Hudson Distributors, Inc. v. Eli Lilly & Company/Dissent Harlan

Mr. Justice HARLAN, dissenting.

I would dismiss these appeals for lack of jurisdiction. Under well-established principles, the judgments on review here are not 'final,' as required by 28 U.S.C. s 1257, even assuming that the federal question which the Court decides can be deemed to have been passed on by the Supreme Court of Ohio.

The appellant, Hudson, filed its petitions for a declaratory judgment that the Ohio Fair Trade Act was invalid as soon as the Act went into effect. The appellees, Upjohn and Lilly, filed answers and cross-petitions alleging Hudson's refusal to comply with the Act and seeking injunctive relief and damages. Pursuant to a stipulation of the parties and as permitted by Ohio procedure, the issue raised by the petition for a declaratory judgment-the 'general' validity of the Ohio Act-was tried separately and in advance of the trial of all other factual and legal issues raised by the answers and cross-petitions and the responses thereto. In this posture, the cases decided together at every level, proceeded through the Ohio courts. The Court of Common Pleas for Cuyahoga County decided that the Ohio Fair Trade Act was invalid under the Ohio Consitution, because it involved an unlawful delegation of legislative power. On appeal, the Court of Appeals for Cuyahoga County reversed, 117 Ohio App. 207, 176 N.E.2d 236, and remanded the case to the Court of Common Pleas 'for further proceedings according to law with respect to the cross-petition filed in this cause * *  * .' The Supreme Court of Ohio affirmed. 174 Ohio St. 487, 190 N.E.2d 460.

Although the distinction between final and nonfinal judgments, for purposes of this Court's jurisdiction, has been 'faint and faltering at times,' Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 69, 68 S.Ct. 972, 977, 92 L.Ed. 1212, it has not disappeared altogether. The nature of the distinction and the reasons for maintaining it have repeatedly been stated. To be reviewed in this Court, a state court judgment must be 'final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court.' Market Street Ry. Co. v. Railroad Comm'n, 324 U.S. 548, 551, 65 S.Ct. 770, 773, 89 L.Ed. 1171. It 'must end the litigation by fully determining the rights of the parties * *  * .' Gospel Army v. Los Angeles, 331 U.S. 543, 546, 67 S.Ct. 1428, 1430, 91 L.Ed. 1662. See also, e.g., Mower v. Fletcher, 114 U.S. 127, 128, 5 S.Ct. 799, 29 L.Ed. 117; Cobbledick v. United States, 309 U.S. 323, 324-325, 60 S.Ct. 540, 541, 84 L.Ed. 783; Department of Banking, State of Nebraska v. Pink, 317 U.S. 264, 267-268, 63 S.Ct. 234, 235, 87 L.Ed. 254; Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 381-382, 73 S.Ct. 749, 750-751, 97 L.Ed. 1094.

'Since its establishment, it has been a marked characteristic     of the federal judicial system not to permit an appeal until      a litigation has been concluded in the court of first      instance. * *  * This requirement has the support of      considerations generally applicable to good judicial      administration. It avoids the mischief of economic waste and     of delayed justice. Only in very few situations, where     intermediate rulings may carry serious public consequences,      has there been a departure from this requirement of finality      for federal appellate jurisdiction. This prerequisite to     review derives added force when the jurisdiction of this      Court is invoked to upset the decision of a State court. Here     we are in the realm of potential conflict between the courts of two different governments. * *  *      This requirement is not one of those technicalities to be      easily scorned. It is an important factor in the smooth     working of our federal system.' Radio Station WOW, Inc. v.      Johnson, 326 U.S. 120, 123-124, 65 S.Ct. 1475, 1478, 89 L.Ed. 2092.

One would have thought that the judgments reviewed here were paradigms of the nonfinal judgment. Assuming that the federal question which the Court decides was really passed on by the Ohio Supreme Court, it is clear nonethelessthat this litigation is still in its early stages. No rights have yet been established; no liabilities have been incurred. The Court acknowledges that federal questions, involving unresolved issues of fact and interpretations of the Ohio Act, must still be decided by the Ohio courts. In Upjohn, No. 489, a federal question concerning the possible application of our decision in United States v. mcKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209, 'was reserved for future determination by the Ohio courts pursuant to a stipulation of the parties * *  * .' Ante, p. 394, note 10. And in Lilly, No. 490, other questions, including at least one federal question, 'are pending and unresolved in the Ohio Court of Common Pleas * *  * .' Ante, p. 395. The Court can only hope that it will not prove to have wasted its time altogether in these 'piecemeal proceedings,' Pope v. Atlantic Coast Line R. Co., supra, 345 U.S. at 381, 73 S.Ct. at 750, because a subsequent decision of the Ohio courts renders the decision here 'unnecessary and irrelevant to a complete disposition of the litigation.' Id., 345 U.S. at 382, 73 S.Ct. at 751 (footnote omitted). If that does not happen, there is every likelihood that the cases will be brought back to this Court for a second time, for consideration of the questions now unresolved. In Radio Station WOW, supra, 326 U.S. at 127, 65 S.Ct. at 1480, this Court stated: 'Of course, where the remaining litigation may raise other federal questions that may later come here, * *  * to allow review of an intermediate adjudication would offend the decisive objection to fragmentary review.' The Court ignores that 'decisive objection.'

In addition to making an uneconomic use of its own time, the Court's entertainment of these appeals has interfered with the orderly procedures of the Ohio courts. In its brief to this Court, Lilly states that proceedings in the Court of Common Pleas have been stayed 'pending the outcome of this appeal.' Brief, p. 11. Upjohn states in its brief that it has not yet taken action to bring to trial the issues reserved in its case, Brief, p. 13, presumably because of the pendency of the present proceedings. So far as the litigants are concerned, this march to the well for an eye-dropper of water does them no good either, except insofar as delay may be temporarily useful to one party or the other. Now that this Court's decision is rendered, the action will presumably go forward in the state courts; the litigants are no better informed of their ultimate rights than they were before the case came here, and the case is not a jot closer to its conclusion.

The Court gives no explanation at all for its departure from established principles. There is not the faintest suggestion of compelling public considerations requiring a determination of whatever issue it is that the Court does actually decide. Nor are there any private interests at stake which will be irremediably lost unless the Court acts, since no rights or liabilities were determined below or have been determined here. The fact that under Ohio procedure Hudson's petition for a declaratory judgment was separable from the cross-petition and could be determined independently of it has no bearing on whether that determination was final for purposes of this Court's jurisdiction. E.g., Department of Banking, State of Nebraska v. Pink, supra, 317 U.S. at 268, 63 S.Ct. at 235; Market Street Ry. Co. v. Railroad Comm'n, supra, 324 U.S. at 551, 65 S.Ct. at 772-773.

Ninety percent of this case remains submerged. I suspect that the explanation for the Court's snipping off and deciding the 10% that has reached the surface lies in the fact that the Court failed to dismiss the appeal when it was first presented, 375 U.S. 938, 939, 84 S.Ct. 348, 11 L.Ed.2d 270, because the jurisdictional objections to review were not then so apparent. I am at a loss to understand why the Court chooses to compound the original error, rather than to correct it.

I would dismiss both appeals.