The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_687/91_687.zd

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SUPREME COURT OF THE UNITED STATES
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No. 91-687
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MONTANA, PETITIONER v. DONALD GLENN IMLAY
on writ of certiorari to the supreme court
of montana
[November 3, 1992]

  Justice White, dissenting.
  We granted certiorari to consider whether the Fifth
Amendment bars a State from conditioning probation upon
the probationer's successful completion of a therapy
program in which he would be required to admit responsi-
bility for his criminal acts.  In the decision below, the
Montana Supreme Court held that, -absent any grant of
immunity- from prosecution for incriminating statements
made during therapy, the Fifth Amendment -prohibit[s]
augmenting a defendant's sentence because he refuses to
confess to a crime or invokes his privilege against self-
incrimination.-  249 Mont. 82, 91, 813 P. 2d 979, 985
(1991).  The constitutional question is an important one
and the decision below places the Montana Supreme Court
in conflict with other courts.  See State v. Gleason, 154
Vt. 205, 576 A. 2d 1246 (1990); Henderson v. State, 543
So. 2d 344 (Fla. App. 1989); Russell v. Eaves, 722 F.
Supp. 558 (ED Mo. 1989), appeal dismissed, 902 F. 2d
1574 (CA8 1990).  I believe we should decide the question
and resolve the conflict.
  As an initial matter, there can be no doubt that the
decision below is a -final judgment- for purposes of 28
U. S. C. 1257.  Although the Montana Supreme Court
remanded the case for resentencing, this is clearly a case
in which -the federal issue, finally decided by the highest
court in the State, will survive and require decision
regardless of the outcome of future state-court proceed-
ings.-  Cox Broadcasting Corp. v. Cohn, 420 U. S. 469,
480 (1975); see also Brady v. Maryland, 373 U. S. 83, 85,
n. 1 (1963).
  At oral argument, however, two further questions were
raised concerning whether any live controversy persists in
this case.  First, counsel for respondent stated that his
client had been assured by state corrections officials that
he would be paroled in the very near future.  If this were
true, the outcome of this case could have no practical
effect upon respondent's sentence.  Second, counsel for
petitioner stated his belief that a probationer would enjoy
immunity from prosecution for incriminating statements
made during court-ordered therapy.  This statement calls
into doubt a critical assumption underpinning the Mon-
tana Supreme Court's judgment and might suggest that
there really is no disagreement about the Fifth Amend-
ment's application to this case.
  In my view, however, neither party's representation is
sufficient to deprive this case of its status as a case or
controversy.  First, as counsel for both parties readily
acknowledged, there is nothing in the record to support
the expectation of respondent's counsel that respondent
will be paroled shortly without regard to his completion
of the State's therapy program.  As far as the record is
concerned, a decision in this case would affect respondent's
eligibility for parole and thus have real consequences for
the litigants.
  Nor does the State's -concession- that a defendant would
have immunity from prosecution based upon incriminating
statements made to a therapist moot this case or other-
wise render it unsuitable for review.  This -concession-
appeared to rest solely on the State's assumption that this
Court's decision in Minnesota v. Murphy, 465 U. S. 420
(1984), mandated such a result.  That reading of Murphy,
however, is at least debatable.  Because the State's
concession appears to reflect a possible misunderstanding
of its obligations under the law rather than any unequivo-
cal and unconditional declaration of its own future prose-
cutorial policy, this statement does not moot this case or
obviate the controversy.  If its reading of Murphy were
shown to be erroneous, the State might well revert to the
view that a defendant could be prosecuted on the basis of
statements made during postconviction therapy.  Such a
qualified concession is too uncertain a basis to find that
no live controversy is presented.  Cf. United States v.
Generix Drug Corp., 460 U. S. 453, 456, n. 6 (1983);
United States v. Concentrated Phosphate Export Assn.,
Inc., 393 U. S. 199, 203 (1968).  In any event, the Mon-
tana Supreme Court evidently was of the view that no
grant of immunity protected respondent or others in his
position and the State continues to suffer the consequenc-
es of its constitutional holding.
  Because I believe that a genuine and important contro-
versy is presented in this case, I respectfully dissent from
the dismissal of the writ of certiorari.