Barr v. Matteo/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

The Court of Appeals ruled that the question of the defense of qualified privilege on which we vacate and remand had been 'waived' by petitioner and therefore should not be considered by the Court of Appeals under its Rules. That question therefore is not here for us nor should it be reached by the Court of Appeals. I cannot say that the Court of Appeals misconstrued its own Rules or committed palpable error in refusing to consider the question or unceremoniously and improperly reached for a constitutional question which it should have sought to avoid. Under these circumstances it is an unwarranted exercise of our supervisory powers to require that the question be considered by the Court of Appeals. Instead we should exercise our discretion by denying certiorari.