Martin v. District of Columbia Court of Appeals, 506 U.S. 1 (1992)
Decided:
November 2, 1992
Syllabus
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1992
Syllabus
MARTIN v. DISTRICT OF COLUMBIA COURT OF APPEALS ET AL.
ON MOTION OF PETITIONER FOR LEAVE TO PROCEED IN FORMA PAUPERIS
No. 92-5584. Decided November 2,1992*
Since this Court's Rule 39.8 was invoked in November 1991 to first deny pro se petitioner Martin in forma pauperis status, he has filed 11 petitions for certiorari, all but one of which have been demonstrably frivolous.
Held: Martin is denied leave to proceed in forma pauperis in the instant cases, and the Clerk is directed not to accept any further petitions for certiorari from him in noncriminal matters unless he pays the required docketing fee and submits his petition in compliance with this Court's Rule 33. Martin is a notorious abuser of the Court's certiorari process, and consideration of his repetitious and frivolous petitions does not allow the Court to allocate its resources in a way that promotes the interests of justice.
Motions denied.
PER CURIAM.
Pro se petitioner James L. Martin requests leave to proceed in forma pauperis under Rule 39 of this Court. We deny this request pursuant to our Rule 39.8. Martin is al-
*Together with No. 92-5618, Martin v. McDermott et al., also on motion of petitioner for leave to proceed in forma pauperis.
2 MARTIN v. DISTRICT OF COLUMBIA COURT OF APPEALS
Per Curiam
lowed until November 23, 1992, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33. We also direct the Clerk not to accept any further petitions for certiorari from Martin in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33.
Martin is a notorious abuser of this Court's certiorari process. We first invoked Rule 39.8 to deny Martin in forma pauperis status last November. See Zatko v. California, 502 U. S. 16 (1991) (per curiam). At that time, we noted that Martin had filed 45 petitions in the past 10 years, and 15 in the preceding 2 years alone. Although Martin was granted in forma pauperis status to file these petitions, all of these petitions were denied without recorded dissent. In invoking Rule 39.8, we observed that Martin is "unique-not merely among those who seek to file in forma pauperis, but also among those who have paid the required filing feesbecause [he has] repeatedly made totally frivolous demands on the Court's limited resources." Id., at 18. Unfortunately, Martin has continued in his accustomed ways.
Since we first denied him in forma pauperis status last year, he has filed nine petitions for certiorari with this Court. We denied Martin leave to proceed in forma pauperis under Rule 39.8 of this Court with respect to four of these petitions,l and denied the remaining five petitions outright.2 Two additional petitions for certiorari are before us today, bringing the total number of petitions Martin has filed in the
1 Martin v. Smith, post, p. 810; Martin v. Delaware, post, p. 810; Martin v. Sparks, post, p. 810; Martin v. Delaware, 505 U. S. 1203 (1992).
2 Martin v. Delaware Law School of Widener Univ., Inc., post, p. 841; Martin v. Delaware, post, p. 886; Martin v. Knox, 502 U. S. 999 (1991); Martin v. Knox, 502 U. S. 1015 (1991); Martin v. Medical Center of Delaware, 502 U. S. 991 (1991).
Opinions
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1992
Syllabus
MARTIN v. DISTRICT OF COLUMBIA COURT OF APPEALS ET
AL.
ON MOTION OF PETITIONER FOR LEAVE TO PROCEED IN FORMA
PAUPERIS
No. 92-5584. Decided November 2,1992*
Since this Court's Rule 39.8 was invoked in November 1991 to
first deny pro se petitioner Martin in forma pauperis
status, he has filed 11 petitions for certiorari, all but one of
which have been demonstrably frivolous.
Held: Martin is denied leave to proceed in forma
pauperis in the instant cases, and the Clerk is directed not to
accept any further petitions for certiorari from him in noncriminal
matters unless he pays the required docketing fee and submits his
petition in compliance with this Court's Rule 33. Martin is a
notorious abuser of the Court's certiorari process, and
consideration of his repetitious and frivolous petitions does not
allow the Court to allocate its resources in a way that promotes
the interests of justice.
