nature and character of,
or determining the admissibility of evidence in, the state
proceedings still to come. In these circumstances, if a refusal
immediately to review the state court decision might seriously
erode federal policy, the Court has entertained and decided the
federal issue, which itself has been finally determined by the
state
Page 451 U. S. 622
courts for purposes of the state litigation."
420 U.S. at
420 U. S.
482-483. Here, it is apparent that, if we reversed the
judgment of the Ohio Supreme Court on the federal defense of
selective enforcement, there would be no further proceedings in the
state courts in this case. But the question remains whether
delaying review until petitioners are convicted, if they are, would
seriously erode federal policy within the meaning of our prior
cases. We are quite sure that this would not be the case, and that
we do not have a final judgment before us.
The cases which the
Cox opinion listed as falling in
the fourth category involved identifiable federal statutory or
constitutional policies which would have been undermined by the
continuation of the litigation in the state courts.
Miami
Herald Publishing Co. v. Tornillo, 418 U.
S. 241 (1974);
Mercantile National Bank v.
Langdeu, 371 U. S. 555
(1963);
Construction Laborers v. Curry, 371 U.
S. 542 (1963). Here there is no identifiable federal
policy that will suffer if the state criminal proceeding goes
forward. The question presented for review is whether on this
record the decision to prosecute petitioners was selective or
discriminatory in violation of the Equal Protection Clause. The
resolution of this question can await final judgment without any
adverse effect upon important federal interests. A contrary
conclusion would permit the fourth exception to swallow the rule.
Any federal issue finally decided on an interlocutory appeal in the
state courts would qualify for immediate review. That this case
involves an obscenity prosecution does not alter the conclusion.
Obscene material, properly defined, is beyond the protection of the
First Amendment.
Miller v. California, 413 U. S.
15,
413 U. S. 23-24
(1973). As this case comes to us, we are confronted only with a
state effort to prosecute an unprotected activity, the
dissemination of obscenity. The obscenity issue has not yet been
decided in the state courts, and no federal policy bars a trial on
that question. There is no
Page 451 U. S. 623
reason to treat this selective prosecution claim differently
than we would treat any other claim of selective prosecution.
Accordingly, the writ is dismissed for want of Jurisdiction.
So ordered.
JUSTICE STEWART, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.
I believe that a criminal trial of the petitioners under this
Ohio obscenity law will violate the Constitution of the United
States.
See, e.g., Wood v. Georgia, 450 U.
S. 261,
450 U. S. 275
(opinion of BRENNAN, J.);
ibid. (opinion of STEWART, J.);
Sewell v. Georgia, 435 U. S. 982, 988
(dissenting opinion);
Splawn v. California, 431 U.
S. 595,
431 U. S. 602
(STEWART, J., dissenting). It is clear to me, therefore, that
"identifiable . . . constitutional polic[y]" will be "undermined by
the continuation of the litigation in the state courts."
Ante at
451 U. S.
622.
Accordingly, I think that, under the very criteria discussed in
the opinion of the Court, the judgment before us is "final for
jurisdictional purposes."
Ante at
451 U. S. 620.
Believing that the Ohio trial court acted correctly in dismissing
the complaints, and that the state appellate courts were in error
in overturning that dismissal, I would reverse the judgment.
JUSTICE STEVENS, dissenting.
The decision of a federal question by the highest court of the
State is final within the meaning of 28 U.S.C. § 1257 "if a refusal
immediately to review the state court decision might seriously
erode federal policy."
Cox Broadcasting Corp. v. Cohn,
420 U. S. 469,
420 U. S. 483.
In the Court's view, this ground does not support reviewability in
this case, because the Court can discern "no identifiable federal
policy that will suffer if the state criminal proceeding goes
forward."
Ante at
451 U. S. 622. In my opinion, the interest in protecting
magazine publishers from being prosecuted criminally because state
officials or their constituents are offended by the content of an
admittedly
Page 451 U. S. 624
nonobscene political cartoon is not merely "an identifiable
federal policy"; it is the kind of interest that motivated the
adoption of the First Amendment to the United States
Constitution.
Petitioners publish Hustler, a national magazine. The trial
court dismissed the criminal complaint against them after hearing
evidence tending to establish that Ohio's decision to bring this
prosecution was motivated by hostility to a political cartoon that
is constitutionally indistinguishable from the rather trite
depiction held to be protected by the First Amendment in
Papish
v. University of Missouri Curators, 410 U.
S. 667. The Ohio Court of Appeals reversed, and that
court's decision was affirmed by the Supreme Court of Ohio over the
dissent of Justice Brown.
Because the Court has decided today to dismiss the writ of
certiorari for want of jurisdiction, I will not comment on the
merits beyond indicating that they concern the standards that a
court must apply in determining whether an exercise of
prosecutorial discretion has been based on an impermissible
criterion such as race, religion, or the exercise of First
Amendment rights. Because I place a high value on the federal
interest in preventing such prosecutions, and because the
reinstatement of this criminal complaint may seriously erode that
federal interest, I respectfully dissent.