Hamm v. City of Rock Hill/Dissent Stewart
Mr. Justice Stewart, dissenting.
The chief difference between these cases and Bell v. Maryland, 378 U.S. 226, is that here federal rather than state legislation has intervened while the convictions were under review. As I understand the Court's opinion, it first asserts that, if these had been federal convictions, the passage of the Civil Rights Act would have abated them under principles of federal decisional law. It then proceeds to apply those asserted principles to these state convictions through the Supremacy Clause of the Constitution. If I thought that Congress had provided that such nonfinal state convictions are to be abated, I would find no constitutional difficulty in joining the Court's disposition of these cases under the Supremacy Clause. But Congress was silent on the subject, and I am unable to subscribe to the Court's reasoning.
In Bell v. Maryland, we said that a State's abatement policy was for the State to determine. Arkansas and South Carolina might hold that this supervening federal legislation provides a compelling reason to abate these proceedings, but I can find nothing in the legislation or in the Constitution which requires these States to do so.
We found in Bell that the law of Maryland was "open and arguable" on the issue of abatement. The law of [p327] Arkansas and South Carolina is no clearer. Like Maryland, Arkansas has a saving statute similar to the federal counterpart. And like Maryland, South Carolina apparently has a policy favoring abatement when state criminal statutes are repealed while prosecutions are pending. See State v. Spencer, 177 S.C. 346, 181 S.E. 217.
For the reasons stated in the Court's opinion in Bell v. Maryland, I would vacate the judgments and remand the cases to the state courts for reconsideration in the light of the supervening federal legislation.