Motions denied.
PER CURIAM.
Pro se petitioner James L. Martin requests leave to
proceed in forma pauperis under Rule 39 of this Court. We
deny this request pursuant to our Rule 39.8. Martin is al-
*Together with No. 92-5618, Martin v. McDermott et
al., also on motion of petitioner for leave to proceed in
forma pauperis.
2 2 MARTIN v. DISTRICT OF COLUMBIA COURT OF APPEALS Per Curiam lowed until November 23, 1992, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33. We also direct the Clerk not to accept any further petitions for certiorari from Martin in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33. Martin is a notorious abuser of this Court's certiorari process. We first invoked Rule 39.8 to deny Martin in forma pauperis status last November. See Zatko v. California, 502 U. S. 16 (1991) (per curiam). At that time, we noted that Martin had filed 45 petitions in the past 10 years, and 15 in the preceding 2 years alone. Although Martin was granted in forma pauperis status to file these petitions, all of these petitions were denied without recorded dissent. In invoking Rule 39.8, we observed that Martin is "unique-not merely among those who seek to file in forma pauperis, but also among those who have paid the required filing feesbecause [he has] repeatedly made totally frivolous demands on the Court's limited resources." Id., at 18. Unfortunately, Martin has continued in his accustomed ways. Since we first denied him in forma pauperis status last year, he has filed nine petitions for certiorari with this Court. We denied Martin leave to proceed in forma pauperis under Rule 39.8 of this Court with respect to four of these petitions,l and denied the remaining five petitions outright.2 Two additional petitions for certiorari are before us today, bringing the total number of petitions Martin has filed in the 1 Martin v. Smith, post, p. 810; Martin v. Delaware, post, p. 810; Martin v. Sparks, post, p. 810; Martin v. Delaware, 505 U. S. 1203 (1992). 2 Martin v. Delaware Law School of Widener Univ., Inc., post, p. 841; Martin v. Delaware, post, p. 886; Martin v. Knox, 502 U. S. 999 (1991); Martin v. Knox, 502 U. S. 1015 (1991); Martin v. Medical Center of Delaware, 502 U. S. 991 (1991).
3 past year to 11. With the arguable exception of one of these petitions, see Martin v. Knox, 502 U. S. 999 (1991) (STEVENS, J., joined by BLACKMUN, J., respecting denial of certiorari), all of Martin's filings, including those before us today, have been demonstrably frivolous. In Zatko, we warned that "[f]uture similar filings from [Martin] will merit additional measures." 502 U. S., at 18. As we have recognized, "[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice." In re McDonald, 489 U. S. 180, 184 (1989) (per curiam). Consideration of Martin's repetitious and frivolous petitions for certiorari does not promote this end. We have entered orders similar to the present one on two previous occasions to prevent pro se petitioners from filing repetitious and frivolous requests for extraordinary relief. See In re Sindram, 498 U. S. 177 (1991) (per curiam); In re McDonald, supra. Although this case does not involve abuse of an extraordinary writ, but rather the writ of certiorari, Martin's pattern of abuse has had a similarly deleterious effect on this Court's "fair allocation of judicial resources." See In re Sindram, supra, at 180. As a result, the same concerns which led us to enter the orders barring prospective filings in Sindram and McDonald require such action here. We regret the necessity of taking this step, but Martin's refusal to heed our earlier warning leaves us no choice. His abuse of the writ of certiorari has been in noncriminal cases, and so we limit our sanction accordingly. The order will therefore not prevent Martin from petitioning to challenge criminal sanctions which might be imposed on him. But it will free this Court's limited resources to consider the claims
4 4 MARTIN v. DISTRICT OF COLUMBIA COURT OF APPEALS STEVENS, J., dissenting of those petitioners who have not abused our certiorari process. It is so ordered. JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. In my opinion the judicial resources of the Court could be used more effectively by simply denying Martin's petitions than by drafting, entering, and policing the order the Court enters today. The theoretical administrative benefit the Court may derive from an order of this kind is far outweighed by the shadow it casts on the great tradition of open access that characterized the Court's history prior to its unprecedented decisions in In re McDonald, 489 U. S. 180 (1989) (per curiam), and In re Sindram, 498 U. S. 177 (1991) (per curiam). I continue to adhere to the views expressed in the dissenting opinions filed in those cases, and in the dissenting opinion I filed in Zatko v. California, 502 U. S. 16, 18 (1991) (per curiam). See also Talamini v. Allstate Ins. Co., 470 U. S. 1067 (1985), appeal dism'd (STEVENS, J., concurring).
