Petitioner's subsequent bid to seek state judicial review of the voluntariness of the incriminating statements was rejected without a hearing on the ground that she had "waived" this claim under section 4 of the PCHA. See Commonwealth v. Kravitz, 441 Pa. 79, 85, 269 A.2d 912 (1970). Petitioner then sought an executive pardon, but this avenue also proved unsuccessful.
In September 1975, petitioner instituted an action in the United States District Court for the Eastern District of Pennsylvania, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that her conviction was "null and void." This lawsuit was dismissed without opinion.
Also in September 1975, petitioner filed in the Eastern District of Pennsylvania an application for a writ of habeas corpus. By this time petitioner had been released from prison and discharged from parole, and the habeas corpus action was dismissed for want of subject matter jurisdiction inasmuch as petitioner had not been "in custody" at the time the petition was filed, as required under 28 U.S.C. § 2254.
The Court of Appeals for the Third Circuit affirmed both dismissals. Kravitz v. Commonwealth, 546 F.2d 1100 (3rd Cir. 1977). Circuit Judge Gibbons dissented from the dismissal of the habeas corpus action, opining that jurisdiction over petitioner's Fifth Amendment claim was satisfied by relation back to the 1965 petition filed in this court. Judge Gibbons then suggested using Rule 60 of the Federal Rules of Civil Procedure to reopen the 1965 habeas corpus proceeding, and thereby obtain a federal determination of the constitutionality of her conviction.
On May 4, 1977, petitioner filed a motion pursuant to Rule 60 "to obtain a clarification or modification of the Court's Order ... denying the ... petition ...." Specifically, petitioner sought to add to Judge Follmer's Order of August 25, 1965 "express language retaining jurisdiction pending determination by the state courts of the constitutional issues presented to, but undecided by, this Court...." This motion was denied by Order dated June 16, 1977, with leave to file a second motion that conformed to the requirements of Rule 60(b).
Petitioner subsequently filed a motion under Rule 60(b)(6),
which was granted by Order dated November 2, 1977. Respondent then moved to dismiss the petition for lack of jurisdiction on the grounds that petitioner was no longer in custody and Rule 60(b) relief was time-barred. By Order dated August 2, 1978, respondent's motion was denied. The August 2nd Order also vacated the Order of November 2, 1977 reopening this case, and scheduled a hearing on the question of the reasonableness for the delay in filing the Rule 60 motion. After reviewing the testimony offered at this hearing I concluded that the delay was not unreasonable and granted petitioner's motion for relief from judgment. See In re Kravitz, 471 F. Supp. 665 (M.D.Pa.1979).
While petitioner's Rule 60(b) motion was still pending, respondent moved to dismiss the habeas corpus petition on the ground of waiver.
By Memorandum and Order dated June 5, 1979, 488 F. Supp. 38, I held that the 1970 state court waiver ruling was not conclusive in this federal habeas corpus proceeding and that an evidentiary hearing would be necessary to resolve the matter. In recognition of the likelihood that witnesses would become unavailable with the passage of additional time, and in an effort to efficiently employ judicial resources, the federal "waiver" hearing was combined with a hearing on the merits of petitioner's voluntariness claim.
These hearings were conducted August 20-22, 1979, and October 26, 1979. Following the October 26th hearing a schedule was established for presentation of proposed findings of fact and legal memoranda. Before this agenda was completed petitioner passed away.
"Mootness" is one aspect of the "justiciability" doctrine, which "prohibits consideration of constitutional issues except as a necessary incident to the resolution of a concrete "case' or "controversy.' This doctrine limits the jurisdiction of federal courts; when its requirements are not satisfied courts are without power to proceed, regardless of the wishes of the parties."
Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 Harv.L.Rev. 297, 297-98 (1979). Justiciability, however, is not an immutable concept. Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 377 (1974). Instead, it has been characterized as "flexible," recognizing exceptions based upon "practicalities and prudential considerations." United States Parole Commission v. Geraghty, 445 U.S. 388, 404, n.11, 100 S. Ct. 1202, 1212, n.11, 63 L. Ed. 2d 479 (1980). In Geraghty, the Supreme Court explained the inter-relationship between the "case or controversy" requirement and the mootness doctrine:
Article III of the Constitution limits federal "judicial Power', that is, federal court jurisdiction, to "Cases' and "Controversies'. This case or controversy limitation serves two complementary purposes. It limits the business of federal courts to "questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process,' and it defines the "role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of the government.' Likewise, mootness has two aspects: "when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'
Id. at 395, 100 S. Ct. at 1208. (citations omitted).
Consideration of the dual aspects of the mootness doctrine with a view toward the function and purpose of the writ of habeas corpus militates against finding a justiciable "case or controversy" here. The function of the writ "is to test in a court of law the legality of restraints on a person's liberty." R. Sokol, Federal Habeas Corpus § 1 (2d ed. 1969). A criminal conviction resulting in a prison sentence generally imposes restraints on a person's liberty beyond an actual loss of freedom, and so long as these "collateral legal consequences" subsist a challenge to the validity of the conviction, either on direct appeal or collaterally, remains "live."
See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 108, n.3, 98 S. Ct. 330, 332, n.3, 54 L. Ed. 2d 331 (1977) (per curiam ); Sibron v. New York, 392 U.S. 40, 55-58, 88 S. Ct. 1889, 1898, 20 L. Ed. 2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237, 88 S. Ct. 1556, 1559, 20 L. Ed. 2d 554 (1968); Jessup v. Clark, 490 F.2d 1068 (3d Cir. 1973). See generally Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 380-83 (1974). But when the criminal judgment no longer affects the convicted person's legal rights, the challenge to the constitutionality of the conviction does not present a "case or controversy." See, e.g., North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971); United States v. Bohling, 399 F.2d 305 (6th Cir. 1968). That is, the removal of the collateral legal consequences precludes the court from entering a decree that affects an individual in a concrete case.
Since death has removed the vestigial remnants of petitioner's conviction, i. e., there are no longer restraints on her liberty resulting from her conviction, the controversy is no longer "live." In sum, petitioner's actual, concrete injury suffered as a result of the putatively unconstitutional conviction continued up until the time of her death, but not beyond. The abstract question of whether petitioner's constitutional rights have been violated does not sustain federal jurisdiction.
Petitioner's counsel argues, however, that the moral stigma attaching to a murder conviction and the inability of petitioner's estate to inherit through her husband's estate are subsisting collateral legal consequences that save this case from the bar of mootness. Petitioner's claim that reputation alone sustains federal court jurisdiction is not supported by the case law. The Supreme Court "has never mentioned the moral stigma of a criminal conviction as a collateral consequence justifying the continuing exercise of jurisdiction."
Note, The Mootness Doctrine in the Supreme Court, 83 Harv.L.Rev. 373, 381, n.38 (1974). Furthermore, the Court of Appeals for this circuit, relying on St. Pierre v. United States, 319 U.S. 41, 43, 63 S. Ct. 910, 911, 87 L. Ed. 1199 (1943), has ruled that the moral stigma attending a conviction does not satisfy Article III jurisdictional requirements. See Government of the Virgin Islands v. Ferrer, 275 F.2d 497, 499 (3d Cir. 1960). Accord, United States v. Galante, 298 F.2d 72, 73 (2d Cir. 1962). Simply stated, the interest in posthumously restoring petitioner's reputation is not sufficient to present a "case or controversy" for judicial resolution.
Nor do I believe that the operation of the Pennsylvania Slayer's Act defeats mootness.
As Judge Lord observed in United States ex rel. Schwartz v. Lennox, 320 F. Supp. 754, 756 (E.D.Pa.1971):
(It) would be a prostitution of the Great Writ, historically dedicated to the vindication of personal rights, to permit it to be used by beneficiaries, whose constitutional rights are not in question, as a device to obtain money.