In re Whittington/Dissent White

Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.

I would dismiss this case because the determination of delinquency which we have before us is not a final judgment within our appellate jurisdiction over proceedings in state courts. 28 U.S.C. § 1257. Eastman v. State of Ohio, 299 U.S. 505, 57 S.Ct. 21, 81 L.Ed. 374 (1936); Polakow's Realty Experts, Inc. v. Alabama, 319 U.S. 750, 63 S.Ct. 1155, 87 L.Ed. 1705 (1943); see Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937); Edwards v. People of State of California, 314 U.S. 160, 171, 62 S.Ct. 164, 86 L.Ed. 119 (1941); R. Stern & E. Gressman, Supreme Court Practice § 3-15 (3d ed. 1962); Robertson & Kirkham's Jurisdiction of the Supreme Court of the United States, § 39 (R. Wolfson & P. Kurland, eds. 1951). The Juvenile Court's formal order found petitioner to be delinquent but made no final disposition of his case; it did not relinquish jurisdiction to the adult court, place petitioner on probation, or commit him to a juvenile institution. Since that time, however, the Juvenile Court has entered an order relinquishing jurisdiction to the adult court. That order is now on appeal in the courts of Ohio, and that order may be a final judgment of the Juvenile Court falling within the reach of our appellate jurisdiction. If that order were properly before us now, it would raise the question of the constitutionality of the procedures employed to determine delinquency where such a determination is a prerequisite (as it may be under Ohio law) to relinquishing jurisdiction to the adult court. I do not believe that turnover proceedings require all of the formalities which should attend a determination of delinquency for purposes of final disposition in the Juvenile Court itself. I also have great doubt that the finding of delinquency in this case, and any consequences which normally attach to it, would in any way survive a trial and a not guilty verdict in the adult courts.