5 MONTANA v. IMLAY CERTIORARI TO THE SUPREME COURT OF MONTANA No. 91-687. Argued October 7, 1992-Decided November 3,1992 Certiorari dismissed. Reported below: 249 Mont. 82, 813 P. 2d 979. Marc Racicot, Attorney General of Montana, argued the cause for petitioner. With him on the briefs was Elizabeth L. Griffing, Assistant Attorney General. Billy B. Miller argued the cause and filed briefs for respondent. * PER CURIAM. The writ of certiorari is dismissed as improvidently granted. JUSTICE STEVENS, concurring. When the trial judge revoked respondent's parole, he reinstated a 5-year sentence of imprisonment. On appeal, the Montana Supreme Court, in the decision before us, vacated the revocation order and remanded the case for resentencing. 249 Mont. 82, 813 P. 2d 979 (1991). The trial court subse- *Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson; and for the State of Vermont et al. by Jeffrey L. Amestoy, Attorney General of Vermont, and Donald F. Hartman, Jr., Assistant Attorney General, and by the Attorneys General for their respective States as follows: Charles E. Cole of Alaska, Paul J. McMurdie of Arizona, Charles M. Oberly III of Delaware, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Robert J. Del Tufo of New Jersey, Lacy H. Thornburg of North Carolina, Lee Fisher of Ohio, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Paul Van Dam of Utah, and Mary Sue Terry of Virginia. John E. B. Myers filed a brief for the American Professional Society on the Abuse of Children as amicus curiae.
6 quently resentenced respondent, again to a 5-year term of imprisonment, and the Montana Supreme Court upheld that sentence in a judgment not now before us for review. Thus, no matter which party might prevail in this Court, the respondent's term of imprisonment will be the same. At oral argument, neither counsel identified any way in which the interests of his client would be advanced by a favorable decision on the merits-except, of course, for the potential benefit that might flow from an advisory opinion. * Because it is not the business of this Court to render such opinions, it wisely decides to dismiss a petition that should not have been granted in the first place. JUSTICE WHITE, dissenting. We granted certiorari to consider whether the Fifth Amendment bars a State from conditioning probation upon the probationer's successful completion of a therapy program in which he would be required to admit responsibility for his criminal acts. In the decision below, the Montana Supreme Court held that, "absent any grant of immunity" from prosecution for incriminating statements made during therapy, the Fifth Amendment "prohibit[s] augmenting a defendant's sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination." 249 Mont. 82, 91, 813 P. 2d 979, 985 (1991). The constitutional question is an important one and the decision below places the Montana Supreme Court in conflict with other courts. See State v. Gleason, 154 Vt. 205, 576 A. 2d 1246 (1990); Henderson v. *Indeed, counsel for the State went so far as to explain that a victory for Montana on the merits would actually work to the advantage of respondent, by subjecting him to treatment leading to parole eligibility: "Question: So you're really trying to advance his [respondent's] interests? "[Answer]: Yes, sir, we are. "Question: He is better off if you win than if you lose. "[Answer]: In our judgment that is certainly the case." Tr. of Oral Arg.5.
