In The

Supreme Court of the United States




Decided February 21, 1989

Justice O’Connor, Concurring in part and dissenting in part

Topic: First Amendment*Court vote: 9–0
Note: No other Justices joined this opinion.
Citation: 489 U.S. 46 Docket: 87–470Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring in part and dissenting in part.

Because I believe that this Court does not have jurisdiction to hear the petition in Sappenfield v. Indiana, No. 87-614, I dissent from the Court's disposition of that case. I concur in the Court's disposition of Fort Wayne Books, Inc. v. Indiana, No. 87-470, which presents, among others, the same question as presented in Sappenfield.

Petitioners Sappenfield and his bookstore corporations, Fantasy One, Inc., and Fantasy Two, Inc., have yet to be tried or convicted on the Racketeer Influenced and Corrupt Organizations (RICO) counts brought against them by the State of Indiana. Petitioners' motion to dismiss the RICO counts and the State's subsequent appeal were, therefore, interlocutory. Except in limited circumstances, this Court has jurisdiction only to review final judgments rendered by the highest court of the State in which decision may be had. 28 U.S.C. § 1257. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975). As we observed in Flynt v. Ohio, 451 U. S. 619, 451 U. S. 620 (1981) (per curiam), a case involving violations of Ohio's obscenity statute, "[a]pplied in the context of a criminal prosecution, finality is normally defined by the imposition of the sentence." Neither a finding of guilt nor imposition of sentence has yet occurred in Sappenfield. As in Flynt, were we to assume jurisdiction over Sappenfield, there would be some

probability of piecemeal review with respect to federal issues [because] [i]t appears that other federal issues will be involved in the trial court, such as whether or not the publication[s] at issue [are] obscene.

451 U.S. at 451 U. S. 621. Similarly, as in Flynt,

delaying review until petitioners are convicted, if they are, would [not] seriously erode federal policy within the meaning of our prior cases.... That this case involves an obscenity prosecution does not alter the conclusion.

Id. at 451 U. S. 622. The Court's assumption of jurisdiction based on its determination that

[a]djudicating the proper scope of First Amendment protections... merits application of an exception to the general finality rule,

ante at 489 U. S. 55, essentially expands the fourth Cox exception to permit review of any state interlocutory orders implicating the First Amendment. Such a broad expansion of the narrow exceptions to the statutory limitations on our jurisdiction is completely unwarranted. Ironically, the petition in Fort Wayne Books makes this expansion unnecessary as well. Accordingly, I would dismiss the writ of certiorari in Sappenfield for want of jurisdiction.

The petition in Fort Wayne Books is also from an interlocutory appeal to the Indiana appellate courts. In this case, however, pretrial sanctions have already been imposed on petitioners. Where First Amendment interests are actually affected, we have held that such interlocutory orders are immediately reviewable by this Court. National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). Although Fort Wayne Books is a civil action brought under Indiana's Civil Remedies for Racketeering Activity statute, such civil actions depend on preexisting violations of the State's criminal RICO statute. See ante at 489 U. S. 50 -51. Consequently, the question presented in Sappenfield -whether violations of Indiana's obscenity statute may be predicate acts for charges brought under the State's criminal RICO statute -is also presented in Fort Wayne Books. Were it unconstitutional for Indiana to include obscenity violations among possible predicate acts for RICO violations, the civil remedies sought in Fort Wayne Books would be equally invalid. I fully agree with the Court's disposition of this question as it applies to Fort Wayne Books. There is "no constitutional bar to the State's inclusion of substantive obscenity violations among the predicate offenses under its RICO statute." Ante at 489 U. S. 60. I also agree and concur with the Court's statement of the cases in Part I and its disposition in Part III of the separate questions presented in Fort Wayne Books.

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