A writ of certiorari will be dismissed as improvidently granted where the judgment of the court below rested on independent and adequate state grounds.
Defendant in a Colorado state narcotics prosecution filed motions to suppress most of the evidence against him as unlawfully seized and for disclosure of the names, addresses, and telephone numbers of all informants who had provided evidence against him. Finding that the defendant had made a sufficient initial showing that an informant would provide information essential to the merits of his suppression motion, and that there was a reasonable basis in fact to believe that the informant was a likely source of relevant and helpful evidence on the question of guilt or innocence, the trial court ordered the state to disclose the informant's identity. When the state refused to comply, the trial court suppressed the evidence seized pursuant to the search warrant. On interlocutory appeal, the Colorado Supreme Court affirmed solely on the ground that the disclosure of the informant's identity was essential to the defendant's motion to suppress. The United States Supreme Court granted certiorari but later dismissed the cert writ as improvidently granted.
Was the writ of certiorari improvidently given?
In a per curiam opinion expressing the unanimous view of the court, it was held that the writ was improvidently granted because the judgment of the court below rested on independent and adequate state grounds. We of course have jurisdiction to determine our jurisdiction over this case, but once we agree that we lack jurisdiction, this case no more provides a vehicle for deciding the question upon which three Justices now volunteer an opinion than if the petition for a writ of certiorari had never been filed. I, of course, fully respect their right to their opinions concerning that question, just as I respect other scholars who disagree with the wisdom of the choice made in Hayburn's Case, 2 Dall. 409 (1792). I merely note that today's advisory opinion is consistent with the Court's emerging tendency to enlarge its own involvement in litigation conducted by state courts. This tendency feeds on itself, for it can only encourage litigants -- particularly institutional litigants -- to file even more petitions for certiorari in the hope of obtaining, if not review and reversal, at least an opinion by a number of Supreme Court Justices in support of their position. In light of the increasing flood of certiorari petitions, today's advisory opinion provides further support for concluding that this situation "will very likely progressively worsen.