7 State, 543 So. 2d 344 (Fla. App. 1989); Russell v. Eaves, 722 F. Supp. 558 (ED Mo. 1989), appeal dism'd, 902 F.2d 1574 (CA8 1990). I believe we should decide the question and resolve the conflict. As an initial matter, there can be no doubt that the decision below is a "final judgment" for purposes of 28 U. S. C. ยง 1257. Although the Montana Supreme Court remanded the case for resentencing, this is clearly a case in which "the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings." Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975); see also Brady v. Maryland, 373 U. S. 83, 85, n. 1 (1963). At oral argument, however, two further questions were raised concerning whether any live controversy persists in this case. First, counsel for respondent stated that his client had been assured by state corrections officials that he would be paroled in the very near future. If this were true, the outcome of this case could have no practical effect upon respondent's sentence. Second, counsel for petitioner stated his belief that a probationer would enjoy immunity from prosecution for incriminating statements made during courtordered therapy. This statement calls into doubt a critical assumption underpinning the Montana Supreme Court's judgment and might suggest that there really is no disagreement about the Fifth Amendment's application to this case. In my view, however, neither party's representation is sufficient to deprive this case of its status as a case or controversy. First, as counsel for both parties readily acknowledged, there is nothing in the record to support the expectation of respondent's counsel that respondent will be paroled shortly without regard to his completion of the State's therapy program. As far as the record is concerned, a decision in this case would affect respondent's eligibility for parole and thus have real consequences for the litigants.
8 Nor does the State's "concession" that a defendant would have immunity from prosecution based upon incriminating statements made to a therapist moot this case or otherwise render it unsuitable for review. This "concession" appeared to rest solely on the State's assumption that this Court's decision in Minnesota v. Murphy, 465 U. S. 420 (1984), mandated such a result. That reading of Murphy, however, is at least debatable. Because the State's concession appears to reflect a possible misunderstanding of its obligations under the law rather than any unequivocal and unconditional declaration of its own future prosecutorial policy, this statement does not moot this case or obviate the controversy. If its reading of Murphy were shown to be erroneous, the State might well revert to the view that a defendant could be prosecuted on the basis of statements made during postconviction therapy. Such a qualified concession is too uncertain a basis to find that no live controversy is presented. Cf. United States v. Generix Drug Corp., 460 U. S. 453, 456, n. 6 (1983); United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199,203 (1968). In any event, the Montana Supreme Court evidently was of the view that no grant of immunity protected respondent or others in his position and the State continues to suffer the consequences of its constitutional holding. Because I believe that a genuine and important controversy is presented in this case, I respectfully dissent from the dismissal of the writ of certiorari.
2 2 MARTIN v. DISTRICT OF COLUMBIA COURT OF APPEALS Per Curiam lowed until November 23, 1992, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33. We also direct the Clerk not to accept any further petitions for certiorari from Martin in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33. Martin is a notorious abuser of this Court's certiorari process. We first invoked Rule 39.8 to deny Martin in forma pauperis status last November. See Zatko v. California, 502 U. S. 16 (1991) (per curiam). At that time, we noted that Martin had filed 45 petitions in the past 10 years, and 15 in the preceding 2 years alone. Although Martin was granted in forma pauperis status to file these petitions, all of these petitions were denied without recorded dissent. In invoking Rule 39.8, we observed that Martin is "unique-not merely among those who seek to file in forma pauperis, but also among those who have paid the required filing feesbecause [he has] repeatedly made totally frivolous demands on the Court's limited resources." Id., at 18. Unfortunately, Martin has continued in his accustomed ways. Since we first denied him in forma pauperis status last year, he has filed nine petitions for certiorari with this Court. We denied Martin leave to proceed in forma pauperis under Rule 39.8 of this Court with respect to four of these petitions,l and denied the remaining five petitions outright.2 Two additional petitions for certiorari are before us today, bringing the total number of petitions Martin has filed in the 1 Martin v. Smith, post, p. 810; Martin v. Delaware, post, p. 810; Martin v. Sparks, post, p. 810; Martin v. Delaware, 505 U. S. 1203 (1992). 2 Martin v. Delaware Law School of Widener Univ., Inc., post, p. 841; Martin v. Delaware, post, p. 886; Martin v. Knox, 502 U. S. 999 (1991); Martin v. Knox, 502 U. S. 1015 (1991); Martin v. Medical Center of Delaware, 502 U. S. 991 (1991).
3 past year to 11. With the arguable exception of one of these petitions, see Martin v. Knox, 502 U. S. 999 (1991) (STEVENS, J., joined by BLACKMUN, J., respecting denial of certiorari), all of Martin's filings, including those before us today, have been demonstrably frivolous. In Zatko, we warned that "[f]uture similar filings from [Martin] will merit additional measures." 502 U. S., at 18. As we have recognized, "[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice." In re McDonald, 489 U. S. 180, 184 (1989) (per curiam). Consideration of Martin's repetitious and frivolous petitions for certiorari does not promote this end. We have entered orders similar to the present one on two previous occasions to prevent pro se petitioners from filing repetitious and frivolous requests for extraordinary relief. See In re Sindram, 498 U. S. 177 (1991) (per curiam); In re McDonald, supra. Although this case does not involve abuse of an extraordinary writ, but rather the writ of certiorari, Martin's pattern of abuse has had a similarly deleterious effect on this Court's "fair allocation of judicial resources." See In re Sindram, supra, at 180. As a result, the same concerns which led us to enter the orders barring prospective filings in Sindram and McDonald require such action here. We regret the necessity of taking this step, but Martin's refusal to heed our earlier warning leaves us no choice. His abuse of the writ of certiorari has been in noncriminal cases, and so we limit our sanction accordingly. The order will therefore not prevent Martin from petitioning to challenge criminal sanctions which might be imposed on him. But it will free this Court's limited resources to consider the claims
4 4 MARTIN v. DISTRICT OF COLUMBIA COURT OF APPEALS STEVENS, J., dissenting of those petitioners who have not abused our certiorari process. It is so ordered. JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. In my opinion the judicial resources of the Court could be used more effectively by simply denying Martin's petitions than by drafting, entering, and policing the order the Court enters today. The theoretical administrative benefit the Court may derive from an order of this kind is far outweighed by the shadow it casts on the great tradition of open access that characterized the Court's history prior to its unprecedented decisions in In re McDonald, 489 U. S. 180 (1989) (per curiam), and In re Sindram, 498 U. S. 177 (1991) (per curiam). I continue to adhere to the views expressed in the dissenting opinions filed in those cases, and in the dissenting opinion I filed in Zatko v. California, 502 U. S. 16, 18 (1991) (per curiam). See also Talamini v. Allstate Ins. Co., 470 U. S. 1067 (1985), appeal dism'd (STEVENS, J., concurring).
5 MONTANA v. IMLAY CERTIORARI TO THE SUPREME COURT OF MONTANA No. 91-687. Argued October 7, 1992-Decided November 3,1992 Certiorari dismissed. Reported below: 249 Mont. 82, 813 P. 2d 979. Marc Racicot, Attorney General of Montana, argued the cause for petitioner. With him on the briefs was Elizabeth L. Griffing, Assistant Attorney General. Billy B. Miller argued the cause and filed briefs for respondent. * PER CURIAM. The writ of certiorari is dismissed as improvidently granted. JUSTICE STEVENS, concurring. When the trial judge revoked respondent's parole, he reinstated a 5-year sentence of imprisonment. On appeal, the Montana Supreme Court, in the decision before us, vacated the revocation order and remanded the case for resentencing. 249 Mont. 82, 813 P. 2d 979 (1991). The trial court subse- *Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson; and for the State of Vermont et al. by Jeffrey L. Amestoy, Attorney General of Vermont, and Donald F. Hartman, Jr., Assistant Attorney General, and by the Attorneys General for their respective States as follows: Charles E. Cole of Alaska, Paul J. McMurdie of Arizona, Charles M. Oberly III of Delaware, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Robert J. Del Tufo of New Jersey, Lacy H. Thornburg of North Carolina, Lee Fisher of Ohio, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Paul Van Dam of Utah, and Mary Sue Terry of Virginia. John E. B. Myers filed a brief for the American Professional Society on the Abuse of Children as amicus curiae.
6 quently resentenced respondent, again to a 5-year term of imprisonment, and the Montana Supreme Court upheld that sentence in a judgment not now before us for review. Thus, no matter which party might prevail in this Court, the respondent's term of imprisonment will be the same. At oral argument, neither counsel identified any way in which the interests of his client would be advanced by a favorable decision on the merits-except, of course, for the potential benefit that might flow from an advisory opinion. * Because it is not the business of this Court to render such opinions, it wisely decides to dismiss a petition that should not have been granted in the first place. JUSTICE WHITE, dissenting. We granted certiorari to consider whether the Fifth Amendment bars a State from conditioning probation upon the probationer's successful completion of a therapy program in which he would be required to admit responsibility for his criminal acts. In the decision below, the Montana Supreme Court held that, "absent any grant of immunity" from prosecution for incriminating statements made during therapy, the Fifth Amendment "prohibit[s] augmenting a defendant's sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination." 249 Mont. 82, 91, 813 P. 2d 979, 985 (1991). The constitutional question is an important one and the decision below places the Montana Supreme Court in conflict with other courts. See State v. Gleason, 154 Vt. 205, 576 A. 2d 1246 (1990); Henderson v. *Indeed, counsel for the State went so far as to explain that a victory for Montana on the merits would actually work to the advantage of respondent, by subjecting him to treatment leading to parole eligibility: "Question: So you're really trying to advance his [respondent's] interests? "[Answer]: Yes, sir, we are. "Question: He is better off if you win than if you lose. "[Answer]: In our judgment that is certainly the case." Tr. of Oral Arg.5.
7 State, 543 So. 2d 344 (Fla. App. 1989); Russell v. Eaves, 722 F. Supp. 558 (ED Mo. 1989), appeal dism'd, 902 F.2d 1574 (CA8 1990). I believe we should decide the question and resolve the conflict. As an initial matter, there can be no doubt that the decision below is a "final judgment" for purposes of 28 U. S. C. ยง 1257. Although the Montana Supreme Court remanded the case for resentencing, this is clearly a case in which "the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings." Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975); see also Brady v. Maryland, 373 U. S. 83, 85, n. 1 (1963). At oral argument, however, two further questions were raised concerning whether any live controversy persists in this case. First, counsel for respondent stated that his client had been assured by state corrections officials that he would be paroled in the very near future. If this were true, the outcome of this case could have no practical effect upon respondent's sentence. Second, counsel for petitioner stated his belief that a probationer would enjoy immunity from prosecution for incriminating statements made during courtordered therapy. This statement calls into doubt a critical assumption underpinning the Montana Supreme Court's judgment and might suggest that there really is no disagreement about the Fifth Amendment's application to this case. In my view, however, neither party's representation is sufficient to deprive this case of its status as a case or controversy. First, as counsel for both parties readily acknowledged, there is nothing in the record to support the expectation of respondent's counsel that respondent will be paroled shortly without regard to his completion of the State's therapy program. As far as the record is concerned, a decision in this case would affect respondent's eligibility for parole and thus have real consequences for the litigants.
8 Nor does the State's "concession" that a defendant would have immunity from prosecution based upon incriminating statements made to a therapist moot this case or otherwise render it unsuitable for review. This "concession" appeared to rest solely on the State's assumption that this Court's decision in Minnesota v. Murphy, 465 U. S. 420 (1984), mandated such a result. That reading of Murphy, however, is at least debatable. Because the State's concession appears to reflect a possible misunderstanding of its obligations under the law rather than any unequivocal and unconditional declaration of its own future prosecutorial policy, this statement does not moot this case or obviate the controversy. If its reading of Murphy were shown to be erroneous, the State might well revert to the view that a defendant could be prosecuted on the basis of statements made during postconviction therapy. Such a qualified concession is too uncertain a basis to find that no live controversy is presented. Cf. United States v. Generix Drug Corp., 460 U. S. 453, 456, n. 6 (1983); United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199,203 (1968). In any event, the Montana Supreme Court evidently was of the view that no grant of immunity protected respondent or others in his position and the State continues to suffer the consequences of its constitutional holding. Because I believe that a genuine and important controversy is presented in this case, I respectfully dissent from the dismissal of the writ of certiorari.
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